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EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement"), dated as of October 9,
1997, is by and between EVI, Inc., a Delaware corporation ("Purchaser"), and
PACCAR Inc, a Delaware corporation ("Seller").
Seller is interested in selling and Purchaser is interested in
purchasing all of the issued and outstanding shares of stock of Trico
Industries, Inc.
NOW, THEREFORE, Seller and Purchaser agree as follows:
ARTICLE I
DEFINITIONS
As used herein, the following terms shall have the following meanings:
1.1 Assumed Liabilities. The term "Assumed Liabilities" means
those liabilities described in Section 2.2 hereof.
1.2 Benefit Plan. The term "Benefit Plan" means any collective
bargaining agreement or any bonus, pension, profit sharing, deferred
compensation, incentive compensation, stock ownership, stock purchase, stock
option, phantom stock, retirement, vacation, severance, disability, death
benefit, hospitalization, medical dependent care, cafeteria, employee
assistance, scholarship program or other plan, arrangement or understanding
(whether or not legally binding) providing benefits to any current or former
employee or director of the Company or a Subsidiary of the Company, except for
the Excluded Assets and Liabilities.
1.3 BMW. The term "BMW" means BMW Monarch (Lloydminster) Ltd.
1.4 Closing Date. The "Closing Date" means October 31, 1997. If
the expiration of the waiting period under the Xxxx-Xxxxx-Xxxxxx Anti-Trust
Improvements Act of 1976, as amended ("HSR Act"), occurs after October 31, then
the Closing Date shall be the fifth day after the date on which the waiting
period expires unless Seller or Purchaser has terminated this Agreement under
Section 10.1. The Closing Date may be changed by mutual agreement of the
parties.
1.5 Code. The term "Code" means the Internal Revenue Code of 1986,
as amended.
1.6 Company. The term "Company" shall mean Trico Industries, Inc.
1.7 Company Assets. The term "Company Assets" means all of the
Company's and Kobe's properties, assets, rights, obligations and liabilities,
whether tangible or intangible, real or personal, contingent or otherwise, as
of the Closing Date (except the Excluded Assets and Liabilities) and which are
used or have arisen in connection with the business of the Company, including
without limitation, the
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following:
1.7.1 All real property, plants, buildings, cranes and
other improvements, and the interests in real property under any
option or lease ("Real Property"), which are further identified on
Schedule 1.7.1 hereto, except for the Excluded Assets and Liabilities;
1.7.2 All machinery, equipment (including without
limitation, all transportation, laboratory, testing, and office
equipment), fixtures, trade fixtures, tools, jigs, dies, furniture,
inventory racks and other tangible property of any kind, except for
the Excluded Assets and Liabilities;
1.7.3 All raw materials, work-in-process, finished goods,
inventories of parts, and other inventories of the Company, including
inventories consigned with dealers or customers, if any;
1.7.4 All office, production, and other miscellaneous
supplies of the Company;
1.7.5 All rights, liabilities and obligations existing
under leases of personal property (both as lessor and as lessee),
contracts, options, licenses, permits, distribution agreements,
domestic and foreign dealer agreements, sales agreements, purchase
agreements (including customer purchase orders), vehicle lease
agreements, parts support agreements, product availability
commitments, performance commitments, and all other agreements and
business arrangements entered into in the normal course of business
("Contracts") which are further described on Schedule 1.7.5 hereto by
category, with each contract with an outstanding obligation in excess
of $50,000 identified separately;
1.7.6 All patents and patent applications, registered and
unregistered trademarks, service marks, trade names and similar rights
to names, marks and slogans, common law and registered copyrights
which are further identified on Schedule 1.7.6 hereto, and all
applications for any of the foregoing, together with all rights to use
all of the foregoing forever, and all goodwill associated with any of
the foregoing;
1.7.7 All inventions, discoveries, improvements, processes,
methods, designs, formulae (secret or otherwise), data, engineering,
technical and shop drawings, specifications, trade secrets,
confidential information, know-how and ideas, whether patentable or
not, shop rights, licenses and other similar rights and all drawings,
records or other indicia, however evidenced, of the foregoing,
together with all rights to use all of the foregoing and any goodwill
associated with any of the foregoing;
1.7.8 All computer software resident on computers included
in the Company Assets and used solely for the business of the Company,
except the Excluded Assets and Liabilities, provided that Company has
the legal right to continue using such software after a change in
ownership of Company;
1.7.9 All bank and trust accounts and accounts receivable
of the
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Company, except the Excluded Assets and Liabilities;
1.7.10 All deposits and prepayments or prepaid expenses
reflected on the Statement of Net Assets, except the Excluded Assets
and Liabilities;
1.7.11 All shares of stock in subsidiaries and other
corporations owned by Company and described in Schedule 1.7.11, except
for the Excluded Assets and Liabilities, (the "Subsidiaries");
1.7.12 All of the Company's records pertaining to products,
customers, suppliers or personnel and all other files and business
records of every kind, including financial records;
1.7.13 All advertising materials and all other printed or
written materials;
1.7.14 All governmental and other licenses, permits,
franchises, approvals and certificates, to the extent transferable;
1.7.15 All goodwill, including that arising from business
acquisitions, and all other intangible properties; and
1.7.16 All other assets and liabilities of the Company not
referred to in 1.7.1 to 1.7.15 above which are reflected or noted on
the Statement of Net Assets or have arisen in the ordinary course of
the business of the Company, except for the Excluded Assets and
Liabilities.
1.8 Company Stock. The term "Company Stock" means all of the
issued and outstanding shares of stock of the Company.
1.9 Damages. The term "Damages" means any and all liabilities,
losses, damages, demands, assessments, claims, awards, judgments, penalties,
settlements, fines, interest, costs and expenses (including, without
limitation, reasonable fees and expenses of attorneys, consultants and other
professionals incurred in connection with investigating and defending any
claims or causes of action), but excluding incidental, consequential (including
without limitation loss of profits or loss of business opportunities), punitive
or exemplary damages, other than those imposed in connection with a third party
claim.
1.10 Employees. The term "Employees" means all of the employees of
the Company and Kobe on or before the Closing Date.
1.11 Encumbrance. The term "Encumbrance" means any security
interest, mortgage, pledge, trust, claim, lien, charge, option, defect,
restriction, encumbrance or other right or interest of any third party of any
nature whatsoever.
1.12 Environmental Laws. The term "Environmental Laws" means any
and all laws, statutes, ordinances, rules, regulations, orders, or
determinations of any Governmental Entity pertaining to health, safety or the
environment applicable to (i) the Company's business or operations, (ii) the
Company Assets, or (iii) the disposal of any hazardous substance by the
Company, including, but not limited to,
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the Clean Air Act, as amended, the Comprehensive Environmental, Response,
Compensation, and Liability Act of 1980 ("CERCLA"), as amended, the Federal
Water Pollution Control Act, as amended, the Resource Conservation and Recovery
Act of 1976, as amended ("RCRA"), the Safe Drinking Water Act, as amended, the
Toxic Substances Drinking Water Act, as amended, and the Superfund Amendments
and Reauthorization Act of 1986, as amended. The term "hazardous substance" has
the meaning specified in CERCLA, and the term "disposal" (or "disposed") has
the meaning specified in RCRA; provided that, to the extent the laws of the
state in which any Company Assets are located establish a meaning for
"hazardous substance" or "disposal" which is broader than that specified in
CERCLA or RCRA, such broader meaning shall apply with respect to such assets in
such state.
1.13 Excluded Assets and Liabilities. The term "Excluded Assets
and Liabilities" means the following assets and any related liabilities and
obligations of the Company as of the Closing Date (whether liquidated or
unliquidated, known or unknown, material or immaterial, fixed or contingent),
which are not included in the Company Assets and will not be acquired by
Purchaser hereunder, all of which are described below:
1.13.1 The real property listed in Schedule 1.13.1 attached
hereto;
1.13.2 All computer software licensed under a master
agreement with Seller or any affiliate of Seller (other than the
Company) or resident on any computer not owned or leased by the
Company, even if it is also used by the Company;
1.13.3 All bank and trust accounts listed on Schedule
1.13.3(a) and all cash in the bank accounts listed in Schedule
1.13.3(b);
1.13.4 All insurance recoveries for environmental claims
pending prior to the Closing concerning insurance policies issued for
years 1975 through 1988;
1.13.5 All intercompany receivables and payables between
Seller and Company or Kobe;
1.13.6 Taxes pertaining to or attributable to the Company or
any of its subsidiaries with respect to any and all taxable periods or
portions thereof ending on or before the Closing Date, but only to the
extent such Taxes arise from or relate to the inclusion of the Company
or such subsidiaries in a Tax Return of the Seller;
1.13.7 All letters of credit ("LC's") established by Seller
or relying on the credit of Seller for the benefit of Company, as
listed on Schedule 1.13.7;
1.13.8 Any amounts owing to any Employees under any deferred
compensation plan maintained by Seller for any period prior to the
Closing and which is not transferred to Purchaser under the terms of
this Agreement;
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1.13.9 The shares of stock in any subsidiaries of Company
listed on Schedule 1.13.9, which will be sold or assigned separately
prior to the Closing, (the "Excluded Subsidiaries"), any proceeds from
such sale or assignment, and all documents, records and other
information of any kind or nature concerning the business and
operations of the Excluded Subsidiaries;
1.13.10 All Seller proprietary items including without
limitation internal telephone directories, Seller trademarked items,
Seller promotional materials, compliance and policy materials, and
similar items;
1.13.11 The sponsorship of and all assets and liabilities
related to the Company and Seller Benefit Plans listed on Schedule
1.13.11;
1.13.12 All machinery, equipment, tooling, jigs, and fixtures
used solely in connection with the manufacture for Seller by Company
of the products and components listed on Schedule 1.13.12 ("Seller's
Components"), and all designs, specifications, copyrights and
trademarks of Seller and any other intangibles related solely to
Seller's Components, but excluding any rights to the name "Trico" and
any derivation thereof;
1.13.13 Any deferred intercompany gain as defined in Treasury
Regulation Section 1.1502-13;
1.13.14 All product liability, warranty and other claims,
actions, litigation or other proceedings listed on Schedule 1.13.14,
including any cross-claims, counter-claims, third party claims and
claims for indemnity or contribution related to the subject matter of
such listed proceeding; and
1.13.15 Any claim, obligation, liability or action (i)
related to the disposal of hazardous substances by the Company, Kobe
or any of their respective predecessors or subsidiaries prior to
Closing, (ii) related to any remediation, cleanup or other legal
obligation or obligation for contribution related to the ownership,
use or lease of any property, except for the Real Property, prior to
the Closing by the Company, Kobe or any of their respective
predecessors or subsidiaries, (iii) related to the exposure of a third
party (other than a present or former employee of the Company, Kobe or
any of their respective predecessors or subsidiaries) to a hazardous
substance prior to the Closing as a result of an action or omission by
the Company, Kobe or any of their respective predecessors or
subsidiaries, and (iv) related to the exposure of a present or former
employee of the Company, Kobe or any of their respective predecessors
or subsidiaries to a hazardous substance in the workplace prior to the
Closing as a result of an action or omission by the Company, Kobe or
any of their respective predecessors or subsidiaries, but only to the
extent that such injury or illness is not covered by the applicable
worker's compensation laws.
