EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
GROVE INVESTORS, INC.,
THE MANITOWOC COMPANY, INC.
AND
GIRAFFE ACQUISITION, INC.
MARCH 18, 2002
TABLE OF CONTENTS
-----------------
ARTICLE I THE MERGER; EFFECTIVE TIME; CLOSING...........................1
1.1 The Merger...........................................1
1.2 Effective Time.......................................2
1.3 Closing..............................................2
ARTICLE II CERTIFICATE OF INCORPORATION AND BY-LAWS
OF THE SURVIVING CORPORATION................................. 2
2.1 Certificate of Incorporation....................... 2
2.2 By-laws............................................. 2
ARTICLE IIIDIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION.......... 3
3.1 Directors.......................................... 3
3.2 Officers........................................... 3
ARTICLE IV MERGER CONSIDERATION; CONVERSION OF SHARES.................. 3
4.1 Merger Consideration............................... 3
4.2 Exchange of Certificates........................... 5
4.3 Options and Restricted Stock....................... 8
4.4 Stock Transfer Books............................... 9
ARTICLE V REPRESENTATIONS AND WARRANTIESOF THE COMPANY................ 9
5.1 Organization....................................... 10
5.2 Authorization; Validity of Agreement............. 10
5.3 Capitalization..................................... 11
5.4 Consents and Approvals; No Violations ............ 11
5.5 Financial Statements............................... 12
5.6 No Undisclosed Liabilities; Borrowed Money
Indebtedness. .................................. 13
5.7 Absence of Certain Changes......................... 13
5.8 Employee Benefit Plans; ERISA...................... 15
5.9 Litigation......................................... 16
5.10 No Default;Compliance with Applicable Laws.........16
5.11 Taxes......................................... 17
5.12 Personal Property............................. 18
5.13 Intellectual Property......................... 18
5.14 Environmental Laws and Regulations............ 19
5.15 Contracts .................................... 21
5.16 Real Property................................. 22
5.17 Labor Matters................................. 23
5.18 Required Vote of Company Stockholders......... 23
5.19 Registration Statement; Proxy
Statement/Prospectus........................ 23
5.20 Reorganization................................ 24
5.21 Insurance..................................... 24
5.22 Product Matters............................... 24
5.23 Brokers or Finders............................ 24
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF ACQUIROR AND MERGER SUB 25
6.1 Organization....................................... 25
6.2 Authorization; Validity of Agreement............... 26
6.3 Capitalization..................................... 26
6.4 Consents and Approvals; No Violations...............27
6.5 Reports.............................................28
6.6 No Undisclosed Liabilities......................... 28
6.7 Absence of Certain Changes......................... 29
6.8 Litigation......................................... 30
6.9 No Default; Compliance with Applicable Laws........ 30
6.10 Environmental Laws and Regulations.................30
6.11 Contracts......................................... 31
6.12 Registration Statement; Proxy Statement/Prospectus.31
6.13 Merger Sub's Operations............................32
6.14 Reorganization.....................................32
6.15 Required Vote of Acquiror..........................32
6.16 Financing..........................................32
6.17 Brokers or Finders................................ 32
ARTICLE VIICOVENANTS RELATING TO THE CONDUCT OF BUSINESS OF THE
COMPANY.................................................... 32
7.1 Interim Operations of the Company.................. 32
ARTICLE VIII COVENANTS RELATING TO CONDUCT OFBUSINESS OF ACQUIROR.....35
8.1 Interim Operations of Acquiror.................. 35
ARTICLE IX ADDITIONAL AGREEMENTS ..................................... 36
9.1 Access and Information; Confidentiality. ........ 36
9.2 Meeting of Stockholders. ........................ 37
9.3 Registration Statement; Proxy Statement.............38
9.4 Appropriate Action; Consents; Filings...............39
9.5 Public Announcements............................... 40
9.6 Stock Exchange Listing............................. 41
9.7 Employee Benefit Plans............................. 41
9.8 Indemnification of Directors and Officers;
Directors & Officers Insurance................... 42
9.9 Event Notices...................................... 44
9.10 Conveyance Taxes.............................. 44
9.11 No Solicitation................................44
9.12 Affiliates. ................................ 47
9.13 No Implied Representations or Warranties;
Investigation. ......................... 47
9.14 Tax-Free Merger............................ 48
9.15 Lenders Consent ............................ 48
ARTICLE X CLOSING CONDITIONS ........................... 48
10.1 Conditions to Obligations of Each Party Under
This Agreement. ........................... 48
10.2 Additional Conditions to Obligations of the
Acquiror Companies........................ 49
10.3 Additional Conditions to Obligations of the
Company................................... 50
ARTICLE XI TERMINATION, AMENDMENT AND EXPENSES............51
11.1 Termination................................. 51
11.2 Effect of Termination. ...................... 53
11.3 Amendment. ................................ 53
11.4 Waiver. ..................................... 53
11.5 Fees and Expenses............................ 53
ARTICLE XIIGENERAL PROVISIONS.......................................... 56
12.1 Interpretation. ........................... 56
12.2 Termination of Representations and
Warranties. .............................. 57
12.3 Notices. ................................ 57
12.4 Headings. ................................ 58
12.5 Severability. ........................... 58
12.6 Entire Agreement. ........................... 59
12.7 Assignment. ................................ 59
12.8 Parties in Interest........................... 59
12.9 Failure or Indulgence Not Waiver; Remedies
Cumulative ............................. 59
12.10 Governing Law ................................ 59
12.11 Counterparts ................................ 59
Exhibit A Form of Affiliate Letter
Exhibit B Form of Registration Rights Agreement
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated
as of March 18, 2002, by and among Grove Investors, Inc., a Delaware
corporation (the "Company"), The Manitowoc Company, Inc., a Wisconsin
corporation ("Acquiror"), and Giraffe Acquisition, Inc., a Delaware
corporation and a direct wholly-owned subsidiary of Acquiror ("Merger
Sub").
WHEREAS, the boards of directors of the Company, Acquiror
and Merger Sub each have determined that it is advisable and in the
best interests of their respective companies and stockholders to enter
into a business combination by means of the merger of Merger Sub with
and into the Company (the "Merger") upon the terms and subject to the
conditions set forth herein;
WHEREAS, for federal income tax purposes, it is intended
that the Merger shall qualify as a reorganization within the meaning
of Section 368(a) of the Internal Revenue Code of 1986, as amended
(the "Code"); and
WHEREAS, the parties desire to make certain representations,
warranties, covenants and agreements in connection with the Merger.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set
forth herein, and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
ARTICLE I
THE MERGER; EFFECTIVE TIME; CLOSING{tc \l1 " ARTICLE I
THE MERGER; EFFECTIVE TIME; CLOSING}
I.1 The Merger. {tc \l2 " I.1 The Merger. }Upon the terms
and subject to the conditions set forth in this Agreement, and in
accordance with the General Corporation Law of the State of Delaware
(the "DGCL"), at the Effective Time (as defined herein), Merger Sub
and the Company shall consummate the Merger in which (a) Merger Sub
shall be merged with and into the Company and the separate corporate
existence of Merger Sub shall thereupon cease, (b) the Company shall
be the successor or surviving corporation (the "Surviving
Corporation") in the Merger and shall be governed by the laws of the
State of Delaware and (c) the separate corporate existence of the
Company with all its rights, privileges, immunities, powers and
franchises shall continue unaffected by the Merger, and the Surviving
Corporation shall succeed to and assume all of the rights and
obligations of Merger Sub. The Merger shall have the effects set
forth in the DGCL.
I.2 Effective Time. {tc \l2 " I.2 Effective Time.
}Merger Sub and the Company shall cause a certificate of merger (the
"Certificate of Merger") to be filed on the Closing Date (as defined
herein) (or on such other date as the Company and Acquiror may agree
in writing) with the Secretary of State of the State of Delaware as
provided in the DGCL, and shall make all other filings or recordings
required by the DGCL in connection with the Merger. The Merger shall
become effective at such time as the Certificate of Merger is duly
filed with the Secretary of State of the State of Delaware or such
later time as is specified in the Certificate of Merger (such time
being, the "Effective Time").
I.3 Closing. {tc \l2 " I.3 Closing. }The closing of
the Merger (the "Closing") shall take place (a) at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), 000 Xxxx Xxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx at 10:00 a.m., local time, on the second
business day following the date on which the last of the conditions
set forth in Article X hereof shall be fulfilled or waived in
accordance with this Agreement (other than conditions that can only be
satisfied at the Closing, but subject to the satisfaction of such
conditions at the Closing) or (b) at such other place, time and date
as the Company and Acquiror may agree in writing (the date of the
Closing being, the "Closing Date").
ARTICLE II
CERTIFICATE OF INCORPORATION AND BY-LAWS
OF THE SURVIVING CORPORATION{tc \l1 " ARTICLE II
CERTIFICATE OF INCORPORATION AND BY-LAWS OF THE
SURVIVING CORPORATION}
II.1 Certificate of Incorporation. {tc \l2 " II.1
Certificate of Incorporation. }The certificate of incorporation
of Merger Sub in effect immediately prior to the Effective Time shall
be the certificate of incorporation of the Surviving Corporation (the
"Certificate of Incorporation") until further amended in accordance
with its terms and as provided by applicable Law (as defined herein),
except that, as of the Effective Time, Article 1 of such Certificate
of Incorporation shall be amended to read as follows: "The name of
the Corporation is Grove Investors, Inc.".
II.2 By-laws. {tc \l2 " II.2 By-laws. }The by-laws of
Merger Sub in effect immediately prior to the Effective Time shall be
the by-laws of the Surviving Corporation (the "By-laws") until
amended in accordance with their terms and as provided by applicable
Law, except that, as of the Effective Time, such By-laws shall be
amended as necessary to reflect that the name of the Corporation is
"Grove Investors, Inc.".
ARTICLE III
DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION{tc \l1 "
ARTICLE III DIRECTORS AND OFFICERS OF
THE SURVIVING CORPORATION}
III.1 Directors. {tc \l2 " III.1 Directors. }The directors
of Merger Sub immediately prior to the Effective Time shall be the
initial directors of the Surviving Corporation, each to hold office
until their respective successors have been duly elected or appointed
and qualified or until their earlier death, resignation or removal in
accordance with the Certificate of Incorporation and By-laws.
III.2 Officers. {tc \l2 " III.2 Officers. }The officers of
Merger Sub immediately prior to the Effective Time shall be the
initial officers of the Surviving Corporation, each to hold office
until their respective successors have been duly elected or appointed
and qualified or until their earlier death, resignation or removal in
accordance with the Certificate of Incorporation and By-laws.
ARTICLE IV
MERGER CONSIDERATION;
CONVERSION OF SHARES{tc \l1 " ARTICLE IV
MERGER CONSIDERATION; CONVERSION OF SHARES}
IV.1 Merger Consideration. {tc \l2 " IV.1 Merger
Consideration. }At the Effective Time, by virtue of the Merger and
without any action on the part of the Company, Acquiror or Merger Sub
or the holders of any outstanding shares of capital stock of the
Company or Merger Sub:
(a) Conversion of Common Stock. Subject to the
provisions of this Article IV, each share of common stock of the
Company, par value $1.00 per share (the "Company Common Stock"),
issued and outstanding immediately prior to the Effective Time
(excluding shares of Company Common Stock to be cancelled pursuant to
Section 4.1(c) and any Dissenting Shares (as defined below)) shall be
converted into the right to receive, from Acquiror a number of validly
issued, fully paid and nonassessable, subject to
Section 180.0622(2)(b) of the Wisconsin Business Corporation Law (such
section, including judicial interpretations thereof, being referred to
herein as "Section 180.0622(2)(b) of the WBCL"), shares (carried out
to four decimal places and rounded up if the fifth decimal place is 5
or greater) (the "Stock Exchange Ratio") of common stock, par value
$.01 per share, including the Acquiror Rights (as defined below)
associated therewith ("Acquiror Common Stock"), of Acquiror based on
the Average Closing Sales Price for the ten (10) consecutive New York
Stock Exchange ("NYSE") trading days ending on and including the NYSE
trading day that is two NYSE trading days prior to the Effective Date
(the "Determination Period") determined as follows:
(i) if the Average Closing Sales Price for the
Determination Period is greater than $31.20 and less than $42.21, then
the Stock Exchange Ratio shall equal $14.00 divided by the Average
Closing Sales Price for the Determination Period;
(ii) if the Average Closing Sales Price for the
Determination Period is equal to or less than $31.20, then the Stock
Exchange Ratio shall equal .4487; or
(iii) if the Average Closing Sale Price for the
Determination Period is equal to or greater than $42.21, then the
Stock Exchange Ratio shall equal .3317 (the consideration for which
each share of Company Common Stock is converted being, the "Merger
Consideration").
For the purposes of this Agreement, "Average Closing Sales Price"
shall mean the average (rounded to the nearest full cent, with the
cents rounded up if the third decimal place is 5 or greater) of the
daily closing sale prices of a share of Acquiror Common Stock as
reported on the NYSE Composite Tape, as reported in The Wall Street
Journal.
(b) Cancellation of Company Common Stock. Subject to
the other provisions of this Article IV, all shares of Company Common
Stock shall, upon conversion thereof into the right to receive the
Merger Consideration at the Effective Time, cease to be outstanding
and shall automatically be cancelled and cease to exist, and each
certificate previously evidencing any such shares outstanding
immediately prior to the Effective Time (other than shares of Company
Common Stock described in Section 4.1(c) and any Dissenting Shares)
shall thereafter represent only the right to receive the Merger
Consideration and any amounts payable pursuant to Section 4.2(d). The
holders of certificates previously evidencing any such shares shall
cease to have any rights with respect to such Company Common Stock
except as otherwise provided herein or by Law.
(c) Treasury Stock. Notwithstanding any provision of
this Agreement to the contrary, each share of Company Common Stock
held in the treasury of the Company and each share of Company Common
Stock, if any, owned by Acquiror or any direct or indirect wholly-
owned subsidiary of Acquiror or of the Company immediately prior to
the Effective Time shall be cancelled and cease to exist and shall not
be converted into the right to receive the Merger Consideration.
(d) Merger Sub Stock. Each share of common stock, par
value $1.00 per share, of Merger Sub issued and outstanding
immediately prior to the Effective Time shall be converted into and
become one validly issued, fully paid and nonassessable share of
common stock, par value $1.00 per share, of the Surviving Corporation.
(e) Anti-Dilution Provisions. If between the date of
this Agreement and the Effective Time, the outstanding shares of
Acquiror Common Stock or Company Common Stock shall have been changed
into a different number of shares or a different class, by reason of
any stock dividend, reclassification, recapitalization, split,
division, combination or exchange of shares, there will be a
proportionate adjustment (to the extent appropriate) made to the Stock
Exchange Ratio to reflect such change.
IV.2 Exchange of Certificates. {tc \l2 " IV.2 Exchange
of Certificates. }
(a) Exchange Fund. At the Effective Time, Acquiror
shall deposit, or cause to be deposited, with a bank or trust company
designated by Acquiror (the "Exchange Agent"), for the benefit of the
former holders of shares of Company Common Stock, for exchange in
accordance with this Article IV through the Exchange Agent,
certificates representing shares of Acquiror Common Stock issuable
pursuant to this Article IV as of the Effective Time and cash in an
amount necessary to pay for fractional shares pursuant to Section
4.2(i), each in an aggregate amount sufficient to properly effect the
conversion of Company Common Stock in accordance with this Article IV
(such shares of Acquiror Common Stock and cash, together with any
dividends or distributions with respect thereto, being referred to as
the "Exchange Fund"). Thereafter, Acquiror shall deposit, or cause to
be deposited, with the Exchange Agent, for the benefit of any former
holders of shares of Company Common Stock who have not yet surrendered
their shares of Company Common Stock for exchange, at the appropriate
payment date, the amount of dividends or other distributions, with a
record date after the Effective Time but prior to surrender, payable
with respect to any shares of Acquiror Common Stock remaining in the
Exchange Fund on such record date. The Exchange Agent shall, pursuant
to irrevocable instructions from Acquiror, deliver cash in lieu of
fractional shares, Acquiror Common Stock and any such dividends or
distributions related to such Acquiror Common Stock in exchange for
certificates theretofore evidencing Company Common Stock surrendered
to the Exchange Agent pursuant to Section 4.2(c).
(b) Letter of Transmittal. Promptly after the Effective
Time, Acquiror shall cause the Exchange Agent to mail to each record
holder of a certificate or certificates representing shares of Company
Common Stock immediately prior to the Effective Time (the
"Certificates") whose shares are converted pursuant to Section 4.1(a)
into the right to receive the Merger Consideration (i) a letter of
transmittal for delivery of such Certificates to the Exchange Agent
and (ii) instructions for use in effecting the surrender of such
Certificates for the Merger Consideration.
(c) Exchange Procedures. Acquiror shall cause the
Exchange Agent to distribute to each former holder of shares of
Company Common Stock, upon surrender to the Exchange Agent for
cancellation of one or more Certificates, accompanied by an
appropriate letter of transmittal, cash (rounded to the nearest cent)
in lieu of fractional shares and certificates evidencing the
appropriate number of shares of Acquiror Common Stock into which such
shares of Company Common Stock were converted pursuant to the Merger
and any dividends or other distributions related to shares of Acquiror
Common Stock that such former holder of shares of Company Common Stock
is entitled to receive pursuant to the provisions of this Article IV.
(d) Distributions with Respect to Unexchanged Shares of
Company Common Stock. No dividends or other distributions declared or
made with respect to Acquiror Common Stock on or after the Effective
Time shall be paid to the holder of any Certificate that is entitled
to receive Acquiror Common Stock pursuant to Article IV until the
holder of such Certificate shall surrender such Certificate. Subject
to the effect of any escheat, tax or other applicable Laws, following
surrender of any such Certificate, there will be paid from the
Exchange Fund to the holder of the certificates evidencing shares of
Acquiror Common Stock issued in exchange for Company Common Stock,
(i) promptly, the amount of dividends or other distributions with a
record date on or after the Effective Time theretofore paid with
respect to such shares of Acquiror Common Stock, and (ii) at the
appropriate payment date, the amount of dividends or other
distributions, with a record date on or after the Effective Time but
prior to surrender and a payment date occurring after surrender,
payable with respect to such shares of Acquiror Common Stock.
(e) Termination of Exchange Fund. Any portion of the
Exchange Fund which remains unclaimed by the former holders of shares
of Company Common Stock at the second anniversary of the Effective
Time shall be delivered to Acquiror, upon demand, and any former
holders of shares of Company Common Stock who have not theretofore
complied with this Article IV shall, subject to applicable abandoned
property, escheat and other similar Laws, thereafter look only to
Acquiror for Acquiror Common Stock and any cash to which they are
entitled.
(f) Dissenting Shares. Notwithstanding anything in this
Agreement to the contrary, shares of Company Common Stock outstanding
immediately prior to the Effective Time and held by a holder who has
not voted in favor of the Merger or consented thereto in writing and
who has demanded appraisal for such shares of Company Common Stock in
accordance with the DGCL ("Dissenting Shares") shall not be converted
into a right to receive the Merger Consideration as set forth herein,
but such holder shall be entitled to receive such consideration as
shall be determined pursuant to the DGCL; provided, however, that if,
after the Effective Time, such holder fails to perfect or withdraws or
loses his right to appraisal, such shares of Company Common Stock
shall be treated as if they had converted as of the Effective Time
into a right to receive the Merger Consideration and such shares shall
no longer be Dissenting Shares.
(g) Withholding of Tax. Each of Acquiror and the
Exchange Agent shall be entitled to deduct and withhold from the
consideration otherwise payable pursuant to this Agreement to any
former holder of shares of Company Common Stock (as defined below)
such amounts as it is required to deduct and withhold with respect to
the making of such payment under the Code (as defined herein), or any
provision of state, local or foreign Tax (as defined herein) Law. To
the extent that amounts are so withheld by Acquiror or the Exchange
Agent, such withheld amounts will be treated for all purposes of this
Agreement as having been paid to the former holder of shares of
Company Common Stock in respect of whom such deduction and withholding
was made by Acquiror or the Exchange Agent, as the case may be.
(h) Lost Certificates. If any Certificate shall have
been lost, stolen or destroyed, upon the making of an affidavit of
that fact by the person claiming such certificate to be lost, stolen
or destroyed and the posting of any bond required by Acquiror in
accordance with its policies and practices, the Exchange Agent shall
issue in exchange for such lost, stolen or destroyed certificate,
Merger Consideration to which the holder may be entitled pursuant to
this Article IV and any dividends or other distributions to which the
holder thereof may be entitled pursuant to Section 4.2(d).
(i) No Fractional Shares. Notwithstanding any other
provision of this Agreement, no certificate or script representing
fractional shares of Acquiror Common Stock will be issued to any
holder of a Certificate entitled to receive a fractional share of
Acquiror Common Stock but for this Section 4.2(i). All holders of
Company Common Stock who otherwise would be entitled to receive a
fraction share of Acquiror Common Stock shall be entitled to receive
an amount in cash (rounded to the nearest cent) determined by
multiplying such fraction (rounded to the nearest hundredth of a
share) by the Average Closing Sales Price.
IV.3 Options and Restricted Stock. {tc \l2 " IV.3 Options
and Restricted Stock. }
(a) At the Effective Time, each outstanding option to
purchase Company Common Stock (a "Company Stock Option") issued
pursuant to the Grove 2001 Stock Incentive Plan (the "Company Option
Plan"), whether or not then exercisable, shall be converted into an
immediately exercisable option (an "Acquiror Option") to purchase from
Acquiror a number of shares of Acquiror Common Stock (with the result
rounded up to the nearest whole share) equal to the number of shares
of Acquiror Common Stock that equals the product of the Stock Exchange
Ratio multiplied by the number of shares of Company Common Stock
subject to such Company Stock Option immediately prior to the
Effective Time, and the option exercise price per share of Acquiror
Common Stock shall be adjusted to an amount (rounded up to the nearest
full cent) equal to the option exercise price per share of Company
Common Stock in effect immediately prior to the Effective Time divided
by the Stock Exchange Ratio.
(b) Promptly following the Closing Date, Acquiror shall
file with the Securities and Exchange Commission (the "SEC") a
Registration Statement on Form S-8 (or a post-effective amendment on
Form S-8 with respect to the Form S-4 or such other appropriate form)
covering all such shares of Acquiror Common Stock (or otherwise
provide that there is in effect a registration statement on Form S-8
covering all such shares of Acquiror Common Stock) and shall cause any
such registration statement to remain effective (and shall cause the
prospectus or prospectuses relating thereto to remain compliant with
applicable securities laws) for as long as there are outstanding any
such options to purchase shares of Acquiror Common Stock or for as
long as required under applicable securities laws.
