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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
-------------
Date of Report (Date of Earliest Event Reported): April 3, 1996
LUMEX, INC.
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(Exact Name of Registrant as Specified in its Charter)
New York
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(State or Other Jurisdiction of Incorporation)
0-4538 11-1731581
- ------------------------------ ------------------------------
(Commission File Number) (I.R.S. Employer
Identification No.)
2100 Smithtown Avenue, Ronkonkoma, New York 11779
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(Address of Principal Executive Offices) (Zip Code)
(516) 585-9000
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(Registrant's Telephone Number, Including Area Code)
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(Former Name or Former Address, if Changed Since Last Report)
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Item 2. Acquisition or Disposition of Assets.
On March 13, 1996, Lumex, Inc. (the "Company") entered into
Asset Sale Agreement (the "Agreement") with MUL Acquisition Corp. I
("MUL I"), MUL Acquisition Corp. II ("MUL II") and Fuqua Enterprises,
Inc., the parent corporation of MUL I and MUL II and guarantor of
their obligations under the Agreement ("Fuqua"). Under the terms of
the Agreement, on April 3, 1996 (the "Closing Date"), Lumex Medical
Products, Inc. (formerly MUL I) and MUL II (collectively, the
"Purchasers") purchased substantially all of the assets (and assumed
certain of the liabilities) of the Company's Lumex Division for
$40,750,000 in cash. The Company's Lumex Division designs,
manufactures, and markets a wide range of specialty patient seating,
bath safety products, mobility products and therapeutic support
systems for use by patients at home and in health care facilities such
as hospitals and nursing homes. The purchase price is subject to a
post-closing adjustment based on certain changes in the amount of
assets acquired and liabilities assumed by the Purchasers at the
Closing Date. The purchase price was determined by arms-length
negotiations between the Company and Fuqua. The representations,
warranties and covenants of all parties to the Agreement generally
survive for one year after the Closing Date. Under the terms of the
Agreement, the Company and the Purchasers have agreed to indemnify
each other for certain losses, if any. Additionally, the Company
agreed not to compete with Lumex Medical Products, Inc. (formerly MUL
I) in the Lumex Division's business for a period of three years within
the United States and Canada. Prior to execution of the Agreement,
there was no material relationship between the Purchasers or Fuqua,
and the Company or any of its affiliates, directors or officers, or
any associate of any such director or officer.
Item 7. Financial Statements and Exhibits.
(b) Pro forma financial information:
The pro forma financial information that would be required
pursuant to Article 11 of Regulation S-X has been reflected in the
financial statements of the Company that are included in the Company's
Annual Report on Form 10-K for the fiscal year ended December 31,
1995.
(c) Exhibits:
2.1 Asset Sale Agreement, dated as of March 13,
1996, by and between the Company, MUL
Acquisition Corp. I, MUL Acquisition Corp. II
and Fuqua Enterprises, Inc.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
LUMEX, INC.
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(Registrant)
Date: April 16, 1996 By: /s/ Robert McNally
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Name: Robert McNally
Title: CFO & Senior
Vice President
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EXHIBIT INDEX
Exhibit
Number Description
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2.1 Asset Sale Agreement, dated as of March 13, 1996, by
and between the Company, MUL Acquisition Corp. I, MUL
Acquisition Corp. II and Fuqua Enterprises, Inc.
NYFS10...:\80\60380\0001\2286\8-K4076U.15A
ASSET SALE AGREEMENT
BY AND BETWEEN
LUMEX, INC.,
MUL ACQUISITION CORP. I,
MUL ACQUISITION CORP. II
AND
FUQUA ENTERPRISES, INC.
Dated as of March 13, 1996
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Table of Contents
Page
ARTICLE I.
ASSETS TO BE ACQUIRED . . . . . . . . . 2
1.1. Acquisition and Transfer of Assets . . . . . . . . . 2
1.2. Excluded Assets . . . . . . . . . . . . . . . . . . 4
1.3. Assumed Liabilities . . . . . . . . . . . . . . . . 5
1.4. Excluded Liabilities . . . . . . . . . . . . . . . . 6
ARTICLE II.
PURCHASE PRICE . . . . . . . . . . . 8
2.1. Purchase Price and Payment . . . . . . . . . . . . . 8
2.2. Post-Closing Purchase Price Adjustment . . . . . . . 8
2.3. Allocation of Purchase Price . . . . . . . . . . . . 10
ARTICLE III.
THE CLOSING . . . . . . . . . . . . 11
3.1. Closing Date . . . . . . . . . . . . . . . . . . . . 11
3.2. Proceedings at Closing . . . . . . . . . . . . . . . 11
3.3. Deliveries by the Seller to the Purchasers . . . . . 11
3.4. Deliveries by the Purchasers to the Seller . . . . . 12
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE SELLER . . . . 13
4.1. Organization and Good Standing . . . . . . . . . . . 13
4.2. Authorization of Agreement . . . . . . . . . . . . . 13
4.3. Title to Assets other than Real Property . . . . . . 14
4.4. Title to Real Property . . . . . . . . . . . . . . . 15
4.5. Consents . . . . . . . . . . . . . . . . . . . . . . 16
4.6. Financial Statements . . . . . . . . . . . . . . . . 16
4.7. Absence of Certain Developments . . . . . . . . . . 16
4.8. Contracts . . . . . . . . . . . . . . . . . . . . . 18
4.9. Intangible Assets . . . . . . . . . . . . . . . . . 19
4.10. Taxes . . . . . . . . . . . . . . . . . . . . . . . 21
4.11. Employees and Employee Benefits . . . . . . . . . . 21
4.12. Litigation . . . . . . . . . . . . . . . . . . . . . 24
4.13. Compliance with Law . . . . . . . . . . . . . . . . 24
4.14. Assets Necessary to Conduct Business . . . . . . . . 24
4.15. Environmental Matters . . . . . . . . . . . . . . . 25
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Page
4.16. Brokers. . . . . . . . . . . . . . . . . . . . . . . 27
4.17. Products Liability of the Business . . . . . . . . . 27
4.18. Safe Medical Devices Act . . . . . . . . . . . . . . 27
4.19. Absence of Questionable Payments . . . . . . . . . . 28
4.20. Disclosure . . . . . . . . . . . . . . . . . . . . . 28
4.21. Compliance with the Immigration Reform and Control
Act . . . . . . . . . . . . . . . . . . . . . . . . 28
4.22. Corporate Expenses . . . . . . . . . . . . . . . . . 29
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF THE
PURCHASERS AND PARENT . . . . . . . . . 29
5.1. Organization and Good Standing . . . . . . . . . . . 29
5.2. Authorization of Agreement . . . . . . . . . . . . . 29
5.3. Consents . . . . . . . . . . . . . . . . . . . . . . 30
5.4. Availability of Funds . . . . . . . . . . . . . . . 30
5.5. Litigation . . . . . . . . . . . . . . . . . . . . . 31
5.6. Brokers . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE VI.
COVENANTS OF THE SELLER . . . . . . . . . 31
6.1. Cooperation . . . . . . . . . . . . . . . . . . . . 31
6.2. Access to Documents; Opportunity to Ask Questions . 31
6.3. Conduct of Business . . . . . . . . . . . . . . . . 32
6.4. Consents and Conditions; Assignment of Assets . . . 34
6.5. HSR Act Filings . . . . . . . . . . . . . . . . . . 34
6.6. Additional Reports . . . . . . . . . . . . . . . . . 34
6.7. Air Bed Contract . . . . . . . . . . . . . . . . . . 34
6.8. Other Transactions . . . . . . . . . . . . . . . . . 34
ARTICLE VII.
COVENANTS OF THE PURCHASERS . . . . . . . . 35
7.1. Cooperation . . . . . . . . . . . . . . . . . . . . 35
7.2. Confidentiality . . . . . . . . . . . . . . . . . . 35
7.3. Consents and Conditions . . . . . . . . . . . . . . 35
7.4. HSR Act Filings; Compliance with Antitrust and
Competition Laws . . . . . . . . . . . . . . . . . . 35
7.5. Permits, Bonds and Guarantees . . . . . . . . . . . 36
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Page
ARTICLE VIII.
COVENANTS RELATING TO EMPLOYMENT
AND EMPLOYEE MATTERS . . . . . . . . . 36
8.1. Offer of Employment . . . . . . . . . . . . . . . . 36
8.2. Collective Bargaining and Other Agreements . . . . . 37
8.3. Employee Benefit Plans . . . . . . . . . . . . . . . 37
8.4. Termination Obligations . . . . . . . . . . . . . . 37
8.5. Indemnification . . . . . . . . . . . . . . . . . . 37
8.6. COBRA Coverage . . . . . . . . . . . . . . . . . . . 38
ARTICLE IX.
CONDITIONS PRECEDENT TO THE
PURCHASERS' OBLIGATIONS . . . . . . . . . 38
9.1. Representations, Warranties and Covenants . . . . . 39
9.2. HSR Act . . . . . . . . . . . . . . . . . . . . . . 39
9.3. No Prohibition . . . . . . . . . . . . . . . . . . . 39
9.4. Opinion of the Seller's Counsel . . . . . . . . . . 39
9.5. Delivery of Documents . . . . . . . . . . . . . . . 39
9.6. Consents; Permits . . . . . . . . . . . . . . . . . 40
ARTICLE X.
CONDITIONS PRECEDENT TO THE SELLER'S OBLIGATIONS . . . 40
10.1. Representations, Warranties and Covenants . . . . . 40
10.2. HSR Act . . . . . . . . . . . . . . . . . . . . . . 41
10.3. No Prohibition . . . . . . . . . . . . . . . . . . . 41
10.4. Opinion of the Purchasers' Counsel . . . . . . . . . 41
10.5. Delivery of Documents . . . . . . . . . . . . . . . 41
10.6. Consents; Permits . . . . . . . . . . . . . . . . . 41
ARTICLE XI.
ADDITIONAL POST-CLOSING COVENANTS . . . . . . 41
11.1. Further Assurances . . . . . . . . . . . . . . . . . 41
11.2. Public Announcements . . . . . . . . . . . . . . . . 43
11.3. Joint Post-Closing Covenant of the Seller and the
Purchasers . . . . . . . . . . . . . . . . . . . . . 43
11.4. Books and Records; Personnel . . . . . . . . . . . . 43
11.5. Solicitation of Employees . . . . . . . . . . . . . 44
11.6. Corporate Name . . . . . . . . . . . . . . . . . . . 44
11.7. Maintenance of Insurance . . . . . . . . . . . . . . 45
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Page
ARTICLE XII.
GOVERNMENT CONTRACTS . . . . . . . . . . 45
12.1. Government Contracts . . . . . . . . . . . . . . . . 45
12.2. Performance Under Nonassigned Contracts . . . . . . 45
12.3. Assignment After Closing . . . . . . . . . . . . . . 46
ARTICLE XIII.
INDEMNIFICATION AND RELATED MATTERS . . . . . . 46
13.1. Indemnification by the Seller . . . . . . . . . . . 46
13.2. Indemnification by the Purchasers . . . . . . . . . 47
13.3. Determination of Damages and Related Matters . . . . 48
13.4. Limitation on Indemnification Liabilities . . . . . 48
13.5. Survival of Representations, Warranties
and Covenants . . . . . . . . . . . . . . . . . . . 49
13.6. Notice of Indemnification . . . . . . . . . . . . . 49
13.7. Defense of Third Party Claims . . . . . . . . . . . 49
13.8. Exclusive Remedy . . . . . . . . . . . . . . . . . . 50
ARTICLE XIV.
TERMINATION . . . . . . . . . . . . 51
14.1. Termination . . . . . . . . . . . . . . . . . . . . 51
14.2. Liabilities After Termination . . . . . . . . . . . 51
ARTICLE XV.
MISCELLANEOUS . . . . . . . . . . . 52
15.1. Definitions . . . . . . . . . . . . . . . . . . . . 52
15.2. Knowledge . . . . . . . . . . . . . . . . . . . . . 59
15.3. Prorations . . . . . . . . . . . . . . . . . . . . . 59
15.4. Waiver of Compliance with Bulk Transfer Laws . . . . 60
15.5. Entire Agreement . . . . . . . . . . . . . . . . . . 60
15.6. Governing Law . . . . . . . . . . . . . . . . . . . 60
15.7. Transfer Taxes . . . . . . . . . . . . . . . . . . . 60
15.8. Expenses . . . . . . . . . . . . . . . . . . . . . . 61
15.9. Table of Contents and Headings . . . . . . . . . . . 61
15.10. Notices . . . . . . . . . . . . . . . . . . . . . . 61
15.11. Severability . . . . . . . . . . . . . . . . . . . . 62
15.12. Binding Effect; No Assignment . . . . . . . . . . . 62
15.13. Amendments . . . . . . . . . . . . . . . . . . . . . 63
15.14. Guarantee . . . . . . . . . . . . . . . . . . . . . 63
15.15. Counterparts . . . . . . . . . . . . . . . . . . . . 63
<PAGE>
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Exhibits and Schedules
Schedule 1.1(d) --Real Property
Schedule 1.1(e) --Intellectual Property
Schedule 1.1(f) --Permits
Schedule 1.1(g) --Contracts
Schedule 1.2(d) --Excluded Contracts
Schedule 1.2(k) --Other Excluded Assets
Schedule 1.3(b) --Warranty Obligations
Schedule 2.3(a) --Exceptions to GAAP
Schedule 4.4(c) --Title to Real Property
Schedule 4.5 --Consents
Schedule 4.6 --Financial Statements
Schedule 4.7 --Absence of Certain Business Developments
Schedule 4.8(a) --Breaches or Termination of Material
Contracts
Schedule 4.8(b) --Distributors
Schedule 4.9 --Intangible Property
Schedule 4.11(a) --Employee Plans
Schedule 4.11(f) --Retiree Welfare Benefits
Schedule 4.11(h) --Employee Matters
Schedule 4.11(i) --Collective Bargaining Matters
Schedule 4.11(j) --Notice of Termination
Schedule 4.12 --Litigation
Schedule 4.13 --Compliance with Law
Schedule 4.14 --Assets Necessary to Conduct
Business
Schedule 4.15 --Environmental Matters
Schedule 4.15(h) --Underground Tanks
Schedule 4.17 --Products Liability
Schedule 4.18 --Safe Medical Devices Act
Schedule 4.22 --Corporate Expenses
Schedule 8.2 --Collective Bargaining and Other
Agreements
Schedule 9.6 --Consents; Permits
Schedule 10.6 --Consents; Permits
Schedule 15.1(a) --Location
Schedule 15.1(b) --Permitted Exceptions
Schedule 15.2 --Knowledge
Exhibit A --Allocation of Purchase Price
Exhibit B --Covenant Not to Compete
[The Registrant will furnish supplementally to the Securities and Exchange
Commission a copy of the schedules and exhibits listed above upon request.]
