Exhibit 10.95
EXECUTION COPY
TRANSACTION AGREEMENT
DATED AS OCTOBER 21, 2003
BY AND AMONG
L-3 COMMUNICATIONS CORPORATION,
RAAH I, LLC,
AND
VERTEX AEROSPACE LLC
TABLE OF CONTENTS
ARTICLE I DEFINITIONS............................................................................................1
Section 1.1 Definitions.................................................................................1
ARTICLE II PURCHASE AND SALE.....................................................................................1
Section 2.1 Agreement to Purchase and Sell..............................................................1
Section 2.2 Purchase Price..............................................................................1
Section 2.3 Payment of Purchase Price...................................................................2
Section 2.4 Closing.....................................................................................2
Section 2.5 Adjustment of Purchase Price................................................................2
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER AND THE COMPANY.............................................4
Section 3.1 Representations and Warranties of Seller and the Company....................................4
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER...........................................................4
Section 4.1 Representations and Warranties of Purchaser.................................................4
ARTICLE V COVENANTS AND AGREEMENTS OF SELLER AND THE COMPANY.....................................................4
Section 5.1 Conduct of Business by the Company..........................................................4
Section 5.2 Inspection and Access to Information........................................................7
Section 5.3 No Solicitation of Transactions ............................................................7
Section 5.4 Notices of Certain Events...................................................................7
Section 5.5 Supplements to Schedules....................................................................8
Section 5.6 Insurance...................................................................................8
Section 5.7 Novation....................................................................................8
Section 5.8 Accounts Payable............................................................................8
Section 5.9 Dealings with Affiliates....................................................................8
Section 5.10 No Solicitation of Employees................................................................8
Section 5.11 Material Leases.............................................................................8
ARTICLE VI COVENANTS AND AGREEMENTS OF PURCHASER.................................................................9
Section 6.1 Confidentiality. ...........................................................................9
Section 6.2 Employees...................................................................................9
ARTICLE VII COVENANTS OF THE PARTIES.............................................................................9
Section 7.1 Further Assurances..........................................................................9
Section 7.2 Certain Filings; Consents..................................................................10
Section 7.3 Antitrust Laws.............................................................................10
Section 7.4 Public Announcements.......................................................................10
ARTICLE VIII TAX MATTERS........................................................................................11
Section 8.1 Certain Taxes..............................................................................11
Section 8.2 Allocation of Transaction Consideration....................................................11
ARTICLE IX CONDITIONS TO CLOSING................................................................................11
Section 9.1 Conditions to Each Party's Obligations.....................................................11
Section 9.2 Conditions to Obligations of Purchaser.....................................................12
Section 9.3 Conditions to Obligations of Seller........................................................13
ARTICLE X TERMINATION...........................................................................................14
Section 10.1 Termination................................................................................14
Section 10.2 Effect of Termination......................................................................14
ARTICLE XI NON-SURVIVAL.........................................................................................15
Section 11.1 Non-Survival...............................................................................15
ARTICLE XII MISCELLANEOUS PROVISIONS............................................................................15
Section 12.1 Notices....................................................................................15
Section 12.2 Schedules and Exhibits.....................................................................16
Section 12.3 Assignment; Successors in Interest.........................................................16
Section 12.4 Number; Gender.............................................................................16
Section 12.5 Interpretation.............................................................................16
Section 12.6 Amendment; Waiver..........................................................................17
Section 12.7 Controlling Law............................................................................17
Section 12.8 Consent to Jurisdiction, Etc...............................................................17
Section 12.9 Waiver of Jury Trial.......................................................................17
Section 12.10 Severability...............................................................................18
Section 12.11 Counterparts; Effectiveness................................................................18
Section 12.12 Enforcement of Certain Rights..............................................................18
Section 12.13 Waiver.....................................................................................18
Section 12.14 Integration................................................................................18
Section 12.15 Cooperation Following the Closing..........................................................19
Section 12.16 Transaction Costs..........................................................................19
Section 12.17 Post-Closing Confidentiality...............................................................19
Section 12.18 Government Audit Assistance................................................................18
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LIST OF EXHIBITS
Exhibit A Defined Terms
Exhibit B Representations and Warranties of Seller and the Company
Exhibit C Representations and Warranties of Purchaser
LIST OF ATTACHMENTS
Attachment I Legal Opinion of Counsel to Seller
Attachment II Legal Opinion of Counsel to Purchaser
Attachment III Opening Balance Sheet
LIST OF SCHEDULES
Schedule B.1 Organization
Schedule B.3 Subsidiaries
Schedule B.4 Membership Interests
Schedule B.5 Absence of Restrictions and Conflicts
Schedule B.6(a) Owned Real Property
Schedule B.6(b) Leased Real Property
Schedule B.7 Title to Personal Property
Schedule B.9 No Undisclosed Liabilities
Schedule B.10 Absence of Certain Changes
Schedule B.11 Legal Proceedings
Schedule B.12 Compliance with Law
Schedule B.13(a) Contracts
Schedule B.13(d) Government Contracts
Schedule B.13(e) Bids
Schedule B.13(g) Audits
Schedule B.13(h) Investigations and Disclosures
Schedule B.13(i) Claims relating to Government Contracts
Schedule B.13(j) Suspensions and Disbarments
Schedule B.13(k) Teaming Agreements
Schedule B.13(m) Sales, Commission and Similar Agreements
Schedule B.13(n) Loss Contracts
Schedule B.14(a) Tax Returns; Taxes
Schedule B.15 Officers and Consultants
Schedule B.16 Employee Plans and Benefit Arrangements
Schedule B.17 Labor Relations
Schedule B.18 Insurance Policies
Schedule B.19 Environmental, Health and Safety Matters
Schedule B.20(a) Intellectual Property
Schedule B.20(b) Software
Schedule B.20(d) Infringements
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Schedule B.21 Transactions with Affiliates
Schedule B.22 10 Largest Suppliers, Sole Source Suppliers and 10 Largest Customers
Schedule B.25 Warranties
Schedule B.26 Receivables
Schedule B.27 Order Backlog
Schedule B.28 Inventories
Schedule B.31 Organizational Conflicts of Interest
Schedule B.33 Other Indebtedness
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TRANSACTION AGREEMENT
This TRANSACTION AGREEMENT (together with the Exhibits, Schedules and
Attachments hereto, this "Agreement"), dated as of October 21, 2003, is made and
entered into by and among L-3 COMMUNICATIONS CORPORATION, a Delaware corporation
("Purchaser"), RAAH I, LLC, a Delaware limited liability company ("Seller"), and
VERTEX AEROSPACE LLC, a Delaware limited liability company (the "Company").
Purchaser, Seller and the Company are sometimes individually referred to herein
as a "Party" and collectively as the "Parties."
W I T N E S S E T H:
WHEREAS, Seller owns all of the membership interests of the Company;
WHEREAS, the Parties desire to enter into this Agreement, and in
connection therewith, Seller proposes to sell to Purchaser, and Purchaser
proposes to purchase from Seller (the "Acquisition"), all of the membership
interests of the Company; and
WHEREAS, in connection with the Acquisition the Parties desire to make
certain representations and warranties to each other and to enter into certain
agreements in connection therewith;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, the Parties agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Capitalized terms used in this Agreement shall
have the meanings specified in Exhibit A or elsewhere in this Agreement.
ARTICLE II
PURCHASE AND SALE
Section 2.1 Agreement to Purchase and Sell. Subject to the terms and
conditions of this Agreement, at the Closing, Seller will sell and transfer to
Purchaser, and Purchaser will purchase and acquire from Seller, all of the
membership interests of the Company, free and clear of all Encumbrances.
Section 2.2 Purchase Price. Subject to adjustment in accordance with
Section 2.5, the aggregate amount to be paid for all of the membership interests
of the Company shall
be $650,000,000 (the "Purchase Price").
Section 2.3 Payment of Purchase Price.
(a) On the Closing Date, Purchaser shall pay to Seller the
Purchase Price.
(b) The payment required under this Section 2.3 shall be made in
cash by wire transfer of immediately available funds to such bank
accounts as shall be designated in writing by Seller (including such
bank accounts specified in the pay-off letters referred to in Section
9.2(e)(viii)) at least three Business Days prior to the applicable
payment date.
Section 2.4 Closing. The closing (the "Closing") of the Contemplated
Transactions shall take place at the offices of Winston & Xxxxxx LLP, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on December 1, 2003; provided, however, that
if all of the conditions to Closing set forth in Article IX have not been
satisfied (or waived by the party entitled to waive the condition) as of that
date, the Closing shall take place on the second Business Day following the
satisfaction or waiver (by the party entitled to waive the condition) of all
conditions to the Closing set forth in Article IX, or at such other time and
place as the parties to this Agreement may agree. The Closing shall be deemed to
occur at 11:59 p.m. New York time on the Closing Date.
Section 2.5 Adjustment of Purchase Price.
(a) Promptly following the Closing Date, but in no event later
than 90 days after the Closing Date, Purchaser shall, at its expense
and to the extent requested with the assistance of Seller, prepare and
submit to Seller a statement setting forth, in reasonable detail, the
consolidated Net Assets of the Company and the Company Subsidiaries as
of the close of business on the Closing Date (the "Proposed Final Net
Asset Amount"). In the event Seller disputes the correctness of the
Proposed Final Net Asset Amount, Seller shall notify Purchaser in
writing of its objections within 30 days after receipt of Purchaser's
calculation of the Proposed Final Net Asset Amount and shall set forth,
in writing and in reasonable detail, each of the reasons for Seller's
objections. If Seller fails to deliver such notice of objections within
such time, Seller shall be deemed to have accepted Purchaser's
calculation. Purchaser and Seller shall endeavor in good faith to
resolve any disputed matters within 20 days after Purchaser's receipt
of Seller's notice of objections. If Purchaser and Seller are unable to
resolve the disputed matters, Purchaser and Seller shall select a
nationally known independent accounting firm (which firm shall not be
the then regular auditors of Purchaser, Seller or the Company) to
resolve the matters in dispute (in a manner consistent with Section
2.5(b)), including the appropriate amount of interest, if any, due on
the disputed amounts (determined in accordance with Section 2.5(c) or
Section 2.5(d), as the case may be), and the determination of such firm
in respect of the correctness of each matter remaining in dispute shall
be conclusive and binding on Purchaser and Seller. The consolidated Net
Assets of the Company and the Company Subsidiaries as of the close of
business on the Closing Date, as finally determined pursuant to this
Section 2.5(a) (whether by failure of Seller to deliver notice
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of objection, by agreement of Purchaser and Seller or by determination
of the independent accountants selected as set forth above), is
referred to herein as the "Final Net Asset Amount."
(b) The Proposed Final Net Asset Amount and the Final Net Asset
Amount shall be determined in accordance with GAAP and in a manner
consistent with the accounting principles, policies, practices and
methods utilized in the preparation of the Opening Balance Sheet, as
disclosed in the notes to the Opening Balance Sheet.
(c) If the Final Net Asset Amount is greater than $141,606,454,
the excess shall be paid to Seller by Purchaser by wire transfer in
immediately available funds to an account of Seller designated in
writing within two Business Days of the date on which the Final Net
Asset Amount is finally determined, together with simple interest
thereon during the period commencing on the Closing Date and ending on
the date of payment (the "Interest Period") at a rate equal to LIBOR
during such Interest Period. Any payment due Seller under this Section
2.5(c) shall be made on or before the fifth Business Day following the
date on which the Final Net Asset Amount is finally determined.
(d) If the Final Net Asset Amount is less than $141,606,454, the
deficiency shall be paid to Purchaser by Seller in immediately
available funds to an account of Purchaser designated in writing within
two Business Days of the date on which the Final Net Asset Amount is
finally determined, together with simple interest thereon during the
Interest Period at a rate equal to LIBOR during such Interest Period.
Any payment due Purchaser under this Section 2.5(d) shall be made on or
before the fifth Business Day following the date on which the Final Net
Asset Amount is finally determined.
(e) Subject to any applicable privileges (including, without
limitation, the attorney-client privilege and the work product
privilege), Purchaser shall make available to Seller and, upon request,
to the independent accountants selected pursuant to Section 2.5(a), the
books, records, documents and work papers underlying the preparation of
the statement of the Proposed Final Net Asset Amount. Subject to any
applicable privileges (including without limitation, the
attorney-client privilege and work product privilege), Seller shall
make available to Purchaser and, upon request, to the independent
accountants selected pursuant to Section 2.5(a), the books, records,
documents and work papers created or prepared by or for Seller in
connection with the review of the Proposed Final Net Asset Amount.
(f) The fees and expenses, if any, of the accounting firm selected
to resolve any disputes between Purchaser and Seller in accordance with
Section 2.5(a) shall be paid one-half by Purchaser and one-half by
Seller.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER AND THE COMPANY
Section 3.1 Representations and Warranties of Seller and the Company. Seller and
the Company represent and warrant to Purchaser as set forth in Exhibit B.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Section 4.1 Representations and Warranties of Purchaser. Purchaser
represents and warrants to Seller and the Company as set forth in Exhibit C.
ARTICLE V
COVENANTS AND AGREEMENTS OF SELLER AND THE COMPANY
Section 5.1 Conduct of Business by the Company.
(a) From the date hereof until the Closing Date, the Company shall
and shall cause the Company Subsidiaries to, and Seller shall cause the
Company and the Company Subsidiaries to, except as expressly permitted
by this Agreement and except as otherwise consented to in writing by
Purchaser:
(i) conduct its businesses in the ordinary course on a basis
consistent with past practice;
(ii) use its commercially reasonably efforts to preserve
intact the goodwill and business organization of the Company and
each Company Subsidiary, keep the officers and employees of the
Company and each Company Subsidiary available to Purchaser and
preserve the relationships and goodwill of the Company and each
Company Subsidiary with customers, distributors, suppliers,
employees and others having business relations with the Company or
any Company Subsidiary;
(iii) comply, in all material respects, with all Applicable
Laws;
(iv) duly and timely file or cause to be filed all reports
and returns required to be filed with any Governmental Entity and
promptly pay or cause to be paid when due all Taxes, assessments
and governmental charges, including interest and penalties levied
or assessed, unless (A) diligently contested in good faith by
appropriate proceedings and (B) an appropriate and adequate
reserve is maintained with respect thereto and such reserve is
included in the calculation of the Final Net Asset Amount;
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(v) not consent to the admission or withdrawal of any member
of the Company or any Company Subsidiary or grant any right,
option or other commitment with respect to interests in the
Company or any Company Subsidiary;
(vi) not dispose of or permit to lapse any rights to the use
of any patent, trademark, trade name, service xxxx, license or
copyright of the Company or any Company Subsidiary, including,
without limitation, any of the Intellectual Property, or dispose
of or disclose to any Person, any trade secret, formula, process,
technology or know-how of the Company or any Company Subsidiary
not heretofore a matter of public knowledge;
(vii) (1) except in the ordinary course of business
consistent with past practice, not (A) sell or otherwise dispose
of any assets except to customers of the Business, (B) create,
incur or assume any Indebtedness, (C) grant, create, incur or
suffer to exist any Encumbrances on the real or personal
properties of the Company or any Company Subsidiary which did not
exist on the date hereof other than Permitted Encumbrances, (D)
incur any liability or obligation (absolute, accrued or
contingent), (E) write-off any guaranteed checks, notes or
accounts receivable or (F) cancel any debt or waive any claims or
rights; or (2) make any commitment for any capital expenditure to
be made on or after the Closing Date in excess of $250,000 in the
case of any single expenditure or $1,500,000 in the case of all
capital expenditures;
(viii) not increase, other than in the ordinary course of
business consistent with past practice, the base compensation of,
enter into or amend any new bonus or incentive agreement or
arrangement with, or enter into or amend any severance, change of
control or similar agreement or arrangement with, any employees,
directors, managers, consultants or agents of the Company or any
Company Subsidiary; provided, however, that entering into any
severance, change of control or similar agreement or arrangement
that is the sole obligation of Seller, and not the obligation of
the Company or any Company Subsidiary, shall not require the
consent of Purchaser;
(ix) not increase, other than in the ordinary course of
business consistent with past practice, the benefits provided
under any Employee Plans or Benefit Arrangements or establish,
adopt, enter into or, except as required by Applicable Law,
terminate or amend any Employee Plans or Benefit Arrangements or
promise or commit to undertake to do so in the future;
(x) not pay, discharge, settle or satisfy any claim,
liability or obligation (absolute, contingent or otherwise) other
than the payment, discharge or satisfaction in the ordinary course
of business consistent with past practice of claims, liabilities
and obligations reflected or reserved against in the Opening
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Balance Sheet, or incurred in the ordinary course of business
consistent with past practice;
(xi) maintain in full force and effect and in the same
amounts policies of insurance comparable in amount and scope of
coverage to that maintained as of the date of this Agreement by or
on behalf of the Company and each Company Subsidiary;
(xii) continue to maintain its books and records in
accordance with GAAP consistently applied, and on a basis
consistent with the Company's past practice;
(xiii) not (A) enter into any Contract which is expected to
result in a loss; or (B) enter into any Contract (or group of
related Contracts with the same Person or such Person's
Affiliates) involving payments to be made or received by or to
Company in excess of $10,000,000 per annum other than Contracts
relating to Bids set forth on Schedule B.13(e) on substantially
the same terms and conditions as the Bids;
(xiv) not make, enter into, amend or terminate any bid or
proposal (or series of related bids or proposals) which if
accepted would result in a Contract, nor make, enter into, amend
or terminate any customer option (or series of related customer
options), relating to a Contract that, in any case, (A) involves
an amount in excess of $10,000,000, or (B) is expected to result
in a loss;
(xv) not declare, set aside or pay any non-cash dividends on
or make any other non-cash distributions (whether in stock, equity
securities or property) in respect of any membership interests or
other equity securities of the Company, nor split, subdivide,
combine or reclassify any membership interests or other equity
securities of the Company, nor issue or authorize the issuance of
any other securities in respect of, in lieu of or in substitution
for any membership interests or other equity securities of the
Company;
(xvi) not make or rescind any material express or deemed
election relating to Taxes of the Company or any Company
Subsidiary, other than Income Taxes, nor settle or compromise any
material claim, action, suit, litigation, proceeding, arbitration,
investigation, audit or controversy relating to Taxes;
notwithstanding the foregoing, no election will be made by or on
behalf of the Company or any Company Subsidiary to be taxed as a
corporation for purposes of any Income Tax;
(xvii) not release, settle or compromise any claim, action,
suit, litigation, proceeding, arbitration, investigation or
controversy involving any current or former officer, director,
stockholder, consultant or employee Company; or
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(xviii) not agree in writing or otherwise to take any of the
actions described in clauses (i) through (xvii) (inclusive).
