FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT
AND
INSTRUMENT OF JOINDER
THIS FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT AND INSTRUMENT OF
JOINDER (this "Amendment") is made as of December 20, 1995, by and among
ELECTRICAL DISTRIBUTION ACQUISITION COMPANY, a Delaware corporation ("EDAC"),
DEANCO, INC., a New York corporation ("Deanco"), XXXXXX ELECTRONICS, INC., a
Delaware corporation ("Xxxxxx"), the stockholders of EDAC who were original
signatories of that certain Stock Purchase Agreement dated as November 15, 1995
(the "Stock Purchase Agreement") among EDAC, Deanco, Xxxxxx and such
stockholders, and other stockholders of EDAC who desire to become parties to the
Stock Purchase Agreement.
RECITALS
A. The original signatories of the Stock Purchase Agreement desire
that the following stockholders of EDAC become parties to the Stock Purchase
Agreement and such stockholders desire to do so: Xxxxx Xxxxxx, Anglo Arabic
Investment Corp. (Panama), Xxxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxx, Xxxxxx X.
Xxxxx, Xxxxx Xxxxx, Xxxxxxx X. Xxxxx, Xxx X. Xxxxxx and 3018212 Canada, Inc.
(collectively, the "Joining Stockholders").
B. An incorrect copy of Exhibit IV was included in the Stock
Purchase Agreement which was executed on November 15, 1995 by the original
signatories of the Stock Purchase Agreement and such parties desire that such
Exhibit IV be replaced by the correct exhibit.
NOW, THEREFORE, it is agreed as follows:
1. All capitalized terms used herein and not otherwise defined shall
have the meanings assigned to them in the Stock Purchase Agreement.
2. By executing this Amendment below, EDAC, Deanco, Xxxxxx and those
stockholders of EDAC who were original signatories of the Stock Purchase
Agreement agree that the Joining Stockholders shall be parties to the Stock
Purchase Agreement as fully as if the Joining Stockholders were original
signatories thereof.
3. By executing this Amendment below, the Joining Stockholders agree
to become parties to the Stock Purchase Agreement and to be bound by all terms,
conditions and duties applicable to EDAC Stockholders thereunder, as fully as if
the Joining Stockholders were original signatories thereof.
1
4. Consistent with the foregoing, page 1 attached hereto and Exhibit
I and Exhibit II attached hereto shall be substituted for and shall replace page
1 and Exhibit I and Exhibit II which were part of the Stock Purchase Agreement
which was signed on November 15, 1995. In addition, new signature pages signed
by all of the parties to the Stock Purchase Agreement shall be substituted for
and shall replace the signature pages which were signed on November 15, 1995.
5. Exhibit IV attached hereto shall be substituted for and shall
replace the Exhibit IV which was attached to the Stock Purchase Agreement which
was signed on November 15, 1995.
6. Schedule 13.17 to the Stock Purchase Agreement shall be amended
by adding thereto that certain Sales Tax Indemnification Agreement of even date
herewith among the Key EDAC Stockholders and Xxxxxx.
7. All references in the Stock Purchase Agreement to the "Agreement"
shall be references to the Stock Purchase Agreement as amended by this
Amendment. Except as amended by this Amendment, each of the provisions of the
Stock Purchase Agreement shall remain in full force and effect.
[Signature Pages Follow]
2
IN WITNESS WHEREOF, Deanco, EDAC and Xxxxxx have caused their
corporate names to be hereunto subscribed by their respective officers thereunto
duly authorized and each of the EDAC Stockholders has executed this Amendment,
all as of the day and year first above written.
XXXXXX ELECTRONICS, INC.
By /s/Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Chief Financial Officer
ELECTRICAL DISTRIBUTION
ACQUISITION COMPANY
By /s/Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
DEANCO, INC.
By /s/Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
The undersigned hereby consents to the foregoing Amendment.
SEQUOIA ASSOCIATES,
a California corporation
By /s/Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
3
XXXXX XXXXXX
By: /s/Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXX INVESTMENTS II L.L.C.
By: /s/Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
ANGLO ARABIC INVESTMENT CORP. (PANAMA)
By: /s/Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
APM PROFIT SHARING TRUST
By: /s/Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXXX FAMILY PARTNERSHIP
By: /s/Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
CAXTON XXXXXX (DEANCO), L.P.