1.14 Final Statement of Net Assets. The term "Final Statement of
Net Assets" means the final statement of net assets of the Company, prepared as
set forth in Section 3.3, as of the later of October 31, 1997 or the end of the
calendar month preceding the Closing Date. The Final Statement of Net Assets
shall include reserve amounts that have been determined in accordance with GAAP
and
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calculated in a manner consistent with those shown on Schedule 1.20(b).
1.15 GAAP. The term "GAAP" means United States generally accepted
accounting principles as they apply to a statement of net assets for a
subsidiary with exceptions consistent with those used for the preparation of
the Statement of Net Assets. GAAP does not include footnote disclosures
required by generally accepted accounting principles.
1.16 Governmental Entity. The term "Governmental Entity" means the
United States of America and any state, county, city, municipality and any
subdivision thereof, and any court, administrative or regulatory agency,
commission, department or other governmental authority or instrumentality.
1.17 Kobe. The term "Kobe" means Kobe International Ltd.
1.18 Material Adverse Effect. The term "Material Adverse Effect"
means an adverse change in the financial condition, business or operations of
the Company or Kobe which, when taken together with all other matters having a
similar effect, is materially adverse, or will result in a change which is
materially adverse, to the Company and Kobe, taken as a whole.
1.19 Net Assets. The term "Net Assets" means, with reference to the
Statement of Net Assets and Final Statement of Net Assets, the difference
between total assets and total liabilities (including deferred income tax
liabilities and capital lease obligations) of the Company and Kobe on a
consolidated basis determined in accordance with GAAP; provided, however,
there shall be excluded from the calculation of Net Assets the Excluded Assets
and Liabilities, and there shall be excluded from the calculation of Net Assets
for the Final Statement of Net Assets any increase or decrease in the items
listed on Schedule 1.19 from the amounts shown for such items on the Statement
of Net Assets or Schedule 1.20(b).
1.20 Statement of Net Assets. The term "Statement of Net Assets"
means the adjusted statement of net assets of the Company as of August 31,
1997, which is attached as Schedule 1.20(a) hereto. Adjustments to the
Statement of Net Assets for Excluded Assets and Liabilities and corporate
reserves are also described in Schedule 1.20(a). The Statement of Net Assets
also includes the reserves described on Schedule 1.20(b).
1.21 Taxes. The term "Taxes" means all federal, state, local,
foreign and other taxes, assessments or duties, including, but not limited to,
all income, gross receipts, ad valorem, sales, use, franchise, transfer,
profits, value added, withholding, payroll, employment, excise, estimated
severance, property, windfall profits and other taxes, assessments or duties of
any kind whatsoever, imposed or collected by any Governmental Entity or
pursuant to any governmental requirement, together with any interest, penalty,
addition to tax, fine or other additional amounts imposed thereon or related
thereto, and the term "Tax" means any one of the foregoing items.
1.22 Tax Returns. The term "Tax Returns" means all returns
(including information returns), declarations, reports, statements and other
documents of, relating to, or required to be filed in respect of, any and all
Taxes based in whole or
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in part on net income (including but not limited to the Texas franchise tax),
and the term "Tax Return" shall mean any one of the foregoing Tax Returns.
ARTICLE II
PURCHASE OF COMPANY STOCK AND ASSUMPTION OF LIABILITIES
2.1 Purchase of Company Stock. Upon the terms and subject to the
conditions contained herein, Seller will sell, transfer, assign and deliver to
Purchaser and Purchaser will acquire the Company Stock, free and clear of all
Encumbrances, effective as of the end of business on the Closing Date.
2.2 Obligations and Liabilities Assumed by Company. Purchaser
shall cause the Company to assume, effective as of the close of business on the
Closing Date, all of the obligations and liabilities of Seller with respect to
the Company, the Company Assets and the Company's business except for the
Excluded Assets and Liabilities (the "Assumed Liabilities"), including without
limitation:
2.2.1 all liabilities and obligations accruing or becoming
due or payable to the Employees after the Closing Date (even if the
claim arose or relates to a period prior to the Closing Date) for
compensation or other benefits related to the employment or
termination of employment of such Employees, including without
limitation, liabilities and obligations, if any, for worker's
compensation, unemployment compensation or termination of employment
benefits, or under any of Seller's or Company's employee health and
benefit plans, pension and supplemental pension plans, annuities, or
employment contracts; and
2.2.2 all guarantees, loans, commitments, contracts and
other obligations made or entered into by Company or Seller in
connection with the business and operations of Company.
Purchaser shall indemnify, defend and hold Seller harmless (according to the
provisions of Section 9.8 hereof) from all Damages, (whether or not arising out
of third-party claims) arising from or otherwise related to any of the Assumed
Liabilities.
2.3 Obligations and Liabilities Assumed by Seller. Seller shall
assume, effective as of the close of business on the Closing Date, all Excluded
Assets and Liabilities. Seller shall indemnify, defend and hold the Company and
the Purchaser harmless (according to the provisions of Section 9.8 hereof) from
all Damages, (whether or not arising out of third-party claims) arising from or
otherwise related to any of the Excluded Assets and Liabilities.
2.4 Purchase Price and Adjustment. Upon the terms and subject to
the conditions contained herein, the purchase price for the sale, transfer,
assignment, conveyance and delivery of the Company Stock ("Purchase Price")
shall be One Hundred and Five Million Dollars ($105,000,000.00). There shall
be an adjustment to the Purchase Price equal to the amount, if any, by which
the absolute value of the sum of items (i) and (ii) below exceeds $1,000,000.
If the sum is positive, Purchaser shall pay the adjustment to Seller; if it is
negative, Seller shall pay the
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adjustment to Purchaser.
(i) The amount remaining after the value of the "Net Assets"
shown on the Statement of Net Assets is subtracted from the value of
the "Net Assets" shown on the Final Statement of Net Assets; plus
(ii) Two Hundred Twenty-Five Thousand U.S. Dollars ($225,000)
per month (with a prorata portion for any part of a month) from August
31, 1997 to the Closing Date, as the agreed adjustment for Seller's
share of the earnings of BMW during this period.
Payment of any amount due in adjustment of the Purchase Price hereunder shall
be paid by wire transfer of immediately available funds to the account
designated by Seller or Purchaser, as the case may be. Any adjustment to the
Purchase Price shall be received within five days after the acceptance of the
Final Statement of Net Assets pursuant to Section 3.3.
ARTICLE III
CLOSING
3.1 Closing. The Closing of the transactions contemplated herein
(the "Closing") shall be held on the Closing Date at Seller's corporate offices
in Bellevue, Washington.
3.2 Deliveries at Closing.
3.2.1 The Purchase Price shall be paid by Purchaser to
Seller on the Closing Date in immediately available funds, by wire
transfer to Seller's account as designated by Seller in writing prior
to the Closing.
3.2.2 To effect the transfers referred to in Article II
hereof, Seller will deliver to Purchaser on the Closing Date:
(i) All certificates for the Company Stock and duly
executed stock assignment(s);
(ii) All of the Company's books, records and files
not already located at the Company's offices; and
(iii) Any other instruments reasonably requested by
Purchaser to vest in Purchaser good and marketable
title to the Company Stock.
All instruments executed and delivered to Purchaser pursuant hereto
shall be reasonably satisfactory to Purchaser in form and substance.
3.3 Final Statement of Net Assets.
3.3.1 The amount for "Net Assets" shown on the Statement of
Net Assets and on the Final Statement of Net Assets has been and shall
be, respectively, determined consistently by Seller from the books and
records of
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the Company, in accordance GAAP, but subject to the limitations on
adjustment set forth in Section 1.19 hereof.
