Exhibit 2.2
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STOCK PURCHASE AGREEMENT
BY AND BETWEEN
POLYVISION CORPORATION (THE "BUYER"),
ALLIANCE INTERNATIONAL GROUP, INC. ("AIG")
AND
THE STOCKHOLDERS OF AIG (THE "SELLERS")
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DATED AS OF SEPTEMBER 1, 1998
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS; SALE OF STOCK AND TERMS OF PAYMENT. . . . . . . . . . 1
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 The Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.3 Consideration. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.4 Escrowed Purchase Price. . . . . . . . . . . . . . . . . . . . . . 6
1.5 Time and Place of Closing. . . . . . . . . . . . . . . . . . . . . 6
1.6 Deliveries by the Sellers. . . . . . . . . . . . . . . . . . . . . 7
1.7 Deliveries by the Buyer. . . . . . . . . . . . . . . . . . . . . . 7
1.8 Designation of Sellers' Agent. . . . . . . . . . . . . . . . . . . 7
1.9 Indemnification of Sellers' Agent. . . . . . . . . . . . . . . . . 8
ARTICLE II REPRESENTATIONS AND WARRANTIES RELATING TO THE SELLERS AND
THE SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.1 Ownership. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.2 Execution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.3 Consents and Approvals; No Violation . . . . . . . . . . . . . . . 9
ARTICLE III REPRESENTATIONS AND WARRANTIES RELATING TO THE COMPANIES . . . . 9
3.1 Corporate Organization; Etc. . . . . . . . . . . . . . . . . . . . 9
3.2 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.3 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.4 Authority Relating to this Agreement . . . . . . . . . . . . . . . 10
3.5 Consents and Approvals; No Violations. . . . . . . . . . . . . . . 10
3.6 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . 11
3.7 Absence of Certain Changes . . . . . . . . . . . . . . . . . . . . 11
3.8 Compliance with Law. . . . . . . . . . . . . . . . . . . . . . . . 11
3.9 Contracts and Commitments. . . . . . . . . . . . . . . . . . . . . 12
3.10 No Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . 12
3.11 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.12 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.13 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.14 Brokers and Finders. . . . . . . . . . . . . . . . . . . . . . . . 14
3.15 Title to Properties. . . . . . . . . . . . . . . . . . . . . . . . 14
3.16 Intellectual Property. . . . . . . . . . . . . . . . . . . . . . . 15
3.17 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.18 Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . 15
3.19 Governmental Permits . . . . . . . . . . . . . . . . . . . . . . . 16
3.20 Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.21 Employees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.22 Employee Benefits. . . . . . . . . . . . . . . . . . . . . . . . . 17
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3.23 Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.24 Certain Business Relationships with AIG. . . . . . . . . . . . . . 18
3.25 Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE BUYER . . . . . . . . . . . 19
4.1 Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.2 Authority Relative to this Agreement . . . . . . . . . . . . . . . 19
4.3 Consents and Approvals; No Violation . . . . . . . . . . . . . . . 19
4.4 Acquisition of Stock for Investment. . . . . . . . . . . . . . . . 19
4.5 Financing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.6 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.7 Brokers and Finders. . . . . . . . . . . . . . . . . . . . . . . . 20
4.8 Projections. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE V COVENANTS OF THE PARTIES . . . . . . . . . . . . . . . . . . . . . 20
5.1 Conduct of the Business of AIG . . . . . . . . . . . . . . . . . . 20
5.2 Confidentiality Agreements . . . . . . . . . . . . . . . . . . . . 21
5.3 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . 21
5.4 Access and Information . . . . . . . . . . . . . . . . . . . . . . 22
5.5 HSR Act and Other Filings. . . . . . . . . . . . . . . . . . . . . 23
5.6 Public Announcements . . . . . . . . . . . . . . . . . . . . . . . 23
5.7 Discharge of Obligations . . . . . . . . . . . . . . . . . . . . . 23
5.8 Employee Matters . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.9 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.10 Disclosure Supplements . . . . . . . . . . . . . . . . . . . . . . 24
5.11 Certain Tax Matters. . . . . . . . . . . . . . . . . . . . . . . . 24
5.12 No Solicitation. . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.13 Qualifying Shares. . . . . . . . . . . . . . . . . . . . . . . . . 25
5.14 Notice of Developments . . . . . . . . . . . . . . . . . . . . . . 25
5.15 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.16 Non-Competition; Non-Solicitation. . . . . . . . . . . . . . . . . 25
ARTICLE VI CLOSING CONDITIONS. . . . . . . . . . . . . . . . . . . . . . . . 26
6.1 Conditions to the Obligations of the Sellers . . . . . . . . . . . 26
6.2 Conditions to the Obligations of the Buyer . . . . . . . . . . . . 27
ARTICLE VII TERMINATION AND ABANDONMENT. . . . . . . . . . . . . . . . . . . 29
7.1 Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.2 Procedure and Effect of Termination. . . . . . . . . . . . . . . . 29
7.3 Certain Payments Upon Termination. . . . . . . . . . . . . . . . . 30
ARTICLE VIII SURVIVAL AND INDEMNIFICATION. . . . . . . . . . . . . . . . . . 31
8.1 General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
8.2 Limitations on Certain Indemnity . . . . . . . . . . . . . . . . . 31
8.3 Claims for Indemnity . . . . . . . . . . . . . . . . . . . . . . . 33
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8.4 Right to Defend. . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE IX MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . . . . . 33
9.1 Amendment and Modification . . . . . . . . . . . . . . . . . . . . 33
9.2 Waiver of Compliance; Consents . . . . . . . . . . . . . . . . . . 34
9.3 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.4 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.5 Governing Law; Consent to Jurisdiction . . . . . . . . . . . . . . 35
9.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
9.7 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . 35
9.8 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 35
9.9 Facsimile Signature. . . . . . . . . . . . . . . . . . . . . . . . 35
LIST OF EXHIBITS
EXHIBIT A: Outstanding Indebtedness
EXHIBIT B: List of Sellers
EXHIBIT C: Financial Statements
EXHIBIT D: Debt Commitments
EXHIBIT E: Escrow Agreement
EXHIBIT F: Royalty Agreement
EXHIBIT G: Opinion of Sellers' Counsel
EXHIBIT H: Employment Agreement of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
LIST OF SCHEDULES
Section 3.2(a) Capitalization of the Companies
Section 3.2(b) Derivative Securities of AIG
Section 3.3(a) Subsidiaries
Section 3.3(b) Derivative Securities of the Subsidiaries
Section 3.5 Consents and Approvals
Section 3.7 Absence of Certain Changes
Section 3.8 Compliance with Law
Section 3.9(a) Contracts and Commitments
Section 3.9(b) Contract Defaults
Section 3.10 Undisclosed Liabilities
Section 3.11 Legal Defaults
Section 3.12(a) Litigation
Section 3.12(b) Orders
Section 3.13 Taxes
Section 3.15 Title to Properties
Section 3.16 Intellectual Property
Section 3.17 Insurance
Section 3.18 Environmental Matters
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Section 3.19 Governmental Permits
Section 3.20 Warranties
Section 3.21 Employees
Section 3.22 Employee Benefits
Section 3.23 Guarantees
Section 3.24 Certain Business Relationships
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STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made as of September 1, 1998, by and among PolyVision
Corporation, a New York corporation (the "Buyer"), Alliance International Group,
Inc., a Delaware corporation ("AIG"), and Wind Point Partners III, L.P., a
Delaware limited partnership ("Wind Point"), and the other stockholders of AIG
listed on the signature page hereto (together with Wind Point, individually, a
"Seller" and, collectively, the "Sellers").
RECITALS
A. The Sellers own all of the issued and outstanding common stock of
AIG; and
B. The Sellers desire to sell to the Buyer, and the Buyer desires to
purchase from the Sellers, all (and not less than all) of the issued and
outstanding common stock of AIG, on the terms and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, representations, warranties and agreements contained herein, and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; SALE OF STOCK AND TERMS OF PAYMENT
1.1 DEFINITIONS. The terms defined in this SECTION 1.1, whenever
used herein, shall have the following meanings for all purposes of this
Agreement.
"Actions" shall have the meaning set forth in Section 3.12 hereof.
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"Affiliated Group" means any affiliated group within the meaning of Code
Sec. 1504.
