Exhibit 2(o)
AGREEMENT AND PLAN OF MERGER
Among
XXXXXXX GROUP PLC,
PRI ACQUISITION, INC.
THE ALPINE GROUP, INC.
AND
PREMIER REFRACTORIES INTERNATIONAL INC.
Dated as of May 28, 1999
PAGE
ARTICLE ITHE MERGER...............................................................................................1
SECTION 1.1 THE MERGER...........................................................................................1
SECTION 1.2 EFFECTIVE TIME.......................................................................................2
SECTION 1.3 EFFECT OF THE MERGER.................................................................................2
SECTION 1.4 CERTIFICATE OF INCORPORATION AND BY-LAWS.............................................................2
SECTION 1.5 DIRECTORS AND OFFICERS...............................................................................3
SECTION 1.6 EFFECT ON CAPITAL STOCK..............................................................................3
SECTION 1.7 CLOSING TRANSACTIONS; POST-CLOSING DELIVERY..........................................................5
SECTION 1.8 WORKING CAPITAL ADJUSTMENT...........................................................................8
SECTION 1.9 DETERMINATION OF AGGREGATE SHARE NUMBER..............................................................9
SECTION 1.10 PRE-CLOSING STEPS..................................................................................10
ARTICLE IIREPRESENTATIONS AND WARRANTIES OF ALPINE AND PREMIER...................................................10
SECTION 2.1 TITLE TO SHARES.....................................................................................11
SECTION 2.2 ORGANIZATION AND QUALIFICATION; SUBSIDIARIES........................................................11
SECTION 2.3 AUTHORITY RELATIVE TO THIS AGREEMENT AND RELATED MATTERS............................................12
SECTION 2.4 CERTIFICATE OF INCORPORATION AND BY-LAWS............................................................12
SECTION 2.5 CAPITALIZATION......................................................................................12
SECTION 2.6 NO CONFLICT; REQUIRED FILINGS AND CONSENTS..........................................................13
SECTION 2.7 FINANCIAL STATEMENTS; UNDISCLOSED LIABILITIES; PREMIER INDEBTEDNESS.................................14
SECTION 2.8 ABSENCE OF CERTAIN CHANGES OR EVENTS................................................................15
SECTION 2.9 ABSENCE OF LITIGATION...............................................................................15
SECTION 2.10 EMPLOYEE BENEFIT PLANS.............................................................................15
SECTION 2.11 PERMITS AND LICENSES...............................................................................17
SECTION 2.12 PROPERTIES AND CONTRACTS...........................................................................17
SECTION 2.13 REAL PROPERTY AND EQUIPMENT........................................................................19
SECTION 2.14 COMPLIANCE WITH ENVIRONMENTAL LAWS.................................................................20
SECTION 2.15 COMPLIANCE WITH LAWS...............................................................................22
SECTION 2.16 EMPLOYMENT MATTERS.................................................................................22
SECTION 2.17 TAX RETURNS, AUDITS AND LIABILITIES................................................................23
SECTION 2.18 SECURITIES ACT COMPLIANCE..........................................................................25
SECTION 2.19 INSURANCE..........................................................................................25
SECTION 2.20 YEAR 2000 COMPLIANCE...............................................................................26
ARTICLE IIIREPRESENTATIONS AND WARRANTIES OF XXXXXXX.............................................................26
SECTION 3.1 ORGANIZATION AND QUALIFICATION......................................................................26
SECTION 3.2 AUTHORITY RELATIVE TO THIS AGREEMENT AND RELATED MATTERS............................................27
SECTION 3.3 GOVERNING INSTRUMENTS...............................................................................27
SECTION 3.4 CAPITALIZATION......................................................................................27
SECTION 3.5 NO CONFLICT; REQUIRED FILINGS AND CONSENTS..........................................................28
SECTION 3.6 PUBLIC FILINGS; FINANCIAL STATEMENTS; LIABILITIES...................................................29
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SECTION 3.7 ABSENCE OF CERTAIN CHANGES OR EVENTS................................................................29
SECTION 3.8 LITIGATION..........................................................................................29
ARTICLE IVCOVENANTS OF ALPINE AND PREMIER........................................................................29
SECTION 4.1 CONDUCT OF BUSINESS BY PREMIER AND ITS SUBSIDIARIES PENDING THE CLOSING.............................29
SECTION 4.2 NOTIFICATION OF CERTAIN EVENTS......................................................................31
SECTION 4.3 CONSENTS AND APPROVALS..............................................................................31
SECTION 4.4 CONSUMMATION OF AGREEMENT...........................................................................31
SECTION 4.5 NO TRANSFER OF SHARES...............................................................................32
SECTION 4.6 INTERCOMPANY INDEBTEDNESS...........................................................................32
SECTION 4.7 DEPOSIT.............................................................................................32
SECTION 4.8 AUDITED FINANCIAL STATEMENTS........................................................................32
ARTICLE VCOVENANTS OF XXXXXXX....................................................................................33
SECTION 5.1 STOCKHOLDERS MEETING................................................................................33
SECTION 5.2 REPRESENTATIONS AND WARRANTIES......................................................................33
SECTION 5.3 NOTIFICATION OF CERTAIN EVENTS......................................................................33
SECTION 5.4 CONSENTS AND APPROVALS..............................................................................33
SECTION 5.5 CONSUMMATION OF AGREEMENT...........................................................................34
SECTION 5.6 LISTING OF SECURITIES...............................................................................34
SECTION 5.7 RIGHTS UNDER EXCHANGE AGREEMENT.....................................................................34
ARTICLE VIADDITIONAL AGREEMENTS OF THE PARTIES...................................................................34
SECTION 6.1 ACCESS TO INFORMATION; CONFIDENTIALITY..............................................................34
SECTION 6.2 NOTIFICATION OF CERTAIN MATTERS.....................................................................35
SECTION 6.3 FURTHER ACTION......................................................................................35
SECTION 6.4 PUBLIC ANNOUNCEMENTS................................................................................35
SECTION 6.5 GOVERNMENT COMPLIANCE...............................................................................35
SECTION 6.6 RELEASES OF SECURITY INTERESTS......................................................................36
SECTION 6.7 EMPLOYEE BENEFITS...................................................................................36
SECTION 6.8 NOTIFICATION OF DISPOSITIONS; PROVISION OF INFORMATION..............................................37
SECTION 6.9 POST-CLOSING INCOME TAX MATTERS.....................................................................38
SECTION 6.10 ACCESS TO INSURANCE POLICIES.......................................................................40
SECTION 6.11 AVAILABILITY OF KEY EMPLOYEES......................................................................41
SECTION 6.12 STAY-PUT AGREEMENTS................................................................................41
ARTICLE VIICONDITIONS TO THE CLOSING.............................................................................41
SECTION 7.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY.............................................................41
SECTION 7.2 ADDITIONAL CONDITIONS TO OBLIGATIONS OF XXXXXXX.....................................................42
SECTION 7.3 ADDITIONAL CONDITIONS TO OBLIGATIONS OF ALPINE AND PREMIER..........................................44
ARTICLE VIIITERMINATION..........................................................................................45
SECTION 8.1 TERMINATION.........................................................................................45
SECTION 8.2 EFFECT OF TERMINATION...............................................................................46
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ARTICLE IXINDEMNIFICATION PROVISIONS.............................................................................46
SECTION 9.1 ALPINE'S INDEMNIFICATION OBLIGATION.................................................................46
SECTION 9.2 CERTAIN ENVIRONMENTAL MATTERS.......................................................................47
SECTION 9.3 XXXXXXX INDEMNIFICATION OBLIGATION..................................................................47
SECTION 9.4 PROCEDURES FOR INDEMNIFICATION FOR THIRD PARTY CLAIMS...............................................48
SECTION 9.5 INDEMNIFICATION DEDUCTIBLES AND CAPS................................................................49
SECTION 9.6 EXCLUSIVE REMEDY....................................................................................50
ARTICLE XSELLER'S NON-COMPETITION COVENANT.......................................................................50
SECTION 10.1 NON-COMPETITION....................................................................................50
SECTION 10.2 INJUNCTIVE RELIEF..................................................................................51
SECTION 10.3 ENFORCEMENT........................................................................................51
ARTICLE XISELLER'S NON-DISCLOSURE COVENANT.......................................................................52
SECTION 11.1 NON-DISCLOSURE OF INFORMATION BY ALPINE............................................................52
SECTION 11.2 DEFINITION OF CONFIDENTIAL INFORMATION.............................................................52
SECTION 11.3 INJUNCTIVE RELIEF..................................................................................52
ARTICLE XIIGENERAL PROVISIONS....................................................................................53
SECTION 12.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.........................................................53
SECTION 12.2 NOTICES............................................................................................53
SECTION 12.3 CERTAIN DEFINITIONS................................................................................54
SECTION 12.4 HEADINGS...........................................................................................55
SECTION 12.5 ENTIRE AGREEMENT...................................................................................55
SECTION 12.6 ASSIGNMENT: PARTIES IN INTEREST....................................................................55
SECTION 12.7 GOVERNING LAW; CONSENT TO JURISDICTION.............................................................55
SECTION 12.8 COUNTERPARTS.......................................................................................56
SECTION 12.9 SEVERABILITY.......................................................................................56
SECTION 12.10 SPECIFIC PERFORMANCE..............................................................................56
SECTION 12.11 FEES AND EXPENSES.................................................................................56
SECTION 12.12 AMENDMENT.........................................................................................56
SECTION 12.13 WAIVER............................................................................................57
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of May 28, 1999 (this
"AGREEMENT"), by and among Xxxxxxx Group plc, a company organized under the laws
of England ("XXXXXXX"), PRI Acquisition, Inc., a Delaware corporation ("MERGER
SUB"), Premier Refractories International Inc., a Delaware corporation
("PREMIER"), and The Alpine Group, Inc., a Delaware corporation ("ALPINE");
WHEREAS, the parties hereto wish to enter into this Agreement to
provide for the merger of Merger Sub with and into Premier (the "MERGER"), in
accordance with the relevant provisions of the Delaware General Corporation Law
(the "DELAWARE LAW") and on the terms and subject to the conditions herein
provided;
WHEREAS, it is intended that for United States federal income tax
purposes the Merger shall qualify as a reorganization within the meaning of
Section 368(a) of the United States Internal Revenue Code of 1986, as amended
(the "CODE"), that, for purposes of the Merger, the total valuation of Premier
is $410,000,000 U.S. Dollars, taking into account the Debt Repayment Amount (as
hereinafter defined), and that the difference between such amounts shall be
satisfied in the form of Xxxxxxx Ordinary Shares (as hereinafter defined).
NOW, THEREFORE, in consideration of the foregoing, of the mutual
covenants and agreements herein contained and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties hereby agree as follows:
ARTICLE I
THE MERGER
SECTION I.1 THE MERGER.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, and in accordance with Delaware Law, at the Effective Time (as
hereinafter defined), Merger Sub shall be merged with and into Premier, the
separate corporate existence of Merger Sub shall cease and Premier shall
continue as the surviving corporation of the Merger (in such capacity, the
"SURVIVING CORPORATION").
(b) Unless this Agreement shall have been terminated and the
transactions herein contemplated shall have been abandoned pursuant to Section
8.1 and subject to the satisfaction or waiver of all of the conditions set forth
in Article VII, the closing of the Merger (the "CLOSING") will take place on
July 30, 1999 (or, if all of the conditions precedent set forth in Article VII
(other than those conditions that by their nature are to be fulfilled at the
Closing,
but subject to the fulfillment or waiver of such conditions) have not been
satisfied or waived on or before that date, on the Business Day which is five
(5) Business Days after satisfaction or waiver of all of the conditions set
forth in Article VII), at the offices of Xxxxxxxxx Xxxx XXX, 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx, unless another date, time or place is agreed to in writing by
the parties hereto (the "CLOSING DATE"). As used herein, "BUSINESS DAY" means
any day other than a Saturday, a Sunday or a day on which banking institutions
in the City of New York or in London, England are not required to be open.
SECTION I.2 EFFECTIVE TIME.
On the Closing Date, the parties hereto shall cause the Merger to be
consummated by filing a certificate of merger in the form attached hereto as
EXHIBIT 1.2 (the "CERTIFICATE OF MERGER") with the Secretary of State of the
State of Delaware required by, and executed in accordance with the relevant
provisions of, Delaware Law (the date and time of such filing being the
"EFFECTIVE TIME") and shall make all other filings and recordings required under
Delaware Law.
SECTION I.3 EFFECT OF THE MERGER.
At the Effective Time, the effect of the Merger shall be as provided in
this Agreement, the Certificate of Merger and the applicable provisions of
Delaware Law. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time all the property, rights, privileges, powers and
franchises of Premier and Merger Sub shall vest in the Surviving Corporation,
and all debts, liabilities and duties of Premier and Merger Sub shall become the
debts, liabilities and duties of the Surviving Corporation.
SECTION I.4 CERTIFICATE OF INCORPORATION AND BY-LAWS.
(a) CERTIFICATE OF INCORPORATION. At the Effective Time, the
Certificate of Incorporation of Premier, as in effect immediately prior to the
Effective Time, shall be amended and restated to read in its entirety as set
forth in EXHIBIT 1.4(a) attached hereto, and such certificate of incorporation,
as so amended and restated, shall be the Certificate of Incorporation of the
Surviving Corporation unless and until amended in accordance with Delaware Law
and such Certificate of Incorporation.
(b) BY-LAWS. At the Effective Time, the By-Laws of Premier, as in
effect immediately prior to the Effective Time, shall be amended and restated to
read in their entirety as set forth in EXHIBIT 1.4(b) attached hereto, and such
By-Laws, as so amended and restated, shall be the By-Laws of the Surviving
Corporation until thereafter amended as provided by Delaware Law, the
Certificate of Incorporation of the Surviving Corporation and such By-Laws.
SECTION I.5 DIRECTORS AND OFFICERS.
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The directors of Merger Sub immediately prior to the Effective Time
shall be at the Effective Time the directors of the Surviving Corporation, each
to hold office in accordance with the Certificate of Incorporation and By-Laws
of the Surviving Corporation, and the officers of Merger Sub immediately prior
to the Effective Time shall be at the Effective Time the officers of the
Surviving Corporation, in each case until their respective successors are duly
elected or appointed and qualified.
SECTION I.6 EFFECT ON CAPITAL STOCK.
At the Effective Time, by virtue of the Merger and without any action
on the part of any party hereto or the holders of any of the following
securities:
(a) CANCELLATION. Each share of common stock, par value $0.01 per share
("ORDINARY COMMON STOCK"), of Premier and each share of class B common stock,
par value $0.01 per share ("CLASS B COMMON STOCK" and, together with the
Ordinary Common Stock, the "SHARES"), of Premier held in the treasury of Premier
immediately prior to the Effective Time shall, by virtue of the Merger, cease to
be outstanding, be canceled and retired without payment of any consideration
therefor and cease to exist.
(b) CONVERSION OF SHARES.
(i) Each share of Class B Common Stock outstanding immediately
prior to the Effective Time shall be converted into, and shall be canceled in
exchange for, the right to receive (A) $929.049 in cash (as may be adjusted, the
"CLASS B CASH AMOUNT") and (B) 311.9917 ordinary shares of 50 xxxxx each of
Xxxxxxx (as may be adjusted, the "CLASS B PER SHARE AMOUNT"), which securities
shall be freely tradeable (subject to compliance with the Securities Act of 1933
(the "SECURITIES ACT") and the regulations thereunder) and shall rank PARI PASSU
with all other securities of the same class (the "SECURITIES"). The aggregate
Class B Cash Amount payable to the holders of the Class B Common Stock in the
Merger shall be $15,562,500, and the aggregate Class B Per Share Amount issuable
to the holders of the Class B Common Stock in the Merger shall be 5,226,173
shares of the Securities; PROVIDED, HOWEVER, that if and only if the product of
(x) the closing price of a share of the Securities on the London Stock Exchange
(the "LSE") on the last trading day prior to the Closing Date (the "CLOSING
PRICE") and (y) the exchange rate of pounds sterling to U.S. Dollars on such
date (the "EXCHANGE RATE") is less than $2.9778, then Alpine shall have the
right to elect to reduce the aggregate Class B Cash Amount and increase the
aggregate Class B Per Share Amount by a number of shares, determined by dividing
the amount of the reduction in the aggregate Class B Cash Amount by $2.9778, up
to that number as would cause the product (the "SHARE PRODUCT") of (A) the
aggregate number of Shares issued in the Merger, (B) the Closing Price and (C)
the Exchange Rate to equal 85% of the sum of the Share Product and the aggregate
Class B Cash Amount. In the event of such an election by Alpine, the Class B
Cash Amount and the Class B Per Share Amount shall be adjusted accordingly. For
the avoidance of doubt, the number of shares resulting from any such adjustment
multiplied by $2.9778 plus the resulting aggregate Class B Cash Amount shall be
equal to $31,125,000.
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(ii) The shares of Ordinary Common Stock outstanding
immediately prior to the Effective Time shall be converted into, and shall be
canceled in exchange for, the right to receive a number of Securities equal to
the Ordinary Share Amount (as hereinafter defined). For purposes of this
Agreement, the term "ORDINARY SHARE AMOUNT" shall mean a number equal to the
difference between the Aggregate Share Number, as defined and determined in
Section 1.9, and 10,452,348.
(iii) At the Closing, Premier shall assign to Alpine, without
recourse or liability to Premier or its Subsidiaries, the right to receive
directly, at Alpine's expense, the Adjustment (as defined in the Exchange
Agreement, dated as of January 30, 1998 (the "EXCHANGE AGREEMENT"), between
American Premier Holdings, Inc. and Minerals Trading, Inc. ("MTI")). The parties
shall use their best efforts to effect such assignment so as to avoid the
incurrence of any Taxes by Xxxxxxx and/or Premier.
(iv) Notwithstanding subparagraphs (i) and (ii) of this
paragraph (b), each Share held of record immediately prior to the Effective Time
by a stockholder of Premier that has not failed to perfect and has not
effectively withdrawn, surrendered or lost appraisal rights under Section 262 of
Delaware Law as to such Share(s) (to the extent, if any, that such appraisal
rights are available under Section 262 of Delaware Law) shall be canceled but
not be converted into the right to receive the consideration set forth in
subparagraph (i) or (ii), as the case may be, and such stockholder shall not be
entitled to receive such consideration and shall be entitled only to such
appraisal rights as to such Share(s), PROVIDED, HOWEVER, that if and when any
such stockholder shall have failed to perfect such appraisal rights or shall
have effectively withdrawn, surrendered or lost such appraisal rights as to such
Share(s) in accordance with Delaware Law, then such Share(s) shall be converted
(to the fullest extent permitted under Delaware Law, as of the Effective Time)
into, and shall be canceled in exchange for, the right to receive such
consideration, and such stockholder shall be entitled to receive such
consideration in exchange for and upon the surrender of the certificates(s)
evidencing such Share(s) in accordance with this Agreement.
