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EXHIBIT 2.1
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is made and entered into this 5th day of June,
1998 by and among GLOBAL ENERGY EQUIPMENT GROUP, L.L.C., a Delaware limited
liability company ("Purchaser LLC"), GEEG, INC., a Delaware corporation
("Purchaser Corporation" and, together with Purchaser LLC, "Purchasers"), and
XXXXX INCORPORATED, a Wisconsin corporation ("Xxxxx"), XXXXXX NEVADA, INC., a
Nevada corporation ("BN"), DELTAK NEVADA, INC., a Nevada corporation ("DN") and
XXXXX NEVADA, INC., a Nevada corporation ("JN") (BN, DN and JN are hereinafter
referred to collectively as "Sellers"), and, for purposes of sections 12, 13 and
15 only, DELTAK, L.L.C., a Delaware limited liability company ("Deltak") and
XXXXXX MANUFACTURING, L.L.C., a Delaware limited liability company ("Xxxxxx").
RECITALS
Purchasers, Xxxxx, Sellers, Deltak and Xxxxxx acknowledge the following:
A. Jason's Power Generation Unit, which consists of Jason's Xxxxxx
operations (the "Xxxxxx Business") and Deltak operations (the "Deltak Business")
(including the operations of the Subsidiaries (as defined below)), is engaged in
the business of manufacturing, marketing and selling (1) auxiliary equipment for
gas turbines, such as inlet filter houses, turbine enclosures, exhaust diffusers
and silencers, diverter dampers, heat recovery steam generators and mechanical
support packages, and (2) electromagnetic shielding equipment (the "Business").
B. JN is a wholly-owned subsidiary of Xxxxx and BN and DN are
wholly-owned subsidiaries of JN.
C. The Deltak Business is conducted by and through (1) Deltak,
which is owned by DN, and (2) Deltak Construction Services, Inc., a Wisconsin
corporation wholly owned by JN.
D. The Xxxxxx Business is conducted by and through (1) Xxxxxx,
which is owned by BN, (2) Xxxxxx Construction Services, Inc., a Delaware
corporation wholly owned by JN and (3) Xxxxxx-Europe B.V., a limited liability
company organized under the laws of the Netherlands and wholly owned by JN.
E. Purchaser Corporation is a wholly-owned subsidiary of Purchaser
LLC.
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F. DN and BN desire to sell to Purchasers and Purchasers desire to
purchase and acquire from DN and BN their membership interests in Deltak and
Xxxxxx, respectively.
G. JN desires to sell to Purchasers and Purchasers desire to
purchase and acquire from JN all of the issued and outstanding capital stock of
Deltak Construction Services, Inc., Xxxxxx Construction Services, Inc. and
Xxxxxx-Europe B.V. (collectively, the "Subsidiaries" and individually a
"Subsidiary") owned by JN.
AGREEMENTS
In consideration of the recitals and mutual agreements which follow and
intending to be legally bound, the parties agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following meanings:
1.01 "Affiliate" of any Person means any Person, directly or
indirectly controlling, controlled by or under common control with such Person,
and includes any Person who is an officer, director or employee of such Person
and any Person that would be deemed to be an "affiliate" or an "associate" of
such Person, as those terms are defined in Rule 12b-2 of the regulation
promulgated under the Securities Exchange Act of 1934, as amended. As used in
this definition, "controlling" (including, with its correlative meanings,
"controlled by" and "under common control with") means possession, directly or
indirectly, of power to direct or cause the direction of management or policies
(whether through ownership of stock, partnership or other ownership interests,
by contract or otherwise).
1.02 "Lien" means any lien, charge, claim, pledge, security
interest, conditional sale agreement or other title retention agreement, lease,
mortgage, security agreement, option, encroachment, encumbrance or other
material defect in title or other encumbrance (including, without limitation,
the filing of, or agreement to give, any financing statement under the Uniform
Commercial Code of any jurisdiction or any collateral assignment), but shall not
include, in any event, any lien for real estate taxes or assessments not yet due
and payable, or, with respect to intellectual property matters, any claims of
misappropriation, misuse or infringement.
1.03 "Material Adverse Effect" means a material adverse
effect upon the assets, liabilities, operations, condition (financial or
otherwise), results of
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operations, business, properties, suppliers, employees or customer relations of
the Business, taken as a whole.
1.04 "Person" means an individual, a corporation, a
partnership, an association, a trust or other entity or organization.
2. Sale of Interests; Sale of Stock. On the terms and subject to
the conditions contained in this Agreement, (a) Purchaser LLC, at Closing (as
defined in section 4), shall purchase from DN, BN and JN, and DN, BN and JN
shall sell to Purchaser LLC, 99% of the issued and outstanding membership
interests or capital stock, as the case may be, of Deltak, Xxxxxx and
Xxxxxx-Europe B.V., respectively, free and clear of all Liens, (b) Purchaser
Corporation, at Closing, shall purchase from DN, BN and JN, and DN, BN and JN
shall sell to Purchaser Corporation, 1% of the issued and outstanding membership
interests or capital stock, as the case may be, of Deltak, Xxxxxx and
Xxxxxx-Europe B.V., respectively, free and clear of all Liens, and (c) Purchaser
Corporation, at Closing shall purchase from JN, and JN shall sell to Purchaser
Corporation, all of the issued and outstanding capital stock of Deltak
Construction Services, Inc. and Xxxxxx Construction Services, Inc., free and
clear of all Liens.
3. Purchase Price.
3.01 Amount to Sellers. Purchasers shall pay Sellers in the
manner set forth below:
(a) Deltak. The aggregate purchase price to be paid
by Purchasers for DN's membership interest in Deltak shall be $27,900,000 (the
"Base Deltak Purchase Price"), subject to adjustment as hereinafter provided (as
so adjusted, the "Deltak Purchase Price").
(b) Xxxxxx. The aggregate purchase price to be paid
by Purchasers for BN's membership interest in Xxxxxx shall be $14,000,000 (the
"Base Xxxxxx Purchase Price"), subject to adjustment as hereinafter provided (as
so adjusted, the "Xxxxxx Purchase Price").
(c) Subsidiaries.
(i) The purchase price to be paid by
Purchaser Corporation for all of the issued and outstanding capital stock of
Deltak Construction Services, Inc. owned by JN shall be $100,000 (the "Base DCS
Purchase Price"), subject to adjustment as hereinafter provided (as so adjusted,
the "DCS Purchase Price").
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(ii) The purchase price to be paid by
Purchaser Corporation for all of the issued and outstanding capital stock of
Xxxxxx Construction Services, Inc. owned by JN shall be $500,000 (the "Base BCS
Purchase Price"), subject to adjustment as hereinafter provided (as so adjusted,
the "BCS Purchase Price").
(iii) The aggregate purchase price to be paid
by Purchasers for all of the issued and outstanding capital stock of
Xxxxxx-Europe B.V. owned by JN shall be $2,500,000 (the "Base BE Purchase
Price"), subject to adjustment as hereinafter provided (as so adjusted, the "BE
Purchase Price").
(d) Base Purchase Price Adjustments. The Base Deltak
Purchase Price, the Base Xxxxxx Purchase Price, the Base DCS Purchase Price, the
Base BCS Purchase Price and the Base BE Purchase Price shall be subject to
adjustment as follows:
(i) If the Net Operating Assets (as
hereinafter defined) of Deltak as of the Closing Date (as defined in section 4)
exceed $(3,253,000), then the Base Deltak Purchase Price shall be increased by
the amount of such excess. If the Net Operating assets of Deltak as of the
Closing Date are less than $(3,253,000), then the Base Deltak Purchase Price
shall be decreased by the amount of such deficiency. As used herein, the "Net
Operating Assets" as of the Closing Date shall mean the excess of [a] the
aggregate book value of Deltak's, Xxxxxx'x or a Subsidiary's, as the case may
be, accounts receivable, inventory, costs and earnings in excess of xxxxxxxx on
uncompleted contracts, prepaid expenses and net fixed assets over [b] the
aggregate book value of such entity's liabilities (other than liabilities for
borrowed money arranged by Purchasers in connection with the consummation of the
transactions contemplated by this Agreement), as all such amounts are reflected
on the Closing Date Statements of Net Operating Assets (as hereinafter defined)
calculated in accordance with generally accepted accounting principles (GAAP) on
a basis consistent with the method of accounting used in preparing the
Statements of Net Operating Assets attached as Schedule 3.01. The Net Operating
Assets of Deltak, Xxxxxx and each Subsidiary as of December 26, 1997 and as of
May 1, 1998 are as set forth on Schedule 3.01. For clarity, the parties
acknowledge and agree that Net Operating Assets shall not include the cash and
cash equivalents, intangible assets and other noncurrent assets owned by the
applicable entity.
(ii) If the Net Operating Assets of Xxxxxx as
of the Closing Date exceed $9,582,000, then the Base Xxxxxx Purchase Price shall
be increased by the amount of such excess. If the Net Operating Assets of Xxxxxx
as
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of the Closing Date are less than $9,582,000, then the Base Xxxxxx Purchase
Price shall be decreased by the amount of such deficiency.
(iii) If the Net Operating Assets of Deltak
Construction Services, Inc. as of the Closing Date exceed $40,000, then the Base
DCS Purchase Price shall be increased by the amount of such excess. If the Net
Operating Assets of Deltak Construction Services, Inc. as of the Closing Date
are less than $40,000, then the Base DCS Purchase Price shall be decreased by
the amount of such deficiency.
(iv) If the Net Operating Assets of Xxxxxx
Construction Services, Inc. as of the Closing Date exceed $489,000, then the
Base BCS Purchase Price shall be increased by the amount of such excess. If the
Net Operating Assets of Xxxxxx Construction Services, Inc. as of the Closing
Date are less than $489,000, then the Base BCS Purchase Price shall be decreased
by the amount of such deficiency.
(v) If the Net Operating Assets of
Xxxxxx-Europe B.V. as of the Closing Date exceed $1,964,000, then the Base BE
Purchase Price shall be increased by the amount of such excess. If the Net
Operating Assets of Xxxxxx-Europe B.V. as of the Closing Date are less than
$1,964,000, then the Base BE Purchase Price shall be decreased by the amount of
such deficiency.
(e) Reimbursement Amount. Xxxxx and Sellers have
retained (i) all accrued federal payroll taxes and withholdings for JPG
Employees (as defined below) as of the date hereof ("Accrued Payroll Taxes and
Withholdings"); and (ii) all accrued contributions payable to the Xxxxx Employee
Savings & Profit Sharing Plan on behalf of JPG Employees as of the date hereof
("Accrued 401k Contribution"). For purposes of this section, the term "JPG
Employees" means any and all individuals who are or have been employed by Xxxxx
in the Business, Xxxxxx Construction Services, Inc. or Deltak Construction
Services, Inc. and the term "Xxxxxx Employees" means any and all individuals who
are or have been employed by Xxxxx in the Xxxxxx Business or Xxxxxx Construction
Services, Inc. For clarity, the terms "JPG Employees" and "Xxxxxx Employees"
shall not include any employees of Xxxxxx-Europe B.V. As consideration for the
foregoing, the Purchaser LLC hereby agrees to pay to BN, JN and DN, in the
manner provided herein, an amount equal to the amount which would be deemed a
liability in accordance with generally accepted accounting principles,
consistently applied, on Purchaser LLC's financial statements as of the Closing
Date if Purchaser LLC had assumed the Accrued Payroll Taxes and Withholdings and
the Accrued 401k Contribution as of the Closing Date (such amount, the
"Reimbursed Liability Amount"). In addition, the Purchaser LLC
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agrees to pay to BN, JN and DN, in the manner provided herein, (i) the amount of
cash owned (in U.S. dollars) by the Subsidiaries as of the Closing Date (without
giving effect to any of the transactions contemplated by this Agreement) and
(ii) an amount equal to the aggregate U.S. Dollar amount of all checks which
have been issued by Xxxxx on behalf of the Business prior to the Closing Date
and which have not yet been applied to reduce Jason's cash account. For purposes
hereof, the amount described in this Section 3.01(e) and payable by Purchaser
LLC to BN hereunder shall hereinafter be referred to as the "BN Reimbursement
Amount"; the amount described in Section 3.01(e) and payable by Purchaser LLC to
JN hereunder shall hereinafter be referred to as the "JN Reimbursement Amount";
and the amount described in this Section 3.01(e) and payable by Purchaser LLC to
DN hereunder shall hereinafter be referred to as the "DN Reimbursement Amount."
(f) Closing Estimates. Schedule 3.01 sets forth
Jason's estimates of the Deltak Purchase Price (the "Estimated Deltak Purchase
Price"), Xxxxxx Purchase Price (the "Estimated Xxxxxx Purchase Price"), DCS
Purchase Price (the "Estimated DCS Purchase Price"), BCS Purchase Price (the
"Estimated BCS Purchase Price") and BE Purchase Price (the "Estimated BE
Purchase Price") (collectively, the "Estimated Purchase Prices"), in accordance
with the calculations set forth in section 3.01(d). In addition, Schedule 3.01
sets forth Jason's good faith estimate of the amounts of reimbursements to be
made by Purchaser LLC in accordance with section 3.01(e) to BN (the "BN
Estimated Reimbursement Amount), JN (the "JN Estimated Reimbursement Amount")
and DN (the "DN Estimated Reimbursement Amount") (the sum of the BN Estimated
Reimbursement Amount, the JN Estimated Reimbursement Amount and the DN Estimated
Reimbursement Amount shall hereinafter be referred to as the "Estimated
Reimbursement Amount."
3.02 Manner of Payment of the Estimated Purchase Prices and
Estimated Reimbursement Amount.
(a) Payments to Sellers. At Closing, Purchasers
shall pay, in the proportions set forth below, (i) to DN the Estimated Deltak
Purchase Price (the "DN Cash Payment") and (ii) to BN the Estimated Xxxxxx
Purchase Price (the "BN Cash Payment") and (iii) to JN the sum of the Estimated
DCS Purchase Price, the Estimated BCS Purchase Price and the Estimated BE
Purchase Price (such sum, the "XX Xxxx Payment") (collectively, the "Cash
Payments"), in each case, by wire transfer of immediately available funds to an
account designated by the applicable Seller being paid. At Closing, Purchaser
LLC shall pay to BN the BN Estimated Reimbursement Amount, to JN the JN
Estimated Reimbursement Amount and to DN the DN Estimated Reimbursement Amount.
Such amounts
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shall be paid by wire transfer of immediately available funds to an
account designated by the applicable Seller being paid.
(b) Proportion of Estimated Purchase Prices and Cash
Payments to be borne by each Purchaser. Purchaser LLC shall pay to DN, BN and JN
99% of the Estimated Deltak Purchase Price, the Estimated Xxxxxx Purchase Price,
and the Estimated BE Purchase Price, respectively. Purchaser Corporation shall
pay to DN, BN and JN 1% of the Estimated Deltak Purchase Price, the Estimated
Xxxxxx Purchase Price, and the Estimated BE Purchase Price, respectively.
Purchaser Corporation also shall pay to JN all of the Estimated DCS Purchase
Price and all of the Estimated BCS Purchase Price. Purchaser LLC and Purchaser
Corporation shall pay the Cash Payments in the proportions and to the Sellers
specified in the preceding sentence. Any payments by or to Purchasers in
accordance with the adjustment provisions of section 3.03 shall be made by or to
the Purchasers in the proportions specified in this section 3.02.
3.03 Post-Closing Adjustments.
(a) As soon as practicable, but not later than 60
days after the Closing Date, Purchaser LLC shall prepare and deliver to Xxxxx
(i) proposed calculations of the Net Operating Assets of Deltak, Xxxxxx and each
Subsidiary as of the Closing Date (the "Proposed Closing Date Statements of Net
Operating Assets") and (ii) proposed calculations of the BN Reimbursement
Amount, the JN Reimbursement Amount and the DN Reimbursement Amount, each as of
the Closing Date (collectively, the "Proposed Reimbursement Amounts"). Purchaser
LLC shall permit Xxxxx and its independent certified public accountant to review
all accounting records and all work papers and computations used in the
preparation of the Proposed Closing Date Statements of Net Operating Assets and
Proposed Reimbursement Amounts. If Xxxxx does not give notice of dispute to
Purchaser LLC within 30 days of receiving the Proposed Closing Date Statements
of Net Operating Assets and Proposed Reimbursement Amounts, the parties agree
that the Proposed Closing Date Statements of Net Operating Assets shall be
deemed to set forth the Net Operating Assets of Deltak, Xxxxxx and each
Subsidiary as of the Closing Date and the Proposed Reimbursement Amounts shall
be deemed to set forth the BN Reimbursement Amount as of the Closing Date, JN
Reimbursement Amount as of the Closing Date and DN Reimbursement Amount as of
the Closing Date. If Xxxxx gives notice of dispute to Purchaser LLC within such
30-day period (which notice shall state with reasonable specificity the reasons
for any disagreement and the amount in dispute), Xxxxx and Purchaser LLC shall
negotiate in good faith to resolve the dispute. If, after 15 days from the date
notice of dispute is given hereunder, Xxxxx and Purchaser LLC cannot agree on
the resolution of the dispute, the items in dispute shall be submitted
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immediately to a nationally recognized firm of independent auditors acceptable
to both Purchaser LLC and Xxxxx (or, in the absence of agreement, the Chicago
office of the auditing firm of Xxxxxx Xxxxxxxx LLP) (the "Accounting Firm"). The
Accounting Firm shall be required to render a determination of the parties'
dispute within 60 days after referral of the matter to the Accounting Firm,
which determination must be made in writing and must set forth, in reasonable
detail, the bases therefor. The determination by the Accounting Firm shall be
binding and conclusive upon the parties. The fees and disbursements of the
Accounting Firm shall be allocated between the Purchaser LLC and Xxxxx so that
Jason's share of such fees and disbursements shall be in the same proportion
that the aggregate amount of such remaining disputed amounts so submitted by
Xxxxx to the Accounting Firm that is unsuccessfully disputed by Xxxxx (as
finally determined by the Accounting Firm) bears to the total amount of such
remaining disputed amounts so submitted by Xxxxx. Purchaser LLC will revise the
Proposed Closing Date Statements of Net Operating Assets and/or the applicable
Proposed Reimbursement Amounts as appropriate to reflect the resolution of any
objections thereto pursuant to this section 3.03(a). The "Closing Date
Statements of Net Operating Assets" shall mean the Proposed Closing Date
Statements of Net Operating Assets together with any revisions thereto pursuant
to this section 3.03(a). The "BN Reimbursement Amount" shall mean the proposed
BN Reimbursement Amount pursuant to this section 3.03(a) together with any
revisions thereto pursuant to this section 3.03(a). The "JN Reimbursement
Amount" shall mean the proposed JN Reimbursement Amount pursuant to this section
3.03(a) together with any revisions thereto pursuant to this section 3.03(a).
