EXECUTION COPY
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STOCK PURCHASE AGREEMENT
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Between
FLIGHT STRUCTURES, INC.
SAVINGS AND RETIREMENT PLAN AND TRUST
and
BE AEROSPACE, INC.
Dated as of July 21, 1998
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TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS
1.01. Certain Defined Terms...................................................1
ARTICLE II
PURCHASE AND SALE
2.01. Purchase and Sale of the ESOP Shares....................................4
2.02. Purchase Price..........................................................4
2.03. Closing.................................................................4
2.04. Closing Deliveries by the Seller........................................4
2.05. Closing Deliveries by the Purchaser.....................................4
2.06. Escrow .................................................................5
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
3.01. Organization, Authority and Qualification of the Seller.................5
3.02. Ownership of the Shares.................................................6
3.03. No Conflict.............................................................6
3.08. Governmental Consents and Approvals.....................................7
SECTION 3.09. Fairness Determination..........................................7
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
4.01. Organization and Authority of the Purchaser.............................7
4.02. No Conflict.............................................................7
4.03. Governmental Consents and Approvals.....................................8
4.04. Litigation..............................................................8
4.06. Brokers.................................................................8
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ARTICLE V
CONDITIONS TO CLOSING
5.01. Conditions to Obligations of the Seller.................................9
5.02. Conditions to Obligations of the Purchaser..............................9
ARTICLE VI
INDEMNIFICATION
6.01. Survival of Representations and Warranties.............................10
6.02. Indemnification by the Seller..........................................11
6.03. Indemnification by Purchaser...........................................11
ARTICLE VII
TERMINATION AND WAIVER
7.01. Termination............................................................11
7.02. Effect of Termination..................................................12
7.03. Waiver ................................................................12
ARTICLE VIII
GENERAL PROVISIONS
8.01. Expenses...............................................................12
8.02. Notices................................................................12
8.03. Public Announcements...................................................13
8.04. Headings...............................................................13
8.05. Severability...........................................................14
8.06. Entire Agreement.......................................................14
8.07. Assignment.............................................................14
8.08. No Third Party Beneficiaries...........................................14
8.09. Amendment..............................................................14
8.10. Governing Law..........................................................14
8.11. Counterparts...........................................................14
8.12. Specific Performance...................................................15
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EXHIBIT
2.06 FORM OF ESCROW AGREEMENT................................................17
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EXECUTION COPY
STOCK PURCHASE AGREEMENT, dated as of July 21, 1998 (the
"Agreement"), between Flight Structures, Inc. Savings and Retirement Plan and
Trust, a trust organized under the laws of the State of Washington (the "Seller"
or "ESOP"), and BE Aerospace, a Delaware corporation (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Seller owns 637,332.78 issued and outstanding
shares (the "ESOP Shares") of common stock (the "Common Stock"), of Flight
Structures, Inc., a Washington corporation (the "Company" or "FSI"); and
WHEREAS, contemporaneously with the execution and delivery of
this Agreement, the Purchaser is entering into an agreement (the "Acquisition
Agreement") dated as of the date hereof, with ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Trust - 1998, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ - 1998, ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇
▇. ▇▇▇▇▇ Trust - 1998 (collectively, the "Stockholders") for the purchase of the
Securities (as defined in the Acquisition Agreement); and
WHEREAS, the Seller wishes to sell to the Purchaser, and the
Purchaser wishes to purchase from the Seller, the ESOP Shares, upon the terms
and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements and covenants hereinafter set forth, the Purchaser and the
Seller hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings:
"Acquisition Documents" has the meaning specified in Section
6.01.
"Action" means any claim, action, suit, arbitration, inquiry,
proceeding or investigation by or before any Governmental Authority.
"Affiliate" means, with respect to any specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person.
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"Agreement" or "this Agreement" means this Stock Purchase
Agreement, dated as of July 21, 1998, between the Seller and the Purchaser
(including the Exhibits hereto and the Disclosure Schedule) and all amendments
hereto.
"Business Day" means any day that is not a Saturday, a Sunday
or other day on which banks are required or authorized by law to be closed in
The City of New York.
"Closing" has the meaning specified in Section 2.03.
"Closing Date" has the meaning specified in Section 2.03.
"Code" means the Internal Revenue Code of 1986, as amended
through the date hereof.
"Common Stock" has the meaning specified in the recitals to
this Agreement.
"Company" has the meaning specified in the recitals to this
Agreement.
"Disclosure Schedule" means the Disclosure Schedule attached
hereto, dated as of the date hereof, and forming a part of this Agreement.
"Encumbrance" means any security interest, pledge, mortgage,
lien (including, without limitation, environmental and tax liens), charge,
encumbrance, adverse claim, preferential arrangement or restriction of any kind,
including, without limitation, any restriction on the use, voting, transfer,
receipt of income or other exercise of any attributes of ownership.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Escrow Agent" means Wachovia Bank, N.A.
"Escrow Agreement" has the meaning specified in Section 2.06.
"Escrow Amount" means $3,300,000.
"ESOP" has the meaning specified in the recitals to this
Agreement.
"ESOP Shares" has the meaning specified in the recitals to
this Agreement.
"Governmental Authority" means any United States federal,
state or local or any foreign government, governmental, regulatory or
administrative authority, agency or commission or any court, tribunal, or
judicial or arbitral body.
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"Governmental Order" means any order, writ, judgment,
injunction, decree, stipulation, determination or award entered by or with any
Governmental Authority.
"Indemnified Party" has the meaning specified in Section
6.02(a).
"Law" means any federal, state, local or foreign statute, law,
ordinance, regulation, rule, code, order, other requirement or rule of law.
"Liabilities" means any and all debts, liabilities and
obligations, whether accrued or fixed, absolute or contingent, matured or
unmatured or determined or determinable, including, without limitation, those
arising under any Law (including, without limitation, any Environmental Law),
Action or Governmental Order and those arising under any contract, agreement,
arrangement, commitment or undertaking.
"Loss" has the meaning specified in Section 6.02.