(c) CAPITAL STOCK OF MERGER SUB. Each share of common stock, no par
value per share ("MERGER SUB COMMON STOCK"), of Merger Sub issued and
outstanding immediately prior to the Effective Time shall be converted into one
validly issued, fully paid and non-assessable share of common stock, no par
value per share, of the Surviving Corporation. Each stock certificate of Merger
Sub at and after the Effective Time that prior to the Effective Time evidenced
ownership of any such shares of Merger Sub Common Stock shall evidence ownership
of an equal number of shares of capital stock of the Surviving Corporation;
PROVIDED, HOWEVER, that each record holder of a stock certificate or
certificates that prior to the Effective Time represented a share or shares of
Merger Sub Common Stock shall receive, upon surrender of such certificate or
certificates, a new certificate or certificates evidencing and representing the
number of shares of stock of the Surviving Corporation to which such record
holder is entitled pursuant to the foregoing.
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(d) ISSUANCE OF SHARES TO XXXXXXX. At the Effective Time, the Surviving
Corporation shall issue to Xxxxxxx 10,000 shares of common stock, no par value
per share, of the Surviving Corporation in consideration for the issuance by
Xxxxxxx of the Securities to the holders of the Shares in connection with the
Merger. In consideration of the issuance to Xxxxxxx by the Surviving Corporation
of such shares of common stock, Xxxxxxx shall issue the Securities in accordance
with Section 1.7(a)(ii) and (iii).
(e) ADJUSTMENTS TO PER SHARE AMOUNT. The Ordinary Share Amount and the
Class B Per Share Amount shall be adjusted to reflect fully the effect of any
stock split, reverse split, stock dividend (including any dividend or
distribution of securities convertible into the Securities), reorganization,
recapitalization or other like change with respect to the Securities, the record
date (or the effective date, if no record date has been established) for which
shall occur after the date hereof and prior to the Effective Time. There shall
be no such adjustment as a result of a cash dividend with respect to the
Securities.
SECTION I.7 CLOSING TRANSACTIONS; POST-CLOSING DELIVERY.
(a) ACTIONS AND DELIVERIES BY XXXXXXX. Immediately after the Effective
Time (except with respect to clause (i) below, which shall occur immediately
prior thereto):
(i) Xxxxxxx shall cause the Certificate of Merger, duly
executed by Premier, to be filed with the Secretary of State of the State of
Delaware;
(ii) Xxxxxxx shall deliver, or cause to be delivered, to
Alpine, for the shares of Ordinary Common Stock owned by Alpine and outstanding
immediately prior to the Effective Time, a certificate for the Securities in the
amount of the Ordinary Share Amount, duly issued to and registered in the name
of Alpine;
(iii) Xxxxxxx shall deliver, or cause to be delivered, to each
holder of shares of Class B Common Stock outstanding immediately prior to the
Effective Time who or that has delivered certificates representing such shares
at the Closing, for each share of Class B Common Stock owned and so delivered by
such holder of Class B Common Stock, (x) cash in the amount of the Class B Cash
Amount by wire transfer of immediately available funds to an account designated
in writing by such holder at least two Business Days prior to the Closing Date
and (y) a certificate for the Securities in the amount of the Class B Per Share
Amount, duly issued to and registered in the name of such holder;
(iv) Xxxxxxx shall repay, or cause to be repaid, the Premier
Indebtedness (as hereinafter defined) listed on EXHIBIT 1.7(A)(III) hereto
outstanding as of the Closing and in the amounts outstanding immediately prior
to the Effective Time as confirmed by the holders of such indebtedness (the
"DEBT REPAYMENT AMOUNT"). Xxxxxxx shall deliver to Alpine evidence reasonably
satisfactory to Alpine of the repayment of the Debt Repayment Amount. For
purposes of this Agreement, the term "Premier Indebtedness" shall mean any
indebtedness of Premier or any of its Subsidiaries for or in respect of moneys
borrowed or raised by whatever
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means (including, without limitation, by means of acceptances, the issue of loan
stocks and finance leases and any liability by bonds, debentures, notes,
interest rate/FX swaps, forward FX contracts, commodity xxxxxx, interest rate
caps or similar instruments or arrangements) and shall include principal,
interest, make-whole costs, break-up costs, prepayment penalties and costs of
obtaining releases of guarantees for Premier or its Subsidiaries, including any
Taxes directly incurred in respect thereof;
(v) Xxxxxxx shall deliver, or cause to be delivered, to Alpine
the certificates, documents, legal opinion and other instruments referred to in
Section 7.3; and
(vi) Xxxxxxx shall deliver, or cause to be delivered, to
Alpine all other agreements or instruments required under the terms of this
Agreement to be executed and delivered by Xxxxxxx.
(b) ACTIONS AND DELIVERIES BY ALPINE. At the Closing:
(i) Alpine shall cause Premier to execute and deliver to
Xxxxxxx the Certificate of Merger;
(ii) Alpine shall deliver, or cause to be delivered, to
Xxxxxxx (x) certificates representing the shares of Ordinary Common Stock
registered in the name of Alpine and (y) such of the certificates representing
the shares of Class B Common Stock registered in the name of any of the holders
thereof as have been delivered by such holders;
(iii) Alpine shall deliver, or cause to be delivered, to
Xxxxxxx the certificates as to the legal existence and good standing of Alpine
and Premier issued by, and copies of the Certificates of Incorporation, as
amended, of Alpine and Premier certified by, the Secretary of State of the State
of Delaware;
(iv) Alpine shall deliver, or cause to be delivered, to
Xxxxxxx all of the minute books for Premier;
(v) Alpine shall deliver, or cause to be delivered, to Xxxxxxx
written resignations from the directors and officers of Premier and its
Subsidiaries;
(vi) Alpine shall deliver, or cause to be delivered, payoff
letters from each of the holders of the Premier Indebtedness as to the amount
outstanding immediately prior to the Closing Date in a form mutually acceptable
to Alpine and Xxxxxxx; and
(vii) Alpine shall deliver a general release by it of all
claims (known or unknown, fixed or contingent, xxxxxx or inchoate, liquidated or
unliquidated, or otherwise) against Premier and its Subsidiaries in the form
annexed hereto as EXHIBIT 1.7(b)(VII) (except for any obligations specifically
set forth in this Agreement);
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(viii) Alpine shall deliver, or cause to be delivered, the
certificate of the Secretary or Assistant Secretary of Premier required under
Section 251(c) of Delaware Law (such certificate thereupon shall be attached to,
and shall be considered a part of, this Agreement);
(ix) Alpine shall deliver, or cause to be delivered, to
Xxxxxxx the certificates, documents, legal opinion and other instruments
referred to in Section 7.2; and
(x) Alpine shall deliver, or cause to be delivered, to Xxxxxxx
all other agreements or instruments required under the terms of this Agreement
to be executed and delivered by Alpine.
(c) SHAREHOLDER AGREEMENT. At the Closing, Alpine and Xxxxxxx shall
enter into the Shareholder Agreement in the form attached hereto as EXHIBIT
1.7(c) (the "SHAREHOLDER AGREEMENT").
(d) SURRENDER AND PAYMENT.
(i) Each holder of Shares that have been converted into the
right to receive the Securities and/or cash, upon surrender of a certificate or
certificates representing such Shares, together with a duly executed letter of
transmittal, will be entitled to receive the Securities and/or cash payable in
respect of such Shares, which Securities and/or cash shall be delivered upon
such surrender, whether at the Closing or at any time thereafter, subject to
applicable escheat laws.
(ii) All certificates representing Shares outstanding prior to
the Closing Date shall continue to evidence ownership of shares of Ordinary
Common Stock or Class B Common Stock, as the case may be, until the Effective
Time. At the Effective Time, each share of Ordinary Common Stock or Class B
Common Stock shall, by virtue of the Merger and without any action on the part
of the holder thereof, be converted into, and shall be canceled in exchange for,
the right to receive Securities and/or cash in the amount provided for herein.
All certificates representing Shares outstanding immediately prior to the
Effective Time shall be presented and shall be canceled and exchanged for the
Securities and/or cash provided for, and in accordance with the procedures set
forth, in this Agreement. The Securities and/or cash delivered upon the
surrender for exchange of the Shares in accordance with the terms hereof shall
be deemed to have been issued in full satisfaction of all rights pertaining to
such Shares and, after the Effective Time, there shall be no further
registration or transfers of Shares outstanding prior to the Closing Date.
(iii) No fractional Securities shall be issued upon conversion
of Shares. In lieu of any fractional Security to which any holder of Shares
would otherwise be entitled, Xxxxxxx shall round upward to the nearest whole
Security or pay the cash equivalent of such fractional Security, at Xxxxxxx'x
sole option.
SECTION I.8 WORKING CAPITAL ADJUSTMENT.
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(a) As promptly as practicable, but in any event not more than 30 days
following the Closing Date, Alpine, together with Xxxxxx Xxxxxxxx LLP, Alpine's
independent accounting firm ("ALPINE'S ACCOUNTANTS"), shall prepare, at Alpine's
expense, a statement of the Working Capital (as defined below) of Premier and
Premier's consolidated Subsidiaries as of the Closing Date in accordance with
U.S. generally accepted accounting principles, applied on a consistent basis
(the "PRELIMINARY WORKING CAPITAL STATEMENT").
(b) After the Closing Date and during the period of any dispute under
subsection (c) below, Xxxxxxx shall provide Alpine and Alpine's Accountants full
access, upon reasonable notice, to the books and records of Premier, and to its
officers and employees, and shall cooperate fully with Alpine and Alpine's
Accountants, in each case to the extent required in connection with the
preparation of the Preliminary Working Capital Statement and any investigation
of the basis for any dispute; PROVIDED, HOWEVER, that any such investigation
shall be conducted in such a manner as not to interfere unreasonably with the
operation of the business of Premier and its Subsidiaries.
(c) (i) Xxxxxxx may dispute the Preliminary Working Capital Statement
by notifying Alpine in writing setting forth, in reasonable detail, the basis
for such dispute, within 10 days after Xxxxxxx'x receipt of the Preliminary
Working Capital Statement. In the event of such a dispute, Alpine's Accountants
and KPMG Peat Marwick, Xxxxxxx'x independent accounting firm ("XXXXXXX'X
ACCOUNTANTS"), shall attempt to reconcile their differences and any resolution
by them as to any disputed amounts shall be final, binding and conclusive on
Alpine and Xxxxxxx.
(ii) If Alpine's Accountants and Xxxxxxx'x Accountants are
unable to reach a resolution with such effect within 20 days after the date of
receipt of Xxxxxxx'x written notice of dispute to Alpine, Alpine and Xxxxxxx
shall submit any items remaining in dispute that are contained in such notice
for resolution to an independent accounting firm of national reputation mutually
appointed by Alpine and Xxxxxxx (the "INDEPENDENT ACCOUNTING FIRM"), which
shall, within 30 days after such submission, determine and report to Alpine and
Xxxxxxx upon such remaining disputed items, and such report shall be final,
binding and conclusive on Alpine and Xxxxxxx. The fees and disbursements of the
Independent Accounting Firm shall be borne by Alpine and Xxxxxxx in the
proportion that the aggregate amount of disputed items submitted to the
Independent Accounting Firm that is unsuccessfully disputed by each such party
(as finally determined by the Independent Accounting Firm) bears to the total
amount of such remaining disputed items so submitted.
(iii) The Preliminary Working Capital Statement, adjusted for
the resolution of any and all disputes pursuant to subsection (i) or (ii) above,
will be deemed to be the "WORKING CAPITAL STATEMENT" for purposes of subsection
(d) below upon the earlier of (A) the lapse of the 10-day period referred to in
subsection (i) above, but only if Xxxxxxx has not notified Alpine within such
time period of any dispute, (B) the resolution of all disputes by Alpine's
Accountants and Xxxxxxx'x Accountants pursuant to subsection (i) above or (iii)
the resolution of all disputes by the Independent Accounting Firm pursuant to
subsection (ii) above.
8
(d) Upon the later of (i) two Business Days after the lapse of the
10-day period referred to in subsection (c)(i) or (ii) two Business Days after
resolution of all disputes pursuant to subsection (c)(i) or (ii):
(i) in the event that Working Capital shown on the Working
Capital Statement is less than 99% of Working Capital as reflected on the
Audited Balance Sheet (as defined in Section 4.8), Alpine shall pay to Xxxxxxx,
by way of adjustment to the consideration received by stockholders of Premier in
the Merger, the difference between such amount and the Working Capital shown on
the Working Capital Statement, plus interest on such difference at the prime
rate of Bankers Trust Company as in effect from time to time from the Closing
Date;
(ii) in the event that the Working Capital shown on the
Working Capital Statement is greater than 101% of Working Capital as reflected
on the Audited Balance Sheet, Premier shall pay to Alpine the difference between
the Working Capital shown on the Working Capital Statement and such amount, plus
interest on such difference at the prime rate of Bankers Trust Company as in
effect from time to time from the Closing Date.
(e) "WORKING CAPITAL" shall mean the net book value of the accounts
receivable (net of reserves for doubtful debts), plus inventories (net of
reserves), minus accounts payable as determined in accordance with U.S.
generally accepted accounting principles applied on a consistent basis. For the
purposes of this definition, Premier will not take or reverse any reserves or
provisions except in the ordinary course of operations from April 30, 1999 to
the Closing Date.
SECTION I.9 DETERMINATION OF AGGREGATE SHARE NUMBER.
The "Aggregate Share Number" shall mean the total number of shares of
Securities to be issued in respect of the rights to receive the same
hereinbefore mentioned. The Aggregate Share Number shall be based upon (i) the
Debt Repayment Amount as confirmed by payoff letters from the holders of the
Premier Indebtedness referenced in Section 1.7(a)(iii), and (ii) a good faith
estimate of Closing Cash (as defined below), as certified by the Chief Financial
Officer of Premier. The Aggregate Share Number shall be equal to the quotient
resulting from dividing (a) $410.0 million U.S. Dollars minus the actual Debt
Repayment Amount (as evidenced by such payoff letters) plus the estimated
Closing Cash by (b) $2.9778 U.S. Dollars. "Closing Cash" shall mean available
cash on hand as of the close of business on the last Business Day prior to the
Closing Date plus unrestricted cash on deposit plus cash deposited which is
subject to delayed availability due to clearing restrictions less an amount for
funds required to pay issued but unpresented drafts, checks or wire transfers or
similar items. As promptly as practicable, and in any event within 15 days after
the Closing Date, the parties shall mutually determine the final Closing Cash.
To the extent the final Closing Cash is greater or less than the estimated
Closing Cash, Premier shall pay Alpine or Alpine shall pay Xxxxxxx, as
appropriate, the amount of such difference. Such payment shall be made promptly,
in cash.
9
SECTION I.10 PRE-CLOSING STEPS.
On the day before the Closing Date, at the request and instruction of
Xxxxxxx, Alpine shall cause the following transactions to occur:
(a) all indebtedness of any Subsidiary of Premier which is not resident
for tax purposes in a member state of the European Union or in the United States
shall be transferred to Premier or to a Subsidiary of Premier which is resident
for tax purposes in either the United Kingdom or the United States; and
(b) all of the share capital of any Premier Subsidiary which is not
resident for tax purposes in the United Kingdom or the United States shall be
transferred to any United Kingdom Subsidiary of Premier, subject to such
transfer being approved in advance by Xxxxxxx, the consideration for such
transfer to be satisfied by the issue of ordinary shares of that United Kingdom
Subsidiary;
PROVIDED, HOWEVER, that Xxxxxxx shall indemnify Alpine from and against all
Liabilities (as defined in Section 9.1), including any tax imposed on any
indemnity payments made pursuant to this Section 1.10, relating to or arising
out of the foregoing transactions or compliance with this Section 1.10. For the
avoidance of doubt, Xxxxxxx'x indemnification obligation with respect to such
Liabilities is total and complete from the first dollar.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF ALPINE AND PREMIER
As of the date hereof, Alpine and Premier hereby jointly and severally
represent and warrant to Xxxxxxx that, except as set forth in the applicable
section of the disclosure schedule delivered by Alpine and Premier to Xxxxxxx
and attached hereto and made a part hereof (the "PREMIER DISCLOSURE SCHEDULE"):
SECTION II.1 TITLE TO SHARES.
Alpine is the record and beneficial owner of the number of shares of
Ordinary Common Stock set forth opposite its name on Section 2.1 of the Premier
Disclosure Schedule attached hereto, free and clear of all claims, liens,
security interests, pledges, charges, encumbrances, stockholders' agreements,
voting trusts and any other restrictions or imperfections of title, other than
the Stockholders Agreement, dated as of January 30, 1998, by and among Premier
(f/k/a Refraco Inc.), Alpine and the holders of Class B Common Stock (the
"STOCKHOLDERS AGREEMENT"), which shall automatically terminate upon the Closing,
and except as otherwise set forth in Section 2.1 of the Premier Disclosure
Schedule.
SECTION II.2 ORGANIZATION AND QUALIFICATION; SUBSIDIARIES.
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Each of Premier and its Subsidiaries (as defined in Section 12.3) is a
corporation duly organized and validly existing and, where applicable and
required, duly registered with all appropriate authorities, and Premier is in
good standing, under the laws of the jurisdiction of its incorporation and has
the requisite corporate power and authority to own, operate or lease the
properties that it purports to own, operate or lease and to carry on its
business as it is now being conducted. Each of Premier's Subsidiaries is in good
standing (with respect to the jurisdictions that recognize the concept of good
standing) under the laws of the jurisdiction of its incorporation, and each of
Premier and its Subsidiaries is duly qualified, licensed and authorized to do
business as a foreign corporation and is in good standing (with respect to the
jurisdictions that recognize the concept of good standing) in each jurisdiction
where the character of its properties owned, operated or leased or the nature of
its activities makes such qualification, licensing and authorization necessary,
other than those jurisdictions in which the failure to be in good standing, or
to so qualify or be licensed or authorized, would not have a Premier Material
Adverse Effect. "PREMIER MATERIAL ADVERSE EFFECT" means any change, effect,
event, situation or condition that is adverse to the business, results of
operations, properties or financial condition of Premier or any of its
Subsidiaries to an extent greater than $200,000 U.S. Dollars individually or
more than $350,000 U.S. Dollars (or, with respect to Section 2.14 only,
$1,000,000 U.S. Dollars) in the aggregate; PROVIDED, HOWEVER, that in
determining whether there has been a Premier Material Adverse Effect since any
date specified in any representation of Alpine and Premier, any adverse effect
attributable to the following shall be disregarded: (i) general economic,
business or financial market conditions; (ii) general industry conditions,
including, without limitation, conditions affecting the steel industry; (iii)
the announcement of this Agreement; (iv) the breach by Xxxxxxx of this
Agreement; or (v) any change in any law, rule or regulation or U.S. generally
accepted accounting principles or interpretations thereof that applies to Alpine
or Premier. In each case of a Premier Material Adverse Effect: (i) if an
individual adverse effect exceeds $200,000, the entire amount shall be
recognized and qualified for inclusion as a Liability for purposes of, and as
defined in, Article IX hereof; and (ii) if aggregate adverse effects (including
those both larger and smaller than $200,000) exceed $350,000 (or, with respect
to Section 2.14 only, $1,000,000 U.S. Dollars), the entire amount shall be
recognized and qualified for inclusion as a Liability for purposes of Article IX
hereof. Section 2.2 of the Premier Disclosure Schedule sets forth the name and
the jurisdiction of incorporation of each of Premier's Subsidiaries. Except as
set forth in Section 2.2 of the Premier Disclosure Schedule, all the outstanding
capital stock and other ownership interests or equity equivalents of each of the
Subsidiaries of Premier were issued in compliance with all applicable securities
laws and have been, and are, duly authorized, validly issued, fully paid and
non-assessable, and are wholly owned by Premier or another Subsidiary of Premier
free and clear of any claim, lien, security interest, pledge, charge,
encumbrance, stockholders' agreement, voting trust and any other restrictions or
imperfections of title. Except as disclosed in Section 2.2 of the Premier
Disclosure Schedule, neither Premier nor any of its Subsidiaries directly or
indirectly Controls or owns any interest in any other corporation, partnership,
joint venture or other business association or entity.
