AGREEMENT AND PLAN OF MERGER
by and among
REPTRON ELECTRONICS, INC.,
LAKE HURON INVESTMENT CORPORATION,
HECO HOLDING CORPORATION,
OECO, LLC
and
______________________________,
as Shareholder Representative
EXHIBIT A - Closing Expenses
EXHIBIT B - Escrow Agreement
EXHIBIT C - Form of Stock Powers
EXHIBIT D - Articles of Merger (Oregon)
EXHIBIT E - Articles of Merger (Florida)
EXHIBIT F - Amount of General Accounts Receivable Escrow Fund
EXHIBIT G - Amount of Inventory Escrow Fund and Excluded
Inventory of the Subsidiary
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger, dated for reference purposes May 6,
1998 (this "Agreement"), is by and among Reptron Electronics, Inc., a Florida
corporation ("Reptron"), Lake Huron Investment Corporation, a Florida
corporation and a wholly-owned subsidiary of Reptron ("Huron"), HECO
Holding Corporation, an Oregon corporation (the "Company"), OECO, LLC,
a Delaware limited liability company ("OECO-LLC"), and, for the limited
purposes specified herein, ______________________as Shareholder
Representative (the "Shareholder Representative").
Background
Reptron, Huron, the Company and OECO-LLC deem it
advisable and in the best interests of their respective owners to
consummate the business combination transaction provided for in
this Agreement, in which Huron will merge with and into the
Company (the "Merger") pursuant to the laws of Florida and
Oregon. For federal income tax purposes, it is intended that the
Merger shall be treated as a taxable acquisition of the Company's
Common Stock, without par value ("Company Common Stock"), and not
as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code").
Prior to the consummation of the transactions
contemplated by this Agreement, generally in the order described:
(a) New OECO Corporation ("New OECO"), an Oregon corporation and
a wholly-owned subsidiary of OECO Corporation, an Oregon
corporation ("OECO"), will merge (the "New OECO Merger") with and
into OECO; (b) OECO will merge (the "OECO-DEL Merger") with and
into OECO (Delaware) Corporation, a newly formed Delaware
corporation ("OECO-DEL") and, at the time of the OECO-DEL
Merger, a wholly-owned subsidiary of the Company, pursuant to
an Agreement and Plan of Merger by and among the Company, OECO
and OECO-DEL (the "OECO-DEL Merger Agreement"), under which
shareholders of OECO will receive one share of Company Common
Stock for each share of OECO Common Stock held by them and
cancelled as a result of the OECO-DEL Merger; (c) OECO-DEL will
merge (the "OECO-LLC Merger") with and into OECO-LLC, at the
time of the OECO-LLC Merger, a limited liability company with
the Company as its sole member, pursuant to an Agreement and
Plan of Merger by and between OECO-DEL and OECO-LLC (the "OECO-
LLC Merger Agreement"); (d) OECO-LLC will assign (the
"Assignment") the stock of Hibbing Electronics Corporation, a
Minnesota corporation (the "Subsidiary"), to the Company; and
(e) the Company will distribute (the "Distribution") the
outstanding limited liability company interests (the "Units")
of OECO-LLC to its shareholders in proportion to their holdings
of Company Common Stock in exchange for a portion of their
interest in their shares of Company Common Stock (the New OECO
Merger, the OECO-DEL Merger, the OECO-LLC Merger, the
Assignment and the Distribution are, collectively, referred to
herein as the "Prior Transactions").
NOW, THEREFORE, in consideration of the foregoing
premises and the respective representations, warranties,
covenants and agreements set forth in this Agreement, Reptron,
Huron, the Company, OECO-LLC and, for the limited purposes
specified herein, the Shareholder Representative, agree as
follows:
ARTICLE I
Definitions
"AAA Rules" has the meaning set forth in Section 8.12
of this Agreement.
"Affiliate" has the meaning set forth in Rule 12b-2
of the regulations promulgated under the Exchange Act.
"Affiliated Group" means any affiliated group within
the meaning of Section 1504(a) of the Code or any similar group
defined under a similar provision of state, local, or foreign
income tax law.
"Agreement" has the meaning set forth in the preamble
of this Agreement.
"Ariel" has the meaning set forth in Section 8.3 of
this Agreement.
"Ariel Accounts Receivable Escrow Fund" means the initial
deposit by Reptron of $3,000,000, pursuant to the Escrow
Agreement, together with any interest on such deposit.
"Assignment" has the meaning set forth in the Background
section of this Agreement.
"Certificates" has the meaning set forth in Section
3.2(a) of this Agreement.
"Claim Reserve Amount" has the meaning set forth in
Section 8.10 of this Agreement.
"Closing" has the meaning set forth in Section 2.2 of this
Agreement.
"Closing Date" has the meaning set forth in Section 2.2 of
this Agreement.
"Closing Expenses" means those expenses listed on Exhibit
A of this Agreement.
"COBRA" means the Consolidated Omnibus Budget
Reconciliation Act of 1985.
"Code" has the meaning set forth in the Background section
of this Agreement.
"Company" has the meaning set forth in the preamble of this
Agreement.
"Company Common Stock" has the meaning set forth in the
Background section of this Agreement.
"Competing Transaction" shall mean any of the following:
(i) any merger, consolidation, share exchange, business
combination, or other similar transaction involving the Company
or the Subsidiary; (ii) any sale, lease, exchange, mortgage,
pledge, transfer or other disposition of 15% or more of the
assets of the Company or the Subsidiary, in a single transaction
or series of transactions; (iii) any tender offer or exchange
offer for 15% or more of the outstanding shares of capital stock
of the Company or the Subsidiary or the filing of a registration
statement under the Securities Act in connection therewith; (iv)
any person having acquired beneficial ownership or the right to
acquire beneficial ownership of, or any "group" (as such term is
defined under Section 13(d) of the Exchange Act and the rules and
regulations promulgated thereunder) having been formed which
beneficially owns or has the right to acquire beneficial
ownership of, 15% or more of the then outstanding shares of
capital stock of the Company or the Subsidiary, excluding any
shareholdings existing on the date of this Agreement; or (v) any
public announcement of a proposal, plan or intention to do any of
the foregoing or any agreement to engage in any of the foregoing;
provided, however, a Competing Transaction shall not include any
transaction contemplated by Section 6.9 of this Agreement.
"Confidential Information" means any information
concerning the business and affairs of OECO or the Subsidiary
that is not already generally available to the public.
"Confidentiality Agreement" means that certain
confidentiality letter agreement between Reptron and X.X.
Xxxxxxxx & Co. as agent for OECO dated November 11, 1997, and as
amended on January 30, 1998.
"Constituent Corporations" has the meaning set forth in
Section 2.3 of this Agreement.
"Controlled Group of Corporations" has the meaning set
forth in Section 1563 of the Code.
"Disputed Account" has the meaning set forth in Section
8.3 of this Agreement.
"Dissenters' Shares" has the meaning set forth in
Section 3.1 of this Agreement.
"Distribution" has the meaning set forth in the
Background section of this Agreement.
"Effective Time" has the meaning set forth in Section
2.1 of this Agreement.
"Eligible Ariel Account Receivable" has the meaning set
forth in Section 8.3 of this Agreement.
"Employee Benefit Plan" means any (i) nonqualified
deferred compensation or retirement plan or arrangement that is
an Employee Pension Benefit Plan, (ii) qualified defined
contribution retirement plan or arrangement that is an Employee
Pension Benefit Plan, (iii) qualified defined benefit retirement
plan or arrangement that is an Employee Pension Benefit Plan
(including any Multiemployer Plan), (iv) Employee Welfare Benefit
Plan or material fringe benefit plan or
program, or (v) bonus, stock option, severance or termination
pay, stock purchase, stock appreciation right, restricted stock,
phantom stock or other employee benefit plan, program, agreement
or arrangement of the Subsidiary.
"Employee Pension Benefit Plan" has the meaning set
forth in Section 3(2) of ERISA.
"Employee Welfare Benefit Plan" has the meaning set
forth in Section 3(1) ERISA.
"Environmental, Health, and Safety Laws" means the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, the Resource Conservation and Recovery Act of 1976,
and the Occupational Safety and Health Act of 1970, each as
amended, together with all other laws (including rules,
regulations, codes, plans, injunctions, judgments, orders,
decrees, rulings, and charges thereunder) of federal, state,
local, and foreign governments (and all agencies thereof)
concerning pollution or protection of the environment, public
health and safety, or employee health and safety, including laws
relating to emissions, discharges, releases, or threatened
releases of pollutants, contaminants, or chemical, industrial,
hazardous, or toxic materials or wastes into ambient air, surface
water, ground water, or lands or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of pollutants, contaminants, or
chemical, industrial, hazardous, or toxic materials or wastes.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended.
"ERISA Plans" has the meaning set forth in Section
4.10(a) of this Agreement.
"Escrow Agent" means
_________________________________________________.
"Escrow Agreement" means the Escrow Agreement in the
form attached to this Agreement as Exhibit B.
"Escrow Funds" has the meaning set forth in Section 8.4
of this Agreement.
"Escrow Termination Date" shall mean the date 15 months
following the Closing Date.
"Excess Inventory" has the meaning set forth in Section
8.3 of this Agreement.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Excluded Inventory" has the meaning set forth in
Section 8.3 of this Agreement.
"Exhibits" means the Exhibits to this Agreement.