(c) With respect to any shares of restricted stock
issued pursuant to the Company Option Plan (the "Restricted Shares")
which are no longer subject to restrictions as a result of the
occurrence of a "Section 8 Event" (as such term is defined in the
Company Option Plan), any Registration Rights Agreement (as defined
below) entered by the holder of such Restricted Shares shall contain a
provision permitting the sale of a sufficient number in the market or
otherwise of shares of Acquiror Common Stock received in the Merger in
order to fully satisfy any liabilities for any Tax (as defined below)
arising from the lapse of restrictions on such Restricted Shares, net
of any amounts previously withheld in respect of such Tax.
IV.4 Stock Transfer Books. {tc \l2 " IV.4 Stock Transfer
Books. }At the Effective Time, the stock transfer books of the
Company shall be closed and there shall be no further registration of
transfers of shares of Company Common Stock thereafter on the records
of the Company. If, after the Effective Time, Certificates are
presented to the Surviving Corporation, they shall be cancelled and
exchanged for the cash and Acquiror Common Stock to which the holder
may be entitled pursuant to this Article IV, together with any
dividends or other distributions to which the holder thereof may be
entitled pursuant to Section 4.2(d).
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY{tc \l1 " ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY}
The Company represents and warrants to Acquiror and Merger
Sub that, except as set forth in the disclosure schedules delivered by
the Company to Acquiror and Merger Sub simultaneously with the
execution of this Agreement (the "Company Disclosure Schedule") (it
being agreed and understood that (i) any matter set forth in any
section of the Company Disclosure Schedule shall be deemed disclosed
with respect to any such section of this Article V to which such
matter logically relates, so long as the description of such matter
contains sufficient facts to provide reasonable notice of the
relevance of such matter and (ii) no reference to or disclosure of any
item on the Company Disclosure Schedule shall be construed as an
admission or indication that such item or other matter is material or
that such item or other matter is required to be referred to or
disclosed on the Company Disclosure Schedule):
V.1 Organization. {tc \l2 " V.1 Organization. }
Section 5.1 of the Company Disclosure Schedule lists each Company
Subsidiary (as defined herein). Each of the Company and the Company
Subsidiaries is duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation or organization
and has all requisite power and authority to own, lease and operate
its properties and to carry on its business as it is now being
conducted, except where failure to be so existing and in good standing
or to have such power and authority would not be reasonably likely to
have a Company Material Adverse Effect (as defined below). The
Company and each of the Company Subsidiaries is duly qualified or
licensed to do business as a foreign corporation or other entity and
is in good standing in each jurisdiction in which the nature of the
business conducted by it makes such qualification or licensing
necessary, except where the failure to be so duly qualified, licensed
and in good standing would not be reasonably likely to have a Company
Material Adverse Effect. As used in this Agreement, "Company Material
Adverse Effect" means an effect that is materially adverse to the
business, financial condition or operations of the Company and the
Company Subsidiaries, taken as a whole, but shall exclude any effect
arising out of : (i) any change or development generally applicable
to the industries and markets in which the Company and the Company
Subsidiaries are involved; (ii) any change or development generally
applicable to the United States or global economic conditions; (iii)
any change or development resulting from the execution of this
Agreement, the consummation of the transactions contemplated hereby or
the public announcement hereof; or (iv) any change or development
resulting from the failure of Acquiror to consent to any of the
actions proscribed by Section 7.1.
V.2 Authorization; Validity of Agreement. {tc \l2 " V.2
Authorization; Validity of Agreement. }The Company has the
requisite corporate power and authority to execute and deliver this
Agreement, to perform all of its obligations hereunder and, subject to
obtaining any necessary approval of its stockholders as contemplated
by the provisions of this Agreement, to consummate the transactions
contemplated hereby. The execution, delivery and performance by the
Company of this Agreement, and the consummation of the transactions
contemplated hereby, have been duly authorized by the board of
directors of the Company (the "Company Board") and no other corporate
action (except any required approval of the Company's stockholders in
accordance with Delaware Law and except as otherwise set forth herein)
on the part of the Company is necessary to authorize the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by the Company and, assuming due and valid authorization,
execution and delivery hereof by Acquiror and Merger Sub, is a valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except that (i) such enforcement may be
subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws, now or hereafter in effect,
affecting creditors' rights generally and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
V.3 Capitalization. {tc \l2 " V.3 Capitalization. }
(a) As of the date hereof, the authorized capital stock
of the Company consists of 10,000,000 shares of Company Common Stock
and 10,000,000 shares of preferred stock, par value $1.00 per share
(the "Company Preferred Stock"). As of March 18, 2002, there were (i)
4,945,000 shares of Company Common Stock issued and outstanding, and
(ii) no shares of Company Preferred Stock issued and outstanding. All
the outstanding shares of Company Common Stock and Company Preferred
Stock are duly authorized, validly issued, fully paid and
nonassessable. As of March 18, 2002, (i) 263,158 shares of Company
Common Stock were reserved for issuance upon the exercise of
outstanding options, each with an exercise price of $7.92 per share,
pursuant to the Company Option Plan and (ii) 555,556 shares of Common
Stock were reserved for issuance pursuant to outstanding warrants,
277,778 of such warrants having an exercise price of $19.20 and
277,778 of such warrants having an exercise price of $24.20. Except
as set forth above, there are no existing (i) options, warrants,
calls, subscriptions or other rights, convertible securities,
agreements or commitments of any character obligating the Company to
issue, transfer or sell any shares of capital stock or other equity
interest in the Company or securities convertible into or exchangeable
for such shares or equity interests; (ii) contractual obligations of
the Company to repurchase, redeem or otherwise acquire any capital
stock of the Company or (iii) voting trusts or similar agreements to
which the Company is a party with respect to the Company Common Stock.
(b) Neither the Company nor any Company Subsidiary owns
any capital stock or other equity interest in any corporation,
partnership, trust or other business association other than the
Company Subsidiaries. The Company owns, either directly or indirectly
through one or more Company Subsidiaries, 100% of the outstanding
capital stock or other ownership interest(s) of each of the Company
Subsidiaries.
V.4 Consents and Approvals; No Violations{tc \l2 " V.4
Consents and Approvals; No Violations}. The execution and
delivery of this Agreement do not, and the consummation of the
transactions contemplated hereby and compliance with the provisions
hereof will not, result in any violation of, or default (with or
without notice or lapse of time, or both) under, or give to others a
right of termination, cancellation or acceleration of any obligation
or the loss of a material benefit under, or result in the creation of
any lien, security interest, charge or encumbrance upon any of the
properties or assets of the Company or any Company Subsidiary under,
any provision of (i) the certificate of incorporation, by-laws or
similar organizational documents of the Company or any Company
Subsidiary, (ii) any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession,
franchise or license applicable to the Company or any Company
Subsidiary or (iii) any order, writ, judgement, injunction, decree,
statute, law, ordinance, rule or regulation (collectively, "Law")
applicable to the Company, any Company Subsidiary or any of their
properties or assets, other than, in the case of clauses (ii) or
(iii), such violations, defaults, rights, liens, security interests,
charges or encumbrances the effect of any of which would not be
reasonably likely to have a Company Material Adverse Effect. No
filing or registration with, or authorization, consent or approval of,
any governmental entity or third party is required by or with respect
to the Company or any Company Subsidiary in connection with the
execution and delivery of this Agreement or is necessary for the
consummation of the Merger and the other transactions contemplated by
this Agreement, except for (i) filings pursuant to the Xxxx-Xxxxx-
Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act"),
(ii) applicable filings under non-U.S. merger control and competition
Laws, (iii) the filing of the Certificate of Merger with the Secretary
of State of the State of Delaware and appropriate documents with the
relevant authorities of other states in which the Company or any
Company Subsidiary is qualified to do business, (iv) applicable
requirements, if any, of "blue sky" Laws, and (v) such other consents,
orders, authorizations, registrations, declarations and filings the
failure of any of which to be obtained or made would not be reasonably
likely to have a Company Material Adverse Effect.
V.5 Financial Statements. {tc \l2 " V.5 Financial
Statements. } The Company has delivered or made available to Acquiror
the audited consolidated balance sheets of the Company as of September
30, 2000 and September 29, 2001 and the related audited consolidated
statements of operations, comprehensive income (loss), predecessor
equity (deficit), and cash flows of the Company for the fiscal years
ended October 2, 1999, September 30, 2000 and September 29, 2001
(collectively, the "Company Financial Statements"). The Company
Financial Statements (i) have been prepared, in all material respects,
in accordance with generally accepted accounting principles ("GAAP")
(except as otherwise noted therein), applied on a consistent basis
during the periods involved (except as therein noted), and (ii)
present fairly, in all material respects, the consolidated financial
position, results of operations and cash flows of the Company as at
their respective dates and for the periods then ended.
V.6 No Undisclosed Liabilities; Borrowed Money Indebtedness.
{tc \l2 " V.6 No Undisclosed Liabilities; Borrowed Money
Indebtedness. }
(a) Except for liabilities and obligations (i) incurred
in the ordinary course of business after September 29, 2001,
(ii) disclosed, reflected or reserved for in the Company Financial
Statements, or (iii) incurred in connection with the transactions
contemplated hereby or otherwise as contemplated by this Agreement,
there are no material liabilities or obligations of the Company or the
Company Subsidiaries that would be required to be reflected or
reserved against in a consolidated balance sheet of the Company
prepared in accordance with GAAP as applied in preparing the most
recent consolidated balance sheet of the Company included in the
Company Financial Statements.
(b) Section 5.6(b) of the Company Disclosure Schedule
lists all material Borrowed Money Indebtedness of the Company as of
the date of this Agreement. For the purpose of this Agreement,
"Borrowed Money Indebtedness" means all liabilities or obligations of
the Company or any Company Subsidiary, whether primary or secondary or
absolute or contingent: (A) for borrowed money, or (B) evidenced by
notes, bonds, debentures or similar instruments, or (C) secured by
mortgages or liens on any assets of the Company or any Company
Subsidiary, but excluding lease financings, trade financings and any
inter-company indebtedness.
V.7 Absence of Certain Changes. {tc \l2 " V.7 Absence of
Certain Changes. }Except as (i) disclosed in the Company Financial
Statements; or (ii) contemplated by this Agreement, from September 29,
2001 to the date hereof, the business of the Company and the Company
Subsidiaries has been conducted only in the ordinary course and
neither the Company nor any Company Subsidiary has:
(a) suffered any change or development constituting a
Company Material Adverse Effect;
(b) amended its certificate of incorporation, by-laws or
similar organizational documents;
(c) except for the Company Option Plan, adopted any new
employee benefit plan or amended any existing employee benefit plan to
increase benefits thereunder, except as may have been required by
applicable Law;
(d) made any increase in the compensation, salaries or
wages payable or to become payable to any employee, independent
contractor or agent of the Company or any Company Subsidiary or
granted, made or accrued any bonus or other benefit to any such
person, except for normal merit and seniority raises and bonuses in
amounts which are consistent with past practices;
(e) experienced any labor dispute or disturbance, other
than routine individual grievances which would not be reasonably
likely to have a Company Material Adverse Effect;
(f) declared, set aside or paid any dividend or other
distribution in respect of Company capital stock;
(g) redeemed, purchased or otherwise acquired any
capital stock of the Company or any security relating thereto, or made
any other payments to any stockholder of the Company in such person's
capacity as a stockholder of the Company;
(h) except in the ordinary course of business, acquired,
sold, leased or disposed of any assets which, in the aggregate, are
material to the Company and the Company Subsidiaries, taken as a
whole;
(i) other than intercompany debt, (i) incurred or
assumed any long-term or short-term debt or issued any debt securities
except for borrowings under existing lines of credit in the ordinary
course of business or trade financings under existing agreements or
entered into in the ordinary course of business; (ii) assumed,
guaranteed, endorsed or otherwise become liable or responsible
(whether directly, contingently or otherwise) for the material
obligations of any other person except in the ordinary course of
business in an amount not material to the Company and Company
Subsidiaries, taken as a whole; (iii) made any material loans,
advances or capital contributions to, or investments in, any other
person other than in the ordinary course of business in an amount not
material to the Company and Company Subsidiaries, taken as a whole; or
(iv) mortgaged or pledged any of their material assets, tangible or
intangible, or created any material mortgage, lien, pledge, charge,
security interest or encumbrance of any kind with respect to any such
material asset;
(j) suffered any damage, destruction or loss, whether or
not covered by insurance, materially and adversely affecting the
operation of the business of the Company and the Company Subsidiaries,
taken as a whole;
(k) acquired (by merger, consolidation or acquisition of
stock or assets) any corporation, partnership or other business
organization or division thereof or any equity interest therein;
(l) adopted a plan of complete or partial liquidation or
resolutions providing for or authorizing such liquidation or a
dissolution, merger, consolidation, restructuring, recapitalization or
other reorganization; or
(m) authorized or entered into an agreement to do any of
the foregoing.
V.8 Employee Benefit Plans; ERISA. {tc \l2 " V.8 Employee
Benefit Plans; ERISA. }
(a) Section 5.8(a) of the Company Disclosure Schedule
sets forth a list of all material employee benefit plans (including
but not limited to plans described in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")),
maintained by the Company, or by any trade or business, whether or not
incorporated (an "ERISA Affiliate"), which together with the Company
would be deemed a "single employer" within the meaning of Section
4001(b)(15) of ERISA for the benefit of employees or former employees
of the Company and the Company Subsidiaries ("Benefit Plans") and all
material employment and severance agreements with employees or former
employees of the Company and the Company Subsidiaries ("Employee
Agreements").
(b) With respect to each Benefit Plan: (i) if intended
to qualify under Section 401(a) of the Internal Revenue Code of 1986,
as amended (the "Code"), such plan has received a determination letter
from the Internal Revenue Service stating that it so qualifies and
that its trust is exempt from taxation under Section 501(a) of the
Code; (ii) such plan has been administered in all material respects in
accordance with its terms and applicable Law; (iii) no claims (other
than routine claims for benefits) are pending, or, to the knowledge of
the Company, threatened that give rise to or might reasonably be
expected to give rise to material liability on the part of the
Company; and (iv) no prohibited transaction (within the meaning of
Section 406 of ERISA) has occurred that gives rise to, or might
reasonably be expected to give rise to, any material liability on the
part of the Company.
(c) No Benefit Plan has incurred an accumulated funding
deficiency, as defined in Section 302 of ERISA or Section 412 of the
Code, whether or not waived.
(d) With respect to each Benefit Plan that is a "welfare
plan" (as defined in Section 3(1) of ERISA), no such plan provides
post-retirement medical or life insurance benefits with respect to
current or former employees of the Company or any ERISA Affiliate
(other than to the extent required by applicable Law or benefits the
full cost of which is borne by the current or former employee or his
beneficiary).
(e) No liability under Title IV or Section 302 of ERISA
has been incurred by the Company or any ERISA Affiliate that has not
been satisfied in full, and no condition exists that presents a
material risk to the Company or any ERISA Affiliate of incurring any
such liability, other than liability for premiums due the Pension
Benefit Guaranty Corporation (which premiums have been paid when due).
(f) The Merger shall not trigger any acceleration of
benefits and the provision of special benefits to participants under
either the Grove U.S. LLC (f/k/a Grove North America) Supplemental
Executive Retirement Plan or the National Crane Corporation
Supplemental Executive Retirement Plan.
V.9 Litigation. {tc \l2 " V.9 Litigation. }Section 5.9 of
the Company Disclosure Schedule lists each material pending action,
suit and proceeding involving the Company or any Company Subsidiary by
or before any governmental entity or by any third party. As of the
date hereof, there is no action, suit or proceeding (other than any
action, suit or proceeding resulting from or arising out of this
Agreement or the transactions contemplated hereby) pending or, to the
knowledge of the Company, threatened, involving the Company or any
Company Subsidiaries by or before any governmental entity or by any
third party which, either alone or considered with all such other
actions, suits or proceedings, would be reasonably likely to have a
Company Material Adverse Effect.
V.10 No Default; Compliance with Applicable Laws. {tc \l2 "
V.10 No Default; Compliance with Applicable Laws. }Neither the
Company nor any Company Subsidiary is in default or violation of any
term, condition or provision of (i) their respective certificates of
incorporation, by-laws or similar organizational documents or (ii) to
the knowledge of the Company, any Law applicable to the Company or any
Company Subsidiary, excluding from the foregoing clause (ii), defaults
or violations which would not be reasonably likely to have a Company
Material Adverse Effect or which become applicable as a result of the
business or activities in which Acquiror is or proposes to be engaged
or as a result of any acts or omissions by, or the status of any facts
pertaining to, Acquiror. Notwithstanding the foregoing, this Section
5.10 shall not apply to Environmental Laws (as defined herein) and any
permits required thereunder, which are exclusively the subject of the
representations and warranties contained in Section 5.14.
V.11 Taxes. {tc \l2 " V.11 Taxes. }
(a) The Company and each of the Company Subsidiaries has
(i) timely filed all Tax Returns (as defined herein) required to be
filed by any of them on or prior to the date hereof (taking into
account applicable extensions) and all such Tax Returns were true,
correct and complete in all material respects when filed and (ii) paid
or accrued (in accordance with GAAP) all Taxes (as defined herein)
shown to be due on such Tax Returns other than such Taxes as are being
contested in good faith by the Company or the Company Subsidiaries.
(b) With respect to Taxes for which the Company or a
Company Subsidiary is liable, there are no material federal, state,
local or foreign audits, examinations, or deficiency or refund
litigation pending and no Taxing Authority (as defined herein) has
given written notice of the commencement of any audit, examination or
deficiency or refund litigation with respect to Taxes of the Company
or a Company Subsidiary.
(c) With respect to Taxes for which the Company or a
Company Subsidiary is liable, there are no outstanding written
requests, agreements, consents or waivers to extend the statutory
period of limitations applicable to the assessment of any Taxes or
deficiencies.
(d) The Company or a Company Subsidiary is not a party
to any agreement providing for the allocation or sharing of Taxes.
(e) There are no material liens for Taxes upon the
assets of the Company or a Company Subsidiary that are not provided
for in the Company Financial Statements, except liens arising as a
matter of Law for current Taxes not yet due and liens for Taxes that
are being contested in good faith.
(f) "Taxes" shall mean any and all taxes, charges, fees,
levies or other assessments, including, without limitation, income,
gross receipts, excise, real or personal property, sales, withholding,
social security, occupation, use, service, service use, value added,
license, net worth, payroll, franchise, transfer and recording taxes,
fees and charges, imposed by any Taxing Authority, whether computed on
a separate, consolidated, unitary, combined or any other basis; and
such term shall include any interest, penalties or additional amounts
attributable to, or imposed upon, or with respect to, any such taxes,
charges, fees, levies or other assessments. "Taxing Authority" shall
mean the Internal Revenue Service and any other authority (whether
domestic or foreign including, without limitation, any state, local or
foreign government or any subdivision or taxing agency thereof
(including a United States possession)) responsible for the
administration of any Tax. "Tax Return" shall mean any report,
return, document, declaration or other information or filing,
including any amendments thereto and related or supporting
information, required to be supplied to any Taxing Authority with
respect to Taxes.
V.12 Personal Property.{tc \l2 " V.12 Personal Property.}
The Company and each of the Company Subsidiaries has valid title to
all of its personal property, free and clear of all liens, charges and
encumbrances, except (i) liens for Taxes not yet due and payable, (ii)
pledges to secure Borrowed Money Indebtedness, (iii) security
interests associated with operating equipment leases and (iv) such
other liens, charges, encumbrances and other imperfections of title,
if any, as do not materially detract from the value of, or interfere
with the present use of, the property affected thereby or which would
not be reasonably likely to have a Company Material Adverse Effect.
To the knowledge of the Company, all leases pursuant to which the
Company or any of the Company Subsidiaries lease material amounts of
personal property are valid and effective in accordance with their
respective terms, and there is not under any of such leases, an
existing default or event of default (or event with which notice or
lapse of time, or both, would constitute a default and in respect of
which the Company or such Company Subsidiary has not taken adequate
steps to prevent such a default from occurring) on the part of the
Company or any Company Subsidiary or, to the knowledge of the Company,
the other parties thereto, except where the lack of such validity and
effectiveness or the existence of such default or event of default
would not be reasonably likely to have a Company Material Adverse
Effect.
V.13 Intellectual Property. {tc \l2 " V.13 Intellectual
Property. }There are no pending or threatened material claims of
which the Company or any of the Company Subsidiaries has been given
written notice, by any person against the Company's or the Company
Subsidiaries' use of any material trademarks, trade names, service
marks, service names, xxxx registrations, logos, assumed names and
copyright registrations, patents and all applications therefor that
are owned by the Company or one of the Company Subsidiaries and used
in its operations as currently conducted (collectively, the "Company
Intellectual Property"). To the knowledge of the Company, the Company
or one of the Company Subsidiaries has such ownership of, or such
rights by license, lease or other agreement to, the Company
Intellectual Property as are necessary to permit the Company and the
Company Subsidiaries to conduct their operations as currently
conducted in all material respects. Such ownership or other rights of
the Company and the Company Subsidiaries in the Company Intellectual
Property are valid, enforceable and in good standing in all material
respects and there are no material equitable defenses to enforcement
based on any act or omission by the Company or any Company Subsidiary.
To the knowledge of the Company, no third party is infringing on the
Company Intellectual Property.
V.14 Environmental Laws and Regulations. {tc \l2 " V.14
Environmental Laws and Regulations. }
(a) Definitions. As used in this Agreement:
(i) "Company Environmental Claim" shall mean any
and all written administrative, regulatory or judicial actions, suits,
demands, demand letters, directives, claims, liens, information
requests, proceedings or notices of noncompliance or violation by any
person alleging potential liability (including, without limitation,
potential liability for enforcement, investigatory costs, cleanup
costs, governmental response costs, removal costs, remedial costs,
natural resources damages, property damages, personal injuries or
penalties) arising out of, based on or resulting from: (A) the
presence, or release into the environment, of any Environmental
Hazardous Materials at any location, whether or not owned by the
Company or any Company Subsidiary; or (B) circumstances forming the
basis of any violation or alleged violation, of any Environmental Law;
or (C) any and all claims by any person seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief
resulting from the presence or Environmental Release of any
Environmental Hazardous Materials.
(ii) "Environmental Hazardous Materials" shall
mean: (A) any petroleum or petroleum products, radioactive materials,
asbestos in any form, urea formaldehyde foam insulation, and
transformers or other equipment that contain dielectric fluid
containing levels of polychlorinated biphenyls (PCBs) and radon gas;
and (B) any chemicals, materials or substances which are now or ever
have been defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely
hazardous wastes," restricted hazardous wastes," "toxic substances,"
"toxic pollutants," or words of similar import, under any Environmen-
tal Law; and (C) any other chemical, material, substance or waste,
exposure to which is now or ever has been prohibited, limited or
regulated by any governmental authority.