"AIG" means Alliance International Group, Inc. (formerly known as AIG
Holdings, Inc), a Delaware corporation.
"Alliance America" means Alliance America Corporation, a Georgia
corporation and wholly-owned Subsidiary of AIG.
"Alliance Europe" means Alliance Europe N.V., a Belgian corporation.
"Alliance Graphics" means Alliance Graphics, N.V., a Belgian
corporation.
"Alliance Pacific" means Alliance Pacific Ceramicsteel Ltd., a Hong Kong
corporation.
"Alliance Pentagon" means Alliance Pentagon A/S, a Danish corporation.
"Arrangements" shall have the meaning set forth in Section 3.19 hereof.
"Aubecq" means Emailleries de Blanc Misseron A. Aubecq S.A., a French
corporation.
"Basis" means any past or present fact, situation, condition, activity,
practice, plan, occurrence, failure to act or transaction that forms or could
form the basis for any specified consequence.
"Benefit Agreement" shall have the meaning set forth in Section 5.12
hereof.
"Business" means the businesses engaged in by the Companies on or prior
to the Closing Date, which consists of, among other things, in the United
States, Europe and Asia, (a) the manufacture and supply of porcelain on steel
materials to fabricators of marker boards and chalkboards, (b) the manufacture,
distribution and sale of porcelain on steel screen and non-screen printed
interior/exterior panels, (c) the manufacture, distribution and sale of
porcelain on steel applied through thick film technology for use in various
industrial applications, (d) the manufacture, distribution and sale of
continuous coil process ceramic steel products, and (e) the manufacture,
distribution and sale of ceramic steel projection screens.
"Closing Date" shall have the meaning set forth in Section 1.5 hereof
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the common stock of AIG, par value $.001 per share.
"Companies" means AIG, Alliance America and the Foreign Subsidiaries,
and "Company" means any of them.
"Confidential Information" means all confidential information and trade
secrets of the Companies including, without limitation, the identities, lists or
descriptions of any customers, referral sources or organizations; financial
statements, cost reports or other financial information; contract proposals or
bidding information; business plans and training and operations methods and
manuals; personnel records; fee structure; and management systems, policies or
procedures, including related forms and manuals.
"Controlled Group of Corporations" has the meaning set forth in Code
Sec. 1563.
"Debt Commitments" shall have the meaning set forth in Section 4.5
hereof.
"Deferred Intercompany Transaction" has the meaning set forth in Treas.
Reg. Section 1.1502-13.
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"Disclosure Schedule" means the Disclosure Schedule prepared by the
Seller and dated the date of this Agreement, providing disclosures as required
under Article III of this Agreement.
"Employee Benefit Plan" means any (a) nonqualified deferred compensation
or retirement plan or arrangement which is an Employee Pension Benefit Plan, (b)
qualified defined contribution retirement plan or arrangement which is an
Employee Pension Benefit Plan, (c) qualified defined benefit retirement plan or
arrangement which is an Employee Pension Benefit Plan (including any
Multiemployer Plan), or (d) Employee Welfare Benefit Plan or material fringe
benefit plan or program.
"Employee Pension Benefit Plan" has the meaning set forth in ERISA Sec.
3(2).
"Employee Welfare Benefit Plan" has the meaning set forth in ERISA Sec.
3(1).
"Encumbrance" means any lien, encumbrance, security interest, charge,
pledge or restriction on transfer of any nature whatsoever.
"Environmental and OSHA Requirements" shall mean any Legal Requirements
relating to Environmental Laws and Occupational Safety and Health Laws and all
Permits related thereto.
"Environmental Laws" shall mean any Legal Requirements relating to
protection or regulation of the environment or regulating or relating to the
emission, discharge, disposal, treatment, transportation, storage, release or
threatened release of Hazardous Materials into the environment, including
ambient air, surface water, ground water, land surface or subsurface strata, or
otherwise regulating or relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials,
and Orders, notices and demands issued, entered, promulgated or approved
thereunder.
"Equitable Exceptions" shall have the meaning set forth in Section 2.2
hereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Agent" shall mean the Escrow Agent under the Escrow Agreement or
any other Escrow Agent or Agents appointed pursuant to such Agreement.
"Escrow Agreement" shall mean the Escrow Agreement to be entered into
among the Buyer, the Sellers and the Escrow Agent.
"Excess Loss Account" has the meaning set forth in Treas. Reg. Section
1.1502-19.
"Fiduciary" has the meaning set forth in ERISA Sec. 3(21).
"Financing" shall have the meaning set forth in Section 4.5 hereof.
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"Foreign Subsidiaries" means Alliance Pacific, Alliance Europe and its
Subsidiaries, including Alliance Graphics, Alliance Pentagon and Aubecq.
"GAAP" shall have the meaning set forth in Section 3.6 hereof.
"Governmental Entity" shall have the meaning set forth in Section 3.5
hereof.
"Hazardous Materials" means any pollutant, contaminant, toxic substance,
hazardous substance, hazardous material, hazardous chemical or hazardous waste
defined, listed, regulated or qualifying as such in (or for the purposes of) any
Environmental Law.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended, and all rules and regulations promulgated thereunder.
"Insurance Policies" shall have the meaning set forth in Section 3.17
hereof.
"Intellectual Property" means all present and future rights in patents,
copyrights, trademarks, service marks, trade names, logos, trade secrets,
computer software, technical know-how and applications and registration therefor
used in connection with the Business, including without limitation, the
Intellectual Property listed in SCHEDULE 3.16 to the Disclosure Schedule.
"Key Employee" shall mean each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. Still.
"Legal Requirements" means all foreign, federal, state and local
statutes, laws, decrees, ordinances, codes, rules and regulations or Orders of
any Governmental Entity.
"Liability" means any known liability (whether absolute or contingent,
whether liquidated or unliquidated, and whether due or to become due), including
any liability for Taxes.
"Material Adverse Effect" shall be deemed to mean a material adverse
impact on (a) the business, operations, assets, liabilities or condition
(financial or otherwise) of the Companies taken as a whole, (b) the ability of
AIG or the Sellers to perform their respective obligations in any material
respect under this Agreement or (c) the validity or enforceability of this
Agreement in any material respect. As to all of the matters qualified in this
Agreement by reference to a Material Adverse Effect (whether stated in one or
more than one Section hereof), the effects thereof shall be considered
cumulatively and in the aggregate in determining materiality.
"Most Recent Balance Sheet" means the Companies' consolidated and
consolidating balance sheet as of the date of the Most Recent Financial
Statements.
"Most Recent Financial Statements" has the meaning set forth in SECTION
3.6.
"Multiemployer Plan" has the meaning set forth in ERISA Sec. 3(37) or
ERISA Sec. 4001(a).
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"Occupational Safety and Health Law" means the Occupational Safety and
Health Act of 1970 and any other Legal Requirements or Orders regulating,
relating to or imposing liability or standards of conduct concerning employee
health and/or safety, as amended.
"Order" shall mean any order, writ, injunction, decree, judgment, award,
determination or written direction of any court, arbitrator or Governmental
Entity.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency) since January 1, 1998.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permits" has the meaning set forth in Section 3.19.
"Person" means any individual, corporation, limited liability company,
partnership, trust, government, governmental agency or authority, or other
entity.
"Prohibited Transaction" has the meaning set forth in ERISA Sec. 406 and
Code Sec. 4975.
"Purchase Price" shall have the meaning set forth in Section 1.3 hereof.
"Reportable Event" has the meaning set forth in ERISA Sec. 4043.
"Sellers' Knowledge" means the actual knowledge as of the date hereof of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and, following the reasonable
investigation of the records of the Companies, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
Still, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇.
"Royalty Agreement" shall mean the Royalty Agreement to be entered into
between AIG and the Sellers.
"Shares" shall have the meaning set forth in Section 1.2 hereof.
"Subsidiary" of a Person means a corporation of which such Person owns,
directly or indirectly, 50% or more of the outstanding voting stock.
"Tax" means any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, stamp, customs duties,
franchise, withholding, social security (or similar), real property, personal
property, sales, use, transfer, value added or other tax including any interest,
penalty or addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for refund, or
information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
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Additional definitions are set forth within this Agreement and shall
have the meanings given them in this Agreement.
