07480/151/XXXXX/costop.ed
Exhibit (C)(2)
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT dated as of May 12, 1999 between Xxxxxx
Industries, Inc., a Delaware corporation (the "Company"), and Xxxxxxx Electric
Co., a Missouri corporation (the "Purchaser").
W I T N E S S E T H :
WHEREAS, the Company, EMERSUB LXXIV, Inc., a Delaware
corporation and a wholly owned subsidiary of the Purchaser ("Sub"), and the
Purchaser are simultaneously with the execution and delivery of this Agreement
entering into a Merger Agreement (the "Merger Agreement") pursuant to which
(i) the Purchaser has agreed, upon the terms and subject to the conditions
stated therein, to make a tender offer (the "Offer") for shares of the common
stock of the Company at a price per share in cash of $21.25 and (ii) the
Company will, upon the terms and subject to the conditions stated therein,
merge with Sub; and
WHEREAS, in order to induce the Purchaser and Sub to enter into
the Merger Agreement, the Company has agreed to grant to the Purchaser the
Company Stock Option (as hereinafter defined), upon the terms and subject to
the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and in the Merger Agreement, and for other good
and valuable consideration, the adequacy of which is hereby acknowledged, the
parties hereto agree as follows:
1. Grant of Company Stock Option. The Company hereby grants to the
Purchaser an irrevocable option (the "Company Stock Option") to purchase for
$21.25 per share in cash (the "Option Price") up to 3,877,035 shares (the
shares purchased hereunder being referred to herein as the "Shares") of its
Common Stock, $1.25 par value per share (the "Common Stock"); provided,
however, that in no event shall the number of shares of Common Stock for which
this Company Stock Option is exercisable exceed 19.9% of the Company's issued
and outstanding shares of Common Stock without giving effect to any shares
subject to or issued pursuant to the Company Stock Option. The number of
shares of Common Stock that may be received upon the exercise of the Company
Stock Option and the Option Price are subject to adjustment as herein set
forth.
2. Exercise of Stock Option. (a) The Purchaser may exercise the
Company Stock Option, in whole or in part, at any time or from time to time,
following (but not prior to) the occurrence of one of the events set forth in
Section 3(c) hereof, and prior to the termination of the Company Stock Option
in accordance with the terms of this Agreement.
(b) In the event the Purchaser wishes to exercise the Company
Stock Option, the Purchaser shall send a written notice to the Company (the
"Stock Exercise Notice") specifying a date, which shall not be later than 10
business days and not earlier than three business days following the date such
notice is given, for the closing of such purchase. Such notice shall specify
the number of Shares to be purchased and a place for the closing of the
purchase.
(c) At any time the Company Stock Option is then exercisable
pursuant to the terms of Section 2(a) hereof, the Purchaser may elect, in lieu
of exercising the Company Stock Option to purchase Shares as provided in
Section 2(a) hereof, to send a written notice to the Company (the "Cash
Exercise Notice") specifying a date, not later than 10 business days and not
earlier than 3 business days following the date such notice is given, on which
date the Company shall pay to the Purchaser an amount in cash equal to the
Spread (as hereinafter defined) multiplied by all or such portion of the
Shares subject to the Company Stock Option as Purchaser shall specify. As
used herein "Spread" shall mean the excess, if any, over the Option Price of
the higher of (x) if applicable, the highest price per share of Common Stock
(including any brokerage commissions, transfer taxes and soliciting dealers'
fees) paid or proposed to be paid by any person pursuant to any takeover
proposal (as defined in the Merger Agreement) (the "Alternative Purchase
Price") or (y) the closing price of the shares of Common Stock on the NYSE
Composite Tape on the last trading day immediately prior to the date of the
Cash Exercise Notice (the "Closing Price"). If the Alternative Purchase Price
includes any property other than cash, the Alternative Purchase Price shall be
the sum of (i) the fixed cash amount, if any, included in the Alternative
Purchase Price plus (ii) the fair market value of such other property. If
such other property consists of securities with an existing public trading
market, the average of the closing prices (or the average of the closing bid
and asked prices if closing prices are unavailable) for such securities in
their principal public trading market on the five trading days ending five days
prior to the date of the Cash Exercise Notice shall be deemed to equal the
fair market value of such property. If such other property consists of
something other than cash or securities with an existing public trading market
and, as of the payment date for the Spread, agreement on the value of such
other property has not been reached, the Alternative Purchase Price shall be
deemed to equal the Closing Price. Upon exercise of its right to receive cash
pursuant to this Section 2(c), the obligations of the Company to deliver
Shares pursuant to Section 3 shall be terminated with respect to such number
of Shares for which the Purchaser shall have elected to be paid the Spread.
