Exhibit 2.1
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AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
among:
METRON TECHNOLOGY B.V.,
a Netherlands corporation;
METRON ACQUISITION SUB, INC.,
and
X.X. XXXXX CO.,
a Nevada corporation
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Dated as of June 12, 1998
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TABLE OF CONTENTS
PAGE
SECTION 1. DESCRIPTION OF TRANSACTION . . . . . . . . . . . . . . . . . . . . . .1
1.1 Merger of Merger Sub into Xxxxx. . . . . . . . . . . . . . . . . . . .1
1.2 Effect of the Merger . . . . . . . . . . . . . . . . . . . . . . . . .2
1.3 Netherlands Corporate Law. . . . . . . . . . . . . . . . . . . . . . .2
1.4 Articles of Incorporation and Bylaws; Directors and
Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.5 Conversion of Shares . . . . . . . . . . . . . . . . . . . . . . . . .3
1.6 Closing of Xxxxx'x Transfer Books. . . . . . . . . . . . . . . . . . .3
1.7 Surrender of Certificates. . . . . . . . . . . . . . . . . . . . . . .4
1.8 Dissenter Shares . . . . . . . . . . . . . . . . . . . . . . . . . . .5
1.9 Tax Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . .6
1.10 Accounting Treatment . . . . . . . . . . . . . . . . . . . . . . . . .6
1.11 Further Action.. . . . . . . . . . . . . . . . . . . . . . . . . . . .6
1.12 Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
1.13 Deliveries at the Closing. . . . . . . . . . . . . . . . . . . . . . .6
SECTION 2. REPRESENTATIONS AND WARRANTIES OF XXXXX. . . . . . . . . . . . . . . .7
2.1 Due Organization; No Subsidiaries; Etc.. . . . . . . . . . . . . . . .7
2.2 Articles of Incorporation and Bylaws; Records. . . . . . . . . . . . .8
2.3 Capitalization, Etc. . . . . . . . . . . . . . . . . . . . . . . . . .8
2.4 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . .9
2.5 Absence of Changes . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.6 Title to Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.7 Bank Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.8 Receivables; Major Customers . . . . . . . . . . . . . . . . . . . . 12
2.9 Inventory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.10 Equipment, Etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.11 Real Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.12 Proprietary Assets . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.13 Contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.14 Liabilities; Major Suppliers . . . . . . . . . . . . . . . . . . . . 16
2.15 Compliance With Legal Requirements . . . . . . . . . . . . . . . . . 17
2.16 Governmental Authorizations. . . . . . . . . . . . . . . . . . . . . 17
i
2.17 Tax Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.18 Employee and Labor Matters . . . . . . . . . . . . . . . . . . . . . 20
2.19 Benefit Plans; ERISA . . . . . . . . . . . . . . . . . . . . . . . . 21
2.20 Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . . 24
2.21 Sale of Products; Performance of Services. . . . . . . . . . . . . . 25
2.22 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.23 Related Party Transactions . . . . . . . . . . . . . . . . . . . . . 27
2.24 Certain Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . 28
2.25 Proceedings; Orders. . . . . . . . . . . . . . . . . . . . . . . . . 28
2.26 Authority; Binding Nature of Agreements; Board of Directors
Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.27 Non-Contravention; Consents. . . . . . . . . . . . . . . . . . . . . 29
2.28 Brokers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.29 Accounting Matters . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.30 Vote Required. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.31 Information Statement/Offering Memorandum. . . . . . . . . . . . . . 31
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SIGNING STOCKHOLDERS . . . . . . . 31
3.1 Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.2 Authority of Signing Stockholders; Binding Nature of
Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.3 Non-Contravention; Consents. . . . . . . . . . . . . . . . . . . . . 32
3.4 Ability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.5 Investment Representations . . . . . . . . . . . . . . . . . . . . . 33
3.6 Acknowledgment . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER AND MERGER SUB . . . . . 35
4.1 Due Organization . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.2 Articles of Association; Records . . . . . . . . . . . . . . . . . . 36
4.3 Capitalization, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 37
4.4 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . 39
4.5 Absence of Changes . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.6 Title to Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.7 Receivables. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.8 Inventory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.9 Proprietary Assets . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.10 Contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
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4.11 Liabilities; Major Suppliers . . . . . . . . . . . . . . . . . . . . 44
4.12 Compliance with Legal Requirements . . . . . . . . . . . . . . . . . 44
4.13 Governmental Authorizations. . . . . . . . . . . . . . . . . . . . . 45
4.14 Tax Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
4.15 Benefit Plans; ERISA . . . . . . . . . . . . . . . . . . . . . . . . 46
4.16 Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . . 49
4.17 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
4.18 Related Party Transactions . . . . . . . . . . . . . . . . . . . . . 50
4.19 Certain Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . 51
4.20 Proceedings; Orders. . . . . . . . . . . . . . . . . . . . . . . . . 51
4.21 Authority; Binding Nature of Agreement . . . . . . . . . . . . . . . 52
4.22 Non-Contravention; Consents. . . . . . . . . . . . . . . . . . . . . 53
4.23 Brokers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.24 Accounting Matters . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.25 Valid Issuance . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.26 Employees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.27 Stock Option Plan. . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.28 Information Statement/Offering Memorandum. . . . . . . . . . . . . . 55
4.29 Purchaser Obligations Under the Xxxxx ESOP . . . . . . . . . . . . . 55
SECTION 5. CERTAIN COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.1 Access and Investigation . . . . . . . . . . . . . . . . . . . . . . 55
5.2 Operation of Business. . . . . . . . . . . . . . . . . . . . . . . . 56
5.3 Notification; Updates to Xxxxx Disclosure Schedule . . . . . . . . . 58
5.4 No Negotiation . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
5.5 Xxxxx Stockholders' Meeting. . . . . . . . . . . . . . . . . . . . . 59
SECTION 6. PRE-CLOSING COVENANTS OF SIGNING STOCKHOLDERS. . . . . . . . . . . . 59
SECTION 7. PRE-CLOSING COVENANTS OF PURCHASER AND MERGER SUB. . . . . . . . . . 60
7.1 Access and Investigation . . . . . . . . . . . . . . . . . . . . . . 60
7.2 Operation of Business. . . . . . . . . . . . . . . . . . . . . . . . 60
7.3 Notification; Updates to Disclosure Schedule . . . . . . . . . . . . 62
SECTION 8. ADDITIONAL COVENANTS OF THE PARTIES. . . . . . . . . . . . . . . . . 63
8.1 Filing and Consents. . . . . . . . . . . . . . . . . . . . . . . . . 63
8.2 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . 63
iii
8.3 Continuity of Interest Certificates. . . . . . . . . . . . . . . . . 63
8.4 Tax Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
8.5 Employment Agreements. . . . . . . . . . . . . . . . . . . . . . . . 63
8.6 Release. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.7 Closing Certificates . . . . . . . . . . . . . . . . . . . . . . . . 64
8.8 Prohibited Transactions. . . . . . . . . . . . . . . . . . . . . . . 64
8.9 Accession Agreement. . . . . . . . . . . . . . . . . . . . . . . . . 64
8.10 FIRPTA Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.11 Best Efforts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.12 Tax-Free Reorganization. . . . . . . . . . . . . . . . . . . . . . . 64
8.13 Option Grants. . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.14 Prohibitions Against Transfer. . . . . . . . . . . . . . . . . . . . 65
8.15 Pooling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.16 Director and Officer Indemnification . . . . . . . . . . . . . . . . 66
8.17 Xxxxx ESOP Dissenter's Rights. . . . . . . . . . . . . . . . . . . . 66
8.18 Recommendation of Supervisory Board Members. . . . . . . . . . . . . 66
8.19 Corporate Action . . . . . . . . . . . . . . . . . . . . . . . . . . 66
8.20 Records Retention; Access Following Closing. . . . . . . . . . . . . 66
8.21 Xxxxx ESOP.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
8.22 Legal Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 9. CONDITIONS PRECEDENT TO PURCHASER'S AND MERGER SUB'S
OBLIGATION TO CLOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
9.1 Accuracy of Representations. . . . . . . . . . . . . . . . . . . . . 68
9.2 Performance of Obligations . . . . . . . . . . . . . . . . . . . . . 68
9.3 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
9.4 Stockholder Approval; Dissenters' Rights . . . . . . . . . . . . . . 69
9.5 Additional Documents . . . . . . . . . . . . . . . . . . . . . . . . 69
9.6 Notarial Requirements. . . . . . . . . . . . . . . . . . . . . . . . 71
9.7 Employees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
9.8 FIRPTA Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . 71
9.9 Securities Law Compliance. . . . . . . . . . . . . . . . . . . . . . 71
9.10 No Restraints. . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
9.11 No Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
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9.12 Proprietary Information and Inventions Agreements. . . . . . . . . . 72
9.13 No Claim Regarding Stock Ownership or Sale Proceeds. . . . . . . . . 72
9.14 HSR Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
9.15 NO PROHIBITION . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 10. CONDITIONS PRECEDENT TO XXXXX AND THE SIGNING STOCKHOLDERS'
OBLIGATION TO CLOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
10.1 Accuracy of Representations. . . . . . . . . . . . . . . . . . . . . 72
10.2 Performance of Obligations . . . . . . . . . . . . . . . . . . . . . 73
10.3 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.4 Supervisory Board Matters. . . . . . . . . . . . . . . . . . . . . . 73
10.5 Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.6 Additional Agreements. . . . . . . . . . . . . . . . . . . . . . . . 74
10.7 Xxxxx ESOP Matters . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.8 Intentionally Omitted. . . . . . . . . . . . . . . . . . . . . . . . 75
10.9 No Restraints. . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.10 No Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.11 HSR Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.12 No Prohibition . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.13 Xxxxx ESOP.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 11. TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
11.1 Termination Events . . . . . . . . . . . . . . . . . . . . . . . . . 76
11.2 Termination Procedures . . . . . . . . . . . . . . . . . . . . . . . 77
11.3 Effect of Termination. . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 12. INDEMNIFICATION, ETC.. . . . . . . . . . . . . . . . . . . . . . . . 78
12.1 Survival of Representations and Covenants. . . . . . . . . . . . . . 78
12.2 Indemnification by Stockholders Regarding Xxxxx
Representations and Warranties . . . . . . . . . . . . . . . . . . . 79
12.3 Threshold; Ceiling; Other Limitations. . . . . . . . . . . . . . . . 80
12.4 Indemnification by Signing Stockholders Regarding Signing
Stockholder Representations and Warranties and Covenants . . . . . . 80
12.5 Indemnification by Purchaser and Merger Sub. . . . . . . . . . . . . 81
12.6 Threshold; Ceiling . . . . . . . . . . . . . . . . . . . . . . . . . 82
12.7 Satisfaction of Indemnification Claim. . . . . . . . . . . . . . . . 83
12.8 No Contribution. . . . . . . . . . . . . . . . . . . . . . . . . . . 83
v
12.9 Exclusivity of Indemnification Remedies. . . . . . . . . . . . . . . 83
12.10 Third Party Claims.. . . . . . . . . . . . . . . . . . . . . . . . . 84
12.11 Exercise of Remedies by Indemnitees. . . . . . . . . . . . . . . . . 85
12.12 Claims Between the Parties Not Involving Third Party
Claims.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
12.13 Stockholders' Agent. . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 13. MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 88
13.1 Intentionally Omitted. . . . . . . . . . . . . . . . . . . . . . . . 88
13.2 Intentionally Omitted. . . . . . . . . . . . . . . . . . . . . . . . 89
13.3 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . 89
13.4 Fees and Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . 89
13.5 Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . 89
13.6 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
13.7 Publicity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
13.8 Time of the Essence. . . . . . . . . . . . . . . . . . . . . . . . . 91
13.9 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
13.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
13.11 Governing Law; Venue . . . . . . . . . . . . . . . . . . . . . . . . 91
13.12 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . 92
13.13 Remedies Cumulative; Specific Performance. . . . . . . . . . . . . . 92
13.14 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
13.15 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
13.16 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
13.17 Parties in Interest. . . . . . . . . . . . . . . . . . . . . . . . . 93
13.18 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 93
13.19 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
13.20 Acknowledgment . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
13.21 No Personal Liability. . . . . . . . . . . . . . . . . . . . . . . . 94
vi
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION is entered into
as of June 12, 1998 by and among METRON TECHNOLOGY B.V., a Netherlands
corporation ("Purchaser"), METRON ACQUISITION SUB, INC., a Nevada corporation
and a wholly owned subsidiary of Purchaser ("Merger Sub"), and X.X. XXXXX
CO., a Nevada corporation ("Xxxxx"); and to be joined by those stockholders
of Xxxxx listed on Exhibit B (the "Stockholders") who join in the execution
of this Agreement by executing a Joinder Agreement (the "Joinder Agreement")
substantially in the form attached as Exhibit C (such Stockholders who
execute the Joinder Agreement, the "Signing Stockholders"). Certain
capitalized terms used in this Agreement are defined in Exhibit A.
RECITALS
A. Purchaser, Merger Sub and Xxxxx intend to effect a merger of
Merger Sub into Xxxxx in accordance with this Agreement and the Nevada
Revised Statutes (the "Merger"). Upon consummation of the Merger, Merger Sub
will cease to exist, and Xxxxx will become a wholly owned subsidiary of
Purchaser.
B. It is intended that the Merger qualify as a tax-free
reorganization within the meaning of Section 368(a) of the Internal Revenue
Code of 1986, as amended (the "Code"). For accounting purposes, it is
intended that the Merger be treated as a "pooling of interests" pursuant to
APB Opinion No. 16.
C. This Agreement and the Merger have been approved by the
respective boards of directors of Purchaser, Merger Sub and Xxxxx.
D. The stockholders of Xxxxx own an aggregate of 97,920.131 shares
(the "Shares") of the common stock, par value $0.01 per share, of Xxxxx
("Xxxxx Common Stock").
E. Simultaneously with the execution of this Agreement, C. Xxxxx
Xxxxxxxxx and Xxxx X. Xxxxx, Xx. have executed the Joinder Agreement.
AGREEMENT
Purchaser, Merger Sub, Xxxxx and, upon execution of the Joinder
Agreement, the Signing Stockholders, intending to be legally bound, agree as
follows:
SECTION 1. DESCRIPTION OF TRANSACTION
1.1 MERGER OF MERGER SUB INTO XXXXX. Upon the terms and subject to
the conditions set forth in this Agreement, at the Effective Time (as defined
in Section 1.12), Merger Sub shall be merged with and into Xxxxx, and the
separate existence of Merger Sub shall cease. Xxxxx will continue as the
surviving corporation in the Merger (the "Surviving Corporation").
1.2 EFFECT OF THE MERGER. The Merger shall have the effect set
forth in this Agreement and in Section 92A.250 and other applicable
provisions of the Nevada Revised Statutes.
1.3 NETHERLANDS CORPORATE LAW.
(a) The transfer of the Shares to Purchaser at the Closing
pursuant to this Agreement and the Merger will under Nevada law create a
claim of each of the Signing Stockholders (each a "Signing Stockholder's
Claim") to receive for each Share transferred such number of shares of
Purchaser Capital Stock as set forth in Section 1.5 of this Agreement. Upon
the Closing, each of the Signing Stockholders shall waive its respective
Stockholder's Claim against acknowledgement by the Purchaser of a claim
("GELDVORDERING") of each of the Signing Stockholders against the Purchaser
equal to (i) the amount in NLG of the aggregate nominal value of the shares
of Purchaser Capital Stock to which such Signing Stockholder is entitled as
set forth above and (ii) the value of such shares of Purchaser Capital Stock
upon consummation of the transactions to be executed at Closing minus the
amount referred to in clause (i) of this sentence (each a "Monetary Claim").
At the Closing, Purchaser will issue to each of the Signing Stockholders such
number of shares of Purchaser Capital Stock to which such Signing Stockholder
is entitled as set forth in Section 1.5 of this Agreement, creating claims of
Purchaser (each a "Purchaser's Claim") to receive from each of the Signing
Stockholders (i) the aggregate nominal value of the shares of Purchaser
Capital Stock to be issued by Purchaser to each such Signing Stockholder and
(ii) the value of such shares of Purchaser Capital Stock upon consummation of
the transactions to be consummated at Closing minus the amount referred to in
clause (i) of this sentence (agreed share premium) ("BEDONGEN AGIO").
Without any further action being required, at the moment of issuance of the
shares of Purchaser Capital Stock to the Signing Stockholders, each Signing
Stockholder's Monetary Claim will be set off against ("VERREKEND MET") each
corresponding Purchaser's Claim.
(b) For the benefit of the Stockholders who are not Signing
Stockholders (the "Non-Signing Stockholders") it is further hereby agreed,
that against a waiver of each of the Non-Signing Stockholders of its
respective Stockholder's Claim by (i) signing the Waiver Declaration included
in the Letter of Transmittal attached hereto as Exhibit G (the "Waiver
Declaration") and (ii) the receipt of such Waiver Declaration by Purchaser,
Purchaser acknowledges a Monetary Claim of each such Non-Signing Stockholder
against Purchaser as set forth in Section 1.3(a) above. Upon receipt by
Purchaser of a Waiver Declaration, Purchaser will issue to the respective
Non-Signing Stockholder such number of shares of Purchaser Capital Stock to
which such Non-Signing Stockholder is entitled as set forth in Section 1.5 of
this Agreement, creating a Purchaser's Claim as set forth in Section 1.3(a)
above. Without any further action being required, at the moment of issuance
of the shares of Purchaser Capital Stock to the Non-Signing Stockholders,
each Non-Signing Stockholder's Monetary Claim will be set off against
("VERREKEND MET") each corresponding Purchaser's Claim.
1.4 ARTICLES OF INCORPORATION AND BYLAWS; DIRECTORS AND OFFICERS.
Unless otherwise determined in writing by Purchaser and Xxxxx prior to the
Effective Time:
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(a) the Articles of Incorporation of the Surviving
Corporation shall be amended and restated as of the Effective Time to conform
to those included in Exhibit D to this Agreement (the "Articles of Merger");
(b) the Bylaws of the Surviving Corporation shall be amended
and restated as of the Effective Time to conform to the Bylaws of Merger Sub
as in effect immediately prior to the Effective Time, which Bylaws are
attached as Exhibit E; and
(c) the directors and officers of the Surviving Corporation
immediately after the Effective Time shall be the individuals identified on
Exhibit F.
1.5 CONVERSION OF SHARES.
(a) Subject to Section 1.8, at the Effective Time, by virtue
of the Merger and without any further action on the part of Purchaser, Merger
Sub, Xxxxx or any Stockholder of Xxxxx:
(i) each share of Xxxxx Common Stock outstanding
immediately prior to the Effective Time shall be converted into the right to
receive 16.5 common shares of the capital stock (par value NLG 0.96 share) of
Purchaser ("Purchaser Capital Stock"); and
(ii) each share of the common stock (par value $1.00
per share) of Merger Sub outstanding immediately prior to the Effective Time
shall be converted into one share of common stock of the Surviving
Corporation.
(b) The number of common shares of Purchaser Capital Stock
into which each Share is to be converted pursuant to Section 1.5(a)(i) (as
such number may be adjusted in accordance with this Section 1.5(b) is
referred to as the "Conversion Ratio"). If, between the date of this
Agreement and the Effective Time, the outstanding shares of Xxxxx Common
Stock or Purchaser Capital Stock are changed into a different number or class
of shares by reason of any stock split, reverse stock split, stock dividend,
subdivision, reclassification, recapitalization, combination or similar
transaction, the Conversion Ratio shall be appropriately adjusted to reflect
such action.
(c) If any shares of Xxxxx Common Stock outstanding
immediately prior to the Effective Time are subject to a repurchase option,
put right under the Xxxxx ESOP, risk of forfeiture under the Xxxxx ESOP,
diversification provisions of the Xxxxx ESOP or other condition under any
applicable agreement with Xxxxx, then the shares of Purchaser Common Stock
issued in exchange for such shares of Xxxxx Common Stock will also be subject
to the same repurchase option, put right under the Xxxxx ESOP, risk of
forfeiture under the Xxxxx ESOP or other condition.
1.6 CLOSING OF XXXXX'X TRANSFER BOOKS. At the Effective Time,
holders of certificates representing shares of Xxxxx'x capital stock that
were outstanding immediately prior to the Effective Time shall cease to have
any rights as stockholders of Xxxxx, and the stock transfer books of Xxxxx
shall be closed with respect to all shares of such capital stock outstanding
immediately prior to the Effective Time. No further transfer of any such
shares of Xxxxx'x capital stock shall be made on such stock transfer books
after the Effective Time. If,
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after the Effective Time, a valid certificate previously representing any of
such shares of Xxxxx'x capital stock (a "Xxxxx Stock Certificate") is
presented to the Surviving Corporation or Purchaser, such Xxxxx Stock
Certificate shall be canceled and shall be converted as provided in Section
1.7.
1.7 SURRENDER OF CERTIFICATES; ISSUANCE OF PURCHASER CAPITAL
STOCK.
(a) At least ten days prior to the Effective Time, Purchaser
will send to the holders of Xxxxx Stock Certificates a letter of transmittal
substantially in the form attached hereto as Exhibit G (the "Letter of
Transmittal") and including instructions for use in effecting the surrender
of Xxxxx Stock Certificates in exchange for the issuance of Purchaser Capital
Stock. At or as soon as practicable after the Effective Time, upon surrender
of a Xxxxx Stock Certificate to Purchaser for conversion, together with a
duly executed Letter of Transmittal and evidence of such Stockholder's
identity sufficient under Netherlands Law to satisfy the requirements for
execution of a notarial deed of issuance of shares of Purchaser Capital Stock
to such Stockholder substantially in the form of Exhibit H (a "Deed of
Issuance"), which requirements shall be listed in the Letter of Transmittal,
plus a duly executed and notarized power of attorney authorizing a third
person to execute a Deed of Issuance on behalf of such holder if such holder
does not wish to execute such Deed of Issuance in person, the holder of such
Xxxxx Stock Certificate shall be entitled to receive such number of whole
shares of Purchaser Capital Stock that such holder has the right to receive
pursuant to the provisions of this Section 1 pursuant to a Deed of Issuance
to be executed and delivered by or on behalf of such Stockholder and
Purchaser, and the Xxxxx Stock Certificate so surrendered shall be canceled.
At or as soon as practicable after the Closing, and in any event no later
than twenty business days after any such surrender by a holder of Xxxxx Stock
Certificates and issuance of shares of Purchaser Capital Stock, Purchaser
shall deliver to each such holder an original certified notarial copy of the
Deed of Issuance between Purchaser and such holder. Until surrendered as
contemplated by this Section 1.7, each Xxxxx Stock Certificate shall be
deemed, from and after the Effective Time, to represent only the right to
receive upon such surrender such number of shares of Purchaser Capital Stock
as contemplated by this Section 1. If any Xxxxx Stock Certificate shall have
been lost, stolen or destroyed, Purchaser may, in its discretion and as a
condition precedent to the issuance of any shares of Purchaser Capital Stock,
require the owner of such lost, stolen or destroyed Xxxxx Stock Certificate
to provide a lost certificate affidavit and indemnity against any claim that
may be made against Purchaser or the Surviving Corporation with respect to
such Xxxxx Stock Certificate.
(b) No dividends or other distributions declared or made
with respect to Purchaser Capital Stock with a record date after the
Effective Time shall be paid to the holder of any unsurrendered Xxxxx Stock
Certificate with respect to the shares of Purchaser Capital Stock which such
holder has the right to have issued to such holder upon surrender of such
Xxxxx Stock Certificate, until such holder surrenders such Xxxxx Stock
Certificate in accordance with this Section 1.7 (at which time such holder
shall be entitled to receive from Purchaser all such dividends and
distributions and such cash payment).
(c) No fractional shares of Purchaser Capital Stock shall be
issued in connection with the Merger. In lieu of issuing fractional shares,
any Stockholder who would otherwise be entitled to receive a fraction of a
share of Purchaser Capital Stock (after
4
aggregating all fractional shares of Purchaser Capital Stock issuable to such
holder) shall, upon surrender of such holder's stock certificate(s), receive
a number of whole shares of Purchaser Capital Stock determined by rounding
the number of shares of Purchaser Capital Stock such Stockholder is entitled
to receive up to the next whole share.
(d) The shares of Purchaser Capital Stock to be issued
pursuant to this Agreement and the Merger shall be characterized as
"restricted securities" for purposes of Rule 144 under the Securities Act of
1933, as amended (the "Act"), and in the event certificates are issued
representing the shares of Purchaser Capital Stock, such certificates shall
bear a legend identical or similar in effect to the following legend
(together with any other legend or legends required by applicable state
securities laws or otherwise):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE
"ACT") AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED,
ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS REGISTERED UNDER THE ACT
OR UNLESS AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
ACT IS AVAILABLE."
(e) Purchaser and the Surviving Corporation shall be
entitled to deduct and withhold from any consideration payable or otherwise
deliverable to any holder or former holder of capital stock of Xxxxx pursuant
to this Agreement such amounts as Purchaser or the Surviving Corporation may
be required to deduct or withhold therefrom under the Code or under any
provision of state, local or foreign tax law. To the extent such amounts are
so deducted or withheld, such amounts shall be treated for all purposes under
this Agreement as having been paid to the Person to whom such amounts would
otherwise have been paid.
(f) Neither Purchaser nor the Surviving Corporation shall be
liable to any holder or former holder of capital stock of Xxxxx for any
shares of Purchaser Capital Stock (or dividends or distributions with respect
thereto), delivered to any public official pursuant to and in accordance with
any applicable abandoned property, escheat or similar law.
1.8 DISSENTER SHARES.
(a) Notwithstanding anything to the contrary contained in
this Agreement, any shares of capital stock of Xxxxx that, as of the
Effective Time, are or may become "dissenter shares" within the meaning of
Section 92A.300 et. seq. of the Nevada Revised Statutes shall not be
converted into or represent the right to receive Purchaser Capital Stock in
accordance with Section 1.5, and the holder or holders of such shares shall
be entitled only to such rights as may be granted to such holder or holders
in Section 92A.300 et. seq. of the Nevada Revised Statutes; PROVIDED,
HOWEVER, that if the status of any such shares as "dissenter shares" shall
not be perfected, or if any such shares shall lose their status as "dissenter
shares," then, as of the later of the Effective Time or the time of the
failure to perfect such status or the loss of such status, such shares shall
automatically be converted into and shall represent only the right to receive
(upon the surrender of the certificate or certificates representing such
shares) Purchaser Capital Stock in accordance with Sections 1.5 and 1.7.
5
(b) Xxxxx shall give Purchaser (i) notice within two
business days of any written demand received by Xxxxx prior to the Effective
Time to require the Surviving Corporation to purchase shares of capital stock
of Xxxxx pursuant to Section 92A.440 of the Nevada Revised Statutes and of
any other demand, notice or instrument delivered to Xxxxx prior to the
Effective Time pursuant to the Nevada Revised Statutes in connection with the
Merger and (ii) the opportunity to participate in all negotiations and
proceedings with respect to any such demand, notice or instrument. Except to
the extent required by law, Xxxxx shall not make any payment or settlement
offer prior to the Effective Time with respect to any such demand unless
Purchaser shall have consented in writing to such payment or settlement offer.
1.9 TAX CONSEQUENCES. For federal income tax purposes, the
Merger is intended to constitute a reorganization within the meaning of
Section 368 of the Code. The parties to this Agreement hereby adopt this
Agreement as a "plan of reorganization" within the meaning of Sections
1.368-2(g) and 1.368-3(a) of the United States Treasury Regulations.
1.10 ACCOUNTING TREATMENT. For accounting purposes, the Merger is
intended to be treated as a "pooling of interests" in accordance with APB
Opinion No. 16.
1.11 FURTHER ACTION. If, at any time after the Effective Time,
any further action is reasonably determined by Purchaser or Xxxxx to be
necessary or desirable to effect the Merger or to vest the Surviving
Corporation with full right, title and possession of and to all rights and
property of Merger Sub and Xxxxx, the officers and directors of the Surviving
Corporation and Purchaser shall be fully authorized (in the name of Merger
Sub, Xxxxx, Purchaser and otherwise) to take such action and the Signing
Stockholders and the officers and directors of Xxxxx will give their full
cooperation to such action to the extent permitted by law.
1.12 CLOSING; EFFECTIVE TIME. Subject to the conditions set forth
in this Agreement, the consummation of the transactions contemplated by this
Agreement (the "Closing") shall take place simultaneously at the offices of
Xxxxxxxxxxx & Price, L.L.P., 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000
and at the offices of Xxxxx Dutilh, Xxxxxxx Xxxxxxxxxxx 00, Xxxxxxxxx, xxx
Xxxxxxxxxxx, at 9:00 a.m. (Central Standard Time) and 4:00 p.m. (Amsterdam
time) on the later of June 30, 1998 or the date five business days following
the expiration or early termination of the applicable waiting period under
the HSR Act (or at such other place or time as Purchaser and Xxxxx may
jointly designate); "Scheduled Closing Time" shall mean the time and date as
of which the Closing is required to take place pursuant to this Section 1.12;
and "Closing Date" shall mean the time and date as of which the Closing
actually takes place. Contemporaneously with or as promptly as practicable
after the Closing, properly executed Articles of Merger conforming to the
requirements of Section 92A.200 of the Nevada Revised Statutes shall be filed
with the Secretary of State of the State of Nevada. The Merger shall become
effective at the time such Articles of Merger are filed with and accepted by
the Secretary of State of the State of Nevada or at such later time as shall
be agreed upon between Purchaser and Xxxxx and specified in the Articles of
Merger (the "Effective Time").
1.13 DELIVERIES AT THE CLOSING. Each of the Signing Stockholders
agrees that it will surrender at the Closing all Xxxxx Stock Certificates to
Purchaser in accordance with the provisions of Section 1.7 and Purchaser
agrees that it will, at the Closing, upon such surrender of Xxxxx Stock
Certificates issue the appropriate number of shares of Purchaser Capital
Stock to
6
each Signing Stockholder pursuant to a Deed of Issuance to be executed and
delivered by the Signing Stockholders and Purchaser at the Closing.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF XXXXX
Xxxxx represents and warrants to and for the benefit of
Purchaser and Merger Sub as follows:
2.1 DUE ORGANIZATION; NO SUBSIDIARIES; ETC.
(a) Xxxxx is a corporation duly organized, validly existing
and in good standing under the laws of the State of Nevada and has all
necessary corporate power and authority:
(i) to conduct its business in the manner in which
its business is currently being conducted;
(ii) to own and use its assets in the manner in which
its assets are currently owned and used; and
(iii) to perform its obligations under all Xxxxx
Contracts except the Xxxxx Excluded Contracts.
(b) Except as set forth in Part 2.1(b) of the Xxxxx
Disclosure Schedule, Xxxxx has not at any time since August 1, 1995 conducted
any business under or otherwise used, for any purpose or in any jurisdiction,
any fictitious name, assumed name, trade name or other name, other than the
name "Xxxxx."
(c) Xxxxx is qualified to do business as a foreign
corporation, and is in good standing, under the laws of all jurisdictions
where the nature of its business requires such qualification, except where
the failure to be so qualified would not reasonably be expected to have a
Xxxxx Material Adverse Effect. Xxxxx is qualified to do business as a
foreign corporation, and is in good standing, in each of the jurisdictions
identified in Part 2.1(c) of the Xxxxx Disclosure Schedule.
(d) Part 2.1(d) of the Xxxxx Disclosure Schedule accurately
sets forth (i) the names of the members of Xxxxx'x board of directors and
(ii) the names and titles of Xxxxx'x officers. Xxxxx'x board of directors
does not have any committees.
(e) Neither Xxxxx nor its stockholders has approved, or
commenced any proceeding or made any election contemplating, the dissolution
or liquidation of Xxxxx or the winding up or cessation of Xxxxx'x business or
affairs.
(f) Xxxxx has no subsidiaries. Xxxxx has not at any time
since August 1, 1994 owned, beneficially or otherwise, any shares or other
securities of, or any direct or indirect interest of any nature in, any
Entity, other than passive investments in marketable securities or other
investment-grade securities.
7
2.2 ARTICLES OF INCORPORATION AND BYLAWS; RECORDS.
(a) Xxxxx has delivered, or identified and made available,
to Purchaser and Merger Sub accurate and complete copies of:
(i) Xxxxx'x articles of incorporation and bylaws,
including all amendments thereto;
(ii) the stock records of Xxxxx; and
(iii) the minutes and other records of the meetings and
other proceedings (including any actions taken by written consent or
otherwise without a meeting) of the stockholders of Xxxxx and the board of
directors of Xxxxx.
There have been no meetings or other proceedings of the stockholders of Xxxxx
or the board of directors of Xxxxx that are not fully reflected in such
minutes or other records.
(b) There are no existing material violations of any of the
provisions of Xxxxx'x articles of incorporation or bylaws or of any
resolution adopted by Xxxxx'x stockholders or Xxxxx'x board of directors;
and no event has occurred, and no condition or circumstance exists, that
would reasonably be expected to (with or without notice or lapse of time)
constitute or result directly or indirectly in such a material violation.
