EXHIBIT 2
STOCK PURCHASE AGREEMENT
dated as of
August 15, 2003
between
SARATOGA LIGHTING HOLDINGS LLC,
and
GENERAL ELECTRIC COMPANY
acting through its GE CONSUMER PRODUCTS business component
relating to the purchase and sale
of
Common Stock, Preferred Stock and Other Rights
of
ADVANCED LIGHTING TECHNOLOGIES, INC.
STOCK PURCHASE AGREEMENT
AGREEMENT dated as of August 15, 2003 by and between SARATOGA LIGHTING
HOLDINGS LLC, ("Buyer") and GENERAL ELECTRIC COMPANY, acting through its GE
CONSUMER PRODUCTS business component ("Seller").
W I T N E S S E T H:
WHEREAS, Seller is the record and beneficial owner of the Securities (as
defined below) and the rights under the Assigned Agreements (as defined below)
and desires to sell the Securities and the rights under the Assigned Agreements
to Buyer, and Buyer desires to purchase the Securities and the rights under the
Assigned Agreements from Seller, upon the terms and subject to the obtaining of
required approvals, if any, and court orders required, if any, all as
hereinafter set forth;
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. (a) The following terms, as used herein, have
the following meanings:
"Affiliate" means, with respect to any Person, any other Person directly
or indirectly controlling, controlled by, or under common control with such
Person; provided that neither the Company nor any subsidiary of the Company
shall be considered an Affiliate of Seller.
"Assigned Agreements" means (i) the Contingent Warrant Agreement, (ii) the
Registration Rights Agreement dated as of September 30, 1999 (as subsequently
amended) by and between the Company and the Seller, (iii) the Right of First
Refusal and Co-Sale Agreement dated as of September 30, 1999 (as subsequently
amended) by and among the Seller and the other parties listed on the signature
pages thereto, (iv) the Options, (v) the Stock Purchase Agreement, and (vi) the
Irrevocable Proxies granted to Seller and dated October 6, 1999.
"Bankruptcy Court" means the United States Bankruptcy Court for the
Northern District of Illinois, Eastern Division.
"Business Day" means a day, other than Saturday, Sunday or other day on
which commercial banks in New York, New York are authorized or required by law
to close.
"Common Stock" means the common stock, par value $.001 per share, of the
Company.
"Company" means ADVANCED LIGHTING TECHNOLOGIES, INC.
"Contingent Warrant Agreement" means the Contingent Warrant Agreement
dated as of September 30, 1999 (as subsequently amended) by and among the
Company, the Seller and the other parties identified on the signature pages
thereto.
"Lien" means, with respect to any property or asset, any mortgage, lien,
pledge, charge, security interest, encumbrance or other adverse claim of any
kind in respect of such property or asset. For the purposes of this Agreement,
a Person shall be deemed to own subject to a Lien any property or asset which
it has acquired or holds subject to the interest of a vendor or lessor under
any conditional sale agreement, capital lease or other title retention
agreement relating to such property or asset.
"Options" means the Option Agreement dated as of September 30, 1999 (as
subsequently amended) by and among Seller and the other parties listed on the
signature pages thereto and the options issued and issuable thereunder.
"Person" means an individual, corporation, partnership, limited liability
company, association, trust, estate or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
"Preferred Stock" means the Series A Preferred Stock, par value $.001 per
share, of the Company.
"Stock Purchase Agreement" means the Stock Purchase Agreement dated as of
September 28, 1999 (as subsequently amended) by and between Seller and the
Company.
"Proxies" means the Irrevocable Proxies referred to in the definition of
Assigned Agreements.
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(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
---- -------
Buyer Recitals
Company Recitals
Effective Time 2.01
Package 3.05
Purchase Price 2.01
Securities 3.05
Seller Recitals
Warrant Rights 3.05
ARTICLE 2
PURCHASE AND SALE
Section 2.01. Purchase and Sale. Upon the terms of this Agreement and
effective upon the execution of this Agreement by Seller and Buyer ("Effective
Time"), Seller hereby sells to Buyer, and Buyer hereby buys from Seller, the
Securities. The purchase price for the Securities (the "Purchase Price") is
$12,000,000 in cash. The sale transaction shall be deemed to have occurred and
be effective at the Effective Time, irrespective of when the payment of the
Purchase Price and the delivery of certificates for the Securities shall have
been completed. The Purchase Price shall be paid as provided in Section
2.02(a). The delivery of certificates for the Securities shall be as provided
for in Section 2.02(b).