11
SECTION II.3 AUTHORITY RELATIVE TO THIS AGREEMENT AND RELATED MATTERS.
Each of Alpine and Premier has all necessary corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery by each of Alpine and Premier of this
Agreement and the consummation by each of Alpine and Premier of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of each of Alpine and Premier, including all necessary stockholder
action. This Agreement has been duly executed and delivered by each of Alpine
and Premier and, assuming the due authorization, execution and delivery hereof
by each of the other parties hereto, constitutes the legal, valid and binding
obligation of each of Alpine and Premier, enforceable against each of Alpine and
Premier in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and by general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law). No representation is given with respect to the
Income Tax treatment or effect of the transactions contemplated hereby.
SECTION II.4 CERTIFICATE OF INCORPORATION AND BY-LAWS.
Premier has heretofore furnished to Xxxxxxx a true, complete and
correct copy of the Certificate of Incorporation and By-Laws, as amended to
date, of Premier and the corresponding charter documents for each of its
Subsidiaries with total assets of U.S. $50,000 or more. Such Certificate of
Incorporation and By-Laws and charter documents of its Subsidiaries are in full
force and effect. Neither Premier nor any of Premier's Subsidiaries is in
violation of any of the provisions of the Certificate of Incorporation or
By-Laws of Premier or the charter documents of any of its Subsidiaries.
SECTION II.5 CAPITALIZATION.
(a) The authorized capital stock of Premier consists of 500,000 shares
of Ordinary Common Stock, 100,000 shares of Class B Common Stock and 400,000
shares of preferred stock, par value $.01 per share ("PREMIER PREFERRED STOCK").
As of the date hereof (i) 84,396 shares of Ordinary Common Stock are issued and
outstanding (all of which are owned by Alpine) and no shares are reserved for
issuance, (ii) 16,751 shares of Class B Common Stock are issued and outstanding
(all of which are owned of record as of the date hereof by the holders listed on
Section 2.5(a) of the Premier Disclosure Schedule attached hereto) and no shares
are reserved for issuance and (iii) no shares of Premier Preferred Stock are
issued or outstanding or are reserved for issuance. On the Closing Date
immediately prior to the Effective Time, Alpine will own beneficially and of
record all of the issued and outstanding shares of Class B Common Stock, free
and clear of all claims, liens, security interests, pledges, charges,
encumbrances, stockholders' agreements, voting trusts and any other restrictions
or imperfections of title.
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(b) Except for this Agreement and other than as set forth in Section
2.5(b) of the Premier Disclosure Schedule, there are no securities convertible
into or exchangeable for capital stock or other ownership interests or equity
equivalents, options, warrants or other rights, agreements, arrangements or
commitments of any character relating to the issued or unissued capital stock
of, or other ownership interests or equity equivalents in, Premier or any
Subsidiary thereof, nor are there any obligations of Premier or any Subsidiary
thereof to issue or sell any shares of capital stock of, or other ownership
interests or equity equivalents in, Premier or any Subsidiary thereof or any
agreement to issue any capital stock or any such convertible or exchangeable
securities, options, warrants, rights, agreements, arrangements or commitments.
All issued and outstanding shares of Ordinary Common Stock and Class B Common
Stock have been, and are, duly authorized, validly issued, fully paid and
non-assessable, and were issued in compliance with all applicable securities
laws. There are no voting trusts or other agreements or understandings to which
Alpine, Premier or any Subsidiary thereof is a party with respect to the capital
stock of Premier or any Subsidiary thereof other than the Stockholders Agreement
and except as otherwise set forth in Section 2.5(b) of the Premier Disclosure
Schedule.
SECTION II.6 NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
The execution and delivery of this Agreement by each of Alpine and
Premier do not, and the execution and delivery of the Shareholder Agreement by
Alpine will not, and neither the performance by each of Alpine and Premier of
this Agreement or the performance by Alpine of the Shareholder Agreement nor the
transactions contemplated hereby or thereby will, (a) conflict with or violate
the Certificate of Incorporation or By-Laws of Alpine, Premier or any of
Premier's Subsidiaries, (b) conflict with or violate any law, rule, regulation,
order, judgment or decree applicable to Alpine, Premier or any of Premier's
Subsidiaries or by which any of them or their respective properties is bound or
affected, (c) result in any breach of or constitute a default (or an event which
with notice or lapse of time or both would become a default) under, or give to
others any rights of termination, acceleration, cancellation of or other adverse
effect under, or result in the creation of a lien or encumbrance on any of the
properties or assets of Premier or any of Premier's Subsidiaries pursuant to,
any note, bond, mortgage, indenture, contract, agreement, joint venture, lease,
license, permit, franchise or other instrument or obligation to which Premier or
Premier's Subsidiaries is a party or by which Premier, Premier's Subsidiaries or
any of their properties is bound or affected, or (d) require Alpine, Premier or
any of Premier's Subsidiaries to obtain any consent, approval, authorization or
permit of, or to make any filing with or notification to, any governmental or
regulatory authority, domestic or foreign, except in respect of any of clauses
(a) through (d) above (i) as set forth in Section 2.6 of the Premier Disclosure
Schedule, (ii) for the filing of the Certificate of Merger, (iii) for filings
required pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended, and the rules and regulations promulgated thereunder (the "HSR
ACT"), (iv) any required European Commission or other national competition
authorities consents or filings with any foreign governmental or regulatory
authority, or (v) with respect to clause (c) only, where such breaches, defaults
or other occurrences would not either (x) prevent or materially delay
consummation of the Merger and the other transactions
13
contemplated by this Agreement or otherwise prevent Alpine or Premier from
performing its obligations under this Agreement or (y) have a Premier Material
Adverse Effect.
SECTION II.7 FINANCIAL STATEMENTS; UNDISCLOSED LIABILITIES; PREMIER
INDEBTEDNESS.
(a) Alpine has delivered to Xxxxxxx (i) the audited consolidated
balance sheet of Premier and its consolidated Subsidiaries as of April 30, 1998,
and the related audited consolidated statements of income and cash flows for the
year then ended, certified by Xxxxxx Xxxxxxxx LLP and attached hereto as Section
2.7(i) to the Premier Disclosure Schedule, and (ii) the unaudited consolidated
balance sheet of Premier and its consolidated Subsidiaries as of April 30, 1999,
and the related unaudited consolidated statements of income and cash flows for
the year then ended, certified by the principal financial and accounting officer
of Premier and attached hereto as Section 2.7(ii) to the Premier Disclosure
Schedule. All of the foregoing financial statements of Premier and its
Subsidiaries are collectively referred to herein as the "FINANCIAL STATEMENTS."
As used herein, the term "UNAUDITED BALANCE SHEET" shall mean the unaudited
consolidated balance sheet of Premier and its consolidated Subsidiaries as of
April 30, 1999 and the term "UNAUDITED FINANCIAL STATEMENTS" shall mean the
Unaudited Balance Sheet and the related unaudited consolidated statements of
income and cash flows of Premier and its consolidated Subsidiaries for the year
ended April 30, 1999.
(b) All of the Financial Statements: (i) present fairly in all material
respects the consolidated financial position of Premier and its consolidated
Subsidiaries as of the dates thereof and the results of operations and changes
in financial position for the respective periods covered by such statements;
(ii) are consistent with the books and records of Premier and its consolidated
Subsidiaries; and (iii) have been prepared in accordance with U.S. generally
accepted accounting principles applied on a consistent basis with prior years
(except as may be indicated therein or in the notes thereto), except for
consolidating, tax and other normal year-end audit adjustments.
(c) Neither Premier nor any Subsidiary thereof has any liability or
obligation of any nature (whether absolute, accrued, fixed, contingent,
liquidated, unliquidated or otherwise) of the type required to be set forth in
the Financial Statements (including the notes thereto) in accordance with U.S.
generally accepted accounting principles, consistently applied, other than
liabilities and obligations (i) that are reflected in the Unaudited Balance
Sheet or reflected in the notes thereto, (ii) that arose in the ordinary course
of business since April 30, 1999 and would not have a Premier Material Adverse
Effect or (iii) that are set forth in Section 2.7(c) of the Premier Disclosure
Schedule.
(d) Since April 30, 1998, there have been no reserves or provisions
taken or reversed or assets written down or written up except in the ordinary
course of operations or as set forth in Section 2.7(d) of the Premier Disclosure
Schedule.
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(e) Section 2.7(e) of the Premier Disclosure Schedule sets forth, as of
the close of business on May 27, 1999, a list of the outstanding Premier
Indebtedness, which includes the names of the holders thereof and the principal
amounts thereof.
SECTION II.8 ABSENCE OF CERTAIN CHANGES OR EVENTS.
Except as contemplated by this Agreement or disclosed in Section 2.8 of
the Premier Disclosure Schedule, since April 30, 1999, Premier and each of its
Subsidiaries have operated their business in the ordinary course of business as
theretofore conducted, and, since such date, (i) there has not been one or more
circumstances, events or conditions which collectively constitute a Premier
Material Adverse Change (as defined in Section 7.2(d)) and (ii) none of Premier
or any Premier Subsidiary has entered into any material transaction with any
third party or any of their respective Affiliates that will be in effect as of
the Closing.
SECTION II.9 ABSENCE OF LITIGATION.
Except as set forth in Section 2.9 of the Premier Disclosure Schedule,
(i) there is no claim, action, suit or legal or administrative proceeding
pending or, to the knowledge of Alpine or Premier, threatened against Premier or
Premier's Subsidiaries and (ii) no notice, order, writ, injunction, subpoena or
decree has been issued by or requested of any court or governmental agency or
department that would, if adversely determined, under subclauses (i) and (ii)
above, have a Premier Material Adverse Effect. As of the date hereof, there are
no actions, suits or proceedings pending or, to the knowledge of Alpine and
Premier, threatened against Premier or any of Premier's Subsidiaries that seek
to prevent or challenge, or seek damages in connection with, the transactions
contemplated by this Agreement or otherwise arising out of or in any way related
to this Agreement, the Shareholder Agreement or any of the transactions
contemplated hereby or thereby.
SECTION II.10 EMPLOYEE BENEFIT PLANS.
Section 2.10 of the Premier Disclosure Schedule sets forth a true and
complete list of the employee benefit plans (as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")) currently
maintained, sponsored or contributed to (or with respect to which any obligation
to contribute has been undertaken) by Premier or its Subsidiaries or any entity
that would be deemed a "single employer" with Premier within the meaning of
Section 414(b), (c), (m) or (o) of the Code or similar legislation of foreign
jurisdictions, and all material bonus, stock option, stock purchase, stock
appreciation right, incentive, deferred compensation, supplemental retirement,
post-retirement or post-termination health or welfare benefit, severance,
welfare, medical, life, vacation, sickness, change in control, death benefit and
other similar fringe or employee benefit plans, programs, policies or
arrangements, all employment, consulting or executive compensation agreements,
in each case, whether domestic or foreign, for the benefit of, or relating to,
any employee, former employee or director of Premier or any Subsidiary of
Premier (including their beneficiaries) (collectively, the "PREMIER EMPLOYEE
PLANS"). For purposes of the preceding sentence, "material"means any program,
plan or benefit involving either more than five (5) persons or
15
aggregate liability in excess of $100,000. Except as set forth in Section 2.10
of the Premier Disclosure Schedule and except as to those which would not have a
Premier Material Adverse Effect, with respect to any of the Premier Employee
Plans, (i) each Premier Employee Plan (other than a Multiemployer Plan (as
defined below) intended to qualify under Section 401(a) of the Code (or similar
provisions for tax-registered or tax-favored plans of foreign jurisdictions
("FOREIGN PLANS")) is so qualified and has received a favorable determination
letter from the Internal Revenue Service (the "IRS") (or, if applicable, any
required approvals of foreign governmental authorities for Foreign Plans), and
with respect to each such Premier Employee Plan, to the knowledge of Alpine and
Premier, no event has occurred or condition exists that could reasonably be
expected to disqualify such Premier Employee Plan; (ii) no such Premier Employee
Plan (other than a Foreign Plan) is a "multiemployer plan" within the meaning of
Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code (a
"MULTIEMPLOYER PLAN") or a single employer pension plan within the meaning of
Section 4001(a)(15) of ERISA that is subject to Sections 4063 and 4064 of ERISA
(a "MULTIPLE EMPLOYER PLAN") and no withdrawal liability exists with respect to
any Multiemployer Plan or Multiple Employer Plan and, in relation to any Foreign
Plan, none of Alpine, Premier or Premier's Subsidiaries has any reason to
believe that withdrawal from or termination of any Foreign Plan will trigger or
increase any additional liability to such plan; (iii) there has been no
"prohibited transaction" within the meaning of Section 4975(c) of the Code or
Section 406 of ERISA, involving the assets of the Premier Employee Plans, which
could reasonably be expected to subject Premier or any Premier Subsidiary either
to a civil penalty assessed pursuant to Section 502(i) of ERISA or a tax imposed
by Section 4975 of the Code; (iv) no "accumulated funding deficiency" (within
the meaning of Section 412 of the Code and Section 302 of ERISA) has been or
could reasonably be expected to be incurred, whether or not waived, and no
excise or other taxes have been or could be expected to be incurred or are due
and owing by Alpine, Premier or any of Premier's Subsidiaries with respect to
the Premier Employee Plans because of any failure to comply with the minimum
funding standards of the Code and ERISA or, in respect of any Foreign Plans, any
failure to comply with the minimum funding requirements in the jurisdiction
where that plan is in operation; (v) no claim, lawsuit, arbitration or other
action has been asserted or instituted, or to the knowledge of Alpine and
Premier is threatened or anticipated against the Premier Employee Plans (other
than non-material routine claims for benefits and appeals of such claims), any
trustee or fiduciaries thereof, Premier, any Subsidiary of Premier, any
director, officer or employee thereof, or any of the assets of any trust of the
Premier Employee Plans; (vi) each Premier Employee Plan (other than a
Multiemployer Plan) complies and has been maintained and operated in all
respects in accordance with its terms and applicable law, including, without
limitation, ERISA and the Code; (vii) no Premier Employee Plan (other than a
Multiemployer Plan) is or is expected to be under audit or investigation by the
IRS, U.S. Department of Labor, or, in respect of any Foreign Plan, any
equivalent body or authority, or any other governmental authority and no such
completed audit or investigation, if any, has resulted in the imposition of any
tax or penalty; (viii) except as required by Section 4980B(f) of the Code, no
Premier Employee Plan provides medical, death or welfare benefits (whether or
not insured) with respect to current or former employees of Premier or Premier's
Subsidiaries beyond their retirement or other termination of employment; and
(ix) no "reportable event" within the
16
meaning of Section 4043(c) of ERISA and the regulations thereunder, other than
any such event for which the 30-day notice requirement under ERISA has been
waived (a "REPORTABLE EVENT"), has occurred or is expected to occur, and the
consummation of the transactions contemplated by this Agreement will not result
in a Reportable Event with respect to any Premier Employee Plan (other than a
Multiemployer Plan). Notwithstanding the foregoing, the representations and
warranties contained in this Section 2.10 (other than the representations and
warranties contained in subsections (ii), (iii) and (viii)) are qualified such
that to the extent that any such representation or warranty applies to a Premier
Employee Plan that is a Multiemployer Plan, such representation or warranty
shall be deemed to be to the best knowledge of Alpine and Premier.
SECTION II.11 PERMITS AND LICENSES.
Except as set forth in Section 2.11 of the Premier Disclosure Schedule
or as would not have a Premier Material Adverse Effect, (i) Premier and
Premier's Subsidiaries are now, and on the Closing Date will be, the holder of
all licenses, franchises, ordinances, authorizations, permits, certificates,
consents, orders and registrations, domestic or foreign, necessary to enable
them to continue to conduct their businesses as presently conducted
(collectively, the "PREMIER LICENSES") and (ii) all of the Premier Licenses are
in full force and effect, except, in each case, for those that lapse in
accordance with their terms for reasons other than any change in control of
Premier or any of Premier's Subsidiaries. Neither Alpine nor Premier has reason
to believe that Premier or any of its Subsidiaries will not be able to obtain or
retain all Premier Licenses. Neither Premier nor any of its Subsidiaries is
required to have any form of security clearance from any governmental agency in
order to conduct their business in the manner it is presently conducted. Except
as set forth in Section 2.11 of the Premier Disclosure Schedule, there is not
now pending or, to the knowledge of Alpine and Premier, threatened any
investigation before any foreign, federal, state or local governments or
agencies.
SECTION II.12 PROPERTIES AND CONTRACTS.
(a) Except as set forth in Section 2.12(a) of the Premier Disclosure
Schedule, Premier and Premier's Subsidiaries have good and marketable title to
or, in the case of leases and licenses, valid and subsisting leasehold interests
or licenses in, all of the tangible personal properties and assets and rights
reasonably necessary to operate or conduct the business as it is now being
operated and conducted by Premier and its Subsidiaries (collectively, the
"Premier Assets"), including, without limitation, all such properties and assets
that are shown on the Financial Statements attached as Sections 2.7(i) and (ii)
to the Premier Disclosure Schedule (except for such properties and assets sold
in the ordinary course of business since the dates of such statements), in each
case free and clear of all liens, pledges, security interests, restrictions,
prior assignments, claims, encumbrances and other defects and/or imperfections
of title, except as set forth in such Financial Statements and except for those:
(i) securing Taxes, assessments and other governmental charges or levies not yet
due and payable (excluding any imposed pursuant to any of the provisions of
ERISA) or the claims of materialmen, mechanics, carriers, warehousemen or
landlords for labor, materials, supplies or rentals incurred in the
17
ordinary course of business not yet due and payable; and (ii) consisting of
deposits or pledges made in the ordinary course of business in connection with,
or to secure payment of, obligations under workers' compensation, unemployment
insurance or similar legislation or under surety or performance bonds, in each
case arising in the ordinary course of business.
