Exhibit 2.1
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AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
GBC ACQUISITION CORP.
AND
GENERAL BEARING CORPORATION
DATED AS OF JANUARY 19, 2001
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THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
January 19, 2001 (the "Agreement"), is entered into by and between GBC
ACQUISITION CORP., a Delaware corporation ("AcquisitionCo"), and GENERAL BEARING
CORPORATION, a Delaware corporation ("Target").
WHEREAS, the Board of Directors of Target, upon the recommendation
of the special committee of independent directors of Target established to
consider the fairness of the transaction contemplated by this Agreement (the
"Special Committee"), has unanimously approved, and deems advisable and in the
best interests of the stockholders of Target, the merger of AcquisitionCo with
and into Target in accordance with Section 251 of the Delaware General
Corporation Law (the "DGCL") and upon the terms, and subject to the conditions,
of this Agreement (the "Merger");
WHEREAS, the Board of Directors of AcquisitionCo has unanimously
approved, and deems advisable and in the best interests of the stockholders of
AcquisitionCo, the Merger in accordance with Section 251 of the DGCL and upon
the terms, and subject to the conditions, of this Agreement;
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements set forth in this Agreement, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE 1
THE MERGER
Section 1.1. The Merger. At the Effective Time (as hereinafter
defined), upon the terms and subject to the conditions set forth in this
Agreement and in accordance with the DGCL, AcquisitionCo shall be merged with
and into Target at the Effective Time (as defined in Section 1.2) of the Merger.
Following the Merger, the separate corporate existence of AcquisitionCo shall
cease, and Target shall continue as the surviving corporation (the "Surviving
Corporation"). The Merger shall have the effects as provided by the DGCL and
other applicable law.
Section 1.2. Effective Time. As soon as practicable following the
satisfaction or waiver of the conditions set forth in Article 5, the parties
shall file with the Secretary of State of the State of Delaware a certificate of
merger (the "Certificate of Merger") executed in accordance with the relevant
provisions of the DGCL. The Merger shall become effective at such time as the
Certificate of Merger is duly filed in the Department of State of the State of
Delaware, or at such other time as is permissible in accordance with the DGCL
and as AcquisitionCo and Target shall agree and as specified in the Certificate
of Merger (the time the Merger becomes effective being the "Effective Time").
Section 1.3. Closing. The closing of the Merger (the "Closing")
shall take place at 10:00 a.m. on a date to be specified by the parties which
shall be no later than the fifth business day following satisfaction or waiver
of the conditions provided in Article 6, or at such other time and place as
AcquisitionCo and Target shall agree (the "Closing Date").
Section 1.4. Certificate of Incorporation; Bylaws; Officers and
Directors. Pursuant to the Merger: (a) the Certificate of Incorporation and
Bylaws of AcquisitionCo as in effect immediately prior to the Effective Time
shall be the Certificate of Incorporation and Bylaws of the Surviving
Corporation following the Merger, until thereafter changed or amended as
provided therein and in accordance with applicable law; (b) the directors of
AcquisitionCo shall be the directors of the Surviving Corporation following the
Merger and until the earlier of their death, resignation or removal or until
their respective successors are duly elected or appointed and qualified; and (c)
the officers of Target immediately prior to the Effective Time shall be the
officers of the Surviving Corporation until the earlier of their death,
resignation or removal or until their respective successors are duly elected or
appointed and qualified.
ARTICLE 2
EFFECT OF THE MERGER ON CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES
Section 2.1. Effect on Common Stock. As of the Effective Time, by
virtue of the Merger and without any action on the part of AcquisitionCo, Target
or the holders of any shares of common stock, par value $0.01 per share, of
Target ("Target Common Stock"):
(a) Common Stock of AcquisitionCo. Each share of common stock,
par value $0.001 per share, of AcquisitionCo ("AcquisitionCo Common Stock"),
that is issued and outstanding immediately prior to the Effective Time shall be
converted into and become one share of common stock, par value $0.01 per share,
of the Surviving Corporation.
(b) Common Stock of Target. Subject to Sections 2.1(c),
2.1(d), 2.1(e) and 2.2, each share of Target Common Stock that is issued and
outstanding immediately prior to the Effective Time shall be converted into and
become a right to receive $6.50 in cash (the "Merger Consideration") and, when
so converted, shall automatically be canceled and retired and shall cease to
exist, and each holder of a certificate representing any such shares of Target
Common Stock shall, to the extent such certificate represents such shares, cease
to have any rights with respect thereto, except the right to receive the Merger
Consideration allocable to the shares formerly represented by such certificate
upon surrender of such certificate in accordance with Section 2.4.
(c) Target Treasury Stock. Each share of Target Common Stock
that is owned immediately prior to the Effective Time by Target that constitutes
treasury stock in the hands of the holder thereof shall be canceled and retired
and shall cease to exist, and no consideration shall be delivered in exchange
therefor, and the holder of certificates representing any such shares shall
cease to have any rights with respect thereto.
(d) Target Common Stock Held by Subsidiaries. Each share of
Target Common Stock that is owned immediately prior to the Effective Time by any
Subsidiary of Target shall remain outstanding. The term "Subsidiary" means any
corporation, joint venture, partnership, limited liability company or other
entity of which Target, directly or indirectly, owns or controls capital stock
(or other equity interests) representing more than fifty percent of the general
voting power of such entity under ordinary circumstances.
(e) Target Common Stock Held by AcquisitionCo. Each share of
Target Common Stock that is owned immediately prior to the Effective Time by
AcquisitionCo shall be canceled and retired and shall cease to exist, and no
consideration shall be delivered in exchange therefor, and AcquisitionCo shall
cease to have any rights with respect to any certificates representing any such
shares.
Section 2.2. Dissenting Shares.