Section 2.02. (a) Payment of Purchase Price. Promptly after the Effective
Time, Buyer shall deliver to Seller $12,000,000 in immediately available funds
by wire transfer (or other equivalent means, satisfactory to Seller) to Bankers
Trust (a/k/a Deutsche Bank); New York, N.Y - ABA No. 000000000; Account Name:
GE Company; Account No.: 00000000; Reference: GE Lighting; and
(b) Delivery of Certificates for the Securities. Promptly after receipt of
the funds transfer referred to in Section 2.02(a), Seller shall deliver to
Buyer, at its address set forth in Section 7.01, certificates for the
Securities together with all other necessary endorsements and signature
guarantees and other evidence and documents, in form and substance sufficient
to trigger the Company's duty to register transfer of the Securities to Buyer
under ss.8-401 of the applicable Uniform Commercial Code.
(c) Transfer Tax. Buyer will be responsible for transfer taxes, if any.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as of the date hereof that:
Section 3.01. Corporate Existence and Power. Seller is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation.
Section 3.02. Corporate Authorization. The execution, delivery and
performance by Seller of this Agreement and the consummation of the
transactions contemplated hereby are within Seller's corporate powers and have
been duly authorized by all necessary corporate action on the part of Seller.
This Agreement constitutes a valid and binding agreement of Seller.
Section 3.03. Governmental Authorization. The execution, delivery and
performance by Seller of this Agreement and the consummation of the
transactions contemplated hereby require no action by or in respect of, or
filing with, any governmental body, agency or official.
Section 3.04. Noncontravention. The execution, delivery and performance by
Seller of this Agreement and the consummation of the transactions contemplated
hereby do not and will not (i) violate the certificate of incorporation or
bylaws of Seller, (ii) assuming compliance with the matters referred to in
Section 3.03, violate any applicable law, rule, regulation, judgment,
injunction, order or decree, or (iii) except for required consents of the
Company, if any, and approvals of the Bankruptcy Court, if any, regarding
transfer of Seller's rights under the Contingent Warrant Agreement, the Options
and the Stock Purchase Agreement, require any consent or other action by any
Person under, constitute a default under, or give rise to any right of
termination, cancellation or acceleration of any right or obligation of Seller
under any provision of any agreement or other instrument binding upon Seller.
Section 3.05. Ownership Of Securities and Rights to Contingent Warrants,
etc. (a) Seller owns (i) 1,429,590 shares of Common Stock and (ii) 761,250
shares of Preferred Stock (the "Securities"). The Securities are the only
issued and outstanding equity securities of the Company held by Seller,
directly or indirectly. In addition, Seller owns the right to receive warrants
for that number of shares of Common Stock specified in the Contingent Warrant
Agreement ("Warrant Rights"), with respect to which an application for
authority for issuance, filed by the Company, is pending before the Bankruptcy
Court. Seller also owns the rights existing under the Proxies and the Options.
The Securities, the Warrant Rights, the Options and the Proxies are herein
collectively called the "Package."
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(b) Seller is the record and beneficial owner of the Package, free and
clear of any Lien and any other limitation or restriction (including any
restriction on the right to vote, sell or otherwise dispose of the Securities),
except as the consent of the Company and the approval of the Bankruptcy Court
may be required for transfer of the Warrant Rights and the Options. Upon
receipt of funds as provided for in Section 2.02(a), Seller will transfer and
deliver to Buyer as provided in Section 2.02 (b) valid title to the Securities
free and clear of any Lien and any such limitation or restriction. Upon the
delivery by the Company of the consent of the Company and the obtaining by the
Company of such approval of the Bankruptcy Court, if any, as may be required
for transfer of the Warrant Rights and the Options, Seller will take all
reasonable and necessary steps to deliver the same so that they may be
effectively held and exercised by Buyer the same as if they were delivered at
the Effective Time on the assumption that no consents and approvals were ever
called for.
Section 3.06. Other Agreements. Other than the Assigned Agreements, there
are no agreements, written or oral, among or on behalf of, on the one hand, any
of the Company and/or the shareholders of the Company and, on the other hand,
the Seller or any of its Affiliates that relate, directly or indirectly, to
Seller's rights and obligations with respect to the Securities.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as of the date hereof:
Section 4.01. Entity Existence and Power. Buyer is a limited liability
company duly formed, validly existing and in good standing under the laws of
its jurisdiction of formation.
