EXHIBIT 2.1
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
among
THE NEW IMPERIAL ELECTRIC COMPANY
THE NEW XXXXX MOTORS COMPANY,
NEW GEAR RESEARCH,
MOTORS AND GEARS, INC.
and
MOTORS AND GEARS INDUSTRIES, INC.
and
THE IMPERIAL ELECTRIC COMPANY,
THE XXXXX MOTORS COMPANY, and
GEAR RESEARCH, INC.
TABLE OF CONTENTS
Page
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ARTICLE I PURCHASE AND SALE; PRICE................................ 1
1.01 Definitions............................................. 1
1.02 Purchase and Sale....................................... 3
1.03 Purchase Price.......................................... 3
1.04 Post Closing Adjustments................................ 4
1.05 Assumed Liabilities..................................... 4
1.06 Purchase Price Allocation............................... 4
1.07 Product Claims and Returns.............................. 4
ARTICLE II REPRESENTATIONS AND WARRANTIES OF SELLERS............... 4
2.01 Corporate Organization, etc............................. 5
2.02 Capital Stock; Options.................................. 5
2.03 Subsidiaries............................................ 5
2.04 Authorization, etc...................................... 5
2.05 No Violation............................................ 5
2.06 Governmental Authorities................................ 5
2.07 Disclosure.............................................. 6
2.08 Title and Related Matters............................... 6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PURCHASER............. 6
3.01 Corporate Organization, etc............................. 6
3.02 Capitalization.......................................... 6
3.03 Authorization, etc...................................... 6
3.04 No Violation............................................ 6
3.05 Governmental Authorities................................ 7
ARTICLE IV COVENANTS OF THE SELLERS................................ 7
4.01 Regular Course of Business.............................. 7
4.02 Amendments.............................................. 7
4.03 Capital Changes......................................... 7
4.04 Dividends; Bonuses...................................... 7
4.05 Capital and Other Expenditures.......................... 7
4.06 Borrowing............................................... 8
4.07 Other Commitments....................................... 8
4.08 Full Access and Disclosure.............................. 8
4.09 Consents................................................ 8
4.10 Breach of Agreement..................................... 8
4.11 Further Assurances...................................... 8
4.12 Fulfillment of Conditions............................... 8
ARTICLE V COVENANTS OF PURCHASER.................................. 9
5.01 Confidentiality......................................... 9
5.02 Books and Records....................................... 9
ARTICLE VI OTHER AGREEMENTS........................................ 9
6.01 Agreement to Defend..................................... 9
6.02 Consultants, Brokers and Finders........................ 9
6.03 Assumption Agreement.................................... 10
6.04 Apportionment of Taxes.................................. 10
6.05 Contingent Earnout Agreement............................ 10
ARTICLE VII CONDITIONS TO THE OBLIGATIONS OF PURCHASER.............. 11
7.01 Representations and Warranties; Performance............. 11
7.02 Consents and Approvals.................................. 11
7.03 Opinion of Sellers' Counsel............................. 11
7.04 No Adverse Change....................................... 11
7.05 No Proceeding or Litigation............................. 11
7.06 Other Documents......................................... 11
7.07 Other Agreements........................................ 12
7.08 Stockholder and Board of Directors Approval............. 12
7.09 Cancellation or Conversion of Intercompany Debt......... 12
7.10 Lender Approvals........................................ 12
7.11 Fairness Opinion........................................ 12
ARTICLE VIII CONDITIONS TO THE OBLIGATIONS OF THE SELLERS............ 12
8.01 Representations and Warranties; Performance............. 12
8.02 No Proceeding or Litigation............................. 12
8.03 Opinion of Counsel...................................... 13
8.04 Payment................................................. 13
8.05 Other Documents......................................... 13
8.06 Other Agreements........................................ 13
8.07 Board of Directors Approval............................. 13
ARTICLE IX CLOSING................................................. 13
9.01 Closing................................................. 13
9.02 Deliveries at Closing................................... 13
9.03 Specific Performance.................................... 14
9.04 Bulk Sales Waiver....................................... 14
9.05 Name Change............................................. 14
ARTICLE X TERMINATION AND ABANDONMENT............................. 15
10.01 Methods of Termination.................................. 15
10.02 Procedure Upon Termination.............................. 15
ARTICLE XI INDEMNIFICATION......................................... 15
11.01 Indemnification of Sellers.............................. 15
11.02 Tender of Defense for Damages........................... 17
11.03 Survival................................................ 17
11.04 Indemnification Exclusive Remedy........................ 18
ARTICLE XII MISCELLANEOUS PROVISIONS................................ 19
12.01 Amendment and Modification.............................. 19
12.02 Waiver of Compliance; Consents.......................... 19
12.03 Expenses................................................ 19
12.04 Investigations; Survival of Warranties.................. 19
12.05 Notices................................................. 19
12.06 Definitions............................................. 21
12.07 Assignment.............................................. 21
12.08 Governing Law........................................... 21
12.09 Counterparts............................................ 21
12.10 Neutral Interpretation.................................. 21
12.11 Headings................................................ 22
12.12 Entire Agreement........................................ 22
SCHEDULE OF EXHIBITS................................................. 26
............................................................... iv
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
-----------------------------------------
THIS AGREEMENT (this "Agreement"), dated as of the 7th day of
November, 1996, is made by and among (A) THE NEW IMPERIAL ELECTRIC COMPANY,
a Delaware corporation (hereinafter "Purchaser"), THE NEW XXXXX MOTORS
COMPANY, a Delaware corporation ("New Xxxxx"), NEW GEAR RESEARCH, INC., a
Delaware corporation ("New Gear"), MOTORS AND GEARS, INC., a Delaware
corporation ("M&G"), and MOTORS AND GEARS INDUSTRIES, INC., a Delaware
corporation ("Industries") and (B) THE IMPERIAL ELECTRIC COMPANY, an Ohio
corporation ("Imperial"), THE XXXXX MOTORS COMPANY, a Delaware corporation
("Xxxxx") and GEAR RESEARCH, INC., a Delaware corporation ("Gear")
(Imperial, Xxxxx and Gear are hereinafter referred to collectively as
"Sellers" and individually as "Seller").