(a) Notwithstanding anything in this Agreement to the
contrary, shares of Target Common Stock outstanding immediately prior to the
Effective Time and held by a holder who has demanded and perfected such holder's
right to appraisal of such shares in accordance with Section 262 of the DGCL
("Dissenting Shares") shall not be converted into the right to receive the
Merger Consideration, but the holder thereof shall instead be entitled to such
rights as are afforded under the DGCL with respect to such holder's Dissenting
Shares, unless such holder fails to perfect or withdraws or otherwise loses such
holder's right to appraisal.
(b) If any holder of shares of Target Common Stock who demands
appraisal of such holder's shares pursuant to the DGCL fails to perfect or
withdraws or otherwise loses such holder's right to appraisal, at the later of
the Effective Time or upon the occurrence of such event, the Dissenting Shares
of such holder shall be converted into and represent the right to receive the
Merger Consideration, without interest thereon, in accordance with Section
2.1(b).
(c) Target shall provide AcquisitionCo (i) prompt notice of
any written demand for appraisal or payment of the fair value of any shares of
Target Common Stock, withdrawals of such demands, and any other instruments
served pursuant to the DGCL received by the Target and (ii) the opportunity to
direct all negotiations and proceedings with respect to demands for appraisal
under the DGCL. Target shall not voluntarily make any payment with respect to
any demand for appraisal and shall not, except with the prior written consent of
AcquisitionCo, settle or offer to settle any such demands.
Section 2.3. Treatment of Options and Warrants.
(a) Pursuant to the Merger, at the Effective Time, each
outstanding option to purchase shares of Target Common Stock (a "Target Stock
Option"), whether or not vested, will be terminated and, in exchange for such
Target Stock Option, the holder will be entitled to receive, for each share of
Target Common Stock subject to such Target Stock Option, a cash payment equal to
the excess, if any, of the Merger Consideration over the applicable exercise
price.
(b) Pursuant to the Merger, at the Effective Time, each
outstanding warrant to purchase shares of Target Common Stock (a "Target
Warrant"), whether or not vested, will be terminated and, in exchange for such
Target Warrant, the holder will be entitled to receiving for each share of
Target Common Stock subject to such Target Warrant, a cash payment equal to the
excess, if any, of the Merger Consideration over the applicable exercise price.
(c) Prior to the Effective Time, Target shall use its best
efforts to (i) obtain any consents from holders of Target Stock Options and
Target Warrants and (ii) make any amendments to the terms of the Target Stock
Option Plan and any options granted thereunder that, in case of either (i) or
(ii), are necessary or appropriate to give effect to the transactions
contemplated by this Section 2.3.
Section 2.4. Exchange of Certificates.
(a) Exchange Agent. Prior to the Effective Time, Target shall
appoint a bank or trust company to act as exchange agent (the "Exchange Agent")
for the payment of the Merger Consideration. As of the Effective Time, Target
shall have deposited with the Exchange Agent, for the benefit of the holders of
shares of Target Common Stock, for exchange in accordance with this Section 2.4,
the aggregate amount of cash payable pursuant to Section 2.1(b) hereof in
exchange for outstanding shares of Target Common Stock (the "Exchange Fund").
(b) Exchange Procedures. Promptly after the Effective Time,
the Exchange Agent shall mail to each holder of record of a certificate or
certificates that immediately prior to the Effective Time represented
outstanding shares of Target Common Stock, whose shares were converted into the
right to receive cash pursuant to Section 2.1(b) herein, (i) a letter of
transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the certificates representing such shares of Target Common
Stock shall pass, only upon delivery of the certificates representing such
shares of Target Common Stock to the Exchange Agent and shall be in such form
and have such other provisions as the Exchange Agent may reasonably specify),
and (ii) instructions for use in effecting the surrender of the certificates
representing such shares of Target Common Stock, in exchange for the Merger
Consideration. Upon surrender to the Exchange Agent of a certificate or
certificates formerly representing shares of Target Common Stock, together with
a properly completed and duly executed letter of transmittal, and acceptance
thereof by the Exchange Agent, the holder thereof shall be entitled to the
amount of cash into which the number of shares of Target Common Stock formerly
represented by such certificate or certificates surrendered shall have been
converted pursuant to this Agreement. The Exchange Agent shall accept such
certificates upon compliance with such reasonable terms and conditions as the
Exchange Agent may impose to effect an orderly exchange thereof in accordance
with normal exchange practices. After the Effective Time, there shall be no
further transfer on the records of Target or its transfer agent of certificates
representing shares of Target Common Stock and if such certificates are
presented to Target for transfer, they shall be canceled against delivery of the
Merger Consideration allocable to the shares of Target Common Stock represented
by such certificate or certificates. If any Merger Consideration is to be
remitted to a name other than that in which the certificate for the Target
Common Stock surrendered for exchange is registered, it shall be a condition of
such exchange that the certificate so surrendered shall be properly endorsed,
with signature guaranteed, or otherwise be in proper form for transfer and that
the Person requesting such exchange shall pay to Target, or its transfer agent,
any transfer or other taxes required by reason of the payment of the Merger
Consideration to a name other than that of the registered holder of the
certificate surrendered, or establish to the satisfaction of Target or its
transfer agent that such tax has been paid or is not applicable. Until
surrendered as contemplated by this Section 2.4, each certificate for shares of
Target Common Stock shall be deemed at any time after the Effective Time to
represent only the right to receive upon such surrender the Merger Consideration
allocable to the shares represented by such certificate as contemplated by
Section 2.1(b). No interest will be paid or will accrue on any amount payable as
Merger Consideration.
(c) No Further Ownership Rights in Target Stock. The Merger
Consideration paid upon the surrender for exchange of certificates formerly
representing shares of Target Common Stock in accordance with the terms of this
Section 2.4 shall be deemed to have been paid in full satisfaction of all rights
pertaining to the shares of Target Common Stock formerly represented by such
certificates.