1.2 THE SALE. Upon the terms and subject to the conditions contained
in this Agreement, at the Closing (as defined in Section 1.5 hereof), the
Sellers will sell, assign, transfer and deliver to the Buyer, and the Buyer will
accept and purchase from the Sellers, an aggregate of 86,500 shares of Class A
Common Stock, par value $.01 per share, and 82,000 shares of Class B Common
Stock, par value $.01 per share, of AIG (collectively, the "Shares"),
constituting all of the issued and outstanding capital stock of AIG on the
Closing Date. In addition, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall transfer the single shares of
Alliance Europe and Alliance Graphics held by him, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇ shall transfer the shares of Aubecq held by them (such shares, the
"Qualifying Shares"), to the Buyer or the Buyer's designee(s) at the Closing for
a consideration of $1.00 per Qualifying Share.
1.3 CONSIDERATION. Upon the terms and subject to the conditions
contained in this Agreement, and in consideration of the aforesaid sale,
assignment, transfer and delivery of the Shares, the Buyer will pay to the
Seller the aggregate sum (the "Purchase Price"), of (a) $75,000,000 minus (i)
the principal and interest and all other charges of indebtedness set forth on
EXHIBIT A attached hereto other than the prepayment premium to The Northwestern
Mutual Life Insurance Company ("NML") plus (ii) one half of the prepayment
premium on the indebtedness owed to NML (up to a maximum payment by the Buyer of
$800,000) (the "Cash Portion"), plus (b) all amounts payable by AIG from time to
time pursuant to the Royalty Agreement (the "Deferred Portion"). The Cash
Portion shall be payable by the Buyer at the Closing by (i) delivering to and
depositing with the Escrow Agent under the Escrow Agreement, on behalf of the
Sellers, $2,000,000 pursuant to Section 1.4 and (ii) paying to the Sellers the
remaining Cash Portion in cash, by wire transfer of immediately available funds
to an account designated by the Sellers' Agent (as such term is defined in
Section 1.8), for the benefit of the Sellers, in writing to the Buyer. The
Deferred Portion shall be payable in accordance with the Royalty Agreement.
1.4 ESCROWED PURCHASE PRICE. At the Closing, the Buyer shall deliver
to and deposit with the Escrow Agent under the Escrow Agreement, $2,000,000 in
cash (the "Escrow Deposit"), by wire transfer of immediately available funds to
such account designated by such Escrow Agent in writing to the Buyer.
1.5 TIME AND PLACE OF CLOSING. The closing of the transactions
contemplated in Sections 1.2, 1.3 and 1.4 of this Agreement (the "Closing") will
take place at the offices of ▇▇▇▇▇▇▇▇▇ Traurig ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇,
The MetLife Building, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at
10:00 a.m. on or before October 6, 1998, or at such other place or time as the
parties may agree. The date and time at which the Closing actually occurs is
hereinafter referred to as the "Closing Date."
1.6 DELIVERIES BY THE SELLERS. At the Closing, the Sellers will
deliver the following to the Buyer:
(a) stock certificates representing all of the Shares, duly
endorsed for transfer or accompanied by stock powers duly executed in blank, and
any other documents that are
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necessary to transfer to the Buyer good and valid title to all of the Shares
(transfer of the Shares of any Foreign Subsidiaries which are not certificated
shall be effectuated and evidenced by the recording of such transfer of
ownership on the respective shareholders' registers of Alliance Europe, Alliance
Graphics and Aubecq);
(b) the certificate contemplated by Section 6.2(e); and
(c) all other documents, instruments and writings reasonably
requested by the Buyer or required hereby.
1.7 DELIVERIES BY THE BUYER. At the Closing, the Buyer will deliver
the following to the Sellers:
(a) the Purchase Price to be paid to the Sellers;
(b) the certificate contemplated by Section 6.1(e); and
(c) all other documents, instruments and writings reasonably
requested by the Sellers or required hereby.
1.8 DESIGNATION OF SELLERS' AGENT. Each Seller hereby irrevocably
appoints Wind Point (the "Sellers' Agent") as the true and lawful agent and
attorney-in-fact of such Seller with full power of substitution (a) to receive
and act upon all notices and advices required or permitted under this Agreement,
the Escrow Agreement and the Royalty Agreement, including, without limitation,
all notices pursuant to Section 9.3 hereunder; (b) to give all notices and
advices required or permitted hereunder or thereunder; (c) to deliver or
authorize the delivery of the Shares to be sold by such Seller pursuant to this
Agreement, with all accompanying evidences of transfer and authenticity, to the
Buyer in accordance with the terms of this Agreement; (d) to accept from Buyer
on behalf of the Sellers the entire Purchase Price paid to the Sellers for all
of the Shares, to direct the payment of expenses contemplated to be paid by the
Sellers and to remit the net proceeds to each of the Sellers in accordance with
each such Seller's pro rata portion of the Purchase Price pursuant to this
Agreement, the Escrow Agreement and the Royalty Agreement; (e) to present
certificates representing such Shares for transfer on the books of AIG; and (f)
unless otherwise provided herein, to take all such other actions and execute
such other documents, agreements, certificates and instruments on behalf of such
Seller as may be necessary or desirable in order to consummate the sale of the
Shares to be sold by such Seller pursuant to this Agreement, the Escrow
Agreement and the Royalty Agreement. Notwithstanding the foregoing, the
Sellers' Agent may not, on behalf of the Sellers, agree to any waiver or
amendment to this Agreement without the prior written consent of the Sellers
holding a majority of the Shares. This power of attorney is a power coupled
with an interest, and each such Seller declares that it is irrevocable and that
it shall survive the death, disability, incapacity or incompetency of such
Seller and in all other circumstances. The Buyer may rely on any action or
document of Wind Point taken or executed pursuant to this power of attorney.
1.9 INDEMNIFICATION OF SELLERS' AGENT. Each Seller shall reimburse
and indemnify the Sellers' Agent to the fullest extent permitted, in proportion
to such Seller's respective interest in
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the Shares being purchased by the Buyer, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including counsel fees and disbursements) or disbursements of
any kind or nature whatsoever (including all expenses) which may be imposed on,
incurred by or asserted against the Sellers' Agent in performing its duties
hereunder or in any way relating to or arising out of this Agreement, provided
that no Seller shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Sellers' Agent's gross negligence or willful
misconduct.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
RELATING TO THE SELLERS AND THE SHARES
Each Seller hereby represents and warrants to the Buyer with respect to
itself and its Shares as follows:
2.1 OWNERSHIP. EXHIBIT B hereto contains a true and complete list of
the names and addresses of the holders of record of all of the Shares, and the
number of Shares held by each such Seller. All of the Shares are owned
beneficially and of record by such Seller. Other than this Agreement, there is
no subscription, option, warrant, call, right, agreement or commitment relating
to the issuance, sale, delivery or transfer by such Seller (including any right
of conversion or exchange under any outstanding security or other instrument) of
such Shares. Upon consummation of the transactions contemplated hereby, the
Buyer will acquire good and valid title to all of the Shares, free and clear of
all Encumbrances, options, warrants or other rights.
2.2 EXECUTION. This Agreement has been duly and validly executed and
delivered by such Seller and constitutes a valid and binding agreement of such
Seller, enforceable against such Seller in accordance with its terms, except
that (a) such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium (whether general or specific) or other similar laws
now or hereafter in effect relating to creditors' rights generally and (b) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought (collectively, the
"Equitable Exceptions"). Such Seller has full power and authority to execute and
deliver this Agreement and to perform his or its obligations hereunder.