"Person" means any individual, partnership, firm, corporation,
association, trust, unincorporated organization or other entity, as well as any
syndicate or group that would be deemed to be a person under Section 13(d)(3) of
the Securities Exchange Act of 1934, as amended.
"Purchase Price" has the meaning specified in Section 2.02.
"Purchase Price Bank Account" means a bank account in the
United States to be designated by the Seller in a written notice to the
Purchaser at least five Business Days before the Closing.
"Purchaser" has the meaning specified in the recitals to this
Agreement.
"Seller" has the meaning specified in the recitals to this
Agreement.
"Third Party Claims" has the meaning specified in Section
6.02(b).
"Trust Agreement" has the meaning specified in Section 3.01.
"Trustee" has the meaning specified in Section 3.01.
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ARTICLE II
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale of the ESOP Shares. Upon the
terms and subject to the conditions of this Agreement, at the Closing, the
Seller shall sell to the Purchaser, and the Purchaser shall purchase from the
Seller, the ESOP Shares.
SECTION 2.02. Purchase Price. The Purchaser shall pay the ESOP
$22,000,000 in cash (the "Purchase Price"), in consideration for the purchase of
the ESOP Shares in satisfaction of any and all obligations of the Company under
Section 4(b) of the Share Purchase Agreement, dated as of August 30, 1996, by
and among the ESOP, ▇▇▇▇ ▇▇▇▇▇▇ Bank, as trustee of the ESOP, the Company and
SMR Technologies, Inc.
SECTION 2.03. Closing. Upon the terms and subject to the
conditions of this Agreement, the sale and purchase of the ESOP Shares
contemplated by this Agreement shall take place at a closing (the "Closing") to
be held at the offices of Weil, Gotshal & ▇▇▇▇▇▇ at 10:00 A.M. New York time on
the second business day following the satisfaction of the conditions to the
Closing set forth in Article V (other than the condition set forth in Section
5.02(f) which shall be satisfied on the Closing Date) (provided that any
conditions required herein to be satisfied prior to the Closing have been
satisfied or waived as of such date), or at such other place or at such other
time and date as the Seller and the Purchaser may mutually agree upon in writing
(the day on which the Closing takes place being the "Closing Date").
Notwithstanding the foregoing, for financial reporting purposes only, the
Closing and the transfer of effective control of the Company will be deemed to
have occurred on August 1, 1998.
SECTION 2.04. Closing Deliveries by the Seller. At the
Closing, the Seller shall deliver or cause to be delivered to the Purchaser:
(a) stock certificates evidencing the ESOP Shares duly
endorsed in blank, or accompanied by stock powers duly executed in blank, in
form satisfactory to the Purchaser and with all required stock transfer tax
stamps affixed;
(b) a receipt for the Purchase Price less the Escrow Amount;
and
(c) the certificates and other documents required to be
delivered pursuant to Section 5.02.
SECTION 2.05. Closing Deliveries by the Purchaser. (a) At the
Closing, the Purchaser shall deliver to the Seller:
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(i) the Purchase Price less the Escrow Amount by wire transfer
in immediately available funds to the Purchase Price Bank Account; and
(ii) the certificates and other documents required to be
delivered pursuant to Section 5.01.
(b) At the Closing, the Purchaser shall deliver to the Escrow
Agent, in accordance with the Escrow Agreement, the Escrow Amount by wire
transfer in immediately available funds to the account designated therefor in
the Escrow Agreement.
SECTION 2.06. Escrow. Prior to the Closing, the Seller and the
Purchaser shall enter into an Escrow Agreement with the Escrow Agent
substantially in the form of Exhibit 2.06 (the "Escrow Agreement"). In
accordance with the terms of the Escrow Agreement, the Purchaser shall deposit
the Escrow Amount in an account to be managed and paid out by the Escrow Agent
in accordance with the terms of the Escrow Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
As an inducement to the Purchaser to enter into this
Agreement, the Seller hereby represents and warrants to the Purchaser as
follows:
SECTION 3.01. Organization, Authority and Qualification of the
Seller. The ESOP has been duly authorized and established; and the Trust
Agreement between the Company and GreatBanc Trust Company (the "Trustee"), as
amended and restated to be effective as of November 20, 1996 (the "Trust
Agreement") has been duly authorized, by all necessary corporate action on the
part of the Company; the ESOP constitutes in all material respects an "eligible
individual account plan" within the meaning of Section 407(d)(3) of ERISA and
the execution, delivery and performance of this Agreement and the Escrow
Agreement and the consummation of the transactions contemplated by the parties
hereto will not constitute a violation of, or give rise to any liability under,
Title I of ERISA or Section 4975 of the Internal Revenue Code of 1996, as
amended (together with the rules and regulations promulgated thereunder, the
"Code"). The execution and delivery of this Agreement and the Escrow Agreement
by the Seller, the performance by the Seller of its obligations hereunder and
thereunder and the consummation by the Seller of the transactions contemplated
hereby and thereby have been duly authorized by all requisite action on the part
of the Seller. This Agreement has been, and upon its execution the Escrow
Agreement shall have been, duly executed and delivered by the Seller, and
(assuming due authorization, execution and delivery by the Purchaser) this
Agreement constitutes, and upon its execution the Escrow Agreement will
constitute, a legal, valid and binding obligation of the Seller enforceable
against the Seller in accordance with its terms.
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SECTION 3.02. Ownership of the Shares. The ESOP Shares are
owned of record and beneficially solely by the Seller free and clear of all
Encumbrances. Upon consummation of the transactions contemplated by this
Agreement and registration of the ESOP Shares in the name of the Purchaser in
the stock records of the Company, the Purchaser, assuming it shall have
purchased the ESOP Shares for value in good faith and without notice of any
adverse claim, will own the ESOP Shares free and clear of all Encumbrances.
SECTION 3.03. No Conflict. The execution and delivery of
this Agreement by the Seller does not, and the consummation by the Seller of the
transactions contemplated herein will not violate, cause a default under, breach
the terms of or require the consent, authorization or approval of any other
person under any law, rule or regulation or any governing instrument or any loan
agreement, mortgage, indenture, or other contract or agreement to which the ESOP
or the Trustee is bound, or to which the properties of the ESOP or the Trust are
subject or under any franchise, license or permit applicable to the Trustee, the
ESOP or the Trust.