"Extremely Hazardous Substance" has the meaning set
forth in Sec. 302 of the Emergency Planning and Community Right-
to-Know Act of 1986, as amended.
"FBCA" means the Florida Business Corporation Act, as in
effect on the date of this Agreement.
"Fiduciary" has the meaning set forth in Section 3(21)
of ERISA.
"Florida Articles of Merger" has the meaning set forth
in Section 2.1 of this Agreement.
"GAAP" means United States generally accepted accounting
principles as in effect from time to time.
"General Accounts Receivable Escrow Fund" means the
initial deposit by Reptron of the amount set forth on Exhibit F,
pursuant to the Escrow Agreement, together with any interest on
such deposit.
"General Escrow Fund" means the initial deposit by
Reptron of $2,000,000, pursuant to the Escrow Agreement, together
with any interest on such deposit.
"Governmental Entity" means any court, quasi-judicial or
arbitral tribunal, administrative agency or commission, or other
governmental or other regulatory authority or agency (whether
federal, state, local or foreign) having appropriate
jurisdiction.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
"Xxxxx" has the meaning set forth in Section 8.3 of
this Agreement.
"HECO-MD" has the meaning set forth in Section 4.1 of
this Agreement.
"HECO-MD Common Stock" means the common stock, par value
$.01 per share, of HECO-MD.
"Huron" has the meaning set forth in the preamble to
this Agreement.
"Huron Common Stock" means the common stock, par value
$.01 per share, of Huron.
"Indemnified Party" has the meaning set forth in Section
8.3 of this Agreement.
"Intellectual Property" means (a) inventions (whether
patentable or unpatentable and whether or not reduced to
practice), all improvements thereto, and all patents, patent
applications, and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions,
extensions, and reexaminations thereof, (b) trademarks, service
marks, trade dress, logos, trade names, and corporate names,
together with all translations, adaptations, derivations, and
combinations thereof and including all goodwill associated
therewith, and all applications, registrations, and renewals in
connection therewith, (c) copyrightable works, all copyrights,
and all applications, registrations, and renewals in connection
therewith, (d) all mask works and all applications,
registrations, and renewals in connection therewith, (e) trade
secrets and confidential business information (including ideas,
research and development, know-how, formulas, compositions,
manufacturing and production processes and techniques, technical
data, designs, drawings, specifications, customer and supplier
lists, pricing and cost information, and business and marketing
plans and proposals), (f) computer software (including data and
related documentation), (g) all other proprietary rights in any
of the foregoing, and (h) all copies and tangible embodiments
thereof (in whatever form or medium).
"Inventory Escrow Fund" means the initial deposit by
Reptron of the amount set forth on Exhibit G, pursuant to the
Escrow Agreement, together with any interest on such deposit.
"Knowledge" means actual knowledge. In the case of the
Company or the Subsidiary, it includes the knowledge of the
officers and employee directors of the Company or the Subsidiary,
as applicable, after reasonable inquiry of those employees with
substantive responsibility for the subject matter of a
representation or warranty.
"Letter of Intent" means the letter agreement, dated
February 23, 1998, between Reptron and OECO, as amended on April
30, 1998.
"Liability" means any liability (whether known or
unknown, whether asserted or unasserted, whether absolute or
contingent, whether accrued or unaccrued, whether liquidated or
unliquidated, and whether due or to become due), including any
liability for Taxes.
"Loss" means all claims, judgments, damages, penalties,
fines, costs, amounts paid in settlement, liabilities (whether
absolute or contingent, whether liquidated or unliquidated, and
whether due or to become due), obligations, taxes, losses,
expenses, and fees, including (without limitation) all attorneys'
fees and expenses, court costs, and fees and expenses of expert
witnesses, suffered or incurred by a party to this Agreement
arising from a breach by another party of a representation,
warranty, covenant or agreement set forth in this Agreement.
"Material" and "Material Adverse Effect" means any
event, change or effect on or with respect to the Subsidiary
which is materially adverse to its condition (financial or
otherwise), properties, assets (including intangible assets),
liabilities (including contingent liabilities), business, results
of operations or prospects of the subsidiary net of unexhausted
reserves as booked on December 31, 1997, insurance benefits
actually received and tax benefits actually realized.
"Material Contract" has the meaning set forth in Section
4.16 of this Agreement.
"Measuring Date" has the meaning set forth in Section
8.3 of this Agreement.
"Merger" has the meaning set forth in the Background
section of this Agreement.
"Merger Consideration" means the cash to be delivered to
the Shareholders of the Company in connection with the Merger.
"Merger Filings" has the meaning set forth in Section
2.1 of this Agreement.
"Most Recent Balance Sheet" means the balance sheet
contained within the Most Recent Financial Statements.
"Most Recent Financial Statements" means the Subsidiary
Financial Statements for the fiscal year ended December 31, 1997.
"Most Recent Fiscal Year End" has the meaning set forth
in Section 4.6 of this Agreement.
"Multiemployer Plan" has the meaning set forth in
Section 3(37) of ERISA.
"Nasdaq" means the Nasdaq Stock Market's National
Market.
"New OECO" has the meaning set forth in the Background
section of this Agreement.
"New OECO Merger" has the meaning set forth in the
Background section of this Agreement.
"Note Receivable" means that certain letter agreement
dated January 30, 1997, between Medical Graphics Corporation and
the Subsidiary with respect to amounts owing by Medical Graphics
Corporation to the Subsidiary as of such date.
"OBCA" means the Oregon Business Corporation Act, as in
effect on the date of this Agreement.
"OECO" has the meaning set forth in the Background
section of this Agreement.
"OECO Common Stock" means the common stock, without par
value, of OECO.
"OECO-DEL" has the meaning set forth in the Background
section of this Agreement.
"OECO-DEL Merger" has the meaning set forth in the
Background section of this Agreement.
"OECO-LLC" has the meaning set forth in the preamble of
this Agreement.
"OECO-LLC Merger" has the meaning set forth in the
Background section of this Agreement.
"Ordinary Course of Business" means the ordinary course
of business consistent with past custom and practice (including
with respect to quantity and frequency).
"Oregon Articles of Merger" has the meaning set forth in
Section 2.1 of this Agreement.
"Outstanding Receivables" has the meaning set forth in
Section 8.5 of this Agreement.
"Paying Agent" has the meaning set forth in Section 3.2
of this Agreement.
"Payment Obligations" means the aggregate amount of the
Escrow Funds on the Closing Date less any amounts subsequently
released to the Indemnified Parties pursuant to Article VIII of
this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Person" means an individual, a partnership, a
corporation, a limited liability company, an association, a joint
stock company, a trust, a joint venture, an unincorporated
organization, or a Governmental Entity.
"Personnel" shall have the meaning set forth in Section
4.22 of this Agreement.
"Plans" shall have the meaning set forth in Section 4.10
of this Agreement.
"Prior Transactions" has the meaning set forth in the
Background section of this Agreement.
"Prohibited Transaction" has the meaning set forth in
Section 406 of ERISA and Section 4975 of the Code.
"Reportable Event" has the meaning set forth in Section
4043 of ERISA.
"Reptron" has the meaning set forth in the preamble of
this Agreement.
"Reptron Open Claim" has the meaning set forth in
Section 8.10 of this Agreement.
"Response Period" has the meaning set forth in Section
8.10 of this Agreement.
"Schedules" means the schedules to this Agreement.
"SEC" means the United States Securities and Exchange
Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Security Interest" means any mortgage, pledge, lien,
encumbrance, charge, or other security interest, other than (a)
mechanics', materialmens', and similar liens arising by operation
of law, (b) liens for Taxes not yet due and payable or for Taxes
that the taxpayer is contesting in good faith through appropriate
proceedings, (c) purchase money liens and liens securing rental
payments under capital lease arrangements, and (d) other liens
arising in the Ordinary Course of Business and not incurred in
connection with the borrowing of money.
"Service" means the United States Internal Revenue
Service.
"Shareholder Representative" has the meaning set forth
in Section 8.2 of this Agreement.
"Shareholders" shall mean the shareholders of the
Company.
"Shareholders' Meeting" has the meaning set forth in
Section 6.2 of this Agreement.
"Subsidiary" has the meaning set forth in the Background
section of this Agreement.
"Subsidiary Common Stock" means the common stock, par
value $1.00 per share, of the Subsidiary.
"Subsidiary ERISA Affiliate" means any trade or
business, whether or not incorporated, that together with the
Subsidiary would be deemed a "single employer" within the meaning
of Section 4001 of ERISA.
"Subsidiary Financial Statements" has the meaning set
forth in Section 4.6 of this Agreement.
"Subsidiary Permits" has the meaning set forth in
Section 4.13 of this Agreement.
"Surviving Corporation" has the meaning set forth in
Section 2.3 of this Agreement.
"Sypris" has the meaning set forth in Section 6.14 of
this Agreement.
"Tax" means any federal, state, local, or foreign
income, gross receipts, license, payroll, employment, excise,
severance, stamp, occupation, premium, windfall profits,
environmental (including taxes under Section 59A of the Code),
customs duties, capital stock, franchise, profits, withholding,
social security (or similar), unemployment, disability, real
property, personal property, sales, use, transfer, registration,
value added, alternative or add-on minimum, estimated, or other
tax of any kind whatsoever, including any interest, penalty, or
addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report,
claim for refund, or information return or statement relating to
Taxes, including any schedule or attachment thereto, and
including any amendment thereof for taxable periods ended on or
after December 31, 1991.