NYFS10...:\80\60380\0022\1196\AGR2116B.07I
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EXHIBIT 2.1
ASSET SALE AGREEMENT
--------------------
ASSET SALE AGREEMENT (the "Agreement"), dated as of
March 13, 1996, by and between Lumex, Inc., a New York corporation
(the "Seller"), MUL Acquisition Corp. I, a Delaware corporation
("Purchaser I") and MUL Acquisition Corp. II, a Delaware corporation
("Purchaser II") (Purchaser I and Purchaser II are collectively
referred to herein as the "Purchasers") and Fuqua Enterprises, Inc., a
Delaware corporation ("Parent").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Seller, through its Lumex division (the
"Division") and an affiliated leasing company, is and has been engaged
in the business of designing, manufacturing, marketing, selling,
leasing and distributing a wide variety of health care products (the
"Business"); and
WHEREAS, Purchaser I is a wholly owned subsidiary of Parent
and Purchaser II is a wholly owned subsidiary of Purchaser I; and
WHEREAS, the Purchasers desire to purchase, and the Seller
desires to sell, all of the assets and properties of the Division
employed principally in the Business and, as part of such purchase and
sale, the Seller desires to assign, and Purchaser I desires to assume,
certain of the obligations and liabilities of the Business, subject,
in each case, to the exceptions, terms and conditions set forth
herein; and
WHEREAS, capitalized terms used herein are defined in
Section 15.1 hereof;
NOW, THEREFORE, in consideration of the premises and the
mutual representations, warranties, covenants and agreements
hereinafter set forth, and upon the terms and subject to the
conditions hereinafter set forth, the Purchasers and the Seller hereby
agree as follows:
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ARTICLE I.
ASSETS TO BE ACQUIRED
1.1. Acquisition and Transfer of Assets. For the
----------------------------------
consideration hereinafter provided and upon the terms and subject to
the conditions hereinafter set forth, at the Closing the Seller shall
sell, assign, transfer, convey and deliver to the Purchasers, and the
Purchasers shall purchase, acquire and accept from the Seller, all of
the Seller's right, title and interest in and to the Business,
including, without limitation, in and to all of the assets,
properties, rights, contracts and claims, employed principally in the
Business (except as otherwise specifically set forth in Section 1.2
hereof), wherever located, whether tangible or intangible, as the same
shall exist as of the Closing (such rights, title and interest in and
to all such assets, properties, rights, contracts and claims, being
collectively referred to herein as the "Assets"), except that
Purchaser II shall only acquire the Intangible Assets (as hereinafter
defined) and Purchaser I shall acquire all of the other Assets. The
Assets shall include, without limitation, all of the Seller's rights,
title and interest in and to the assets, properties, rights, contracts
and claims described in the following paragraphs (a) through (j) but
in each case, only to the extent principally used in, held for
principal use in or principally related to the Business:
(a) Tangible Personal Property. All furnishings,
--------------------------
furniture, fixtures, office supplies, displays, vehicles, spare
parts, tools, dies, machinery and equipment and other tangible
personal property owned by the Seller or located on or in any of
the Real Property and any and all assignable warranties of third
parties with respect thereto;
(b) Inventories and Supplies. All items of inventory,
------------------------
including, without limitation, raw materials, work-in-process,
finished goods, supplies and samples owned or held by the Seller
or located on or in any of the Real Property and any and all
assignable warranties of third parties with respect thereto
("Inventory");
(c) Accounts Receivable. All accounts and lease
-------------------
receivables and all notes receivable (whether short-term or long-
term) from third parties and all deposits with third parties,
together with any unpaid interest accrued thereon from the re-
spective obligors and any security or collateral therefor,
including recoverable deposits (collectively, the "Accounts
Receivable");
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(d) Real Property. All of the Seller's right, title
-------------
and interest in the Owned Real Property and the Leased Real
Property, each set forth on Schedule 1.1(d) hereto (collectively,
the "Real Property"), including all buildings located thereon,
any of the fixtures attached thereto and any Permits relating
thereto and any assignable warranties of third parties with
respect thereto;
(e) Intellectual Property and Other Intangible
------------------------------------------
Property Rights. (i) All patents, copyrights, tradenames,
---------------
trademarks, service marks and names (registered and
unregistered), and registrations thereof and applications there-
for including, without limitation, those listed on Schedule
1.1(e) hereto, (ii) trade secrets, know-how, and manufacturing,
engineering and other technical information, and (iii) all
computer programs, software and databases, in each case, owned by
the Seller or licensed (to the extent assignable) to the Seller
by third parties; provided, that the Seller retains the right to
use "Lumex" in its corporate name until the time such name is
changed in accordance with Section 11.6 hereof (collectively, the
"Intangible Assets");
(f) Permits. All Permits listed on Schedule 1.1(f)
-------
hereto held by the Seller (to the extent permitted by applicable
Law to be transferred);
(g) Contracts. All rights and interests of the Seller
---------
in, to and under the Contracts listed on Schedule 1.1(g) hereto;
(h) Books and Records. Except as set forth in Section
-----------------
1.2(f) hereof, all books, records, mailing, vendor or customer
lists and all files, documents, ledgers, correspondence and other
data relating to the Seller's operation of the Business;
(i) Therapeutic Support Systems Leases. All leases
----------------------------------
and revenue sharing agreements and interest currently due and to
become due thereon with respect to the Therapeutic Support
Systems product lines; and
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(j) Goodwill. All goodwill relating to the foregoing
--------
Assets and the Business.
1.2. Excluded Assets. Notwithstanding anything to the
---------------
contrary contained in Section 1.1 hereof, the Seller and the
Purchasers expressly understand and agree that the Seller is not
hereunder selling, assigning, transferring, conveying or
delivering to the Purchasers the following assets, properties, rights,
contracts and claims (collectively, the "Excluded Assets"):
(a) cash, bank accounts, certificates of deposits,
treasury bills, treasury notes and marketable securities;
(b) any policy of insurance;
(c) except as set forth in Section 1.1(e) hereto, and
to the extent not related to the Assets or used in the Business,
any of the Seller's right, title or interest in or to any name,
mark, trade name or trademark, either alone or in combination,
and any and all goodwill represented thereby and pertaining
thereto;
(d) all Contracts set forth on Schedule 1.2(d) hereto
and all Contracts that relate solely to the Excluded Assets or
the Excluded Liabilities;
(e) all prepaid charges, sums and fees pertaining to
any of the Excluded Assets or the Excluded Liabilities;
(f) any books, records or other data relating to the
Seller's ownership or operation of the Business (i) not regularly
located on the premises of the Business in the ordinary course of
the operation thereof, or (ii) required by applicable Law to be
retained by the Seller;
(g) any of the Seller's right, title and interest
under any Contracts, agreements, licenses, Permits, exemptions,
franchises, variances, waivers, consents, approvals or other
authorizations or arrangements that are not transferrable without
consent (unless such consent has been obtained);
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(h) any claims for refunds or rebates of any
previously paid taxes, levies or duties, including, without
limitation, customs duties;
(i) all deferred income tax assets;
(j) any assets, properties, rights, contracts or
claims relating to, arising out of or in connection with the
Seller's involvement with the operation of the Seller's Cybex
division; and
(k) the other assets listed on Schedule 1.2(k) hereto.
1.3. Assumed Liabilities. Subject to Section 1.4 hereof, as
-------------------
of the Closing, Purchaser I shall assume responsibility for the
performance and satisfaction of the following, and only the following,
liabilities of the Seller relating to the Business (collectively, the
"Assumed Liabilities" and individually, an "Assumed Liability"):
(a) trade accounts payable (excluding those accounts
that have been paid by the Seller pursuant to issued checks that
remain outstanding) as of the Closing Date;
(b) warranty obligations and normal customer returns,
adjustments or repairs relating to products or services sold,
performed or provided by the Seller in the Business, including,
without limitation, the warranty matters that are described in
Schedule 1.3(b) hereto;
(c) all product liability obligations to the extent
not Covered by the Seller's Insurance Policies with respect to
products or services sold, performed or provided prior to
Closing;
(d) all accrued but unpaid wages, commissions, and
vacation, holiday and sick pay obligations (and any payroll taxes
thereon) with respect to Employees;
(e) accrued liabilities that are in any of the
categories to be included on the Closing Balance Sheet under the
heading "Accounts Payable & Accrued Liabilities" (other than the
liabilities described in clauses (b) through (d) of this Section
1.3);
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(f) all lease obligations for Real Property arising on
or after the Closing Date (except as accrued on the Initial
Balance Sheet) (as both landlord and tenant) and the obligations
associated with any warranties or permits with respect to the
Assets that are not Excluded Assets;
(g) all of the Purchasers' liabilities with respect to
Employees and Transferred Employees as described under Article
VIII hereof;
(h) any and all current or future Environmental Costs
and Liabilities arising out of, related to or in any
way attributable to the current, historic or future presence of
Hazardous Substance contamination at, on, under or in the
facility at the Location, whether known or unknown as of the
Closing Date, including without limitation any cleanup, response,
removal or remedial action obligations; and
(i) all debts, claims, liabilities, obligations,
damages and expenses (collectively, the "Liabilities") of every
kind and nature, whether known, unknown, contingent, absolute,
determined, indeterminable or otherwise on the Closing Date, to
the extent relating to or arising from the operation of the
Business in the ordinary course.
1.4. Excluded Liabilities. The Purchasers shall not assume
--------------------
or become liable for any debts, obligations, commitments, or
liabilities of the Seller, whether known or unknown, absolute,
contingent, or otherwise, whether accrued or unaccrued and whether or
not related to the Assets, except for the Assumed Liabilities (the
obligations and liabilities of the Seller not assumed by the
Purchasers are hereinafter referred to as the "Excluded Liabilities")
including without limitation, the following:
(a) Any losses, costs, expenses, damages, claims,
demands and judgments of every kind and nature (including the
defense thereof and reasonable attorneys' and other professional
fees) related to, arising out of, or in connection with the
Seller's involvement with the operation of the Seller's Cybex
division;
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(b) Any losses, costs, expenses, damages claims,
demands and judgments of every kind and nature (including the
defense thereof and reasonable attorneys' and other professional
fees) related to, arising out of, or in connection with the
Seller's failure to comply with the Bulk Transfer Act or any
similar statute as enacted in any jurisdiction, domestic or
foreign in which any of the Assets are located;
(c) Any liabilities or obligations of the Seller
relating to the Excluded Assets;
(d) Any and all Taxes payable, whether currently
payable or a deferred payable obligation, by the Seller with
respect to the ownership of the Assets or the operation of the
Business on or prior to the Closing Date;
(e) Any and all current and future Environmental Costs
and Liabilities arising out of, related to or in any way
attributable to the ownership or operation of facilities,
premises or properties formerly, but no longer as of the Closing
Date, owned or operated by the Seller or any affiliated company;
(f) Any of the Seller's obligations, liabilities,
costs or expenses described in Section 15.8 hereof and the
matters referred to in paragraphs I and III of Schedule 4.12;
(g) All events occurring prior to the Closing Date
that are Covered by the Seller's Insurance Policies (including,
without limitation, workers compensation obligations with respect
to occurrences prior to the Closing Date and product liability
obligations with respect to products or services sold, performed
or provided prior to the Closing Date);
(h) Any indebtedness of the Seller for borrowed money
under a bank credit agreement or industrial revenue bonds;
(i) Any liabilities or obligations of the Seller with
respect to (i) each of the agreements listed in Section
4.7(a)(viii) of Schedule 4.7, and (ii) the change of control
agreements between the Seller and each of John R. Cowin, dated as
of January 20, 1992, and Gene Ryan, dated as of June 1, 1992;
<PAGE>
<PAGE>
(j) Any and all liabilities and costs related to or
resulting from the compliance review of the Seller to be
conducted by the Office of Federal Contract Compliance Programs,
notification of which was received by the Seller in a letter
dated May 1, 1995;
(k) Any and all Liabilities with respect to the
Seller's obligations under Article VIII hereof; and
(l) Any and all liabilities, costs and expenses
associated with the removal, remediation, clean up or other
corrective action related to the asbestos in the tar on the roof
of the facility at the Location.
ARTICLE II.
PURCHASE PRICE
2.1. Purchase Price and Payment. The aggregate purchase
--------------------------
price to be paid by the Purchasers to the Seller for the Assets and
the Assumed Liabilities shall be $40,750,000 (the "Purchase Price"),
subject to adjustment as provided in Section 2.2 hereof. The portion
of the Purchase Price allocable to the Intangible Assets pursuant to
Section 2.3 hereof shall be paid by Purchaser II. The balance of the
Purchase Price shall be paid by Purchaser I. Payment of the Purchase
Price shall be in U.S. dollars, and shall be made no later than 11:30
a.m. (New York City time) on the Closing Date by wire transfer of
immediately available funds to the account or accounts designated by
the Seller.
2.2. Post-Closing Purchase Price Adjustment.
--------------------------------------
(a) As soon as practicable (but in no event later than
60 days) following the Closing Date, the Seller shall prepare and
deliver to the Purchasers a statement of net assets to be sold
for the Business as of the Closing Date (the "Closing Balance
Sheet"), which shall include a computation of the Preliminary Net
Assets Adjustment (as defined below). The Closing Balance Sheet
shall be prepared by the Seller in accordance with GAAP except as
set forth in Schedule 2.3(a) and on a basis consistent with the
Initial Balance Sheet.
<PAGE>
<PAGE>
(b) The "Preliminary Net Assets Adjustment" shall
equal the amount of Net Assets reflected on the Initial Balance
Sheet minus the amount of Net Assets reflected on the Closing
Balance Sheet. As used herein, "Net Assets" shall mean the total
assets (excluding (i) any assets that are Excluded Assets and
(ii) with respect to the Closing Balance Sheet only, the Excess
Lancaster Inventory) of the Business less the notes and accounts
payable and accrued liabilities (excluding any accrued
liabilities that are Excluded Liabilities), as reflected on the
Initial Balance Sheet or the Closing Balance Sheet, as the case
may be.
(c) Following the Closing Date, the Purchasers shall
afford the Seller and its representatives access to all books and
records relating to the Business and make available the
assistance of any employees of the Purchasers related to the
Business, in each case as is necessary to enable the Seller to
prepare the Closing Balance Sheet and to calculate the
Preliminary Net Assets Adjustment.
(d) The Purchasers and its representatives shall have
a period of 20 days to review the Closing Balance Sheet
and the calculation of the Preliminary Net Assets Adjustment
following delivery of the Closing Balance Sheet by the Seller.
During such period, the Seller shall afford the Purchasers and
its representatives access to any of its books, records and work
papers necessary to enable the Purchasers and its representatives
to review the Closing Balance Sheet and the calculation of the
Preliminary Net Assets Adjustment. The Purchasers may dispute
any amounts reflected in the Preliminary Net Assets Adjustment by
giving notice in writing to the Seller specifying each of the
disputed items and setting forth in reasonable detail the basis
for such dispute; provided, however, that the Purchasers may only
-------- -------
dispute the calculation of the Preliminary Net Assets Adjustment
to the extent that the aggregate of all items in dispute would
reduce the Preliminary Net Assets Adjustment by more than $75,000
(in which case the dispute shall be for all amounts). Failure by
the Purchasers to dispute the amounts reflected in the
Preliminary Net Assets Adjustment within 20 days of delivery of
the Closing Balance Sheet by the Seller shall be deemed an
acquiescence therein by the Purchasers. If within 30 days after
delivery by the Purchasers to the Seller of any notice of
dispute, the Purchasers and the Seller are unable to resolve all
of such disputed items, then any remaining items in dispute shall
be submitted to Coopers & Lybrand, or if Coopers & Lybrand is not
available, then an independent nationally recognized accounting
firm other than Ernst & Young LLP (the "Arbitrator"). The
Arbitrator shall determine the remaining disputed items and
report to the Seller and the Purchasers upon such items. The
Arbitrator's decision shall be final, conclusive and binding on
all parties. The fees and disbursements of the Arbitrator shall
be borne equally by the Purchasers and the Seller. The
Preliminary Net Assets Adjustment if undisputed or deemed
undisputed or as determined in accordance with the procedure
outlined above shall be the "Final Net Assets Adjustment."