ARTICLE I
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PURCHASE AND SALE; PRICE
------------------------
1.01 Definitions. For purposes of this Article I and other
provisions of this Agreement, the following terms shall have the meanings
set forth below:
"Assumed Liabilities" means the liabilities and obligations of the
Sellers described on Exhibit 1.05 hereto other than the Excluded
Liabilities.
"Capitalized Lease Amount" means the aggregate amounts paid by
Sellers on November 6, 1996 in order to pay-off the outstanding balances
due as of said date with respect to the capitalized leases described on the
attached Exhibit 1.06.
"Closing Balance Sheet" means the unaudited consolidated statement of
financial position of Sellers as at the Closing as prepared by Purchaser in
accordance with generally accepted accounting principals, consistently
applied and reviewed by Ernst & Young LLP.
"Current Operating Liabilities" means the current portion of Sellers'
trade accounts payable, cash overdrafts, accrued payroll, accrued payroll
taxes, advance deposits, accrued sales and use taxes, accrued operating
expenses and other general current operating liabilities other than the
Excluded Liabilities.
"Excluded Liabilities" means the liabilities and obligations of the
Sellers described on Exhibit 1.07 hereto.
"Intercompany Notes" means the obligations of the Sellers to each
other and certain other affiliates pursuant to the Intercompany Notes
described on Exhibit 1.08.
"NWC" means the difference of (a) the sum of all Sellers' net
accounts receivable, inventories (net of reserves), prepaid expenses and
other current assets as reflected in the Closing Balance Sheet, minus (b)
Current Operating Liabilities as reflected in the Closing Balance Sheet.
For example purposes, a calculation of NWC as of December 31, 1995, is
attached as Exhibit 1.01.
"Purchased Assets" means all of Sellers' assets, properties and
rights (real and personal, tangible and intangible) owned or used in the
conduct of their respective businesses as going concerns at December 31,
1995 and all of Sellers' respective assets, properties and rights (real and
personal, tangible and intangible) acquired after said date and owned by
Sellers on the Closing Date except for those assets which have since been
sold, transferred or disposed of in the ordinary and regular course of
business (hereinafter collectively referred to as the "Purchased Assets").
The Purchased Assets shall include, without limitation, the following at
the Closing Date:
(a) Real Property. All of Sellers' right, title and interest
(including leasehold interests as tenant, if any) in the lands, buildings
and any and all improvements thereon.
(b) Equipment. All of Sellers' machinery, equipment, furniture,
fixtures, telephone numbers (toll-free and others) and other personal
property and all of Sellers' fixed assets.
(c) Cash and Accounts Receivable. All of Sellers' cash, cash
equivalents, certificates of deposit, notes receivable (and security
therefor), accounts receivable and all other receivables of any other kind.
(d) Records. All of Sellers' books, financial and business records,
insurance policies and any claims and credits thereunder.
(e) Inventory. All inventories and other supplies pertaining to
Sellers' operations on hand or at third party premises or in transit
including raw materials, work in process and finished goods, and including
all rights of the Sellers to warranties received from suppliers.
(f) Intellectual Property. All of Sellers' interests and rights to
any and all patents, copyrights, trade names, service marks, trademarks,
product designations, trade secrets, formula, processes, know-how and any
other intellectual property, all registrations, applications, assignments,
amendments, research, development, updates and modifications pertaining
thereto and to all drawings, art work, designs, printing plates, dies,
molds, samples and the like relating to Sellers' current business or
business prospects and any corporate name variants thereof.
(g) Other Intangibles. All of Sellers' right, title and interest in
any claims franchises, licenses, permits, options and any inventions,
developments and ideas.
(h) Contracts, Prepaids, Materials, etc. Sellers' rights and
privileges arising from its unshipped orders, prepaid expenses, customer
contracts, customer lists, outstanding offers, sales records, advertising
materials, and all agreements for the sale, purchase or lease of goods or
services, and all other contracts, agreements, assets and things of value
now beneficially owned or acquired by Sellers at or before the Closing
Date, whether tangible or intangible, real or personal, inchoate, partial
or complete, fixed or contingent, of every kind and description and
wherever situated.
(i) Securities. All of Sellers' securities, stocks and other
investments or ownership interests in other entities except for Imperial's
stock ownership in Xxxxx and Gear.
"Purchase Price" means the total consideration to be paid by
Purchaser to Sellers at the Closing as described in further detail herein.
1.02 Purchase and Sale. In consideration of the Purchase Price, the
assumption by Purchaser of the Assumed Liabilities of Sellers, the other
agreements contained herein and subject to the terms and conditions set
forth in this Agreement, Sellers will sell to Purchaser and Purchaser will
purchase from Sellers, at the Closing Date (as hereinafter defined), all or
substantially all of the Purchased Assets.
1.03 Purchase Price. Subject to the terms and conditions of this
Agreement and in reliance on the representations and warranties of the
Sellers herein contained, and in consideration of the sale, conveyance,
transfer and delivery of the Purchased Assets (subject to the Assumed
Liabilities) provided for in this Agreement, Purchaser agrees to pay and
deliver to the Sellers at the Closing the Purchase Price as follows:
(a) $75,000,000 by delivery to the Sellers of a certified or
cashier's check or funds by wire transfer to Sellers' accounts;
(b) An amount equal to the Capitalized Lease Amount as set forth on
Exhibit 1.06 hereof; and
(c) The Contingent Earnout Agreement described in Section 6.05
hereof.
1.04 Post Closing Adjustments. Within sixty (60) days after the
Closing, Sellers and Purchaser (with Sellers paying one-half of the cost
and expense and Purchaser paying the other one-half of the cost and
expense) shall cause the Closing Balance Sheet to be completed and copies
thereof delivered to Purchaser and Sellers. Within thirty (30) days after
completion and delivery of the Closing Balance Sheet, the parties shall
make payment as follows: (a) if NWC exceeds $11,336,029, then Purchaser
shall pay an amount in cash equal to such excess to Sellers; (b) if NWC is
less than $11,336,029, then Sellers shall pay an amount in cash equal to
such deficiency to Purchaser; and (c) if NWC equals $11,336,029, no
payments between the parties shall be made.