(b) In connection with the continued operation of the Business
between the date hereof and the Closing Date, Seller and the Company
will confer in good faith on a regular and frequent basis with
Purchaser regarding operational matters and the general status of
ongoing operations of the Company and each Company Subsidiary.
(c) Except as otherwise expressly permitted by this Agreement,
between the date of this Agreement and the Closing Date, Seller and the
Company will not, and will cause each Company Subsidiary not to,
without the prior consent of Purchaser, take any affirmative action, or
fail to take any reasonable action within their or its control, as a
result of which any of the changes or events listed in Section B.10 of
Exhibit B is likely to occur.
Section 5.2 Inspection and Access to Information. From the date hereof
to the Closing Date or until this Agreement is terminated as provided in Article
X, the Company shall and shall cause each of the Company Subsidiaries to, and
Seller shall cause the Company and each of the Company Subsidiaries and
Representatives to, provide Purchaser and its accountants, counsel, advisors,
employee benefits and environmental consultants and other authorized
Representatives full access, during reasonable hours and under reasonable
circumstances, to any and all of its premises, employees (including executive
officers), properties, contracts, commitments, books, records and other
information (including Tax Returns filed and those in preparation), promptly
upon request therefor, any and all financial, technical and operating data and
other information pertaining to the Company, the Company Subsidiaries and the
Business, and otherwise fully cooperate with the conduct of due diligence by
Purchaser and its Representatives.
Section 5.3 No Solicitation of Transactions The Company and Seller will
not, and Seller shall cause the Company and the Company Subsidiaries not to,
directly or indirectly, through any officer, member or agent of any of them or
otherwise, initiate, solicit or encourage (including by way of furnishing
non-public information or assistance), or enter into negotiations of any type,
directly or indirectly, or enter into a confidentiality agreement, letter of
intent or purchase agreement, merger agreement or other similar agreement with
any Person other than Purchaser with respect to the purchase or sale of any
membership interests of the Company or any Company Subsidiary, or a merger,
consolidation, business combination, sale of all or any substantial portion of
the assets of the Company or any Company Subsidiary, or the liquidation or
similar extraordinary transaction with respect to the Company or any Company
Subsidiary.
Section 5.4 Notices of Certain Events. Promptly after any of Seller,
the Company or any Company Subsidiary obtains knowledge of the following, Seller
shall notify Purchaser in writing of:
(a) any actions, suits, claims, investigations or proceedings
commenced or, to its knowledge, threatened against, relating to or
involving or otherwise affecting the Company or any Company Subsidiary
(i) that, had they been commenced or threatened
7
prior to the date of this Agreement, would have been required to have
been disclosed in order to make the representations and warranties in
Exhibit B true and complete, or (ii) that relate to the consummation of
the Contemplated Transactions; and
(b) any fact or circumstance which would make any representation
or warranty in Exhibit B untrue or inaccurate in any material respect
as of the Closing Date or as of the date of this Agreement.
Section 5.5 Supplements to Schedules. From time to time up to the
Closing Date, Seller will promptly (a) supplement or amend the Schedules which
it has delivered pursuant to this Agreement with respect to any matter occurring
after the date hereof which, if existing or occurring at or prior to the date
hereof, would have been required to be set forth or described in such Schedules
or which is necessary to correct any information in such Schedules which has
been rendered inaccurate thereby and (b) provide notice to Purchaser with
respect to any matter first existing or occurring on or prior to the date hereof
which was omitted from the Schedules, but required to be set forth or described
therein, or is necessary to correct any information therein. No supplement or
amendment to any Schedule, or notice regarding any Schedule, or notice pursuant
to Section 5.4, will have any effect for the purpose of determining satisfaction
of the conditions set forth in Section 9.2.
Section 5.6 Insurance. The Company shall, and shall cause each Company
Subsidiary to, in good faith cooperate with Purchaser and take all actions
reasonably requested by Purchaser that are necessary or desirable to permit
Purchaser to have available to it following the Closing the benefits (whether
direct or indirect) of the insurance policies maintained by or on behalf of the
Company and each Company Subsidiary that are currently in force.
Section 5.7 Novation. Seller hereby agrees to cooperate and to provide
such assistance to Purchaser as may be necessary in the event that a novation of
any Contract is required by any Governmental Entity at any time following the
Closing Date.
Section 5.8 Accounts Payable. Between the date of this Agreement and
the Closing Date, Seller shall cause the Company and the Company Subsidiaries
to, and the Company shall cause the Company Subsidiaries to, satisfy all
accounts payable of the Company and the Company Subsidiaries in the ordinary
course of business consistent with past practice.
Section 5.9 Dealings with Affiliates. As of the Closing Date, Seller
shall cause all Intercompany Agreements (other than those between or among the
Company and any of the Company Subsidiaries) to be terminated and of no force
and effect, and there shall be no unsatisfied obligations or liabilities
thereunder, pursuant to termination agreements in form and substance reasonably
satisfactory to Purchaser.
Section 5.10 No Solicitation of Employees. During the period beginning
on the Closing Date and ending on the third anniversary of the Closing Date (the
"Covenant Period"), Seller will not, will cause its Affiliates to not, and will
not authorize or induce any third party to, directly or indirectly, employ,
engage as a consultant or solicit for employment or consulting, on
8
its own behalf or on behalf of any Affiliate or third party, or otherwise
encourage the resignation of, any of the employees or consultants of the Company
or any Company Subsidiary or any Person who was an employee or consultant of the
Company or any Company Subsidiary at any time during the Covenant Period.
Section 5.11 Material Leases. Seller and the Company will use their
reasonable best efforts to obtain an acknowledgment from (1) the landlord of the
Company's Madison, Mississippi headquarters facility and (2) the landlord of the
Newport News, Virginia headquarters facility of Flight International Aviation
LLC that (a) there are no defaults or events of default by the lessee under the
applicable leases, (b) no consent or approval of such landlord is required by
reason of the Contemplated Transactions, and (c) neither the execution, delivery
or performance of this Agreement or any other Transaction Document nor the
consummation of any of the transactions contemplated hereby or thereby will
result in a default or event of default under, or create any right on the part
of such landlord under, or result in the loss of any benefits under, or result
in the termination of, any such lease.
ARTICLE VI
COVENANTS AND AGREEMENTS OF PURCHASER
Section 6.1 Confidentiality. Purchaser agrees that all information
provided or otherwise made available in connection with the Contemplated
Transactions to Purchaser or any of its respective Representatives shall be
treated as if provided under the Confidentiality Agreement.
Section 6.2 Employees. The Company agrees to provide Purchaser such
information as Purchaser may reasonably request with respect to compensation,
service, and other information relating to the employment of the Company
Employees. During the period beginning immediately after the Closing and ending
on the first anniversary of the Closing Date, Purchaser shall cause the Company
to continue to provide to each Company Employee (i) salary, and (ii) employee
benefits and plans, in each case, in amounts and on terms substantially
comparable in the aggregate to those provided by the Company to the Company
Employees on the date hereof; provided, however, that Purchaser shall not be
required to provide any Company Employees with (A) any equity-based or equity
linked plans (or their equivalent, such as, without limitation, phantom stock
plans or stock appreciation rights), or (B) any incentive bonus programs,
executive compensation plans or cash incentive plans based on the achievement of
financial or other performance targets. Nothing in this Agreement, express or
implied, confers upon any Company Employee any right to continued employment
with the Company or any Company Subsidiary for a specified period of time or
confers any obligation upon Purchaser, the Company or any Company Subsidiary to
provide such right.
ARTICLE VII
COVENANTS OF THE PARTIES
Section 7.1 Further Assurances. Subject to the terms and conditions of
this
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Agreement, each Party shall use reasonable commercial efforts to take, or cause
to be taken, all actions and to do, or cause to be done, all things necessary or
desirable under Applicable Law to consummate the Contemplated Transactions. Each
of the Parties shall execute and deliver such other documents, certificates,
agreements and other writings and take such other actions as may be necessary or
desirable to consummate or implement the Contemplated Transactions. Except as
otherwise expressly set forth in this Agreement, nothing in this Section 7.1
shall require Purchaser to make any payments in order to obtain any consents or
approvals necessary or desirable in connection with the consummation of the
Contemplated Transactions.
Section 7.2 Certain Filings; Consents. Purchaser and Seller shall
cooperate with one another (i) in determining whether any action by or in
respect of, or filing with, any Governmental Entity is required, or any actions,
consents, approvals or waivers are required to be obtained from third parties,
in connection with the consummation of the Contemplated Transactions and (ii)
subject to the terms and conditions of this Agreement, in taking such actions or
making any such filings, furnishing information required in connection therewith
and seeking timely to obtain any such actions, consents, approvals or waivers.
Section 7.3 Antitrust Laws. Purchaser and Seller shall take all actions
necessary or appropriate to make any filings required by the Xxxx Xxxxx Xxxxxx
Antitrust Improvement Act of 1976, as amended (the "HSR Act"), or any other
Antitrust Laws, in respect of the Contemplated Transactions, including, without
limitation, complying as promptly as practicable with any requests for
additional information; provided, however, that, notwithstanding anything in
this Agreement or any other agreement to which any of the Parties are parties or
by which they are bound, in no event shall Purchaser or any of its Affiliates be
required to agree or commit to divest, hold separate, offer for sale, abandon,
limit its operation of or take similar action with respect to any assets
(tangible or intangible) or any business interests in connection with or as a
condition to receiving the consent or approval of any Governmental Entity
(including, without limitation, under the HSR Act).
Section 7.4 Public Announcements. Prior to the Closing, the Parties
shall consult with each other before issuing any press release or making any
public statement with respect to this Agreement or the Contemplated Transactions
and, except as may be required by Applicable Law or any listing agreement with
any national or international securities exchange, no Party shall issue any such
press release or make any such public statement without the prior written
consent of the other Parties. The parties agree that the initial press release
to be issued with respect to the Confidential Transactions shall be issued
jointly by the Company and Purchaser immediately after the execution of this
Agreement. Notwithstanding anything to the contrary set forth herein or in any
other agreement to which the Parties are parties or by which they are bound
(including, without limitation, the Confidentiality Agreement), the obligations
of confidentiality contained herein and therein, as they relate to the
Contemplated Transactions, shall not apply to the tax structure or tax treatment
of the Contemplated Transactions, and each Party (and any employee,
representative, or agent or any Party) may disclose to any and all Persons,
without limitation of any kind, the tax structure and tax treatment of the
transactions contemplated by this Agreement and all materials of any kind
(including options or other tax analyses) that are provided to such
10
Party relating to such tax treatment and tax structure; provided, however, that
such disclosure shall not include information for which nondisclosure is
reasonably necessary in order to comply with applicable securities laws.
ARTICLE VIII
TAX MATTERS
Section 8.1 Certain Taxes. All transfer, documentary, sales, use,
stamp, registration and other such Taxes and fees (including any penalties and
interest) incurred in connection with the Contemplated Transactions shall be
paid one-half by Seller and one-half by Purchaser when due, and each Party will,
at its own expense, file all necessary Tax Returns and other documentation with
respect to all such transfer, documentary, sales, use, stamp, registration and
other Taxes and fees, and, if required by Applicable Law, each other Party will,
and will cause its Affiliates to, join in the execution of any such Tax Returns
and other documentation.
Section 8.2 Allocation of Transaction Consideration.
(a) The Purchase Price shall be allocated among the assets of the
Company and each Company Subsidiary in accordance with a schedule to be
mutually agreed upon by Seller and Purchaser prior to the Closing.
Purchaser and Seller will file all Tax Returns consistent with the
agreed upon allocation of the Purchase Price. For U.S. federal Income
Tax purposes and for purposes of all other Income Taxes for which the
Company is treated as a disregarded or tax transparent entity,
Purchaser and Seller agree to treat the sale of the Company as the sale
of assets by the Company and each of the Company Subsidiaries.
(b) In the event that Seller and Purchaser fail to mutually agree
upon the allocation of the Purchase Price prior to the Closing, Seller
and Purchaser shall select a nationally known independent accounting
firm (which firm shall not be the then regular auditors of Purchaser,
Seller or the Company) to resolve the matters in dispute, which
determination shall be final and binding on the Parties. The fees and
expenses, if any, of such accounting firm shall be paid one-half by
Seller and one-half by Purchaser.
ARTICLE IX
CONDITIONS TO CLOSING
Section 9.1 Conditions to Each Party's Obligations. The respective
obligations of each Party to effect the Contemplated Transactions are subject to
the fulfillment at or prior to the Closing of each of the following conditions:
(a) Injunction. There will be no effective injunction, writ or
preliminary restraining order or any order of any nature issued by, or
any Applicable Law of, a Governmental Entity of competent jurisdiction
to the effect that the Acquisition may not be consummated as provided
in this Agreement.
11
(b) Antitrust Approvals. The waiting period applicable to the
consummation of the Acquisition under the HSR Act shall have expired or
been terminated.
Section 9.2 Conditions to Obligations of Purchaser. The obligations of
Purchaser to consummate the transactions contemplated by this Agreement are
subject to the fulfillment at or prior to the Closing of each of the following
additional conditions:
(a) Representations and Warranties. The representations and
warranties of Seller set forth in Exhibit B shall have been true and
correct as of the date hereof and shall be true and correct as of the
Closing Date as though made on and as of the Closing Date except for
those representations and warranties which refer to facts existing at a
specific date, which shall be true and correct as of such date, in each
case (other than in the case of those representations and warranties
contained in Section B.2, Section B.4(b) and Section B.10(a) of Exhibit
B) subject to the standard set forth in the introductory paragraph of
Exhibit B.
(b) Performance of Obligations of the Company and Seller. Each of
the Company and Seller shall have performed in all material respects
all covenants and agreements required to be performed by each of them
under this Agreement on or prior to the Closing Date.
(c) No Company Material Adverse Effect. Between the date of this
Agreement and the Closing Date, there shall have been no Company
Material Adverse Effect.