SECTION 3.04. ERISA Matters. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated by the parties hereto will not constitute a violation of, or give
rise to any liability under, Title I of ERISA or Section 4975 of the Code.
SECTION 3.05. ESOP Shares. The shares of Common Stock held by
the ESOP are owned of record and beneficially by the ESOP free and clear of all
Encumbrances. Neither the ESOP nor the Trustee is a party to any voting trust,
stockholder agreement, proxy or other agreement or understanding in effect with
respect to the voting or transfer of any shares of Common Stock.
SECTION 3.06. Litigation. There is no private or governmental
action, suit, proceeding, claim, arbitration or investigation pending before any
agency, court or tribunal, foreign or domestic, or, to the knowledge of the
Trustee, threatened against the ESOP or the Trustee or any properties of the
ESOP or the Trust that, individually or in the aggregate, could reasonably be
expected to have a material adverse effect on the ability of the Trustee or the
ESOP to consummate the transactions contemplated by this Agreement. There is no
judgment, decree or order against the Trustee, the ESOP or any properties of the
ESOP or the Trust that could prevent, enjoin, alter or materially delay any of
the transactions contemplated by this Agreement, or that could reasonably be
expected to have a material adverse effect on the ability of the Trustee or the
ESOP to consummate the transactions contemplated by this Agreement.
SECTION 3.07. Broker's and Finders' Fees. Neither the Trustee
nor the ESOP has incurred, directly or indirectly, any liability for brokerage
or finders' fees or agents' commissions or investment bankers' fees or any
similar charges in connection with this Agreement or any transaction
contemplated hereby, other than fees to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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SECTION 3.08. Governmental Consents and Approvals. The
execution, delivery and performance of this Agreement and the Escrow Agreement
by the Seller do not and will not require any consent, approval, authorization
or other order of, action by, filing with or notification to any Governmental
Authority.
SECTION 3.09. Fairness Determination. The ESOP and the Trustee
have received an opinion from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the Trustee's independent
financial advisor, that the Purchase Price is not less than the fair market
value of the ESOP Shares and the transactions contemplated hereby are fair to
the ESOP from a financial point of view.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
As an inducement to the Seller to enter into this Agreement,
the Purchaser hereby represents and warrants to the Seller as follows:
SECTION 4.01. Organization and Authority of the Purchaser. The
Purchaser is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all necessary corporate power
and authority to enter into this Agreement and the Escrow Agreement, to carry
out its obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this Agreement
and the Escrow Agreement by the Purchaser, the performance by the Purchaser of
its obligations hereunder and thereunder and the consummation by the Purchaser
of the transactions contemplated hereby and thereby have been duly authorized by
all requisite action on the part of the Purchaser. This Agreement has been, and
upon its execution the Escrow Agreement will be, duly executed and delivered by
the Purchaser, and (assuming due authorization, execution and delivery by the
Seller) this Agreement constitutes, and upon its execution the Escrow Agreement
will constitute, a legal, valid and binding obligation of the Purchaser
enforceable against the Purchaser in accordance with its terms.
SECTION 4.02. No Conflict. Assuming the making and obtaining
of all filings, notifications, consents, approvals, authorizations and other
actions referred to in Section 4.03, except as may result from any facts or
circumstances relating solely to the Seller, the execution, delivery and
performance of this Agreement and the Escrow Agreement by the Purchaser do not
and will not (a) violate, conflict with or result in the breach of any provision
of the Certificate of Incorporation or By-laws of the Purchaser, (b) conflict
with or violate any Law or Governmental Order applicable to the Purchaser or (c)
conflict with, or result in any breach of, constitute a default (or event which
with the giving of notice or lapse or time, or both, would become a default)
under, require any consent under, or give to others any rights of termination,
amendment, acceleration, suspension, revocation, or cancellation of, or result
in the creation of any
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Encumbrance on any of the assets or properties of the Purchaser pursuant to, any
note, bond, mortgage or indenture, contract, agreement, lease, sublease,
license, permit, franchise or other instrument or arrangement to which the
Purchaser is a party or by which any of such assets or properties are bound or
affected which would have a material adverse effect on the ability of the
Purchaser to consummate the transactions contemplated by this Agreement or by
the Escrow Agreement.
SECTION 4.03. Governmental Consents and Approvals. The
execution, delivery and performance of this Agreement and the Escrow Agreement
by the Purchaser do not and will not require any consent, approval,
authorization or other order of, action by, filing with, or notification to, any
Governmental Authority.
SECTION 4.04. Litigation. Except as disclosed in a writing
given to the Seller by the Purchaser on the date of this Agreement, no claim,
action, proceeding or investigation is pending or, to the best knowledge of the
Purchaser after due inquiry, threatened, which seeks to delay or prevent the
consummation of, or which would be reasonably likely to materially adversely
affect the Purchaser's ability to consummate, the transactions contemplated by
this Agreement and the Escrow Agreement.
SECTION 4.05. Investment Purpose. The Purchaser is acquiring
the ESOP solely for the purpose of investment and not with a view to, or for
offer or sale in connection with, any distribution thereof.
SECTION 4.06. Brokers. No broker, finder or investment banker
is entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Purchaser.