3.3.2 As soon as practicable after the Closing Date (but in
no event later than 30 days thereafter), Seller shall deliver the
Final Statement of Net Assets to Purchaser. Purchaser shall allow
Seller reasonable access to the Company's facilities, books and
records and shall cooperate with Seller as necessary to allow Seller
to prepare the Final Statement of Net Assets. Purchaser may, at its
expense, review the Final Statement of Net Assets, and Purchaser shall
have access to the work papers used in preparing the Final Statement
of Net Assets. Purchaser shall have the right to object, by written
notice to Seller, to the amount set forth as the "Net Assets" on the
Final Statement of Net Assets, if Purchaser's review reveals that (i)
the amounts included on the Final Statement of Net Assets for the
accounts receivable, accounts payable, inventories, machinery and
equipment, or any other assets (except for items listed on Schedule
1.19 hereof) are not equal to the amounts which should have been
included for such items to conform to GAAP or (ii) the amounts
included on the Final Statement of Net Assets for the liabilities
(except for items listed on Schedule 1.19 hereof) are not equal to the
amounts which should have been included for such items to conform to
GAAP. If Purchaser does not give Seller such notice within 20 days
after receipt of the Final Statement of Net Assets, Purchaser shall be
deemed to have accepted the Final Statement of Net Assets for all
purposes of this Agreement.
3.3.3 If Purchaser does give Seller notice of an objection,
Purchaser and Seller shall meet to resolve the objections. If disputes
with respect to the Final Statement of Net Assets cannot be resolved
within 30 calendar days after Purchaser's delivery of a notice of
objection, then, at the request of Purchaser or Seller, the specific
matters in dispute shall be submitted to Ernst & Young or such other
independent accounting firm as may be approved by Seller and
Purchaser. Such accounting firm shall render its opinion as to the
matters submitted to it, and its determination shall be final and
binding on the parties hereto. The fees and expenses of such
accounting firm shall be borne one-half by Seller one-half by
Purchaser.
3.4 Assumption Documents.
3.4.1 Upon the reasonable request of Seller and subject to
the terms and conditions contained herein, Purchaser shall or shall
cause the Company to deliver to Seller on the Closing Date or at any
time thereafter any documents reasonably requested by Seller
evidencing Company's assumption of the Assumed Liabilities. All such
documents shall be reasonably satisfactory to Seller and Purchaser in
form and substance.
3.4.2 Upon the reasonable request of Purchaser and subject
to the terms and conditions contained herein, Seller shall deliver to
Purchaser on the Closing Date or at any time thereafter any documents
reasonably requested by Purchaser evidencing Seller's assumption of
the Excluded Assets and Liabilities. All such documents shall be
reasonably satisfactory to Seller and Purchaser in form and substance.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser that:
4.1 Organization of Seller. Seller is duly organized, validly
existing and in good standing under the laws of the State of Delaware.
4.2 Organization of Company and Kobe. Company is duly organized,
validly existing and in good standing under the laws of the State of
California, and has full corporate power and authority to conduct its business
as it is presently being conducted and to own and lease its properties and
assets. Kobe is a corporation duly organized, validly existing and in good
standing under the laws of The Bahamas and has the requisite corporate power
and authority to carry on its business as it is now being conducted.
4.3 Authorization. Seller has full corporate power and authority
to enter into this Agreement, to consummate the transactions contemplated
hereby and to perform its obligations hereunder. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby by Seller have been duly authorized by all requisite
corporate action on the part of Seller, and no approval of the stockholders of
Seller is required in connection herewith. When this Agreement has been duly
executed and delivered by Seller, it will be a valid and binding obligation of
Seller enforceable against it in accordance with its terms.
4.4 No Conflict or Violation. Neither the execution and delivery
of this Agreement nor the consummation of the transactions contemplated hereby
will result in (i) a violation of or a conflict with any provision of the
Certificate of Incorporation or Bylaws of Seller or the Company, (ii) a breach
of or a default under any term or provision of any contract, agreement, lease,
commitment, license, franchise, permit, authorization or concession to which
Seller or the Company is a party or an event which with notice, lapse of time,
or both, would result in any such breach or default, or (iii) a violation by
Seller or the Company of any statute, rule, regulation, ordinance, code, order,
judgment, writ, injunction, decree, or award, or an event which with notice,
lapse of time, or both, would result in any such violation.
4.5 Title to Company Stock. Seller has good and marketable title
to the Company Stock, and the Company Stock will be transferred to Purchaser
free and clear of all Encumbrances. There are no outstanding options, warrants,
convertible securities, calls, rights, commitments, preemptive rights,
agreements, arrangements or understandings of any character obligating the
Company (i) to issue, deliver or sell, or cause to be issued, delivered or
sold, additional shares of capital stock of the Company or any securities or
obligations convertible into or exchangeable for such shares or (ii) to grant,
extend or enter into any such option, warrant, convertible security, call,
right, commitment, preemptive right, agreement, arrangement or understanding
described in clause (i) above.
4.6 Title to Subsidiaries' Stock. Except for the Excluded
Subsidiaries, the Subsidiaries are the only entities in which the Company owns
any direct or indirect equity or similar ownership interest. Except as set
forth in Schedule 4.6, the shares of stock in the Subsidiaries set forth on
Schedule 1.7.11 are owned by the Company
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free and clear of all Encumbrances, including voting trusts or stockholders
agreements. There are no outstanding options, warrants, convertible securities,
calls, rights, commitments, preemptive rights, agreements, arrangements or
understandings of any character obligating Kobe (i) to issue, deliver or sell,
or cause to be issued, delivered or sold, additional shares of capital stock or
other equity interests of Kobe or any securities or obligations convertible
into or exchangeable for such shares or equity interests or (ii) to grant,
extend or enter into any such option, warrant, convertible security, call,
right, commitment, preemptive right, agreement, arrangement or understanding
described in clause (i) above.
4.7 Financial Records.
4.7.1 Seller has delivered to Purchaser the Statement of
Net Assets, and will deliver to Purchaser the Final Statement of Net
Assets, each of which has been or will be prepared (as the case may
be) in accordance with GAAP, except as otherwise provided in this
Agreement.
4.7.2 Seller has made and kept (and will make and keep)
books, records and accounts which accurately and fairly reflect in
reasonable detail its activities and the transactions and dispositions
of its assets for the period following the preparation of the
Statement of Net Assets.
4.8 Company Assets. The Company and Kobe own all of the Company
Assets, other than those that are leased, with respect to which they have valid
and enforceable leases. None of the Company Assets is subject to any
Encumbrance, except as reflected on the Statement of Net Assets or Schedule 4.8
and those which individually or in the aggregate do not exceed $50,000.
4.9 Real Property. Schedule 1.7.1 hereto contains a description
of all Real Property which is owned or leased by Company, except for the
Excluded Assets and Liabilities. Seller has good and marketable title to all
Real Property owned by the Company, and such Real Property is owned free and
clear of all Encumbrances, except for Encumbrances of record or as noted on
Schedule 4.9 hereto.
4.10 Certain Agreements. Except as set forth in Schedule 4.10,
neither Company nor any of the Company Assets is a party to or bound by any
agreement, contract or commitment (i) relating to the borrowing of funds, (ii)
relating to any loan or advance to, or investment in, any person or entity or
any agreement, contract, commitment or understanding relating to the making of
any such loan, advance or investment, (iii) relating to any guarantee or
financial assurance of any obligation or other contingent liability with
respect to any indebtedness or obligation of any unrelated person or entity,
(iv) relating to any management service, employment, consulting or other
similar type contract or agreement, (v) that would limit the freedom of the
Company or Purchaser, or any affiliate thereof, following the Closing, to
engage in any line of business, to own, operate, sell, transfer, pledge or
otherwise dispose of or encumber any of their respective assets or to compete
with any person or entity or to engage in any business or activity in any
geographic area, or (vi) obligating the Company to provide indemnification or
contribution with respect to any matter outside the ordinary course of
business.
4.11 Contracts. Except as otherwise disclosed in Schedule 4.11
hereto, and
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to the best of Seller's knowledge and belief, Company is not in breach or
default under any Contract, and no event has occurred which constitutes, or
would constitute with the lapse of time or the giving of notice, a breach or
default under any such Contract.
4.12 Patents, Trademarks, Etc. To the best of Seller's knowledge
and belief, Schedule 1.7.6 hereto contains a true and complete list of all of
the patents, trademarks, trade names, service marks and copyrights, and
applications therefor, which are used in connection with the business, products
or processes of the Company. Except as otherwise disclosed in Schedule 4.12
hereto, and to the best of Seller's knowledge or belief, Company owns, or is
licensed or otherwise has the right to use, all patents, trademarks, trade
names, service marks, copyrights, technology, know-how, processes, methods and
designs used in or necessary for the conduct of the business of the Company as
presently being conducted. The consummation of the transactions contemplated by
this Agreement will not result in the loss of any licenses or rights to use any
patents, trademarks, trade names, service marks, copy rights, technology,
know-how or processes and will not conflict with, or constitute a breach,
violation or termination of, any agreement or understanding, whether written or
otherwise, relating to any licenses or rights to use any patents, trademarks,
trade names, service marks, copy rights, technology, know-how or processes
necessary for the conduct of the business by the Company as currently
conducted.
4.13 Accounts Receivable. The accounts receivable and other
receivables of the Company represent bona fide indebtedness arising out of the
ordinary course of business, and to the best of Seller's knowledge and belief,
except as otherwise disclosed in Schedule 4.13 hereto, all such receivables
will be collectable according to their terms and at the book amounts thereof,
less any reserve for bad debts shown on the Statement of Net Assets.
