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Title: |
Stock Purchase Agreement |
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Entities: |
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Date: |
2003 |
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Size: |
Preview shows 22KB of 151KB total |
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Price: |
$48 |
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ID: |
#1711516 |
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BY AND AMONG
MMI PRODUCTS, INC.
("Purchaser"),
STRUCTURAL REINFORCEMENT PRODUCTS, INC.
(the "Company")
AND
QUILNI B.V.
("Seller")
Dated December 27, 2002
1.1 Definitions 1
1.2 Interpretation 7
ARTICLE II SALE AND PURCHASE OF SHARES 8
2.1 Sale and Purchase 8
2.2 Payment of Purchase Price 8
2.3 Indebtedness 9
2.4 Closing Date Balance Sheet 9
2.5 Earnout 10
2.6 Assignment of Certain Accounts Receivable 11
2.7 Withholding of Tax 12
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER 12
3.1 Due Incorporation; Subsidiaries 12
3.2 Due Authorization 12
3.3 Consents and Approvals; Authority Relative to this Agreement 13
3.4 Capitalization; Liens 14
3.5 Financial Statements; Undisclosed Liabilities 14
3.6 No Adverse Effects or Changes 15
3.7 Title to Properties 16
3.8 Condition and Sufficiency of Assets 16
3.9 Real Property 17
3.10 Personal Property 17
3.11 Computer System 18
3.12 Inventories 18
3.13 Accounts Receivable and Advances 18
3.14 Intellectual Property 18
3.15 Contracts 19
3.16 Permits 20
3.17 Insurance 21
3.18 Employee Benefit Plans and Employment Agreements 21
3.19 Employment and Labor Matters 23
3.20 Capital Improvements 24
3.21 Taxes 24
3.22 No Defaults or Violations 26
3.23 Environmental Matters 26
3.24 Litigation 27
3.25 No Conflict of Interest 28
3.26 Bank Accounts 28
3.27 Customers and Suppliers 28
3.28 Improper and Other Payments 28
3.29 Brokers 29
3.30 Accuracy of Statements 29
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER 29
4.1 Due Incorporation 29
4.2 Due Authorization 29
4.3 Consents and Approvals; Authority Relative to this Agreement 30
4.4 Litigation 30
4.5 Brokers 30
ARTICLE V COVENANTS 30
5.1 Implementing Agreement 30
5.2 Access to Information and Facilities 31
5.3 Preservation of Business 31
5.4 Consents and Approvals 33
5.5 Maintenance of Insurance 33
5.6 Resignation of Officers and Directors 34
5.7 Supplemental Information 34
5.8 Confidentiality 34
5.9 Exclusivity 34
5.10 Use of Name 34
5.11 Interim Financial Statements 34
5.12 Termination of Certain Agreements 35
5.13 Tax Matters/Financial Information 35
5.14 NOLs 35
ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER 36
6.1 Warranties True as of Both Present Date and Closing Date 36
6.2 Compliance with Agreements and Covenants 36
6.3 Certificate of Compliance 36
6.4 Consents and Approvals 36
6.5 No Material Adverse Change 36
6.6 Actions or Proceedings 36
ARTICLE VII CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER 37
7.1 Warranties True as of Both Present Date and Closing Date 37
7.2 Compliance with Agreements and Covenants 37
7.3 Certificate of Compliance 37
7.4 Consents and Approvals 37
7.5 Actions or Proceedings 37
ARTICLE VIII CLOSING 37
8.1 Closing 37
8.2 Deliveries by Seller 37
8.3 Deliveries by Purchaser 38
ARTICLE IX TERMINATION 39
9.1 Termination 39
9.2 Effect of Termination 39
ARTICLE X INDEMNIFICATION 40
10.1 Survival 40
10.2 Indemnification by Seller 40
10.3 Indemnification by Purchaser 40
10.4 Claims 41
10.5 Notice of Third Party Claims; Assumption of Defense 41
10.6 Settlement or Compromise 42
10.7 Failure of Indemnifying Person to Act 42
10.8 Purchase Price Adjustments 42
ARTICLE XI NON-COMPETITION 42
11.1 Non-Competition Agreement 42
11.2 Severability 43
11.3 No Limitation of Other Provisions 43
ARTICLE XII MISCELLANEOUS 43
12.1 Expenses 43
12.2 Amendment 43
12.3 Notices 43
12.4 Effect of Investigation 45
12.5 Payments in Dollars 45
12.6 Waivers 45
12.7 Counterparts 45
12.8 Assignment 45
12.9 No Third Party Beneficiaries 45
12.10 Publicity 45
12.11 Further Assurances 46
12.12 Severability 46
12.13 Specific Performance 46
12.14 Remedies Cumulative 46
12.15 Entire Understanding 46
12.16 Applicable Law 46
12.17 Jurisdiction of Disputes; Waiver of Jury Trial 47
EXHIBITS
Exhibit A Form of Opinion of Seller's Counsel
SCHEDULES
Definitions
1.1A Financial Statements
1.1B Related Agreements
Representations and Warranties of Sellers and the Company
3.1 Subsidiaries
3.3 Consents and Approvals
3.4 Capitalization; Liens
3.5 Undisclosed Liabilities
3.6 No Adverse Effects or Changes
3.7 Title to Properties
3.8 Condition and Sufficiency of Assets
3.9 Real Property
3.10 Personal Property
3.11 Computer System
3.12 Inventories
3.13 Accounts Receivable and Advances
3.14 Intellectual Property
3.15 Contracts
3.16 Permits
3.17 Insurance
3.18 Employee Benefit Plans and Employment Agreements
3.19 Employment and Labor Matters
3.20 Capital Improvements
3.21 Taxes
3.22 No Defaults or Violations
3.23 Environmental Matters
3.24 Litigation
3.25 No Conflict of Interest
3.26 Bank Accounts
3.27 Customers and Suppliers
3.28 Improper and Other Payments
Representations and Warranties of Purchaser
4.3 Consents and Approvals
Covenants
5.3 Preservation of Business
5.12 Termination of Certain Agreements
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made this 27th day of December, 2002, by and among MMI PRODUCTS, INC., a Delaware corporation ("Purchaser"), STRUCTURAL REINFORCEMENT PRODUCTS, INC., a Delaware corporation (the "Company") and QUILNI BV, a Dutch corporation ("Seller"). Certain capitalized terms used herein are defined in Article I.
