EXHIBIT 10(r)
ASSET PURCHASE AGREEMENT
Dated June 8, 2000
By and Between
TYCO INTERNATIONAL (US) INC.,
LUDLOW BUILDING PRODUCTS, INC.
as Buyer
TYCO PLASTICS SERVICES AG
as IP Buyer
and
K2 INC.,
as Seller
TABLE OF CONTENTS
Page 1.
AGREEMENT TO SELL AND AGREEMENT TO PURCHASE.
1
1.1
ASSETS TO BE CONVEYED
1
1.2
EXCLUDED ASSETS
3
1.3
FURTHER ASSURANCES
3 2.
CONSIDERATION TO BE PAID BY BUYER.
3
2.1
PURCHASE PRICE FOR ACQUISITION ASSETS
3
2.2
ADJUSTMENT TO PURCHASE
PRICE
4
2.3
ASSUMED LIABILITIES
5
2.4
LIABILITIES NOT ASSUMED
BY BUYER
7
2.5
ALLOCATION OF PURCHASE PRICE
8 3.
REPRESENTATIONS
AND WARRANTIES OF SELLER.
8
3.1
ORGANIZATION AND GOOD STANDING
8
3.2
AUTHORIZATION OF AGREEMENT
8
3.3
OWNERSHIP OF ACQUISITION ASSETS
OWNERSHIP OF ACQUISITION ASSETS
9
3.4.
FINANCIAL CONDITION
9
3.5
PROPERTY OF SELLER
10
3.6
AGREEMENT NOT IN BREACH OF OTHER
INSTRUMENTS
12
3.7
LABOR AND EMPLOYMENT MATTERS; PENSION AND EMPLOYEE
BENEFIT PLANS
12
3.8
LITIGATION AND COMPLIANCE WITH LAWS
14
3.9
CONTRACTS AND OTHER INSTRUMENTS
15
3.10
COMPENSATION OF AND
INDEBTEDNESS TO AND FROM OFFICERS
16
3.11
INSURANCE
16
3.12
BROKERAGE
17
3.13
KNOWLEDGE
17
3.14
TAXES
17
3.15
PRODUCT LIABILITY AND RECALLS
18
3.16
UNDISCLOSED LIABILITIES
18
3.17
RESTRICTIONS ON BUSINESS ACTIVITIES
18
3.18
NO ILLEGAL OR
IMPROPER TRANSACTIONS
18
3.19
INVENTORY
18
3.20
NO IMPLIED
WARRANTIES
18 4.
REPRESENTATIONS AND WARRANTIES OF BUYER.
19
4.1
ORGANIZATION; GOOD STANDING; AND CORPORATE AUTHORITY
19
4.2
AGREEMENT
NOT IN BREACH OF OTHER INSTRUMENTS
19
4.3
REGULATORY APPROVALS
19
i
Table of Contents
(Continued)
Page
4.4
BROKERAGE
19
4.5
SUFFICIENT FUNDS
20
4.6
RELIANCE ON REPRESENTATIONS AND WARRANTIES
20 5.
CLOSING.
20
6.
CERTAIN UNDERSTANDINGS AND AGREEMENTS OF THE PARTIES.
20
6.1
ACCESS
20
6.2
CONFIDENTIALITY AND PUBLIC ANNOUNCEMENTS
21
6.3
CONDUCT OF BUSINESS OF DIVISION
21
6.4
PRESERVATION OF ORGANIZATION
22
6.5
CURRENT INFORMATION
22
6.6
CONTRACTS
22
6.7
COMPLETION OF TRANSACTION; HART-SCOTT-RODINO
22
6.8
ACCOUNTS RECEIVABLE
22
6.9
CONDITION TO TRANSFER OF CERTAIN CONTRACTS
23
6.10
WAIVER OF COMPLIANCE WITH BULK SALES LAWS
23
6.11
EMPLOYEES
23
6.12
TAXES
24
6.13
COVENANT NOT TO COMPETE
24
6.14
COOPERATION WITH LITIGATION
24
6.15
PRODUCT CLAIMS
25 7.
CONDITIONS TO OBLIGATIONS OF SELLER.
25
7.1
CORRECTNESS OF
REPRESENTATIONS AND WARRANTIES
25
7.2
PERFORMANCE OF COVENANTS AND
AGREEMENTS
25
7.3
OPINION OF COUNSEL FOR BUYER
25
7.4
ADDITIONAL CLOSING DOCUMENTS
25
7.5
NO LEGAL BAR
26
7.6
HSR
EXPIRATION/TERMINATION
26
7.7
MICHIGAN DEPARTMENT OF ENVIRONMENTAL
QUALITY, WASTE MANAGEMENT DIVISION APPROVAL
26 8.
CONDITIONS TO
OBLIGATIONS OF BUYER.
26
8.1
CORRECTNESS OF REPRESENTATIONS AND
WARRANTIES
26
8.2
PERFORMANCE OF COVENANTS AND AGREEMENTS
26
8.3
OPINION OF COUNSEL FOR SELLER
26
8.4
NO LEGAL BAR
26
8.5
TRANSFER DOCUMENTS
27
8.6
HSR EXPIRATION/TERMINATION
27 9.
SURVIVAL; INDEMNIFICATION.
27
9.1
SURVIVAL
27
9.2
INDEMNIFICATION BY SELLER
27
ii
Table of Contents
(Continued)
Page
9.3
INDEMNIFICATION BY BUYER
27
9.4
GENERAL
INDEMNIFICATION LIMITATIONS; REMEDIATION
28
9.5
NOTICE OF CLAIMS
28
9.6
THIRD PARTY CLAIMS
29
9.7
PAYMENTS
29
9.8
REMEDIES
EXCLUSIVE