(d) Termination of Exchange Fund. Any portion of the Exchange
Fund (including any interest and other income received by the Exchange Agent in
respect of all such funds) which remains undistributed to the holders of the
certificates formerly representing shares of Target Common Stock for six months
after the Effective Time shall be delivered to the
Surviving Corporation, upon demand, and any holders of shares of Target Common
Stock prior to the Merger who have not theretofore complied with this Section
2.4 shall thereafter look only to the Surviving Corporation, and only as general
creditors thereof, for payment of their claim for Merger Consideration to which
such holders may be entitled.
(e) No Liability. No party to this Agreement shall be liable
to any Person (as hereinafter defined) in respect of any amount from the
Exchange Fund delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law. The term "Person" means any
individual, corporation, partnership, trust or unincorporated organization or a
government or any agency or political subdivision thereof.
(f) Lost Certificates. In the event any certificate or
certificates formerly representing shares of Target Common Stock shall have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
Person claiming such certificate or certificates to be lost, stolen or
destroyed, and if required by the Surviving Corporation, the posting by such
Person of a bond in such amount as the Surviving Corporation may reasonably
require as indemnity against any claim that may be made against it with respect
to such certificate, the Exchange Agent will issue in exchange for such lost,
stolen or destroyed certificate the Merger Consideration deliverable in respect
thereof as determined in accordance with this Section 2.4.
(g) Withholding Rights. The Surviving Corporation and the
Exchange Agent shall be entitled to deduct and withhold from the consideration
otherwise payable pursuant to this Agreement to any holder of shares of Target
Common Stock such amounts as the Surviving Corporation or the Exchange Agent is
required to deduct and withhold with respect to the making of such payment under
the United States Internal Revenue Code of 1986, as amended (the "Code"), or any
provision of state, local or foreign tax law applicable to the making of such
payment. To the extent that amounts are so withheld by the Surviving Corporation
or the Exchange Agent, such withheld amounts shall be treated for all purposes
of this Agreement as having been paid to the holder of the shares of Target
Common Stock in respect of which such deduction and withholding was made by the
Surviving Corporation or the Exchange Agent.
Section 2.5. Additional Agreements and Provisions. Upon the terms
and subject to the conditions of this Agreement and subject to the fiduciary
duties of the directors of Target or of its directors constituting the Special
Committee (as determined by such directors in good faith after consultation with
counsel), each of the parties hereto shall use its reasonable best efforts (a)
to cause its respective conditions set forth in Article 6 of this Agreement to
be fulfilled and (b) to take, or cause to be taken, all additional action and to
do, or cause to be done, all additional things necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement. If at any time after the Effective
Time, any further action is necessary or desirable to carry out the purposes of
this Agreement or to vest the Surviving Corporation with full title to all
properties, assets, rights, approvals, immunities and franchises of either
Target or AcquisitionCo, the proper officers and directors of each corporation
that is a party to this Agreement shall take all such necessary action. The
parties hereto agree to use their respective best efforts to challenge any
action brought seeking a temporary restraining order or preliminary or permanent
injunctive relief
which would prohibit, or materially interfere with, the consummation of the
transactions contemplated by this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF TARGET
Target hereby represents and warrants to AcquisitionCo as follows:
Section 3.1. Organization of Target and its Subsidiaries. Target and
each of its Subsidiaries is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization and has all
the requisite corporate power and authority to carry on its business as now
being conducted and to own, lease, use and operate the properties owned and used
by it. Target and each of its Subsidiaries is qualified and in good standing to
do business in each jurisdiction in which the nature of its business requires it
to be so qualified, except to the extent the failure to be so qualified has not
had, and would not reasonably be expected to have, a Material Adverse Effect.
The term "Material Adverse Effect" means a material adverse effect on the
business, assets, liabilities, results of operations or financial condition of
Target and its Subsidiaries, taken as a whole.
Section 3.2. Capitalization of Target; Ownership. The authorized
capital stock of Target consists of 19,000,000 shares of Target Common Stock and
1,000,000 shares of preferred stock, par value $0.01 per share ("Target
Preferred Stock"). As of the date of this Agreement, 4,112,650 shares of Target
Common Stock and no shares of Target Preferred Stock were issued and
outstanding. All of the issued and outstanding shares of capital stock of Target
are duly authorized, validly issued, fully paid and non-assessable and free of
preemptive rights. There are no outstanding subscriptions, options, warrants,
calls rights, convertible securities or other arrangements or commitments
obligating Target to issue any shares of its capital stock other than (i)
options and other rights to receive or acquire an aggregate of 247,800 shares of
Target Common Stock pursuant to the Target Stock Option Plan and (ii) warrants
to purchase 90,000 shares of Target Common Stock issued to the underwriter of
Target's initial public offering. There are no outstanding contractual
obligations of Target to repurchase, redeem or otherwise acquire any shares of
its capital stock. Following the Merger, Target will have no obligation to
issue, transfer or sell any shares of its capital stock or other securities of
Target pursuant to any employee benefit plan or otherwise.
Section 3.3. Subsidiaries of Target. All outstanding shares of
capital stock or other equity interests of each Subsidiary are owned by Target,
free and clear of any and all liens, claims, security interests or options,
except for the pledge of such capital stock and equity interests, and the grant
of security interests, to Target's financial lenders and for restrictions on
transfer under federal and state securities laws. All shares of capital stock of
each Subsidiary which is a corporation have been validly issued and are fully
paid and non-assessable. There are no outstanding options, warrants or other
rights of any kind to acquire (including preemptive rights) any additional
equity interests of any Subsidiary or securities convertible into or
exchangeable for, or which otherwise confer on the holder thereof any right to
acquire, any
additional equity interests of any Subsidiary, nor is any Subsidiary committed
to issue any such option, warrant, right or security. Other than the
Subsidiaries referred to in this Section 3.3, Target does not own, directly or
indirectly, any equity interest in any other corporation, joint venture,
partnership, limited liability company or other entity.