The "DN Reimbursement Amount" shall mean the proposed DN Reimbursement Amount
pursuant to this section 3.03(a) together with any revisions thereto pursuant to
this section 3.03(a).
(b) If, upon final determination of the Net
Operating Assets of Deltak as of the Closing Date, the Deltak Purchase Price is
less than the DN Cash Payment, DN shall pay to Purchasers the amount of such
difference, plus interest on such amount from the Closing Date to the date of
payment at the rate of 7% per annum, within five business days after the date on
which the Closing Date Statement of Net Operating Assets of Deltak finally is
determined pursuant to section 3.03(a) above. If, upon final determination of
the Net Operating Assets of Deltak as of the Closing Date, the Deltak Purchase
Price is more than the DN Cash Payment, Purchasers shall pay to DN the amount of
such difference, plus interest on such amount from the Closing Date to the date
of payment at the rate of 7% per annum, within five business days after the date
on which the Closing Date Statement of Net Operating Assets of Deltak finally is
determined pursuant to section 3.03(a) above. Any such amount payable by one
party to another party
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shall be paid by wire transfer of immediately available funds to an account
designated by the party being paid.
(c) If, upon final determination of the Net
Operating Assets of Xxxxxx as of the Closing Date, the Xxxxxx Purchase Price is
less than the BN Cash Payment, BN shall pay to Purchasers the amount of such
difference, plus interest on such amount from the Closing Date to the date of
payment at the rate of 7% per annum, within five business days after the date on
which the Closing Date Statement of Net Operating Assets of Xxxxxx finally is
determined pursuant to section 3.03(a) above. If, upon final determination of
the Net Operating Assets of Xxxxxx as of the Closing Date, the Xxxxxx Purchase
Price is more than the BN Cash Payment, Purchasers shall pay to BN the amount of
such difference, plus interest on such amount from the Closing Date to the date
of payment at the rate of 7% per annum, within five business days after the date
on which the Closing Date Statement of Net Operating Assets of Xxxxxx finally is
determined pursuant to section 3.03(a) above. Any such amount payable by one
party to another party shall be paid by wire transfer of immediately available
funds to an account designated by the party being paid.
(d) If, upon final determination of the Net
Operating Assets of all of the Subsidiaries as of the Closing Date, the sum of
the DCS Purchase Price, the BCS Purchase Price and the BE Purchase Price (such
sum, the "Subsidiaries Purchase Price") is less than the XX Xxxx Payment, JN
shall pay to Purchasers the amount of such difference, plus interest on such
amount from the Closing Date to the date of payment at the rate of 7% per annum,
within five business days after the date on which the Closing Date Statements of
Net Operating Assets of all of the Subsidiaries finally are determined pursuant
to section 3.03(a) above. If, upon final determination of the Net Operating
Assets of all of the Subsidiaries as of the Closing Date, the Subsidiaries
Purchase Price is more than the XX Xxxx Payment, Purchasers shall pay to JN the
amount of such difference, plus interest on such amount from the Closing Date to
the date of payment at the rate of 7% per annum, within five business days after
the date on which the Closing Date Statements of Net Operating Assets of all of
the Subsidiaries finally are determined pursuant to section 3.03(a) above. Any
such amount payable by one party to another party shall be paid by wire transfer
of immediately available funds to an account designated by the party being paid.
(e) If, upon final determination of the BN
Reimbursement Amount as of the Closing Date, the BN Reimbursement Amount is less
than the BN Estimated Reimbursement Amount, BN shall pay to Purchaser LLC the
amount of such difference, plus interest on such amount from the Closing Date to
the date of payment at the rate of 7% per annum, within five business days after
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the date on which the BN Reimbursement Amount finally is determined pursuant to
section 3.03(a) above. If, upon final determination of the BN Reimbursement
Amount as of the Closing Date, the BN Reimbursement Amount is more than the BN
Estimated Reimbursement Amount, Purchaser LLC shall pay to BN the amount of such
difference, plus interest on such amount from the Closing Date to the date of
payment at the rate of 7% per annum, within five business days after the date on
which the BN Reimbursement Amount finally is determined pursuant to section
3.03(a) above. If, upon final determination of the JN Reimbursement Amount as of
the Closing Date, the JN Reimbursement Amount is less than the JN Estimated
Reimbursement Amount, JN shall pay to Purchaser LLC the amount of amount of such
difference, plus interest on such amount from the Closing Date to the date of
payment at the rate of 7% per annum, within five business days after the date on
which the JN Reimbursement Amount finally is determined pursuant to section
3.03(a) above. If, upon final determination of the JN Reimbursement Amount as of
the Closing Date, the JN Reimbursement Amount is more than the JN Estimated
Reimbursement Amount, Purchaser LLC shall pay to JN the amount of such
difference, plus interest on such amount from the Closing Date to the date of
payment at the rate of 7% per annum, within five business days after the date on
which the JN Reimbursement Amount finally is determined pursuant to section
3.03(a) above. If, upon final determination of the DN Reimbursement Amount as of
the Closing Date, the DN Reimbursement Amount is less than the DN Estimated
Reimbursement Amount, DN shall pay to Purchaser LLC the amount of such
difference, plus interest on such amount from the Closing Date to the date of
payment at the rate of 7% per annum, within five business days after the date on
which the DN Reimbursement Amount finally is determined pursuant to section
3.03(a) above. If, upon final determination of the DN Reimbursement Amount as of
the Closing Date, the DN Reimbursement Amount is more than the DN Estimated
Reimbursement Amount, Purchaser LLC shall pay to DN the amount of such
difference, plus interest on such amount from the Closing Date to the date of
payment at the rate of 7% per annum, within five business days after the date on
which the DN Reimbursement Amount finally is determined pursuant to section
3.03(a) above. Any such amount payable by one party to another party hereunder
shall be payable by wire transfer of immediately available funds to an account
designated by the party being paid.
3.04 Allocation of Purchase Price. The parties hereto shall
allocate the Deltak Purchase Price to Deltak's assets and the Xxxxxx Purchase
Price to Xxxxxx'x assets in a manner consistent with the allocation set forth on
Schedule 3.04. Purchasers, Xxxxx and Sellers shall each report the federal,
state and local income and other tax consequences of the transactions
contemplated by this Agreement in a manner consistent with such allocation,
including, without limitation, the preparation and filing of Form 8594 (or any
successor form or
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successor provision of any future tax law) under section 1060 of the Internal
Revenue Code of 1986, as amended (the "IRC" or the "Code") with their respective
federal income tax returns for the taxable year that includes the Closing Date,
and neither Purchasers, Xxxxx nor Sellers will take any position inconsistent
with such allocation unless otherwise required by applicable law.
4. Closing. Subject to the terms and conditions of this Agreement,
the closing of the transactions pursuant to this Agreement (the "Closing") shall
take place on June 5, 1998 (the "Closing Date") at the offices of Xxxxxxxx &
Xxxxx, Citicorp Center, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000-0000, or such
other time and place as Xxxxx and Purchasers may agree. The effective time of
the Closing shall be deemed to be 11:59 p.m. eastern daylight savings time on
the Closing Date.
5. Conditions to Obligations of Purchasers. Each and every
obligation of the Purchasers under this Agreement to be performed by a Purchaser
at the Closing shall be subject to the satisfaction, at or before the Closing,
of each of the following conditions, unless waived in writing by Purchaser LLC:
5.01 Notices and Consents. All consents or waivers and
licenses, permits, authorizations or approvals of all third parties
(governmental or otherwise) which are listed on Schedule 5.01 shall have been
obtained in form and substance reasonably satisfactory to Purchasers.
5.02 Deliveries by Xxxxx and Sellers at Closing. At Closing,
Xxxxx and/or Sellers shall deliver or cause to be delivered to Purchaser LLC or
Purchaser Corporation, as appropriate, the following items, all in forms
reasonably satisfactory to Purchasers' counsel:
(a) The membership interests in Deltak, duly
endorsed for transfer by DN.
(b) The membership interests in Xxxxxx, duly
endorsed for transfer by BN.
(c) The issued and outstanding capital stock of each
Subsidiary, duly endorsed for transfer by JN with the exception of Xxxxxx-Europe
B.V. for which a copy of the executed notarial deed of transfer of shares will
be provided by facsimile, with a true copy of the executed notarial deed of
transfer of shares to follow as soon as possible thereafter.
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(d) The legal opinion of Jason's and Sellers'
counsel, Reinhart, Boerner, Van Deuren, Xxxxxx & Rieselbach, s.c., dated as of
the Closing Date in substantially the form of Exhibit A.
(e) Certified copies of resolutions adopted by
Jason's Board of Directors authorizing the execution, delivery and performance
of this Agreement and all documents contemplated hereby to be executed and
delivered by Xxxxx and certified copies of resolutions adopted by each Seller's
Board of Directors and shareholder authorizing the execution, delivery and
performance of this Agreement and all documents contemplated hereby to be
executed and delivered by each such Seller.
(f) A written estoppel certificate from each lessor
and contracting party listed on Schedule 5.02 acknowledging and certifying that
(i) such party is a party to a lease or contract of a certain date; (ii) the
lease or contract has not been amended or modified or, if it has, reciting the
date and substance of such modification; (iii) the lease or contract is in full
force and effect; (iv) as of the date of the certificate, Xxxxx is not in
default under the lease or contract; (v) such party consents to each of the
assignments of such lease or contract to get the same ultimately to Deltak or
Xxxxxx, as the case may be; and (vi) if so required by the lease or contract,
such party consents to the change of control of Xxxxxx or Deltak, as the case
may be.
(g) A Certificate of Status for Xxxxx issued by the
Wisconsin Department of Financial Institutions dated within 20 days of the
Closing Date; Certificates of Good Standing for each Seller issued by the
Secretary of State of Nevada dated within 20 days of the Closing Date;
Certificates of Good Standing for Deltak and Xxxxxx issued by the Secretary of
State of Delaware dated within 20 days of the Closing Date; Certificates of Good
Standing for Xxxxxx Construction Services, Inc. and Deltak Construction
Services, Inc. issued by the jurisdiction of such corporation's incorporation
and each jurisdiction in which such corporation has qualified to do business
dated within 20 days of the Closing Date (except that good standing certificates
shall not be delivered on behalf of Deltak Construction Services, Inc. for the
States of Nevada and Washington); a Certificate of Good Standing for Deltak
issued by the State of Minnesota dated within 20 days of the Closing Date; and a
Certificate of Good Standing for Xxxxxx issued by the State of Oklahoma dated
within 20 days of the Closing Date.
(h) A copy of each Subsidiary's Articles of
Incorporation or other charter documents and all amendments thereto certified
(i) not earlier than 20 days prior to the Closing Date by the jurisdiction of
such Subsidiary's
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incorporation or organization (or, in the case of Xxxxxx-Europe B.V., by the
civil law notary who was responsible for executing the latest version of its
Articles of Association), and (ii) as of the Closing Date by each Subsidiary's
(except Xxxxxx-Europe B.V.'s) Secretary; and a copy of Deltak's and Xxxxxx'x
Certificate of Formation and all amendments thereto certified (i) not earlier
than 20 days prior to the Closing Date by the Secretary of State of Delaware and
(ii) as of the Closing Date by an officer of Deltak and Xxxxxx.
(i) A copy of By-Laws of Xxxxxx Construction
Services, Inc. and Deltak Construction Services, Inc. certified as of the
Closing Date by the applicable entity's Secretary.
5.03 Title Insurance. Purchaser LLC shall have received prior
to Closing a title insurance commitment for each parcel of real property owned
or leased by Deltak and Xxxxxx (together with copies of all documents of title)
in customary form and containing no items that would materially and adversely
interfere with the operations of such real property, issued by Commonwealth Land
Insurance Company or such other title insurance company reasonably acceptable to
Purchaser LLC (the "Title Insurance Company"). The premium for the title
insurance and any charge for endorsements shall be paid by Purchaser LLC.
Purchaser LLC shall order the title insurance endorsements and provide copies to
Xxxxx upon receipt.
5.04 Survey. Purchaser LLC shall have received a survey of
each parcel of real property owned or leased by Deltak or Xxxxxx conforming to
the Minimum Standard Detail Requirements jointly established and approved in
1992 by ALTA and ACSM certified to Purchaser LLC, Purchasers' lender, Sellers
and the Title Insurance Company and showing no material defects, encroachments
or encumbrances adversely interfering with the operations of such property.
Purchaser LLC shall bear the cost of obtaining such surveys, shall order the
same and shall provide copies to Xxxxx upon receipt.
5.05 No Liens. Except for encumbrances (including, but not
limited to, easements, covenants, rights of way and other encumbrances or
restrictions of any nature whatsoever) on the owned Real Property (as defined in
section 7.12) which do not materially and adversely interfere with the
operations currently conducted on such Real Property and except as set forth on
Schedule 5.05 (collectively, "Permitted Encumbrances"), Purchaser LLC shall have
received evidence reasonably satisfactory to Purchaser LLC (a) of the release of
any and all Liens on the assets of Deltak and Xxxxxx and on the assets of the
Subsidiaries, including, without limitation, copies of the appropriate UCC
Release and Termination Statements, (b) that all outstanding indebtedness for
borrowed money
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of the Subsidiaries has been paid in full (except the indebtedness of
Xxxxxx-Europe B.V. to Xxxxxx), and (c) that any guarantees executed by Deltak,
Xxxxxx or any Subsidiary have been terminated.
6. Conditions to Obligations of Xxxxx and Sellers. Each and every
obligation of Xxxxx and the Sellers under this Agreement to be performed by
Xxxxx or a Seller at the Closing shall be subject to the satisfaction, at or
before the Closing, of each of the following conditions, unless waived in
writing by Xxxxx:
6.01 Notices and Consents. All consents or waivers and
licenses, permits, authorizations or approvals of all third parties
(governmental or otherwise) which are listed on Schedule 5.01 shall have been
obtained in form and substance reasonably satisfactory to Xxxxx.
6.02 Deliveries by Purchasers At Closing. At Closing,
Purchasers shall deliver or cause to be delivered the following items, all in
forms reasonably satisfactory to Jason's counsel:
(a) The Cash Payments in accordance with section
3.02 hereof and the Estimated Reimbursement Amount in accordance with section
3.02 hereof.
(b) A letter of credit issued by Paribas and/or
Credit Agricole Indosuez with The First National Bank of Chicago as the
beneficiary in the face amount of the aggregate amount of the letters of credit
described on Schedule 6.02(b).
(c) The legal opinion of Purchasers' counsel,
Xxxxxxxx & Xxxxx, dated as of the Closing Date in substantially the form of
Exhibit B.
(d) Certified copy of the resolutions adopted by
each Purchaser's Board of Directors authorizing the execution, delivery and
performance of this Agreement and all documents contemplated hereby to be
executed and delivered by such Purchaser.
(e) Certificates of Good Standing for each Purchaser
issued by the Secretary of State of the State of Delaware dated within seven
days of the Closing Date.
(f) A copy of each Purchaser's Articles of
Incorporation or Certificate of Formation and all amendments thereto certified
(i) not earlier than
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seven days prior to the Closing Date by the Secretary of State of Delaware, and
(ii) as of the Closing Date by such Purchaser's Secretary.
(g) A copy of Purchaser Corporation's By-Laws
certified as of the Closing Date by Purchaser Corporation's Secretary.
7. Representations and Warranties of Xxxxx and each Seller. Xxxxx
and each Seller hereby represents and warrants to Purchasers that the following
statements are true and correct:
7.01 Corporate Organization. Xxxxx is a corporation duly
organized and validly existing under the laws of the State of Wisconsin. Xxxxx
has the full corporate power and corporate authority to carry on its business as
now conducted. Each Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of Nevada. Each Seller has the full
corporate power and corporate authority to carry on its business as now
conducted. Xxxxxx and Deltak are limited liability companies duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Xxxxxx and Deltak each have the limited liability company power and limited
liability company authority to carry on its business as now conducted. Xxxxxx
and Deltak are each duly qualified and in good standing as a foreign limited
liability company authorized to do business in all jurisdictions in which the
nature of its properties and the conduct of its business require Xxxxxx or
Deltak (as the case may be) to be so qualified except where the failure to be so
qualified will not have a Material Adverse Effect. Each Subsidiary is a
corporation or limited liability company duly organized and validly existing and
Xxxxxx Construction Services, Inc. and Deltak Construction Services, Inc. are in
good standing under the laws of their respective states of incorporation. Except
as disclosed on Schedule 7.01, each Subsidiary has full corporate or limited
liability company power and corporate or limited liability company authority to
carry on its business as now conducted. Xxxxxx Construction Services, Inc. and
Deltak Construction Services, Inc. are each duly qualified and in good standing
as foreign corporations authorized to do business in all jurisdictions in which
the nature of its properties and the conduct of its business require Xxxxxx
Construction Services, Inc. or Deltak Construction Services, Inc. (as the case
may be) to be so qualified except where the failure to be so qualified will not
have a Material Adverse Effect.
7.02 Authorization of Agreement. Xxxxx and each Seller has
the full corporate power to execute, deliver and perform this Agreement and all
other agreements and instruments to be executed by Xxxxx or a Seller in
connection herewith (the "Seller Transaction Documents"), and the execution,
delivery and performance of this Agreement and the Seller Transaction Documents
have been
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duly authorized by all necessary corporate action on the part of Xxxxx and each
Seller. This Agreement and the Seller Transaction Documents have been duly
executed and delivered by Xxxxx and/or the applicable Seller(s). Except as
disclosed on Schedule 7.02, the execution, delivery and performance of this
Agreement and the Seller Transaction Documents do not conflict with, or result
in a breach of, or constitute a default under the terms or conditions of Jason's
or any Seller's Articles of Incorporation or By-Laws, or (a) any court or
administrative order or process to which Xxxxx or any Seller is a party, (b) any
agreement or instrument by which Xxxxx or any Seller is a party or by which
Xxxxx or any Seller is bound except where such conflict or default would not
have a Material Adverse Effect, or (c) any statute or regulation of any
governmental agency except where such conflict or default would not have a
Material Adverse Effect. Notwithstanding the foregoing, Xxxxx and each Seller
make no representation as to compliance with the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended. This Agreement and each of the Seller
Transaction Documents are the legal, valid and binding obligations of Xxxxx
and/or the applicable Seller(s), as the case may be, and are enforceable against
Xxxxx or any such Seller(s) in accordance with their respective terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and subject to general principles of equity.