(d) Closing Date Indebtedness; Release of Encumbrances. The
Closing Date Indebtedness shall have been repaid in full by
disbursement of cash on hand of the Company and a portion of the
Purchase Price or otherwise, and Seller shall have delivered to
Purchaser evidence satisfactory to Purchaser that the Closing Date
Indebtedness has been paid in full and that all Encumbrances affecting
any property of the Company and the Company Subsidiaries or any of the
membership interests of the Company or any Company Subsidiary have been
released.
(e) Seller Ancillary Documents. Seller shall have executed and
delivered, or caused to be executed and delivered, to Purchaser the
following:
(i) a certificate of an authorized officer of Seller as to
compliance with the conditions set forth in Sections 9.2(a),
9.2(b), 9.2(c) and 9.2(d);
(ii) a written consent for the admission of Purchaser, and
the simultaneous withdrawal of Seller, as a member of the Company;
(iii) a legal opinion of counsel to Seller as to the matters
set forth in Attachment I;
12
(iv) the record books of the Company and each Company
Subsidiary relating to the organization of such entity and the
capital account balances of its members;
(v) a certificate dated the Closing Date and sworn under
penalties of perjury, setting forth Seller's name, address and
federal tax identification number and stating that it is not a
"foreign person" within the meaning of Section 1445 of the Code,
such certificate to be in the form set forth in the Treasury
Regulations;
(vi) resignations of the officers of the Company and each
Company Subsidiary, as requested by Purchaser, effective as of the
Closing Date;
(vii) a certified copy of resolutions adopted by the Board of
Representatives of Seller authorizing the execution and delivery
of this Agreement and the consummation of the Contemplated
Transactions; and
(viii) pay-off letters from the Company's lenders regarding
the Closing Date Indebtedness in form and substance reasonably
satisfactory to Purchaser.
Section 9.3 Conditions to Obligations of Seller. The obligations of
Seller to consummate the transactions contemplated by this Agreement will be
subject to the fulfillment at or prior to the Closing of each of the following
additional conditions:
(a) Representations and Warranties. The representations and
warranties of Purchaser set forth in Exhibit C shall have been true and
correct as of the date hereof and shall be true and correct as of the
Closing Date as though made on and as of the Closing Date except for
those representations and warranties which refer to facts existing at a
specific date, which shall be true and correct as of such date, in each
case subject to the standard set forth in the introductory paragraph of
Exhibit C;
(b) Performance of Obligations by Purchaser. Purchaser shall have
performed in all material respects all covenants and agreements
required to be performed by it under this Agreement on or prior to the
Closing Date;
(c) Purchaser Ancillary Documents. Purchaser shall have delivered,
or caused to be delivered, to Seller the following:
(i) a certificate of an authorized officer as to compliance
with the conditions set forth in Sections 9.3(a) and 9.3(b);
(ii) a legal opinion of counsel to Purchaser as to the
matters set forth in Attachment II; and
(iii) a certified copy of resolutions adopted by the Board of
Directors of Purchaser and any L-3 Company to which this Agreement
has been assigned in accordance with the provisions of Section
12.3, authorizing the execution and
13
delivery of this Agreement and the consummation of the
Contemplated Transactions.
ARTICLE X
TERMINATION
Section 10.1 Termination. This Agreement may be terminated at any time
at or prior to the Closing (the "Termination Date"):
(a) in writing by mutual consent of the Parties;
(b) by written notice from Purchaser to Seller, if any of the
conditions set forth in Sections 9.1 or 9.2 shall have become incapable
of fulfillment, and shall not have been waived by Purchaser, unless
such failure results from a breach by Purchaser of this Agreement;
(c) by written notice from Seller to Purchaser, if any of the
conditions set forth in Sections 9.1 or 9.3 shall have become incapable
of fulfillment, and shall not have been waived by Seller, unless such
failure results from a breach by Seller of this Agreement; or
(d) by written notice by Seller to Purchaser or Purchaser to
Seller, as the case may be, if the Closing has not occurred on or prior
to December 15, 2003; provided, however, that the right to terminate
this Agreement under this Section 10.1(d) shall not be available to any
party whose failure to fulfill any obligations under this Agreement
shall have been the cause of or resulted in the failure of the Closing
to occur on or prior to such date.
Section 10.2 Effect of Termination. In the event of termination of this
Agreement pursuant to this Article X, (a) this Agreement will forthwith become
void and of no further force or effect, except that the provisions of Sections
6.1 and 7.4, Article XII and this Section 10.2, shall survive the termination of
this Agreement, and (b) such termination shall be without liability of any Party
(or any member, partner, officer, director, employee, representative or
stockholder of any Party) to any other Party; provided, however, if the
Contemplated Transactions fail to close as a result of a breach of the
provisions of any of the Transaction Documents, the breaching Party shall be
fully liable for any and all damages or losses incurred or suffered by the other
Parties as a result of such breach. The rights and remedies under this Article X
shall be cumulative and not exclusive of any rights or remedies provided under
Applicable Law.
ARTICLE XI
NON-SURVIVAL
Section 11.1 Non-Survival. None of the representations and warranties
of the Parties
14
contained herein or in any certificate or other writing delivered pursuant to
this Agreement shall survive the Closing; provided, however, that the
representations and warranties set forth in Section B.4(b) of Exhibit B shall
survive the Closing for a period of one year from the Closing Date.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1 Notices. All notices, communications and deliveries under
this Agreement shall be made in writing signed by or on behalf of the Party
making the same, shall specify the Section under this Agreement pursuant to
which it is given or being made, and shall be delivered personally or by
telecopy transmission or sent by registered or certified mail (return receipt
requested) or by overnight delivery (with evidence of delivery and postage and
other fees prepaid) as follows:
To Purchaser (or the Company L-3 Communications Corporation
following Closing): 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
With a copy to: Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Gerkis, Esq.
Facsimile: (000) 000-0000
To Seller (or the Company RAAH I, LLC
prior to the Closing): x/x Xxxxxxx Xxxxxxx Xxxxxxxxxx, X.X.X.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. XxXxxx
Facsimile: (000) 000-0000
With a copy to: Winston & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
15
or to such other representative or at such other address of a party as such
party may furnish to the other parties in writing. Any such notice,
communication or delivery will be deemed given or made upon receipt or refusal
of receipt.
Section 12.2 Schedules and Exhibits. The Schedules and Exhibits to this
Agreement are hereby incorporated into this Agreement and are hereby made a part
of this Agreement as if set out in full in this Agreement.
Section 12.3 Assignment; Successors in Interest. The provisions of this
Agreement and the Transaction Documents shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns; provided
that before the Closing Date no Party may assign, delegate or otherwise transfer
any of its rights or obligations under this Agreement or any Transaction
Document without the prior written consent of the other Party; and provided
further, that no assignment, delegation or other transfer of rights under this
Agreement shall relieve the assignor of any liability or obligations hereunder.
Notwithstanding the foregoing, Purchaser may assign its rights hereunder to any
L-3 Company without the prior written consent of any other Party, provided that
(a) any such assignee expressly assumes, in a writing addressed to Seller, to be
bound by Purchaser's obligations hereunder and (b) any such assignment shall not
materially delay, prevent or, in any case, delay beyond the Termination Date, as
provided in Section 10.1(d), the satisfaction of any of the conditions to the
obligation of Purchaser to consummate the Closing required under Sections 9.1
and 9.2 hereof. No such assignment shall limit or affect Purchaser's obligations
hereunder. Any attempted assignment in violation of this Section 12.3 shall be
void.
Section 12.4 Number; Gender. Whenever the context so requires, the
singular number will include the plural and the plural will include the
singular, and the gender of any pronoun will include the other genders.
Section 12.5 Interpretation. The article and section headings contained
in this Agreement are for convenience of reference only and shall not affect the
meaning or interpretation of this Agreement. As used in this Agreement, any
reference to the masculine, feminine or neuter gender shall include all genders,
the plural shall include the singular, and singular shall include the plural.
Unless the context otherwise requires, the term "party" when used herein means a
party hereto. References herein to a party or other Person include their
respective successors and assigns. The words "include," "includes" and
"including" when used herein shall be deemed to be followed by the phrase
"without limitation". Unless the context otherwise requires, references herein
to Articles, Sections, Schedules and Attachments shall be deemed references to
Articles and Sections of, and Schedules and Attachments to, this Agreement.
Unless the context otherwise requires, the words "hereof," "hereby" and "herein"
and words of similar meaning when used in this Agreement refer to this Agreement
in its entirety and not to any particular Article, Section or provision hereof.
With regard to each and every term and condition of this Agreement, the parties
understand and agree that the same have or has been mutually negotiated,
prepared and drafted, and that if at any time the parties desire or are required
to interpret or construe any such term or condition or any agreement or
instrument subject thereto, no consideration shall be given to the issue of
which party actually prepared,
16
drafted or requested any term or condition of this Agreement.
Section 12.6 Amendment; Waiver. This Agreement may not be amended,
modified or supplemented except by written agreement of the Parties. Any
provision of this Agreement may be waived prior to the Closing Date if, and only
if, such amendment or waiver is in writing and signed by the Party against whom
the waiver is to be effective.
Section 12.7 Controlling Law. This Agreement will be governed by and
construed and enforced in accordance with the internal laws of the State of New
York without reference to its choice of law rules.
Section 12.8 Consent to Jurisdiction, Etc. Each of the Parties hereby
irrevocably consents and agrees that any action, suit or proceeding arising in
connection with any disagreement, dispute, controversy or claim arising out of
or relating to this Agreement or any Transaction Document (for purposes of this
Section, a "Legal Dispute") shall be brought only to the exclusive jurisdiction
of the courts of the State of New York located in the City of New York or the
federal courts located in the Southern District of New York. The Parties agree
that, after a Legal Dispute is before a court as specified in this Section 12.8
and during the pendency of such Legal Dispute before such court, all actions,
suits or proceedings with respect to such Legal Dispute or any other Legal
Dispute, including, without limitation, any counterclaim, cross-claim or
interpleader, shall be subject to the exclusive jurisdiction of such court. Each
of the Parties hereby waives, and agrees not to assert, as a defense in any
legal dispute, that it is not subject thereto or that such action, suit or
proceeding may not be brought or is not maintainable in such court or that its
property is exempt or immune from execution, that the action, suit or proceeding
is brought in an inconvenient forum or that the venue of the action, suit or
proceeding is improper. Each Party hereto agrees that a final judgment in any
action, suit or proceeding described in this Section 12.8 after the expiration
of any period permitted for appeal and subject to any stay during appeal shall
be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by Applicable Law.
Section 12.9 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. The
scope of this waiver is intended to be all-encompassing of all Legal Disputes
(as defined in Section 12.8) that may be filed in any court and that relate to
the subject matter of the Contemplated Transactions, including contract claims,
tort claims, breach of duty claims and all other common law and statutory
claims. Each Party hereby acknowledges that this waiver is a material inducement
to enter into a business relationship, that each has already relied on this
waiver in entering into this Agreement, and that each will continue to rely on
this waiver in their related future dealings. Each Party further warrants and
represents that it has reviewed this waiver with its legal counsel and that it
knowingly and voluntarily waives its jury trial rights following consultation
with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER
17
SPECIFICALLY REFERRING TO THIS SECTION 12.9 AND EXECUTED BY EACH OF THE
PARTIES), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE CONTEMPLATED TRANSACTIONS. In the event of
litigation, this Agreement may be filed as a written consent to a trial by the
court.
Section 12.10 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction will, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement, and any such
prohibition or unenforceability in any jurisdiction will not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by Applicable Law, the Parties waive any provision of Applicable Law
which renders any such provision prohibited or unenforceable in any respect.
Section 12.11 Counterparts; Effectiveness. This Agreement may be
executed in two or more counterparts, each of which will be deemed an original
with the same effect as if the signatures hereto and thereto were upon the same
instrument. This Agreement and each of the other Transaction Documents shall
become effective when each Party hereto or thereto, as the case may be, shall
have received a counterpart thereof signed by the other Parties hereto or
thereto, as the case may be.
Section 12.12 Enforcement of Certain Rights. Nothing expressed or
implied in this Agreement is intended, or will be construed, to confer upon or
give any Person other than the Parties, and their successors or permitted
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Agreement, or result in such Person being deemed a third party beneficiary
of this Agreement.
Section 12.13 Waiver. Any agreement on the part of a Party to any
extension or waiver of any provision of this Agreement will be valid only if set
forth in an instrument in writing signed on behalf of such Party. A waiver by a
Party of the performance of any covenant, agreement, obligation, condition,
representation or warranty will not be construed as a waiver of any other
covenant, agreement, obligation, condition, representation or warranty. A waiver
by any Party of the performance of any act will not constitute a waiver of the
performance of any other act or an identical act required to be performed at a
later time.
Section 12.14 Integration. This Agreement, the other Transaction
Documents and the Confidentiality Agreement supersede all prior negotiations,
agreements and understandings among the Parties with respect to the subject
matter of this Agreement and constitutes the entire agreement between the
Parties.
Section 12.15 Cooperation Following the Closing. Following the Closing,
each of the Parties shall deliver to the others such further information and
documents and shall execute and deliver to the others such further instruments
and agreements as the other Party shall reasonably request to consummate or
confirm the Contemplated Transactions, to accomplish the purpose of
18
this Agreement or to assure to the other Party the benefits of this Agreement
and the other Transaction Documents.
Section 12.16 Transaction Costs. Except as otherwise expressly provided
herein, (a) Purchaser will pay its own fees, costs and expenses incurred in
connection with this Agreement and the Contemplated Transactions, including,
without limitation, the fees, costs and expenses of its financial advisors,
accountants and counsel and the HSR Act filing fees and (b) the Company shall
pay one-half of the fees, costs and expenses of Seller and the Company, up to a
maximum aggregate amount of $3,250,000, incurred in connection with this
Agreement and the Contemplated Transactions and the 2003 Form S-1 preparation
(including, without limitation, the fees, costs and expenses of their financial
advisors, including Credit Suisse First Boston LLC, accountants, counsel and
financial printers), and Seller shall pay the balance of such fees, costs and
expenses.
Section 12.17 Post-Closing Confidentiality. From and after the Closing,
Seller will, and will cause its Affiliates to, hold in strict confidence, and
will not use to the detriment of Purchaser or any of its Affiliates, all
confidential and proprietary information with respect to the Company and the
Company Subsidiaries.
Section 12.18 Government Audit Assistance. Seller and its Affiliates
shall furnish Purchaser with such assistance as may be reasonably requested by
Purchaser in Government Contract audits, but only to the extent Seller and its
Affiliates have information that is not readily available to the Company and the
Company Subsidiaries.
[Signature pages follow]
19
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed, as of the date first above written.
L-3 COMMUNICATIONS CORPORATION
By:
----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Senior Vice President
RAAH I, LLC
By:
----------------------------------
Name: Xxxxxx X. XxXxxx
Title: Authorized Signatory
VERTEX AEROSPACE LLC
By: RAAH I, LLC, as Manager and sole Member
By:
----------------------------------
Name: Xxxxxx X. XxXxxx
Title: Authorized Signatory
20
EXHIBIT A
DEFINED TERMS
"Affiliate" of any specified Person means any other Person directly or
indirectly Controlling or Controlled by or under direct or indirect common
Control with such specified Person. For purposes of this definition, "Control,"
when used with respect to any specified Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"Controlling" and "Controlled" have meanings correlative to the foregoing. In
the case of Purchaser, "Affiliate" means L-3 Communications Holdings, Inc. and
its Subsidiaries.
"Applicable Law" means, with respect to any Person, any domestic or
foreign, federal, state or local statute, law, ordinance, rule, administrative
interpretation, regulation, order, writ, injunction, decree or other requirement
of any Governmental Entity applicable to such Person or any of its properties,
assets, officers, directors, employees, managers, consultants or agents (in
connection with such officer's, director's, employee's, manager's, consultant's
or agent's activities on behalf of such Person).
"Benefit Arrangements" means all employment agreements and
arrangements, including, without limitation, all fringe benefit plans, bonus,
severance, separation, holiday pay, paid time off, profit sharing, incentive
compensation, cafeteria plans, seniority, and other policies, practices,
programs, agreements or statements of terms and conditions (whether created by
contractual arrangement or under or by virtue or Applicable Law) providing
employee or executive compensation or benefits to managers, employees or members
or former employees, managers or members of the Company or any Company
Subsidiary, or any of their beneficiaries or dependents, maintained by or
contributed to by the Company or any Company Subsidiary since the Formation
Date, whether or not created under or governed by the laws of the United States,
any state thereof or any foreign jurisdiction, other than an Employee Plan.