Section 3.4. Authorization. Target has all requisite corporate power
and authority to enter into this Agreement and, subject to any necessary
approval of the Merger by the stockholders of Target, to carry out its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all requisite
corporate action on the part of Target (other than the approval of this
Agreement and the transactions contemplated hereby by the stockholders of
Target). The Board of Directors of Target has adopted resolutions approving this
Agreement and the Merger, and has determined that the terms of the Merger are
fair to, and in the best interests of Target's stockholders other than
AcquisitionCo and/or its stockholders (the "Public Stockholders"). Target has
taken all action necessary to exempt the Merger and the other transactions
contemplated hereby with AcquisitionCo and its affiliates from the operation of
the "Business Combination Statute" at Section 203 of the DGCL. This Agreement
has been duly executed and delivered by Target and, assuming the due
authorization, execution and delivery hereof by AcquisitionCo, constitutes the
valid and binding obligation of Target, enforceable against Target in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally or by general equitable principles.
Section 3.5. Fairness Opinion and Approval by the Special Committee.
On or prior to the date hereof, the Special Committee (i) determined that the
Merger is fair to and in the best interest of the Public Stockholders and (ii)
recommended that the Board of Directors of Target approve and authorize this
Agreement and declare its advisability. The Special Committee has received an
opinion of Xxxxxx, Xxxxxx to the effect that the consideration to be received by
the Public Stockholders in the Merger is fair to such stockholders from a
financial point of view.
Section 3.6. Brokers and Finders. Other than Howard, Lawson, neither
Target nor any Subsidiary has employed any broker, finder, advisor or
intermediary in connection with the transactions contemplated by this Agreement
which would be entitled to a broker's, finder's or similar fee or commission in
connection therewith or upon the consummation thereof. Any such fees due to
Xxxxxx, Xxxxxx shall be paid by Target.
Section 3.7. SEC Documents; Undisclosed Liabilities. Except for the
late filing of financial statements related to Target's prior merger with World
Machinery Company, as reported on Target's Current Report on Form 8-K filed with
the Securities and Exchange Commission (the "SEC") on July 24, 2000, Target has
filed all required reports, schedules, forms, statements and other documents
with the SEC since January 1, 1998 (the "SEC Documents"). As of their respective
dates, the SEC Documents complied in all material respects with the requirements
of the Securities Act of 1933, as amended (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as the case
may be, and the rules and regulations of the SEC promulgated thereunder
applicable to such SEC Documents. Except to the extent that information
contained in any SEC Document has been revised or superseded by a later filed
SEC Document, none of the SEC Documents contains any untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of Target contained or specifically incorporated by reference in the
SEC Documents (including in each case any related notes and schedules) comply as
to form in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with generally accepted accounting principles (except, in
the case of unaudited statements, as permitted by applicable instructions or
regulations of the SEC relating to the preparation of quarterly reports on Form
10-Q) applied on a consistent basis during the period involved (except as may be
indicated in the notes thereto) and fairly present the financial position of
Target as of the dates thereof and the results of operations and cash flows for
the periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments).
Section 3.8. Absence of Certain Changes or Events. Except as
disclosed in the SEC Documents filed and publicly available prior to the date of
this Agreement, since the date of the most recent audited financial statements
included in the filed SEC Documents, Target has conducted its business only in
the ordinary course, and there has not been any material adverse change in the
business or financial condition of Target and its Subsidiaries taken as a whole.
Section 3.9. Solvency. The Target is, and immediately after the
Merger is consummated as contemplated by this Agreement the Surviving
Corporation will be, Solvent. For the purpose of this Agreement, "Solvent"
means, with respect to the Target or the Surviving Corporation as of the date of
any determination, that on such date (a) the Target or the Surviving
Corporation, as the case may be, is able to pay its debts and other liabilities,
contingent obligations and other commitments as they mature in the normal course
of business, (b) the Target or the Surviving Corporation, as the case may be,
does not intend to, and does not believe that it will, incur debts or
liabilities beyond the Target's or the Surviving Corporation's, as the case may
be, ability to pay as such debts and liabilities mature, and (c) the Target or
the Surviving Corporation, as the case may be, is not engaged in a business or a
transaction, and is not about to engage in a business or a transaction, for
which the Target's or the Surviving Corporation's, as the case may be, property
would constitute unreasonably small capital after giving due consideration to
current and anticipated future capital requirements and current and anticipated
future business conduct and the prevailing practice in the industry in which the
Target or the Surviving Corporation, as the case may be, is engaged. In
computing the amount of contingent liabilities at any time, such liabilities
shall be computed as the amount which, in light of the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF ACQUISITIONCO
Section 4.1. Organization and Authority of AcquisitionCo.
AcquisitionCo is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware. AcquisitionCo was incorporated
solely for the purpose of merging with and into Target and since its
incorporation, it has conducted no business of any kind whatsoever.
Section 4.2. Capitalization of AcquisitionCo. The authorized capital
stock of AcquisitionCo consists of 3,000 shares of AcquisitionCo Common Stock,
and, as of the date of the Closing, all 3,000 shares will be issued and
outstanding. All of the issued and outstanding shares of capital stock of
AcquisitionCo are duly authorized, validly issued, fully paid and non-assessable
and free of preemptive rights.
Section 4.3. Authorization. AcquisitionCo has all corporate power
and authority to enter into this Agreement and to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all requisite corporate action
on the part of AcquisitionCo (other than the approval of this Agreement and the
transactions contemplated hereby by the Stockholders of AcquisitionCo.) This
Agreement has been duly executed and delivered by AcquisitionCo and, assuming
the due authorization, execution and delivery hereof by Target, constitutes the
valid and binding obligation of AcquisitionCo, enforceable against AcquisitionCo
in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, or similar laws affecting
creditors' rights generally or by general equitable principles.
Section 4.4. Brokers and Intermediaries. AcquisitionCo has not
employed any broker, finder, advisor or intermediary in connection with the
transactions contemplated by this Agreement which would be entitled to a
broker's, finder's, or similar fee or commission in connection therewith or upon
the consummation thereof.