2.3 CONSENTS AND APPROVALS; NO VIOLATION. Except for consents under
the HSR Act and a possible competition filing in Belgium, there is no
requirement applicable to such Seller to make any filing with, or to obtain any
Permit of, any Governmental Entity as a condition to the lawful consummation by
such Seller of the sale of the Shares pursuant to this Agreement, other than any
such requirement that is applicable to such Seller as a result of the specific
legal or regulatory status of the Buyer or as a result of any other facts that
specifically relate to the business or activities in which the Buyer is or
proposes to be engaged (other than the Business). Neither the execution and
delivery of this Agreement by such Seller nor the sale by such Seller
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of the Shares pursuant to this Agreement will (a) conflict with, violate or
result in a default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of the
Certificate of Incorporation or By-laws of such Seller if it is a corporation or
of the Agreement of Limited Partnership of such Seller if it is a partnership,
or any agreement, lease or other instrument or obligation to which such Seller
is a party, except for such defaults (or rights of termination, cancellation or
acceleration) as to which requisite waivers or consents have been or shall prior
to the Closing be obtained, or (b) violate any Order applicable to such Seller
or any of such Seller's assets, excluding from the foregoing clauses (a) and (b)
such defaults, rights and violations which, in the aggregate, would not have a
material adverse effect on the ability of such Seller to consummate the
transactions contemplated by this Agreement and such defaults, rights and
violations which would occur as a result of the specific legal or regulatory
status of the Buyer or as a result of any other facts that specifically relate
to the business or activities in which the Buyer is or proposes to be engaged
(other than the Business).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
RELATING TO THE COMPANIES
Each of the Sellers hereby jointly and severally, subject to Section
8.1(c) hereof, further represents and warrants to the Buyer as follows:
3.1 CORPORATE ORGANIZATION; ETC. Each of the Companies is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and has all requisite corporate power
and authority to conduct its business as it is now being conducted and to own,
lease and operate its properties and assets, except where the failure to be so
organized, existing and in good standing or to have such power or authority is
not, in the aggregate, reasonably likely to have a Material Adverse Effect. Each
of the Companies is qualified or licensed to do business as a foreign
corporation and is in good standing in each jurisdiction in which ownership of
property or the conduct of its business requires such qualification or license,
except where the failure to be so qualified or licensed is not reasonably likely
to have a Material Adverse Effect. True and complete copies of the Certificate
of Incorporation and By-laws (or other comparable governing documents) of AIG,
Alliance America and each of the Foreign Subsidiaries, in each case as presently
in effect, have previously been delivered to the Buyer.
3.2 CAPITALIZATION. The capitalization of each of the Companies is
set forth on SECTION 3.2(A) of the Disclosure Schedule. Immediately prior to or
simultaneously with the Closing, all shares of capital stock of AIG other than
the Shares shall be canceled or redeemed. All of the issued and outstanding
shares of capital stock of the Companies are duly authorized, validly issued,
fully paid and nonassessable and free of any preemptive rights. SECTION 3.2(B)
of the Disclosure Schedule sets forth as of the date of this Agreement all
outstanding (a) securities convertible into or exchangeable for the capital
stock of AIG, (b) options, warrants or other rights to purchase or subscribe for
capital stock of AIG or (c) contracts, commitments, agreements,
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understandings or arrangements of any kind relating to the issuance of any
capital stock of AIG, any such convertible or exchangeable securities or any
such options, warrants or rights, pursuant to which, in any of the foregoing
cases, AIG is subject or bound. Immediately prior to the Closing, all such
securities, contracts and other rights referred to in the previous sentence
shall have been canceled and Buyer will upon Closing, directly or indirectly, be
the owner of the capital stock of all of the Companies free and clear of all
Encumbrances, options, warrants or other rights. There are no voting trusts,
proxies, or any other agreements or understandings with respect to the voting of
the capital stock of any Company.
3.3 SUBSIDIARIES. All of the Subsidiaries of AIG are listed in
SECTION 3.3(A) of the Disclosure Schedule, together with their jurisdiction of
incorporation or organization and the percentage interest held directly or
indirectly by AIG. Except as set forth in SECTION 3.3(A) of the Disclosure
Schedule, all issued and outstanding shares of capital stock of such
Subsidiaries are validly issued, fully paid and nonassessable, and are owned
free and clear of all Encumbrances. Except as set forth in SECTION 3.3(B) of the
Disclosure Schedule, as of the date of this Agreement, there are no outstanding
(a) securities convertible into or exchangeable for the capital stock of any of
such Subsidiaries, (b) options, warrants or other rights to purchase or
subscribe for capital stock of any of such Subsidiaries or (c) contracts,
commitments, agreements, understandings or arrangements of any kind relating to
the issuance of any capital stock of any of such Subsidiaries, any such
convertible or exchangeable securities or any such options, warrants or rights
pursuant to which, in any of the foregoing cases, any such Subsidiary is bound.
3.4 AUTHORITY RELATING TO THIS AGREEMENT. No corporate authorization
or other corporate proceedings are required on the part of any of the Companies
in connection with the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
3.5 CONSENTS AND APPROVALS; NO VIOLATIONS. Except as set forth in
SECTION 3.5 of the Disclosure Schedule, neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby will
(a) violate any provision of the Certificate of Incorporation or By-laws (or
other comparable governing documents) of any of the Companies, (b) require any
Permit of, or filing with or notification to, any governmental or regulatory
authority, agency or commission, including courts of competent jurisdiction,
domestic or foreign (a "Governmental Entity"), except for (i) such filings as
may be required as a result of the specific legal or regulatory status of the
Buyer, or as a result of any other facts that specifically relate to the
business or activities in which the Buyer is or proposes to be engaged (other
than the Business), (ii) non-material Permits, filings or notifications, (c)
result in a material violation or a breach of, or constitute (with or without
due notice or lapse of time or both) a material default (or give rise to any
right of termination, cancellation or acceleration or any obligation to repay)
under, any of the terms, conditions or provisions of any Contracts to which any
of the Companies is a party or by which any of the Companies may be bound, or
with respect to which requisite waivers or consents have been or shall prior to
the Closing be obtained or (d) violate in any material respect any applicable
Legal Requirements or Orders of any Governmental Entity.
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3.6 FINANCIAL STATEMENTS. Attached hereto as EXHIBIT C are the
following financial statements (collectively, the "Financial Statements"): (i)
audited consolidated and consolidating balance sheets, consolidated statements
of income, consolidated statements of retained earnings and consolidated
statements of cash flows of AIG as of and for the fiscal years ended December
31, 1994, December 31, 1995, December 31, 1996 and December 31, 1997, in each
case with related footnotes (collectively, the "Historical Financial
Statements"); and (ii) unaudited consolidated and consolidating balance sheet
and consolidated and consolidating statement of income for the six months ended
June 30, 1998 of AIG ("Most Recent Financial Statements"). The Historical
Financial Statements fairly present in all material respects the consolidated
financial position, operations and cash flows of AIG, as of the dates and for
the periods presented therein in conformity with United States generally
accepted accounting principles ("GAAP") applied on a consistent basis during the
periods involved, except as otherwise noted therein. The Most Recent Financial
Statements fairly present in all material respects the financial position and
operations of AIG as of the dates and for the periods presented therein, subject
to normal year-end adjustment and absence of footnotes and other presentation
items.
3.7 ABSENCE OF CERTAIN CHANGES. Except as set forth in SECTION 3.7
of the Disclosure Schedule, since June 30, 1998, none of the Companies has (a)
suffered any material change in its business, operations or financial position,
(b) conducted its business in any material respect not in the ordinary and usual
course consistent with past practice, (c) except in the Ordinary Course of
Business and consistent with past practice, (i) incurred any non-working capital
or long-term indebtedness for borrowed money or issued any debt securities, or
(ii) assumed, guaranteed or endorsed the obligations of any other Person except
for obligations of the Subsidiaries of AIG, (d) except in the Ordinary Course of
Business consistent with past practice, (i) sold, transferred or otherwise
disposed of any property or assets having an aggregate fair market value in
excess of $100,000, or (ii) mortgaged or encumbered any of its material property
or assets. Except as set forth in SECTION 3.7 of the Disclosure Schedule, since
June 30, 1998, AIG has not paid any dividend or made any distribution to its
shareholders or Affiliates of its shareholders.
3.8 COMPLIANCE WITH LAW. Except as set forth in SECTION 3.8 of the
Disclosure Schedule, as of the date of this Agreement:
(a) The businesses of the Companies are not being conducted
in violation of any Legal Requirements or any applicable Order of any
Governmental Entity, except where any such violation would not have a Material
Adverse Effect.
(b) No written charge, complaint, action, suit, proceeding,
hearing, investigation, claim, demand, or notice has been filed or commenced
against any Company which is currently pending and alleges any failure to comply
with any Legal Requirements.
(c) Each Company has filed in a timely manner all reports,
documents and other materials it was required to file (and, to Sellers'
Knowledge, the information contained therein was correct and complete in all
material respects) under all applicable Legal Requirements.