(iii) "Environmental Laws" shall mean all federal,
state, local or foreign statutes, Laws, rules, ordinances, codes and
regulations relating to pollution or protection of human health or the
environment (including, without limitation, ambient air, surface
water, ground water, drinking water, wildlife, plants, land surface or
subsurface strata), including, without limitation, Laws and
regulations relating to Environmental Releases or threatened
Environmental Releases of Environmental Hazardous Materials, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Environmental
Hazardous Materials.
(iv) "Environmental Permits" shall mean all
environmental, health and safety permits and governmental authoriza-
tions.
(v) "Environmental Release" shall mean any
release, spill, emission, leaking, injection, deposit, disposal,
discharge, dispersal, leaching or migration into the atmosphere, soil,
surface water, groundwater or property.
(b) Compliance. Except as described in Section 5.14 of
the Company Disclosure Schedule, the Company and each Company
Subsidiary (i) to the knowledge of the Company, is in compliance with
all applicable Environmental Laws in all material respects; and (ii)
has not received any written communication that alleges that the
Company or a Company Subsidiary is not in compliance in all material
respects with applicable Environmental Laws.
(c) Environmental Permits. Except as described in
Section 5.14 of the Company Disclosure Schedule, the Company and each
Company Subsidiary has obtained all material Environmental Permits
necessary for its operations, all such permits are in good standing in
all material respects, and the Company and each of the Company
Subsidiaries is in compliance in all material respects with all terms
and conditions of such Environmental Permits.
(d) Company Environmental Claims. Except as described
in Section 5.14 of the Company Disclosure Schedule, there is no
material Company Environmental Claim pending or, to the knowledge of
the Company, threatened, against the Company or any Company Subsidiary
or their respective assets or properties or, to the knowledge of the
Company, against any person whose liability for any Company
Environmental Claim the Company or any Company Subsidiary has retained
or assumed contractually or against any real or personal property or
operation which the Company or any Company Subsidiary owns, leases or
manages.
(e) Environmental Releases. Except as described
Section 5.14 of the Company Disclosure Schedule, to the knowledge of
the Company, there have been no Environmental Releases of any
Environmental Hazardous Material by the Company or any Company
Subsidiary on real property owned, used, leased or operated by the
Company or any Company Subsidiary, except for those which would not be
reasonably likely to have a Company Material Adverse Effect or those
which are expressly permitted by applicable Environmental Law.
(f) CERCLA. Except as described in Section 5.14 of the
Company Disclosure Schedule, to the knowledge of the Company, no
material real property at any time owned, operated, used or controlled
by the Company or any Company Subsidiary is currently listed on the
National Priorities List or the Comprehensive Environmental Response,
Compensation and Liability Information System, both promulgated under
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended ("CERCLA"), or on any comparable state list,
and neither the Company nor any Company Subsidiary has received any
written notice from any person under or relating to CERCLA or any
comparable foreign, state or local Law.
(g) Off-Site Locations. Except as described in Section
5.14 of the Company Disclosure Schedule, to the knowledge of the
Company, no off-site location at which the Company or any Company
Subsidiary has disposed or arranged for the disposal of any waste is
listed on the National Priorities List or on any comparable state
list, except to the extent such disposal would not result in a
material liability to the Company or any Company Subsidiaries, taken
as a whole, and neither the Company nor any Company Subsidiary has
received any written notice from any person, with respect to any
off-site location, of any material liability of the Company or any
Company Subsidiary or a written request for information from any
person under or relating to CERCLA or any comparable foreign, state or
local Law that is reasonably likely to result in a material liability
to the Company or any Company Subsidiaries, taken as a whole.
V.15 Xxxxxxxxx{xx \x0 " V.15 Contracts}. As of the date
of this Agreement, each of the contracts, agreements and
understandings to which the Company or any Company Subsidiary is a
party or by which any of their assets or operations may be bound and
that is material to the business, properties, assets, liabilities,
financial condition or results of the operations of the Company and
the Company Subsidiaries, taken as a whole ("Company Agreements"), is
a valid and binding obligation of the Company or a Company Subsidiary,
as applicable, and, to the knowledge of the Company, the other parties
thereto, enforceable in all material respects against the Company or a
Company Subsidiary, as applicable, and, to the knowledge of the
Company, the other parties thereto, in accordance with its terms. The
Company or the applicable Company Subsidiary is not in breach or
default in any material respect under any Company Agreements and, to
the knowledge of the Company, there has not been any breach or default
in any material respect of any Company Agreements by any party thereto
(other than the Company or a Company Subsidiary).
V.16 Real Property. {tc \l2 " V.16 Real Property. }
(a) Real Property. The parcels of real property
identified on Section 5.16 of the Company Disclosure Schedule
constitute all of the material real property owned, leased or managed
by the Company or any Company Subsidiary and used in their respective
businesses (the "Real Property"). Except as would not be reasonably
likely to have a Company Material Adverse Effect, to the knowledge of
the Company, the Real Property: (i) is not in possession of any
adverse possessors; (ii) has direct access to and from a public road
or street; (iii) is used in a manner which is consistent with and
permitted by applicable zoning ordinances and other Laws without
special use approvals or permits; (iv) is, and has been since the date
of possession thereof by the Company or any Company Subsidiary, in the
peaceful possession of the Company or such Company Subsidiary; (v) is
served by all water, sewer, electrical, telephone, drainage and other
utilities required for normal operations of the businesses of the
Company or such Company Subsidiary; (vi) is not located in a flood
plain, wetland or similar restricted area; and (vii) requires no
material work or improvements to bring them into compliance with any
applicable Law.
(b) Notice. To the knowledge of the Company, there are
no planned or contemplated public improvements which are reasonably
likely to result in material special assessments against the Real
Property or which may adversely affect the availability of utility
service to the Real Property.
(c) Title. The Company and each of the Company
Subsidiaries has valid title to all Real Property, free and clear of
all mortgage liens, and free and clear of all other liens, charges and
encumbrances, except (i) liens for Taxes not yet due and payable, (ii)
mortgages and pledges to secure Borrowed Money Indebtedness, or (iii)
such liens, charges encumbrances and other imperfections of title, if
any, as do not materially detract from the value of, or materially
interfere with the present use of, the property affected thereby. To
the knowledge of the Company, all leases pursuant to which the Company
or any of the Company Subsidiaries lease Real Property are valid and
effective in all material respects in accordance their respective
terms, and there is not, to the knowledge of the Company, under any of
such leases, an existing material default or event of default (or
event with which notice or lapse of time, or both, would constitute a
material default and in respect of which the Company or such Company
Subsidiary has not taken adequate steps to prevent such a default from
occurring).
V.17 Labor Matters. {tc \l2 " V.17 Labor Matters.
}Neither the Company nor any Company Subsidiary is a party to or
otherwise bound by any collective bargaining agreement, contract or
other agreement or understanding with a labor union or labor
organization as of the date hereof. As of the date hereof, neither
the Company nor any Company Subsidiary is the subject of any material
proceeding asserting that the Company or any Company Subsidiary has
committed an unfair labor practice or seeking to compel the Company or
any Company Subsidiary to bargain with any labor union or labor
organization. Neither the Company nor any Company Subsidiary has
during the last twenty-four (24) months prior to the date hereof been
the subject of any pending or, to the knowledge of the Company,
threatened labor strike, dispute, walkout, work stoppage, slow-down,
or lockout or organizational activity involving the Company or any
Company Subsidiary. Excepted from the representations in the
immediately preceding two sentences are any (i) proceeding or (ii)
labor strike, dispute, walkout, work stoppage, slow-down, lockout or
organizational activity that would not be reasonably likely to have a
Company Material Adverse Effect.
V.18 Required Vote of Company Stockholders. {tc \l2 " V.18
Required Vote of Company Stockholders. }The affirmative vote of
holders of a majority of the outstanding shares of Company Common
Stock in favor of the approval and adoption of the Agreement and the
Merger is the only vote of the holders of any of the Company's capital
stock necessary in connection with consummation of the Merger (the
"Stockholder Approval").
V.19 Registration Statement; Proxy Statement/Prospectus. {tc
\l2 " V.19 Registration Statement; Proxy Statement/Prospectus. }The
information to be supplied by the Company expressly for inclusion in
the Registration Statement (as defined herein), shall not, at the time
the Registration Statement is declared effective by the SEC, contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading. The information to be supplied by
the Company or required to be supplied by the Company for inclusion in
the Proxy Statement (as defined herein) included in the Registration
Statement shall not, on the date the Proxy Statement is first mailed
to the Company's stockholders and, if applicable, at the time of the
Company stockholders meeting to approve the Merger and this Agreement
(the "Company Stockholders Meeting"), contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements contained
therein, in light of the circumstances under which they are made, not
false or misleading, or omit to state any material fact necessary to
correct any statement in any earlier communication with respect to the
Company Stockholders Meeting that has become false or misleading.
Notwithstanding the foregoing, the Company makes no representation or
warranty or covenant with respect to any information supplied by
Acquiror or Merger Sub that is contained in any of the foregoing
documents.
V.20 Reorganization. {tc \l2 " V.20 Reorganization. }To
the knowledge of the Company, it has not taken any action or failed to
take any action that would prevent the Merger from qualifying as a
reorganization within the meaning of Section 368(a) of the Code.
V.21 Insurance.{tc \l2 " V.21 Insurance.} Section 5.21 of
the Company Disclosure Schedule lists each insurance policy currently
maintained by the Company that covers the assets and operations of the
Company and the Company Subsidiaries. With respect to each such
insurance policy, the policy is legal, valid, binding and enforceable
in accordance with its terms, subject to bankruptcy, insolvency,
moratorium, reorganization or similar Laws affecting the rights of
creditors generally and the availability of equitable remedies and,
except for policies that have expired under their terms in the
ordinary course, is in full force and effect.
V.22 Product Matters.{tc \l2 " V.22 Product Matters.} To
the knowledge of the Company, there are no material defects in design,
construction or manufacture of products currently manufactured,
assembled, distributed or sold by the Company or any Company Sub-
sidiary which would have a material adverse effect on the performance
of such products or create a materially unusual risk of injury to
person or property. Since March 1, 1995, none of the products
manufactured, assembled, distributed or sold by the Company or any
Company Subsidiary has been the subject of any replacement, field fix,
retrofit, modification or recall campaign conducted by the Company or
any Company Subsidiary. The products manufactured, assembled,
distributed or sold by the Company and the Company Subsidiaries have
been designed and manufactured so as to meet and comply with all
standards and specifications imposed under applicable Law.
V.23 Brokers or Finders. {tc \l2 " V.23 Brokers or
Finders. }Except for Xxxxxxx Xxxxx Xxxxxx Inc., no agent, broker,
investment banker, financial advisor or other firm or person is or
will be entitled to any brokers' or finders' fee or any other
commission or similar fee in connection with any of the transactions
contemplated by this Agreement based on arrangements made by or on
behalf of the Company or any Company Subsidiary.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF
ACQUIROR AND MERGER SUB{tc \l1 " ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF ACQUIROR AND
MERGER SUB}
Acquiror and the Merger Sub (together, the "Acquiror
Companies"), jointly and severally, represent and warrant to the
Company that, except as set forth in the disclosure schedule delivered
by the Acquiror Companies to the Company simultaneously with the
execution of this Agreement (the "Acquiror Disclosure Schedule") (it
being agreed and understood that (i) any matter set forth in any
section of the Acquiror Disclosure Schedule shall be deemed disclosed
with respect to any such section of this Article VI to which such
matter logically relates, so long as the description of such matter
contains sufficient facts to provide reasonable notice of the
relevance of such matter and (ii) no reference to or disclosure of any
item on the Acquiror Disclosure Schedule shall be construed as an
admission or indication that such item or other matter is material or
that such item or other matter is required to be referred to or
disclosed on the Acquiror Disclosure Schedule):
VI.1 Organization. {tc \l2 " VI.1 Organization. }Each
of the Acquiror Companies is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of
its incorporation and has all requisite corporate power and authority
to own, lease and operate its properties and to carry on its business
as it is now being conducted, except where the failure to be so
organized, existing and in good standing or to have such power and
authority would not be reasonably likely to have an Acquiror Material
Adverse Effect. Each of the Acquiror Companies is duly qualified or
licensed to do business and is in good standing in each jurisdiction
in which the nature of the business conducted by it makes such
qualification or licensing necessary, except where the failure to be
so duly qualified or licensed and in good standing would not be
reasonably likely to have an Acquiror Material Adverse Effect. As
used in this Agreement, "Acquiror Material Adverse Effect" means an
effect that is materially adverse to the business, financial condition
or operations of Acquiror and its subsidiaries, taken as a whole, but
shall exclude any effect arising out of: (i) any change or
development generally applicable to the industries and markets in
which Acquiror and its subsidiaries are involved; (ii) any change or
development generally applicable to the United States or global
economic conditions; (iii) any change or development resulting from
the execution of this Agreement, the consummation of the transactions
contemplated hereby or the public announcement thereof; or (iv) any
change or development resulting from the failure of the Company to
consent to any of the actions proscribed by Section 8.1.
VI.2 Authorization; Validity of Agreement. {tc \l2 " VI.2
Authorization; Validity of Agreement. }Each of the Acquiror
Companies has full corporate power and authority to execute and
deliver this Agreement, to perform all of its obligations hereunder
and to consummate the transactions contemplated hereby. The
execution, delivery and performance by each of the Acquiror Companies
of this Agreement, and the consummation of the transactions contem-
plated hereby, have been duly authorized by the boards of directors of
each of the Acquiror Companies and the stockholders of Merger Sub and
no other corporate action on the part of either of the Acquiror
Companies is necessary to authorize the execution and delivery of this
Agreement and the consummation by either of the Acquiror Companies of
the transactions contemplated hereby. This Agreement has been duly
executed and delivered by the Acquiror Companies and, assuming due and
valid authorization, execution and delivery hereof by the Company, is
a valid and binding obligation of each of the Acquiror Companies,
enforceable against each of them in accordance with its terms, except
that (i) such enforcement may be subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws, now or
hereafter in effect, affecting creditors' rights generally and (ii)
the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
VI.3 Capitalization. {tc \l2 " VI.3 Capitalization. }
(a) The authorized capital stock of Acquiror consists of
75,000,000 shares of Acquiror Common Stock, and 3,500,000 shares of
preferred stock, par value $0.01 per share ("Acquiror Preferred
Stock"). As of March 14, 2002, (i) 24,287,219 shares of Acquiror
Common Stock were issued and outstanding, all of which are duly
authorized, validly issued, fully paid and nonassessable, except as
otherwise provided by Section 180.0622(2)(b) of the WBCL; attached to
each share of Acquiror Common Stock outstanding is four-ninths of a
right (an "Acquiror Right") to purchase Acquiror Common Stock pursuant
to the terms of a Rights Agreement, dated as of August 5, 1996,
between Acquiror and First Chicago Trust Company of New York, as
Rights Agent, as amended (the "Acquiror Rights Agreement"); (ii)
12,459,263 shares of Acquiror Common Stock were held in the Treasury
of Acquiror; (iii) 1,542,754 shares of Acquiror Common Stock were
subject to issuance pursuant to outstanding employee and director
stock options issued pursuant to Acquiror's stock option plans and
(iv) 22,000 restricted shares of Acquiror Common Stock had been
authorized for issuance by the board of directors of Acquiror under
The Manitowoc Company, Inc. 1995 Stock Plan. As of the date of this
Agreement, no shares of Acquiror Preferred Stock are issued and
outstanding. Except pursuant to this Agreement and as set forth in
clause (iii) above, as of the date of this Agreement, there are no
options, warrants, calls, subscriptions or other rights, convertible
securities, agreements or commitments of any character obligating
Acquiror to issue, transfer or sell any shares of capital stock or
other equity interest in Acquiror or securities convertible into or
exchangeable for such shares or equity interests, nor are there any
contractual obligations of Acquiror to repurchase, redeem or otherwise
acquire any capital stock of Acquiror or any voting trusts or similar
agreements to which Acquiror is a party with respect to the Acquiror
Common Stock.
(b) The authorized capital stock of Merger Sub consists
of 3,000 shares of common stock, par value $1.00 per share, of which
1000 shares were issued and outstanding. All of the outstanding
shares of capital stock of Merger Sub are owned beneficially and of
record by Acquiror. All of the outstanding shares of Merger Sub's
capital stock are duly authorized, validly issued, fully paid and
nonassessable. There are no existing (i) options, warrants, calls,
subscriptions or other rights, convertible securities, agreements or
commitments of any character obligating the Merger Sub to issue,
transfer or sell any shares of capital stock or other equity interest
in the Merger Sub or securities convertible into or exchangeable for
such shares or equity interests; (ii) contractual obligations of the
Merger Sub to repurchase, redeem or otherwise acquire any capital
stock of the Merger Sub or (iii) voting trusts or similar agreements
to which the Merger Sub is a party with respect to the Merger Sub's
common stock.
VI.4 Consents and Approvals; No Violations. {tc \l2 " VI.4
Consents and Approvals; No Violations. } Except as set forth in
Section 6.4 of the Acquiror Disclosure Schedule, the execution and
delivery of this Agreement do not, and the consummation of the
transactions contemplated hereby and compliance with the provisions
hereof will not, result in any violation of, or default (with or
without notice or lapse of time, or both) under, or give to others a
right of termination, cancellation or acceleration of any obligation
or the loss of a material benefit under, or result in the creation of
any lien, security interest, charge or encumbrance upon any of the
properties or assets of Acquiror or any subsidiary of Acquiror under,
any provision of (i) the certificate of incorporation, by-laws or
similar organizational documents of Acquiror or any subsidiary of
Acquiror, (ii) any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession,
franchise or license applicable to Acquiror or any subsidiary of
Acquiror or (iii) any Law applicable to Acquiror, any subsidiary of
Acquiror or any of their properties or assets, other than, in the case
of clauses (ii) or (iii), such violations, defaults, rights, liens,
security interests, charges or encumbrances the effect of any of which
would not be reasonably likely to have an Acquiror Material Adverse
Effect. No filing or registration with, or authorization, consent or
approval of, any governmental entity or third party is required by or
with respect to Acquiror or any subsidiary of Acquiror in connection
with the execution and delivery of this Agreement or is necessary for
the consummation of the Merger and the other transactions contemplated
by this Agreement, except for (i) filings pursuant to the HSR Act,
(ii) applicable filings under non-U.S. merger control and competition
Laws, (iii) the filing of the Certificate of Merger with the Secretary
of State of the State of Delaware and appropriate documents with the
relevant authorities of other states in which the Company or any
Company Subsidiary is qualified to do business, (iv) applicable
requirements, if any, of "blue sky" Laws, and (v) such other consents,
orders, authorizations, registrations, declarations and filings the
failure of any of which to be obtained or made would not be reasonably
likely to have a Acquiror Material Adverse Effect.
VI.5 Reports. {tc \l2 " VI.5 Reports. }Acquiror has
timely filed all forms, reports and documents (collectively, the "SEC
Reports") required to be filed by it with the SEC since January 1,
1999. As of their respective dates, the SEC Reports complied in all
material respects with the requirements of the Securities Act of 1933,
as amended (together with the rules and regulations promulgated
thereunder, the "Securities Act"), or the Securities Exchange Act of
1934, as amended (together with the rules and regulations promulgated
thereunder, the "Exchange Act"), as the case may be, and none of the
SEC Reports, at the respective times they were filed, contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading, except to the extent superseded by a SEC
Report filed subsequently but prior to the date hereof. The
consolidated statements of financial position and the related
consolidated statements of operations, stockholders' equity and cash
flows (including, in each case, any notes thereto) of Acquiror
included in the SEC Reports: (i) complied in all material respects
with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto; (ii) have been prepared,
in all material respects, in accordance with GAAP (except, in the case
of unaudited statements, as permitted by Form 10-Q), applied on a
consistent basis during the periods reported (except as therein
noted); and (iii) present fairly the consolidated financial position,
results of operations and cash flows of Acquiror and its consolidated
subsidiaries as at their respective dates and for the periods then
ended.
VI.6 No Undisclosed Liabilities. {tc \l2 " VI.6 No
Undisclosed Liabilities. }Except for liabilities and obligations
(i) incurred in the ordinary course of business after December 31,
2000; (ii) disclosed, reflected or reserved for in the SEC Reports; or
(iii) incurred in connection with the transactions contemplated hereby
or otherwise as contemplated by this Agreement, there are no
liabilities or obligations of Acquiror or any of its subsidiaries that
would be required to be reflected or reserved against in a
consolidated balance sheet of Acquiror prepared in accordance with
GAAP as applied in preparing the most recent consolidated balance
sheet of Acquiror included in the SEC Reports.
VI.7 Absence of Certain Changes. {tc \l2 " VI.7 Absence of
Certain Changes. } Except as (i) disclosed in the SEC Reports; or (ii)
contemplated by this Agreement, from December 31, 2000 to the date
hereof, the business of Acquiror and its subsidiaries has been
conducted only in the ordinary course and:
(a) neither Acquiror nor any of Acquiror's subsidiaries
has suffered any change or development constituting an Acquiror
Material Adverse Effect;
(b) Acquiror has not amended its certificate of
incorporation, by-laws or similar organizational documents;
(c) neither Acquiror nor any of Acquiror's subsidiaries
has experienced any labor dispute or disturbance, other than routine
individual grievances which would not be reasonably likely to have
Acquiror Material Adverse Effect;
(d) Acquiror has not (i) declared, set aside or paid any
dividend or other distribution in respect of Acquiror capital stock,
other than quarterly and annual dividends in the ordinary course, or
(ii) redeemed, purchased or otherwise acquired any capital stock of
Acquiror or any security relating thereto, or made any other payments
to any stockholder of Acquiror in such person's capacity as a
stockholder of Acquiror, other than in connection with cashless
exercises of options;
(e) other than intercompany debt, neither Acquiror nor
any of Acquiror's subsidiaries has (i) incurred or assumed any long-
term or short-term debt or issued any debt securities except for
borrowings under existing lines of credit in the ordinary course of
business or trade financings under existing agreements or entered into
in the ordinary course of business; (ii) assumed, guaranteed, endorsed
or otherwise become liable or responsible (whether directly,
contingently or otherwise) for the material obligations of any other
person except in the ordinary course of business in an amount not
material to Acquiror and its subsidiaries, taken as a whole;
(iii) made any material loans, advances or capital contributions to,
or investments in, any other person other than in the ordinary course
of business in an amount not material to Acquiror and its
subsidiaries, taken as a whole; or (iv) mortgaged or pledged any of
their material assets, tangible or intangible, or created any material
mortgage, lien, pledge, charge, security interest or encumbrance of
any kind with respect to any such material asset other than in the
ordinary course of business;
(f) neither Acquiror nor any of Acquiror's subsidiaries
has suffered any damage, destruction or loss, whether or not covered
by insurance, which would be reasonably likely to have an Acquiror
Material Adverse Effect;
(g) neither Acquiror nor any of Acquiror's subsidiaries
has acquired (by merger, consolidation or acquisition of stock or
assets) any corporation, partnership or other business organization or
division thereof or any equity interest therein which would be
material to Acquiror and its subsidiaries taken as a whole;
(h) Acquiror has not adopted a plan of complete or
partial liquidation or resolutions providing for or authorizing such
liquidation or a dissolution, merger, consolidation, restructuring,
recapitalization or other reorganization; or
(i) neither Acquiror nor any of its subsidiaries, as
applicable, has authorized or entered into an agreement to do any of
the foregoing.