(c) Except as set forth in Part 2.2(c) of the Xxxxx
Disclosure Schedule, the books of account, stockholders' register, minute
books and other records of Xxxxx are accurate, up-to-date and complete in all
material respects. All of the records of Xxxxx are in the actual possession
and direct control of Xxxxx or its counsel. To the Knowledge of Xxxxx, Xxxxx
has in place an adequate and appropriate system of internal controls.
2.3 CAPITALIZATION, ETC.
(a) The authorized capital stock of Xxxxx consists of
1,000,000 shares of Xxxxx Common Stock of which 97,920.131 shares
(constituting all of the Shares) have been issued and are outstanding and
2,079.869 shares are held in Xxxxx'x treasury.
(b) Of the Shares:
(i) Xxxxxxx X. Xxxxxx owns of record 4,000 shares;
(ii) Xxxxxxx X. Xxxxxx owns of record 2,500 shares;
(iii) C. Xxxxx Xxxxxxxxx owns of record 42,500 shares;
(iv) Xxxx X. Xxxxx, Xx. owns of record 19,000 shares;
(v) Xxx X. Xxxxxx owns of record 2,000 shares; and
8
(vi) as of the date of this Agreement, the Trust owns
of record 27,920.131 shares and as of the date of the Closing, Xxxxx
Xxxxxxxxx, acting in his capacity as Trustee of the Trust, will own of record
27,920.131 shares.
(c) All of the Shares (i) have been duly authorized and
validly issued, (ii) are fully paid and non-assessable and (iii) have been
issued in compliance in all material respects with all applicable securities
laws and other applicable Legal Requirements. Except as set forth in Part
2.3(c) of the Xxxxx Disclosure Schedule, none of the Shares is subject to any
repurchase option or restriction on transfer imposed by Xxxxx (other than
restrictions on transfer imposed by virtue of applicable federal and state
securities laws).
(d) Except as set forth in Part 2.3(d) of the Xxxxx
Disclosure Schedule, there is no:
(i) outstanding subscription, option, call, warrant
or right (whether or not currently exercisable) to acquire from Xxxxx any
shares of the capital stock or other securities of Xxxxx;
(ii) outstanding security, instrument or obligation
that is or may become convertible into or exchangeable for any shares of the
capital stock or other securities of Xxxxx;
(iii) Contract under which Xxxxx is or may become
obligated to sell or otherwise issue any shares of its capital stock or any
other securities except as required under the Xxxxx ESOP; or
(iv) condition or circumstance that would reasonably
be expected to directly or indirectly give rise to or provide a basis for the
assertion of a valid claim by any Person to the effect that such Person is
entitled to acquire or receive any shares of capital stock or other
securities of Xxxxx except as required under the Xxxxx ESOP.
(e) Except as set forth in Part 2.3(e) of the Xxxxx
Disclosure Schedule, Xxxxx has never repurchased, redeemed or otherwise
reacquired any shares of its capital stock or other securities. All
securities so reacquired by Xxxxx were reacquired in compliance in all
material respects with the applicable provisions of the Nevada Revised
Statutes and with all other applicable Legal Requirements.
(f) Except as set forth in Part 2.3(f) of the Xxxxx
Disclosure Schedule, there are no outstanding put rights, preemptive rights,
registration rights or voting agreements with respect to the issued and
outstanding shares of Xxxxx Common Stock or any shares of capital stock of
Xxxxx that Xxxxx is committed to issue.
2.4 FINANCIAL STATEMENTS.
(a) Part 2.4(a) of the Xxxxx Disclosure Schedule sets forth
the following financial statements and notes thereto (collectively, the
"Xxxxx Financial Statements"):
9
(i) the audited balance sheets of Xxxxx as of July
31, 1996 and 1997, and the related audited statements of income and retained
earnings and cash flows of Xxxxx for each of the years in the two-year period
ended July 31, 1997, together with the notes thereto and the respective
reports of Xxxxxxx Xxxxxxx L.L.P. relating thereto; and
(ii) the unaudited balance sheet of Xxxxx as of April
30, 1998 (the "Xxxxx Unaudited Interim Balance Sheet"), and the related
unaudited statements of income and retained earnings of Xxxxx for the nine
months then ended.
(b) All of the Xxxxx Financial Statements present fairly, in
all material respects, the financial position of Xxxxx as of the date of said
balance sheets and the results of operations and cash flows of Xxxxx for the
periods covered by said statements of operations and cash flows, in
accordance with GAAP consistently applied, except as otherwise disclosed
therein or in Part 2.4(b) of the Xxxxx Disclosure Schedule and except that
the financial statements referred to in Section 2.4(a)(ii) do not contain
footnotes and are subject to year-end adjustments, which adjustments will not
be material either individually or in the aggregate.
2.5 ABSENCE OF CHANGES. Except as set forth in Part 2.5 of the
Xxxxx Disclosure Schedule, since April 30, 1998:
(a) there has not been any event that had a Xxxxx Material
Adverse Effect, and, to the Knowledge of Xxxxx, no event has occurred that
will, or would reasonably be expected to, have such a Xxxxx Material Adverse
Effect;
(b) there has not been any loss, damage or destruction to
any of Xxxxx'x assets that exceeded $25,000 in the aggregate (whether or not
covered by insurance);
(c) Xxxxx has not declared, accrued, set aside or paid any
dividend or made any other distribution in respect of any shares of its
capital stock, and has not repurchased, redeemed or otherwise reacquired any
shares of its capital stock or other securities;
(d) Xxxxx has not sold, issued or authorized the issuance of
(i) any capital stock or other security of Xxxxx, (ii) any option, call,
warrant or right to acquire, or otherwise relating to, any capital stock or
any other security of Xxxxx or (iii) any instrument convertible into or
exchangeable for any capital stock or other security of Xxxxx;
(e) there has been no amendment to Xxxxx'x articles of
incorporation or bylaws, and Xxxxx has not effected or been a party to any
Acquisition Transaction, recapitalization, reclassification of shares, stock
split, reverse stock split or similar transaction;
(f) Xxxxx has not formed any subsidiary or acquired any
equity interest or other interest in any other Entity;
(g) Xxxxx has not made any capital expenditure in excess of
$25,000 which is not reflected on the Xxxxx Unaudited Interim Balance Sheet
in accordance with GAAP, except for capital expenditures made since April 30,
1998 consistent with Xxxxx'x past practices as reflected in the financial
statements referred to in Section 2.4(a)(i);
10
(h) Xxxxx has not, outside the Ordinary Course of Business
(i) entered into or permitted any material amount of the assets owned or used
by it to become bound by any material Contract or (ii) amended or prematurely
terminated, or waived any material right or remedy under, any material
Contract to which it is or was a party or under which it has or had any
rights or obligations;
(i) Xxxxx has not (i) acquired, leased or licensed any
material right or other asset from any other Person (other than rights or
other assets acquired, leased or licensed by Xxxxx from other Persons in the
Ordinary Course of Business), (ii) sold or otherwise disposed of, or leased
or licensed, any material right or other asset to any other Person (other
than rights or other assets disposed of or leased or licensed by Xxxxx to
other Persons in the Ordinary Course of Business) or (iii) waived or
relinquished any material right (other than rights waived or relinquished by
Xxxxx in the Ordinary Course of Business);
(j) Xxxxx has not written off as uncollectible, or
established any extraordinary reserve with respect to, any account receivable
or other indebtedness in excess of $25,000 in the aggregate;
(k) Xxxxx has not made any pledge of any of its assets or
otherwise permitted any of its assets to become subject to any material
Encumbrance, except for pledges of assets made in the Ordinary Course of
Business and made to secure participant's put option rights under the Xxxxx
ESOP either directly to the participant or through the purchase of an ESOP
bond securing the participant's put option rights, and Tax liens and other
similar governmental liens or impositions securing obligations not past due;
(l) Xxxxx has not (i) lent money to any Person or (ii)
incurred or guaranteed any indebtedness for borrowed money in excess of
$25,000 in the aggregate;
(m) Except for Amendment Number One to the Xxxxx ESOP,
Amendment Number Two to the Xxxxx ESOP and Amendment Number One to the Trust,
Xxxxx has not (i) established, adopted or amended any Employee Benefit Plan
or (ii) made any profit-sharing or similar payment to any of its directors,
officers or employees;
(n) Xxxxx has not changed any of its methods of accounting
or accounting practices in any material respect;
(o) Xxxxx has not made any material Tax election outside the
Ordinary Course of Business;
(p) Xxxxx has not commenced or settled any Proceeding;
(q) Xxxxx has not entered into any transaction or taken any
other action outside the Ordinary Course of Business involving amounts in
excess of $25,000; and
(r) Except as required under the Xxxxx ESOP, Xxxxx has not
agreed or committed to take any of the actions referred to in clauses "(c)"
through "(q)" above.
2.6 TITLE TO ASSETS.
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(a) Except as set forth in Part 2.6(a) of the Xxxxx
Disclosure Schedule, Xxxxx owns, and has good and valid title to, all assets
purported to be owned by it, including:
(i) all assets reflected on the Xxxxx Unaudited
Interim Balance Sheet (except for assets sold or consumed by Xxxxx since
April 30, 1998 in the Ordinary Course of Business);
(ii) all assets acquired by Xxxxx since April 30, 1998
(except for assets sold or consumed by Xxxxx since April 30, 1998 in the
Ordinary Course of Business); and
(iii) all of Xxxxx'x rights under the Xxxxx Contracts.
Except as set forth in Part 2.6(a) of the Xxxxx Disclosure Schedule, all of
said assets are owned by Xxxxx free and clear of any Encumbrances in excess
of $25,000 in the aggregate, except capital leases.
(b) Part 2.6(b) of the Xxxxx Disclosure Schedule identifies
all assets that are being leased or licensed to Xxxxx except for (i) any
equipment being leased to Xxxxx under a standard operating lease requiring
annual payments by Xxxxx of less than $25,000 and (ii) any software being
licensed to Xxxxx under any third party software license generally available
to the public at a total cost of less than $25,000.
2.7 BANK ACCOUNTS. Part 2.7 of the Xxxxx Disclosure
Schedule accurately sets forth, with respect to each account maintained by or
for the benefit of Xxxxx at any bank or other financial institution:
(a) the name and location of the institution at which such
account is maintained;
(b) the name in which such account is maintained and the
account number of such account;
(c) a description of such account and the purpose for which
such account is used; and
(d) the names of all individuals authorized to draw on or
make withdrawals from such account, whether such individuals are authorized
to draw on or make withdrawals from such account individually or as
co-signatories, and any other limitations on such individuals' authorization.
There are no safe deposit boxes or similar arrangements maintained by or for
the benefit of Xxxxx.
2.8 RECEIVABLES; MAJOR CUSTOMERS.
(a) Part 2.8(a) of the Xxxxx Disclosure Schedule sets forth
a copy of Xxxxx'x regularly, internally prepared listing and aging of all
accounts receivable, notes receivable and
12
other receivables of Xxxxx as of April 30, 1998 and is accurate and complete
in all material respects.
(b) Except as set forth in Part 2.8(b) of the Xxxxx
Disclosure Schedule, (i) all existing accounts receivable of Xxxxx (including
those accounts receivable reflected on the Xxxxx Unaudited Interim Balance
Sheet that have not yet been collected and those accounts receivable that
have arisen since April 30, 1998 and have not yet been collected) represent
valid obligations of customers of Xxxxx arising from bona fide transactions
entered into in the Ordinary Course of Business; and (ii) to the Knowledge of
Xxxxx, will be collected in full no later than 90 days after the respective
date on which each such receivable is due (without any material counterclaim
or setoff) net of receivables reserves reflected on the Xxxxx Unaudited
Interim Balance Sheet.
(c) Part 2.8(c) of the Xxxxx Disclosure Schedule accurately
identifies, and accurately lists the revenues received from, each customer or
other Person that accounted for (i) more than 10% the gross revenues of Xxxxx
in fiscal 1996, (ii) more than 10% of Xxxxx'x gross revenues in fiscal 1997
or (iii) more than 10% of Xxxxx'x xxxxx revenues in the first nine months of
fiscal 1998. To the Knowledge of Xxxxx, except as set forth in Part 2.8(c)
of the Xxxxx Disclosure Schedule, no customer or other Person identified in
Part 2.8(c) of the Xxxxx Disclosure Schedule is considering ceasing dealing
with Xxxxx or otherwise reducing the volume of business transacted by such
Person with Xxxxx below historical levels.
2.9 INVENTORY. Part 2.9 of the Xxxxx Disclosure Schedule sets
forth a copy of Xxxxx'x regularly, internally prepared listing of all
inventory (including raw materials, work in process and finished goods) of
Xxxxx as of May 31, 1998 and is accurate and complete in all material
respects. To the Knowledge of Xxxxx, except as set forth on Part 2.9 of the
Xxxxx Disclosure Schedule, such inventory, net of any reserves or allowances
reflected on the Xxxxx Unaudited Interim Balance Sheet and to the extent that
it has not been disposed of by Xxxxx since May 31, 1998 in the Ordinary
Course of Business:
(a) is of such quality and quantity as to be usable and
saleable by Xxxxx in the Ordinary Course of Business;
(b) has been valued for accounting purposes at the lower of
cost or market value with cost determined using the "moving weighted average"
method; and
(c) is free of any material defect or deficiency except for
inventory as to which Xxxxx is entitled to receive full reimbursement or
replacement from the supplier of such inventory.
Except as expressly stated therein, Part 2.9 of the Xxxxx Disclosure Schedule
does not include any inventory of principals from whom Xxxxx has received any
written notice or, to the Knowledge of Xxxxx, any oral communication
indicating that such principal is considering termination of, or intends to
terminate, its relationship with Xxxxx, except inventory as to which Xxxxx
has a right of return at a price at least equal to the gross carrying value
of such inventory as reflected on the Xxxxx Unaudited Interim Balance Sheet.
2.10 EQUIPMENT, ETC.
13
(a) Part 2.10(a) of the Xxxxx Disclosure Schedule lists all
material items of equipment, furniture, fixtures, improvements and other
tangible assets (other than inventory) owned by or leased to Xxxxx with an
original cost of greater than $50,000.
(b) The assets identified in Part 2.10(a) of the Xxxxx
Disclosure Schedule, together with those assets with an original cost of less
than $50,000, are adequate in all material respects for the conduct of
Xxxxx'x business in the manner in which such business is currently being
conducted.
Xxxxx'x fixed asset register properly records the original cost of, and any
additions to, fixed assets of Xxxxx with an original cost in excess of
$25,000.
2.11 REAL PROPERTY. Except as set forth in Part 2.11 of the Xxxxx
Disclosure Schedule, Xxxxx does not own any real property or any interest in
real property, other than the leaseholds created under the real property
leases identified in Part 2.13 of the Xxxxx Disclosure Schedule. Part 2.11
of the Disclosure Schedule provides a brief description of the size and use
of the premises covered by said leases and the facilities located on such
premises. Xxxxx enjoys peaceful and undisturbed possession of such premises.
2.12 PROPRIETARY ASSETS.
(a) Except as set forth in Part 2.12(a) of the Xxxxx
Disclosure Schedule, there is no material Proprietary Asset that is used in
connection with Xxxxx'x business (the "Xxxxx Proprietary Assets") that is not
owned by or licensed to Xxxxx.
(b) To the Knowledge of Xxxxx, none of the material
Xxxxx Proprietary Assets infringes or conflicts with any Proprietary Asset
owned or used by any other Person. Except as set forth in Part 2.12(b) of
the Xxxxx Disclosure Schedule, to the Knowledge of Xxxxx, Xxxxx is not
infringing, misappropriating or making any unlawful use of, and Xxxxx has not
received any notice or other communication of any actual, alleged, possible
or potential infringement, misappropriation or unlawful use of, any
Proprietary Asset owned or used by any other Person. To the Knowledge of
Xxxxx, except as set forth in Part 2.12(b) of the Xxxxx Disclosure Schedule,
no other Person is infringing, misappropriating or making any unlawful use
of, and no Proprietary Asset owned or used by any other Person infringes or
conflicts with, any Xxxxx Proprietary Asset.
(c) Except as set forth in Part 2.12(c) of the Xxxxx
Disclosure Schedule, (i) Xxxxx has not licensed any of the Xxxxx Proprietary
Assets to any Person on an exclusive basis and (ii) Xxxxx has not entered
into any covenant not to compete or other Contract limiting its ability to
exploit fully any of the Xxxxx Proprietary Assets or to transact business in
any market or geographical area or with any Person.
2.13 CONTRACTS.
(a) Part 2.13(a) of the Xxxxx Disclosure Schedule
identifies and provides a list of each Xxxxx Contract, except for any Xxxxx
Excluded Contract. Xxxxx has delivered, or identified and made available, to
Purchaser accurate and complete copies of all written Xxxxx
14
Contracts required to be identified in Part 2.13(a) of the Xxxxx Disclosure
Schedule, including all amendments thereto.
(b) Each Xxxxx Contract required to be listed on Part
2.13(a) of the Xxxxx Disclosure Schedule is valid and in full force and
effect, and to the Knowledge of Xxxxx, is enforceable by Xxxxx in accordance
with its terms, subject to (i) laws of general application relating to
bankruptcy, insolvency and the relief of debtors and (ii) rules of law
governing specific performance, injunctive relief and other equitable
remedies.
(c) Except as set forth in Part 2.13(c) of the Xxxxx
Disclosure Schedule:
(i) to the Knowledge of Xxxxx, no Person is in
violation or Breach in any material respect of, or declared or committed any
material existing default under, any Xxxxx Contract, except any Xxxxx
Excluded Contract;
(ii) to the Knowledge of Xxxxx, no event has
occurred, and no circumstance or condition exists, that will (with or without
notice or lapse of time) (A) result in a material violation or other material
Breach of any of the provisions of any Xxxxx Contract, except a Xxxxx
Excluded Contract, (B) give any Person the right to declare a material
default or exercise any material remedy under any Xxxxx Contract except any
Xxxxx Excluded Contract, (C) give any Person the right to accelerate the
maturity or performance of any Xxxxx Contract, except any Xxxxx Excluded
Contract, or (D) give any Person the right to cancel, terminate or modify any
Xxxxx Contract, except any Xxxxx Excluded Contract;
(iii) Xxxxx has not received any written notice
or, to the Knowledge of Xxxxx, any oral communication regarding any actual,
alleged, possible or potential violation or Breach of, or default under, any
Xxxxx Contract, except any Xxxxx Excluded Contract, that has not been cured;
and
(iv) Xxxxx has not waived any of its material
rights under any Xxxxx Contract, except under any Xxxxx Excluded Contract.
(d) Except as set forth in Part 2.13(d) of the Xxxxx
Disclosure Schedule:
(i) Xxxxx is not liable on any guaranty and
has not otherwise agreed to cause, insure or become liable for, or pledged
any of its assets to secure, the performance or payment of any outstanding
obligation or other Liability of any other Person; and
(ii) Except for the Xxxxx ESOP, Xxxxx is not a
party to or bound by (A) any joint venture agreement, partnership agreement,
profit-sharing agreement, cost-sharing agreement, loss-sharing agreement or
similar Contract or (B) any Contract that creates or grants to any Person, or
provides for the creation or grant of, any stock appreciation right, phantom
stock right or similar right or interest.
(e) To the Knowledge of Xxxxx, the performance of the
Xxxxx Contracts, except under any Xxxxx Excluded Contracts, in accordance
with their terms will not result in any violation of or failure to comply
with any material Legal Requirement.
15
(f) No Person is renegotiating, or has the right to
renegotiate, any amount paid or payable to Xxxxx under any Xxxxx Contract or
any other term or provision of any Xxxxx Contract, except in each case any
Xxxxx Excluded Contract.
(g) The Contracts identified in Part 2.13(a) of the
Xxxxx Disclosure Schedule and the Xxxxx Excluded Contracts collectively
constitute all of the Contracts necessary to enable Xxxxx to conduct its
business in the manner in which its business is currently being conducted.
(h) Part 2.13(h) of the Xxxxx Disclosure Schedule
identifies each proposed Contract as to which any bid, offer, written
proposal, term sheet or similar document has been submitted or received by
Xxxxx and that involves an amount in excess of $100,000, other than purchaser
orders or sales orders submitted or entered into in the Ordinary Course of
Business.
2.14 LIABILITIES; MAJOR SUPPLIERS.
(a) Except as set forth in Part 2.14(a) of the Xxxxx
Disclosure Schedule, or elsewhere in the Xxxxx Disclosure Schedule, to the
Knowledge of Xxxxx, Xxxxx has no material Liabilities, except for:
(i) Liabilities identified as such in the
"liabilities" column of the Xxxxx Unaudited Interim Balance Sheet;
(ii) accounts payable (of the type required to
be reflected as liabilities in the "liabilities" section of a balance sheet
prepared in accordance with GAAP) or accrued salaries or other Liabilities
that have been incurred by Xxxxx in the Ordinary Course of Business since
April 30, 1998; and
(iii) Xxxxx'x obligations under the Contracts
listed in Part 2.13(a) of the Disclosure Schedule and under Xxxxx Excluded
Contracts.
(b) Part 2.14(b) of the Xxxxx Disclosure Schedule:
(i) provides Xxxxx'x regularly prepared
listing and aging (or separate list of payables older than 45 days) that is
accurate and complete in all material respects of Xxxxx'x accounts payable as
of May 31, 1998;
(ii) provides a breakdown that is accurate and
complete in all material respects of all customer deposits and other deposits
held by Xxxxx as of April 30, 1998; and
(iii) provides a breakdown that is accurate and
complete in all material respects of Xxxxx'x indebtedness for borrowed money
as of the close of business within five business days prior to the date of
this Agreement.
(c) Part 2.14(c) of the Xxxxx Disclosure Schedule
accurately identifies, and accurately lists the amounts paid by Xxxxx to,
each supplier of product to Xxxxx or other Person that received payments of
more than $100,000 from Xxxxx in each of fiscal 1996, fiscal 1997 and the
first nine months of fiscal 1998 except for salaries to employees and tax
payments.
16
2.15 COMPLIANCE WITH LEGAL REQUIREMENTS.
(a) Except as set forth in Part 2.15(a) of the Xxxxx
Disclosure Schedule:
(i) to the Knowledge of Xxxxx, Xxxxx is, and
has at all times since August 1, 1995 been, in full compliance with each
Legal Requirement that is applicable to it or to the conduct of its business
or the ownership or use of any of its assets, except for failures to be in
compliance that would not reasonably be expected to have a Xxxxx Material
Adverse Effect;
(ii) to the Knowledge of Xxxxx, no event has
occurred, and no condition or circumstance exists, that would reasonably be
expected to (with or without notice or lapse of time) constitute or result
directly or indirectly in a violation by Xxxxx of, or a failure on the part
of Xxxxx to comply with, any Legal Requirement, except for violations or
noncompliance that would not reasonably be expected to have a Xxxxx Material
Adverse Effect; and
(iii) Xxxxx has not received at any time since
August 1, 1995 any written notice or, to the Knowledge of Xxxxx, any oral
communication from any Governmental Body or any other Person regarding (i)
any actual, alleged, possible or potential violation of, or failure to comply
with, any material Legal Requirement that has not been settled or resolved,
or (ii) any actual, alleged, possible or potential obligation on the part of
Kyser to undertake, or to bear all or any portion of the cost of, any cleanup
or any remedial, corrective or response action of any nature.
(b) Except for fire xxxxxxxx reports with respect to
Xxxxx'x office locations, Xxxxx has delivered, or identified and made
available, to Purchaser an accurate and complete copy of each report, study,
survey or similar document obtained by Xxxxx since January 1, 1996 to which
Xxxxx has access that addresses or otherwise relates to the compliance of
Xxxxx with, or the applicability to Xxxxx of, any Legal Requirement.
2.16 GOVERNMENTAL AUTHORIZATIONS.
(a) Part 2.16(a) of the Xxxxx Disclosure Schedule
identifies:
(i) each material Governmental Authorization
that is held by Xxxxx; and
(ii) each other material Governmental
Authorization that, to the Knowledge of Xxxxx, is held by any of Xxxxx'x
employees and relates to or is useful in connection with Xxxxx'x business.
Xxxxx has delivered or identified and made available to Purchaser accurate
and complete copies of all of the Governmental Authorizations identified in
Part 2.16(a) of the Xxxxx Disclosure Schedule, including all renewals thereof
and all amendments thereto. Each Governmental Authorization identified or
required to be identified in Part 2.16(a) of the Xxxxx Disclosure Schedule is
valid and in full force and effect.
(b) Except as set forth in Part 2.16(b) of the Xxxxx
Disclosure Schedule:
17
(i) Xxxxx and its employees are, and have at
all times since August 1, 1995 been, in compliance with all of the terms and
requirements of each Governmental Authorization identified or required to be
identified in Part 2.16(a) of the Xxxxx Disclosure Schedule, except for any
noncompliance that would not reasonably be expected to have a Xxxxx Material
Adverse Effect;
(ii) no event has occurred, and no condition or
circumstance exists, that would reasonably be expected to (with or without
notice or lapse of time) (A) constitute or result directly or indirectly in a
violation of or a failure to comply with any term or requirement of any
Governmental Authorization identified or required to be identified in Part
2.16(a) of the Xxxxx Disclosure Schedule, except for violations or
noncompliance that would not reasonably be expected to have a Xxxxx Material
Adverse Effect or (B) result directly or indirectly in the revocation,
withdrawal, suspension, cancellation, termination or modification of any
Governmental Authorization identified or required to be identified in Part
2.16(a) of the Xxxxx Disclosure Schedule, except where such event would not
reasonably be expected to have a Xxxxx Material Adverse Effect;
(iii) Since January 1, 1996, Xxxxx has not
received, and, to the Knowledge of Xxxxx, no employee of Xxxxx has received,
any written notice or, to the Knowledge of Xxxxx, any oral communication from
any Governmental Body or any other Person regarding (A) any actual, alleged,
possible or potential violation of or failure to comply with any term or
requirement of any material Governmental Authorization by Xxxxx that has not
been cured or (B) any actual, proposed, possible or potential revocation,
withdrawal, suspension, cancellation, termination or modification of any
material Governmental Authorization of Xxxxx that has not been resolved; and
(iv) all applications due to be filed for the
renewal of the Governmental Authorizations required to be identified in Part
2.16(a) of the Xxxxx Disclosure Schedule have been duly filed on a timely
basis with the appropriate Governmental Bodies, and each other notice or
filing required to have been given or made with respect to such Governmental
Authorizations has been duly given or made on a timely basis with the
appropriate Governmental Body.
(c) The Governmental Authorizations identified in
Part 2.16(a) of the Xxxxx Disclosure Schedule constitute all of the material
Governmental Authorizations necessary (i) to enable Xxxxx to conduct its
business in the manner in which its business is currently being conducted and
(ii) to permit Xxxxx to own and use its assets in the manner in which they
are currently owned and used.
2.17 TAX MATTERS.
(a) Each material Tax required to have been paid by
Xxxxx (whether pursuant to any Tax Return or otherwise) has been duly paid in
full on a timely basis. Any Tax required to have been withheld or collected
by Xxxxx, including with respect to employees, has been duly withheld and
collected; and (to the extent required) each such Tax has been paid to the
appropriate Governmental Body.
18
(b) Part 2.17(b) of the Xxxxx Disclosure Schedule
accurately identifies all Tax Returns required to be filed by or on behalf of
Xxxxx with any Governmental Body ("Xxxxx Returns") with respect to any
taxable period ending on or before the Closing Date that have not been filed
as of the date of the Agreement. Except as set forth on Part 2.17 of the
Xxxxx Disclosure Schedule, all Xxxxx Returns required to be filed on or prior
to the Closing Date (i) have been or will be filed when due (taking into
account filed extensions), and (ii) have been, or will be when filed,
accurately and completely prepared in compliance in all material respects
with all applicable Legal Requirements. All amounts shown on the Xxxxx
Returns to be due on or before the Closing Date, and all amounts otherwise
payable on or before the Closing Date in connection with the Xxxxx Returns
due to be filed on or before the Closing Date, have been or will be paid on
or before the Closing Date. Xxxxx has delivered, or identified and made
available, to Purchaser accurate and complete copies of all Xxxxx Returns
filed since July 31, 1992.
(c) Except as set forth in Part 2.17(c) of the Xxxxx
Disclosure Schedule, the Xxxxx Financial Statements accrue in all material
respects all actual and contingent liabilities for Taxes with respect to all
periods through the dates thereof in accordance with GAAP. Xxxxx will accrue,
in the Ordinary Course of Business, reserves adequate for the payment of all
Taxes for the period from April 30, 1998 through the Closing Date, and Xxxxx
will disclose the dollar amount of such reserves to Purchaser on or prior to
the Closing Date.
(d) Except as set forth in Part 2.17(d) of the Xxxxx
Disclosure Schedule, no Xxxxx Return relating to income Taxes that has been
filed with respect to any period ended on or after July 31, 1992 has been
examined and audited by any Governmental Bodies. Part 2.17(d) of the Xxxxx
Disclosure Schedule accurately identifies each tax examination or tax audit
of any Xxxxx Return relating to income taxes (or any other taxes in excess of
$50,000) that has been conducted since July 31, 1992, and Xxxxx has delivered
to Purchaser accurate and complete copies of all audit reports and similar
documents (to which Xxxxx has access) relating to such Xxxxx Returns. Except
as set forth in Part 2.17(d) of the Xxxxx Disclosure Schedule, no extension
or waiver of the limitation period applicable to any of the Xxxxx Returns has
been granted (by Xxxxx or any other Person), and no such extension or waiver
has been requested from Xxxxx.
(e) Except as set forth in Part 2.17(e) of the Xxxxx
Disclosure Schedule, (i) no claim or other Proceeding is pending or, to the
Knowledge of Xxxxx, has been threatened against or with respect to Xxxxx in
respect of any Tax, and (ii) there are no unsatisfied material Liabilities
for Taxes (including liabilities for interest, additions to tax and penalties
thereon and related expenses) with respect to any notice of deficiency or
similar document received by Xxxxx. Xxxxx has not entered into or become
bound by any agreement or consent pursuant to Section 341(f) of the Code.
Xxxxx has not been, and Xxxxx will not be, required to include any material
adjustment in taxable income for any Tax period (or portion thereof) pursuant
to Section 481 of the Code or any comparable provision under state or foreign
Tax laws as a result of transactions or events occurring, or accounting
methods employed, prior to the Closing.
(f) There is no compensatory agreement, plan,
arrangement or other Contract with respect to the performance of services by
any employee or independent contractor or former employee or independent
contractor of Xxxxx that, individually or collectively, could give rise
19
directly or indirectly to the payment of any amount that would be a
nondeductible expense pursuant to Section 280G of the Code. Xxxxx is not,
and has never been, a party to or bound by any Tax indemnity agreement, Tax
sharing agreement, Tax allocation agreement or similar Contract.
2.18 EMPLOYEE AND LABOR MATTERS.
(a) Part 2.18(a) of the Xxxxx Disclosure Schedule
accurately sets forth, as of a date within ten days prior to the date of this
Agreement, with respect to each employee of Xxxxx (including any employee of
Xxxxx who is on a leave of absence or on layoff status):
(i) the name of such employee and the date as
of which such employee was originally hired by Xxxxx;
(ii) such employee's title, and a summary
description of such employee's duties and responsibilities to the extent such
employee's title is not descriptive of such employee's position;
(iii) the aggregate dollar amount of the
compensation (including wages, salary, commissions, director's fees, fringe
benefits, bonuses, profit-sharing payments and other payments or benefits of
any type) received by such employee from Xxxxx with respect to services
performed in calendar 1997 and any increase in such employee's compensation
in calendar 1998 in excess of 5%;
(iv) such employee's annualized base
compensation as of the date of this Agreement;
(v) each Xxxxx Current Benefit Plan in which
such employee participates; and
(vi) to the Knowledge of Xxxxx, any material
Governmental Authorization that is held by such employee and that relates to
or is useful in connection with Xxxxx'x business.
There has been no material change to the information set forth in Part
2.18(a) of the Xxxxx Disclosure Schedule since the date as of which
information is presented in Part 2.18(a) of the Disclosure Schedule except in
the Ordinary Course of Business.
(b) Except as set forth in Part 2.18(b) of the Xxxxx
Disclosure Schedule, there is no employee of Xxxxx who is not fully available
to perform work because of disability or other leave.
(c) Part 2.18(c) of the Xxxxx Disclosure Schedule
identifies each Xxxxx Current Benefit Plan and each Xxxxx Past Benefit Plan
in effect since August 1, 1995, and any other Xxxxx Plans currently in
effect. Xxxxx does not have any material Liability under any Xxxxx Past
Benefit Plan that is not disclosed in Part 2.18(c) of the Xxxxx Disclosure
Schedule.
20
(d) Part 2.18(d) of the Xxxxx Disclosure Schedule
identifies each former employee of Xxxxx who is receiving or is scheduled to
receive (or whose spouse or other dependent is receiving or is scheduled to
receive) any benefits under any Xxxxx Plan relating to such former employee's
employment with Xxxxx; and Part 2.18(d) of the Xxxxx Disclosure Schedule
accurately describes in all material respects such benefits.