7.03 Title to Assets. Except for Permitted Encumbrances,
except for inventory and obsolete or replaced equipment disposed of in the
ordinary course of business since the Balance Sheet Date (as herein defined),
except as disclosed on Schedule 7.03 and subject to receipt of any required
consents to the assignment, subcontracting or subleasing of contracts and leases
pursuant to the Contribution Agreements (as defined below) or to the change of
control contemplated by this Agreement, (a) Xxxxxx and Deltak have good,
indefeasible and marketable title to or a valid leasehold interest in the assets
used by them, located on their premises or shown on the Balance Sheet (as herein
defined), free and clear of all Liens, and (b) the Subsidiaries have good,
indefeasible and marketable title to, or a valid leasehold interest in, the
properties and assets used by them, located on their premises or shown on the
Balance Sheet (as herein defined), free and clear of all Liens. Except for cash
and cash equivalents, the insurance policies listed on Schedule 7.29 and Jason's
interest in the Shenzhen Joint Venture, the assets owned by Deltak, Xxxxxx and
the Subsidiaries and the property subject to Leases (as defined in section 7.20)
constitute all of the contracts, rights, assets and properties (other than
public property and property Xxxxxx, Deltak or the Subsidiaries are entitled to
use under license or other similar agreement) that are used in the Business and
which generated the financial results of the Business set forth on the Balance
Sheet and the related financial statements.
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Except for Jason's interest in the Shenzhen Joint Venture and except for the
cash and insurance policies referenced above, Xxxxx has, pursuant to the
Contribution Agreements, contributed or caused to be contributed to Deltak,
Xxxxxx or, in the case of the equity securities of the Subsidiaries, JN all of
Jason's right, title and interest in and to all of Jason's assets, properties
and rights used or held for use principally in the Deltak Business and the
Xxxxxx Business, respectively (the "JPG Assets"). The term "Contribution
Agreements" shall refer to those certain Contribution Agreements between Xxxxx
and JN; JN and BN; JN and DN; BN, Xxxxx and Xxxxxx; and DN, Xxxxx and Deltak,
true and correct copies of which have been delivered to Purchasers.
7.04 Subsidiaries; Capitalization. Except as set forth on
Schedule 7.04, Xxxxx has no direct or indirect subsidiaries with respect to the
Business. Except as set forth on Schedule 7.04, Xxxxx has no interest, direct or
indirect, and has no commitment to purchase any interest, direct or indirect, in
any other corporation, partnership, joint venture or other business enterprise
or entity related to the Business. Except as set forth on Schedule 7.04, the
Business has not been conducted by Xxxxx through any direct or indirect
subsidiary or affiliate of Xxxxx. All issued and outstanding shares of capital
stock of the Subsidiaries are owned by JN, free and clear of all Liens. BN is
the sole member of Xxxxxx and owns its interest free and clear of all Liens. DN
is the sole member of Deltak and owns its interest free and clear of all Liens.
JN is the sole shareholder of BN and DN. Xxxxx is the sole shareholder of JN.
All of the outstanding shares of capital stock of the Subsidiaries have been
duly and validly authorized and issued and are fully paid and nonassessable. All
of the outstanding membership interests of Xxxxxx and Deltak have been duly and
validly authorized and issued and are fully paid and nonassessable. There are no
outstanding or authorized options, warrants, purchase rights, subscription
rights, conversion rights, exchange rights, or other contracts or commitments
that could require JN or any Subsidiary to sell, transfer, or otherwise dispose
of any capital stock of any Subsidiary or that could require any Subsidiary to
issue, sell or otherwise cause to become outstanding any of its capital stock.
There are no outstanding or authorized options, warrants, purchase rights,
subscription rights or other contracts or commitments that could require BN or
DN or Deltak or Xxxxxx to sell, transfer or otherwise dispose of any membership
interest of Deltak or Xxxxxx or that could require Deltak or Xxxxxx to issue,
sell or otherwise cause to become outstanding any additional membership
interests. There are no voting trusts, proxies, or other agreements or
understandings with respect to the voting of any capital stock of any Subsidiary
or with respect to voting by the members of Deltak and Xxxxxx.
7.05 Financial Statements. Schedule 7.05 contains copies of
(a) the audited balance sheets of the Business as of December 26 for 1997;
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(b) audited statements of income of the Business for the year ended December 26,
1997; (c) the unaudited balance sheet of the Business as of or about December 31
for each of the years 1995 and 1996 and the related statements of income for the
years then ended; and (d) the unaudited balance sheets of the Business as of or
about May 1, 1998, and the related statements of income for the approximately
four-month period then ended. The December 26, 1997 balance sheets shall
hereinafter be referred to as the "Balance Sheet" and December 26, 1997 shall
hereinafter be referred to as the "Balance Sheet Date." Each balance sheet and
income statement described in this section was prepared in accordance with
Jason's books of account and records; (b) is true, correct and complete and
presents fairly the financial condition, assets and liabilities of the Business
as of the date specified and the results of its operations for the period
covered thereby; and (c) has been prepared in accordance with generally accepted
accounting principles ("GAAP"), consistently applied, subject to, in the case of
the audited financial statements, the deviations from GAAP described in the
footnotes to such audited financial statements, and subject to, in the case of
the unaudited financial statements, such deviations as contained in the audited
financial statements and the absence of footnote disclosures.
7.06 Labor Matters.
(a) To Jason's knowledge, except as set forth on
Schedule 7.06, neither Xxxxx, Deltak, Xxxxxx nor any Subsidiary has any union
collective bargaining agreements, letters of understanding, written agreements
modifying same or other written labor contracts with respect to the Business. To
Jason's knowledge, Xxxxx has made available to Purchaser copies of all
arbitration or grievance proceedings with respect to the Business within the
last three years relating to any contract or laws regarding employment
practices. To Jason's knowledge, except as set forth on Schedule 7.06, there are
currently no open or unresolved arbitration or grievance proceedings with
respect to the Business relating to any contract or laws regarding employment
practices and none are currently pending or threatened. There is no pending or,
to Jason's knowledge, threatened charge, complaint, or petition by, against or
involving Xxxxx, Deltak, Xxxxxx or any Subsidiary with respect to the Business
before the National Labor Relations Board or any agency which regulates
employment practices.
(b) To Jason's knowledge, except as set forth on
Schedule 7.06, neither Xxxxx, Deltak, Xxxxxx nor any Subsidiary is bound by any
court, administrative agency, arbitration, tribunal, commission or board decree,
judgment, decision, agreement or settlement relating to (i) any collective
bargaining agreement or other written labor or employment agreements with
respect to the Business (including, without limitation, the wages, hours or
other
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terms or conditions of employment contained therein); (ii) unfair labor
practices of Xxxxx, Deltak, Xxxxxx or any Subsidiary with respect to the
Business; (iii) union representation proceedings or attempts to organize
collective bargaining units of Xxxxx, Deltak, Xxxxxx or any Subsidiary with
respect to the Business; (iv) employment discrimination claims against Xxxxx,
Deltak, Xxxxxx or any Subsidiary with respect to the Business within the past
three years; (v) wrongful discharge claims against Xxxxx, Deltak, Xxxxxx or any
Subsidiary with respect to the Business within the past three years; (vi) claims
that Xxxxx, Deltak, Xxxxxx or any Subsidiary has within the past three years
violated any wage/hour matters with respect to the Business; (vii) ex-employees
currently drawing unemployment compensation benefits from Xxxxx, Deltak, Xxxxxx
or any Subsidiary with respect to the Business; (viii) worker's compensation
claims against Xxxxx, Deltak, Xxxxxx or any Subsidiary with respect to the
Business within the past three years; (ix) claims that Xxxxx, Deltak, Xxxxxx or
any Subsidiary has within the past three years violated any occupational safety
and health, safe work place or employee right-to-know laws with respect to the
Business; (x) claims that Xxxxx, Deltak, Xxxxxx or any Subsidiary has within the
past three years violated any affirmative action, government contracts or
contract compliance laws with respect to the Business; (xi) claims that Xxxxx,
Deltak, Xxxxxx or any Subsidiary has within the past three years violated any
immigration laws with respect to the Business; (xii) employment-related tort or
retaliation claims against Xxxxx, Deltak, Xxxxxx or any Subsidiary with respect
to the Business within the past three years; (xiii) claims that, with respect to
the Business, Xxxxx, Deltak, Xxxxxx or any Subsidiary has within the past three
years violated any laws governing an employee's right to continued coverage
under a group health insurance plan; (xiv) claims that Xxxxx, Deltak, Xxxxxx or
any Subsidiary has within the past three years violated any plant closing and
mass layoff laws with respect to the Business; or (xv) any other employment
related claim against Xxxxx, Deltak, Xxxxxx or any Subsidiary with respect to
the Business within the past three years, which may in any way materially and
adversely affect the Business, taken as a whole. Except as set forth on Schedule
7.06, there have been no pending or, to Jason's knowledge, threatened employment
related claims, charges or investigations against Xxxxx, Deltak, Xxxxxx or any
Subsidiary within the past three years, by or on behalf of current or former
employees of the Business, or applicants for employment with the Business which
may in any way materially adversely affect the Business, taken as a whole. To
Jason's knowledge, except as set forth on Schedule 7.06, there is no current
investigation by any government agency relating to employment or safety issues
pertaining to the Business which may in any way materially and adversely affect
the Business, taken as a whole.
(c) Except as disclosed on Schedule 7.06, there is
no pending or, to Jason's knowledge, threatened labor strike, slow-down or work
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stoppage or, to Jason's knowledge, other material labor trouble which may affect
the Business, taken as a whole. Except as set forth on Schedule 7.06, no
representation question is pending or, to Jason's knowledge, threatened against
the Business.
(d) To Jason's knowledge, neither Xxxxx, Deltak,
Xxxxxx, Xxxxxx Construction Services, Inc., nor Deltak Construction Services,
Inc. has committed any material unfair labor practice under the National Labor
Relations Act in connection with the Business.
(e) To Jason's knowledge, no executive of the
Business or other employee who is, in Jason's judgment, a key employee of the
Business has notified Xxxxx, Deltak, Xxxxxx or any Subsidiary of his or her
intent to terminate employment with Xxxxx, Deltak, Xxxxxx or a Subsidiary during
the next 12 months.
7.07 Consents and Approvals. Except as set forth on Schedule
7.07, no consent, approval or authorization of any entity, agency or person is
required in connection with the execution or delivery by Xxxxx, the Sellers,
Braden and/or Deltak, as applicable, of this Agreement or the consummation by
Xxxxx, the Xxxxxxx, Xxxxxx and/or Deltak, as applicable, of the transactions
contemplated hereby. Notwithstanding the foregoing, Xxxxx and each Seller make
no representation as to compliance with the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
7.08 Liabilities. To Jason's knowledge, Deltak, Xxxxxx and
the Subsidiaries have no liabilities, absolute, direct or contingent, or any
outstanding evidence of indebtedness, except (a) as reflected or as reserved
against on the Balance Sheet; (b) liabilities incurred in the ordinary course of
business consistent with past practice since the Balance Sheet Date; or (c) as
reflected on Schedule 7.08. Deltak, Xxxxxx, Deltak Israel Ltd., Power Equipment
Company de Mexico, S.A. de C.V. and the Subsidiaries have no indebtedness for
borrowed money.
7.09 Accounts Receivable. All of the accounts receivable
reflected on the Balance Sheet arose in the ordinary course of business and
represent amounts payable by a buyer for goods actually sold or services
actually performed and, to Jason's knowledge, are not subject to any material
counterclaims or setoffs. Accounts receivable arising after the Balance Sheet
Date have arisen in the ordinary course of business and represent amounts
payable by a buyer for goods actually sold or services actually performed and,
to Jason's knowledge, are not subject to any material counterclaims or setoffs.
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7.10 Inventory. The value at which inventory of Deltak,
Deltak Construction Services, Inc. and the Deltak Business is carried on the
Balance Sheet reflects the customary inventory valuation policy consistently
applied by Deltak, Deltak Construction Services, Inc. and the Deltak Business of
stating inventory on the percentage of completion method of accounting for
inventory in accordance with generally accepted accounting principles
consistently applied by Deltak, Deltak Construction Services, Inc. and the
Deltak Business. The value at which inventory of Xxxxxx, Xxxxxx Construction
Services, Inc., Xxxxxx-Europe B.V. and the Xxxxxx Business is carried on the
Balance Sheet reflects the customary inventory valuation policy consistently
applied by Xxxxxx, Xxxxxx Construction Services, Inc., Xxxxxx-Europe B.V. and
the Xxxxxx Business of stating inventory on an accrual shipment method of
accounting for inventory in accordance with generally accepted accounting
principles consistently applied by Xxxxxx, Xxxxxx Construction Services, Inc.,
Xxxxxx-Europe B.V. and the Xxxxxx Business. To Jason's knowledge, subject to
reasonable contract reserves and expenses incurred by Xxxxx in the ordinary
course of business, the Business' inventory has been engineered and fabricated
in accordance with contracts in place, consistent with past practice, and is
properly reflected on the Balance Sheet based upon the contracts received and
Jason's reasonable estimation of costs to be incurred to complete the contracts.
The Business' inventory has been acquired and commitments to acquire inventory
have been made only in the ordinary course of business. Except as described on
Schedule 7.10, no such inventory has been consigned to others.
7.11 Business Changes. Except as set forth on Schedule 7.11,
since the Balance Sheet Date, Xxxxx, Deltak, Xxxxxx and the Subsidiaries have
(except for matters relating to the transactions contemplated hereby) conducted
the Business only in the ordinary course consistent with past practice. Without
limiting the generality of the foregoing sentence, except as set forth on
Schedule 7.11, there has not been since the Balance Sheet Date, with respect to
the Business:
(a) any material (i) to Jason's knowledge, adverse
change in the condition (financial or other) or in the results of operations,
business, properties, assets, liabilities or net worth of the Business, taken as
a whole, (ii) damage, destruction or loss (whether or not covered by insurance)
affecting the Business, or (iii) transaction outside the ordinary course of
business affecting the Business;
(b) any (i) sale, lease, transfer, assignment,
abandonment or other disposition of any inventory, machinery, equipment, real
property,
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operating or intellectual property or other assets used or usable in the
Business except for dispositions in the ordinary course of business, (ii)
cancellation or compromise of any material debt owed to Xxxxx, Deltak, Xxxxxx or
any Subsidiary with respect to the Business or material claim of Xxxxx, Deltak,
Xxxxxx or a Subsidiary with respect to the Business except in the ordinary
course of business or (iii) to Jason's knowledge, waiver or release of any
material right or claim with respect to the Business;
(c) to Jason's knowledge, any payment by Xxxxx,
Deltak, Xxxxxx or a Subsidiary of any liability of the Business other than (i)
those then required to be discharged or satisfied, (ii) current liabilities
shown on the Balance Sheet and (iii) current liabilities incurred since the
Balance Sheet Date in the ordinary course of business;
(d) except for the transfer of assets to JN and to
Deltak and Xxxxxx pursuant to the Contribution Agreements, any loans, payments
or transfers of cash or other assets by Xxxxx, Deltak, Xxxxxx or a Subsidiary
with respect to the Business outside of the ordinary course of business;
(e) any material deviation from the ordinary and
usual course of conducting the Business including, without limitation, any
increase in compensation of, or any advance (excluding advances for ordinary
business expenses) or loan to any director, officer or employee (including,
without limitation, any increase pursuant to any bonus, pension, profit sharing
or other plan or commitment) or other adoption or material amendment or
modification, or termination of any new benefit program, plan or other
arrangement for directors, officers or employees of the Business;
(f) any capital expenditures by Xxxxx, Deltak,
Xxxxxx or a Subsidiary with respect to the Business in excess of $100,000;
(g) any mortgage, pledge or creation of any material
Lien on any of the assets of the Business;
(h) to Jason's knowledge, any statement made to
Xxxxx, Deltak, Xxxxxx or any of the Subsidiaries with respect to the Business
within the past two years that any customer of the Business which accounted for
2% or more of the Business' total net sales for the prior 12 months may
terminate its relationship with Xxxxx, Deltak, Xxxxxx, or any of the
Subsidiaries, or any notice to Xxxxx, Deltak, Xxxxxx or any of the Subsidiaries
within the past two years of termination or potential termination of any
contract, lease or relationship,
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including relationships with suppliers, which, in any case or in the aggregate,
has or may have a Material Adverse Effect.
(i) any change or modification of Jason's accounting
methods or practices with respect to the Business (including changes to
amortization or depreciation policies or write-downs in the value of any
inventory or accounts receivable);
(j) to Jason's knowledge, any labor union organizing
activity, any actual or threatened employee strikes, work stoppages, slow-downs
or lockouts or any adverse material change in the Business' relations with its
employees, agents, customers or suppliers;
(k) to Jason's knowledge, any (i) failure by Xxxxx,
Deltak, Xxxxxx or any Subsidiary with respect to the Business to replenish its
inventories and supplies in a normal and customary manner consistent with its
prior practice, (ii) purchase commitment by Xxxxx, Deltak, Xxxxxx or any
Subsidiary with respect to the Business in excess of the normal, ordinary and
usual requirements of the Business, or (iii) other material change by Xxxxx,
Deltak, Xxxxxx or any Subsidiary with respect to the Business in selling,
pricing, advertising or personnel practices inconsistent with Jason's, Deltak's,
Xxxxxx'x or the Subsidiaries' prior practices with respect to the Business;
(l) except for the transfer of assets to JN and to
Deltak and Xxxxxx pursuant to the Contribution Agreements, any transfer of
assets of the Business by Xxxxx, Sellers, Deltak, Xxxxxx or the Subsidiaries to
any shareholder, officer, director, employee or affiliate of Xxxxx or any other
transfer of such assets outside the ordinary course of business;
(m) to Jason's knowledge, any material increase in
any obligations or liabilities of Xxxxx, Deltak, Xxxxxx or the Subsidiaries with
respect to the Business (whether absolute, accrued, contingent or otherwise and
whether due or to become due), except items incurred in the ordinary course of
business and generally consistent with past practice;
(n) any declaration, setting aside or payment of a
dividend or other distribution with respect to any of the Subsidiaries' capital
stock or any of Xxxxxx'x or Deltak's equity securities (whether in cash or in
kind), or any direct or indirect redemption, purchase or other acquisition of
any capital stock of the Subsidiaries or any of Xxxxxx'x or Deltak's equity
securities;
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(o) any material transaction, agreement, contract,
lease, or license with respect to the Business outside the ordinary course of
business or inconsistent with past practice;
(p) to Jason's knowledge, any acceleration,
termination, material modification to, or cancellation of any material
agreement, contract, lease or license of the Business to which Xxxxx, Deltak,
Xxxxxx or any Subsidiary is a party or by which Xxxxx, Deltak, Xxxxxx or any
Subsidiary is bound; or
(q) to Jason's knowledge, with respect to the
Business, any material capital investment in, or any material loan to, any other
Person outside the ordinary course of business.