VI.8 Litigation. {tc \l2 " VI.8 Litigation. }As of the date
hereof, there is no action, suit or proceeding (other than any action,
suit or proceeding resulting from or arising out of this Agreement or
the transactions contemplated hereby) pending or, to the knowledge of
Acquiror, threatened, involving Acquiror or any subsidiary of Acquiror
by or before any governmental entity or by any third party which,
either alone or considered with all such other actions, suits or
proceedings, would be reasonably likely to have an Acquiror Material
Adverse Effect.
VI.9 No Default; Compliance with Applicable Laws. {tc \l2 "
VI.9 No Default; Compliance with Applicable Laws. }Neither
Acquiror nor any of its subsidiaries is in default or violation of any
term, condition or provision of (i) their respective articles of
incorporation, by-laws or similar organizational documents or (ii) to
the knowledge of Acquiror, any Law applicable to Acquiror or any of
its subsidiaries, excluding from the foregoing clauses (i) and (ii),
defaults or violations that would not be reasonably likely to have an
Acquiror Material Adverse Effect. Notwithstanding the foregoing, this
Section 6.9 shall not apply to Environmental Laws and any permits
required thereunder, which are exclusively the subject of the
representations and warranties contained in Section 6.10.
VI.10 Environmental Laws and Regulations{tc \l2 " VI.10
Environmental Laws and Regulations}. (a) Each of Acquiror and
its subsidiaries is in compliance with all Environmental Laws, except
for non-compliance that would not be reasonably likely to have an
Acquiror Material Adverse Effect, which compliance includes, but is
not limited to, the possession by Acquiror or one of its subsidiaries
of material permits and other material governmental authorizations
required under applicable Environmental Laws, and material compliance
with the terms and conditions thereof; and (b) neither Acquiror nor
any of its subsidiaries has received notice of, and, to the knowledge
of Acquiror, is not the subject of, any Environmental Claims that
would be reasonably likely to have an Acquiror Material Adverse
Effect.
VI.11 Contracts. {tc \l2 " VI.11 Contracts. } As of the date
of this Agreement, each of the contracts, agreements and
understandings to which Acquiror or any of its subsidiaries is a party
or by which any of their assets or operations may be bound and that is
material to the business, properties, assets, liabilities, financial
condition or results of the operation of Acquiror and its
subsidiaries, taken as a whole ("Acquiror Agreements"), is a valid and
binding obligation of Acquiror or its subsidiary, as applicable, and,
to the knowledge of Acquiror, the other parties thereto, enforceable
in all material respects against Acquiror or its subsidiary, as
applicable, and, to the knowledge of Acquiror, the other parties
thereto, in accordance with its terms, except where the failure to be
valid, binding and enforceable would be reasonably likely to have an
Acquiror Material Adverse Effect. Acquiror or its applicable
subsidiary is not in breach or default in any material respect under
any Acquiror Agreement and, to the knowledge of Acquiror, there has
not been any breach or default in any material respect of any Acquiror
Agreement by any party thereto (other than Acquiror or its subsidiary)
that, in either case, would be reasonably likely to have an Acquiror
Material Adverse Effect.
VI.12 Registration Statement; Proxy Statement/Prospectus. {tc
\l2 " VI.12 Registration Statement; Proxy Statement/Prospectus. }The
information to be supplied by Acquiror or Merger Sub or required to be
supplied by Acquiror or Merger Sub for inclusion in the Registration
Statement, shall not, at the time the Registration Statement is
declared effective by the SEC, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading. The information to be supplied by Acquiror or Merger Sub
or required to be supplied by Acquiror or Merger Sub for inclusion in
the Proxy Statement included in the Registration Statement shall not,
on the date the Proxy Statement is first mailed to the Company's
stockholders and, if applicable, at the time of the Company
Stockholders Meeting, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements contained therein, in light
of the circumstances under which they are made, not false or
misleading, or omit to state any material fact necessary to correct
any statement in any earlier communication with respect to the Company
Stockholders Meeting that has become false or misleading.
Notwithstanding the foregoing, Acquiror and Merger Sub make no
representation or warranty or covenant with respect to any information
supplied by the Company that is contained in any of the foregoing
documents.
VI.13 Merger Sub's Operations. {tc \l2 " VI.13 Merger Sub's
Operations. }Merger Sub was formed solely for the purpose of engaging
in the transactions contemplated hereby and has not owned any assets,
engaged in any business activities or conducted any operations other
than in connection with the transactions contemplated hereby.
VI.14 Reorganization. {tc \l2 " VI.14 Reorganization. }To
the knowledge of Acquiror, it has not taken any action or failed to
take any action that would prevent the Merger from qualifying as a
reorganization within the meaning of Section 368(a) of the Code.
VI.15 Required Vote of Xxxxxxxx{xx \x0 " VI.15 Required Vote of
Acquiror}. No vote of the holders of the capital stock of Acquiror is
necessary in connection with the consummation of the Merger.
VI.16 Financing. {tc \l2 " VI.16 Financing. }Acquiror has,
or shall have, cash on hand and has entered into definitive financing
commitments (true and correct copies of which have been delivered to
the Company) (the "Financing Commitments") which together are
sufficient to satisfy all of its obligations under this Agreement.
Each of the Financing Commitments is valid, binding, and enforceable
in all material respects against the parties in accordance with its
terms. As of the date hereof, Acquiror has paid any and all fees due
and payable under the Financing Commitments.
VI.17 Brokers or Finders. {tc \l2 " VI.17 Brokers or
Finders. }Except for Deutsche Banc Alex. Xxxxx, no agent, broker,
investment banker, financial advisor or other firm or person is or
will be entitled to any brokers' or finders' fee or any other
commission or similar fee in connection with any of the transactions
contemplated by this Agreement based on arrangements made by the
Acquiror or any of its affiliates.
ARTICLE VII
COVENANTS RELATING TO THE
CONDUCT OF BUSINESS OF THE COMPANY{tc \l1 " ARTICLE
VII COVENANTS RELATING TO THE CONDUCT OF BUSINESS OF
THE COMPANY}
VII.1 Interim Operations of the Company. {tc \l2 " VII.1
Interim Operations of the Company. }Except (i) as contemplated
by this Agreement; (ii) as disclosed in the Company Disclosure
Schedule; or (iii) with the prior written consent of Acquiror, the
Company covenants and agrees that between the date of this Agreement
and the Effective Time, (x) the business of the Company and the
Company Subsidiaries shall be conducted only in the ordinary course
and (y) the Company shall, and the Company shall cause each of the
Company Subsidiaries to:
(a) not amend its certificate of incorporation, by-laws
or similar organizational documents;
(b) not (i) split, combine or reclassify its capital
stock; (ii) declare, set aside or pay any dividend or other
distribution payable in cash, stock or property with respect to its
capital stock, other than dividends and other distributions paid or
payable solely to the Company; (iii) except in satisfaction of
outstanding stock options or warrants or for grants of stock options
or awards of restricted stock under the Company Option Plan in an
amount not to exceed 55,000 shares, issue or sell any additional
shares of capital stock (including shares of Company Common Stock), or
any securities or rights convertible into, or exchangeable for, or
options, warrants, calls, commitments or rights of any kind to
acquire, any shares of its capital stock; or (iv) redeem, purchase or
otherwise acquire, directly or indirectly, any shares of its capital
stock;
(c) not (i) adopt any new Benefit Plan or materially
amend any existing Benefit Plan to increase benefits thereunder,
except as may be required by applicable Law or (ii) increase any
compensation or enter into or materially amend any employment,
severance, termination or similar agreement with any of its present or
future officers or directors, other than increases in the ordinary
course and consistent with past practices;
(d) except as may be required or contemplated by this
Agreement or in the ordinary course of business not acquire, not sell,
lease or dispose of any assets which, in the aggregate, are material
to the Company and the Company Subsidiaries, taken as a whole;
(e) not (i) incur or assume any Borrowed Money
Indebtedness except for (v) borrowings under the U.S. Facility in
amounts which, when aggregated with all other amounts then owed under
such facility, would not exceed the amount owed under such facility as
of the date hereof including accrued interest not yet due and payable
thereon, (w) borrowings under the German Facilities in amounts
(including any overdraft amounts) which as of the Effective Time, when
aggregated with all other amounts (including any overdraft amounts)
then owed under such facilities would not exceed $5 million more than
the aggregate amount owed under such facilities as of the date hereof
(including any overdraft amounts) including accrued interest not yet
due and payable thereon, or (x) trade financings under existing
agreements or entered into in the ordinary course of business, (y)
accrued interest not yet due and payable on any indebtedness of the
Company or the Company Subsidiaries outstanding on the date hereof or
permitted hereunder or (z) borrowings incurred to fund Company
Transaction Costs (as defined below, without regard to the limitations
of amount in such definition) which do not exceed $4,000,000 in the
aggregate; (ii) assume, guarantee, endorse or otherwise become liable
or responsible (whether directly, contingently or otherwise) for the
material obligations of any other person except in the ordinary course
of business in an amount not material to the Company and the Company
Subsidiaries, taken as a whole; (iii) make any material loans,
advances or capital contributions to, or investments in, any other
person other than customer financings under existing agreements or
entered into in the ordinary course of business; or (iv) mortgage or
pledge any of its material assets, tangible or intangible, or create
any material mortgage, lien, pledge, charge, security interest or
encumbrance of any kind with respect to any such material asset;
(f) not acquire (by merger, consolidation or acquisition
of stock or assets) any corporation, partnership or other business
organization or division thereof or any equity interest therein;
(g) not adopt a plan of complete or partial liquidation
or resolutions providing for or authorizing such liquidation or a
dissolution, merger, consolidation, restructuring, recapitalization or
other reorganization; or
(h) not authorize or enter into an agreement to do any
of the foregoing;
(i) use commercially reasonable efforts to preserve the
business of the Company and the Company Subsidiaries intact, to retain
the services of key management and to preserve the goodwill of
suppliers, customers, employees and others having business
relationships with the Company and the Company Subsidiaries;
(j) comply in all material respects with all applicable
Laws; or
(k) timely and properly file all tax returns which are
required to be filed, and pay or make provision for the payment of all
Taxes owed by the Company and the Company Subsidiaries.
For the purposes of this Agreement:
(i) "U.S. Facility" shall mean the Revolving Credit Agreement,
dated as of September 25, 2001, by and among Grove Worldwide, Inc.
("Grove Worldwide"), the subsidiaries of Grove Worldwide listed on the
signature pages thereof, Grove Holdings, Inc, as a guarantor, the
Company, as a guarantor, the Lenders (as defined therein) and The
Chase Manhattan Bank, as amended from time to time, and any facilities
entered into in replacement of such facility or in connection with the
refinancing of such facility; and
(ii) "German Facilities" shall mean (i) the Commerzbank
Facility Letter, dated September 11, 2000, between Commerzbank AG,
Deutsche Grove GmbH, Grove Worldwide Holdings GmbH and Grove Worldwide
LLC, as amended from time to time (and any facilities entered into in
replacement of such facility or in connection with the refinancing of
such facility), and (ii) the Deutsche Bank Facility Letter, dated
November 14, 2000, between Deutsche Bank AG, Deutsche Grove GmbH,
Grove Worldwide Holdings GmbH and Grove Worldwide LLC, as amended from
time to time (and any facilities entered into in replacement of such
facility or in connection with the refinancing of such facility).
ARTICLE VIII
COVENANTS RELATING TO CONDUCT OF
BUSINESS OF ACQUIROR{tc \l1 " ARTICLE VIII
COVENANTS RELATING TO CONDUCT OF BUSINESS OF
ACQUIROR}
VIII.1 Interim Operations of Acquiror. {tc \l2 " VIII.1
Interim Operations of Acquiror. }Except (i) as contemplated by
this Agreement; (ii) as disclosed in the Acquiror Disclosure Schedule;
or (iii) with the prior written consent of the Company, Acquiror
covenants and agrees that between
the date of this Agreement and the Effective Time, the business of
Acquiror and its subsidiaries shall be conducted only in the ordinary
course and:
(a) Acquiror shall not amend its certificate of
incorporation, by-laws or similar organizational documents in a manner
that adversely affects the rights of holders of Company Common Stock;
(b) Acquiror shall not (i) split, reclassify or combine
its capital stock; (ii) other than in the ordinary course, declare,
set aside or pay any dividend or other distribution payable in cash,
stock or property with respect to its capital stock; (iii) other than
on a Form S-8, file any registration statement (or similar document)
to issue or sell in a registered offering any additional shares of
capital stock, or securities, or rights convertible into, or
exchangeable for, or options, warrants, calls, commitments or rights
of any kind to acquire, any shares of its capital stock, unless
holders of Company Common Stock are given the reasonable opportunity
to sell in such offering such shares of Acquiror Common Stock to be
issued to such holder in the Merger as if such shares of Acquiror
Common Stock had been issued to such holder and the terms of the
Registration Rights Agreement were effective and applied to such
offering at such time; or (iv) redeem, purchase or otherwise acquire,
directly or indirectly, any shares of its capital stock, other than in
connection with cashless exercises of options;
(c) unless such transaction could not be reasonably
expected to adversely affect (i) the ability of the parties to
consummate the Merger or (ii) the economic benefits to be received by
holders of Company Common Stock pursuant to the Merger, neither
Acquiror nor any of its subsidiaries may, except as may be required or
contemplated by this Agreement or in the ordinary course of business,
acquire, sell, lease or dispose of (by means of merger or otherwise)
any assets which, in the aggregate, are material to Acquiror and its
subsidiaries, taken as a whole;
(d) unless such transaction could not be reasonably
expected to adversely affect (i) the ability of the parties to
consummate the Merger or (ii) the economic benefits to be received by
holders of Company Common Stock pursuant to the Merger, neither
Acquiror nor any of its subsidiaries may acquire (by merger,
consolidation or acquisition of stock or assets) any corporation,
partnership or other business organization or division thereof or any
equity interest therein;
(e) Acquiror may not adopt a plan of complete or partial
liquidation or resolutions providing for or authorizing such
liquidation or a dissolution, merger, consolidation, restructuring,
recapitalization or other reorganization of Acquiror; or
(f) neither Acquiror nor any of its subsidiaries, as
applicable, may authorize or enter into an agreement to do any of the
foregoing.
ARTICLE IX
ADDITIONAL XXXXXXXXXX{xx \x0 " ARTICLE IX
ADDITIONAL AGREEMENTS}
IX.1 Access and Information; Confidentiality. {tc \l2 " IX.1
Access and Information; Confidentiality. }(a) From the date of
this Agreement to the Effective Time, to the extent permitted by
applicable Law, Acquiror and the Company shall (i) afford to the other
party and its officers, directors, employees, accountants,
consultants, legal counsel, financial advisors, agents and other
representatives (collectively, the "Representatives") reasonable
access during normal business hours upon reasonable prior notice to
the properties, offices and other facilities of such party and its
subsidiaries and to their books and records; and (ii) furnish to the
other party and its Representatives such information concerning the
business, properties, contracts, records and personnel of such party
and its subsidiaries (including financial, operating and other data
and information) as may be reasonably requested, from time to time, by
or on behalf of the other party. All information obtained by
Acquiror, the Company or any of their Representatives pursuant to this
Section 9.1 shall be kept confidential in accordance with the letter
agreement dated December 5, 2001, between Xxxxxxx Xxxxx Xxxxxx Inc.
(on behalf of Grove Worldwide Inc., a Delaware corporation) and
Acquiror (the "Confidentiality Agreement").
(b) The Company will retain material nonpublic
information disclosed to it about Acquiror in strict confidence, will
disclose such confidential information only to those of its
Representatives who may need to know such information for purposes of
facilitating the consummation of the transactions contemplated by this
Agreement, and will use such confidential information and instruct its
Representatives to use such confidential information only for the
purpose of consummating the transactions contemplated by this
Agreement. The Company acknowledges that Acquiror is a publicly
traded company, and the Company is aware, and will advise its
Representatives, that federal and state securities laws prohibit any
person who has material, nonpublic information about a company from
purchasing or selling securities of such company or from communicating
such information to any other person under circumstances in which it
is reasonably foreseeable that such person is likely to purchase or
sell such securities.
IX.2 Meeting of Stockholders. {tc \l2 " IX.2 Meeting of
Stockholders. }
(a) The Company shall, in accordance with applicable Law
and its certificate of incorporation and by-laws, duly call, give
notice of, convene and hold the Company Stockholders Meeting, for the
purpose of considering the approval and adoption of this Agreement and
the Merger as soon as practicable following the date on which the
Registration Statement becomes effective; provided, however, that the
Company may, in its sole discretion, determine not to call, give
notice of or convene the Company Stockholders Meeting if the Company
takes action to allow the stockholders of the Company to act by
written consent in lieu of the Company Stockholders Meeting to the
extent permitted by the DGCL. Subject to the terms of Section 9.2(b),
the Company Board shall recommend approval and adoption of this
Agreement and the Merger by the Company stockholders and shall not
withdraw or modify such recommendation in a manner adverse to
Acquiror.
(b) Notwithstanding the foregoing, the Company Board may
at any time prior to the Effective Time (i) withdraw, modify or change
any recommendation or declaration regarding this Agreement or the
Merger or (ii) recommend and declare advisable any other offer or
proposal, if in the reasonable good faith judgment of the Company
Board, after having taken into account the advice of its legal
counsel, the failure to so withdraw, modify or change its
recommendation and declaration regarding this Agreement or the Merger
or the failure to so recommend and declare advisable any other offer
or proposal would be inconsistent with its fiduciary duties to the
Company's stockholders under applicable Law.
IX.3 Registration Statement; Proxy Statement. {tc \l2 " IX.3
Registration Statement; Proxy Statement. }
(a) Proxy Statement. As promptly as practicable after
the date of this Agreement, the Company and Acquiror shall prepare a
proxy statement/information statement (together with all amendments
and supplements thereto, the "Proxy Statement") relating to the Merger
and this Agreement (and included in the Registration Statement as a
prospectus) and furnish the information required to be provided to the
stockholders of the Company pursuant to the DGCL. The Proxy Statement
shall include the recommendation of the Company Board to the
stockholders of the Company in favor of this Agreement and the Merger;
provided, however, that the Company Board may, at any time prior to
the Effective Time, withdraw, modify or change any such recommendation
in accordance with the provisions of Section 9.2(b); provided,
further, that notwithstanding anything to the contrary contained in
this Agreement, such a withdrawal, modification or change shall not
relieve the Company in any way whatsoever of its obligations under
Sections 9.2 or 9.3 of this Agreement (other than the obligation to
include the recommendation of the Company Board in favor of this
Agreement and the Merger in the Proxy Statement).
(b) Registration Statement. As promptly as practicable
after the date of this Agreement, the Company and Acquiror shall
prepare, and Acquiror shall file with the SEC, a registration
statement on Form S-4 (together with all amendments and supplements
thereto, the "Registration Statement"), in which the Proxy Statement
shall be included as a prospectus, and Acquiror shall use its
reasonable best efforts to have the Registration Statement declared
effective by the SEC as promptly as practicable after filing.
Acquiror shall obtain and furnish the information required to be
included in the Registration Statement and, after consultation with
the Company, respond promptly to any comments made by the SEC with
respect to the Registration Statement and cause the prospectus
included therein, including any amendment or supplement thereto, to be
mailed to the Company's stockholders at the earliest practicable date
after the Registration Statement is declared effective by the SEC;
provided, however that no amendment or supplement to the Registration
Statement shall be made by Acquiror without consultation with the
Company and its counsel. Acquiror shall promptly take any action
required to be taken under foreign or state securities or "blue sky"
Laws in connection with the issuance of Acquiror Common Stock in the
Merger.
IX.4 Appropriate Action; Consents; Filings. {tc \l2 " IX.4
Appropriate Action; Consents; Filings. }
(a) Reasonable Best Efforts. Upon the terms and subject
to the conditions set forth in this Agreement, the Company and
Acquiror shall each use their respective reasonable best efforts to
promptly (i) take, or to cause to be taken, all actions, and to do, or
to cause to be done, and to assist and cooperate with the other
parties in doing all things necessary, proper or advisable under
applicable Law or otherwise to consummate and make effective the
transactions contemplated by this Agreement, unless the Company Board
has failed to make, withdrawn, modified or changed its recommendation
and declaration regarding the Merger and this Agreement; (ii) obtain
from any governmental authorities any actions, non-actions,
clearances, waivers, consents, approvals, permits or orders required
to be obtained by Acquiror, the Company or any of their respective
subsidiaries in connection with the authorization, execution, delivery
and performance of this Agreement and the consummation of the
transactions contemplated hereby, including the Merger; (iii) promptly
make all necessary registrations and filings, and thereafter make any
other required submissions, with respect to this Agreement and the
Merger required under (A) any applicable federal or state securities
Laws, (B) the HSR Act and any applicable non-U.S. merger control or
competition Laws, and (C) any other applicable Law; provided, however,
that Acquiror and the Company will cooperate with each other in
connection with the making of all such filings, including providing
copies of all such filings and attachments to outside counsel for the
non-filing party; (iv) furnish all information required for any
application or other filing to be made pursuant to any applicable Law
or any applicable regulations of any governmental entity (including
all information required to be included in the Proxy Statement or the
Registration Statement) in connection with the transactions
contemplated by this Agreement; (v) avoid the entry of, or have
vacated or terminated, any decree, order, or judgement that would
restrain, prevent or delay the Closing, including, without limitation,
defending any lawsuits or other legal proceedings, whether judicial or
administrative, challenging this Agreement or the consummation of the
transactions contemplated hereby; and (vi) execute and deliver any
additional instruments necessary to consummate the transactions
contemplated by this Agreement. No parties to this Agreement shall
consent to any voluntary delay of the consummation of the Merger at
the behest of any governmental entity without the consent of the other
parties to this Agreement, which consent shall not be unreasonably
withheld. Without limiting this Section 9.4(a), Acquiror agrees to
take any and all steps and to make any and all undertakings necessary
to avoid or eliminate each and every impediment under any United
States antitrust, merger control, competition, or trade regulation Law
that may be asserted by any governmental entity with respect to the
Merger so as to enable the Closing to occur as soon as reasonably
possible (and in any event, no later than the Termination Date (as
defined herein)), including, without limitation, proposing,
negotiating, committing to, and effecting by consent decree, hold
separate order, or otherwise, the sale, divestiture, licensing or
disposition of such assets or businesses of Acquiror (or its
subsidiaries) or the Company (or its subsidiaries) or otherwise taking
or committing to take actions that limit Acquiror's or its
subsidiaries' freedom of action with respect to, or their ability to
retain, any of the businesses, product lines or assets of Acquiror (or
its subsidiaries) or the Company (or its subsidiaries) in each case,
as may be required in order to avoid the entry of, or to effect the
dissolution of, any injunction, temporary restraining order, or other
order in any suit or proceeding, which would otherwise have the effect
of preventing or delaying the Closing.