1.05 Assumed Liabilities. The parties have agreed that the amount
of the Purchase Price was established and agreed upon and will be paid
based on the agreement of the parties that effective at the Closing, and
subject to Sections 6.04 and 1.07, Purchaser will assume the Assumed
Liabilities; provided, however, the Purchaser shall not assume any other
liabilities, obligations or debts of Sellers, including, but not limited to
the Excluded Liabilities. For purposes of this Agreement, the "Assumed
Liabilities" are limited to those obligations, liabilities and claims
listed on Exhibit 1.05.
1.06 Purchase Price Allocation. The Purchase Price shall be
allocated to the Purchased Assets and among the Sellers as set forth on
Exhibit 1.09.
1.07 Product Claims and Returns. Purchaser shall be responsible for
customer claims relating to services rendered by Sellers prior to the
Closing Date, and customer claims relating to, or returns of, products of
Sellers sold and shipped by Sellers prior to the Closing Date or in the
finished goods inventory of Sellers as of the Closing Date. If a customer
makes a claim or seeks a return and, in the judgment of Purchaser the claim
or return is proper, Purchaser shall replace or repair, as the case may be,
the services rendered or product purchased at Purchaser's then generally
prevailing prices and labor rates. Such repairs or returns shall be for
the account of Purchaser.
ARTICLE II
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REPRESENTATIONS AND WARRANTIES OF SELLERS
-----------------------------------------
The Sellers, jointly and severally, hereby represent and warrant to
Purchaser, as follows:
2.01 Corporate Organization, etc. Sellers are corporations duly
organized, validly existing and in good standing under the laws of the
state of Delaware with respect to Xxxxx and Gear and Ohio with respect to
Imperial. Each has all requisite corporate power and authority to carry on
its business as it is now being conducted and to own, operate and lease its
properties and assets. Exhibit 2.01.1 lists each of the states where
Sellers are qualified as a foreign corporation. Exhibit 2.01.2 contains
complete and correct copies of Sellers' (i) articles or certificate of
incorporation; (ii) bylaws; and (iii) certificates of authority for the
states listed in Exhibit 2.01.1, each amended to date.
2.02 Capital Stock; Options. The authorized capital stock of
Sellers and the shares of capital stock of Sellers issued and outstanding
("Shares"), of all classes, are as set forth in Exhibit 2.02. Sellers have
no treasury stock except as listed in Exhibit 2.02. All of the Shares are
validly issued, fully paid and nonassessable. There are no issued and
outstanding options, warrants, rights, securities, contracts, commitments,
understandings or arrangements by which Sellers are bound to issue any
additional shares of capital stock or options to purchase shares of capital
stock.
2.03 Subsidiaries. Except as set forth in Exhibit 2.03, Sellers
have no subsidiaries or investments in any other entity or business
operation.
2.04 Authorization, etc. The Sellers have full power and authority
to enter into this Agreement and to carry out the transactions contemplated
hereby. This Agreement and all actions contemplated herein which require
the approval of Sellers' directors or stockholders have duly received the
required approval and Sellers shall have delivered certified copies of
their stockholder lists and consents to resolutions which shall have been
duly adopted by Sellers' directors and stockholders, substantially in the
form of Exhibit 2.04.
2.05 No Violation. Except as set forth in Exhibit 2.05, Sellers are
not subject to or obligated under any article or certificate of
incorporation, bylaw, Law (as defined in Section 12.06), or any material
agreement or instrument, or any material license, franchise or permit,
which would be breached or violated by Sellers' execution, delivery and
performance of this Agreement. Sellers will comply with all applicable
Laws in connection with their execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby.
2.06 Governmental Authorities. The Sellers are not required to
submit any notice, report or other filing with, and no consent, approval or
authorization is required, by any governmental or regulatory authority in
connection with their execution, delivery, consummation or performance of
this Agreement or the transactions contemplated hereby.
2.07 Disclosure. No representation or warranty made by Sellers in
this Agreement or in any agreement, instrument, document, certificate,
statement or letter furnished to Purchaser, by or on behalf of Sellers in
connection with any of the transactions contemplated by this Agreement,
when taken as a whole, contains any untrue statement of fact or omits to
state a material fact necessary in order to make the statements herein or
therein not materially misleading in light of the circumstances in which
they are made.
2.08 Title and Related Matters. Subject to the Assumed Liabilities,
Sellers have good and marketable title to the Purchased Assets and Sellers
will convey the Purchased Assets to Purchaser free and clear of liens and
encumbrances.
ARTICLE III
-----------
REPRESENTATIONS AND WARRANTIES OF PURCHASER
-------------------------------------------
Purchaser hereby represents and warrants to the Sellers, as follows:
3.01 Corporate Organization, etc. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and will be qualified to do business in Delaware on the
Closing Date.
3.02 Capitalization. As of the date of this Agreement, Purchaser
has authorized capital stock consisting of 1,000 shares of Common Stock,
$.01 par value per share.
3.03 Authorization, etc. Purchaser has full corporate power and
authority to enter into this Agreement and to carry out the transactions
contemplated hereby. The Board of Directors of Purchaser has duly
authorized the execution and delivery of this Agreement and the
transactions contemplated hereby, and no other corporate proceedings on its
part are necessary to authorize this Agreement and the transactions
contemplated hereby.
3.04 No Violation. Purchaser is not subject to or obligated under
any certificate of incorporation, bylaw, Law, or any agreement or
instrument, or any license, franchise or permit, which would be breached or
violated by its execution, delivery or performance of this Agreement.
Purchaser will comply with all Laws in connection with its execution,
delivery and performance of this Agreement and the transactions
contemplated hereby.
3.05 Governmental Authorities. Purchaser is not required to submit
any notice, report or other filing with and no consent, approval or
authorization is required by any governmental or regulatory authority in
connection with Purchaser's execution or delivery of this Agreement or the
consummation of the transactions contemplated hereby.
ARTICLE IV
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COVENANTS OF THE SELLERS
------------------------
Except as otherwise consented to or approved by Purchaser in writing,
until the Closing, the Sellers covenant and agree as follows:
4.01 Regular Course of Business. Sellers will operate their
businesses in the ordinary course, diligently and in good faith, consistent
with past management practices.