Section 4.02. Entity Authorization. The execution, delivery and
performance by Buyer of this Agreement and the consummation of the transactions
contemplated hereby are within the powers of Buyer and have been duly
authorized by all necessary action on the part of Buyer. This Agreement
constitutes a valid and binding agreement of Buyer.
Section 4.03. Governmental Authorization. The execution, delivery and
performance by Buyer of this Agreement and the consummation of the transactions
contemplated hereby require no material action by or in respect of, or filing
with, any governmental body, agency or official.
Section 4.04. Noncontravention. The execution, delivery and performance by
Buyer of this Agreement and the consummation of the
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transactions contemplated hereby do not and will not (i) violate the
organization documents of Buyer or (ii) subject, with respect to the Warrant
Rights and the Options to obtaining such consents of the Company, if any, and
approvals of the Bankruptcy Court, if any, as may be required, (a) violate any
applicable material law, rule, regulation, judgment, injunction, order or
decree or (b) require any consent or other action by any Person under,
constitute a default under, or give rise to any right of termination,
cancellation or acceleration of any right or obligation of Buyer under any
provision of any agreement or other instrument binding upon Buyer.
Section 4.05. Purchase for Investment. Buyer is purchasing the Securities,
the Options and the Warrant Rights for investment for its own account and not
with a view to, or for sale in connection with, any distribution thereof. Buyer
(either alone or together with its advisors) has sufficient knowledge and
experience in financial and business matters so as to be capable of evaluating
the merits and risks of its investment in the Securities and is capable of
bearing the economic risks of such investment.
ARTICLE 5
COVENANTS OF SELLER
Seller agrees that:
Section 5.01. Confidentiality. Subject to Section 7.02, Seller and its
Affiliates will hold, and will use commercially reasonable efforts to cause
their respective officers, directors, employees, accountants, counsel,
consultants, advisors and agents to hold, in confidence, unless compelled to
disclose by judicial or administrative process or by other requirements of law,
all confidential documents and information concerning the Company provided by
the Company in the negotiation of this Agreement, except to the extent that
such information can be shown to have been (i) previously known on a
nonconfidential basis by Seller, (ii) in the public domain through no fault of
Seller or its Affiliates or (iii) later lawfully acquired by Seller from
sources other than those related to its prior ownership of the Company.
Section 5.02. Resignations. Promptly after the Effective Time, Seller will
deliver to Buyer the resignations of each of the persons it nominated to be
directors of the Company from the board of directors of the Company.
Section 5.03. Lost Certificates. Seller agrees that, in the event it is
unable to locate any certificate representing ownership of any of the
Securities, it will deliver to the Company evidence satisfactory to the Company
(in the exercise of its reasonable discretion) of the loss, theft or
destruction of such certificate and of
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reasonably satisfactory indemnification, all to the extent required by ss.8-405
of the applicable Uniform Commercial Code. If for any reason Buyer fails to
receive shipment from Seller of the certificates for the Securities and the
related endorsements, it will be Seller's responsibility to see that they are
found and delivered or replaced, all at Seller's expense with no cost to Buyer.
ARTICLE 6
COVENANTS OF BUYER AND SELLER
Buyer and Seller agree that:
Section 6.01. Best Efforts; Further Assurances. Subject to the other terms
and conditions of this Agreement, Buyer and Seller will use commercially
reasonable 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 laws and
regulations to consummate the transactions contemplated by this Agreement.
Section 6.02. Public Announcements. The parties agree to consult with each
other before issuing any press release or making any public statement with
respect to this Agreement or the transactions contemplated hereby and, except
for any press releases and public statements the making of which may be
required by applicable law or any listing agreement with any national
securities exchange, will not issue any such press release or make any such
public statement prior to such consultation.
Section 6.03. Assignment; No Assumption. As an additional benefit to Buyer
in exchange for Buyer's payment for the Securities, Seller hereby transfers and
assigns to Buyer all right, title and interest of Seller (a) to purchase, or
receive, additional equity interests of any description of the Company in
existence on the date of this Agreement and (ii) under the Assigned Agreements,
subject in the case of the transfer and assignment of the Warrant Rights and
the Options, to required consents of the Company, if any, and to required
approvals of the Bankruptcy Court, if any. Should any such consents and
approvals be required, Buyer concedes that it is the responsibility of the
Company to obtain them, not the responsibility of Seller. Accordingly, Seller
will have no liability to Buyer if the same are not obtained and, if the same
are not obtained, Seller will have no duty to deliver or perform with respect
to the foregoing assignments of the Warrant Rights or the Options or both, as
the case may be except that at all times until such required consents and
approvals, if any, are obtained, Seller will not vote or consent under the
Proxies, except as directed by Buyer. The parties acknowledge and agree that
Buyer and its Affiliates assume no liabilities of Seller, whether to the
Company or any one or more of its Affiliates or to anyone else, and that Buyer
shall not be responsible for any such liabilities. Seller hereby
unconditionally
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indemnifies, and agrees to defend and hold harmless, Buyer and its Affiliates
from and against any such liabilities, except to the extent caused by Buyer's
actions or omissions as owner or purchaser of the Securities or assignee of the
Assigned Agreements.