4.14 Litigation and Proceedings. To the best of Seller's knowledge
and belief, Schedule 1.13.14 hereto contains a list and brief description of
all litigation relating to product liability, warranty and other claims,
actions, or other proceedings pending, threatened against or otherwise
affecting the Company or Kobe and which involve any claim for injunctive relief
or for damages in excess of $10,000.
4.15 Licenses, Permits and Authorizations. Except as otherwise
disclosed in Schedule 4.15 hereto, the Company has obtained all approvals,
authorizations, consents, licenses, franchises, orders and other permits and
has made all filings with any Governmental Entity which are required for the
conduct of the business of the Company as presently being conducted, except
those where the failure to have any such approval, authorization, consent,
license, franchise, order or permit would not have a Material Adverse Effect.
4.16 Compliance with Law. Except as otherwise disclosed in
Schedule 4.16 hereto, the Company is in compliance in all material respects
(i.e., where noncompliance would have a Material Adverse Effect) with all
applicable statutes, rules, regulations, ordinances, codes, orders, licenses,
franchises, permits, authorizations and concessions, as such apply to the
Company.
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4.17 Environmental Condition.
4.17.1 Except as otherwise disclosed in Schedule 4.17
hereto, on the Closing Date there is and will be no material
contamination of the soil and groundwater of the Real Property which
would serve as a basis for claims for injury to third persons, damage
to property of others or claims by governmental agencies requiring
remediation of contamination on such property.
4.17.2 Except as otherwise disclosed in Schedule 4.17
hereto, the Company is in compliance with all applicable limitations,
restrictions, conditions, standards, prohibitions, requirements and
obligations of Environmental Laws and any related orders of any
Governmental Entity, except where the failure to so operate in
compliance would not have a Material Adverse Effect.
4.17.3 Except as listed on Schedule 4.17, there are no
existing, pending or, to the best knowledge of Seller, threatened
actions, suits, claims, investigations, inquiries or proceedings by or
before any Governmental Entity directed against the Company or any of
the Company Assets which pertain or relate to (i) any remedial
obligations under any applicable Environmental Law, (ii) violations of
any Environmental Law, (iii) personal injury or property damage claims
relating to the release of hazardous substances or (iv) response,
removal or remedial costs under CERCLA or any similar state law.
4.17.4 No portion of the Company Assets is part of a
Superfund site under CERCLA or any similar ranking or listing under
any similar state law, and, except for the Excluded Assets and
Liabilities, to the best of Seller's knowledge no real property
previously owned or leased by the Company is part of a Superfund site
under CERCLA or any similar ranking or listing under any similar state
law.
4.18 Consents and Approvals. To the best of Seller's knowledge and
belief and except for the applicable requirements of the HSR Act and any
matters set forth on Schedule 4.18 hereto, no other consent, approval,
authorization, declaration, filing or registration with any Governmental Entity
or any other person or entity is required to be made or obtained by Seller or
the Company in connection with the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby.
4.19 No Broker's Fees. Seller represents and warrants that neither
Seller nor Company have taken any action which would give any third party a
right to claim a broker's or finder's fee or commission in connection with the
transactions contemplated herein.
4.20 Pension and Benefit Plans.
4.20.1 Schedule 4.20 contains a list and brief description
of all "employee pension benefit plans" (as defined in Section 3(2) of
ERISA) (sometimes referred to herein as "Pension Plans"), "employee
welfare benefit plans" (as defined in Section 3(1) of ERISA) and all
other Benefit Plans maintained, or contributed to, by the Company for
the benefit of any Employees, except for the Excluded Assets and
Liabilities. Seller has made
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available to Purchaser true, complete and correct copies of (i) each
Benefit Plan (or, in the case of any unwritten Benefit Plans,
descriptions thereof), (ii) the most recent three annual reports on
Form 5500 filed with the IRS with respect to each Benefit Plan (if any
such report was required), (iii) the most recent IRS determination
letter, if any, and any rulings or determinations requested subsequent
to the date of that letter, (iv) the most recent actuarial report for
each Benefit Plan for which an actuarial report is required, (v) the
most recent summary plan description for each Benefit Plan for which
such summary plan description is required and each summary of material
modifications prepared after the last summary plan description, (vi)
each trust agreement and group annuity contract relating to any
Benefit Plan and (vii) all material correspondence for the last three
years with the IRS or Department of Labor relating to plan
qualification, filing of required forms, or pending, contemplated or
announced plan audits. No Pension Plan maintained or contributed to by
the Company is, or has been during the last five years, subject to any
enforcement action under Title IV of ERISA or Section 412 of the Code.
4.20.2 Except as set forth in Schedule 4.20, all Pension
Plans have been the subject of determination letters from the IRS to
the effect that such Pension Plans are qualified and exempt from
Federal income taxes under Section 401(a) and 501(a), respectively, of
the Code and no such determination letter has been revoked nor, to the
best knowledge of Seller, has revocation been threatened, nor has any
such Pension Plan been amended since the date of its most recent
determination letter or application therefor in any respect that would
adversely affect its qualification.
4.20.3 Except as set forth in Schedule 4.20, each Benefit
Plan that has been or is sponsored, participated in or contributed to
by the Company: (i) is in compliance in all material respects with all
reporting and disclosure requirements of ERISA, including, but not
limited to, Part 1 of Subtitle B of Title I of ERISA, (ii) has had the
appropriate Form 5500 filed timely for each year of its existence, if
required, (iii) has at all times complied with the bonding
requirements of Section 412 of ERISA, if required, and (iv) to the
knowledge of Seller, has no controversy pending with any Governmental
Entity (other than the payment of benefits in the normal course and
controversies disclosed on Schedule 4.20, nor any controversy resolved
adversely to the Company, which may subject the Company to the payment
of any penalty, interest, tax or other obligation.
4.20.4 All voluntary employee benefit associations under
United States law of the Company have been submitted to and approved
as exempt from Federal income tax under Section 501 (c)(9) of the Code
by the IRS.
4.20.5 Except as set forth in Schedule 4.20, the execution
of this Agreement or the consummation of the transactions contemplated
by this Agreement will not give rise to any, or trigger any, change of
control, severance or other similar provision in any Benefit Plan.
4.20.6 Except as set forth in Schedule 4.20, the Company
does not provide employee post-retirement medical or health coverage
or
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contributes to or maintains any employee welfare benefit plan which
provides for health benefit coverage following termination of
employment except as is required by Section 4980B(f) of the Code or
other applicable statute, nor has it made any representations,
agreements, covenants or commitments to provide that coverage.
4.20.7 Except as set forth in Schedule 4.20, to the best
knowledge of Seller, none of the Company, any officer of the Company
or any of the Benefit Plans which are subject to ERISA, including the
Pension Plans, or any trusts created thereunder, or any trustee or
administrator thereof, has engaged in a "prohibited transaction" (as
such term is defined in Section 406, 407 or 408 of ERISA or Section
4975 of the Code) or any other breach of fiduciary responsibility that
could subject the Company or Kobe or any officer of the Company or
Kobe to any material tax or penalty on prohibited transactions imposed
by such Section 4975 or to any material liability under Section
502(l)(1) of ERISA.
4.20.8 With respect to any Benefit Plan that is an employee
welfare benefit plan, (i) no such Benefit Plan includes a welfare
benefits fund, as such term is defined in Section 419(e) of the Code
and (ii) each such Benefit Plan that is a group health plan, as such
term is defined in Section 5000(b)(1) of the Code, complies in all
material respects with the applicable requirements of Section 4980B(f)
of the Code.
4.21 Taxes.
4.21.1 Except as set forth in Schedule 4.21, (i) all Tax
Returns of or with respect to any Tax that are required to be filed on
or before the Closing Date by or with respect to the Company or any
affiliated group of corporations of which the Company was a member at
any time during the five year period ending on the Closing Date (a
"Seller Affiliated Group") have been or will be duly and timely filed,
(ii) all items of income, gain, loss, deduction and credit or other
items required to be included in each such Tax Return have been or
will be so included and all information provided in each such Tax
Return is true, correct and complete in all material respects, (iii)
all Taxes which have become or will become due with respect to the
period covered by each such Tax Return have been or will be timely
paid in full, (iv) all withholding Tax requirements imposed on or with
respect to the Company have been or will be satisfied in full, and (v)
no penalty, interest or other charge is or will become due with
respect to the late filing of any such Tax Return or late payment of
any such Tax.
4.21.2 All Tax Returns of, or with respect to the Company or
any Seller Affiliated Group have been audited by the applicable
governmental authority, or the applicable statute of limitations has
expired, for all periods up to and including the periods set forth in
Schedule 4.21.
4.21.3 There is no claim against the Company or any Seller
Affiliated Group for any Taxes, and no assessment, deficiency or
adjustment has been asserted or proposed with respect to any Tax
Return of or with respect to the Company or any Seller Affiliated
Group, other than those
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disclosed (and to which are attached true and complete copies of all
audit or similar reports) in Schedule 4.21.
4.21.4 Except as set forth in Schedule 4.21, there is not in
force any extension of time with respect to the due date for the
filing of any Tax Return of or with respect to the Company or any
Seller Affiliated Group or any waiver or agreement for any extension
of time for the assessment or payment of any Tax of or with respect to
the Company or any Seller Affiliated Group.
4.21.5 Schedule 4.21 contains a true and complete copy of
each written Tax allocation or sharing agreement and a true and
complete description of each unwritten Tax allocation or sharing
arrangement with any Seller Affiliated Group affecting the Company.
All such agreements shall be terminated prior to the Closing Date and
no payments are due or will become due by the Company or any
Subsidiary on or after the Closing Date pursuant to any such agreement
or arrangement.