4.02 Amendments. Except as required for the transactions
contemplated in this Agreement, no change or amendment shall be made in
Sellers' articles or certificate of incorporation or bylaws. Sellers will
not merge into or consolidate with any other corporation or person, or
change the character of their businesses.
4.03 Capital Changes. Sellers will not issue or sell any shares of
capital stock of any class or issue or sell any securities convertible
into, or options, warrants to purchase or rights to subscribe to, any
shares of capital stock of any class.
4.04 Dividends; Bonuses. Sellers will not, except in the ordinary
course of the conduct of business, declare, pay or set aside for payment
any dividend or other distribution in respect of its capital stock, nor
shall Sellers, directly or indirectly, redeem, purchase or otherwise
acquire any shares of capital stock. Sellers will not, except in the
ordinary course of the conduct of business, pay, set aside, accrue, agree
to or become liable in any manner for any bonus, of any nature or type, to
shareholders or to any employee or officer of Sellers.
4.05 Capital and Other Expenditures. Sellers will not, except in
the ordinary course of the conduct of business, make any capital
expenditures, or commitments with respect thereto, except as set forth in
Exhibit 4.05. Sellers will not prepay any debt or obligation in excess of
$25,000 (except for prepaying trade accounts payable in the normal course
of business to take advantage of cash discounts).
4.06 Borrowing. Sellers will not incur, assume or guarantee any
indebtedness or capital leases. Sellers will not create or permit to
become effective any mortgage, pledge, lien, encumbrance or charge of any
kind upon its assets other than in the ordinary course of business.
4.07 Other Commitments. Except in the ordinary course of business
consistent with past practices, Sellers will not enter into any
transaction, make any commitment or incur any obligation.
4.08 Full Access and Disclosure.
(a) Sellers shall afford to Purchaser and its counsel, accountants
and other authorized representatives access during business hours to
Sellers' plants, properties, books and records in order that Purchaser may
have full opportunity to make such reasonable investigations as it shall
desire to make of the affairs of Sellers and Sellers will cause its
respective officers and employees to furnish such additional financial and
operating data and other information as Purchaser shall from time to time
reasonably request.
(b) From time to time prior to the Closing Date, Sellers will
promptly supplement or amend in writing information previously delivered to
Purchaser with respect to any matter hereafter arising which, if existing
or occurring at the date of this Agreement, would have been required to be
set forth or disclosed.
4.09 Consents. Sellers will use all necessary means at its disposal
to obtain on or prior to the Closing Date all consents necessary to the
consummation of the transactions contemplated hereby.
4.10 Breach of Agreement. Sellers will not take any action which,
if taken prior to the Closing Date, would constitute a breach of this
Agreement.
4.11 Further Assurances. Sellers and Sellers' counsel will furnish
Purchaser with such other and further documents, certificates, opinions,
consents and information as Purchaser shall reasonably request to enable
Purchaser to borrow funds from a bank or other lending entity or
individual(s) for the acquisition of the Purchased Assets and to evidence
compliance with the terms and conditions of any credit agreement to be
entered into between Purchaser and a bank and/or other lending entities or
individuals.
4.12 Fulfillment of Conditions. Sellers will take all commercially
reasonable steps necessary or desirable, and proceed diligently and in good
faith, to satisfy each condition to the obligations of Purchaser contained
in this Agreement and will not take or fail to take any action that could
reasonably be expected to result in the nonfulfillment of any material
condition.
ARTICLE V
---------
COVENANTS OF PURCHASER
----------------------
Purchaser hereby covenants and agrees with the Sellers that:
5.01 Confidentiality. Purchaser will hold in strict confidence and
not disclose to any other party (other than its counsel and other
advisors), without the Sellers' prior consent, all information received by
Purchaser from the Sellers or any of Sellers' officers, directors,
employees, agents, counsel or auditors in connection with the transactions
contemplated hereby, except as may be required by applicable law or as
otherwise contemplated herein.
5.02 Books and Records. Purchaser shall preserve and keep Sellers'
books and records delivered hereunder for a period of three (3) years from
the date hereof and shall, during such period, make such books and records
available to former officers and directors of Sellers for any reasonable
purpose.
ARTICLE VI
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OTHER AGREEMENTS
----------------
Purchaser and the Sellers covenant and agree that:
6.01 Agreement to Defend. In the event any action, suit, proceeding
or investigation of the nature specified in Section 7.05 or Section 8.02
hereof is commenced, whether before or after the Closing Date, all the
parties hereto agree to cooperate and use their best efforts to defend
against and respond thereto.
6.02 Consultants, Brokers and Finders. The Sellers and Purchaser
each represent and warrant to the other that they have not retained any
consultant, broker or finder in connection with the transactions
contemplated by this Agreement, except Jordan Industries, Inc. and The
Jordan Company. The Sellers and Purchaser each hereby agree to indemnify,
defend and hold the other party and its officers, directors, employees and
affiliates, harmless from and against any and all claims, liabilities or
expenses for any brokerage fees, commissions or finders fees due to any
consultant, broker or finder retained by the indemnifying party.
6.03 Assumption Agreement. At the Closing, Purchaser and Sellers
will enter into the Assumption Agreement, as contemplated by Section
9.02(e) hereof, in the form set forth in Exhibit 6.03.
6.04 Apportionment of Taxes. Sellers shall be liable and indemnify
Purchaser for all Taxes attributable to the ownership or sale of the
Purchased Assets or any operations of the Sellers for all taxable periods
ending on or before the Closing Date ("Pre-Closing Taxes"). Purchaser
shall be liable and indemnify Sellers for all Taxes attributable to the
ownership of the Purchased Assets or any operations of Purchaser for all
taxable periods from and after the Closing Date ("Post-Closing Taxes").