<PAGE>
<PAGE>
(e) If the amount of the Final Net Assets Adjustment
is positive then the Purchase Price shall be decreased by an
amount equal to the Final Net Assets Adjustment and the Seller
shall promptly pay to the appropriate Purchasers an amount equal
to the Final Net Assets Adjustment in cash.
(f) If the amount of the Final Net Assets Adjustment
is negative then the Purchase Price shall be increased by such
amount and the appropriate Purchasers
shall promptly pay to the Seller an amount equal to the Final Net
Assets Adjustment in cash.
2.3. Allocation of Purchase Price. The Purchasers and the
----------------------------
Seller hereby agree that the Purchase Price shall be allocated among
the Assets in accordance with Section 1060 of the Code in the manner
set forth on Exhibit A hereto. Subject to the requirements of any
applicable Tax law, all Tax Returns and reports filed by the
Purchasers and the Seller shall be prepared consistently with such
allocation. In the event of any purchase price adjustment hereunder,
the Purchasers and the Seller agree to adjust such allocation to
reflect such purchase price adjustment and to file consistently any
tax returns and reports required as a result of such purchase price
adjustment.
<PAGE>
<PAGE>
ARTICLE III.
THE CLOSING
3.1. Closing Date. The Closing shall take place at the
------------
offices of Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, New
York at 10:00 A.M., on the fifth business day after the conditions set
forth in Articles IX and X hereof have been satisfied or waived, or at
such other place and at such other time and date as may be mutually
agreed upon by the Purchasers and the Seller; provided that the
Closing shall not take place prior to April 1, 1996 without the
consent of the Purchasers. The date of the Closing is referred to in
this Agreement as the "Closing Date."
3.2. Proceedings at Closing. All proceedings to be taken
----------------------
and all documents to be executed and delivered by the Seller in
connection with the consummation of the transactions contemplated
hereby shall be reasonably satisfactory in form and substance to the
Purchasers and its counsel. All proceedings to be taken and all
documents to be executed and delivered by the Purchasers in connection
with the consummation of the transactions contemplated hereby shall be
reasonably satisfactory in form and substance to the Seller and its
counsel. All proceedings to be taken and all documents to be executed
and delivered by all parties at the Closing shall be deemed to have
been taken, executed and delivered simultaneously, and no proceedings
shall be deemed taken nor any documents executed or delivered until
all have been taken, executed and delivered.
3.3. Deliveries by the Seller to the Purchasers. At the
------------------------------------------
Closing, the Seller shall deliver, or shall cause to be delivered, to
the Purchasers the following:
(a) executed assignments, patent assignments,
trademark assignments, bills of sale and/or certificates of title
and any other documents, dated the Closing Date, transferring to
the Purchasers all of the Assets;
(b) an executed assignment and assumption agreement,
in form reasonably acceptable to the Seller and the Purchasers
(the "Assignment and Assumption Agreement");
<PAGE>
<PAGE>
(c) an executed Covenant Not to Compete, substantially
in the form of Exhibit B hereto (the "Covenant Not to Compete");
(d) the certificate referred to in Section 9.1(c)
hereof signed by a duly authorized officer of the Seller;
(e) the opinion of counsel for the Seller referred to
in Section 9.4 hereof;
(f) a certificate, in a form reasonably satisfactory
to the Purchasers, of the Seller stating under penalties of
perjury the Seller's United States taxpayer identification number
and that the Seller is not a foreign person within the meaning of
Section 1445(b)(2) of the Code;
(g) a receipt for the Purchase Price;
(h) copies of the consents and waivers described in
Section 9.6 hereof;
(i) copies of good standing certificates from the
appropriate governmental authorities in the Commonwealth of
Pennsylvania and the States of New York, Tennessee and
California;
(j) a bargain and sale deed (the "Deed") for each
Owned Real Property (or the statutory equivalent thereof in the
jurisdiction in which the Owned Real Property is located);
(k) an Assignment and Assumption of Leases (the "Lease
Assignment") for the Leased Real Property in form reasonably
satisfactory to the Seller and Purchasers; and
(l) an Assignment and Assumption of Warranties and
Permits (the "W&P Assignment") in form reasonably satisfactory to
the Seller and the Purchasers.
3.4. Deliveries by the Purchasers to the Seller. At the
------------------------------------------
Closing, the Purchasers shall deliver to the Seller the following:
<PAGE>
<PAGE>
(a) immediately available funds in the amount of the
Purchase Price by wire transfer as provided in Section 2.1
hereof;
(b) the certificate referred to in Section 10.1(c)
hereof signed by a duly authorized officer of the Purchasers;
(c) the opinion of counsel for the Purchasers referred
to in Section 10.4 hereof;
(d) the Assignment and Assumption Agreement duly
executed by an authorized officer of the Purchasers;
(e) executed Lease Assignments and W&P Assignments;
and
(f) any and all transfer affidavits or certificates
required by applicable law in order to effectuate the recording
of the Deeds and the assignment of the Leased Real Property.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchasers
and Parent as follows:
4.1. Organization and Good Standing. The Seller is a
------------------------------
corporation duly organized, validly existing and in good standing
under the laws of the State of New York and has all requisite
corporate power and authority to carry on its business as it is now
being conducted, and to execute, deliver and perform this Agreement
and to consummate the transactions contemplated hereby. The Seller is
duly qualified and is in good standing as a foreign corporation in
each of the jurisdictions where it owns or leases property in
connection with the Business, or employs employees
with respect to the Business except where the failure to be so
qualified would not have a Material Adverse Effect.
<PAGE>
<PAGE>
4.2. Authorization of Agreement. The Seller has full
--------------------------
corporate power and authority to execute and deliver this Agreement
and each other agreement, document, instrument or certificate
contemplated by this Agreement or to be executed by the Seller in
connection with the consummation of the transactions contemplated by
this Agreement (all such other agreements, documents, instruments and
certificates required to be executed by the Seller being hereinafter
referred to, collectively, as the "Seller Documents"), and to perform
fully its obligations hereunder and thereunder. The execution,
delivery and performance by the Seller of this Agreement and each of
the Seller Documents has been duly authorized by all necessary
corporate action on the part of the Seller. This Agreement has been,
and each of the Seller Documents will be at or prior to the Closing,
duly executed and delivered by the Seller, and (assuming the due
authorization, execution and delivery by the other parties hereto and
thereto) this Agreement constitutes, and the Seller Documents when so
executed and delivered will constitute, legal, valid and binding
obligations of the Seller, enforceable against the Seller in
accordance with their respective terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity). None of
the execution and delivery by the Seller of this Agreement and the
Seller Documents, or the consummation of the transactions contemplated
hereby or thereby, or compliance by the Seller with any of the provi-
sions hereof or thereof will (i) conflict with, or result in the
breach of, any provision of the certificate of incorporation or by-
laws of the Seller, (ii) conflict with, violate, result in the breach
or termination of, or constitute a default under any Contract or Order
relating to the Business to which the Seller is a party or by which it
or any of the Assets is bound or subject, (iii) constitute a violation
of any Law applicable to the Seller, or (iv) result in the creation of
any Lien (other than any Lien in favor of the Purchasers) upon any of
the Assets, except, in each case, for violations, conflicts, breaches
or defaults which in the aggregate would not materially hinder or
impair the transactions contemplated hereby or have a Material Adverse
Effect.
4.3. Title to Assets other than Real Property.
----------------------------------------
(a) The Seller has good and valid title to or, in the
case of leased properties, a valid leasehold interest in, all the
Assets other than the Real Property, including all of such Assets
reflected on the Initial Balance Sheet (except Inventory disposed
of in the ordinary course of business after December 31, 1995),
free and clear of all Liens other than Permitted Exceptions. The
Seller owns, has valid leasehold interests in or valid
contractual rights to use, all of the Assets, tangible and
intangible, used by, or necessary for the conduct of the
Business.
<PAGE>
<PAGE>
(b) The machinery, tools, equipment and other tangible
physical assets included in the Assets are in good working order,
normal wear and tear excepted, are being used or are useful in
the Business at its present level of activity and are in an
operating condition sufficient to conduct the Business as now
being conducted.
4.4. Title to Real Property.
----------------------
(a) The Seller owns title in fee simple to the Owned
Real Property free and clear of all Liens other than Permitted
Exceptions and, to the Seller's knowledge, such title to the
Owned Real Property is good and marketable, other than with
respect to the facility at the Location as it relates to the
Known Environmental Condition. The Owned Real Property and the
Leased Real Property identified on Schedule 1.1(d) constitute all
real property or real property interests principally used by the
Seller in the conduct of the Business.
(b) The Seller has received no notice of any default
from the landlord or lessor of any of the Leased Real Property.
The Seller has a valid leasehold interest in all of the Leased
Real Property subject to the terms and conditions of the
applicable leases relating thereto, free and clear of all Liens
other than Permitted Exceptions.
(c) Except as set forth on Schedule 4.4(c) hereto, to
the Seller's knowledge, with respect to any of the buildings,
structures, improvements and fixtures used in the Business, owned
or leased by the Seller, except for normal wear and tear, there
are no material defects with respect thereto which would impair
the day-to-day use of any such buildings, structures,
improvements or fixtures as currently used.
<PAGE>
<PAGE>
(d) The Seller has in full force and effect all
Permits necessary to use or occupy the Real Property.
4.5. Consents. No consent, waiver, approval, or
--------
authorization of, or declaration or filing with, or notification to,
any Person or Governmental Body is required on the part of the Seller
in connection with the execution and delivery by the Seller of this
Agreement or the Seller Documents, or the compliance by the Seller
with any of the provisions hereof or thereof, except (i) as set forth
on Schedule 4.5 hereto, (ii) for compliance with the applicable
requirements of the Hart-Scott-Rodino Antitrust Improvements Act of
1976 and the rules and regulations promulgated thereunder (the "HSR
Act"), (iii) consents, waivers, approvals, Orders or Permits, if any,
which the Purchasers are required to obtain and (iv) consents,
waivers, approvals, Orders or Permits whose failure to obtain would
not in the aggregate have a Material Adverse Effect.
4.6. Financial Statements. The Initial Balance Sheet and
--------------------
the statement of sales and direct operating expenses of the Business
for the fiscal year ended December 31, 1995, copies of which are
attached hereto as Schedule 4.6 (collectively, the "Financial
Statements"), have been prepared in accordance with GAAP except as set
forth in the notes thereto and present fairly the financial position
and results of operations of the Business at the date and for the
period indicated. Accounts Receivable created since December 31, 1995
have been accrued on the books of the Business in the ordinary course
of business consistent with past practice and in accordance with GAAP.
Since December 31, 1995, the Inventory has been accrued on the books
of the Business in the ordinary course of business consistent with
past practice and in accordance with GAAP.
4.7. Absence of Certain Developments. (a) Except as set
-------------------------------
forth on Schedule 4.7 hereto or as contemplated by this Agreement,
since January 1, 1995, the Seller has conducted the Business only in
the ordinary course and has not with respect to the Business:
(i) mortgaged, pledged or subjected to lien,
restriction or any other Lien any of the property, businesses or
assets, tangible or intangible, of the Business, except for
Permitted Exceptions;
<PAGE>
<PAGE>
(ii) with the exception of the business related to
Therapeutic Support Systems, sold, transferred, leased or loaned
to others or otherwise disposed of any of its assets (or
committed to do any of the foregoing), including the
payment of any loans owed to any affiliate, except for inventory
sold to customers in the ordinary course of business and
consistent with prior practice, or canceled, waived, released or
otherwise compromised any debt or claim, or any right of
significant value, except in the ordinary course of the Business
and consistent with prior practice;
(iii) suffered any damage or destruction (whether or not
covered by insurance) which has had or is reasonably likely to
have a Material Adverse Effect;
(iv) made or committed to make any capital expenditures
or capital additions or betterments with respect to the Assets or
the Business in excess of an aggregate of $1,000,000;
(v) encountered any labor union organizing activity
with respect to non-union workers, had any actual or, to the
Seller's knowledge, threatened employee strikes, or, to the
Seller's knowledge, any material work stoppages, slow-downs or
lock-outs related to any labor union organizing activity or any
actual or, to the Seller's knowledge, threatened employee
strikes;
(vi) instituted any litigation, action or proceeding
before any court, governmental body or arbitration tribunal
relating to it or its property, except for litigation, actions or
proceedings instituted in the ordinary course of the Business and
consistent with prior practice;
(vii) acquired, or agreed to acquire, by merging or
consolidating with, or by purchasing a substantial equity
interest in or a substantial portion of the assets of, or by any
other manner, any business or any corporation, partnership,
association or other business organization or division thereof;
or
(viii) increased, or agreed or promised to increase, the
compensation of any officer, employee or agent of the Seller in
the Business, directly or indirectly, including by means of any
bonus, pension plan, profit sharing, deferred compensation,
savings, insurance, retirement, or any other employee benefit
plan, except in the ordinary course of the Business and
consistent with prior practice.
<PAGE>
<PAGE>
(b) Except as set forth on Schedule 4.7 hereto or as contemplated
by this Agreement, since January 1, 1996, the Seller has conducted the
Business only in the ordinary course and has not with respect to the
Business:
(i) incurred any obligation or liability, absolute,
accrued, contingent or otherwise, whether due or to become due,
except liabilities or obligations incurred in the ordinary course
of business and consistent with prior practice;
(ii) acquired, or agreed to acquire, any assets which
are material, individually or in the aggregate to the Business;
or
(iii) increased promotional or advertising expenditures
except in the ordinary course of the Business and consistent with
prior practice or otherwise changed its policies or practices
with respect thereto in any material respects.
4.8. Contracts.
---------
(a) Except as set forth on Schedule 4.8(a) hereto,
each of the Contracts included in the Assets is in full force and
effect, and, to the knowledge of the Seller, there exists no
breach of, violation of or default under any of such Contracts by
the Seller or any other party to any of such Contracts or any
event which, with notice or lapse of time, or both, will create a
breach or violation thereof or default thereunder by the Seller
or any other party to any of such Contracts, except for any
breaches, violations or defaults which in the aggregate would not
have a Material Adverse Effect. Except as set forth in Schedule
4.8(a) hereto, there exists no actual or, to the knowledge of the
Seller, threatened termination, cancellation or limitation of, or
any amendment, modification or change to, any Contract that was
not made in the ordinary course of the Business and that has had
or is reasonably likely to have, individually or in the aggregate
with similar arrangements, a Material Adverse Effect.
<PAGE>
<PAGE>
(b) Schedule 4.8(b) hereto contains a true and correct
list of all persons that are currently directly authorized to
distribute, sell or resell products of the Business anywhere in
the world. As to each distributor so listed, Schedule 4.8(b)
indicates the territory in which such distributor is directly
authorized by the Seller to distribute such products within such
territory or any part thereof.