"Third Party Claim" has the meaning set forth in Section
8.8 of this Agreement.
"Threshold" has the meaning set forth in Section 8.3 of
this Agreement.
"Undisputed Account" has the meaning set forth in
Section 8.3 of this Agreement.
"Voting Debt" means any bonds, debentures, notes, or
other indebtedness having the right to vote (or convertible into
securities having the right to vote).
ARTICLE II
The Merger
Section 2.1 Effective Time of the Merger. The
Merger shall become effective upon the later to occur of the
filing of articles of merger (and attached plan of merger) with
the Secretary of State of the State of Oregon in accordance
with the OBCA (the "Oregon Articles of Merger") and the filing
of articles of merger with the Secretary of State of the State
of Florida in accordance with the FBCA (the "Florida Articles
of Merger" together with the Oregon Articles of Merger, are the
"Merger Filings"). The Merger Filings shall be filed
simultaneously with the Closing. The date and time when the
Merger shall become effective is hereinafter referred to as the
"Effective Time."
Section 2.2 Closing. The closing of the
transactions contemplated by this Agreement (the "Closing")
will take place at 10:00 a.m. Pacific Time on a date to be
specified by Reptron, which shall be not later than five
business days after satisfaction of the latest to occur of the
conditions set forth in Article VII (the "Closing Date"), in
Portland, Oregon at the offices of Xxxxxx Xxxx LLP, unless
another date or place is agreed to in writing by the parties to
this Agreement. At the Closing, Reptron shall deliver checks
representing payment for the Closing Expenses and shall pay the
Merger Consideration and fully fund the Escrow Funds by wire
transfer.
Section 2.3 Effects of the Merger. At the
Effective Time: (a) the separate existence of Huron shall cease
and Huron shall be merged with and into the Company (Huron and
the Company are sometimes referred to in this Agreement as the
"Constituent Corporations" and the Company is sometimes
referred to in this Agreement as the "Surviving Corporation"),
(b) the articles of incorporation of the Company in effect
immediately prior to the Effective Time shall be the articles
of incorporation of the Surviving Corporation, as amended
pursuant to the Oregon Articles of Merger, (c) the bylaws of
the Company as in effect immediately prior to the Effective
Time shall be the bylaws of the Surviving Corporation and
(d) the Surviving Corporation shall change its name to Lake
Huron Investment Corporation. At and after the Effective Time,
the Surviving Corporation shall possess all the assets, rights,
and privileges, and shall be subject to all the restrictions
and liabilities of each of the Constituent Corporations, all as
provided in the OBCA and the FBCA.
Section 2. Directors and Officers of the Surviving
Corporation. The directors and officers of the Surviving
Corporation, from and after the Effective Time, shall be the
current directors and officers of Huron until their successors
shall have been duly elected or appointed and qualified or
until their earlier death, resignation or removal, in
accordance with the Surviving Corporation's articles of
incorporation and bylaws.
Section 2.5 Risk of Loss. Risk of loss to the
assets of the Company (including those of the Subsidiary),
however caused, up to the Effective Time, shall remain wholly
upon the Company. Such risk of loss shall shift to Reptron at
the Effective Time. If all or any part of any of the assets of
the Subsidiary suffer an impairment at or before the Effective
Time, the Subsidiary shall promptly notify Reptron, specifying
the estimated costs necessary to repair or replace any damaged
or destroyed property, the amount of insurance proceeds that
are available to make such repairs and replacements, the
estimated period of time necessary to make such repairs and
replacements, and the effect of the impairment to the assets of
the Subsidiary. If all or a material part of the assets of the
Subsidiary suffer an impairment at or before the Closing,
Reptron shall be entitled to elect either (a) to proceed to the
Closing in accordance with this Agreement, in which event all
condemnation or insurance proceeds payable with respect to the
impairment shall be owned by and payable to Reptron, or (b) to
terminate this Agreement pursuant to Section 9.1.
ARTICLE III
Conversion of Securities
Section 3.1 Conversion of Capital Stock. As of the
Effective Time, by virtue of the Merger and without any further
action on the part of any holder of shares of Company Common
Stock and without any further action on the part of any holder
of shares of Huron Common Stock:
(a) Common Stock of Huron. Each
issued and outstanding share of Huron Common Stock shall be
converted into and become one fully paid and nonassessable share
of common stock, without par value, of the Surviving Corporation.
(b) Conversion of the Company's
Shares. Each issued and outstanding share of Company Common
Stock (excluding shares converted pursuant to Section 3.1(a) and
Dissenters' Shares (as defined in subsection 3.1(c) below)) shall
be converted into the right to receive $35.12, subject to the
escrow arrangements and the Closing Expenses contemplated by
Section 3.2 of this Agreement, and such amount shall be paid in
accordance with Section 3.2 of this Agreement.
(c) Dissenters' Shares.
Notwithstanding anything in this Agreement to the contrary,
shares of Company Common Stock which are held by Shareholders who
shall have effectively dissented from the Merger and perfected
their dissenters' rights in accordance with the provisions of the
OBCA (the "Dissenters' Shares") shall not be converted into or be
exchangeable for the right to receive consideration pursuant to
Section 3.1(b) of this Agreement, but the holders thereof shall
be entitled to payment from the Surviving Corporation of the fair
value of such shares in accordance with the provisions of the
OBCA; provided, however, that if
any such holder shall have effectively withdrawn or lost such
rights, pursuant to the OBCA or otherwise, his or her shares of
Company Common Stock shall thereupon be converted into and
exchangeable for, at or subsequent to the Effective Time, their
pro rata share of the aggregate consideration as determined and
paid in the manner set forth in Section 3.1(b) of this Agreement.
(d) Cancellation of the Company Common
Stock. All shares of Company Common Stock (excluding the shares
converted pursuant to Section 3.1(a) and Dissenters' Shares
referred to in Section 3.1(c)) shall no longer be outstanding and
shall automatically be cancelled and retired and shall cease to
exist, and each holder of a certificate representing any such
shares shall cease to have any rights with respect thereto,
except the right to receive the cash paid in consideration for
such shares upon the surrender of such certificate in accordance
with Section 3.2, without interest, except as provided in Section
8.7 of this Agreement.
Section 3.2 Payment for Certificates.
(a) Payment Procedures. On the
Closing Date, the Company shall deliver or cause to be delivered
certificates representing the shares of Company Common Stock (the
"Certificates") owned by each Shareholder of the Company (except
as contemplated by Section 3.1(c) of this Agreement), accompanied
by stock powers duly signed in blank (in substantially the form
attached to this Agreement as Exhibit C), and with all revenue
stamps necessary to transfer such shares and the certificates
representing such shares affixed and cancelled and all taxes on
such transfer, if any, fully paid. Prior to the Effective Time,
the Company shall designate a business entity regularly engaged
in such work and which is reasonably satisfactory to Reptron to
act as Paying Agent with respect to the Merger (the "Paying
Agent"). In exchange for the Certificates, Reptron shall deliver
by wire transfer to the Paying Agent on behalf of the
Shareholders of the Company on the Closing Date $29,700,000, less
the sum of (v) the consideration paid by Reptron in connection
with the surrender and termination of all stock options of the
Subsidiary, (w) all supplementary compensation payments to the
executive officers of the Subsidiary, in an amount not less than
$1,590,000, (x) the aggregate amount of the Escrow Funds (which
shall be later transferred, as appropriate, in accordance with
Article VIII, to each Shareholder based on the number of shares
of Company Common Stock represented by the Certificates delivered
by the Company to Reptron on behalf of the Shareholder or
released, in accordance with Article VIII, to Reptron as a
reduction in the purchase price), (y) the Closing Expenses, and
(z) an amount equal to $35.12 multiplied by the number of
Dissenters' Shares. Until surrendered as contemplated by this
Section 3.2, each Certificate shall be deemed at all times after
the Effective Time to represent only the right to receive cash as
contemplated by Section 3.2 of this Agreement.
(b) No Further Ownership Rights in
Company Common Stock. After the Effective Time, there shall be
no further registrations of transfers on the stock transfer books
of the Surviving Corporation of the shares of Company Common
Stock that were outstanding immediately prior to the Effective
Time. If, after the Effective Time, Certificates are presented
to the Surviving Corporation for any reason, they shall be
cancelled and exchanged as provided in this Article III.
(c) No interest shall accrue or be
paid on the cash payable
upon the surrender of the Certificates. Any funds delivered or
made payable to the Paying Agent and not paid to former
shareholders of OECO (pursuant to their failure to surrender
their shares of Common Stock for cancellation pursuant to the
OECO-DEL Merger) within six months after the Effective Time will
be transferred by the Paying Agent to OECO-LLC, which thereafter
will act as Paying Agent, subject to the rights of former holders
of shares of OECO Common Stock who fail to surrender their
shares of OECO Common Stock for cancellation pursuant to the
OECO-DEL Merger. Any former shareholders of OECO who have not
previously surrendered their certificates of OECO Common Stock
for Certificates pursuant to the OECO-DEL Merger will thereafter
be entitled to look only to OECO-LLC in connection with their
right to receive Units of OECO-LLC and for payment of their claim
for the consideration set forth in Section 3.1, without any
interest, but will have no greater rights against OECO-LLC than
may be accorded to general creditors of OECO-LLC under applicable
law. Notwithstanding the foregoing, neither the Paying Agent nor
any party hereto shall be liable to any former shareholder of
OECO for any cash or interest delivered to a public official
pursuant to applicable abandoned property, escheat or similar
laws.