4.21.6 Except as set forth in Schedule 4.21, none of the
property of the Company is held in an arrangement that could be
classified as a partnership for Tax purposes, and the Company does not
own any interest in any controlled foreign corporation (as defined in
Section 957 of the Code), passive foreign investment company (as
defined in Section 1296 of the Code) or other entity the income of
which is required to be included in the income of the Company.
4.21.7 Except as set forth in Schedule 4.21, none of the
property of the Company is subject to a safe- harbor lease (pursuant
to Section 168(f)(8) of the Internal Revenue Code of 1954 as in effect
after the Economic Recovery Tax Act of 1981 and before the Tax Reform
Act of 1986) or is "tax-exempt use property" (within the meaning of
Section 168(h) of the Code) or "tax-exempt bond financed property"
(within the meaning of Section 168(g)(5) of the Code).
4.21.8 Except as set forth in Schedule 4.21, the Company
will not be required to include any amount in income for any taxable
period beginning the Closing Date as a result of a change in
accounting method for any taxable period ending on or before the
Closing Date or pursuant to any agreement with any Tax authority with
respect to any such taxable period.
4.21.9 The Company has not consented to have the provisions
of Section 341 (f)(2) of the Code apply with respect to a sale of its
stock.
4.22 Effective Date of Representations and Warranties. All
representations and warranties of Seller contained in this Agreement are and
shall be true and correct in all material respects as of the date of this
Agreement and as of the Closing Date.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF
PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
5.1 Organization of Purchaser. Purchaser is duly organized,
validly existing and in good standing under the laws of the State of Delaware.
5.2 Authorization. Purchaser has full corporate power and
authority to enter into this Agreement, to consummate the transactions
contemplated hereby and to perform its obligations hereunder. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby by Purchaser have been duly authorized by all
requisite corporate action on the part of Purchaser. When this Agreement has
been duly executed and delivered by Purchaser, it will be a valid and binding
obligation of Purchaser enforceable against it in accordance with its terms.
5.3 No Conflict or Violation. Neither the execution and delivery
of this Agreement nor the consummation of the transactions contemplated hereby
will result in (i) a violation of or a conflict with any provision of the
Certificate of Incorporation or Bylaws of Purchaser, (ii) a breach of or a
default under any term or provision of any contract, agreement, lease,
commitment, license, franchise, permit, authorization or concession to which
Purchaser is a party or an event which with notice, lapse of time, or both,
would result in any such breach or default, or (iii) a violation by Purchaser
of any statute, rule, regulation, ordinance, code, order, judgment, writ,
injunction, decree, or award, or an event which with notice, lapse of time, or
both, would result in any such violation, except, in each case, for violations,
conflicts, breaches or defaults which in the aggregate would not materially
hinder or impair the consummation of the transactions contemplated by this
Agreement.
5.4 Consents and Approvals. To the best of Purchaser's knowledge
and belief and except for the applicable requirements of the HSR Act and any
matters set forth on Schedule 5.4 hereto, no other consent, approval,
authorization, declaration, filing or registration with any Governmental Entity
or any other person or entity is required to be made or obtained by Purchaser
in connection with the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby.
5.5 No Broker's Fees. Purchaser represents and warrants that
Purchaser has not taken any action which would give any third party a right to
claim a broker's or finder's fee or commission in connection with the
transactions contemplated herein, except for any such fee payable solely by
Purchaser.
5.6 Effective Date of Representations and Warranties. All
representations and warranties of Purchaser contained in this Agreement are and
shall be true and correct in all material respects as of the date of this
Agreement and as of the Closing Date.
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ARTICLE VI
ACTIONS BY SELLER AND PURCHASER
PRIOR TO THE CLOSING
Seller and Purchaser covenant as follows for the period from the date
of this Agreement through the Closing Date:
6.1 Maintenance of Company. Except as described on Schedule 6.1
hereto or as otherwise agreed to in writing by Purchaser, Seller shall and
shall cause the Company and Kobe to comply with the provisions set forth below:
6.1.1 The Company and Kobe shall conduct its business in
the ordinary and usual course and in the manner heretofore conducted.
6.1.2 The Company and Kobe shall not, except in accordance
with past practices, (i) grant or agree to grant any bonuses to any
employee, (ii) grant any general increase in the rates of salaries or
compensation of its or their employees or any specific increase to any
employee, including executive officers of the Company, (iii) provide
for any new pension, retirement or other employment benefits to any of
its or their employees or any increase in any existing benefits or
(iv) terminate or amend in any respect or provide for any material
increase in benefits under any Benefit Plan.
6.1.3 Neither the Company nor Kobe shall amend its charter
or by-laws or enter into any merger or consolidation agreement.
6.1.4 Neither the Company nor Kobe shall authorize for
issuance, issue, sell, deliver or agree or commit to issue, sell or
deliver (whether through the issuance or granting of options,
warrants, commitments, subscriptions, rights to purchase or otherwise)
any capital stock of any class or any other securities or equity
equivalents or amend any of the terms of any such securities or
agreements.
6.1.5 Neither the Company nor Kobe shall sell, assign or
dispose of any of the Company Assets, including the stock of the
Subsidiaries, or incur or assume any liabilities or enter into any
sale/leaseback or similar transaction, except for sales and
dispositions of inventory made, or liabilities incurred, in the
ordinary course of business consistent with past practices.
6.1.6 Consent to a sale of stock of BMW to any person or
entity other than Purchaser or an affiliate of Purchaser.
6.1.7 Neither the Company nor Kobe shall assume, guarantee,
endorse or otherwise become liable or responsible (whether directly,
contingently or otherwise) for the obligations of any other person or
entity except in the ordinary and usual course of business consistent
with past practice.
6.1.8 The Company shall not implement or adopt (i) any
change in its accounting methods or principles or the application
thereof (including depreciation lives) or (ii) any material change in
their tax methods or principles or the application thereof (including
depreciation lives).
6.1.9 Neither the Company nor Kobe shall (i) declare or pay
any dividend on or make any other distribution in respect of any of
its capital stock or other ownership interests, except as necessary
with respect to
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Seller's retention of the Excluded Assets and Liabilities, (ii) split,
combine or reclassify any of its capital stock or other ownership
interests or issue or authorize the issuance of any other securities
in respect of, in lieu of or in substitution for shares of, its
capital stock or other ownership interests, (iii) purchase, redeem or
otherwise acquire any shares of its capital stock or other ownership
interests, (iv) advance or otherwise loan any funds to Seller or any
affiliate of the Company or Seller other than the Company or Kobe or
(v) take any preliminary action with respect to the foregoing.
6.2 Confidentiality and Noninterference. Before either party
issues an initial press release disclosing this Agreement or the transactions
proposed herein, the parties shall agree on the text of such press release
before any public announcement or disclosure. Thereafter and until the Closing,
the parties shall consult with each other concerning any subsequent public
statements.
6.3 Access to Information. Upon Purchaser's request to a contact
person identified by Seller, Seller shall provide to Purchaser, from time to
time, reasonable information concerning the business, property, books and
records of the Company. All information furnished to Purchaser and its
representatives under this Section 6.3 shall be kept confidential by such
persons in accordance with the Confidentiality Agreement dated August 6,1997,
between the Purchaser and Seller, as amended from time to time (the
"Confidentiality Agreement").
6.4 HSR Filing.
6.4.1 Purchaser and Seller (collectively, the "HSR
Parties") shall make all premerger notification and report form
filings required under the HSR Act with respect to the transactions
contemplated hereby as promptly as reasonably possible following
execution and delivery of this Agreement. Each of the HSR Parties
agrees to use reasonable efforts to promptly respond to, and fully
address, any formal or informal inquiry or request for information by
a Governmental Entity regarding the transactions contemplated hereby.
Each HSR Party will keep the other HSR Party apprised of the status of
any inquiries made by any governmental agency or authority with
respect to this Agreement or the transactions contemplated hereby.
6.4.2 Each of the HSR Parties will furnish one another
copies of all correspondence, filings or communications (or memoranda
setting forth the substance thereof (collectively, "HSR Documents"))
between such HSR Party, or any of its respective representatives, on
the one hand, and any Governmental Entity, or members of the staff of
such agency or authority, on the other hand, with respect to this
Agreement or the transactions contemplated hereby; provided, however,
that (i) with respect to documents and other materials filed by or on
behalf an HSR Party with the Antitrust Division of the Department of
Justice, the Federal Trade Commission or any state attorneys general
that are otherwise available for review by the other HSR Parties,
copies will not be required to be so provided, (ii) the other HSR
Parties may delete all revenue figures relating to any service not
provided or any product not manufactured or sold by the other HSR
Parties or any of their respective subsidiaries (according to such
other HSR Party's HSR Documents) and (iii) with respect to any HSR
Party's Documents (a) that
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contain any information which, in the reasonable judgment of such HSR
Party's counsel, should not be furnished to such other HSR Party
because of antitrust considerations or (b) relate to a request for
additional information pursuant to Section (e)(1) of the HSR Act, the
obligation of an HSR Party to furnish any such HSR Documents to the
other HSR Party shall be satisfied by the delivery of such HSR
Documents on a confidential basis to such other HSR Parties' counsel
pursuant to an appropriate confidentiality agreement to be entered
into by Fulbright & Xxxxxxxx L.L.P., on behalf of Purchaser, and
Xxxxxx and Xxxxx on behalf of Seller.