W I T N E S S E T H:
WHEREAS, Purchaser wishes to purchase from Seller and Seller wishes to sell to Purchaser all of the Shares.
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements herein contained, the parties agree as follows:
"Accounting Firm" shall have the meaning set forth in Section 2.4(c).
"Accounts Receivable" shall mean all accounts receivable, trade receivables, notes receivable and other receivables resulting from goods sold or services provided by the Company and shall include, as of the date hereof, all receivables listed on Schedule 3.13 and, as of the Closing Date, all receivables recorded on the Closing Date Balance Sheet.
"Adjusted Closing Date Balance Sheet" shall have the meaning set forth in Section 2.4(b).
"Advances" shall have the meaning set forth in Section 3.13.
"Affiliate" shall mean, with respect to any specified Person, (1) any other Person which, directly or indirectly, owns or controls, is under common ownership or control with, or is owned or controlled by, such specified Person, (2) any other Person which is a director, officer or partner, or is, directly or indirectly, the beneficial owner of ten percent (10%) or more of any class of equity securities, of the specified Person or a Person described in clause (1) of this paragraph, (3) another Person of which the specified Person is a director, officer or partner or is, directly or indirectly, the beneficial owner of ten percent (10%) or more of any class of equity securities, (4) another Person in which the specified Person has a substantial beneficial interest or as to which the specified Person serves as trustee or in a similar capacity or (5) any relative or spouse of the specified Person or any of the foregoing Persons, any relative of such spouse or any spouse of any such relative; provided, that at any time after the Closing Date, the Company on the one hand and Seller and its Affiliates shall not be deemed to be Affiliates of each other.
"Agreement" shall mean this Stock Purchase Agreement, including all exhibits and schedules hereto, as it may be amended from time to time in accordance with its terms.
"Arrangements" shall have the meaning set forth in Section 3.18(a).
"Base Amount" shall have the meaning set forth in Section 2.5(a).
"Benefit Plans" shall have the meaning set forth in Section 3.18(b).
"Business Day" shall mean any day of the year other than (i) any Saturday or Sunday or (ii) any other day on which banks located in Texas or Pennsylvania generally are closed for business.
"Closing" shall mean the consummation of the transactions contemplated herein in accordance with Article VIII.
"Closing Date" shall mean the date on which the Closing occurs pursuant to Section 8.1.
"Closing Date Balance Sheet" shall have the meaning set forth in Section 2.4(c).
"Code" shall mean the United States Internal Revenue Code of 1986, as amended.
"Competing Person" shall have the meaning set forth in Section 11.1(a).
"Computer System" shall have the meaning set forth in Section 3.11.
"Contract" shall mean any contract, lease, sales order, purchase order, agreement, warranty, indenture, mortgage, note, bond, right, warrant or instrument, whether written or verbal.
"Dollars" or numbers preceded by the symbol "$" shall mean amounts in United States Dollars.
"Earnout Amount" shall have the meaning set forth in Section 2.5(a).
"EBIT" shall have the meaning set forth in Section 2.5(a).
"Employment Agreements" shall have the meaning set forth in Section 3.18(a).
"Environmental Law" shall mean any Law that imposes liability or standards of conduct concerning, or otherwise relates to, protection of the environment or human health, including any Law relating to (i) emissions, discharges, releases or threatened releases into the environment, (ii) treatment, storage, or disposal of any waste, (iii) prevention, investigation, removal or remediation of contamination, and (iv) generation, management, or handling of any noise, odor, energy, matter or pathogen that may present substantial danger to public health or the environment. Without limiting the generality of the foregoing, "Environmental Laws" shall include the Comprehensive Environmental Response, Compensation and Liability Act, as amended, the Superfund Amendments and Reauthorization Act, as amended, the Resource Conservation and Recovery Act, as amended, the Toxic Substances Control Act, as amended, the Federal Water Pollution Control Act Amendments, as amended, the Clean Air Act as amended, any so-called "Superfund" or "Superlien" Law (including those already referenced in this definition) and any other Law having a similar subject matter.