Section 3.3 Further Assurances. If at any time
after the Effective Time any further assignments or assurances
are necessary or desirable to vest or to perfect or confirm of
record in the Surviving Corporation the title to any property
or rights of either of the Constituent Corporations, or
otherwise to carry out the provisions of this Agreement, the
officers and directors of the Surviving Corporation are hereby
authorized and empowered on behalf of the respective
Constituent Corporations, in the name of and on behalf of the
appropriate Constituent Corporation, to execute and deliver any
and all things necessary, appropriate or convenient to vest or
to perfect or confirm title to such property or rights in the
Surviving Corporation, and otherwise to carry out the purposes
and provisions of this Agreement.
ARTICLE IV
Representations and Warranties of the Company
The Company represents, warrants and agrees with Reptron
and Huron as follows:
Section 4.1 Organization. Each of the Company, the
Subsidiary and Hibbing Electronics Corporation - Maryland
("HECO-MD") is a corporation duly organized, validly existing,
and with active status or good standing under the laws of the
jurisdiction of its incorporation. Each of the Company, the
Subsidiary and HECO-MD has all requisite corporate power and
authority and all necessary governmental approvals to own,
lease, and operate its properties and to carry on its business
as now being conducted. Schedule 4.1 sets forth for the
Company, the Subsidiary and HECO-MD (a) its name and
jurisdiction of incorporation or organization, (b) the number
of shares of authorized capital stock of each class of its
capital stock, (c) the number of issued and outstanding shares
of each class of its capital stock, and, as to the Subsidiary,
the names of the holders thereof, the number of shares held by
each such holder and applicable certificate numbers, (d) the
number of shares of its capital stock held in treasury, and (e)
its directors and officers. Each of the Company, the
Subsidiary and HECO-MD is duly
qualified or licensed to do business and is in good standing or
with active status in each jurisdiction in which the property
owned, leased, or operated by it or the nature of the business
conducted by it makes such qualification or licensing
necessary, except where the failure to be so duly qualified or
licensed and be in good standing or active status would not
have a Material Adverse Effect on the Subsidiary.
Section 4.2 Capitalization. As of the date of this
Agreement, the authorized capital stock of the Company consists
solely of 1,000,000 shares of Company Common Stock of which, as
of the date of this Agreement, zero (0) shares are issued and
outstanding and of which, as of the Closing Date, the number of
shares of Company Common Stock not to exceed the number agreed
to by counsel for the respective parties hereto in writing will
be issued and outstanding. As of the date of this Agreement,
except as set forth Schedule 4.2 and as agreed to by counsel
for the respective parties hereto in writing, there are no
options to acquire any shares of any class of stock of the
Subsidiary. All of the outstanding shares of Company Common
Stock, Subsidiary Common Stock and HECO-MD Common Stock are
duly authorized, validly issued, fully paid and nonassessable
and free of any preemptive or similar rights and no shares are
held in the treasury of the Company or the Subsidiary, except
as set forth on Schedule 4.2. As of the date of this
Agreement, no Voting Debt of the Company or the Subsidiary is
issued or outstanding. As of the date of this Agreement,
except as set forth on Schedule 4.2 and as agreed to by counsel
for the respective parties hereto in writing, there are no
existing options, warrants, puts, calls, subscriptions or other
rights or other agreements or commitments of any character
relating to the issued or unissued shares of capital stock of
the Subsidiary, or obligating the Subsidiary to issue,
transfer, or sell or cause to be issued, transferred, or sold,
any shares of capital stock, or other equity interests in, the
Subsidiary, or securities convertible into or exchangeable for
such shares or equity interests or obligating the Subsidiary to
grant, extend, or enter into any such option, warrant, call,
subscription or other right, agreement or commitment. As of
the date of this Agreement, except as set forth on Schedule 4.2
and as agreed to by counsel for the respective parties hereto
in writing, there are no outstanding contractual obligations of
the Subsidiary to repurchase, redeem, or otherwise acquire any
shares of capital stock of the Subsidiary. All of the
outstanding shares of Company Common Stock and Subsidiary
Common Stock were issued pursuant to available exemptions under
federal and state securities laws or all relevant statutes of
limitations have expired with respect to such issuances.
Section 4.3 Ownership of the Company; No Prior
Activities; Assets of the Company. The Company was formed
solely for the purpose of facilitating the Merger. Other than
this Agreement and the transactions contemplated hereby, and as
agreed to by counsel for the respective parties hereto in
writing, there are not as of the date hereof and there will not
be on the Closing Date any outstanding options, warrants,
calls, rights, commitments or any other agreements of any
character which the Company is a party to, or may be bound by,
requiring it to issue, transfer, sell, purchase, redeem or
acquire any shares of capital stock or any securities or rights
convertible into, exchangeable for, or evidencing the right to
subscribe for or acquire, any shares of capital stock of the
Company. As of the date of this Agreement and at the Effective
Time, except for obligations or liabilities incurred in
connection with the Distribution and, as set forth on Exhibit
A, obligations or liabilities incurred in connection with its
incorporation or organization and the transactions contemplated
thereby and hereby, the Company has not and will not have
incurred, directly or indirectly through any subsidiary or
affiliate, any obligations
or liabilities or engaged in any business or activities of any
type or kind whatsoever or entered into any agreements or
arrangements with any person. At the Effective Time, the
Company will own no assets other than all of the outstanding
capital stock of the Subsidiary.
Section 4.4 Authority. The Company has the
requisite corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated
by this Agreement. As of the Closing Date, holders of in
excess of 75% of the outstanding shares of Company Common Stock
will have approved and adopted this Agreement and such other
matters referred to in the Company's proxy materials forwarded
to its shareholders in connection therewith. As of the Closing
Date, the execution, delivery, and performance of this
Agreement and the consummation of the Merger and of the other
transactions contemplated hereby will have been duly authorized
by all necessary corporate action on the part of the Company,
and no other corporate proceedings on the part of the Company
will be necessary to authorize this Agreement or to consummate
the transactions so contemplated. This Agreement has been duly
executed and delivered by the Company and, assuming this
Agreement constitutes a valid and binding obligation of Reptron
and Huron, constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its
terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance
or similar laws affecting the enforcement of creditors' rights
generally or by general principles of equity.
Section 4.5 Consents and Approvals; No Violations.
Except as set forth on Schedule 4.5, and except for filings,
permits, authorizations, consents, and approvals as may be
required under, and other applicable requirements of, the HSR
Act, neither the execution, delivery, or performance of this
Agreement by the Company nor the consummation by the Company of
the transactions contemplated by this Agreement nor compliance
by the Company with any of the provisions of this Agreement
will: (a) conflict with or result in any breach of any
provision of the articles of incorporation or the bylaws of the
Company or the Subsidiary, (b) require any filing with, or
permit, authorization, consent, or approval of, any
Governmental Entity, or any third party contracting with the
Subsidiary, (c) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or
both) a default which results in a material breach of any
individual contract or arrangement (or gives rise to any right
of termination, amendment, cancellation, or acceleration)
under, any of the terms, conditions, or provisions of any note,
bond, mortgage, indenture, lease, license, contract, agreement,
or other instrument or obligation to which the Subsidiary is a
party or by which the Subsidiary or any of its properties or
assets may be bound, or (d) violate any order, writ,
injunction, decree, ruling, or materially violate any statute,
rule, or regulation applicable to the Company, the Subsidiary,
or any of their respective properties or assets.
Section 4.6 Financial Statements. Prior to the
execution of this
Agreement, the Subsidiary delivered to Reptron the audited
unconsolidated balance sheets and statements of income, changes
in shareholders' equity, and cash flows as of and for the
fiscal years ended December 31, 1993, December 31, 1994,
December 31, 1995, December 31, 1996, and the audited
consolidated balance sheets and statements of income, changes
in shareholders' equity, and cash flows as of and for the
fiscal year ended December 31, 1997 (the "Most
Recent Fiscal Year End") for the Subsidiary (collectively, the
"Subsidiary Financial Statements"). The Subsidiary Financial
Statements (including the notes thereto) have been prepared in
accordance with GAAP applied on a consistent basis throughout
the periods covered thereby except as may be noted in such
financial statements, present fairly the financial condition of
the Subsidiary as of such dates and the results of operations
of the Subsidiary for such periods. At the Most Recent Fiscal
Year End, the Subsidiary owned all assets shown on the Most
Recent Financial Statements, subject to no material Security
Interests, liens, charges, mortgages, or other encumbrances
except as noted therein. All Liabilities of the Subsidiary are
reflected on the books and records of the Subsidiary and on the
Subsidiary Financial Statements in accordance with GAAP.
Section 4.7 Absence of other Subsidiaries and
Equity Interests. Other than the Subsidiary and HECO-MD, upon
the Closing, the Company will own no equity interest in any
other entity (including, without limitation, any evidence of
indebtedness convertible into equity).