7.12 Real Property. Schedule 7.12 sets forth a true and
complete list and description of each parcel of real estate occupied, owned or
leased by Xxxxx, Deltak, Xxxxxx or any Subsidiary with respect to the Business
(the "Real Property"). The Real Property is the only real property owned or
leased in connection with the Business. Except as set forth on Schedule 7.12,
(i) neither Deltak, Xxxxxx nor any Subsidiary owns a fee interest in any real
estate and (ii) neither Xxxxx nor any of its other Affiliates owns a fee
interest in any real estate with respect to the Business. Except for the
Permitted Encumbrances, Deltak or Xxxxxx has good and marketable title to the
owned Real Property, free and clear of all mortgages, liens, security interests,
easements, covenants, rights of way and other encumbrances or restrictions of
any nature whatsoever. All installments of real estate taxes with respect to the
owned Real Property due prior to the date hereof are paid current. Except as
described on Schedule 7.12, (i) neither Deltak, Xxxxxx nor any Subsidiary is a
lessee, lessor, sublessor or sublessee under any lease of real property and (ii)
neither Xxxxx nor any of its other Affiliates is, with respect to the Business,
a lessee, lessor, sublessor or sublessee under any lease of real property.
Subject to receipt of any required consents to the assignment or subleasing of
leases pursuant to the Contribution Agreements or to the change of control
contemplated by this Agreement, the real estate leases described on Schedule
7.12 (the "Real Estate Leases") are valid, binding and in full force and effect,
and, to Jason's knowledge, there is no material default by Xxxxx, Deltak, Xxxxxx
or any Subsidiary or any other party thereunder. There are no outstanding
options or rights of first refusal to purchase the owned Real Property or any
portion thereof or interest therein.
7.13 Condition of Real Property. To Jason's knowledge, except
as set forth on Schedule 7.13, there are no material structural or nonstructural
defects in any of the buildings or other improvements situated on the Real
Property and all building systems, structures, fixtures and improvements, owned,
leased or used by
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Xxxxx, Deltak, Xxxxxx or any Subsidiary with respect to the Business are, in all
material respects, in a condition and working order sufficient to conduct the
Business in the manner currently and historically conducted by Xxxxx and the
Subsidiaries. Except as set forth on Schedule 7.13, no material capital
expenditures on the Real Property are contemplated by Jason, Braden, Deltak or
any Subsidiary within the 12 months following the Closing Date. To Jason's
knowledge, each parcel of Real Property is serviced by electric, gas, telephone,
municipal water, municipal sanitary and storm sewer sufficient in quality and
quantity to operate the Business now conducted from each such parcel of Real
Property.
7.14 Planned Public Improvements and Special Assessments. To
Jason's knowledge, neither Xxxxx, Deltak, Xxxxxx nor any Subsidiary has received
notice of any planned, contemplated or commenced public improvements that may
result in special assessments or special charges pertaining to the Real Property
or that may otherwise materially and adversely affect the availability of
utility service or access to the Real Property. To Jason's knowledge, there are
no deferred water or sewer charges nor any deferred special assessments
pertaining to the Real Property.
7.15 Access. To Jason's knowledge, (a) there is full and free
vehicular access to and from public highways and roads to each parcel of Real
Property and (b) all utility companies providing utilities to each such parcel
of Real Property have adequate rights of access to provide the services
necessary for the conduct of the business now conducted upon each such parcel of
Real Property.
7.16 Building Code Compliance. Neither Xxxxx, Deltak, Xxxxxx
nor any Subsidiary has received notice of any government agency or court order
requiring repairs, alterations or corrections of any existing conditions on the
Real Property with respect to which Xxxxx, Deltak, Xxxxxx or any Subsidiary has
not complied. To Jason's knowledge, except as set forth on Schedule 7.16, the
Real Property complies in all material respects with all federal, state and
municipal laws, ordinances, orders, regulations and requirements.
7.17 Zoning. To Jason's knowledge, the current use of and the
improvements on the Real Property are permitted under governing zoning laws and
ordinances and are not nonconforming or a special use or special exception.
Neither Xxxxx, Deltak, Xxxxxx nor any Subsidiary has received notice of any
contemplated change in the current zoning classification. To Jason's knowledge,
all improvements and buildings comprising the Real Property (including, without
limitation, the number of parking spaces, the building site and area, the
set-backs
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and height) are in compliance with all applicable zoning and building codes and
ordinances. To Jason's knowledge, except as set forth on Schedule 7.17, all
licenses, permits, certificates and other governmental approvals necessary for
the use or occupancy of the Real Property have been issued and are in full force
and effect for all portions of the Real Property.
7.18 Personal Property Leased. Schedule 7.18 sets forth a
list of all material machinery, equipment, vehicles and other tangible personal
property used in the operation of the Business which is covered by a lease to
which Jason, Braden, Deltak or any of the Subsidiaries is a party.
7.19 Condition of Assets. To Jason's knowledge, except as set
forth on Schedule 7.19, no material maintenance outside the ordinary course of
business is needed with respect to the assets of the Business and, none of the
assets of the Business, or the ownership, lease, occupancy or operation thereof,
is in material violation of any law, ordinance, code, rule or regulation. To
Jason's knowledge, the assets of the Business are in good operating condition
and working order except for ordinary wear and tear and depreciation. No notice
from any governmental body or other person has been served upon Jason, Braden,
Deltak or any Subsidiary with respect to the Business within the last three
years claiming any violation of any law, ordinance, code, rule or regulation or
requiring, or calling attention to the need for any work, repairs, construction,
alterations or installation on or in connection with such property with respect
to which Jason, Braden, Deltak or the Subsidiary has not complied.
7.20 Contracts and Leases. The material written and, to
Jason's knowledge, oral contracts and leases of Xxxxxx, Deltak, each Subsidiary
and the Business (including the Real Property Leases) (the "Contracts" and the
"Leases") are listed on Schedule 7.20 and such written contracts have been
validly executed by Jason, Braden, Deltak or a Subsidiary. Subject to any third
party consents to transfer, subcontracting and/or change in control which may be
required in connection with the consummation of this Agreement or any of the
Contribution Agreements and which are not obtained, the Contracts and Leases are
all legally valid and binding upon Jason, Braden, Deltak or a Subsidiary and are
in full force and effect with respect to the parties thereto. To Jason's
knowledge, neither Jason, Braden, Deltak nor any Subsidiary nor any of the other
parties thereto, is in material default thereof. For purposes hereof, a contract
or lease shall be deemed material if such contract or lease is a:
(a) pension, profit sharing, stock option, employee
stock purchase or other plan or arrangement providing for deferred or other
compensation to employees or any other material employee benefit plan or
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arrangement, or any collective bargaining agreement or any other contract with
any labor union, or any severance agreement, program, policy or arrangement;
(b) contract for the employment of any officer,
individual employee or other Person on a full-time, part-time, consulting or
other basis providing annual compensation in excess of $100,000 or contract
relating to loans to officers, directors or Affiliates;
(c) contract under which Xxxxxx, Deltak or any
Subsidiary has advanced or loaned any other Person amounts in the aggregate
exceeding $50,000 or made any other investment in any other Person;
(d) agreement or indenture relating to indebtedness
or the mortgaging, pledging or otherwise placing a Lien on any material asset or
material group of assets of Xxxxxx, Deltak or any of the Subsidiaries;
(e) lease or agreement under which Xxxxxx, Deltak or
any Subsidiary is lessee of or holds or operates any property, real or personal,
owned by any other party, except for any lease of real or personal property
under which the aggregate annual rental payments do not exceed $75,000;
(f) lease or agreement under which Xxxxxx, Deltak or
any Subsidiary is lessor of or permits any third party to hold or operate any
material property, real or personal, owned by Xxxxxx, Deltak or any Subsidiary;
(g) contract or purchase order, the performance of
which involves outstanding consideration in excess of $200,000;
(h) assignment, license, indemnification or
agreement with respect to any Intangible Assets;
(i) material agreement with any federal, state or
local government or subdivision, agency or authority thereof;
(j) sales, distribution or franchise agreement
involving payments by or to any party thereunder in excess of $75,000 in any
one-year period;
(k) agreement material to the operation of the
Business with a term of more than one year which is not terminable by Xxxxxx,
Deltak or any Subsidiary upon less than 90 days notice without penalty;
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(l) contract or agreement prohibiting Xxxxxx, Deltak
or any Subsidiary from freely engaging in any business or competing anywhere in
the world; or
(m) any other agreement which is material to the
operations or prospects of the Business or involves a consideration in excess of
$200,000 annually.
The Purchasers have been provided access to a true and correct copy of each of
the written Contracts and Leases and an accurate description of each of the oral
Contracts and Leases, together with all material amendments or waivers thereto.
Neither Jason, Braden, Deltak nor the Subsidiaries have received notice of any
claimed breach of any of the Contracts or Leases. To Jason's knowledge, Jason,
Braden, Deltak or a Subsidiary has complied with the material provisions of the
Contracts and Leases. To Jason's knowledge, no event has occurred which, after
the passage of time or the giving of notice or both, would constitute a default
under any Contract or Lease by Jason, Braden, Deltak or a Subsidiary or any
other party to any of the Contracts or Leases. Neither Jason, Braden, Deltak nor
any Subsidiary has received notice of termination with respect to any of the
Contracts or Leases. Except for the assignments pursuant to the Contribution
Agreements (the "Assignments"), neither Jason, Braden, Deltak nor any Subsidiary
has assigned any of its material rights under any Contract or Lease. Neither
Jason, Braden, Deltak nor any Subsidiary has waived any of its material rights
in writing under any of the Contracts or Leases or, to Jason's knowledge, waived
any of its material rights in practice under any of the Contracts or Leases. To
Jason's knowledge, all of the Contracts and Leases were entered into in the
ordinary course of business.
7.21 Environmental Matters.
(a) The term "Environmental Laws" shall mean all
foreign, federal, interstate, state and local laws, including statutes, rules,
regulations, and other governmental orders and guidances, all contractual
obligations and all common law relating to the discharge, release, emission,
dispersal, spilling, leaking, dumping or migration of Hazardous Substances or
otherwise relating to the protection of the environment, the management of
Hazardous Substances or the protection of employee health and safety or
safeguarding public health and welfare including, but not limited to, the Solid
Waste Disposal Act, the Clean Air Act, the Water Pollution Control Act, the
Resource Conservation and Recovery Act of 1976, the Comprehensive, Environmental
Response, Compensation, and Liability Act of 1980, the Superfund Amendments and
Reauthorization Act, the Occupational Safety and Health Act of 1970, the Toxic
Substances Control Act,
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the Hazardous Materials Transportation Act (all as the same may have been
amended), rules and regulations of the United States Environmental Protection
Agency, rules and regulations of the United States Nuclear Regulatory Agency,
rules and regulations of the United States Department of Transportation, state
environmental protection statutes, and rules and regulations of any state or
local department of environmental or natural resources or any state or local
environmental protection agency and as now in effect.
(b) The term "Hazardous Substances" shall mean all
hazardous and toxic materials or wastes (including, without limitation,
petroleum products, asbestos and raw materials which include hazardous
constituents), fumes, smoke, soot, acids, alkalis, chemicals, liquids, gases,
vapors, wastes and materials; any pollutants or contaminants; and any other
similar substances or materials which are regulated under, or as to which
liability may be imposed under, Environmental Laws.
(c) Purchasers have had access to information in
Jason's possession or control regarding:
(i) All permits, licenses, approvals and
consents issued by or received from government agencies (including local
sewerage districts) relating to Environmental Laws or Hazardous Substances which
are held by Jason, Braden, Deltak or a Subsidiary and which relate to the Real
Property or the Business (the "Environmental Permits").
(ii) All above or below ground storage tanks
on the Real Property and identifies all products and materials currently stored
in such tanks.
(d) To Jason's knowledge, except as described on
Schedule 7.21, (i) the Environmental Permits are in full force and effect and
constitute all permits, licenses, approvals and consents relating to
Environmental Laws or Hazardous Substances required for the conduct of the
Business and the use of the assets of the Business and the Real Property in
compliance with Environmental Laws; (ii) no proceeding for the suspension,
revocation or cancellation of any Environmental Permit is pending or threatened
and (iii) no applications for permits or reports filed by Jason, Braden, Deltak
or a Subsidiary with respect to the Business in connection with any
Environmental Law or Environmental Permit contained any untrue statement of
material fact or omitted any statement of material fact necessary to make the
statements made not misleading.
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(e) To Jason's knowledge, except as set forth on
Schedule 7.21, Jason, Braden, Deltak or a Subsidiary (i) has filed all reports,
returns and other filings required to be filed with respect to the Real Property
and the Business under Environmental Laws and the Environmental Permits; and
(ii) has made available to Purchasers complete copies of all environmental
filings described in this subparagraph which have been made since January 1,
1995.
(f) To Jason's knowledge, except as set forth on
Schedule 7.21, (i) the Business and the Real Property have, in all material
respects, been operated by Jason, Braden, Deltak and the Subsidiaries in
compliance with the Environmental Laws and Environmental Permits; and (ii)
neither Jason, Braden, Deltak nor any Subsidiary has received notice that the
Business or the Real Property is not in compliance with any Environmental Law or
Environmental Permit.
(g) Except as described on Schedule 7.21, there are
no actions, claims or investigations pending or, to Jason's knowledge,
threatened against the Business, the assets of the Business or the Real
Property, which in any case assert or allege (i) Xxxxx, Deltak, Xxxxxx or a
Subsidiary, the Business, the assets of the Business or the Real Property
violated any Environmental Law or Environmental Permit or is in default with
respect to any Environmental Permit or any environmental order, writ, judgment,
variance, award or decree of any government authority; (ii) Xxxxx, Deltak,
Xxxxxx or a Subsidiary is, with respect to the Business, required to clean up or
take any investigation, remedial or other response action due to the disposal,
discharge or other release of any Hazardous Substance on the Real Property or
elsewhere; or (iii) Xxxxx, Deltak, Xxxxxx or a Subsidiary is, with respect to
the Business, required to contribute to the cost of any past, present or future
cleanup or remedial or other response action which arises out of or is related
to the disposal, discharge or other release of any Hazardous Substance by Xxxxx,
Deltak, Xxxxxx or a Subsidiary. Except as described on Schedule 7.21, neither
the Business, the assets of the Business nor the Real Property is subject to any
judgment, stipulation, order, decree or agreement arising under Environmental
Laws to which Xxxxx, Deltak, Xxxxxx or a Subsidiary is a party.
(h) To Jason's knowledge, except as described on
Schedule 7.21, (i) Xxxxx, Deltak, Xxxxxx or a Subsidiary has not treated,
recycled, or disposed of Hazardous Substances on, under, at or from the Real
Property or any other facility or property (including at any offsite disposal
facility) (intentionally or unintentionally) in violation of Environmental Law
at the time such treatment, recycling or disposal occurred, and/or such
treatment, recycling or disposal will not result in any requirement for
investigation or cleanup under
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Environmental Law or any liability (contingent or otherwise) under Environmental
Law; (ii) there has been no release or threatened release of any Hazardous
Substance at, under or from the Real Property or at any other property or
facility owned or operated at any time by Xxxxx (with respect to the Business),
Deltak, Xxxxxx or any Subsidiary in violation of Environmental Law at the time
such release occurred or was threatened and/or such release, or threatened
release will not result in any requirement for investigation or cleanup under
Environmental Law or any liability (contingent or otherwise) under Environmental
Law; (iii) there have not been nor are there now any materials containing
asbestos or PCBs on the Real Property; (iv) there have been no activities on the
Real Property or at any other property or facility owned or operated at any time
by Xxxxx (with respect to the Business), Deltak, Xxxxxx or any Subsidiary which
would subject Xxxxxx, Deltak, a Subsidiary, or any subsequent owner, lessee,
occupant or operator of the Real Property to damages, penalties, injunctive
relief or cleanup costs under any Environmental Laws; and (v) any treatment,
recycling or disposal of Hazardous Substances conducted off the Real Property
has been in compliance with all Environmental Laws and Environmental Permits in
effect at the time of the treatment, recycling or disposal.
(i) Xxxxx, Deltak, Xxxxxx or a Subsidiary has
provided to Purchasers access to full and complete copies of all environmental
studies, assessments, audits and analytical reports in its possession relating
to the Real Property and any other past or current properties or facilities of
the Business operated by Xxxxx or its Affiliates.
7.22 Government License and Regulation. To Jason's knowledge,
Xxxxx, Deltak, Xxxxxx and the Subsidiaries have all domestic and foreign
governmental licenses, permits, certificates, approvals, registrations and
authorizations necessary to conduct the Business as currently conducted and to
own and/or use the assets of the Business as currently used under all applicable
laws, rules, regulations and codes. To Jason's knowledge, except as set forth on
Schedule 7.22, such licenses, permits, certificates, approvals, registrations
and authorizations are in full force and effect and will remain in full force
and effect immediately after Closing. No proceeding is pending or, to Jason's
knowledge, threatened regarding the revocation or limitation of any such
governmental license, permit, certificate, approval, registration or
authorization.
7.23 Restrictions on Personnel. To Jason's knowledge, except
as described on Schedule 7.23, none of the officers or employees of the Business
have entered into any agreement which is now in effect with any person,
corporation, partnership or business organization (other than Xxxxx, Deltak,
Xxxxxx or a Subsidiary) requiring such person to assign any interest in any
invention,
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proprietary information or trade secrets related to the Business or to keep
confidential any such material or containing any prohibition or restriction on
competition by Xxxxx, Deltak, Xxxxxx or a Subsidiary with respect to the
Business or solicitation of customers of the Business.
7.24 Taxes. Except as described on Schedule 7.24:
(a) Each of Xxxxx, Sellers, Braden, Deltak and the
Subsidiaries have properly and timely filed in accurate and correct form all
income tax returns and reports with respect to Xxxxxx, Deltak, the Subsidiaries
and the Business required to be filed by them with all taxing authorities
(collectively, the "Income Tax Returns"), and have paid all Income Taxes
("Income Taxes") due or claimed to be due to such authorities. To Jason's
knowledge, each of Xxxxx, Sellers, Braden, Deltak and the Subsidiaries (i) have
properly and timely filed in accurate and correct form all other tax returns and
reports with respect to Xxxxxx, Deltak, the Subsidiaries and the Business
required to be filed by them with all and any authorities (collectively, the
"Other Tax Returns") and (ii) have paid or accrued all Taxes due or claimed to
be due. "Tax" means any federal, state, local or foreign income, excise, sales,
use, gross receipts, ad valorem, payroll, employment, license, environmental,
capital stock, franchise, withholding, social security, real property, personal
property, transfer or other tax of any kind whatsoever, including any penalties,
assessments, interest, governmental charges, fines or additions thereto. The
term "Income Tax" means any federal, state, local or foreign income Tax,
including any penalties, assessments, interest, governmental charges, fines or
additions thereto.