(b) All patents, patent applications, trade names, registered
trademarks and service marks, trademark and service xxxx applications,
registered copyrights and registered design rights and applications therefor
owned by or licensed to or used by Premier or any of its Subsidiaries (i) are
listed and identified in Section 2.12(b) of the Premier Disclosure Schedule,
(ii) have been duly registered in, filed in or issued by the United States
Patent and Trademark Office, the United States Register of Copyrights or the
corresponding offices of other countries, states or other jurisdictions to the
extent set forth in Section 2.12(b) of the Premier Disclosure Schedule, (iii)
have been properly maintained and renewed in accordance with all applicable
provisions of law and administrative regulations in the United States and each
such country, state or other jurisdiction, and (iv) to the knowledge of Alpine
and Premier, are valid, enforceable and in full force and effect. Except as set
forth in Section 2.12(b) of the Premier Disclosure Schedule, Premier and
Premier's Subsidiaries own, free and clear of all liens, pledges, security
interests, restrictions, prior assignments, claims, encumbrances and other
defects and/or imperfections of title, or are licensed to use, pursuant to
licenses disclosed on Section 2.12(b) of the Premier Disclosure Schedule, all
patents, trademarks, trade names, copyrights, trade secrets, customer lists,
technology, know-how, processes and any other confidential information used in
or reasonably necessary for the conduct of their businesses as currently
conducted. Except as set forth in Section 2.12(b) of the Premier Disclosure
Schedule, the use of such patents, trademarks, trade names, copyrights, trade
secrets, customer lists, technology, know-how, designs and registered design
rights, rights of extraction relating to databases, processes, confidential
information and all similar or equivalent rights, registered or unregistered,
including all applications for any of the foregoing ("PREMIER INTELLECTUAL
PROPERTY"), by Premier or Premier's Subsidiaries has not and does not infringe
the rights of any person and no claim in writing has been made by any person
that it does infringe. Except as described in Section 2.12(b) of the Premier
Disclosure Schedule, no person has a license to use any of the Premier
Intellectual Property. Except as set forth in Section 2.12(b) of the Premier
Disclosure Schedule, to the knowledge of Alpine and Premier, no person is
infringing upon the patents, trade names, trademarks, copyrights or applications
therefor set forth in Section 2.12(b) of the Premier Disclosure Schedule.
(c) Except for the contracts, commitments, plans, agreements and
licenses described in Section 2.12(c) of the Premier Disclosure Schedule
attached hereto, neither Premier nor any of its Subsidiaries is a party to, nor
is Premier or any of its Subsidiaries or any of the Premier Assets or the
Premier Intellectual Property subject to or otherwise bound by, any oral or
written contract, commitment, agreement or license which may involve an
aggregate monetary commitment in excess of U.S. $1,000,000 on the part of
Premier or any of its Subsidiaries. Except as set forth in Section 2.12(c) of
the Premier Disclosure Schedule, all of the contracts, commitments, leases or
other agreements of Premier and Premier's Subsidiaries are presently valid and
enforceable, and there is no violation, default or claim of
18
violation or default by any party thereto, and no condition or event has
occurred which with notice or lapse of time or both would constitute a violation
or default thereunder, except for any such failure to be valid and existing and
in full force and effect, or any such violation, default or claim, that would
not have a Premier Material Adverse Effect. Xxxxxxx has been furnished with true
and complete copies of all material contracts, commitments, leases or other
agreements of Premier and its Subsidiaries.
SECTION II.13 REAL PROPERTY AND EQUIPMENT.
(a) Section 2.13(a) of the Premier Disclosure Schedule contains a
complete and correct list of all real property owned, occupied, leased or
otherwise used by Premier and Premier's Subsidiaries in the conduct of their
business. All of such real property is either owned or leased by Premier or one
of its Subsidiaries. All such real property, buildings and structures, and the
equipment therein, and the operations and maintenance thereof, comply with any
applicable agreements and restrictive covenants and conform to all applicable
legal requirements, including those relating to building use, land use and
zoning, except in each case where the failure so to comply or conform would not
have a Premier Material Adverse Effect. Premier and Premier's Subsidiaries'
buildings and other structures, equipment (including personal property) and
other assets (whether leased or owned) are in reasonably good operating
condition and repair, subject to ordinary wear and tear.
(b) None of Alpine, Premier or any of Premier's Subsidiaries has
received notice or other written communication of any proposed or contemplated
eminent domain or other proceeding that would result in the taking of all or any
part of such real property that would prevent or hinder the continued use of
such real property as heretofore used in the conduct of the business by Premier
or any of its Subsidiaries.
(c) There are no material encroachments onto such real property by any
improvements on any adjoining property.
(d) There are no material encroachments onto any adjoining property by
any improvements on such real property.
(e) With respect to any part of such real property owned by Premier or
any of its Subsidiaries, Premier or one of its Subsidiaries owns good and
marketable fee simple absolute title (or the equivalent) thereto, free and clear
of any and all mortgages, deeds of trust, liens, encumbrances, claims, charges,
security interests, equities covenants, conditions, restrictions, easements,
classifications as a monument, rights of way, leases, tenancies, rights of
occupation, wayleaves, licenses, third-party rights or other matters and other
defects and/or imperfections of title, whether or not of record, except for
those (i) securing Taxes, assessments and other governmental charges or levies
not yet due and payable (excluding any imposed pursuant to any of the provisions
of ERISA) or the claims of architects, builders, materialmen, mechanics,
carriers or warehousemen for services, works, labor, materials or supplies
incurred in the ordinary course of business not yet due and payable, (ii)
consisting of
19
deposits or pledges made in the ordinary course of business in connection with,
or to secure payment of, obligations under surety or performance bonds, (iii)
constituting encumbrances in the nature of equities covenants, conditions,
restrictions, easements, rights of way, leases, tenancies, rights of occupation,
wayleaves, licenses, third-party rights or other matters and other defects
and/or imperfections of title, whether or not of record, on or with respect to
the use of Premier's or any of its Subsidiaries' real property, provided the
same (x) do not materially interfere with the present use or continued existence
of structures on the properties or (y) do not materially impair the value
thereof or (iv) set forth in Section 2.13(e) of the Premier Disclosure Schedule.
(f) Except as described in Section 2.13(f) of the Premier Disclosure
Schedule, all of the Premier Assets and all other assets and property of Premier
and its Subsidiaries are located on the premises owned or leased by Premier or
any of its Subsidiaries as set forth in Section 2.13(a) of the Premier
Disclosure Schedule.
SECTION II.14 COMPLIANCE WITH ENVIRONMENTAL LAWS.
The representations and warranties in this Section 2.14 are the
exclusive representations and warranties covering environmental matters made by
Alpine and Premier. As used in this Section 2.14, the reference to "Premier"
shall mean Premier or any of its Subsidiaries or any predecessor of Premier or
any of its Subsidiaries only to the extent Premier or any of its Subsidiaries is
liable for any Environmental Liabilities (as hereinafter defined) of such
predecessor.
For the purposes of this Section 2.14, the following terms shall have
the meanings set forth hereafter:
"ENVIRONMENT" shall mean any surface or subsurface physical
medium or natural resource, including air, land, soil, surface waters, ground
waters, stream and river sediments, biota and any indoor area, surface or
physical medium.
"ENVIRONMENTAL LAWS" shall mean any federal, state, local,
foreign or common law (including the law of the European Union), rule,
regulation, ordinance, code, order or judgment (including any written judicial
or administrative guidance) relating to the injury to, or the pollution or
protection of, human health and safety or the Environment effective prior to the
Closing Date or, solely with respect to Section 9.2(a), in effect at the time
that any claims are made under Section 9.2(a).
"ENVIRONMENTAL LIABILITIES" shall mean any claims, judgments,
damages (including punitive damages), losses, penalties, fines, liabilities,
encumbrances, liens, violations, costs and expenses (including attorneys' and
consultants' fees) of investigation, remediation, monitoring or defense of any
matter relating to human health, safety or the Environment of whatever kind or
nature by any party, entity or authority incurred as a result of (i) the
existence of Hazardous Substances in, on, under, at or emanating from any real
20
property presently or formerly owned, operated or managed by Premier , (ii) the
off-site transportation, treatment, storage or disposal of Hazardous Substances
generated by Premier or (iii) the violation of any Environmental Laws.
"HAZARDOUS SUBSTANCES" shall mean petroleum, petroleum
products, petroleum-derived substances, radioactive materials, hazardous wastes,
polychlorinated biphenyls, lead-based paint, radon, urea formaldehyde, friable
asbestos or any materials containing friable asbestos, and any materials or
substances regulated as "hazardous substances," "hazardous materials,"
"hazardous constituents," "toxic substances," "pollutants," "contaminants,"
"prescribed substances" or any similar denomination intended to classify or
regulate substances by reason of toxicity, carcinogenicity, ignitability,
corrosivity or reactivity under any Environmental Law.
Except for specific facts and environmental conditions set forth in
Section 2.14 of the Premier Disclosure Schedule, and without giving effect to
any speculative conclusions therein, and except as would not have a Premier
Material Adverse Effect:
(a) All of the operations of Premier comply with all
applicable Environmental Laws, and any real property presently owned, leased or
operated by Premier (collectively, the "PREMIER REAL PROPERTY") meets, and, to
the knowledge of Alpine and Premier, the real property formerly owned, leased or
operated by Premier met, at the time Premier owned, leased or operated it, the
requirements and standards of all Environmental Laws.
(b) The Premier Real Property does not contain, and, to the
knowledge of Alpine and Premier, the real property formerly owned, leased or
operated by Premier did not contain at the time Premier owned, leased or
operated it, any Hazardous Substances in, on, over, under or at it, in
concentrations which would violate any applicable Environmental Laws or have
resulted or would be reasonably likely to result in the imposition of liability
or obligations on Premier under any applicable Environmental Laws, including any
violation, liability or obligations for the investigation, corrective action,
remediation or monitoring of Hazardous Substances in, on, over, under or at the
Premier Real Property and the real property formerly owned, leased or operated
by Premier.
(c) None of the Premier Real Property is listed or, to the
knowledge of Alpine and Premier, proposed for listing, and, to the knowledge of
Alpine and Premier, the real property formerly owned, leased or operated by
Premier is not listed or proposed for listing, on the National Priorities List
pursuant to the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. Section 9601 ET SEQ., or any similar inventory of sites requiring
investigation or remediation maintained by any state, locality or foreign
governmental authority, department, agency, court or tribunal. Except as set
forth on Section 2.14 of the Premier Disclosure Schedule, Premier has not
received any written notice from any governmental entity or third party, of any
actual or threatened Environmental
21
Liability that is outstanding, pending or unresolved with respect to the Premier
Real Property or any real property formerly owned, leased or operated by
Premier.
(d) Premier has all the permits, licenses, authorizations and
approvals necessary for the conduct of its business and for the operations on,
in or at the Premier Real Property which are required under applicable
Environmental Laws (the "PREMIER ENVIRONMENTAL PERMITS"). Premier is in
compliance with the terms and conditions of all such Environmental Permits, and,
to the knowledge of Alpine and Premier, no reason exists why Premier is not
capable of continued operation of its business in compliance with the Premier
Environmental Permits and the applicable Environmental Laws.
SECTION II.15 COMPLIANCE WITH LAWS.
Except for such violations as have not had (since May 31, 1997) and
would not have a Premier Material Adverse Effect or as set forth in Section 2.15
of the Premier Disclosure Schedule, Premier and each of its Subsidiaries has
been (since May 31, 1997) and is, and their business has been (since May 31,
1997) and is being conducted and operated, in compliance with all requirements
of all applicable statutes, laws, ordinances, regulations, rules, codes or
decrees, whether foreign or domestic, federal, state or local, which affect
Premier or any of its Subsidiaries, their business, the Premier Assets or any
other assets and property of Premier and its Subsidiaries, or to which Premier
or any of its Subsidiaries is subject, including, without limitation, those
relating to equal employment practices; occupational safety and health;
export/import licenses or controls; foreign exchange controls; restraint of
trade and unfair competition; immigration; and federal procurement. Except as
set forth in Section 2.15 of the Premier Disclosure Schedule, neither Premier
nor any of its Subsidiaries has received any written notice or other
communication from any governmental authority or local quasi-governmental entity
with respect to an alleged, actual or potential violation and/or failure to
comply with any of the foregoing.
SECTION II.16 EMPLOYMENT MATTERS.
Except as would not have a Premier Material Adverse Effect:
(a) Except as set forth in Section 2.16(a) of the Premier Disclosure
Schedule, each of Premier and its Subsidiaries: (i) is in compliance with all
applicable foreign, federal, state and provincial laws, rules and regulations
respecting employment, employment practices, terms and conditions of employment,
pay equity and wages and hours, in each case, with respect to current, former or
retired employees or consultants of Premier or any of its Subsidiaries
(collectively "PREMIER EMPLOYEES"); (ii) has timely withheld and paid over to
the appropriate foreign, federal, state, provincial or local governmental
authorities all amounts required by law or by agreement to be withheld from the
wages, salaries and other payments to Premier Employees; (iii) is not liable for
any arrears of wages or any taxes or any penalty for failure to comply with any
of the foregoing; and (iv) (other than routine payments to be made in the
ordinary course of business and consistent with past practice) is not liable for
any
22
payment to any trust or other fund or to any governmental or administrative
authority, with respect to unemployment compensation benefits, social security
or other benefits for Premier Employees.
(b) Except as set forth in Section 2.16(b) of the Premier Disclosure
Schedule, neither Premier nor any of its Subsidiaries is involved in or, to the
knowledge of Alpine and Premier, threatened with any labor dispute, grievance or
litigation relating to labor, safety or discrimination matters involving any
Premier Employee, including, without limitation, charges of unfair labor
practices or discrimination complaints. Except as set forth in Section 2.16(b)
of the Premier Disclosure Schedule, neither Premier nor any of its Subsidiaries
has engaged in any unfair labor practices within the meaning of the National
Labor Relations Act, or in relation to dismissals, equal pay, sex, race or
disability discrimination, or similar such unfair labor practices legislation of
foreign jurisdictions. Except as set forth in Section 2.16(b) of the Premier
Disclosure Schedule, neither Premier nor any of its Subsidiaries is a party to,
or bound by, any collective bargaining agreement or union recognition agreement
with respect to Premier Employees and no collective bargaining agreement is
being negotiated by Premier or any of its Subsidiaries.
(c) Except as set forth in Section 2.16(c) of the Premier Disclosure
Schedule, each of Premier and Premier's Subsidiaries is in compliance with all
laws, regulations and orders relating to workers' compensation and the Worker
Adjustment and Retraining Notification Act or similar such legislation or
regulations of foreign jurisdictions.
SECTION II.17 TAX RETURNS, AUDITS AND LIABILITIES.
For purposes of this Agreement, except as otherwise expressly provided,
unless the context otherwise requires:
"INCOME TAXES" means any federal, state, local or foreign
income or franchise (or an excise tax based on income) Tax, including a Tax
assessed on a corporation by reference to its income, gains or profits, and
shall include, for the avoidance of doubt, any withholding tax and United
Kingdom corporation tax, and in each instance any interest, penalties or
additions to tax attributable to such Tax.
"RETURN" means any report, return, statement, estimate,
declaration, form or other information required to be supplied to a taxing
authority in connection with Taxes.
"TAX" or "TAXES" means taxes of any kind, levies or other like
assessments, customs, duties, imposts, charges or, including, without
limitation, income, gross receipts, ad valorem, value added, excise, real or
personal property, asset, sales, use, license, payroll, transaction, capital,
net worth and franchise taxes, estimated taxes, withholding, employment, social
security, workers compensation, utility, severance, production, unemployment
compensation, occupation, premium, windfall profits, transfer and gains taxes or
other governmental taxes imposed or payable to the United States, or any state,
county, local or
23
foreign government or subdivision or agency thereof, and in each instance such
term shall include any interest, penalties or additions to tax attributable to
any such Tax.
"TAX SHARING ARRANGEMENT" means any written or unwritten
agreement or arrangement for the allocation or payment of or with respect to Tax
liabilities or Tax benefits.
Except as set forth in Section 2.17 of the Premier Disclosure Schedule,
with respect to each of Premier and Premier's Subsidiaries (or Alpine acting on
behalf of Premier and Premier's Subsidiaries) (i) Alpine has or will timely file
all Returns for periods ending on or prior to the Closing Date and will file all
Returns it files on a consolidated or combined basis with Premier or any of
Premier's Subsidiaries that would include the income of any of such corporations
for any Pre-Closing Date Period (as defined in Section 6.9); (ii) there is no
Tax liability of Premier or any of its Subsidiaries through April 30, 1999 that
has not been adequately provided for in the Financial Statements. All Income Tax
and other material Tax Returns described in subclause (i) of this paragraph with
respect to Taxes were true and correct in all material respects as of the date
on which they were filed or as subsequently amended to the date hereof.
Except as set forth in Section 2.17 of the Premier Disclosure Schedule,
(A) there are no proposed adjustments resulting from any audits that have been
or will be contested and there is no action, suit, proceeding, investigation,
audit, claim or assessment pending or, to the knowledge of Alpine and Premier,
threatened with respect to any liability for Tax that relates to Premier or any
of Premier's Subsidiaries for which a material amount of Tax is at issue, (B)
all material amounts required to be collected or withheld by Premier and each of
Premier's Subsidiaries with respect to Taxes have been duly collected or
withheld and any such amounts that are required to be remitted to any taxing
authority have been duly remitted and (C) there is no liability for Tax, whether
currently imposed or subsequently imposed, pursuant to United States Treasury
Regulations ("TREAS. REGS.") Section 1.1502-6 (or any comparable provision of
foreign, state or local law), on Premier or any of Premier's Subsidiaries by
reason of having been a member of any consolidated, unitary or combined group of
which Alpine is the common parent corporation. For the avoidance of doubt,
Alpine's indemnification obligation with respect to any such Section 1.1502-6
(or any comparable provision of foreign, state or local law) Tax liabilities is
total and complete from the first dollar.
Except as set forth in Section 2.17 of the Premier Disclosure Schedule,
neither Premier nor any of its Subsidiaries has any deferred gain or loss
arising from deferred intercompany transactions (as referred to in Treas. Regs.
Section 1.1502-13).
The Income Tax Returns of Premier and any of its Subsidiaries and the
consolidated or combined returns of Alpine on which their income is included
have been audited by an applicable taxing authority or are closed by the
applicable statute of limitations for periods through April 30, 1995.
Premier has heretofore provided Xxxxxxx with complete copies (or, if
oral, written descriptions) of any Tax Sharing Arrangement to which Premier or
any of its Subsidiaries is a
24
party. Except as permitted pursuant to Section 6.9, Premier or any of its
Subsidiaries will have no liability following the Closing Date under any Tax
Sharing Agreement.
SECTION II.18 SECURITIES ACT COMPLIANCE.
(a) Alpine understands that the Securities have not been registered
under the Securities Act or any state law, rule or regulation and are being
offered and sold under an exemption from registration provided by, among other
provisions, Rule 506 of Regulation D promulgated under the Securities Act and,
therefore, the Securities cannot be resold without such registration under the
Securities Act or an exemption from such registration requirement.
(b) Alpine represents that it is an "accredited investor" within the
meaning of Rule 501 of Regulation D promulgated under the Securities Act. Alpine
has been given an opportunity to examine all documents, including this Agreement
and the Annual Report of Xxxxxxx on Form 20-F for the year ended December 31,
1998 as filed with the Securities and Exchange Commission, and to ask questions
of and to receive answers from Xxxxxxx concerning the terms and conditions of
matters contemplated in this Agreement, and to obtain any additional information
necessary to verify the accuracy of any information given to the extent Xxxxxxx
possesses such information or can acquire it without unreasonable effort or
expense.
(c) Alpine represents that it is acquiring the Securities solely for
its own account for investment purposes only and not with a view to or in
connection with any resale or distribution thereof, except in accordance with
the Securities Act. Neither Alpine nor any of its Affiliates has any intention
of participating in the formulation, determination or direction of the basic
business decisions of Xxxxxxx.