4.9. Intangible Assets.
-----------------
(a) Attached Schedule 4.9 hereto sets forth a complete
and correct list of all patent, copyright and trademark
registrations and applications for any of them included in the
Intangible Assets, together with a complete list of all written
agreements containing licenses granted by or to the Seller with
respect to any of the Intangible Assets. All such Intangible
Assets reflected on Schedule 4.9 as owned by the Seller are owned
by the Seller free and clear of all liens and security interests,
except as set forth on Schedule 4.9. All such Intangible Assets
reflected on Schedule 4.9 used (but not owned) by the Seller
under license, lease or otherwise are used by the Seller pursuant
to terms of binding agreements. Except as set forth on Schedule
4.9, the transactions contemplated by this Agreement will not
cause a breach or default under any license or similar agreement
relating to the Intangible Assets. The Seller, with respect to
the Business, is not currently in receipt of any notice of
violation of the rights of others in any trademark, trade name,
service mark, copyright, patent, trade secret, know-how or other
intangible asset. To the Seller's knowledge, the Seller has not
disclosed any trade secrets, know-how, inventions, or other
confidential technical information material to the operation of
the Business to any other party within the last two years except
in the ordinary course of business or in accordance with any
license, lease or similar agreement containing confidentiality
and non-disclosure provisions requiring such other parties to
keep the disclosed information confidential. To the knowledge of
the Seller, no party to whom the Seller has disclosed such
information has breached such obligation of confidentiality.
<PAGE>
<PAGE>
(b) Schedule 4.9 hereto contains a complete and
accurate list of the material computer software and databases
that are owned by the Seller and used in the Business (the "Owned
Software"). Except as set forth on Schedule 4.9, the Seller has
exclusive rights and title to the Owned Software (including any
intellectual property rights therein), free and clear of all
Liens.
(c) Schedule 4.9 hereto contains a complete and
accurate list of all material computer software, databases and
other intellectual property that is used by the Seller under
license in the operation of the Business (other than commercially
available over-the-counter "shrinkwrap" software) (the "Licensed
Software"). Schedule 4.9 also sets
forth a list of all license agreements pursuant to which the
Seller has obtained the right to use the Licensed Software.
Except as described on Schedule 4.9, the Seller has the right and
license to use, sublicense, modify and copy the Licensed Software
in accordance with the terms of its licenses. The Seller is in
full compliance with all material provisions of any license,
lease or other similar agreement pursuant to which the Seller has
rights to use any material Licensed Software.
(d) The Owned Software and the Licensed Software
constitute all material software used principally in relation to
the Business (the "Company Software"). Schedule 4.9 hereto sets
forth a list of all contract programmers, independent
contractors, nonemployee agents and persons or other entities
(other than employees of the Seller) who have performed material
computer programming services for the Seller in connection with
any of the Company Software. To the knowledge of the Seller, no
other person or entity is infringing any intellectual property
rights of the Seller with respect to the Company Software.
(e) The Seller has ownership of, or adequate licenses
or other valid rights to use, all of the Intangible Assets not
described in subsections (a) through (e) of this Section 4.9.
The Seller's use of such Intangible Assets does not conflict
with, infringe upon, violate or interfere with any intellectual
property rights of any other Person except for any conflicts,
infringements, violations or interferences which in the aggregate
would not have a Material Adverse Effect.
<PAGE>
<PAGE>
4.10. Taxes.
-----
(a) None of the Assets is tax-exempt use property
within the meaning of Section 168(h) of the Code. None of the
Assets is property that is or will be required to be treated as
being owned by another person pursuant to the provisions of
Section 168(f)(8) of the Internal Revenue Code of 1954, as
amended and in effect immediately prior to the enactment of the
Tax Reform Act of 1986.
(b) The Seller is not a foreign person within the
meaning of Section 1445(b)(2) of the Code.
(c) The Seller has not failed to file a Tax Return
with respect to Taxes or to pay any Taxes shown on a Tax Return
filed, the effect of which would result in the Purchasers, as
the purchasers of the Assets, to become liable for such Taxes.
4.11. Employees and Employee Benefits.
-------------------------------
(a) Identification of plans. Schedule 4.11(a) hereto
-----------------------
contains a true and complete list of all the following
arrangements, agreements or plans which are presently in effect
and which cover any Employees, directors, independent contractors
or retired or terminated employees of the Seller employed or
engaged by the Seller in the Business (collectively, the "Plan
Employees"), or any spouses, dependents, beneficiaries of any
Plan Employees ("Beneficiaries"):
(i) Any employee benefit plan as defined in
Section 3(3) of the Employee Retirement Income Security Act of
1974 ("ERISA") maintained by the Seller or under which the Seller
has any obligation;
(ii) Any other pension, profit sharing,
retirement, deferred compensation, stock purchase, stock option,
compensation, incentive, bonus, vacation, severance, disability,
hospitalization, medical, life insurance, or other employee
benefit plan, program or policy maintained by the Seller or under
which the Seller has any obligation; and
(iii) Any employment or severance contract
providing for insurance coverage, severance, termination or similar
coverage and all written compensation policies and practices
maintained by the Seller.
<PAGE>
<PAGE>
The plans, programs, policies, or arrangements
described in subparagraph (i), (ii) or (iii) are hereinafter
collectively referred to as the "Employee Benefit Plans."
(b) For each Employee Benefit Plan, the Seller has
furnished true and complete copies of the following to the
Purchasers: (i) the plan document or other operative agreement;
(ii) all determination letters (or application for determination
if such a letter has not been received), rulings, opinion
letters, information letters, or advisory opinions issued by the
Internal Revenue Service, the Department of Labor or the Pension
Benefit Guaranty Corporation after December 31, 1989; (iii) Form
5500 annual reports (including schedules thereto) prepared for
any Employee Benefit Plan with respect to the two most recent
plan years; and (iv) the most recent summary plan descriptions
(and any material modifications thereto) that have been prepared
for any Employee Benefit Plans.
(c) The Employee Benefit Plans and their related
trusts intended to qualify under Sections 401(a) and 501(a) of
the Code, respectively, are so qualified and administered in
compliance therewith.
(d) No oral or written representation or communication
with respect to any aspect of the Employee Benefit Plans has been
made to Employees prior to the date hereof which is not in
accordance with the written or otherwise preexisting terms and
provisions of such plans.
(e) All contributions, premiums and payments required
to be made under the terms of any Employee Benefit Plan (other
than those relating to liabilities assumed by the Purchasers
pursuant to Article VIII) have been made.
(f) Except as disclosed in Schedule 4.11(f) hereto,
the Seller has neither maintained in the past nor currently
maintains an Employee Benefit Plan providing welfare benefits (as
defined in Section 3(1) of ERISA) to Employees after retirement
or other separation from service except to the extent required
under Part 6 of Title I of ERISA or Code Section 4980B. No tax
under Code Sections 4980B or 5000 has been incurred with respect
to any Employee Benefit Plan and no circumstance exists which
could give rise to such taxes.
<PAGE>
<PAGE>
(g) All Plan Employees are common law employees.
(h) Employee matters. Schedule 4.11(h) hereto
----------------
contains a correct and complete list of (i) all Plan Employees
whose direct annual compensation exceeds $50,000 and (ii) a list
of all other Plan Employees in each job classification employed
by the Seller in the Business. Except as disclosed in Schedule
4.11(h), the employment of all Plan Employees is terminable at
will by the Seller without any penalty or severance obligation of
any kind on the part of the Seller.
(i) Collective bargaining matters. Except as and to
-----------------------------
the extent set forth in Schedule 4.11(i) hereto within the last
three years: (i) to the knowledge of the Seller, no attempt to
organize any group or all of the Plan Employees has been made,
proposed or threatened; (ii) the Seller is not a party to any
union agreement or collective bargaining agreement with any
labor organization or employee association applicable to any
of the Plan Employees; (iii) the Seller has not been notified
of any pending or threatened investigations by the U.S. Department
of Labor, Wage and Hour Division, with respect to the Plan
Employees; (iv) the Seller has not been notified of any
pending or threatened labor strike, dispute, slowdown, stoppage
or lockout; (v) to the Seller's knowledge, no union claims to
represent any of the Plan Employees have been made; and (vi)
there is no material grievance against the Seller with respect to
the Business arising out of any collective bargaining agreement
or other grievance procedure.
(j) Notice concerning termination of employment.
-------------------------------------------
Except as set forth in Schedule 4.11(j) hereto, the Seller has
not received any notice prior to the date of this Agreement
hereof that any of the officers or other senior level personnel
of the Seller in respect of the Business, will terminate or
contemplates terminating his or her employment currently or at
any time before or within 60 days after the Closing Date or will
otherwise not be available to the Purchasers, or not agree to
employment by the Purchasers, on the same terms and conditions as
his or her current employment by the Seller on the date hereof.
<PAGE>
<PAGE>
(k) WARN and layoff issues. Within the twelve months
----------------------
prior to the Closing Date, the Seller has not with respect to the
Business effectuated (i) a "plant closing," as defined in the
Worker Adjustment and Retraining Notification Act (the "WARN
Act"); or (ii) a "mass layoff" (as defined in the WARN Act); and
the Seller has not engaged in layoffs or employment terminations
sufficient in number to trigger application of any similar state
or local Law.
4.12. Litigation. Except as set forth on Schedule 4.12
----------
hereto, there is no (i) outstanding Order against or involving the
Assets, the Business or the Seller with respect to the Business, (ii)
Legal Proceeding pending, or to the knowledge of the Seller,
threatened against or involving the Assets, the Business or the Seller
with respect to the Business, or (iii) to the Seller's knowledge,
investigation or audit pending or threatened against or relating to
the Assets, the Business or the Seller with respect to the Business
(collectively, "Proceedings"), which are, individually or in the
aggregate, reasonably likely to have a Material Adverse Effect or
would restrict, prohibit, prevent or seek damages in connection with
the consummation of the transactions contemplated hereby.
4.13. Compliance with Law. Except as set forth on
-------------------
Schedule 4.13 hereto, the Business is currently operating in
compliance with all applicable Laws, Orders and recorded restrictive
covenants other than non-compliances which in the aggregate would not
have a Material Adverse Effect. Except as set forth on Schedule 4.13
hereto, the Seller has neither received, nor knows of the issuance of,
any notice of any such violation or alleged violation.
4.14. Assets Necessary to Conduct Business. Except as
------------------------------------
set forth on Schedule 4.14 hereto, the Assets include all rights,
properties, interests in properties and assets reasonably necessary to
permit the Purchasers to carry on the Business substantially as
presently conducted by the Seller (including, without limitation, the
business related to Therapeutic Support Systems). No affiliate of the
Seller holds any assets used in the Business.
<PAGE>
<PAGE>
4.15. Environmental Matters. To the Seller's knowledge
---------------------
and except as set forth on Schedule 4.15 hereto and except for the
Known Environmental Condition:
(a) There is no Environmental Litigation (or any
Proceeding against any Person whose liability, or any portion
thereof, under any Environmental Laws has or may have been
retained or assumed contractually or by operation of law by the
Seller with respect to the Business) pending or threatened
against the Seller with respect to (i) the ownership, use,
condition or operation of the Business, the Real Property or any
other Asset, or (ii) any violation or alleged violation of or
liability or alleged liability under any Environmental Law or any
Order related to Environmental Laws with respect to the Business,
which could reasonably be expected to result in the Business
incurring material Environmental Costs and Liabilities.
(b) With respect to the Business, the operations
of the Seller are in material compliance with (i) Environmental
Laws, or (ii) any Order related to Environmental Laws, with
respect to the ownership, use, condition or operation of the
Business, the Real Property or any other Asset, except for
instances of non-compliance which could not reasonably be
expected to result in the Business incurring material
Environmental Costs and Liabilities.
(c) There are no past or present actions,
activities, circumstances, conditions, events or incidents
that could reasonably be expected to form the basis for (i) any
Environmental Litigation against the Seller with respect to the
Business, the Real Property or any other Asset which could
reasonably be expected to result in the Business incurring
material Environmental Costs and Liabilities, or (ii) any
Proceeding against any Person whose liability (or any portion
thereof) under any Environmental Laws has or may have been
retained or assumed contractually or by operation of law by the
Seller with respect to the Business which could reasonably be
expected to result in the Business incurring material
Environmental Costs and Liabilities.
(d) Neither the Seller nor any of its
predecessors, current or former Subsidiaries or anyone known to
the Seller has used any assets or premises of the Businesses for
the handling, treatment, storage (in excess of 90 days), or
disposal of any Hazardous Substances, except in material
compliance with Environmental Laws.
<PAGE>
<PAGE>
(e) No release, discharge, spillage or disposal
of any Hazardous Substances has occurred or is occurring at any
of the Real Property (excluding the Location) which could
reasonably be expected to have a Material Adverse Effect.
(f) No soil or water in or under any of the Real
Property (excluding the Location) is contaminated by any
Hazardous Substance which could reasonably be expected to have a
Material Adverse Effect.
(g) All waste containing any Hazardous Substances
generated, used, handled, stored, treated or disposed of
(directly or indirectly) in the operation of the Business by the
Seller, has been disposed of in compliance with all applicable
reporting requirements under any Environmental Laws, except for
instances of noncompliance which could not reasonably be expected
to result in the Business incurring material Environmental Costs
and Liabilities.
(h) Schedule 4.15(h) lists all underground tanks
presently located at any of the Real Property.
(i) No building or other improvement included in
the Assets contains any friable asbestos-containing materials,
the presence of which could reasonably be expected to have a
Material Adverse Effect.
(j) No polychlorinated biphenyls (PCB's) are used
or stored on or in any of the Real Property the presence of which
could reasonably be expected to have a Material Adverse Effect.
(k) The Seller has made available to the
Purchasers all material environmental site assessments and other
environmental studies relating to the investigation of the
possibility of the presence or existence of contamination from
Hazardous Substances that are in the Seller's possession, custody
or control with respect to Business, the Assets or any of the
Real Property.
<PAGE>
<PAGE>
4.16. Brokers. Other than Smith Barney Inc. ("Smith Barney"), no
-------
person has acted directly or indirectly as a broker, finder or financial
advisor for the Seller in connection with the negotiations relating to or
the transactions contemplated by this Agreement and no Person other than
Smith Barney is entitled to any fee, commission or like payment in respect
thereof based in any way on any agreement, arrangement or understanding
made by or on behalf of the Seller. The Seller acknowledges that it is
responsible for the payment of the fees of Smith Barney in connection with
the transactions contemplated by this Agreement.
4.17. Products Liability of the Business. Except as set forth on
----------------------------------
Schedule 4.17, the Seller has received no written claim, and, to the
knowledge of the Seller, no claim has been threatened or alleged, that any
line or category of products of the Business manufactured, designed, sold
or delivered by the Business contains any general defect in manufacture or
design or that any product of the Business has failed in any manner that
has resulted in any personal injury (including death) or property damage,
in each case or in the aggregate, which would have a Material Adverse
Effect.
4.18. Safe Medical Devices Act. No products manufactured,
------------------------
assembled, sold or distributed by the Business are "medical devices" for
the purposes of the United States Safe Medical Devices Act (the "SMDA") or
the Medical Device Amendments of 1976. Except as set forth on Schedule
4.18, since January 1, 1992, the Seller has received no written notice of
any report filed under the SMDA or any similar state law from any purchaser
or end user of any product of the Business. Except as set forth on Schedule
4.18, to the knowledge of the Seller, neither the United States Food and
Drug Administration (the "FDA") nor any similar state agency (i) has
commenced or is considering any investigation or inquiry concerning any
product of the Business
<PAGE>
<PAGE>
or (ii) is considering any rulemaking or other proceeding that would
subject any product of the Business to the SMDA or any similar state
law or to any requirement that the FDA or any state agency approve any
product of the Business as a condition of its sale in the manner that
such product is currently sold in the ordinary course of the Business.
Except as set forth on Schedule 4.18, to the knowledge of the Seller,
the products of the Business currently sold by the Seller
substantially conform to all applicable codes and standards imposed by
any United States federal or state governmental agency and to accepted
codes and standards relating to the manufacture, distribution and sale
of medical products in the United States other than non-compliance
which in the aggregate would not have a Material Adverse Effect.