With respect to Taxes attributable to a taxable period beginning prior to
and ending after the Closing Date ("Straddle Taxes"), Pre-Closing Taxes
shall include the portion of such Straddle Taxes attributable to the
operations of the Sellers and the ownership of the Purchased Assets for the
period ending immediately prior to the Closing Date, including any income
or gain arising from the sale of the Purchased Assets and all transactions
related thereto, and Post-Closing Taxes shall include the Straddle Taxes
attributable to the ownership of the Purchased Assets for the period
beginning from and ending after the Closing Date. Straddle Taxes which are
real property or personal property Taxes shall be apportioned between
Pre-Closing Taxes and Post-Closing Taxes based on the number of days in the
applicable taxable period during which the Purchased Assets were owned by
the Sellers and Purchaser. If Purchaser makes a payment of any Pre-Closing
Taxes, it shall be entitled to prompt reimbursement from Sellers for such
Taxes upon presentation to Sellers of evidence of such payment. If Sellers
pay any Post-Closing Taxes, Sellers shall be entitled to prompt
reimbursement from Purchaser for such Post-Closing Taxes upon presentation
to Purchaser of evidence of such payment. Sellers shall be liable and
indemnify Purchaser for any sales, use, documentary, recording, stamp,
transfer or similar Taxes arising from the sale of the Purchased Assets and
the transactions contemplated by this Agreement.
6.05 Contingent Earnout Agreement. Purchaser, New Xxxxx, New Gear,
M&G, Industries and Imperial agree to enter into the Contingent Earnout
Agreement as of the Closing, as contemplated by Section 9.02(a) hereof, in
the form set forth in Exhibit 6.05 ("Contingent Earnout Agreement").
ARTICLE VII
-----------
CONDITIONS TO THE OBLIGATIONS OF PURCHASER
------------------------------------------
Each and every obligation of Purchaser under this Agreement shall be
subject to the satisfaction, on or before the Closing Date, of each of the
following conditions unless waived in writing by Purchaser:
7.01 Representations and Warranties; Performance. The
representations and warranties made by the Sellers herein shall be true and
correct on the Closing Date; the Sellers shall have performed and complied
with all agreements, covenants and conditions required by this Agreement to
be performed and complied with by them prior to the Closing Date; Sellers
shall have caused an executive officer of Sellers to have delivered to
Purchaser certificates, dated the Closing Date, in the form designated
Exhibit 7.01 hereto, certifying to such matters and the other conditions
contained in this Article VII.
7.02 Consents and Approvals. All consents from and filings with
third parties, regulators and governmental agencies required to consummate
the transactions contemplated hereby, or which, either individually or in
the aggregate, if not obtained, would cause a material adverse effect on
Sellers' financial condition or business shall have been obtained and
delivered to Purchaser.
7.03 Opinion of Sellers' Counsel. Purchaser shall have received an
opinion of Sellers' counsel, dated the Closing Date, substantially in the
form attached hereto as Exhibit 7.03.
7.04 No Adverse Change. There shall have been no material adverse
change in the business, prospects, financial condition, earnings or
operations of Sellers' businesses.
7.05 No Proceeding or Litigation. No material action, suit or
proceeding before any court or any governmental or regulatory authority
shall have been commenced or threatened, and no investigation by any
governmental or regulatory authority shall have been commenced or
threatened against the Sellers, Purchaser or any of their respective
principals, officers or directors seeking to restrain, prevent or change
the transactions contemplated hereby or questioning the validity or
legality of any of such transactions or seeking damages in a material
amount in connection with any of such transactions.
7.06 Other Documents. Sellers will furnish Purchaser with such
other and further documents and certificates of its officers and others as
Purchaser shall reasonably request to evidence compliance with the
conditions set forth in this Agreement.
7.07 Other Agreements. The Agreements described in Article VI shall
have been entered into and delivered.
7.08 Stockholder and Board of Directors Approval. The Stockholder
and Board of Directors of Purchaser shall have approved this Agreement, the
transactions contemplated hereby and the Closing.
7.09 Cancellation or Conversion of Intercompany Notes. Purchaser
shall have received written evidence satisfactory to Purchaser that prior
to Closing, all of Sellers' obligations pursuant to the Intercompany Notes
have been cancelled or converted to equity.
7.10 Lender Approvals. Sellers shall have obtained all required
consents, approvals and documents from First National Bank of Boston, JII,
Inc., and any other lenders necessary to the consummation of the terms of
this Agreement.
7.11 Fairness Opinion. Purchaser shall have received a fairness
opinion regarding the transactions contemplated hereby from Duff and
Xxxxxx, LLC.
ARTICLE VIII
------------
CONDITIONS TO THE OBLIGATIONS OF THE SELLERS
--------------------------------------------
Each and every obligation of the Sellers under this Agreement shall
be subject to the satisfaction, on or before the Closing Date, of each of
the following conditions unless waived in writing by the Sellers:
8.01 Representations and Warranties; Performance. The
representations and warranties made by Purchaser herein shall be true and
correct on the Closing Date; Purchaser shall have performed and complied
with all agreements, covenants and conditions required by this Agreement to
be performed and complied with by it prior to the Closing Date; Purchaser
shall have delivered to the Sellers a certificate of an executive officer
dated the Closing Date, certifying to the fulfillment of the conditions set
forth herein, in the form designated as Exhibit 8.01 and the other
conditions contained in this Article VIII.
8.02 No Proceeding or Litigation. No material action, suit or
proceeding before any court or any governmental or regulatory authority
shall have been commenced, or threatened, and no investigation by any
governmental or regulatory authority shall have been commenced, or
threatened, against Sellers, Purchaser or any of their respective
principals, officers or directors, seeking to restrain, prevent or change
the transactions contemplated hereby or questioning the validity or
legality of any of such transactions or seeking damages in a material
amount in connection with any of such transactions.
8.03 Opinion of Counsel. The Sellers shall have received an opinion
of counsel to Purchaser dated the Closing Date substantially in the form of
Exhibit 8.03.
8.04 Payment. The payment(s) described in Section 1.03 shall have
been made.
8.05 Other Documents. Purchaser will furnish the Sellers with such
other documents and certificates to evidence compliance with the conditions
set forth in this Article as may be reasonably requested by the Sellers.
8.06 Other Agreements. The agreements described in Article VI shall
have been entered into and delivered.
8.07 Board of Directors Approval. The Board of Directors of Sellers
shall have approved this Agreement, the fairness opinion being rendered by
Duff and Xxxxxx and the transactions contemplated hereby and the Closing.
ARTICLE IX
----------
CLOSING
-------
9.01 Closing. The parties agree that a closing (the "Closing")
shall be held on November 7, 1996 upon full execution of this Agreement by
all of the parties hereto (the "Closing Date") at such place or places as
Purchaser shall designate.