ARTICLE V
CONDITIONS TO CLOSING
SECTION 5.01. Conditions to Obligations of the Seller. The
obligations of the Seller to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment, at or prior to the Closing, of
each of the following conditions:
(a) Representations and Warranties. The representations and
warranties of the Purchaser contained in this Agreement shall have been true and
correct when made and shall be true and correct in all material respects as of
the Closing, with the same force and effect as if made as of the Closing Date,
other than such representations and warranties as are made as of another date,
which shall be true and correct as of such date (provided, however, that if any
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portion of any representation or warranty is already qualified by materiality,
for purposes of determining whether this Section 5.01(a) has been satisfied with
respect to such portion of such representation or warranty, such portion of such
representation or warranty as so qualified must be true and correct in all
respects), and the Seller shall have received a certificate from the Purchaser
to such effect signed by a duly authorized officer thereof;
(b) No Proceeding or Litigation. No Action shall have been
commenced by or before any Governmental Authority against either the Seller or
the Purchaser, seeking to restrain or materially and adversely alter the
transactions contemplated by this Agreement which, in the reasonable, good faith
determination of the Seller, is likely to render it impossible or unlawful to
consummate such transactions; provided, however, that the provisions of this
Section 5.01(b) shall not apply if the Seller has directly or indirectly
solicited or encouraged any such Action;
SECTION 5.02. Conditions to Obligations of the Purchaser. The
obligations of the Purchaser to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment, at or prior to the Closing, of
each of the following conditions:
(a) Representations and Warranties. The representations and
warranties of the Seller contained in this Agreement shall have been true and
correct when made and shall be true and correct in all material respects as of
the Closing with the same force and effect as if made as of the Closing, other
than such representations and warranties as are made as of another date, which
shall be true and correct as of such date (provided, however, that if any
portion of any representation or warranty is already qualified by materiality,
for purposes of determining whether this Section 5.02(a) has been satisfied with
respect to such portion of such representation or warranty, such portion of such
representation or warranty as so qualified must be true and correct in all
respects), and the Purchaser shall have received a certificate of the Seller to
such effect signed by a duly authorized officer thereof;
(b) No Proceeding or Litigation. No Action shall have been
commenced or threatened by or before any Governmental Authority against either
the Seller or the Purchaser, seeking to restrain or materially and adversely
alter the transactions contemplated hereby which the Purchaser reasonably
believes is likely to render it impossible or unlawful to consummate the
transactions contemplated by this Agreement; provided, however, that the
provisions of this Section 5.02(b) shall not apply if the Purchaser has
solicited or encouraged any such Action;
(c) Resolutions of the Seller. The Purchaser shall have
received a true and complete copy, certified by a Trustee of the Seller, of the
resolutions duly and validly adopted by the Trustee evidencing its authorization
of the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby;
(d) Incumbency Certificate of the Seller. The Purchaser shall
have received a certificate of a Trustee of the Seller certifying the names and
signatures of officers of the Trustee
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of the Seller authorized to sign this Agreement and the other documents to be
delivered hereunder;
(e) Consents and Approvals. The Purchaser and the Seller shall
have received all authorizations, consents, orders and approvals of all
Governmental Authorities and officials and all third party consents and estoppel
certificates which the Purchaser deems necessary or desirable for the
consummation of the transactions contemplated by this Agreement;
(f) Acquisition Agreement. The Stockholders and the Purchaser
shall have consummated the transactions contemplated by the Acquisition
Agreement.
(g) Escrow Agreement. The Seller shall have executed the
Escrow Agreement.
ARTICLE VI
INDEMNIFICATION
SECTION 6.01. Survival of Representations and Warranties. The
representations and warranties of the ESOP and the Purchaser contained in this
Agreement, and all statements contained in this Agreement, the Exhibits to this
Agreement, the Disclosure Schedule and any certificate or other document
delivered pursuant to this Agreement or in connection with the transactions
contemplated by this Agreement (collectively, the "Acquisition Documents"),
shall survive the Closing until December 31, 1999. Neither the period of
survival nor the liability of the ESOP and the Purchaser with respect to their
respective representations and warranties shall be reduced by any investigation
made at any time by or on behalf of the Purchaser or the ESOP. If written notice
of a claim has been given prior to the expiration of the applicable
representations and warranties by either party hereto to the other, then the
relevant representations and warranties shall survive as to such claim, until
such claim has been finally resolved.
SECTION 6.02. Indemnification by the Seller. The Purchaser,
its Affiliates and their successors and assigns, and the officers, directors,
employees and agents of the Purchaser, its Affiliates and their successors and
assigns (each an "Indemnified Party") shall be indemnified and held harmless by
the ESOP (a) for 15.5% of Losses (as defined in the Acquisition Agreement)
suffered, incurred or sustained by such Indemnified Party, and indemnifiable by
the Sellers (as defined in the Acquisition Agreement) under Article XI of the
Acquisition Agreement and (b) any losses, claims, damages, liabilities, costs
and expenses, interest, awards, judgements and penalties resulting from any
breach of any representation or warranty made by the ESOP hereunder.
Notwithstanding anything to the contrary contained in this Agreement or the
Acquisition Agreement, the amount of such indemnifiable losses under clauses (a)
or (b) of this
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Section 6.02 which may be recovered from the ESOP under this Section 6.02 shall
not be from a source other than the funds escrowed under the Escrow Agreement.
SECTION 6.03. Indemnification by Purchaser. The ESOP shall be
indemnified and held harmless by the Purchaser for any losses, claims, damages,
liabilities, costs and expenses, interest, awards, judgements and penalties
suffered, incurred or sustained by the ESOP resulting from any breach of the
representations and warranties of the Purchaser hereunder.
ARTICLE VII
TERMINATION AND WAIVER
SECTION 7.01. Termination. This Agreement may be terminated at
any time prior to the Closing:
(a) by either the Seller or the Purchaser if the Closing shall
not have occurred by October 31, 1998; provided, however, that the right to
terminate this Agreement under this Section 7.01(a) shall not be available to
any party whose failure to fulfill any obligation under this Agreement shall
have been the cause of, or shall have resulted in, the failure of the Closing to
occur on or prior to such date; or
(b) by either the Purchaser or the Seller in the event that
any Governmental Authority shall have issued an order, decree or ruling or taken
any other action restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement and such order, decree, ruling or
other action shall have become final and nonappealable; or
(c) by either the Purchaser or the Seller if the Acquisition
Agreement shall have been terminated; or
(d) by the mutual written consent of the Seller and the
Purchaser.
SECTION 7.02. Effect of Termination. In the event of
termination of this Agreement as provided in Section 7.01, this Agreement shall
forthwith become void and there shall be no liability on the part of either
party hereto except that nothing herein shall relieve either party from
liability for any breach of this Agreement.