"Bid" means any quotation, bid or proposal made by the Company or any
of its Affiliates that if accepted or awarded to the Company or its Affiliates
would lead to a Contract with any Person for the sale of products or services by
the Company or its Affiliates.
"Business" means the business of the Company and each Company
Subsidiary as it has been or may be conducted on or before the Closing Date.
"Business Day" means any day except Saturday, Sunday or any day on
which banks in New York, NY are authorized or required by law to close.
"Closing Date" means the date on which the Closing occurs.
"Closing Date Indebtedness" means all Indebtedness of the Company and
each Company Subsidiary as of the Closing.
A-1
"Code" means the Internal Revenue Code of 1986, as amended and the
regulations thereunder.
"Company Employee" means each individual who works primarily or
exclusively for the Business and who, on the Closing Date, is actively employed
by the Company or by any Company Subsidiary, including any employee who is on
vacation leave or jury duty, or on other authorized leave of absence (other than
long-term disability), family or workers' compensation leave, or military leave
as of the Closing Date, whether paid or unpaid; provided, however, that the term
Company Employee shall exclude any other inactive or former employee, including
any individual who (a) is on long-term disability leave or unauthorized leave of
absence, layoff with or without recall rights at the Closing Date or (b) has
been terminated or has terminated his or her employment or retired before the
Closing Date.
"Company Material Adverse Effect" means any circumstance, change or
effect that, either individually or in the aggregate with all other
circumstances, changes or effects, (a) has or is reasonably likely to have a
material adverse effect on the business, assets, financial condition or results
of operations of the Business taken as a whole, but excluding (i) effects or
changes that are generally applicable to the industries and markets in which the
Business operates or (ii) changes in the United States or world financial
markets or general economic conditions, or (b) would have a material adverse
effect on the ability of Seller and the Company to perform their obligations
under this Agreement or the ability of Seller and the Company to consummate the
Contemplated Transactions.
"Company Subsidiaries" means Flight International Aviation LLC, a
Delaware limited liability company, Flight Capital LLC, a Delaware limited
liability company, and Vector International Aviation LLC, a Delaware limited
liability company.
"Confidentiality Agreement" means the letter agreement dated October
13, 2003 by and between The Veritas Capital Fund, L.P. and L-3 Communications
Corporation.
"Contemplated Transactions" means the transactions contemplated by this
Agreement and the other Transaction Documents.
"Contracts" means all contracts, agreements, leases (including leases
of real property), licenses, commitments, sales and purchase orders, and other
undertakings of any kind, whether written or oral.
"Employee Plans" means, collectively, each "employee benefit plan" as
defined in Section 3(3) of ERISA, maintained or contributed to by the Company or
any Company Subsidiary since the Formation Date, or any similar plans governed
by the laws of a jurisdiction outside the United States, which provides or
provided benefits to managers, employees or members or former employees,
managers or members of the Company or any Company Subsidiary or their dependents
or beneficiaries.
A-2
"Encumbrances" means all mortgages, liens, pledges, security interests,
rights of first refusal and other similar rights, voting trusts or agreements,
charges, claims, easements, rights of way, leases, subleases, options,
restrictions, encumbrances and infringements of any nature whatsoever, including
patent, copyright, trade secret, trademark and other intellectual property
infringement.
"Environmental Laws" means any and all federal, state, local,
provincial and foreign statutes, laws, regulations, ordinances, injunctions,
judicial decisions, permits, or agreements with any Governmental Entity or other
third party which relate to protection of the environment, pollution control,
product registration, the protection or reclamation of natural resources, or
which impose liability for, or standards of conduct concerning, the manufacture,
processing, generation, distribution, use, treatment, storage, disposal,
discharge, release, emission, cleanup, transport or handling of Hazardous
Materials, including the Resource Conservation and Recovery Act of 1976, as
amended, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended ("CERCLA"), the Superfund Amendments and Reauthorization
Act of 1984, as amended, the Toxic Substances Control Act, as amended, any other
so-called "Superfund" or "Superlien" laws, and the Occupational Safety and
Health Act of 1970, as amended, to the extent it relates to the handling of and
exposure to hazardous or toxic chemicals.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the regulations thereunder.
"ERISA Affiliate Plan" means each employee benefit plan as defined in
Section 3(3) of ERISA, other than an Employee Plan, sponsored or maintained or
required to be sponsored or maintained at any time within the last six years by
any Person (whether incorporated or unincorporated), that together with the
Company or any Company Subsidiary would be deemed a "single employer" within the
meaning of Section 414 of the Code since the Formation Date (including any
predecessor to the Company) (an "ERISA Affiliate"), or to which such ERISA
Affiliate makes or has made, or has or has had an obligation to make,
contributions at any time.
"Eurodollar Business Day" means any Business Day on which commercial
banks are open for international business (including dealings in dollar
deposits) in London.
"Formation Date" means June 27, 2001, the date of the formation of the
Company.
"GAAP" means United States Generally Accepted Accounting Principles as
in effect on the date of the Agreement.
"Government Contract" means any Contract between the Company and any
Governmental Entity.
"Governmental Entity" means any foreign, domestic, federal,
territorial, state or local governmental authority, quasi-governmental
authority, instrumentality, court, government or self-regulatory organization,
commission, tribunal, arbitrator or arbitral authority, or organization
A-3
or any regulatory, administrative or other agency, or any political or other
subdivision, department or branch of any of the foregoing.
"Hazardous Materials" means (i) substances defined as "hazardous
substances" or "hazardous waste" pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, or the Resource
Conservation and Recovery Act of 1976, as amended, (ii) substances defined as
"hazardous substances" or "hazardous waste" in the regulations adopted pursuant
to any of said laws, (iii) substances defined as "toxic substances" in the Toxic
Substances Control Act, as amended, and (iv) petroleum, petroleum derivatives,
petroleum products, asbestos and asbestos-containing materials and any other
substances or materials as regulated pursuant to Environmental Laws.
"Income Tax" means any Tax imposed on or measured by income, gross
receipts, profits or gains, including any minimum or add-on minimum Tax.
"Indebtedness" means, as to any Person: (a) indebtedness created,
issued or incurred by such Person for borrowed money (whether by loan or the
issuance and sale of securities or otherwise), including without limitation any
interest, prepayment penalties, expenses or fees accruing thereon or payable
with respect thereto; (b) any obligations of such Person under any derivative
agreements or any other similar agreements (including, without limitation,
interest-rate, exchange-rate, commodity and equity-linked agreements), including
breakage costs; and (c) Indebtedness of others guaranteed by such Person;
provided, however, Indebtedness of the Company also includes, without
limitation, the indebtedness in respect of leasehold improvements relating to
the Company's Madison, Mississippi headquarters facility, which indebtedness had
as of June 27, 2003 an outstanding balance of $867,000.
"Intellectual Property" means all inventions (whether patentable or
unpatentable), patent rights, copyrights, invention disclosures, technology,
know-how, processes, trade secrets, confidential information, proprietary data,
formulae, data bases, moral rights, domain names, manufacturing or servicing
methods and data, specifications, drawings, algorithms, prototypes, designs,
design rights, design tools, white papers, research and development data,
computer software programs in both source code and object code form; all
trademarks, trade names, service marks and service names; all registrations,
applications, recordings, licenses and common-law rights relating thereto, all
rights to xxx at law or in equity for any infringement or other impairment
thereto, including the right to receive all proceeds and damages therefrom, and
all rights to obtain renewals, continuations, divisions or other extensions of
legal protections pertaining thereto; all copies and tangible embodiments
thereof (in whatever form or medium), and registrations and applications for any
of the foregoing assets listed above and all other tangible and intangible
proprietary information, materials and associated goodwill; and all of the
foregoing in any jurisdiction throughout the world.
"Intercompany Agreements" means all Contracts, including tax sharing
agreements, but excluding non-equity employment or compensation arrangements
with employees, between the Company or any Company Subsidiary, on the one hand,
and any of its officers, managers, directors, members, stockholders or
Affiliates (or any Affiliate of any such officer, manager,
A-4
director, member or stockholder), on the other hand; provided, however, that
Intercompany Agreements shall not include any Contract between the Company or
any Company Subsidiary, on the one hand, and Raytheon Company or any of its
Subsidiaries, on the other hand.
"Knowledge" As used in this Agreement, the term "Knowledge" of any
Party means the actual knowledge of any senior executive officers of that Party
after due inquiry by such officers with the personnel of the Company and the
Company Subsidiaries. The relevant senior executive officers for purposes of
Seller and the Company are Xxxxxx Xxxxxxx, Xxx Xxxx, Xxx Xxx Xxxxx, R. Xxxxxx
Xxxxxxxxxxx, Xxxx Xxxxxx, Xxxxx Xxxxx, Xxxx Xxxxxx and Xxx Xxxxxxx.
"L-3 Company" means L-3 Communications Corporation and any of its
Subsidiaries.
"LIBOR" means:
(i) the rate per annum equal to the offered rate that appears
on the page of the Telerate screen (or any successor thereto) that
displays an average British Bankers Association Interest Settlement
Rate for deposits in U.S. dollars (for delivery on the Closing Date and
thereafter each succeeding July 1st and January 1st) with a term
equivalent to (or closest to) the period commencing on the Closing Date
and ending on the succeeding June 30th or December 31st, as the case
may be, and thereafter for successive six-month periods, determined as
of approximately 11:00 a.m. (London time) two Eurodollar Business Days
prior to the first day of such period;
(ii) if the rate referenced in the preceding subsection (i)
does not appear on such page or service or such page or service shall
cease to be available, the rate per annum equal to the offered rate on
such other page or other service that displays an average British
Bankers Association Interest Settlement Rate for deposits in U.S.
dollars (for delivery on the Closing Date and thereafter each
succeeding July 1st and January 1st) with a term equivalent to (or
closest to) the period commencing on the Closing Date and ending on the
succeeding June 30th or December 31st, as the case may be, and
thereafter for successive six-month periods, determined as of
approximately 11:00 a.m. (London time) two Eurodollar Business Days
prior to the first day of such period; or
(iii) if the rates referenced in the preceding subsections (i)
and (ii) are not available, the rate per annum equal to the rate of
interest at which deposits in U.S. dollars for delivery on the first
day of such period in same day funds with a term equivalent to such
period would be offered by Bank of America's London Branch to major
bank is in the London interbank Eurodollar market at their request
approximately 4:00 p.m. (London time) two Eurodollar Business Days
prior to the first day of such period.
"Multiemployer Plan" means a "multi-employer plan" within the meaning
of Section 3(37) or Section 4001(a)(3) of ERISA or Section 414(f) of the Code.
"Net Assets" means (i) all of the assets and properties of the Company
and the Company Subsidiaries on a consolidated basis, minus (ii) all liabilities
of the Company and the Company
A-5
Subsidiaries on a consolidated basis, determined, in each case, in accordance
with GAAP consistently applied with the audited consolidated financial
statements of the Company and the Company Subsidiaries as of December 27, 2002,
subject to the adjustments described on Attachment III hereto.
"Opening Balance Sheet" means the unaudited balance sheet of Seller and
its Subsidiaries on a consolidated basis as of September 26, 2003 and the notes
thereto, a copy of which is attached hereto as Attachment III.
"Other Indebtedness" means, with respect to any Person, (i) any
indebtedness of such Person under any conditional sales or other title retention
agreements relating to property purchased by such Person, (ii) any obligations
of such Person issued or assumed as the deferred purchase price of property or
services (excluding trade accounts payable and accrued obligations incurred in
the ordinary course of business), (iii) any synthetic lease obligations or any
other similar lease obligations of such Person, (iv) any purchase money
obligations of such Person, (v) any obligations of such Person as an account
party in respect of any letters of credit or bankers' acceptances, (vi) any
obligations of such Person in respect of off-balance-sheet agreements or
transactions that are in the nature of, or in substitution of, financing, (vii)
any indebtedness or other obligations of any other Person of the type specified
in any of the foregoing clauses, the payment or collection of which such Person
has guaranteed or in respect of which such Person is liable, contingently or
otherwise, including liable by way of agreement to purchase products or
securities, to provide funds for payment, to maintain working capital or other
balance sheet conditions or otherwise to assure a creditor against loss or
(viii) any indebtedness or other obligations of any other Person of the type
specified in any of the foregoing clauses which is secured (or, pursuant to an
existing right, could be secured at a later date) by an Encumbrance on any
property of such Person. Notwithstanding any of the foregoing, Other
Indebtedness shall not include any obligations under leases that are operating
leases or capitalized leases under GAAP.
"Permitted Encumbrances" means (i) liens for Taxes not yet due and
payable, (ii) statutory liens of landlords and liens of carriers, warehousemen,
mechanics, materialmen and repairmen incurred in the ordinary course of business
consistent with past practice and not yet delinquent and (iii) zoning, building,
or other restrictions, variances, covenants, rights of way, encumbrances,
easements and other minor irregularities in title, none of which, individually
or in the aggregate, (A) interfere in any material respect with the present use
of or occupancy of such parcel by the Company or the Company Subsidiary, as the
case may be, (B) have more than an immaterial effect on the value thereof or its
use or (C) would impair the ability of such parcel to be sold.
"Person" means any individual, corporation, partnership, limited
liability partnership, limited liability company, joint venture, trust,
unincorporated organization, other entity or Government Entity.
"Purchaser Material Adverse Effect" means a material adverse effect on
the ability of Purchaser to perform its obligations under this Agreement or on
the ability of Purchaser to consummate the Contemplated Transactions.
A-6
"Representatives" means with respect to any Person each of its
directors, officers, partners, members, advisors, attorneys, accountants,
employees or agents.
"Securities Laws" means the Securities Act of 1933, as amended, and any
state, local or foreign securities laws.
"Subsidiary" as it relates to any Person, shall mean with respect to
such Person, any other Person of which the specified Person, either directly or
through or together with any other of its Subsidiaries, owns more than 50% of
the voting power in the election of directors or their equivalents, other than
as affected by events of default, together in each case, with any predecessor in
interest thereto.
"Tax Authority" shall mean a Governmental Entity having jurisdiction
over the assessment, determination, collection or imposition of any Tax.
"Taxes" means all federal, state, local and foreign taxes, and any
charges, fees, imposts or other assessments with respect thereto, including but
not limited to all gross receipts, net income, sales, use, ad valorem, value
added, transfer, franchise, license, withholding, payroll, employment, excise,
estimated, severance, stamp, real property, personal property, occupation taxes,
tariffs and customs duties, together with any interest and any penalties,
assessments or additions to tax or additional amounts resulting from,
attributable to or incurred in connection with any Tax or any contest or dispute
thereof, imposed by any Tax Authority, including all obligations for taxes under
any tax sharing, tax indemnity or similar agreement.
"Tax Return" means any report, return, declaration, claim for refund
or information return, election, disclosure, estimate, computation or statement
relating to Taxes required to be filed with any Governmental Entity, including
any schedule or attachment thereto, and including any amendment thereof.
"Transaction Documents" means (i) this Agreement and (ii) any other
certificate, agreement, document or other instrument to be executed and
delivered in connection with the Contemplated Transactions.
A-7
EXHIBIT B
REPRESENTATIONS AND WARRANTIES OF SELLER AND THE COMPANY
The representations and warranties of Seller and the Company contained
in this Exhibit B (other than those contained in Section B.2, Section B.4(b) and
Section B.10(a)) shall be deemed true and correct, and Seller and the Company
shall not be deemed to have breached any such representation or warranty as a
consequence of the existence of any fact, event or circumstance inconsistent
with such representation or warranty, unless such fact, event or circumstance,
individually or taken together with all other facts, events or circumstances
inconsistent with any representation or warranty contained in this Exhibit B,
has resulted or is reasonably likely to result in loss, liability, damage or
expense to Purchaser or the Company and the Company Subsidiaries or a diminution
in value of the Company and the Company Subsidiaries in excess of $20,000,000,
except to the extent reflected in an adjustment to the Purchase Price in
accordance with Section 2.5, disregarding for these purposes (i) any
qualification or exception for, or reference to, materiality or Company Material
Adverse Effect in any such representation or warranty and (ii) any use of the
terms "material", "materially," "in all material respects," "Company Material
Adverse Effect" or similar terms or phrases in any such representation or
warranty. The representations and warranties in Section B.2, Section B.4(b) and
Section B.10(a) shall not be qualified by the preceding sentence.