(b) With respect to the Business, the Income Tax
Returns reflect all Income Taxes due and payable with respect to the periods
covered thereby and there are no other Income Tax liabilities, deficiencies,
interest or penalties payable or asserted against Xxxxx, Sellers, Braden, Deltak
or the Subsidiaries with respect to such periods. To Jason's knowledge, with
respect to the Business, the Other Tax Returns reflect all Taxes (other than
Income Taxes) due and payable with respect to the periods covered thereby and
there are no other Tax liabilities, deficiencies, interest or penalties payable
or asserted against Xxxxx, Sellers, Braden, Deltak or the Subsidiaries with
respect to such periods.
(c) With respect to the Business, there are no
actions, suits, proceedings, investigations or claims pending or, to Jason's
knowledge, threatened against Xxxxx, Sellers, Braden, Deltak or the Subsidiaries
with respect to Taxes, governmental charges or assessments, nor are any such
matters under discussion with any governmental authority.
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(d) Each of Xxxxx, Sellers, Braden, Deltak and the
Subsidiaries, as applicable, (i) has withheld or collected from each payment
made to each of the Business' employees the amount of all Income Taxes and, to
Jason's knowledge, other Taxes (including, but not limited to, state and federal
employment taxes and FICA) required to be withheld or collected therefrom, (ii)
has promptly remitted such amounts to the proper income taxing authorities and,
to Jason's knowledge, all other proper taxing authorities, and (iii) has filed
all reports with respect thereto with the proper income taxing authorities and,
to Jason's knowledge, with all other proper taxing authorities.
(e) Neither Xxxxxx nor Deltak has elected to be
regarded as a corporate entity separate from its owner within the meaning of and
under Treasury Regulation section 301.7701-3(b)(ii).
(f) None of Xxxxx, Sellers or any Subsidiary has
filed a consent under Code section 341(f) concerning collapsible corporations.
To Jason's knowledge, neither Xxxxx nor any Subsidiary has been a United States
real property holding corporation within the meaning of Code section 897(c)(2)
during the applicable period specified in Code section 897(c)(1)(A)(ii). None of
Xxxxxx, Deltak or any Subsidiary is a party to any Tax allocation or sharing
agreement. None of the Subsidiaries (i) has been a member of an Affiliated Group
filing a consolidated federal Income Tax Return other than a group the common
parent of which is Xxxxx or (ii) has any liability for the Income Taxes of any
Person (other than Xxxxx and the Subsidiaries) under Regulation section 1.1502-6
(or any similar provision of state, local, or foreign law), as a transferee or
successor, by contract, or otherwise.
7.25 Employment Contracts and Policies. Except as set forth
on Schedule 7.25, neither Xxxxx, Deltak, Xxxxxx nor any Subsidiary, with respect
to the Business, has any written or, to Jason's knowledge, oral employment
contract with any person, nor any written or, to Jason's knowledge, oral
contract with any employee of the Business involving termination, retirement or
termination pay, deferred compensation, profit sharing or pension plans,
employee benefit plans or other employee benefits or post-employment benefits of
any kind. To Jason's knowledge, Xxxxx, Deltak, Xxxxxx or a Subsidiary has made
available to Purchaser all of Jason's and the Subsidiaries' written employment
policies presently in effect for employees of the Business.
7.26 Intangible Assets. Schedule 7.26 contains a true and
complete list of all patents, invention disclosures, trademarks, trade dress,
trade names, service marks, material copyrights, material computer software and
material licenses relating to the Business including all registrations pending,
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applications and applications to be filed by Xxxxx, Deltak, Xxxxxx or a
Subsidiary therefor (the "Intangible Assets"). Neither Jason, Braden, Deltak nor
the Subsidiaries have received actual notice of any adverse claim regarding the
Intangible Assets and, to Jason's knowledge, all Intangible Assets are free and
clear of any adverse claims or interests. To Jason's knowledge, except as set
forth on Schedule 7.26, no licenses, sublicenses, covenants or agreements have
been granted or entered into by Xxxxx, Deltak, Xxxxxx or a Subsidiary relating
to any of the Intangible Assets. To Jason's knowledge, neither the operation of
the Business, nor Jason's, Deltak's, Xxxxxx'x or a Subsidiary's use of the
assets of the Business, or the manufacture, sale or use of the products of the
Business has infringed or misappropriated any patent, invention disclosure,
trademark, trade dress, trade name, service xxxx, copyright, trade secret,
license or other intangible property right of others. To Jason's knowledge,
except as set forth on Schedule 7.26, neither Xxxxx, Deltak, Xxxxxx nor any
Subsidiary has received any notice of infringement by others of any of the
Business' patents, invention disclosures, trademarks, trade dress, trade names,
service marks, copyrights, licenses, trade secrets or other intangible property
rights. To Jason's knowledge, neither Xxxxx, Deltak, Xxxxxx nor any Subsidiary
has any notice of any claim against Xxxxx, Deltak, Xxxxxx or a Subsidiary for
infringement of any patents, trademarks, trade dress, trade names, service
marks, copyrights or licenses of others or the misappropriation of trade secrets
of others. Jason, Braden, Deltak or a Subsidiary owns and possesses all right,
title and interest in and to, free and clear of any Liens, or, to Jason's
knowledge, has a valid and enforceable license to use, the Intangible Property.
7.27 Unlawful Payments. No payments of cash or other
consideration have ever been offered or made to any person, entity or government
by Xxxxx with respect to the Business, or, to Jason's knowledge, by Deltak,
Xxxxxx or a Subsidiary which were unlawful under the laws of the United States
or any state or other government having appropriate jurisdiction.
7.28 Compliance with Law. To Jason's knowledge, the operation
of the Business, and the use of the Real Property do not violate any applicable
federal, state, local or international laws or ordinances or any other rule or
regulation of any international, federal, state or local agency or body. To
Jason's knowledge, Xxxxx, Deltak, Xxxxxx and the Subsidiaries are in substantial
compliance with and have substantially complied with all applicable federal,
state, local and foreign laws, ordinances, rules, regulations, judgments,
decrees and orders applicable to the Business (other than applicable bulk
transfer laws in connection with the Contribution Agreements).
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7.29 Insurance. Schedule 7.29 lists all insurance policies
owned by Xxxxx with respect to the Business or by Deltak, Xxxxxx or a
Subsidiary. With respect to each such insurance policy, (a) to Jason's
knowledge, the policy is in full force and effect in all material respects, (b)
neither Xxxxx, Deltak, Xxxxxx or a Subsidiary nor, to Jason's knowledge, any
other party to the policy is in material breach or default (including with
respect to payment of premiums or the giving of notices), and, to Jason's
knowledge, no event has occurred which, with notice or with the lapse of time,
would constitute such a material breach or default, or permit termination,
modification or acceleration under the policy, and (c) to Jason's knowledge, no
party to the policy has repudiated any material provision thereof. All premiums
on policies due prior to the date hereof have been paid. Neither Xxxxx, Deltak,
Xxxxxx nor a Subsidiary has received notice that any such insurance is in
default, will be canceled or not renewed, or will be renewed at premium rates
materially in excess of the premium rates currently in effect.
7.30 Letters of Credit. Schedule 6.02(b) contains a true and
complete list of all letters of credit under which Xxxxx is an obligor with
respect to the Business or under which Deltak, Xxxxxx or any Subsidiary is an
obligor (the "Seller Letters of Credit"). All Seller Letters of Credit are in
full force and effect and will remain in full force and effect after
consummation of the transactions contemplated hereby.
7.31 Disabled Employees. To Jason's knowledge, except as set
forth on Schedule 7.31, no employee of the Business is eligible for long-term
disability but has not yet been certified as such, and no employee of the
Business is on medical leave.
7.32 Expenses. Except for the expenses described in section
15.05(b) to be paid by Purchaser LLC, all expenses incurred by Jason, Braden,
Deltak or any Subsidiary in connection with the transactions contemplated hereby
(including legal expenses) have either been paid in full or will be paid in full
by Xxxxx. Except for the fees of Xxxxxx Gull Xxxxxxx & XxXxxxxx Inc. for which
Xxxxx shall be responsible, Xxxxx has no liability or obligation to pay any fees
or commissions to any broker, finder or agent with respect to the transactions
contemplated by this Agreement for which the Purchasers or the Business could
become liable or obligated. Neither Deltak, Xxxxxx nor any of the Subsidiaries
has any liability or obligation to pay any fees or commissions to any broker,
finder or agent with respect to the transactions contemplated by this Agreement.
7.33 Litigation and Proceedings. Except as set forth on
Schedule 7.33, there is no suit, action or legal, administrative, arbitration or
other proceeding (including, without limitation, condemnation cases, historic
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designation proceedings or rezoning proceedings) pending or, to Jason's
knowledge, threatened against Xxxxx with respect to the Business or against
Deltak, Xxxxxx or any Subsidiary. Schedule 7.33 sets forth a description of all
pending claims made (or, to Jason's knowledge, presently contemplated claims to
be made) by Xxxxx with respect to the Business or by Deltak, Xxxxxx or any
Subsidiary against third parties. Except as set forth on Schedule 7.33, neither
Xxxxx, with respect to the Business, Deltak, Xxxxxx nor any Subsidiary, is now
under any judgment, order, injunction, charge or decree of any court,
administrative agency or other governmental authority.
7.34 Employee Benefits (Excluding Xxxxxx-Europe B.V). For
purposes of this section 7.34 only, the term "Subsidiary" shall not include
Xxxxxx-Europe B.V., and the term "Power Generation Employee" shall not include
employees of Xxxxxx-Europe B.V. Section 7.34 shall not apply to Xxxxxx-Europe
B.V. or its employees.
(a) Schedule 7.34(a) lists all "employee pension
benefit plans," as such term is defined in section 3(2) of the Employee
Retirement Income Security Act of 1974 ("ERISA") without regard to any
exemptions from any requirements thereunder issued by the United States
Department of Labor in regulations or otherwise, maintained, sponsored or
contributed to by Xxxxx for the benefit of any employee, as of the Closing Date,
of the Business(a "Power Generation Employee") (the "Pension Plans"). Schedule
7.34(a) specifies the Pension Plans that are sponsored, maintained or
contributed to, by Xxxxxx, Deltak or any of the Subsidiaries as of the Closing
Date. The term "Pension Plan" shall also include any "employee pension benefit
plan" previously maintained, sponsored or contributed to by Xxxxx for the
benefit of any Power Generation Employee which, as of the Closing Date, has not
been terminated and distributed all of its assets in full satisfaction of
accrued benefits and/or obligations.
(b) Xxxxx has made available to Purchaser copies of
(i) all documents governing each of the Pension Plans as in effect on the
Closing Date; (ii) the most recent annual report prepared on the appropriate
Internal Revenue Service Form 5500 series, including all required attachments,
for each of the Pension Plans subject to such reporting requirements; and (iii)
the most recent determination letter issued by the Internal Revenue Service or
application therefor concerning the qualification of any Pension Plan pursuant
to section 401(a) of the Code, all of which are true, correct and complete in
all material respects.
(c) None of the assets of the Business are subject
to any lien, constructive or otherwise, arising under ERISA section 4068.
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(d) Except as described in Schedule 7.34(d), all
Pension Plans have obtained favorable determination letters from the Internal
Revenue Service relating to the tax qualification of the Pension Plan under Code
section 401(a) and the tax exempt status of its trust, and Xxxxx knows of no
events that have occurred that would materially adversely affect the qualified
status of any Pension Plan or the tax exempt status of its trust. To Jason's
knowledge, the Pension Plans have operated in accordance with the requirements
of the Code in all material respects, including but not limited to, compliance
with Code sections 401(a)(4), 401(k)(3), 401(m), 410 and 415.
(e) Schedule 7.34(e) lists all "employee welfare
benefit plans," as defined in ERISA section 3(1) without regard to any
exemptions from any requirements thereunder issued by the United States
Department of Labor in regulations or otherwise, maintained, sponsored or
contributed to by Xxxxx for the benefit of any Power Generation Employee (the
"Welfare Plans"). Schedule 7.34(e) specifies the Welfare Plans that are
sponsored, maintained or contributed to, by Xxxxxx, Deltak or any of the
Subsidiaries as of the Closing Date. The term "Welfare Plans" shall also include
any employee welfare benefit plan previously maintained, sponsored or
contributed to by Xxxxx for the benefit of any Power Generation Employee which,
as of the Closing Date, has not terminated and distributed all of its assets
and/or satisfied all of its obligations.
(f) Except as provided on Schedule 7.34(f), Xxxxx
has made available to Purchaser copies of all documents governing each of the
Welfare Plans as in effect on the Closing Date, all of which, to Jason's
knowledge, are true, correct and complete.
(g) To Jason's knowledge, Schedule 7.34(g) hereto
contains an accurate and complete list of each other retirement, savings,
thrift, deferred compensation, severance, stock ownership, stock purchase, stock
option, performance, bonus, incentive, vacation or holiday pay, travel, fringe
benefit, plan, policy, trust, understanding or arrangement of any kind, whether
written or oral, contributed to, maintained or sponsored by Xxxxx for the
benefit of any present or former Power Generation Employee, officer or director
which is not a Pension Plan or a Welfare Plan (the "Other Plans"). Schedule
7.34(g) specifies the Other Plans that are sponsored, maintained or contributed
to by Xxxxxx, Deltak or any of the Subsidiaries as of the Closing Date.
(h) Except as provided on Schedule 7.34(h), Xxxxx
has made available to Purchaser copies of all documents governing each Other
Plan as in effect on the Closing Date, all of which are, to Jason's knowledge,
true, correct and complete.
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(i) Xxxxx has not, after May 22, 1998, made any
material modification, within the meaning of ERISA section 102 and the
regulations thereunder (even if such term does not apply under ERISA to such
plan), to any existing Pension Plan, Welfare Plan or Other Plan which is not set
forth in the Pension Plan, Welfare Plan or Other Plan documents made available
to Purchaser and which is not disclosed explicitly on Schedule 7.34(i) as a
material modification made after May 22, 1998.
(j) For purposes of this section, "Xxxxx" shall
include Xxxxx and all members of any controlled group of corporations (within
the meaning of Code section 414(b), relevant Treasury Regulations and Pension
Benefit Guaranty Corporation regulations issued pursuant to ERISA section 4001),
any group of trades or businesses under common control (within the meaning of
Code section 414(c), relevant Treasury Regulations and Pension Benefit Guaranty
Corporation regulations issued pursuant to ERISA section 4001) and any
affiliated service group (within the meaning of Code section 414(m) and relevant
Treasury Regulations and proposed Treasury Regulations) of which Xxxxx is a
member, except Xxxxxx-Europe B.V.
(k) To Jason's knowledge, except as disclosed on
Schedule 7.34(k), with respect to the Business, (i) Xxxxx never has been
obligated to contribute on behalf of a Power Generation Employee to any
multiemployer plan within the meaning of ERISA section 3(37) or 4001(a)(3); (ii)
Xxxxx has not incurred any liability on account of a "partial withdrawal" or a
"complete withdrawal" (within the meaning of ERISA sections 4205 and 4203) from
any employee benefit plan subject to Title IV of ERISA which is a "multiemployer
plan" (as such term is defined in ERISA section 3(37) (a "Multiemployer Plan"),
and (iii) Xxxxx is not bound by any contract or agreement and does not have any
obligation or liability described in ERISA section 4204.
(l) To Jason's knowledge, except as disclosed on
0Schedule 7.34(l), the Welfare Plans, Pension Plans and Other Plans and the
trusts or other funding vehicles related to the Welfare Plans, Pension Plans and
Other Plans have been administered in all material respects in compliance with
the applicable requirements of ERISA, the Code, the plan documents and all other
applicable rules, regulations and laws. To Jason's knowledge, the Welfare Plans,
Pension Plans and Other Plans and the trusts or other funding vehicles related
to the Welfare Plans, Pension Plans and Other Plans meet, in all material
respects, applicable requirements, in form and in operation, for favorable tax
treatment under the Code. To Jason's knowledge, the Pension Plans comply in all
material respects with the requirements of the Tax Reform Act of 1986, Uruguay
Round
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Agreements Act, Small Business Job Protection Act of 1996, the Taxpayer Relief
Act of 1997, Uniformed Services Employment and Reemployment Rights Act and all
applicable subsequent legislation, requirements and amendments under the Code
and ERISA. To Jason's knowledge, all required contributions and all expenses
pursuant to the Welfare Plans, Pension Plans and Other Plans for all periods
prior to the Closing Date (including an accrued liability for an amount equal to
the amounts which Xxxxx would be required to contribute for the period of
January 1, 1998 through the Closing Date as employer profit sharing, base or
matching contributions to the Pension Plans on behalf of participants as of the
Closing Date, assuming that any hours of service or year-end employment
requirements apply to such determination as if the Closing Date is the last day
of the Plan Year with respect to year-end employment requirements and pro-rata
as of the Closing Date with respect to hours of service) have been made or will
be made within 30 days of the Closing Date or are adequately reflected in
accordance with generally accepted accounting principles on the Closing Date
Statements of Net Operating Assets. To Jason's knowledge, there are no
threatened claims, lawsuits or arbitrations which have been asserted or
instituted against the Pension Plans, Welfare Plans or Other Plans or any
fiduciaries thereof with respect to their duties to the Welfare Plans, Pension
Plans or Other Plans or the assets of any of the trusts under any Pension Plans,
Welfare Plans or Other Plans. To Jason's knowledge, no representations or
communications with respect to participation, eligibility for benefits, vesting,
benefit accrual or coverage under the Pension Plans, Welfare Plans or Other
Plans have been made to Power Generation Employees other than those which are in
accordance with the terms of such Pension Plans, Welfare Plans or Other Plans in
effect immediately prior to the Closing Date.
(m) With respect to any Welfare Plan which is a
"group health plan," as defined in Code section 4980B, except as disclosed on
Schedule 7.34(m), (i) to Jason's knowledge, Xxxxx has not failed to comply with
the continuation coverage requirements of Code section 4980B for any periods
prior to the Closing Date, and (ii) Xxxxx has no obligation under any Welfare
Plan or otherwise to provide health benefits to former Power Generation
Employees or any other person except as specifically required by Part 6 of Title
I of ERISA.