6.4.3 Notwithstanding the foregoing provisions in this
Section 6.4, nothing contained in this Agreement shall be construed so
as to require any of the HSR Parties or any of their respective
subsidiaries or affiliates to sell, license, dispose of or hold
separate, or to operate in any specified manner, any of their
respective assets or businesses (or to require any of the HSR Parties
or any of their respective subsidiaries or affiliates to agree to any
of the foregoing). The obligations of each HSR Party under this
Section 6.4 to use reasonable efforts with respect to antitrust
matters shall be limited to compliance with the reporting provisions
of the HSR Act and with its obligations under this Section 6.4.
ARTICLE VII
CONDITIONS TO SELLER'S OBLIGATION
The obligations of Seller to consummate the transactions provided for
herein are subject to the satisfaction of each of the following conditions on
or before the Closing Date:
7.1 Representations True and Correct. The representations and
warranties of Purchaser set forth in this Agreement shall be true and correct
in all material respects at and as of the Closing Date.
7.2 Performance of Agreements. Purchaser shall have performed all
agreements and covenants required hereby to be performed prior to or at the
Closing Date.
7.3 Certificates. Purchaser will furnish Seller with such
certificates of Purchaser's officers and others as may be reasonably requested
by Seller to evidence compliance with the conditions set forth in this Article
VII.
7.4 Governmental Approvals. The waiting period (and any extension
thereof) under the HSR Act shall have expired or been terminated. No statute,
rule or regulation or order of any court or administrative agency shall be in
effect which prohibits Seller from consummating the transactions contemplated
hereby and no suit, action, investigation or other proceeding shall have been
instituted or threatened seeking to restrain or prohibit Purchaser or Seller
from consummating the transactions contemplated hereby.
7.5 Further Action. All consents, approvals, authorizations,
exemptions and waivers set forth in Schedule 4.18 hereto shall been obtained
and be effective
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and all other consents, approvals, authorizations, exceptions and waivers from
third persons that shall be required in order to enable Seller to consummate
the transactions contemplated hereby shall have been obtained.
7.6 Legal Opinion. Seller shall have been furnished an opinion of
Fulbright & Xxxxxxxx L.L.P., counsel to Purchaser, that (i) this Agreement and
the transactions contemplated hereby have been authorized by all necessary
corporate action on the part of Purchaser, and (ii) this Agreement is a valid
and binding obligation of the Purchaser.
ARTICLE VIII
CONDITIONS TO PURCHASER'S OBLIGATIONS
The obligations of Purchaser to consummate the transactions provided
for herein are subject to the satisfaction, on or prior to the Closing Date, of
each of the following conditions:
8.1 Representations True and Correct. The representations and
warranties of Seller set forth in this Agreement shall be true and correct in
all material respects at and as of the Closing Date.
8.2 Performance of Agreements. Seller shall have performed all
agreements and covenants required hereby to be performed prior to or at the
Closing Date.
8.3 Certificates. Seller shall furnish Purchaser with such
certificates of Seller's officers and others as may be reasonably requested by
Purchaser to evidence compliance with the conditions set forth in this Article
VIII.
8.4 Governmental Approvals. The waiting period (and any extension
thereof) under the HSR Act shall have expired or been terminated. No statute,
rule or regulation or order of any court or administrative agency shall be in
effect which prohibits the Purchaser from consummating the transactions
contemplated hereby and no suit, action, investigation or other proceeding
shall have been instituted or threatened seeking to restrain or prohibit
Purchaser or Seller from consummating the transactions contemplated hereby.
8.5 Further Action. All consents, approvals, authorizations,
exemptions and waivers set forth in Schedule 5.4 hereto shall been obtained and
be effective and all other consents, approvals, authorizations, exceptions and
waivers from third persons that shall be required in order to enable Purchaser
to consummate the transactions contemplated hereby shall have been obtained.
8.6 Legal Opinion. The Purchaser shall have been furnished an
opinion of G. Xxxx Xxxxx, Vice President and General Counsel of Seller, that
(i) this Agreement and the transactions contemplated hereby have been
authorized by all necessary action on the part of the Seller, (ii) this
Agreement is valid and enforceable according to its terms, subject to rules of
general application concerning equitable principles and debtor's rights, and
(iii) all of the outstanding shares of Company
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Stock have been duly authorized and validly issued and are fully paid and
nonassessable and free and clear of any Encumbrances.
ARTICLE IX
ACTIONS BY SELLER AND PURCHASER AFTER THE CLOSING
9.1 Transfer of Excluded Assets and Liabilities. Purchaser shall
cause Company to take whatever actions are necessary or useful to transfer to
Seller any portion of the Excluded Assets and Liabilities which may be in or
come into Company's possession at any time after the Closing.
9.2 Books and Records. Seller and Purchaser agree that so long as
any books, records and files retained by either party relating to the Company's
business and the Company Assets for any period prior to the Closing are
available, each party (at its expense) shall have the right to inspect and to
make copies at any time during business hours for any proper purpose. Neither
of the parties hereto will destroy any of such books, records and files without
first having offered to deliver such books and records to the other party.
Each party agrees that it will cooperate with and make available to the other
party during normal business hours any books, records, information and
employees necessary and useful in connection with (i) any tax inquiry, audit,
investigation or dispute, (ii) any litigation or investigation, (iii) any
environmental investigation or proceeding, or (iv) any other reasonable
business purpose requiring access to such books, records, information or
employees. The party requesting any such books, records, information or
employees shall bear all of the out-of-pocket costs and expenses (including
without limitation attorney's fees, but excluding reimbursement for salaries
and employee benefits) reasonably incurred in connection with providing such
books, records, information or employees.
9.3 Employee Matters. Except for the Employees listed on Schedule
9.3 attached hereto, Seller shall not employ or offer employment to any of the
Employees for a period of one year after the Closing Date, without the prior
written consent of Purchaser. Any employee who receives an offer from Seller as
permitted herein may decide to continue his employment with Company or to
accept the offer from Seller. Any Employee who leaves their assets in the
PACCAR Savings Investment Plan until January 1, 1998 will receive the matching
contribution from PACCAR for their contributions made during 1997 while a
member of the Plan.
9.4 Environmental Remediation. Seller will remediate any
contamination of the soil or groundwater listed in Schedule 4.17 to the level
necessary to satisfy applicable mandatory federal, state and local
requirements. All such remediation efforts shall be conducted by Seller at
Seller's expense and in a reasonable time period after the Closing, taking into
account the cost, urgency and effectiveness of the remediation efforts and
inconvenience to the Company's operations at such location. Purchaser will
cooperate with Seller and allow Seller access to any affected property in order
to remediate any such contamination. Seller shall be responsible for any fines
or penalties imposed because of the contamination listed on Schedule 4.17 or
related to the remediation thereof by Seller.
9.5 Survival of Representations and Warranties. The several
representations and warranties of the parties to this Agreement shall survive
the
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Closing Date and shall remain in full force and effect for a period of 6 months
following the Closing Date (the "Survival Period"), except that the
representations and warranties set forth in Sections 4.1, 4.2, 4.3, 4.5, 4.6,
4.19, 5.1, 5.2 and 5.5 shall survive the Closing Date without limitation. Any
claim for a breach of a representation or warranty must be made by the delivery
to the breaching party of a written notice providing specific details of the
alleged breach within the Survival Period. Any claim for breach of a
representation or warranty made during the Survival Period shall be timely,
notwithstanding such claim may not be resolved within the Survival Period. All
representations and warranties made by the parties shall not be affected by any
investigation heretofore or hereafter made by or on behalf of any party, except
for matters specifically disclosed in one of the Schedules to this Agreement or
to the extent taken into account in determining the "Net Assets" on the Final
Statement of Net Assets.
9.6 Survival of Covenants and Agreements. All covenants and
agreements contained herein shall survive the Closing without limitation;
provided, however, that such survival shall not operate to expand the
indemnification obligations set forth in Section 9.8.
9.7 Breach of Representations and Warranties by Seller. Subject
to the Survival Period limitation contained in Section 9.5 and the Threshold
Requirement of Section 9.9, in the event any representation or warranty made by
Seller herein in connection with the following matters shall be proved to be
incorrect when made, Purchaser's sole remedy shall be as follows:
9.7.1 If the representation or warranty related to any of
the Company Assets, Purchaser's sole remedy shall be to have the
Purchase Price adjusted as set forth in this Section 9.7.1. No
adjustment shall be made under this section for any change or alleged
change in the value of any specific Company Assets. The adjustment
shall be determined by reference to the amount (if any) by which the
"Net Assets" as shown on the Final Statement of Net Assets exceeds the
amount which would have been shown as "Net Assets" on the Final
Statement of Net Assets, if it had been prepared according to Section
3.3 based on the true facts and not in reliance on the incorrect
representation or warranty; provided that, if Company does not own the
shares of stock of BMW on the Closing Date free and clear of all
Encumbrances (except for agreements with the other shareholders of
BMW), such shares shall be valued at Fifteen Million U.S. Dollars
($15,000,000) for the purposes of the adjustment to the Purchase
Price.
9.7.2 If the representation or warranty related to the
environmental condition of the Real Property under Section 4.17,
Purchaser's sole remedy shall be to have Seller remediate such
contamination to the level necessary to satisfy applicable mandatory
federal, state and local requirements. All remediation efforts shall
be conducted by Seller at Seller's expense and in a reasonable time
period, taking into account the cost, urgency and effectiveness of the
remediation efforts and inconvenience to the Company's operations at
such location. Purchaser will cooperate with Seller and allow Seller
access to any affected property in order to remediate any such
contamination. Seller shall be responsible for any fines or penalties
imposed because of such contamination or related to the remediation
thereof by Seller.
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9.8 Indemnification.