(d) In the event of any change in the number of issued and
outstanding shares of Common Stock by reason of any stock dividend, stock
split, recapitalization, merger or other change in the corporate or capital
structure of the Company, the number of Shares subject to the Company Stock
Option and the Option Price shall be appropriately adjusted to restore the
Purchaser to its rights hereunder, including its right to purchase Shares
representing 19.9% of the capital stock of the Company entitled to vote
generally for the election of the directors of the Company which are issued
and outstanding immediately prior to the exercise of the Company Stock Option.
(e) If the Company shall merge or consolidate with or into any
other entity, thereafter upon the exercise of the Company Stock Option, for
each Share in respect of which the Company Stock Option is thereafter
exercised, the Purchaser shall be entitled to receive the kind and amount of
consideration per share it would have received in such merger or consolidation
had the Company Stock Option been exercised immediately prior to such merger
or consolidation.
3. Conditions to Delivery of Shares. The Company's obligation to
deliver Shares upon exercise of the Company Stock Option is subject only to
the conditions that:
(a) No preliminary or permanent injunction or other order,
decree or ruling issued by any federal or state court of competent
jurisdiction in the United States prohibiting the sale or delivery of the
Shares shall be in effect;
(b) Any applicable waiting periods under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 0000 (xxx "XXX Xxx") shall have expired or been
terminated and any applicable filings or approvals under foreign antitrust
laws shall have been made or obtained and any related waiting periods shall
have expired; and
(c) (i) any person (other than Purchaser or any of its
subsidiaries) shall have acquired beneficial ownership (as such term is
defined in Rule 13d-3 under the Exchange Act) or the right to acquire
beneficial ownership of, or any "group" (as such term is defined under the
Exchange Act) shall have been formed which beneficially owns or has the right
to acquire beneficial ownership of, shares of Common Stock aggregating 25
percent or more of the then outstanding Common Stock; (ii) in the event (A) at
any time during the pendency of the Offer, a takeover proposal (as defined in
the Merger Agreement) shall have been made to the Company or any of its
subsidiaries or any of its stockholders or any person shall have publicly
announced an intention to make a takeover proposal with respect to the Company
or any of its subsidiaries, (B) the Offer shall have terminated or expired
without the Minimum Tender Condition (as defined in the Merger Agreement)
being satisfied and (C) within one year after the Offer shall have terminated
or expired, either (x) the Company enters into an agreement (which is
subsequently consummated, whether before or after the expiration of such
one-year period) with any person, other than Purchaser or Sub, with respect to
a takeover proposal which provides for (1) transfer or issuance of securities
representing more than 50% of the equity or voting interests in the Company,
or (2) transfer of assets, securities or ownership interests representing more
than 50% of the consolidated assets or earning power of the Company, or (y)
any person acquires a majority of the Shares; (iii) the Purchaser or the
Company shall have terminated (or shall have the right to terminate) the
Merger Agreement pursuant to Section 7.1(c) or (d) or Section 8.2(f) or (g) of
the Merger Agreement; or (iv) the Company shall have delivered to Purchaser
the written notification pursuant to Section 8.2(e)(i) of the Merger Agreement
and Purchaser shall have notified the Company in writing that Purchaser does
not intend to match the superior proposal (as defined in the Merger Agreement)
referred to in such notification. As used in this Agreement, "person" shall
have the meaning specified in Sections 3(a)(9) and 13(d)(3) of the Exchange
Act.
4. Closing. (a) Any closing hereunder shall take place on the date and
at the place specified by the Purchaser in its Stock Exercise Notice or Cash
Exercise Notice, as the case may be, or if the conditions set forth in Section
3(a) or (b) have not then been satisfied, on the second business day following
the satisfaction of such conditions, or at such other time and place as the
parties hereto may agree (the "Closing Date"). On the Closing Date, (i) in
the event of a closing pursuant to Section 2(b) hereof, the Company shall
deliver to the Purchaser a certificate or certificates, representing the
Shares in the denominations designated by the Purchaser in its Stock Exercise
Notice and the Purchaser will purchase such Shares from the Company at the
price per Share equal to the Option Price or (ii) in the event of a closing
pursuant to Section 2(c) hereof, the Company will deliver to the Purchaser
cash in an amount determined pursuant to Section 2(c) hereof. Any payment
made by the Purchaser to the Company, or by the Company to the Purchaser,
pursuant to this Agreement shall be made by certified, cashier's or bank check
or, if mutually agreed, by wire transfer of funds to an account designated by
the party receiving such funds.