(e) Except as set forth in Part 2.18(e) of the Xxxxx
Disclosure Schedule, Xxxxx is not a party to or bound by any employment
agreement or any union contract, collective bargaining agreement or similar
Contract.
(f) Except as set forth in Part 2.18(f) of the Xxxxx
Disclosure Schedule, the employment of each of Xxxxx'x employees is
terminable by Xxxxx at will. Except as set forth in Part 2.18(f) of the
Xxxxx Disclosure Schedule, Xxxxx never prepared or delivered to employees any
employee manuals or handbooks or other similar materials relating to the
employment of the current and former employees of Xxxxx that subject Xxxxx to
any material Liability.
(g) To the Knowledge of Xxxxx, except as set forth on
Part 2.18(g) of the Xxxxx Disclosure Schedule:
(i) no employee of Xxxxx intends to terminate
his or her employment with Xxxxx for reasons other than retirement, death or
legal disability;
(ii) no employee of Xxxxx has received an offer
that is currently outstanding to join a business that may be competitive with
Xxxxx'x business; and
(iii) no employee of Xxxxx is a party to or is
bound by any confidentiality agreement, noncompetition agreement or other
Contract (with any Person) that may have a material adverse effect on (A) the
performance by such employee of any of his or her current duties or
responsibilities as an employee of Xxxxx or (B) Xxxxx'x business or
operations as currently conducted.
(h) Xxxxx is not engaged, and since August 1, 1995
has not engaged, in any unfair labor practice of any nature. Since August 1,
1995, there has not been any slowdown, work stoppage, labor dispute or union
organizing activity, or any similar activity or dispute, at Xxxxx affecting
Xxxxx or any of its employees. There is not now pending, and to the
Knowledge of Xxxxx, no Person has threatened to commence, any slowdown, work
stoppage, labor dispute or union organizing activity or any similar activity
or dispute at Xxxxx with respect to Xxxxx or any of its employees. To the
Knowledge of Xxxxx, no event has occurred, and no condition or circumstance
exists, that would reasonably be expected to directly or indirectly give rise
to or provide a basis for the commencement of any such slowdown, work
stoppage, labor dispute or union organizing activity or any similar activity
or dispute.
2.19 BENEFIT PLANS; ERISA.
(a) Except as set forth in the Xxxxx Disclosure
Schedule, Xxxxx has not since August 1, 1997 provided or made available any
fringe benefit to any of its employees with a value in excess of $5,000 per
year.
21
(b) No Xxxxx Plan:
(i) provides or provided any benefit
guaranteed by the Pension Benefit Guaranty Corporation;
(ii) is or was a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA; or
(iii) except for Xxxxx'x legal obligation to
repurchase shares from a participant exercising his or her put option rights
under the Xxxxx ESOP, is or was subject to the minimum funding standards of
Section 412 of the Code or Section 302 of ERISA.
There is no Person that (by reason of common control or otherwise) is or has
at any time been treated together with Xxxxx as a single employer within the
meaning of Section 414 of the Code.
(c) Xxxxx has delivered, or identified and made
available, to Purchaser, with respect to each Xxxxx Current Benefit Plan:
(i) an accurate and complete copy of such
Xxxxx Plan and all amendments thereto (including any amendment that is
scheduled to take effect in the future);
(ii) an accurate and complete copy of each
material Contract (including any trust agreement, funding agreement, service
provider agreement, insurance agreement, investment management agreement or
recordkeeping agreement) relating to such Xxxxx Plan;
(iii) an accurate and complete copy of any
material description, summary, notification, report or other document that
has been furnished to any employee of Xxxxx with respect to such Xxxxx Plan;
(iv) an accurate and complete copy of any
material form, report, registration statement or other document that has been
filed with or submitted to any Governmental Body with respect to such Xxxxx
Plan; and
(v) an accurate and complete copy of any
determination letter, application requiring a favorable determination letter,
IRS or Department of Labor audit or other material document that has been
issued by, or that has been received by Xxxxx from, any Governmental Body
with respect to such Xxxxx Plan.
(d) Xxxxx has delivered or identified and made
available to Purchaser all of the following documents in Xxxxx'x possession
with respect to each Xxxxx Past Benefit Plan in effect since August 1, 1995:
(i) an accurate and complete copy of such
Xxxxx Plan and all amendments thereto (including any amendment that is
scheduled to take effect in the future);
(ii) an accurate and complete copy of each
material Contract (including any trust agreement, funding agreement, service
provider agreement, insurance
22
agreement, investment management agreement or recordkeeping agreement)
relating to such Xxxxx Past Benefit Plan;
(iii) an accurate and complete copy of any
material description, summary, notification, report or other document that
has been furnished to any employee of Xxxxx with respect to such Xxxxx Past
Benefit Plan;
(iv) an accurate and complete copy of any
material form, report, registration statement or other document that has been
filed with or submitted to any Governmental Body with respect to such Xxxxx
Past Benefit Plan; and
(v) an accurate and complete copy of any
determination letter, IRS or Department of Labor audit or other material
document that has been issued by, or that has been received by Xxxxx from,
any Governmental Body with respect to such Xxxxx Past Benefit Plan.
(e) To the Knowledge of Xxxxx, (i) each Xxxxx Current
Benefit Plan is being operated and administered in compliance in all material
respects with the provisions thereof, and (ii) each Xxxxx Current Benefit
Plan has at all times been operated and administered in compliance in all
material respects with the provisions thereof. Each contribution or other
payment that is required to have been accrued or made under or with respect
to any Xxxxx Current Benefit Plan has been duly accrued or made by Xxxxx on a
timely basis, in all material respects.
(f) To the Knowledge of Xxxxx, (i) each Xxxxx Current
Benefit Plan complies and is being operated and administered in compliance in
all material respects with, and (ii) each Xxxxx Plan has at all times
complied and been operated and administered in compliance in all material
respects with, all applicable reporting, disclosure and other requirements of
ERISA and the Code and all other applicable Legal Requirements. Except as
reflected in the Xxxxx Disclosure Schedule, including the Xxxxx Financial
Statements, (i) Xxxxx has not since July 31, 1992 incurred any material
Liability to the Internal Revenue Service or any other Governmental Body with
respect to any Xxxxx Plan and (ii) to the Knowledge of Xxxxx, no event has
occurred, and no condition or circumstance exists, that would reasonably be
expected to (with or without notice or lapse of time) give rise directly or
indirectly to any such material Liability. To the Knowledge of Xxxxx, Xxxxx
and any Person that is or was an administrator or fiduciary of any Xxxxx Plan
(or that acts or has acted as an agent of Xxxxx or any such administrator or
fiduciary), has not engaged in any transaction and has not otherwise acted or
failed to act in a manner that has subjected or would reasonably be expected
to subject Xxxxx to any material Liability for Breach of any fiduciary duty
or any other duty. (A) Neither the Xxxxx ESOP nor any hospitalization,
medical or dental insurance plan currently maintained by Xxxxx, and no person
that is or was an administrator or fiduciary of the Xxxxx ESOP or any
hospitalization, medical or dental insurance plan currently maintained by
Xxxxx (or that acts or has acted as an agent of any such administrator or
fiduciary) and (B) to the Knowledge of Xxxxx, no other Xxxxx Plan, and no
Person that is or was an administrator or fiduciary of any other Xxxxx Plan
(or that acts or has acted as an agent of any such administrator or
fiduciary):
(i) has engaged in a "prohibited transaction"
within the meaning of Section 406 of ERISA or Section 4975 of the Code;
23
(ii) has failed to perform any of the responsibilities or
obligations imposed upon fiduciaries under Title I of ERISA; or
(iii) has taken any action that (A) may subject such Xxxxx
Plan or such Person to any material Tax, penalty or Liability relating to any
"prohibited transaction" within the meaning of Section 406 of ERISA or Section
4975 of the Code or (B) may directly or indirectly give rise to or serve as a
basis for the assertion (by any employee or by any other Person) of any valid
claim that would subject Xxxxx to any material Liability under, on behalf of or
with respect to such Xxxxx Plan other than in the ordinary course of the
administration of such Xxxxx Plan or as disclosed in the Xxxxx Disclosure
Schedule.
(g) No material inaccurate or misleading representation,
statement or other communication has been made or directed (in writing or
otherwise) to any current or former employee of Xxxxx that may directly or
indirectly give rise to or serve as a basis for the assertion of any valid claim
that would subject Xxxxx to any material Liability (i) with respect to such
employee's participation, eligibility for benefits, vesting, benefit accrual or
coverage under any Xxxxx Plan or with respect to any other matter relating to
any Xxxxx Plan, or (ii) with respect to any proposal or intention on the part of
Xxxxx to establish or sponsor any Employee Benefit Plan or to provide or make
available any fringe benefit or other benefit of any nature.
(h) Except as set forth in Part 2.19(h) of the Xxxxx Disclosure
Schedule, Xxxxx has not advised any of its employees (in writing or otherwise)
that it intends to establish or sponsor any Employee Benefit Plan or to provide
or make available any material fringe benefit of any nature in the future.
(i) To the knowledge of Xxxxx, none of the Transactions will
violate Section 406 of ERISA or Section 4975 of the Code or other applicable
Legal Requirements with respect to any Xxxxx Plan.
2.20 ENVIRONMENTAL MATTERS.
(a) Xxxxx is not liable or potentially liable for any material
response cost or natural resource damages under Section 107(a) of CERCLA, or
under any other so-called "superfund" or "superlien" law or similar Legal
Requirement, at or with respect to any site.
(b) Xxxxx is and has at all times been in compliance with all
applicable Environmental Laws, except for failures to be in compliance that
would not reasonably be expected to have a Xxxxx Material Adverse Effect. Xxxxx
possesses all material permits and other material Governmental Authorizations
required under applicable Environmental Laws, and Xxxxx is and has at all times
been in compliance with the terms and requirements of all such Governmental
Authorizations, except for failures to be in compliance that would not
reasonably be expected to have a Xxxxx Material Adverse Effect. Except as set
forth in Part 2.20(b) of the Xxxxx Disclosure Schedule, Xxxxx has never
received, and to the Knowledge of Xxxxx, no current or prior owner of any
property leased or controlled by Xxxxx has ever received, any written notice or,
to the Knowledge of Xxxxx, any oral communication from any Governmental Body or
other Person regarding any actual, alleged, possible or potential material
Liability on the part of Xxxxx arising from or relating to the presence,
generation, manufacture, production,
24
transportation, importation, use, treatment, refinement, processing,
handling, storage, discharge, release, emission or disposal of any Hazardous
Material that has not already been paid or resolved. No Person has ever
commenced or threatened to commence any contribution action or other
Proceeding against Xxxxx in connection with any such actual, alleged,
possible or potential material Liability; and to the Knowledge of Xxxxx, no
event has occurred, and no condition or circumstance exists, that would
reasonably be expected to directly or indirectly give rise to, or result in
Xxxxx becoming subject to, any such material Liability.
(c) Except as set forth in Part 2.20(c) of the Disclosure
Schedule, to the Knowledge of Xxxxx, since August 1, 1995, Xxxxx has not
generated, manufactured, produced, transported, imported, used, treated,
refined, processed, handled, stored, discharged, released or disposed of any
Hazardous Material (whether lawfully or unlawfully). Except as set forth in
Part 2.20(c) of the Xxxxx Disclosure Schedule, to the Knowledge of Xxxxx, since
August 1, 1995, Xxxxx has not permitted any Hazardous Material to be generated,
manufactured, produced, used, treated, refined, processed, handled, stored,
discharged, released or disposed of (whether lawfully or unlawfully):
(i) on or beneath the surface of any real property that
is, or that has at any time been, owned by, leased to, controlled by or used by
Xxxxx;
(ii) in or into any surface water, groundwater, soil or
air associated with or adjacent to any such real property; or
(iii) in or into any well, pit, pond, lagoon, impoundment,
ditch, landfill, building, structure, facility, improvement, installation,
equipment, pipe, pipeline, vehicle or storage container that is or was located
on or beneath the surface of any such real property or that is or has at any
time been owned by, leased to, controlled by or used by Xxxxx.
(d) Except as set forth in Part 2.20(d) of the Xxxxx Disclosure
Schedule, to the Knowledge of Xxxxx, all property that is owned by, leased to,
controlled by or used by Xxxxx, and all surface water, groundwater, soil and air
associated with or adjacent to such property:
(i) is free of any Hazardous Material and any harmful
chemical or physical conditions; and
(ii) is free of any environmental contamination of any
nature.
(e) To the Knowledge of Xxxxx, there is no storage tank that is
located on or beneath the surface of any real property owned by, leased to,
controlled by or used by Xxxxx.
(f) All material Governmental Authorizations currently held by
Xxxxx pursuant to Environmental Laws are identified in Part 2.16(a) of the Xxxxx
Disclosure Schedule.
2.21 SALE OF PRODUCTS; PERFORMANCE OF SERVICES. Except as set forth
in Part 2.21 of the Xxxxx Disclosure Schedule, no customer or other Person
has since August 1, 1995, asserted or, to the knowledge of Xxxxx, threatened
to assert any claim against Xxxxx (other than warranty claims or returns in
the Ordinary Course of Business) that resulted in a Liability of Xxxxx in
excess of $25,000 that is not reflected in the Xxxxx Financial Statements (i)
under or based upon
25
any warranty provided by or on behalf of Xxxxx or (ii) under or based upon
any other warranty relating to any product sold by Xxxxx or any services
performed by Xxxxx. To the Knowledge of Xxxxx, no event has occurred, and no
condition or circumstance exists, that would reasonably be expected to (with
or without notice or lapse of time) directly or indirectly give rise to or
serve as a basis for the assertion of any such claim, other than a claim that
does not exceed $25,000 or warranty claims or returns arising in the Ordinary
Course of Business.
2.22 INSURANCE.
(a) Part 2.22(a) of the Xxxxx Disclosure Schedule accurately
sets forth, with respect to each insurance policy maintained by or at the
expense of, or for the direct or indirect benefit of, Xxxxx:
(i) the name of the insurance carrier that issued such
policy and the policy number of such policy;
(ii) a brief description of the coverage provided by such
policy; and
(iii) the annual premium payable with respect to such
policy, and the cash value (if any) of such policy.
Xxxxx has identified and made available at its offices a description of all
claims that exceed $25,000 per claim that have been asserted in the past since
August 1, 1995 with respect to each policy identified in Part 2.22(a) of the
Xxxxx Disclosure Schedule. Part 2.22(a) of the Xxxxx Disclosure Schedule also
identifies (1) each pending application for insurance that has been submitted by
or on behalf of Xxxxx, and (2) each self-insurance or similar risk-sharing
arrangement affecting Xxxxx or any of its assets. Xxxxx has delivered to or
identified and made available to Purchaser accurate and complete copies of all
of the insurance policies identified in Part 2.22(a) of the Xxxxx Disclosure
Schedule (including the latest renewals thereof and all endorsements thereto)
and all of the pending applications identified in Part 2.22(a) of the Xxxxx
Disclosure Schedule.
(b) Each of the policies identified in Part 2.22(a) of the
Xxxxx Disclosure Schedule (except for those as to which Xxxxx has indicated in
Part 2.22(a) of the Disclosure Schedule that it has filed a pending application)
is valid and in full force and effect. All of the information contained in the
applications submitted in connection with said policies was (at the times said
applications were submitted) accurate and complete in all material respects, and
all premiums and other amounts due with respect to said policies have been paid
in full on a timely basis except where the failure to pay such premium, on a
timely basis would not reasonably be expected to have a Xxxxx Material Adverse
Effect. The nature, scope and dollar amounts of the insurance coverage provided
by said policies are reasonable in the judgment of Xxxxx to adequately insure
Xxxxx in accordance with reasonable commercial practices.
(c) Except as set forth in Part 2.22(c) of the Xxxxx Disclosure
Schedule, (i) there is no pending claim by Xxxxx under or based upon any of the
policies identified in Part 2.22(a) of the Xxxxx Disclosure Schedule that
exceeds $25,000 per claim; and (ii) to the Knowledge of Xxxxx, no condition or
circumstance exists and no event has occurred, that would
26
reasonably be expected to (with or without notice or lapse of time) directly
or indirectly give rise to or serve as a basis for any material claim by
Xxxxx under any of such policies.
(d) Except as set forth in Part 2.22(d) of the Xxxxx Disclosure
Schedule, Xxxxx has not received:
(i) any written notice or, to the Knowledge of Xxxxx,
any oral communication regarding the actual or possible cancellation or
invalidation of any of the policies identified in Part 2.22(a) of the Xxxxx
Disclosure Schedule that has not been rescinded or regarding any actual or
possible adjustment in the amount of the premiums payable with respect to any of
said policies as currently in effect; or
(ii) any written notice or, to the Knowledge of Xxxxx,
any oral communication regarding any actual or possible refusal of coverage with
respect to any currently pending claim of Xxxxx under, or any actual or possible
rejection of any currently pending claim of Xxxxx under, any of the policies
identified in Part 2.22(a) of the Xxxxx Disclosure Schedule; or
(iii) any indication that the issuer of any of the
policies identified in Part 2.22(a) of the Xxxxx Disclosure Schedule may be
unwilling or unable to perform any of its obligations thereunder.
2.23 RELATED PARTY TRANSACTIONS. Except as set forth in Part 2.23
of the Xxxxx Disclosure Schedule, cross-referenced to elsewhere in the Xxxxx
Disclosure Schedule or reflected in the Xxxxx Financial Statements and except
for claims for employee compensation, benefits and reimbursement of expenses
in the Ordinary Course of Business:
(a) no Related Party of Xxxxx has, and no Related Party of
Xxxxx has at any time since August 1, 1995 had, any direct or indirect interest
of any nature in any material asset used in or otherwise relating to the
business of Xxxxx;
(b) no Related Party of Xxxxx is, or has at any time since
August 1, 1995 been, indebted to Xxxxx for more than $25,000;
(c) since August 1, 1995, no Related Party of Xxxxx has entered
into, or has had any direct or indirect financial interest in, any material
Contract, transaction or business dealing of any nature involving Xxxxx;
(d) no Related Party of Xxxxx is competing, or has at any time
since August 1, 1995 competed, directly or indirectly, with Xxxxx in any market
served by Xxxxx;
(e) no Related Party of Xxxxx has asserted or threatened to
assert any material claim or right against Xxxxx; and
(f) to the Knowledge of Xxxxx, no event has occurred, and no
condition or circumstance exists, that would reasonably be expected to (with or
without notice or lapse of time) directly or indirectly give rise to or serve as
a basis for any material claim or right in favor of any Related Party of Xxxxx
against Xxxxx.
27
2.24 CERTAIN PAYMENTS, ETC. Neither any officer of Xxxxx nor, to
the Knowledge of Xxxxx, any other employee or agent of Xxxxx or other Person
acting for or on behalf of Xxxxx, has at any time, directly or indirectly:
(a) used any corporate funds of Xxxxx (i) to make any unlawful
political contribution or gift or for any other unlawful purpose relating to any
political activity, (ii) to make any unlawful payment to any governmental
official or employee, or (iii) to establish or maintain any unlawful or
unrecorded fund or account of any nature;
(b) made any payoff, influence payment, bribe, kickback or
unlawful payment to any Person;
(c) made any unlawful payment to any Person, or unlawfully
provided any material favor or anything of material value (whether in the form
of property or services, or in any other form) to any Person, for the purpose of
obtaining or paying for (i) favorable treatment in securing business, or (ii)
any other special concession; or
(d) agreed, committed, offered or attempted to take any of the
actions described in clauses "(a)" through "(c)" above.
2.25 PROCEEDINGS; ORDERS.
(a) Except as set forth in Part 2.25(a) of the Xxxxx Disclosure
Schedule, there is no pending Proceeding, and to the Knowledge of Xxxxx, no
Person has threatened to commence any Proceeding:
(i) against Xxxxx or with respect to any of the assets
owned or used by Xxxxx; or
(ii) against Xxxxx, that challenges, or that may have the
effect of preventing, delaying, making illegal or otherwise interfering with,
the Merger or any of the other Transactions.
Except as set forth in Part 2.25(a) of the Xxxxx Disclosure Schedule, to the
Knowledge of Xxxxx, no material event has occurred, and no material claim,
dispute or other condition or circumstance exists, that would reasonably be
expected to give rise to or serve as a basis for the commencement of any such
Proceeding.
(b) Except as set forth in Part 2.25(b) of the Xxxxx Disclosure
Schedule, no Proceeding has been commenced by or against Xxxxx since August 1,
1995.
(c) Xxxxx has identified and made available to Purchaser
accurate and complete copies of all pleadings to which Xxxxx has access that
relate to the Proceedings required to be identified in Parts 2.25(a) and (b) of
the Xxxxx Disclosure Schedule.
(d) Except as set forth in Part 2.25(d) of the Xxxxx Disclosure
Schedule, there is no material Order to which Xxxxx, or any of the assets owned
or used by Xxxxx, is subject.
28
(e) To the Knowledge of Xxxxx, no officer or employee of Xxxxx
is subject to any material Order that prohibits such officer or employee from
engaging in or continuing any conduct, activity or practice relating to Xxxxx'x
business.
(f) To the Knowledge of Xxxxx, there is no proposed Order that,
if issued or otherwise put into effect, (i) would reasonably be expected to have
a Xxxxx Material Adverse Effect, or (ii) would reasonably be expected to have
the effect of preventing, delaying, making illegal or otherwise interfering with
any of the Transactions.
2.26 AUTHORITY; BINDING NATURE OF AGREEMENTS; BOARD OF DIRECTORS
APPROVAL.
(a) Xxxxx has the requisite corporate power and authority to
enter into and to perform its obligations under this Agreement.
(b) Subject to approval thereof by the Stockholders, the
execution, delivery and performance by Xxxxx of this Agreement have been duly
authorized by all necessary corporate action on the part of Xxxxx.
(c) This Agreement constitutes the legal, valid and binding
obligation of Xxxxx, enforceable against Xxxxx in accordance with its terms,
subject to (i) laws of general application relating to bankruptcy, insolvency
and the relief of debtors, and (ii) rules of law governing specific performance,
injunctive relief and other equitable remedies.
(d) The Board of Directors of Xxxxx (at a meeting duly called
and held) has (i) unanimously determined that the Merger is advisable and fair
and in the best interests of Xxxxx and its Stockholders, (ii) unanimously
approved the execution, delivery and performance of this Agreement by Xxxxx and
unanimously approved the Merger, and (iii) unanimously directed that this
Agreement and the Merger be submitted for consideration by the Stockholders at
the Xxxxx Stockholders' Meeting (as defined in Section 5.5).
2.27 NON-CONTRAVENTION; CONSENTS. Except as set forth in Part
2.27 of the Xxxxx Disclosure Schedule, neither the execution and delivery of
any of the Transactional Agreements by Xxxxx, nor the consummation or
performance by Xxxxx of the Merger or any of the other Transactions, will
directly or indirectly (with or without notice or lapse of time):
(a) contravene, conflict with or result in a violation of
(i) any of the provisions of Xxxxx'x articles of incorporation or bylaws or
(ii) any resolution adopted by Xxxxx'x stockholders or Xxxxx'x board of
directors;
(b) contravene, conflict with or result in a violation of, or
give any Governmental Body or other Person the right to challenge any of the
Transactions or to exercise any remedy or obtain any relief under, any material
Legal Requirement (other than any Excluded Legal Requirement) or Order to which
Xxxxx, or any of the assets owned or used by Xxxxx, is subject;
(c) materially contravene, conflict with or result in a
violation of any of the terms or requirements of, or give any Governmental Body
the right to revoke, withdraw, suspend, cancel, terminate or modify, any
material Governmental Authorization that is held by
29
Xxxxx or any of its employees that relates to Xxxxx'x business or to any of
the assets owned or used by Xxxxx;
(d) contravene, conflict with or result in a violation or
Breach of, or result in a default under, any provision of any Xxxxx Contract
except any Xxxxx Excluded Contract;
(e) give any Person the right to (i) declare a default or
exercise any remedy under any Xxxxx Contract except any Xxxxx Excluded Contract,
(ii) accelerate the maturity or performance of any Xxxxx Contract except any
Xxxxx Excluded Contract or (iii) cancel, terminate or modify any Xxxxx Contract
other than any Xxxxx Excluded Contract; or
(f) result in the imposition or creation of any Encumbrance
upon or with respect to any asset owned or used by Xxxxx that would reasonably
be expected to have a Xxxxx Material Adverse Effect.
Except as set forth in Part 2.27 of the Xxxxx Disclosure Schedule or as required
under the HSR Act or any applicable state securities or "blue sky laws," and
except for receipt of the approval of its board of directors and Stockholders,
Xxxxx was not, is not and will not be required to make any filing with or give
any notice to, or to obtain any Consent from, any Person in connection with its
execution and delivery of any of the Transactional Agreements or the
consummation or performance of any of the Transactions, except for (i) Consents
which if not obtained would not reasonably be expected to cause a Xxxxx Material
Adverse Effect and (ii) filings, notices and Consents required to be obtained
under the laws of The Netherlands (including without limitation filings, notices
and Consents under the Wet toezicht effectenverkeer 1995 (the "WTE"), the Wet op
de ondernemingsraden (the "WOR") and the SER Fusiegedragsregels 1975 (the
"Merger Code") or under the laws of any other jurisdiction in which Xxxxx does
not have employees or operating facilities.
2.28 BROKERS. Except as set forth in Part 2.28 of the Xxxxx
Disclosure Schedule, Xxxxx has not agreed or become obligated to pay, and has
not taken any action that would result in any Person claiming to be entitled
to receive, any brokerage commission, finder's fee or similar commission or
fee in connection with any of the Transactions.
2.29 ACCOUNTING MATTERS. To the Knowledge of Xxxxx, neither
Xxxxx nor any of its affiliates has taken or agreed to, or plans to, take any
action that would prevent Purchaser from accounting for the Merger as a
"pooling of interests" in accordance with APB Opinion No. 16; provided,
however, that no action or matter disclosed in the Xxxxx Disclosure Schedule
or required by the Transactional Agreements shall be deemed to constitute a
breach or violation of this Section 2.29.
2.30 VOTE REQUIRED. Under the Nevada Revised Statutes and the
Articles of Incorporation of Xxxxx, the affirmative vote of holders of a
majority of the shares of Xxxxx Common Stock outstanding on the record date
for the Xxxxx Stockholders' Meeting (as defined in Section 5.5) (the
"Required Vote") is the only vote of the holders of any class or series of
Xxxxx'x capital stock necessary to adopt and approve this Agreement, the
Merger and the other Transactions. As required under the Xxxxx ESOP, with
respect to the Merger and other related matters brought before the
Stockholders: (i) the Participants of the Xxxxx ESOP have the right to
30
direct Xxxxx X. Xxxxxxxxx, in his capacity as Trustee of the Xxxxx ESOP, to
vote vested and non-vested Shares allocated to the Participant's Accounts
("Allocated ESOP Stock") and (ii) the Trustee will vote all of the Shares
held in the Unallocated Employer Securities Account (as defined in Section
1.45 of the Xxxxx ESOP) and all Allocated ESOP Stock that Participants of the
Xxxxx ESOP either do not direct or do not properly and timely direct as
described in (i) above.
2.31 INFORMATION STATEMENT/OFFERING MEMORANDUM. None of the
information supplied or to be supplied by or on behalf of Xxxxx for inclusion
in the Disclosure Document, will, at the time the Disclosure Document is
mailed to the Stockholders of Xxxxx or at the time of the Xxxxx Stockholders'
Meeting, 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, in the light of the circumstances under which they are
made, not misleading.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SIGNING STOCKHOLDERS
As of the date of the signing of the Joinder Agreement, except where
limited to a specific Signing Stockholder, each Signing Stockholder severally
represents and warrants to and for the benefit of Purchaser and Merger Sub as
follows:
3.1 SHARES. Such Signing Stockholder has delivered to Purchaser
an accurate and complete copy of the stock certificate representing such
Signing Stockholder's Shares.
3.2 AUTHORITY OF SIGNING STOCKHOLDERS; BINDING NATURE OF
AGREEMENTS.
(a) (i) Such Signing Stockholder has the requisite right, power
and capacity to enter into and to perform such Signing Stockholder's obligations
under each of the Transactional Agreements to which such Signing Stockholder is
or may become a party; (ii) this Agreement constitutes the legal, valid and
binding obligation of such Signing Stockholder, enforceable against such Signing
Stockholder in accordance with its terms, subject to (A) laws of general
application relating to bankruptcy, insolvency and the relief of debtors, and
(B) rules of law governing specific performance, injunctive relief and other
equitable remedies; and (iii) upon the execution of each of the other
Transactional Agreements at the Closing, each of such other Transactional
Agreements to which such Signing Stockholder becomes a party will constitute the
legal, valid and binding obligation of such Signing Stockholder, and will be
enforceable against such Signing Stockholder in accordance with its terms,
subject to (A) laws of general application relating to bankruptcy, insolvency
and the relief of debtors, and (B) rules of law governing specific performance,
injunctive relief and other equitable remedies.
(b) (i) The spouse of such Signing Stockholder, if applicable,
has the requisite right, power and capacity to execute and deliver and to
perform his or her obligations under the Spousal Consent being executed by him
or her; and (ii) such Spousal Consent constitutes such spouse's legal, valid and
binding obligation, enforceable against such spouse in accordance with its
terms, subject to (A) laws of general application relating to bankruptcy,
insolvency and the relief of debtors, and (B) rules of law governing specific
performance, injunctive relief and other equitable remedies.
31
(c) Subject to the distribution of the Participant Directive,
Participant Directive Statement and the Disclosure Document to the Participants
of the Xxxxx ESOP, and in compliance with Section 8.11 of the Xxxxx ESOP and as
otherwise expressly stated herein, Xxxxx X. Xxxxxxxxx, as directed Trustee (the
"Trustee") of the Xxxxx ESOP, represents and warrants to and for the benefit of
Purchaser that (i) the Trustee is the sole trustee of the Trust; (ii) the
Trustee has delivered to Purchaser a complete and correct copy of the trust
agreement for the Trust, including all amendments thereto; (iii) subject to his
receipt of the investment direction from the Investment Manager (as defined in
the Xxxxx ESOP) the Trustee has full power and authority, under the trust
agreement for the Trust and otherwise, to enter into this Agreement on behalf of
the Trust and to perform the obligations of the Trust hereunder; (iv) subject to
his receipt of the investment direction from the Investment Manager (as defined
in the Xxxxx ESOP), the execution, delivery and performance of this Agreement by
the Trustee under the Trust does not require any further authorization from the
beneficiaries of the Trust, any committee appointed pursuant to Section 9.01 of
the Xxxxx ESOP to administer the Xxxxx ESOP (the "ESOP Committee" or any other
Persons and (v) the execution, delivery and performance of the Trust's
obligations under this Agreement and the consummation of the Merger do not
contravene, conflict with or result in a violation of any provision of the
Trust.
3.3 NON-CONTRAVENTION; CONSENTS. Except as set forth in Part 3.3
of the Signing Stockholder Disclosure Schedule, neither the execution and
delivery of any of the Transactional Agreements by such Signing Stockholder,
nor the consummation or performance by such Signing Stockholder of any of the
Transactions to which it is a party, will directly or indirectly (with or
without notice or lapse of time):
(a) contravene, conflict with or result in a violation of, or
give any Governmental Body or other Person the right to challenge any of the
Transactions or to exercise any remedy or obtain any relief under, any material
Legal Requirement or Order to which such Signing Stockholder is subject; or
(b) contravene, conflict with or result in a violation or
Breach of or a default under any provision of, or give any Person the right to
declare a default under, any material Contract to which such Signing Stockholder
is a party or by which such Signing Stockholder is bound.
Except as set forth in Part 3.3 of the Signing Stockholder Disclosure Schedule,
such Signing Stockholder was not, is not and will not be required to make any
filing with or give any notice to, or to obtain any material Consent from, any
Person in connection with the execution and delivery of any of the Transactional
Agreements or the consummation or performance of any of the Transactions.
3.4 ABILITY.
(a) Except as set forth in Part 3.4 of the Signing Stockholder
Disclosure Schedule, such Signing Stockholder:
(i) has not (A) at any time since August 1, 1995 made a
general assignment for the benefit of creditors, (B) at any time since August 1,
1995 filed, or had filed
32
against such Signing Stockholder, any bankruptcy petition or similar filing,
(C) at any time since August 1, 1995 suffered the attachment or other
judicial seizure of all or a substantial portion of such Signing
Stockholder's assets, (D) at any time since August 1, 1995 admitted in
writing such Signing Stockholder's inability to pay such Signing
Stockholder's debts as they become due, or (E) taken or been the subject of
any action that may have an adverse effect on such Signing Stockholder's
ability to comply with or perform any of such Signing Stockholder's covenants
or obligations under any of the Transactional Agreements; and
(ii) is not subject to any Order that would have a
material adverse effect on such Signing Stockholder's ability to comply with or
perform any of such Signing Stockholder's covenants or obligations under any of
the Transactional Agreements.