SECTION 7.03. Waiver. Either party to this Agreement may (a)
extend the time for the performance of any of the obligations or other acts of
the other party, (b) waive any inaccuracies in the representations and
warranties of the other party contained herein or in any document delivered by
the other party pursuant hereto or (c) waive compliance with any of the
agreements or conditions of the other party contained herein. Any such extension
or waiver shall
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be valid only if set forth in an instrument in writing signed by the party to be
bound thereby. Any waiver of any term or condition shall not be construed as a
waiver of any subsequent breach or a subsequent waiver of the same term or
condition, or a waiver of any other term or condition, of this Agreement. The
failure of any party to assert any of its rights hereunder shall not constitute
a waiver of any of such rights.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.01. Expenses. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby by the
Purchaser shall be paid by the Purchaser incurring such costs and expenses,
whether or not the Closing shall have occurred. Costs and expenses of the ESOP
shall be paid by the Stockholders, subject to the provisions of the Acquisition
Agreement.
SECTION 8.02. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given or
made (and shall be deemed to have been duly given or made upon receipt) by
delivery in person, by courier service, by cable, by telecopy, by telegram, by
telex or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses (or at such
other address for a party as shall be specified in a notice given in accordance
with this Section 8.02):
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(a) if to the Seller:
GreatBanc Trust Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇; ▇▇▇. ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(b) if to the Purchaser:
BE Aerospace Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
with a copy to:
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
SECTION 8.03. Public Announcements. No party to this Agreement
shall make, or cause to be made, any press release or public announcement in
respect of this Agreement or the transactions contemplated hereby or otherwise
communicate with any news media without the prior written consent of the other
party and the parties shall cooperate as to the timing and contents of any such
press release or public announcement.
-14-
SECTION 8.04. Headings. The descriptive headings contained in
this Agreement are for convenience of reference only and shall not affect in any
way the meaning or interpretation of this Agreement.
SECTION 8.05. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any Law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner in
order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
SECTION 8.06. Entire Agreement. This Agreement, the
Acquisition Agreement and the Escrow Agreement constitute the entire agreement
of the parties hereto with respect to the subject matter hereof and thereof and
supersede all prior agreements and undertakings, both written and oral, between
the Seller and the Purchaser with respect to the subject matter hereof and
thereof.
SECTION 8.07. Assignment. This Agreement may not be assigned
by operation of law or otherwise without the express written consent of the
Seller and the Purchaser (which consent may be granted or withheld in the sole
discretion of the Seller or the Purchaser); provided, however, that the
Purchaser may assign this Agreement to an Affiliate of the Purchaser without the
consent of the Seller.
SECTION 8.08. No Third Party Beneficiaries. Except for the
provisions of Article IX relating to Indemnified Parties, this Agreement shall
be binding upon and inure solely to the benefit of the parties hereto and their
permitted assigns and nothing herein, express or implied, is intended to or
shall confer upon any other Person any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
SECTION 8.09. Amendment. This Agreement may not be amended or
modified except (a) by an instrument in writing signed by, or on behalf of, the
Seller and the Purchaser or (b) by a waiver in accordance with Section 7.03.
SECTION 8.10. Governing Law. This Agreement shall be governed
by the laws of the State of New York. All actions and proceedings arising out of
or relating to this Agreement shall be heard and determined in any Ohio state or
federal court sitting in the State of Ohio.
-15-
SECTION 8.11. Counterparts. This Agreement may be executed in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
SECTION 8.12. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or equity.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused
this Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
FLIGHT STRUCTURES, INC.
SAVINGS AND RETIREMENT PLAN
AND TRUST
By: GreatBanc Trust Company, in its
capacity as Trustee
By: /s/ ▇▇▇▇▇▇▇ Welgate
-----------------------------------
Name: ▇▇▇▇▇▇▇ Welgate
Title: President
BE AEROSPACE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Corporate Senior Vice
President & Chief Financial
Officer
EXHIBIT 2.06
FORM OF ESCROW AGREEMENT
ESCROW AGREEMENT
ESCROW AGREEMENT, dated as of August 7, 1998 (the
"Agreement"), among Flight Structures, Inc. Savings and Retirement Plan and
Trust, a trust organized under the laws of the State of Washington (the
"Seller"), BE Aerospace, Inc., a Delaware corporation (the "Purchaser"), and The
Bank of New York, a New York banking corporation in its capacity as escrow agent
hereunder (the "Escrow Agent").
W I T N E S S E T H :
WHEREAS, the Purchaser and the Seller have entered into a
Stock Purchase Agreement, dated as of July 21, 1998 (the "Purchase Agreement";
all capitalized terms used herein without definition have the same meanings
herein as in the Purchase Agreement), pursuant to which, among other things, the
Purchaser has agreed to purchase from the Seller, and the Seller has agreed to
sell to the Purchaser, the ESOP Shares.
WHEREAS, it is contemplated under Section 2.05(b) of the
Purchase Agreement that at the Closing the Purchaser, as a portion of the
Purchase Price, will deposit or cause to be deposited into escrow the sum of
$3,300,000 in cash (the "Escrow Amount"; the Escrow Amount and all interest and
income accrued thereon being referred to herein as the "Escrow Fund") to be held
and disbursed by the Escrow Agent in accordance with Section 3 of this
Agreement.
WHEREAS, a copy of the Purchase Agreement has been delivered
to the Escrow Agent, and the Escrow Agent is willing to act as the Escrow Agent
hereunder.
WHEREAS, the Escrow Agent shall hold the Escrow Fund in
Account No. 119254 (the "Escrow Account") at The Bank of New York, ABA No.
▇▇▇▇▇▇▇▇▇, such account to be opened on behalf of the Seller.
WHEREAS, the Seller has appointed GreatBanc Trust Company to
act as its representative (the "Seller's Representative") in connection with
certain matters hereunder.
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements and covenants set forth herein and in the Purchase Agreement,
the parties hereby agree as follows:
1. Appointment and Agreement of Escrow Agent. The Purchaser
and the Seller hereby appoint the Escrow Agent to serve as, and the Escrow Agent
hereby agrees to act as, Escrow Agent upon the terms and conditions of this
Agreement.
2. Establishment of the Escrow Fund. (a) The Purchaser shall
deliver to the Escrow Agent on the date hereof the Escrow Amount. The Escrow
Agent shall hold the Escrow Fund in escrow pursuant to this Agreement in the
Escrow Account.