Section 6.04. Further Assignments. Seller agrees that, in the event there
are agreements, written or oral, among or on behalf of, on the one hand, any of
the Company and/or the shareholders of the Company and, on the other hand,
Seller or any of its Affiliates that relate, directly or indirectly, to
Seller's rights and obligations with respect to the Securities and that have
not been assigned to Buyer pursuant to Section 6.03, Seller shall, if directed
by Buyer in its sole and absolute discretion, assign to Buyer all right, title
and interest of Seller under such agreements, subject to the Company (and not
Seller) obtaining all necessary consents, if any, of third parties and court
approvals, if any. The parties shall acknowledge and agree, in connection
therewith, that Buyer and its Affiliates will assume no liabilities of Seller,
whether to the Company or any one or more of its Affiliates or to anyone else,
and that Buyer shall not be responsible for any such liabilities. Also in
connection therewith, Seller will unconditionally indemnify, and agree to
defend and hold harmless, Buyer and its Affiliates from and against any such
liabilities, except to the extent caused by Buyer's actions or omissions as
owner or purchaser of the Securities or assignee of such assigned agreements.
Section 6.05. Purchase, License And Consignment Agreement. Buyer shall use
its commercially reasonable efforts to have the Company and APL Engineered
Materials assume in the bankruptcy proceedings of the Company now pending in
the Bankruptcy Court, the following agreements: the (i) Lamp Materials Purchase
Agreement entered into as of September 30, 1999, between General Electric
Company, acting through its GE Lighting business, and APL Engineered Materials,
Inc. and Advanced Lighting Technologies, Inc., (ii) the Know How and Patent
License and Technical Assistance Agreement dated as of September 30, 1999,
between APL Engineered Materials, Inc., Advanced Lighting Technologies, Inc.
and General Electric Company, acting through its GE Lighting business, and
(iii) the Consignment Agreement entered into as of January 4, 1999, between APL
Engineered Materials, Inc. and GE Lighting ("Consignment Agreement").
Section 6.06. Seller's Waiver and Substitution of Language for Section 13
of Lamp Materials Purchase Agreement Entered Into as of September 30, 1999.
Effective automatically at any time that the Company shall have confirmed a
chapter 11 plan of reorganization and the same shall have become effective, and
Buyer and/or any one or more of its Affiliates shall have the right, directly
or indirectly, to elect a majority of the members of the board of directors of
the Company and any one or more of its successors, Seller hereby waives
compliance by the Company with Section 13 of the Lamp Materials Purchase
Agreement
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entered into as of September 30, 1999, if but only if the Company, in lieu of
compliance with said Section 13, complies with the substituted provisions set
forth on the annexed Schedule A, the same as if the language on Schedule A had
been added to the agreement by amendment.
Section 6.07. Buyer Commitment to Rebate Program. If at any time the
Company shall have confirmed a chapter 11 plan of reorganization and the same
shall have become effective, and Buyer and/or any one or more of its Affiliates
shall have the right, directly or indirectly, to elect a majority of the
members of the board of directors of the Company or any one or more of its
successors, then promptly thereafter Buyer shall cause the Company to offer
Seller (and keep such offer open for at least 30 days), the rebate program
described on the annexed Schedule B. If the Company shall fail to offer Seller
said rebate program, conforming in all material respects with the program in
Schedule B, then Buyer shall be liable to Seller for $3,000,000 which Buyer and
Seller agree is a reasonable estimate of the actual damage Seller would suffer
if the rebate program is not offered.
Section 6.08. Buyer Commitment to Seller Regarding Trade Payables. Buyer
shall use its reasonable commercial efforts to ensure that the Company's trade
payables to Seller are handled in accordance with Schedule C, which shall be
incorporated into the Company's plan of reorganization to be submitted and
approval of which will be sought from the Bankruptcy Court.