Section 4.8 Absence of Certain Changes. Except as
set forth on Schedule 4.8 or as agreed to by counsel for the
respective parties hereto in writing, since the Most Recent
Fiscal Year End, no event has occurred which had or could have
a Material Adverse Effect on the Subsidiary. Without limiting
the generality of the foregoing, since that date:
(a) the Subsidiary has not sold,
leased, transferred, or assigned any of its assets, tangible or
intangible, other than for a fair consideration in the Ordinary
Course of Business;
(b) the Subsidiary has not entered
into any agreement, contract, lease, or license (or series of
related agreements, contracts, leases, and licenses) involving
payments by the Subsidiary outside the Ordinary Course of
Business;
(c) no party (including the
Subsidiary) has terminated or cancelled any agreement, contract,
lease, or license (or series of related agreements, contracts,
leases, and licenses) involving more than $100,000, to which
either the Subsidiary is a party or by which the Subsidiary is
bound;
(d) the Subsidiary has not imposed or
granted any Security Interest upon any of its assets, tangible or
intangible;
(e) the Subsidiary has not made any
capital expenditure (or series of related capital expenditures)
either involving more than $50,000 or outside the Ordinary Course
of Business;
(f) the Subsidiary has not made any
capital investment in, any loan to, or any acquisition of the
securities or assets of, any other Person (or series of related
capital investments, loans, and acquisitions) outside the
Ordinary Course of Business;
(g) the Subsidiary has not issued any
note, bond, or other debt security or created, incurred, assumed,
or guaranteed any indebtedness for borrowed money or capitalized
lease obligation involving more than $100,000;
(h) the Subsidiary has not delayed or
postponed the payment of accounts payable and other Liabilities
outside the Ordinary Course of Business;
(i) the Subsidiary has not cancelled,
compromised, waived, or released any right or claim (or series of
related rights and claims) outside the Ordinary Course of
Business;
(j) the Subsidiary has not granted any
license or sublicense of any rights under or with respect to any
Intellectual Property;
(k) there has been no change made or
authorized in the articles of incorporation or bylaws of the
Subsidiary;
(l) the Subsidiary has not issued,
sold, or otherwise disposed of any of its capital stock, or
granted any options, warrants, or other rights to purchase or
obtain (including upon conversion, exchange, or exercise) any of
its capital stock;
(m) the Subsidiary has not declared,
set aside, or paid any dividend or made any distribution with
respect to its capital stock (whether in cash or in kind) or
redeemed, purchased, or otherwise acquired any of its capital
stock;
(n) the Subsidiary has not experienced
any damage, destruction, or loss (whether or not covered by
insurance) to its property in excess of $10,000;
(o) the Subsidiary has not made any
loan to, or entered into any other transaction with, any of its
directors or officers, or outside of the Ordinary Course of
Business, with any of its employees;
(p) the Subsidiary has not entered
into any employment contract or collective bargaining agreement,
written or oral, or modified the terms of any such existing
contract or agreement;
(q) the Subsidiary has not granted any
increase in base compensation to any of its directors or, outside
of the Ordinary Course of Business, to any of its officers or
employees;
(r) the Subsidiary has not adopted,
amended, modified or terminated any bonus, profit-sharing,
incentive, severance, or other plan, contract, or commitment for
the benefit of any of its directors, officers, and employees (or
taken any such action with respect to any other Employee Benefit
Plan);
(s) the Subsidiary has not made any
other change in employment terms for any of its directors,
officers, or employees;
(t) the Subsidiary has not made or
pledged to make any charitable or other contribution outside the
Ordinary Course of Business;
(u) the Subsidiary is not aware of any
labor union organizing activity, had any actual or threatened
employee strikes, work stoppages, slow-downs or lock-outs, or had
any material change in its relations with its employees, agents,
customers or suppliers;
(v) the Subsidiary has not instituted,
settled or agreed to settle any litigation, action or proceeding
before any Governmental Entity relating to it or its properties;
(w) except as disclosed on Exhibit A,
the Subsidiary has not entered into any transaction, contract or
commitment other than in the Ordinary Course of Business or paid
or agreed to pay any legal, accounting, brokerage, finder's fee,
taxes or other expenses in connection with, or incurred any
severance pay obligations by reason of, this Agreement or the
transactions contemplated hereby; and
(x) the Subsidiary has not committed
to any of the above actions.
Section 4.9 No Undisclosed Liabilities. Except as
disclosed in the Subsidiary Financial Statements or in the
Schedules to this Agreement, the Subsidiary has no outstanding
guaranties, indemnities, hold harmless agreements, covenants
not to compete or solicit customers, or covenants not to
solicit or employ persons, or matters of suretyship, or similar
instrument or agreement, and is not subject to any material
claims or liabilities, accrued, absolute, contingent or
otherwise, other than trade or business obligations incurred in
the Ordinary Course of Business since the date of the
Subsididary Financial Statements, in amounts usual and normal
both individually and in the aggregate for its business.
Section 4.10 Employee Benefits.
(a) Schedule 4.10 contains a true and
complete list of each pension, retirement, profit sharing,
deferred compensation, stock option, stock purchase, bonus,
medical, welfare, disability, severance or termination pay,
insurance or incentive plan, and each other employee benefit
plan, program, agreement or arrangement, whether funded or
unfunded, sponsored, maintained or contributed to or required to
be contributed to by the Subsidiary for the benefit of any
employee or terminated employee of the Subsidiary (the "Plans").
Schedule 4.10 identifies each Plan that is an "employee benefit
plan," within the meaning of Section 3(3) of ERISA (the "ERISA
Plans").
(b) Neither the Subsidiary nor any
Subsidiary ERISA Affiliate has ever participated in or has ever
been required to contribute to or otherwise participate in any
"multi-employer plan," as defined in Sections 3(37)(A) and
4001(a)(3) of ERISA and Section 414(f) of the Code.
(c) True and complete copies of each
of the Plans and related trusts have been furnished to Reptron,
including, where applicable, the most recent financial statement
and the most recent actuarial report prepared with respect to any
of such Plans that is funded, the most recent Service
determination letter, the most recent summary plan description
and the most recent Annual Report together with a statement
setting forth any such documents which are not applicable or
cannot be furnished; and any such documents furnished and the
nature of the documents which cannot be furnished shall be
satisfactory to Reptron.
(d) With respect to each Plan intended
to be "qualified" within the meaning of Section 401(a) of the
Code, a determination letter from the Service has been received
to the effect that the Plan is qualified under Section 401 of the
Code and any trust maintained pursuant thereto is exempt from
federal income taxation under Section 501 of the Code, and
nothing has occurred or will occur through the Closing Date
(including, without limitation, the transactions contemplated by
this Agreement) which would cause the loss of such qualification
or exemption or the imposition of any penalty or tax liability.
(e) All contributions required by each
Plan or by law with respect to all periods through the Closing
Date shall have been made by such date (or provided for by the
Subsidiary by adequate reserves on its financial statements) and
no excise or other taxes have been incurred or are due and owing
with respect to the Plan because of any failure to comply with
the minimum funding standards of ERISA and the Code.
(f) Except as set forth in Schedule
4.10 of this Agreement, no "accumulated funding deficiency," as
defined in Section 302 of ERISA, has been incurred with respect
to any Plan, whether or not waived.
(g) No "reportable event" of the type
set forth in Section 4043 of ERISA has occurred and is continuing
with respect to any Plan.
(h) There are no violations of ERISA
or the Code with respect to the filing of applicable reports,
documents, and notices regarding any Plan with the Secretary of
Labor, Secretary of the Treasury, or the PBGC or furnishing such
documents to participants or beneficiaries, as the case may be.
(i) No claim, lawsuit, arbitration, or
other action has been threatened, asserted, or instituted against
any Plan, any trustee or fiduciaries thereof, the Subsidiary, or
any of the assets of any trust maintained under any Plan.
(j) All amendments required to bring
any Plan into conformity with any of the applicable provisions of
ERISA and the Code have been duly adopted.
(k) Any bonding required with respect
to any ERISA Plan in accordance with applicable provisions of
ERISA has been obtained and is in full force and effect.
(l) Each Plan has been operated and
administered in accordance with its terms and the terms and the
provisions of ERISA and the Code (including rules and regulations
thereunder) applicable thereto and in practice is tax qualified
under Sections 401(a) and 501 of the Code.
(m) The trusts maintained under each
Plan intended to be "qualified" within the meaning of Section
401(a) of the Code is exempt from taxation under section 501(a)
of the Code.
(n) Neither the Subsidiary nor any
Subsidiary ERISA Affiliate has incurred nor reasonably expects to
incur, any liability to the PBGC.
(o) No "prohibited transaction," as
such term is defined in Section 4975 of the Code and Section 406
of ERISA, has occurred with respect to any Plan (and the
transactions contemplated by this Agreement will not constitute
or directly or indirectly result in such a "prohibited
transaction") which could subject the Subsidiary, any Subsidiary
ERISA Affiliate or Reptron, or any officer, director or employee
of any of the foregoing, or any trustee, administrator or other
fiduciary, to a tax or penalty on prohibited transactions imposed
by either Section 502 of ERISA or Section 4975 of the Code.
(p) No Plan is under audit by the
Service or the Department of Labor.
(q) Schedule 4.10 of this Agreement
contains a list of all Plans that are defined benefit plans
subject to title IV of ERISA. If any such plan were terminated
with a termination date of January 1, 1998, the additional Plan
contribution required of the Subsidiary or any Subsidiary ERISA
Affiliate as of that date would not exceed the amount applicable
to such Plan as set forth on Schedule 4.10.