4.19. Absence of Questionable Payments. Neither the
--------------------------------
Seller with respect to the Business nor any director, officer, agent,
employee or other Person acting on behalf of the Seller with respect
to the Business, has used, or authorized the use of, any corporate or
other funds for unlawful contributions, payments, gifts, or
entertainment, or made any unlawful expenditures relating to political
activity to government offices or others or established or maintained
any unlawful or unrecorded funds in violation of any applicable laws,
rules or regulations relating to foreign trade practices. Neither the
Seller with respect to the Business nor any current director, officer,
agent, employee or other Person acting on behalf of the Seller with
respect to the Business, has accepted or received any unlawful
contributions, payments, gifts, or expenditures.
4.20. Disclosure. The Seller has made available or
----------
caused to be made available to the Purchasers complete and correct
copies of all agreements, instruments and documents set forth in the
Schedules hereto or underlying a disclosure set forth in the Schedules
hereto.
4.21. Compliance with the Immigration Reform and Control
--------------------------------------------------
Act. The Seller with respect to the Business is in compliance with
---
and has not violated the terms and provisions of the Immigration
Reform and Control Act of 1986, or any related laws promulgated
thereunder (the "Immigration Laws") in any material respects. With
respect to each employee (as defined in Section 274a.1(f) of Title 8,
Code of Federal Regulations) of the Business for whom compliance with
the Immigration Laws by an employer (as defined in Section 274a.1(g)
of Title 8, Code of Federal Regulations) is required, the Seller shall
supply upon the Purchasers' request prior to the Closing Date, to the
Purchasers such employee's Form I-9 (Employment Eligibility
Verification Form) and all other records, documents or other
papers required to be retained with the Form I-9 by the employer
pursuant to the Immigration Laws. To the Seller's knowledge, the
Seller with respect to the Business has never been the subject of any
inspection or investigation relating to its compliance with or
violation of the Immigration Laws, and it has not been fined or
otherwise penalized by reason of any failure to comply with the
Immigration Laws, and there is not any such proceeding pending or, to
the knowledge of the Seller, threatened.
<PAGE>
<PAGE>
4.22. Corporate Expenses. The expenses under the
------------------
heading "Lumex Division Related" in Schedule 4.22 represent all of the
corporate expenses of the Seller that were incremental and necessary
to operate the Business during the year ended December 31, 1995.
Corporate expenses, such as officers' salaries, independent audit fees
and expenses relating to maintaining a public company status are
examples of the type of expenses that are corporate overhead and not
necessary to operate the Business.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS AND PARENT
Each of the Purchasers and Parent hereby represents and
warrants to the Seller that:
5.1. Organization and Good Standing. Each of the Purchasers
------------------------------
and Parent is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all
requisite corporate power and authority to carry on its business as it
is now being conducted, and to execute, deliver and perform this
Agreement and to consummate the transactions contemplated hereby.
5.2. Authorization of Agreement. Each of the Purchasers and
--------------------------
Parent has full corporate power and authority to execute and deliver
this Agreement and each other agreement, document, instrument or
certificate contemplated by this Agreement or to be executed by the
Purchasers or Parent in connection with the consummation of the
transactions contemplated by this Agreement (all such other
agreements, documents, instruments and certificates required to be
executed by the Purchasers or Parent being hereinafter referred to,
collectively, as the "Purchasers' Documents") and to perform fully its
obligations hereunder and thereunder. The execution, delivery and
performance by the Purchasers or Parent of this Agreement and each
Purchasers' Document has been duly authorized by all necessary action
on the part of the Purchasers and/or Parent, as the case may be. This
Agreement has been, and each of the Purchasers' Documents will be
<PAGE>
<PAGE>
at or prior to the Closing, duly executed and delivered by the
Purchasers and/or Parent and (assuming the due authorization,
execution and delivery by the other parties hereto and thereto) this
Agreement constitutes, and the Purchasers' Documents when so executed
and delivered will constitute, legal, valid and binding obligations of
the Purchasers and/or Parent, as the case may be, enforceable against
the Purchasers and/or Parent in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights and remedies
generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding at
law or in equity). None of the execution and delivery by the
Purchasers or Parent of this Agreement and the Purchasers' Documents,
or the consummation of the transactions contemplated hereby or
thereby, or compliance by the Purchasers or Parent with any of the
provisions hereof or thereof, will (i) conflict with, or result in the
breach of, any provision of the certificate of incorporation or by-
laws of the Purchasers or Parent, (ii) conflict with, violate, result
in the breach or termination of, or constitute a default under any
Contract or Order to which either of the Purchasers or Parent is a
party or by which it or any of its properties or assets is bound or
subject, or (iii) constitute a violation of any Law applicable to the
Purchasers or Parent, except, in each case, for violations, conflicts,
breaches or defaults which individually or in the aggregate would not
materially hinder or impair the transactions contemplated hereby.
5.3. Consents. No consent, waiver, approval, Order, Permit
--------
or authorization of, or declaration or filing with, or notification
to, any Person or Governmental Body is required on the part of the
Purchasers or Parent in connection with the execution and delivery of
this Agreement or the Purchasers' Documents or the compliance by the
Purchasers or Parent with any of the provisions hereof or thereof,
except (i) for compliance with the HSR Act, (ii) consents, waivers,
approvals, Orders or Permits, if any, which the Seller is required to
obtain pursuant to Section 4.5 hereof and (iii) any novations required
in connection with the Government Contracts.
5.4. Availability of Funds. The Purchasers have available
---------------------
sufficient funds to enable them to consummate the transactions
contemplated by this Agreement.
<PAGE>
<PAGE>
5.5. Litigation. There is no Legal Proceeding pending or,
----------
to the knowledge of the Purchasers or Parent, threatened, that seeks
to enjoin or obtain damages in respect of the consummation of the
transactions contemplated by this Agreement or that questions the
validity of this Agreement, the Purchasers' Documents or any action
taken or to be taken by the Purchasers or Parent in connection with
the consummation of the transactions contemplated hereby or thereby.
5.6. Brokers. No Person has acted directly or indirectly as
-------
a broker, finder or financial advisor for the Purchasers or Parent in
connection with the negotiations relating to or the transactions
contemplated by this Agreement and no Person is entitled to any fee or
commission or like payment in respect thereof based in any way on
agreements, arrangements or understandings made by or on behalf of the
Purchasers or Parent.
ARTICLE VI.
COVENANTS OF THE SELLER
From and after the date hereof and until the Closing, the
Seller hereby covenants and agrees with the Purchasers that:
6.1. Cooperation. The Seller shall use its best efforts to
-----------
cause the consummation of the transactions contemplated hereby in
accordance with the terms and conditions hereof and shall take all
commercially reasonable steps that are within its powers to cause to
be satisfied those of the conditions precedent of the obligations of
the Purchasers to consummate the transactions contemplated by this
Agreement that are dependent on any act of the Seller.
6.2. Access to Documents; Opportunity to Ask Questions. The
-------------------------------------------------
Seller shall provide the Purchasers with such information as the
Purchasers from time to time reasonably may request with respect to
the Business, and shall permit the Purchasers and any of the
directors, officers, employees, counsel, representatives, accountants
and auditors (collectively, the "Purchasers' Representatives") reason-
able access, during normal business hours and upon reasonable prior
notice, to the properties, corporate records and books of accounts of
the Business, as the Purchasers from time to time reasonably may
request; provided, however, that the Seller shall not be obligated to
-------- -------
provide the Purchasers with any information the provision of which may
be prohibited by law or contractual obligation. No disclosure by the
Seller whatsoever during any investigation by the Purchasers shall
constitute an enlargement of or additional warranty or representation
of the Seller beyond those expressly set forth in this Agreement. All
information and access obtained by the Purchasers in connection with
the transactions contemplated by this Agreement shall be subject to
the terms and conditions of the letter agreement relating to
confidentiality, dated as of November 7, 1995, between the Seller
and the Parent (the "Confidentiality Agreement") which
Confidentiality Agreement shall terminate on the Closing Date.
<PAGE>
<PAGE>
6.3. Conduct of Business.
-------------------
(a) Except as otherwise may be contemplated by this
Agreement or as the Purchasers otherwise may consent to in
writing (which consent shall not be unreasonably withheld), the
Seller shall cause the Business to be operated in the ordinary
course consistent with past practice and use reasonable efforts
consistent with past practice to (i) preserve the present
business operations, organization and goodwill of the Business,
(ii) keep available the services of the present employees of the
Business, (iii) preserve the present relationships with persons
having business dealings with the Business, (iv) maintain all of
the assets and properties of the Business in their current con-
dition, normal wear and tear excepted, and (v) maintain insurance
in such amounts and of such kinds as is comparable to that in
effect on the date hereof (with insurers of substantially the
same or better financial condition).
(b) Except as otherwise may be contemplated by this
Agreement, required by any of the documents listed in the
Schedules hereto or as the Purchasers otherwise may consent to in
writing (which consent shall not be unreasonably withheld), the
Seller shall not do any of the following:
(i) (A) increase the rate of compensation
payable or to become payable to any of the employees or agents of
the Business other than in the ordinary course of business, (B)
amend in any material respect any bonus, stock option, stock
purchase, profit-sharing, deferred compensation, pension, retire-
ment or other similar plan or arrangement to or in respect of any
such employee or agent, other than in the ordinary course of
business and as may be required to maintain compliance with ERISA
and/or the Code or (C) enter into any new, or amend in any
material respect any existing, employment, severance or
consulting agreement, sales agency, or other Contract with
respect to the performance of personal services for the Business,
other than in the ordinary course of business and as may be
required to maintain compliance with ERISA and/or the Code;
provided, however, that the Seller may adopt a severance or
salary continuation plan in lieu of the Seller's severance policy
set forth in the Seller's Personnel Policies and Procedures last
revised October 1994, provided that such plan does not (1)
adversely affect the Seller's or the Purchasers' obligations
under Article VIII hereof prior to such adoption or (2) provide
benefits in excess of or expand eligibility for benefits provided
under any severance policy, plan or arrangement existing on the
date of this Agreement providing similar benefits.
(ii) (A) incur or become subject to, or agree to
incur or become subject to, any material obligation or liability
(contingent or otherwise) relating to the Business, except (x)
normal trade or business obligations (including Contracts)
incurred in the ordinary course of business and consistent with
past practice and (y) obligations under Contracts listed on any
Schedule to this Agreement, (B) sell, assign, transfer, convey,
lease or otherwise dispose of any of the Assets, other than
inventory of the Business, in the ordinary course of business,
(C) cancel or compromise any material debt or claim or waive or
release any material right relating to the Business or the
Assets, except for adjustments or settlements made in the
ordinary course of business consistent with past practice, or (D)
acquire any material assets relating to the Business other than
in the ordinary course of business.
<PAGE>
<PAGE>
6.4. Consents and Conditions; Assignment of Assets. Subject
---------------------------------------------
to Article XII hereof, the Seller shall use its best efforts to obtain
all approvals, consents or waivers from Persons necessary to assign to
the Purchasers all of the Seller's interest in the Assets or any
claim, right or benefit arising thereunder or resulting therefrom
(each, an "Interest") as soon as practicable; provided, however, that
-------- -------
in no event shall the Seller be obligated to pay any consideration
therefor to any third party from whom such approval, consent or waiver
is requested or release any right, benefit or claim in order to obtain
such approval, consent or waiver.
6.5. HSR Act Filings. As promptly as practicable after the
---------------
execution of this Agreement (to the extent a filing has not already
been made), the Seller shall file any reports or notifications that
may be required to be filed under the HSR Act and shall cooperate with
the Purchasers in connection with such filings or responses to
requests for additional information.
6.6. Additional Reports. From the date hereof through the
------------------
Closing Date, the Seller will make available to the Purchasers true
and correct copies of all the internal management and control reports
(including aging of accounts receivables, listings of accounts
payable, and inventory control reports) and financial statements
related to the Business and furnished to management of the Seller.
6.7. Air Bed Contract. The Seller agrees to consult with
----------------
the Purchasers with respect to negotiations of the amendment to the
First Amended and Restated Asset Purchase Agreement, dated as of
February 22, 1995, between Airbed Corporation and Lumex, Inc., and
shall not execute an amendment to such contract without the prior
written consent of the Purchasers, which consent shall not be
unreasonably withheld or delayed.
6.8. Other Transactions. Provided that the Purchasers are
------------------
not in default under this Agreement, the Seller will not, and will
direct its officers, directors, financial advisors, accountants,
agents, and counsel not to (i) solicit submissions of proposals or
offers from any Person other than the Purchasers relating to the
acquisition of all or any material part of the Assets (an "Acquisition
Proposal"), (ii) participate in any discussions or negotiations or
furnish any non-public information regarding the Business to any
Person other than the Purchasers or the Purchasers' Representatives
for the purpose of selling the Assets other than in the ordinary
course of business or encouraging or facilitating an Acquisition
Proposal by any Person other than the Purchasers, or (iii) enter into
any agreement or understanding, that would have the effect of
preventing the consummation of the transactions contemplated by this
Agreement.
<PAGE>
<PAGE>
ARTICLE VII.
COVENANTS OF THE PURCHASERS
From and after the date hereof, and until the Closing Date,
each of the Purchasers and Parent hereby covenants and agrees with the
Seller that:
7.1. Cooperation. Each of the Purchasers and Parent shall
-----------
use its best efforts to cause the consummation of the transactions
contemplated hereby in accordance with the terms and conditions hereof
and shall take all commercially reasonable steps that are within its
powers to cause to be satisfied those of the conditions precedent to
the obligations of the Seller to consummate the transactions contemplated
by this Agreement that are dependent on any act of the Purchasers or
Parent.
7.2. Confidentiality. The Purchasers and Parent shall
---------------
comply with the terms of the Confidentiality Agreement.
7.3. Consents and Conditions. Subject to Article XII
-----------------------
hereof, the Purchasers and Parent shall use their best efforts to
obtain all approvals, consents or waivers from Persons necessary to
assign to the Purchasers all of the Seller's interest in the Assets or
any claim, right or benefit arising thereunder or resulting therefrom
as soon as practicable; provided, however, that in no event shall the
-------- -------
Purchasers or Parent be obligated to pay any consideration therefor to
the third party from whom such approval, consent or waiver is
requested or release any right, benefit or claim in order to obtain
such approval, consent or waiver.
7.4. HSR Act Filings; Compliance with Antitrust and
----------------------------------------------
Competition Laws. As promptly as practicable after the execution of
----------------
this Agreement (to the extent a filing has not already been made), the
Purchasers and Parent shall file all reports and notifications that
may be required to be filed under the HSR Act and shall cooperate with
the Seller in connection with such filings or responses to requests
for additional information. The Purchasers and Parent shall use their
best efforts to resolve such objections, if any, as the Antitrust
Division of the Department of Justice, the Federal Trade Commission,
state antitrust enforcement authorities or competition authorities of
any other jurisdiction may assert under the antitrust or competition
laws with respect to the transaction contemplated hereby; provided,
however, that Purchasers shall not be required to commit to and/or
effect the sale or other disposition of such of their assets owned
already or acquired by them pursuant hereto.