ARTICLE 7
MISCELLANEOUS
Section 7.01. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission) and
shall be given,
if to Buyer, to:
Saratoga Lighting Holdings LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
Facsimile No: (000) 000-0000
with a copy to:
0
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Case
Facsimile No.: (000) 000-0000
if to Seller, to:
General Electric Company
Appliance Park, AP35-1119
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
General Counsel
GE Consumer Products
Appliance Park, AP2-225
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5:00 p.m. in the place of
receipt and such day is a Business Day in the place of receipt. Otherwise, any
such notice, request or communication shall be deemed not to have been received
until the next succeeding Business Day in the place of receipt.
Section 7.02. Limited Disclosure Authorization. Notwithstanding any other
provision of this Agreement, each of Buyer and Seller is permitted to disclose
the tax treatment and tax structure of the transactions contemplated hereby
(including any materials, opinions or analyses relating to such tax treatment
or tax structure, but without disclosure of identifying information or, except
to the extent relating to such tax structure or tax treatment, any nonpublic
commercial or financial information). Moreover, notwithstanding any other
provision of this Agreement, there shall be no limitation on Buyer's and
Seller's ability to consult any tax adviser, whether or not independent from
Buyer, Seller or their Affiliates, regarding the tax treatment or tax structure
of the transactions contemplated hereby.
Section 7.03. Survival. The representations and warranties of the parties
hereto contained in this Agreement shall survive the Effective Time
indefinitely.
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Section 7.04. Amendments and Waivers. (a) Any provision of this Agreement
may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed, in the case of an amendment, by each party to this
Agreement, or in the case of a waiver, by the party against whom the waiver is
to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 7.05. Expenses. Except as otherwise provided herein, all costs and
expenses incurred in connection with this Agreement shall be paid by the party
incurring such cost or expense.
Section 7.06. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto; except that (i) Buyer may
transfer or assign, in whole or from time to time in part, to one or more of
its Affiliates, the right to purchase all or a portion of the Securities, but
no such transfer or assignment will relieve Buyer of its obligations hereunder
and (ii) Seller may transfer or assign any of its rights or obligations to any
Affiliate of Seller.
Section 7.07. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of New York, without regard
to the conflicts of law rules of such state.
Section 7.08. Jurisdiction. The parties hereto agree that any suit, action
or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby shall be brought in the United States District Court for
the Southern District of New York or any New York State court sitting in New
York City, so long as one of such courts shall have subject matter jurisdiction
over such suit, action or proceeding, and that any cause of action arising out
of this Agreement shall be deemed to have arisen from a transaction of business
in the State of New York, and each of the parties hereby irrevocably consents
to the jurisdiction of such courts (and of the appropriate appellate courts
therefrom) in any such suit, action or proceeding and irrevocably waives, to
the fullest extent permitted by law, any objection that it may now or hereafter
have to the laying of the venue of any such suit, action or proceeding in any
such court or that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient
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forum. Process in any such suit, action or proceeding may be served on any
party anywhere in the world, whether within or without the jurisdiction of any
such court. Without limiting the foregoing, each party agrees that service of
process on such party as provided in Section 7.01 shall be deemed effective
service of process on such party.
Section 7.09. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 7.10. Counterparts; Effectiveness; Third Party Beneficiaries. This
Agreement may be signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement shall become effective when each party
hereto shall have received a counterpart hereof signed by all of the other
parties hereto. No provision of this Agreement is intended to confer any
rights, benefits, remedies, obligations, or liabilities hereunder upon any
Person other than the parties hereto and their respective successors and
assigns.
Section 7.11. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter of this
Agreement.
Section 7.12. Captions. The captions herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof.
Section 7.13. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon such
a determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent
possible.