Except as set forth on the Schedules (it being understood that an item
included on a Schedule referenced in any Section or subsection of this Exhibit B
shall be deemed to relate to each other Section or subsection of this Exhibit B
to the extent such relationship is readily apparent), and subject to the
preceding paragraph, Seller and the Company hereby represent and warrant to
Purchaser on the date hereof and on the Closing Date as follows:
B.1 Organization. The Company and each Company Subsidiary is a limited
liability company duly formed, validly existing and in good standing under the
laws of the State of Delaware. The Company and each Company Subsidiary has all
requisite power and authority to own, lease and operate its properties and to
carry on its business as now being conducted and is duly qualified or registered
as a foreign limited liability company to transact business and is in good
standing under the laws of each jurisdiction where the character of its
activities or the location of the properties owned or leased by it requires such
qualification or registration, except where the failure to be so qualified or
registered would, individually or in the aggregate, not, or could not reasonably
be expected to, have a Company Material Adverse Effect. Seller has heretofore
made available to Purchaser true, correct and complete copies of the
organizational documents of the Company and each Company Subsidiary as currently
in effect and the record books of the Company and each Company Subsidiary.
Schedule B.1 contains a true and correct list of the jurisdictions in which the
Company and each Company Subsidiary is qualified or registered to do business as
a foreign limited liability company.
B-1
B.2 Authorization. Each of Seller and the Company has full power and
authority to execute and deliver this Agreement and each of the Transaction
Documents to which it is a party, to perform its obligations herein and therein,
and to consummate the transactions contemplated hereby and thereby. The
execution and delivery of this Agreement and the other Transaction Documents by
Seller and the Company and the performance by each of them of their respective
obligations hereunder and thereunder and the consummation of the transactions
provided for herein and therein have been duly and validly authorized by all
necessary action on the part of Seller and the Company. No consent on the part
of any of the members of Seller is necessary for Seller to execute and deliver
this Agreement and the other Transaction Documents to which it is a party, to
perform its obligations herein and therein, and to consummate the transactions
contemplated hereby and thereby. This Agreement has been, and each of the
Transaction Documents to which Seller or the Company are a party will be as of
the Closing Date, duly executed and delivered by Seller and the Company, as the
case may be, and do or will constitute valid and binding agreements of Seller
and the Company, as the case may be, enforceable against it in accordance with
their respective terms, except as may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights in general and
subject to general principles of equity.
B.3 Subsidiaries. Except as set forth on Schedule B.3, neither the
Company nor any Company Subsidiary does currently own or have any obligation to
acquire or redeem, directly or indirectly, any capital stock or other securities
of, or interests in, any other Person. Each of J-R Technical Management, L.L.C.,
a Texas limited liability company, and J-R Technical Services Limited
Partnership, L.L.P., a Texas limited partnership, are inactive and have no
material assets or liabilities, debts, claims, commitments or obligations.
B.4 Membership Interests.
(a) Schedule B.4 hereto accurately and completely sets forth the
ownership of the Company and each Company Subsidiary by listing thereon
each holder of a membership interest in each of the foregoing companies
as of the date hereof.
(b) All of the membership interests in the Company and each
Company Subsidiary (i) will, at the Closing, be free and clear of any
Encumbrances and defects of title whatsoever, (ii) are owned of record
and beneficially by the Person or Persons identified in Schedule B.4,
and (iii) were not offered, issued or acquired in violation of the
preemptive rights of any Person or any agreement or laws, statutes,
orders, decrees, rules, regulations and judgments of any Governmental
Entities by which the Company or any Company Subsidiary at the time of
acquisition was bound. There are no outstanding options, warrants,
rights, calls, commitments, conversion rights, rights of exchange,
claims of any character, agreements, obligations, or other plans or
commitments, contingent or otherwise, relating to the membership
interests of the Company or any Company Subsidiary, other than as
contemplated by this Agreement. There are no outstanding contracts or
other agreements or commitments of Seller, the Company, any Company
Subsidiary or any other Person to purchase, redeem or otherwise acquire
any membership interests of the Company or any Company Subsidiary. Upon
admission of
B-2
Purchaser, and simultaneous withdrawal of Seller, as a member of the
Company and delivery by Seller to Purchaser of the membership
certificate representing the entire interest held by Seller in the
Company, Purchaser will be the sole member of the Company and hold the
entire interest in the Company.
(c) There are no distributions which have accrued but are unpaid
in respect of the membership interests of the Company or any Company
Subsidiary. Except as set forth on Schedule B.4, since June 27, 2003,
the Company has not (x) amended its organizational documents, (y)
declared, set aside, made or paid any distribution, whether consisting
of money, property or any other thing of value, or (z) purchased or
redeemed any of its membership interests.
B.5 Absence of Restrictions and Conflicts. Except as set forth on
Schedule B.5, the execution, delivery and performance of this Agreement and each
of the Transaction Documents to which Seller or the Company is a party, the
consummation of the transactions contemplated hereby and thereby, and the
fulfillment of and compliance with the terms and conditions herein and therein
by the Company and Seller do not or will not (as the case may be), with or
without the passing of time or the giving of notice or both, violate or conflict
with, constitute a breach of or default under, result in the loss of any benefit
under, require notice or consent or approval under, permit the acceleration of
any obligation, give rise to any right of termination, cancellation or amendment
with respect to, or result in the creation or imposition of any Encumbrance upon
any property of the Company or any Company Subsidiary or upon any membership
interest therein under, (a) any term or provision of the organizational
documents of Seller, the Company or any Company Subsidiary, (b) any Contract to
which the Company or any Company Subsidiary is a party, (c) any judgment, decree
or order of any Governmental Entity to which Seller, the Company or any Company
Subsidiary is a party or by which the Company or any Company Subsidiary or any
of their respective properties are bound or (d) assuming compliance with the
requirements under the HSR Act, any statute, law, rule, regulation or
arbitration award applicable to Seller, the Company, or any Company Subsidiary,
except in the case of the foregoing clauses (b), (c) and (d) for violations,
conflicts, breaches or defaults that could not reasonably be expected to have a
Company Material Adverse Effect. No consent, waiver, approval, order or
authorization of, or registration, declaration or filing with, any governmental
agency or public or regulatory unit, agency or authority is required with
respect to Seller, the Company or any Company Subsidiary in connection with the
execution, delivery or performance of this Agreement or the Transaction
Documents or the consummation of the transactions contemplated hereby or
thereby, except as required by the HSR Act or otherwise set forth on Schedule
B.5.
B.6 Real Property.
(a) Schedule B.6(a) sets forth a true and correct legal
description of the parcel of real property owned by the Company
(together with all fixtures and improvements thereon, the "Owned Real
Property"). Except as set forth on Schedule B.6(a), and except for such
matters that, individually or in the aggregate, are not reasonably
likely to have a Company Material Adverse Effect, the Company has good
and marketable title to the
B-3
Owned Real Property free and clear of all Encumbrances other than
Permitted Encumbrances.
(b) Schedule B.6(b) sets forth a true and correct description of
the parcels of real property used in connection with the Business and
leased by the Company and each Company Subsidiary (together with all
fixtures and improvements thereon, the "Leased Real Property"; and
collectively with the Owned Real Property, the "Real Property"), the
owner of the Leased Real Property and the owner of the leasehold,
subleasehold or occupancy interest for each parcel of the Leased Real
Property. The Company or a Company Subsidiary, as the case may be, has
a valid leasehold interest in its Leased Real Property, free and clear
of any Encumbrances other than Permitted Encumbrances. Except as set
forth on Schedule B.6(b), the leases of the Leased Real Property are in
full force and effect, no notice of default has been given by any of
the parties to the leases and no event has occurred that, with the
giving of notice or the passage of time would constitute a default
under any of such leases.
B.7 Title to Personal Property. Except as set forth in Schedule B.7,
each of the Company and each Company Subsidiary has good and marketable title
to, or a valid and binding leasehold or license interest in, all of its personal
property and assets, free and clear of all Encumbrances other than Permitted
Encumbrances. There are no defects in the physical condition or operability of
such tangible personal property and assets impair the use of such property and
assets as such property and assets are currently used, except for such defects
which, individually or in the aggregate, would not be reasonably likely to have
a Company Material Adverse Effect.
B.8 Financial Statements.
(a) Seller has delivered to Purchaser the audited consolidated
balance sheet of Seller and its Subsidiaries at December 27, 2002 and
December 28, 2001 and the audited consolidated statements of
operations, member's capital and parent investment account and cash
flows of Seller and its Subsidiaries for the years then ended, the
unaudited consolidated balance sheet of Seller and its Subsidiaries as
of June 27, 2003; and the unaudited consolidated statements of
operations, member's capital and parent investment account, and cash
flows of Seller and its Subsidiaries for the 6-month period ended June
27, 2003 (collectively, the "Financial Statements").
(b) The Financial Statements have been prepared in accordance with
GAAP consistently applied throughout the periods indicated (except in
the case of the Financial Statements as of June 27, 2003, for normal
year-end adjustments and for the absence of information that would
ordinarily be contained in notes to audited financial statements), have
been prepared from, and are in accordance with, the books and records
of Seller and its Subsidiaries, which books and records have been
maintained in accordance with GAAP consistently applied throughout the
periods indicated, and are maintained on a basis consistent with the
past practice of Seller and its Subsidiaries. Each of the balance
sheets included in such Financial Statements (including the related
notes and schedules) fairly presents the financial position of Seller
and its Subsidiaries as of the date of such balance sheet, and each of
the statements of income and cash flows included in such Financial
Statements (including any related notes and schedules)
B-4
fairly presents the results of operations and changes in cash flows, as
the case may be, of Seller and its Subsidiaries for the periods set
forth therein, in each case in accordance with GAAP consistently
applied during the periods involved (subject to the parenthetical above
with respect to the Financial Statements as of June 27, 2003). Since
June 27, 2003, there has been no change in any of the accounting
(including tax accounting) policies, practices or procedures of Seller,
the Company or any Company Subsidiary.
(c) The Opening Balance Sheet has been prepared in accordance with
GAAP consistently applied with the Financial Statements except for
normal year-end adjustments and for the absence of information that
would ordinarily be contained in the notes of audited financial
statements, and subject to the adjustments described on Attachment III
hereto. Subject to the foregoing, the Opening Balance Sheet fairly
presents the financial position of Seller and its Subsidiaries as of
September 26, 2003.
(d) Seller is a holding company, has no assets, other than the
membership interests of the Company, and has no business operations.
B.9 No Undisclosed Liabilities. Except as disclosed in Schedule B.9,
neither the Company nor any Company Subsidiary has any liabilities, debts,
claims, commitments or obligations (whether absolute, accrued or contingent,
liquidated or unliquidated, known or unknown or due to become due or otherwise)
(collectively, "Liabilities"), which are not adequately reflected or provided
for in the Opening Balance Sheet, except (i) Liabilities that are not
(individually or in the aggregate) material to the Company or any Company
Subsidiary, (ii) Liabilities that have been incurred since June 27, 2003 in the
ordinary course of business consistent with past practice and (iii) Liabilities
disclosed in Schedules B.11, B.13(i) and B.13(n).
B.10 Absence of Certain Changes. Since June 27, 2003 and except as set
forth in Schedule B.10, there has not been:
(a) a Company Material Adverse Effect;
(b) any transaction or commitment made, or any Contract entered
into, by the Company or any Company Subsidiary, other than a
transaction or commitment made, or Contract entered into, in the
ordinary course of business consistent with past practice and those
contemplated by this Agreement;
(c) any sale or other disposition of assets in a single
transaction or series of related transactions (other than any sales of
inventories or services made in the ordinary course of business
consistent with past practice);
(d) (A) any increase in the compensation, deferred compensation,
or fringe
B-5
benefits of any officers or employees of the Company or any Company
Subsidiary, other than nondiscretionary increases pursuant to Employee
Plans or Benefit Arrangements, or (B) any granting by Company or any
Company Subsidiary of any increase in severance, retention or
termination pay, or (C) any entry by Company or any Company Subsidiary
into, or material modification or amendment of, any employment,
severance, retention, termination or indemnification Contract or any
Employee Plan or Benefit Arrangement;
(e) any change by the Company or any Company Subsidiary in its
accounting principles, methods or practices or in the manner it keeps
its books and records;
(f) any labor dispute (other than routine individual grievances),
or any lockouts, strikes, slowdowns or work stoppages by or with
respect to the employees of the Company or any Company Subsidiary;
(g) any new collective bargaining agreement entered into by the
Company or any Company Subsidiary, or any amendment to any collective
bargaining agreement to which the Company or any Company Subsidiary is
a party;
(h) any declaration, setting aside or payment of any non-cash
dividend on, or other non-cash distribution in respect of, any of the
Company's or any Company Subsidiary's membership interest, or any
purchase, redemption or other acquisition by the Company or any Company
Subsidiary of any of the Company's or any Company Subsidiary's
membership interest or any other securities of the Company or any
Company Subsidiary or any options, warrants, calls or rights to acquire
any such membership interests or other securities;
(i) any split, combination, subdivision or reclassification of any
of the Company's or any Company Subsidiary's membership interests or
any change of any rights of the Company's or any Company Subsidiary's
membership interests or other securities of the Company or any Company
Subsidiary;
(j) any sale, assignment, lease, transfer or other disposition of
any portion of the Company's or any Company Subsidiary's assets in a
single transaction or series of related transactions in an amount in
excess of $100,000 in the aggregate or any waiver or release of any of
the Company's or any Company Subsidiary's right of substantial value,
involving an amount in excess of $100,000 in the aggregate, other than
in the ordinary course of business consistent with past practice;
(k) any receipt by the Company or any Company Subsidiary of any
notice of termination of any Company or any Company Subsidiary Contract
with required payments thereunder in excess of $100,000 or which
otherwise is material to the Company or any Company Subsidiary;
(l) any damage, destruction or loss (whether or not covered by
insurance) to the Company's or any Company Subsidiary's property, in
excess of $100,000
B-6
individually or $1,000,000 in the aggregate;
(m) any authorization, issuance, pledge, sale or transfer of any
membership interests of the Company or any Company Subsidiary or other
securities (including any securities convertible or exercisable into or
exchangeable for any capital stock or other securities of, or any
warrants, options or other rights to acquire any capital stock or other
securities of, the Company or any Company Subsidiary);
(n) any capital expenditures or commitments therefor in excess of
$250,000 individually or $1,500,000 in the aggregate;
(o) any capital investment by the Company or any Company
Subsidiary in, any loan by the Company or any Company Subsidiary to, or
any acquisition by the Company or any Company Subsidiary of, any of the
securities or all or substantially all the assets of, any other Person
(or series of related capital investments, loans and acquisitions
involving the same Person or such Person's Affiliates) in an amount in
excess of $100,000 individually or $1,000,000 in the aggregate;
(p) any acquisition by the Company of an entity or business
(whether by the acquisition of stock, the acquisition of assets, merger
or otherwise), or any merger by the Company or any Company Subsidiary
with or into or consolidation with any other Person;
(q) the entry by the Company or any Company Subsidiary of any
employment, compensation or deferred compensation Contract or any
amendment of any such existing Contract excluding offer letters
providing for at-will employment arrangements that do not include
severance;
(r) the settlement or compromise of any claim, action, suit,
litigation, proceeding, arbitration, investigation, audit or
controversy relating to Taxes; or
(s) the taking of any action or, to the knowledge of Seller,
Company or any Company Subsidiary, omission to take any action within
its control that would result in the occurrence of any of the
foregoing.
B.11 Legal Proceedings. Except as set forth in Schedule B.11, there are
no suits, actions, claims, arbitrations, proceedings or investigations pending
or, to the Knowledge of Seller and the Company, threatened against, relating to
or involving the Company, any Company Subsidiary or the assets of the Company or
any Company Subsidiary before any Governmental Entity or other third party
which, if adversely determined, would reasonably be expected to have a Company
Material Adverse Effect or that involve injunctive or other non-monetary relief
or proposed injunctive or other non-monetary relief or damages or claimed damage
in excess of $500,000 or unspecified damages or would otherwise be material to
the Company or any Company Subsidiary. There are no judgments unsatisfied
against the Company or any order,
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stipulation decrees or injunctions to which the Company, any Company Subsidiary
or any of their assets is subject.