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(d) Each Company has possession of all records and documents
it was required to retain under all applicable Legal Requirements.
3.9 CONTRACTS AND COMMITMENTS. SECTION 3.9(A) of the Disclosure
Schedule sets forth a list of all material contracts, agreements, Benefit
Agreements, Insurance Policies, real and personal property leases involving
annual payments in excess of $100,000, and indentures, mortgages and notes or
other instruments evidencing indebtedness (contingent or otherwise), in each
case whether written or, to Sellers' Knowledge, oral (collectively, the
"Contracts"), to which any of the Companies is a party. Except as set forth in
SECTION 3.9(B) of the Disclosure Schedule, as of the date of this Agreement,
none of the Companies are in default under any of the Contracts, except where
any such default(s) would not have a Material Adverse Effect, or will otherwise
be subject to cancellation, modification or termination or become subject to a
default or event of default upon a change of control of any of the Companies.
The Company has delivered or made available to the Buyer a correct and complete
copy of each written arrangement and a detailed written summary of each oral
arrangement listed in SECTION 3.9(A) of the Disclosure Schedule (each, an
"Arrangement" and collectively, "Arrangements"). With respect to each material
contract or agreement so listed: (A) the Arrangement is legal, valid, binding,
enforceable, and in full force and effect in all material respects, except for
the Equitable Exceptions; (B) the Arrangement will continue to be legal, valid,
binding, enforceable and in full force and effect on identical terms immediately
following the Closing, except for the Equitable Exceptions; (C) to Sellers'
Knowledge, no other party thereto is in breach or default in any material
respect, and no event has occurred which with notice or lapse of time would
constitute a breach or default or permit termination, modification or
acceleration, under the Arrangement; and (D) no party has repudiated in writing
any provision of the Arrangement.
3.10 NO UNDISCLOSED LIABILITIES. Except as and to the extent set
forth in the Most Recent Balance Sheet, AIG and its subsidiaries did not have,
at June 30, 1998, any Liabilities required by GAAP to be reflected on a
consolidated balance sheet of AIG. Except as and to the extent set forth in
SECTION 3.10 of the Disclosure Schedule, since June 30, 1998, none of the
Companies has incurred any Liabilities required by GAAP to be reflected on a
consolidated balance sheet of AIG, except Liabilities incurred in the Ordinary
Course of Business.
3.11 NO DEFAULT. Except as set forth in SECTION 3.11 of the
Disclosure Schedule, none of the Companies is in default or violation (and no
event has occurred which with notice or the lapse of time or both would
constitute such a default or violation) of any term, condition or provision of
(i) its Certificate of Incorporation or By-laws (or other comparable governing
documents) or (ii) any Legal Requirements or any Order of any Governmental
Entity applicable to such Company (except where any such default(s) or
violation(s) would not have a Material Adverse Effect).
3.12 LITIGATION. Except as set forth in SECTION 3.12(A) of the
Disclosure Schedule, as of the date of this Agreement, there is no complaint,
action, suit, proceeding, hearing or investigation (collectively, "Actions")
pending, or, to Sellers' Knowledge, threatened, against any of the Companies
before any Governmental Entity. Except as set forth in SECTION 3.12(B) of the
Disclosure Schedule, as of the date of this Agreement, none of the Companies has
received
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notice that it is subject to any outstanding material Order of any Governmental
Entity. Except as set forth in SECTION 3.12(A) AND (B) of the Disclosure
Schedule, to Seller's Knowledge, there is no reason to believe that any such
Actions may be brought or threatened against any of the Companies.
3.13 TAXES.
(a) Each Company has filed all material Tax Returns that it
was required to file. All such Tax Returns were correct and complete in all
material respects. Except for Taxes not yet due and payable, all Taxes shown on
any Tax Return have been paid. Other than as set forth in SECTION 3.13 of the
Disclosure Schedule, no Company is currently the beneficiary of any extension of
time within which to file any Tax Return. To Sellers' Knowledge, no claim has
ever been made by an authority in a jurisdiction where a Company does not file
Tax Returns that it is or may be subject to taxation by that jurisdiction. To
Seller's Knowledge there are no material Encumbrances on any of the assets of
any Company that arose in connection with any failure (or alleged failure) to
pay any Tax. AIG and Alliance America have been affiliated corporations filing
consolidated federal income tax returns since 1988.
(b) Each Company has withheld and paid all material Taxes
required to have been withheld and paid in connection with amounts paid or owing
to any employee, creditor, independent contractor, or other third party.
(c) To Sellers' Knowledge, no authority is expected to assess
any additional Taxes for any period for which Tax Returns have been filed. There
is no dispute, audit or claim concerning any Tax Liability of the Companies
either (i) claimed or raised by any authority in writing or, (ii) to Seller's
Knowledge, based upon personal contact with any agent of such authority.
(d) No Company has waived any statute of limitations in
respect of Taxes or agreed to any extension of time with respect to a Tax
assessment or deficiency.
(e) No Company has filed a consent under Code Sec. 341(f)
concerning collapsible corporations. No Company has been a United States real
property holding corporation within the meaning of Code Sec. 897(c)(2) during
the applicable period specified in Code Sec. 897(c)(1)(A)(11). No Company is a
party to any Tax allocation or sharing agreement. No Company has ever been (nor
does it have any Liability for unpaid Taxes because it once was) a member of an
Affiliated Group other than an Affiliated Group comprised solely of one or more
of the Companies.
(f) The unpaid material Taxes of the Companies do not exceed
the reserve for Tax Liability set forth on the face of the Balance Sheet
contained in the Most Recent Financial Statements (rather than in any notes
thereto) as adjusted for the passage of time through the Closing Date in
accordance with the past custom and practice of AIG in filing its Tax Returns.
3.14 BROKERS AND FINDERS. None of the Companies or the
Sellers or any of their respective officers, directors or employees has employed
any broker or finder or incurred any
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liability for any investment banking fees, brokerage fees, commissions or
finders' fees in connection with the transactions contemplated by this
Agreement.
3.15 TITLE TO PROPERTIES. Except as set forth in SECTION 3.15 of the
Disclosure Schedule, each of the Companies has good title to all of the material
assets and properties which it owns and which are reflected on the Most Recent
Balance Sheet (except for assets and properties sold, consumed or otherwise
disposed of by the Companies in the Ordinary Course of Business since the date
of the Most Recent Balance Sheet), and such assets and properties are owned free
and clear of all Encumbrances, except for (a) Encumbrances listed in SECTION
3.15 of the Disclosure Schedule, (b) liens for current Taxes not yet due and
payable or for Taxes the validity of which is being contested in good faith, (c)
Encumbrances to secure indebtedness reflected on the Most Recent Balance Sheet
or indebtedness incurred in the Ordinary Course of Business and consistent with
past practice after the date thereof (all of which indebtedness is detailed in
SECTION 3.15 of the Disclosure Schedule), (d) mechanic's, materialmen's and
other encumbrances which have arisen in the Ordinary Course of Business, and (e)
other liens and Encumbrances which do not, individually or in the aggregate,
materially detract from the value of the affected assets or the use of such
assets in the Business. Each Company owns or leases all tangible assets
necessary for the conduct of its businesses as presently conducted and as
presently proposed to be conducted. Each Company does not own nor does it have
any interest in any real property or improvements thereon (other than the leases
disclosed in SECTION 3.15 of the Disclosure Schedule, and the leasehold
improvements relating to the same) nor does any Company have any options,
agreements or contracts under which it has the right or obligation to acquire
any interest in any real property or improvements (other than as disclosed in
SECTION 3.15 of the Disclosure Schedule). Except as set forth in SCHEDULE 3.15
of the Disclosure Schedule, to Sellers' Knowledge there are no covenants,
easements, rights-of-way, or regulations of record which impair the uses of any
Company's properties for which they are now operated in the Business.