(b) The Purchaser and the Seller confirm to the Escrow Agent
and to each other that the Escrow Fund is free and clear of all Encumbrances
except as may be created by this Agreement and the Purchase Agreement.
3. Payments from the Escrow Fund. (a) Until December 31, 1999
(the "Distribution Date") (and if any funds remain in the Escrow Account), the
Purchaser may make claims for payment from the Escrow Fund by delivering to the
Seller's Representative a certificate of the Purchaser (a "Purchaser's
Certificate") which shall:
(i) state that the Purchaser is entitled to indemnification
under Article VI of the Purchase Agreement (an "Indemnification Item");
(ii) state the aggregate amount of such Indemnification Item;
and
(iii) specify in reasonable detail the nature and amount of
each individual Indemnification Item.
(b) If the Seller's Representative shall object to any amount
claimed in connection with any Indemnification Item specified in any Purchaser's
Certificate, the Seller's Representative shall, within 20 business days after
delivery by the Purchaser to the Seller's Representative of such Purchaser's
Certificate, deliver to the Purchaser a certificate of the Seller's
Representative (a "Seller's Certificate") (i) specifying each such amount to
which the Seller's Representative objects and (ii) specifying in reasonable
detail the nature and basis for each such objection. If the Seller's
Representative shall not have delivered to the Purchaser a Seller's Certificate
objecting to the amount claimed with respect to an Indemnification Item within
20 business days after delivery to the Seller's Representative of a Purchaser's
Certificate specifying such Indemnification Item, the Seller's Representative
shall be deemed to have acknowledged the correctness of the amount claimed on
such Purchaser's Certificate with respect to such Indemnification Item, and the
Seller's Representative shall promptly thereafter direct the Escrow Agent in
writing to transfer to the Purchaser, by wire transfer of immediately available
funds, out of the Escrow Account an amount set forth in such written
instructions and claimed in the Purchaser's Certificate with respect to such
Indemnification Item.
(c) If the Purchaser shall receive, within 20 business days
after delivery to the Seller's Representative of a Purchaser's Certificate, a
Seller's Certificate objecting to the amount claimed with respect to any
Indemnification Item specified in such Purchaser's Certificate, the amount so
objected to shall be held by the Escrow Agent and shall not be released from the
Escrow Account except in accordance with either (i) written instructions
2
executed by the Purchaser and by the Seller's Representative or (ii) the final
order of a court of competent jurisdiction directing the Escrow Agent with
respect to the matters relating to the claim by the Purchaser for
indemnification from the Seller, promptly after which time the Escrow Agent
shall transfer to the Purchaser, by wire transfer of immediately available
funds, out of the Escrow Account an amount equal to the amount set forth in such
written instructions or in such order, as the case may be.
(d) On the Distribution Date, the Escrow Agent shall transfer
to the Seller's Representative, by wire transfer of immediately available funds,
out of the Escrow Account, an amount in cash equal to the then remaining balance
of the Escrow Fund less the Reserved Amount (as defined below). The "Reserved
Amount" shall equal the lesser of (1) the aggregate of the amounts claimed in
all Purchaser's Certificates delivered to the Escrow Agent prior to the
Distribution Date (which claims shall not have been resolved on or prior to
Distribution Date) and (2) the then remaining balance of the Escrow Fund.
(e) Notwithstanding the limitations set forth in Section 3(a)
of this Agreement, following the Distribution Date, the Purchaser shall be
entitled to assert claims against the Escrow Fund under this Section 3 only in
respect of all Losses that were included in determining the Reserved Amount.
(f) Upon termination of this Agreement pursuant to Section 9
of this Agreement, the Escrow Agent shall, upon written instructions delivered
to it by the Seller's Representative, promptly thereafter, transfer to the
Seller's Representative, by wire transfer of immediately available funds, all
amounts then remaining in the Escrow Fund.
4. Liquidation of the Escrow Fund. Whenever the Escrow Agent
shall be required to make payment from the Escrow Fund, the Escrow Agent shall
pay such amounts by liquidating the investments of the Escrow Fund, to the
extent necessary to pay such amounts in full and in cash.
5. Maintenance of the Escrow Fund; Termination of the Escrow
Fund. (a) The Escrow Agent shall continue to maintain the Escrow Fund until the
earlier of (i) the time at which there shall be no funds in the Escrow Fund and
(ii) the termination of this Agreement.
(b) Notwithstanding any other provision of this Agreement to
the contrary, at any time prior to the termination of the Escrow Fund, the
Escrow Agent shall, if so instructed in a writing executed by the Purchaser and
the Seller's Representative, pay from the Escrow Fund to the Seller's
Representative or the Purchaser, as directed in such writing, the amount of cash
so instructed (and if such cash is not available, shall liquidate such
investments of the Escrow Fund as are necessary to make such payment).
6. Investment of the Escrow Fund. The Escrow Agent shall
invest and reinvest moneys on deposit in the Escrow Fund upon joint written
notice signed by the Seller and
3
the Purchaser in any combination of the following: (a) readily marketable direct
obligations of the Government of the United States, or any agency or
instrumentality thereof or readily marketable obligations unconditionally
guaranteed by the full faith and credit of the Government of the United States,
(b) insured certificates of deposit of, or time deposits with, any commercial
bank which issues (or the parent of which issues) commercial paper rated as
described in clause (c), is organized under the laws of the United States, or
any State thereof, and has combined capital and surplus of at least $1 billion
or (c) commercial paper in an aggregate amount of no more than $1,000,000 per
issuer outstanding at any time, issued by any corporation organized under the
laws of any State of the United States, rated at least "Prime-1" (or the then
equivalent grade) by ▇▇▇▇▇'▇ Investors Service, Inc. or "A-1" (or the then
equivalent grade) by Standard & Poors, Inc. Notwithstanding the foregoing, the
Escrow Agent may act upon any contrary written investment instructions signed by
the Seller and the Purchaser.