9.8.1 By Seller. Except as otherwise provided in Section
9.7 hereof, and subject to the Survival Period limitation contained in
Section 9.5 and the Threshold Requirement of Section 9.9, Seller shall
indemnify, defend and hold harmless Purchaser, its affiliates and
subsidiaries, and its and their respective employees, representatives,
officers, directors and agents from and against any and all Damages
(whether or not arising out of third-party claims) incurred in
connection with or arising out of or resulting from or incident to:
(i) any breach of any of Seller's representations, warranties
or obligations under this Agreement; or
(ii) any Excluded Assets and Liabilities.
9.8.2 By Purchaser or Company. Purchaser shall (or shall
cause Company to) indemnify, defend and hold harmless Seller, its
affiliates and subsidiaries, and its and their respective employees,
representatives, officers, directors and agents from and against any
and all Damages (whether or not arising out of third-party claims)
incurred in connection with or arising out of or resulting from or
incident to:
(i) any breach of any of Purchaser's
representations, warranties or obligations under this
Agreement;
(ii) any Assumed Liability; or
(iii) any obligation, liability, claim or cause of
action arising from or relating to the Company or its
business, unless such obligation, liability, claim or cause of
action arises from or relates to (i) the Excluded Assets and
Liabilities, (ii) Seller's obligations under Sections 9.4 and
9.7.2 hereof, or (iii) a breach of Seller's representations,
warranties or obligations which Seller is obligated to
indemnify Purchaser for under Section 9.8.1 of this Agreement.
9.8.3 Defense of Claims. If any lawsuit or enforcement
action is filed against any party entitled to the benefit of indemnity
hereunder, written notice thereof shall be given to the indemnifying
party as promptly as practicable (and in any event within fifteen (15)
days after the service of the citation or summons); provided that the
failure of any indemnified party to give timely notice shall not
affect the right to indemnification hereunder except to the extent
that the indemnifying party demonstrates actual prejudice caused by
such failure. After such notice, the indemnifying party shall take
control of the defense and investigation of such lawsuit or action and
any appeal arising therefrom and shall pay any resulting judgment or
settlement, all at its sole cost and expense; provided, however, that
the indemnified party, at its own cost, may participate in such
investigation, trial and defense of such lawsuit or action and any
appeal arising therefrom without affecting the indemnifying party's
obligations hereunder. If the indemnifying party fails to provide a
defense to such suit or action, the
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indemnified party may defend itself and compromise or settle the
lawsuit or action on any commercially reasonable basis, at the full
risk and expense of the indemnifying party.
9.9 Materiality and Threshold Requirement.
9.9.1 There shall be no adjustment to the Purchase Price under
Section 9.7.1 or indemnification under Section 9.8.1 for a breach of
any representation or warranty, except only the representations and
warranties in Sections 4.3, 4.5 and 4.6 hereof, unless and until the
Damages for all breaches of representations and warranties by Seller
exceed $1,000,000 in the aggregate (the "Threshold Requirement"), and
once all such Damages exceed the Threshold Requirement, Seller shall
be obligated only for Damages for such breaches of representations and
warranties in the aggregate in excess of the Threshold Requirement.
The Threshold Requirement shall not apply to indemnification for
breaches of the representations and warranties under Sections 4.3, 4.5
and 4.6 hereof or to indemnification claims under Section 9.8.1(i) for
breaches of obligations under this Agreement or under Section
9.8.1(ii), which indemnification shall be without limitation.
9.9.2 For purposes of determining the right of a party to make a
claim for an adjustment to the Purchase Price under Section 9.7.1 or
for indemnification for a breach of representation or warranty under
Section 9.8.1, all representations and warranties that have been made
subject to a materiality or dollar qualification (including any
Material Adverse Effect) shall be deemed to have been made without
that qualification; it being understood and agreed that the Threshold
Requirement provided for under Section 9.9.1 is intended to be the
only materiality qualification for such matters for purposes of
indemnification.
9.10 Waiver of Contribution.
9.10.1 Seller acknowledges and agrees that it shall not seek
or receive indemnification or contribution from the Company, Kobe or
BMW with respect to any claim for indemnification properly made
against Seller under Section 9.8.1.
9.10.2 Purchaser (on its own behalf and on behalf of the
Company) acknowledges and agrees that it shall not seek or receive
indemnification or contribution from Seller with respect to any claim
for indemnification properly made against Purchaser (or the Company)
under Section 9.8.2.
9.11 EXPRESS NEGLIGENCE. THE INDEMNIFICATIONS TO BE PROVIDED UNDER
SECTION 9.8 SHALL APPLY NOTWITHSTANDING THAT ANY MATTER FOR WHICH
INDEMNIFICATION IS TO BE PROVIDED MAY RELATE TO THE ORDINARY SOLE OR
CONTRIBUTORY NEGLIGENCE, GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR VIOLATION OF
LAW BY THE INDEMNITEE, INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS,
AND FOR LIABILITIES BASED ON THEORIES OF STRICT LIABILITY, AND SHALL BE
APPLICABLE WHETHER OR NOT NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE
IS ALLEGED OR
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PROVEN. IT IS THE INTENTION OF THE PARTIES TO ALLOCATE THE RISKS AND
OBLIGATIONS AS SET FORTH IN THIS AGREEMENT AND TO INDEMNIFY ANY SUCH INDEMNITEE
FROM AND AGAINST ITS ORDINARY SOLE AND CONTRIBUTORY NEGLIGENCE AND GROSS
NEGLIGENCE, AS WELL AS FOR LIABILITIES BASED ON THE WILLFUL ACTIONS OR
OMISSIONS OF THE INDEMNIFIED PARTY AND LIABILITIES BASED ON THEORIES OF STRICT
LIABILITY.
9.12 RELEASE. AS OF THE CLOSING DATE, EXCEPT FOR THE PROVISIONS OF
THIS AGREEMENT AND FOR MATTERS SET FORTH ON SCHEDULE 9.12 HERETO, SELLER DOES
HEREBY FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS RELEASE AND FOREVER DISCHARGE
PURCHASER, THE COMPANY AND THEIR RESPECTIVE AFFILIATES, SUCCESSORS AND ASSIGNS,
FROM ANY AND ALL CLAIMS, CAUSES OF ACTION, LIABILITIES AND OBLIGATIONS OF EVERY
NATURE WHATSOEVER, LIQUIDATED OR UNLIQUIDATED, KNOWN OR UNKNOWN, MATURED OR
UNMATURED, FIXED OR CONTINGENT, THAT SELLER OR ITS AFFILIATES NOW HAS, OWNS OR
HOLDS OR HAS AT ANY TIME PREVIOUSLY HAD, OWNED OR HELD AGAINST SUCH PARTIES,
INCLUDING WITHOUT LIMITATION ALL LIABILITIES CREATED AS A RESULT OF THE
NEGLIGENCE, GROSS NEGLIGENCE AND WILLFUL ACTS OF THE COMPANY AND ITS RESPECTIVE
EMPLOYEES AND AGENTS, OR UNDER A THEORY OF STRICT LIABILITY, EXISTING AS OF THE
CLOSING DATE OR RELATING TO ANY ACTION, OMISSION OR EVENT OCCURRING ON OR PRIOR
TO THE CLOSING DATE.
9.13 Transition Period.
9.13.1 During a transition period lasting through March 31,
1998, Seller will provide any administrative services, including
without limitation fixed asset management, payroll and benefits,
worker's compensation, computing services, and credit, tax and legal
services, reasonably requested by Purchaser, at charges not to exceed
the fair market value of such services. Purchaser shall reimburse
Seller for all costs and expenses incurred and indemnify Seller from
any claims and causes of action which may arise in connection with the
services to be provided under this section.
9.13.2 Seller, if requested by Purchaser, shall cooperate
and assist in preparing such audited financial statements of the
Company that Purchaser may reasonably require in order to permit
Purchaser to timely file a Current Report on Form 8-K with the
Securities and Exchange Commission in accordance with the Securities
Exchange Act of 1934, as amended, and the rules and regulations
thereunder in connection with the transactions contemplated hereby and
to comply with any financial statement requirements with respect to
the Company applicable to Purchaser under the Securities Act of 1933,
as amended, the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder. The cost of such audit shall be
borne by Purchaser. Seller will cooperate with and assist Purchaser
in preparing such other audited financial statements for the Company
as may be specified by Purchaser. In addition, the Seller will provide
federal tax information to Purchaser as necessary for Purchaser to
prepare the first federal income tax return of the Company due after
the Closing.
9.14 Letters of Credit. Seller has established various LC's listed
in Schedule 1.13.7 for the benefit of the Company or the benefit of Seller and
its
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affiliates (including the Company) in connection with the Greenville Industrial
Revenue Bond ("IRB") and workers' compensation programs. Seller will terminate
these LC's (or terminate coverage of the Company under such LC's) effective the
Closing Date. Purchaser understands and agrees that it will replace these LC's
or make other arrangements in order to comply with the requirements of the IRB
and these other programs. Purchaser will indemnify Seller from and costs and
expenses Seller incurs after the Closing in connection with these matters,
until Purchaser has established replacement programs.
9.15 Covenants Not to Compete. Seller agrees that, for a period of
two (2) years following the Closing Date, Seller and its affiliates shall not
directly or indirectly manufacture or distribute anywhere in the world any
products that compete with products presently manufactured or distributed by
Company, but this restriction shall not apply to any Seller's Components. The
parties acknowledge and agree that any breach of this Section 9.15 will result
in irreparable harm to Purchaser and that a remedy at law will be inadequate.