3.16 INTELLECTUAL PROPERTY. Except as set forth in SECTION 3.16 of
the Disclosure Schedule, (i) the Companies own or possess adequate licenses or
other valid rights to use all Intellectual Property which are material to the
conduct of the business of the Companies taken as a whole, (ii) as of the date
of this Agreement, the validity of the Intellectual Property and the title
thereto of the Companies are not being questioned in any litigation to which any
Company is a party, nor to Sellers' Knowledge, is any such litigation
threatened, (iii) as of the date of this Agreement, to Sellers' Knowledge, the
conduct of the business of the Companies as now conducted does not conflict with
any material Intellectual Property rights of others, and (iv) each Company has a
valid and enforceable license or lease (as against the licensor or lessor) to
use or to license all such material Intellectual Property utilized by it,
without the payment of any royalty or similar payment. All material Intellectual
Property of the Companies is listed on SECTION 3.16 of the Disclosure Schedule.
3.17 INSURANCE. Attached hereto as SECTION 3.17 of the Disclosure
Schedule is a list of all policies of fire, liability, or other forms of
insurance and all fidelity bonds held by or applicable to the Business within
the past seven years (the "Insurance Policies"). With respect to each Insurance
Policy for which a claim is currently pending, or under which a claim may still
be made, to Sellers' Knowledge after due inquiry: (a) no notice of termination
and/or cancellation
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has been received by any Company; (b) neither AIG nor any other party to the
Insurance Policy is in breach or default (including with respect to the payment
of premiums or the giving of notices), and no event has occurred which, with
notice or the lapse of time, would constitute such a breach or default or permit
termination, modification (including retroactive or prospective upward
adjustment of premiums), or acceleration, under the Insurance Policy; and (c) no
party to the policy has repudiated any provision thereof. SECTION 3.17 of the
Disclosure Schedule describes any self-insurance arrangements affecting the
Companies. Except as set forth in SECTION 3.17 of the Disclosure Schedule,
there are no disputes with insurers and there are no pending Actions as to which
the insurers have denied liability or are defending under a reservation of
rights, and, to Sellers' Knowledge, there exist no claims under such insurance
that have not been properly filed.
3.18 ENVIRONMENTAL MATTERS.
(a) Except as set forth in SECTION 3.18 of the Disclosure
Schedule, each of the Companies and each property, operation and facility that
any Company may "own," "operate" or "control" (as each such term is defined by
applicable Environmental Laws) with respect to the Business ("Real Property"):
(i) is in compliance with all Environmental and OSHA
Requirements;
(ii) is not subject to any pending or, to Sellers'
Knowledge, threatened judicial or administrative proceeding alleging the
violation of or liability under any Environmental and OSHA Requirements;
(iii) has not filed any notice under or relating to any
Environmental and OSHA Requirements indicating or reporting any past or present
spillage, disposal or release into the environment of any Hazardous Material;
(iv) has obtained and is in compliance with all
Permits, Orders or other authorizations required under any Environmental and
OSHA Requirements; and
(v) does not manufacture, maintain, treat, store,
process, utilize, transport or dispose of any Hazardous Materials, other than
those listed in SECTION 3.18 of the Disclosure Schedule, which, unless otherwise
noted in such SECTION 3.18, are used or maintained in accordance with all
applicable Legal Requirements.
(b) All underground storage tanks ("UST's") located at or
beneath any Real Property are described in the Reports listed in SECTION 3.18 of
the Disclosure Schedule, and such UST's are in compliance with all applicable
Legal Requirements.
(c) All written notices received by each Company from a
governmental, administrative or judicial agency or authority or third party
regarding any material investigation or liability of the Companies under
Environmental and OSHA Requirements or Section 104 of CERCLA are described in
the Reports listed in SECTION 3.18 of the Disclosure Schedule.
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3.19 GOVERNMENTAL PERMITS. All permits, authorizations, consents,
licenses, qualifications, approvals or filings (collectively, "Permits")
required to conduct the Business are set forth in SECTION 3.19 of the Disclosure
Schedule, all of which have been obtained by the Companies, and such Permits are
valid and in full force and effect. The Companies are not in violation of any
such Permits set forth in SECTION 3.19 of the Disclosure Schedule, except where
any violation(s) would not have a Material Adverse Effect. No additional
material Permit is required from any Governmental Entity in connection with the
conduct of the Business.
3.20 WARRANTIES. Except as disclosed in SECTION 3.20 of the
Disclosure Schedule, there is no outstanding claim, action or investigation
against any Company and, to Sellers' Knowledge, no threatened claim, action or
investigation against any Company for product liability to any Person or for
breach of product warranty liability to any customer of the Business.
3.21 EMPLOYEES. SECTION 3.21 of the Disclosure Schedule lists all
current employees and officers of the Companies with an annual salary in excess
of $100,000 on the date hereof, together with the amount of the current annual
salaries and total compensation paid or due for services to each such employee
or officer and a full and complete description of any commitments to such
employees and officers with respect to compensation payable thereafter. Except
as set forth in SECTION 3.21 of the Disclosure Schedule, no Company is a party
to or bound by any collective bargaining agreement, nor has it experienced any
strikes or claims in writing of unfair labor practices. To Sellers' Knowledge,
no Company has committed any unfair labor practice. To Sellers' Knowledge,
except as set forth in SECTION 3.21 of the Disclosure Schedule, no
organizational effort is presently being made or threatened by or on behalf of
any labor union with respect to the employees of the Companies. Except as
disclosed on SECTION 3.21 of the Disclosure Schedule, each Company is in
material compliance with all Legal Requirements respecting employment and
employment practices, terms and conditions of employment, and wages and hours.
Except as disclosed on SECTION 3.21 of the Disclosure Schedule, there are no
severance contracts with any employees of the Companies, whether upon a change
of control or otherwise. The Sellers understand that Buyer may make changes in
the management personnel of the Companies, and makes no representations or
warranties with respect to the advisability or the merit of any such changes,
including the hiring of new employees. SECTION 3.21 of the Disclosure Schedule
further sets forth (a) as of June 30, 1998, all employment, severance,
termination and retirement agreements and arrangements, and (b) all
indemnification and/or exculpation agreements.
3.22 EMPLOYEE BENEFITS. SECTION 3.22 of the Disclosure Schedule lists
all Employee Benefit Plans that any Company or any member of any Controlled
Group of Corporations sponsors or maintains or to which any Company or any
member of any Controlled Group of Corporations contributes, or is obligated to
contribute, for the benefit of any current or former employee of any Company.
(a) Except as set forth in SECTION 3.22 of the Disclosure
Schedule, each Employee Benefit Plan (and each related trust or insurance
contract) complies in form and in operation in all material respects with the
applicable requirements of ERISA and the Code.
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(b) Except as set forth in SECTION 3.22 of the Disclosure
Schedule, all required reports and descriptions (including Forms 5500 Annual
Reports, Summary Annual Reports, PBGC-1's and Summary Plan Descriptions) have
been filed or distributed appropriately with respect to each Employee Benefit
Plan. Except as set forth in SECTION 3.22 of the Disclosure Schedule, the
requirements of Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the
Code and all similar state or local laws and ordinances have been met with
respect to each Employee Welfare Benefit Plan.
(c) All contributions (including all employer contributions
and employee salary reduction contributions) which are due as of the date of
this Agreement have been paid to each Employee Pension Benefit Plan and all
contributions for any complete or partial period ending on or before the Closing
Date which are not yet due have been paid to each Employee Pension Benefit Plan
or accrued in accordance with the past custom and practice of each of the
Companies. All premiums or other payments for all complete or partial periods
ending on or before the Closing Date have been paid with respect to each
Employee Welfare Benefit Plan.
(d) Except as set forth in SECTION 3.22 of the Disclosure
Schedule, each Employee Pension Benefit Plan which is intended to be qualified
under Section 401(a) of the Code has received a favorable determination letter
from the Internal Revenue Service as to its qualified status, and nothing has
occurred which could reasonably be expected to jeopardize such qualified status.
(e) Except as set forth in SECTION 3.22 of the Disclosure
Schedule, there have been no Prohibited Transactions with respect to any
Employee Benefit Plan. Except as set forth in SECTION 3.22 of the Disclosure
Schedule, no Fiduciary has any Liability for breach of fiduciary duty or any
other failure to act or comply in connection with the administration or
investment of the assets of any Employee Benefit Plans. Except as set forth in
SECTION 3.22 of the Disclosure Schedule, no charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand with respect to the
administration or the investment of the assets of any Employee Benefit Plan
(other than routine claims for benefits) is pending or, to Sellers' Knowledge,
threatened.