SECTION II.19 INSURANCE.
(a) The business of Premier and its Subsidiaries and the Premier assets
and real and personal property are and have been, during the periods indicated
on Section 2.19(i) of the Premier Disclosure Schedule, insured by such insurers
and under such policies as are listed on Section 2.19(i) of the Premier
Disclosure Schedule. Such insurance policies and arrangements have been in
effect without interruption during such period, are in full force and effect on
the Closing Date and are adequate and customary for the business engaged in by
Premier and its Subsidiaries as of the date hereof. To the knowledge of Alpine
and Premier, the continued coverage of Premier and its Subsidiaries after the
Closing Date under any insurance policies that provided occurrence-based
coverage for events occurring prior to the Closing Date that name Premier or any
of its Subsidiaries as an insured will not be adversely affected by the
consummation of the Merger.
(b) To the best knowledge of Alpine and Premier, the business of
Premier and its Subsidiaries and the Premier assets and real and personal
property are and have been, during the periods indicated on Section 2.19(ii) of
the Premier Disclosure Schedule, insured by such
25
insurers and under such policies as are listed on Section 2.19(ii) of the
Premier Disclosure Schedule.
SECTION II.20 YEAR 2000 COMPLIANCE.
Premier and each of its Subsidiaries have conducted a review of all of
the hardware, software and other processing capability used in connection with
their business and included in the Premier Assets or any other assets and
property of Premier and its Subsidiaries to insure that all such capabilities
will be Year 2000 Compliant, and are currently implementing a compliance plan
that is intended to result in such capabilities being Year 2000 Compliant in all
material respects by no later than January 1, 2000. Each action to have been
taken prior to the date hereof under such plan has been substantially completed
and, as of the date hereof, Alpine and Premier have no knowledge indicating that
any action to be taken under such plan after the date hereof will be materially
delayed or will fail to accomplish its purpose under the plan. As used herein,
"YEAR 2000 COMPLIANT" shall mean that such capabilities will function accurately
and without interruption or ambiguity using date information before, during and
after January 1, 2000.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF XXXXXXX
Xxxxxxx hereby represents and warrants to Alpine and Premier that,
except as set forth in the disclosure schedule delivered by Xxxxxxx to Alpine
and attached hereto and made a part hereof (the "XXXXXXX DISCLOSURE SCHEDULE"):
SECTION III.1 ORGANIZATION AND QUALIFICATION.
Xxxxxxx is a corporation duly organized and validly existing under the
laws of the jurisdiction of its incorporation and has the requisite corporate
power and authority to own, operate or lease the properties that it purports to
own, operate or lease and to carry on its business as it is now being conducted,
and is duly qualified, licensed and authorized to do business as a foreign
corporation and is in good standing (with respect to the jurisdictions that
recognize the concept of good standing) in each jurisdiction where the character
of its properties owned, operated or leased or the nature of its activities
makes such qualification, licensing and authorization necessary, other than
those jurisdictions in which the failure to so qualify or to be licensed or
authorized would not have a Xxxxxxx Material Adverse Change (as defined in
Section 7.3(d)). Merger Sub is a corporation duly organized and validly existing
under the laws of the jurisdiction of its incorporation.
SECTION III.2 AUTHORITY RELATIVE TO THIS AGREEMENT AND RELATED MATTERS.
26
Each of Xxxxxxx and Merger Sub has all necessary corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery by each of Xxxxxxx and Merger Sub of this
Agreement and the consummation by each of Xxxxxxx and Merger Sub of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Xxxxxxx and Merger Sub. This Agreement has been
duly executed and delivered by each of Xxxxxxx and Merger Sub and, assuming the
due authorization, execution and delivery hereof by each of the other parties
hereto, constitutes the legal, valid and binding obligation of each of Xxxxxxx
and Merger Sub, enforceable against each of Xxxxxxx and Merger Sub in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law). No representation is given with respect to the Income Tax
treatment or effect of the transactions contemplated hereby.
SECTION III.3 GOVERNING INSTRUMENTS.
Xxxxxxx has heretofore furnished to Alpine a true, complete and correct
copy of the Memorandum and Articles of Association, as amended to date, of
Xxxxxxx and the Certificate of Incorporation and By-Laws, as amended to date, of
Merger Sub (collectively, the "GOVERNING INSTRUMENTS"). Such Governing
Instruments are in full force and effect. Neither Xxxxxxx nor any of its
Subsidiaries is in violation of any of the provisions of its Governing
Instruments.
SECTION III.4 CAPITALIZATION.
(a) The authorized capital stock of Xxxxxxx consists of 952,000,000
ordinary shares, par value 50 xxxxx per share ("XXXXXXX ORDINARY SHARES"). As of
the date hereof, 691,677,275 shares of Xxxxxxx Ordinary Shares are issued and
outstanding. The authorized capital stock of Merger Sub consists of 1,000 shares
of Merger Sub Common Stock. As of the date hereof, 100 shares of Merger Sub
Common Stock are issued and outstanding (all of which are directly owned by
Xxxxxxx) and no shares are reserved for issuance. As of the Closing Date,
Xxxxxxx will directly own all of the issued and outstanding shares of Merger Sub
Common Stock.
(b) Other than pursuant to this Agreement and as set forth in Section
3.4(b) of the Xxxxxxx Disclosure Schedule, there are no securities convertible
into or exchangeable for capital stock or other ownership interests or equity
equivalents, options, warrants or other rights, agreements, arrangements or
commitments of any character relating to the issued or unissued capital stock
of, or other ownership interests or equity equivalents in, Xxxxxxx, nor are
there any obligations of Xxxxxxx to issue or sell any shares of capital stock
of, or other ownership interests or equity equivalents in, Xxxxxxx or any
agreement to issue any such capital stock or any such convertible or
exchangeable securities, options, warrants, rights, agreements, arrangements or
commitments. All issued and outstanding shares of capital stock
27
of Xxxxxxx, have been, and are duly authorized, validly issued and fully paid,
and were issued in compliance with all applicable securities laws. Except as set
forth in Section 3.4(b) of the Xxxxxxx Disclosure Schedule, there are no voting
trusts or other agreements or understandings to which Xxxxxxx is a party with
respect to the voting of the capital stock of Xxxxxxx.
SECTION III.5 NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
The execution and delivery of this Agreement by Xxxxxxx do not, and the
execution and delivery of the Shareholder Agreement by Xxxxxxx will not, and
neither the performance by Xxxxxxx of this Agreement or the Shareholder
Agreement nor the transactions contemplated hereby or thereby will, (a) conflict
with or violate the Governing Instruments of Xxxxxxx or any of its Subsidiaries,
(b) conflict with or violate any law, rule, regulation, order, judgment or
decree applicable to Xxxxxxx or any of its Subsidiaries or by which any of them
or their respective properties is bound or affected, (c) result in any breach of
or constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
acceleration, cancellation of or other adverse effect under, or result in the
creation of a lien or encumbrance on any of the properties or assets of Xxxxxxx
or any of its Subsidiaries pursuant to, any note, bond, mortgage, indenture,
contract, agreement, joint venture, lease, license, permit, franchise or other
instrument or obligation to which Xxxxxxx or its Subsidiaries is a party or by
which Xxxxxxx, its Subsidiaries or any of their properties is bound or affected,
or (d) require Xxxxxxx to obtain any consent, approval, authorization or permit
of, or to make any filing with or notification to, any governmental or
regulatory authority, domestic or foreign, except in respect of any of clauses
(a) through (d) above (i) as set forth in Section 3.5 of the Xxxxxxx Disclosure
Schedule, (ii) for the filing of the Certificate of Merger, (iii) for applicable
requirements of U.S. securities laws and Blue Sky Laws and for applicable
requirements of the rules and regulations of the LSE, (iv) for filings required
pursuant to the HSR Act, (v) any required European Commission or other national
competition authorities consents or filings with any foreign governmental or
regulatory authority as referenced in Section 7.2 hereof and (vi) where such
breaches, defaults or other occurrences would not either (x) prevent or
materially delay consummation of the Merger and the other transactions
contemplated by this Agreement or otherwise prevent Xxxxxxx from performing its
obligations under this Agreement or (y) have a Xxxxxxx Material Adverse Change.
SECTION III.6 PUBLIC FILINGS; FINANCIAL STATEMENTS; LIABILITIES.
Xxxxxxx has made available to Alpine copies of its Annual Report on
Form 20-F for the year ended December 31, 1998, in the form filed with the U.S.
Securities and Exchange Commission (the "XXXXXXX FORM 20-F"), and all circulars,
reports and other documents distributed by Xxxxxxx to its shareholders since
December 31, 1998. Except as described in Section 3.6 of the Xxxxxxx Disclosure
Schedule, the consolidated financial statements of Xxxxxxx and its Subsidiaries
included in the Xxxxxxx Form 20-F present fairly, in all material respects, the
financial position of Xxxxxxx and its Subsidiaries as of December 31, 1998 and
28
the results of their operations in the year then ended in conformity with
generally accepted accounting principles in the United Kingdom, applied on a
consistent basis.
SECTION III.7 ABSENCE OF CERTAIN CHANGES OR EVENTS.
Except as contemplated by this Agreement or disclosed in Section 3.7 of
the Xxxxxxx Disclosure Schedule, since December 31, 1998, Xxxxxxx has operated
its business in the ordinary course of business as theretofore conducted, and,
since such date, there has not been any Xxxxxxx Material Adverse Change.
SECTION III.8 LITIGATION.
As of the date hereof, there are no actions, suits or proceedings
pending or, to the knowledge of Xxxxxxx, threatened against Xxxxxxx or any of
Xxxxxxx'x Subsidiaries that seek to prevent or challenge the transactions
contemplated by this Agreement or otherwise arising out of or in any way related
to this Agreement, the Shareholder Agreement or any of the transactions
contemplated hereby or thereby.
ARTICLE IV
COVENANTS OF ALPINE AND PREMIER
SECTION IV.1 CONDUCT OF BUSINESS BY PREMIER AND ITS SUBSIDIARIES PENDING THE
CLOSING.
Except as otherwise provided by this Agreement or as disclosed in
Section 2.10 of the Premier Disclosure Schedule, or unless Xxxxxxx shall give
its prior written consent (which consent shall not be unreasonably withheld or
delayed), between the date of this Agreement and the Closing Date, Alpine shall
cause Premier and Premier's Subsidiaries to, and Premier and its Subsidiaries
shall, (i) conduct their business in, and not enter into any material
transaction other than in accordance with, the ordinary course of business and
in a manner consistent with past practice and (ii) use commercially reasonable
efforts to preserve intact their current business, keep available the services
of their current officers and employees and maintain the goodwill of their
customers, suppliers and others having business relationships with them. Xxxxxxx
agrees to cooperate reasonably with Premier in connection with the foregoing.
Without limiting the generality of the foregoing, and except as contemplated by
this Agreement, neither Premier nor any of its Subsidiaries shall, between the
date of this Agreement and the Closing Date, do or agree to do any of the
following without the prior written consent of Xxxxxxx (which consent shall not
be unreasonably withheld or delayed):
(a) amend or otherwise change its Certificate of Incorporation
or By-Laws;
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(b) issue any additional shares of capital stock or issue,
sell or grant any option or right to acquire or otherwise dispose of any of its
authorized but unissued capital stock;
(c) declare or pay any dividends or make any other
distribution in cash, securities or property on its capital stock, except as
otherwise provided in Section 1.6(b)(iii);
(d) repurchase or redeem any shares of its capital stock;
(e) incur, or perform, pay or otherwise discharge, any
obligation or liability (absolute or contingent), except for current obligations
and current liabilities in the ordinary course of business consistent with past
practice;
(f) enter into any employment agreement with, or become liable
for any bonus, profit-sharing or incentive payment to, or increase the
compensation or benefits of, any of its officers or directors (other than
payments or increases in the ordinary course of business consistent with past
practices), except pursuant to presently existing plans, arrangements or
agreements disclosed in Section 2.10 of the Premier Disclosure Schedule or as
may be required by applicable law;
(g) change any of the accounting principles or practices used
by it, except as required by U.S. generally accepted accounting principles (in
which event, Premier promptly shall notify Xxxxxxx of such change);
(h) authorize any capital expenditure(s) (other than those
already subject to a commitment) which, individually, is in excess of $100,000
or, in the aggregate, are in excess of $500,000;
(i) modify, amend or cancel any of its existing contracts,
agreements or leases or enter into any contracts, agreements or leases other
than in the ordinary course of business or enter into any loan or guarantee
agreements;
(j) take or fail to take, or agree to take or fail to take,
any action which would make any representation or warranty made by Alpine or
Premier herein untrue or incorrect in any material respect;
(k) enter into any transaction with Alpine or any of its
Affiliates;
(l) sell, lease, transfer or otherwise dispose of all or any
portion of its assets including, without limitation, rights to patents,
know-how, intellectual property or other intangible assets, except sales of
inventory or obsolete equipment in the ordinary course of business consistent
with past practices;
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(m) effect any dissolution, winding up, liquidation or
termination of the business of Premier or any of its Subsidiaries;
(n) effect any merger or consolidation of Premier or any of
its Subsidiaries whether or not it is the survivor thereof or effect any
reorganization or recapitalization;
(o) make any investment in, or make any loan, advance or
credit to, any person, including, but not limited to, officers, directors,
stockholders or Affiliates of Premier or any of its Subsidiaries, other than
credits to customers in the ordinary course of business and travel advances to
officers, directors and employees of Premier or any of its Subsidiaries made in
the ordinary course of business in amounts consistent with past practices;
(p) assume, endorse, guarantee or otherwise become liable for
or upon the obligation of any person (other than endorsements for deposit in the
ordinary course of business);
(q) effect any agreement for the leasing or hire of any real
property; or
(r) enter into any transaction contemplated by numbers 3, 4 or
5 under the heading "Joint Ventures" in Section 2.2 of the Premier Disclosure
Schedule.
SECTION IV.2 NOTIFICATION OF CERTAIN EVENTS.
From the date hereof until the Closing Date, Alpine shall promptly
advise Xxxxxxx if any claim, suit, governmental proceeding or litigation is
commenced against Premier or any of its Subsidiaries or (to the knowledge of
Alpine and Premier) is threatened against Premier or any of its Subsidiaries
which either (a) arises out of or is in any way related to this Agreement or any
of the transactions contemplated hereby or (b) would, if adversely determined,
have a Premier Material Adverse Effect.
SECTION IV.3 CONSENTS AND APPROVALS.
Alpine and Premier shall use commercially reasonable efforts to obtain
the consents and approvals required for the consummation of the transactions
contemplated by this Agreement.
SECTION IV.4 CONSUMMATION OF AGREEMENT.
Alpine and Premier shall use their best efforts and due diligence to
satisfy all conditions to the Closing that are within their reasonable control
to the end that the transactions contemplated by this Agreement shall be fully
carried out. Without limiting the foregoing, Alpine agrees to vote its Shares
for the approval of this Agreement and the Merger.
SECTION IV.5 NO TRANSFER OF SHARES.
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Alpine agrees not to dispose of or transfer any of the Shares held by
Alpine, or any interest therein, prior to the Merger or directly or indirectly
cause or permit any such disposition or transfer, engage in any discussion
regarding such a transaction, or provide information to any person interested in
such a transaction.
SECTION IV.6 INTERCOMPANY INDEBTEDNESS.
All intercompany indebtedness (other than trade payables incurred in
the ordinary course of business) owed by Alpine or any of its Subsidiaries to
Premier or any of its Subsidiaries or owed by Premier or any of its Subsidiaries
to Alpine or any of its Subsidiaries shall be settled and paid as part of the
Debt Repayment Amount on or prior to the Closing Date and, in any event, prior
to the Effective Time.
SECTION IV.7 DEPOSIT.
Simultaneously with the execution of this Agreement, Alpine shall pay
to Xxxxxxx the Two Million ($2,000,000) U.S. Dollar deposit previously provided,
plus interest accruing thereon, as contemplated by the Agreement in Principle,
dated May 11, 1999, by and between Alpine and Xxxxxxx.
SECTION IV.8 AUDITED FINANCIAL STATEMENTS.
As promptly as practical after the date hereof, but not later than June
30, 1999, Alpine shall deliver to Xxxxxxx the audited consolidated balance sheet
of Premier and its consolidated Subsidiaries as of April 30, 1999 and the
related audited consolidated statements of income and cash flows for the year
then ended (collectively, the "AUDITED FINANCIAL STATEMENTS"), accompanied by
the unqualified audit opinion of Xxxxxx Xxxxxxxx LLP. If (i) net worth as
reflected in the Audited Financial Statements has decreased more than $2.5
million as compared to the Unaudited Financial Statements, (ii) earnings before
interest and taxes as reflected in the Audited Financial Statements has
decreased more than $1.0 million as compared to the Unaudited Financial
Statements or (iii) the audit opinion delivered by Xxxxxx Xxxxxxxx LLP is
qualified in any respect, then for all purposes under Article II, those
representations based on or measured by an amount as of April 30, 1999 shall
continue to refer to the amount reflected in the Unaudited Financial Statements.
If none of the above criteria are met, then the amounts reflected in the Audited
Financial Statements shall be deemed to apply with respect to such
representations.
ARTICLE V
COVENANTS OF XXXXXXX
SECTION V.1 STOCKHOLDERS MEETING.
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If required by applicable law based on the transactions contemplated by
this Agreement, Xxxxxxx shall, in accordance with its Governing Instruments and
applicable law, take all action necessary to convene a general meeting of its
stockholders as promptly as possible, including preparing, filing and delivering
to its stockholders a Class I Circular as soon as practicable following the date
of this Agreement, for the purpose of considering and voting upon (i) the
approval of this Agreement and the Merger and/or (ii) the approval of a
resolution increasing the authorized share capital of Xxxxxxx and authorizing
the directors of Xxxxxxx to allot the Securities as provided in Section 1.6.
Subject to fiduciary obligations under applicable law, the directors of Xxxxxxx
shall recommend such approval, shall not withdraw or modify such recommendation
and shall take all lawful action to solicit such approval.
SECTION V.2 REPRESENTATIONS AND WARRANTIES.
Xxxxxxx covenants and agrees that, except as otherwise contemplated by
this Agreement or unless Alpine shall give its prior written consent, Xxxxxxx
shall not, between the date of this Agreement and the Closing Date, take or fail
to take, or agree to take or fail to take, any action which would make any
representation or warranty made by Xxxxxxx herein untrue or incorrect in any
material respect.
SECTION V.3 NOTIFICATION OF CERTAIN EVENTS.
From the date hereof until the Closing Date, Xxxxxxx shall promptly
advise Alpine if any claim, suit, governmental proceeding or litigation is
commenced against Xxxxxxx or any of its Subsidiaries or (to the knowledge of
Xxxxxxx) is threatened against Xxxxxxx or any of its Subsidiaries which either
(a) arises out of or is in any way related to this Agreement or any of the
transactions contemplated hereby or (b) would, if adversely determined, have a
Xxxxxxx Material Adverse Change and would be required to be specifically
disclosed by Xxxxxxx to its shareholders under applicable law.
SECTION V.4 CONSENTS AND APPROVALS.
Xxxxxxx shall cause use commercially reasonable efforts to obtain the
consents and approvals required for the consummation of the transactions
contemplated by this Agreement.