B.12 Compliance with Law. Except as set forth in Schedule B.12, the
Company and each Company Subsidiary is (and has been at all times since the
Formation Date) in compliance with all Applicable Laws, except where the failure
to comply with Applicable Law could not reasonably be expected to have a Company
Material Adverse Effect. Except as set forth in Schedule B.12, (a) the Company
and each Company Subsidiary has not been charged with and, to the Knowledge of
Seller and the Company, the Company or any Company Subsidiary, is not now under
investigation with respect to, a violation of any Applicable Law, (b) the
Company and each Company Subsidiary is not a party to or bound by any order,
judgment, decree, injunction, rule or award of any Governmental Entity and (c)
the Company and each Company Subsidiary has filed all reports required to be
filed with any Governmental Entity on or before the date hereof, except where
the failure to file such report could not reasonably be expected to have a
Company Material Adverse Effect.
B.13 Contracts, Government Contracts and Bids.
(a) Schedule B.13(a) sets forth a true, correct and complete list
of (i) all Contracts of the Company and each Company Subsidiary with
suppliers with remaining payment obligations that exceed $1,000,000 and
(ii) all Contracts of the Company and each Company Subsidiary for
Indebtedness involving a current outstanding principal amount in excess
of $1,000,000; (iii) all Contracts containing non-compete covenants by
the Company or any Company Subsidiary, (iv) Contracts containing any
covenant: (A) limiting the right of the Company or any Company
Subsidiary to engage in any material line of business or make use of
any material Intellectual Property or (B) otherwise having an adverse
effect on the right of the Company and the Company Subsidiaries to
sell, distribute or manufacture any material products or services or to
purchase or otherwise obtain any material software, components, parts
or subassemblies, (v) all Contracts to which the Company and each
Company Subsidiary is a party with customers with a contract value or
revenues that exceeded $10,000,000 per year, and (vi) all other
Contracts not the subject matter of clauses (i) through (v) above that
are material to the Company, any Company Subsidiaries or the Business.
Except as set forth on Schedule B.13(a), (A) the Company or Company
Subsidiary that is a party to each of the Contracts set forth on
Schedule B.13(a) is not in default under such Contracts and there
exists no event, condition or occurrence which, with or without notice,
lapse of time or both, would constitute such a default by the Company
or such Company Subsidiary and (B) to the Knowledge of Seller and the
Company, each other party that is a party to a Contract set forth on
Schedule B.13(a) is not in default thereunder and there exists no
event, condition or occurrence which, with or without notice, lapse of
time or both, would constitute such a default by such party.
(b) Except as disclosed on Schedule B.13(a), all Contracts set
forth thereon, are valid and binding, in full force and effect and
enforceable against the Company or the Company Subsidiaries, as the
case may be, and to Seller and the Company's Knowledge,
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the other parties thereto in accordance with their respective terms,
subject to applicable bankruptcy, insolvency or other similar Laws
relating to creditors' rights and general principles of equity.
(c) The Company has made available to Purchaser true, complete and
correct copies of all written Contracts set forth on Schedule B.13(a),
together with all amendments thereof. To the Knowledge of the Company,
the Company and the Company Subsidiaries are not parties to any
material oral Contracts.
(d) Schedule B.13(d) sets forth a true, complete and correct list
of the Government Contracts awarded to the Company or any Company
Subsidiary and that are currently in effect. Except as set forth on
Schedule B.13(d), the Government Contracts that are currently in effect
are in full force and effect and free and clear of any Encumbrances,
except for Permitted Encumbrances.
(e) Except as set forth on Schedule B.13(e), there are no
outstanding Bids submitted by the Company or any Company Subsidiary to
any Governmental Entity or any proposed prime contractor to a
Governmental Entity.
(f) The Company and each Company Subsidiary has complied with all
Applicable Laws in respect of the Government Contracts, including,
without limitation, under the Federal Acquisition Regulation and the
Foreign Corrupt Practices Act ("Government Contract Laws"), except
where the failure to comply with Government Contract Laws could not
reasonably be expected to have a Company Material Adverse Effect. The
Company and each Company Subsidiary has fully complied with all
material contract clauses, provisions and requirements incorporated
expressly by reference or by operation of law in the Government
Contracts and Bids for a Government Contract to the extent their
performance thereunder is required as of the date hereof, except where
the failure to so comply could not reasonably be expected to have a
Company Material Adverse Effect. No Governmental Entity that is a party
to a Government Contract has notified the Company or any Company
Subsidiary in writing, or to the Knowledge of Seller and the Company
orally, that the Company or any Company Subsidiary has breached or
violated any Government Contract Laws, certification, representation or
contract clause, provision or requirement in respect of any Government
Contract. No default, termination, cure or "show cause" notice has been
issued against the Company or any Company Subsidiary in respect of the
Government Contracts. All representations and certifications made by
the Company and each Company Subsidiary with respect to each of its
Government Contracts and Bids for a Government Contract were accurate
in all material respects as of the date made. No material cost incurred
by the Company or any Company Subsidiary or any of their respective
subcontractors in connection with any Government Contract has been
questioned or disallowed. No material amount of money due to the
Company or any Company Subsidiary has been (or, to the Knowledge of
Seller and the Company has been threatened to be) withheld or setoff.
(g) Except as set forth on Schedule B.13(g), neither the Company
nor any Company Subsidiary has undergone nor is the Company or any
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Company Subsidiary presently undergoing any audit, and neither Seller
nor the Company has any knowledge or reason to know of any basis for
impending audits in the future, arising under or relating to any
Government Contract. Neither Seller nor the Company knows or has any
reason to know, of any reasons why any Government Contract will be
terminated, including, without limitation, any terminations for default
or convenience of the Governmental Entity.
(h) Except as set forth on Schedule B.13(h), to the Knowledge of
Seller and the Company, none of the employees, consultants and agents
of the Company or any Company Subsidiary is (or during the last five
years has been) under administrative, civil or criminal investigation,
indictment or information by any Governmental Entity; (ii) there is no
pending audit or investigation of the Company, or, to the Knowledge of
Seller and the Company, any of the Company's or any Company
Subsidiary's officers, employees or representatives nor within the last
five years has there been any audit or investigation of the Company or
any Company Subsidiary, or, to the Knowledge of Seller and the Company,
any of the Company's or any Company Subsidiary's officers, employees or
representatives resulting in a material adverse finding with respect to
any alleged irregularity, misstatement or omission arising under or
relating to any Government Contract or Bid for a Government Contract;
and (iii) during the last five years, neither the Company nor any
Company Subsidiary has made any voluntary disclosure to the U.S.
Government or any non-U.S. government with respect to any alleged
irregularity, misstatement or omission arising under or relating to a
Government Contract or Bid for a Government Contract.
(i) Except as disclosed on Schedule B.13(i), there are (i) no
outstanding claims or disputes against the Company or any Company
Subsidiary, either by any Governmental Entity or by any prime
contractor, subcontractor, vendor or other third party arising under or
relating to any Government Contract or Bid for a Government Contract ,
and (ii) no disputes between the Company or any Company Subsidiary and
any Governmental Entity under the Contract Disputes Act of 1978, as
amended, or any other Applicable Law or between Company and any prime
contractor, subcontractor, vendor or other third party arising under or
relating to any such Government Contract or Bid for a Government
Contract and (iii) no facts which are known to Seller and the Company
upon which any such claim or dispute may be based in the future.
(j) Except as set forth on Schedule B.13(j), neither the Company
or any Company Subsidiary nor, to the Knowledge of Seller and the
Company, any of their respective employees, consultants or agents is
(or during the last five years has been) suspended or debarred from
doing business with the U.S. Government or any non-U.S. government or
is (or during such period was) the subject of a finding of
non-responsibility or ineligibility for U.S. Government or non-U.S.
Government contracting.
(k) Except as set forth on Schedule B.13(k), neither the Company
nor any Company Subsidiary is a party to any written teaming or similar
agreement that pertains
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to any Bid for a Government Contract or which contemplates any Bid for
a prospective Government Contract.
(l) Neither the Company nor any Company Subsidiary is a party to
any Contract containing any covenant limiting the freedom of the
Company or any Company Subsidiary to compete with any Person in any
geographic area.
(m) Except as set forth on Schedule B.13(m), neither the Company
nor any Company Subsidiary is a party to any sales representative,
commission, marketing representative or franchise agreements relating
to the Business which are not terminable without material penalty to
the Company, any Company Subsidiary or Purchaser upon 90 days' or less
notice to the other party thereto.
(n) Except as set forth in Schedule B.13(n), there is no Contract
(including a Government Contract) between the Company or any Company
Subsidiary and a customer of the Company that has resulted in, or is
expected to result in, a loss.
B.14 Tax Returns; Taxes.
(a) Except as otherwise disclosed in Schedule B.14(a):
(i) all Tax Returns with respect to Income Taxes and all
other material Tax Returns of the Company and each Company
Subsidiary due to have been filed through the date hereof in
accordance with any Applicable Law have been duly filed on a
timely basis and are correct and complete and accurately reflect
the Taxes, income, gains, losses, deductions and credits of the
Company in all material respects;
(ii) all Taxes, deposits or other payments which are due and
payable with respect to the Company and each Company Subsidiary
through the date hereof have been paid in full;
(iii) there are no extensions of time in effect with respect
to the dates on which any Tax Returns were or are due to be filed
by the Company or any Company Subsidiary;
(iv) since their formations, the Company and each of the
Company Subsidiaries has been taxed as a disregarded entity for
Income Tax purposes and no elections have been or will be made to
treat the Company or any of the Company Subsidiaries as a
corporation for any Income Tax purposes;
(v) no claim, assessment, deficiency or adjustment has ever
been made or threatened by any authority in a jurisdiction where
the Company and the Company Subsidiaries have not or do not file
returns;
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(vi) no Tax audits or administrative or judicial Tax
proceedings are pending, being conducted or, to the Knowledge of
Seller and the Company, threatened with respect to the Company or
the Company Subsidiaries;
(vii) no material claims have been asserted in writing or, to
the Knowledge of Seller and the Company, threatened with respect
to the Company or the Company Subsidiaries;
(viii) there are no outstanding waivers or agreements by or
on behalf of the Company or any Company Subsidiary for the
extension of time for the assessment of any Taxes or deficiency
thereof;
(ix) there are no material Encumbrances for Taxes (other than
Encumbrances for Taxes which are not yet due and payable), nor are
there any material Encumbrances for Taxes which are pending or, to
the Knowledge of Seller and the Company, threatened; and
(x) all material liabilities for Taxes related to any taxable
period ending on or before the date hereof have been properly
accrued or are disclosed on the Opening Balance Sheet.
(b) Seller is not a foreign Person for purposes of Section
1445(b)(2) of the Code.
B.15 Officers and Consultants. Schedule B.15 contains a true and
complete list of all of the officers of the Company and each Company Subsidiary,
specifying their position, length of service and annual rate of compensation.
Except as set forth on Schedule B.15, neither the Company nor any Company
Subsidiary is a party to or bound by any contracts, consulting agreements or
termination or severance agreements in respect to any officer or former officer,
consultant or independent contractor.
B.16 Employee Plans and Benefit Arrangements.
(a) Schedule B.16 contains a true and complete list of each
Employee Plan or material Benefit Arrangement which provides benefits
to employees or former employees of the Company or any Company
Subsidiary or their dependents or beneficiaries. Each Employee Plan or
Benefit Arrangement currently in effect is identified as a "current
plan" on such schedule and any special tax status enjoyed by such plan
is noted on such schedule and each Multiemployer Plan is identified as
a "Multiemployer Defined Benefit Pension Plan."
(b) Except as set forth in Schedule B.16:
(i) with respect to each Employee Plan (other than a
Multiemployer Plan) or Benefit Arrangement identified on Schedule
B.16, Seller has heretofore
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delivered or made available to Purchaser true and complete copies
of the plan documents and any amendments thereto (or if the plan
is not written, a written description thereof), any related trust
or other funding vehicle, annual reports required to be filed with
any Governmental Entity with respect to such plan, actuarial
reports, funding and financial information returns and statements,
plan summaries or summary plan descriptions, summary annual
reports, booklets and personnel manuals and any other reports or
summaries required under ERISA, the Code and all other Applicable
Law with respect to such Employee Plan or Benefit
Arrangement("Applicable Benefit Laws"), and the most recent
determination letter received from the Internal Revenue Service
(or, if applicable, similar approvals of a foreign Governmental
Entity) with respect to each such plan intended to qualify under
Section 401 of the Code (or similar provisions for tax registered
or tax-favored plans of foreign jurisdictions);
(ii) no Employee Plan (other than a Multiemployer Plan) is or
was subject to Title IV of ERISA or Section 412 of the Code or
Section 302 of ERISA;
(iii) neither the Company nor any Company Subsidiary has
incurred, and no facts exist which reasonably could be expected to
result in, liability to the Company or any Company Subsidiary as a
result of a termination, withdrawal or funding waiver or otherwise
under Title IV of ERISA, Section 302 of ERISA or Section 412 of
the Code with respect to an ERISA Affiliate Plan;
(iv) each Employee Plan (other than a Multiemployer Plan) or
Benefit Arrangement has been established, registered, qualified,
invested, operated and administered in all material respects in
accordance with its terms and in compliance with all Applicable
Benefit Laws, and neither the Company nor any Company Subsidiary
has incurred, and no facts exist which have resulted or reasonably
could be expected to result in, any material liability, tax,
penalty or fee under any Applicable Benefit Laws (other than for
the payment of premiums, contributions or benefits in the ordinary
course of business consistent with past practice) to any Company
or any Company Subsidiary or Company Employee with respect to any
Employee Plan or Benefit Arrangement or any ERISA Affiliate Plan;
(v) all obligations regarding each Employee Plan (other than
a Multiemployer Plan) or Benefit Arrangement either have been
satisfied or the time for satisfying such obligations has not yet
expired, and there are no outstanding defaults or violations by
any party to any Employee Plan (other than a Multiemployer Plan)
or Benefit Arrangement or ERISA Affiliate Plan that would give
rise to a material liability, Tax penalty or fee to the Company;
(vi) no fact or circumstance exists that could reasonably be
expected to adversely affect the tax-exempt status of an Employee
Plan (other than a
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Multiemployer Plan) that is intended to be tax-exempt, and each
Employee Plan (other than a Multiemployer Plan) intended to be
"qualified" within the meaning of Section 401(a) of the Code
(other than a Multiemployer Plan) and the trusts maintained
thereunder that are intended to be exempt from taxation under
Section 501(a) of the Code has received a favorable determination
or other letter indicating that it is so qualified covering all
Tax law changes prior to the Economic Growth and Tax Relief
Reconciliation Act of 2001;
(vii) no Employee Plan or Benefit Arrangement provides or has
provided medical, surgical, hospitalization, death benefits (other
than death benefits provided under a retirement plan) or similar
benefits (whether or not insured) for current or former employees,
directors, managers, members, officers, consultants, independent
contractors, contingent workers or leased employees (or any of
their dependents, spouses or beneficiaries) of the Company, any
Company Subsidiary or any predecessor in interest of the Company
or any Company Subsidiary for periods extending beyond their
retirement or other termination of service, other than
continuation coverage mandated by Applicable Benefit Laws;
(viii) all contributions or premiums required to be made by
Seller, the Company or any Company Subsidiary under the terms of
each Employee Plan or Benefit Arrangement or by Applicable Benefit
Laws have been made in a timely fashion in accordance with
Applicable Benefit Laws and the terms of the Employee Plan or
Benefit Arrangement, and all contributions or premiums for any
period ending on or before the Closing Date that are not yet due
have been made to each such Employee Plan or Benefit Arrangement
or accrued in accordance with GAAP;
(ix) to the Knowledge of Seller and the Company, there have
been no improper withdrawals, applications or transfers of assets
from any Employee Plan or Benefit Arrangement or the trusts or
other funding media relating thereto that have not been corrected,
and neither the Company or any Company Subsidiary nor any of their
agents has been in material breach of any fiduciary obligation
with respect to the administration of any Employee Plan or Benefit
Arrangement or the trusts or other funding media relating thereto;
(x) the execution, delivery and performance of, and
consummation of the transactions contemplated by, this Agreement
will not (1) entitle any current or former employee, director,
manager, member, officer, consultant, independent contractor,
contingent worker or leased employee (or any of their dependents,
spouses or beneficiaries) of the Company or any Company Subsidiary
to severance pay, unemployment compensation or any other payment,
or (2) accelerate the time of payment or vesting, or increase the
amount of compensation due any such employee, director, manager,
member, officer, consultant, independent contractor, contingent
worker or leased employee;
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(xi) there are no pending or threatened claims,
investigations, examinations, audits or other proceedings or
actions by or on behalf of any Employee Plan or Benefit
Arrangement, by any current or former employee, director, manager,
officer, consultant, independent contractor, contingent worker or
leased employee (or any of their beneficiaries) of the Company or
any Company Subsidiary or by any Governmental Entities or
otherwise, involving any such Employee Plan or Benefit Arrangement
(other than routine claims for benefits or processing of domestic
relations orders);
(xii) no amounts payable under any Employee Plan or Benefit
Arrangement will fail to be deductible for federal Income Tax
purposes by virtue of Section 280G of the Code;
(xiii) neither the Company nor any Company Subsidiary has any
unfunded liabilities pursuant to any Employee Plan or Benefit
Arrangement that is not intended to be qualified under Section
401(a) of the Code and is an "employee pension benefit plan" (as
defined in Section 3(2) of ERISA), a nonqualified deferred
compensation plan or an excess benefit plan;
(xiv) any individual who performs services for the Company or
any of the Company Subsidiaries and who is not treated as an
employee for federal income tax purposes by the Company or any
Company Subsidiary is not an employee under Applicable Law for tax
withholding purposes or Employee Plan or Benefit Arrangement
purposes; and
(xv) to the Knowledge of Seller and the Company, with respect
to each Employee Plan or Benefit Arrangement, that is or was a
Multiemployer Plan: (i) neither the Company nor any ERISA
Affiliate (or any of their respective predecessors) has, within
the last six complete calendar years, incurred or had any reason
to believe it could incur any withdrawal liability; no event has
occurred which with the giving of notice could reasonably be
expected to result in any liability under Section 4201 of ERISA as
a result of a complete withdrawal (within the meaning of Section
4203 of ERISA) or a partial withdrawal (within the meaning of
Section 4205 of ERISA); neither the Company nor any ERISA
Affiliate (or any of their respective predecessors) has received
any notice of any claim or demand for complete or partial
withdrawal; (ii) neither the Company nor any ERISA Affiliate (or
any of their respective predecessors) has received any notice or
has any reason to believe that such Multiemployer Plan is in
"reorganization" (within the meaning of Section 4241 of ERISA),
that increased contributions may be required to avoid a reduction
in plan benefits or the imposition of an excise tax, or that the
Multiemployer Plan is or may become "insolvent" (within the
meaning of Section 4241 of ERISA); (iii) no Multiemployer Plan is
a party to any pending merger or asset or liability transfer under
Part 2 of Subtitle E of Title IV of ERISA; (iv) the Pension
Benefit Guaranty Corporation has not instituted proceedings
against the Multiemployer Plan; (v)
B-15
neither the Company nor any ERISA Affiliate (nor any of their
respective predecessors) has ever engaged in, or entered into any
agreement with respect to, a transaction described in Section 4204
or 4212(c) of ERISA; and (vi) if the Company or ERISA Affiliate
were to have a complete or partial withdrawal as of the Closing
Date, no obligation to pay withdrawal liability would exist on the
part of the Company or any ERISA Affiliate with respect to any
Multiemployer Plan and no liability, direct or contingent, exists
with regard to any Multiemployer Plan.