(r) No Employee Welfare Benefit Plan
provides for continuing benefits or coverage for any participant
or beneficiary of a participant after such participant's
termination of employment, except as may be required by COBRA at
the expense of the participant or the beneficiary of the
participant.
(s) Except as set forth in Schedule
4.10 of this Agreement, no individual shall accrue or receive any
additional benefits, service, or accelerated rights to payment of
benefits under any Plan as a result of the actions contemplated
by this Agreement.
(t) The Subsidiary has complied with
all of the requirements of the COBRA, Sections 601 through 608 of
ERISA, and Sections 162 and 4980B of the Code.
Section 4.11 Other Benefit Plans. Except as set
forth on Schedule 4.11, and as agreed to by counsel for the
respective parties hereto in writing, as of the date of this
Agreement, the Subsidiary is not a party to any oral or written
(a) consulting agreement not terminable on 30 days or less
notice involving the payment of more than $10,000 per annum,
(b) union or collective bargaining agreement, (c) agreement
with any executive officer or other key employee of the
Subsidiary, the benefits of which are contingent, or the terms
of which are materially altered, upon the occurrence of a
transaction involving the Subsidiary of the nature contemplated
by this Agreement, or agreement with respect to any executive
officer of the Subsidiary providing any term of employment or
compensation guarantee extending for a period longer than one
year, or (d) agreement or plan, including any stock option
plan, stock appreciation rights plan, restricted stock plan, or
stock purchase plan, any of the benefits of which will be
increased, or the vesting of the benefits of which will be
accelerated, by the occurrence of any of the transactions
contemplated by this Agreement, or the value of any of the
benefits of which will be calculated on the basis of any of the
transactions contemplated by this Agreement.
Section 4.12 Litigation. Schedule 4.12 sets forth
each instance in which the Company or the Subsidiary (i) is
subject to any outstanding injunction, judgment, order, decree,
ruling, or charge or (ii) is a party or, to the Knowledge of
the Company or the Subsidiary, is threatened to be made a party
to, any action, suit, proceeding, hearing, or investigation of,
in, or before any Governmental Entity or arbitrator. To the
Knowledge of the Subsidiary, none of the actions, suits
proceedings, hearings, and investigations set forth on Schedule
4.12 could reasonably be expected to have a Material Adverse
Effect upon the business, financial condition, operations,
results of operations, or future prospects of the Subsidiary.
The Subsidiary has no reason to believe that any other such
action, suit, proceeding, hearing, or investigation may be
brought or threatened against the Subsidiary.
Section 4.13 Compliance with Applicable Law. Except
as disclosed on Schedules 4.13 and 4.19 of this Agreement and
except where the failure to hold such permits, licenses,
variances, exemptions, orders, and approvals would not,
individually or in the aggregate, have a Material Adverse
Effect on the Subsidiary or HECO-MD, the Subsidiary holds all
permits, licenses, variances, exemptions, orders, and approvals
of all Governmental Entities necessary for the lawful conduct
of its business (the "Subsidiary Permits"). The Subsidiary is
in compliance with the terms of the Subsidiary Permits, except
where the failure so to comply would not have a Material
Adverse Effect on the Subsidiary. Except as disclosed on
Schedules 4.13 and 4.19, the business of the Subsidiary is not
being conducted in violation of any law, ordinance, or
regulation of any Governmental Entity, except for possible
violations that individually or in the aggregate do not, and,
insofar as reasonably can be foreseen, in the future will not,
have a
Material Adverse Effect on the Subsidiary. Except as set forth
on Schedule 4.13 and 4.19, no investigation or review by any
Governmental Entity with respect to the Subsidiary is pending,
or, to the Knowledge of the Subsidiary, threatened, nor has any
Governmental Entity indicated an intention to conduct an
investigation or review.
Section 4.14 Vote Required. The affirmative vote of
in excess of 75% of the votes entitled to be cast by the
outstanding shares of the Company Common Stock pursuant to the
OBCA is the only vote of the holders of any class or series of
the Company's or the Subsidiary's capital stock necessary to
approve this Agreement and the transactions contemplated by
this Agreement.
Section 4.15 Tax Returns and Audits.
(a) For taxable periods ended on or
after December 31, 1991, each of the Company and the Subsidiary
has filed all Tax Returns that it was required to file
(specifically excluding the returns to be filed by Reptron
pursuant to Section 6.13), except where the failure to file would
not have a Material Adverse Effect. All such Tax Returns were
correct and complete in all material respects. All Taxes owed by
each of the Company and the Subsidiary as shown on such Tax
Returns have been paid and all other Taxes for taxable periods
ended on or after December 31, 1991 have been paid, except where
the failure to pay such other Taxes would not have a Material
Adverse Effect. Except as set forth on Schedule 4.15, neither
the Company nor the Subsidiary currently is the beneficiary of
any extension of time within which to file any Tax Return.
Except as set forth on Schedule 4.15, no claim has been made
since December 31, 1991 by an authority in a jurisdiction where
either of the Company or the Subsidiary does not file Tax Returns
that it is or may be subject to taxation by that jurisdiction.
There are no Security Interests on any of the assets of either
the Company or the Subsidiary that arose in connection with any
failure (or alleged failure) to pay any Tax. To the Knowledge of
the Company, for tax periods ended on or after December 31, 1988,
OECO has filed all Tax Returns that it was required to file,
except where the failure to file would not have a Material
Adverse Effect.
(b) For taxable periods ended on or
after December 31, 1991, each of the Company and the Subsidiary
has withheld and paid all Taxes required to have been withheld
and paid in connection with amounts paid or owing to any
employee, independent contractor, creditor, shareholder, or other
third party, except where the failure to so withhold and pay
would not have a Material Adverse Effect.
(c) To the Knowledge of the Company,
the Company and the Subsidiary do not expect any authority to
assess any additional Taxes with respect to any Tax Returns that
have been filed. There is no current dispute or claim concerning
any Tax Liability of the Company or the Subsidiary which was
claimed or raised by any authority in writing or in person by any
agent of such authority. Schedule 4.15 lists all federal, state,
local, and foreign income Tax Returns filed with respect to the
Company and the Subsidiary for taxable periods ended on or after
December 31, 1991, and indicates those Tax Returns that have been
audited. The Company has delivered to Reptron correct and
complete copies of all federal income Tax Returns, examination
reports, and statements of
deficiencies assessed against or agreed to by either of the
Company or the Subsidiary for taxable periods ended on or after
December 31, 1991.
(d) Neither the Company nor the
Subsidiary has waived any statute of limitations in respect of
Taxes or agreed to any extension of time with respect to a Tax
assessment or deficiency, except for any such waiver or extension
that has expired and except as disclosed on Schedule 4.15.
(e) Neither the Company nor the
Subsidiary has filed a consent under Section 341(f) of the Code
concerning collapsible corporations. Neither the Company nor the
Subsidiary has made any payments, is obligated to make any
payments, or is a party to any agreement that under certain
circumstances could obligate it to make any payments not
deductible under Section 280G of the Code, other than payments
described by counsel for the respective parties hereto in
writing. Neither the Company nor the Subsidiary has been a
United States real property holding corporation within the
meaning of Section 897(c)(2) of the Code during the applicable
period specified in Section 897(c)(1)(A)(ii) of the Code. Each
of the Company and the Subsidiary has disclosed on its federal
income Tax Returns all positions taken therein that could give
rise to a substantial understatement of federal income Tax within
the meaning of Section 6662 of the Code. Neither the Company nor
the Subsidiary is a party to any Tax allocation or sharing
agreement. Neither the Company nor the Subsidiary (A) has been a
member of an Affiliated Group filing a consolidated federal
income Tax Return (other than a group the common parent of which
was either OECO or the Company) or (B) except as set forth on
Schedule 4.15, has any Liability for the Taxes of any Person
(other than OECO, the Company and the Subsidiary) under United
States Treasury Regulation Section 1.1502-6 (or any similar
provision of state, local, or foreign law), as a transferee or
successor, by contract, or otherwise.
(f) The unpaid Taxes of the Company
and the Subsidiary (A) did not, as of December 31, 1997,
materially exceed the reserve for Tax Liability (rather than any
reserve for deferred Taxes established to reflect timing
differences between book and Tax income) set forth on the face of
the Subsidiary's Most Recent Balance Sheet (rather than in any
notes thereto) and (B) do not exceed that reserve as adjusted for
the passage of time through the Closing Date in accordance with
the past custom and practice of the Company and the Subsidiary in
filing their Tax Returns.
(g) Schedule 4.15 sets forth the
following information in accordance with the Tax Returns as filed
by OECO, the Company and the Subsidiary as to (A) the amount of
any unused operating loss, unused net capital loss, unused
investment, foreign or other credit, or excess charitable
contribution allocable to the Company or the Subsidiary; and (B)
the amount of any deferred gain or loss allocable to the Company
or the Subsidiary arising out of any deferred intercompany
transaction as that term is used in regulations pertaining to a
Controlled Group of Corporations filing a consolidated return.
(h) The Prior Transactions will not
result in taxable gain to the Company except as may be realized
in connection with the Distribution.