(b) Prompt Notice. Each of the Company and Acquiror
shall give prompt notice to the other of (i) any written notice or
other communication from any person alleging that the consent of such
person is or may be required in connection with the Merger; (ii) any
written notice or other communication from any governmental entity in
connection with the Merger; (iii) any material litigation, relating to
or involving or otherwise affecting the Company, Acquiror or their
subsidiaries that relates to the consummation of the Merger; and (iv)
any change or development that is reasonably likely to have a Company
Material Adverse Effect or an Acquiror Material Adverse Effect.
(c) Third Party Notices and Consents. Each of the
Company and Acquiror shall give (or will cause their respective
subsidiaries to give) any notices to third persons, and use, and cause
their respective subsidiaries to use, reasonable efforts to obtain any
consents from third persons necessary to consummate the transactions
contemplated by this Agreement.
IX.5 Public Announcements. {tc \l2 " IX.5 Public
Announcements. }Acquiror and the Company shall consult with each
other and will mutually agree upon any press release or public
announcement pertaining to the Merger and shall not issue any such
press release or make any such public announcement prior to such
consultation and agreement, except as may be required by applicable
Law or by obligations pursuant to any listing agreement with any
national securities exchange or national automated quotation system,
in which case the party proposing to issue such press release or make
such public announcement shall consult in good faith with the other
party before issuing any such press release or making any such public
announcement. Notwithstanding the foregoing, in the event the Company
Board fails to make, withdraws, modifies or changes its recommendation
and declaration regarding this Agreement as provided under Section
9.2(b) hereof, neither party will any longer be required to consult
with, or obtain the agreement of, the other party in connection with
any press release or public announcement.
IX.6 Stock Exchange Listing. {tc \l2 " IX.6 Stock Exchange
Listing. }Acquiror will use reasonable best efforts to cause the
shares of Acquiror Common Stock to be issued in the Merger to be
approved for listing (subject to official notice of issuance) on the
NYSE prior to the Effective Time.
IX.7 Employee Benefit Plans. {tc \l2 " IX.7 Employee Benefit
Plans. }
(a) Benefits. Following the Effective Time and for so
long as an Affected Employee (as defined below) remains in the
employment of the Surviving Corporation or one of its subsidiaries,
Acquiror shall either: (i) provide to each individual who is employed
by the Company or any Company Subsidiary immediately prior to the
Effective Time and who continues as an employee of the Surviving
Corporation or one of its subsidiaries immediately following the
Effective Time (each such employee, an "Affected Employee") benefits
under the employee benefit plans, policies and arrangements in which
such Affected Employee participated immediately prior to the Effective
Time; or, in the alternative and at the discretion of Acquiror,
(ii) permit such Affected Employee to participate in, and provide to
such Affected Employee benefits under, employee benefit plans,
policies and arrangements that are substantially similar to those
provided from time to time by Acquiror and its subsidiaries generally
to their similarly situated employees. Nothing herein shall obligate
Acquiror to maintain any specific Benefit Plan of the Company and the
Company Subsidiaries following the Effective Time.
(b) Eligibility for Benefits. Acquiror shall, or shall
cause the Surviving Corporation to, give to each Affected Employee of
the Company or of any Company Subsidiary credit for purposes of
eligibility to participate, eligibility for early retirement,
disability retirement, pre-retirement death benefits and vesting under
any employee benefit plans, programs, policies or arrangements maint-
ained by Acquiror, the Surviving Corporation or any ERISA Affiliate in
which Affected Employees of the Company or any Company Subsidiary
participate after the Effective Time for such persons' service with
the Company or any Company Subsidiary (or any other employer to the
extent credited by the Company) as though such prior service had been
provided to Acquiror or any of its Subsidiaries.
(c) Medical and Welfare Plan Obligations. Acquiror
shall, or shall cause the Surviving Corporation to, (i) waive all
limitations as to pre-existing conditions, exclusions and waiting
periods and service requirements with respect to participation and
coverage requirements applicable to the Affected Employees under any
welfare benefit plans that such persons may be eligible to participate
in after the Effective Time, other than limitations, waiting periods
or service requirements that are already in effect with respect to
such persons and that have not been satisfied as of the Effective
Time, and (ii) provide each Affected Employee with credit for any co-
payments and deductibles paid prior to the Effective Time in
satisfying any applicable deductible or out-of-pocket requirements
under any welfare plans that such persons are eligible to participate
in after the Effective Time.
IX.8 Indemnification of Directors and Officers; Directors &
Officers Insurance. {tc \l2 " IX.8 Indemnification of Directors
and Officers; Directors & Officers Insurance. }
(a) Indemnification. From and after the Effective Time,
Acquiror shall, or shall cause the Surviving Corporation to, indemnify
and hold harmless the individuals who at or prior to the Effective
Time were officers, directors, employees and agents of the Company or
the Company Subsidiaries (collectively, the "Indemnitees") with
respect to all acts or omissions by them in their capacities as such
or taken at the request of the Company or any of the Company
Subsidiaries at any time at or prior to the Effective Time, but only
to the extent the Company or any Company Subsidiary would be obligated
to indemnify and hold harmless such Indemnitee under the terms of its
certificate of incorporation, by-laws or similar organizational
documents in effect on the date of this Agreement and as permitted by
applicable Law. An Indemnitee shall have a right to participate in
(but not control) the defense of any such matter with its own counsel
and at its own expense. Notwithstanding the right of the Surviving
Corporation to assume and control the defense of such litigation,
claim or proceeding, such Indemnitee shall have the right to employ
separate counsel and to participate in the defense of such litigation,
claim or proceeding, and the Surviving Corporation shall bear the
reasonable fees, costs and expenses of such separate counsel and shall
pay such fees, costs and expenses promptly after receipt of an invoice
from such Indemnitee if (i) the use of counsel chosen by the Surviving
Corporation to represent such Indemnitee would present such counsel
with a conflict of interest or (ii) such Indemnitee shall have legal
defenses available to it or to other Indemnitees which are different
from, or in addition to, those available to the Surviving Corporation.
The Surviving Corporation shall not settle any matter unless the terms
of the settlement provide that the Indemnitee shall have no
responsibility of the discharge of any settlement amount and impose no
other obligations or duties on the Indemnitee and that the settlement
discharges all rights against Indemnitee with respect to such matter.
From and after the Effective Time, Acquiror shall, or shall cause the
Surviving Corporation to, honor and not amend, repeal or otherwise
modify in a manner that would adversely affect the rights of any
Indemnitee all rights to indemnification, or exculpation, existing in
favor of an Indemnitee (including, without limitation, rights relating
to the advancement of expenses and indemnification rights to which
such persons are entitled because of services as a director, officer,
agent or employee of another entity at the request of the Company or
any of the Company Subsidiaries) as provided under the applicable
provision of the DGCL, the certificate of incorporation of the
Company, the by-laws of the Company, or any indemnification agreement,
in each case, as in effect on the date of this Agreement.
(b) Liability Insurance. For a period of six (6) years
after the Effective Time, Acquiror shall, or shall cause the
Surviving Corporation to, maintain in effect directors' and officers'
liability insurance covering those persons who, as of immediately
prior to the Effective Time, are covered by the Company's and the
Company Subsidiaries' directors' and officers' liability insurance
policies (the "Insured Parties") on terms no less favorable to the
Insured Parties than those of the present directors' and officers'
liability insurance policies; provided, however, that Acquiror shall
not be obligated to make annual premium payments for such insurance to
the extent such premiums exceed 175% of the per annum rate of premiums
paid as of the date hereof by the Company and the Company Subsidiaries
for such insurance; provided further, that if such insurance cannot be
so maintained or obtained at such cost, Acquiror shall maintain or
obtain as much of such insurance as can be so maintained or obtained
at a cost equal to 175% of the current per annum premiums of the
Company and the Company Subsidiaries for its directors' and officers'
liability insurance.
(c) Enforcement. Except as provided in Section 9.8(b)
hereof, the obligations of Acquiror under this Section 9.8 shall not
be terminated or modified in such a manner as to adversely affect any
Indemnitee to whom this Section 9.8 applies without the consent of the
affected Indemnitee (it being expressly agreed and understood that the
Indemnitees and Insured Parties to whom this Section 9.8 applies shall
be third party beneficiaries of this Section 9.8 and the provisions of
this Section 9.8 shall be enforceable by each Indemnitee and/or
Insured Party and the heirs and representatives of such persons and
shall be binding on all successors and assigns of Acquiror, the
Company and the Surviving Corporation). In the event Acquiror or the
Surviving Corporation or any of their successors or assigns (i)
consolidates with or merges into any other person or entity and shall
not be the continuing or surviving entity of such consolidation or
merger or (ii) transfers or conveys a majority of its properties and
assets to any person or entity then, and in each case, proper
provision shall be made so that the successors, assigns and
transferees of Acquiror or the Surviving Corporation, as the case may
be, assume the obligations set forth in this Section 9.8.
IX.9 Event Notices. {tc \l2 " IX.9 Event Notices. }From
the date of this Agreement until the Effective Time, each party hereto
will promptly notify the other party hereto of (i) the occurrence or
nonoccurrence of any event of which it is aware the occurrence or
nonoccurrence of which would be likely to cause any condition to the
obligations of such party to effect the Merger and the other
transactions contemplated by this Agreement not to be satisfied or
(ii) the failure of such party to comply with any covenant or
agreement to be complied with by it pursuant to this Agreement which
would be likely to result in any condition to the obligations of such
party to effect the Merger and the other transactions contemplated by
this Agreement not to be satisfied. No delivery of any notice
pursuant to this Section 9.9 will cure any breach of any
representation or warranty of such party contained in this Agreement
or otherwise limit or affect the remedies available hereunder to the
party receiving such notice.
IX.10 Conveyance Taxes. {tc \l2 " IX.10 Conveyance Taxes.
}Acquiror and the Company shall cooperate in the preparation,
execution and filing of all returns, questionnaires, applications, or
other documents regarding (i) any real property transfer gains, sales,
use, transfer, value-added, stock transfer and stamp taxes, (ii) any
recording, registration and other fees, and (iii) any similar taxes or
fees that become payable in connection with the transactions
contemplated hereby. The taxes described above shall be paid by
Acquiror.
IX.11 No Solicitation.{tc \l2 " IX.11 No Solicitation.}
(a) The Company shall not, and shall cause the Company
Subsidiaries and use its reasonable best efforts to cause the
Company's officers, directors, employees, consultants, investment
bankers, attorneys, accountants and other agents and representatives
(collectively, the "Representatives") not to, directly or indirectly:
(i) encourage, solicit, initiate or facilitate the making of, or take
any other action to facilitate any inquires or the making of, any
proposal that constitutes or may reasonably be expected to lead to,
any Competing Transaction (as defined below); (ii) participate in any
way in discussions or negotiations with, or furnish or disclose any
nonpublic information to, any person (other than Acquiror) (a "Third
Party") in connection with any Competing Transaction; or (iii) enter
into any agreement, letter of intent or similar document contemplating
or otherwise relating to any Competing Transaction; provided, however,
that this Section 9.11 shall not prohibit the Company, the Company
Subsidiaries or the Representatives from:
(A) participating in discussions or negotiations with,
or furnishing or disclosing nonpublic information to, any Third Party
in response to an unsolicited, bona fide and written proposal that
constitutes, or may reasonably expected to lead to, a Competing
Transaction that is submitted to the Company by such Third Party if:
(I) none of the Company, any Company Subsidiary or any of the
Representatives shall have violated any of the provisions of this
Section 9.11; (II) the Company Board determines in good faith, after
having taken into account the written advice of an independent
nationally recognized financial adviser, that such Competing
Transaction is reasonably likely to lead to a Superior Competing
Transaction; (III) at least two (2) business days prior to
participating in discussions or negotiations with, or furnishing or
disclosing any nonpublic information to, such Third Party, the Company
gives Acquiror written notice of the identity of such Third Party and
of the Company's intention to participate in discussions or negotia-
tions with, or furnish or disclose nonpublic information to, such
Third Party, and the Company receives from such Third Party an
executed confidentiality agreement containing terms no less
restrictive than the terms of the Confidentiality Agreement; and (IV)
at least two (2) business days prior to furnishing or disclosing any
nonpublic information to such Third Party, the Company furnishes such
information to Acquiror (to the extent such information has not
previously been delivered or made available to Acquiror by the Com-
pany); or
(B) approving, recommending and entering into a
definitive agreement with respect to an unsolicited, bona fide and
written proposal or offer for a Competing Transaction that is
submitted to the Company if: (I) none of the Company, any of the
Company Subsidiaries or any of the Representatives have violated any
of the provisions of this Section 9.11; (II) the Company provides
Acquiror with written notice at least two (2) business days prior to
any meeting of the Company Board at which such Company Board will
consider whether such Competing Transaction constitutes a Superior
Competing Transaction; (III) the Company Board makes the determination
necessary for such Competing Transaction to constitute a Superior
Competing Transaction; and (IV) the Company does not enter into a
definitive agreement with respect to such Competing Transaction at any
time before the day that is the second business day after Acquiror
receives written notice from the Company stating that the Company
Board has determined such Competing Transaction constitutes a Superior
Competing Transaction.
(b) In addition to the obligations of the Company set forth
in Section 9.11(a), the Company promptly shall advise Acquiror of any
request for information relating to a Competing Transaction, or any
inquiry, proposal, discussions or negotiation with respect to any
Competing Transaction, and shall inform Acquiror of the terms and
conditions of such request, inquiry, proposal, discussion or
negotiation, and, if a proposal for a Competing Transaction is made,
the identity of the Third Party proposing such Competing Transaction.
The Company shall keep Acquiror fully informed of the status and
general progress (including amendments or proposed amendments) of any
such request, inquiry, proposal, discussions or negotiation with
respect to a proposal for a Competing Transaction. The Company
promptly shall provide to Acquiror any non-public information the
Company provides to any Third Party in connection with any Competing
Transaction that has not previously been provided to Acquiror.
(c) The Company shall, and shall cause the Company
Subsidiaries and its Representatives to, immediately cease any
discussions or negotiations with any Third Parties that may be ongoing
as of the date hereof with respect to any Competing Transaction. The
Company immediately shall request each Third Party who has heretofore
executed a confidentiality agreement in connection with its
consideration of acquiring the Company or any portion thereof to
return all confidential information heretofore furnished to such Third
Party by or on behalf of the Company.
(d) "Competing Transaction" shall mean any proposal or
offer from any Third Party (in each case, whether or not in writing
and whether or not delivered to the stockholders of the Company
generally) relating to: (i) any direct or indirect acquisition or
purchase of 50% or more of the assets of the Company or the Company
Subsidiaries, taken as a whole; (ii) any tender offer or exchange
offer that, if consummated, would result in any Third Party acquiring
beneficial ownership of 50% or more of any class of equity security of
the Company; or (iii) any merger, consolidation, business combination,
sale of substantially all of the assets, recapitalization,
liquidation, dissolution or similar transaction involving the Company
or any Company Subsidiary, which is structured to permit such Third
Party to acquire beneficial ownership of more than 50% of the assets
of the Company and the Company Subsidiaries, taken as a whole, or more
than 50% of any class of equity securities of the Company.
(e) "Superior Competing Transaction" shall mean a bona fide
written, fully-financed (which, for the purposes of this Agreement, in
the case of a proposal requiring third-party financing, shall include
the receipt of a commitment letter from a reputable Third Party
capable of financing the transaction, subject to normal and customary
conditions and exceptions), proposal made by such Third Party to
acquire more than eighty percent (80%) of all of the issued and
outstanding shares of Company Common Stock, whether pursuant to tender
offer, merger, stock purchase or otherwise, or to acquire more than
eighty percent (80%) of the properties and assets of the Company and
the Company Subsidiaries, taken as a whole, in either case on terms
and conditions that the Company Board determines in good faith is more
favorable to the Company's stockholders from a financial point of view
than the transactions contemplated by this Agreement, after taking
into account (i) the written advice of an independent nationally
recognized financial advisor, (ii) all the terms and conditions of
such proposal (including, without limitation, any expense
reimbursement provisions, termination fees and conditions) and (iii)
the likelihood of such proposal being consummated.
IX.12 Affiliates. {tc \l2 " IX.12 Affiliates. }The
Company shall use its reasonable efforts to cause each of its
directors and executive officers and any other person who is an
"affiliate" (for purposes of Rule 145 under the Securities Act) of the
Company to deliver to Acquiror, prior to the Effective Time, a written
agreement substantially in the form attached hereto at Exhibit A,
executed by each of such persons.
IX.13 No Implied Representations or Warranties;
Investigation. {tc \l2 " IX.13 No Implied Representations or
Warranties; Investigation. }
(a) No Implied Representations and Warranties. The parties
hereby acknowledge and agree that no party is making any
representation or warranty whatsoever, express or implied, except
those representations and warranties explicitly set forth in this
Agreement. Without limiting the generality of the foregoing, (i)
except for the express representations and warranties made by the
Company in Article V hereof, the Company makes no representation or
warranty to Acquiror and Merger Sub with respect to: (A) any
projections, estimates or budgets heretofore delivered to or made
available to Acquiror or Merger Sub of future revenues, expenses or
expenditures or future results of operations; or (B) any other
information or documents (financial or otherwise) made available to
Acquiror or Merger Sub or their counsel, accountants or advisers with
respect to the Company and the Company Subsidiaries and (ii) except
for the express representations and warranties made by the Acquiror
Companies pursuant to Article VI hereof, the Acquiror Companies make
no representation or warranty to the Company with respect to any
information or documents (financial or otherwise) made available to
the Company or any Company Subsidiary or the Company's counsel,
accountants or advisers with respect to Acquiror and the Acquiror's
subsidiaries.
(b) Investigation. No investigation conducted by Acquiror
and its Representatives of the business and affairs of the Company and
the Company Subsidiaries, and no information obtained by Acquiror as a
result thereof, shall in any manner affect the representations and
warranties made by the Company pursuant to Article V of this
Agreement. Likewise, no investigation conducted by the Company and
its Representatives of the business and affairs of Acquiror and the
Acquiror subsidiaries, and no information obtained by the Company as a
result thereof, shall in any manner affect the representations and
warranties made by the Acquiror Companies pursuant to Article VI of
this Agreement.
IX.14 Tax-Free Merger. {tc \l2 " IX.14 Tax-Free
Merger. }From the date of this Agreement to the Effective Time, no
party shall take or fail to take any action, which action or failure
would prevent the Merger from qualifying as a reorganization within
the meaning of Section 368(a) of the Code. Each of the Company,
Acquiror and Merger Sub shall use its reasonable best efforts, and
each agrees to cooperate with the other parties and provide one
another with such documentation, information and materials as may be
reasonably necessary, proper or advisable, to cause the Merger to
qualify as a reorganization within the meaning of Section 368(a) of
the Code. Following the Merger, Acquiror shall not, and shall cause
the Surviving Corporation not to, take (or fail to take) any action
that would reasonably be expected to cause the Merger to fail to
qualify as such a reorganization within the meaning of Section 368(a)
of the Code.
9.15 Lenders Consent{tc \l2 "9.15 Lenders Consent}. Acquiror
shall use its best efforts to obtain as promptly as practicable all
authorizations, consents and approvals from lenders under the Credit
Agreement, dated as of May 9, 2001, among Acquiror, the lenders party
thereto from time to time and Bankers Trust Company, as Administrative
Agent (the "Credit Agreement") which are necessary for Acquiror's
execution and delivery of, and the performance of its obligations
under, this Agreement (the "Lenders Consent").
ARTICLE X
CLOSING CONDITIONS{tc \l1 " ARTICLE X CLOSING
CONDITIONS}
X.1 Conditions to Obligations of Each Party Under This
Agreement. {tc \l2 " X.1 Conditions to Obligations of Each Party
Under This Agreement. }The respective obligations of each party to
effect the Merger and the other transactions contemplated hereby will
be subject to the satisfaction at or prior to the Effective Time of
the following conditions, any or all of which may be waived by the
party entitled to the benefit thereof, in whole or in part, to the
extent permitted by applicable Law:
(a) Effectiveness of the Registration Statement. The
Registration Statement shall have been declared effective in
accordance with the provisions of the federal securities laws; no stop
order suspending the effectiveness of the Registration Statement shall
be in effect; and no proceedings for that purpose shall be pending
before or threatened by the SEC. Additionally, the shares of the
Acquiror Common Stock issuable to the Company stockholders shall have
been approved for listing on the NYSE, subject to official notice of
issuance.
(b) Stockholder Approval. This Agreement and the Merger
shall have been approved and adopted by the stockholders of the
Company in accordance with Delaware Law.
(c) No Order. No court or governmental entity having
jurisdiction over the Company or Acquiror shall have enacted, issued,
promulgated, enforced or entered any Law that is then in effect and
that has the effect of making the Merger illegal or otherwise
prohibiting consummation of the Merger substantially on the terms
contemplated by this Agreement.
(d) Regulatory Approvals. All applicable waiting periods
under the HSR Act shall have expired or been terminated; and all
applicable waiting periods under applicable non-U.S. merger control or
competition Laws listed on Schedule 10.1(d) of the Company Disclosure
Schedule shall have expired or been terminated (or, if applicable, all
applicable approvals under such Laws listed on Schedule 10.1(d) of the
Company Disclosure Schedule shall have been obtained).
X.2 Additional Conditions to Obligations of the Acquiror
Companies. {tc \l2 " X.2 Additional Conditions to Obligations of
the Acquiror Companies. } The obligations of the Acquiror Companies
to effect the Merger and the other transactions contemplated hereby
shall be subject to the satisfaction at or prior to the Effective Time
of the following additional conditions, any or all of which may be
waived by the Acquiror Companies, in whole or in part, to the extent
permitted by applicable Law:
(a) Representations and Warranties. Each of the
representations and warranties of the Company contained in this
Agreement shall be true and correct as of the date hereof and as of
the Closing Date as if made as of such time, except that, to the
extent such representations and warranties address matters only as of
a particular date, such representations and warranties shall, to such
extent, be true and correct as of such particular date as if made as
of such particular date; provided, however, that if any of such
representations and warranties shall not be true and correct as
aforesaid, then this condition shall nevertheless be deemed satisfied
if the failure of such representation and warranty to be true and
correct shall not be reasonably likely to have a Company Material
Adverse Effect. The Acquiror Companies shall have received a
certificate of an executive officer of the Company, dated as of the
Closing Date, to such effect.
(b) Agreements and Covenants. The Company shall have
performed or complied in all material respects with all agreements and
covenants required by this Agreement to be performed or complied with
by it at or prior to the Closing; provided, however, that
notwithstanding the above, the Company shall have complied in all
respects with the terms of Section 7.1(b) of this Agreement. The
Acquiror Companies shall have received a certificate of an executive
officer of the Company, dated the Closing Date, to such effect.