Purchaser shall, in addition to any other remedy that may be available to it,
be entitled to specific performance and injunctive and other equitable relief
in case of any such breach or attempted breach. The parties acknowledge that
this covenant not to compete are being provided as an inducement to Purchaser
to engage in the transactions set forth herein and that this Section 9.15
contains reasonable limitations as to time, geographical area and scope of
activity to be restrained that do not impose a greater restraint than is
necessary to protect the goodwill or other business interest of Purchaser. In
the event that the provisions of this Section 9.15 should ever be deemed to
exceed the time or geographic limitations permitted by applicable laws, then
such provision shall be reformed to the maximum time or geographic limitations
permitted by applicable law.
9.16 Tax Basis. Within 3 months of the Closing, Seller will
provide to Purchaser information as to the tax basis for federal income tax
purposes of all Company Assets and liabilities as of the date of the Final
Statement of Net Assets. If the tax basis information provided by Seller
differs from the basis information used to calculate deferred taxes for
purposes of the Final Statement of Net Assets and such difference would result
in a lower net deferred tax asset or in a higher net deferred tax liability,
then the difference, multiplied by 0.37 (37%), will be considered as if it were
Damages caused by a breach of a representation or warranty made by Seller
herein.
9.17 Taxes. All sales, use, excise, or other transfer taxes, if
any, which are imposed on the transfer of the Company Stock or are imposed on
the Company because of the transfer of the Company Stock as set forth herein
shall be paid by the Purchaser, except for any taxes imposed by the State of
Washington which shall be paid by Seller.
9.18 Further Assurances and Cooperation. On and after the Closing
Date, Seller and Purchaser will take all appropriate actions and execute any
documents, instruments or conveyances of any kind which may be reasonably
necessary or advisable to carry out or to assist the other party to carry out
any of its or their obligations under the provisions of this Agreement.
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ARTICLE X
MISCELLANEOUS
10.1 Termination. If any condition precedent to Seller's
obligations hereunder is not satisfied and such condition is not waived by
Seller at or prior to the Closing Date, or if any condition precedent to
Purchaser's obligations hereunder is not satisfied and such condition is not
waived by Purchaser at or prior to the Closing Date, Seller or Purchaser, as
the case may be, may terminate this Agreement at its option by notice to the
other party, unless the party intending to give such notice is in default under
its obligations hereunder. If the approval conditions under Sections 7.4 and
8.4 hereof have not been satisfied by December 31, 1997, either party may
terminate this Agreement by giving 5 days written notice to the other party,
and this Agreement shall automatically terminate at the end of the notice
period unless the conditions have been satisfied by then. In the event of the
termination of this Agreement by either party as above provided, neither party
shall have any liability hereunder of any nature whatsoever (other than
pursuant to Sections 6.2 and 10.2 hereof) to the other party. In the event that
a condition precedent to its obligations is not satisfied, nothing contained
herein shall be deemed to require any party to terminate this Agreement, rather
than to waive such condition precedent and proceed with the Closing.
10.2 Confidential Information. In connection with the negotiation
of this Agreement and the preparation for the consummation of the transactions
contemplated herein, each party has had access to confidential information
relating to the other party. Each party agrees to restrict such information
(including knowledge of this Agreement and the transactions contemplated
herein) to those and only those employees, attorneys, accountants, advisors and
consultants who need to know such information. Each party shall treat all such
information as confidential, shall preserve the confidentiality thereof and
shall not duplicate or use such information except in connection with the
transactions contemplated hereby. In the event of the termination of this
Agreement for any reason whatsoever, each party shall return to the other all
documents, work papers and other material (including all copies thereof)
obtained in connection with the transactions contemplated hereby and will use
all reasonable efforts, including instructing its employees who have had access
to such information, to keep confidential and not to use any such information,
unless such information is now or is hereafter disclosed, through no act or
omission of such party, in any manner making it available to the general
public.
10.3 Assignment. Neither this Agreement nor any of the rights and
obligations hereunder may be assigned by either party without the prior written
consent of the other. The foregoing notwithstanding, the Purchaser may assign
all of its rights under this Agreement after the Closing, but such assignment
shall not release Purchaser from its obligations under this Agreement.
10.4 Notices. Unless otherwise provided herein, any notice,
request, instruction or other document to be given hereunder by either party to
the others shall be in writing and delivered personally, by facsimile (with
confirmed transmission status) or mailed by certified mail, postage prepaid,
return receipt requested (such mailed notice to be effective on the date such
receipt is acknowledged), as follows:
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If to Seller, addressed to:
PACCAR Inc
X.X. Xxx 0000
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxx, Senior Vice President
Facsimile: (000) 000-0000, until 10/20/97; (000) 000-0000 thereafter
Telephone: (000) 000-0000, until 10/20/97; (000) 000-0000 thereafter
With copies to:
PACCAR Inc
X.X. Xxx 0000
Xxxxxxxx, XX 00000
Attention: G. Xxxx Xxxxx, Vice President and General Counsel
Facsimile: (000) 000-0000, until 10/20/97; (000) 000-0000 thereafter
Telephone: (000) 000-0000, until 10/20/97; (000) 000-0000 thereafter
If to Purchaser, addressed to:
EVI, Inc.
0 Xxxx Xxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With copies to:
Fulbright & Xxxxxxxx L.L.P.
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
or such other place and with such other copies as any party may designate by
written notice to the others.
10.5 Choice of Law and Interpretation. This Agreement shall be
construed and interpreted and the rights of the parties determined in
accordance with the laws of the State of Washington. Both parties acknowledge
that this Agreement has been negotiated and prepared with the participation of
legal counsel for both parties, and they agree that the Agreement shall be
interpreted and construed without reference to either party as being the author
or preparer of the Agreement.
10.6 Entire Agreement; Amendments and Waivers. This Agreement,
together with all Exhibits and Schedules hereto, constitutes the entire
Agreement among the parties pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions
of the parties, whether oral or written. No supplement, modification or waiver
of this Agreement shall be
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binding unless executed in writing by the party to be bound thereby. No waiver
of any of the provisions of this Agreement shall be deemed to or shall
constitute a waiver of any other provision hereof, and the waiver of any
default shall not be deemed to be a waiver of any other or subsequent default.
10.7 Multiple Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
10.8 Expenses. Each party hereto shall pay its own expenses
incident to this Agreement and to any action taken by such party in performing
its obligations under this Agreement.
10.9 Invalidity. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law. If any provision of this Agreement shall be prohibited by
or invalid, illegal or unenforceable under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, illegality or
unenforceability without affecting the remaining provisions of this Agreement.
If any provision of this Agreement shall, for any reason, be judged by any
court of competent jurisdiction to be invalid or unenforceable, such judgment
shall not affect, impair or invalidate the other provisions of this Agreement,
but shall be confined in its operation to the provision directly involved in
the controversy in which such judgment shall have been rendered.
10.10 Headings. The headings of the Articles and Sections are not
intended to be a part of this Agreement.
10.11 Resolution of Disputes. In the event of any dispute
concerning this Agreement, the parties shall attempt in good faith to settle
the dispute among themselves, and if this is not successful, they shall seek
alternative methods to resolve the dispute in a cost effective manner before
commencing litigation.
10.12 Legal Fees. In the event of any arbitration or litigation
concerning the enforcement of this Agreement, the prevailing party shall be
entitled to recover its costs and expenses, including reasonable attorneys'
fees.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers, thereunto duly authorized, in
multiple originals, all as of the day and year first above written.
SELLER: PACCAR Inc PURCHASER: EVI, Inc.
By: /s/ Xxxxxxx X. Xxx By: /s/ Xxxxx X. Xxxxx
-------------------------------- -------------------------------
Title: Senior Vice President Title: Vice President
----------------------------- ----------------------------
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As permitted by Item 601(b)(2) of Regulation S-K, the Company has not
filed any schedules or exhibits with this Exhibit No. 2.1. Listed below is a
brief description of the omitted schedules and exhibits. The Company agrees to
furnish supplementally a copy of any of such omitted schedules and exhibits to
the Commission upon request.
Schedules
---------
1.7.1 Real Property
1.7.5 Contracts with Obligations in Excess of $50,000
1.7.6 Patents and Trademarks
1.7.11 Shares of Stock in Subsidiaries
1.13.1 Excluded Real Property
1.13.3(a) Excluded Bank and Trust Accounts
1.13.3(b) Excluded Cash
1.13.7 Excluded Letters of Credit
1.13.9 Excluded Stock in Subsidiaries
1.13.11 Excluded Company and Seller Benefit Plans
1.13.12 Seller's Components
1.13.14 Litigation
1.19 Items Excluded from Adjustment of Net Assets
1.20(a) Statement of Net Assets
1.20(b) Statement of Reserves
4.6 Encumbrances on Stock of Subsidiaries (including Shareholders' Agreements)
4.8 Encumbrances on Company Assets
4.9 Encumbrances on Real Property
4.10 Exceptions to Certain Agreements
4.11 Exceptions to Contract Representations
4.12 Exceptions to Patents, Trademarks, Etc. Representations
4.13 Exceptions to Accounts Receivable Representations
4.15 Exceptions to Licenses, Permits and Authorizations Representations
4.16 Exceptions to Compliance Representations
4.17 Environmental Disclosures
4.18 Seller's Required Consents and Approvals
4.20 Pension and Benefit Plans
4.21 Taxes and Tax Returns
5.4 Purchaser's Required Consents and Approvals
6.1 Exceptions to Ordinary Course Transactions
9.3 Employees to Whom Seller May Make Offer of Employment
9.12 Company Obligations to Seller to Survive Closing