SECTION V.5 CONSUMMATION OF AGREEMENT.
Xxxxxxx shall use its best efforts and due diligence to satisfy all
conditions to the Closing that are within its reasonable control to the end that
the transactions contemplated by this Agreement shall be fully carried out.
SECTION V.6 LISTING OF SECURITIES.
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Xxxxxxx shall use all commercially reasonable efforts to cause the
Securities to be issued in the Merger, prior to or upon issuance thereof, to be
approved for listing on The London Stock Exchange Limited.
SECTION V.7 RIGHTS UNDER EXCHANGE AGREEMENT.
Xxxxxxx agrees that it shall instruct MTI to pay any Adjustment under
the Exchange Agreement directly to Alpine and hereby authorizes Alpine, at
Alpine's expense, to assert any rights under the Exchange Agreement that may be
asserted by Premier.
ARTICLE VI
ADDITIONAL AGREEMENTS OF THE PARTIES
SECTION VI.1 ACCESS TO INFORMATION; CONFIDENTIALITY.
Subject to restrictions contained in confidentiality agreements to
which such party is subject and upon reasonable notice to an executive officer
of the other party, Alpine shall (and it shall cause Premier and each of
Premier's Subsidiaries to) afford to the officers, employees, accountants,
counsel and other representatives of Xxxxxxx reasonable access, during the
period prior to the Closing Date, to all its properties, books, contracts,
commitments and records relating to Premier and Premier's Subsidiaries;
PROVIDED, HOWEVER, that, with respect to any environmental matters, access shall
be limited to the appropriate personnel of Premier and its Subsidiaries,
relevant environmental documents and, as requested by Xxxxxxx, additional site
visits to specified properties on terms and conditions approved in advance by
Alpine. In addition, during such period, Alpine shall cause Premier and each of
Premier's Subsidiaries to furnish promptly to Xxxxxxx all information concerning
their business, properties and personnel as Xxxxxxx may reasonably request, and
shall make available to Xxxxxxx the appropriate individuals (including
attorneys, accountants and other professionals) for discussion of their
business, properties and personnel as Xxxxxxx may reasonably request. Xxxxxxx
shall keep such information confidential in accordance with the terms of the
confidentiality agreement dated February 18, 1999 between Alpine and Xxxxxxx.
Notwithstanding the foregoing, no such review, inquiry or investigation shall
affect any representations or warranties of any parties herein or the conditions
to the obligations of any parties.
SECTION VI.2 NOTIFICATION OF CERTAIN MATTERS.
(a Alpine shall give prompt notice to Xxxxxxx of (i) the occurrence,
or non-occurrence, of any event of which it has knowledge, the occurrence or
non-occurrence of which would be likely to cause any representation or warranty
of Alpine and Premier contained in this Agreement to be untrue or inaccurate at
or prior to the Closing Date, (ii) any failure of Alpine to comply with or
satisfy any covenant, condition or agreement to be complied with or
34
satisfied by it hereunder and (iii) any change since the close of business on
May 27, 1999 with respect to the Premier Indebtedness or the holders thereof.
(b Xxxxxxx shall give prompt notice to Alpine of (i) the occurrence,
or non-occurrence, of any event of which it has knowledge, the occurrence or
non-occurrence of which would be likely to cause any representation or warranty
of Xxxxxxx contained in this Agreement to be untrue or inaccurate at or prior to
the Closing Date and (ii) any failure of Xxxxxxx to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it
hereunder.
SECTION VI.3 FURTHER ACTION.
Upon the terms and subject to the conditions hereof, each of the
parties hereto shall use all reasonable efforts to take, or cause to be taken,
all actions and to do, or cause to be done, all other things necessary, proper
or advisable to consummate and make effective as promptly as practicable the
transactions contemplated by this Agreement and to obtain in a timely manner all
necessary waivers, consents and approvals and to effect all necessary
registrations and filings, including, but not limited to: (i) reasonable efforts
to lift or rescind any injunction or restraining order or other order which may
be entered; (ii) reasonable cooperation in respect of any filings to be made in
connection with the transactions contemplated hereby; and (iii) full compliance
with any obligations to consult with workers' councils, where required.
SECTION VI.4 PUBLIC ANNOUNCEMENTS.
Alpine and Xxxxxxx shall consult with each other before issuing any
press release or otherwise making any public statements with respect to this
Agreement and the transactions contemplated hereby and shall not issue any such
press release or make any such public statement prior to such consultation,
except as may be required by applicable law or by the New York Stock Exchange or
by the London Stock Exchange.
SECTION VI.5 GOVERNMENT COMPLIANCE.
Alpine and Xxxxxxx agree promptly to effect all necessary
registrations, filings, applications and submissions of information required or
requested by any governmental or regulatory authorities.
SECTION VI.6 RELEASES OF SECURITY INTERESTS.
In connection with the payment by Xxxxxxx of the Debt Repayment Amount,
Alpine shall use commercially reasonable efforts, and Xxxxxxx shall cooperate
with Alpine, to obtain any and all releases and discharges regarding any
security interests, mortgages, pledges or other liens and encumbrances on any of
the assets of Premier or any of its Subsidiaries securing the Premier
Indebtedness which is a part of the Debt Repayment Amount.
35
SECTION VI.7 EMPLOYEE BENEFITS.
(a) For a period of at least one year following the Effective Time,
Xxxxxxx shall provide or cause the Surviving Corporation to provide compensation
and benefits to employees and officers of Premier immediately before the
Effective Time ("Employees") who continue to be employed by Xxxxxxx or the
Surviving Corporation following the Effective Time ("Transferred Employees")
that are substantially comparable in the aggregate to the compensation and
benefits provided to such Transferred Employees immediately prior to the
Effective Time. Xxxxxxx shall ensure that any employee benefit plan or
arrangement established, maintained or contributed to by Xxxxxxx or the
Surviving Corporation or any of their Affiliates shall grant full credit for all
service or employment with, or recognized by, Alpine, Premier and any of their
Affiliates for purposes of eligibility and vesting with respect to any employee
pension benefit plan, as defined in Section 3(2) of ERISA, and for purposes of
eligibility and determining the amount of any benefit with respect to any
vacation program and any employee welfare benefit plan, as defined in Section
3(1) of ERISA ("Xxxxxxx Welfare Plan"), including, without limitation, any
severance plan or sick plan.
(b) As of the Effective Time, Xxxxxxx or the Surviving Corporation
shall cause any Xxxxxxx Welfare Plan to waive any pre-existing condition
exclusions and waiting periods (except to the extent that such exclusions would
have then applied or such waiting periods were not satisfied under Premier's
medical plans) with respect to Transferred Employees (and their dependents or
other beneficiaries). For purposes of computing deductible amounts, co-pays or
other maximums under any Xxxxxxx Welfare Plan, expenses and claims recognized
prior to the Effective Time for similar purposes under the applicable welfare
plan of Premier or any of its Affiliates shall be credited or recognized under
such Xxxxxxx Welfare Plan. Xxxxxxx shall be responsible for all obligations and
liabilities relating to or arising under the group health plan continuation
coverage requirements of Section 4980B of the Code and Title I, Subtitle B of
ERISA for the Employees and their eligible dependents.
(c) Xxxxxxx acknowledges that the Adience, Inc. 401(k) Plan (to be
renamed, effective June 1, 1999, the Premier Refractories Inc. 401(k) Plan (the
"401(k) PLAN")) covers employees of Alpine (the "ALPINE EMPLOYEES"). Prior to
the Effective Time, Alpine shall use its best efforts to establish a defined
contribution plan (the "ALPINE DEFINED CONTRIBUTION PLAN") intended to be
tax-qualified under Section 401(a) of the Code, in which the Alpine Employees
who participate in the 401(k) Plan shall participate following the Effective
Time. In the event that Alpine is unable to establish the Alpine Defined
Contribution Plan prior to the Effective Time for a period of 90 days following
the Effective Time (or such other period as may be mutually agreed to by Alpine
and either Xxxxxxx or the Surviving Corporation), Xxxxxxx or the Surviving
Corporation shall convert the 401(k) Plan into a "multiple employer" plan in
which Alpine will be an unrelated participating employer. During such period,
Alpine (as an unrelated participating employer), Xxxxxxx and the Surviving
Corporation shall maintain and operate the 401(k) Plan in all material respects
in accordance with its terms and applicable law, including, without limitation,
ERISA and the Code. Alpine shall provide such assurances as shall be reasonably
satisfactory to Xxxxxxx as to the qualified status of the Alpine Defined
Contribution
36
Plan. Within 90 days following the Effective Time (or, if later, the end of the
"black-out" period affecting the 401(k) Plan or the date the trustee of the
Alpine Defined Contribution Plan is able to accept a transfer of assets from the
401(k) Plan), Xxxxxxx or the Surviving Corporation shall cause the trustee under
the 401(k) Plan to transfer to the Alpine Defined Contribution Plan an amount
equal to the total account balances of the Alpine Employees determined as of the
date immediately preceding the actual date of transfer, including the promissory
notes (if any) evidencing any outstanding loans to the Alpine Employees, less
any amounts as to which withdrawal requests have been duly submitted prior to
the transfer to the Alpine Defined Contribution Plan and paid by the 401(k) Plan
(the "TRANSFERRED ASSETS"). To the extent that the investment vehicles available
under the Alpine Defined Contribution Plan and the 401(k) Plan on the date of
transfer are identical, such transfer shall be in-kind, without liquidation
provided such transfer is permitted by the trustees of the 401(k) Plan and the
Alpine Defined Contribution Plan; otherwise, to the extent that the investment
vehicles available under the Alpine Defined Contribution Plan and the 401(k)
Plan on the date of transfer are not identical, such transfer shall be in cash.
The parties hereto agree that in no event shall the Transferred Assets be less
than the amount required under Section 414(l) of the Code and the regulations
thereunder. The Alpine Defined Contribution Plan shall provide as of the date of
transfer benefits for each Alpine Employee which are not less than the Alpine
Employees' respective account balances (including any net earnings or losses
accrued thereon from the Effective Time until the date of actual transfer) under
the 401(k) Plan as of the date of such transfer. Alpine shall ensure that the
Alpine Defined Contribution Plan preserves benefits protected under Section
411(d)(6) of the Code with respect to benefits accrued as of the date of
transfer and shall contain all the optional forms of benefit which the 401(k)
Plan contains, with respect to the account balances of the Alpine Employees.
With respect to the transfer of the Transferred Assets to the Alpine Defined
Contribution Plan, as contemplated herein, the parties hereto agree, if required
by law, and in accordance with any time periods required by law, to notify the
IRS of the contemplated transfer.
SECTION VI.8 NOTIFICATION OF DISPOSITIONS; PROVISION OF INFORMATION.
If, on or before December 31, 2005, there is to be a disposition of
equity interests in, or assets of, Premier or any of its Subsidiaries that would
cause any recognition of gain under any gain recognition agreement ("GRA")
entered into by Alpine with the IRS under Section 367(a) of the Code and
Sections 1.367(a)-3 and 1.367(a)-8 of the Treas. Regs. with respect to the
Merger, at least 90 days (or such shorter period in order to comply with law or
legal requirement) prior to such disposition Xxxxxxx shall provide Alpine with
notice of such disposition and a description of the transaction pursuant to
which such disposition is to be accomplished. Xxxxxxx also shall (i) provide
Alpine with all information it requires in order to comply with the reporting
requirements of Treas. Regs. Section 1.367(a)-8(b)(5) pursuant to the GRA and
(ii) if there has been a disposition of equity interests in, or assets of,
Premier or any of its Subsidiaries in a nonrecognition transaction, as described
in Treas. Regs. Sections 1.367(a)-8(g)(2) and (3), provide Alpine with all
information it requires to comply with the reporting requirements of Treas.
Regs. Sections 1.367(a)-8(g)(2)(ii) and (iii) with respect to that disposition.
37
SECTION VI.9 POST-CLOSING INCOME TAX MATTERS.
(a Alpine shall prepare and timely file, or cause to be prepared and
timely filed, with the appropriate taxing authorities all Income Tax Returns
required to be filed on behalf of Premier and Premier's Subsidiaries with
respect to Income Tax liabilities for all taxable years, or short periods
containing less than 12 months, ending on or prior to the Closing Date. Such
Income Tax Returns shall be prepared in accordance with the relevant books of
account and, in all material respects, will correctly reflect the amount of the
Income Tax liability as well as the facts regarding the income, business,
operations, assets, activities and status of the taxpayer and all other
information required to be shown thereon. Alpine is obligated to pay and will be
liable for all Income Tax liabilities of Premier and its Subsidiaries
attributable to all taxable years or short periods ending on or prior to the
Closing Date and is obligated to pay and will be liable for all foreign Income
Taxes for periods beginning prior to the Closing Date and ending after the
Closing Date to the extent attributable to the Pre-Closing Date Period (as
hereinafter defined). For this purpose the portion of any foreign Income Tax
liability attributable to the Pre-Closing Date Period shall be determined by
assuming that the Pre-Closing Date Period constitutes a separate taxable period
of Premier and its Subsidiaries and by taking into account the actual activities
and income or loss of Premier and its Subsidiaries during such period, except
that exemptions, allowances and/or deductions for a taxable period beginning
prior to and ending after the Closing Date that are calculated on an annual or
periodic basis shall be apportioned to the Pre-Closing Date period on a per diem
basis. "Pre-Closing Date Period" shall mean, with respect to any taxable period
beginning prior to and ending after the Closing Date, the portion of such
taxable period beginning on the date such taxable period commences and ending on
the Closing Date.
(b Alpine shall be entitled to any Income Tax refunds plus interest
received thereon resulting from or applicable to the operations of Premier and
its Subsidiaries with respect to taxable years and short periods ending on or
before the Closing Date and the portion of any foreign Income Tax refund
properly attributable to the Pre-Closing Date Period; PROVIDED, HOWEVER, that
Alpine shall not be entitled to any Income Tax refunds arising from an audit
adjustment to the extent that Premier and its Subsidiaries are caused to suffer
a corresponding increase in Income Tax as a result of such adjustment. Effective
as of the Closing Date, all liabilities and obligations between Premier and its
Subsidiaries, on the one hand, and Alpine and any of its Affiliates, on the
other hand, under any Tax Sharing Arrangement in effect prior to the Closing
Date shall be deemed to have been extinguished in full (without the necessity of
any payment with respect thereto) and any liabilities or rights existing under
any such agreement or arrangement shall terminate and shall no longer be
enforceable.
(c The parties shall cooperate in connection with the filing of all
Income Tax Returns covering any period ending on or prior to the Closing Date
and for any period that includes a Pre-Closing Date Period. The parties shall
not destroy or permit the destruction of any books, records or files pertaining
to or used in preparing any such Income Tax Return as long as the statute of
limitations and any extensions thereof, as extended by the parties, has not
expired, shall comply with all reasonable requests regarding production of or
access to
38
documents or files, and shall make personnel available for depositions,
interviews or testimony.
(d Alpine agrees that, with respect to short periods or taxable years
ending on or before the Closing Date with respect to Premier and Premier's
Subsidiaries, it shall not, without the prior written consent of Xxxxxxx:
(i0 make an election with respect to any Income Tax that
would materially adversely affect Premier or any of Premier's Subsidiaries;
(ii0 change its annual accounting period within the meaning of
Section 442 of the Code or, in the case of a company resident in the United
Kingdom Section 12 of the Income and Corporation Taxes Act of 1988 or in the
case of a company resident elsewhere, any equivalent local statute;
(iii0 change its method of accounting within the meaning of
Section 446 of the Code in a manner that would materially adversely affect
Premier or any of Premier's Subsidiaries;
(iv0 take any action or omit to take any required action,
including, but not limited to, those in connection with the determination of
inventory costs, that would materially adversely affect the Income Tax liability
of Premier or any of Premier's Subsidiaries; or
(v0 file any amended Income Tax Return that would materially
adversely affect Premier or any of Premier's Subsidiaries.
(e In connection with its obligations set forth herein, Alpine, at its
sole expense, shall have the right to pursue, contest, appeal and settle any
claims or assessments made against Premier and Premier's Subsidiaries by any
taxing authority for taxable years or short periods ending on or prior to the
Closing Date and the Pre-Closing Date Period, and Xxxxxxx shall cause Premier
and Premier's Subsidiaries to cooperate with Alpine (at Alpine's expense), shall
comply with all reasonable requests regarding production of or access to
documents or files and shall make personnel available for depositions,
interviews or testimony. Alpine shall keep Xxxxxxx fully informed as to any
claims or assessments and the management thereof, and shall not settle the same
without Xxxxxxx'x approval if such settlement would materially and adversely
affect Premier and Premier's Subsidiaries.
(f Any payments with respect to Income Taxes made by Alpine pursuant
to this Agreement shall be treated as an adjustment to the consideration
received by Alpine pursuant to the Merger.
(g In the case of any Income Tax Return required to be filed by
Premier or any Premier Subsidiary with respect to which Alpine is obligated to
pay Income Taxes with respect to any Pre-Closing Date Period, Xxxxxxx shall
cause such Return to be prepared consistent
39
with past practice and in accordance with the relevant books of account and to
correctly reflect, in all material respects, the amount of the Income Tax
liability as well as the facts regarding the income, business, operations,
assets, activities and status of the taxpayer and all other information required
to be shown thereon.
(h Neither Xxxxxxx nor Premier or any of Premier's Subsidiaries, with
respect to any tax period ending on or before the Closing Date, shall, without
the written approval of Alpine, (i) file any amended Tax Returns or claims or
suits for refunds or (ii) maintain any tax positions inconsistent with the tax
positions with respect to any periods to the Closing Date taken on the Returns
filed or with respect to the Taxes paid with respect to such prior periods.
SECTION VI.10 ACCESS TO INSURANCE POLICIES.
As used in this Section 6.10 hereof and elsewhere herein, the term
"SUBJECT INSURANCE POLICIES" shall mean all insurance policies of any kind
whatsoever, whenever in effect, by whomsoever owned, which name as an insured or
additional insured, or which provide coverage for, any of Premier or any of its
present or former Subsidiaries (or any of their respective predecessors in
interest). For clarification and the avoidance of doubt, predecessors in
interest of Premier and its Subsidiaries shall include, without limitation: (i)
Adience, Inc. and its Subsidiaries and predecessors, (ii) Xxxxxxxx (as defined
in Section 9.2(b)) and its Subsidiaries and predecessors, (iii) BMI, Inc., a
Pennsylvania corporation, and its Subsidiaries, (iv) X. X. France Refractories
Company, a Pennsylvania corporation and (v) the CE Refractories Division of
Combustion Engineering Inc.
Following the Closing, Alpine will, whenever and from time to time as
reasonably requested by any of Xxxxxxx, Premier or any of Premier's
Subsidiaries: (a) exercise commercially reasonable efforts, without expense to
Alpine, to obtain the consent of any carrier of the Subject Insurance Policies
to the Merger if such consent is required for the continuation of coverage
thereunder following the Closing; and (b) in the case of any of the Subject
Insurance Policies owned by Alpine, and in any event without any cost to Alpine,
file notices of claim thereunder in respect of any losses heretofore or
hereafter incurred by any of Premier and its Subsidiaries (and their respective
predecessors in interest) arising out of any accident, occurrence, event or
exposure taking place wholly or partly before the Closing, or beginning before
the Closing and continuing thereafter; prosecute, compromise and settle such
claims as reasonably requested by any of Xxxxxxx, Premier or any of Premier's
Subsidiaries; and remit the proceeds thereof to Xxxxxxx, Premier and/or any of
Premier's Subsidiaries, as their interests may appear, subject, however, to the
payment by Xxxxxxx, Premier or any of Premier's Subsidiaries of an equitable
portion of any applicable "deductible" or "retention."