(b) (i) There is no Proceeding pending, and to the Knowledge of
such Signing Stockholder no Person has threatened to commence any Proceeding
against such Signing Stockholder, that would reasonably be expected to have a
material adverse effect on the ability of such Signing Stockholder to comply
with or perform any of such Signing Stockholder's covenants or obligations under
any of the Transactional Agreements; and (ii) to the Knowledge of such Signing
Stockholder, no event has occurred, and no claim, dispute or other condition or
circumstance exists, that would reasonably be expected to give rise to or serve
as a basis for the commencement of any such Proceeding.
3.5 INVESTMENT REPRESENTATIONS.
(a) Such Signing Stockholder is aware (i) that the Purchaser
Capital Stock to be issued to such Signing Stockholder in the Merger will not be
registered and will not be issued pursuant to a registration statement under the
Act, but will instead be issued in reliance on the exemption from registration
set forth in Section 4(2) of the Act and in Rule 506 under the Act and (ii) that
neither the Merger nor the issuance of such Purchaser Capital Stock has been
approved or reviewed by the Securities and Exchange Commission (the "SEC") or by
any other governmental agency.
(b) Such Signing Stockholder is aware that (i) because the
Purchaser Capital Stock to be issued in the Merger will not be registered under
the Act, such Purchaser Capital Stock cannot be resold unless such Purchaser
Capital Stock is registered under the Act or unless an exemption from
registration is available; and (ii) (A) except as expressly provided in the
Investor Rights Agreement to which such Signing Stockholder shall become a party
pursuant to the Accession Agreement attached as Exhibit W-1 hereto, Purchaser
will be under no obligation to file a registration statement with respect to the
Purchaser Capital Stock to be issued to such Signing Stockholder in the Merger;
and (B) the provisions of Rule 144 under the Act, if applicable, will permit
resale of the Purchaser Capital Stock to be issued to such Signing Stockholder
in the Merger only under limited circumstances, and such Purchaser Capital Stock
must be held by such Signing Stockholder for at least one year before it can be
sold pursuant to Rule 144 unless transferred pursuant to Section 3.05 of the
Trust or Article X of the Xxxxx ESOP.
(c) The Purchaser Capital Stock to be issued to such Signing
Stockholder in the Merger will be acquired by such Signing Stockholder for
investment and for his, her or its
33
own account, and not with a view to, or for resale in connection with, any
unregistered distribution thereof.
(d) If Xxxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx become Signing
Stockholders, each represents and warrants to and for the benefit of Purchaser
that he or she has appointed a purchaser representative (each, a "Stockholder
Representative") to act as his or her purchaser representative in connection
with his, her or its evaluation of the merits and risks of the Merger and such
Signing Stockholder's investment in Purchaser Capital Stock. Such Signing
Stockholder further acknowledges to and for the benefit of Purchaser that he or
she has read and understands the Disclosure Document (as defined below)
(including the exhibits thereto) and has had the opportunity to meet with his or
her Stockholder Representative for the purpose of discussing the merits and
risks of the Merger and such Signing Stockholder's proposed investment in
Purchaser Capital Stock.
(e) With respect to Signing Stockholders executing a Joinder
Agreement after the date of this Agreement, such Signing Stockholder has
received, reviewed and considered the Information Statement/Offering Memorandum
with respect to the Merger and the transactions contemplated by this Agreement
(the "Disclosure Document").
(f) Such Signing Stockholder has been given the opportunity:
(i) to ask questions of, and to receive answers from, persons acting on behalf
of Xxxxx and Purchaser concerning the terms and conditions of the Merger and
the contemplated issuance of Purchaser Capital Stock in the Merger, and the
business, properties, prospects and financial condition of Xxxxx and Purchaser;
and (ii) to obtain any additional information (to the extent Xxxxx or Purchaser
possesses such information or is able to acquire it without unreasonable effort
or expense and without breach of confidentiality obligations) requested to
verify the accuracy of the information set forth in the Disclosure Document.
(g) (i) Such Signing Stockholder either alone or with his or
her Stockholder Representative is knowledgeable, sophisticated and experienced
in making, and is qualified to make, decisions with respect to investments in
securities presenting investment decisions like that involved in such Signing
Stockholder's contemplated investment in the Purchaser Capital Stock to be
issued in the Merger; (ii) such Signing Stockholder understands and has fully
considered the risks of acquiring and owning Purchaser Capital Stock and further
understands that: (A) an investment in Purchaser Capital Stock is a speculative
investment which involves a high degree of risk; and (B) there are substantial
restrictions on the transferability of the Purchaser Capital Stock to be issued
in the Merger, and, accordingly, it may not be possible for such Signing
Stockholder to liquidate his, her or its investment in such Purchaser Capital
Stock (in whole or in part) in the case of emergency; and (iii) such Signing
Stockholder is able to hold the Purchaser Capital Stock that he, she or it is to
receive in the Merger for a substantial period of time except where the Xxxxx
ESOP and Trust do not so permit.
(h) Purchaser will rely on his, her or its representations and
warranties set forth in this Section 3.5 for purposes of determining his, her or
its suitability as an investor in Purchaser Capital Stock and for purposes of
confirming the availability of an exemption from the registration requirements
of the Act.
34
3.6 ACKNOWLEDGMENT. Purchaser acknowledges and agrees that (i)
the representations of the Signing Stockholders in this Section 3 are several
and not joint, and (ii) nothing in Section 3.5 shall modify or limit any
representation or warranty of Purchaser or Merger Sub.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER AND MERGER SUB
Purchaser and Merger Sub jointly and severally represent and warrant, to
and for the benefit of Xxxxx and the Signing Stockholders, as follows:
4.1 DUE ORGANIZATION.
(a) Purchaser is a limited liability corporation ("Besloten
Vennootschap met beperkte aansprakelijkheid") duly organized and validly
existing under the laws of the Netherlands and has all necessary corporate power
and authority:
(i) to conduct its business in the manner in which its
business is currently being conducted;
(ii) to own and use its assets in the manner in which its
assets are currently owned and used; and
(iii) to perform its obligations under all Purchaser
Contracts except the Purchaser Excluded Contracts.
(b) Each of the Purchaser Entities other than Purchaser is a
corporation or organization duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization as listed on
Part 4.3(e) of the Purchaser Disclosure Schedule, and has all necessary power
and authority:
(i) to conduct its business in the manner in which its
business is currently being conducted;
(ii) to own and use its assets in the manner in which its
assets are currently owned and used; and
(iii) to perform its obligations under all Purchaser
Contracts to which it is a party,
in each case except where failure to be so organized, existing and in good
standing or to have such power and authority would not reasonably be expected to
have a Purchaser Material Adverse Effect.
(c) The Purchaser Entities are each qualified to do business as
foreign corporations, and are in good standing, under the laws of all
jurisdictions where the nature of their business requires such qualification,
except where the failure to be so qualified would not reasonably be expected to
have a Purchaser Material Adverse Effect.
35
(d) Purchaser and its business are duly registered under number
39039113 with the Commercial Register for Flevoland, and the extract regarding
Purchaser included in Part 4.1 of the Purchaser Disclosure Schedule is true and
correct in all respects.
(e) None of the Purchaser Entities nor any of their
stockholders has approved, or commenced any proceeding or made any election
contemplating, the dissolution or liquidation of any of the Purchaser Entities
or the winding up or cessation of the business or affairs of any Purchaser
Entity.
(f) The Purchaser is not and has not been party to any merger
procedure (FUSIE) as described in Article 2:309 of the Dutch Civil Code (the
"CC").
(g) Without limiting the generality of Section 4.1(e), no
resolution, decision, order or petition to dissolve or liquidate Purchaser has
been issued or adopted, no petition for the bankruptcy (FAILLISSEMENT) or
suspension of payments (SURSEANCE VAN BETALING) of Purchaser has been filed, no
receiver (CURATOR or BEWINDVOERDER) has been appointed over Purchaser or any of
its assets and no attachment (BESLAG) has been made of any of the assets of
Purchaser.
4.2 ARTICLES OF ASSOCIATION; RECORDS.
(a) Purchaser has delivered, or identified and made available,
to Xxxxx accurate and complete copies of:
(i) the articles of association of Purchaser, as
presently in force;
(ii) the shareholders' register of Purchaser; and
(iii) the minutes and other records of the meetings and
other proceedings (including any actions taken by written consent or otherwise
without a meeting) of the shareholders of Purchaser, the Supervisory Board of
Purchaser and the Managing Board of Purchaser.
There have been no meetings or other proceedings of the shareholders of
Purchaser, the Supervisory Board of Purchaser or the Managing Board of
Purchaser, or any committee of the Supervisory Board of Purchaser or the
Managing Board of Purchaser, that are not fully reflected in such minutes or
other records.
(b) There are no existing material violations of any of the
provisions of Purchaser's articles of association or of any resolution adopted
by Purchaser's shareholders or Supervisory Board or Managing Board. To the
Knowledge of Purchaser, there are no existing violations of any material
provisions of the articles of incorporation, bylaws or similar organizational
documents of the other Purchaser Entities; and no event has occurred, and no
condition or circumstance exists, that would reasonably be expected to (with or
without notice or lapse of time) constitute or result directly or indirectly in
such a material violation.
(c) The books of account, shareholders register, minute books
and other records of Purchaser and Merger Sub are accurate, up-to-date and
complete in all material respects. All of the records of Purchaser and Merger
Sub are in the actual possession and direct
36
control of Purchaser or its counsel. To the Knowledge of Purchaser and Merger
Sub, Purchaser and Merger Sub have in place an adequate and appropriate
system of internal controls.
(d) Purchaser has delivered, or identified and made available,
to Xxxxx accurate and complete copies of:
(i) the articles of incorporation of Merger Sub, as
presently in force;
(ii) the shareholders' register of Merger Sub; and
(iii) the minutes and other records of the meetings and
other proceedings (including any actions taken by written consent or otherwise
without a meeting) of the shareholders of Merger Sub and the Board of Directors
of Merger Sub.
There have been no meetings or other proceedings of the shareholders of Merger
Sub, or the Board of Directors of Merger Sub, or any committee of the Board of
Directors of Merger Sub, that are not fully reflected in such minutes or other
records.
(e) There are no existing material violations of any of the
provisions of Merger Sub's articles of incorporation or of any resolution
adopted by Merger Sub's shareholders or Board.
(f) No resolution to amend the Articles of Association of
Purchaser has been adopted.
(g) The shareholders' register of Purchaser referenced in Part
4.3(a) of the Purchaser Disclosure Schedule is accurate, up-to-date and complete
in all material respects.
4.3 CAPITALIZATION, ETC.
(a) The authorized capital stock of Purchaser consists of
23,500,000 common shares of Purchaser Capital Stock and 1,500,000 preference
shares of capital stock, each having a par value of NLG 0.96 per share, of which
in accordance with GAAP and applicable SEC rules and regulations 8,800,385
common shares are issued and outstanding and held of record as set forth in Part
4.3(a) of the Purchaser Disclosure Schedule. No preference shares of Purchaser
are issued or outstanding. Purchaser has 4,976 shares of treasury stock. The
authorized capital stock of Merger Sub consists of 25,000 shares of Common
Stock, $1.00 par value, of which 100 shares are issued and outstanding and held
of record by Purchaser.
(b) Except as set forth in Part 4.3(b) of the Purchaser
Disclosure Schedule, there is no:
(i) outstanding subscription, option, call, warrant or
right (whether or not currently exercisable) to acquire from any Purchaser
Entity any shares of the capital stock or other securities of any Purchaser
Entity or Merger Sub;
37
(ii) outstanding security, instrument or obligation that
is or may become convertible into or exchangeable for any shares of the capital
stock or other securities of any Purchaser Entity or Merger Sub;
(iii) Contract under which any Purchaser Entity is or may
become obligated to sell or otherwise issue or purchase any shares of its
capital stock or any other securities; or
(iv) condition or circumstance that would reasonably be
expected to directly or indirectly give rise to or provide a basis for the
assertion of a valid claim by any Person to the effect that such Person is
entitled to acquire or receive any shares of capital stock or other securities
of any Purchaser Entity.
(c) All of the issued and outstanding shares of Purchaser
Capital Stock and Merger Sub capital stock (i) have been duly authorized and
validly issued, (ii) are fully paid and non-assessable and (iii) have been
issued in compliance in all material respects with all applicable securities
laws and other applicable Legal Requirements. Except as set forth in Part
4.3(c) of the Purchaser Disclosure Schedule, none of such shares is, and none
of the shares of Purchaser Capital Stock to be issued to the Stockholders in
the Merger shall be, subject to any repurchase option or restriction on
transfer imposed by Purchaser or any Legal Requirement (other than
restrictions on transfer imposed by virtue of (i) applicable Netherlands,
U.S. federal and state securities laws summarized in the Disclosure Document
or (ii) Purchaser's Articles of Association).
(d) Except as set forth in Part 4.3(d) of the Purchaser
Disclosure Schedule, there are no outstanding put rights, preemptive rights,
registration rights or voting agreements with respect to the issued and
outstanding shares of Purchaser Capital Stock or any other shares of capital
stock of Purchaser or Merger Sub.
(e) Except as set forth in Part 4.3(e) of the Purchaser
Disclosure Schedule, Purchaser does not own, beneficially or otherwise, any
shares or other securities of, or any direct or indirect interest of any
nature in, any Entity, other than passive investments in marketable
securities or other investment-grade securities. With the exception of the
outstanding capital stock of Purchaser, (i) all of the outstanding capital
stock of each Purchaser Entity is owned of record and beneficially by one or
more of the Purchaser Entities, free and clear of all Encumbrances, (ii)
there are no outstanding put rights, preemptive rights, registration rights
or voting agreements with respect to any shares of capital stock of any of
the Purchaser Entities or any shares of capital stock that any Purchaser
Entity is committed to issue, and (iii) all shares of capital stock of all of
the other Purchaser Entities have been authorized and validly issued, fully
paid and nonassessable.
(f) No depositary receipts (CERTIFICATEN) have been issued with
respect to any shares of Purchaser Common Stock.
(g) No one, with the exception of the shareholders of Purchaser
listed in Part 4.3(a) of the Disclosure Schedule, in their respective capacities
as such shareholders, has
38
any right to distributions arising out of the profit, reserves and/or
liquidation balance of Purchaser.
4.4 FINANCIAL STATEMENTS.
(a) Part 4.4 of the Purchaser Disclosure Schedule sets forth
the following financial statements and notes thereto (collectively, the
"Purchaser Financial Statements"):
(i) the audited consolidated balance sheets of the
Purchaser Entities as of May 31, 1996 and 1997, and the related audited
consolidated statements of income and shareholders' equity and cash flows of the
Purchaser Entities for each of the years in the two-year period ended May 31,
1997 together with the notes thereto and the report of KPMG Peat Marwick LLP
relating thereto;
(ii) the unaudited consolidated balance sheet of the
Purchaser Entities as of February 28, 1998 (the "Purchaser Unaudited Interim
Balance Sheet"), and the related unaudited consolidated statements of income and
shareholders' equity and cash flows of the Purchaser Entities for the nine
months then ended; and
(iii) the unaudited consolidated balance sheet of the
Purchaser Entities as of March 31, 1998, and the related unaudited consolidated
statements of income and shareholders' equity of the Purchasers Entities for the
ten months then ended.
(b) All of the Purchaser Financial Statements present fairly,
in all material respects, the financial position of the Purchaser Entities as of
the date of said balance sheets and the results of operations and, as
applicable, cash flows of the Purchaser Entities for the periods covered by said
statements of operations and, as applicable, cash flows, in accordance with GAAP
consistently applied, except as otherwise disclosed therein or in Part 4.4 of
the Purchaser Disclosure Schedule and except that the financial statements
referred to in Sections 4.4(a)(ii) and 4.4(a)(iii) do not contain footnotes and
are subject to year-end adjustments, which adjustments will not be material
either individually or in the aggregate.
4.5 ABSENCE OF CHANGES. Except as set forth in Part 4.5 of the
Purchaser Disclosure Schedule, since February 28, 1998:
(a) there has not been any event that had a Purchaser Material
Adverse Effect and, to the Knowledge of Purchaser or Merger Sub, no event has
occurred that will, or would reasonably be expected to, have a Purchaser
Material Adverse Effect;
(b) there has not been any loss, damage or destruction to any
of the Purchaser Entities' assets that exceeded $180,000 in the aggregate
(whether or not covered by insurance);
(c) neither Purchaser nor Merger Sub has declared, accrued, set
aside or paid any dividend or made any other distribution in respect of any
shares of capital stock, or has repurchased, redeemed or otherwise reacquired
any shares of capital stock or other securities;
(d) none of the Purchaser Entities has sold, issued or
authorized the issuance of (i) any capital stock or other security, (ii) any
option, call, warrant or right to acquire, or
39
otherwise relating to, any capital stock or any other security or (iii) any
instrument convertible into or exchangeable for any capital stock or other
security;
(e) there has been no amendment to Purchaser's articles of
association or the articles of incorporation or similar governing document of
any of the other Purchaser Entities, and none of the Purchaser Entities has
effected or been a party to any Acquisition Transaction, recapitalization,
reclassification of shares, stock split, reverse stock split or similar
transaction;
(f) none of the Purchaser Entities has formed any subsidiary or
acquired any equity interest or other interest in any other Entity, other than a
Purchaser Entity listed in Part 4.3(e) of the Purchaser Disclosure Schedule;
(g) none of the Purchaser Entities has made any capital
expenditure in excess of $180,000 which is not reflected on the Purchaser
Unaudited Interim Balance Sheet in accordance with GAAP, except for capital
expenditures made since February 28, 1998 consistent with the Purchaser
Entities' past practices as reflected in the financial statements referred to in
Section 4.4(a)(i);
(h) none of the Purchaser Entities has (i) entered into or
permitted any material amount of the assets owned or used by it to become bound
by any Purchaser Contract outside the Ordinary Course of Business or (ii)
outside the Ordinary Course of Business materially and adversely amended or
prematurely terminated, or waived any material right or remedy under, any
material Contract to which it is or was a party or under which it has or had any
rights or obligations;
(i) none of the Purchaser Entities has (i) acquired, leased or
licensed any material right or other asset from any other Person (other than
rights or other assets acquired, leased or licensed by the Purchaser Entities
from other Persons in the Ordinary Course of Business), (ii) sold or otherwise
disposed of, or leased or licensed, any material right or other asset to any
other Person (other than rights or other assets disposed of or leased or
licensed by the Purchaser Entities to other Persons in the Ordinary Course of
Business), or (iii) waived or relinquished any material right (other than rights
waived or relinquished by the Purchaser Entities in the Ordinary Course of
Business);
(j) none of the Purchaser Entities has written off as
uncollectible, or established any extraordinary reserve with respect to, any
account receivable or other indebtedness in excess of $180,000 in the aggregate;
(k) none of the Purchaser Entities has made any pledge of any
of its assets or otherwise permitted any of its assets to become subject to any
material Encumbrance, except for pledges of assets made in the Ordinary Course
of Business and Tax liens and other similar governmental liens or impositions
securing obligations not past due;
(l) none of the Purchaser Entities has (i) lent money to any
Person or (ii) incurred or guaranteed any indebtedness for borrowed money in
excess of $180,000 in the aggregate;
40
(m) none of the Purchaser Entities has (i) established, adopted
or amended any Employee Benefit Plan or (ii) made any profit-sharing or similar
payment to any of its directors, officers or employees;
(n) Purchaser has not changed any of its methods of accounting
or accounting practices in any material respect or the application of such
methods or practices to any other Purchaser Entity;
(o) none of the Purchaser Entities has made any material Tax
election outside the Ordinary Course of Business;
(p) none of the Purchaser Entities has commenced or settled any
Proceeding;
(q) none of the Purchaser Entities has entered into any
transaction or taken any other action outside the Ordinary Course of Business
involving amounts in excess of $72,000; and
(r) none of the Purchaser Entities has agreed or committed to
take any of the actions referred to in clauses "(c)" through "(q)" above.
4.6 TITLE TO ASSETS. Except as set forth in Part 4.6 of the
Purchaser Disclosure Schedule, each Purchaser Entity owns, and has good and
valid title to, all assets purported to be owned by such Purchaser Entity,
including:
(a) all assets reflected on the Purchaser Unaudited Interim
Balance Sheet (except for assets sold or consumed by the Purchaser Entities
since February 28, 1998 in the Ordinary Course of Business);
(b) all assets acquired by the Purchaser Entities since
February 28, 1998 (except for assets sold or consumed by the Purchaser Entities
since February 28, 1998 in the Ordinary Course of Business); and
(c) all of the rights of the Purchaser Entities under the
Purchaser Contracts.
Except as set forth in Part 4.6 of the Purchaser Disclosure Schedule or pursuant
to security interests granted by the Purchaser Entities to secure indebtedness
reflected on the Purchaser Financial Statements, all of said assets are owned by
the Purchaser Entities free and clear of any Encumbrances in excess of $180,000
in the aggregate, except capital leases.
4.7 RECEIVABLES. All existing accounts receivable of the
respective Purchaser Entities (including those accounts receivable reflected
on the Purchaser Unaudited Interim Balance Sheet that have not yet been
collected and those accounts receivable that have arisen since February 28,
1998 and have not yet been collected) (i) represent valid obligations of
customers of the respective Purchaser Entities arising from bona fide
transactions entered into in the Ordinary Course of Business and (ii) to the
Knowledge of Purchaser, will be collected no later than 90 days after the
respective date on which each such receivable is due (without any material
counterclaim or setoff), net of receivables reserves reflected on the
Purchaser Unaudited Interim Balance Sheet.
41
4.8 INVENTORY. Except as set forth in Part 4.8 of the Purchaser
Disclosure Schedule, to the Knowledge of Purchaser, net of any reserves or
allowances reflected on the Purchaser Unaudited Interim Balance Sheet, all of
the existing inventory of the Purchaser Entities (including all inventory
that is reflected on the Purchaser Unaudited Interim Balance Sheet and that
has not been disposed of by the Purchaser Entities since February 28, 1998 in
the Ordinary Course of Business):
(a) is of such quality and quantity as to be usable and
saleable by the Purchaser Entities in the Ordinary Course of Business;
(b) has been valued for accounting purposes at the lower of
cost or market value; and
(c) is free of any material defect or deficiency except for
inventory as to which the Purchaser Entities are entitled to receive full
reimbursement or replacement from the supplier of such inventory.
Except as expressly stated therein, Part 4.8 of the Purchaser Disclosure
Schedule does not include any inventory of principals from whom any of the
Purchaser Entities has received any written notice or, to the Knowledge of
Purchaser, any oral communication indicating that such principal is
considering termination of, or intends to terminate, its relationship with
such Purchaser Entity, except inventory as to which such Purchaser Entity has
a right of return at a price at least equal to the gross carrying value of
such inventory as reflected on the Purchaser Unaudited Interim Balance Sheet.
4.9 PROPRIETARY ASSETS.
(a) Except as set forth in Part 4.9(a) of the Purchaser
Disclosure Schedule, there is no material Proprietary Asset that is used in
connection with the Purchaser Entities' business (the "Purchaser Proprietary
Assets") that is not owned by or licensed to any of the Purchaser Entities.
(b) To the Knowledge of Purchaser and Merger Sub, none of
the material Purchaser Proprietary Assets infringes or conflicts with any
Proprietary Asset owned or used by any other Person. Except as set forth in
Part 4.9(b) of the Purchaser Disclosure Schedule, to the Knowledge of
Purchaser and Merger Sub, none of the Purchaser Entities is infringing,
misappropriating or making any unlawful use of, and none of the Purchaser
Entities has received any notice or other communication of any actual,
alleged, possible or potential infringement, misappropriation or unlawful use
of, any Proprietary Asset owned or used by any other Person. To the Knowledge
of Purchaser and Merger Sub, except as set forth in Part 4.9(b) of the
Purchaser Disclosure Schedule, no other Person is infringing,
misappropriating or making any unlawful use of, and no Proprietary Asset
owned or used by any other Person infringes or conflicts with, any Purchaser
Proprietary Asset.
(c) Except as set forth in Part 4.9(c) of the Purchaser
Disclosure Schedule, (i) none of the Purchaser Entities has licensed any of the
Purchaser Proprietary Assets to any Person on an exclusive basis and (ii) none
of the Purchaser Entities has entered into any covenant not to
42
compete or Contract limiting its ability to exploit fully any of the
Purchaser Proprietary Assets or to transact business in any market or
geographical area or with any Person.
4.10 CONTRACTS.
(a) Part 4.10 of the Purchaser Disclosure Schedule
identifies and provides an accurate and complete list of all Purchaser
Contracts except the Purchaser Excluded Contracts, including all amendments
thereto.
(b) Each Purchaser Contract required to be listed pursuant
to Section 4.10(a) is valid and in full force and effect, and to the
Knowledge of Purchaser and Merger Sub, is enforceable by the Purchaser Entity
which is a party to such Contract in accordance with its terms, subject to
(i) laws of general application relating to bankruptcy, insolvency and the
relief of debtors and (ii) rules of law governing specific performance,
injunctive relief and other equitable remedies.
(c) Except as set forth in Part 4.10(c) of the Purchaser
Disclosure Schedule:
(i) to the Knowledge of Purchaser and Merger Sub, no
Person is in violation or Breach of in any material respect of, or has declared
or committed any material existing default under, any Purchaser Contract except
any Purchaser Excluded Contract;
(ii) to the Knowledge of Purchaser and Merger Sub, no
event has occurred, and no circumstance or condition exists, that will (with or
without notice or lapse of time) (A) result in a material violation or other
material Breach of any of the provisions of any Purchaser Contract except any
Purchaser Excluded Contract, (B) give any Person the right to declare a material
default or exercise any material remedy under any Purchaser Contract except any
Purchaser Excluded Contract, (C) give any Person the right to accelerate the
maturity or performance of any Purchaser Contract except any Purchaser Excluded
Contract, or (D) give any Person the right to cancel, terminate or modify any
Purchaser Contract except any Purchaser Excluded Contract;
(iii) none of the Purchaser Entities has received any
written notice or, to the Knowledge of Purchaser or Merger Sub, any oral
communication regarding any actual, alleged, possible or potential violation or
Breach of, or default under, any Purchaser Contract except any Purchaser
Excluded Contract that has not been cured; and
(iv) none of the Purchaser Entities has waived any of its
rights under any Purchaser Contract except under any Purchaser Excluded
Contract.
(d) Except as set forth in Part 4.10(d) of the Purchaser
Disclosure Schedule:
(i) none of the Purchaser Entities is liable on any
guaranty or has otherwise agreed to cause, insure or become liable for, or
pledged any of its assets to secure, the performance or payment of any
outstanding obligation or other Liability of any other Person, including without
limitation declarations referred to in Article 403, section 1, sub f, of the CC;
and
43
(ii) none of the Purchaser Entities is a party to or
bound by (A) any joint venture agreement, partnership agreement, profit-sharing
agreement, cost-sharing agreement, loss-sharing agreement or similar Contract or
(B) any Contract that creates or grants to any Person, or provides for the
creation or grant of, any stock appreciation right, phantom stock right or
similar right or interest.
(e) To the Knowledge of Purchaser and Merger Sub, the
performance of the Purchaser Contracts in accordance with their terms will not
result in any violation of or failure to comply with any material Legal
Requirement. Without limiting the generality of the foregoing, to the Knowledge
of Purchaser, none of the Purchaser Contracts required to be made available to
Xxxxx pursuant to Section 4.10(a) is in violation of any national or European
competition law.
(f) No Person is renegotiating, or has the right to
renegotiate, any amount paid or payable to any of the Purchaser Entities under
any Purchaser Contract or any other term or provision of any Purchaser Contract,
except in each case any Purchaser Excluded Contract.
4.11 LIABILITIES; MAJOR SUPPLIERS.
(a) Except as set forth in Part 4.11(a) of the Purchaser
Disclosure Schedule, or elsewhere in the Purchaser Disclosure Schedule, to the
Knowledge of Purchaser, none of the Purchaser Entities have any material
Liabilities, except for:
(i) Liabilities identified as such in the "liabilities"
column of the Purchaser Unaudited Interim Balance Sheet;
(ii) accounts payable (of the type required to be
reflected as liabilities in the "liabilities" section of a balance sheet
prepared in accordance with GAAP) or accrued salaries or other Liabilities
that have been incurred by the Purchaser Entities in the Ordinary Course of
Business since February 28, 1998; and
(iii) the Purchaser Entities' obligations under the
Contracts required to be listed pursuant to Section 4.10(a) and under the
Purchaser Excluded Contracts.
(b) Part 4.11(b) of the Purchaser Disclosure Schedule provides
a breakdown that is accurate and complete in all material respects of the
Purchaser Entities' indebtedness for borrowed money as of February 28, 1998.
4.12 COMPLIANCE WITH LEGAL REQUIREMENTS. Except as set forth in
Part 4.12 of the Purchaser Disclosure Schedule:
(a) to the Knowledge of Purchaser and Merger Sub, each of the
Purchaser Entities is, and has at all times since June 1, 1995 been, in full
compliance with each Legal Requirement that is or was applicable to it or to the
conduct of its business or the ownership or use of any of its assets, except for
failures to be in compliance that would not reasonably be expected to have a
Purchaser Material Adverse Effect;
(b) to the Knowledge of Purchaser and Merger Sub, no event has
occurred, and no condition or circumstance exists, that would reasonably be
expected to (with or without
44
notice or lapse of time) constitute or result directly or indirectly in a
violation by any of the Purchaser Entities of, or a failure on the part of
any of the Purchaser Entities to comply with, any Legal Requirement, except
for violations or noncompliance that would not reasonably be expected to have
a Purchaser Material Adverse Effect; and
(c) none of the Purchaser Entities has received at any time
since June 1, 1995 any written notice or, to the Knowledge of Purchaser and
Merger Sub, any oral communication from any Governmental Body or any other
Person regarding (i) any actual, alleged, possible or potential violation of, or
failure to comply with, any material Legal Requirement, or (ii) any actual,
alleged, possible or potential obligation on the part of any of the Purchaser
Entities to undertake, or to bear all or any portion of the cost of, any cleanup
or any remedial, corrective or response action of any nature.
4.13 GOVERNMENTAL AUTHORIZATIONS. Except as set forth in Part
4.13 of the Purchaser Disclosure Schedule:
(a) each of the Purchaser Entities and its employees are, and
have at all times since June 1, 1995 been, in compliance with all of the terms
and requirements of each material Governmental Authorization of any of the
Purchaser Entities, except for any noncompliance that would not reasonably be
expected to have a Purchaser Material Adverse Effect;
(b) no event has occurred, and no condition or circumstance
exists, that would reasonably be expected to (with or without notice or lapse of
time) (A) constitute or result directly or indirectly in a violation of or a
failure to comply with any term or requirement of any material Governmental
Authorization of any of the Purchaser Entities, except for violations or
noncompliance that would not reasonably be expected to have a Purchaser Material
Adverse Effect or (B) result directly or indirectly in the revocation,
withdrawal, suspension, cancellation, termination or modification of any such
Governmental Authorization except where such event would not reasonably be
expected to have a Purchaser Material Adverse Effect; and
(c) Since January 1, 1996, none of the Purchaser Entities has
ever received, and, to the Knowledge of Purchaser and Merger Sub, no employee of
any of the Purchaser Entities has ever received, any written notice or, to the
Knowledge of Purchaser and Merger Sub, any oral communication from any
Governmental Body or any other Person regarding (A) any actual, alleged,
possible or potential violation of or failure to comply with any term or
requirement of any material Governmental Authorization by any of the Purchaser
Entities that has not been cured or (B) any actual, proposed, possible or
potential revocation, withdrawal, suspension, cancellation, termination or
modification of any material Governmental Authorization of any of the Purchaser
Entities that has not been resolved.
4.14 TAX MATTERS.
(a) The Purchaser Financial Statements fully accrue all actual
and contingent liabilities of the Purchaser Entities on a consolidated basis for
Taxes with respect to all periods through the dates thereof in accordance with
GAAP.
45
(b) Except as set forth in Part 4.14(b) of the Purchaser
Disclosure Schedule, no claim or other Proceeding is pending or has been
threatened against or with respect to any of the Purchaser Entities in respect
of any Tax.
(c) Each material Tax required to have been paid by any of the
Purchaser Entities (whether pursuant to any Tax Return or otherwise) has been
duly paid in full or on a timely basis. Any Tax required to have been withheld
or collected by any of the Purchaser Entities, including with respect to
employees, has been duly withheld and collected; and (to the extent required)
each such Tax has been paid to the appropriate Governmental Body.
(d) All Tax Returns required to be filed by or on behalf of
any of the Purchaser Entities with any Governmental Body with respect to any
taxable period ending on or before the Closing Date ("Purchaser Returns") and
required to be filed on or prior to the Closing Date: (i) have been or will
be filed when due, and (ii) have been, or will be when filed, accurately and
completely prepared in compliance in all material respects with all
applicable Legal Requirements. All amounts shown on the Purchaser Returns to
be due on or before the Closing Date, and all amounts otherwise payable in
connection with the Purchaser Returns due to be filed on or before the
Closing Date, have been or will be paid on or before the Closing Date.