(b) The certificates representing the Shares shall bear an
appropriate legend relating to the fact that such Shares have not been
registered under the Securities Act of 1933, as amended (the "Securities Act").
5. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Purchaser as follows:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
execution, delivery and performance by the Company of this Agreement and the
consummation of the transactions contemplated hereby (i) are within the
Company's corporate powers, (ii) have been duly authorized by all necessary
corporate action, (iii) require no action by or in respect of, or filing
with, any governmental body, agency or official, except for any filings
required to be made under the HSR Act and applicable foreign antitrust laws,
(iv) do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation or by-laws
of the Company or of any judgment, injunction, order or decree binding upon the
Company or any of its subsidiaries and (v) will not require any consent,
approval or notice under and will not conflict with, or result in the breach
or termination of any provision of or constitute a default (with or without
the giving of notice or the lapse of time or both) under, or allow the
acceleration of the performance of, any material obligation of the Company or
any of its subsidiaries under, or result in the creation of a lien, charge or
encumbrance upon, any of the properties, assets or business of the Company or
any of its subsidiaries under any indenture, mortgage, deed of trust, lease,
licensing agreement, contract, instrument or other agreement to which the
Company or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries or any of their respective assets or properties is subject
or bound. This Agreement has been duly executed and delivered by the Company
and constitutes a valid and binding agreement of the Company.
(b) Except for any filings required to be made under the HSR
Act, the Company has taken all necessary corporate and other action to
authorize and reserve and to permit it to issue, and at all times from the
date hereof until such time as the obligation to deliver Shares upon the
exercise of the Company Stock Option terminates, will have reserved for
issuance, upon any exercise of the Company Stock Option, the number of Shares
subject to the Company Stock Option (less the number of Shares previously
issued upon any partial exercise of the Company Stock Option or as to which
the Company Stock Option may no longer be exercised). All of the Shares to be
issued pursuant to the Company Stock Option are duly authorized and, upon
issuance and delivery thereof pursuant to this Agreement, will be duly
authorized, validly issued, fully paid and nonassessable, and free and clear
of all claims, liens, charges, encumbrances and security interests, and not
subject to any preemptive rights.
(c) The Company has taken all action so that the entering into
of this Agreement, the acquisition of shares of Common Stock hereunder and the
other transactions contemplated hereby do not and will not result in the grant
of any rights to any person under the Company Rights Agreement (as defined in
the Merger Agreement) or enable or require the Rights (as defined in the
Merger Agreement) to be exercised, distributed or triggered.
(d) The representations and warranties of the Company contained
in the Merger Agreement are true and correct.
6. Representations and Warranties of the Purchaser. The Purchaser
hereby represents and warrants to the Company as follows:
(a) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Missouri. The
execution, delivery and performance by the Purchaser of this Agreement are
within the Purchaser's corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official, except for any filings
required to be made under the HSR Act and applicable foreign antitrust laws,
and do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation or by-laws
of the Purchaser or of any agreement, judgment, injunction, order, decree or
other instrument binding upon the Purchaser. This Agreement has been duly
executed and delivered by the Purchaser and constitutes a valid and binding
agreement of the Purchaser.
(b) The Purchaser will acquire the Shares for investment
purposes only and not with a view to any distribution thereof, and will not
sell any Shares purchased pursuant to the Company Stock Option except in
compliance with the Securities Act.
(c) The representations and warranties of the Purchaser
contained in the Merger Agreement are true and correct.
7. Further Assurances; Remedies. (a) The Company agrees to execute
and deliver such other documents and instruments and take such further actions
as may be necessary or appropriate or as the Purchaser may reasonably request
in order to ensure that the Purchaser receives the full benefits of this
Agreement. Prior to the termination of the Company Stock Option, the Company
will refrain from taking any action which would have the effect of preventing
or disabling the Company from delivering the Shares to the Purchaser upon any
exercise of the Company Stock Option or from otherwise performing its
obligations under this Agreement.
(b) The parties agree that the Purchaser would be irreparably damaged if
for any reason the Company failed to issue any of the Shares upon exercise of
the Company Stock Option or to perform any of its other obligations under this
Agreement, and that the Purchaser would not have an adequate remedy at law for
money damages in such event. Accordingly, the Purchaser shall be entitled to
specific performance and injunctive and other equitable relief to enforce the
performance of this Agreement by the Company. This provision is without
prejudice to any other rights that the Purchaser may have against the Company
for any failure to perform its obligations under this Agreement.