9.02 Deliveries at Closing.
(a) At the Closing, Sellers shall transfer and assign to Purchaser
all of the Purchased Assets, subject to the Assumed Liabilities, and the
Purchaser shall deliver to the Sellers cash consideration, the fully
executed Contingent Earnout Agreement (as set forth in Exhibit 6.05), and
the other agreements, certifications and other documents required to be
executed and delivered hereunder at the Closing.
(b) At and after the Closing, Sellers shall have the right to review
and obtain copies of any financial records of Sellers, in the possession of
Purchaser, necessary for the preparation of Sellers' tax returns, and
Purchaser agrees to retain such records until the statute of limitations
pertaining to the final tax returns filed by Sellers expires, and Purchaser
shall have the right to review and obtain copies of the minute book, stock
book and stock register of Sellers.
(c) At the Closing, Sellers shall deliver to Purchaser, in form
reasonably satisfactory to counsel for Purchaser, such bills of sale,
assignments, deeds or other conveyances and all third party consents as may
be appropriate or necessary to effect the transfer to Purchaser of the
property and rights as contemplated herein.
(d) From time to time after the Closing, at Purchaser's request and
without further consideration from Purchaser, Sellers shall execute and
deliver such other instruments of conveyance and transfer and take such
other action as Purchaser reasonably may require to convey, transfer to and
vest in Purchaser and to put Purchaser in possession of any assets or
property to be sold, conveyed, transferred and delivered hereunder.
(e) The assumption of the Assumed Liabilities hereunder shall be by
assumption agreement (as set forth in Exhibit 6.03). Purchaser and its
successors and assigns will forever defend, indemnify and hold Sellers
harmless from any and all of the Assumed Liabilities of Sellers which have
been assumed by Purchaser at the Closing, or which shall arise from any
acts or omissions of Purchaser after the Closing.
9.03 Specific Performance. The parties agree that if any party
hereto is obligated to, but nevertheless does not, consummate this
transaction, then any other party, in addition to all other rights or
remedies, shall be entitled to the remedy of specific performance mandating
that the other party or parties consummate this transaction. In an action
for specific performance by any party against any other party, the other
party shall not plead adequacy of damages at law.
9.04 Bulk Sales Waiver. Purchaser waives compliance with the
provisions of the Bulk Sales Act (Article 6 of the Uniform Commercial Code)
in reliance upon the representations and warranties of Sellers and the
covenants to perform the obligations hereunder.
9.05 Name Change. Within thirty (30) days after the Closing,
Sellers shall change their respective names to another name different from
the present names and do such other things as shall be necessary or
desirable to permit Purchaser to assume and use the names "The Xxxxx Motors
Company", "Gear Research, Inc." and "The Imperial Electric Company" and use
all other names utilized by Sellers in operating their respective
businesses as ongoing concerns.
ARTICLE X
---------
TERMINATION AND ABANDONMENT
---------------------------
10.01 Methods of Termination. This Agreement may be terminated and
the transactions herein contemplated may be abandoned at any time
(notwithstanding approval by the Board of Directors of Purchaser):
(a) by mutual consent of Purchaser and the Sellers; or
(b) by either Purchaser or Sellers, if (i) such party is
not in breach hereunder and the other party is in breach hereunder, and
(ii) this Agreement is not consummated on or before the Closing Date,
including extensions.
10.02 Procedure Upon Termination. In the event of termination and
abandonment pursuant to Section 10.01 hereof, this Agreement shall
terminate and shall be abandoned, without further action by any of the
parties hereto. If this Agreement is terminated as provided herein:
(a) each party will upon request redeliver all documents and other
materials of any other party relating to the transactions contemplated
hereby, whether so obtained before or after the execution hereof, to the
party furnishing the same;
(b) no party hereto shall have any liability or further obligation
to any other party to this Agreement; and
(c) each party shall bear its own expenses.
ARTICLE XI
----------
INDEMNIFICATION
---------------
11.01 Indemnification of Sellers. The Sellers jointly and severally
agree to indemnify Purchaser and each of its shareholders, officers and
directors against any loss, damage, or expense, (including but not limited
to reasonable attorneys' fees) ("Damages"), incurred or sustained by
Purchaser or any of its shareholders, officers or directors as a result of
(a) any breach of any term, provision, covenant or agreement contained in
this Agreement by the Sellers; (b) any inaccuracy in any of the
representations or warranties made by the Sellers in Article II of this
Agreement; (c) any liability or obligation of Sellers or any stockholder of
Sellers not expressly assumed in writing by Purchaser; or (d) failure of
Sellers and Purchaser to comply with the provisions of any applicable
Uniform Commercial Code provisions or similar laws and/or regulations
relating to bulk sales. The indemnification obligations of the Sellers as
set forth in this Article XI shall be subject to and limited by the
following:
(a) Purchaser shall not be entitled to indemnification pursuant to
subparts (b), (c) or (d) of Section 11.01 until such time as its aggregate
right to such indemnification exceeds $500,000 after which Purchaser will
be entitled to such indemnification in excess of $500,000. Purchaser
shall not be entitled to indemnification pursuant to this Section 11.01 for
amounts which, in the aggregate, exceed a $15,000,000 ceiling, except for
indemnification claims in respect of a breach by any Seller of its
representations and warranties set forth in Section 2.01, as to which
Purchaser shall not be entitled to indemnification pursuant to said Section
2.01 for amounts which, in the aggregate, exceed the Purchase Price.
Purchaser releases and discharges the Sellers from any further claims,
obligations or liabilities for any losses, claims or Damages in excess of
such ceiling amounts.
(b) Purchaser will not be entitled to indemnification pursuant to
this Article XI:
(i) with respect to consequential Damages consisting of
business interruption or lost profits, or with respect to
punitive Damages;
(ii) with respect to any claim by or liability to any
employee employed by Sellers arising as the result of the
termination of such employee's employment with the Sellers or
any action by Purchaser subsequent to the Closing Date;
(iii) with respect to any obligation, liability or matter,
including environmental remediation and clean-up, arising
under laws, regulations or statutes that arise or are
promulgated or announced after the Closing Date; and
(iv) any obligation, liability or matter arising out of
information Purchaser discloses to any third party which
disclosure is not required by applicable environmental laws or
for which disclosure would not otherwise be reasonable
business practice in accordance with Purchaser's past
practices, without consideration of indemnification under this
Article XI.