Purchaser has delivered, or identified and made available, to Xxxxx accurate
and complete copies of all Purchaser Returns filed since July 31, 1994.
(e) Except as set forth in Part 4.14(e) of the Purchaser
Disclosure Schedule, no Purchaser Return relating to income Taxes that has been
filed with respect to any period ended on or after July 31, 1992 has been or is
currently being examined and audited by any Governmental Bodies. Except as set
forth in Part 4.14(e) of the Purchaser Disclosure Schedule, no extension or
waiver of the limitation period applicable to any of the Purchaser Returns has
been granted (by Purchaser or any other Person), and no such extension or waiver
has been requested from any Purchaser Entity.
(f) There are no unsatisfied material Liabilities for Taxes
(including liabilities for interest, additions to tax and penalties thereon and
related expenses) with respect to any notice of deficiency or similar document
received by any Purchaser Entity.
(g) Purchaser is a corporation for U.S. tax purposes.
(h) At the time of the Merger, the tests set forth in the
United States Treasury Regulation Section 1.367(a)-3(c)(3), which are
collectively referred to therein as the "active trade or business test," will be
satisfied with respect to the Merger and the transfers described in this
Agreement as effects of the Merger.
(i) Purchaser now owns and holds, and immediately before the
Merger will own and hold, all of the issued and outstanding shares of the
capital stock of Merger Sub.
4.15 BENEFIT PLANS; ERISA.
(a) No Purchaser Entity has any Liability with respect to any
Purchaser Plan, except as reflected in the Purchaser Financial Statements. Part
4.15(a) of the Purchaser
46
Disclosure Schedule identifies all Purchaser Plans under which any employee
of any Purchaser Entity in the United States is entitled to receive benefits.
(b) No Purchaser Plan:
(i) provides or provided any benefit guaranteed by the
Pension Benefit Guaranty Corporation or similar Governmental Body of the
jurisdiction of any Purchaser Entity;
(ii) is or was a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA; or
(iii) is or was subject to the minimum funding standards
of Section 412 of the Code or Section 302 of ERISA or similar Governmental Body
of the jurisdiction of any Purchaser Entity.
There is no Person that (by reason of common control or otherwise) is or has at
any time been treated together with a Purchaser Entity as a single employer
within the meaning of Section 414 of the Code or similar Governmental Body of
the jurisdiction of any Purchaser Entity.
(c) Purchaser has delivered, or identified and made available,
to Xxxxx, with respect to each Purchaser Current Benefit Plan under which any
employee of any Purchaser Entity in the United States is entitled to receive
benefits:
(i) an accurate and complete copy of such Purchaser Plan
and all amendments thereto (including any amendment that is scheduled to take
effect in the future);
(ii) an accurate and complete copy of each material
Contract (including any trust agreement, funding agreement, service provider
agreement, insurance agreement, investment management agreement or recordkeeping
agreement) relating to such Purchaser Plan;
(iii) an accurate and complete copy of any material
description, summary, notification, report or other document that has been
furnished to any employee of any Purchaser Entity in the United States with
respect to such Purchaser Plan;
(iv) an accurate and complete copy of any material form,
report, registration statement or other document that has been filed with or
submitted to any Governmental Body with respect to such Purchaser Plan; and
(v) an accurate and complete copy of any determination
letter, IRS or Department of Labor audit or other material document that has
been issued by, or that has been received by Purchaser from, any Governmental
Body with respect to such Purchaser Plan.
(d) To the Knowledge of Purchaser, Merger Sub and the
fiduciaries and Representatives of Purchaser, each Purchaser Current Benefit
Plan is being operated and administered in compliance in all material respects
with the provisions thereof, and each Purchaser Plan has at all times been
operated and administered in compliance in all material
47
respects with the provisions thereof. Each contribution or other payment
that is required to have been accrued or made under or with respect to any
Purchaser Plan has been duly accrued and made by a Purchaser Entity on a
timely basis.
(e) To the Knowledge of Purchaser, Merger Sub and the
fiduciaries and Representatives of Purchaser, each Purchaser Current Benefit
Plan complies and is being operated and administered in compliance in all
material respects with, and each Purchaser Plan has at all times complied and
been operated and administered in compliance in all material respects with,
all applicable reporting, disclosure and other requirements of ERISA and the
Code and all other applicable Legal Requirements. Except as reflected in the
Purchaser Disclosure Schedule, no Purchaser Entity has incurred any material
Liability to the Internal Revenue Service or any other Governmental Body with
respect to any Purchaser Plan; and to the Knowledge of Purchaser, Merger Sub
and the fiduciaries and Representatives of Purchaser, no event has occurred,
and no condition or circumstance exists, that would reasonably be expected to
(with or without notice or lapse of time) give rise directly or indirectly to
any such material Liability. To the Knowledge of Purchaser, Merger Sub and
the fiduciaries and Representatives of Purchaser, none of the Purchaser
Entities, nor any Person that is or was an administrator or fiduciary of any
Purchaser Plan (or that acts or has acted as an agent of any of the Purchaser
Entities or any such administrator or fiduciary), has engaged in any
transaction or has otherwise acted or failed to act in a manner that has
subjected or would reasonably be expected to subject any of the Purchaser
Entities to any Liability for Breach of any fiduciary duty or any other duty.
(A) No Metron Employee Benefit Plan currently maintained by any Purchaser
Entity, and no person that is or was an administrator or fiduciary of any
Metron Employee Benefit Plan currently maintained by any Purchaser Entity (or
that acts or has acted as an agent of any such administrator or fiduciary)
and (B) to the Knowledge of Purchaser, no other Purchaser Plan, and no Person
that is or was an administrator or fiduciary of any other Purchaser Plan (or
that acts or has aced as an agent of any such administrator or fiduciary):
(i) has engaged in a "prohibited transaction" within the
meaning of Section 406 of ERISA or Section 4975 of the Code or other applicable
similar Legal Requirements;
(ii) has failed to perform any of the responsibilities or
obligations imposed upon fiduciaries under Title I of ERISA or other applicable
Legal Requirements; or
(iii) has taken any action that (A) may subject such
Purchaser Plan or such Person to any Tax, penalty or Liability relating to any
"prohibited transaction" within the meaning of Section 406 of ERISA or Section
4975 of the Code or (B) may directly or indirectly give rise to or serve as a
basis for the assertion (by any employee or by any other Person) of any claim
under, on behalf of or with respect to such Purchaser Plan.
(f) To the Knowledge of Purchaser and Merger Sub, none of the
Transactions will violate Section 406 of ERISA or Section 4975 of the Code or
other applicable Legal Requirements with respect to any Purchaser Plan.
(g) The Purchaser Entities have not taken any action that (i)
will subject the Xxxxx ESOP, the Trustee, the Investment Manager, Xxxxx or the
ESOP Committee to any Tax,
48
penalty or Liability relating to any "prohibited transaction" or (ii) would
give rise to or serve as a basis for the assertion by any beneficiary of the
Trust or by any other Person of any claim relating to any "prohibited
transaction."
4.16 ENVIRONMENTAL MATTERS.
(a) None of the Purchaser Entities is liable or potentially
liable for any material response cost or natural resource damages under Section
107(a) of CERCLA, or under any other so-called "superfund" or "superlien" law or
similar Legal Requirement, at or with respect to any site.
(b) Each of the Purchaser Entities is and has at all times been
in compliance with all applicable Environmental Laws, except for failures to be
in compliance that would not reasonably be expected to have a Purchaser Material
Adverse Effect. The Purchaser Entities possess all material permits and other
material Governmental Authorizations required under applicable Environmental
Laws, and each of the Purchaser Entities is and has at all times been in
compliance with the terms and requirements of all such Governmental
Authorizations, except for failures to be in compliance that would not
reasonably be expected to have a Purchaser Material Adverse Effect. Except as
set forth in Part 4.16 of the Purchaser Disclosure Schedule, none of the
Purchaser Entities has ever received, and to the Knowledge of Purchaser, no
current or prior owner of any property leased or controlled by any of the
Purchaser Entities has ever received, any written notice or, to the Knowledge of
Purchaser, any oral communication from any Governmental Body or other Person
regarding any actual, alleged, possible or potential material Liability on the
part of Purchaser arising from or relating to the presence, generation,
manufacture, production, transportation, importation, use, treatment,
refinement, processing, handling, storage, discharge, release, emission or
disposal of any Hazardous Material that has not already been paid or resolved.
No Person has ever commenced or threatened to commence any contribution action
or other Proceeding against any of the Purchaser Entities in connection with any
such actual, alleged, possible or potential material Liability; and to the
Knowledge of Purchaser, no event has occurred, and no condition or circumstance
exists, that would reasonably be expected to directly or indirectly give rise
to, or result in any of the Purchaser Entities becoming subject to, any such
material Liability.
(c) Except as set forth in Part 4.16(c) of the Purchaser
Disclosure Schedule, to the Knowledge of Purchaser and Merger Sub, since June 1,
1995 none of the Purchaser Entities has generated, manufactured, produced,
transported, imported, used, treated, refined, processed, handled, stored,
discharged, released or disposed of any Hazardous Material (whether lawfully or
unlawfully). Except as set forth in Part 4.16(c) of the Purchaser Disclosure
Schedule, to the Knowledge of Purchaser, since June 1, 1995 none of the
Purchaser Entities has permitted any Hazardous Material to be generated,
manufactured, produced, used, treated, refined, processed, handled, stored,
discharged, released or disposed of (whether lawfully or unlawfully):
(i) on or beneath the surface of any real property that
is, or that has at any time been, owned by, leased to, controlled by or used by
any of the Purchaser Entities;
(ii) in or into any surface water, groundwater, soil or
air associated with or adjacent to any such real property; or
49
(iii) in or into any well, pit, pond, lagoon, impoundment,
ditch, landfill, building, structure, facility, improvement, installation,
equipment, pipe, pipeline, vehicle or storage container that is or was located
on or beneath the surface of any such real property or that is or has at any
time been owned by, leased to, controlled by or used by any of the Purchaser
Entities.
(d) Except as set forth in Part 4.16 of the Purchaser
Disclosure Schedule, to the Knowledge of Purchaser, all property that is owned
by, leased to, controlled by or used by any of the Purchaser Entities, and all
surface water, groundwater, soil and air associated with or adjacent to such
property:
(i) is free of any Hazardous Material and any harmful
chemical or physical conditions; and
(ii) is free of any environmental contamination of any
nature.
(e) To the Knowledge of Purchaser and Merger Sub, there is no
storage tank that is located on or beneath the surface of any real property
owned by, leased to, controlled by or used by any of the Purchaser Entities.
4.17 INSURANCE.
(a) Each of the Purchaser Entities' insurance policies is valid
and in full force and effect. All of the information contained in the
applications submitted in connection with said policies was (at the times said
applications were submitted) accurate and complete in all material respects, and
all premiums and other amounts due with respect to said policies have been paid
in full on a timely basis except where the failure to pay such premium, on a
timely basis would not reasonably be expected to have a Purchaser Material
Adverse Effect. The nature, scope and dollar amounts of the insurance coverage
provided by said policies are reasonable in the judgment of Purchaser and Merger
Sub to adequately insure the Purchaser Entities in accordance with reasonable
commercial practices.
(b) Except as set forth in Part 4.17(b) of the Purchaser
Disclosure Schedule, (i) there is no pending claim under or based upon any of
the Purchaser Entities' insurance policies; and (ii) to the Knowledge of
Purchaser and Merger Sub, no condition or circumstance exists and no event has
occurred, that would reasonably be expected to (with or without notice or lapse
of time) directly or indirectly give rise to or serve as a basis for any
material claim under any of such policies.
4.18 RELATED PARTY TRANSACTIONS. Except as set forth in
Part 4.18 of the Purchaser Disclosure Schedule or in the Purchaser Financial
Statements and except for claims for employee compensation, benefits and
reimbursement of expenses in the Ordinary Course of Business:
(a) no Related Party of any Purchaser Entity has, and no
Related Party of any Purchaser Entity has at any time since June 1, 1995 had,
any direct or indirect interest of any nature in any material asset used in or
otherwise relating to the business of Purchaser;
50
(b) no Related Party of any Purchaser Entity is, or has at any
time since June 1, 1995 been, indebted to any Purchaser Entity for more than
$180,000;
(c) since June 1, 1995, no Related Party of any Purchaser
Entity has entered into, or has had any direct or indirect financial interest
in, any material Contract, transaction or business dealing of any nature
involving any Purchaser Entity;
(d) no Related Party of any Purchaser Entity is competing, or
has at any time since June 1, 1995 competed, directly or indirectly, with any
Purchaser Entity in any market served by any Purchaser Entity;
(e) no Related Party of any Purchaser Entity has asserted or
threatened to assert any material claim or right against any Purchaser Entity;
and
(f) to the Knowledge of any Purchaser Entity, no event has
occurred, and no condition or circumstance exists, that would reasonably be
expected to (with or without notice or lapse of time) directly or indirectly
give rise to or serve as a basis for any material claim or right in favor of any
Related Party of any Purchaser Entity against any Purchaser Entity.
4.19 CERTAIN PAYMENTS, ETC. None of the Purchaser Entities, nor any
officer, employee or agent of the Purchaser Entities or other Person acting
for or on behalf of any of the Purchaser Entities, has at any time, directly
or indirectly:
(a) used any corporate funds of any of the Purchaser Entities
(i) to make any unlawful political contribution or gift or for any other
unlawful purpose relating to any political activity, (ii) to make any unlawful
payment to any governmental official or employee, or (iii) to establish or
maintain any unlawful or unrecorded fund or account of any nature;
(b) made any payoff, influence payment, bribe, kickback or
unlawful payment to any Person;
(c) made any unlawful payment to any Person, or unlawfully
provided any material favor or anything of material value (whether in the form
of property or services, or in any other form) to any Person, for the purpose of
obtaining or paying for (i) favorable treatment in securing business, or (ii)
any other special concession; or
(d) agreed, committed, offered or attempted to take any of the
actions described in clauses "(a)" through "(c)" above.
4.20 PROCEEDINGS; ORDERS.
(a) Except as set forth in Part 4.20(a) of the Purchaser
Disclosure Schedule, there is no pending Proceeding, and to the Knowledge of
Purchaser or Merger Sub, no Person has threatened since June 1, 1995 to commence
any Proceeding: (i) against any Purchaser Entity or any of the assets owned or
used by any Purchaser Entity or (ii) against any Purchaser Entity that
challenges or that may have the effect of preventing, delaying, making illegal
or otherwise interfering with any of the Transactions. Except as set forth in
Part 4.20(a) of the Purchaser Disclosure Schedule, to the Knowledge of Purchaser
and Merger Sub, no event has occurred, and
51
no material claim, dispute or other condition or circumstance exists, that
would reasonably be expected to give rise to or serve as a basis for the
commencement of any such Proceeding.
(b) Except as set forth in Part 4.20(b) of the Purchaser
Disclosure Schedule, no Proceeding has been commenced against any of the
Purchaser Entities since June 1, 1995.
(c) Purchaser has identified and made available to Xxxxx
accurate and complete copies of all pleadings to which the Purchaser Entities
have access that relate to the Proceedings required to be identified in
Parts 4.20(a) and (b) of the Purchaser Disclosure Schedule.
(d) There is no material Order to which any of the Purchaser
Entities or any of the assets owned or used by any of the Purchaser Entities is
subject.
(e) To the Knowledge of Purchaser and Merger Sub, no officer or
employee of any of the Purchaser Entities is subject to any material Order that
prohibits such officer or employee from engaging in or continuing any conduct,
activity or practice relating to any Purchaser Entity's business.
(f) To the Knowledge of Purchaser and Merger Sub, there is no
proposed Order that, if issued or otherwise put into effect, (i) would
reasonably be expected to have a Purchaser Material Adverse Effect or (ii) would
reasonably be expected to have the effect of preventing, delaying, making
illegal or otherwise interfering with any of the Transactions.
4.21 AUTHORITY; BINDING NATURE OF AGREEMENT.
(a) Each of Purchaser and Merger Sub has the requisite
corporate power and authority to enter into and perform its respective
obligations under each of the Transactional Agreements to which it is or is to
become a party at Closing.
(b) The execution, delivery and performance by each of
Purchaser and Merger Sub of each of the Transactional Agreements to which it is
or is to become a party at Closing have been duly authorized by all necessary
corporate action on the part of the Purchaser Entities.
(c) This Agreement constitutes the legal, valid and binding
obligation of Purchaser and Merger Sub, enforceable against Purchaser and Merger
Sub in accordance with its terms, subject to (i) laws of general application
relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of
law governing specific performance, injunctive relief and other equitable
remedies.
(d) Upon the execution of each of the other Transactional
Agreements at the Closing, each of such other Transactional Agreements to which
Purchaser or Merger Sub becomes a party will constitute the legal, valid and
binding obligation of Purchaser and Merger Sub, as the case may be, and will be
enforceable against Purchaser and Merger Sub, as the case may be, in accordance
with its terms, subject to (i) laws of general application relating to
bankruptcy, insolvency and the relief of debtors, and (ii) rules of law
governing specific performance, injunctive relief and other equitable remedies.
52
(e) The Board of Directors and Shareholders of Merger Sub (by
written consent) unanimously approved the Merger.
4.22 NON-CONTRAVENTION; CONSENTS. Except as set forth in Part
4.22 of the Purchaser Disclosure Schedule, neither the execution and delivery of
any of the Transactional Agreements by Purchaser or Merger Sub, nor the
consummation or performance by Purchaser or Merger Sub of the Merger or any of
the other Transactions, will directly or indirectly (with or without notice or
lapse of time):
(a) contravene, conflict with or result in a violation of
(i) any of the provisions of Purchaser's articles of association; (ii) any of
the provisions of Merger Sub's Articles of Incorporation or Bylaws; (iii) any
resolution adopted by Purchaser's shareholders or Purchaser's Managing Board or
Supervisory Board; or (iv) any resolution adopted by Merger Sub's stockholders
or board of directors;
(b) materially contravene, conflict with or result in a
violation of, or give any Governmental Body or other Person the right to
challenge any of the Transactions or to exercise any remedy or obtain any relief
under, any material Legal Requirement or Order to which any of the Purchaser
Entities or any of the assets owned or used by any of the Purchaser Entities is
subject;
(c) contravene, conflict with or result in a violation of any
of the terms or requirements of, or give any Governmental Body the right to
revoke, withdraw, suspend, cancel, terminate or modify, any material
Governmental Authorization that is held by any of the Purchaser Entities, or any
of their employees that relates to any of the Purchaser Entities' businesses or
to any of the assets owned or used by any of the Purchaser Entities;
(d) contravene, conflict with or result in a violation or
Breach of, or result in a default under, any provision of any Purchaser Contract
except any Purchaser Excluded Contract;
(e) give any Person the right to (i) declare a default or
exercise any remedy under any Purchaser Contract except a Purchaser Excluded
Contract, (ii) accelerate the maturity or performance of any Purchaser Contract
except a Purchaser Excluded Contract or (iii) cancel, terminate or modify any
Purchaser Contract except a Purchaser Excluded Contract; or
(f) result in the imposition or creation of any Encumbrance
upon or with respect to any asset owned or used by any of the Purchaser Entities
that would reasonably be expected to have a Purchaser Material Adverse Effect.
Except as may be required under the HSR Act, a notification to be made to the
Dutch Securities Board (STICHTING TOEZICHT EFFECTENVERKEER) pursuant to
section 3, paragraph 1 of the Act on the Supervision of the Securities Trade
(WET TOEZICHT EFFECTENVERKEER 1995) and article 3 of the Exemption Regulation
(VRIJSTELLINGSREGELING WET TOEZICHT EFFECTENVERKEER 1995), and as may be
required under state securities or "blue sky" laws, none of the Purchaser
Entities was, is or will be required to make any filing with or give any notice
to, or to obtain any Consent from, any Person in connection with its execution
and delivery of any of the Transactional Agreements or the consummation or
performance of any of the Transactions, except for Consents which, if not
obtained, would not reasonably be expected to cause a Purchaser Material Adverse
Effect.
53
Without limiting the generality of the foregoing, no filing, notice or
Consent is required under the WTE (other than the aforementioned notification
to be made to the Dutch Securities Board), the WOR or the Merger Code in
connection with Purchaser's execution and delivery of the Transactional
Agreements or the consummation or performance of any of the Transactions.
4.23 BROKERS. None of the Purchaser Entities has agreed or
become obligated to pay, or taken any action that might result in any Person
claiming to be entitled to receive, any brokerage commission, finder's fee or
similar commission or fee in connection with any of the Transactions.
4.24 ACCOUNTING MATTERS. To the Knowledge of Purchaser and
Merger Sub, neither Purchaser, Merger Sub nor any of its affiliates has taken or
agreed to, or plans to, take any action that would prevent Purchaser from
accounting for the Merger as a "pooling of interests" under APB Opinion No. 16.
4.25 VALID ISSUANCE. The issuance by Purchaser to the
Stockholders of the shares of Purchaser Capital Stock to be issued in the Merger
has been duly authorized by all requisite corporate action on the part of
Purchaser. The Purchaser Capital Stock to be issued in the Merger will, when
issued after the Effective Time in accordance with the provisions of this
Agreement, be validly issued, fully paid and nonassessable and will be issued in
compliance with all applicable legal requirements.
(a) All preemptive rights with respect to such issuance of
shares of Purchaser Capital Stock have been validly excluded or waived.
(b) The offering, issuance and sale of the shares of Purchaser
Capital Stock to be issued by Purchaser complies with all applicable
requirements of the WTE. Without limiting the generality of the foregoing, no
prospectus complying with the requirements of Article 3, paragraph 2, sub b of
the WTE, is required to be made generally available in connection with such
issuance, offer or sale, and all statements required to be submitted to the
supervising authority have been timely submitted.
(c) All formalities of book 2 of the CC in connection with the
issuance of such shares have been duly complied with or will be duly complied
with prior to the Closing.
4.26 EMPLOYEES. All claims arising from former contracts of
employment with any Purchaser Entity have been settled or met. To the Knowledge
of Purchaser and Merger Sub, there is no person previously employed by any
Purchaser Entity who now has or in the future may have a reasonable basis for
contesting a dismissal or notice thereof given to him by any Purchaser Entity.
4.27 STOCK OPTION PLAN.
(a) Purchaser has previously made available to Xxxxx and the
Signing Stockholders a true and correct copy of the "Metron Semiconductors
Europa B.V. Employee Stock Option Plan" (the "Plan"). The Plan is in full
force and effect and constitutes the valid and binding obligation of
Purchaser vis-a-vis any Employee ( as defined in the Plan) who validly enters
into a Stock Option Agreement with Purchaser, enforceable against Purchaser in
54
accordance with its terms, subject to (i) laws of general application
relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules
of law governing specific performance, injunctive relief and other equitable
remedies.
(b) Each grant of an option to employees of Xxxxx to acquire
shares of Purchaser Capital Stock pursuant to the Plan which will be made on or
after Closing as set forth in Section 8.13 has been duly authorized by all
necessary corporate action on the part of Purchaser and each agreement to be
entered into by Purchaser evidencing the grant of such option as provided in
Article 6 of the Plan will when executed and delivered by Purchaser at the
Closing constitute the valid and binding obligation of Purchaser, enforceable
against Purchaser in accordance with its terms subject to (i) laws of general
application relating to bankruptcy, insolvency and the relief of debtors, and
(ii) rules of law governing specific performance, injunctive relief and other
equitable remedies. All preemptive rights with respect to the grant of such
options, and the issuance of shares of Purchaser Capital Stock upon exercise of
such options, have been duly excluded or waived.
(c) Upon exercise of any option referred to in this Section
4.27 in accordance with its terms, and payment to Purchaser of the exercise
price for the shares of Purchaser Capital Stock issuable upon exercise of such
option in accordance with the terms of such option, the shares of Purchaser
Capital Stock issued upon exercise of such option will be validly issued, fully
paid and non-assessable.
4.28 INFORMATION STATEMENT/OFFERING MEMORANDUM. None of the
information supplied or to be supplied by or on behalf of Purchaser or Merger
Sub for inclusion in the Disclosure Document, will, at the time the
Disclosure Document is mailed to the Stockholders of Xxxxx or at the time of
the Xxxxx Stockholders' Meeting, 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, in the light of the
circumstances under which they are made, not misleading.
4.29 PURCHASER OBLIGATIONS UNDER THE XXXXX ESOP. Each share of
Purchaser Capital Stock held by the Trust pursuant to the terms of the Xxxxx
ESOP immediately after Closing has been duly authorized by all necessary
corporate action on the part of Purchaser, and the terms of the Xxxxx ESOP and
Trust constitute the valid and binding obligation of Purchaser, enforceable
against Purchaser in accordance with the terms of the Xxxxx ESOP and Trust.
SECTION 5. CERTAIN COVENANTS
5.1 ACCESS AND INVESTIGATION. At all times during the
Pre-Closing Period:
(a) Xxxxx shall provide Purchaser and its Representatives with
reasonable access, during normal business hours and upon reasonable prior
notice, to Xxxxx'x Representatives, personnel and assets and to information
reasonably requested such as existing books, records, Tax Returns, work papers
and other documents and information relating to Xxxxx;
55
(b) Xxxxx shall provide Purchaser with such copies of existing
books, records, Tax Returns, work papers and other documents and information
relating to Xxxxx as Purchaser may reasonably request in good faith; and
(c) Xxxxx shall compile and provide Purchaser with such
additional financial, operating and other data and information regarding Xxxxx
as Purchaser may reasonably request in good faith. Without limiting the
generality of the foregoing, during the Pre-Closing Period, Xxxxx shall promptly
provide Purchaser with copies of:
(i) all material operating and financial reports
prepared by Xxxxx for its senior management, including (A) copies of the
unaudited monthly balance sheets of Xxxxx and the related unaudited monthly
income statements of operations prepared for Xxxxx senior management and (B)
copies of any sales forecasts, marketing plans, development plans, discount
reports, write-off reports, hiring reports and capital expenditure reports
prepared for Xxxxx senior management;
(ii) any written materials or communications sent by or
on behalf of Xxxxx to its stockholders generally in their capacities as such or
to any of the beneficiaries of the Trust in their capacities as such;
(iii) any material notice, document or other communication
sent by or on behalf of Xxxxx to any party to any Xxxxx Contract or sent to
Xxxxx by any party to any Xxxxx Contract (other than any communication that is
of the type sent in the Ordinary Course of Business);
(iv) any material notice, report or other document filed
with or sent to any Governmental Body in connection with the Merger or any of
the other transactions contemplated by this Agreement; and
(v) any material notice, report or other document
received by Xxxxx from any Governmental Body.
5.2 OPERATION OF BUSINESS. During the Pre-Closing Period,
except (i) as contemplated by this Agreement, (ii) as expressly described in the
Xxxxx Disclosure Schedule, (iii) as required by the Xxxxx ESOP or (iv) with the
express written consent of Purchaser (which consent shall not be unreasonably
withheld):
(a) Xxxxx shall conduct its operations exclusively in the
Ordinary Course of Business and in a substantially similar manner as such
operations have been conducted prior to the date of this Agreement;
(b) Xxxxx shall use its Best Efforts to preserve intact its
current business organization, keeps available the services of its current
officers and employees and maintains its relations and good will with suppliers,
customers, landlords, creditors, licensors, licensees, employees and other
Persons having business relationships with Xxxxx;
(c) Xxxxx shall use its Best Efforts to keep in full force all
insurance policies identified in Part 2.22(a) of the Xxxxx Disclosure Schedule;
56
(d) Xxxxx shall immediately notify Purchaser of any inquiry,
proposal or offer received by Xxxxx, or of which Xxxxx has Knowledge, from any
Person relating to any Acquisition Transaction with respect to Xxxxx;
(e) INTENTIONALLY OMITTED;
(f) Except as may be required by the terms of the Xxxxx ESOP,
Xxxxx shall not (i) declare, accrue, set aside or pay any dividend or make any
other distribution in respect of any shares of its capital stock, or (ii)
repurchase, redeem or otherwise reacquire any shares of its capital stock;
(g) Xxxxx shall not sell or otherwise issue any shares of
capital stock or any other securities;
(h) Xxxxx shall not amend its articles of incorporation or
bylaws, and shall not effect any recapitalization, reclassification of shares,
stock split, reverse stock split or similar transaction;
(i) Xxxxx shall not form any subsidiary or acquire any equity
interest or other interest in any other Entity;
(j) Xxxxx shall not make any capital expenditure (which term
does not include inventory purchases), except for any capital expenditure
that is made in the Ordinary Course of Business and that does not exceed
$25,000 (in addition, once Xxxxx has made aggregate capital expenditures
during the Pre-Closing Period that exceed $100,000, it must seek Purchaser's
consent for any additional capital expenditures in increments of $25,000);
(k) Xxxxx shall not (i) materially and adversely amend any
Xxxxx Contract or (ii) enter into or permit any of the assets owned or used by
Xxxxx to become bound by any Contract, except in each such case for any Xxxxx
Excluded Contract;
(l) Xxxxx shall (i) not lend money to any Person and (ii) use
its Best Efforts not to incur, assume or otherwise become subject to any
Liability, other than in the Ordinary Course of Business;
(m) except for Amendment Number Two to the Xxxxx ESOP and
Amendment Number One to the Trust, Xxxxx shall not (i) amend any Xxxxx Plan,
(ii) establish or adopt any Employee Benefit Plan, or (iii) except as currently
accrued or scheduled to accrue pursuant to arrangements currently in effect, pay
or agree to pay any bonus or make any profit-sharing or similar payment to, or
increase the amount of the wages, salary, commissions, fringe benefits or other
compensation or remuneration payable to, any of its directors, officers or
employees which exceed $10,000 to any director, officer or employee;
(n) Xxxxx shall not (i) change any of its methods of accounting
or accounting practices in any material respect or (ii) take any action that
would preclude Purchaser from accounting for the Merger as a "pooling of
interests" in accordance with APB Opinion No. 16; provided, however, that no
action or matter disclosed in the Xxxxx Disclosure Schedule or
57
required by the Transactional Agreements shall be deemed to constitute a
breach or violation of this covenant;
(o) Xxxxx shall not make any material Tax election outside the
Ordinary Course of Business;
(p) Xxxxx shall not commence any Proceeding outside the
Ordinary Course of Business;
(q) Xxxxx shall not enter into any transaction or take any
other action outside the Ordinary Course of Business;
(r) Xxxxx shall use its Best Efforts not to enter into any
transaction or take any other action that would cause or constitute a material
Breach of any representation or warranty made by Xxxxx in this Agreement; and
(s) Xxxxx shall not agree, commit or offer (in writing or
otherwise) to take any of the actions described in clauses "(f)" through "(r)"
of this Section 5.2.
5.3 NOTIFICATION; UPDATES TO XXXXX DISCLOSURE SCHEDULE.
(a) During the Pre-Closing Period, Xxxxx shall promptly notify
Purchaser in writing of:
(i) the discovery by Xxxxx of any event, condition, fact
or circumstance that occurred or existed on or prior to the date of this
Agreement and that caused or constitutes a material Breach of any representation
or warranty made by Xxxxx or, after execution of the Joinder Agreement, any of
the Signing Stockholders in this Agreement;
(ii) the discovery by Xxxxx of any event, condition, fact
or circumstance that occurs, arises or exists after the date of this Agreement
and that would cause or constitute a material Breach of any representation or
warranty made by Purchaser, Xxxxx or, after execution of the Joinder Agreement,
any of the Signing Stockholders in this Agreement if (A) such representation or
warranty had been made as of the time of the occurrence, existence or discovery
of such event, condition, fact or circumstance (except for representations and
warranties that expressly speak as of a specified date), or (B) such event,
condition, fact or circumstance had occurred, arisen or existed on or prior to
the date of this Agreement;
(iii) the discovery by Xxxxx of any material Breach of any
covenant or obligation of Purchaser, Xxxxx or, after execution of the Joinder
Agreement, any of the Signing Stockholders pursuant to this Agreement; and
(iv) the discovery by Xxxxx of any event, condition, fact
or circumstance that makes the timely satisfaction of any of the conditions set
forth in Section 9 or Section 10 impossible or unlikely.
(b) If any event, condition, fact or circumstance that is
required to be disclosed pursuant to Section 5.3(a) requires any change in the
Xxxxx Disclosure Schedule, or if
58
any such event, condition, fact or circumstance would require such a change
assuming the Xxxxx Disclosure Schedule were dated as of the date of the
occurrence, existence or discovery of such event, condition, fact or
circumstance (except for representations and warranties that expressly speak
as of a specified date), then Xxxxx shall promptly deliver to Purchaser an
update to the Xxxxx Disclosure Schedule specifying such change. No such
update shall be deemed to supplement or amend the Xxxxx Disclosure Schedule
for the purpose of (i) determining the accuracy as of the date of this
Agreement of any of the representations and warranties made by Xxxxx or after
execution of the Joinder Agreement, any of the Signing Stockholders in this
Agreement or (ii) determining whether any of the conditions set forth in
Section 9 has been satisfied.