By: /s/Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXX X. XXXXXX
By: /s/Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
4
XXXXXX XXXXXX
By: /s/Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXX X. XXXXXXX
By: /s/Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXX X. XXXX
By: /s/Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXXXX FAMILY TRUST U/D
Dated 5/25/89
By: /s/Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXXX X. XXXXXXXX
By: /s/Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
G. XXXXXX XXXXX
By: /s/Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXX X. XXXXXX
/s/Xxxxxx X. Xxxxxx
-----------------------------
XXX X. XXXXX XXX R/O MSTC
Custodian
By: /s/Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
5
XXXXXX & XXXXXX
By: /s/Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
THE XXXXXXX XXXXXXX TRUST
By: /s/Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXX X. XXXXX
By: /s/Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
THE XXXXXXX X. XXXXXX AND XXXXXXXXX XXXXXX
REVOCABLE TRUST U/A/D 7/30/92
By: /s/Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXX FAMILY LIMITED PARTNERSHIP
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXXX X. XXXXXXXX
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXX XXXXX XXXXXX
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
6
XXXXXXX X. XXXXX
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXX X. XXXXXXX and XXXXXXX X. XXXXXXX
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXXXXX AND XXXXXXXXX XXXX FAMILY TRUST U/A DTD 6/10/92
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXX X. XXXXXX
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXX X. XXXXXX
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXX X. XXXXX
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
THE XXXXX FAMILY 1980 TRUST
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
7
THE XXXXXX FAMILY TRUST DTD 8/11/89
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXX XXXXXX
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXXXX XXXXXX
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXX XXXXX
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXX XXXXX LIVING TRUST UTA 10/6/88
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXX XXXXXXXXX
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
O'BRIEN FAMILY LIMITED PARTNERSHIP
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
8
PAGE MILL ASSET MANAGEMENT
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXX X. XXXXX
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXXX X. XXXXX
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXX XXXX
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXX XXXXXXX
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXXXXX 1989 TRUST U/A DATED 1/19/89
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
U.S. TECHNOLOGY
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
9
XXXXX X. XXXXX
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXX X. XXXXX
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXX FAMILY 1989 TRUST
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXXX X. XXXXX
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXX XXX XXXXXXX
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXXXXX X. XXXXXXXX
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
XXX X. XXXXXX
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
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XXXXXX X. WIT
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
3018202 CANADA INC.
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
833210 ONTARIO INC.
By: /s/Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
as Attorney-in-Fact
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STOCK PURCHASE AGREEMENT
THIS AGREEMENT (this "Agreement"), dated as of November 15, 1995, is
by and among ELECTRICAL DISTRIBUTION ACQUISITION COMPANY, a Delaware corporation
("EDAC"), DEANCO, INC., a New York corporation ("Deanco"), the persons set forth
in EXHIBIT I attached hereto (the "Key EDAC Stockholders"), the persons set
forth in EXHIBIT II attached hereto (the "Other EDAC Stockholders"), and XXXXXX
ELECTRONICS, INC., a Delaware corporation ("Xxxxxx").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Stock Purchase Agreement dated as of
September 30, 1994 (the "1994 Stock Purchase Agreement") among EDAC, EDAC
Acquisition Corp., a Delaware corporation and a wholly owned, direct subsidiary
of EDAC ("Acquisition"), Deanco and the stockholders of Deanco identified
therein (the "Former Deanco Stockholders"), Acquisition purchased all of the
outstanding common stock of Deanco and thereafter merged into Deanco, effective
October 11, 1994;
WHEREAS, as a result of the merger of Acquisition into Deanco, EDAC
became the beneficial and record owner of 470,573 shares of the common stock,
par value $.10 per share, of Deanco (the "Deanco Common Stock"), such shares
(collectively, the "Deanco Shares") being all of the issued and outstanding
shares of Deanco Common Stock;
WHEREAS, the Key EDAC Stockholders and the Other EDAC Stockholders
(collectively, the "EDAC Stockholders") are the beneficial owners of an
aggregate of 3,620,450 shares of the common stock, par value $0.01 per share of
EDAC (the "EDAC Common Stock"), such shares (collectively, the "EDAC Common
Shares") being all of the issued and outstanding shares of EDAC Common Stock and
each EDAC Stockholder owning the number of EDAC Common Shares set forth in
EXHIBIT I or EXHIBIT II attached hereto;
WHEREAS, the EDAC Stockholders are the beneficial owners of an
aggregate of 11,100,000 shares of the 10% Non-Cumulative Convertible Preferred
Stock, par value $.50 per share of EDAC (the "EDAC Preferred Stock"), such
shares (collectively, the "EDAC Preferred Shares") being all of the issued and
outstanding shares of EDAC Preferred Stock and each EDAC Stockholder owning the
number of EDAC Preferred Shares set forth in EXHIBIT I or EXHIBIT II attached
hereto;
WHEREAS, the EDAC Stockholders have purchased Floating Rate
Subordinated Notes due December 31, 1999 issued by EDAC in the aggregate
principal amount of $5,961,929 each dated October
1
EXHIBIT I
KEY EDAC
STOCKHOLDERS
Number of EDAC Number of EDAC Principal Amount of
Common Shares Preferred Shares Floating Rate
Name Owned Owned Subordinated Notes
---- -------------- ---------------- -------------------
Caxton Xxxxxx 0 2,640,000 $1,320,000
(Deanco), L.P.