<PAGE>
<PAGE>
7.5. Permits, Bonds and Guarantees. The Purchasers shall
-----------------------------
obtain as of the Closing all Permits required by any Governmental Body
to be obtained prior to the Closing with respect to the operation of
the Business or the ownership or operation of the Assets without any
guaranty or liability of the Seller with respect thereto; provided,
--------
however, that, as provided in Section 1.1 hereof, the Seller shall
-------
assign, transfer or convey to the Purchasers at the Closing those
Permits described in one or more Schedules hereto that are held by the
Seller principally in connection with the Business and that can be
assigned without having to obtain the consent of any Governmental Body
with respect thereto or as to which any required consent has been
obtained.
ARTICLE VIII.
COVENANTS RELATING TO EMPLOYMENT AND EMPLOYEE MATTERS
8.1. Offer of Employment.
-------------------
(a) The Purchasers may offer employment as of the
Closing Date to some or all of the Employees and upon such terms
and conditions as the Purchasers shall determine in their sole
discretion (subject to the assumption of agreements under Section
8.2 hereof). The Purchasers shall be solely responsible for all
compensation accruing or to be paid on or after the Closing Date
with respect to Transferred Employees and for any compensation
with respect to which there are accruals on the Closing Balance
Sheet.
<PAGE>
<PAGE>
(b) The Seller shall provide to the Purchasers a
statement of all accrued entitlements for Employees as of the
Closing Date, including but not limited to vacation days, wages
and other compensation consistent with the Benefit Arrangements.
8.2. Collective Bargaining and Other Agreements. Except as
------------------------------------------
set forth in Section 1.4(i), the Purchasers agree to assume all of the
rights and obligations of the Seller under all collective bargaining
agreements, employment agreements or consulting agreements listed on
Schedule 8.2 and which are applicable to the Employees and in effect
on the business day immediately preceding the Closing Date.
8.3. Employee Benefit Plans.
----------------------
(a) The Purchasers shall be liable for all claims incurred
on or after the Closing Date by any Transferred Employee under
any "employee welfare benefit plan" within the meaning of Section
3(1) of ERISA (a "Welfare Plan").
(b) The Seller shall be liable for all claims under any
other Employee Benefits Plan that are not the liability of the
Purchasers under Sections 8.2, 8.3(a) or 8.4.
8.4. Termination Obligations. Except as set forth in
-----------------------
Section 1.4(i), the Purchasers shall be liable for all payments that
may be required to be made on or after the Closing Date to
any Employee who is not a Transferred Employee employed by the
Purchasers on substantially the same terms and conditions of
employment as with the Seller under any termination, severance or
similar plan, policy or arrangement of the Seller as a result of the
transactions contemplated herein or any other event involving such
Employees occurring on or after the Closing Date. The Seller shall be
liable for all payments required to be made to any Transferred
Employee on or before the Closing Date under any termination,
severance or similar plan, policy or arrangement of the Seller.
8.5. Indemnification.
---------------
(a) Except as set forth in Section 1.4(i), the
Purchasers shall indemnify the Seller from any liability, loss,
damage or expense the Seller may incur (including reasonable
attorneys' fees) with respect to any claims of Employees or
Transferred Employees (i) arising out of their employment with
the Purchasers, (ii) under any Law relating to the termination of
such Employee's or Transferred Employee's employment arising as a
result of the actions of the Purchasers on or after the Closing
Date and (iii) in connection with Liabilities assumed by the
Purchasers under this Article VIII.
<PAGE>
<PAGE>
(b) The Seller shall indemnify the Purchasers from any
liability, loss, damage or expense the Purchasers may incur
(including reasonable attorneys' fees) with respect to any claims
made or incurred prior to the Closing Date under a Welfare Plan
or based upon events, actions or omissions occurring prior to the
Closing Date.
(c) The Seller shall indemnify the Purchasers from any
liability, loss, damage or expense the Purchasers may incur
(including reasonable attorneys' fees) as a result of claims (or
any liens imposed as a result of such claims) arising out of,
resulting from or related to any Employee Benefit Plan which is
not the Purchasers' obligation under Sections 8.2, 8.3(a) and
8.4, or any similar plan or arrangement maintained or contributed
to by the Seller (or any entity or person aggregated with the
Seller under Sections 414(b),(c),(m) or (o) of the Code), whether
or not previously disclosed.
8.6. COBRA Coverage. The Purchasers shall be responsible
--------------
for complying with the requirements of Code Section 4980B and Part 6
of Title I of ERISA for Transferred Employees and their beneficiaries
having a "qualifying event" (as defined in Code Section 4980B) on or
after the Closing Date, and the Seller shall be responsible for
complying with such requirements for all other Employees.
ARTICLE IX.
CONDITIONS PRECEDENT TO THE PURCHASERS' OBLIGATIONS
The obligation of the Purchasers to consummate the purchase
of the Assets and the assumption of the Assumed Liabilities on the
Closing Date is, at the option of the Purchasers, subject to the
satisfaction of the following conditions:
<PAGE>
<PAGE>
9.1. Representations, Warranties and Covenants.
-----------------------------------------
(a) Each of the representations and warranties of the
Seller contained herein shall be true and correct in all respects
on and as of the Closing Date with the same force and effect as
though the same had been made on and as of the Closing Date, it
being understood that to the extent that such representations and
warranties were made as of a specified date the same shall
continue on the Closing Date to be true and correct in all
respects as of the specified date (except, in each case,
representations and warranties that are not qualified by
materiality shall be true in all material respects).
(b) The Seller shall have performed and complied in
all respects with the covenants and provisions of this Agreement
required to be performed or complied with by it at or prior to
the Closing Date (except covenants that are not qualified by
materiality shall have been performed or complied with in all
material respects).
(c) The Purchasers shall have received a certificate
of the Seller, dated as of the Closing Date and signed by an
officer of the Seller, certifying as to the fulfillment of the
conditions set forth in this Section 9.1.
9.2. HSR Act. All applicable waiting periods in respect of
-------
the transactions contemplated by this Agreement under the HSR Act
shall have expired.
9.3. No Prohibition. No Law or Order of any court or
--------------
administrative agency shall be in effect which prohibits the
Purchasers from consummating the transactions contemplated hereby.
9.4. Opinion of the Seller's Counsel. The Purchasers shall
-------------------------------
have received an opinion or opinions of counsel for the Seller, dated
the Closing Date in a form reasonably acceptable to the Purchasers.
9.5. Delivery of Documents. The Seller shall have executed
---------------------
and delivered to the Purchasers at the Closing bills of sale,
certificates of title, an assignment agreement, patent assignments,
trademark assignments and any other documents required to be delivered
pursuant to Section 3.3 hereof.
<PAGE>
<PAGE>
9.6. Consents; Permits. The Seller shall have obtained all
-----------------
third party or governmental consents, waivers, approvals and
authorizations listed on Schedule 9.6 hereto and the Seller shall have
delivered copies thereof to the Purchasers.
ARTICLE X.
CONDITIONS PRECEDENT TO THE SELLER'S OBLIGATIONS
The obligation of the Seller to consummate the sale,
transfer and assignment to the Purchasers of the Assets and the
assignment of the Assumed Liabilities on the Closing Date is, at the
option of the Seller, subject to the satisfaction of the following
conditions.
10.1. Representations, Warranties and Covenants.
-----------------------------------------
(a) Each of the representations and warranties of the
Purchasers and Parent contained herein shall be true and correct
in all respects as of the Closing Date with the same force and
effect as though the same had been made on and as of the Closing
Date, it being understood that to the extent that such
representations and warranties were made as of a specified date
the same shall continue on the Closing Date to be true and
correct in all respects as of the specified date (except, in each
case, representations and warranties that are not qualified by
materiality shall be true in all material respects).
(b) The Purchasers and Parent shall have performed and
complied in all respects with the covenants and provisions in
this Agreement required herein to be performed or complied with
by it at or prior to the Closing Date (except covenants that
are not qualified by materiality shall have been performed
or complied with in all material respects).
(c) The Seller shall have received a certificate of
the Purchasers, dated as of the Closing Date and signed by an
officer of the Purchasers, certifying as to the fulfillment of
the conditions set forth in this Section 10.1.
<PAGE>
<PAGE>
10.2. HSR Act. All applicable waiting periods in
-------
respect of the transactions contemplated by this Agreement under the
HSR Act shall have expired.
10.3. No Prohibition. No Law or Order of any court or
--------------
administrative agency shall be in effect which prohibits the Seller
from consummating the transactions contemplated hereby.
10.4. Opinion of the Purchasers' Counsel. The Seller
----------------------------------
shall have received an opinion or opinions of counsel for the
Purchasers, dated the Closing Date in a form reasonably acceptable to
the Seller.
10.5. Delivery of Documents. The Purchasers shall have
---------------------
executed and delivered to the Seller, at the Closing an assumption
agreement, and any other documents required to be delivered pursuant
to Section 3.4 hereof.
10.6. Consents; Permits. The Seller shall have obtained
-----------------
all consents, waivers, approvals and authorizations listed on Schedule
10.6 hereto.
ARTICLE XI.
ADDITIONAL POST-CLOSING COVENANTS
11.1. Further Assurances.
------------------
(a) From time to time after the Closing Date, each of
the Seller and the Purchasers shall, at its sole cost and
expense, at the reasonable request of the Purchasers, execute and
deliver such other and further instruments of sale, assignment,
assumption, transfer and conveyance and take such other and
further action as the Purchasers may reasonably request in order
to vest in the Purchasers and put the Purchasers in possession of
the Assets and to transfer to the Purchasers any Contracts and
rights of the Seller relating to the Assets and assure to the
Purchasers the benefits thereof, and, at the reasonable request
of the Seller, to give effect to the Purchasers' assumption of
the Assumed Liabilities.
<PAGE>
<PAGE>
(b) If, on the Closing Date, (i) the Seller has not
obtained any authorization, approval or consent (a "Consent")
required to transfer, assign or novate (a "Transfer") any of the
Seller's Interest in or to any of the Assets after having used
its best efforts to obtain such Consent or an attempted Transfer
of any of the Assets would be ineffective or the failure to have
such Consent would adversely affect the Seller's ability to
convey any such Asset, and (ii) the conditions precedent to the
Closing set forth in Article X nevertheless have been satisfied,
then such Assets shall constitute "Deferred Acquired Assets" and
shall not be transferred to the Purchasers at the Closing. After
the Closing, (a) the Seller will (I) continue to use commercially
reasonable efforts to obtain the Consent and/or to remove any
other impediments to the Transfer of each Deferred Acquired Asset
and will Transfer each Deferred Acquired Asset to the Purchasers
within five business days after the receipt of such Consent
and/or removal of such impediment and (II) until the Transfer
with respect to any Deferred Acquired Asset is accomplished,
cooperate with the Purchasers in any lawful arrangement that is
not unduly economically burdensome (including performance by the
Seller as agent) to provide that the Purchasers shall receive the
benefits of such Deferred Acquired Asset to the same extent as if
it were transferred to the Purchasers at Closing, (III) until the
Transfer with respect to any Deferred Acquired Asset is
accomplished, enforce, at the request and for the account of the
Purchasers, any of the Seller's rights thereto or interests
therein against any other parties thereto (including the right to
terminate any such Deferred Acquired Asset in accordance with its
terms, provided that the Purchasers pay any cancellation or other
fee due upon such termination) and (b) if and only to the extent
that the Purchasers receive the benefits of a Deferred Acquired
Asset, the Purchasers shall perform the obligations of the Seller
arising with respect to such Deferred Acquired Asset to the
extent that, by reason of consummation of the transactions
contemplated by this Agreement, the Purchasers have control over
the resources necessary to perform such obligations or reimburse
the Seller for the reasonable cost of such performance. To the
extent the Purchasers perform the obligations of the Seller with
respect to any Deferred Acquired Asset, any account receivable
created on account of such performance shall be deemed
when created to be an Asset conveyed hereunder. The Purchasers
will act with reasonable diligence and use commercially
reasonable efforts to assist, and cooperate with, the Seller in
obtaining such Consents and removing any such impediments to the
transfer of the Deferred Acquired Assets.
<PAGE>
<PAGE>
11.2. Public Announcements. Neither the Seller (nor any
--------------------
of its affiliates) nor the Purchasers (nor any of their affiliates)
shall make any public statement, including, without limitation, any
press release, with respect to this Agreement and the transactions
contemplated hereby, without the prior written consent of the other
party (which consent may not be unreasonably withheld or delayed),
except as may be required by Law, and except that following the
issuance of press releases by the parties hereto with respect to the
transactions contemplated hereby the parties may continue routine
communications (including discussions regarding the transactions
contemplated hereby) with investors and analysts.
11.3. Joint Post-Closing Covenant of the Seller and the
-------------------------------------------------
Purchasers. The Seller and the Purchasers jointly covenant and agree
----------
that, from and after the Closing Date, the Seller and the Purchasers
will cooperate with each other in defending or prosecuting any action,
suit, proceeding, investigation or audit of the other relating to (a)
the preparation and audit of the Seller's and the Purchasers' tax
returns for all periods up to and including the Closing Date, and (b)
any audit of the Purchasers and/or the Seller with respect to the
sales, transfer and similar taxes imposed by the laws of any state,
relating to the transactions contemplated by this Agreement. In
furtherance hereof, the Purchasers and the Seller further covenant and
agree to respond to all reasonable inquiries related to such matters
and to provide, to the extent possible, substantiation of transactions
and to make available and furnish appropriate documents and personnel
in connection therewith.
11.4. Books and Records; Personnel. For a period of
----------------------------
seven years after the Closing Date (or such longer period as may be
required by any Governmental Body or ongoing Legal Proceeding):
(a) Neither the Seller nor the Purchasers shall
dispose of or destroy any of the business records and files of
the Business. If either the Seller or the Purchasers wishes to
dispose of or destroy such records and files after that time, it
shall first give 30 days' prior written notice (the "Notice")
to the other party who shall have the right, at its option and
expense, upon prior written notice to the disposing party within
such 30 day period, to take possession of the records and files
within 60 days after the date of the Notice.
<PAGE>
<PAGE>
(b) Each party to this Agreement shall allow the other
party and its representatives access to all business records and
files of the Business, during regular business hours and upon
reasonable notice at such other party's principal place of
business or at any location where such records are stored, and
the parties shall have the right, each at its own expense, to
make copies of any such records and files; provided, however,
-------- -------
that any such access or copying shall be had or done in such a
manner so as not to unreasonably interfere with the normal
conduct of the other party's business or operations (including,
without limitation, matters relating to the confidentiality of
such records and files).
(c) The Purchasers shall make available to the Seller,
upon written request and at the Seller's expense (i) the
Purchasers' personnel to assist the Seller in locating and
obtaining records and files maintained by the Purchasers and (ii)
any of the Purchasers' personnel previously in the Seller's
employ whose assistance or participation is reasonably required
by the Seller in anticipation of, or preparation for, existing or
future litigation, arbitration, administrative proceeding, tax
return preparation or other matters in which the Seller or any of
its affiliates is involved and which is related to the Business.
11.5. Solicitation of Employees. For a period of one
-------------------------
year after the date of this Agreement, the Seller shall not, and shall
cause its affiliates not to, cause, induce or encourage any
Transferred Employee to leave the employment of the Purchasers.
11.6. Corporate Name. The Seller consents to the
--------------
Purchasers using the name "Lumex" and the Seller will not use the
tradename "Lumex", but will only use the name "Lumex" for corporate
purposes until such time as it shall change its name. The Seller
shall propose at the next annual meeting of its shareholders that the
shareholders approve an amendment to the Seller's Certificate of
Incorporation to change its name from "Lumex, Inc." and shall take all
necessary steps within a reasonable time thereafter to effectuate such
change.