5.4 NO NEGOTIATION. During the Pre-Closing Period, each of
Xxxxx and each of the Signing Stockholders severally agrees not to directly or
indirectly:
(a) solicit or encourage the initiation of any inquiry,
proposal or offer from any Person (other than Purchaser) relating to any
Acquisition Transaction with respect to Xxxxx; or
(b) participate in any discussions or negotiations with, or
provide any non-public information to, any Person (other than Purchaser)
relating to any Acquisition Transaction with respect to Xxxxx.
5.5 XXXXX STOCKHOLDERS' MEETING. Xxxxx shall, in accordance
with its articles of incorporation and bylaws and the applicable requirements of
the Nevada Revised Statutes, call and hold a special meeting of its stockholders
for the purpose of permitting the stockholders of Xxxxx to consider and to vote
upon the Merger and this Agreement (the "Xxxxx Stockholders' Meeting"). The
Xxxxx Stockholders' Meeting will be held as promptly as practicable and in any
event within forty five (45) days after the date of this Agreement. Xxxxx shall
ensure that the Xxxxx Stockholders' Meeting is called, noticed, convened, held
and conducted in compliance with all applicable Legal Requirements. Xxxxx shall
cause a copy of the Disclosure Document to be delivered to each stockholder of
Xxxxx who is entitled to vote at the Xxxxx Stockholders' Meeting. Xxxxxxx X.
Xxxxxx, C. Xxxxx Xxxxxxxxx and Xxxx X. Xxxxx, Xx. shall cause all shares of the
capital stock of Xxxxx that are owned, of record, by such Persons on the record
date for the Xxxxx Stockholders' Meeting to be voted in favor of the Merger and
this Agreement at such meeting.
SECTION 6. PRE-CLOSING COVENANTS OF SIGNING STOCKHOLDERS
Each Signing Stockholder severally agrees that, during the Pre-Closing
Period:
(a) such Signing Stockholder shall not directly or indirectly
sell or otherwise transfer, or offer, agree or commit (in writing or otherwise)
to sell or otherwise transfer, any of the Shares held by such Signing
Stockholder or any interest in or right relating to any of such Shares unless
required under the Xxxxx ESOP;
(b) such Signing Stockholder shall not permit, offer, agree or
commit (in writing or otherwise) to permit, any of the Shares held by such
Signing Stockholder to become
59
subject, directly or indirectly, to any Encumbrance other than under the
terms of the Xxxxx ESOP or the Encumbrances listed on Part 3.1 of the Signing
Stockholders' Disclosure Schedule;
(c) such Signing Stockholder shall not take any action that
would (i) cause or constitute a Breach of any representation or warranty made by
such Signing Stockholder in this Agreement or in the Signing Stockholder Closing
Certificate or (ii) preclude Purchaser from accounting for the Merger as a
"pooling of interests" under APB Opinion No. 16; provided, however, that no
action or matter disclosed in the Xxxxx Disclosure Schedule or the Signing
Stockholders' Disclosure Schedule or required by the Transactional Agreements
shall be deemed to constitute a breach or violation of this covenant; and
(d) such Signing Stockholder shall not agree, commit or offer
(in writing or otherwise) to take any of the actions described in clauses (a)
through (c) of this Section 6 unless required by the Xxxxx ESOP.
SECTION 7. PRE-CLOSING COVENANTS OF PURCHASER AND MERGER SUB
7.1 ACCESS AND INVESTIGATION. Purchaser and Merger Sub shall
ensure that, at all times during the Pre-Closing Period:
(a) the Purchaser Entities and their Representatives provide
Xxxxx, the Signing Stockholders and their Representatives with reasonable
access, during normal business hours and upon reasonable prior notice, to
Purchaser's and Merger Sub's Representatives, personnel and assets and to
information reasonably requested such as existing books, records, Tax Returns,
work papers and other documents and information relating to the Purchaser
Entities;
(b) Purchaser, Merger Sub and their Representatives provide
Xxxxx with such copies of existing books, records, Tax Returns, work papers and
other documents and information relating to the Purchaser Entities as Xxxxx or
the Signing Stockholders may reasonably request in good faith; and
(c) Purchaser, Merger Sub and their Representatives compile and
provide Xxxxx with such additional financial, operating and other data and
information regarding any of the Purchaser Entities as Xxxxx, the Signing
Stockholders or their respective Representatives may reasonably request in good
faith. Without limiting the generality of the foregoing, during the Pre-Closing
Period, Purchaser and Merger Sub shall promptly provide Xxxxx with copies of any
material notice, report or other document filed with or sent to any Governmental
Body in connection with the Merger or any of the other transactions contemplated
by this Agreement.
7.2 OPERATION OF BUSINESS. Purchaser and Merger Sub shall ensure
that, during the Pre-Closing Period, except (i) as contemplated by this
Agreement, (ii) as expressly described in the Purchaser Disclosure Schedule
or (iii) with the express written consent of Xxxxx, which consent shall not
be unreasonably withheld:
(a) each of the Purchaser Entities conducts its operations
exclusively in the Ordinary Course of Business and in a substantially similar
manner as such operations have been conducted prior to the date of this
Agreement;
60
(b) Purchaser does not (i) declare, accrue, set aside or pay
any dividend or make any other distribution in respect of any shares of its
capital stock, or (ii) repurchase, redeem or otherwise reacquire any shares of
its capital stock;
(c) None of the Purchaser Entities sells or otherwise issues
any shares of capital stock or any other securities of Purchaser, or cooperates
with the issuance of depositary receipts (CERTIFICATEN) for any shares of
capital stock of Purchaser, in each case (other than option grants in the
Ordinary Course of Business) except pursuant to obligations outstanding on the
date of this Agreement as described in Part 4.3(b) of the Purchaser Disclosure
Schedule;
(d) Purchaser does not amend its articles of association,
Merger Sub does not amend its articles of incorporation, and no Purchaser Entity
effects or becomes a party to any Acquisition Transaction, recapitalization,
reclassification of shares, stock split, reverse stock split or similar
transaction;
(e) none of the Purchaser Entities forms any subsidiary or
acquires any equity interest or other interest in any other Entity;
(f) none of the Purchaser Entities makes any capital
expenditure, except for capital expenditures that are made in the Ordinary
Course of Business and that do not exceed $180,000;
(g) none of the Purchaser Entities materially and adversely
amends any Purchaser Contract, or enters into or permits any material amount of
the assets owned or used by it to become bound by any Contract, except in each
case for any Purchaser Excluded Contract;
(h) none of the Purchaser Entities (i) lends money to any
Person or (ii) incurs, assumes or otherwise becomes subject to any Liability,
except for liabilities (of the type required to be reflected in the
"liabilities" section of a balance sheet prepared in accordance with GAAP)
incurred in the Ordinary Course of Business;
(i) none of the Purchaser Entities amends, establishes or
adopts any Employee Benefit Plan, or pays or agrees to pay any bonus or makes
any profit-sharing or similar payment to, or increases the amount of the wages,
salary, commissions, fringe benefits or other compensation or remuneration
payable to, any of its directors, officers or employees other than in the
Ordinary Course of Business;
(j) none of the Purchaser Entities (i) changes any of its
methods of accounting or accounting practices in any material respect or
(ii) takes any action that, to the Knowledge of Purchaser or Merger Sub, would
preclude Purchaser from accounting for the Merger as a "pooling of interests" in
accordance with APB Opinion No. 16;
(k) none of the Purchaser Entities makes any material Tax
election outside the Ordinary Course of Business;
(l) none of the Purchaser Entities enters into any transaction
or takes any other action outside the Ordinary Course of Business;
61
(m) none of the Purchaser Entities enters into any transaction
or takes any other action that would cause or constitute a Breach of any
representation or warranty made by Purchaser in this Agreement;
(n) all of the Purchaser Entities preserve intact their current
business organization, keep available the services of their current officers and
employees and maintain their relations and good will with suppliers, customers,
landlords, creditors, licensors, licensees, employees and other Persons having
business relationships with the Purchaser Entities;
(o) Purchaser shall use its Best Efforts to keep in full force
all insurance policies currently in effect with respect to the Purchaser
Entities or to obtain a comparable replacement policy with respect to any
insurance policy that ceases to be in force; and
(p) none of the Purchaser Entities agrees, commits or offers
(in writing or otherwise) to take any of the actions described in clauses "(b)"
through "(m)" of this Section 7.2.
7.3 NOTIFICATION; UPDATES TO DISCLOSURE SCHEDULE.
(a) During the Pre-Closing Period, Purchaser and Merger Sub
shall promptly notify Xxxxx in writing of:
(i) the discovery by Purchaser or Merger Sub of any
event, condition, fact or circumstance that occurred or existed on or prior to
the date of this Agreement and that caused or constitutes a Breach of any
representation or warranty made by Purchaser, Merger Sub, Xxxxx or any Signing
Stockholder in this Agreement;
(ii) the discovery by Purchaser or Merger Sub of any
event, condition, fact or circumstance that occurs, arises or exists after the
date of this Agreement and that would cause or constitute a Breach of any
representation or warranty made by Xxxxx, any Signing Stockholder Purchaser or
Merger Sub in this Agreement if (A) such representation or warranty had been
made as of the time of the occurrence, existence or discovery of such event,
condition, fact or circumstance (except for representations and warranties that
expressly speak as of a specified date) or (B) such event, condition, fact or
circumstance had occurred, arisen or existed on or prior to the date of this
Agreement;
(iii) the discovery by Purchaser or Merger Sub of any
Breach of any covenant or obligation of Purchaser, Xxxxx any Signing Stockholder
or Merger Sub; and
(iv) the discovery by Purchaser or Merger Sub of any
event, condition, fact or circumstance that makes the timely satisfaction of any
of the conditions set forth in Section 9 or Section 10 impossible or unlikely.
(b) If any event, condition, fact or circumstance that is
required to be disclosed pursuant to Section 7.3(a) requires any change in
the Purchaser Disclosure Schedule, or if any such event, condition, fact or
circumstance would require such a change assuming the Purchaser Disclosure
Schedule were dated as of the date of the occurrence, existence or discovery
of such event, condition, fact or circumstance, then Purchaser and Merger Sub
shall promptly deliver to Xxxxx and the Signing Stockholders an update to the
Purchaser Disclosure
62
Schedule specifying such change. No such update shall be deemed to
supplement or amend the Purchaser Disclosure Schedule for the purpose of (i)
determining the accuracy as of the date of this Agreement of any of the
representations and warranties made by Purchaser or Merger Sub in this
Agreement or (ii) determining whether any of the conditions set forth in
Section 10 has been satisfied.
SECTION 8. ADDITIONAL COVENANTS OF THE PARTIES
8.1 FILING AND CONSENTS. As promptly as practicable after the
execution of this Agreement, each party to this Agreement (a) shall make all
filings (if any) and give all notices (if any) required to be made and given
by such party in connection with the Merger and the other transactions
contemplated by this Agreement, and (b) shall use his, her or its Best
Efforts to obtain each Consent (if any) required to be obtained (pursuant to
any applicable Legal Requirement or Contract, or otherwise) by such party in
connection with the Merger or any of the other transactions contemplated by
this Agreement. Xxxxx, Purchaser and Merger Sub shall promptly deliver to
the other a copy of each such filing made, each such notice given and each
such Consent obtained by the delivering party during the Pre-Closing Period.
8.2 CONFIDENTIALITY. During the Pre-Closing Period, except as
required by law, no press release or public announcement concerning the
Transactions shall be issued, given, made or otherwise disseminated by Xxxxx
or any of the Signing Stockholders without the approval of Purchaser, and no
press release or public announcement concerning the Transactions shall be
issued, given, made or otherwise disseminated by Purchaser or Merger Sub
without the approval of Xxxxx. The confidentiality agreements between Xxxxx
and Purchaser, dated as of February 27, 1997 (the "Confidentiality
Agreements"), shall continue in full force and effect. During the
Pre-Closing Period, if a party is required by law to make any disclosure
regarding the Transactions, such party shall advise the other parties, at
least five business days before making such disclosure, of the nature and
content of the intended disclosure.
8.3 CONTINUITY OF INTEREST CERTIFICATES. Each Signing
Stockholder shall execute and deliver to Xxxxx at or prior to Closing a
Continuity of Interest Certificate in substantially the form of Exhibit I-2.
8.4 TAX MATTERS. At or prior to the Closing, (a) Xxxxx shall
execute and deliver to Xxxxxx Godward LLP and to Xxxxxxxxxxx & Price, L.L.P.
a tax representation letter in substantially the form of Exhibit X and Xxxxx
shall also deliver Continuity of Interest Certificates executed by each of
the Signing Stockholders in substantially the form of Exhibit I-2 (which will
be used in connection with the legal opinions contemplated by Sections 9.5(l)
and 10.5(e)) and (b) Purchaser shall execute and deliver to Xxxxxx Godward
LLP and to Xxxxxxxxxxx & Price, L.L.P. a tax representation letter in
substantially the form of Exhibit Y (which will be used in connection with
the legal opinions contemplated by Sections 9.5(l) and 10.5(e)).
8.5 EMPLOYMENT AGREEMENTS. At or prior to the Closing, Xxxxxxx
X. Xxxxxx and Xxxxx shall execute and deliver to Purchaser an Employment
Agreement substantially in the form of Exhibit K, C. Xxxxx Xxxxxxxxx and
Xxxxx shall execute and deliver to Purchaser an Employment Agreement
substantially in the form of Exhibit L, Xxxx X. Xxxxx, Xx. and Xxxxx shall
execute and deliver to Purchaser an Employment Agreement substantially in the
form of
63
Exhibit M and Xxxx Xxxxxx and Xxxxx shall execute and deliver to Purchaser an
Employment Agreement substantially in the form of Exhibit N.
8.6 RELEASE. At or prior to the Closing, each Signing
Stockholder shall execute and deliver to Purchaser a Release substantially in
the form of Exhibit O-1 or O-2, as applicable.
8.7 CLOSING CERTIFICATES. At or prior to the Closing, Xxxxx and
each Signing Stockholder shall execute and deliver to Purchaser the
certificates required by Section 9.5(n) and (o), respectively.
8.8 PROHIBITED TRANSACTIONS. The Purchaser Entities shall not
take any action that (i) will subject the Xxxxx ESOP, the Trustee, the
Investment Manager, Xxxxx or the ESOP Committee to any Tax, penalty or
Liability relating to any "prohibited transaction" within the meaning of
Section 406 of ERISA or Section 4975 of the Code or (ii) would give rise to
or serve as a legal basis for the assertion by any participant or beneficiary
of the Trust or by any other Person of any claim relating to any such
"prohibited transaction."
8.9 ACCESSION AGREEMENT. At or prior to the Closing, Purchaser
and each Signing Stockholder shall execute and deliver the Accession
Agreement substantially in the form of Exhibit W-1.
8.10 FIRPTA MATTERS. At the Closing, (a) Xxxxx shall deliver to
Purchaser a statement (in such form as may be reasonably requested by counsel
to Purchaser) conforming to the requirements of Xxxxxxx 0.000 - 0(x)(0)(x) xx
xxx Xxxxxx Xxxxxx Treasury Regulations, and (b) Xxxxx shall mail to the
Internal Revenue Service the notification required under Xxxxxxx 0.000 -
0(x)(0) xx xxx Xxxxxx Xxxxxx Treasury Regulations.
8.11 BEST EFFORTS. During the Pre-Closing Period, (a) Xxxxx and
the Signing Stockholders severally agree to use their respective Best Efforts
to cause the conditions set forth in Section 9 to be satisfied, and (b)
Purchaser and Merger Sub shall use their Best Efforts to cause the conditions
set forth in Section 10 to be satisfied.
8.12 TAX-FREE REORGANIZATION. Purchaser, Merger Sub and Xxxxx
shall take no action during the Pre-Closing Period or at or at any time after
the Closing (i) that results in the Merger failing to qualify as a
reorganization under Sections 368(a)(1)(A) and 368(a)(2)(E) of the Code or
(ii) results in any exchange of Shares by any of the Stockholders for shares
of Purchaser Capital Stock in the Merger being treated as a taxable exchange
or taxable sale of such Shares, either as required to be reported on any Tax
Return, as required to be reported on any amended Tax Return, or as adjusted
pursuant to any audit or examination of any Tax Return by a Governmental
Body. Purchaser, Merger Sub and Xxxxx agree that Xxxxx will satisfy all
reporting and disclosure requirements applicable to Xxxxx, and that Purchaser
and Merger Sub will satisfy all reporting and disclosure requirements
applicable to Purchaser and Merger Sub, that are imposed under the Code, the
United States Treasury Regulations or published guidance from the United
States Internal Revenue Service necessary to preserve the nontaxability to
all of the Stockholders of each conversion of Shares held by any of the
Stockholders into shares of Purchaser Capital Stock in the Merger, including
without limitation proper filing by Xxxxx of the statement required under
United States Treasury Regulation Section 1.367(a)-3(c)(6), proper
64
compilation and filing by Xxxxx of the information required under United
States Treasury Regulation Section 1.367(a)-3(c)(7), and prompt reporting to
each Stockholder by Xxxxx, Purchaser and Merger Sub regarding any disposition
of any property that is in violation of this Agreement because it would cause
recognition of gain under any gain recognition agreements filed by any of the
Stockholders pursuant to the requirements of United States Treasury
Regulation Section 1.367(a)-3(c)(1)(iii) as required so that the conversion
of Shares into shares of Purchaser Capital Stock in the Merger will not be
subject to gain recognition by reason of the application of the provisions of
Section 367 of the Code.
8.13 OPTION GRANTS. Effective as of the Closing, Purchaser shall
cause certain employees of Xxxxx to be granted as of the Closing Date options
to acquire shares of Purchaser Capital Stock at an exercise price per share
equal to the Fair Market Value per Share of Purchaser Capital Stock, subject
to vesting and other terms and conditions applicable to grants under
Purchaser's Employee Stock Option Plan. The number of shares subject to such
options and the allocation of such shares among employees of Xxxxx shall be
consistent with Purchaser's prior practices with respect to option grants to
its existing employees.
8.14 PROHIBITIONS AGAINST TRANSFER. Each Signing Stockholder, to
the extent permitted by law, severally covenants and agrees that such Signing
Stockholder shall not effect any sale, transfer or other disposition or
pledge or hypothecation of any of the Purchaser Capital Stock that he, she or
it is to receive in the Merger unless such sale, transfer or other
disposition or pledge or hypothecation is in compliance with applicable Dutch
securities laws and:
(a) such sale, transfer or other disposition has been
registered under the Act;
(b) such sale, transfer or other disposition is made in
conformity with the requirements of Rule 144 under the Act, as evidenced by a
broker's letter and a representation letter executed by such Signing Stockholder
(reasonably satisfactory in form and content to Purchaser) stating that such
requirements have been met;
(c) such sale, transfer or other disposition is otherwise
exempt from registration under the Act;
(d) an authorized representative of the SEC shall have rendered
written advice to such Signing Stockholder to the effect that the SEC would take
no action, or that the staff of the SEC would not recommend that the SEC take
action, with respect to such sale, transfer or other disposition, and a copy of
such written advice and all other related communications with the SEC shall have
been delivered to Purchaser; or
(e) such sale, transfer or other disposition is made pursuant
to the terms of the Xxxxx ESOP.
8.15 POOLING. After Closing, the transactions contemplated by
this Agreement shall be accounted for by Purchaser as a pooling of interests
under APB Opinion No. 16. Purchaser shall publish financial results covering at
least thirty days of post-Merger combined operations as soon as reasonably
practicable but in no event later than October 30, 1998.
65
8.16 DIRECTOR AND OFFICER INDEMNIFICATION. Purchaser and Merger
Sub covenant and agree that, from and after Closing, it shall cause Xxxxx to
indemnify, hold harmless and advance expenses to each Person who is or was a
director and/or officer of Xxxxx, a member of the ESOP Committee or a
trustees or other fiduciaries of the Trust or the Xxxxx ESOP, with respect to
any Proceeding, Liability or claim arising out of or relating to such Person
serving or having served in any such capacity prior to the Effective Time, to
the extent that such Person is entitled to such indemnification, hold
harmless and expense advances pursuant to and in accordance with (i) the
provisions of the articles of incorporation or bylaws of Xxxxx as in effect
at the Closing, (ii) Nevada law, (iii) any written indemnification agreement
disclosed in the Xxxxx Disclosure Schedule, and/or (iv) the provisions of the
Xxxxx ESOP or the Trust as in effect at the Closing.
8.17 XXXXX ESOP DISSENTER'S RIGHTS. Unless (i) the Trustee or
Investment Manager of the Xxxxx ESOP determines in the exercise of his or its
fiduciary duties under ERISA to vote against the Merger or exercise and
perfect dissenters' rights under Section 78,300 ET AL. of the Nevada Revised
Statutes with respect to the shares of Xxxxx Common Stock held of record by
the Trust, (ii) the required action under this covenant would result in a
violation of the terms of the Xxxxx ESOP or the Trust or (iii) the required
action under this covenant would result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code, the Trustee will not
provide the written consent ("Written Consent") of the stockholder of record
required by Section 92A.400(2) of the Nevada Revised Statutes in the event a
participant in the Xxxxx ESOP ("Participant") desires to exercise dissenters'
rights under Section 78,300 ET AL. of the Nevada Revised Statutes in such
Participant's individual capacity with respect to all or part of his or her
shares of Xxxxx Common Stock allocated to his or her accounts under the Xxxxx
ESOP and allocated to his or her participant employer securities account (as
defined in the Xxxxx ESOP) under the Xxxxx ESOP if such Written Consent would
result in the failure to satisfy the conditions to Closing set forth in
Section 9.4(a) of this Agreement.
8.18 RECOMMENDATION OF SUPERVISORY BOARD MEMBERS. Prior to the
Closing, Purchaser shall procure the adoption of a resolution of Purchaser's
Supervisory Board as referred to in Section 10.4. The next general meeting
of the shareholders of Metron shall be held no later than December 31, 1998.
8.19 CORPORATE ACTION. Prior to the Closing, the Purchaser shall
take all such corporate action (including without limitation the adoption of
appropriate resolutions of Purchaser's Supervisory Board) as shall be
necessary to ensure that the representations and warranties of the Purchaser
contained in Sections 4.25(a) and 4.27(b) are true and correct at the Closing.
8.20 RECORDS RETENTION; ACCESS FOLLOWING CLOSING.
(a) Purchaser, Xxxxx and the Signing Stockholders agree that so
long as any books, records and files, including Tax Records relating to the
business of Xxxxx (collectively, the "Business Records") retained by the Signing
Stockholders, or the Business Records retained by Xxxxx or delivered to the
control of the Purchaser pursuant to this Agreement, remain in existence and
available, each party (considering for purposes of this Section 8.20, the
Signing Stockholders (one or more) as one party, and the Purchaser and Xxxxx as
the other party) (at its expense) shall have the right upon prior notice to
inspect and make copies of the same at any
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time during business hours for any proper purpose. Each party shall
undertake reasonable measures to (i) preserve in good order the Business
Records retained by such party, (ii) not destroy or allow the destruction of
any such Business Records without first offering in writing to deliver them
to the other party, (iii) each retain and provide the other party with any
records or other information relating to liability for Taxes, and (iv) each
provide the other party with any final determination of any such amount
required to be shown on any Tax Return of the other party for any period.
Without limiting the generality of the foregoing, each party shall retain
until the expiration of the applicable statutory period of limitations
(including any extensions) complete copies of all Tax Returns, supporting
work schedules and other books and records or information (collectively, "Tax
Records") delivered to such party, or retained by such party, pursuant to
this Agreement which are relevant to the Tax Returns of Xxxxx for all tax
periods or portions thereof ending on or before the Closing Date.
(b) Xxxxx and Purchaser, on the one hand, and each of the
Signing Stockholders, on the other hand, agree to furnish or cause to be
furnished to the other, upon request, as promptly as practicable, such
information and assistance (including access to Business Records) relating to
Xxxxx as is reasonably necessary for the preparation of any Tax Return, claim
for refund or audit, or the prosecution or defense of any claim, suit or
Proceeding relating to any proposed adjustment of Taxes.
8.21 XXXXX ESOP. Purchaser covenants that from and after the
Closing, (i) the Supervisory Board of Purchaser shall take all subsequent
necessary actions to approve (x) all distributions and transfers of Purchaser
Capital Stock held by the Trust to Participants and beneficiaries designated
in accordance with the Xxxxx ESOP at the times required under the Xxxxx ESOP
and (y) all purchases of the Purchaser Capital Stock from the Trustee of the
Trust and Participants and beneficiaries of the Xxxxx ESOP at the times
required by the Xxxxx ESOP, subject to the requirements of Section 2:207 of
the CC being met at such times and (ii) Purchaser and Xxxxx shall take all
such corporate action as shall be necessary to comply with the provisions of
Section 10.13 of this Agreement.
8.22 LEGAL OPINION. In the event any shares Purchaser Capital
Stock are issued by Purchaser to any Stockholder(s) in connection with the
Merger after the Closing Date as a result of the failure by such
Stockholder(s) to deliver the Letter of Transmittal and documents identified
in the Letter of Transmittal prior to the Closing Date, at the time of
issuance of such shares, Purchaser shall deliver to the Stockholder to whom
such shares are issued an opinion of Xxxxx Dutilh or other reputable
Netherlands counsel that such shares have been validly issued and are fully
paid in compliance with Netherlands law.
SECTION 9. CONDITIONS PRECEDENT TO PURCHASER'S AND MERGER SUB'S OBLIGATION
TO CLOSE.
Purchaser's and Merger Sub's obligation to consummate the Merger,
Purchaser's obligation to issue shares of Purchaser Capital Stock and to take
the other actions required to be taken by Purchaser at the Closing is subject to
the satisfaction, at or prior to the Closing, of each of the following
conditions (any of which may be waived by Purchaser, in whole or in part, in
accordance with Section 13.14):
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9.1 ACCURACY OF REPRESENTATIONS. Each of the Xxxxx Specified
Representations shall have been accurate in all respects as of the date of
this Agreement and shall be accurate in all respects as of the Scheduled
Closing Time as if made at the Scheduled Closing Time (except that
representations and warranties made as of a particular date must be accurate
in all respects as of that date), without giving effect to any update to the
Xxxxx Disclosure Schedule. Each of the other representations and warranties
of Xxxxx contained in this Agreement shall have been accurate in all material
respects as of the date of this Agreement and all such representations and
warranties shall be accurate in all material respects as of the Scheduled
Closing Time as if made at the Scheduled Closing Time (except that
representations and warranties made as of a particular date must be accurate
in all material respects as of that date), without giving effect to (a) any
Xxxxx Material Adverse Effect or any other qualification by the words
"material," or "materially" or "in all material respects" contained or
incorporated directly or indirectly in such representations and warranties or
(b) any update to the Xxxxx Disclosure Schedule delivered after the date
hereof. For purposes of determining whether representations and warranties
of Xxxxx shall have been accurate as of the date of this Agreement, any
inaccuracies therein that shall have been cured (without such cure resulting
or being reasonably expected to result in a Xxxxx Material Adverse Effect)
shall be disregarded. Each of the Signing Stockholder Specified
Representations of each Signing Stockholder shall have been accurate in all
respects as of the date of the execution of the Joinder Agreement by such
Signing Stockholder and shall be accurate in all respects as of the Scheduled
Closing Time as if made at the Scheduled Closing Time (except that
representations and warranties made as of a particular date must be accurate
in all respects as of that date), without giving effect to any update to the
Signing Stockholder Disclosure Schedule delivered by such Signing Stockholder
after the date of the execution of the Joinder Agreement by such Signing
Stockholder. Each of the other representations and warranties of each
Signing Stockholder contained in this Agreement shall have been accurate in
all material respects as of the date of the execution of the Joinder
Agreement by such Signing Stockholder, and all such representations and
warranties shall be accurate in all material respects as of the Scheduled
Closing Time as if made at the Scheduled Closing Time (except that
representations and warranties made as of a particular date must be accurate
in all material respects as of that date), without giving effect to (a) any
qualification by the words "material," or "materially" or "in all material
respects" contained or incorporated directly or indirectly in such
representations and warranties or (b) any update to a Signing Stockholder
Disclosure Schedule delivered by such Signing Stockholder after the date of
the execution of the Joinder Agreement by such Signing Stockholder. For
purposes of determining whether representations and warranties of a Signing
Stockholder shall have been accurate as of the date of the execution of the
Joinder Agreement by such Signing Stockholder, any inaccuracies therein that
shall have been cured shall be disregarded.
9.2 PERFORMANCE OF OBLIGATIONS. Each covenant or obligation that
Xxxxx or any of the Signing Stockholders is required to comply with or to
perform pursuant to this Agreement at or prior to the Closing shall have
been duly complied with and performed in all material respects.
9.3 CONSENTS. All Consents required to be obtained in connection
with the Merger and the other transactions contemplated by this Agreement
(including the Consents identified in Part 2.27 of the Xxxxx Disclosure
Schedule) except Consents related to the agreements identified on Exhibit
2.13(a) to the Xxxxx Disclosure Schedule shall have been obtained and shall
be in full
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force and effect except where failure to obtain such Consents would not
reasonably be expected to have a Xxxxx Material Adverse Effect.
9.4 STOCKHOLDER APPROVAL; DISSENTERS' RIGHTS.
(a) The Agreement shall have been duly adopted and the Merger
shall have been duly approved by the Required Vote.
(b) Holders of no more than the lesser of (i) five percent of
the outstanding number of Xxxxx Common Stock or (ii) the number of outstanding
Xxxxx Common Stock that is one less than the number of shares of Xxxxx Common
Stock that would cause the condition specified in paragraph 47b of APB Opinion
No. 16 not to be satisfied, shall have validly exercised and perfected
dissenters' rights with respect to the Merger.
9.5 ADDITIONAL DOCUMENTS. Purchaser and Merger Sub shall have
received at or prior to the Closing the following agreements and documents,
each of which shall be in full force and effect as of the Scheduled Closing
Time:
(a) copies of the Xxxxx Stock Certificates and Letters of
Transmittal representing the Shares of the Signing Stockholders, together with
the other documents required by Section 1.7;
(b) Noncompetition Agreements substantially in the form of
Exhibit J and Affiliate Agreements substantially in the form of Exhibit I-1 and
Continuity of Interest Certificates substantially in the form of Exhibit I-2,
executed by each of Xxxxxxx X. Xxxxxx, C. Xxxxx Xxxxxxxxx and Xxxx X. Xxxxx,
Xx., and an Affiliate Agreement in the form of Exhibit I-1 and Continuity of
Interest certificate in the form of Exhibit I-2, executed by Xxxxx Xxxxxxxxx, as
Trustee of the Trust;
(c) an Employment Agreement substantially in the form of
Exhibit K, executed by Xxxxxxx X. Xxxxxx;
(d) an Employment Agreement substantially in the form of
Exhibit L, executed by C. Xxxxx Xxxxxxxxx;
(e) an Employment Agreement substantially in the form of
Exhibit M, executed by Xxxx X. Xxxxx, Xx.;
(f) an Employment Agreement substantially in the form of
Exhibit N, executed by Xxxx Xxxxxx;
(g) a Release substantially in the form of Exhibit O-1 or O-2,
as applicable, executed by each of the Signing Stockholders;
(h) the FIRPTA statement referred to in Section 8.10, executed
by Xxxxx;
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(i) estoppel certificates, each dated as of a date subsequent
to the date of this Agreement in form and substance satisfactory to Purchaser
and Xxxxx, executed by the Persons identified on Exhibit P;
(j) a legal opinion of Xxxxxxxxxxx & Price, L.L.P., addressed
to Purchaser, dated as of the Closing Date, substantially in the form of Exhibit
Q;
(k) a legal opinion of Xxxxxxx & Xxxxx, P.C., dated as of the
Closing Date, substantially in the form of Exhibit R;
(l) a legal opinion of Xxxxxx Godward LLP addressed to
Purchaser, dated as of the Closing Date, to the effect that the Merger will
constitute a reorganization within the meaning of Section 368 of the Code (it
being understood that, in rendering such opinion, Xxxxxx Godward LLP may rely
upon the tax representation letters referred to in Section 8.4);
(m) a letter from KPMG Peat Marwick LLP, dated as of the
Closing Date and addressed to Purchaser, reasonably satisfactory in form and
substance to Purchaser, confirming KPMG Peat Marwick LLP's concurrence with
management that no condition exists that would preclude Purchaser from
accounting for the Merger as a "pooling of interests" in accordance with GAAP,
APB Opinion No. 16 and all published rules, regulations and policies of the SEC;
(n) a certificate executed by Xxxxx and containing the
representation and warranty of Xxxxx that (i) each of the Xxxxx Specified
Representations is accurate in all respects as of the Closing Date as if made on
the Closing Date (except that representations and warranties made as of a
particular date must be accurate in all respects as of that date), and that each
of the other representations and warranties of Xxxxx set forth in this Agreement
is accurate in all material respects as of the Closing Date as if made on the
Closing Date (except that representations and warranties made as of a particular
date must be accurate in all material respects as of that date), in each case
giving effect to any update to the Xxxxx Disclosure Schedule delivered to
Purchaser at or prior to the Closing and (ii) Xxxxx has performed in all
material respects all of its obligations under this Agreement required to be
performed at or prior to Closing (the "Xxxxx Closing Certificate");
(o) a certificate executed by each Signing Stockholder and
containing the representation and warranty of such Signing Stockholder that (i)
each of the Signing Stockholder Specified Representations of such Signing
Stockholder is accurate in all respects as of the Closing Date as if made on the
Closing Date (except that representations and warranties made as of a particular
date must be accurate in all respects as of that date), and that each of the
other representations and warranties of such Signing Stockholder set forth in
this Agreement as evidenced by execution of the Joinder Agreement is accurate in
all material respects as of the Closing Date as if made on the Closing Date
(except that representations and warranties made as of a particular date must be
accurate in all material respects as of that date), in each case giving effect
to any update to the Signing Stockholder Disclosure Schedule delivered to
Purchaser at or prior to the Closing; and (ii) such Signing Stockholder has
performed in all material respects all of his, her or its obligations under this
Agreement required to be performed at or prior to Closing (the "Signing
Stockholders' Closing Certificates");
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(p) Joinder Agreements executed by each of Xxxxxxx X. Xxxxxx,
C. Xxxxx Xxxxxxxxx, Xxxx X. Xxxxx, Xx. and Xxxxx Xxxxxxxxx, as Trustee of the
Trust;
(q) documentation reasonably acceptable to Purchaser indicating
that the Shares held by the Trust on the date hereof have been validly
transferred to Xxxxx Xxxxxxxxx, as Trustee of the Trust; and
(r) such other documents as Purchaser or Merger Sub may
reasonably request in good faith for the purpose of (i) evidencing the accuracy
of any representation or warranty made in this Agreement by Xxxxx or any of the
Signing Stockholders, (ii) evidencing the compliance by Xxxxx or any of the
Signing Stockholders with, or the performance by Xxxxx or any of the Signing
Stockholders of, any covenant or obligation set forth in this Agreement,
(iii) evidencing the compliance with any applicable federal or state securities
law applicable to the Merger, (iv) evidencing the satisfaction of any condition
set forth in this Section 9 or (v) otherwise facilitating the consummation or
performance of any of the Transactions.