Section 4.5. Financing. AcquisitionCo has received a letter (the
"Commitment Letter") from KeyBank National Association committing to provide to
AcquisitionCo, upon the terms and subject to the conditions therein, up to
$9,000,000 in financing in connection with the Merger. AcquisitionCo has
furnished a copy of the Commitment Letter to the Special Committee and its
advisers.
Section 4.6. Sale of Target. Neither AcquisitionCo nor any of its
affiliates has any agreement, understanding or any present intention to sell
Target or any material part of Target.
ARTICLE 5
CERTAIN COVENANTS AND AGREEMENTS
Section 5.1. Announcement. Neither Target nor AcquisitionCo shall
issue any press release or otherwise make any public statement with respect to
this Agreement and the transactions contemplated hereby without the prior
consent of the other (which consent shall not be unreasonably withheld), except
as may be required by applicable law or stock exchange regulation.
Notwithstanding anything in this Section 5.1 to the contrary, AcquisitionCo and
Target will, to the extent practicable, consult with each other before issuing,
and provide each other the opportunity to review and comment upon, any such
press release or other public statement with respect to this Agreement and the
transactions contemplated hereby whether or not required by law.
Section 5.2. Notification of Certain Matters. Target shall give
prompt notice to AcquisitionCo, and AcquisitionCo shall give prompt notice to
Target, of (a) the occurrence or nonoccurrence of any event the occurrence or
non-occurrence of which would be likely to cause any representation or warranty
contained in this Agreement to be untrue or inaccurate in any material respect
at or prior to the Effective Time and (b) any material failure of Target, or
AcquisitionCo, as the case may be, to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it hereunder;
provided, however, that the delivery of any notice pursuant to this Section 5.2
shall not limit or otherwise affect the remedies available hereunder to the
party receiving such notice.
Section 5.3. Directors' And Officers' Indemnification.
(a) The Certificate of Incorporation and the Bylaws of the
Surviving Corporation shall contain the same indemnification provisions and
provisions limiting the personal liability of directors and officers for damages
as are presently set forth in the Bylaws and Certificate of Incorporation of
Target, and, for a period of six years from the Effective Date, such provisions
of the Surviving Corporation's Bylaws and Certificate of Incorporation shall not
be amended, repealed or otherwise modified in any manner that would make any of
such provisions less favorable to the directors and officers of Target or the
Surviving Corporation than pertain to such directors and officers as of the date
hereof.
(b) Without limiting the foregoing provisions of Section
5.3(a), from and after the Effective Time and in accordance with Section 5.3(e)
of this Agreement, the Surviving Corporation shall (i) indemnify, defend and
hold harmless the present and former officers, directors, employees, and agents
of Target (collectively, the "Indemnified Parties"), from and against, and pay
or reimburse the Indemnified Parties for, all losses, obligations, expenses,
claims, damages or liabilities (whether or not resulting from third-party claims
and including, without limitation, interest, penalties, out-of-pocket expenses
and the Indemnified Parties' attorneys' fees and costs incurred in the
investigation or defense of any of the same or in asserting any of their rights
hereunder) resulting from or arising out of actions or omissions of such
Indemnified Parties taken or omitted to be taken on behalf of the Target within
the scope of
such Indemnified Parties' official capacities occurring at or prior to the
Effective Time (including, without limitation, the transactions contemplated by
this Agreement) to the fullest extent permitted under the DGCL, the Certificate
of Incorporation or Bylaws of Target in effect as of the date of this Agreement,
including, without limitation, provisions relating to advances of expenses
incurred in the defense of any action or suit, or any indemnification agreement
between the Indemnified Party and Target and, (ii) except as set forth below in
Section 5.3(c), advance to any Indemnified Parties expenses incurred in
defending any action or suit with respect to such matters, to the fullest extent
permitted by the DGCL (and without requiring the Indemnified Party to provide
any bond or other security in respect thereof).
(c) Any Indemnified Party wishing to claim indemnification
under Section 5.3(b) shall provide notice to the Surviving Corporation promptly
after such Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and the Indemnified Party shall permit the Surviving
Corporation (at its expense) to assume the defense of any claim or any
litigation resulting therefrom; provided, however, that (i) counsel for the
Surviving Corporation, who shall conduct the defense of such claim or litigation
shall be reasonably satisfactory to the Indemnified Party and the Indemnified
Party may participate in such defense at such Indemnified Party's expense, and
(ii) the omission by any Indemnified Party to give notice as provided herein
shall not relieve the Surviving Corporation of its indemnification obligation
under this Agreement, except to the extent the Surviving Corporation is actually
prejudiced as a result of such failure to give notice. In the event that the
Surviving Corporation does not promptly assume the defense of any matter as
above provided, or counsel for the Indemnified Parties reasonably believes and
advises the Indemnified Parties in writing that there are issues that raise
conflicts of interest between the Surviving Corporation and the Indemnified
Parties or among the Indemnified Parties, each group of Indemnified Parties who
is not subject to such conflicts may retain counsel satisfactory to such group,
and the Surviving Corporation shall pay all reasonable fees and expenses of such
counsel for each such group of Indemnified Parties promptly as statements
therefor are received; provided, however, that the Surviving Corporation shall
not be liable for any settlement effected without its prior written consent
(which consent shall not be unreasonably withheld); provided, further, however,
that the Surviving Corporation shall not be responsible for the fees and
expenses of more than one law firm for each group of Indemnified Parties without
any such conflicts. The Indemnified Parties shall not be required to seek the
consent of the Surviving Corporation to a settlement of a matter for which
indemnification may be sought under this Section 5.3 if the Surviving
Corporation has breached any of its obligations under the terms of this Section
5.3. In any event, the Surviving Corporation and the Indemnified Parties shall
cooperate in the defense of any action or claim. The Surviving Corporation shall
not, in the defense of any such claim or litigation, except with the consent of
the Indemnified Party (which consent shall not be unreasonably withheld),
consent to entry of any judgment or enter into any settlement that provides for
injunctive or other nonmonetary relief affecting the Indemnified Party or that
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability with respect
to such claim or litigation.