(c) Dissenters. Dissenting Shares shall represent less
than 30% of all outstanding shares of Company Common Stock as of the
record date set for determining shares of Company Common Stock
entitled to vote on approval of this Agreement.
(d) Registration Rights Agreement. At the Closing, the
Company shall deliver to Acquiror registration rights agreements
substantially in the form attached hereto at Exhibit B (the
"Registration Rights Agreement") executed on behalf of holders of at
least 70% of the shares of Company Common Stock including shares
underlying outstanding Company Stock Options.
(e) Market Change. There shall have been no material
adverse change to the syndication market for credit facilities similar
in nature to the Incremental Senior Bank Financing (as defined in the
Financing Commitments) contemplated in the Financing Commitments and
there shall not have occurred and be continuing a disruption of or an
adverse change in the financial, banking, capital or loan syndication
markets that would have a material adverse effect on the syndication
of the Incremental Senior Bank Financing as a result of which the
Lenders (as defined in the Financing Commitments) do not provide the
Incremental Senior Bank Financing.
(f) Lenders Consent. Acquiror shall have received the
Lenders Consent.
X.3 Additional Conditions to Obligations of the Company. {tc
\l2 " X.3 Additional Conditions to Obligations of the Company.
}The obligations of the Company to effect the Merger and the other
transactions contemplated hereby shall be subject to the satisfaction
at or prior to the Effective Time of the following additional
conditions, any or all of which may be waived by the Company, in whole
or in part, to the extent permitted by applicable Law:
(a) Representations and Warranties. Each of the
representations and warranties of the Acquiror Companies contained in
this Agreement shall be true and correct as of the date hereof and as
of the Closing Date as if made as of such time, except that to the
extent such representations and warranties address matters only as of
a particular date, such representations and warranties shall, to such
extent, be true and correct as of such particular date as if made as
of such particular date; provided, however, that if any of such
representations and warranties shall not be true and correct as
aforesaid, then this condition shall nevertheless be deemed satisfied
if the failure of such representation and warranty to be true and
correct shall not be reasonably likely to have an Acquiror Material
Adverse Effect. The Company shall have received a certificate of an
executive officer of each of the Acquiror Companies, dated the Closing
Date, to such effect.
(b) Agreements and Covenants. The Acquiror Companies shall
have performed or complied in all material respects with all
agreements and covenants required by this Agreement to be performed or
complied with by them at or prior to the Closing. The Company shall
have received a certificate of an executive officer of each of the
Acquiror Companies, dated the Closing Date, to such effect.
(c) Tax Opinion. The Company shall have received the
opinion of its tax counsel, Skadden, Arps, Slate, Xxxxxxx & Xxxx
(Illinois), dated as of the Closing Date, to the effect that the
Merger will qualify as a reorganization within the meaning of Section
368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate,
Xxxxxxx & Xxxx (Illinois) may rely upon and require such certificates
of the Acquiror, the Company and Merger Sub and/or their officers it
deems necessary in its reasonable discretion. The specific provisions
of each such certificate shall be in form and substance reasonably
satisfactory to such tax counsel rendering such opinion, and each such
certificate shall be dated on or before the date of such opinion and
shall not have been withdrawn or modified in any material respect.
ARTICLE XI
TERMINATION, AMENDMENT AND EXPENSES{tc \l1 " ARTICLE XI
TERMINATION, AMENDMENT AND EXPENSES}
XI.1 Termination. {tc \l2 " XI.1 Termination. }This Agreement
may be terminated and the Merger abandoned at any time prior to the
Effective Time, whether before or after approval of this Agreement and
the Merger by the stockholders of the Company:
(a) by mutual consent of Acquiror and the Company;
(b) by Acquiror, upon a material breach of any covenant or
agreement on the part of the Company set forth in this Agreement, or
if any representation or warranty of the Company hereunder shall be or
become untrue, in any case such that the conditions set forth in
Section 10.2(a) or Section 10.2(b) would not be satisfied (a
"Terminating Company Breach"); provided that, if such Terminating
Company Breach is curable by the Company through the exercise of its
reasonable efforts within thirty (30) days, and the Company continues
to exercise such reasonable efforts and the matter is cured within
such thirty (30) day period, Acquiror may not terminate this Agreement
under this Section 11.1(b);
(c) by the Company, upon material breach of any covenant or
agreement on the part of the Acquiror Companies set forth in this
Agreement, or if any representation or warranty of the Acquiror
Companies shall be or become untrue, in any case such that the
conditions set forth in Section 10.3(a) or Section 10.3(b) would not
be satisfied (a "Terminating Acquiror Breach"); provided that, if such
Terminating Acquiror Breach is curable by the Acquiror Companies
through the exercise of their reasonable efforts within thirty (30)
days, and the Acquiror Companies continue to exercise such reasonable
efforts and the matter is cured within such thirty (30) day period,
the Company may not terminate this Agreement under this Section
11.1(c);
(d) by either Acquiror or the Company, if there shall be
any order of a court or governmental entity having jurisdiction over a
party hereto which is final and nonappealable permanently enjoining,
restraining or prohibiting the consummation of the Merger, unless the
party relying on such order has not complied with its obligations
under Section 9.4;
(e) by either Acquiror or the Company, if the Effective
Time shall not have occurred on or before September 30, 2002 (the
"Termination Date"); provided, further, that the right to terminate
this Agreement under this Section 11.1(e) shall not be available to
any party whose failure to fulfill any obligation under this Agreement
has been a cause of, or resulted in, the failure of the Effective Time
to occur before the Termination Date;
(f) by either Acquiror or the Company, if the Company calls
and holds a Company Stockholders Meeting and this Agreement and the
Merger shall fail to receive the requisite approval of the
stockholders of the Company at such Company Stockholders Meeting;
(g) by either Acquiror or the Company, if the Company
solicits the written consent of the stockholders of the Company to
approve and adopt this Agreement and the Merger in lieu of calling the
Company Stockholders Meeting and this Agreement and the Merger shall
fail to receive the requisite approval of the stockholders of the
Company at the expiration time for submitting such consents (it being
agreed and understood that the Company shall have sole discretion to
determine such expiration time for the submission of written
consents);
(h) by the Company, if the Company's Board shall have
approved, recommended or endorsed any Superior Competing Transaction
or resolved to do any of the foregoing in accordance with the
provisions of Section 9.11 of this Agreement; or
(i) by the Company, if, within 60 days from the date
hereof, Acquiror shall not have obtained the Lender Consent and (i)
delivered to the Company a certificate of an executive officer of
Acquiror to such effect and (ii) irrevocably waived its condition to
Closing set forth in Section 10.2(f).
XI.2 Effect of Termination. {tc \l2 " XI.2 Effect of
Termination. }Except (i) as provided in this Section 11.2, and
(ii) for the agreements contained in Section 11.5 and the
Confidentiality Agreement, in the event of the termination of this
Agreement pursuant to Section 11.1, this Agreement shall forthwith
become void, and there will be no liability on the part of the
Acquiror Companies or the Company or any of their respective officers
or directors to the other and all rights and obligations of any party
hereto will cease, except that nothing herein will relieve any party
from liability for any willful breach, prior to termination of this
Agreement in accordance with its terms, of any representation,
warranty, covenant or agreement contained in this Agreement.
XI.3 Amendment. {tc \l2 " XI.3 Amendment. }This Agreement
may be amended by the parties hereto by action taken by or on behalf
of their respective boards of directors at any time prior to the
Effective Time; provided, however, that, after approval of the Merger
by the stockholders of the Company, no amendment may (i) alter or
change the amount or kind of shares, securities, cash, property and/or
rights to be received in exchange for all or any of the Company Common
Stock; (ii) alter or change any term of the certificate of
incorporation of the Surviving Corporation; or (iii) alter or change
any of the terms and conditions of this Agreement if such alteration
or change would adversely affect any holders of shares of Company
Common Stock. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
XI.4 Waiver. {tc \l2 " XI.4 Waiver. }At any time prior to the
Effective Time, any party hereto may (a) extend the time for the
performance of any of the obligations or other acts of the other party
hereto; (b) waive any inaccuracies in the representations and warran-
ties of the other party contained herein or in any document delivered
pursuant hereto; and (c) waive compliance by the other party with any
of the agreements or conditions contained herein. Any such extension
or waiver will be valid only if set forth in an instrument in writing
signed by the party or parties to be bound thereby. For purposes of
this Section 11.4, the Acquiror Companies will be deemed to be one
party.
XI.5 Fees and Expenses.{tc \l2 " XI.5 Fees and Expenses.}
(a) In the event that this Agreement shall be terminated by
either party pursuant to Section 11.1(f) or Section 11.1(g) and, at
the time of such termination, all conditions of the parties to
consummate the Merger (other than the conditions set forth in Sections
10.1(b), 10.1(d) and 10.2(d)) have been fully satisfied, then the
Company shall reimburse Acquiror for all reasonable fees, costs and
expenses incurred by Acquiror in connection with the transactions
contemplated by this Agreement, including, without limitation, filing
fees paid by Acquiror to regulatory agencies, fees of Acquiror's
investment bankers, consultants, financial advisers, legal counsel,
accountants and other agents and representatives incurred in
connection with the analysis and assessment of the transactions
contemplated by this Agreement, the preparation and submission of
indications of interest and a binding bid with respect to those
transactions, and the negotiation and execution of, and preparation
for the consummation of the transactions contemplated by, this
Agreement, up to a maximum amount of $2,500,000 ("Acquiror Transaction
Costs"); provided, however, that the Company shall not be required to
reimburse Acquiror for any Acquiror Transaction Costs if the Average
Closing Sales Price for the 10 consecutive NYSE trading days prior to
either (x) the Company Stockholders Meeting or (y) the expiration time
for stockholder's of the Company to submit written consents in lieu of
a meeting with regard to approving and adopting this Agreement and the
Merger, as applicable, was less than $31.20. Promptly following such
termination of this Agreement, Acquiror shall prepare and deliver to
the Company a certificate executed by an officer of Acquiror
certifying the amount of the Acquiror Transaction Costs. Within five
(5) business days of the Company's receipt of that certificate, the
Company shall make a reimbursement payment to Acquiror in immediately
available funds in an amount equal to the amount of the Acquiror
Transaction Costs.
(b) In the event that this Agreement shall be terminated by
the Company pursuant to Section 11.1(i), then Acquiror shall reimburse
the Company for all reasonable fees, costs and expenses incurred by
the Company in connection with the transactions contemplated by this
Agreement, including, without limitation, fees of the Company's
investment bankers, consultants, financial advisers, legal counsel,
accountants and other agents and representatives incurred in
connection with the preparation for and evaluation of indications of
interest and bids related to those transactions, and the negotiation
and execution of, and preparation for the consummation of the
transactions contemplated by, this Agreement ("Company Transaction
Costs") up to a maximum amount of $2,500,000.
(c) In the event that this Agreement shall be terminated:
(i) by the Company pursuant to Section 11.1(e) and, at or prior
to such time, the Company Stockholders Meeting shall not have occurred
and, from and after the date hereof and at or prior to the termination
of this Agreement pursuant to Section 11.1(e), a proposal for a
Competing Transaction shall have been received by the Company and,
within nine (9) months after such termination, the Company enters into
an agreement with respect to such proposal for a Competing
Transaction;
(ii) by either party pursuant to Sections 11.1(f) or 11.1(g)
and, from and after the date hereof and at or prior to the time of the
failure of the stockholders of the Company to approve and adopt the
Merger and this Agreement, a proposal for a Competing Transaction
shall have been received by the Company, and within nine (9) months
after such termination, the Company enters into an agreement with
respect to such proposal for a Competing Transaction; or
(iii) by the Company pursuant to Section 11.1(h)
then the Company shall pay Acquiror promptly (but in no event later
than 5 business days after the occurrence of the event requiring such
payment) a fee of $7,000,000
(less the amount of any reimbursement payment previously made by the
Company to Acquiror pursuant to Section 11.5(a) of this Agreement)
(the "Fee"), which amount shall be payable in immediately available
funds.
(d) Except as set forth in this Section 11.5, all expenses
incurred by the parties hereto will be borne solely and entirely by
the party which has incurred such expenses; provided, however, that
Acquiror shall pay the expenses related to printing, filing and
mailing the Registration Statement and the Proxy Statement and all SEC
and other regulatory filing fees (including any HSR or non-U.S. merger
control or competition Law filing fees) incurred in connection with
the Registration Statement, the Proxy Statement and the transactions
contemplated hereby.
(e) In the event that a party shall fail to pay the Fee
when due, the Fee shall be deemed to include the costs and expenses
actually incurred or accrued by the party to whom the Fee is due
(including, without limitation, reasonable fees and expenses of
counsel) in connection with the collection under and enforcement of
this Section 11.5, together with interest on such unpaid Fee,
commencing on the date that the Fee became due, at a rate equal to the
rate of interest publicly announced by Citibank, N.A., from time to
time, in the City of New York, as such bank's Base Rate plus 2%.
ARTICLE XII
GENERAL PROVISIONS{tc \l1 " ARTICLE XII
GENERAL PROVISIONS}
XII.1 Interpretation. {tc \l2 " XII.1 Interpretation.
}
(a) When a reference is made in this Agreement to a section
or article, such reference shall be to a section or article of this
Agreement unless otherwise clearly indicated to the contrary.
(b) Whenever the words "include", "includes" or "including"
are used in this Agreement they shall be deemed to be followed by the
words "without limitation."
(c) The words "hereof", "hereby", "herein" and "herewith"
and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole and not to any
particular provision of this Agreement, and article, section,
paragraph, exhibit and schedule references are to the articles,
sections, paragraphs, exhibits and schedules of this Agreement unless
otherwise specified.
(d) The words "knowledge," or "known to," or similar terms,
when used in this Agreement to qualify any representation or warranty,
refers to the actual (and not imputed or constructive) knowledge or
conscious awareness of certain specific facts or circumstances related
to such representation or warranty of the persons in the Applicable
Knowledge Group (as defined herein), without any further inquiry,
investigation or due diligence on the part of any such person. For
the purposes hereof, the "Applicable Knowledge Group" with respect to
the Company shall be the executive officers of the Company listed in
Section 12.1(d) of the Company Disclosure Schedule. For the purposes
hereof, the "Applicable Knowledge Group" with respect to the Acquiror
Companies shall be the persons listed in Section 12.1(d) of the
Acquiror Disclosure Schedule.
(e) The word "subsidiary" shall mean any entity of which at
least a majority of the outstanding shares or other equity interests
having ordinary voting power for the election of directors or
comparable managers of such entity is owned, directly or indirectly,
by another entity or person. The words "Company Subsidiary" shall
mean any subsidiary of the Company.
(f) The plural of any defined term shall have a meaning
correlative to such defined term, and words denoting any gender shall
include all genders. Where a word or phrase is defined herein, each
of its other grammatical forms shall have a corresponding meaning.
(g) A reference to any legislation or to any provision of
any legislation shall include any modification or re-enactment
thereof, any legislative provision substituted therefor and all
regulations and statutory instruments issued thereunder or pursuant
thereto.
(h) The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity
or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties, and no presumption
or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.
XII.2 Termination of Representations and Warranties. {tc \l2
" XII.2 Termination of Representations and Warranties. }The
representations and warranties in this Agreement or in any instrument
delivered pursuant to this Agreement will terminate at, and will have
no further force and effect after, the Effective Time.
XII.3 Notices. {tc \l2 " XII.3 Notices. }Any notice,
request, instruction or other document to be given hereunder by any
party to another party shall be in writing and shall be deemed given
when delivered personally, upon receipt of a transmission confirmation
(with a confirming copy sent by overnight courier) if sent by
facsimile or like transmission, and on the next business day when sent
by Federal Express, United Parcel Service, Express Mail or other
reputable overnight courier, as follows:
(a) If to either of the Acquiror Companies, to:
The Manitowoc Company, Inc.
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000
(000) 000-0000 (telecopier)
(000) 000-0000 (telephone)
Attention: Xxxxxxx X. Xxxxx, General Counsel
with a copy to:
Xxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
(000) 000-0000 (telecopier)
(000) 000-0000 (telephone)
Attention: Xxxxxxxx X. Xxxxx
(b) If to the Company, to:
Grove Investors, Inc.
0000 Xxxxxxxx Xxxxx Xxxx
Xxxxx Xxxxx XX 00000-0000
(000) 000-0000 (telecopier)
(000) 000-0000 (telephone)
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxx
(000) 000-0000 (telecopier)
(000) 000-0000 (telephone)
or to such other persons or addresses as may be designated in writing
by the party to receive such notice. Nothing in this section shall be
deemed to constitute consent to the manner and address for service of
process in connection with any legal proceeding (including litigation
arising out of or in connection with this Agreement), which service
shall be effected as required by applicable Law.
XII.4 Headings. {tc \l2 " XII.4 Headings. }The
headings contained in this Agreement are for reference purposes only
and will not affect in any way the meaning or interpretation of this
Agreement.
XII.5 Severability. {tc \l2 " XII.5 Severability. }If
any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law or public policy, all
other conditions and provisions of this Agreement will nevertheless
remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of
being enforced, the parties hereto will negotiate in good faith to
modify
this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the extent possible.
XII.6 Entire Agreement. {tc \l2 " XII.6 Entire
Agreement. }This Agreement, including the Company Disclosure
Schedules and the Acquiror Disclosure Schedules, and the
Confidentiality Agreement constitute the entire agreement of the
parties, and supersede all prior agreements and undertakings, both
written and oral, among the parties, with respect to the subject
matter hereof and thereof.
XII.7 Assignment. {tc \l2 " XII.7 Assignment. }This
Agreement and all of the provisions hereof shall be binding upon, and
inure to the benefit of, the parties hereto and their respective
successors and permitted assigns, but neither this Agreement, nor any
of the rights, interests, or obligations hereunder shall be assigned
by operation of law or otherwise by any of the parties hereto without
the prior written consent of the other parties.
XII.8 Parties in Xxxxxxxx{xx \x0 " XII.8 Parties in
Interest}. This Agreement shall be, except as provided in Section
9.8(c), binding upon and inure solely to the benefit of each party
hereto, and nothing in this Agreement, express or implied, is
intended to or will confer upon any other person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
XII.9 Failure or Indulgence Not Waiver; Remedies
Xxxxxxxxxx{xx \x0 " XII.9 Failure or Indulgence Not Waiver;
Remedies Cumulative}. No failure or delay on the part of any party
hereto in the exercise of any right hereunder will impair such right
or be construed to be a waiver of, or acquiescence in, any breach of
any representation, warranty, agreement or covenant herein, nor will
any single or partial exercise of any such right preclude other or
further exercise thereof or of any other right. All rights and
remedies existing under this Agreement are cumulative to, and not
exclusive to, and not exclusive of, any rights or remedies otherwise
available.
XII.10 Governing Law{tc \l2 " XII.10 Governing Law}.
This Agreement and the agreements, instruments and documents
contemplated hereby will be governed by and construed in accordance
with the Laws of the State of Delaware without regard to the conflicts
of law provision thereof.
XII.11 Counterparts{tc \l2 " XII.11 Counterparts}. This
Agreement may be executed in multiple counterparts, and by the
different parties hereto in separate counterparts, each of which when
executed will be deemed to be an original but all of which taken
together will constitute one and the same agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
GROVE INVESTORS, INC.
By: __________________________
Name:
Title:
THE MANITOWOC COMPANY, INC.
By: __________________________
Name:
Title:
GIRAFFE ACQUISITION, INC.
By: __________________________
Name:
Title:
EXHIBIT A
GROVE INVESTORS, INC.
AFFILIATE LETTER
The Manitowoc Company, Inc.
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
I have been advised that as of the date of this letter I
may be deemed to be an "affiliate" of Grove Investors Inc., a
Delaware corporation (the "Company"), as the term "affiliate" is
defined for purposes of paragraphs (c) and (d) of Rule 145 of the
rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act").
Pursuant to the terms of the Agreement and Plan of Merger, dated as
of March 18, 2002 (the "Merger Agreement"), between the Company,
The Manitowoc Company, Inc., a Wisconsin corporation ("Acquiror"),
and Giraffe Acquisition, Inc., a Delaware corporation and a wholly
owned subsidiary of Acquiror ("Merger Sub"), Merger Sub will be
merged with and into the Company (the "Merger").
As a result of the Merger, I may receive shares of common
stock, par value $.01 per share, of Acquiror (the "Acquiror Common
Stock") in exchange for shares owned by me of common stock, par
value $1.00 per share, of the Company (or upon the exercise of
options for such shares of the Company).
I hereby represent and warrant to, and covenant with,
Acquiror that in the event I receive any Acquiror Common Stock as a
result of the Merger:
1. I shall not make any sale, transfer or other
disposition of the Acquiror Common Stock in violation of the
Securities Act or the Rules and Regulations.
2. I have carefully read this letter and the Merger
Agreement and discussed the requirements of such documents and
other applicable limitations upon my ability to sell, transfer or
otherwise dispose of the Acquiror Common Stock, to the extent I
felt necessary, with my counsel or counsel for the Company.
3. I have been advised that the issuance of Acquiror
Common Stock to me pursuant to the Merger has been, or will be,
registered with the Commission under the Securities Act on a
Registration Statement on Form S-4. However, I have also been
advised that, since at the time the Merger was submitted for a vote
of the stockholders of the Company, (i) I may be deemed to have
been an affiliate of the Company and (ii) the distribution by me of
the Acquiror Common Stock has not been registered under the Securi-
ties Act, I may not sell, transfer or otherwise dispose of the
Acquiror Common Stock issued to me in the Merger unless (x) such
sale, transfer or other disposition has been registered under the
Securities Act, (y) such sale, transfer or other disposition is
made in conformity with Rule 145 (as such rule may be hereafter
amended) of the Rules and Regulations, or (z) Acquiror shall have
received either an opinion of counsel, which opinion and counsel
shall be reasonably acceptable to Acquiror, or a "no action" letter
obtained by me from the staff of the Commission, to the effect that
such sale, transfer or other disposition is otherwise exempt from
registration under the Securities Act.
4. I understand that [, except as set forth in the Stock
Restriction and Registration Rights Agreement, dated as of
________, 2002, between Acquiror and certain shareholders of the
Company,] Acquiror is under no obligation to register the sale,
transfer or other disposition of the Acquiror Common Stock by me or
on my behalf under the Securities Act or, except as provided below,
to take any other action necessary in order to make compliance with
an exemption from such registration available.
5. I also understand that there will be placed on the
certificates for the Acquiror Common Stock issued to me, or any
substitutions therefor, a legend stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT
OF 1933 APPLIES, AND MAY ONLY BE SOLD OR OTHERWISE TRANSFERRED IN
COMPLIANCE WITH THE REQUIREMENTS OF RULE 145 OR PURSUANT TO A
REGISTRATION STATEMENT UNDER THAT ACT OR AN EXEMPTION FROM SUCH
REGISTRATION."
