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Document Preview Asset Purchase Agreement |
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Title: |
Asset Purchase Agreement |
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Entities: |
Intertape Polymer Group Inc.; Lynch Corp.; AFL-CIO; Paper, Allied-Industrial, Chemical & Energy Workers International Union; Kaye Scholer; Paul, Weiss, Rifkind, Wharton & Garrison; Spinnaker Industries, Inc.; Spinnaker Coating, Inc.; Spinnaker Coating-Maine, Inc.; SP Acquisition, LLC |
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Date: |
2002 |
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Size: |
Preview shows 10KB of 117KB total |
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Price: |
$50 |
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ID: |
#223999 |
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ASSET PURCHASE AGREEMENT
by and among
SPINNAKER INDUSTRIES, INC.,
SPINNAKER COATING, INC.,
SPINNAKER COATING-MAINE, INC.
and
SP ACQUISITION, LLC
Dated as of January 18, 2002
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
1. Definitions.......................................................1
2. Purchase and Sale.................................................8
3. Purchase Price and Working Capital Adjustment....................11
4. Liabilities and Obligations......................................14
5. Obtaining of Procedures and Sale Order; Closing..................16
6. Deliveries at Closing............................................16
7. Representations and Warranties of Sellers........................17
8. Representations and Warranties of Buyer..........................23
9. Additional Agreement of the Parties..............................23
10. Conditions to Buyer's Obligation to Effect Closing...............26
11. Conditions to Sellers' Obligation to Effect Closing..............27
12. Termination; Effect of Termination...............................28
13. Employees........................................................30
14. Survival of Representations and Warranties; Indemnification......30
15. Jurisdiction.....................................................32
16. Miscellaneous....................................................33
</TABLE>
i
<PAGE>
SCHEDULES AND EXHIBITS
Exhibits
A Motion of Debtors for Order Pursuant to Sections 105, 363, 365 and 1146
of the Bankruptcy Code
B Escrow Agreement
C Post-Closing Escrow Agreement
Schedules
1(f) Transamerica Encumbrances
2(a)(i) Permitted Encumbrances
2(a)(xviii) Description of Other Acquired Assets
3(c) Allocation of Purchase Price
3(d)(i) Target Statement of Net Working Capital
4(b)(ii) Assumed Prepetition Liabilities Related to Customer Claims and
Rebates, Taxes and Employee Benefits to the Extent Approved by the
Court and Not Satisfied Before Closing
4(b)(iv) Additional Pre-Petition Liabilities
7(b) Conflicts/Consents: Sellers
7(d) Executory Contracts; Assigned Contracts
7(e)(i) Audited Financials
7(e)(ii) Current Balance Sheet
7(f) Equipment
7(h) Intellectual Property
7(i) Compliance with Laws
7(k) Permits
7(l) Environmental Matters
7(m) Employee Matters
7(n) Absence of Certain Changes
7(o) Liabilities
7(p) Insurance
7(q) Taxes
7(t) Warranty Obligations, Pricing and Other Accommodations
7(u) Real Property
7(v) Litigation
8(b) Conflicts/Consents: Buyer
ii
<PAGE>
ASSET PURCHASE AGREEMENT
AGREEMENT, dated as of January 18, 2002, by and among
SPINNAKER INDUSTRIES, INC., a Delaware corporation ("SII"), SPINNAKER COATING,
INC., a Delaware corporation and wholly-owned subsidiary of SII ("SCI"),
SPINNAKER COATING-MAINE, INC., a Delaware corporation and wholly-owned
subsidiary of SCI ("SCMI") (SII, SCI and SCMI are sometimes individually
referred to herein as "Seller" and collectively as "Sellers"), and SP
ACQUISITION, LLC, a Delaware limited liability company (and, except as otherwise
provided herein, any assignee to whom Buyer's rights and obligations are
transferred pursuant to Section 16(i), "Buyer").
W I T N E S S E T H:
WHEREAS, SCI is engaged in the business of manufacturing and
selling pressure sensitive adhesive roll and sheet products (as conducted by
SCI, the "Business");
WHEREAS, on November 13, 2001, each Seller (along with
Entoleter Inc., a wholly-owned subsidiary of SII) filed a voluntary petition for
relief under chapter 11 of the Bankruptcy Code (as defined below) with the
United States Bankruptcy Court for the Southern District of Ohio (the
"Bankruptcy Court") (collectively, the "Petition"), which petitions were
procedurally consolidated for joint administration pursuant to order of the
Bankruptcy Court dated November 14, 2001, commencing a case titled In re
SPINNAKER INDUSTRIES, INC., et. al., Case No. 01-38066; and
WHEREAS, Sellers desire to sell to Buyer substantially all of
the assets used in the Business and to assign to Buyer certain executory
contracts and unexpired leases relating to the Business, and Buyer desires to
purchase from Sellers such assets and assume such contracts and unexpired leases
(as hereinafter defined) upon the terms and subject to the conditions of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants set forth herein, the parties agree as follows:
1. DEFINITIONS
For all purposes of this Agreement, except as otherwise
expressly provided herein,
(a) the terms defined in this Section 1 include the plural as
well as the singular,
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them under GAAP (as defined below),
(c) pronouns of either gender or neuter shall include, as
appropriate, the other pronoun forms,
<PAGE>
(d) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Section, Paragraph or other subdivision, and
(e) the words "include," "including" and other words of
similar import mean "include, without limitation" or "including, without
limitation," regardless of whether any reference to "without limitation" or
words of similar import is made.
(f) As used in this Agreement, the following definitions shall
apply:
"Accountant" shall have the meaning assigned to that term in
Section 3(d)(ii).
"Accounts Receivable" has the meaning assigned to that term in
Section 2(a)(i).
"Acquired Assets" has the meaning assigned to that term in
Section 2(a).
"Action" has the meaning assigned to that term in Section
14(e).
"Agreement" means this Asset Purchase Agreement, including all
exhibits and schedules hereto, as the same may be amended or supplemented from
time to time in accordance with its terms.
"Alternative Transaction" has the meaning assigned to that
term in Section 12(b).
"Assigned Contracts" means those Contracts which Buyer desires
to assume and to have Sellers assign to it which are designated as
"Assigned Contracts" on SCHEDULE 7(d) (or identified in a separate
schedule provided by Buyer to Sellers at least 1 Business Day prior to
the Due Diligence Termination Date as Contracts to be included as
Assigned Contracts). Assigned Contracts shall not include Contracts
identified in a separate schedule provided by Buyer to Sellers at least
7 days before the Auction Date as Contracts to be excluded from the
Assigned Contracts list in SCHEDULE 7(d) notwithstanding their initial
inclusion.
"Assumed Obligations" has the meaning assigned to that term in
Section 4(b).
"Auction" shall mean an auction under Section 363 of the
Bankruptcy Code scheduled by the Bankruptcy Court pursuant to the Procedures
Order.
"Auction Date" shall mean the date of the Auction scheduled
pursuant to the Procedures Order.
"Audited Financials" has the meaning assigned to that term in
Section 7(e).
"Bankruptcy Code" means title 11 of the United States Code, 11
U.S.C. section 101 et seq., commonly known as the Bankruptcy Code, as it may be
amended from time to time.
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