(d) In the event that (i) after the consummation of the merger
contemplated under this Agreement there is a change of control of the Surviving
Corporation
such that the shareholders (including their respective heirs, executors,
administrators, trustees, successors and assigns) of the Surviving Corporation
immediately following the Effective Time, as a group, cease to maintain at least
50.1% of the voting control (directly or indirectly) of the Surviving
Corporation (a "Change of Control") and (ii) following such a Change of Control,
a member of the Special Committee provides within three (3) years after the
Effective Time, pursuant to Section 5.03(c) above, the Surviving Corporation
with proper and timely notice of a claim for indemnification under this
Agreement and the Surviving Corporation fails to admit or assume liability for
such claim within thirty (30) days following its receipt of such notice, then
such Special Committee member may, in accordance with the terms of this Section
5.03(d), institute proceedings to confess judgment against the Surviving
Corporation with respect to such claim in an indeterminate amount; provided,
however, that if such a claim relates to a third-party claim against the Special
Committee member which has resulted in a monetary judgment from a court, then
such Special Committee member may confess judgment in the amount specified in
such monetary judgment; provided, further, that the Surviving Corporation shall
retain the rights set forth in this Section 5.03(d) to contest the amount (or
reasonableness) of any such claim. Upon the institution of such confession of
judgment proceedings, the Surviving Corporation agrees to irrevocably authorize
and empower any attorney or attorneys or the clerk of any court in the States of
Delaware or New York, to appear for and confess judgment against the Surviving
Corporation in an indeterminate amount, as evidenced by an affidavit signed by
the member of the Special Committee asserting such claim, and for so doing a
copy of this Agreement verified by affidavit shall be sufficient warrant, it
being agreed that the foregoing authorization shall be a power coupled with an
interest. Notwithstanding the foregoing, the parties hereto acknowledge and
agree that the Surviving Corporation may enter an appearance with the court
before which such proceedings are instituted and contest (by any available
claims, counterclaims, setoffs or defenses) its liability for such claim or the
amount (or the reasonableness) of the claim; provided, however, that the parties
hereto further agree that the Surviving Corporation's burden of proof, if it
contests any aspect of such a claim, shall be by a preponderance of the
evidence, irrespective of any higher or more stringent standard or burden of
proof available under the then prevailing statutory law, case law or any
evidentiary rules or procedures. In the event the Surviving Corporation is
successful in satisfying the aforementioned preponderance of the evidence burden
of proof in any such contest, the parties agree to immediately take all
necessary actions to cause the execution of any judgment on such claim to be
permanently stayed and vacated. Notwithstanding anything to the contrary set
forth in this Agreement, no judgment relating to a claim for indemnification
hereunder shall be executed upon unless and until the amount thereof is
established by the complaining Special Committee member by a preponderance of
the evidence standard.
(e) The Surviving Corporation shall maintain in effect for six
years from the Effective Time policies of directors' and officers' liability
insurance containing terms and conditions which are not less advantageous to the
insured than any such policies of Target currently in effect on the date of this
Agreement with respect to any and all matters arising before the Effective Time
and any and all acts or omissions occurring or existing at or prior to the
Effective Time, including, but not limited to, the transactions contemplated by
this Agreement. Such policies shall fully insure the members of the Special
Committee even if the members of the Special Committee are not directors of the
Surviving Corporation at the time that
a claim is asserted. The Surviving Corporation shall not cancel such insurance
with respect to any officer or director without the express written consent of
such officer or director (which consent shall not be unreasonably withheld).
(f) This Section 5.3 is intended for the benefit of, and to
grant third party rights to, Persons entitled to indemnification under this
Section 5.3, whether or not parties to this Agreement, and each of such Persons
shall be entitled to enforce the covenants contained herein.
(g) If the Surviving Corporation (i) reorganizes or
consolidates with or merges into any other Person and is not the resulting,
continuing or surviving corporation or entity of such reorganization,
consolidation or merger, or (ii) liquidates, dissolves or transfers all or
substantially all of its properties and assets to any Person or Persons, then,
and in such case, proper provision will be made so that the successors and
assigns of the Surviving Corporation assume all of the obligations of the
Surviving Corporation as set forth in this Section 5.3.
(h) Notwithstanding anything in this Section 5.3 to the
contrary, nothing in this Agreement shall in any way limit the rights of any
party under any indemnity agreement with Target or the Surviving Corporation.
(i) The Surviving Corporation shall reimburse the reasonable
attorneys' fees and court costs of the independent directors of the Special
Committee of the Target in the event that (1) such directors commence an action
against the Surviving Corporation or any of its officers, directors, employees
or agents alleging a breach of any obligation owed to such directors arising
under this Agreement or any obligation owed by the Surviving Corporation to such
directors under the Certificate of Incorporation (as the same may be amended
from time to time) or ByLaws (as the same may be amended from time to time) of
the Target or any obligation owed by the Target to such directors as of the date
of this Agreement under the DGCL and (2) a court of competent jurisdiction,
following a complete adjudication on the merits of the claims asserted in such
action, issues a final, non-appealable order in which it finds that such a
breach in fact occurred.
Section 5.4. Proxy Statement and Schedule 13E-3.
(a) Target and AcquisitionCo shall, as soon as practicable,
jointly prepare the Proxy Statement on Schedule 14A (the "Proxy Statement") to
be distributed to the holders of Target Common Stock for the purpose of
soliciting proxies for use at the annual or special meeting of the stockholders
of Target (the "Stockholders Meeting") at which the adoption of this Agreement
and the approval of the transactions contemplated hereby shall be sought. In the
Proxy Statement, subject to the fiduciary duties of its Board of Directors,
Target shall recommend to its stockholders the approval of the Merger, this
Agreement and the transactions contemplated hereby. Target shall file the Proxy
Statement with the Securities and Exchange Commission (the "SEC") as soon as is
reasonably practicable after the date hereof and shall use all reasonable
efforts to respond to comments from the SEC and to cause the Proxy Statement to
be mailed to Target's stockholders at the earliest practicable time.