Xxxxxxx Xxxxx & 845,672 1,258,000 $ 105,709
Xxxxx Family 1989 $ 629,000
Trust
Xxxxxx Xxxxxx 634,328 898,000 $ 79,291
$ 449,000
Xxxxx X. Xxxxxxx 716,500 300,000 $ 77,062
$ 150,000
Xxxxxx Xxxxxx 716,500 300,000 $ 77,062
$ 150,000
The Xxxxx Family 0 240,000 $ 120,000
1980 Trust
Xxxxxx X. Xxxxxxxx 265,800 0 $ 26,975
U/D dated 5/25/89
Xxxx Xxxx 150,000 0 $ 6,250
6,250
_________ __________ __________
Total 3,328,800 5,636,000 $3,196,599
1
EXHIBIT II
OTHER EDAC
STOCKHOLDERS
Number of Number of EDAC Principal Amount of
EDAC Common Preferred Shares Floating Rate
Name Shares Owned Owned Subordinated Notes
---- ------------ ---------------- -------------------
Xxxxx Investments II L.L.C. 0 $ 690,000 $ 345,000
Xxxxxx & Xxxxxx 0 600,000 $ 300,000
Xxxxxx X. Wit 0 270,000 $ 135,000
Xxxxxxx Family Partnership 0 240,000 $ 120,000
Anglo Arabic Investment 0 240,000 $ 120,000
Corp. (Panama)
Xxxxx Family Limited 0 180,000 $ 90,000
Partnership
Xxxxxx X. Xxxxxx 0 180,000 $ 90,000
Xxxxxx X. Xxxxxx 0 120,000 $ 60,000
Xxxxx X. Xxxxxxx 0 120,000 $ 60,000
Xxxxxxxx Family Trust U/D 0 120,000 $ 60,000
dated 5/25/89
G. Xxxxxx Xxxxx 0 120,000 $ 60,000
The Xxxxxxx Xxxxxxx Trust 0 120,000 $ 60,000
Xxxxxx X. Xxxxx 0 120,000 $ 60,000
The Xxxxxxx X. Xxxxxx and 0 120,000 $ 60,000
Xxxxxxxxx Xxxxxx
Revocable Trust U/A/D
7/30/92
Xxxxxxx X. Xxxxx 0 120,000 $ 60,000
Xxxxxx X. Xxxxx 0 120,000 $ 60,000
The Xxxxxx Family Trust 0 120,000 $ 60,000
DTD 8/11/89
Xxxxx Xxxxxxxxx 0 120,000 $ 60,000
2
O'Brien Family Limited 0 120,000 $ 60,000
Partnership
Page Mill Asset 0 120,000 $ 60,000
Management
Xxxxxxx X. Xxxxx 0 120,000 $ 60,000
Xxxxxx Xxxxxxx 0 120,000 $ 60,000
Xxxxxxxxx 1989 Trust U/A 0 120,000 $ 60,000
Dated 1/19/89
U.S. Technology 0 120,000 $ 60,000
3018202 Canada Inc. 0 120,000 $ 60,000
833210 Ontario Inc. 0 120,000 $ 60,000
Xxxxxxx X. Xxxxxxxx 92,500 0 $ 11,562
Xxxxxx Xxxxx Xxxxxx 92,500 0 $ 11,562
Xxxxxx X. Xxxxx 0 90,000 $ 45,000
Xxxxxx Xxxxx Living Trust 0 90,000 $ 45,000
UTA 10/6/88
Xxx X. Xxxxxx 61,650 0 $ 7,706
APM Profit Sharing Trust 0 60,000 $ 30,000
Xxxxxx X. Xxxx 0 60,000 $ 30,000
Xxx X. Xxxxx XXX R/O 0 60,000 $ 30,000
MSTC Custodian
Xxxxxxx X. Xxxxxxxx 0 60,000 $ 30,000
Xxxx X. Xxxxxxx and 0 60,000 $ 30,000
Xxxxxxx X. Xxxxxxx
XxxXxxxxx and Xxxxxxxxx 0 60,000 $ 30,000
King 1992 Family Trust
U/A DTD 6/10/92
Xxxxxx X. Xxxxxx 0 60,000 $ 30,000
Xxxxxxxx Xxxxxx 0 60,000 $ 30,000
Xxxxxx Xxxxxx 0 60,000 $ 30,000
Xxxxxx X. Xxxxx 0 60,000 $ 30,000
Xxxxx Xxxxxx 25,000
Xxxxx Xxxxx 20,000 0 $ 2,500
3
Xxxxx Xxxxx 0 4,000 $ 2,000
------- --------- -----------
Total 291,650 5,464,000 $ 2,765,330
4
EXHIBIT IV
TO
STOCK PURCHASE AGREEMENT
Form of Opinion of White & Case
The following opinions will be subject to customary assumptions and
qualifications (including the following definition of the phrase "to our
knowledge" - actual knowledge (without independent investigation) of lawyers at
White & Case who have been principally involved in negotiating and reviewing the