7. Assignment of Rights to the Escrow Fund; Assignment of
Obligations; Successors. The Seller may not assign, transfer, pledge or
otherwise dispose of its rights to any portion of the Escrow Account, provided
however that the Seller may assign such rights to any successor employee stock
ownership plan or other benefit plan or to the individual participants in the
ESOP. This Agreement may not be assigned by operation of law or otherwise
without the express written consent of the other parties hereto (which consent
may be granted or withheld in the sole discretion of such other parties);
provided, however, that the Purchaser may assign this Agreement to an affiliate
of the Purchaser without the consent of the other parties; provided further,
however, that the Purchaser may also assign this Agreement to any person or
entity who purchases all of the outstanding shares of Purchaser's common stock
or all or substantially all of the assets of the Purchaser, or to any person or
entity with or into which the Purchaser causes the Company to merge, if such
other person or entity has a creditworthiness that is reasonably satisfactory to
the Seller and agrees in writing to assume (or assumes by operation of law) all
of the Purchaser's obligations under this Agreement. This Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
permitted assigns.
8. Escrow Agent. (a) Except as expressly contemplated by this
Agreement or by joint written instructions from the Purchaser and the Seller's
Representative, acting on behalf of the Seller, the Escrow Agent shall not sell,
transfer or otherwise dispose of in any manner all or any portion of the Escrow
Account, except pursuant to an order of a court of competent jurisdiction. The
Escrow Agent shall not be under any duty to give the Escrow Fund held by it
hereunder any greater degree of care than it gives its own similar property and
shall not be required to invest any funds held hereunder except as directed in
this Escrow Agreement.
(b) The duties and obligations of the Escrow Agent shall be
determined solely by this Agreement, and the Escrow Agent shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Agreement. No implied duties or obligations shall be read into
this Agreement against the Escrow Agent. The Escrow Agent shall not be bound by
the provisions of any agreement among the other parties hereto except this
Escrow Agreement.
4
(c) In the performance of its duties hereunder, the Escrow
Agent shall be entitled to rely upon any document, instrument or signature
believed by it in good faith to be genuine and signed by any party hereto or an
authorized officer or agent thereof, and shall not be required to investigate
the truth or accuracy of any statement contained in any such document or
instrument. The Escrow Agent may assume that any person or entity purporting to
give any notice in accordance with the provisions of this Agreement has been
duly authorized to do so.
(d) The Escrow Agent shall not be liable for any error of
judgment, or any action taken, suffered or omitted to be taken, hereunder except
in the case of its gross negligence, bad faith or willful misconduct. The Escrow
Agent may consult with counsel of its own choice and shall have full and
complete authorization and protection for any action taken or suffered by it
hereunder in good faith and in accordance with the opinion of such counsel.
(e) The Escrow Agent shall have no duty as to the collection
or protection of the Escrow Account or income thereon, nor as to the
preservation of any rights pertaining thereto, beyond the safe custody of any
such funds actually in its possession. The Escrow Agent makes no representation
as to the validity, value, genuineness or the collectability of any security or
other document or instrument held by or delivered to it.
(f) The Escrow Agent shall not incur any liability for not
performing any act or fulfilling any duty, obligation or responsibility
hereunder by reason of any occurrence beyond the control of Escrow Agent
(including, but not limited to, any act or provision of any present or future
law or regulation or governmental authority, any act of God or war, or the
unavailability of the Federal Reserve Bank wire or telex or other wire or
communication facility).
(g) As compensation for its services to be rendered under this
Agreement, for each year or any portion thereof, the Escrow Agent shall receive
a fee in the amount specified in Schedule A to this Agreement or as shall be
agreed to in writing from time to time by the Escrow Agent, the Purchaser and
the Seller's Representative and shall be reimbursed upon request for all
expenses, disbursements and advances, including reasonable fees and expenses of
outside counsel, if any, incurred or made by it in connection with the
preparation of this Agreement and the carrying out of its duties under this
Agreement. All such fees and expenses shall be the responsibility of the
Purchaser.
(h) The Purchaser shall reimburse and indemnify the Escrow
Agent and any predecessor Escrow Agent for, and hold it harmless against, any
loss, liability or expense, including, without limitation, taxes (other than
taxes based upon, determined by or measured by the income of the Escrow Agent)
and reasonable attorneys' fees and expenses, incurred without gross negligence,
bad faith or wilful misconduct on the part of the Escrow Agent arising out of,
or in connection with the acceptance of, or the performance of, its duties and
obligations under this Agreement. Without limiting the foregoing, the Escrow
Agent shall in no event be liable in connection with its investment or
reinvestment of any cash held by it hereunder in good faith, in accordance with
the terms hereof, including without limitation any liability for any delays (not
5
resulting from its gross negligence or willful misconduct) in the investment or
reinvestment of the Escrow Fund, or any loss of interest incident to any such
delays.
(i) The Escrow Agent may at any time resign by giving 15
business days' prior written notice of resignation to the Seller's
Representative and the Purchaser. The Purchaser and the Seller, acting through
the Seller's Representative, may at any time jointly remove the Escrow Agent by
giving 10 business days' written notice signed by each of them to the Escrow
Agent. If the Escrow Agent shall resign or be removed, a successor Escrow Agent,
which shall be a bank or trust company having its principal executive offices in
New York, New York and which shall be reasonably acceptable to the Purchaser and
the Seller, shall be appointed by the Purchaser by written instrument executed
by the Purchaser and the Seller, and delivered to the Escrow Agent and to such
successor Escrow Agent and, thereupon, the resignation or removal of the
predecessor Escrow Agent shall become effective and such successor Escrow Agent,
without any further act, deed or conveyance, shall become vested with all right,
title and interest to all cash and property held hereunder of such predecessor
Escrow Agent, and such predecessor Escrow Agent shall, on the written request of
the Seller, acting through the Seller's Representative, or of the Purchaser or
of the successor Escrow Agent, execute and deliver to such successor Escrow
Agent all the right, title and interest hereunder in and to the Escrow Account
of such predecessor Escrow Agent and all other rights hereunder of such
predecessor Escrow Agent. If no successor Escrow Agent shall have been appointed
within 15 business days of a notice of resignation by the Escrow Agent or
removal by the Purchaser and the Seller, the Escrow Agent shall have the right
to petition a court of competent jurisdiction for the appointment of a successor
Escrow Agent and its sole responsibility shall thereafter be to hold and invest
in accordance with Section 6 hereof the Escrow Fund until the earlier of its
receipt of designation of a successor Escrow Agent, a joint written instruction
by the Purchaser and the Seller, acting through the Seller's Representative, and
termination of this Agreement in accordance with its terms.