Section 7.14. Specific Performance. The parties hereto agree that
irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
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entitled to an injunction or injunctions to prevent breaches of this Agreement
or to enforce specifically the performance of the terms and provisions hereof,
in addition to any other remedy to which they are entitled at law or in equity.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
SARATOGA LIGHTING HOLDINGS LLC
By: Saratoga Partners IV, L.P.,
its sole member
By: Saratoga Management Company LLC
By: /s/ Xxxxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title:
GENERAL ELECTRIC COMPANY,
GE Consumer Products
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: CFO & VP Finance
Schedule A to Stock Purchase Agreement
Substituted Language for Section 13 of Lamp Materials Purchase Agreement
entered into as of September 30, 1999
(a) In the event that ADLT desires to sell all or substantially all of Seller
(whether as an asset, stock transfer, or otherwise) to a third party lighting
products competitor of Purchaser (a "Sale") then, in addition to the rights
specified in Section 12, ADLT shall give notice (an "Offer Notice") to
Purchaser that ADLT desires to engage in such a Sale. The Offer Notice shall
identify (i) whether ADLT is proposing to sell assets in addition to that of
Seller as part of the Sale, (ii) the price (the "Offer Price") that ADLT
proposes to be paid for all of the assets being sold, including Seller (the
"Offered Assets") and (iii) any other material terms sought by ADLT.
(b) The giving of an Offer Notice shall constitute an offer (the "Offer") by
ADLT to sell the Offered Assets to Purchaser for cash at the Offer Price and on
the other terms set forth in the Offer Notice. The Purchaser shall have a
60-day period (the "Offer Period") in which to accept such Offer by giving a
notice of acceptance to ADLT prior to the expiration of such Offer Period. If
the Purchaser fails to notify ADLT prior to the expiration of the Offer Period,
the Purchaser shall be deemed to have declined such Offer.
(c) If the Purchaser elects to purchase the Offered Assets, the Purchaser shall
purchase and pay, by bank or certified check (in immediately available funds),
the Offer Price within 20 business days after the date on which the Offer was
accepted; provided that, if the transaction is subject to any prior regulatory
approval, the time period during which such transaction may be consummated
shall be extended until the expiration of five business days after all such
approvals shall have been received, but in no event shall such period be
extended for more than an additional 60 days.
(d) Upon the earlier to occur of i) rejection of the Offer by the Purchaser,
ii) the expiration of the Offer Period without the Purchaser electing to
purchase all of the Offered Assets and the failure to obtain any required
consent or regulatory approval for the transaction within 60 days of full
acceptance of the Offer, ADLT shall have a one year period during which to
effect a Sale of the Offered Assets on the same in all respects material to
Purchaser or more favorable (as to ADLT) terms and conditions as were set forth
in the Offer Notice at a price not less than the Offer Price; provided that, if
such Sale is subject to regulatory approval, such one year period shall be
extended until the expiration of five business days after all such approvals
shall have been received.
(e) If ADLT does not consummate a Sale of the Offered Assets in accordance with
the foregoing time limitations, then the right of ADLT to effect such a Sale
pursuant to this Section 13(d) shall terminate and ADLT shall again comply with
the procedures set forth in this Section 13 with respect to any proposed Sale
of the Offered Assets.
2
Schedule B to Stock Purchase Agreement
On or promptly after the Effective Date, the Reorganized Debtors shall
offer to General Electric Company and its subsidiaries and other affiliates
(collectively herein, "GE") (and keep such offer open for at least 30 days) an
incremental sales incentive plan, pursuant to which GE could earn a 10% rebate
(up to a maximum of $13 million in the aggregate) on future purchases from the
Reorganized Debtors and its affiliates, excluding APL. To earn its rebate, GE
must make annual purchases (in the aggregate not to exceed $130 million) from
the Reorganized Debtors and their affiliates, excluding APL, in excess of the
aggregate purchases GE made from the Debtors, including its nondebtor
affiliates, but excluding APL, in ADLT's 2003 fiscal year. In no event shall
there be any rebate in any year on the amount of purchases equaling the total
purchases by GE from the Debtors, including its affiliates and subsidiaries,
but excluding APL, in ADLT's 2003 fiscal year.
Schedule C to Stock Purchase Agreement
Section 3.06. (b) Claims: Secured Claims of GE. The Class 1(b) GE
Secured Claims shall receive nothing on the Effective Date, provided, however,
on the Effective Date, or as soon thereafter as the GE Secured Claims are
Allowed, GE may offset from the amounts owing by GE to the Debtors, including
the Debtors' nondebtor affiliates, and indefeasibly retain for GE's own
account, an amount up to, but not in excess of, the Allowed Amount of the GE
Secured Claims. If, after giving effect to the offset provided in this Section
3.06(b), GE has any remaining Claims against the Debtors, such Claims of GE
shall be treated as Class 5 Subsidiary Debtors General Unsecured Claims. Except
to the extent of the offset permitted under this Section 3.06(b), nothing in
this Section 3.06(b) shall be or be deemed to be a waiver or release of any
claim belonging to the Debtors or their nondebtor affiliates against GE.