(f) SECTION 3.22 of the Disclosure Schedule sets forth
correct and complete copies of (i) the plan documents and summary plan
descriptions, (ii) the most recent determination letter received from the
Internal Revenue Service, (iii) the most recent Form 5500 Annual Report, and
(iv) all related trust agreements, insurance contracts, and other funding
agreements which implement each Employee Benefit Plan.
(g) Except as set forth in SECTION 3.22 of the Disclosure
Schedule, no Company nor any member of any Controlled Group of Corporations
contributes to, has ever contributed to, nor ever has been required to
contribute to any Multiemployer Plan or has any Liability (including withdrawal
Liability) under any Multiemployer Plan. Except as set forth in SECTION 3.22 of
the Disclosure Schedule, no Company nor any member of any Controlled Group of
Corporations has ever incurred, and to Sellers' Knowledge, there is no reason to
expect that any Company nor any member of any Controlled Group of Corporations
will incur any Liability to the PBGC (other than PBGC premium payments) or
otherwise under Title IV of ERISA
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(including any withdrawal Liability) or under the Code with respect to any
Employee Pension Benefit Plan that such Company nor any member of any Controlled
Group of Corporations maintains or ever has maintained or to which it
contributes, ever has contributed, or ever has been required to contribute.
SECTION 3.22 of the Disclosure Schedule sets forth whether or not any Company
nor any member of any Controlled Group of Corporations maintains or has ever
maintained or contributes, ever has contributed, or ever has been required to
contribute to any Employee Welfare Benefit Plan providing health, accident, or
life insurance benefits to former employees, their spouses, or their dependents.
3.23 GUARANTEES. Except as set forth in SECTION 3.23 of the
Disclosure Schedule, none of the Companies is a guarantor nor is it otherwise
liable for any Liability of any other Person, including the Companies.
3.24 CERTAIN BUSINESS RELATIONSHIPS WITH AIG. Except as set forth in
SECTION 3.24 of the Disclosure Schedule, none of the Companies has been involved
in any business arrangement or relationship with the Sellers or any of their
respective Affiliates within the past twelve (12) months, and none of the
Sellers or any of their respective Affiliates owns any material property or
right, tangible or intangible, which is used in the Business.
3.25 OBLIGATIONS. Attached hereto as EXHIBIT A is a list of all
outstanding funded indebtedness of AIG (including accrued interest and dividends
thereon), all of which is to be repaid and discharged on or prior to the Closing
in accordance with Section 5.7 hereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer hereby represents and warrants to each Seller as follows:
4.1 ORGANIZATION. The Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of New York and has
all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted except where the
failure to be so organized, existing and in good standing or to have such power
or authority (a) is not, in the aggregate, reasonably likely to have a material
adverse effect on the business, assets or financial condition of the Buyer or
(b) would not impair, hinder or adversely affect the ability of the Buyer to
perform any of its obligations under this Agreement or to consummate the
transactions contemplated hereby. The Buyer has heretofore delivered or made
available to the Sellers complete and correct copies of its Certificate of
Incorporation and By-laws (or other similar charter documents), as currently in
effect.
4.2 AUTHORITY RELATIVE TO THIS AGREEMENT. The Buyer has full
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by the Board of Directors of the Buyer and no
other corporate proceedings on the part of the Buyer are necessary
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to authorize this Agreement or to consummate the transactions contemplated
hereby. This Agreement has been duly and validly executed and delivered by the
Buyer and constitutes a valid and binding agreement of the Buyer, enforceable
against the Buyer in accordance with its terms, except for the Equitable
Exceptions.
4.3 CONSENTS AND APPROVALS; NO VIOLATION. Except for consents under
the HSR Act, there is no requirement applicable to the Buyer to make any filing
with, or to obtain any Permit of, any Governmental Entity as a condition to
lawful consummation by the Buyer of the purchase of, the Shares pursuant to this
Agreement. Neither the execution and delivery of this Agreement by the Buyer nor
the purchase by the Buyer of the Shares pursuant to this Agreement will (a)
conflict with or result in any breach of any provision of the Certificate of
Incorporation or By-laws (or other similar charter documents) of the Buyer, (b)
require any Permit of, or filing with or notification to, any Governmental
Entity, except for non-material Permits, filings or notifications, (c) result in
a material default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any agreement,
lease or other instrument or obligation to which the Buyer or any of its
subsidiaries is a party, except for such defaults (or rights of termination,
cancellation or acceleration) as to which requisite waivers or consents have
been or shall prior to the Closing be obtained or (d) violate any applicable
Order.
4.4 ACQUISITION OF STOCK FOR INVESTMENT. The Buyer is acquiring the
Shares for investment and not with a view toward, or for sale in connection
with, any distribution thereof, nor with any present intention of distributing
or selling such Shares. The Buyer agrees that none of the Shares may be sold,
transferred, offered for sale, pledged, hypothecated or otherwise disposed of
without registration under the Securities Act of 1933, as amended, except
pursuant to an exemption from such registration available under such Act.
4.5 FINANCING. Attached hereto as EXHIBIT D are valid and
enforceable commitment letters (the "Debt Commitments") from (a) Fleet National
Bank to provide up to the full amount of $90.0 million in senior secured credit
facilities to the Buyer and (b) a syndicate of institutional purchasers to
provide up to $25.0 million in senior subordinated financing to the Buyer
(together, the "Financing"). The Buyer will use its best efforts to satisfy all
requirements to be satisfied or complied with by the Buyer which are conditions
to closing all transactions constituting the Financing and which are within its
control.
4.6 LITIGATION. There is no Action pending or, to the knowledge of
the Buyer, threatened against or involving the Buyer, and there is no
investigation pending or threatened against or involving the Buyer, in each case
before any Governmental Entity that questions the validity of this Agreement or
any action taken or to be taken by the Buyer in connection herewith.
4.7 BROKERS AND FINDERS. None of the Buyer or any of its officers,
directors or employees has employed any investment banker, broker or finder or
incurred any liability for any investment banking fees, brokerage fees,
commissions or finders' fees in connection with the transactions contemplated by
this Agreement.
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4.8 PROJECTIONS. In connection with the Buyer's investigation of the
Companies, the Buyer has received from AIG certain estimates, projections,
forecasts, plans and budgets for the Companies. The Buyer acknowledges that
there are uncertainties inherent in attempting to make such estimates,
projections, forecasts, plans and budgets, that the Buyer is familiar with such
uncertainties, that the Buyer is taking full responsibility for making its own
evaluation of the adequacy and accuracy of all estimates, projections,
forecasts, plans and budgets so furnished to it. Nothing herein shall relieve
the Sellers from any obligations they may have with respect to any of the
representations and warranties made by them pursuant to this Agreement.
ARTICLE V
COVENANTS OF THE PARTIES
5.1 CONDUCT OF THE BUSINESS OF AIG. Except as contemplated by this
Agreement, during the period from the date of this Agreement to the Closing
Date, the Sellers will cause the Companies to conduct their business and
operations in the Ordinary Course of Business. Without limiting the generality
of the foregoing, the Sellers will not, without the prior written consent of the
Buyer (which consent shall not be unreasonably withheld), permit any Company to:
(a) (i) create, incur or assume any indebtedness for money
borrowed, including obligations in respect of capital leases but excluding
short-term, working capital indebtedness; or (ii) assume, guarantee, endorse or
otherwise become liable or responsible (whether directly, contingently or
otherwise) for the obligations of any other Person; PROVIDED that the Companies
may endorse negotiable instruments for deposit in the Ordinary Course of
Business;
(b) redeem or otherwise acquire any Shares or other
securities;
(c) (i) increase the rate or terms of compensation payable or
to become payable by any Company to its directors, officers and employees,
except for increases occurring in the Ordinary Course of Business in accordance
with its past customary practices or in connection with any new collective
bargaining agreement between Alliance America and the United Steel Workers Union
of America; or (ii) increase the rate or terms of any bonus, insurance, pension
or other employee benefit plan, payment or arrangement made to, for or with any
such directors, officers and employees;
(d) except in the Ordinary Course of Business consistent with
past practice, (i) sell, transfer or otherwise dispose of any property or
assets, or (ii) mortgage or encumber any property or assets;
(e) enter into any agreement, commitment or transaction
(including without limitation any borrowing, capital expenditure or capital
financing) material to the Companies, except agreements, commitments or
transactions in the Ordinary Course of Business or as contemplated herein;
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(f) materially change the accounting methods, principles or
practices employed by the Companies;
(g) delay or reduce any budgeted capital expenditures;
(h) declare or pay any dividend or distribution on any shares
of the capital stock of AIG; or
(i) agree to do any of the foregoing.