(c) Purchaser shall utilize all reasonable efforts, consistent with
normal practices and policies and good commercial practice, to mitigate
Damages, including reasonably pursuing other available indemnity rights.
(d) Any amounts payable under this Article XI shall be treated by
Purchaser and Sellers as an adjustment to the Purchase Price, and shall be
calculated after giving effect to (i) any proceeds received for insurance
policies covering the Damage, loss, liability or expense that is the
subject to the claim for indemnity and (ii) the actual recognized tax
benefit to the indemnitee resulting from the Damage, loss, liability or
expense that is the subject of the indemnity as long as Purchaser and
Seller are part of the same consolidated tax group; provided that to the
extent that any tax benefit is recognized in a tax year other than the year
in which the indemnity is paid, the indemnitee shall make a payment to the
indemnitor in the amount of such recognized tax benefit in the year in
which it is realized. For purposes hereof, an actual recognized tax
benefit is an actual reduction in taxes payable or a refund of taxes
previously paid. Without limiting clause (ii), the taking of a tax
deduction in connection with any such Damage, loss, liability or expense
that is subject to a claim for indemnification shall be at the discretion
of Purchaser.
11.02 Tender of Defense for Damages. Promptly upon receipt by
Purchaser of a notice of a claim by a third party which may give rise to a
claim for Damages, Purchaser shall give written notice thereof to Sellers.
No failure or delay of Purchaser in the performance of the foregoing shall
relieve, reduce or otherwise affect the Sellers' obligations and liability
to indemnify Purchaser pursuant to this Agreement, except to the extent
that such failure or delay shall have adversely affected the Sellers'
ability to defend against such claim for Damages. If Sellers give to
Purchaser an agreement in writing, in a form reasonably satisfactory to
Purchaser's counsel, to defend such claim for Damages, Sellers may, at
their sole expense, undertake the defense against such claim and may
contest or settle such claim on such terms, at such time and in such manner
as Sellers, in their sole discretion, shall elect and Purchaser shall
execute such documents and take such steps as may be reasonably necessary
in the opinion of counsel for Sellers to enable Sellers to conduct the
defense of such claim for Damages. If Sellers fail or refuse to defend any
claim for Damages, Sellers may nevertheless, at their own expense,
participate in the defense of such claim by Purchaser and in any and all
settlement negotiations relating thereto. In any and all events, Sellers
shall have such access to the records and files of Purchaser relating to
any claim for Damages as may be reasonably necessary to effectively defend
or participate in the defense thereof.
11.03 Survival. All of the terms and conditions of this Agreement,
together with the warranties, representations, agreements and covenants
contained herein or in any instrument or document delivered or to be
delivered pursuant to this Agreement, shall survive the execution of this
Agreement and the Closing Date, notwithstanding any investigation
heretofore or hereafter made by or on behalf of any party hereto; provided,
however, that (a) the agreements and covenants (other than the
indemnification provisions set forth in this Article XI, which will survive
as provided below) therein shall have been performed and satisfied and the
applicable statute of limitations for breaches or defaults of such
agreements and covenants has expired; and (b) all representations and
warranties, and the related agreements of the Sellers to indemnify set
forth in this Article XI, shall survive and continue for, and all
indemnification claims with respect thereto shall be made prior to the end
of two years from the Closing Date, except for representations, warranties
and related indemnities for which an indemnification claim shall be pending
as of the end of the applicable period referred to above, in which event
such indemnities shall survive with respect to such indemnification claim
until the final disposition thereof, and (c) representations and warranties
set forth in Section 2.01 and indemnities related thereto, which will
survive indefinitely. Thereafter, no party shall be under any obligation
or liability whatsoever with respect to any such representation, warranty,
covenant or agreement or any certificate in respect thereto.
11.04 Indemnification Exclusive Remedy. The sole recourse and
exclusive remedy of Purchaser after the Closing Date for the breach of any
representations and warranties contained in this Agreement, any agreement,
or instrument contemplated hereby, any document relating hereto or thereto
contained in any Schedules or Exhibit to this Agreement, or otherwise
arising from Purchaser's acquisition of the Purchased Assets, shall be to
assert a claim for indemnification under the indemnification provisions of
this Article XI. The only legal action which may be asserted by any party
hereto against any other party hereto with respect to any matter which is
the subject of this Article XI shall be a contract action to enforce, or to
recover Damages for the breach of, this Agreement. Without limiting the
generality of the foregoing, no legal action based upon predecessor or
successor liability, contribution, tort or strict liability may be
maintained by any party hereto against any other party hereto with respect
to any matter that is the subject of this Article XI.
ARTICLE XII
-----------
MISCELLANEOUS PROVISIONS
------------------------
12.01 Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified and supplemented only by written
agreement of the Sellers and Purchaser.
12.02 Waiver of Compliance; Consents. Any failure of the Sellers on
the one hand, or Purchaser on the other hand, to comply with any
obligation, covenant, agreement or condition herein may be waived in
writing by Purchaser or the Sellers, respectively, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Whenever this Agreement
requires or permits consent by or on behalf of any party hereto, such
consent shall be given in writing in a manner consistent with the
requirements for a waiver of compliance as set forth in this Section 12.02.
12.03 Expenses. Each party will pay its own legal, accounting and
other expenses incurred by such party or on its behalf in connection with
this Agreement and the transactions contemplated herein. If Sellers shall
at any time pay any expenses incurred in connection with this Agreement or
any part thereof or any of the proceedings and transactions contemplated
hereunder including, without limitation, any legal, accounting, printing,
filing or other costs, then the Purchase Price shall be reduced by an equal
amount.
12.04 Investigations; Survival of Warranties. The respective
representations and warranties of the Sellers and Purchaser contained
herein or in any certificates or other documents delivered prior to or at
the Closing are true, accurate and correct and each and every such
representation and warranty shall survive the Closing Date.