6. I also understand that unless the transfer by me of my
Acquiror Common Stock has been registered under the Securities Act
or is a sale made in conformity with the provisions of Rule 145,
Acquiror reserves the right to place the following legend on the
certificates issued to my transferee:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND WERE ACQUIRED FROM
A PERSON WHO RECEIVED SUCH SHARES IN A TRANSACTION TO WHICH RULE
145 PROMULGATED UNDER THE SECURITIES ACT OF 1933 APPLIES. THE
SHARES HAVE BEEN ACQUIRED BY THE HOLDER NOT WITH A VIEW TO, OR FOR
RESALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF WITHIN THE
MEANING OF THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD, PLEDGED
OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933."
It is understood and agreed that the legends set forth in
paragraphs 5 and 6 above shall be removed by delivery of substitute
certificates without such legend if such legend is not required for
purposes of the Securities Act or this Agreement. It is understood
and agreed that such legends referred to above will be removed if
(i) evidence or representations satisfactory to Acquiror that the
Acquiror Common Stock represented by such certificates are being or
have been sold in a transaction made in conformity with the
provisions of Rule 145(d) (as such rule may be hereafter amended),
(ii) Acquiror has received either an opinion of counsel, which
opinion and counsel shall be reasonably satisfactory to Acquiror,
or a "no action" letter obtained by me from the staff of the
Commission, to the effect that the restrictions imposed by Rule 145
under the Securities Act no longer apply to me, (iii) one year
shall have elapsed from the date I acquired the Acquiror Common
Stock received in the Merger and the provisions of Rule 145(d)(2)
are then available to me, or (iv) two years shall have elapsed from
the date I acquired the Acquiror Common Stock received in the
Merger and the provisions of Rule 145(d)(3) are then applicable to
me.
By Acquiror's acceptance of this letter, Acquiror hereby
agrees for so long as and to the extent necessary to permit me to
sell the Acquiror Common Stock pursuant to Rule 145 and, to the
extent applicable, Rule 144 under the Act, Acquiror shall (a) use
its reasonable efforts to (i) file, on a timely basis, all reports
and data required to be filed with the Commission by it pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and (ii) furnish to me upon request a written
statement as to whether Acquiror has complied with such reporting
requirements during the 12 months preceding any proposed sale of
the Acquiror Common Stock by me under Rule 145, and (b) otherwise
use its reasonable efforts to permit such sales pursuant to Rule
145 and Rule 144. Acquiror hereby represents to me that it has
filed all reports required to be filed with the Commission under
Section 13 of the Exchange Act during the preceding 12 months.
This letter agreement shall be governed by and construed
in accordance with the laws of the State of Delaware. This letter
agreement shall terminate if and when the Merger Agreement is
terminated according to its terms.
Execution of this letter should not be considered an
admissions on my part that I am an "affiliate" of the Company as
described in the first paragraph of this letter, or as a waiver of
any rights I may have to object to any claim that I am such an
affiliate on or after the date of this letter.
Very truly yours,
Accepted this ___ day of
____________, 2002 by
THE MANITOWOC COMPANY, INC.
By: __________________________
Name:
Title:
EXHIBIT B
STOCK RESTRICTION AND REGISTRATION RIGHTS AGREEMENT
Dated as of _________, 2002
By and Among
The Manitowoc Company, Inc.
and
The Shareholders Listed
On The Signature Pages Hereto
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS ........................................ 2
ARTICLE 2 TRANSFER RESTRICTIONS; REGISTRATION RIGHTS .......... 5
Section 2.1 Restrictions on Sale. .............................. 5
Section 2.2 Underwritten Offering............................... 7
Section 2.3 Piggyback Registration. ........................ 12
Section 2.4 Obligations of the Company in Connection with a
Registration. .................................. 16
Section 2.5 Information........................................ 20
Section 2.6 Indemnification and Contribution ...................21
Section 2.7 Assignment of Registration Rights .............. 26
Section 2.8 "Market Stand-Off" Agreement ................... 27
Section 2.9 Termination of Registration Obligation ......... 27
ARTICLE 3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SHAREHOLDERS .......................................28
Section 3.1 Authority ....................................... 28
Section 3.2 Legend ............................................ 28
Section 3.3 Notification .......................................29
ARTICLE 4 MISCELLANEOUS ....................................... 29
Section 4.1 Successors and Assigns..............................29
Section 4.2 No Inconsistent Agreements ........................ 29
Section 4.3 Remedies ....................................... 30
Section 4.4 Governing Law .................................. 30
Section 4.5 Counterparts....................................... 30
Section 4.6 Titles and Subtitles ............................. 31
Section 4.7 Notices ............................................31
Section 4.8 Expenses ....................................... 31
Section 4.9 Amendments and Waivers............................. 32
Section 4.10 Severability....................................... 32
Section 4.11 Entire Agreement .................................. 32
Section 4.12 Survival of Representations, Warranties
and Agreements...................................33
Section 4.13 Shareholders Representative........................ 33
STOCK RESTRICTION AND REGISTRATION RIGHTS AGREEMENT
THIS STOCK RESTRICTION AND REGISTRATION RIGHTS AGREEMENT (the
"Agreement") is made as of _______, 2002, by and among The
Manitowoc Company Inc. (together with its successors, the
"Company") and each of the shareholders of the Company listed on
the signature pages hereof and such other shareholders of the
Company as may, from time to time, become parties to this Agreement
in accordance with the provisions hereof (collectively, the
"Shareholders").
RECITALS
WHEREAS, the Company and Grove Investors, Inc. ("Grove") are
parties to that certain Agreement and Plan of Merger dated as of
March 18, 2002 (the "Merger Agreement") pursuant to which a wholly
owned subsidiary of the Company will merge with and into Grove (the
"Merger") and Grove will become a wholly owned subsidiary of the
Company and the Shareholders will acquire newly issued or treasury
shares of Common Stock (as defined below); and
WHEREAS, to induce the Shareholders to approve the Merger
Agreement and the transactions described therein, the Company
wishes to grant to the Shareholders the right to cause the Company
to register for resale certain shares of Common Stock issued and
issuable to the Shareholders; and
WHEREAS, to induce the Company to enter into this Agreement,
the Shareholders wish to make the representations and agree to the
restrictions provided herein.
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement, the following terms shall have the
meanings specified:
"1933 Act": the Securities Act of 1933, as amended, and the
rules and regulations of the SEC thereunder, all as shall be in
effect at the time.
"1934 Act": the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC thereunder, all as shall
be in effect at the time.
"Affiliate": with respect to any specified Person, any other
Person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common
control with, such specified Person.
"Approved Underwriter": as defined in Section 2.2(b) hereof.
"Broker": as defined in Section 2.1(b) hereof.
"Business Day": any day other than Saturdays, Sundays and days
on which banking institutions located in Wisconsin are authorized
by law or other governmental action to be closed, unless there
shall have been an offering of the Common Stock registered under
the 1933 Act, in which case "Business Day" shall mean (a) if the
Common Stock is listed or admitted to trading on a national
securities exchange, a day on which the principal national
securities exchange on which the Common Stock is listed or admitted
to trading is open for business or (b) if the Common Stock is not
so listed or admitted to trading, a day on which the New York Stock
Exchange is open for business.
"Closing Date": the date on which the transactions
contemplated by the Merger Agreement are consummated in accordance
with the terms thereof.
"Common Stock": the common stock of the Company, par value
$.01 per share, and any class of securities issued in exchange
therefor or into which the Common Stock is converted.
"Demand": as defined in Section 2.2(a) hereof.
"Fully Diluted Basis": calculation of the number of
securities of the Company after giving effect to (x) all shares of
Common Stock then outstanding, (y) all shares of Common Stock
issuable upon the exercise of any then outstanding option, warrant
or similar right and (z) all shares of Common Stock issuable upon
the exercise of any conversion or exchange right contained in any
then outstanding security convertible into or exchangeable for
shares of Common Stock.
"Holder": any owner of Registrable Securities (including any
Shareholder) or any assignee thereof pursuant to Section 2.7
hereof.
"Holders' Counsel": one counsel for the selling Holders, which
counsel shall be selected by a majority in interest of all
participating Holders.
"Person": an individual, a partnership, a limited liability
partnership, a limited liability company, a joint venture, a
corporation, a trust, an unincorporated organization or a
government or any department or agency thereof.
"Piggyback Registration": a registration of Registrable
Securities pursuant to Section 2.3 hereof.
"Registrable Securities": (i) all shares of Common Stock that
the Company issues to the Shareholders pursuant to the terms of the
Merger Agreement or issues upon exercise of any Acquiror Options
(as such term is defined in the Merger Agreement) issued to
Shareholders pursuant to the terms of the Merger Agreement;
(ii) all shares of Common Stock issued as (or issued upon the
conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect
to, or in exchange for or in replacement of, the shares described
in clauses (i) and (iii) hereof; and (iii) any shares of Common
Stock issued by way of a stock split of the shares described in the
foregoing clauses (i) and (ii), excluding in all cases, however,
any shares of Common Stock which (x) have been disposed of pursuant
to the terms of Section 2.1(b) or (y) are registered under an
effective registration statement under the 1933 Act covering such
Registrable Securities.
"Registration Expenses": all expenses incident to the
Company's performance of, or compliance with, Sections 2.2 through
2.8 hereof, which shall include, without limitation, the following
costs and expenses, whether or not the Company is otherwise
expressly required to pay such amounts in Sections 2.2 through 2.8
hereof: (i) all registration, filing and NASD fees, (ii) all stock
exchange listing fees, (iii) all fees and expenses of complying
with securities or blue sky laws, (iv) all word processing,
duplicating, printing and electronic filing expenses, (v) all
messenger and delivery expenses, (vi) the fees and disbursements of
Company's counsel and the Company's independent public accountants,
including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance,
(vii) premiums and other costs of policies of insurance (if any)
against liabilities arising out of the public offering of the
Registrable Securities being registered if the Company desires such
insurance, (viii) any fees or disbursements of underwriters
customarily paid by issuers or sellers of securities, including 50%
of any underwriting discounts and commissions and transfer taxes,
if any, and (ix) any expenses incurred for any "road show" or other
marketing efforts undertaken by the underwriters.
"Resale Registration Period": the period commencing 90 days
after the Closing Date and continuing for a period of 12 calendar
months thereafter, or, if earlier, until the date on which Holders
hold fewer than 500,000 shares of Registrable Securities.
"Resale Registration Statement": as defined in Section 2.2(a)
hereof.
"SEC": the U.S. Securities and Exchange Commission.
"SEC Reports": all reports filed or to be filed by the
Company with the SEC during the two years preceding the date of
this Agreement pursuant to Section 13(a) or 15(d) of the 1934 Act,
as such documents may have been amended or supplemented since the
time of their filing, and including any such document filed with
the SEC after the date hereof.
"Shareholders Representative": as defined in Section 4.13
hereof.
"Suspension Event": as defined in Section 2.2(d) hereof.
"Suspension Notice": as defined in Section 2.2(d) hereof.
"Suspension Period": as defined in Section 2.2(d) hereof.
ARTICLE 2
TRANSFER RESTRICTIONS; REGISTRATION RIGHTS
Section 2.1 Restrictions on Sale.
(a) Transfer Restrictions Within Ninety Days of Closing
Date. Each Shareholder covenants and agrees that, prior to the
commencement of the Resale Registration Period, such Shareholder
will not, whether or not then prohibited by law or regulation,
sell, offer to sell, solicit offers to buy, dispose of, loan,
pledge or grant any option for the purchase of (collectively, a
"Disposition") the Registrable Securities, nor will such
Shareholder engage in any hedging transaction which would result in
a Disposition of the Registrable Securities by the Shareholder.
Such prohibited hedging transaction would include, without
limitation, effecting any short sale (whether or not such short
sale is against the box) of Registrable Securities or maintaining
any short position in shares of Common Stock entered into
subsequent to the execution of the Merger Agreement.
(b) Transfer During Resale Registration Period. During
the Resale Registration Period, if any Holder intends to effect a
Disposition of any Registrable Securities other than pursuant to an
underwritten offering or a Piggyback Registration as described in
Sections 2.2 and 2.3, respectively, of this Agreement, such Holder
shall effect such Disposition only through the broker selected by
the Company from the list of pre-approved brokerage firms attached
as Appendix A to this Agreement1 ("Broker") in secondary market
transactions. The Broker will comply with standing instructions
that the aggregate volume of Registrable Securities to be sold by
it during any calendar week may not exceed twenty-five percent
(25%) of the "average weekly trading volume" of the Company's
publicly traded securities of the same class as the Registrable
Securities (the "Resale Threshold"). For this purpose, "average
weekly trading volume" shall mean the average weekly trading volume
of the relevant class of the Company's securities on the national
securities exchange or over-the-counter market on which they trade,
calculated over the immediately preceding eight consecutive
calendar weeks but excluding any Registrable Securities sold
pursuant to this Agreement. If the Broker receives orders from
Holders for the sale of Registrable Securities in excess of the
Resale Threshold, then the Broker shall place and fill sale orders
1 Grove and the Company to agree on list of brokerage firms to be included on
Appendix A.
of Holders pro rata based on the orders received or in such other
manner as the Broker determines is fair and appropriate, until the
applicable limitation is reached.
(c) Permitted Dispositions. Notwithstanding the
foregoing, but subject to Section 2.7 hereof, the restrictions on
Dispositions provided in this Article 2 shall not be applicable to
any Disposition (i) by a Shareholder to any Affiliate of such
Shareholder or (ii) by any Shareholder who is an individual, to a
member of such Shareholder's immediate family, which shall include
their spouse, siblings, parents, children or grandchildren.
Section 2.2 Underwritten Offering.
(a) Demand Process. At any time commencing 60 days from
the date hereof, the Shareholders Representative, on behalf of
Holders of at least 20% of the Registrable Securities to which this
Agreement then applies, may request in writing (a "Demand") that
the Company prepare and file a registration statement to effect the
registration for resale under the 1933 Act of all or part of each
such Holders' Registrable Securities and to facilitate an
underwritten public offering of such Registrable Securities (the
"Resale Registration Statement"). Upon its receipt of the Demand,
the Company shall, subject to the provisions and limitations set
forth in this Section 2.2:
(i) Within 5 days of receipt of the Demand,
give written notice of the Demand to all Holders; and
(ii) File as soon as practicable, but not later
than 30 days after receipt of the Demand, and use its best efforts
to cause to become effective as soon as practicable thereafter, the
Resale Registration Statement registering for offer and sale in the
underwritten offering all Registrable Securities requested to be
registered by the Holders who submitted the Demand and all other
Registrable Securities for which Holders have requested such
registration by written notice given to the Company within 20 days
after the date on which the Company provided notice of the Demand
to all Holders pursuant to the foregoing clause (i) of this
Section 2.2(a); provided that the Company shall have no obligation
to proceed with the filing of the Resale Registration Statement
unless Holders have requested to sell the lesser of: (A) eighty
percent (80%) of all Registrable Securities then covered by this
Agreement; or (B) at least 500,000 shares of Registrable
Securities. If fewer than such number of shares of Registrable
Securities is requested to be included in the underwritten
offering, then Holders shall not be deemed to have made a Demand
and shall remain entitled to make a Demand during the Resale
Registration Period as described in this Section 2.2.
If the number of shares of Registrable Securities
proposed for resale in such underwritten offering exceeds the
amount that the Approved Underwriter determines is compatible with
the success of the offering, then the number of shares of
Registrable Securities each Holder will be entitled to have
included in such underwritten public offering pursuant to this
Section 2.2 shall be determined under the allocation procedures
described in Section 2.3(b) hereof. Notwithstanding anything to
the contrary in this Section 2.2(a), the Company shall not be
obligated to file any Resale Registration Statement within 120 days
following the completion of any Piggyback Registration under
Section 2.3 in which any Holder is permitted to sell any
Registrable Securities.
Holders collectively shall be entitled to only one
Demand under this Agreement, and a registration shall not be deemed
to constitute a Demand until the completion of any underwritten
offering made in response to a Demand; provided, however, that a
registration shall not constitute a Demand if (i) such registration
constitutes a Piggyback Registration initiated by the Company in
response to a Demand as provided in Section 2.2(c); or (ii) any and
all shares of Common Stock sought to be included by Holders in such
underwritten public offering are not included in such underwritten
public offering as a result of the limitations included in Section
2.3(b).
(b) Underwriter. The managing underwriter for any such
underwritten public offering shall be selected from the list of
pre-approved underwriting firms attached as Appendix B to this
Agreement by the Holders of a majority of the Registrable
Securities proposed to be sold in such offering (such underwriter
being, the "Approved Underwriter").2 All Holders who have timely
indicated their intention to distribute their Registrable
Securities through such underwriting shall (together with the
Company) enter into an underwriting agreement in customary form
with the underwriter selected for such underwriting, such agreement
to be satisfactory in substance and form to the Company, the
Shareholders Representative and the underwriter, and to contain
such representations and warranties by the Company and such other
terms as are generally prevailing in agreements of this type,
including, without limitation, indemnities to the effect and to the
extent provided in Section 2.6. The Shareholders Representative
may, on behalf of Holders of Registrable Securities to be
distributed by such underwriters, may, at their option, require
that any or all of the representations and warranties by, and the
2 Grove and the Company to agree on list of underwriters to be included on
Appendix B.
other agreements on the part of, the Company to and for the benefit
of such underwriters also be made to and for the benefit of such
Holders and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement
be conditions precedent to the obligations of such Holders. Any
such Holder shall not be required to make any representations or
warranties to, or agreements with, the Company or the underwriters
other than representations and warranties contained in a writing
furnished by such Holder expressly for use in such registration
statement or agreements regarding such Holder, such Holder's
Registrable Securities and such Holder's intended method of
distribution.
(c) Conversion to Piggyback Registration. Subject to
the restrictions included in Section 2.3(b), the Company shall have
the right to sell newly issued or treasury shares in any
underwritten public offering pursuant to this Section 2.2. The
Company shall indicate its election to so participate in such
underwritten public offering by providing written notice of its
intention to do so no later than ten Business Days following its
receipt of a Demand. If the Company elects to so participate in
such underwritten public offering, then the underwritten public
offering shall be deemed a Piggyback Registration subject to the
provisions of Section 2.3 of this Agreement.
(d) Deferral or Suspension. Notwithstanding the
foregoing, if the Company shall furnish to the Holders a
certificate signed by the chief executive officer of the Company (a
"Suspension Notice") stating that, in the good faith judgment of
the Board of Directors of the Company, an event or condition has
occurred and is continuing as a result of which publicly available
information concerning the Company contains or would contain an
untrue statement of a material fact or an omission to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading (a "Suspension Event") and
that disclosure of the Suspension Event at such time would be
materially detrimental to the Company or its shareholders or that
the Company is engaged in a material transaction which would be
adversely affected in any material respect by the underwritten
offering, then the Company may defer filing the Resale Registration
Statement for a reasonable period of time which shall be as short
as practicable, but in any event not in excess of 90 days (a
"Suspension Period"); provided, however, that the Company may
exercise its suspension rights under this Section 2.2(d) only one
(1) time during any 12 month period. The parties agree that a
Suspension Event may include, and a Suspension Notice may be given
with respect to, without limitation, a previously undisclosed
proposed or pending material business transaction, the disclosure
of which would have a material adverse effect on the Company's
ability to consummate the transaction. If the Company shall so
postpone the filing of a registration statement, the Holders of
Registrable Securities to be registered shall have the right to
withdraw the request for registration by giving written notice from
the Holders of a majority of the Registrable Securities that were
to be registered to the Company within 15 days after receipt of the
notice of postponement or, if earlier, the termination of such
Suspension Period; provided, however, that if a request for
registration is so withdrawn, holders of Registrable Securities
will be precluded from making any Demand until the completion of
the Suspension Period. The Company shall not be entitled to
initiate a Suspension Period unless it shall (A) to the extent
permitted by agreements with other security holders of the Company,
concurrently prohibit sales by such other security holders under
registration statements covering securities held by such other
security holders and (B) in accordance with the Company's policies
from time to time in effect, forbid purchases and sales in the open
market by senior executives of the Company.
(e) Expenses. The Company shall bear and pay all
Registration Expenses in connection with the Resale Registration
Statement, whether or not such Resale Registration Statement
becomes effective.
Section 2.3 Piggyback Registration.
(a) Exercise. If at any time after the Closing Date and
prior to the expiration of the Resale Registration Period, the
Company proposes to register any Common Stock under the 1933 Act
(other than (i) a registration relating solely to the sale of
securities to participants in a Company stock plan, (ii) a
registration relating solely to a transaction described in Rule 145
under the 1933 Act, (iii) a registration on any form that may not
be used for the Registrable Securities, (iv) a registration in
which the only Common Stock being registered is Common Stock
issuable upon conversion of debt securities which are also being
registered or (v) a registration on the Resale Registration
Statement), whether for its own account or for the account of any
holder of securities, the Company shall promptly, but not later
than 30 days prior to the initial filing of such registration
statement, give each Holder written notice of such registration
setting forth the intended method of disposition, the maximum
proposed offering price, commissions and discounts in connection
therewith and other relevant information. Upon the written request
of any Holder given within 10 Business Days after the giving of
such notice by the Company, the Company shall, subject to the
provisions of this section, cause to be registered under the 1933
Act all of the Registrable Securities which such Holders request to
be registered by inclusion of such Registrable Securities in the
registration statement which covers the securities which the
Company proposes to register; provided, that if, at any time after
giving written notice pursuant to this Section 2.3(a) of its
intention to register any Common Stock and prior to the effective
date of the registration statement filed in connection therewith,
the Company shall determine for any reason either not to register
or to delay registration of such securities, the Company may, at
its election, give written notice of such determination to each
Holder and, thereupon, (i) in the case of a determination not to
register, shall be relieved of its obligation to register any
Registrable Securities in connection with such registration (but
not from its obligation to pay the Registration Expenses in
connection therewith), and (ii) in the case of a determination to
delay registering, shall be permitted to delay registering any
Registrable Securities, for the same period as the delay in
registering such other securities.
(b) Underwriting; Limitation due to Marketing Factors.