9.6 NOTARIAL REQUIREMENTS. The civil law notary of Xxxxx Dutilh
in Amsterdam who has been retained by the Purchaser for the issuance of the
shares of Purchaser Capital Stock to be issued in the Merger shall have
received from the Signing Stockholders all powers of attorney and other
documents and information necessary to execute the Deeds of Issuance with
respect to those shares, including a legal opinion acceptable to the civil
law notary delivered on behalf of the Trust to the effect that the Trust is
duly represented by Xxxxx X. Xxxxxxxxx as Trustee and has authority to hold
shares of Purchaser Capital Stock.
9.7 EMPLOYEES. Between the date of this Agreement and the
Closing Date, not more than 10 employees of Xxxxx shall have ceased to be
employed by, or expressed an intention to terminate their employment with,
Xxxxx.
9.8 FIRPTA COMPLIANCE. Xxxxx shall have filed or mailed for
filing or, contemporaneous with the Closing, shall file or mail for filing,
with the Internal Revenue Service the notification referred to in Section
8.10.
9.9 SECURITIES LAW COMPLIANCE. All applicable requirements of
Rule 506 under the Act and any applicable state securities laws shall have
been satisfied, unless failure to satisfy such requirements is solely as a
result of the failure of Purchaser to take such reasonable actions as are
necessary to satisfy the requirements of Rule 506.
9.10 NO RESTRAINTS. No temporary restraining order, preliminary
or permanent injunction or other Order preventing the consummation of the
Merger shall have been issued by any court of competent jurisdiction and
remain in effect, and there shall not be any Legal Requirement enacted or
deemed applicable to the Merger that makes consummation of the Merger illegal.
9.11 NO PROCEEDINGS. No Person shall have commenced or threatened
to commence any Proceeding challenging or seeking the recovery of a material
amount of damages in connection with the Merger or any of the other
Transactions or seeking to prohibit the Merger.
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9.12 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENTS. Each
employee of Xxxxx, and each consultant to Xxxxx, shall have executed and
delivered to Xxxxx a proprietary information and inventions agreement in
substantially the form of Exhibit J.
9.13 NO CLAIM REGARDING STOCK OWNERSHIP OR SALE PROCEEDS. No
Person (other than the Stockholders on the terms stated herein) shall have
made or threatened any claim asserting that such Person (a) may be the holder
or the beneficial owner of, or may have the right to acquire or to obtain
beneficial ownership of, any capital stock or other securities of Xxxxx or
(b) may be entitled to all or any portion of the Purchaser Capital Stock to
be issued pursuant to this Agreement.
9.14 HSR ACT. The waiting period under the HSR Act applicable to
the Merger shall have expired or been terminated.
9.15 NO PROHIBITION. Neither the consummation nor the performance
of any the Transactions will, directly or indirectly (with or without notice
or lapse of time), contravene or conflict with or result in a violation of,
or cause Purchaser, Merger Sub or any Person affiliated with Purchaser or
Merger Sub to suffer any material adverse consequence under, any applicable
Legal Requirement or Order of which Purchaser or Merger Sub does not have
Knowledge as of the date of this Agreement.
SECTION 10. CONDITIONS PRECEDENT TO XXXXX AND THE SIGNING STOCKHOLDERS'
OBLIGATION TO CLOSE.
Xxxxx'x and each Signing Stockholder's obligation to consummate
the Merger and to take the other actions required to be taken by Xxxxx and the
Signing Stockholders at the Closing is subject to the satisfaction, at or prior
to the Closing, of each of the following conditions (any of which may be waived
by Xxxxx and by the holders of a majority of the Shares, in whole or in part, in
accordance with Section 13.14):
10.1 ACCURACY OF REPRESENTATIONS. Each of the Purchaser Specified
Representations shall have been accurate in all respects as of the date of
this Agreement and shall be accurate in all respects as of the Scheduled
Closing Time as if made at the Scheduled Closing Time (except that
representations and warranties made as of a particular date must be accurate
in all respects as of that date), without giving effect to any update to the
Purchaser Disclosure Schedule. Each of the other representations and
warranties of Purchaser and Merger Sub contained in this Agreement shall have
been accurate in all material respects as of the date of this Agreement and
shall be accurate in all material respects as of the Scheduled Closing Time
as if made at the Scheduled Closing Time (except that representations and
warranties made as of a particular date must be accurate in all material
respects as of that date), without giving effect to (i) any "Purchaser
Material Adverse Effect" or any other qualification by the words "material,"
"materially" or "in all material respects" contained or incorporated directly
or indirectly in such representations and warranties or (ii) any update to
the Purchaser Disclosure Schedule delivered after the date hereof. For
purposes of determining whether representations and warranties shall have
been accurate as of the date of this Agreement, any inaccuracies therein that
shall have been cured (without such cure resulting or being reasonably
expected to result in a Purchaser Material Adverse Effect) shall be
disregarded.
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10.2 PERFORMANCE OF OBLIGATIONS. Each covenant or obligation that
Purchaser or Merger Sub was required to comply with or to perform pursuant to
this Agreement at or prior to the Closing shall have been complied with and
performed in all material respects.
10.3 CONSENTS. All Consents required to be obtained in connection
with the Merger and the other transactions contemplated by this Agreement
(including the Consents identified in Part 4.22 of the Purchaser Disclosure
Schedule) shall have been obtained and shall be in full force and effect
except where failure to obtain such Consents would not reasonably be expected
to have a Purchaser Material Adverse Effect.
10.4 SUPERVISORY BOARD MATTERS.
(a) The Supervisory Board of Purchaser shall have adopted a
resolution increasing the number of members of the Managing Board of Purchaser
to seven and at the next general meeting of shareholders of Purchaser, the
Managing Board of Purchaser shall recommend that C. Xxxxx Xxxxxxxxx be elected
as a Managing Director B (DIRECTEUR B) of Purchaser at such meeting. Until such
election, C. Xxxxx Xxxxxxxxx shall have the right to attend all meetings of
Purchaser's Managing Board in a nonvoting capacity, and in connection therewith,
Purchaser shall give C. Xxxxx Xxxxxxxxx copies of all notices, minutes, consents
and other materials, financial or otherwise, which Purchaser provides to its
Managing Board.
(b) The Supervisory Board of Purchaser shall have adopted a
resolution approving all necessary actions and shall take all subsequent
necessary actions to approve (i) all distributions and transfers of Purchaser
Capital Stock held by the Trust to Participants and beneficiaries designated in
accordance with the Xxxxx ESOP at the times required under the Xxxxx ESOP,
provided such distributions and transfers take place within 3 months of the date
of the adoption of the resolution and prior notice thereof is provided to the
Supervisory Board; and (ii) all purchases of Purchaser Capital Stock from the
Trustee of the Trust and Participants and beneficiaries of the Xxxxx ESOP at the
times required by the Xxxxx ESOP, subject to the requirements of Section 2:207
of the CC being met at such times.
10.5 DOCUMENTS. Xxxxx and the Signing Stockholders shall have
received the following agreements and documents, each of which shall be in
full force and effect.
(a) Reserved;
(b) a legal opinion of Xxxxxx Godward LLP, addressed to Xxxxx
and the Stockholders, dated as of the Closing Date, in substantially the form of
Exhibit T;
(c) a legal opinion of Xxxxx Dutilh, addressed to Xxxxx and the
Stockholders, dated as of the Closing Date, in substantially the form of Exhibit
U;
(d) a legal opinion of Xxxxxxxx & Wedge, addressed to Xxxxx and
the Stockholders, dated as of the Closing Date, in substantially the form of
Exhibit V;
(e) a legal opinion of Xxxxxxxxxxx & Price, L.L.P., addressed
to Xxxxx and the Stockholders, dated as of the Closing Date, to the effect that
the Merger will constitute a reorganization within the meaning of Section 368 of
the Code; provided, however, that Cooley
73
Godward LLP shall be entitled to render such opinion to Xxxxx and the
Stockholders in the event that Xxxxxxxxxxx & Price, L.L.P. does not deliver
such opinion (it being understood that, in rendering such opinion,
Xxxxxxxxxxx & Price, L.L.P. or Xxxxxx Godward LLP, as applicable, may rely
upon the tax representation letters referred to in Section 8.4);
(f) an Accession Agreement substantially in the form of
Exhibit W-1, executed by Purchaser and a Consent Agreement substantially in
the form of Exhibit W-2, executed by Purchaser and each of the Investors (as
defined in the Investor Rights Agreement);
(g) a certificate executed by Purchaser and Merger Sub and
containing the representation and warranty of Purchaser and Merger Sub that
(i) each of the Purchaser Specified Representations is accurate in all
respects as of the Closing Date as if made on the Closing Date (except that
representations and warranties made as of a particular date must be accurate
in all respects as of that date), and that each of the other representations
and warranties of Purchaser and Merger Sub set forth in this Agreement is
accurate in all material respects as of the Closing Date as if made on the
Closing Date (except that representations and warranties made as of a
particular date must be accurate in all material respects as of that date),
in each case giving effect to any update to the Purchaser Disclosure Schedule
delivered to Xxxxx and the Signing Stockholders at or prior to the Closing
and (ii) Purchaser and Merger Sub have performed in all material respects all
of their obligations under this Agreement required to be performed at or
prior to Closing (the "Purchaser's Closing Certificate");
(h) such other documents as Xxxxx or any Signing Stockholder
may reasonably request in good faith for the purpose of (i) evidencing the
accuracy of any representation or warranty made by Purchaser or Merger Sub in
this Agreement, (ii) evidencing the compliance by Purchaser and Merger Sub
with, or the performance by Purchaser and Merger Sub of, any covenant or
obligation set forth in this Agreement, (iii) evidencing the compliance with
any applicable foreign, U.S. federal or state securities law, (iv) evidencing
the satisfaction of any condition set forth in this Section 10 or (v)
otherwise facilitating the consummation or performance of any of the
Transactions;
(i) a copy of a letter from KPMG Peat Marwick LLP, dated as
of the Closing Date and addressed to Purchaser, confirming KPMG Peat Marwick
LLP's concurrence with management that no condition exists that would
preclude Purchaser from accounting for the Merger as a "pooling of interests"
in accordance with GAAP, APB Opinion No. 16 and all published rules,
regulations and policies of the SEC;
(j) a copy of a letter from Price Waterhouse dated as of the
Closing Date, addressed to Purchaser, with respect to the Netherlands tax
consequences of the Merger, in a form to be agreed between Purchaser and
Xxxxx; and
(k) Amendment Number Two to the Xxxxx ESOP and Amendment
Number One to the Trust, executed by Metron.
10.6 ADDITIONAL AGREEMENTS. The following Agreements shall have
been executed and delivered by Xxxxx and shall be in full force and effect:
(a) an Employment Agreement substantially in the form of
Exhibit K;
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(b) an Employment Agreement substantially in the form of
Exhibit L;
(c) an Employment Agreement substantially in the form of
Exhibit M; and
(d) an Employment Agreement substantially in the form of
Exhibit N.
10.7 XXXXX ESOP MATTERS. Xxxxx X. Xxxxxxxxx, in his individual
capacity as Trustee of the Trust (or his qualified successor), and Strategic
Investment Counsel Corporation, as Investment Manager of the Trust (or its
qualified successor), shall have entered into written agreements satisfactory
to Xxxxx to serve in such capacities for a period ending on the earlier to
occur of: (1) twenty four (24) months after the Closing Date or (2) the date
on which the shares of Purchaser Capital Stock issued to the Xxxxx ESOP in
the Merger are listed or quoted on a United States national securities
exchange (which term shall include the Nasdaq National Market), and are
"readily tradable" (as defined in the Code); and Purchaser shall have agreed
in writing satisfactory to the Trustee that if Xxxxx X. Xxxxxxxxx or
Strategic Investment Counsel Corporation resigns or is properly removed as
the Trustee or Investment Manager, respectively, during such period,
Purchaser will appoint a qualified independent Trustee or Investment Manager
to serve and Amendment Number One to the Trust in such capacities for the
remainder of such period. Amendment Number Two to the Xxxxx ESOP shall have
been executed and delivered by the parties thereto and shall by its terms
become effective as of the Effective Time.
10.8 INTENTIONALLY OMITTED.
10.9 NO RESTRAINTS. No temporary restraining order, preliminary or
permanent injunction or other Order preventing the consummation of the Merger
shall have been issued by any court of competent jurisdiction and remain in
effect, and there shall not be any Legal Requirement enacted or deemed
applicable to the Merger that makes consummation of the Merger illegal.
10.10 NO PROCEEDINGS. No Person shall have commenced or threatened
to commence any Proceeding challenging or seeking the recovery of a material
amount of damages in connection with the Merger or any of the other
Transactions or seeking to prohibit or limit the exercise by any of the
Signing Stockholders of any material right pertaining to his, her or its
ownership of stock of Purchaser.
10.11 HSR ACT. The waiting period under the HSR Act applicable to
the Merger shall have expired or been terminated.
10.12 NO PROHIBITION. Neither the consummation nor the performance
of any of the Transactions will, directly or indirectly (with or without
notice or lapse of time), contravene or conflict with or result in a
violation of, or cause any Signing Stockholder or any Person affiliated with
any Signing Stockholder to suffer any adverse consequence under, any
applicable Legal Requirement or Order of which any Signing Stockholder does
not have Knowledge as of the date of this Agreement.
10.13 XXXXX ESOP. To the extent Purchaser is prohibited by
applicable law from satisfying the repurchase obligations as set forth under
the Xxxxx ESOP, Purchaser shall use its Best Efforts to timely obtain an
alternate purchaser for the shares of Purchaser Capital Stock
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required to be purchased from the Trustee of the Trust and Participants and
beneficiaries of the Xxxxx ESOP.
SECTION 11. TERMINATION
11.1 TERMINATION EVENTS. Regardless of whether the Xxxxx
Stockholders' Meeting has been held and the Required Vote has been obtained,
this Agreement may be terminated prior to the Closing:
(a) by Purchaser or Merger Sub if (i) there is a material
Breach of any representation and warranty, covenant or obligation of Xxxxx or
any of the Signing Stockholders pursuant to this Agreement that is not cured
on or prior to the earlier of July 15, 1998 and five (5) days after written
notice thereof by Purchaser to Xxxxx and the Signing Stockholders, or (ii)
Purchaser or Merger Sub reasonably determines that the timely satisfaction of
any condition set forth in Section 9 has become impossible (other than as a
result of any Breach of any representation and warranty of Purchaser or
Merger Sub in this Agreement or any failure on the part of Purchaser or
Merger Sub to comply with or perform their covenants and obligations under
this Agreement) and Purchaser has not waived such Breach or condition;
(b) by Xxxxx if (i) there is a material Breach of any
representation and warranty, covenant or obligation of Purchaser or Merger
Sub pursuant to this Agreement that is not cured on or prior to the earlier
of July 15, 1998 and five (5) days after written notice thereof by Xxxxx to
Purchaser, or (ii) Xxxxx reasonably determines that the timely satisfaction
of any condition set forth in Section 10 has become impossible (other than as
a result of any Breach of any representation and warranty of Xxxxx or any
Signing Stockholder in this Agreement or any failure on the part of Xxxxx or
any of the Signing Stockholders to comply with or perform any of their
respective covenants or obligations set forth in this Agreement) and Xxxxx
has not waived such Breach or condition;
(c) by Purchaser or Merger Sub if the Merger shall not have
been consummated by 5:00 p.m. (Pacific Time) on August 31, 1998 (other than
as a result of any Breach of any representation or warranty of Purchaser or
Merger Sub in this Agreement or any failure on the part of Purchaser or
Merger Sub to comply with or perform any of their covenants and obligations
under this Agreement) or at such other time Purchaser and Xxxxx may jointly
designate;
(d) by Xxxxx if the Merger shall not have been consummated
by 5:00 p.m. (Pacific Time) on August 31, 1998 (other than as a result of any
Breach of any representation or warranty of Xxxxx or any Signing Stockholder
in this Agreement or any failure on the part of Xxxxx or any of the Signing
Stockholders to comply with or perform any of their respective covenants or
obligations set forth in this Agreement) or at such other time Purchaser and
Xxxxx may jointly designate;
(e) by either Purchaser or Xxxxx if a court of competent
jurisdiction or other Governmental Body shall have issued a final
nonappealable order, decree or ruling, or shall have taken any other action,
having the effect of permanently restraining, enjoining or otherwise
prohibiting the Merger;
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(f) by either Purchaser or Xxxxx if (i) the Xxxxx
Stockholders' Meeting shall have been held and (ii) this Agreement and the
Merger shall not have been adopted and approved at such meeting by the
Required Vote; provided, however, that (1) Purchaser shall not be permitted
to terminate this Agreement pursuant to this Section 11.1(f) if the failure
of Xxxxx'x Stockholders to adopt and approve this Agreement and the Merger at
the Xxxxx Stockholders' Meeting is attributable to a failure on the part of
Purchaser or Merger Sub to perform any material obligations required to have
been performed by Purchaser or Merger Sub under this Agreement and (2) Xxxxx
shall not be permitted to terminate this Agreement pursuant to this Section
11.1(f) if the failure of Xxxxx'x Stockholders to adopt and approve this
Agreement and the Merger at the Xxxxx Stockholders' Meeting is attributable
to a failure on the part of Xxxxx to perform any material obligation required
to have been performed by Xxxxx under this Agreement; or
(g) by the mutual written consent of Purchaser, Merger Sub
and Xxxxx.
11.2 TERMINATION PROCEDURES. If Purchaser or Merger Sub wishes to
terminate this Agreement pursuant to Section 11.1(a), Purchaser and Merger
Sub shall deliver to Xxxxx a written notice stating that Purchaser or Merger
Sub is terminating this Agreement and setting forth a brief description of
the basis on which Purchaser or Merger Sub is terminating this Agreement. If
Xxxxx wishes to terminate this Agreement pursuant to Section 11.1(b),
11.1(d), 11.1(e) or 11.1(f), Xxxxx shall deliver to Purchaser a written
notice stating that Xxxxx is terminating this Agreement and setting forth a
brief description of the basis on which Xxxxx is terminating this Agreement.
11.3 EFFECT OF TERMINATION. If this Agreement is terminated
pursuant to Section 11.1, this Agreement and all Liabilities and obligations
of the parties under this Agreement shall terminate and shall be void and
have no effect and no party hereto shall have any Liability of any kind
under, pursuant to or with respect to this Agreement, the termination hereof
or any of the Transactions; provided, however, that:
(a) (i) if Purchaser terminates this Agreement as a result
of an intentional and material Breach of a representation and warranty or
covenant of Xxxxx or any Signing Stockholder in this Agreement, Purchaser
shall be entitled to recover, as its sole and exclusive remedy, damages from
Xxxxx equal to the reasonable and documented out-of-pocket expenses and costs
incurred by Purchaser in connection with this Agreement and the transactions
in an amount not to exceed $750,000 and (ii) if Xxxxx terminates this
Agreement as a result of an intentional and material Breach of a
representation and warranty or covenant of Purchaser or Merger Sub in this
Agreement, Xxxxx and the Signing Stockholders, collectively, shall be
entitled to recover, as their sole and exclusive remedy, damages from
Purchaser and Merger Sub equal to the reasonable and documented out-of-pocket
expenses and costs incurred by Xxxxx and the Signing Stockholders in
connection with this Agreement and the Transactions in an amount not to
exceed $750,000;
(b) the parties shall, in all events, remain bound by and
continue to be subject to the provisions set forth in Section 13 (except for
Sections 13.3, 13.8 and 13.20); and
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(c) the parties shall, in all events, remain bound by and
continue to be subject to Section 8.2.
SECTION 12. INDEMNIFICATION, ETC.
12.1 SURVIVAL OF REPRESENTATIONS AND COVENANTS.
(a) The representations and warranties made by Xxxxx, the
Signing Stockholders, Purchaser and Merger Sub in this Agreement (including
without limitation the representations and warranties set forth in Sections
2, 3 and 4) shall survive the Closing and shall expire on the earlier of (i)
the date of issuance of an audit report with respect to financial statements
which both contain combined operations of Purchaser and Xxxxx and include the
Closing Date or (ii) ninety (90) days after the Closing Date (the "Expiration
Date"); provided, however, that (x) notwithstanding the foregoing, the Xxxxx
Specified Representations (other than Section 2.4), the Signing Stockholder
Specified Representations and the Purchaser Specified Representations (other
than Section 4.4) shall survive the Closing for the applicable statute of
limitations and (y) if, at any time prior to the expiration of a
representation or warranty made by Xxxxx or any of the Signing Stockholders,
any Purchaser Indemnitee (acting in good faith) delivers to a Signing
Stockholder obligated to provide indemnity under this Section 12 in respect
of such representation or warranty a written notice that complies with the
applicable provision of Sections 12.10 or 12.12 alleging the existence of a
Breach of such representation and warranty and asserting a claim for recovery
under Sections 12.2 or 12.4 based on such alleged inaccuracy or other Breach,
then the claim asserted in such notice shall survive against the Signing
Stockholder to whom such notice was delivered until such time as such claim
is fully and finally resolved and (z) if, at any time prior to the expiration
of a representation or warranty made by Purchaser or Merger Sub, any
Stockholder Indemnitee (acting in good faith) delivers to Purchaser a written
notice that complies with the applicable provision of Sections 12.10 or 12.12
alleging the existence of a Breach of such representation and warranty and
asserting a claim for recovery under Section 12.5 based on such alleged
inaccuracy or other Breach, then the claim asserted in such notice shall
survive until such time as such claim is fully and finally resolved.
(b) Notwithstanding anything in this Agreement, from and after
the Closing, any matter which has been accurately disclosed by Xxxxx or any of
the Signing Stockholders in the Xxxxx Disclosure Schedule or the Signing
Stockholder Disclosure Schedule or any update to either of the foregoing
delivered to Purchaser at or prior to Closing, or in the Xxxxx Closing
Certificate or any of the Signing Stockholders' Closing Certificates, (i) shall
be deemed accepted by Purchaser and Merger Sub and (ii) shall not form the basis
of any claim for Damages or any other remedy by any Purchaser Indemnitee against
any of the Signing Stockholders. Notwithstanding anything in this Agreement,
from and after the Closing, any matter which has been accurately disclosed by
Purchaser or Merger Sub in the Purchaser Disclosure Schedule or any update
thereto delivered to Xxxxx or to the Signing Stockholders at or prior to
Closing, or in the Purchaser Closing Certificate, (i) shall be deemed accepted
by Xxxxx and the Signing Stockholders and (ii) shall not form the basis of any
claim for Damages or any other remedy by any of the Stockholder Indemnitees
against Purchaser.
(c) For purposes of this Agreement: (i) each statement or other
item of information set forth in the Xxxxx Disclosure Schedule or in the Xxxxx
Closing Certificate shall
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be deemed to be a representation and warranty made by Xxxxx in this
Agreement; (ii) each statement or other item of information set forth in the
Signing Stockholder Disclosure Schedule or in any of the Signing
Stockholders' Closing Certificates shall be deemed to be a representation and
warranty in this Agreement made by the Signing Stockholder to whom such
statement or item of information relates; and (iii) each statement or other
item of information set forth in the Purchaser Disclosure Schedule or in the
Purchaser Closing Certificate shall be deemed to be a representation and
warranty made by Purchaser and Merger Sub in this Agreement.
12.2 INDEMNIFICATION BY STOCKHOLDERS REGARDING XXXXX REPRESENTATIONS
AND WARRANTIES.
(a) To the extent permitted by applicable law, but subject
to the terms and limitations set forth in this Section 12, from and after the
Effective Time, the Stockholders, pro rata based on their respective
ownership of the Shares, shall hold harmless and indemnify each of the
Purchaser Indemnitees from and against, and shall compensate and reimburse
each of the Purchaser Indemnitees for, any Damages which are directly or
indirectly suffered or incurred by any of the Purchaser Indemnitees or to
which any of the Purchaser Indemnitees may otherwise become subject at any
time (regardless of whether or not such Damages relate to any third-party
claim) and which arise directly or indirectly from or as a direct or indirect
result of, or are directly or indirectly connected with:
(i) any Breach at Closing of any representation or
warranty made by Xxxxx in this Agreement (except with respect to Section
2.31, without giving effect to any Xxxxx Material Adverse Effect
qualification or to the words "material," "materially" or "in all material
respects" contained or incorporated directly or indirectly in such
representation or warranty but giving effect to any update to the Xxxxx
Disclosure Schedule delivered by Xxxxx to Purchaser or Merger Sub at or prior
to the Closing);
(ii) any Breach of any covenant of Xxxxx in this
Agreement which covenant by its terms, is to be performed in full by Xxxxx
prior to the Closing; or
(iii) any (A) Proceeding brought by a third-party as
contemplated by Section 12.10 arising out of any Breach or alleged Breach of
the type referred to in clause (i) or (ii) above, or (B) arbitration or other
Proceeding brought by a Purchaser Indemnitee as allowed by Section 12.12 or
pursuant to Section 13.13 for the purpose of enforcing any of its rights
under this Section 12 or Section 13.13 in respect of any Breach or alleged
Breach of the type referred to in clause (i) or (ii) above.
(b) The Stockholders acknowledge and agree that, if there is
any Breach of any representation, warranty or other provision relating to Xxxxx
or Xxxxx'x business, condition, assets, liabilities, operations, financial
performance or net income (or any aspect or portion thereof), and Xxxxx incurs
Damages as a result of such Breach, then Purchaser itself shall be deemed, by
virtue of its direct or indirect ownership of common stock of Xxxxx, to have
incurred such Damages as a result of such Breach or Liability. Nothing
contained in this Section 12.2(b) shall have the effect of (i) limiting the
circumstances under which Purchaser may otherwise be deemed to have incurred
Damages for purposes of this Agreement, (ii) limiting the other types of
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Damages that Purchaser may be deemed to have incurred (whether in connection
with any such Breach or Liability or otherwise), or (iii) limiting the rights
of Xxxxx or any of the other Purchaser Indemnitees under this Section 12.2.
Nothing in this Agreement shall be deemed to provide that more than one
Purchaser Indemnitee shall be entitled to recover Damages from the
Stockholders with respect to the same Breach or alleged Breach of the type
referred to in clauses (i) and (ii) of Section 12.2(a).
12.3 THRESHOLD; CEILING; OTHER LIMITATIONS.
(a) Subject to Section 12.3(c) and Section 12.3(d), the
Stockholders shall not be required to make any payment pursuant to Section
12.2 or, with respect to Signing Stockholders, 12.4 until such time as the
total amount of all Damages that have been directly or indirectly suffered or
incurred by any one or more of the Purchaser Indemnitees, or to which any one
or more of the Purchaser Indemnitees has or have otherwise become subject,
exceeds $150,000 in the aggregate. At such time as the total amount of such
Damages exceeds $150,000 in the aggregate, the Purchaser Indemnitees shall be
entitled to be indemnified (on the terms stated in this Section 12) only
against the portion of such Damages exceeding $150,000.
(b) Subject to Section 12.3(c), the maximum aggregate
liability of all of the Stockholders under Sections 12.2(a) and 12.4(a) shall
be limited to $1,011,633.
(c) The limitations on the Stockholders' obligations that
are set forth in Sections 12.3(a) and 12.3(b) shall not apply to: (i) any
Breach of the Xxxxx Specified Representations (other than a Breach of Section
2.4) or, with respect to Signing Stockholders, the Signing Stockholder
Specified Representations. In addition, the limitations on any Signing
Stockholder's obligations that are set forth in Sections 12.3(a) and 12.3(b)
shall not apply to Damages arising out of a Breach of a representation,
warranty or covenant if (i) Xxxxx or any of the Signing Stockholders had
Knowledge of such Breach as of the Closing and (ii) such Breach was not
disclosed to Purchaser or Merger Sub at or prior to Closing.
(d) Notwithstanding anything in this Agreement, (i) each
Stockholder's aggregate liability with respect to any Damages recoverable
pursuant to Section 12.2 shall not exceed such Stockholder's pro rata portion
of such Damages after application of the limitations contained in this
Section 12, based on the respective number of Shares owned by such
Stockholder immediately prior to the Closing and (ii) the maximum aggregate
liability of any Stockholder under this Section 12 or otherwise in respect of
the Merger shall be limited to 8% of the shares of Purchaser Capital Stock
received by such Stockholder pursuant to this Agreement and the Merger.
(e) No Stockholder shall have any liability to any Purchaser
Indemnitee as a result of the Breach by another Stockholder of any
representation, warranty, covenant or obligation of such other Stockholder in
this Agreement or otherwise.
12.4 INDEMNIFICATION BY SIGNING STOCKHOLDERS REGARDING SIGNING
STOCKHOLDER REPRESENTATIONS AND WARRANTIES AND COVENANTS.
(a) To the extent permitted by applicable law but subject to
the terms and limitations set forth in this Section 12, from and after the
Closing Date, each Signing
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Stockholder severally agrees to hold harmless and indemnify each of the
Purchaser Indemnitees from and against, and shall compensate and reimburse
each of the Purchaser Indemnitees for, any Damages which are directly or
indirectly suffered or incurred by any of the Purchaser Indemnitees or to
which any of the Purchaser Indemnitees may otherwise become subject at any
time (regardless of whether or not such Damages relate to any third-party
claim) and which arise directly or indirectly from or as a direct or indirect
result of, or are directly or indirectly connected with:
(i) any Breach at Closing of any representation or
warranty made by such Signing Stockholder in this Agreement (without giving
effect to any qualification by the words "material," "materially" or "in all
material respects" contained or incorporated directly in such representation
or warranty but giving effect to any update to the Signing Stockholders'
Disclosure Schedule delivered by the Signing Stockholders to Purchaser or
Merger Sub at or prior to the Closing);
(ii) any Breach of any covenant or obligation of such
Signing Stockholder in this Agreement which covenant or obligation, by its
terms, is to be performed in full by such Signing Stockholder; or
(iii) any (A) Proceeding brought by a third-party as
contemplated by Section 12.10 arising out of any Breach or alleged Breach of
the type referred to in clause (i) or (ii) above, or (B) arbitration or other
Proceeding brought by a Purchaser Indemnitee as allowed by Section 12.12 or
pursuant to Section 13.13 for the purpose of enforcing any of its rights
under this Section 12 or Section 13.13 in respect of any Breach or alleged
Breach of the type referred to in clause (i) or (ii) above.
(b) The Signing Stockholders acknowledge and agree that, in
the event of the occurrence of any Purchaser Indemnified Matter, then
Purchaser shall be deemed, by virtue of its ownership of Xxxxx Common Stock,
to have incurred Damages as a result of such Purchaser Indemnified Matter.