(j) The Escrow Agent does not have any interest in the Escrow
Fund but is serving as escrow holder only and having only possession thereof.
The Seller shall pay or reimburse the Escrow Agent upon request for any transfer
taxes or other taxes relating to the Escrow Fund incurred in connection herewith
and shall indemnify and hold harmless the Escrow Agent from any amounts that it
is obligated to pay in the way of such taxes. Any payments of income from this
Escrow Account shall be subject to withholding regulations then in force with
respect to United States taxes. The parties hereto will provide the escrow agent
with appropriate W-9 forms for tax I.D. number certifications, or W-8 forms for
non-resident alien certifications. It is understood that the Escrow Agent shall
be responsible for income reporting only with respect to income earned on
investment of funds which are a part of the Escrow Fund and is not responsible
for any other reporting. This paragraph and paragraph (g) shall survive
notwithstanding any termination of this Escrow Agreement or the resignation of
the Escrow Agent.
6
(k) In the event that the Escrow Agent in good faith is in
doubt as to what action it should take hereunder, the Escrow Agent shall be
entitled to retain the Escrow Fund until the Escrow Agent shall have received
(i) a final non-appealable order of a court of competent jurisdiction directing
delivery of the Escrow Fund or (ii) a written agreement executed by the
Purchaser and the Seller's Representative, acting on behalf of the Seller,
directing delivery of the Escrow Fund, in which event the Escrow Agent shall
disburse the Escrow Fund in accordance with such order or agreement. Any court
order shall be accompanied by a legal opinion by counsel for the presenting
party satisfactory to the Escrow Agent to the effect that said opinion is final
and non-appealable. The Escrow Agent shall act on such court order and legal
opinions without further question.
9. Termination. This Escrow Agreement shall terminate on the
later of: (a) the date on which there are no assets remaining in any Escrow
Account and (b) 10 business days following the date after the Distribution Date
on which all claims made in Purchaser's Certificates delivered to the Escrow
Agent prior to the Distribution Date, and all Losses specified in one or more
notices delivered to the Seller's Representative and the Escrow Agent by the
Purchaser pursuant thereto that could give rise to a right of indemnification
under Article VI of the Purchase Agreement shall have been resolved.
10. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by courier service, by telecopy, or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be specified
in a notice given in accordance with this Section 11):
(a) if to the Seller's Representative:
GreatBanc Trust Company, as
Seller's Representative
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
7
(b) if to the Purchaser:
BE Aerospace, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
with a copy to:
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
(c) if to the Escrow Agent, to:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Insurance Trust and Escrow ▇▇▇▇
▇▇. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts executed and to be performed entirely within that State.
12. Amendments. This Agreement may not be amended or modified
except (a) by an instrument in writing signed by, or on behalf of, the Seller's
Representative, acting on behalf of the Seller, the Purchaser and the Escrow
Agent or (b) by a waiver in accordance with Section 13 of this Agreement.
13. Waiver. The Escrow Agent, the Purchaser and the Seller's
Representative, acting on behalf of the Seller, may (i) extend the time for the
performance of any obligation or other act of any of the other parties hereto or
(ii) together, waive compliance with any agreement or condition contained
herein. Any such extension or waiver shall be valid only if set forth in an
instrument in writing signed by the party or parties to be bound thereby. Any
waiver of any term or condition shall not be construed as a waiver of any
subsequent breach or a subsequent waiver of the same term or condition, or a
waiver of any other term or condition, of this Agreement. The failure of any
party to assert any of its rights hereunder shall not constitute a waiver of any
of such rights.
8
14. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic and legal
substance of the transactions contemplated by this Agreement is not affected in
any manner materially adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the transactions contemplated by this Agreement
be consummated as originally contemplated to the fullest extent possible.
15. Entire Agreement. This Agreement and the Purchase
Agreement constitute the entire agreement of the parties hereto with respect to
the subject matter hereof and supersede all prior agreements and undertakings,
both written and oral, among the parties hereto with respect to the subject
matter hereof.
16. No Third Party Beneficiaries; Assignment. This Agreement
is for the sole benefit of the parties hereto and their permitted assigns and
nothing herein, express or implied, is intended to or shall confer upon any
other person or entity any legal or equitable right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
17. Further Action. Subject to the terms and conditions of
this Agreement, each party hereto shall use all reasonable efforts to take, or
cause to be taken, all appropriate action and do or cause to be done all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement.
No party hereto shall become a party to any agreement which by its terms
restricts its, his or her performance of its, his or her obligations under this
Agreement.
18. Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
19. Representations and Warranties. Each of the Purchaser and
Seller hereby represents and warrants (a) that this Escrow Agreement has been
duly authorized, executed and delivered on its behalf and constitutes its legal,
valid and binding obligation and (b) that the execution, delivery and
performance of this Escrow Agreement by Depositor do not and will not violate
any applicable law or regulation.
20. Use of Name. Except as required by law, applicable
regulation or NASDAQ rule, no printed or other material in any language,
including prospectuses, notices, reports, and promotional material which
mentions "The Bank of New York" by name or the rights, powers, or duties of the
Escrow Agent under this Agreement shall be issued by any other parties hereto,
or on such party's behalf, without the prior written consent of Escrow Agent,
which consent shall not be unreasonably withheld.
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21. Counterparts. This Agreement may be executed in one or
more counterparts, and by different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
when taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
FLIGHT STRUCTURES, INC.
SAVINGS AND RETIREMENT PLAN
AND TRUST
By: GreatBank Trust Company, in its
capacity as Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
BE AEROSPACE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Corporate Senior Vice
President & Chief Financial
Officer
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
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SCHEDULE A
[Escrow Agent Fees]
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