<PAGE>
<PAGE>
11.7. Maintenance of Insurance. For a period of two
------------------------
years after the Closing Date, the Seller shall maintain substantially
the same workers compensation insurance policy as exists on the date
of this Agreement.
ARTICLE XII.
GOVERNMENT CONTRACTS
12.1. Government Contracts. The parties acknowledge
--------------------
that, in accordance with FAR (48 C.F.R.) Section 42.1204, the Seller and
Purchaser I are required to enter into a novation agreement or
agreements with the United States of America with respect to contracts
numbers V79P-3768; and V797P-3253; between the Seller and the United
States of America (Department of Veterans Affairs Marketing Center)
and contract number GS-27F-3011D between the Seller and the United
States of America (General Services Administration/FSS National
Furniture Center) (collectively, the "Government Contracts"). The
Seller and Purchaser I will cooperate fully and will use all
reasonable efforts to obtain consents to the assignment, or the
novation, of each of the Government Contracts, and the Seller hereby
agrees expeditiously to take all steps necessary to file requests for,
and to use all reasonable efforts to obtain, approvals of all required
novations or assignments with respect to the Government Contracts.
12.2. Performance Under Nonassigned Contracts. With
---------------------------------------
respect to any Government Contracts that cannot be assigned to
Purchaser I or novated for the benefit of Purchaser I on the Closing
Date, the performance obligations of the Seller thereunder shall, to
the fullest by applicable law and each such Government Contract, be
deemed to be subcontracted or delegated to Purchaser I until any such
Government Contract has effectively been assigned or novated.
Purchaser I, as a subcontractor or delegate, shall perform such
Government Contracts and the Seller shall, as soon as practicable, pay
over to Purchaser I in full any amounts received by the Seller as a
result of performance by Purchaser I of such Government Contracts.
Prior to the assignment or novation of such Government Contracts to
the Purchasers, the Seller, as the contracting party, shall timely
take such action as is reasonably necessary to allow Purchaser I or
any of its Subsidiaries to perform such Government Contracts, to
receive amounts due such Government Contracts and to protect any
rights that may exist or accrue under such Government Contracts until
they are assigned or novated.
<PAGE>
<PAGE>
12.3. Assignment After Closing. If, after the Closing
------------------------
Date, the Seller and Purchaser I obtain the necessary consent for the
assignment or novation of a Government Contract for which an
assignment or novation is required, then such Government Contract
shall be deemed to be assigned and transferred to Purchaser I promptly
after the Seller and Purchaser I obtain such consent or novation.
Effective upon the assignment of a Government Contract to Purchaser I,
the Government Contract shall be deemed to be assumed by Purchaser I
provided that the Seller shall reimburse Purchaser I for any monetary
benefit received by the Seller (net of any actual out-of-pocket costs
of the Seller in connection with such Government Contract) that would
have accrued to Purchaser I had the Government Contract been assigned
or novated as of the Closing Date. Any subcontract or other
Government Contract which the Seller and Purchaser I have theretofore
entered into or agreed upon in respect of such contract shall be
terminated effective as of the date of such assignment.
ARTICLE XIII.
INDEMNIFICATION AND RELATED MATTERS
13.1. Indemnification by the Seller. Subject to the
-----------------------------
provisions of this Article XIII, the Seller agrees to indemnify and
hold the Purchasers harmless from and against all Damages resulting
from or arising out of:
(a) the failure of any of the representations and
warranties contained in Article IV of this Agreement or in the
Schedules related thereto to have been true when made and as of
the Closing Date, it being understood that to the extent that any
of such representations and warranties were made as of a
specified date the same shall apply only to the failure of such
representations and warranties to be true as of such specified
date;
<PAGE>
<PAGE>
(b) the failure of the Seller to comply with any of
the covenants contained in this Agreement which are required to
be performed by the Seller; and
(c) the Excluded Liabilities.
13.2. Indemnification by the Purchasers.
---------------------------------
(a) Subject to the provisions of this Article XIII,
the Purchasers agree to indemnify and hold the Seller
harmless from and against all Damages resulting from or arising
out of:
(i) the failure of any of the representations and
warranties contained in Article V of this Agreement to have been
true when made and as of the Closing Date, it being understood
that to the extent that any of such representations and
warranties were made as of a specified date the same shall apply
only to the failure of such representations and warranties to be
true as of such specified date;
(ii) the failure of the Purchasers to comply with
any of the covenants contained in this Agreement which are
required to be performed by the Purchasers;
(iii) the Assumed Liabilities; and
(iv) the operation of the Business or ownership of
the Assets on or after the Closing Date.
(b) The Purchasers shall indemnify, defend and hold
the Seller harmless from and against all Damages and
Environmental Costs and Liabilities arising out of or relating to
known or unknown Hazardous Substance contamination at the
facility at the Location, including, but not limited to: (i) any
cleanup, corrective removal or remedial actions or property
damage arising out of any condition existing prior to or after
the Closing, whether or not disclosed to or known by the
Purchasers or the Seller; (ii) third party claims (including, not
but not limited to, claims by employees of the Seller) for
personal injury relating or attributable to exposure to Hazardous
Substances; (iii) fines or penalties on account of the presence
or suspected presence of Hazardous Substances contamination prior
to or after the Closing Date; (iv) any liability or obligation to
modify, restore, change or improve any of the Assets in order to
effectuate compliance with any applicable regulation or order in
effect as of the Closing Date relating to the presence or
suspected presence of Hazardous Substances contamination.
<PAGE>
<PAGE>
13.3. Determination of Damages and Related Matters. In
--------------------------------------------
calculating any amount payable to the Purchasers pursuant to Section 13.1
or payable to the Seller pursuant to Section 13.2, the Seller or the
Purchasers, as the case may be, shall receive credit for (i) any tax
benefit allowable as a result of the facts giving rise to the claim for
indemnification, and (ii) any insurance recoveries, and no amount shall be
included for the Purchasers' or the Seller's, as the case may be, special,
consequential or punitive damages, unless special, consequential or
punitive damages have been asserted by any third party against the party
seeking indemnification. The Seller and the Purchasers agree to treat any
indemnity payment made pursuant to Section 13.1 or Section 13.2 as an
adjustment to the Purchase Price for federal, state, local and foreign
income tax purposes.
13.4. Limitation on Indemnification Liabilities.
-----------------------------------------
(a) Except as set forth in subsection (b) below, the
indemnifications in favor of the Purchasers contained in Sections
13.1 (a) and 13.1(b) (a) shall not be effective until the
aggregate dollar amount of all Damages indemnified against under
such Section (not including any such Damages subject to Section
13.4(b) below) exceeds $640,000 (the "Threshold Amount"), and
then only to the extent such aggregate amount exceeds the
Threshold Amount and (b) shall terminate once the dollar amount
of all Damages indemnified against under such Section aggregates
the Purchase Price provided that the Threshold Amount shall not
--------
apply to Excluded Liabilities, the representation made in Section
4.16 hereof or the covenants contained in Section 11.5 hereof and
the Covenant Not to Compete.
(b) In the event of a breach of Section 4.22, the
indemnifications in favor of the Purchasers contained in Section
13.1(a) (i) shall not be effective until the aggregate dollar
amount of all Lumex Division Related Expenses exceeds $250,000,
and then only to the extent such aggregate amount exceeds such
$250,000 and (ii) shall terminate once the dollar amount of all
Damages indemnified under Sections 13.1(a) and (b) aggregates the
Purchase Price.
13.5. Survival of Representations, Warranties
---------------------------------------
and Covenants. The parties hereto agree that the representations and
-------------
warranties made in this Agreement and the covenants and agreements
contained herein and any indemnification with respect thereto shall
survive for one year after the Closing Date; provided that (i) such
--------
limitation period shall not apply with respect to claims properly made
with reasonable specificity prior to the expiration of such one year
limitation period, (ii) any covenants and agreements contained herein
which by their terms may cover a period in excess of one year after
the Closing Date shall survive for such specified period and (iii) the
indemnification obligations contained in Sections 13.1(c),
<PAGE>
<PAGE>
13.2(a)(iii), 13.2(a)(iv) and 13.2(b) shall survive indefinitely (the
"Survival Period").
13.6. Notice of Indemnification. In the event any legal
-------------------------
proceeding shall be threatened or instituted or any claim or demand
shall be asserted by any person in respect of which payment may be
sought by one party hereto from the other party under the provisions
of this Article XIII or for breach of any of the representations and
warranties set forth herein, the party seeking indemnification (the
"Indemnitee") shall promptly cause written notice of the assertion of
any such claim of which it has knowledge which is covered by this
indemnity to be forwarded to the other party (the "Indemnitor"), which
notice must be received by the Indemnitor prior to the expiration of
the applicable Survival Period. Any notice of a claim by reason of
any of the representations, warranties or covenants contained in this
Agreement shall state specifically the representation, warranty or
covenant with respect to which the claim is made, the facts giving
rise to an alleged basis for the claim, and the amount of the
liability asserted against the Indemnitor by reason of the claim. The
failure of the Indemnitee to notify the Indemnitor of a claim shall
not relieve the Indemnitor of any liability that it may have with
respect to such claim, except to the extent the Indemnitor is
prejudiced or adversely affected by such failure.
13.7. Defense of Third Party Claims. Should any legal
-----------------------------
proceeding be instituted against the Indemnitee by a third party for
which the Indemnitee is entitled to indemnification under this
Agreement (a "Third Party Claim"), the obligations and liabilities of
the parties hereunder with respect to such Third Party Claim shall be
subject to the following terms and conditions:
(a) The Indemnitee shall give the Indemnitor written notice
of any such claim promptly after receipt by the Indemnitee of notice
thereof, and the Indemnitor may undertake the defense thereof by
representatives of its own choosing reasonably acceptable to the
Indemnitee. If the Indemnitee desires to participate in, but not
control, any such defense, it may do so at its own cost and expense.
If, however, the Indemnitor fails or refuses to undertake the defense
of such claim within ten (10) days after written notice of such claim
has been given to the Indemnitor by the Indemnitee, the Indemnitee
shall have the right to undertake the defense, and, subject to Section
13.7(b) below, settlement of such claim with counsel of its own
choosing. In the circumstances described in the preceding sentence,
the Indemnitee shall, promptly upon its assumption of the defense of
such claim, provide notice as specified in Section 13.6 which
<PAGE>
<PAGE>
shall be deemed a claim for indemnification that is not a Third Party
Claim for the purposes of the procedures set forth herein.
(b) No settlement of a Third Party Claim involving the
asserted liability of the Indemnitor under this Article XIII shall be
made without the prior written consent by or on behalf of the
Indemnitor, which consent shall not be unreasonably withheld or
delayed.
13.8. Exclusive Remedy. Except as otherwise described
----------------
in Section 14.2, the exclusive remedy available to a party hereto in
respect of the matters covered by Section 13.1 or Section 13.2 hereof
shall be to proceed in the manner and subject to the limitations con-
tained in this Article XIII.
<PAGE>
<PAGE>
ARTICLE XIV.
TERMINATION
14.1. Termination. This Agreement may be terminated:
-----------
(a) by the written agreement of the Purchasers and the
Seller;
(b) by either the Purchasers or the Seller if there
shall be in effect a non-appealable order of a court of competent
jurisdiction permanently prohibiting the consummation of the
transactions contemplated hereby;
(c) by either the Purchasers or the Seller if the
Closing shall not have occurred on or before May 31, 1996; and
(d) by the Purchasers if any condemnation, destruction
or loss due to fire or other casualty from the date hereof until
the Closing Date is such that the Business is materially
interrupted or curtailed or the Assets are materially affected;
provided that if the Purchasers nonetheless elect to close, the
Seller shall remit or assign the Seller's rights to all net
condemnation proceeds or third party insurance proceeds to the
Purchasers, and the Seller shall have no further liability or
obligations with respect to such condemnation, destruction or
loss.
14.2. Liabilities After Termination. Upon any
-----------------------------
termination of this Agreement pursuant to Section 14.1 above, no party
hereto shall thereafter have any further liability or obligation
hereunder other than the Purchasers' obligations pursuant to Section
7.2 hereof, but no such termination shall relieve either party hereto
of any liability to the other party hereto for any breach of this
Agreement prior to the date of such termination and each party hereto
shall have all rights at law or in equity, against the other based
upon such breach, including, without limitation, the right to seek
specific performance.
<PAGE>
<PAGE>
ARTICLE XV.
MISCELLANEOUS
15.1. Definitions. As used in this Agreement, the
-----------
following terms have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms
defined):
"Accounts Receivable" has the meaning set forth in Section
-------------------
1.1(c) hereof.
"Arbitrator" has the meaning set forth in Section 2.2(d)
----------
hereof.
"Assets" has the meaning set forth in Section 1.1 hereof.
------
"Assignment and Assumption Agreement" has the meaning set
-----------------------------------
forth in Section 3.3(b) hereof.
"Assumed Liabilities" has the meaning set forth in Section
-------------------
1.3 hereof.
"Beneficiaries" has the meaning set forth in Section 4.11(a)
-------------
hereof.
"Benefit Arrangement" means each employment or severance
-------------------
contract or arrangement providing for insurance coverage, severance,
termination or similar coverage and all written compensation policies
and practices maintained by the Seller covering any Employee or former
Employee of the Business.
"Business" has the meaning set forth in the recitals hereof.
--------
"Closing" means the consummation of the transactions
-------
contemplated by this Agreement.
"Closing Balance Sheet" has the meaning set forth in Section
---------------------
2.2(a) hereof.
"Closing Date" has the meaning set forth in Section 3.1
------------
hereof.
"Code" means the Internal Revenue Code of 1986, as amended.
----
<PAGE>
<PAGE>
"Company Software" has the meaning set forth in Section
----------------
4.9(d) hereof.
"Confidentiality Agreement" has the meaning set forth in
-------------------------
Section 6.2 hereof.
"Contract" means any contract, agreement, indenture, note,
--------
bond, loan, instrument, lease, conditional sale contract, mortgage,
license, franchise, insurance policy, commitment or other arrangement
or agreement.
"Covered by the Seller's Insurance Policies" means pursuant
------------------------------------------
to the provisions of the Seller's insurance policies, including
deductibles, self-insured retentions and covered losses in excess of
policy limits.
"Damages" means any and all direct or indirect demands,
-------
claims, payments, obligations, recoveries, deficiencies, fines,
penalties, interest, assessments, actions, causes of action, suits,
losses, liabilities, costs, expenses (including without limitation,
(i) interest, penalties and reasonable attorneys' fees and expenses,
(ii) reasonable attorneys' fees and expenses necessary to enforce
rights to indemnification hereunder, and (iii) consultant's fees and
other costs of defense or investigation), and interest on any amount
payable to a third party as a result of the foregoing.
"Deed" has the meaning set forth in Section 3.3(j) hereof.
----
"Division" has the meaning set forth in the recitals hereof.
--------
"Employee Benefit Plans" has the meaning set forth in
----------------------
Section 4.11(a) hereof.
"Employees" means all persons employed in the Business on
---------
the day immediately prior to the Closing Date, including any persons
on disability, sick leave, layoff or leave of absence from the
Business.
"Environmental Costs and Liabilities" shall mean any Damages
-----------------------------------
or Losses (including without limitation, fees, disbursements, fees and
expenses of legal counsel, experts, engineers or consultants and the
costs of investigation and feasibility studies, remedial or removal
actions, cleanup activities or other corrective action measures
necessary to bring the facilities into compliance with Laws) arising
from, under or
<PAGE>
<PAGE>
pursuant to Environmental Laws or order or contract with any
Governmental Authority or Person, including without limitation, any
obligation to investigate, remediate or otherwise address Hazardous
Substance.