12.05 Notices. Any notice, request, consent or communication
(collectively a "Notice") under this Agreement shall be effective only if
it is in writing and (i) personally delivered, (ii) sent by certified or
registered mail, return receipt requested, postage prepaid, (iii) sent by a
nationally recognized overnight delivery service, with delivery confirmed,
or (iv) telexed or telecopied, with receipt confirmed, addressed as
follows:
(a) If to the Purchaser to:
The New Imperial Electric Company
Attn: Xxxxxx X. Xxxxx
ArborLake Centre, Suite 550
0000 Xxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
in each case with a copy to:
Xxxxx, Xxxxx & Xxxxx
Attn: Xxxxx X. Xxxxxxx, Esq.
0000 Xxxxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
or to such other person or address as Purchaser shall furnish to Sellers in
writing.
(b) If to Sellers to:
The Imperial Electric
Company, The Xxxxx Motors
Company and Gear Research, Inc.
Attention: Xxxxxx Xxxxxx
ArborLake Centre, Suite 550
0000 Xxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
G. Xxxxxx Xxxxxx, Esq.
Xxxxxx X. Xxxx, Esq.
Xxxxx Xxxx LLP
One Kansas City Place
0000 Xxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
or such other persons or addresses as shall be furnished in writing by any
party to the other party. A Notice shall be deemed to have been given as
of the date when (i) personally delivered, (ii) five (5) days after the
date when deposited with the United States mail properly addressed, (iii)
when receipt of a Notice sent by an overnight delivery service is confirmed
by such overnight delivery service, or (iv) when receipt of the telex or
telecopy is confirmed, as the case may be, unless the sending party has
actual knowledge that a Notice was not received by the intended recipient.
12.06 Definitions. For the purpose of this Agreement, "Laws" shall
include, without limitation, all foreign, federal, state and local laws,
statutes, rules, regulations, codes, ordinances, plans, orders, judicial
decrees, writs, injunctions, notices, decisions or demand letters issued,
entered or promulgated pursuant to any foreign, federal, state or local
law. For the purpose of this Agreement, "generally accepted accounting
principles" shall mean such principles, applied on a consistent basis, as
set forth in Opinions of the Accounting Principles Board of the American
Institute of Certified Public Accountants and/or in statements of the
Financial Accounting Standards Board which are applicable in the
circumstances as of the date in question, and the requirement that such
principles be applied on a "consistent basis" means that accounting
principles observed in the current period are comparable in all material
respects to those applied in the preceding periods, except as change is
permitted or required under or pursuant to such accounting principles.
12.07 Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and
their respective heirs, successors and permitted assigns. Neither this
Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by either party without the prior written consent of the other
party, provided, however, that (i) Sellers hereby consent to the
Purchaser's assignment of this Agreement and the right to enforce the terms
hereof to any lender who is now, or may in the future be, financing the
Purchaser's acquisition of the Purchased Assets as contemplated by this
Agreement or any other lender of Purchaser and (ii) Purchaser hereby
consents to the Sellers' assignment of this Agreement and the right to
enforce the terms hereof to JII, Inc., Jordan Industries, Inc. or any
subsidiary of Jordan Industries, Inc. or any lender of Sellers.
12.08 Governing Law. This Agreement shall be governed by the laws
of the State of Illinois (regardless of the laws that might otherwise
govern under applicable principles of conflicts of law of the state of
Illinois) as to all matters including, but not limited to, matters of
validity, construction, effect, performance and remedies.
12.09 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12.10 Neutral Interpretation. This Agreement constitutes the
product of the negotiation of the parties hereto and the enforcement hereof
shall be interpreted in a neutral manner, and not more strongly for or
against any party based upon the source of the draftsmanship hereof.
12.11 Headings. The article and section headings contained in this
Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
12.12 Entire Agreement. This Agreement, which term as used
throughout includes the Exhibits hereto, embodies the entire agreement and
understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, representations,
warranties, covenants or undertakings other than those expressly set forth
or referred to herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties hereto have entered into this
Agreement as of the date first hereinabove set forth.
PURCHASER:
THE NEW IMPERIAL ELECTRIC COMPANY
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------
Printed Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
NEW XXXXX:
THE NEW XXXXX MOTORS COMPANY
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------
Printed Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
NEW GEAR:
NEW GEAR RESEARCH, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------
Printed Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
M&G:
MOTORS AND GEARS, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------
Printed Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
INDUSTRIES:
MOTORS AND GEARS INDUSTRIES, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------
Printed Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
SELLER:
THE IMPERIAL ELECTRIC COMPANY
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------
Printed Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
SELLER:
THE XXXXX MOTORS COMPANY
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------
Printed Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
SELLER:
GEAR RESEARCH, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------
Printed Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
SCHEDULE OF EXHIBITS TO
AGREEMENT FOR PURCHASE AND SALE OF ASSETS AMONG
THE NEW IMPERIAL ELECTRIC COMPANY,
THE NEW XXXXX MOTORS COMPANY,
NEW GEAR RESEARCH,
MOTORS AND GEARS, INC.
and
MOTORS AND GEARS INDUSTRIES, INC.
AND
THE IMPERIAL ELECTRIC COMPANY,
THE XXXXX MOTORS COMPANY, and
GEAR RESEARCH, INC.
Exhibits Title
--------- -----
Exhibit 1.01 Calculation of NWC
Exhibit 1.05 Assumed Liabilities
Exhibit 1.06 Capitalized Lease Amount
Exhibit 1.07 Excluded Liabilities
Exhibit 1.08 Intercompany Debt
Exhibit 1.09 Allocation
Exhibit 2.01.1 Foreign Qualifications
Exhibit 2.01.2 Certificate or Articles of Incorporation, Bylaws and
Certificates of Authority
Exhibit 2.02 Schedule of Authorized, Issued and Outstanding Capital
Stock
Exhibit 2.03 Schedule of Subsidiaries and Affiliates
Exhibit 2.04 Authorizing Resolutions
Exhibit 2.05 Restrictions on Ability to Perform
Exhibit 6.03 Assumption Agreement
Exhibit 6.05 Contingent Earnout Agreement
Exhibit 7.01 Certificate of Fulfillment of Conditions by Sellers
Exhibit 7.03 Opinion of the Sellers' Counsel
Exhibit 8.01 Certificate of Fulfillment of Conditions by Purchaser
Exhibit 8.03 Opinion of Purchaser's Counsel