8. HSR Filing; Listing of Shares; Notification of Record Dates. (a)
Promptly after the date hereof, and from time to time thereafter if necessary,
the Purchaser and the Company shall each file with the Federal Trade
Commission and the Antitrust Division of the United States Department of
Justice all required pre-merger notification and report forms and other
documents and exhibits required to be filed under the HSR Act and applicable
foreign antitrust laws, to permit the purchase of the Shares pursuant hereto.
(b) Subject to the rules and regulations of the New York Stock Exchange,
Inc. (the "NYSE"), after the Company Stock Option becomes exercisable
hereunder, the Company will promptly file an application to list the Shares on
the NYSE and will use its reasonable best efforts to obtain approval of such
listing; provided, however, that if the Company is unable to effect such
listing on the NYSE by the Closing Date, the Company will nevertheless be
obligated to deliver the Shares upon the Closing Date.
(c) The Company shall give the Purchaser at least ten days' prior
written notice before setting the record date for determining the holders of
record of shares of Common Stock entitled to notice of, or to vote on, any
matter, to receive any dividend or distribution or to participate in any
rights offering or other matter, or to receive any other benefit or right,
with respect to shares of Common Stock. Further, if the Company Stock Option
is exercisable and during such notice period Purchaser elects to exercise the
Company Stock Option, in whole or in part, the Company shall defer setting
such record date until after the Closing Date in respect of such exercise.
9. Sales of Shares. (a) At any time prior to the first anniversary of
the Closing Date with respect to the first Stock Exercise Notice, the
Purchaser shall have the right to sell (the "Sale Right") to the Company all
or any, of the Shares acquired upon exercise of the Company Stock Option at
the greater of (i) the Option Price, or (ii) the average of the last sales
prices for shares of Common Stock on the five trading days ending five days
prior to the date the Purchaser gives written notice of its intention to
exercise the Sale Right. If the Purchaser does not exercise the Sale Right
prior to such first anniversary, the Sale Right terminates. In the event the
Purchaser wishes to exercise the Sale Right, the Purchaser shall send a
written notice to the Company specifying a date, not later than 10 business
days and not earlier than 3 business days following the date such notice is
given, for the closing of such sale.
(b) If at any time after the first anniversary of the Closing Date with
respect to the first Stock Exercise Notice, neither the Purchaser nor any
other person or group shall have acquired more than 50% of the shares
(excluding any Shares owned by Purchaser and its affiliate) of outstanding
Common Stock, then the Company shall have the right to purchase all, but not
less than all, Shares then owned by the Purchaser and its subsidiaries for a
total cash price such that following such purchase the Purchaser's Total
Profit (as defined below) is the Maximum Total Profit.
10. Registration of the Shares. (a) If the Purchaser requests the
Company in writing to register under the Securities Act, any of the Shares
purchased by the Purchaser hereunder, the Company will use its best efforts to
cause the offering of the Shares so specified in such request to be registered
as soon as practicable so as to permit the sale or other distribution by the
Purchaser of the Shares specified in its request (and to keep such
registration in effect for a period of at least 90 days), and in connection
therewith prepare and file as promptly as reasonably possible (but in no event
later than 60 days from receipt of the Purchaser's request) a registration
statement under the Securities Act to effect such registration on an
appropriate form, which would permit the sale of the Shares by the Purchaser
in the manner specified by the Purchaser in its request. The Company shall
not be obligated to make effective more than two registration statements
pursuant to the foregoing sentence.
(b) The Company shall notify the Purchaser in writing not less than ten
days prior to filing a registration statement under the Securities Act (other
than a filing on Form S-4 or S-8) with respect to any Common Stock of the
Company's intention so to file. If the Purchaser wishes to have any portion
of its Shares included in such registration statement, it shall advise the
Company in writing to that effect within five business days following receipt
of such notice, and the Company will thereupon include the number of Shares
indicated by the Purchaser under such Registration Statement.
(c) The Company shall pay all fees and expenses in connection with any
registration pursuant to this Section other than underwriting discounts and
commissions to brokers or dealers and shall indemnify the Purchaser, its
affiliates, its officers, directors, agents, other controlling persons and any
underwriters retained by the Purchaser in connection with such sale of such
Shares in the customary way, and agree to customary contribution provisions
with such persons, with respect to claims, damages, losses and liabilities
(and any expenses relating thereto) arising (or to which the Purchaser, its
affiliates, its officers, directors, agents, other controlling persons or
underwriters may be subject) in connection with any such offer or sale under
the federal securities laws or otherwise, except for information furnished in
writing by the Purchaser or its underwriters to the Company. The Purchaser
and its underwriters, respectively, shall indemnify the Company to the same
extent with respect to information furnished in writing to the Company by the
Purchaser and such underwriters.