Nothing contained in this Section 12.4(b) shall have the effect of (i)
limiting the circumstances under which Purchaser may otherwise be deemed to
have incurred Damages for purposes of this Agreement, (ii) limiting the other
types of Damages that Purchaser may be deemed to have incurred (whether in
connection with any such Breach or Liability or otherwise) or (iii) limiting
the rights of Xxxxx or any of the other Purchaser Indemnitees under this
Section 12.4. Nothing in this Agreement shall be deemed to provide that more
than one Purchaser Indemnitee shall be entitled to recover Damages from any
Signing Stockholder with respect to the same Breach or alleged Breach of the
type referred to in clauses (i) and (ii) of Section 12.4(a).
12.5 INDEMNIFICATION BY PURCHASER AND MERGER SUB.
(a) To the extent permitted by applicable law, but subject to
the terms and limitations of this Section 12, from and after the Effective Time,
Purchaser and Merger Sub, jointly and severally, shall hold harmless and
indemnify each of the Stockholder Indemnitees from and against, and shall
compensate and reimburse each of the Stockholder Indemnitees for, any Damages
which are directly or indirectly suffered or incurred by any of the Stockholder
Indemnitees or to which any of the Stockholder Indemnitees may otherwise become
subject at
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any time (regardless of whether or not such Damages relate to any third-party
claim) and which arise directly or indirectly from or as a direct or indirect
result of, or are directly or indirectly connected with:
(i) any Breach at Closing of any representation or
warranty made by Purchaser or Merger Sub in this Agreement (except with
respect to Section 4.28, without giving effect to any Purchaser Material
Adverse Effect qualification or any other qualification by the words
"material," "materially" or "in all material respects" contained directly in
such representation or warranty but giving effect to any update to the
Purchaser Disclosure Schedule delivered by Purchaser and Merger Sub to Xxxxx
at or prior to the Closing);
(ii) any Breach of any covenant or obligation of
Purchaser or Merger Sub in this Agreement which covenant or obligation, by
its terms, is to be performed in full by Purchaser or Merger Sub prior to
Closing; or
(iii) any (A) Proceeding brought by a third-party as
contemplated by Section 12.10 arising out of any Breach or alleged Breach of
the type referred to in clause (i) or (ii) above, or (B) arbitration or other
Proceeding brought by a Stockholder Indemnitee as allowed by Section 12.12 or
pursuant to Section 13.13 for the purpose of enforcing any of its rights
under this Section 12 or Section 13.13 in respect of any Breach or alleged
Breach of the type referred to in clause (i) or (ii) above.
(b) Each of Purchaser and Merger Sub acknowledges and agrees
that, in the event of the occurrence of a Stockholder Indemnified Matter,
then the Signing Stockholders shall be deemed, by virtue of their direct or
indirect ownership of Purchaser Capital Stock, to have incurred Damages as a
result of such Breach, inaccuracy, misrepresentation or omission.
12.6 THRESHOLD; CEILING.
(a) Subject to Section 12.6(c), Purchaser and Merger Sub
shall not be required to make any indemnification payment pursuant to Section
12.5 until such time as the total amount of all Damages that have been
directly or indirectly suffered or incurred by any one or more of the
Stockholder Indemnitees, or to which any one or more of the Stockholder
Indemnitees has or have otherwise become subject, exceeds $650,000 in the
aggregate. At such time as the total amount of such Damages exceeds $650,000
in the aggregate, the Stockholder Indemnitees shall be entitled to be
indemnified (on the terms stated in this Section 12) only against the portion
of such Damages exceeding $650,000.
(b) Subject to Section 12.6(c), the maximum liability of
Purchaser and Merger Sub under Section 12.5(a) shall be limited to $1,011,633.
(c) The limitations on the Purchaser's and Merger Sub's
indemnification obligations that are set forth in Sections 12.6(a) and
12.6(b) shall not apply to any Breach of the Purchaser Specified
Representations other than a Breach of Section 4.4. In addition, the
limitations on Purchaser's and Merger Sub's obligations that are set forth in
Sections 12.6(a) and 12.6(b) shall not apply to Damages arising out of a
Breach of a representation, warranty or covenant if (i) Purchaser or Merger
Sub had Knowledge of such Breach as of the Closing and (ii) such Breach was
not disclosed to Xxxxx at or prior to Closing.
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12.7 SATISFACTION OF INDEMNIFICATION CLAIM. In the event any
Signing Stockholder, Purchaser or Merger Sub shall have any liability (for
indemnification or otherwise) to any indemnitee under this Section 12, such
Signing Stockholder, Purchaser or Merger Sub shall satisfy such liability by
delivering (or, in the case of indemnity by Purchaser or Merger Sub, issuing
and delivering) to such indemnitee the number of shares of Purchaser Capital
Stock determined by dividing (a) the aggregate dollar amount of such
liability by (b) the Fair Market Value per Share of Purchaser Capital Stock
subject to adjustment if after the date of this Agreement the outstanding
shares of Purchaser Capital Stock are changed into a different number or
class of shares by reason of any stock dividend, subdivision,
reclassification, recapitalization, split-up, combination or similar
transaction.
12.8 NO CONTRIBUTION. Except for rights and claims reserved as
provided in Section 2(d) of the Release signed by each Signing Stockholder at
Closing, the form of which is attached hereto as Exhibit O, from and after
the Effective Time each Signing Stockholder waives, and acknowledges and
agrees that such Signing Stockholder shall not have and shall not exercise or
assert or attempt to exercise or assert, any right of contribution or right
of indemnity or any other right or remedy against Xxxxx in connection with
any indemnification obligation to which such Signing Stockholder may become
subject under this Section 12.
12.9 EXCLUSIVITY OF INDEMNIFICATION REMEDIES.
(a) To the fullest extent permitted by applicable law from
and after the Effective Time, except with respect to fraud claims and claims
under applicable securities laws, the indemnification remedies and other
remedies provided in this Section 12 or in Section 13.13 shall be the
exclusive remedies of the Purchaser Indemnitees for the Breach of any
representation, warranty, covenant or obligation by Xxxxx or any Signing
Stockholder in this Agreement (without limiting the rights of the parties
under any other agreement), and shall be in lieu of any rights the Purchaser
Indemnitees otherwise may have under law or in equity to seek or obtain
Damages or any other remedy against the Signing Stockholders with respect to
any such Breaches, all of which other rights and remedies each of the
Purchaser Indemnitees hereby waives.
(b) To the fullest extent permitted by applicable law from
and after the Effective Time, except with respect to fraud claims and claims
under applicable securities laws, the indemnification remedies and other
remedies provided in this Section 12 or in Section 13.13 shall be the
exclusive remedies of the Stockholder Indemnitees for the Breach of any
representation, warranty, covenant or obligation by Purchaser in this
Agreement (without limiting the rights of the parties under any other
agreement), and shall be in lieu of any rights the Stockholder Indemnitees
otherwise may have under law or in equity to seek or obtain Damages or any
other remedy against Purchaser and Merger Sub with respect to any such
Breaches, all of which other rights and remedies each of the Stockholder
Indemnitees hereby waives.
(c) Notwithstanding Section 12.9(a) or 12.9(b), nothing in
this Section 12 shall limit or adversely affect any right or remedy of any
party hereto with respect to any Breach or alleged Breach by another party
hereto of any covenant or obligation in this Agreement or in any of the other
Transactional Agreements, which covenant or obligation by its terms is to be
performed or complied with at or after Closing.
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12.10 THIRD PARTY CLAIMS.
(a) Any party seeking indemnification under this Section 12
(an "indemnified party") in connection with any claim or Proceeding asserted
by a third party which is reasonably likely to result in a claim for
indemnification under Section 12 of this Agreement shall provide notice to
the indemnifying party of any such claim or Proceeding, provided that any
notice to the Stockholders with respect to a claim pursuant to Section 12.2
may be properly made by Purchaser to the Agent.
(b) If a third party asserts that an indemnified person is
liable to such third party for a monetary or other obligation which may
constitute or result in Damages for which such indemnified person may be
entitled to indemnification pursuant to Section 12 of this Agreement, and
such indemnified person reasonably determines that it has a valid business
reason to fulfill such obligation, then: (i) such indemnified person may
make a claim against the indemnifying party for indemnification pursuant to
Section 12; and (ii) such indemnified person shall be reimbursed, in
accordance with the provisions hereof, for any such Damages for which it is
entitled to indemnification pursuant to Section 12.
(i) Within 20 days after delivery of any notification
contemplated by Section 12.10(a), the indemnifying party may, subject to the
provisions of Section 12.10(c)(ii), upon written notice thereof to the
indemnified party, assume control of the defense of such claim or Proceeding
with counsel selected by the indemnifying party and reasonably satisfactory
to the indemnified party. If the indemnifying party does not assume control
of such defense, the indemnified party shall control such defense. The party
not controlling such defense may participate therein at its own expense;
provided that if the indemnifying party assumes control of such defense and
if independent counsel for the indemnified party reasonably concludes that it
and the indemnifying party have conflicting interests with respect to such
claim or Proceeding, the reasonable fees and expenses of counsel to the
indemnified party incurred in connection with the defense of such claim or
Proceeding shall be considered Damages for purposes of this Agreement. The
party controlling such defense shall keep the other party advised of the
status of such claim or Proceeding and the defense thereof and shall consider
in good faith recommendations made by the other party with respect thereto.
(ii) Prior to settling or compromising any claim or
Proceeding, the indemnifying party shall consult with, and duly take into
account the interests of, the indemnified party. The indemnifying party
shall provide the indemnified party with at least ten business days' advance
written notice of any settlement or compromise of a claim or Proceeding that
the indemnifying party intends to accept, and the indemnifying party shall
not agree to any settlement of any claim or Proceeding without the prior
written consent of the indemnified party, which consent shall not be
unreasonably withheld. Likewise, the indemnifying party shall not be liable
for any settlement of any claim or Proceeding entered into without the prior
written consent of the indemnifying party, which consent shall not be
unreasonably withheld. It is expressly agreed that it shall be construed as
reasonable hereunder for an indemnified party to withhold its consent unless
such settlement provides for full and unconditional release of such party
from any and all liabilities and obligations of any nature whatsoever with
respect to such claim or Proceeding.
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(iii) In the event that the indemnified party withholds
its consent to a settlement under Section 12.10(c)(ii), and such consent has
been unreasonably withheld (taking into consideration the final sentence of
Section 12.10(c)(ii)), the indemnifying party shall not settle or compromise
such claim or Proceeding on the terms proposed, and the indemnified party
shall assume control of the claim or Proceeding. In such event, the
indemnified party shall hold harmless and indemnify the indemnifying party to
the extent (A) the indemnifying party's indemnity obligations are increased
as a result of the failure of such claim or Proceeding to be settled or
compromised as proposed in the offer that was acceptable to the indemnifying
party (the "Original Offer") and (B) the indemnifying party is required to
pay any Damages with respect to such claim or Proceeding in excess of the
amount the indemnifying party would otherwise have incurred under the
Original Offer; PROVIDED, HOWEVER, that the indemnifying party shall remain
liable in any event up to the amount proposed in the Original Offer. If,
however, any Damages paid with respect to such claim or Proceeding, or any
compromise or settlement of such claim or Proceeding, shall be less than the
amount proposed in the Original Offer, then the indemnifying party shall
indemnify the indemnified party for the payment of Damages of such compromise
or settlement subject to the limitations set forth in this Section 12.
(iv) Notwithstanding any of the foregoing, if a claim
or Proceeding relates to a matter which, if adversely determined, would (A)
have a material adverse impact on Purchaser's liability in another Proceeding
which is not subject to indemnification hereunder, (B) have a material
adverse impact on the future conduct of Purchaser or its affiliates' business
or operations on a continuing basis; or (C) have a material adverse impact on
Purchaser or its affiliates' tax or accounting positions on a continuing
basis, then Purchaser shall have the right to defend, contest, settle and
otherwise control the resolution of any such claim or Proceeding, with one
counsel selected by Purchaser and reasonably satisfactory to the indemnifying
party; provided, however, that the Stockholders shall have the same rights of
participation and same right to consent to a settlement provided to an
indemnified party under the foregoing provisions of this Section 12.10(c).
12.11 EXERCISE OF REMEDIES BY INDEMNITEES.
(a) No Purchaser Indemnitee (other than Purchaser or any
successor thereto or assign thereof) shall be permitted to assert any
indemnification claim or exercise any other remedy under this Agreement
unless Purchaser (or any successor thereto or assign thereof) shall have
consented to the assertion of such indemnification claim or the exercise of
such other remedy.
(b) No Stockholder Indemnitee (other than Agent or any
successor thereto or assign thereof) shall be permitted to assert any
indemnification claim or exercise any other remedy under this Agreement
unless the Stockholder Indemnitee entitled to indemnification (or any
successor thereto or assign thereof) shall have consented to the assertion of
such indemnification claim or the exercise of such other remedy.
12.12 CLAIMS BETWEEN THE PARTIES NOT INVOLVING THIRD PARTY CLAIMS.
(a) Subject to the terms and limitations set forth in this
Section 12, if at any time or from time to time an indemnified party seeks to
make indemnification claims against an
85
indemnifying party for amounts due to such indemnified party pursuant to
Section 12 not arising out of a claim or proceeding asserted or brought by a
third party covered by Section 12.12, it shall duly deliver to the
indemnified party a notice (a "Notice") setting forth:
(i) the specific representation, warranty or covenant
in the Agreement alleged to have been Breached by the indemnifying party;
(ii) a summary of the facts and circumstances giving
rise to the alleged Breach of such representation, warranty or covenant by
the indemnifying party; and
(iii) a description of, and a reasonable estimate of
the total amount of, the Damages actually incurred or expected to be incurred
by the indemnified party as a result of such alleged Breach.
If a Notice relates to an alleged Breach of a representation or
warranty in this Agreement and such Notice shall not have been delivered to
the indemnifying party on or prior to the Expiration Date (or, if later, the
date on which such representation or warranty expires as stated in Section
12.1(a)), then such Notice shall not be deemed to have been delivered and
shall be of no force or effect. A Notice by Purchaser or Merger Sub with
respect to a claim for indemnification pursuant to Section 12.2 shall be
deemed to have been delivered to the Stockholders if such Notice is delivered
by Purchaser or Merger Sub to the Agent and to the Trustee of the Trust.
(b) Within twenty (20) days after the delivery of a Notice
in accordance with Section 12.12(a), the indemnifying party may, in its sole
discretion, deliver to the indemnified party who delivered the Notice a
written notice (the "Response Notice") containing (i) a statement
substantially to the effect that the indemnification claim described in such
Notice is not being disputed, (ii) a statement substantially to the effect
that a portion of the dollar amount of Damages set forth in such Notice is
being disputed (specifying the dollar amount of the portion that is not being
disputed) or (iii) a statement substantially to the effect that the entire
dollar amount of Damages set forth in such Notice is being disputed. (Any
portion of the dollar amount of such Damages that is not being disputed shall
be referred to in this Agreement as the "Undisputed Amount," and the
remaining portion of such Damages shall be referred to in this Agreement as
the "Disputed Amount.") If no Response Notice is delivered within twenty (20)
days after the delivery of a Notice to an indemnifying party, then the
indemnifying party shall be deemed not to be disputing the Damages described
in the Notice.
(c) If (i) an indemnifying party is disputing all or any
portion of the dollar amount of the Damages set forth in a Notice, and (ii)
within forty five (45) days after the delivery of a Notice by an indemnified
party to an indemnifying party in accordance with Section 12.12(a), the
parties do not reach agreement with respect to the dispute, then the
indemnification claim or claims described in such Notice shall be referred to
an arbitrator chosen jointly by the indemnified party and the indemnifying
party. If the indemnified party and the indemnifying party do not agree on
the selection of an arbitrator within ten (10) days after the expiration of
the forty five (45) day period referred to in this Section 12.12(c), either
the indemnified party or the indemnifying party may submit the matter in
dispute for resolution pursuant to a binding arbitration proceeding under
Judicial Arbitration & Mediation
86
Services/Endispute, Inc. ("JAMS"). The venue for such arbitration proceeding
shall be Dallas, Texas. Subject to the terms and limitations set forth in
this Section 12, (i) the arbitrator's fees and other related expenses of any
arbitration under this Agreement (such as expenses for transcripts of the
arbitration proceedings) shall be borne by the parties to the arbitration in
such proportions as shall be determined by the arbitrator, or if there is no
such determination, then such fees and other expenses shall be borne equally
by the parties to the arbitration, (ii) the arbitrator shall have the
authority to make an award specifying the dollar amount (if any) representing
the portion of the Disputed Amount that is to be awarded to the indemnified
party, but shall have no right to grant special, punitive or exemplary
damages or indirect or consequential damages or to grant any form of
equitable relief and (iii) the determination of the arbitrator as to the
dollar amount (if any) representing the portion of the Disputed Amount that
is payable shall be conclusive and binding upon the parties hereto and
judgment may be entered thereon in any court having jurisdiction thereof.
12.13 STOCKHOLDERS' AGENT.
(a) The Stockholders, except for the Trustee of the Trust,
individually and collectively, hereby irrevocably nominate, constitute and
appoint C. Xxxxx Xxxxxxxxx as the agent and true and lawful representative
and attorney-in-fact of the Stockholders (the "Agent"), with full power of
substitution, to act in the name, place and stead of the Stockholders, and as
the only person authorized to take any action required, authorized or
contemplated by this Section 12, in respect of any claim made pursuant to
Section 12.2 of this Agreement (the "Indemnification Obligations"),
including, without limitation, any settlement, compromise or defense of the
Indemnification Obligations, C. Xxxxx Xxxxxxxxx hereby accepts his
appointment as Agent.
(b) The Stockholders, except for the Trustee of the Trust,
hereby grant to the Agent full authority to take or omit to take any action,
and execute, deliver, acknowledge, certify and file on behalf of the
Stockholders (in the name of any or all of the Stockholders or otherwise),
except for the Trustee of the Trust, any and all documents, that the Agent
may, in his sole discretion, determine to be necessary, desirable or
appropriate, in such forms and containing such provisions as the Agent may,
in his sole discretion, determine to be appropriate with respect to the
Indemnification Obligations. Notwithstanding anything to the contrary
contained in any of the Transactional Agreements:
(i) Purchaser shall be entitled to deal exclusively
with the Agent and the Trustee of the Trust on all matters relating to the
Indemnification Obligations; and
(ii) with respect to the Indemnification Obligations,
each Purchaser Indemnitee shall be entitled to rely conclusively (without
further evidence of any kind whatsoever) on any document executed or
purported to be executed on behalf of any Signing Stockholder (other than the
Trustee of the Trust) by the Agent, and on any other action taken or
purported to be taken on behalf of any Stockholder (other than the Trustee of
the Trust) by the Agent, as fully binding upon such Stockholder.
(c) The Stockholders, except for the Trustee of the Trust,
recognize and intend that the power of attorney granted in Section 12.13(a):
87
(i) is coupled with an interest and is irrevocable;
(ii) may be delegated by the Agent; and
(iii) shall survive the death, disability or legal
incapacity of each of the Stockholders.
(d) The Agent shall receive and deliver notices on behalf of
the Stockholders, except for the Trustee of the Trust, and take all such
action as he may deem necessary, appropriate, permitted or advisable to be
taken by or on behalf of the Stockholders, except for the Trustee of the
Trust, under this Section 12 in order to consent to, pay, contest, arbitrate,
litigate or settle any claim or alleged claims asserted with respect to the
Indemnification Obligations, upon receipt of instructions from a majority of
the Stockholders other than the Trustee of the Trust (based on the number of
Shares held immediately prior to Closing). The Agent shall not be personally
liable to the other Stockholders for any action taken, suffered or omitted by
him in good faith and believed by him to be authorized by the Stockholders
under this Section 12.13.
(e) In acting as the representative of the Stockholders, the
Agent may rely upon, and shall be protected in acting or refraining from
acting upon, an opinion of counsel, certificate of auditors or other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, arbitrator's award, appraisal, bond or other paper or
document reasonably believed by him to be genuine and to have been signed or
presented by the proper party or parties. The Agent may consult with counsel
and any advice of such counsel shall be full and complete authorization and
protection in respect to any action taken or suffered or omitted by him in
such capacity in good faith and in accordance with such opinion of counsel.
The Agent may perform his duties as Agent either directly or by or through
his agents or attorneys and the Agent shall not be responsible to the other
Stockholders for any misconduct or negligence on the part of any agent or
attorney appointed with reasonable care by the Agent hereunder.
(f) Within ten days after receiving notice of the death or
incapacity of the Agent, the Stockholders shall by majority vote other than
the Trustee of the Trust (based on the number of Shares held immediately
prior to Closing) appoint a successor to fill the vacancy. The Stockholders
(other than the Trustee of the Trust) may by such majority vote remove the
Agent with or without cause and appoint a successor, provided that notice
thereof is given by the new Agent to each of the other parties hereto. The
Agent may resign if, and only if, he is simultaneously replaced with a
substitute Agent. Any Agent appointed from time to time hereunder who is not
also a Stockholder must be reasonably acceptable to Purchaser. If for any
reason there is no Agent at any time, all references herein to the Agent
shall be deemed to refer to the Stockholders.
(g) The Agent shall serve as such without compensation, but
all expenses incurred by the Agent in connection with the performance of his
duties as Agent shall be borne and paid by the Stockholders (other than the
Trustee of the Trust) pro rata in accordance with their respective ownership
of Shares immediately prior to Closing.
SECTION 13. MISCELLANEOUS PROVISIONS
13.1 INTENTIONALLY OMITTED.
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13.2 Intentionally Omitted.
13.3 Further Assurances. Each party hereto shall execute and/or
cause to be delivered to each other party hereto such instruments and other
documents, and shall take such other actions, as such other party may
reasonably request (prior to, at or after the Closing) for the purpose of
carrying out or evidencing any of the Transactions.
13.4 FEES AND EXPENSES. Subject to Section 12 and Section 13.5 or
as otherwise provided in any of the Transactional Agreements, each party to
this Agreement shall bear and pay all fees, costs and expenses (including
legal fees and accounting fees) that have been incurred or that are incurred
in the future by such party in connection with the transactions contemplated
by this Agreement, including all fees, costs and expenses incurred by such
party in connection with or by virtue of:
(a) the negotiation, preparation and review of any term
sheet or similar document relating to any of the Transactions;
(b) the investigation and review conducted by Purchaser,
Merger Sub and their Representatives with respect to Xxxxx'x business (and
the furnishing of information to Purchaser, Merger Sub and their
Representatives in connection with such investigation and review);
(c) the negotiation, preparation and review of this
Agreement (including the disclosure schedules), the other Transactional
Agreements and all certificates, opinions and other instruments and documents
delivered or to be delivered in connection with the Transactions;
(d) the preparation and submission of any filing or notice
required to be made or given in connection with any of the Transactions, and
the obtaining of any Consent required to be obtained in connection with any
of the Transactions; and
(e) the consummation and performance of the Transactions.
Xxxxx shall pay the reasonable fees, costs and expenses of Xxxxxxxxxxx &
Price, L.L.P., Xxxxxxx & Xxxxx P.C., Houthoff and Xxxxxxx Xxxxxxx LLP.
Purchaser acknowledges that Purchaser shall pay the filing fee in connection
with filing the required notifications under the HSR Act.
13.5 ATTORNEYS' FEES. Except for actions or proceedings related to
claims for indemnification pursuant to Section 12 of this Agreement, which
are governed by Section 12 of this Agreement, if any legal action or other
legal proceeding relating to any of the Transactional Agreements or the
enforcement of any provision of any of the Transactional Agreements is
brought against any party hereto, the prevailing party shall be entitled to
recover reasonable attorneys' fees, costs and disbursements (in addition to
any other relief to which the prevailing party may be entitled).
13.6 NOTICES. Any notice or other communication required or
permitted to be delivered to any party under this Agreement shall be in
writing and shall be deemed properly delivered, given and received when
delivered (by hand, by registered or certified mail, by courier or express
delivery service or by telecopier) to the address or telecopier number set
forth beneath
89
the name of such party below (or to such other address or telecopier number
as such party shall have specified in a written notice given to the other
parties hereto):
if to Xxxxx:
X.X. Xxxxx Co.
0000 XxXxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Telecopier: (000) 000-0000
with a copy (which shall not constitute notice to Xxxxx)
to:
Xxxxxxx Xxxxx, Esq.
Xxxxxxxxxxx & Price, L.L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telecopier: (000) 000-0000
if to any of the Signing Stockholders, in accordance with the
notice provisions contained in the Joinder Agreement:
if to Purchaser or Merger Sub:
Metron Technology B.V.
0000 Xxx Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Telecopier: (000) 000-0000
WITH A COPY TO:
Xxxx X. Xxxxxxxxx, Esq.
Xxxxxxx Xxxxxxxx Xxxxxx, Esq.
Xxxxxx Godward LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
Telecopier: (000) 000-0000
The addresses set forth in Section 13.6 for Xxxxx and Merger Sub constitute
the addresses of such parties, as constituent entities in the Merger,
required to be set forth herein pursuant to Section 92A.100, Nevada Revised
Statutes.
13.7 PUBLICITY. Without limiting the generality of anything
contained in Section 8.2, on and at all times after the Closing Date, except
as required by law:
90
(a) no press release or public announcement concerning the
Transactions shall be issued, given, made or otherwise disseminated by Xxxxx
or any of the Signing Stockholders without the approval of Purchaser, and no
press release or public announcement concerning the Transactions shall be
issued, given, made or otherwise disseminated by Purchaser without the
approval of Xxxxx, and the parties hereto shall continue to keep the
existence and terms of this Agreement and the other Transactional Agreements
strictly confidential;
(b) each Signing Stockholder shall keep strictly
confidential, and shall not use or disclose to any other Person, any
non-public document or other information in such Signing Stockholder's
possession that relates directly or indirectly to the business of Xxxxx,
Purchaser, Merger Sub or any affiliate of Purchaser; and
(c) if a party is required by law to make any disclosure
regarding the Transactions, such party shall advise the other parties, using
its Best Efforts to do so at least five business days before making such
disclosure, of the nature and content of the intended disclosure.
13.8 TIME OF THE ESSENCE. Time is of the essence of this Agreement.
13.9 HEADINGS. The headings contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
13.10 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall constitute an original and all of which,
when taken together, shall constitute one agreement.
13.11 GOVERNING LAW; VENUE.
(a) This Agreement shall be construed in accordance with,
and governed in all respects by, the internal laws of the State of California
(without giving effect to principles of conflicts of laws).
(b) Any legal action or other legal proceeding relating to
this Agreement or the enforcement of any provision of this Agreement shall be
brought or otherwise commenced in any state or federal court located in
Dallas County, Texas. Each party to this Agreement:
(i) expressly and irrevocably consents and submits to
the jurisdiction of each state and federal court located in Dallas County,
Texas (and each appellate court located in the State of Texas) in connection
with any such legal proceeding;
(ii) agrees that each such state and federal court
located in the State of Texas shall be deemed to be a convenient forum; and
(iii) agrees not to assert (by way of motion, as a
defense or otherwise), in any such legal proceeding commenced in any such
state or federal court located in the State of Texas, any claim that such
party is not subject personally to the jurisdiction of such court, that such
legal proceeding has been brought in an inconvenient forum, that the venue of
such
91
proceeding is improper or that this Agreement or the subject matter of this
Agreement may not be enforced in or by such court.
(c) Each Signing Stockholder agrees that, if any Proceeding
is commenced against any Purchaser Indemnitee by any Person in or before any
court or other tribunal anywhere in the world, then such Purchaser Indemnitee
may proceed against such Signing Stockholder in such court or other tribunal
with respect to any indemnification claim or other claim arising directly or
indirectly from or relating directly or indirectly to such Proceeding or any
of the matters alleged therein or any of the circumstances giving rise
thereto. Purchaser agrees that, if any Proceeding is commenced against any
Stockholder Indemnitee by any Person in or before any court or other tribunal
anywhere in the world, then such Stockholder Indemnitee may proceed against
Purchaser in such court or other tribunal with respect to any indemnification
claim or other claim arising directly or indirectly from or relating directly
or indirectly to such Proceeding or any of the matters alleged therein or any
of the circumstances giving rise thereto.
13.12 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon:
Xxxxx and its successors and assigns (if any); the Signing Stockholders and
their respective personal representatives, executors, administrators,
estates, heirs, successors and assigns (if any); and Purchaser, Merger Sub
and its successors and assigns (if any). This Agreement shall inure to the
benefit of: Xxxxx; the Signing Stockholders; Purchaser; Merger Sub; the other
Purchaser Indemnitees (subject to Section 12.11); the Stockholder Indemnitees
(subject to Section 12.11); and the respective personal representatives,
executors, administrators, estate, heirs, successors and assigns (if any) of
the foregoing. The parties may freely assign any or all of their rights (but
not their obligations) under this Agreement (including their indemnification
rights under Section 12), in whole or in part, to any other Person without
obtaining the consent or approval of any other party hereto or of any other
Person; provided, however, that the assigning party shall remain liable for
all liabilities and obligations of the assigning party under this Agreement.
13.13 REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE. Except as set forth
in Section 12, the rights and remedies of the parties hereto shall be
cumulative (and not alternative). The parties to this Agreement agree that,
in the event of any Breach or threatened Breach by any party to this
Agreement of any covenant, obligation or other provision set forth in this
Agreement for the benefit of any other party to this Agreement, such other
party shall be entitled (in addition to any other remedy that may be
available to it under the terms hereof) to (i) a decree or order of specific
performance or mandamus to enforce the observance and performance of such
covenant, obligation or other provision, and (ii) an injunction restraining
such Breach or threatened Breach, and that no party shall be required to
provide any bond or other security in connection with any such decree, Order
or injunction or in connection with any related action or Proceeding.
13.14 WAIVER.
(a) No failure on the part of any Person to exercise any
power, right, privilege or remedy under this Agreement, and no delay on the
part of any Person in exercising any power, right, privilege or remedy under
this Agreement, shall operate as a waiver of such power, right, privilege or
remedy; and no single or partial exercise of any such power, right, privilege
or
92
remedy shall preclude any other or further exercise thereof or of any other
power, right, privilege or remedy.
(b) No Person shall be deemed to have waived any claim
arising out of this Agreement, or any power, right, privilege or remedy under
this Agreement, unless the waiver of such claim, power, right, privilege or
remedy is expressly set forth in a written instrument duly executed and
delivered on behalf of such Person; and any such waiver shall not be
applicable or have any effect except in the specific instance in which it is
given.
13.15 AMENDMENTS. This Agreement may not be amended, modified,
altered or supplemented other than by means of a written instrument duly
executed and delivered on behalf of all of the parties.
13.16 SEVERABILITY. In the event that any provision of this
Agreement, or the application of any such provision to any Person or set of
circumstances, shall be determined to be invalid, unlawful, void or
unenforceable to any extent, the remainder of this Agreement, and the
application of such provision to Persons or circumstances other than those as
to which it is determined to be invalid, unlawful, void or unenforceable,
shall not be impaired or otherwise affected and shall continue to be valid
and enforceable to the fullest extent permitted by law.
13.17 PARTIES IN INTEREST. Subject to Section 13.12 and except for
the provisions of Section 12 hereof, none of the provisions of this Agreement
is intended to provide any rights or remedies to any Person other than the
parties hereto and their respective personal representatives, executors,
administrators, estate, heirs, successors and permitted assigns (if any).
13.18 ENTIRE AGREEMENT. The Transactional Agreements set forth the
entire understanding of the parties relating to the subject matter thereof
and supersede all prior agreements and understandings among or between any of
the parties relating to the subject matter thereof except that the
Confidentiality Agreements shall continue in full force and effect.
13.19 CONSTRUCTION.
(a) For purposes of this Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include the masculine and feminine genders.
(b) The parties hereto agree that any rule of construction
to the effect that ambiguities are to be resolved against the drafting party
shall not be applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(d) Except as otherwise indicated, all references in this
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of
this Agreement and Exhibits to this Agreement.
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13.20 ACKNOWLEDGMENT. Purchaser, Merger Sub and Xxxxx each
acknowledge that C. Xxxxx Xxxxxxxxx will enter into a gain recognition
agreement pursuant to the requirements of United States Treasury Regulation
Section 1.367(a)-3(c)(1))(iii) as required so that the conversion of his
Shares into shares of Purchaser Capital Stock in the Merger will not be
subject to gain recognition under Section 367(a)(1) of the Code.
13.21 NO PERSONAL LIABILITY. None of the directors, officers,
representatives, agents or legal counsel of any party, in their capacity as
such, shall have any liability in Damages, rescission or otherwise to any
other party under or account of this Agreement or any of the Transactions.
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The parties hereto have caused this Agreement to be executed and
delivered as of the date set forth above.
"PURCHASER": METRON TECHNOLOGY B.V.,
a Netherlands corporation
By: \s\ Xx Xxxxx
---------------------------
Name: Xx Xxxxx
-------------------------
Title: President & CEO
------------------------
"MERGER SUB": METRON ACQUISITION SUB, INC.,
a Nevada corporation
By: \s\ Xx Xxxxx
---------------------------
Name: Xx Xxxxx
-------------------------
Title: President
------------------------
"XXXXX": X.X. XXXXX CO.,
a Nevada corporation
By: \s\ C. Xxxxx Xxxxxxxxx
---------------------------
Name:
-------------------------
Title:
------------------------
95