Stock Purchase Agreement and the other Transaction Documents).
The following opinions will be limited to the laws of the United States of
America, the laws of the State of California, the laws of the State of New York
and the Delaware General Corporation Law.
Note: Capitalized terms used herein without definition shall have the meanings
ascribed to them in the Stock Purchase Agreement.
1. Deanco is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of New York and EDAC is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware. Each of Deanco and EDAC has the corporate power
and authority to own, lease and operate its assets and properties and to carry
on its business as now being conducted. Deanco is duly qualified to do business
and is in good standing to do business in Arizona, California, Colorado,
Connecticut, Florida, Georgia, Illinois, Kansas, Maryland, Massachusetts,
Missouri, New Jersey, New York, Oregon and Washington.
2. Deanco's authorized capital stock consists of 4,000,000 shares of
common stock, par value $0.10 per share, of which 470,573 shares are issued and
outstanding. All of the outstanding shares of such common stock have been duly
authorized and validly issued and are fully paid and nonassessable. All of the
outstanding shares of such common stock are held of record by EDAC and, to our
knowledge, are owned free and clear of all Encumbrances. To our knowledge,
there are no existing subscriptions, warrants, rights, options, calls or
commitments of any character whatsoever or agreements to grant the same,
relating to the issuance, sale, delivery or transfer by Deanco or EDAC of any
capital stock of Deanco. To our knowledge, Deanco does not have any outstanding
securities convertible into or exchangeable or exercisable for any shares of
capital stock of Deanco, or any subscriptions, warrants, rights, options, calls
or
1
commitments of any character whatsoever with respect to the issuance, sale or
delivery of such convertible securities.
3. EDAC's authorized capital stock consists of (a) 15,000,000 shares
of common stock, par value $0.01 per share, of which 3,620,450 shares are issued
and outstanding and (b) 11,100,000 shares of 10% Non-Cumulative Convertible
Preferred Stock, par value $0.50 per share, all of which are issued and
outstanding. All of the outstanding shares of such capital stock have been duly
authorized and validly issued and are fully paid and nonassessable. To our
knowledge, there are no existing subscriptions, warrants, rights, options, calls
or commitments of any character whatsoever or agreements to grant the same,
relating to the issuance, sale, delivery or transfer by EDAC of any of its
capital stock. To our knowledge, EDAC does not have any outstanding securities
convertible into or exchangeable or exercisable for any shares of capital stock
of EDAC, or any subscriptions, warrants, rights, options, calls or commitments
of any character whatsoever with respect to the issuance, sale or delivery of
such convertible securities.