11. Termination. The right to exercise the Company Stock Option granted
pursuant to this Agreement shall terminate at the earliest of (i) the
Effective Time of the Merger (as defined in the Merger Agreement), (ii) if the
Company Stock Option is not exercised within one year after termination of the
Merger Agreement in accordance with its terms; provided that, if at the time
the Merger Agreement is terminated the conditions in Section 3(c)(ii)(A) and
(B) have been satisfied, the Company Stock Option shall not terminate until
two years after the termination of the Merger Agreement (the date referred to
in clause (ii) being hereinafter referred to as the "Termination Date");
provided further that, if on the Termination Date the Company Stock Option
cannot be exercised or the Shares cannot be delivered to Purchaser upon such
exercise because the conditions set forth in Section 3(a) or (b) hereof have
not yet been satisfied, the date referred to in clause (ii) shall be extended
until thirty days after such impediment to exercise or delivery has been
removed.
12. Profit Limitation. Notwithstanding any other provision of this
Agreement or the Merger Agreement, in no event shall the Purchaser's Total
Profit (as hereinafter defined) exceed $20,000,000 (the "Maximum Total
Profit") and, if it otherwise would exceed such amount, the Purchaser shall
repay such excess amount to the Company in cash (or the purchase price for
purpose of Section 9, as applicable, shall be reduced) so that Purchaser's
Total Profit shall not exceed the Maximum Total Profit after taking into
account the foregoing actions.
As used herein, the term "Total Profit" shall mean the
aggregate amount (before taxes) of the following (i) (x) the amount of cash
received by Purchaser pursuant to Section 8.3(a) or (b) of the Merger
Agreement and Section 2(c) hereof, less (y) any repayment of such cash to the
Company, (ii)( x) the amount received by Purchaser pursuant to the Company's
repurchase of Shares pursuant to Section 9 hereof, less (y) the Purchaser's
purchase price for such Shares, and (iii) (x) the net cash amounts received by
Purchaser pursuant to the sale of Shares (or any other securities into or for
which such Shares are converted or exchanged) to any unaffiliated party on
arms-length terms, less (y) the Purchaser's purchase price for such Shares.
13. Expenses. Each party hereto shall pay its own expenses
incurred in connection with this Agreement, except as otherwise specifically
provided herein or in the Merger Agreement.
14. Entire Agreement. This Agreement, together with the
Merger Agreement and the other documents referred to therein, contains the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings, oral or written, with respect to such transactions.
15. Miscellaneous. (a) Amendments. This Agreement may not
be modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto.
(b) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by delivery in person or by
cable, telegram or telex (with copies by registered or certified mail, postage
prepaid, return receipt requested), to the respective parties as follows:
To the Company:
Xxxxxx Industries, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
Attention: X. X. Xxxxxxxx
Chairman, President and Chief Executive Officer
with a copy to:
Xxxxxx Industries, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
Attention: Xxxxx-Xxx Xxxxxx, Esq.
General Counsel
with a copy to:
Fulbright & Xxxxxxxx L.L.P.
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
Attention: Xxxxxxx X. Still, Esq.
To the Purchaser:
Xxxxxxx Electric Co.
0000 Xxxx Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
Attention: Xxxxxx X. Xxx, Xx.
Senior Vice President - Acquisitions and Development
with a copy to:
Xxxxxxx Electric Co.
0000 Xxxx Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
Attention: W. Xxxxx Xxxxxxx
Senior Vice President, General Counsel and Secretary
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
(c) Severability. If any term, provision, covenant or restriction of
this Agreement is held 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.
(d) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the
conflicts of law rules of such state.
(e) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
(f) Headings. The section headings herein are for convenience only and
shall not affect the construction hereof.
(g) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the parties named herein and their respective
successors and assigns; provided, however, that such successors in interest or
assigns shall agree to be bound by the provisions of this Agreement; provided
further that no such assignment shall relieve the assignor of its obligations
hereunder. Nothing in this Agreement, express or implied, is intended to
confer upon any person other than the Company or the Purchaser, or their
successors or assigns, any rights or remedies under or by reason of this
Agreement.
(h) Survival. All representations, warranties and covenants contained
herein shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, except as otherwise
provided herein.
(i) Time of the Essence. The parties agree that time shall be of the
essence in the performance of obligations hereunder.
IN WITNESS WHEREOF, the Company and the Purchaser have caused this Agreement to
be duly executed as of the day and year first above written.
XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
XXXXXXX ELECTRIC CO.
By: /s/ Xxxxxx X. Xxx, Xx.
--------------------------
Name: Xxxxxx X. Xxx, Xx.
Title: Senior Vice President--
Acquisitions and Development