B.17 Labor Relations. Except as set forth in Schedule B.17 or as would
not be reasonably likely to have a Company Material Adverse Effect, as of the
date of this Agreement, (i) to the Knowledge of Seller and the Company, there
are no activities or proceedings of any labor union to organize any
non-unionized employees of the Company or any of the Company Subsidiaries; (ii)
there are no unfair labor practice charges and/or complaints pending against the
Company or any of the Company Subsidiaries before the National Labor Relations
Board, or any similar foreign labor relations governmental bodies, or any
current union representation questions involving employees of the Company or any
Company Subsidiary; and (iii) there is no strike, slowdown, work stoppage or
lockout, or, to the Knowledge of Seller and the Company, threat thereof, by or
with respect to any employees of the Company or its Subsidiary. Except as set
forth on Schedule B.17, the Company and the Company Subsidiaries are not parties
to any collective bargaining agreements. Except as set forth on Schedule B.17,
to the Knowledge of Seller and the Company, there are no controversies pending
or threatened between the Company or its Subsidiary and any of their respective
employees, except for such controversies that would not be reasonably likely to
have a Company Material Adverse Effect.
B.18 Insurance Policies. Schedule B.18 contains a complete and correct
list of all insurance policies carried by or for the benefit of the Company and
each Company Subsidiary, specifying the insurer, amount of and nature of
coverage, the risk insured against, the deductible amount (if any), the type of
insurance (e.g. claims made, occurrence, etc.) and the date through which
coverage will continue by virtue of premiums already paid. Except as disclosed
on Schedule B.18, all such insurance has been in effect since the Formation
Date. The Company and each Company Subsidiary maintains insurance with reputable
insurers for the business and assets of the Company and each Company Subsidiary
against all risks normally insured against, and in amounts normally carried, by
businesses of similar size engaged in similar lines of business and such
coverage is sufficient. All insurance policies and bonds with respect to the
business and assets of the Company and each Company Subsidiary are in full force
and effect and will be maintained by the Company or such Company Subsidiary, as
the case may be, in full force and effect as they apply to any matter, action or
event relating to the Company or such Company Subsidiary occurring through the
Closing Date, and neither the Company nor any Company Subsidiary has reached or
exceeded its policy limits for any insurance policies in effect at any time
during the past five years.
B.19 Environmental, Health and Safety Matters. Except as set forth in
Schedule B.19:
(a) the Company and each Company Subsidiary possesses, and is in
full
B-16
compliance with, all material permits, licenses and government
authorizations and has filed all notices that are required under all
Environmental Laws, and the Company and each Company Subsidiary is in
compliance with all applicable limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and
timetables contained in any Environmental Laws or contained in any law,
regulation, code, plan, order, decree, judgment, notice or permit
issued, entered, promulgated or approved thereunder, except where
failure to file such notice or to comply with such limitations,
restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables would not reasonably be expected
to result in a Company Material Adverse Effect;
(b) neither the Company nor any Company Subsidiary has received
notice of actual or threatened liability under CERCLA or any similar
foreign, state or local statute or ordinance from any governmental
agency or any third party and, to the Knowledge of the Company, there
are no facts or circumstances which could form the basis for the
assertion of any claim against the Company or any Company Subsidiary
under any Environmental Laws including, without limitation, CERCLA or
any similar local, state or foreign law with respect to any on-site or
off-site location;
(c) neither the Company nor any Company Subsidiary has entered
into or agreed to enter into, and neither the Company nor any Company
Subsidiary contemplates entering into, any consent decree or order, and
neither the Company nor any Company Subsidiary is subject to any
judgment, decree or judicial or administrative order relating to
compliance with, or the cleanup of Hazardous Materials under, any
applicable Environmental Laws;
(d) neither the Company nor any Company Subsidiary has been found
to be in violation of, nor been subject to any administrative or
judicial proceeding pursuant to, applicable Environmental Laws or
regulations either now or any time since the Formation Date;
(e) neither the Company nor any Company Subsidiary is subject to
any claim, obligation, liability, loss, damage or expense of whatever
kind or nature, contingent or otherwise, incurred or imposed or based
upon any provision of any Environmental Law or arising out of any act
or omission of the Company or any Company Subsidiary, or the Company's
or any Company Subsidiary's employees, agents or representatives or
arising out of the ownership, use, control or operation by the Company
or any Company Subsidiary of any plant, facility, site, area or
property (including, without limitation, any plant, facility, site,
area or property currently or previously owned or leased by the Company
or any Company Subsidiary) from which any Hazardous Materials were
released into the environment (the term "release" meaning any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping or disposing into the environment, and the
term "environment" meaning any surface or ground water, drinking water
supply, soil, surface or subsurface strata or medium, or the ambient
air);
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(f) the Company has not paid any fines, penalties or assessments
since the Formation Date with respect to environmental matters; and
(g) no Hazardous Substances have been released into the soil,
surface water or ground water in amounts requiring investigation or
cleanup pursuant to Environmental Law at the Owned Properties or, as a
result of the Company's or any Company Subsidiary's operations, at the
Leased Properties.
B.20 Intellectual Property; Software.
(a) Schedule B.20(a) sets forth a true and correct list of all
Intellectual Property that is used by the Company or any Company
Subsidiary, or that the Company or any Company Subsidiary claims an
ownership interest, or that the Company or any Company Subsidiary is a
licensee or licensor and the jurisdictions where each is registered (if
any) (the "Company Intellectual Property"). Except as set forth on
Schedule B.20(a), the Company and each Company Subsidiary, as the case
may be, has good and marketable title to or possesses adequate licenses
or other valid rights to use such Company Intellectual Property as it
is used, has been used or is intended to be used, free and clear of all
Encumbrances and has paid all maintenance fees, renewals or expenses
related to such Intellectual Property. The Company Intellectual
Property contains all Intellectual Property necessary to conduct the
business of Company and Company Subsidiaries as such business currently
is conducted.
(b) Schedule B.20(b) sets forth a true and complete list of all
software owned by the Company or any Company Subsidiary.
(c) Except as required under the terms of a Government Contract,
neither the Company nor any Company Subsidiary has granted rights in
Company Intellectual Property to any third party.
(d) Neither Seller nor the Company has received any written claim
from any third party alleging infringement of said third party's
Intellectual Property which is based on the use of such by the Company
or any of the Company Subsidiaries in connection with the conduct of
the Business and which would reasonably be expected to have a Company
Material Adverse Effect, except as otherwise set forth on Schedule
B.20(d).
B.21 Transactions with Affiliates. Except as set forth in Schedule
B.21, no director, manager, officer or member of Seller, the Company or any
Company Subsidiary, or any person with whom any such director, manager, officer
or member has any direct or indirect relation by blood, marriage or adoption, or
any entity in which any such Person, owns any beneficial interest (other than a
publicly held corporation whose stock is traded on a national securities
exchange or in the over-the-counter market and less than five percent of the
stock of which is beneficially owned by all such Persons in the aggregate) or
any Affiliate of any of the foregoing or any current or former Affiliate of the
Company has any interest in: (a) any contract, arrangement or understanding
with, or relating to, the Business or the properties or assets of the Business;
(b)
B-18
any loan, arrangement, understanding, agreement or contract for or relating to
the Business or the properties or assets of the Business; or (c) any property
(real, personal or mixed), tangible or intangible, used or currently intended to
be used by the Company or any Company Subsidiary.
B.22 Customer and Supplier Relations. The Company and each Company
Subsidiary maintains good relations with each of its customers, and, to the
Knowledge of Seller and the Company, no event has occurred that would materially
and adversely affect the Company's or any Company Subsidiary's relations with
any such customer. Neither Seller, the Company nor any Company Subsidiary has
received any notice to the effect that any current customer or supplier may or
intends to terminate or materially alter its business relations with the Company
or any Company Subsidiary, either as a result of the transactions contemplated
by this Agreement or otherwise. Schedule B.22 sets forth the ten largest
suppliers, all sole source suppliers and the ten largest customers, for the
12-month period ending on the date of this Agreement, of the Company and the
Company Subsidiaries. During such 12-month period, none of the ten largest
customers has canceled in whole or in part its Contract with the Company or any
Company Subsidiary, as applicable, to purchase products or services (or, to the
Knowledge of the Company, threatened to do any of the foregoing). During such
12-month period, none of the ten largest suppliers and none of the sole source
suppliers has canceled in whole or in part its Contract to supply services or
supplies to the Company or any Company Subsidiary (or, to the knowledge of
Seller and Company, threatened to do any of the foregoing).
B.23 Licenses and Permits. The Company and each Company Subsidiary owns
or possesses all of the notifications, licenses, permits (including, without
limitation, environmental, construction and operation permits), franchises,
certificates, approvals, exemptions classifications, registrations and other
similar documents and authorizations, and applications therefor (collectively,
the "Licenses") that are necessary to enable it to carry on the Business as
presently conducted, except where the failure to so own or possess such License
could not reasonably be expected to have a Company Material Adverse Effect.
B.24 Brokers, Finders and Investment Bankers. Except for Credit Suisse
First Boston LLC, neither Seller, the Company or any Company Subsidiary, nor any
of their Representatives, has employed any broker, finder or investment banker
or incurred any liability for any investment banking fees, financial advisory
fees, brokerage fees or finders' fees in connection with the Contemplated
Transactions.
B.25 Warranties. Other than as may be imposed by generally Applicable
Laws and except as disclosed on Schedule B.25, there are not any warranties,
express or implied, written or oral, with respect to the products or services of
the Company or any Company Subsidiary, and there are no claims pending or, to
the Knowledge of Seller or the Company, threatened, with respect to any such
warranty. Since the Formation Date, the Company has not recorded significant
warranty expense charges. The Company has not established any reserves for
warranties on the Opening Balance Sheet. Schedule B.25, includes a copy of the
form of all written warranties furnished by the Company and the Company
Subsidiaries to purchasers of any product sold or services provided by the
Company or the Company Subsidiaries since the Formation Date.
X-00
X.00 Xxxxxxxxxxx. The receivables of the Company and each Company
Subsidiary (including accounts receivable, loans receivable and advances) that
are included in the Opening Balance Sheet have arisen only from bona fide
transactions in the ordinary course of business consistent with past practice.
Neither Seller nor the Company has any Knowledge of any facts or circumstances
generally (other than general economic conditions) that would be likely to
result in any material increase in the uncollectability of such receivables as a
class in excess of the reserves therefor (if any) set forth on the Opening
Balance Sheet. There has not been any material adverse change in the
collectibility of such receivables during the past 12 months. Schedule B.26 sets
forth a list of all receivables, which are more than 60 days past due, and of
all receivables classified as doubtful accounts.
B.27 Order Backlog. A true and complete list of (a) the backlog in
respect of all firm product and service purchase orders and contracts for the
sale of goods or the delivery of services by the Company and each Company
Subsidiary to Persons other than Governmental Entities, and (b) the backlog in
respect of all firm funded product and service purchase orders and contracts for
the sale of goods or the delivery of services by the Company to Governmental
Entities (collectively, the "Backlog") pending as of the latest practical date
prior to the date of this Agreement is set forth in Schedule B.27. The Backlog
does not include any revenue from the sale of goods or the delivery of services
by Company that has been recognized in the unaudited statement of income for the
6-month period ended June 27, 2003 included in the Financials Statements.
B.28 Inventories. Except as set forth on Schedule B.28 and net of
reserves as included in the Opening Balance Sheet, inventories are of such
quality as to meet the quality control standards of Company and each Company
Subsidiary and any applicable governmental quality control standard and are
usable in the ordinary course of business consistent with past practice.
B.29 Government Furnished Equipment. The Company has made available to
Purchaser the most recent schedule delivered by the Company and each Company
Subsidiary to the U.S. Government or any non-U.S. government, which identifies
by description or by inventory number certain equipment and fixtures loaned,
bailed or otherwise furnished to or held by the Company and each Company
Subsidiary by or on behalf of the United States or any foreign country. Such
schedule was accurate and complete on its date and, if dated on the Closing
Date, would contain only those additions and omit only those deletions of
equipment and fixtures that have occurred in the ordinary course of business
consistent with past practice.
B.30 Assets. The assets of the Company and the Company Subsidiaries
include all assets reasonably required for the conduct of the business of the
Company and the Company Subsidiaries as such business is now being conducted.
B.31 Organizational Conflicts of Interest. Except as set forth on
Schedule B.31, since the Formation Date, Seller, the Company and the Company
Subsidiaries, have not, to Seller's and the Company's Knowledge, had access to
non-public information nor provided systems engineering, technical direction,
consultation, technical evaluation, source selection services or services of any
type, nor prepared specifications or statements of work, nor engaged in any
other
B-20
conduct that would create in any current Government procurement an
Organizational Conflict of Interest, as defined in Federal Acquisition
Regulation 9.501, with the Company or any Company Subsidiary.