"Environmental Permit" shall mean any Permit required by or pursuant to any applicable Environmental Law.
"Environmental Warranty" shall mean a representation or warranty in Section 3.23.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended.
"ERISA Affiliate" shall mean, with respect to any Person, any corporation, trade or business which, together with such Person, is a member of a controlled group of corporations or a group of trades or businesses under common control within the meaning of sections 414 of the Code.
"Extinguished Debt" shall have the meaning set forth in Section 2.3(a).
"Extinguished Debt Certificate" shall have the meaning set forth in Section 2.3(a).
"Final Working Capital Surplus" shall have the meaning set forth in Section 2.2(c).
"Financial Statements" shall mean all of the following:
In addition, after the date of this Agreement, the term "Financial Statements" shall include any and all Interim Financial Statements then in existence.
"GAAP" shall mean U.S. generally accepted accounting principles at the time in effect.
"Governmental Authority" shall mean the government of the United States or any foreign country or any state or political subdivision thereof and any entity, body or authority exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any quasi-governmental entity established to perform such functions.
"Hazardous Substance" shall mean any material, substance, pathogen or form of energy which (i) constitutes a "hazardous substance," "hazardous waste," "hazardous chemical," "hazardous material," "toxic substance," "pollutant" or "contaminant" (as such terms are defined by or pursuant to any Environmental Law) or (ii) is regulated or controlled by, or that could give rise to any liability under, any Environmental Law. Without limiting the generality of the foregoing, Hazardous Substance shall include any substance that contains petroleum, asbestos, or polychlorinated biphenyl or that is flammable, explosive or radioactive.
"Indebtedness" with respect to any Person means any obligation of such Person for borrowed money whether or not reflected on the face of the balance sheet contained in the Financial Statements, and in any event shall include (i) any obligation incurred for all or any part of the purchase price of property or other assets or services or for the cost of property or other assets constructed or of improvements thereto, other than accounts payable included in current liabilities and incurred in the ordinary course of business, (ii) the face amount of all letters of credit issued for the account of such Person, (iii) obligations (whether or not such Person has assumed or become liable for the payment of such obligation) secured by Liens, (iv) capitalized lease obligations, (v) all guarantees of such Person, (vi) all accrued interest, fees and charges in respect of any amount described in this definition, and (vii) all prepayment premiums and penalties, and any other fees, expenses, indemnities and other amounts.
"Indemnified Person" shall mean the Person or Persons entitled to, or claiming a right to, indemnification under Article X.
"Indemnifying Person" shall mean the Person or Persons claimed by the Indemnified Person to be obligated to provide indemnification under Article X.
"Intellectual Property" shall mean all United States and foreign patents (including continuations, continuations-in-part, reissues and re-examinations thereof) and patent applications; registered and unregistered trade names, trademarks, service names and service marks (and applications for registration of the same) and all goodwill associated therewith; copyrights and copyright registrations (and applications for the same); trade secrets; computer data (including formulations and analyses), computer programs and software (in source code and object code form) and firmware and all related programming, user and systems documentation; inventions, processes and designs (whether or not patentable or reduced to practice); know-how and formulae; and all other intellectual property rights and assets.
"Interim Financial Statements" shall have the meaning set forth in Section 5.11.
"IRS" shall mean the United States Internal Revenue Service.
"Latest Balance Sheet" shall mean the unaudited balance sheet of the Company dated as of November 30, 2002 set forth in Schedule 1.1A.
"Law" shall mean any law, statute, regulation, ordinance, rule, order, decree, judgment, common law decision, common law decision, consent decree, settlement agreement or governmental requirement enacted, promulgated, entered into, agreed to or imposed by any Governmental Authority.
"Lender Pay-Off Letters" shall have the meaning set forth in Section 2.3(a).
"Licensed Intellectual Property" shall have the meaning set forth in Section 3.14.
"Lien" shall mean any lien (except for any lien for Taxes not yet due and payable), mortgage, charge, restriction, pledge, security interest, option, lease, sublease or right of any third party.
"Loss" or "Losses" shall mean any and all losses, liabilities, costs, claims, damages, penalties and expenses (including attorneys' fees and expenses and costs of investigation and litigation). In the event any of the foregoing are indemnifiable hereunder, the terms "Loss" and "Losses" shall include any and all attorneys' fees and expenses and costs of investigation and litigation incurred by the Indemnified Person in enforcing such indemnity.
"Major Customer" shall have the meaning set forth in Section 3.27(a).
"Major Supplier" shall have the meaning set forth in Section 3.27(a).
"Material Adverse Change" shall mean a change (or circumstance involving a prospective change) in the business, operations, assets, liabilities, results of operations, cash flows, condition (financial or otherwise) or prospects of the Company which is materially adverse.
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