(b) None of the information to be supplied by Target for
inclusion in the Proxy Statement will, at the time of the mailing of the Proxy
Statement and any amendments or supplements thereto, 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 light of
the circumstances under which they are made, not misleading. The Proxy Statement
shall, as of its date, comply as to form in all material respects with all
applicable laws, including the provisions of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the rules and regulations promulgated
thereunder. Target shall not mail, amend or supplement the Proxy Statement
unless the Proxy Statement or any amendment or supplement thereof is
satisfactory in content to AcquisitionCo in the exercise of its reasonable
judgment.
(c) None of the information to be supplied by AcquisitionCo or
its stockholders for inclusion in the Proxy Statement will, at the time of the
mailing of the Proxy Statement and any amendments or supplements thereto,
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 light of the circumstances under which they are made, not
misleading.
(d) As soon as practicable after the date of this Agreement,
AcquisitionCo, its stockholders and Target shall file with the SEC a Rule 13e-3
Transaction Statement on Schedule 13E-3 (the "Schedule 13E-3 Transaction
Statement") with respect to the Merger. Each of the parties hereto shall use its
reasonable best efforts to cooperate and to provide each other with such
information as any of such parties may reasonably request in connection with the
preparation of the Proxy Statement and the Schedule 13E-3 Transaction Statement.
Each party hereto shall promptly supplement, update and correct any information
provided by it for use in the Proxy Statement and the Schedule 13E-3 Transaction
Statement if and to the extent that such information is or shall have become
incomplete, false or misleading.
Section 5.5. Stockholders Meeting. Target agrees to seek and solicit
the requisite vote of stockholders at the Stockholders Meeting for the adoption
and approval of this Agreement and the transactions contemplated hereby.
AcquisitionCo agrees to vote all shares of Target Common Stock owned by it, and
to cause its stockholders to vote any and all shares of Target Common Stock that
they may be entitled to vote, at the Stockholders Meeting in favor of the
adoption and approval of this Agreement and the transactions contemplated
hereby.
ARTICLE 6
CONDITIONS PRECEDENT
Section 6.1. Conditions to Each Party's Obligation to Effect the
Merger. The respective obligation of each party to effect the Merger shall be
subject to the satisfaction on or prior to the Closing Date of each of the
following conditions (any of which may be waived by the parties hereto in
writing, in whole or in part, to the extent permitted by applicable law):
(a) No Injunction or Proceeding. No preliminary or permanent
injunction, temporary restraining order or other decree of a court, legislature
or other agency or instrumentality of federal, state or local government (a
"Governmental Entity") shall be in effect, no statute, rule or regulation shall
have been enacted by a Governmental Entity and no action, suit or proceeding by
any Governmental Entity shall have been instituted or threatened, which
prohibits the consummation of the Merger or materially challenges the
transactions contemplated hereby.
(b) Consents. Other than filing the Certificate of Merger, all
consents, approvals and authorizations of and filings with Governmental Entities
required for the consummation of the transactions contemplated hereby, shall
have been obtained or effected or filed.
(c) Approval of Holders of Target Common Stock. This Agreement
and the Merger shall have been adopted by the affirmative vote or written
consent of a majority of the shares of Target Common Stock outstanding.
(d) Recommendation of the Special Committee. The Special
Committee shall not have withdrawn its recommendation that (i) the Merger is
fair to and in the best interest of the Public Stockholders and (ii) the Board
of Directors of Target approve this Agreement and such transactions.
(e) Weighted Average of Target Common Stock. The weighted
average closing bid price of Target Common Stock as reported on the Nasdaq Small
Cap Market for the thirty (30) trading days immediately preceding the Closing
Date shall be no less than $4.00.
Section 6.2. Conditions to the Obligation of Target to Effect the
Merger. The obligation of Target to effect the Merger is further subject to the
satisfaction or waiver of each of the following conditions prior to or at the
Closing Date:
(a) Representations and Warranties. The representations and
warranties of AcquisitionCo contained in this Agreement shall be true and
correct in all material respects at and as of the Effective Time as though made
at and as of the Effective Time and Target shall have received a certificate of
the President of AcquisitionCo to that effect.
(b) Agreements. AcquisitionCo shall have performed and
complied in all material respects with all its undertakings and agreements
required by this Agreement to be performed or complied with by it prior to or at
the Closing Date.
(c) Indemnification Agreement. Messrs. Xxxxxxx X. Xxxxxxx and
Xxxxx Xxxxxxx, on the one hand, and the independent directors of Target, on the
other hand, shall have executed and delivered an indemnification agreement
substantially in the form attached hereto as Exhibit A (the "Indemnification
Agreement").
Section 6.3. Conditions to the Obligation of AcquisitionCo to Effect
the Merger. The obligation of AcquisitionCo to effect the Merger is further
subject to the satisfaction or waiver of each of the following conditions prior
to or at the Closing Date:
(a) Representations and Warranties. The representations and
warranties of Target contained in this Agreement shall be true and correct in
all material respects at and as of the Effective Time as though made at and as
of the Effective Time and AcquisitionCo shall have received a certificate of the
President and Chief Executive Officer of Target to that effect.
(b) Agreements. Target shall have performed and complied in
all material respects with all of its undertakings and agreements required by
this Agreement to be performed or complied with by it prior to or at the Closing
Date.
(c) No Material Adverse Change. Except as set forth in the
Target SEC Reports filed on or prior to the date of this Agreement, and until
the Effective Time, there shall be no material adverse change in the business,
assets, liabilities, results of operations or financial condition of Target and
its Subsidiaries, taken as a whole.
(d) Availability of Funds. AcquisitionCo shall have funds
available to it at the Closing sufficient to pay the aggregate Merger
Consideration, pursuant to the Commitment Letter or any other commitment
acceptable to AcquisitionCo.