(n) With respect to Welfare Plans, Pension Plans and
Other Plans, Xxxxx has, except as set forth on Schedule 7.34(n), made available
to Purchaser copies of any currently effective investment management agreements,
fiduciary insurance policies, fidelity bonds, rules, regulations or policies of
the trustees or any committee thereunder, all of which are, to Jason's
knowledge, true, correct and complete.
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(o) No Pension Plan in effect as of the Closing Date is
subject to Title IV of ERISA. Except as specified on Schedule 7.34(o), since
December 31, 1974, with respect to any employee benefit plan subject to Title IV
of ERISA that has been sponsored, maintained, or contributed to by Xxxxx, to
Jason's knowledge, there has been no:
(i) "reportable event" as defined in section 4043 of
ERISA;
(ii) event described in section 4063(a), 4064 or
4068(a) of ERISA;
(iii) termination, partial termination or commencement
of proceedings seeking termination;
(iv) grounds for termination as described in section
4042(a) of ERISA;
(v) request for waiver of minimum funding standards
filed with the Internal Revenue Service; or
(vi) accumulated funding deficiency, as defined in
ERISA section 302 and Code section 412.
To Jason's knowledge, the Closing of the purchase and sale contemplated hereby
will not result in any such events. Xxxxx is not aware of any events that are
threatened or which would result in any of the events described herein.
(p) To Jason's knowledge, except as specified on Schedule
7.34(p), since December 31, 1974, no fiduciary of the Pension Plans or the
Welfare Plans has engaged in any "prohibited transaction" (as defined in ERISA
section 406 or Code section 4975) nor has any fiduciary breached any fiduciary
responsibility, as described in Part 4 of Title I of ERISA, with respect to such
Pension Plans or Welfare Plans.
(q) Except as specified on Schedule 7.34(q), Xxxxx is not
aware of the occurrence of any event with respect to any Welfare Plan or Pension
Plan which could result in a liability of Xxxxx, or any member of Jason's
controlled group to the Pension Benefit Guaranty Corporation ("PBGC"), other
than the timely payment of premiums pursuant to section 4007 of ERISA. All
required PBGC premiums have been paid for the periods through the Closing Date.
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(r) Except as set forth on Schedule 7.34(r) hereto, none of
the Pension Plans, Welfare Plans or Other Plans set forth on Schedules 7.34(a),
(e) or (g) obligates Xxxxx to pay any separation, severance, termination or
similar benefit solely as a result of any transaction contemplated by this
Agreement or solely as a result of a change in control or ownership within the
meaning of Code section 280G.
7.35 Power of Attorney. To Jason's knowledge, except as set forth on
Schedule 7.35, there are no material outstanding powers of attorney executed on
behalf of Deltak, Xxxxxx or any Subsidiary or on behalf of Xxxxx with respect to
the Business.
7.36 Guaranties. Except as set forth on Schedule 7.36, neither
Deltak, Xxxxxx nor any Subsidiary is a guarantor pursuant to any written
guaranties or, to Jason's knowledge, otherwise is responsible for any liability
or obligation (including indebtedness) of any other Person.
7.37 Directors and Officers. Schedule 7.37 hereto list the names and
titles of all directors and officers (or, in the case of Xxxxxx-Europe B.V.,
managing directors and/or supervisory directors) of Xxxxxx, Deltak and each of
the Subsidiaries.
7.38 Business. Neither Deltak, Xxxxxx nor any Subsidiary conduct or
have conducted any business other than the Business.
7.39 Product Warranty. To Jason's knowledge, except as set forth on
Schedule 7.39, all of the products manufactured, sold, leased and delivered by
the Business, Deltak, Xxxxxx and the Subsidiaries have conformed in all material
respects with all applicable contractual commitments and all express and implied
warranties, and, to Jason's knowledge, neither the Business, Deltak, Xxxxxx nor
the Subsidiaries have any material liability for replacement or material repair
thereof or other material damages in connection therewith, subject only to the
reserve for product warranty claims set forth on the face of the Balance Sheets
as adjusted for operations and transactions through the Closing Date in
accordance with the past custom and practice of the Business, Deltak, Xxxxxx and
the Subsidiaries.
7.40 Affiliated Transactions. Except as set forth on Schedule 7.40,
neither Xxxxx, any of Jason's subsidiaries (other than Deltak, Xxxxxx or any of
the Subsidiaries), any Seller, any officer, director, stockholder or member of
Deltak, Xxxxxx or any Subsidiary nor, to Jason's knowledge, (a) any individual
related by blood, marriage or adoption to any such individual, (b) any Affiliate
of Deltak, Xxxxxx or any Subsidiary, or (c) any entity in which any such Person
or individual
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owns any beneficial interest is a party to any agreement, contract, commitment
or transaction with Deltak, Xxxxxx or any Subsidiary or has any material
interest in any material property used by the Business, Deltak, Xxxxxx or any
Subsidiary.
7.41 Disclosure. No representations or warranties by Xxxxx or
any Seller contained in section 7 of this Agreement and no exhibits, documents,
statements, certificates or schedules furnished or to be furnished to the
Purchasers pursuant hereto, or in connection with a transaction contemplated
hereby, contains or will contain any untrue statement of a material fact, or
omits or will omit to state any material fact necessary to make the statements
or facts contained herein or therein not misleading or, to Jason's knowledge and
in Jason's reasonable judgment, necessary to provide Purchasers with adequate
and complete information as to the Business, Deltak, Xxxxxx or any of its
Subsidiaries as required by this Agreement. If any representation or warranty of
Xxxxx or any Seller contained in section 7 of this Agreement or any exhibit,
document, statement, certificate or schedule furnished or to be furnished to the
Purchasers pursuant hereto, or in connection with the transactions contemplated
hereby, is qualified or limited by Jason's knowledge, or in any other manner,
this section 7.41 shall not supersede or limit such qualification in any manner.
8. Representations and Warranties of Purchasers. Each Purchaser
represents and warrants to Xxxxx and Sellers that the following statements are
true and correct:
8.01 Organization. Purchaser LLC is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Delaware. Purchaser LLC has full limited liability company power
and limited liability company authority to carry on its business as now
conducted and to own and lease the properties and assets it now owns and leases.
Purchaser Corporation is a corporation duly organized and validly existing and
in good standing under the laws of the State of Delaware. Purchaser Corporation
has the full corporate power and corporate authority to carry on its business as
now conducted and to own and lease the properties and assets it now owns and
leases.
8.02 Authorization of Agreement. Each Purchaser has the full
corporate or limited liability company power to execute, deliver and perform
this Agreement and all other agreements and instruments to be executed by such
Purchaser in connection herewith (the "Purchaser Transaction Documents"), and
the execution, delivery and performance of this Agreement and the Purchaser
Transaction Documents have been duly authorized by all necessary limited
liability company or corporate action on the part of such Purchaser, including
approval of its Board of Directors. This Agreement and Purchaser Transaction
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Documents have been duly executed and delivered by the applicable Purchaser. The
execution, delivery and performance of this Agreement and the Purchaser
Transaction Documents do not and will not conflict with, or result in a breach
of, or constitute a default under the terms or conditions of either Purchaser's
organizational documents or By-Laws or (a) any court or administrative order or
process to which either Purchaser is a party, (b) any agreement or instrument to
which either Purchaser is a party or by which either Purchaser is bound, or (c)
any statute or regulation of any governmental agency. This Agreement and the
Purchaser Transaction Documents are the legal, valid and binding obligations of
the applicable Purchaser and are enforceable against such Purchaser in
accordance with their respective terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally and
subject to general principles of equity.
8.03 Litigation. There is no action, suit or legal
administrative, arbitration or other proceeding or investigation or claim
pending or, to either Purchaser's knowledge, threatened against either Purchaser
which might adversely affect or restrict either Purchaser's ability to
consummate the transactions contemplated hereby.
8.04 Xxxx-Xxxxx-Xxxxxx Matters. Each Purchaser, taken
together with the "ultimate parent entity" of such Purchaser, if any, and all
entities which such Purchaser and such ultimate parent entity, if any, control
directly or indirectly, is not a person which has total assets or annual net
sales (as such terms are defined under the Xxxx-Xxxxx-Xxxxxx Act of 1976, as
amended) of $10,000,000 or more for purposes of 15 U.S.C. section 18(a) of the
Xxxx-Xxxxx-Xxxxxx Act of 1976, as amended.
8.05 Expenses. All expenses incurred by either Purchaser in
connection with the transactions contemplated hereby (including legal expenses)
have either been paid in full or will be paid in full by such Purchaser. Neither
Purchaser has any liability or obligation to pay any fees or commissions to any
broker, finder or agent with respect to the transactions contemplated by this
Agreement for which Xxxxx or any Affiliate of Xxxxx could become liable or
obligated.
8.06 Disclosure. No representations or warranties by either
Purchaser contained in section 8 of this Agreement and no exhibits, documents,
statements, certificates or schedules furnished or to be furnished by either
Purchaser pursuant hereto, or in connection with a transaction contemplated
hereby, contains or will contain any untrue statement of a material fact, or
omits or
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will omit to state any material fact necessary to make the statements
or facts contained herein or therein not misleading or, to Purchasers' knowledge
and in Purchasers' reasonable judgment, necessary to provide Xxxxx with adequate
and complete information as to Purchasers as required by this Agreement. If any
representation or warranty of any Purchaser contained in section 8 of this
Agreement or any exhibit, document, statement, certificate or schedule furnished
or to be furnished to Xxxxx or any Seller pursuant hereto, or in connection with
the transactions contemplated hereby, is qualified or limited by a Purchaser's
knowledge, or in any other manner, this section 8.06 shall not supersede or
limit such qualification in any manner.
9. Mutual Covenants.
9.01 Access to Books and Records. The parties agree that, for
purposes of this section, the "Access Period" is defined as the longer of (a) a
period of five years following the Closing Date or (b) the period of time
beginning on the Closing Date and ending on the date on which taxes may no
longer be assessed under the applicable statutes of limitation, including any
period of waivers or extensions thereof. Purchasers hereby covenant and agree to
cause to be maintained in a reasonably accessible place, during the Access
Period, the books and records existing as of the date hereof and relating to the
Business and to provide copies of such books and records to Xxxxx or its
representative upon request, at Jason's expense. Purchasers agree to notify
Xxxxx xxxxx to disposing of any such books and records and, upon request made
within 60 days after receipt of such notice, to deliver such books and records
to Xxxxx at Jason's expense. With respect to any books and records of the
Business retained by Xxxxx, Xxxxx hereby covenants and agrees to give Purchasers
the same access for the same time period and agrees to give Purchasers the same
notice and right in the event of any proposed disposition of such books and
records.
9.02 Reporting Assistance. Purchasers agree to cooperate and
timely assist Xxxxx in preparing information for various authorities after the
Closing Date on the condition that such information relates to the transactions
contemplated by this Agreement. This information includes, but is not limited
to, accounting and tax workbooks, responses to audit requests, other filings
with tax authorities, e.g., payroll, property, sales and use taxes and other
information necessary to comply with federal, state and local laws. Xxxxx agrees
to provide the same reporting assistance to Purchasers on the same terms and
under the same conditions.
9.03 Employees. Purchasers shall cause to be offered
continuing employment to all of the Power Generation Employees (including the
employees
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of Xxxxxx-Europe B.V.) as of the Closing Date. Purchasers agree that Deltak,
Xxxxxx and the Subsidiaries shall be responsible after Closing for any and all
liabilities and obligations related to, or arising from, the Power Generation
Employees' employment, or termination from employment, including, without
limitation, claims for continuation coverage pursuant to section 4980B of the
Code, severance pay, expense reimbursement and any other benefit provided to the
Power Generation Employees; provided, however, that Xxxxx shall be responsible
for all claims made by Power Generation Employees prior to the Closing Date
which are covered under Jason's insurance policies in effect prior to the
Closing Date. The Power Generation Employees shall receive credit following
Closing for services rendered while employed by Xxxxx xxxxx to Closing for all
purposes, including, without limitation, participation in employee benefit
programs of Purchasers or any other term or condition of employment which varies
with seniority. This section 9.03 is not intended to restrict the right of
Purchasers, Deltak, Xxxxxx or any of the Subsidiaries to terminate the
employment of any person for any reason including without cause.
9.04 Tax Matters. The following provisions shall govern the
allocation of responsibility as between Purchasers and Xxxxx for certain tax
matters following the Closing Date:
(a) Consolidated Returns for Period Through the
Closing Date. Xxxxx will include the income of Deltak Construction Services,
Inc. and Xxxxxx Construction Services, Inc. (collectively, the "US
Subsidiaries") on Jason's consolidated federal Income Tax Return for all periods
through the Closing Date and pay any federal Income Taxes attributable to such
income. The US Subsidiaries will furnish tax information to Xxxxx for inclusion
in Jason's federal consolidated Income Tax Return for the period which includes
the Closing Date in accordance with the past custom and performance of the US
Subsidiaries. The income of the US Subsidiaries will be apportioned to the
period up to and including the Closing Date and the period after the Closing
Date by closing the books of the US Subsidiaries as of the end of the Closing
Date. Similarly, because they are not recognized as separate entities for tax
purposes, Xxxxx and the Sellers, as the case may be, will include the income of
Xxxxxx and Deltak on their respective Income Tax Returns for all periods through
the Closing Date and pay any Income Taxes attributable to such income. Xxxxx xxx
elect to retain the net operating loss carryovers and capital loss carryovers of
the US Subsidiaries under Regulation section 1.1502-20(g). At Jason's request,
the Purchasers shall cause the US Subsidiaries to join with Xxxxx in filing any
necessary elections under Regulation section 1.1502-20(g).
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(b) Tax Periods Beginning Before and Ending After
the Closing Date. Except as otherwise provided in section 9.04(a), Purchasers
shall, at their expense, timely prepare or cause to be prepared and file or
cause to be filed any Other Returns of the Business, Deltak, Xxxxxx and the
Subsidiaries for Tax periods which begin before the Closing Date and end after
the Closing Date. Prior to filing such Other Returns, Purchasers will provide
Xxxxx with a copy of each and, within 15 days thereafter, Xxxxx shall pay to the
applicable Purchaser an amount equal to the portion of such Taxes which relates
to the portion of the Tax period ending on the Closing Date to the extent such
Taxes are not reflected in the reserve for Tax liabilities (rather than any
reserve for deferred taxes established to reflect timing differences between
book and tax income) shown on the face of the Closing Date Statements of Net
Operating Assets. Purchasers will immediately account for and pay to Xxxxx any
Tax refund or reduction in Tax liability resulting from a use of any pre-Closing
Date Tax attribute of any Subsidiary in a post-Closing Tax period to the extent
a benefit was not recorded on the applicable Closing Date Statement of Net
Operating Assets when such refund or reduction is realized by such Subsidiary or
the Purchasers, as the case may be. For purposes of this section 9.04(b), in the
case of any Taxes that are imposed on a periodic basis and are payable for a Tax
period that includes (but does not end on) the Closing Date, the portion of such
Tax which relates to the portion of such Tax period ending on the Closing Date
shall (i) in the case of any Taxes (other than taxes based upon or related to
income or receipts), be deemed to be the amount of such Tax for the entire Tax
period multiplied by a fraction the numerator of which is the number of days in
the Tax period ending on the Closing Date and the denominator of which is the
number of days in the entire Tax period, and (ii) in the case of any Tax based
upon or related to income or receipts be deemed equal to the amount which would
be payable if the relevant Tax period ended on the Closing Date. Any credits
relating to a Tax period that begins before and ends after the Closing Date
shall be taken into account as though the relevant Tax period ended on the
Closing Date. All determinations necessary to give effect to the foregoing
allocations shall be made in a manner consistent with prior practice of Xxxxx
and the Subsidiaries. In the event Purchasers elect to have Xxxxxx-Europe B.V.
treated as a pass-through entity for U.S. Tax purposes, the gain or loss caused
by such election shall be allocated in full to the Purchasers and will not be
subject to any allocation or proration of the Taxes from Xxxxx or any Seller.
(c) Cooperation on Tax Matters.
(i) Purchasers and Xxxxx agree, upon
request, to use their best efforts to obtain any certificate or other document
from any governmental authority or any other Person as may be necessary to
mitigate,
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reduce or eliminate any Tax that could be imposed (including, but not limited
to, with respect to the transactions contemplated hereby).
(ii) Purchasers and Xxxxx further agree, upon
request, to provide the other party with all information that either party may
be required to report pursuant to section 6043 of the Code and all Treasury
Department Regulations promulgated thereunder.
(iii) Xxxxx will allow Purchaser LLC and its
counsel, at Purchaser LLC's expense, to participate in any audits of Jason's
consolidated federal Income Tax Returns, but only to the extent that such [a]
returns relate to the Business, Deltak, Xxxxxx or the Subsidiaries, and [b] the
issues raised on audit affect the tax treatment of items for the Business,
Deltak, Xxxxxx or the Subsidiaries by Purchasers after the Closing Date.
Purchasers will allow Xxxxx and its counsel, at Jason's expense, to participate
in any audits of the Other Returns described in section 9.04(b) to the extent
the issues raised on audit could affect the tax treatment of items for the
Business, Deltak, Xxxxxx or the Subsidiaries relating to periods prior to the
Closing Date.
(d) Tax Sharing Agreements. All tax sharing
agreements or similar agreements with respect to or involving the Business,
Deltak, Xxxxxx or the Subsidiaries shall be terminated as of the Closing Date
and, after the Closing Date, the Business and Purchasers shall not be bound
thereby or have any liability thereunder.
(e) Taxes of Other Persons. Xxxxx agrees to
indemnify Purchasers from and against any adverse consequences Purchasers or the
Subsidiaries may suffer resulting from, arising out of, relating to, or caused
by any tax liability of any of the Subsidiaries for Taxes of any person, other
than the Subsidiaries (i) under Treasury Regulation section 1.1502-6 (or any
similar provision of state, local or foreign law), (ii) as a transferee or
successor, or (iii) by contract arising prior to the Closing Date.
(f) Amended Returns. Xxxxx and Sellers shall not
file or cause to be filed any amended Income Tax Return with respect to Xxxxxx,
Deltak or the Subsidiaries without the prior written consent of the Purchasers,
which consent shall not be unreasonably withheld.
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10. Covenants and Agreements of Purchasers and Xxxxx.