SECTION VI.11 AVAILABILITY OF KEY EMPLOYEES.
For a period of up to 30 days following the Closing, upon Xxxxxxx'x
reasonable request, Alpine shall make available to Xxxxxxx the services of
Xxxxxxx X. Xxxxxxx and Xxxxxxx Xxxx, at a rate of compensation to be mutually
agreed upon, provided that the
40
provision of such services shall not unreasonably interfere with the performance
of their duties to Alpine.
SECTION VI.12 STAY-PUT AGREEMENTS.
Xxxxxxx shall, or shall cause Premier or any of Premier's Subsidiaries
to, fully pay and discharge any and all obligations of Premier under the
stay-put agreements listed on Section 2.10 of the Premier Disclosure Schedule,
and Alpine shall reimburse Xxxxxxx, Premier or any such Subsidiary for any
payments made thereunder promptly upon the presentation of invoices showing such
payments in reasonable detail.
ARTICLE VII
CONDITIONS TO THE CLOSING
SECTION VII.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY.
The respective obligations of each party to consummate the transactions
contemplated by this Agreement shall be subject to the fulfillment, at or prior
to the Closing Date, of each of the following conditions, any of which may be
waived by all of the parties hereto in writing, and each party shall use its
commercially reasonable efforts to cause such conditions to be fulfilled:
(a) At the Closing Date, there shall be no effective
injunction, writ or preliminary restraining order or any order of any nature
issued by a court or governmental agency of competent jurisdiction directing
that the Merger not be consummated as herein provided, and there shall not have
been any action taken, or any statute, rule, regulation or order enacted,
promulgated, issued or deemed applicable to the Merger, by any foreign, federal,
state, local or other government or governmental authority or court which would
make the consummation of the Merger illegal, and no such action shall have been
taken or any such statute, rule, regulation or order enacted, promulgated,
issued or deemed applicable to the Merger which would be reasonably likely to
produce such result.
(b) The passing at a general meeting of Xxxxxxx of a
resolution to approve the Merger and a resolution to authorize the allotment and
issue of the Securities, if such approval is required.
(c) All applicable waiting periods under the HSR Act and the
Exon-Xxxxxx Amendment to the Defense Production Act of 1950 shall have expired
or been terminated.
(d) Premier shall, or shall have caused its Subsidiaries to,
inform and/or consult with any workers' councils or committees regarding the
transactions contemplated by
41
this Agreement, as required by applicable law and the provisions of any
collective bargaining agreements.
SECTION VII.2 ADDITIONAL CONDITIONS TO OBLIGATIONS OF XXXXXXX.
The obligations of Xxxxxxx and Merger Sub to consummate the
transactions contemplated by this Agreement shall also be subject to the
fulfillment, at or prior to the Closing Date, of each of the following
conditions, any of which may be waived by Xxxxxxx in writing, and Alpine and
Premier shall use their commercially reasonable efforts to cause such conditions
to be fulfilled:
(a) The representations and warranties of Alpine and Premier
set forth in Article II of this Agreement shall be true and correct in all
material respects at and as of the Closing Date as if made at and as of such
time, except for changes contemplated by this Agreement and by the Premier
Disclosure Schedule, and except to the extent that any such representation or
warranty is made as of a specified date, in which case such representation or
warranty shall have been true and correct in all material respects as of such
date.
(b) Each of Alpine and Premier shall in all material respects
have performed each obligation to be performed by it hereunder at or prior to
the Closing Date.
(c) Xxxxxxx shall have received a certificate of Alpine and
Premier, dated the Closing Date, signed by the Chief Executive Officer of
Alpine, to the effect that the conditions specified in Sections 7.2(a) and (b)
have been fulfilled.
(d) Since the date of this Agreement, there shall not have
been any change, effect, event, situation or condition, together with all other
changes, effects, events, situations or conditions, that is materially adverse
to the business, results of operations, properties or financial condition of
Premier and its Subsidiaries taken as a whole, except for changes, effects,
events, situations or conditions relating to or arising out of (i) general
economic, business or financial market conditions; (ii) general industry
conditions, including, without limitation, conditions affecting the steel
industry; (iii) the announcement of this Agreement; (iv) the breach by Xxxxxxx
of this Agreement; or (v) any change in any law, rule or regulation or U.S.
generally accepted accounting principles or interpretations thereof that applies
to Alpine or Premier (a "PREMIER MATERIAL ADVERSE CHANGE").
(e) Each of the documents and certificates shall have been
executed and/or delivered to Xxxxxxx by the parties thereto, and all of the
actions shall have been taken, as contemplated by Section 1.7(b) and Section
1.7(c) hereof.
(f) Xxxxxxx shall have received evidence, in form and
substance reasonably satisfactory to it, that such licenses, permits, consents,
approvals, authorizations, qualifications and orders of governmental authorities
and third parties as are required in connection with the consummation of the
transactions contemplated hereby or necessary to conduct the business of
42
Premier and its Subsidiaries as presently conducted have been obtained and are
in full force and effect other than those which, if not obtained, would not,
either individually or in the aggregate, result in a Premier Material Adverse
Change.
(g) Xxxxxxx shall have received the consent of HM Treasury
pursuant to Section 765 of the Taxes Act of 1988 (or confirmation from HM
Treasury, or an opinion of counsel or other assurance reasonably satisfactory to
Xxxxxxx, that no such consent is required) to the transactions contemplated by
this Agreement.
(h) All required clearances in respect of the transactions
contemplated by this Agreement shall have been received from the appropriate
national competition authorities. The phrase "all required clearances" includes,
in respect of the United Kingdom, to the extent applicable:
(i) the Office of Fair Trading indicating in terms
reasonably satisfactory to Xxxxxxx and Premier that it is not the intention of
the Secretary of State to refer the Merger to the UK Competition Commission (the
"CC") pursuant to the Fair Trading Act of 1973, as amended; or
(ii) the Secretary of State accepting undertakings from
Xxxxxxx in lieu of a reference of the Merger to the CC as aforesaid.
(i) None of the holders of Shares shall have delivered a
written demand for appraisal under Section 262 of Delaware Law.
(j) Xxxxxxx shall have received an opinion of counsel to
Alpine and Premier substantially in the form of EXHIBIT 7.2(j) hereto.
(k) At the Closing Date, there shall not have been any action
taken, or any statute, rule, regulation or order enacted, promulgated, issued or
deemed applicable to the Merger, by any foreign, federal, state, local or other
government or governmental authority or court which would prohibit the Surviving
Corporation's ownership or operation of any of Premier's or any of its
Subsidiaries' business or assets, or compel the Surviving Corporation to dispose
of or hold separate any of Premier's or any of its Subsidiaries' business or
assets, as a result of the Merger, and no such action shall have been taken or
any such statute, rule, regulation or order enacted, promulgated, issued or
deemed applicable to the Merger which would be reasonably likely to produce such
result.
(l) All actions, proceedings, instruments and documents
required to carry out the transactions contemplated by this Agreement and all
other related legal matters shall have been reasonably satisfactory to and
approved by counsel for Xxxxxxx and such counsel shall have been furnished with
such certified copies of such corporate actions and proceedings and such other
instruments and documents as it shall have reasonably requested.
43
(m) Premier and its Subsidiaries shall have been released from
the guarantee, indemnification or similar obligations set forth on EXHIBIT
7.2(m).
(n) The pre-closing steps described in Section 1.10 shall have
been completed to the reasonable satisfaction of Xxxxxxx, if so requested by
Xxxxxxx.
SECTION VII.3 ADDITIONAL CONDITIONS TO OBLIGATIONS OF ALPINE AND PREMIER.
The obligations of Alpine and Premier to consummate the transactions
contemplated by this Agreement are also subject to the fulfillment, at or prior
to the Closing Date, of each of the following conditions, any of which may be
waived by such parties in writing, and Xxxxxxx shall use its commercially
reasonable efforts to cause such conditions to be fulfilled:
(a) The representations and warranties of Xxxxxxx set forth in
Article III of this Agreement shall be true and correct in all material respects
at and as of the Closing Date as if made at and as of such time, except for
changes contemplated by this Agreement and by the Xxxxxxx Disclosure Schedule,
and except to the extent that any such representation or warranty is made as of
a specified date, in which case such representation or warranty shall have been
true and correct in all material respects as of such date.
(b) Xxxxxxx shall in all material respects have performed each
obligation to be performed by it hereunder at or prior to the Closing Date.
(c) Alpine shall have received a certificate of Xxxxxxx, dated
the Closing Date, signed by an executive officer of Xxxxxxx, to the effect that,
to the best of the knowledge, information and belief of such officer, the
conditions specified in Sections 7.3(a) and (b) have been fulfilled.
(d) Since the date of this Agreement, there shall not have
been any change, effect, event, situation or condition, together with all other
changes, effects, events, situations or conditions, that is materially adverse
to the business, results of operations, properties or financial condition of
Xxxxxxx and its Subsidiaries taken as a whole, except for changes, effects,
events, situations or conditions relating to or arising out of (i) general
economic, business or financial market conditions; (ii) general stock market and
stock market sector conditions; (iii) general industry conditions, including,
without limitation, conditions affecting the steel industry; (iv) the
announcement of this Agreement; (v) the breach by Alpine or Premier of this
Agreement; or (vi) any change in any law, rule or regulation or generally
accepted accounting principles or interpretations thereof that applies to
Xxxxxxx (a "XXXXXXX MATERIAL ADVERSE CHANGE").
(e) Each of the documents shall have been executed and
delivered to Alpine by the parties thereto, and all of the actions shall have
been taken, as contemplated by Section 1.7(a) and Section 1.7(c) hereof.
44
(f) Alpine shall have received evidence, in form and substance
reasonably satisfactory to it, that such licenses, permits, consents, approvals,
authorizations, qualifications and orders of governmental authorities and third
parties as are required in connection with the consummation of the transactions
contemplated hereby have been obtained and are in full force and effect other
than those which, if not obtained, would not, either individually or in the
aggregate, result in a Xxxxxxx Material Adverse Change.
(g) Premier shall have received an opinion of counsel to
Xxxxxxx substantially in the form of EXHIBIT 7.3(g) hereto.
(h) All actions, proceedings, instruments and documents
required to carry out the transactions contemplated by this Agreement and all
other related legal matters shall have been reasonably satisfactory to and
approved by counsel for Alpine and Premier and such counsel shall have been
furnished with such certified copies of such corporate actions and proceedings
and such other instruments and documents as it shall have reasonably requested.
(i) The Securities shall have been admitted to the official
list of the LSE and such listing shall have become fully effective in accordance
with the rules and regulations of the LSE.
ARTICLE VIII
TERMINATION
SECTION VIII.1 TERMINATION.
This Agreement may be terminated at any time prior to the Closing Date,
notwithstanding the approval thereof by the stockholders of Xxxxxxx and Premier:
(a) By mutual consent of Xxxxxxx and Premier;
(b) By either Xxxxxxx or Premier, if the Merger shall not have
been consummated by October 31, 1999, unless the absence of such consummation
shall be due to the failure of the party seeking to terminate this Agreement (or
its Subsidiaries or Affiliates) to perform its obligations under this Agreement
required to be performed by it at or prior to the Closing Date;
(c) By either Xxxxxxx or Premier, if any governmental
authority, agency or commission or court of competent jurisdiction shall have
issued an order, decree or ruling or taken any other action (which order,
decree, ruling or action the parties hereto shall use their commercially
reasonable efforts to lift), in each case permanently restraining, enjoining or
otherwise prohibiting the Merger, and such order, decree, ruling or action shall
have become final and non-appealable; or
45
(d) (i) by Xxxxxxx, if Alpine or Premier shall breach or fail
to perform in any material respect any of their respective covenants or
agreements contained herein or (ii) by Premier, if Xxxxxxx shall breach or fail
to perform in any material respect any of its covenants or agreements contained
herein; provided that if any such breach is curable prior to the expiration of
30 days from its occurrence (but in no event later than October 31, 1999) by the
breaching party through the exercise of commercially reasonable efforts and for
so long as the breaching party continues to exercise such commercially
reasonable efforts, the non-breaching party may not terminate this Agreement
under this Section 8.1(d) until the expiration of such period without such
breach having been cured.
SECTION VIII.2 EFFECT OF TERMINATION.
In the event of termination of this Agreement as provided in Section
8.1, there shall be no liability or further obligation on the part of any party
hereto except (i) as set forth in Section 12.11 hereof and (ii) nothing herein
shall relieve any party from liability for any willful or intentional breach of
this Agreement.
ARTICLE IX
INDEMNIFICATION PROVISIONS
SECTION IX.1 ALPINE'S INDEMNIFICATION OBLIGATION.
Alpine agrees that, from and after the Closing, it shall indemnify,
defend and hold harmless Xxxxxxx, its officers, directors, Affiliates
(including, but not limited to, Premier and each of its Subsidiaries subsequent
to the Closing), employees and agents from and against any damages, claims,
losses, liabilities, actions, suits, proceedings, reasonable costs and expenses
(including, without limitation, reasonable attorneys' and expert witnesses and
consultant fees incurred in seeking indemnification hereunder or defending any
claim by a third person, amounts paid in settlement of any claim or suit and
costs of clean-up, restoration, remediation and removal), taxes (other than
Income Taxes, which are covered by Section 6.9), fines, penalties and interest
of any kind or nature (each, a "LIABILITY," and collectively, "LIABILITIES") in
connection with, relating to or arising out of (a) any breach of any
representation or warranty of Alpine and/or Premier contained in Article II of
this Agreement or any covenant or other agreement of Alpine and Premier
contained in this Agreement, (b) any claim, action or proceeding asserted or
instituted arising out of any matter or thing covered by such breached
representation, warranty, agreement or covenant, (c) any claims of any broker or
finder engaged by Alpine or Premier in connection with the transactions
contemplated hereby or (d) any Taxes arising out of the payment of the Premier
Indebtedness to the extent not included in the Debt Repayment Amount or arising
out of the assignment of the Adjustment; PROVIDED, HOWEVER, that the foregoing
obligation of Alpine is subject to the applicable provisions set forth in
Section 9.5; PROVIDED, FURTHER, that Alpine shall have no right to receive
46
any indemnification or contribution from Premier or any Premier Subsidiary with
respect to Liabilities under this Section 9.1 or otherwise.
SECTION IX.2 CERTAIN ENVIRONMENTAL MATTERS.
(a Alpine agrees that, from and after the Closing, it shall indemnify,
defend and hold harmless Xxxxxxx, its officers, directors, Affiliates
(including, but not limited to, Premier subsequent to the Closing), employees
and agents from and against any claims(s) made under any Environmental Laws by
any third party not related to Xxxxxxx or its officers, directors, Affiliates,
employees or agents, which claim was not in any way precipitated, caused or
initiated by or on behalf of Xxxxxxx or any of its officers, directors,
Affiliates, employees or agents, and which relates directly to (i) any real
property formerly owned, leased or operated by Premier or any of its
Subsidiaries or predecessors of either or (ii) the off-site transportation,
treatment, storage or disposal prior to the Closing Date of Hazardous Substances
generated by Premier or any of its Subsidiaries or predecessors of either;
PROVIDED, HOWEVER, that the foregoing obligation of Alpine is subject to the
applicable provisions set forth in Section 9.5.
(b Xxxxxxx shall have the full benefit of the Environmental Deed,
dated April 15, 1997, between Xxxxxxxx R. and M. Holdings Limited ("Xxxxxxxx")
and Refraco Holdings Limited, which provides for the grant by Xxxxxxxx of a
Subsequent Purchaser Deed in the event of a Subsequent Purchase of a
Subsequently Purchased Property (as such terms are defined in the Environmental
Deed), and Alpine shall use all commercially reasonable efforts to take all
actions and to do all other things necessary, proper and advisable to ensure
that Xxxxxxx receives the full benefit of the indemnification provisions
thereunder, and Xxxxxxx is granted a Subsequent Purchaser Deed as contemplated
by the Environmental Deed.
SECTION IX.3 XXXXXXX INDEMNIFICATION OBLIGATION.
Xxxxxxx agrees that, from and after the Closing, it shall
indemnify, defend and hold harmless Alpine, its officers, directors, Affiliates,
employees and agents from and against any Liabilities in connection with,
relating to or arising out of (a) any breach of any representation or warranty
of Xxxxxxx contained in this Agreement or any covenant or other agreement of
Xxxxxxx contained in this Agreement, (b) any, claim, action or proceeding
asserted or instituted arising out of any matter or thing covered by such
breached representation, warranty, agreement or covenant or (c) any claims of
any broker or finder engaged by Xxxxxxx in connection with the transactions
contemplated hereby; PROVIDED, HOWEVER, that the foregoing obligation of Xxxxxxx
is subject to the applicable provisions set forth in Section 9.5.
SECTION IX.4 PROCEDURES FOR INDEMNIFICATION FOR THIRD PARTY CLAIMS.
For purposes of Sections 9.4 and 9.5, any party entitled to be
indemnified under Article IX is referred to herein as an "INDEMNIFIED PARTY,"
and any party obligated to provide indemnification under Article IX is referred
to herein as an "INDEMNIFYING PARTY." The
47
obligations and liabilities of the parties under this Agreement with respect to,
relating to or arising out of claims of third parties (individually, a "THIRD
PARTY CLAIM," and collectively, the "THIRD PARTY CLAIMS") shall be subject to
the following terms and conditions:
(a) The Indemnified Party shall give the Indemnifying Party
prompt notice of any Third Party Claim, and, provided that the Indemnifying
Party acknowledges in writing its obligation to indemnify in accordance with the
terms of this Agreement, the Indemnifying Party may undertake the defense of
that claim by representatives chosen by it, provided the Indemnified Party will
have the right to participate in such defense and settlement discussions,
through counsel of its own choice and at its own expense and provided, further,
that the Indemnifying Party shall keep the Indemnified Party informed as to the
status of the defense. Any such notice of a Third Party Claim shall identify
with reasonable specificity the basis for the Third Party Claim, the facts
giving rise to the Third Party Claim and the amount of the Third Party Claim
(or, if such amount is not yet known, a reasonable estimate of the amount of the
Third Party Claim). The Indemnified Party shall make available to the
Indemnifying Party copies of all relevant documents and records in its
possession. Failure of an Indemnified Party to give prompt notice shall not
relieve the Indemnifying Party of its obligation to indemnify, except to the
extent that the failure to so notify materially adversely affects the
Indemnifying Party's ability to defend such claim against a third party.
(b) If the Indemnifying Party, within 30 days after notice
from the Indemnified Party of any such Third Party Claim (or ten (10) days in
the case of a Third Party Claim with respect to which a complaint has been
filed), fails to assume the defense in accordance with Section 9.4(a) of this
Agreement, the Indemnified Party shall (upon further notice to the Indemnifying
Party) have the right (but not the obligation) to undertake the defense,
compromise or settlement of the Third Party Claim. Any failure on the part of
the Indemnifying Party to notify the Indemnified Party within the time period
provided above regarding the election shall be deemed an election by the
Indemnifying Party not to assume and control the defense and settlement of the
Third Party Claim.