Section 4.16 Material Contracts. Schedule 4.16
lists the following contracts and other agreements to which the
Subsidiary is a party (each a "Material Contract") that remain
in full force and effect or may otherwise be enforced and which
are not otherwise disclosed in the Subsidiary Financial
Statements or the notes thereto or as otherwise agreed to by
counsel for the respective parties hereto in writing:
(a) any agreement (or group of related
agreements) for the lease of personal property to or from any
Person providing for lease payments in excess of $50,000 per
year;
(b) any agreement (or group of related
agreements) for the purchase or sale of raw materials,
commodities, supplies, products, or other personal property, or
for the furnishing or receipt of services, the performance of
which shall extend over a period of more than one year;
(c) any agreement concerning a
partnership or joint venture;
(d) any agreement (or group of related
agreements) under which it has created, incurred, assumed, or
guaranteed any indebtedness for borrowed money, or any
capitalized lease obligation under which it has imposed a
Security Interest on any of its assets, tangible or intangible;
(e) any agreement concerning non-
solicitation or noncompetition or agreements not to hire;
(f) any currently in effect profit
sharing, stock option, stock purchase, stock appreciation,
deferred compensation, severance, or other material plan or
arrangement for the benefit of any current or former directors,
officers, and employees;
(g) any collective bargaining
agreement;
(h) any agreement for the employment
of any individual on a full-time, part-time, consulting, or other
basis or providing severance benefits that is not terminable at
will;
(i) any agreement under which it has
advanced or loaned (or agreed to advance or loan) any amount in
excess of $5,000 to any of its directors, officers, and employees
outside the Ordinary Course of Business; or
(j) any contract of indemnity or
guarantee or agreement to hold harmless.
The Subsidiary has delivered to Reptron a correct and complete
copy of each written agreement listed on Schedule 4.16 (as
amended to date). With respect to each such agreement: (A) the
agreement is legal, valid, binding, enforceable, and in full
force and effect; (B) the agreement shall continue to be legal,
valid, binding, enforceable, and in full force and effect on
identical terms following the consummation of the Merger, and to
the Knowledge of the Subsidiary, no event has
occurred that with notice or lapse of time would constitute a
breach or default, or permit termination, modification, or
acceleration, under any such agreement; and (C) to the Knowledge
of the Subsidiary, no party has repudiated any provision of any
such agreement.
Section 4.17 Real Property and Leases. (a) Schedule
4.17 lists all parcels of real property owned or leased by the
Subsidiary. With respect to each parcel of owned real
property, the Subsidiary has good and marketable title to the
real property, free and clear of any mortgage, security
interest, easement, covenant, or other restriction, except
those of record and those set forth on Schedule 4.17. With
respect to each parcel of leased real property, the lease or
sublease is legal, valid, binding, and enforceable, and in full
force and effect. To the Knowledge of the Subsidiary, all
facilities owned or leased have received all approvals of
applicable Governmental Entities (including licenses and
permits) required in connection with the operation thereof.
(b) The Subsidiary has delivered to
Reptron a true and complete copy of every lease under which the
Subsidiary is a tenant or subtenant (and for each sublease, true
and complete copies of all leases to which the sublease is
subject), and each such lease is described on Schedule 4.17 of
this Agreement.
(c) To the Knowledge of the
Subsidiary, each lease is in full force and effect and has not
been assigned, modified, supplemented, or amended except as
described on Schedule 4.17 of this Agreement, and neither the
Subsidiary, nor, to the Knowledge of the Subsidiary, the landlord
or sublandlord under any lease is in default under any of the
leases, and no circumstances or state of facts presently exists
that, with the giving of notice or passage of time, or both,
would permit the landlord or sublandlord under any lease to
terminate any such lease.
(d) Each lease sets forth the entire
agreement between the landlord or sublandlord and the Subsidiary,
and there are no amendments, oral or written, except as set forth
on Schedule 4.17 of this Agreement, and no landlord or
sublandlord has the presently exercisable right to cancel or
terminate any lease.
(e) There are no outstanding or
unsatisfied obligations of the Subsidiary to perform any
leasehold improvement or other work or to reimburse or pay for
any such work under any of the leases.
(f) There are no outstanding or
unsatisfied obligations of the Subsidiary for any leasing
commissions under any of the leases.
(g) The Subsidiary has (without
exception) a good and insurable leasehold estate to all Real
Property that it leases, free and clear of all Security Interests
except those of record and those set forth on Schedule 4.17.
Section 4.18 Tangible Personal Property.
(a) Except as set forth in the
Subsidiary Financial Statements and Schedule 4.18 to this
Agreement, the Subsidiary is the sole lawful and beneficial owner
of its tangible personal property (other than tangible personal
property that the Subsidiary has the right to use in its business
pursuant to valid and enforceable contracts), free and clear of
all Security Interests, and it has good and marketable title to
all such property. All of such tangible personal property is in
good and serviceable condition, with such exceptions as arose in
the Ordinary Course of Business and could not reasonably be
expected to have a Material Adverse Effect on the Subsidiary.
(b) The depreciation schedule for the
Subsidiary, setting forth all material tangible personal property
existing on the date of this Agreement, has previously been
delivered to Reptron and is true and correct in all respects.
(c) Except as set forth on Schedule
4.18 of this Agreement, the Subsidiary has not removed or
permitted the removal of any tangible personal property from its
business premises since the Most Recent Financial Statement,
except in the Ordinary Course of Business.
Section 4.19 Environmental and Employee Safety
Matters.
(a) Except as set forth on Schedule
4.19 of this Agreement, the Subsidiary, and its predecessors and
Affiliates, other than OECO, has, to its Knowledge, after due
inquiry, complied with all Environmental, Health, and Safety
Laws, and no action, suit, proceedings, hearing, investigation,
charge, complaint, claim, demand, or notice has been filed or
commenced against any of them alleging any failure so to comply.
Without limiting the generality of the preceding sentence, the
Subsidiary and its respective predecessors and Affiliates has, to
its Knowledge, after due inquiry, obtained and been in compliance
with all of the terms and conditions of all permits, licenses,
and other authorizations that are required under, and has
complied with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules,
and timetables that are contained in, all Environmental, Health,
and Safety Laws.
(b) Except as set forth on Schedule
4.19 of this Agreement, the Subsidiary does not have, to its
Knowledge, after due inquiry, any Liability (and none of the
Subsidiary, or its respective predecessors and Affiliates has, to
its Knowledge, after due inquiry, handled or disposed of any
substance, arranged for the disposal of any substance, exposed
any employee or other individual to any substance or condition,
or owned or operated any property or facility in any manner that
could form the basis for any present or future action, suit,
proceeding, hearing, investigation, charge, complaint, claim, or
demand against the Subsidiary giving rise to any Liability) for
damage to any site, location, or body of water (surface or
subsurface), for any illness of or, personal injury to any
employee or other individual, or for any reason under any
Environmental, Health, and Safety Law.
(c) Except as set forth on Schedule
4.19 of this Agreement, all properties and equipment used in the
business of the Subsidiary, and its predecessors and Affiliates
have, to the Knowledge of the Subsidiary, after due inquiry, been
free of underground storage tanks, underground injection xxxxx,
radioactive materials, asbestos, PCB's, methylene chloride,
trichloroethylene, trans-dichloroethylene, dioxins,
dibenzofurans, and Extremely Hazardous Substances.
(d) Except as set forth on Schedule
4.19 of this Agreement, there are no environmental reports,
assessments, audits or studies relating to the Subsidiary or to
any property currently or formerly owned, operated or leased by
the Subsidiary of which the Subsidiary has Knowledge, after due
inquiry.
Section 4.20 Intellectual Property.
(a) The Subsidiary owns or has the
right to use pursuant to license, sublicense, agreement, or
permission, all Intellectual Property necessary for or used in
the operation of the businesses of the Subsidiary as presently
conducted and as presently proposed to be conducted. Each item
of Intellectual Property owned or used by any of the Subsidiary
immediately prior to the Effective Time shall remain owned or
available for use by the Surviving Corporation and the Subsidiary
on identical terms and conditions as of the Effective Time. The
Subsidiary has taken all necessary and desirable action to
maintain and protect each item of Intellectual Property that the
Subsidiary owns or uses.
(b) Except as set forth on Schedule
4.20(d) of this Agreement, the Subsidiary has not interfered
with, infringed upon, misappropriated, or otherwise come into
conflict with any Intellectual Property rights of third parties,
and the Subsidiary has never received any charge, complaint,
claim, demand, or notice alleging any such interference,
infringement, misappropriation, or violation (including any claim
that the Subsidiary must license or refrain from using any
Intellectual Property rights of any third party). To the
Knowledge of the Subsidiary, no third party has interfered with,
infringed upon, misappropriated, or otherwise come into conflict
with any Intellectual Property rights of the Subsidiary.
(c) Schedule 4.20(a) of this Agreement
identifies each trademark, copyright and patent registration that
has been issued to the Subsidiary with respect to any of its
Intellectual Property, identifies each pending trademark,
copyright or patent application or application for registration
that the Subsidiary has made with respect to any of its
Intellectual Property. Schedule 4.20(b) identifies each trade
name, trademark and service xxxx (whether or not registered),
used by the Subsidiary. Schedule 4.20(c) identifies each
license, agreement, or other permission that the Subsidiary has
granted to any third party with respect to any of its
Intellectual Property (together with any exceptions). The
Subsidiary has delivered to Reptron correct and complete copies
of all such trademarks, copyrights, trade names, service marks,
patents, registrations,
applications, licenses, agreements, and permissions (as amended
to date) and has made available to Reptron correct and complete
copies of all other written documentation evidencing ownership
and prosecution (if applicable) of each such item.