"Environmental Laws" means any applicable code, law, order,
------------------
ordinance, regulation, rule or statute of any Governmental Authority
relating to pollution or protection of human health or the environment
(including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata), including, without
limitation, the Comprehensive Environmental Response Compensation and
Liability Act, as amended, 42 U.S.C. 9601 et seq. ("CERCLA"), the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6901 et
seq. ("RCRA"), and other Laws relating to emissions, discharges,
releases or threatened releases of any Hazardous Substance, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of any Hazardous
Substance; but excluding any Laws relating to occupational health and
safety.
"Environmental Litigation" means any Proceeding against the
------------------------
Seller with respect to the Business or the Assets (including, without
limitation, written notice or other written communication by any
Person alleging potential liability for investigatory costs, cleanup
costs, private or governmental response or remedial costs, natural
resources damages, property damages, personal injuries, or penalties)
arising out of, based upon, or resulting from any circumstances or
state of facts forming the basis of any liability or alleged liability
under, or violation or alleged violation of, any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
-----
1974, as amended.
"Excess Lancaster Inventory" means Inventory at the
--------------------------
Lancaster, Pennsylvania facility the carrying value of which is in
excess of $2,051,472.
"Excluded Assets" has the meaning set forth in Section 1.2
---------------
hereof.
"Excluded Liabilities" has the meaning set forth in Section
--------------------
1.4 hereof.
"FDA" has the meaning set forth in Section 4.18 hereof.
---
"Final Net Assets Adjustment" has the meaning set forth in
---------------------------
Section 2.2(d) hereof.
<PAGE>
<PAGE>
"Financial Statements" has the meaning set forth in Section
--------------------
4.6 hereof.
"GAAP" means generally accepted accounting principles in the
----
United States.
"Governmental Authority" means any federal, state, county,
----------------------
local, foreign or other governmental or public agency,
instrumentality, commission, authority, grand jury, official, board or
body having jurisdiction over the Real Property or the operations
conducted thereon.
"Governmental Body" means any government or governmental or
-----------------
regulatory body thereof, or political subdivision thereof, whether
federal, state, local or foreign, or any agency or instrumentality
thereof, or any court or arbitrator (public or private).
"Government Contracts" has the meaning set forth in Section
--------------------
12.1 hereof.
"Hazardous Substance" means (i) any hazardous substance,
-------------------
hazardous material, hazardous waste, regulated substance or toxic
substance (as those terms are defined by any applicable Environmental
Laws) and (ii) any chemicals, pollutants, or contaminants regulated
under or pursuant to Environmental Law or (iii) petroleum, petroleum
products, or oil.
"HSR Act" has the meaning set forth in Section 4.5 hereof.
-------
"Indemnitee" has the meaning set forth in Section 13.6
----------
hereof.
"Indemnitor" has the meaning set forth in Section 13.6
----------
hereof.
"Initial Balance Sheet" means the audited statement of net
---------------------
assets to be sold of the Business at December 31, 1995 and attached
hereto as part of Schedule 4.6.
"Intangible Assets" has the meaning set forth in Section
-----------------
1.1(e) hereof.
"Interest" has the meaning set forth in Section 6.4 hereof.
---------
<PAGE>
<PAGE>
"Inventory" has the meaning set forth in Section 1.1(b)
---------
hereof.
"Known Environmental Condition" means any environmental
-----------------------------
condition related to or otherwise attributable to the soil and ground
water contamination at the Location, as disclosed by the Seller in the
environmental materials made available to the Purchasers during the
diligence process, including, without limitation, the Site
Investigation Work Plan, Site Investigation Report and the Work Plan
for Soil Remediation prepared for Suffolk County Department of Health
Services by Fanning, Phillips and Molnar, as well as any Phase I or
Phase II investigation undertaken by or on behalf of the Purchasers.
"Law" means any federal, state, local or foreign law
---
(including common law), statute, code, ordinance, rule, regulation or
other requirement or guideline.
"Lease Assignment" has the meaning set forth in Section
----------------
3.3(k) hereof.
"Leased Real Property" means all the Real Property leased by
--------------------
the Seller and used exclusively in the Business and set forth on
Schedule 1.1(d).
"Legal Proceeding" means any judicial, administrative or
----------------
arbitral action, suit, proceeding (public or private), claim or
governmental proceeding.
"Liabilities" has the meaning set forth in Section 1.3(i)
-----------
hereof.
"Licensed Software" has the meaning set forth in Section
-----------------
4.9(c) hereof.
"Lien" means any lien, pledge, mortgage, deed of trust,
----
security interest, claim, lease, charge, option, right of first
refusal, easement, or other real estate declaration, covenant,
condition, restriction or servitude, transfer restriction under any
shareholder or similar agreement, encumbrance or any other restriction
or limitation whatsoever.
"Location" means the property described on Schedule 15.1(a)
--------
hereto.
"Material Adverse Effect" means any material adverse effect
-----------------------
on, or any effect that results in a material adverse change in, the
Assets as a whole or the business, financial
<PAGE>
<PAGE>
condition, results of operations or liabilities of the Business, as a
whole.
"Net Assets" has the meaning set forth in Section 2.2(b)
----------
hereof.
"Order" means any order, injunction, judgment, decree,
-----
ruling, writ, assessment or arbitration award.
"Owned Real Property" means all the Real Property owned in
-------------------
fee or otherwise by the Seller and used principally by the Business
and set forth on Schedule 1.1(d).
"Owned Software" has the meaning set forth in Section 4.9(b)
--------------
hereof.
"Parent" has the meaning set forth in the recitals hereof.
------
"Permit" means any written approval, authorization, consent,
------
franchise, license, permit or certificate by any Governmental Body.
"Permitted Exceptions" means (i) 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; (ii) mechanics', carriers', workers',
repairers' and similar Liens arising or incurred in the ordinary
course of business that are not in the aggregate material to the
Business or the Assets; (iii) zoning, entitlement and other land use
and environmental regulations by Governmental Bodies, provided that
such regulations have not been violated; (iv) such other imperfections
in title, charges, easements, restrictions and encumbrances which are
immaterial to the conduct of the Business; (vi) such exceptions
described on Schedule 15.1(b) hereto; and (vii) such state of facts as
would be shown on an accurate survey of each parcel of Real Property,
provided that such state of facts do not materially restrict, inhibit
or limit the present use of any such Real Property.
"Person" means any individual, corporation, partnership,
------
firm, joint venture, association, joint-stock company, trust,
unincorporated organization or Governmental Body.
"Plan Employees" has the meaning set forth in Section
--------------
4.11(a) hereof.
"Preliminary Net Assets Adjustment" has the meaning set
---------------------------------
forth in Section 2.2(b) hereof.
<PAGE>
<PAGE>
"Proceedings" has the meaning set forth in Section 4.12
-----------
hereof.
"Purchase Price" has the meaning set forth in Section 2.1
--------------
hereof.
"Purchasers" has the meaning set forth in the recitals
----------
hereof.
"Purchasers' Documents" has the meaning set forth in Section
---------------------
5.2 hereof.
"Purchasers' Representatives" has the meaning set forth in
---------------------------
Section 6.2 hereof.
"Real Property" has the meaning set forth in Section 1.1(d)
-------------
hereof.
"Seller" has the meaning set forth in the recitals hereof.
------
"Seller Documents" has the meaning set forth in Section 4.2
----------------
hereof.
"SMDA" has the meaning set forth in Section 4.18 hereof.
----
"Smith Barney" has the meaning set forth in Section 4.16
------------
hereof.
"Survival Period" has the meaning set forth in Section 13.5
---------------
hereof.
"Taxes" or "Tax" means all taxes, fees, charges, or other
----- ---
amounts, however denominated, including any interest or penalties
thereon or with respect thereto, imposed by any federal, state, local
or foreign government or agency or political subdivision of any such
government, including, without limitation, income, payroll,
withholding, unemployment insurance, social security, sales and use,
excise, franchise, gross receipts, real and personal property transfer
and other similar taxes and obligations.
"Tax Return" means any return, declaration, report, claim
----------
for refund, information return, statement or other similar document
relating to Taxes, including any schedule or attachment thereto, and
including any amendment thereof.
<PAGE>
<PAGE>
"Threshold Amount" has the meaning set forth in Section 13.4
----------------
hereof.
"Transferred Employees" means all Employees who receive and
---------------------
accept offers of employment from the Purchasers on or after the
Closing Date.
"WARN Act" has the meaning set forth in Section 4.11(k)
--------
hereof.
"W&P Assignment" has the meaning set forth in Section 3.3(l)
--------------
hereof.
"Welfare Plan" has the meaning set forth in Section 8.3(a)
------------
hereof.
15.2. Knowledge. As used in this Agreement, the terms
---------
"to the Seller's knowledge" and "to the knowledge of the Seller," or
words to that effect, shall refer to matters of which any person on
Schedule 15.2 has actual knowledge.
15.3. Prorations. The Purchasers and the Seller hereby
----------
agree as follows with regard to prorations applicable to the
consummation of the transactions contemplated hereby. The parties
agree that all operational expenses incurred directly in the operation
of the Business, including, without limitation, utility bills, the
expense of supplies, the expense of fuel, and the like, shall be
prorated between the parties as of the Closing Date, and as of such
date shall become the obligation and responsibility of the Purchasers.
Prorations which are to be effected on the Closing Date shall be made
on the Closing Date or, if such prorations cannot reasonably be made
as of the Closing Date, as soon thereafter as possible and "as of" the
Closing Date. In addition, all pre-paid expenses shall be prorated
between the parties as of the Closing Date. The Purchasers, as of the
Closing Date, shall pay such amounts as may be required to replace all
deposits held with the suppliers of utilities to the Business, and to
assist the Seller as may be reasonably required in obtaining a return
of such deposits put in place by the Seller as of the Closing Date.
All personal and real property taxes and special and general
assessments relating to the Assets shall be prorated by the parties as
of the Closing Date, and all such taxes applicable to periods of time
prior to the Closing Date shall be the sole obligation, responsibility
and expense of the Seller, and shall be paid by the Seller. All such
assessments and taxes applicable
<PAGE>
<PAGE>
to periods following the Closing Date shall be the sole obligation,
responsibility and expense of the Purchasers.
15.4. Waiver of Compliance with Bulk Transfer Laws. The
--------------------------------------------
Purchasers hereby waive compliance by the Seller with the provisions
of the bulk transfer laws of any jurisdiction in connection with the
transactions contemplated by this Agreement.
15.5. Entire Agreement. This Agreement (with its
----------------
Schedules and Exhibits) contains, and is intended as, a complete
statement of all of the terms and the arrangements between the parties
hereto with respect to the matters provided for herein, and supersedes
any and all previous agreements and understandings between the parties
hereto with respect to those matters.
15.6. Governing Law. This Agreement shall be governed
-------------
by and construed in accordance with the law of the State of New York.
15.7. Transfer Taxes. The Seller shall pay (a) all
--------------
transfer and documentary taxes and fees imposed with respect to
instruments of conveyance in the transaction contemplated hereby and
(b) all sales, use, gains, excise and other transfer or similar taxes
on the transfer of the Assets contemplated hereunder. The Purchasers
and the Seller shall cooperate with one another in promptly making any
filings in connection with any such taxes. The Purchasers shall pay
all costs of any title insurance coverage or endorsements that the
Purchasers elects to obtain. The Purchasers or the Seller, as the
case may be, shall execute and deliver to the other at the Closing any
certificates or other documents as the other may reasonably request to
perfect any exemption from any such transfer, documentary, sales,
gains, excise or use tax.
15.8. Expenses. Each of the parties hereto shall bear
--------
its own expenses (including, without limitation, fees and
disbursements of its counsel, accountants and other experts), incurred
by it in connection with the preparation, negotiation, execution,
delivery and performance of this Agreement, each of the other
documents and instruments executed in connection with or contemplated
by this Agreement and the consummation of the transactions
contemplated hereby and thereby.
15.9. Table of Contents and Headings. The table of
------------------------------
contents and section headings of this Agreement are for reference
purposes only and are to be given no effect in the construction or
interpretation of this Agreement.
<PAGE>
<PAGE>
15.10. Notices. All notices and other communications
-------
under this Agreement shall be in writing and shall be deemed given
when delivered personally or four days after being mailed by register-
ed mail, return receipt requested, to a party at the following address
(or to such other address as such party may have specified by notice
given to the other party pursuant to this provision):
If to the Seller, to:
Lumex, Inc.
81 Spence Street
Bay Shore, New York 11706
Telephone: (516) 273-2200
Facsimile: (516) 273-1706
Attention: Robert McNally
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
Attention: Jeffrey J. Weinberg, Esq.
If to the Purchasers, to:
Fuqua Enterprises, Inc.
One Atlantic Center
Suite 5000
1201 West Peachtree Street
Atlanta, Georgia 30309
Telephone: (404) 815-2000
Facsimile: (404) 815-4529
Attention: Brady W. Mullinax, Jr.
with a copy to:
Alston & Bird
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Telephone: (404) 881-7000
Facsimile: (404) 881-7777
Attention: Bryan E. Davis, Esq.
<PAGE>
<PAGE>
15.11. Severability. The invalidity or unenforceability
------------
of any provision of this Agreement shall not affect the validly or
enforceability of any other provision of this Agreement, each of which
shall remain in full force and effect.
15.12. Binding Effect; No Assignment. This Agreement
-----------------------------
shall be binding upon and inure to the benefit of the parties and
their respective successors and assigns. Nothing in this Agreement
shall create or be deemed to create any third party beneficiary rights
in any person or entity not party to this Agreement. This Agreement
shall not be assignable by any of the parties hereto without the
written consent of the other parties hereto. Notwithstanding the
foregoing, each of the Purchasers may, without the consent of the
other parties hereto, assign and delegate its obligations and rights
hereunder with respect to all of the Assets and Business or any part
thereof to (i) any affiliated company of either of the Purchasers,
(ii) any successor of all or substantially all of either of the
Purchasers' or Parent's business by way of merger, consolidation,
liquidation, purchase of assets of the Purchasers or Parent or other
form of acquisition or other form of reorganization, and (iii) any
lender of the Purchasers or Parent as collateral, but no such
assignment shall relieve the Purchasers or Parent of their obligations
hereunder.
15.13. Amendments. This Agreement may be amended,
----------
supplemented or modified, and any provision hereof may be waived, only
pursuant to a written instrument making specific reference to this
Agreement signed by each of the parties hereto.
15.14. Guarantee. In order to induce the Seller to enter
---------
into this Agreement, Parent hereby guarantees the performance by the
Purchasers of all of their obligations under this Agreement, including
any obligation to pay damages incurred by the Seller as a consequence
of breach of this Agreement by either of the Purchasers.
15.15. Counterparts. This Agreement may be executed in
------------
any number of counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this
instrument as of the date and year first above written.
LUMEX, INC.
By: /s/ J. Raymond Elliott
------------------------------------------
Name: J. Raymond Elliott
Title: President & CEO
MUL ACQUISITION CORP. I
By: /s/ L. P. Klamon
------------------------------------------
Name: L. P. Klamon
Title: President
MUL ACQUISITION CORP. II
By: /s/ L. P. Klamon
------------------------------------------
Name: L. P. Klamon
Title: President
FUQUA ENTERPRISES, INC.
By: /s/ L. P. Klamon
------------------------------------------
Name: L. P. Klamon
Title: President