(c) Anything in this Section 9.4 to the contrary
notwithstanding, the Indemnifying Party shall not, without the written consent
of the Indemnified Party, settle or compromise any Third Party Claim or consent
to the entry of judgment which does not include as an unconditional term thereof
the giving by the claimant or the plaintiff to the Indemnified Party of an
unconditional release from all liability in respect of the Third Party Claim. In
the event the Indemnifying Party assumes the defense of a Third Party Claim as
provided above or otherwise acknowledges in writing its indemnification
obligation, the Indemnified Party shall not, without consultation and
coordination with, and the prior written consent (which shall not be
unreasonably withheld or delayed) of, the Indemnifying Party, settle, compromise
or pay any Third Party Claim or consent to the entry of judgment with respect
thereto.
(d) If more than one party hereto comprise the Indemnifying
Party, they shall use their best efforts to cooperate in the defense of the
Third Party Claim with a view to avoiding duplication of expenses.
48
SECTION IX.5 INDEMNIFICATION DEDUCTIBLES AND CAPS.
(a) DEDUCTIBLES. Subject to Section 9.5(c), no indemnification under
Section 9.1, Section 9.2(a) or Section 9.3 shall be required, unless:
(i) the amount of the Liability with respect to any single
Liability or series of related Liabilities for a breach of a representation or
warranty exceeds $50,000 U.S. Dollars (the "INDIVIDUAL THRESHOLD AMOUNT");
PROVIDED, HOWEVER, that the Individual Threshold Amount shall not apply to
Liabilities relating to or arising out of any breach of any representation or
warranty of Alpine that is qualified as to a Premier Material Adverse Effect.
(ii) the aggregate amount of Liabilities for breaches of
representations or warranties exceeds $1.0 million U.S. Dollars (the "AGGREGATE
THRESHOLD AMOUNT"), in which case the applicable Indemnifying Party's
indemnification obligation shall extend to the amount of such Liabilities in
excess of the Aggregate Threshold Amount; provided that for purposes of
calculating whether the aggregate Liabilities reach the Aggregate Threshold
Amount, Liabilities which are subject to the Individual Threshold Amount that do
not meet the Individual Threshold Amount will be excluded; PROVIDED, FURTHER,
that Liabilities for a breach of a representation or warranty in Section 2.14
may be asserted without regard to, and shall not be applied toward, the
Aggregate Threshold Amount.
(b) OVERALL LIMITATION. Subject to Section 9.5(c), in no event
whatsoever shall Alpine's maximum liability with respect to Liabilities under
Section 9.1 exceed in the aggregate $50.0 million U.S. Dollars (the "INDEMNITY
CAP AMOUNT"); provided that in no event shall Alpine's maximum liability with
respect to liabilities under Section 9.2(a) exceed $10.0 million U.S. Dollars.
(c) NO LIMITATION ON CERTAIN INDEMNITIES. Notwithstanding anything
herein to the contrary, any indemnification payable hereunder by Alpine with
respect to Section 1.6(b)(iii) (Adjustment), Section 1.7(a)(iv) and Section
2.7(e) (Premier Indebtedness), Section 2.17 (Tax Returns, Audits and
Liabilities) (to the extent it relates solely to Income Taxes), Section
6.2(a)(iii) (Notification of Certain Matters), Section 6.9 (Post-Closing Income
Tax Matters) and Section 6.12 (Stay-Put Agreements) shall be recoverable in
full, shall not be subject to the Individual Threshold Amount or the Aggregate
Threshold Amount and shall not be subject to or apply toward the Indemnity Cap
Amount.
(d) TIME LIMITS ON INDEMNIFICATION. No claim on account of a breach of
a representation or warranty shall be made after the survival periods referred
to in Section 12.1 of this Agreement, no claim for a breach of a covenant in
Section 6.9 shall be made after the expiration of the statute of limitations on
assessment of the applicable Income Tax Return (including extensions) and no
claim under Section 9.2(a) shall be made after May 31, 2000; provided that once
notice of any claim has been timely given, additional related claims arising out
of the same operative facts or events may be made at any time prior to the final
resolution
49
of such claim (by means of a final, non-appealable judgment of a court of
competent jurisdiction, a binding arbitration decision or a settlement approved
by the parties involved) even if such resolution occurs after the applicable
expiration or termination date referred to above.
(e) NET RECOVERY. The amount which an Indemnified Party shall be
entitled to receive from an unaffiliated Indemnifying Party under this Article
IX with respect to any indemnifiable liability shall be net of any recovery
actually received by such Indemnified Party from unaffiliated third parties
(including insurance proceeds (except from self-insurance programs),
counterclaims, subrogation actions and the like).
(f) NO TAX BENEFITS. Indemnification payable under this Agreement shall
be determined without regard to tax benefits to the Indemnified Party or any
other Person resulting therefrom.
SECTION IX.6 EXCLUSIVE REMEDY.
The remedies provided in this Article IX shall be the exclusive
remedies of the parties with respect to the matters covered by Sections 9.1, 9.2
and 9.3, except that nothing herein shall prevent a party from seeking specific
performance pursuant to Section 12.10, subject to the provisions thereof.
ARTICLE X
SELLER'S NON-COMPETITION COVENANT
SECTION X.1 NON-COMPETITION.
Alpine covenants and agrees with Xxxxxxx that Alpine and its Affiliates
will not, without the prior written consent of Xxxxxxx, directly or indirectly,
anywhere within the world (the "TERRITORY"), during the period commencing on the
Closing Date and expiring on the fifth (5th) anniversary of the Closing Date
(the "RESTRICTIVE PERIOD"): (a) engage or have any interest, directly or
indirectly, in an enterprise which is competitive with the business and
operations of Premier and its Subsidiaries as conducted as of the Closing Date
(a "COMPETING BUSINESS"); PROVIDED, HOWEVER, that Alpine and its Affiliates may,
without violating this covenant, own as a passive investment not in excess of 5%
of the outstanding capital stock of a corporation that engages in a Competing
Business if such capital stock is a security that is actively traded on an
established national or foreign securities exchange or is listed on the Nasdaq
National Market System or another established "over-the-counter" market; (b)
interfere with or attempt to interfere with any officers or senior executives of
Premier and its Subsidiaries, or induce or attempt to induce any of them to
leave the employ of Premier and its Subsidiaries, or violate the terms of their
contract with any of them; or (c) for the purpose of conducting or engaging in a
Competing Business, call upon, solicit, advise or otherwise do, or
50
attempt to do, business with any clients, suppliers, consultants, customers or
accounts of the business and operations of Xxxxxxx or any of its Affiliates
(including Premier and its Subsidiaries) or take away or interfere or attempt to
interfere with any custom, trade, business or patronage of the business and
operations of Xxxxxxx or any of its Affiliates (including Premier and its
Subsidiaries).
SECTION X.2 INJUNCTIVE RELIEF.
The parties hereto acknowledge and agree that any breach by Alpine or
its Affiliates of the restrictive covenant contained in this Article X would
cause irreparable injury to Xxxxxxx and that the remedy at law for any such
breach would be inadequate, and Alpine agrees and consents that, in addition to
any other available remedy, temporary and permanent injunctive relief may be
granted in any proceeding which may be brought by Xxxxxxx to enforce such
restrictive covenant without necessity of proof that any other remedy at law is
inadequate.
SECTION X.3 ENFORCEMENT.
Xxxxxxx and Alpine intend that the covenants of Section 10.1 shall be
deemed to be a series of separate covenants, one for each county or province of
each and every state, territory or jurisdiction of each country included within
the Territory and one for each month of the Restrictive Period. If, in any
judicial proceeding, a court shall refuse to enforce any of such covenants, then
such unenforceable covenants shall be deemed eliminated from the provisions
hereof for the purpose of such proceeding to the extent necessary to permit the
remaining separate covenants to be enforced in such proceeding. If, in any
judicial proceeding, a court shall refuse to enforce any one or more of such
separate covenants because the total time thereof is deemed to be excessive or
unreasonable, then it is the intent of the parties hereto that such covenants,
which would otherwise be unenforceable due to such excessive or unreasonable
period of time, be in force for such lesser period of time as shall be deemed
reasonable and not excessive by such court.
ARTICLE XI
SELLER'S NON-DISCLOSURE COVENANT
SECTION XI.1 NON-DISCLOSURE OF INFORMATION BY ALPINE.
It is understood that the business and operations of Premier and its
Subsidiaries to be acquired by Xxxxxxx hereunder are of a confidential nature.
Prior to the date hereof there may have been revealed and on or after the date
hereof there may be revealed to Alpine and its Affiliates Confidential
Information (as hereinafter defined) concerning the business and operations of
Premier and its Subsidiaries. Alpine for itself and its Affiliates and employees
51
agrees that, following the Closing, they will, for a period of five (5) years
after the Closing Date, not (and, with respect to trade secrets of Xxxxxxx,
Premier or Premier's Subsidiaries will never) divulge or appropriate to their
own use, or to the use of any third party, any Confidential Information, except
as may be required (i) in response to any summons or subpoena after reasonable
prior notice to Xxxxxxx or (ii) to comply with any applicable law, order,
regulation or ruling after reasonable prior notice to Xxxxxxx.
SECTION XI.2 DEFINITION OF CONFIDENTIAL INFORMATION.
As used herein, the term "CONFIDENTIAL INFORMATION" means the following
oral or written information relating to the business and operations of Premier
and its Subsidiaries: know-how, technology, inventions, designs, methodologies,
trade secrets, patents, secret processes and formulae, information and data
relating to the development, research, testing, manufacturing, marketing, sale,
distribution and uses of products, sources of supplies, budgets and strategic
plans, the identity and special needs of customers, plants and other properties,
and any other information which may give Premier and its Subsidiaries an
opportunity to obtain an advantage over its competitors who do not know or use
such information, provided that the term "Confidential Information" shall not
include (i) any such information that, prior to its use or disclosure by Alpine
or its Affiliates or employees, can be shown to have been in the public domain
or generally known or available to customers, suppliers or competitors of the
business through no breach of the provisions of this Article XI or other
non-disclosure covenants; (ii) any such information that, prior to its use or
disclosure by Alpine or its Affiliates or employees, was rightfully in the
receiving party's possession, without violation of the provisions of this
Article XI or other non-disclosure covenants; and (iii) any such information
that, prior to its use or disclosure by Alpine or its Affiliates or employees,
was independently developed by the receiving party without violation of the
provisions of this Article XI or other non-disclosure covenants.
SECTION XI.3 INJUNCTIVE RELIEF.
The parties hereto acknowledge and agree that the breach by Alpine and
its Affiliates and employees of the restrictive covenant contained in this
Article XI would cause irreparable injury to Xxxxxxx and that the remedy at law
for any such breach would be inadequate, and Alpine agrees and consents that, in
addition to any other available remedy, temporary and permanent injunctive
relief may be granted in any proceeding which may be brought by Xxxxxxx to
enforce such restrictive covenant without necessity of proof that any other
remedy at law is inadequate.
ARTICLE XII
GENERAL PROVISIONS
SECTION XII.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
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The representations and warranties made by Alpine and Premier in
Article II shall survive the Closing Date until May 31, 2000, except that those
made in Section 2.10 (Employee Benefit Plans) (to the extent it relates solely
to ERISA and/or the Code) and Section 2.17 (Tax Returns, Audits and Liabilities)
shall survive until the expiration of the statute of limitations on assessment
with respect to the applicable Return (or if no Return is required, the statute
of limitations on assessment with respect to the applicable Tax), as extended
(if applicable), and those made in Sections 2.1(Title to Shares) and 2.3
(Authority Relative to this Agreement and Related Matters) shall survive without
contractual limitation hereunder. The representations and warranties made by
Xxxxxxx in Article III of this Agreement shall survive the Closing Date, until
May 31, 2000, except that those made in Section 3.2 (Authority Relative to this
Agreement and Related Matters) shall survive without contractual limitation
hereunder; PROVIDED, HOWEVER, that, with respect to Premier, the representations
and warranties made by Xxxxxxx shall survive only through the Closing Date.
SECTION XII.2 NOTICES.
All notices and other communications given or made pursuant hereto
shall be in writing and shall be deemed to have been duly given or made as of
the date delivered, if delivered personally or mailed by registered or certified
mail (postage prepaid, return receipt requested) or sent by overnight delivery
or courier service or by telecopy to the parties at the following addresses (or
at such other address for a party as shall be specified by like notice):
(a) if to Alpine or Premier: The Alpine Group, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: General Counsel
with a copy to: Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
(b) If to Xxxxxxx or Merger Sub: Xxxxxxx Group plc
The Adelphi
0-00 Xxxx Xxxx Xxxxxx
Xxxxxx, XX0X 0XX, Xxxxxxx
Telecopier No.: 00 (000) 000-0000
Attention: Group Secretary
with a copy to: Xxxxx Xxxxxxx & Xxxxxxx P.C.
0000 XxxxXxxxxx Xxxxx
00
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
Any notice or other communication that has been given or made as of a
date that is not a Business Day shall be deemed to have been given or made on
the next succeeding day that is a Business Day.
SECTION XII.3 CERTAIN DEFINITIONS.
For purposes of this Agreement, the term:
"AFFILIATE" of a Person means a Person that directly or
indirectly, through one or more intermediaries, Controls, is Controlled by, or
is under common Control with, the first mentioned Person.
"CONTROL" (including the terms "CONTROLLED BY" and "UNDER
COMMON CONTROL WITH") means the possession, directly or indirectly or as trustee
or executor, of the power to direct or cause the direction of the management
policies of a Person, whether through the ownership of stock, as trustee or
executor, by contract or credit arrangement or otherwise.
"PERSON" means an individual, corporation, partnership,
association, trust or any unincorporated organization.
"SUBSIDIARY" of a Person shall mean any corporation or other
legal entity of which that Person (either alone or together with other
Subsidiaries of that Person) owns, directly or indirectly, more than 50% of the
stock or other equity interests that are ordinarily and generally, in the
absence of contingencies or understandings, entitled to vote for the election of
a majority of the members of the board of directors or governing body of such
entity.
SECTION XII.4 HEADINGS.
The headings contained in this Agreement and the disclosure schedules
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement or the disclosure schedules. Unless the context
of this Agreement otherwise requires, words of any gender are deemed to include
each other gender and words using the singular or plural number also include the
plural or singular number, respectively.
SECTION XII.5 ENTIRE AGREEMENT.
This Agreement, together with the Exhibits and Schedules attached
hereto, constitutes the entire agreement and supersedes all prior agreements and
undertakings, including, without limitation, the Agreement in Principle, both
written and oral, among the parties, or any of
54
them, with respect to the subject matter hereof and, except as otherwise
expressly provided herein, is not intended to confer upon any other Person any
rights or remedies hereunder.
SECTION XII.6 ASSIGNMENT: PARTIES IN INTEREST.
Neither this Agreement nor any benefits or obligations hereunder shall
be assigned by any party without the consent of the other parties, except that
Xxxxxxx may assign this Agreement to any of its Affiliates after the Closing
Date that succeed to the business of Premier. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto and its successors,
heirs, personal representatives and permitted assigns, and nothing in this
Agreement, express or implied, is intended to confer upon any other Person any
rights or remedies of any nature whatsoever under this Agreement, except that
any of the indemnified parties shall be entitled after the Closing Date to
enforce the provisions of Article IX.
SECTION XII.7 GOVERNING LAW; CONSENT TO JURISDICTION.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York applicable to contracts executed in and to be
performed entirely in that State, without regard to conflicts of laws, except to
the extent that the Delaware General Corporation Law is applicable and, in the
case of Xxxxxxx, the UK Companies Act of 1985 and English Law are applicable.
The parties hereto hereby irrevocably submit to the jurisdiction of any New York
state or federal court sitting in the County of New York, State of New York, in
any action or proceeding arising out of or relating to this Agreement, and the
parties hereby irrevocably agree that all claims in respect of such action or
proceeding may be heard and determined exclusively in such New York state or
federal court. The parties hereto hereby irrevocably waive, to the fullest
extent permitted by law, any objection which they or any of them may now or
hereafter have to the laying of the venue of any such action or proceeding
brought in any such court, and any claim that any such action or proceeding
brought in any such court has been brought in an inconvenient forum.
SECTION XII.8 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
SECTION XII.9 SEVERABILITY.
If any provision of this Agreement is invalid, illegal or
unenforceable, the balance of this Agreement shall remain in effect, and if any
provision is inapplicable to any Person or circumstance, it shall nevertheless
remain applicable to all other Persons and circumstances.
SECTION XII.10 SPECIFIC PERFORMANCE.
55
Since a breach of the provisions of this Agreement could not adequately
be compensated by money damages, any party shall be entitled, in addition to any
other right or remedy available to it, to an injunction restraining such breach
or a threatened breach and to specific performance of any such provision of this
Agreement, and in either case no bond or other security shall be required in
connection therewith, and the parties hereby consent to the issuance of such
injunction and to the ordering of specific performance.
SECTION XII.11 FEES AND EXPENSES.
All costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by the party incurring such
expenses, regardless of the termination, if any, of this Agreement pursuant to
Section 8.1; PROVIDED, HOWEVER, that any expenses of Rothschild Inc. and any
fees and expenses of McKinsey & Company, Inc. through February 12, 1999 shall be
shared equally between Alpine and Xxxxxxx. Notwithstanding anything herein to
the contrary, Alpine shall be responsible for, and reimburse Premier for, any
and all out-of-pocket expenses Premier may incur or has incurred as a result of
the transactions contemplated hereby, other than incidental expenses incurred by
employees of Premier in the performance of their duties, to the extent such
expenses have not been paid as of the Closing Date.
SECTION XII.12 AMENDMENT.
This Agreement may not be amended except by an instrument in writing
signed by the parties hereto; provided that after the adoption of this Agreement
by stockholders of either Premier or Merger Sub, no amendment shall be made
which under Delaware Law would require the approval (or further approval) of
stockholders without obtaining such approval or further approval.
SECTION XII.13 WAIVER.
At any time prior to the Closing Date, any party hereto may (a) extend
the time for the performance of any of the obligations or other acts of the
other parties hereto, (b) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto and (c)
waive compliance with any of the agreements or conditions contained herein. Any
such extension or waiver shall be valid if set forth in an instrument in writing
signed by the parties hereto. The failure of any party hereto to assert any of
its rights hereunder shall not constitute a waiver of such rights.
56
IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be duly executed as of the date first written above.
XXXXXXX GROUP PLC
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------
Title: Group Finance Director
--------------------------------
PRI ACQUISITION, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------
Title: Group Finance Director
--------------------------------
THE ALPINE GROUP, INC.
By: /s/ Bragi X. Xxxxx
--------------------------------------
Name: Bragi X. Xxxxx
--------------------------------
Title: Executive Vice President
--------------------------------
PREMIER REFRACTORIES
INTERNATIONAL INC.
By: /s/ Bragi X. Xxxxx
--------------------------------------
Name: Bragi X. Xxxxx
--------------------------------
Title: Executive Vice President
--------------------------------