B.32 Disclosure. This Agreement contains no untrue statement of a
material fact or omits to state any material fact necessary in order to make the
statements contained herein, in light of the circumstances under which such
statements were made, not misleading.
B.33 Other Indebtedness. Except as set forth on Schedule B.33, none of
the Company and the Company Subsidiaries has any Other Indebtedness.
B-21
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF PURCHASER
The representation and warranties of Purchaser contained in this
Exhibit C (other than those contained in Section C-2) shall be deemed true and
correct, and Purchaser shall not be deemed to have breached any such
representation or warranty as a consequence of the existence of any fact, event
or circumstance inconsistent with such representation or warranty, unless such
fact, event or circumstance, individually or taken together with all other
facts, events or circumstances inconsistent with any representation or warranty
contained in this Exhibit C, has had or could reasonably be expected to have a
Purchaser Material Adverse Effect, disregarding for these purposes (i) any
qualification or exception for, or reference to, materiality in any such
representation or warranty and (ii) any use of the terms "material,"
"materiality," "in all material respects" or similar terms or phrases in any
such representation or warranty. The representations and warranties in Section
C-2 shall not be qualified by the preceding sentence.
Except as set forth on the Schedule (it being understood that an item
included on a Schedule referenced in any Section or subsection of this Exhibit C
shall be deemed to relate to each other Section or subsection of this Exhibit C
to the extent such relationship is reasonably apparent), and subject to the
preceding paragraph, Purchaser hereby represents and warrants to Seller, as
follows:
C.1 Organization. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted.
C.2 Authorization. Purchaser has full corporate power and authority to
execute and deliver this Agreement and each of the Transaction Documents to
which Purchaser is a party, to perform its obligations under this Agreement and
the Transaction Documents and to consummate the transactions contemplated by
this Agreement and the Transaction Documents. The execution and delivery of this
Agreement and each of the Transaction Documents to which Purchaser is a party by
Purchaser, the performance by Purchaser of its obligations hereunder and
thereunder, and the consummation of the transactions provided for herein and
therein have been duly and validly authorized by all necessary corporate action
on the part of Purchaser. This Agreement has been and, as of the Closing Date,
the Transaction Documents to which Purchaser is a party will be, duly executed
and delivered by Purchaser and do or will, as the case may be, constitute the
valid and binding agreements of Purchaser, enforceable against Purchaser in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency and other similar laws affecting the enforceability of creditors'
rights generally, general equitable principles and the discretion of courts in
granting equitable remedies.
C.3 Absence of Restrictions and Conflicts. The execution, delivery and
performance of this Agreement and each of the Transaction Documents to which
Purchaser is a party, the
C-1
consummation of the transactions contemplated hereby and thereby, and the
fulfillment of and compliance with the terms and conditions of herein and
therein by Purchaser do not or will not (as the case may be), with the passing
of time or the giving of notice or both, violate or conflict with, constitute a
breach of or default under, result in the loss of any benefit under, or permit
the acceleration of any obligation under, (a) any term or provision of the
charter or bylaws of Purchaser, (b) any material contract to which Purchaser is
a party, (c) any judgment, decree or order of any Governmental Entity to which
Purchaser is a party or by which Purchaser or any of its properties is bound or
(d) assuming compliance with the requirements under the HSR Act, any statute,
law, rule or regulation applicable to Purchaser, except in the case of the
foregoing clauses (b), (c) and (d) for violations, conflicts, breaches or
defaults that could not reasonably be expected to have a Purchaser Material
Adverse Effect. No consent, approval, order or authorization of, or
registration, declaration or filing with, any governmental agency or public or
regulatory unit, agency or authority is required with respect to Purchaser in
connection with the execution, delivery or performance of this Agreement or the
Transaction Documents or the consummation of the transactions contemplated
hereby or thereby except as required by the HSR Act.
C.4 Investment Representation. Purchaser is acquiring the membership
interests of the Company for its own account for purposes of investment and not
with a present view to the distribution thereof or dividing all or any part of
its interest therein with any other Person. Purchaser acknowledges that the sale
of the membership interests of the Company has not been registered under the
Securities Laws and that the membership interests may not be transferred without
registration under or pursuant to an exemption from registration under the
Securities Laws.
C.5 Legal Proceedings. There are no suits, actions, claims, arbitration
proceedings or investigations pending or, to the Knowledge of Purchaser,
threatened against Purchaser which, if adversely determined, would reasonably be
expected to have a Purchaser Material Adverse Effect.
C.6 Brokers, Finders and Investment Bankers. Neither Purchaser nor any
of its Representatives has employed any broker, finder or investment banker or
incurred any liability for any investment banking fees, financial advisory fees,
brokerage fees or finders' fees in connection with the Contemplated Transactions
that would create any liability of Seller or the Company.
C-2
ATTACHMENT I
Legal Opinion of Counsel to Seller
1. Each of Seller and the Company is a limited liability company duly
formed and in good standing and is validly existing under the laws of the State
of Delaware. Each of Seller and the Company has the limited liability company
power and authority to enter into and to perform its obligations under the
Transaction Agreement and to consummate the Contemplated Transactions.
2. Each Company Subsidiary is a limited liability company duly formed
and in good standing and is validly existing under the laws of the State of
Delaware.
3. The execution and delivery by Seller and the Company of the
Transaction Agreement and the performance by Seller and the Company of the
Contemplated Transactions have been duly authorized by all necessary limited
liability company action on the part of Seller and the Company. No consent on
the part of any of the members of Seller is necessary for Seller to execute and
deliver this Agreement and the other Transaction Documents to which it is a
party, to perform its obligations herein and therein, and to consummate the
transactions contemplated hereby or thereby.
4. The Transaction Agreement has been duly executed and delivered by
Seller and the Company and constitutes the valid and legally binding obligation
of Seller and the Company, enforceable against them in accordance with its
terms.
5. Neither the execution or delivery by Seller and the Company of the
Transaction Agreement nor the performance of their obligations thereunder nor
the consummation by Seller and the Company of the Contemplated Transactions will
violate any provision of the certificate of formation or limited liability
company agreement of Seller or the Company.
6. Neither the execution or delivery by Seller and the Company of the
Transaction Agreement nor the consummation by Seller and the Company of the
Contemplated Transactions will require any consent, approval or authorization
of, or any registration, declaration or filing with, the State of New York or
the United States of America, or any of their respective agencies.
7. Upon admission of Purchaser, and simultaneous withdrawal of Seller,
as a member of the Company and delivery by Seller to Purchaser of the membership
certificate representing the entire interest held by Seller in the Company,
Purchaser will be the sole member of the Company and hold Seller's entire
interest in the Company.
ATTACHMENT II
Legal Opinion of Counsel to Purchaser
1. Purchaser is a corporation duly incorporated and in good standing
and has a legal corporate existence under the laws of the State of Delaware.
Purchaser has the corporate power and authority to enter into and to perform its
obligations under the Transaction Agreement and to consummate the Contemplated
Transactions.
2. The execution and delivery by Purchaser of the Transaction Agreement
and the performance by Purchaser of the Contemplated Transactions have been duly
authorized by all necessary corporate action on the part of Purchaser.
3. The Transaction Agreement has been duly executed and delivered by
Purchaser and constitutes the valid and legally binding obligation of Purchaser,
enforceable against it in accordance with its terms.
4. Neither the execution or delivery by Purchaser of the Transaction
Agreement nor the performance of its obligations thereunder nor the consummation
by Purchaser of the Contemplated Transactions will violate any provision of the
certificate of incorporation or bylaws of Purchaser.
5. Neither the execution or delivery by Purchaser of the Transaction
Agreement nor the consummation by Purchaser of the Contemplated Transactions
will require any consent, approval or authorization of, or any registration,
declaration or filing with, the State of New York or the United States of
America, or any of their respective agencies.
ATTACHMENT III
OPENING BALANCE SHEET
1. Cash and equivalents are/will be excluded for the purposes of the
Opening Balance Sheet and the Final Net Asset Amount calculation.
2. Unbilled contract receivables consist of unbilled government and
commercial receivables for work performed prior to September 26, 2003.
3. Accounts receivables, net of allowance for doubtful accounts consist of
billed government and commercial receivables for work performed prior
to September 26, 2003.
4. Work in process represents cost and estimated earnings in excess of
xxxxxxxx on uncompleted contracts. Specifically this represents (a) the
difference between total contract costs incurred to date and amounts
recognized in cost of sales under various long term contracts; (b)
contract costs incurred on unapproved change orders where approval is
probable; (c) cost incurred on contracts prior to September 26, 2003
for which required documentation and approval, necessary to invoice for
work performed, had not been received by the Company from our
government or commercial customers.
5. Inventories, net consist of parts used in aircraft maintenance and
include consumables and new and used repairable parts. Consumable parts
represent items that are expended through utilization in performance
under contracts. Inventories of consumable and new parts used in the
performance of contracts are valued at the lower of cost or market
value, and cost is determined on the first-in, first-out basis. Used
repairable parts, which are parts recovered in aircraft maintenance
operations and repaired, are included in inventory at the average cost
of comparable items. The cost of refurbishing repairable inventory is a
current asset of the Company. A reserve is established for inventory
items that are considered excess or obsolete.
6. Prepaid expenses & other current assets consist primarily of insurance
premiums through the policy period expiring June 27, 2004.
7. Core inventory, net represents repairable inventory that contains a
repairable "core" that may be refurbished and used to service
contracts. In performance under a program, Company owned inventory is
placed on an aircraft and customer parts are removed and refurbished.
This process effectively rotates cores through the Company's inventory.
In performance under the Company's contracts, customers are billed for
the repair cost, but not the value of the core, as the Company
permanently retains core values. As of September 26, 2003 there are no
management plans to dispose of repairable inventory through a sale
during the
coming year. Therefore the core values of repairable inventory are
included as non-current assets.
8. Property, plant and equipment include land, special mission modified
aircraft, aircraft engines, leasehold improvements, vehicles and
transportation equipment, computer equipment and software, furniture
and fixtures and machinery and equipment required to support contracts,
stated at cost less accumulated depreciation.
9. Intangible assets net consist of separately identifiable intangible
assets and goodwill created in connection with the 2001 transaction and
the December 2002 acquisition of Flight. Intangible assets net are/will
be excluded for purposes of the Opening Balance Sheet and the Final Net
Asset Amount calculation.
10. Drafts outstanding represent book overdrafts resulting from uncleared
checks to third parties against Company bank accounts.
11. Accounts payable consists primarily of third party trade payables.
12. Accrued salaries, wages and benefits primarily consist of accrued
payroll, vacation, and related payroll taxes.
13. Accrued expenses consists primarily of Customer advance payments
($600,344), accrued legal reserves ($905,000), accrued group health
IBNR ($629,654), accrued workers comp IBNR ($5,556,882), accrued
pension expense cost sharing with the predecessor owner ($736,309), and
accrued engine & fuel expenses for Flight ($2,071,058). Excluded from
the Opening Balance Sheet and the Final Net Asset Amount calculation
are/will be accrued members tax distributions ($11,860) and accrued
interest expense on existing Bank Debt and Senior Subordinated debt
($3,247,009).
14. Accrued contract loss represents management's estimate of the total
future loss through 2004 on the C-21 CLS contract and the Raytheon
Australia [aircraft serial number 611] special mission aircraft
modification program. Current portion of the accrued contract loss is
($6,864,698) and the long-term portion is ($2,272,630).
15. All Indebtedness (as defined in this Agreement) has been/will be
excluded from the Opening Balance Sheet and (to the extent paid or
satisfied before or at the Closing) the Final Net Asset Amount
calculation. If any Other Indebtedness (as defined in this Agreement)
exists at the Closing, then such Other Indebtedness, other than the
letters of credit listed on Schedule B.33 which will be replaced by
Purchaser, will be included in the Final Net Asset Amount calculation.
16. Other short-term debt consists of the current portion of capitalized
leases and the short-term component of a payable to the Air force for
C-12 inventory purchases.
As of September 26, 2003 the Company had no liabilities established for
the costs associated with the 2003 S-1 preparation or expenses
associated with the Contemplated Transaction with L-3. For purposes of
the Final Net Asset Amount calculation, the Company will exclude all
expenses (including but not limited to legal expenses, accounting
expenses, investment banking services (from CSFB), and expenses
incurred with the financial printers) in connection with the 2003 S-1
preparation and the Contemplated Transaction with L-3.
17. Derivative financial instrument represents two interest rate hedge
agreements on the Company's existing Bank debt facility. These
liabilities are/will be excluded from the Opening Balance Sheet and (to
the extent paid or satisfied before or at the Closing) the Final Net
Asset amount calculation.
18. Other long-term debt, net of current consists of the remaining
liability for capitalized leases and the long-term component of a
payable to the Air force for C-12 inventory purchases.
19. The Company had no other long-term liabilities as of September 26,
2003.
20. Members Capital account is/will be excluded from the Opening Balance
Sheet and the Final Net Asset Amount calculation.
VERTEX AEROSPACE LLC
OPENING BALANCE SHEET
AS OF SEPTEMBER 26, 2003 (MANAGEMENT ACCOUNTS -
UNAUDITED)
As of
Notes September 26, 2003 Adjustments Net Assets
------------------ ----------- ----------
ASSETS
Cash and Equivalents 1 $12,354,281 ($12,354,281) $0
Unbilled Contract Receivables 2 $35,488,127 $0 $35,488,127
Accounts Receivables (A/R), net of allowance for
doubtful accounts 3 $54,878,789 $0 $54,878,789
Work in Process 4 $11,373,482 $0 $11,373,482
Inventories, net 5 $35,347,020 $0 $35,347,020
Prepaid expenses & other current assets 6 $2,091,036 $0 $2,091,036
----------------------- ---------------- --------------------------
Total Current Assets $151,532,735 ($12,354,281) $139,178,454
Core Inventory, net 7 $29,212,122 $0 $29,212,122
Net Property, Plant & Equipment 8 $49,436,187 $0 $49,436,187
Intangible Assets, net 9 $146,016,275 ($146,016,275) $0
Other Assets $0 $0 $0
----------------------- ---------------- --------------------------
Total Assets $376,197,319 ($146,016,275) $217,826,763
======================= ================ ==========================
LIABILITIES AND EQUITY
Drafts Outstanding 10 $0 $0 $0
Accounts Payable 11 ($30,684,463) $0 ($30,684,463)
Accrued Salaries/ Wages & benefits 12 ($22,950,414) $0 ($22,950,414)
Accrued Expenses 13 ($13,758,117) $3,258,869 ($10,499,248)
Accrued contract loss - current 14 ($6,864,698) $0 ($6,864,698)
Current Portion of Bank Tranche A Debt 15 ($10,000,000) $10,000,000 $0
Current Portion of Bank Tranche B Debt 15 ($1,480,000) $1,480,000 $0
Other Short Term Debt 16 ($342,958) $0 ($342,958)
----------------------- ---------------- --------------------------
Total Current Liabilities ($86,080,651) $14,738,869 ($71,341,782)
Derivative Financial Instrument 17 ($1,976,855) $1,976,855 $0
Accrued Contract Loss, net of Current 14 ($2,272,630) $0 ($2,272,630)
Long Term Portion of Bank Tranche A Debt, net of
current 15 ($28,000,000) $28,000,000 $0
Long Term Portion of Bank Tranche B Debt, net of
current 15 ($145,000,000) $145,000,000 $0
Long Term Senior Sub-Debt 15 ($81,760,305) $81,760,305 $0
Other Long-term debt, net of current 18 ($2,605,897) $0 ($2,605,897)
Other Liabilities 19 $0 $0 $0
----------------------- ---------------- --------------------------
TOTAL LIABILITIES ($347,696,338) $256,737,160 ($76,220,309)
Raytheon Preferred $0 $0 $0
Members Capital 20 ($28,500,981) $28,500,981 $0
----------------------- ---------------- --------------------------
TOTAL EQUITY ($28,500,981) $28,500,981 $0
----------------------- ---------------- --------------------------
TOTAL LIABILITIES & EQUITY ($376,197,319) $285,238,141 ($76,220,309)
======================= ================ ==========================
NET ASSETS $139,221,866 $141,606,454