4. Deanco has the corporate power and authority to execute and
deliver, and perform its obligations under, the Stock Purchase Agreement [and
the other Transaction Documents to which it is a party]. The execution and
delivery by Deanco of the Stock Purchase Agreement [and the other Transaction
Documents to which it is a party], and the consummation of the transactions
contemplated thereby, have been duly and validly authorized by all necessary
corporate action of Deanco. The Stock Purchase Agreement [and the other
Transaction Documents to which Deanco is a party] have been duly executed and
delivered by Deanco and constitute the legal, valid and binding obligations of
Deanco, enforceable against Deanco in accordance with their respective terms
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally or by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
5. EDAC has the corporate power and authority to execute and
deliver, and perform its obligations under, the Stock Purchase Agreement [and
the other Transaction Documents to which it is a party]. The execution and
delivery by EDAC of the Stock Purchase Agreement [and the other Transaction
Documents to which it is a party], and the consummation of the transactions
contemplated thereby, have been duly and validly authorized by all necessary
corporate action of EDAC. The Stock Purchase Agreement [and the other
Transaction Documents to which EDAC is a party] have been duly executed and
delivered by EDAC and constitute the legal, valid and binding obligations of
EDAC, enforceable against EDAC in accordance with their respective terms except
as enforcement thereof may be limited by bankruptcy,
2
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally or by general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
6. Each of the Key EDAC Stockholders and, to our knowledge, each of
the Other EDAC Stockholders has the full legal right, power and authority to
enter into the Stock Purchase Agreement [and the other Transaction Documents to
which such EDAC Stockholder is a party and to sell, assign, transfer and convey
ownership of such EDAC Stockholder's Shares, free and clear of all adverse
claims. Each of the Key EDAC Stockholders and, to our knowledge, each of the
Other EDAC Stockholders has duly executed and delivered the Stock Purchase
Agreement [and the other Transaction Documents to which such EDAC Stockholder is
a party] and the Stock Purchase Agreement [and such other Transaction Documents]
constitute the legal, valid and binding obligations of such EDAC Stockholder,
enforceable against such EDAC Stockholder in accordance with their respective
terms except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
7. Each EDAC Stockholder is the record owner of the EDAC Common
Shares and EDAC Preferred Shares set forth opposite such EDAC Stockholder's name
on Exhibits I and II to the Stock Purchase Agreement. To our knowledge, the
EDAC Shares are owned of record free and clear of all adverse claims. Assuming
that Xxxxxx is acquiring the EDAC Shares in good faith without notice of any
adverse claim, upon payment for the EDAC Shares in accordance with the
provisions of the Stock Purchase Agreement, Xxxxxx will be the owner of the EDAC
Shares free and clear of any adverse claim.
8. Neither the execution and delivery of the Stock Purchase
Agreement [and the other Transaction Documents], the consummation of the
transactions contemplated thereby, nor compliance by EDAC, Deanco and the EDAC
Stockholders with any of the provisions thereof will (i) violate any applicable
law, (ii) violate any order, judgment or decree of any court, arbitrator or
governmental instrumentality applicable to Deanco or EDAC of which we are aware,
(iii) violate the charter or bylaws of Deanco or EDAC, or (iv) except as
disclosed in Schedules 3.10 and 3.11 to the Stock Purchase Agreement, violate,
conflict with, result in a breach of or constitute a default (or an event which
with the giving of notice or lapse of time or both would constitute a default)
under, any mortgage, lien, lease, agreement, contract or instrument of which we
are aware and to which Deanco, EDAC or any EDAC Stockholder is a party or by
which any of them is bound. Notwithstanding anything to the contrary in clause
(iv) of this
3
paragraph 8, we express no opinion with respect to any lease, agreement,
contract or instrument described in Schedules 3.10 and/or 3.11 to the Stock
Purchase Agreement to the extent no representation or warranty is made with
respect thereto as indicated in such schedules.
9. Except as set forth on Schedules _______ of the Stock Purchase
Agreement, to our knowledge, neither EDAC nor Deanco is engaged in or a party
to, or threatened with, any legal action or other proceeding before any court,
arbitrator or other tribunal or adminstrative agency. To our knowledge, no
action or proceeding has been instituted or threatened before a court or other
governmental body or by any public authority against any EDAC Stockholder or
against Deanco or EDAC to restrain or prohibit any of the transactions
contemplated by the Stock Purchase Agreement.
10. No authorizations, consents or approvals of or filings with any
governmental agencies or authorities are required to be obtained by Deanco or
EDAC or, to our knowledge, any EDAC Stockholder, in connection with the
execution, delivery and performance by Deanco, EDAC and the EDAC Stockholders of
the Stock Purchase Agreement and the other Transaction Documents, other than the
filing which has been made by Deanco or its ultimate parent entity under the HSR
Act.
4