(d) As to each item of Intellectual
Property required to be identified in Schedule 4.20:
(i) the Subsidiary possesses
all right, title, and interest in and to the item of Intellectual
Property, free and clear of any Security Interest, or other
restriction other than a license;
(ii) other than those items of
Intellectual Property required to be identified in
Schedule 4.20(c), the Subsidiary possesses all right, title, and
interest in and to the item, free and clear of any license;
(iii) the item of Intellectual
Property is not subject to any outstanding injunction, judgment,
order, decree, ruling, or charge;
(iv) no action, suit,
proceeding, hearing, investigation, charge, complaint, claim, or
demand is pending or, to the Knowledge of the Subsidiary, is
threatened that challenges the legality, validity,
enforceability, use, or ownership of the item of Intellectual
Property; and
(v) the Subsidiary has never
agreed to indemnify any Person for or against any interference,
infringement, misappropriation, or other conflict with respect to
the item of Intellectual Property.
(e) Schedule 4.20(e) identifies each
item of Intellectual Property that any third party owns and that
the Subsidiary uses pursuant to license, sublicense, agreement,
or permission. The Subsidiary has delivered to Reptron correct
and complete copies of all such licenses, sublicenses,
agreements, and permissions (as amended to date). With respect
to each item of Intellectual Property required to be identified
in Schedule 4.20:
(i) the license, sublicense,
agreement, or permission is in full force and effect;
(ii) the license, sublicense,
agreement, or permission shall continue to be legal, valid,
binding, enforceable, and in full force and effect on identical
terms following the consummation of the Merger;
(iii) the Subsidiary, as party
to the license, sublicense, agreement, or permission is not in
breach or default, and no event has occurred that, with notice of
default, would permit termination, modification, or acceleration
thereunder;
(iv) the Subsidiary, as party
to the license, sublicense,
agreement, or permission, has not repudiated any provision
thereof;
(v) with respect to each
sublicense, the representations and warranties set forth in
clauses (i) through (iv) above are true and correct with respect
to the underlying license;
(vi) to the Knowledge of the
Subsidiary, the underlying item of Intellectual Property is not
subject to any outstanding injunction, judgment, order, decree,
ruling, or charge;
(vii) to the Knowledge of the
Subsidiary, no action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand is pending or, to the
Knowledge of the Subsidiary, is threatened that challenges the
legality, validity, or enforceability of the underlying item of
Intellectual Property; and
(viii) the Subsidiary has not
granted any sublicense or similar right with respect to the
license, sublicense, agreement, or permission.
(f) the Subsidiary shall not, to its
Knowledge, interfere with, infringe upon, misappropriate, or
otherwise come into conflict with, any Intellectual Property
rights of third parties as a result of the continued operation of
its businesses as presently conducted and as presently proposed
to be conducted.
Section 4.21 Insurance Policies. Schedule 4.21 of
this Agreement sets forth a complete and correct list and
description of the subject matter of all insurance policies
which insure the Subsidiary with respect to its business,
identifying the type of insurance, and true and complete copies
of such policies have been delivered to Reptron. The
Subsidiary has complied with all the material provisions of
such policies, and the policies are in full force and effect.
Such policies provide coverage in amounts and covering such
risks as are adequate in accordance with customary industry
practice to protect the assets and the business of the
Subsidiary.
Section 4.22 Certain Business Practices. The
Subsidiary has not made, or to the Subsidiary's Knowledge, no
officers, directors, employees, consultants or agents or
representatives (collectively, the "Personnel") of the
Subsidiary (in their capacities as such) has made, directly or
indirectly, with respect to the business of the Subsidiary, any
bribes, kickbacks, or other illegal payments or illegal
political contributions, illegal payments from corporate funds
to governmental officials in their individual capacities, or
illegal payments from corporate funds to obtain or retain
business either within the United States or abroad.
Additionally, except as set forth on Schedule 4.22 of this
Agreement, neither the Subsidiary, nor, to the Subsidiary's
Knowledge, any Personnel, know of any act or omission of the
Subsidiary or any Personnel that would constitute employment
discrimination or other discrimination under applicable law or
provide the basis for a Material employment practices claim.
Section 4.23 Brokers' Fees. Except as set forth on
Schedule 4.23 or as disclosed on Exhibit A, neither the
Subsidiary nor any of its subsidiaries or affiliates has any
Liability or obligation to pay any fees,
commissions, or other compensation to any broker, finder, or
agent with respect to the transactions contemplated by this
Agreement.
Section 4.24 No Misrepresentations. None of the
representations and warranties of the Company or the Subsidiary
set forth in this Agreement or in the attached Schedules,
notwithstanding any investigation made by Reptron, contains or
will contain any untrue statement of a material fact, or omits
or will omit the statement of any material fact necessary to
render the same not misleading, either at the date of this
Agreement or at the Closing Date.
Section 4.25 Volume Adjustment Agreements. Except as
set forth on Schedule 4.25, the Subsidiary is not a party to any
agreement under which a customer of the Subsidiary has the right
to claim a credit to price, or a vendor has a right to claim an
increase in price, for product shipped as a consequence of
attaining a designated volume of sales, or failing to attain a
designated volume of purchases, as the case may be.
Section 4.26 Accounts Receivable. Except as set forth
on Schedule 4.26, the accounts receivable of the Subsidiary are
not subject to a right of set off and no account debtor of the
Subsidiary has asserted a contractual right for non-payment of
any open account receivable of the Subsidiary.
ARTICLE V
Representations and Warranties
of Reptron and Huron
Reptron and Huron represent and warrant to the Company
as follows:
Section 5.1 Organization. Each of Reptron and
Huron is a corporation duly organized, validly existing, and
has active status under the laws of the State of Florida.
Section 5.2 Authority. Reptron and Huron have the
requisite corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated
by this Agreement. The execution, delivery, and performance of
this Agreement, and the consummation of the Merger and the
other transactions contemplated by this Agreement, have been
duly authorized by all necessary corporate action on the part
of Reptron and Huron and no other corporate proceeding on the
part of Reptron or Huron is necessary to authorize this
Agreement or to consummate the transactions so contemplated.
This Agreement has been duly executed and delivered by Reptron
and Huron, as the case may be, and, assuming this Agreement
constitutes a valid and binding obligation of the Company,
constitutes a valid and binding obligation of each of Reptron
and Huron, as the case may be, enforceable against them in
accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, or similar laws affecting the enforcement of
creditors' rights generally or general principles of equity.
Section 5.3. Consents and Approvals; No Violations.
Except for filings, permits, authorizations, consents, and
approvals as may be
required under, and other applicable requirements of, the HSR
Act and the FBCA, neither the execution, delivery, or
performance of this Agreement by Reptron and Huron, nor the
consummation by Reptron and Huron of the transactions
contemplated hereby, nor compliance by Reptron and Huron with
any of the provisions of this Agreement will (a) conflict with
or result in any breach of any provision of the respective
articles of incorporation or bylaws of Reptron and Huron,
(b) require any filing with, or permit, authorization, consent,
or approval of, any Governmental Entity (except where the
failure to obtain such permits, authorizations, consents, or
approvals or to make such filings would not have a Material
Adverse Effect on Reptron), (c) result in a violation or breach
of, or constitute (with or without due notice or lapse of time
or both) a default (or give rise to any right of termination,
cancellation, or acceleration) under, any of the terms,
conditions, or provisions of any note, bond, mortgage,
indenture, license, lease, contract, agreement, or other
instrument or obligation to which Reptron is a party or by
which it or any of its properties or assets may be bound, or
(d) violate any order, writ, injunction, decree, statute, rule,
or regulation applicable to Reptron or Huron or any of their
properties or assets, except in the case of (c) and (d) for
violations, breaches, or defaults that would not, individually
or in the aggregate, have a Material Adverse Effect on Reptron.
Section 5.4 Financing. Reptron has sufficient cash
reserves available to complete the transactions contemplated by
this Agreement.
Section 5.5 No Misrepresentations. None of the
representations and warranties of Reptron set forth in this
Agreement or in the attached Schedules contain or will contain
any untrue statement of a material fact, or omit or will omit
the statement of any material fact necessary to render the same
not misleading, either at the date of this Agreement or at the
Closing Date.
Section 5.6 Brokers' Fees. Except as set forth on
Schedule 5.6 or as disclosed on Exhibit A, neither Reptron nor
Huron has any Liability or obligation to pay any fees,
commissions, or other compensation to any broker, finder, or
agent with respect to the transactions contemplated by this
Agreement.
ARTICLE VI
Covenants
Section 6.1 Best Efforts; Further Assurances;
Cooperation. Subject to the other provisions in this
Agreement, the parties to this Agreement shall each use all
reasonable efforts to perform their respective obligations
under this Agreement and to take, or cause to be taken or do,
or cause to be done, all things necessary, proper or advisable
under applicable law to satisfy all conditions to the
obligations of the parties under this Agreement, including
those contemplated by Section 6.9, and to cause the Merger and
the other transactions contemplated by this Agreement to be
carried out promptly in accordance with the terms of this
Agreement, and shall cooperate fully with each other and their
respective officers, directors, employees, agents, counsel,
accountants and other designees in connection with any steps
required to be taken as part of their respective obligations
under this Agreement. Provided the applicable