(e) Appraisal Rights. The holders of not more than 4% of the
issued and outstanding shares of Target Common Stock shall have exercised, or
given notice of their intent to exercise, their rights to dissent from the
Merger in accordance with Section 262 of the DGCL and pursuant to Section 2.2 of
this Agreement.
ARTICLE 7
TERMINATION, AMENDMENT AND WAIVER
Section 7.1. Termination. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, whether before
or after stockholder approval thereof:
(a) by the mutual written consent of AcquisitionCo and Target;
(b) by either AcquisitionCo or Target, in each case by written
notice to the other, if:
(i) the Merger has not been consummated on or prior to
June 1, 2001; provided, however, that the right to terminate this Agreement
under this Section 7.1(b)(i) shall not be available to any party whose failure
to fulfill any obligation under this Agreement has been the cause of, or
resulted in, the failure of the Merger to occur on or prior to such date; or
(ii) the Special Committee shall have withdrawn, or
modified or changed in any manner adverse to AcquisitionCo its approval of this
Agreement or the Merger after having concluded in good faith after consultation
with independent legal counsel that there is a reasonable probability that the
failure to take such action would result in a violation of its fiduciary
obligations under applicable law.
Section 7.2. Effect of Termination. In the event of the termination
of this Agreement as provided in Section 7.1, this Agreement shall become null
and void, and there shall be no liability on the part of AcquisitionCo or Target
(except as set forth in Section 8.2 hereof, which shall survive any termination
of this Agreement); provided that nothing herein shall relieve any party from
any liability or obligation with respect to any breach of this Agreement.
Section 7.3. Amendment. This Agreement may be amended in writing by
the parties hereto.
Section 7.4. Waiver. At any time prior to the Effective Time,
whether before or after the approval of the holders of Target Common Stock
referred to in Section 6.1(c) hereof, either party may (i) extend the time for
the performance of any of the obligations or other acts of the other party
hereto or (ii) waive compliance with any of the agreements of the other party or
fulfillment of any conditions to its own obligations hereunder. Any agreement on
the part of a party hereto to any such extension or waiver shall be valid only
if set forth in an instrument in writing signed on behalf of such party by a
duly authorized officer.
ARTICLE 8
MISCELLANEOUS
Section 8.1. Non-Survival of Representations and Warranties. Except
for the representations and warranties contained in Section 3.9 of this
Agreement which shall survive the Effective Time irrespective of the passage of
time, none of the representations and warranties in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Effective
Time, and neither AcquisitionCo, Target or any Subsidiary, nor any of their
respective officers, directors, employees, advisors or stockholders shall have
any liability whatsoever with respect to any such representation or warranty
after such time. This Section 8.1 shall not limit any covenant or agreement of
the parties which by its terms contemplates performance after the Effective
Time.
Section 8.2. Expenses. Except as contemplated by this Agreement, all
costs and expenses incurred in connection with the Agreement and the
consummation of the transactions contemplated hereby shall be the obligation of
the party incurring such expenses. All costs and expenses incurred by
AcquisitionCo in connection with the Agreement and the consummation of the
transactions contemplated hereby shall, after the Effective Time, be obligations
of the Surviving Corporation.
Section 8.3. Applicable Law. This Agreement shall be governed by the
laws, excluding conflicts of law rules, of the State of Delaware.
Section 8.4. Notices. All notices, requests, claims, demands and
other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally or sent by facsimile transmission or
overnight courier (providing proof of delivery) to the parties at the following
addresses (or at such address for a party as shall be specified by like notice):
If to Target, to:
General Bearing Corporation
00 Xxxx Xxxxxx
Xxxx Xxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
with copies to:
Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx LLP
0000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx, Esq.
Facsimile No.: (000) 000-0000
General Bearing Corporation
00 Xxxx Xxxxxx
Xxxx Xxxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx, Esq.
Facsimile No.: (000) 000-0000
If to AcquisitionCo, to:
GBC Acquisition Corp.
00 Xxxx Xxxxxx
Xxxx Xxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
with copies to:
Xxxxxx Xxxxxxxx LLP
3000 Two Xxxxx Square
Eighteenth and Arch Streets
Philadelphia, Pennsylvania 19103-2799
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
General Bearing Corporation
00 Xxxx Xxxxxx
Xxxx Xxxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx, Esq.
Facsimile No.: (000) 000-0000
Section 8.5. Entire Agreement. This Agreement (including the
documents and instruments referred to herein) contains the entire understanding
of the parties hereto with respect to the subject matter contained herein, and
supersedes and cancels all prior agreements, negotiations, correspondence,
undertakings and communications of the parties, oral or written, respecting such
subject matter.
Section 8.6. Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by either party
hereto (whether by operation of law or otherwise) without the prior written
consent of the other party.
Section 8.7. Headings; References. The article, section and
paragraph headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
Section 8.8. Counterparts. This Agreement may be executed in one or
more counterparts, each counterpart shall be deemed to be an original but all of
which shall be considered one and the same agreement.
Section 8.9. No Third Party Beneficiaries. Except as provided in
Sections 2.4 and 5.3, nothing in this Agreement, express or implied, is intended
to confer upon any Person not a party to this Agreement any rights or remedies
under or by reason of this Agreement.
Section 8.10. Severability; Enforcement. Any term or provision of
this Agreement that is invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or unenforceability
of any of the terms or provisions of this Agreement in any other jurisdiction.
If any provision of this Agreement is so broad as to be unenforceable, the
provisions shall be interpreted to be only so broad as is enforceable.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first above written.
GENERAL BEARING CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
GBC ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
Exhibit A
Form of Indemnification Agreement by and between Xxxxxxx X. Xxxxxxx and
Xxxxx X. Xxxxxxx, on the one hand, and Xxxxxxx X. Xxxxxxx and Xxxxx Xxxxxx, on
the other hand.