10.01 Covenants and Agreements of Xxxxx and Purchasers Relating
to Spinoff of 401(k) Plan Assets. Xxxxx and Purchasers hereby covenant and agree
that:
(a) To accomplish the purposes described below,
Purchaser LLC shall sponsor or establish as of the Closing Date one or more
tax-qualified cash or deferred arrangements pursuant to Code section 401(k) (the
"Purchaser's Plan") which shall, after the Closing Date, receive a spinoff from
the Xxxxx Employee Savings & Profit Sharing Plan (the "Xxxxx Savings Plan") of
all account balances, assets and liabilities under the Xxxxx Savings Plan
related to all current or former Power Generation Employees (the "Covered
Participants"). Purchaser's Plan may, at Purchaser LLC's option, be merged with
another plan sponsored by Purchaser LLC.
(b) As soon as practicable after the Closing Date,
and upon satisfaction of the requirements set forth in subsection (c) below,
Purchaser's Plan shall receive the spinoff from the Xxxxx Savings Plan of the
account balances (including all assets and liabilities) of all Covered
Participants (the "Spinoff Amount"). Such Spinoff Amount shall be in cash or in
kind, including Xxxxx Incorporated stock.
(c) Prior to the date of the spinoff described in
subsections (a) and (b) above, Purchaser LLC shall (i) present Xxxxx with
documentation and information necessary for the Xxxxx Savings Plan to spinoff
the account balances, assets and liabilities of the Covered Participants to the
Purchaser's Plan; (ii) represent and warrant to Xxxxx that Purchaser's Plan is
in full force and effect, complies substantially with the terms set forth in
this section and satisfies requirements for qualification pursuant to sections
401(a) and 401(k) of the Code; and (iii) represent and warrant to Xxxxx that
Purchaser LLC shall file any and all required forms with the Internal Revenue
Service or other agencies and satisfy any and all Code requirements in
connection with such spinoff.
(d) Prior to the date of the spinoff described in
subsections (a) and (b) above, Xxxxx shall (i) present Purchaser LLC with
documentation and information necessary for the Purchaser's Plan to receive the
spinoff from the Xxxxx Savings Plan; (ii) represent and warrant to Purchaser LLC
that the Xxxxx Savings Plan is in full force and effect, complies substantially
with the terms set forth in this section and satisfies requirements for
qualification pursuant to sections 401(a) and 401(k) of the Code; and (iii)
represent and warrant to Purchaser LLC that Xxxxx shall file any and all
required forms with the Internal
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Revenue Service or other agencies and satisfy any and all Code requirements in
connection with such spinoff and merger.
(e) Purchaser LLC shall contribute timely to the
Purchaser's Plan such amounts, if any, as (i) are required by any Collective
Bargaining Agreement or promised by Xxxxx to nonunion Power Generation Employees
and (ii) reflected on the Closing Date Statements of Net Operating Assets.
Covered Participants shall, for all purposes under Purchaser's Plan, be deemed
to be immediately eligible for Purchaser's Plan and shall receive credit under
Purchaser's Plan for purposes of benefit accrual, participation and vesting, for
all service with Xxxxx or predecessor employers as identified in the Xxxxx
Savings Plan.
(f) The Closing Date Statements of Net Operating
Assets shall include an accrued liability for an amount equal to the amount
which Xxxxx would be required to contribute for the period of January 1, 1998
through the Closing Date, as employer profit sharing, base or matching
contributions to the Xxxxx Savings Plan on behalf of Covered Participants as of
the Closing Date, assuming that any hours of service or year-end employment
requirements (as defined in the Xxxxx Savings Plan) apply to such determination
as of the Closing Date with respect to year-end employment (as if the Closing
Date is the last day of the Plan Year) and pro rata as of the Closing Date with
respect to hours of service (as if the Closing Date is the last day of the Plan
Year). Notwithstanding anything in this section, Purchaser LLC will reimburse
JN, DN and/or BN for the Reimbursed Liability Amount as provided in sections
3.01, 3.02 and 3.03.
(g) During the period from and after the Closing
Date and prior to the date of the spinoff, the Xxxxx Savings Plan may distribute
to the Covered Participants or their beneficiaries any benefits to which such
person may then be entitled under the Xxxxx Savings Plan and which were accrued
under the Xxxxx Savings Plan as of the Closing Date including any earnings
thereon. In the event that any such payments are made, the Spinoff Amount shall
be reduced by the amount of such distributions.
(h) The cost and expenses of any service providers
incurred in connection with the spinoff from the Xxxxx Savings Plan described in
this section shall be paid by the party engaging such service provider.
10.02 Assumption of Deltak Profit Sharing Plan. Xxxxx and
Purchasers hereby covenant and agree that:
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(a) As of the Closing Date, Deltak shall assume
sponsorship of the Deltak Profit Sharing Plan (the "Deltak Plan"). Deltak shall
operate the Plan in accordance with its terms, but subject to all the powers
reserved to the sponsor of the Deltak Plan. Deltak's assumption of the Deltak
Plan shall not be deemed to terminate the Plan nor to cause a complete
discontinuance of contributions under the Deltak Plan.
(b) Deltak shall prepare, file and/or distribute any
annual reports due participants or any government agency for the Deltak Plan for
the 1998 Plan Year, including the period from January 1, 1998 through the
Closing Date. Xxxxx will cooperate with Deltak in preparing any filings or
reports required to be made by Deltak.
(c) Deltak shall contribute to the Deltak Plan in a
timely manner such amounts as are promised by Xxxxx in accordance with its past
practice to Power Generation Employees who are participants in the Deltak Plan.
(d) The Closing Date Statements of Net Operating
Assets shall include an accrued liability for an amount equal to the amount
Xxxxx would be required to contribute for the period of January 1, 1998 through
the Closing Date, as employer profit sharing or base contributions to the Deltak
Plan on behalf of Deltak Plan participants as of the Closing Date, assuming that
no hours of service or year-end employment requirements (as defined in the
Deltak Plan) apply to such determination as of the Closing Date with respect to
year end employment (as if the Closing Date is the last day of the Plan Year)
and pro rata as of the Closing Date with respect to hours of service (as if the
Closing Date is the last day of the Plan Year).
10.03 Use of Name. After Closing, neither Purchaser nor any of
their Affiliates shall use the names "Xxxxx," "Xxxxx Xxxxx Systems" or any
confusingly similar name in connection with the operation of the Business or
otherwise; provided, however, that Purchasers, Deltak, Xxxxxx and each
Subsidiary shall have the right to use any work-in-process, preprinted
stationery, invoices, receipts, forms, advertising and promotional materials,
packaging materials and other supplies which any of Deltak, Xxxxxx or any
Subsidiary has in inventory as of the Closing and which bear the "Xxxxx" or
"Xxxxx Xxxxx Systems" name (the "Xxxxx Inventory") in the manner used by Deltak,
Xxxxxx or such Subsidiary prior to Closing until such time as the Xxxxx
Inventory is exhausted in the ordinary course of business, but in no event past
September 30, 1998.
10.04 Employee Benefit Plan Information. Purchaser LLC shall
provide Xxxxx all employee census information and contribution and allocation
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information with respect to the Deltak Profit Sharing Plan and with respect to
participation in the Xxxxx Employee Savings & Profit Sharing Plan for the
periods of January 1, 1997 through December 31, 1997 and January 1, 1998 to the
Closing Date as Xxxxx shall reasonably require to determine whether the Xxxxx
Savings & Profit Sharing Plan satisfies the requirements of Code sections
401(k), 401(m), 404(a)(4), 410(b) and 415. Xxxxx shall provide Purchaser LLC all
information necessary (a) to file the Deltak Profit Sharing Plan and (b) to file
the spin-off plan from the Xxxxx Savings & Profit Sharing Plan for purposes of
obtaining a letter of determination from the Internal Revenue Service with
respect to amendments adopted before the Closing Date.
10.05 Multiple Employer Welfare Arrangement. Purchaser LLC shall
not adopt or participate in any self-funded welfare plan sponsored by Xxxxx
which would create a multiple employer welfare arrangement subject to ERISA
section 514(b)(6).
11. Covenants and Agreements of Xxxxx and Sellers. Xxxxx and Sellers
hereby covenant and agree that:
11.01 Litigation Assistance. Except for litigation between Xxxxx
or any of its Affiliates and either Purchaser or any of their Affiliates, Xxxxx
will fully cooperate and assist Purchasers in defending any claim or lawsuit
relating to the Business. Upon written request, except to the extent otherwise
provided in section 12 hereof, Purchasers shall reimburse Xxxxx for all
reasonable out-of-pocket expenses actually incurred by Xxxxx (including
reasonable attorneys' fees and other professional fees and traveling expenses)
in connection with providing the cooperation and assistance required hereunder.
11.02 Letters of Credit. Xxxxx and Sellers will cooperate with
Purchasers in revising the letters of credit described on Schedule 6.02(b) to
reflect requests by customers of the Business. Xxxxx and Sellers shall not,
however, be obligated to revise any such letters of credit until Purchaser LLC
has effected a corresponding revision to its letter of credit required by
section 6.02(b) hereunder.
11.03 Confidentiality. From and after the Closing, Xxxxx and
Sellers shall, and shall use their reasonable best efforts to cause their
Affiliates and representatives to, keep confidential and not disclose to any
other Person or use for their own benefit or the benefit of any other Person any
trade secrets or other confidential proprietary information in their possession
or control regarding the Business. The obligations of Xxxxx and Sellers under
this section 11.03 shall not apply to information which (a) is or becomes
generally available to the public without breach of the commitment provided for
in this section 11.03; or (b) is
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required to be disclosed by law, order or regulation of a court or tribunal or
governmental authority; provided, however, that, in any such case, the Person
subject to such requirement shall notify Purchaser LLC as early as reasonably
practicable prior to disclosure to allow Purchaser LLC to take appropriate
measures to preserve the confidentiality of such information.
12. Indemnification by Xxxxx.
12.01 Indemnification. Notwithstanding the Closing, as the
Purchasers' sole and exclusive remedy for breach of this Agreement (other than
the remedy of specific performance in the event of a breach of section 11.03 or
section 15.10) Xxxxx agrees to indemnify, defend and hold each Purchaser,
Deltak, Xxxxxx and each of the Subsidiaries and their directors, officers,
employees, agents, members and shareholders ("Purchasers' Indemnified Persons")
harmless from and against any damage, liability, loss, cost, claim, obligation
or deficiency (including, but not limited to, reasonable attorneys' fees and
other costs and expenses incident to proceedings or investigations, or the
defense or settlement of any claim but not including punitive or consequential
damages) ("Purchaser's Damages") arising out of, resulting from or relating to:
(a) any inaccuracy in or breach of the
representations and warranties of Xxxxx or any Seller set forth in section 7 or
in any schedule hereto or in any agreement, certificate or document furnished or
to be furnished to Purchasers by Xxxxx or Sellers pursuant hereto in connection
with the transactions contemplated hereby;
(b) any failure of Xxxxx or Sellers to duly perform
or observe any term, provision, covenant or agreement to be performed or
observed by Xxxxx or Sellers pursuant to this Agreement or any agreement
described herein;
(c) any brokerage fees and expenses of Xxxxx
referred to in section 15.09; and
(d) any claim with respect to the Excluded
Liabilities (as defined in the Contribution Agreements).
In addition, Xxxxx agrees to indemnify, defend and hold
Purchasers' Indemnified Persons harmless from and against any Recipient Damages
(as defined in the Contribution Agreements) exceeding the $5,000,000 cap
provided in section 7.03 of the relevant Contribution Agreement (the
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"Recipient Damages Cap") in the manner, to the extent and subject to any
limitations contained in the relevant Contribution Agreement, and further
subject to any limitations contained in section 12.03 of this Agreement.
Except as set forth below, the representations and
warranties of Xxxxx and the Sellers contained herein shall survive Closing until
March 31, 1999. The representations and warranties of Xxxxx and the Sellers set
forth in sections 7.01, 7.02, 7.03 and 7.04 shall survive Closing indefinitely;
and the representations and warranties of Xxxxx and the Sellers set forth in
section 7.21 shall survive Closing for a period of three and one-half years; and
each representation and warranty of Xxxxx and the Sellers set forth in section
7.24 shall survive Closing until six months after the expiration of the
applicable statute of limitations. Jason's obligation to indemnify with respect
to a claim for a breach of a representation or warranty set forth in section 7
shall extend beyond the applicable survival period if a Purchaser (or Deltak,
Xxxxxx or a Subsidiary) asserts such claim by notice in writing to Xxxxx within
such survival period. Notwithstanding anything to the contrary in this section
12, no limitation or condition of liability provided in this section 12 shall
apply to the breach of any representations or warranties if such breach was
willful or made with the intent to deceive.
12.02 Procedure. A Purchaser (or Deltak, Xxxxxx or a Subsidiary)
shall give Xxxxx prompt notice in writing of any written claim, demand,
assessment, action, suit or proceeding to which the indemnity set forth in this
section applies, which notice shall provide in reasonable detail such
information as such Purchaser (or Deltak, Xxxxxx or a Subsidiary) may have with
respect to such claim or demand (including, without limitation, copies of any
summons, complaints or other pleadings which may have been served on such
Purchaser (or Deltak, Xxxxxx or a Subsidiary) or its agents and any written
claim, demand, invoice, billing or other document evidencing the same) ("Notice
of Claim"). If such claim or demand is evidenced by a court pleading, such
Purchaser shall give Notice of Claim within five days of receipt of such
pleading. If such claim or demand is evidenced by some other writing or notice
from a third party, such Purchaser (or Deltak, Xxxxxx or a Subsidiary) shall
give Notice of Claim within ten days of the date it receives a notice of such
claim.
Failure to give timely notice of a matter which may give
rise to an indemnification claim shall not affect the rights of such Purchaser
(or Deltak, Xxxxxx or a Subsidiary) to collect such claims from Xxxxx except to
the extent such failure to so notify materially adversely affects Jason's
ability to defend such claim against a third party.
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If a Purchaser's (or Deltak's, Xxxxxx'x or a
Subsidiary's) request for indemnification arises from the claim of a third
party, the written notice shall permit Xxxxx to assume control of the defense of
such claim or any litigation resulting from such claim. Failure by Xxxxx to so
notify the Purchaser (or Deltak, Xxxxxx or a Subsidiary) of its election to
defend a complaint by a third party within ten days shall be a waiver by Xxxxx
of its right to respond to such complaint and within 20 days after notice
thereof shall be a waiver by Xxxxx of its right to assume control of the defense
of such claim or litigation. If Xxxxx assumes control of the defense of such
claim or litigation resulting therefrom, Xxxxx shall take all reasonable steps
necessary in the defense or settlement of such claim or litigation resulting
therefrom, and Xxxxx shall hold the Purchaser (and Deltak, Xxxxxx and the
Subsidiaries) harmless from and against all damages arising out of or resulting
from any settlement approved by Xxxxx or any judgment in connection with such
claim or litigation. Notwithstanding Jason's assumption of the defense of such
third-party claim or demand, the Purchaser (or Deltak, Xxxxxx or a Subsidiary)
shall have the right to participate in the defense of such third-party claim or
demand at its own expense. Xxxxx shall not, in the defense of such claim or
litigation, consent to entry of any judgment or enter into any settlement,
except in either case with the written consent of the Purchaser (or Deltak,
Xxxxxx or a Subsidiary), which consent shall not be unreasonably withheld. The
Purchaser (or Deltak, Xxxxxx or a Subsidiary) shall xxxxxxx Xxxxx in reasonable
detail all information the Purchaser (or Deltak, Xxxxxx or a Subsidiary) may
have with respect to any such third-party claim and shall make available to
Xxxxx and its representatives all records and other similar materials which are
reasonably required in the defense of such third-party claim and shall otherwise
cooperate with and assist Xxxxx in the defense of such third-party claim. If
Xxxxx does not assume control of the defense of any such third-party claim or
litigation resulting therefrom, the Purchaser (or Deltak, Xxxxxx or a
Subsidiary) may defend against such claim or litigation in such manner as it may
reasonably deem appropriate, and Xxxxx shall indemnify the Purchaser (and
Deltak, Xxxxxx and the Subsidiaries) from any damages and costs indemnifiable
under this section incurred in connection therewith.
12.03 Limitations. No indemnification pursuant to section
12.01(a) of this Agreement, nor any indemnification of Recipient Damages
described in section 12.01 of this Agreement, shall be payable by Xxxxx to
Purchasers (or Deltak, Xxxxxx or a Subsidiary) unless and until the sum of
Purchaser's Damages pursuant to section 12.01(a) of this Agreement and Recipient
Damages in excess of the Recipient Damages Cap, net of any related insurance
proceeds received by either Purchaser (or Deltak, Xxxxxx or a Subsidiary),
exceed 1% of the sum of the Deltak Purchase Price, the Xxxxxx Purchase Price,
and the Subsidiaries Purchase Price (the "Aggregate Price") (the "Basket"). At
such time that the aggregate
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amount of Purchaser's Damages pursuant to section 12.01(a) of this Agreement and
Recipient Damages in excess of the Recipient Damages Cap exceeds the Basket,
Xxxxx shall be liable to the relevant Purchaser (or Deltak, Xxxxxx or a
Subsidiary) only for such of Purchaser's Damages and/or Recipient Damages in
excess of the Recipient Damages Cap, net of any related insurance proceeds
received by either Purchaser (or Deltak, Xxxxxx or a Subsidiary), which exceed
the Basket. In no event shall Xxxxx be required to indemnify either Purchaser
(or Deltak, Xxxxxx or a Subsidiary) for Purchaser's Damages pursuant to section
12.01(a) of this Agreement or Recipient Damages in excess of the Recipient
Damages Cap in excess of the amount equal to 10% of the Aggregate Price.
Notwithstanding the foregoing, the limitations set forth in this section 12.03
shall not apply to claims based upon a breach of sections 7.01, 7.02, 7.03 or
7.04 hereof or upon any breach of the representations or warranties contained in
section 7.24 which relate to Income Taxes. Notwithstanding the foregoing, the
limitations set forth in this section 12.03 shall not apply to any willful
breach of any representation or warranty.