If the Company at any time proposes to register any of its
securities under the 1933 Act as contemplated by this Section 2.3
and such securities are to be distributed by or through one or more
underwriters, the Company will (i) enter into an underwriting
agreement with such underwriters for such offering, such agreement
to be reasonably satisfactory in substance and form to the Company
and to contain such representations and warranties by the Company
and such other terms as are generally prevailing in agreements of
such type, including, without limitation, indemnities to the effect
and to the extent provided in Section 2.6 hereof and (ii) if
requested by any Holder as provided in Section 2.3(a) and subject
to the provisions of this Section 2.3(b), arrange for such
underwriters to include all the Registrable Securities to be
offered and sold by such Holder among the securities to be
distributed by such underwriters. In connection with any
underwritten offering pursuant to a registered offering under
Section 2.2 or Section 2.3 hereof, the Company shall not be
required to include any of a Holder's Registrable Securities in
such registration unless such Holder accepts the terms of the
underwriting as agreed upon between the Company, the Shareholders
Representative and the underwriters thereof. Notwithstanding the
foregoing, no underwriting agreement (or other agreement in
connection with such offering) shall require any Holder of
Registrable Securities to make any representations or warranties to
or agreements with the Company or the underwriters other than
representations and warranties contained in a writing furnished by
such Holder expressly for use in the related registration statement
or agreements regarding such Holder, such Holder's Registrable
Securities and such Holder's intended method of distribution and
any other representation required by law. Notwithstanding any
other provision of Section 2.2 or this Section 2.3, if the Approved
Underwriter or the managing underwriter, as applicable, for any
underwritten public offering to be effected pursuant to either said
Section shall advise the Company in writing that the number of
shares of Common Stock sought to be included in such underwritten
offering (including those sought to be offered by the Company,
those sought to be offered by Holders of Registrable Securities and
those sought to be offered by other shareholders of the Company)
exceeds that number which is compatible with the success of the
offering (said compatible number being referred to herein as the
"Maximum Number"), then the Maximum Number of shares of Common
Stock to be included in such underwritten offering shall be
allocated in the following order until the Maximum Number is fully
allocated:
(i) Shares will first be allocated equally
between the Company and all Holders (taken together as a group) who
have elected to sell Registrable Securities in the offering until
either the total number of shares of Common Stock proposed to be
sold by the Company has been reached or the aggregate number of
Registrable Securities proposed to be sold by all Holders has been
reached;
(ii) Shares will next be allocated to either the
Company or to the Holders, as the case may be, until the total
number of shares it/they propose to sell in the offering has been
reached; and
(iii) Shares will then be allocated to all other
shareholders of the Company proposing to sell shares of Common
Stock in the underwritten offering, pro rata based on the number of
shares of Common Stock proposed to be sold by each such
shareholder.
If the number of shares of Registrable Securities to be
sold in the underwritten offering which are allocated to the
selling Holders is less than the total number of Registrable
Securities proposed to be sold by such Holders, then the number of
shares of Registrable Securities allocated for sale by Holders in
the underwritten offering shall be allocated among the selling
Holders pro rata based on the number of shares of Registrable
Securities proposed to be sold in the underwritten offering by each
such Holder.
(c) Expenses of Piggyback Registration. The Company
shall bear and pay all Registration Expenses incurred in connection
with a Piggyback Registration, whether or not such Piggyback
Registration becomes effective.
(d) Selection of Underwriters. If Holders of Registered
Securities request to include any Registrable Securities in any
Piggyback Registration of Registrable Securities in the form of an
underwritten offering, the Shareholders Representative and the
Company shall confer and cooperate in selecting the managing
underwriters of such underwritten offering; provided, however that
in the event the parties are unable to agree on a managing
underwriter, the Company shall determine the managing underwriter
which shall be reasonably acceptable to the Shareholders
Representative.
Section 2.4 Obligations of the Company in Connection with a
Registration.
Whenever required hereunder to cause, or to use its best
efforts to effect, the registration of any Registrable Securities,
the Company shall, as expeditiously as reasonably possible (and in
the case of Demands, within the time periods required by
Section 2.2(a)):
(a) Prepare and file with the SEC a registration
statement on the appropriate form to effect the registration of
such Registrable Securities and use its best efforts to cause such
registration statement to become effective and remain effective
until the distribution contemplated in the registration statement
has been completed; provided, that before filing such registration
statement, the Company will furnish Holder's Counsel copies of all
such documents proposed to be filed, which documents will be
subject to the review and comments of such counsel.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used
in connection with such registration statement as may be necessary
to keep such registration statement effective and to comply with
the provisions of the 1933 Act with respect to the disposition of
all securities covered by such registration statement until such
time as all of such securities have been disposed of in accordance
with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statements.
(c) Furnish to the Holders and each underwriter, if any,
of the securities being sold by each seller of Registrable
Securities such numbers of conformed copies of such registration
statement and of each such amendment and supplement thereto (in
each case including all schedules and exhibits), such numbers of
copies of the prospectus included in such registration statement
(including each preliminary prospectus and any summary prospectus)
and any other prospectus filed under Rule 424 under the 1933 Act,
in conformity with the requirements of the 1933 Act, and such other
documents as they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by sellers of such
Registrable Securities.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as shall be
reasonably requested by the Holders and any underwriter, to keep
such registrations or qualifications in effect for so long as such
registration statement remains in effect, and to take any other
action which may be reasonably necessary or advisable to enable
such seller and underwriter to consummate the disposition in such
jurisdictions of the securities owned by such seller; provided that
the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general
consent to service of process in any such states or jurisdictions
wherein it would not but for the requirements of this paragraph (d)
be obligated to be so qualified.
(e) Notify the Shareholders Representative at any time
when a prospectus relating thereto is required to be delivered
under the 1933 Act upon the discovery that, or the happening of any
Suspension Event or any other event as a result of which, the
prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances then existing and, except during a Suspension Period,
at the request of any Holder, the Company will prepare and furnish
to the Holders and each underwriter, if any, of the securities
being sold by each seller of Registered Securities a supplement or
amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will
not contain an untrue statement of a material fact or omit to state
any fact necessary to make the statements therein not misleading in
light of the circumstances then existing.
(f) Cause all such Registrable Securities to be listed
on each securities exchange or automated inter-dealer quotation
system on which similar securities issued by the Company are then
listed.
(g) Provide and cause to be maintained a transfer agent,
registrar and CUSIP number for all such Registrable Securities, in
each case not later than the effective date of such registration.
(h) Use its best efforts to comply with all applicable
rules and regulations of the SEC, and make generally available to
its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least 12 months
beginning with the first day of the Company's first full calendar
quarter after the effective date of the registration statement,
which earnings statement shall satisfy the provisions of
Section 11(a) of the 1933 Act and Rule 158 thereunder and furnish
to Holders' Counsel at least five Business Days prior to the filing
thereof a copy of any amendment or supplement to such registration
statement or prospectus, which documents will be subject to the
review and comments of Holders' Counsel.
(i) Permit any Holder which, in such Holder's reasonable
judgment, might be deemed to be an underwriter or a controlling
person of the Company, to participate in the preparation of such
registration statement and to require the insertion therein of
material, furnished to the Company in writing, which in the
reasonable judgment of such Holder, the Company and their
respective counsel should be included.
(j) Notify the Shareholders Representative in the event
of the issuance of any stop order suspending the effectiveness of a
registration statement, or of any order suspending or preventing
the use of any related prospectus or suspending the qualification
of any Common Stock included in such registration statement for
sale in any jurisdiction, and (except during a Suspension Period)
use its best efforts to obtain the prompt withdrawal of such order.
(k) Use its best efforts to cause such Registrable
Securities to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable
the sellers thereof to consummate the disposition of such
Registrable Securities.
(l) Participate in and facilitate any marketing efforts
engaged in by underwriters in connection with the public offering
of Registrable Securities, including, without limitation, upon
reasonable notice from the underwriters, causing senior management
of the Company to (i) participate in any "road show" or other
selling efforts by the underwriters and (ii) take reasonable steps
necessary to facilitate the success of such selling efforts.
Section 2.5 Information.
(a) It shall be a condition precedent to the obligations
of the Company to take any action hereunder with respect to the
Registrable Securities of any Holder that such Holder furnish to
the Company such information reasonably requested in writing by the
Company regarding itself, the Registrable Securities held by it,
and the intended method of disposition of such securities as shall
be required to effect the registration of such Holder's Registrable
Securities.
(b) In connection with the preparation and filing of
each registration statement under the 1933 Act pursuant to this
Agreement, the Company will give the Shareholders Representative
and the Holders' Counsel (and their accountants), and underwriters
for the participating Holders of Registrable Securities (and their
counsel and accountants), if any, the opportunity to participate in
the preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment
thereof or supplement thereto, shall make available to each of them
financial and other records and corporate documents and properties
of the Company, and cause the Company's officers, directors,
employees and independent accountants to supply all other
information reasonably requested by any such Person as shall be
necessary, in the opinion of such Holders' Counsel and such
underwriters' respective counsel, to conduct a reasonable
investigation within the meaning of the 1933 Act.
(c) If any registration statement refers to any Holder
by name or otherwise as the holder of any securities of the
Company, then the Shareholders Representative shall have the right
to require (i) the insertion therein of language, in form and
substance satisfactory to the relevant Holder, to the effect that
the holding by such Holder of such securities is not to be
construed as a recommendation by such Holder of the investment
quality of the Company's securities covered thereby and that such
holding does not imply that such Holder will assist in meeting any
future financial requirements of the Company, or (ii) in the event
that such reference to such Holder by name or otherwise is not
required by the 1933 Act, the deletion of the reference to such
Holder.
Section 2.6 Indemnification and Contribution
. In the event any Registrable Securities are included in a
registration statement hereunder:
(a) The Company will indemnify and hold harmless each
Holder, the officers, directors, partners and members of each
Holder, any underwriter (as defined in the 0000 Xxx) for such
Holder and each Person, if any, who controls such Holder or
underwriter within the meaning of the 1933 Act or the 1934 Act
(each, a "Company Indemnified Person"), against any losses, claims,
damages, or liabilities (joint or several) to which they or any of
them may become subject under the 1933 Act, the 1934 Act or any
other federal or state laws, or otherwise, whether direct or
indirect, including without limitation any obligation to indemnify
any underwriter against any such losses, claims, damages, or
liabilities, in each case insofar as such losses, claims, damages,
or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus, summary prospectus
or final prospectus contained therein or any amendments or
supplements thereto, (ii) any omission or alleged omission to state
therein a material fact required to be stated therein, or necessary
to make the statements therein not misleading, or (iii) any
violation or alleged violation by the Company of the 1933 Act, the
1934 Act, any state securities laws, or any rule or regulation
promulgated under any of the foregoing, and the Company will pay to
each Company Indemnified Person, as incurred, any legal or other
expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability,
or action; provided, however, that the indemnity agreement
contained in this Section 2.6(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, or action if
such settlement is effected without the consent of the Company,
which consent shall not be unreasonably withheld, nor shall the
Company be liable in any such case for any such loss, claim,
damage, liability, or action to the extent that it arises out of or
is based upon a Violation which occurs in reliance upon, and in
strict conformity with, written information furnished expressly for
use in connection with such registration by any such Company
Indemnified Person.
(b) Each selling Holder, by requesting securities to be
covered by any registration statement hereunder, agrees to
indemnify and hold harmless the Company, each of its directors,
each of its officers who has signed the registration statement and
each Person, if any, who controls the Company within the meaning of
the 1933 Act, (each, a "Holder Indemnified Person"), against any
losses, claims, damages, or liabilities (joint or several) to which
any of the foregoing persons may become subject, under the 1933
Act, the 1934 Act, or any other federal or state laws or otherwise,
insofar as such losses, claims, damages, or liabilities (or actions
in respect thereto) arise out of or are based upon any Violation,
in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in strict conformity with
written information furnished by such Holder expressly for use in
connection with such registration; and each such Holder will pay,
as incurred, any legal or other expenses reasonably incurred by any
Holder Indemnified Person, in connection with investigating or
defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this
Section 2.6(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is
effected without the consent of the indemnifying Holder, which
consent shall not be unreasonably withheld; and provided further,
that, in no event shall any selling Holder's liability under this
Section 2.6(b) exceed the proceeds received by such Holder from the
offering.
(c) Promptly after receipt by an indemnified party under
this Section 2.6 of notice of the commencement of any action
(including any governmental action), such indemnified party will,
if a claim in respect thereof is to be made against any
indemnifying party under this Section 2.6, deliver to the
indemnifying party a written notice of the commencement thereof and
the indemnifying party shall have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any
other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party (together with all
other indemnified parties which may be represented without conflict
by one counsel) shall have the right to retain one separate
counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to
actual or potential differing interests between such indemnified
party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of
any such action, to the extent prejudicial to its ability to defend
such action, shall relieve such indemnifying party of liability to
the indemnified party under this Section 2.6 only to the extent of
such prejudice, but the omission so to deliver written notice to
the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this
Section 2.6. No indemnifying party shall, without the consent of
the indemnified party, consent to entry of any judgment or enter
into any settlement of any such action which does not include as an
unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in
respect to such claim or litigation.
(d) If the indemnification provided for in this
Section 2.6 is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any loss,
liability, claim, damage, or expense referred to herein, then the
indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim,
damage, or expense in such proportion as is appropriate to reflect
the relative fault of the indemnifying party on the one hand and of
the indemnified party on the other in connection with the
statements or omissions that resulted in such loss, liability,
claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and
of the indemnified party shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the
indemnified party and the parties' relative intent, knowledge,
access to information, and opportunity to correct or prevent such
statement or omission; provided that the foregoing contribution
agreement shall not inure to the benefit of any indemnified party
if indemnification would be unavailable to such indemnified party
by reason of the provisions contained in the first sentence of
paragraph (a) of this Section 2.6, and in no event shall the
obligation of any indemnifying party to contribute under this
paragraph (d) exceed the amount that such indemnifying party would
have been obligated to pay by way of indemnification if the
indemnification provided for under paragraphs (a) or (b) of this
Section 2.6 had been available under the circumstances.
(e) The Company and the Holders agree that it would not
be just and equitable if contribution pursuant to Section 2.6(d)
were determined by pro rata allocation (even if the Holders and any
underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding
paragraph and any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or
defending any such action or claim.
(f) Notwithstanding the provisions of Section 2.6(d), no
Holder or underwriter shall be required to contribute any amount in
excess of the amount by which (i) in the case of any such Holder,
the net proceeds received by such Holder from the sale of
Registrable Securities or (ii) in the case of an underwriter, the
total price of which the Registrable Securities purchased by it and
distributed to the public exceeds in any such case the amount of
any damages that such Holder or underwriter has otherwise been
required to pay by reason of the Violation giving rise to such
loss, liability, claim, damage, or expense. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
(g) The obligations of the Company and Holders under
this Section 2.6 shall survive the completion of any offering of
Registrable Securities in a registration statement hereunder, and
otherwise.
Section 2.7 Assignment of Registration Rights
. The rights to cause the Company to register Registrable
Securities pursuant hereto shall be automatically transferred upon
a transfer of Registrable Securities in accordance with Section
2.1(c). Any Person to whom such Registrable Securities have been
transferred shall be required to exercise a counterpart to this
Agreement agreeing to be treated as a Holder of Registrable
Securities, whereupon such transferee shall have the benefits of,
and shall be subject to, the terms of this Agreement as if such
assignee had originally been a party hereto.
Section 2.8 "Market Stand-Off" Agreement
. Each Holder hereby agrees that it shall not, to the extent
requested by the Company or an underwriter of Common Stock (or
other securities) of the Company, sell or otherwise transfer or
dispose of any Registrable Securities in a market transaction
during the seven days prior to and 60 days following the effective
date of a registration statement of the Company filed under the
1933 Act, but only if:
(a) The Holders are entitled under Section 2.2 or
Section 2.3 to participate in such registration (provided that such
agreement shall not apply to any shares which are included in any
such registration); and
(b) All officers and directors of the Company and
shareholders who beneficially own more than 5% of the Company's
outstanding Common Stock (determined on a Fully Diluted Basis) and
all other Persons with registration rights (whether or not pursuant
to this agreement) enter into similar agreements.
In order to enforce the foregoing covenant, the Company
may impose stop-transfer instructions with respect to the
Registrable Securities of each Holder (and the shares or securities
of every other person subject to the foregoing restriction) during
the period in which such shares are restricted pursuant to this
Section 2.8.
Section 2.9 Termination of Registration Obligation
. The Company's obligation to afford registration rights to
any Holder pursuant to a Demand or a Piggyback Registration as
provided in Section 2.2 and Section 2.3 of this Agreement shall
expire at the expiration of the Resale Registration Period.
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SHAREHOLDERS
Each Shareholder hereby represents and warrants to, and
covenants with, the Company that:
Section 3.1 Authority
. The Shareholder has full right, power, authority and
capacity to enter into this Agreement and to consummate the
transactions contemplated hereby, and upon execution and delivery
of this Agreement, this Agreement shall constitute a valid and
binding obligation of the Shareholder, enforceable in accordance
with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' and contracting parties' rights
generally and except as enforceability may be subject to general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law) and except as the
indemnification agreements herein may be legally unenforceable.
Section 3.2 Legend
. (a) The Shareholder will not make any sale of the
Registrable Securities without complying with the provisions of
this Agreement and without causing the prospectus delivery
requirements of the 1933 Act, if applicable, to be satisfied. The
Shareholder acknowledges that the certificates evidencing the
Registrable Securities will bear a legend substantially as follows
and that there may be times when the Company determines that the
Shareholder must suspend the use of the Resale Registration
Statement as provided elsewhere in this Agreement:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
TRANSFER RESTRICTIONS IN ACCORDANCE WITH A STOCK RESTRICTION AND
REGISTRATION RIGHTS AGREEMENT, A COPY OF WHICH IS ON FILE WITH THE
CORPORATION. THESE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR
ASSIGNED EXCEPT IN COMPLIANCE WITH SUCH AGREEMENT."
(b) The Company shall remove the legend set forth in
Section 3.2(a) by delivery of substitute certificates without such
legend if such legend is not required for the purposes of this
Agreement.
Section 3.3 Notification
. The Holder will notify the Company promptly of the resale
or other Disposition of any of its Registrable Securities, other
than sales following the lapse or termination of all transfer
restrictions provided in this Agreement, and the Holder will
furnish any information reasonably requested by the Company to
evidence compliance with this Agreement.
ARTICLE 4
miscellaneous
Section 4.1 Successors and Assigns
. Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and permitted assigns of the
parties. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or
their respective successors and permitted assigns any rights,
remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
Section 4.2 No Inconsistent Agreements
. The Company will not hereafter enter into any agreement
with respect to its securities which is inconsistent with the
rights granted to the Holders in this Agreement, including, without
limitation, entering into any agreement with any holder or
prospective holder of any securities of the Company which would
allow such holder or prospective holder (i) to include such
securities in any registration filed under Section 2.2 or
Section 2.3 hereof, unless the terms of such agreement with such
holder or prospective holder may include such securities in any
such registration only to the extent that the inclusion of its
securities will not reduce the amount of the Registrable Securities
which are included, or (ii) to make a demand registration where
such registration statement is declared effective prior to within
one hundred twenty (120) days of the effective date of any
registration effected pursuant to Section 2.2.
Section 4.3 Remedies
. Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically to
recover damages caused by reason of any breach of any provision of
this Agreement and to exercise all other rights granted by law.
The parties hereto agree and acknowledge that money damages may not
be a complete and adequate remedy for any breach of the provisions
of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction
(without posting any bond or other security) for specific
performance and for other injunctive relief in order to enforce or
prevent violation of the provisions of this Agreement.
Section 4.4 Governing Law
. This Agreement shall be governed by and construed under the
laws of the State of Wisconsin, applicable to contracts made and
performed in such state, disregarding such state's principles of
conflicts of laws which would otherwise provide for the application
of the substantive laws of another jurisdiction.
Section 4.5 Counterparts
. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 4.6 Titles and Subtitles
. The titles and subtitles used in this Agreement are used
for convenience only and are not to be considered in construing or
interpreting this Agreement.
Section 4.7 Notices
. Unless otherwise provided, any notice required or permitted
hereunder shall be given in writing and shall be deemed effectively
given upon the earliest of (i) the date of personal delivery to the
party to be notified, (ii) the date of facsimile delivery with a
confirmation copy sent simultaneously by (A) registered or
certified mail, postage prepaid, or (B) overnight delivery with a
nationally recognized overnight carrier, shipping charges prepaid
(iii) one Business Day after deposit for overnight delivery with a
nationally recognized overnight courier, shipping charges prepaid,
or (iv) four days after deposit with the United States Post Office
by registered or certified mail, postage prepaid. Such notices
shall be addressed to the appropriate party to the attention of the
person who executed this Agreement at the address and, as
appropriate, the facsimile number, set forth under such party's
signature below (or to the attention of such other person or to
such other address or facsimile number as such party shall have
furnished to each other party in accordance with this Section 4.7).
Section 4.8 Expenses
. If any action at law or in equity is necessary to enforce
or interpret the terms of this Agreement, the prevailing party
shall be entitled to reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which
such party may be entitled.
Section 4.9 Amendments and Waivers
. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived, only with
the written consent of the Company and the Shareholders
Representative (with the written approval of holders of sixty six
and two-thirds percent (66 2/3%) of the Registrable Securities then
outstanding), provided that no such amendment or waiver shall be
effective with respect to the rights of any Holder in respect of
any registration effected prior to such amendment or waiver without
the written consent of such Holder. Except as provided in the
preceding sentence, any amendment or waiver effected in accordance
with this Section 4.9 shall be binding upon each Holder of any
Registrable Securities then outstanding, each future Holder of all
such Registrable Securities, and the Company. Notwithstanding the
foregoing, a waiver or consent with respect to a matter which
relates exclusively to the rights of Holders of Registrable
Securities whose securities are being sold pursuant to a
registration statement and which does not directly or indirectly
affect the rights of other Holders may be given by the Holders of a
majority of the Registrable Securities being sold.
Section 4.10 Severability
. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall
be interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.
Section 4.11 Entire Agreement
. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the
subjects hereof.
Section 4.12 Survival of Representations, Warranties and
Agreements
. Notwithstanding any investigation made by any party to this
Agreement, all covenants, agreements, representations and
warranties made by the Company and the Shareholders herein and in
the certificates representing the Registrable Securities delivered
pursuant hereto shall survive the execution of this Agreement, the
delivery to the Shareholder of the Registrable Securities and the
consummation and closing of the Merger Agreement.
Section 4.13 Shareholders Representative
. [Parties to agree on a provision appointment and
establishing the authority of one or more persons to act an a
Shareholders Representative authorized to act on behalf of
Shareholders for all purposes under this Agreement.]
[The remainder of this page is intentionally blank]
REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
COMPANY: [Company]
By:
--------------------------
Name:
------------------------
Title:
-----------------------
Address:
---------------------
Facsimile No.:
---------------
SHAREHOLDERS: [Shareholder 1]
By:
--------------------------
Name:
------------------------
Title:
-----------------------
Address:
---------------------
Facsimile No.:
---------------
[Shareholder 2]
By:
--------------------------
Name:
------------------------
Title:
-----------------------
Address:
---------------------
Facsimile No.:
---------------
[Shareholder 3]
By:
--------------------------
Name:
------------------------
Title:
-----------------------
Address:
---------------------
Facsimile No.:
---------------
Appendix A
List of Pre-Approved Brokerage Firms
Appendix B
List of Pre-Approved Underwriting Firms