13. Indemnification by Purchasers.
13.01 Indemnification. Notwithstanding the Closing, each
Purchaser (including Deltak, Xxxxxx and the Subsidiaries) agrees to indemnify,
defend and hold Xxxxx and Sellers, their directors, officers, employees, agents,
members and shareholders harmless from and against any damage, liability, loss,
cost, claim, obligation or deficiency (including, but not limited to, reasonable
attorneys' fees and other costs and expenses incident to proceedings or
investigations or the defense or settlement of any claim but not including
punitive or consequential damages) ("Seller's Damages") arising out of,
resulting from or relating to:
(a) any inaccuracy in or breach of the
representations or warranties of either Purchaser set forth in section 8 hereof
or in any schedule hereto or in any agreement, certificate or document furnished
or to be furnished to Xxxxx or Sellers by either Purchaser pursuant hereto in
connection with the transactions contemplated hereby; or
(b) any failure to duly perform or observe any term,
provision or covenant to be performed or observed by either Purchaser pursuant
to this Agreement or any agreement described herein; or
(c) any claim with respect to the Assumed Liabilities
(as defined in the Contribution Agreements) (other than any such claims by
either
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Purchaser, Xxxxxx and/or Deltak, as applicable, and/or any of their respective
Affiliates arising out of this Agreement or the Contribution Agreements); and
(d) the dispute with the former owners of
Xxxxxx-Europe B.V. described on Schedule 7.33.
The representations and warranties of Purchasers set
forth in sections 8.03, 8.05 and 8.06 shall survive Closing until March 31,
1999. The representations and warranties of Purchasers set forth in sections
8.01, 8.02 and 8.04 shall survive Closing indefinitely. The Purchasers'
obligation to indemnify with respect to a claim for a breach of a representation
or warranty set forth in section 8 shall extend beyond the applicable survival
period if Xxxxx or Sellers assert such claim by notice in writing to Purchaser
LLC within such survival period. Notwithstanding anything to the contrary in
this section 13, no limitation or condition of liability provided in this
section 13 shall apply to the breach of any representations or warranties if
such breach was willful or made with the intent to deceive.
13.02 Procedure. The procedural rules set forth in section 12.02
shall apply with respect to indemnification by Purchasers; provided, however,
that the parties' obligations under section 12.02 shall be reversed, as
appropriate.
14. Nature of Representations. All statements contained in any
certificate, exhibit, schedule, list or other instrument delivered by or on
behalf of Xxxxx, Sellers or Purchasers pursuant hereto shall be deemed
representations and warranties by Xxxxx or Purchasers hereunder.
15. Miscellaneous.
15.01 Further Assurances. Upon reasonable request, from time to
time, each party agrees that it shall (or direct its employees to, if
applicable) execute and deliver all documents, make all rightful oaths, testify
in any proceedings and do all other acts which may be necessary or desirable in
the reasonable opinion of the other party to protect or record the right or
title of Purchasers to the membership interests and capital stock purchased
hereunder to protect or record the right or title of Xxxxxx, Deltak (or a
Purchaser, as the case may be) to the JPG Assets, or to aid in the prosecution
or defense of any rights arising therefrom, all without further consideration,
except as otherwise provided in sections 12 or 13. Notwithstanding the
foregoing, except as specifically set forth herein and except as agreed to in
writing between Xxxxx and Purchaser LLC, after the date hereof, neither Xxxxx
nor any Seller shall be obligated to take any
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action to obtain consents to assignment, subcontracting, or change of control in
connection with any contracts or leases of the Business.
15.02 General. This Agreement may be amended only by an
agreement in writing by the parties hereto. This Agreement shall be governed by
and subject to the laws of the State of Wisconsin without giving effect to
choice of law principles thereunder. The failure of any party to insist, in any
one or more instances, upon performance of any of the terms and conditions of
this Agreement shall not be construed as a waiver or relinquishment of any
rights granted hereunder or of the future performance of any such term, covenant
or condition. In the event of any controversy concerning the rights or
obligations under this Agreement, such rights or obligations shall be
enforceable in a court of equity by a decree of specific performance. Such
remedy shall, however, be cumulative and nonexclusive and shall be in addition
to any other remedy which the parties may have. If any provision, clause or part
of this Agreement, or the application thereof under certain circumstances, is
held invalid, the remainder of this Agreement, or the application of each
provision, clause or part under other circumstances, shall not be affected
thereby.
15.03 Notices. Any notice to be given hereunder shall be given
and deemed sufficient if in writing and delivered or two business days after
being mailed by registered or certified mail, in the case of Xxxxx or Sellers,
to:
Xxxxx Incorporated
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attn: Xxxx Train, President
with a copy to:
Reinhart, Boerner, Van Deuren, Xxxxxx & Rieselbach, s.c.
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
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and, in the case of Purchasers, to:
Saw Mill Capital LLC
00 Xxx Xxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxxx Xxxxx, Esq.
15.04 Benefit. This Agreement shall be binding upon and inure
to the benefit of and shall be enforceable by Purchasers, Xxxxx, Sellers and
their respective successors and assigns. This Agreement may not be assigned
without the written consent of the other party(ies), except that a Purchaser may
assign its rights and obligations hereunder in whole or in part to any Affiliate
of such Purchaser or as collateral security to any Person providing financing to
such Purchaser.
15.05 Expenses.
(a) Subject to section 15.05(b) and except to the
extent otherwise provided hereunder, all expenses incurred by Xxxxx or
Purchasers in connection with the transactions contemplated hereby, including,
without limitation, legal, accounting and brokerage fees shall be the
responsibility of and for the account of the party which ordered the particular
service or incurred the particular expense.
(b) The cost of the letters of credit described in
section 6.02(b) and the Seller Letters of Credit shall be paid by Purchaser LLC,
provided that Xxxxx shall use reasonable efforts to minimize any such costs.
Xxxxx shall keep all Seller Letters of Credit outstanding until, at any time
after Closing, otherwise requested in writing by Purchaser LLC, at which time
Xxxxx shall immediately cancel any of the Seller Letters of Credit; provided,
however, that Purchaser LLC shall have procured a release from liability in
relation to the Seller Letters of Credit(s) for Xxxxx and/or its relevant
affiliate.
15.06 Entire Agreement. This Agreement and the schedules and
other documents to be delivered pursuant hereto constitute the entire agreement
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among the parties hereto and there are no agreements, representations or
warranties which are not set forth herein. All prior negotiations, agreements
and understandings are superseded hereby.
15.07 Public Announcement. Except as required by law, no public
announcement of the transactions contemplated hereby shall be made after the
date hereof by way of press release, disclosure to the trade or otherwise except
with the mutual approval of Purchaser LLC and Xxxxx.
15.08 Arbitration. Except as provided in sections 3.03(a) and
15.10(e), all claims, disputes and other matters in question between the parties
to this Agreement, arising out of or in any way relating to this Agreement or
the breach thereof, shall be decided by arbitration in Chicago, Illinois, in
accordance with the rules of the American Arbitration Association ("AAA") then
in effect unless the parties mutually agree otherwise. This agreement to
arbitrate shall be specifically enforceable under the prevailing arbitration
law. Notice of the demand for arbitration shall be filed in writing with the
other party(ies) to this Agreement and with the AAA in Chicago, Illinois. The
demand shall be made within a reasonable time after the claim, dispute or other
matter in question has arisen. In no event shall the demand for arbitration be
made after the date when institution of legal or equitable proceedings based on
such claim, dispute, or other matter in question would be barred by this
Agreement or the applicable statute of limitations.
Upon filing of a notice for demand for arbitration by
any party hereto, arbitration shall be commenced and conducted as follows:
(a) Arbitrators. All claims, disputes, controversies
and other matters (collectively "Matters") shall be referred to and decided and
settled by one arbitrator mutually agreeable to the parties. If the parties are
unable to agree on an arbitrator, the Matter shall be referred to and decided
and settled by a panel of three independent arbitrators, one selected by Xxxxx,
one selected by the Purchaser LLC and the third selected by the two arbitrators
so selected. In the event the two arbitrators are unable to agree on the third
arbitrator, the third arbitrator shall be selected in accordance with the then
current rules of the AAA. The selection of arbitrators shall be made within
thirty (30) days after the date of the notice of demand for arbitration given
pursuant hereto.
(b) Cost of Arbitration. Each party shall bear its
own costs incurred in connection with the arbitration proceeding. The parties
shall each be responsible for one-half (1/2) of the fees of the arbitrator(s)
and his or their related expenses.
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(c) Location of Proceedings. All arbitration
proceedings shall be held in Chicago, Illinois unless the parties agree
otherwise.
(d) Pre-Hearing Discovery. The parties shall have
the right to conduct and enforce pre-hearing discovery in accordance with the
then current Federal Rules of Civil Procedure. Document discovery and other
discovery shall be under the control of and be enforceable by the arbitrator and
the arbitrator shall permit and facilitate such discovery as he shall determine
is appropriate under the circumstances, taking into account the needs of the
parties and the desirability of making discovery expeditious and cost effective.
(e) Hearings. The hearing shall be conducted to
preserve its privacy and to allow reasonable procedural due process.
(f) Governing Law. The laws of the State of
Wisconsin shall be applied, without reference to the choice of law principles
thereof, in resolving matters submitted to such arbitration.
(g) Consolidation. No arbitration shall include, by
consolidation, joinder or in any other manner, any additional person not a party
to this Agreement (other than affiliates of any such party, which affiliates may
be included in the arbitration) except by written consent of the parties hereto
containing a specific reference to this Agreement.
(h) Award. The arbitrators are empowered to render
an award of general compensatory damages and equitable relief (including,
without limitation, injunctive relief). Any award issued by the arbitrator shall
be final and may be enforced in any court of competent jurisdiction.
(i) Confidentiality. The parties hereto will
maintain the substance of any proceedings hereunder in confidence and make
disclosures to others only to the extent necessary to properly conduct the
proceedings.
15.09 Brokers. Purchasers and Xxxxx represent and warrant to
each other that, except for the fees of Xxxxxx Gull Xxxxxxx & XxXxxxxx Inc., for
which Xxxxx shall be responsible, there are no brokerage or finder's fees in
connection with the transactions contemplated hereby resulting from any actions
taken by them and they hereby indemnify, save and hold each other harmless from
and against any claims by any broker or finder for a fee or expense which is
based in any way on an agreement, arrangement or understanding made or alleged
to have been made by them relating to the transactions contemplated hereby.
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15.10 Covenant Not to Compete.
(a) Within the United States and in each other
jurisdiction in which the Business currently conducts business, Xxxxx and
Sellers shall not, directly or indirectly, during the five-year period beginning
on the Closing Date and ending on the anniversary thereof in calendar year 2003
(the "Restricted Period"), engage in the manufacture or sale of any products
that are the same or of a type substantially similar to products currently
manufactured by the Business.
(b) During the Restricted Period, Xxxxx and Sellers
shall not, directly or indirectly, encourage to leave the employment of either
Purchaser, Deltak, Xxxxxx or any Subsidiary or in any way solicit for
employment, while so employed, any person who is employed by either Purchaser,
Deltak, Xxxxxx or any Subsidiary immediately after the Closing Date.
(c) Xxxxx and Sellers agree that: (i) the covenants
set forth in this section 15.10 are reasonable in geographical and temporal
scope and in all other respects, (ii) Purchasers would not have entered into
this Agreement but for the covenants of Xxxxx and Sellers contained herein, and
(iii) the covenants contained herein have been made in order to induce the
Purchasers to enter into this Agreement.
(d) If, at the time of enforcement of this section
15.10, a court shall hold that the duration, scope or area restrictions stated
herein are unreasonable under circumstances then existing, the parties agree
that the maximum duration, scope or area reasonable under such circumstances
shall be substituted for the stated duration, scope or area and that the court
shall be allowed to revise the restrictions contained herein to cover the
maximum period, scope and area permitted by law.
(e) Xxxxx and Sellers recognize and affirm that in
the event of their breach of any provision of this section 15.10 or section
11.03, money damages would be inadequate and the Purchasers would have no
adequate remedy at law. Accordingly, Xxxxx and Sellers agree that in the event
of a breach or a threatened breach by Xxxxx or Sellers of any of the provisions
of this section 15.10 or section 11.03, Purchasers, in addition and
supplementary to other rights and remedies existing in its favor, may apply to
any court of law or equity of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or prevent any violations
of the provisions hereof or thereof (without posting a bond or other security).
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15.11 Knowledge. Whenever the Agreement refers to matters within
Jason's "knowledge," "known to Xxxxx" or of which Xxxxx "knows" or is "aware,"
such reference is limited to the actual knowledge as of the Closing Date of (a)
any of Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxx or Xxxxx Xxxxxx, or (b) after reasonable
inquiry of Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxx, Xxxxx Xxxxxx, Xxxx Xxxxxxxxxx and
Xxxx Xxxxxxxxxxxx regarding the representations and warranties set forth in
section 7 of this Agreement, any of Xxxx Train or Xxxxxxx Xxxxxx. Further, to
the extent Xxxxx is required to make a representation or warranty as to an act
or action "threatened" against Xxxxx, Deltak, Xxxxxx or a Subsidiary, Xxxxx
shall be deemed to have knowledge of such threat only if such threat is known as
of the Closing Date (a) by Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxx or Xxxxx Xxxxxx, or
(b) after reasonable inquiry of Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxx, Xxxxx Xxxxxx,
Xxxx Xxxxxxxxxx and Xxxx Xxxxxxxxxxxx, by Xxxx Train or Xxxxxxx Xxxxxx, and a
reasonable person in the exercise of reasonable business judgment would
characterize the statements made or notice given or actions taken as a "threat."
15.12 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more such counterparts have been signed
by each of the parties and delivered to the other party.
15.13 Drafting. This Agreement was jointly drafted and prepared
by the parties hereto and no presumption, either in favor of or against either
party hereto, shall be deemed to exist with respect to the interpretation of any
provision of this Agreement by virtue of the authorship thereof.
15.14 Headings. The section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
15.15 Severability. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
[Signatures on the following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day, month and year first above written.
XXXXX INCORPORATED
BY /s/ illegible
------------------------------------
Its Chairman and Chief Executive Officer
----------------------------------
XXXXX NEVADA, INC.
BY /s/ illegible
------------------------------------
Its Vice President
----------------------------------
DELTAK NEVADA, INC.
BY /s/ illegible
----------------------------------
Its Vice President
----------------------------------
XXXXXX NEVADA, INC.
BY /s/ illegible
----------------------------------
Its Vice President
----------------------------------
GLOBAL ENERGY EQUIPMENT GROUP, L.L.C.
BY /s/ Xxxxx Xxxxxxx
------------------------------------
Its President
----------------------------------
GEEG, INC.
BY /s/ Xxxxx Xxxxxxx
------------------------------------
Its President
----------------------------------
FOR PURPOSES OF SECTIONS 12, 13 AND 15 ONLY
DELTAK, L.L.C.
BY /s/ Xxxxxxx Xxxxxxx
------------------------------------
Its Treasurer and Secretary
----------------------------------
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XXXXXX MANUFACTURING, L.L.C.
BY /s/ Xxxxx X. Xxxxxx
------------------------------------
Its Treasurer and Secretary
----------------------------------
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EXHIBITS
A. Reinhart, Boerner, Van Deuren, Xxxxxx & Xxxxxxxxxx, s.c. Opinion
X. Xxxxxxxx & Xxxxx Opinion
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SCHEDULES
The following are the Schedules to the Purchase Agreement dated June
5, 1998 by and among Global Energy Equipment Group, L.L.C., GEEG, Inc. Xxxxx
incorporated, Xxxxxx Nevada, Inc., Deltak Nevada, Inc. and Xxxxx Nevada, Inc.,
and, for purposes of sections 12, 13 and 15 of the Agreement, Deltak, L.L.C. and
Xxxxxx Manufacturing, L.L.C. Summaries of or references to actual documents
attached hereto are qualified in their entirety by reference to such documents.
The inclusion of any item on any Schedule attached hereto shall not constitute
an admission that a violation, right of termination, default, liability or other
obligation of any kind exists with respect to such item, but rather is intended
only to qualify certain representations and warranties in the Agreement and to
set forth other information required by the Agreement. Also, the inclusion of
any matter on any Schedule attached hereto shall not constitute an admission as
to its materiality as it relates to any provision of the Agreement. If a
document or matter is listed on any Schedule attached hereto, such listing shall
suffice, without specific repetition and with or without cross-reference, as a
response to any section of the Agreement. Any reference in the Schedules to
"Xxxxxx" shall, to the extent necessary to make the disclosures accurate,
include Xxxxxx Manufacturing, the former unit of Xxxxx. Any reference in the
Schedules to "Deltak" shall, to the extent necessary to make the disclosure
accurate, include Deltak, the former unit of Xxxxx. Except as expressly set
forth on the Schedules attached hereto, the definitions of the Agreement are
incorporated herein by reference.
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List of Schedules
Schedule 3.01 Statements of Net Operating Assets; Closing Estimates
Schedule 3.04 Allocation of Purchase Price
Schedule 5.01 Third Party Approvals
Schedule 5.02 Estoppel Certificates
Schedule 5.05 Encumbrances and Guaranties
Schedule 6.02(b) Letters of Credit
Schedule 7.01 Corporate Organization
Schedule 7.02 Authorization of Agreement
Schedule 7.03 Title to Assets
Schedule 7.04 Subsidiaries; Capitalization
Schedule 7.05 Financial Statements
Schedule 7.06 Labor Matters
Schedule 7.07 Consents and Approvals
Schedule 7.08 Liabilities
Schedule 7.10 Inventory
Schedule 7.11 Business Changes
Schedule 7.12 Real Property
Schedule 7.13 Condition of Real Property
Schedule 7.16 Building Code Compliance
Schedule 7.17 Zoning
Schedule 7.18 Personal Property Leased
Schedule 7.19 Condition of Assets
Schedule 7.20 Contracts and Leases
Schedule 7.21 Compliance with Environmental Laws
Schedule 7.22 Government License and Regulation
Schedule 7.23 Restrictions on Personnel
Schedule 7.24 Taxes
Schedule 7.25 Employment Contracts and Policies
Schedule 7.26 Intangible Assets
Schedule 7.29 Insurance
Schedule 7.31 Disabled Employees
Schedule 7.33 Litigation and Proceedings
Schedule 7.34(a) Pension Plans
Schedule 7.34(d) Qualified Status of Pension Plans
Schedule 7.34(e) Welfare Plans
Schedule 7.34(f) Copies of Welfare Plans
Schedule 7.34(g) Other Plans
Schedule 7.34(h)
Schedule 7.34(i) Material Modifications
Schedule 7.34(k) Multiemployer Plans
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Schedule 7.34(l) Compliance with Legal Requirements
Schedule 7.34(m) COBRA Continuation Coverage
Schedule 7.34(n)
Schedule 7.34(o) ERISA Title IV Events
Schedule 7.34(p) Prohibited Transactions
Schedule 7.34(q) PBGC Liabilities
Schedule 7.34(r) Change in Control or Ownership
Schedule 7.35 Power of Attorney
Schedule 7.36 Guaranties
Schedule 7.37 Directors and Officers
Schedule 7.39 Product Warranty
Schedule 7.40 Affiliated Transactions
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