5.2 CONFIDENTIALITY AGREEMENTS. Any information provided pursuant to
this Agreement shall be held by the parties hereto in accordance with and shall
be subject to the terms of the Confidentiality Agreements, dated June 12, 1998,
among the Buyer, Wind Point Partners and AIG (together, the "Confidentiality
Agreements").
5.3 FURTHER ASSURANCES. Subject to the terms and conditions herein
provided, the Sellers and the Buyer agree to use their respective best efforts
to take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable to consummate and make effective by
October 6, 1998, and in any case no later than October 31, 1998, the
transactions contemplated by this Agreement and to cooperate in connection with
the foregoing, including using their respective commercially reasonable efforts
(a) to obtain all necessary waivers, consents and approvals from other parties
to material loan agreements, leases and other contracts, (b) to obtain all
consents, Permits, approvals and authorizations that are required to be obtained
under any Legal Requirements, (c) to lift or rescind any injunction or
restraining order or other order adversely affecting the ability of the parties
hereto to consummate the transactions contemplated hereby, (d) to effect all
necessary registrations and filings and submissions of information requested by
Governmental Entities, including, without limitation, under the HSR Act, and (e)
to fulfill all conditions to this Agreement. The Sellers and the Buyer further
covenant and agree, with respect to a threatened or pending preliminary or
permanent injunction or other Order or Legal Requirements that would adversely
affect the ability of the parties hereto to consummate the transactions
contemplated hereby, to use their respective best efforts to prevent the entry,
enactment or promulgation thereof, as the case may be. From time to time after
the Closing Date, without further consideration, each Seller will, at his or its
own expense, execute and deliver such documents to the Buyer as the Buyer may
reasonably request in order more effectively to vest in the Buyer good title to
the Shares sold by such Seller pursuant hereto, and to effect an orderly
transition of the ownership and management of the Business. From time to time
after the Closing Date, without further consideration, the Buyer will, at
Sellers' expense, execute and deliver such documents to any Seller as such
Seller may reasonably request in order more effectively to consummate the sale
of the Shares pursuant to this Agreement.
5.4 ACCESS AND INFORMATION. The Sellers (a) shall permit the Buyer
and its representatives (including, for purposes of this Section 5.4,
prospective lenders), after the date of execution of this Agreement and prior to
the Closing Date, to have reasonable access, during regular business hours and
upon reasonable advance notice, to the offices, plants, properties, books and
records, personnel, counsel and auditors of AIG, (b) shall furnish, or cause to
be furnished, to the Buyer or its representatives any financial and operating
data and other
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information with respect to the business and properties of AIG as the Buyer or
its representatives shall from time to time reasonably request for the purpose
of verifying the representations and warranties of the Sellers hereunder and (c)
shall cause its auditors to permit the Buyer and its representatives to examine
their records and working papers to the extent such records and papers pertain
to the Business; PROVIDED, HOWEVER, that no investigation by the Buyer or its
representatives shall affect or limit the scope of the Sellers' representations
and warranties herein or limit the Sellers' liability for any breach of such
representations and warranties. In the event of the termination of this
Agreement, the Buyer shall (i) promptly deliver to the Sellers all documents
containing confidential information obtained by the Buyer from the Sellers, AIG
or their representatives and (ii) certify to the Sellers that the Buyer has
destroyed, or caused to be destroyed, documents, work papers and other material
generated by the Buyer reflecting confidential information obtained from the
Sellers, AIG or their representatives as a result of this Agreement or in
connection herewith, whether so obtained before or after the execution hereof.
The Buyer shall at all times prior to the Closing Date, and in the event of
termination of this Agreement, cause any information so obtained to be kept
confidential and will not use, or permit the use of, such documents, work papers
and other materials in its business or in any other manner or for any other
purpose except as contemplated hereby and except for any such information that
is now or hereafter becomes available to the public through no fault of the
Buyer or its representatives or was in fact known to the Buyer prior to its
disclosure hereunder as evidenced by written records.
5.5 HSR ACT AND OTHER FILINGS. Promptly after the date of this
Agreement, the parties shall cooperate with one another in connection with
filing all required notifications with the United States Federal Trade
Commission and the Department of Justice under the HSR Act, and shall
thereafter, as and to the extent requested by either or both of such
Governmental Entities, timely provide such additional information as may be
requested in order to obtain, as promptly as reasonably possible, the required
consents of such Governmental Agencies under the HSR Act or obtain early
termination of the applicable waiting period.
5.6 PUBLIC ANNOUNCEMENTS. The Sellers and the Buyer will consult
with each other before issuing any press releases or otherwise making any public
statements with respect to this Agreement and the transactions contemplated
hereby and shall not issue any such press release or make any such public
statement prior to such consultation. The Buyer shall make no announcement,
statement, comment, response to inquiries or other disclosure, public or
otherwise, relating to the transactions contemplated hereby or the substance
thereof prior to the Closing except to the extent the Buyer is advised by its
legal counsel that disclosure is required by applicable law.
5.7 DISCHARGE OF OBLIGATIONS. Unless otherwise instructed by the
Buyer in writing, on or prior to the Closing, the Sellers shall have provided
for the payment in full by the Companies of the indebtedness (including all
accrued interest and obligations through the Closing Date) of the Companies set
forth on EXHIBIT A attached hereto. Such indebtedness as of June 30, 1998, is
listed on the Most Recent Balance Sheet. The Sellers shall have also provided
for the termination of all Encumbrances of record on the properties of the
Companies, except for those noted in SECTION 3.15 of the Disclosure Schedule as
surviving the Closing. All liens or UCC
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filings against the Companies shall have been terminated as of the Closing.
Unless otherwise paid or discharged in full, any such payments shall be paid by
the Buyer and subtracted from the Purchase Price.
5.8 EMPLOYEE MATTERS. The Sellers shall have provided for the
cancellation, at or prior to the Closing, of any stock options, warrants,
deferred bonus programs, and phantom equity plans outstanding with respect to
the Companies, at no cost to the Buyer and/or AIG. In conjunction with the
cancellation of such programs, all eligible employees shall have signed
cancellation agreements in form and substance reasonably acceptable to Buyer.
5.9 EXPENSES. Whether or not the transactions contemplated hereby
are consummated, all costs and expenses incurred by the Buyer or the Sellers in
connection with this Agreement and the transactions contemplated hereby will be
paid by the Buyer or the Sellers, respectively.
5.10 DISCLOSURE SUPPLEMENTS. From time to time prior to the Closing,
the Sellers will supplement or amend the Disclosure Schedule with respect to any
matter hereafter arising which, if existing or occurring at or prior to the date
of this Agreement, would have been required to be set forth or described in the
Disclosure Schedule or which is necessary to complete or correct any information
in the Disclosure Schedule or in any representation or warranty of the Sellers
or AIG which has been rendered inaccurate thereby. For purposes of determining
the satisfaction of the conditions set forth in Article VI hereof (including,
without limitation, Section 6.2(a) hereof), no such supplement or amendment
shall be given effect.
5.11 CERTAIN TAX MATTERS.
(a) The Sellers shall file all Tax Returns for the short-year
period ending on the Closing Date. The Buyer shall or shall cause AIG to
provide the Sellers, with such assistance as may reasonably be requested in
connection with the preparation of any Tax Return with respect to periods ending
on or prior to the Closing Date, any notice, letter, correspondence, claim,
audit or other examination by any taxing authority, or any judicial or
administrative proceedings relating to liability for Taxes, and for a period of
at least ten years from the Closing Date each will retain and provide the other
with any records or information which may be relevant to such return, audit or
examination, proceedings or determination. Any information obtained pursuant to
this Section or any other Section hereof providing for the sharing of
information or the review of any Tax Return or other schedule relating to Taxes
shall be kept confidential by the parties hereto.
(b) The Buyer shall notify the Sellers in writing within ten
days after its receipt of any notice, letter, correspondence, claim, audit or
other administrative proceeding, dispute or contest by any taxing authority
("Tax Dispute") concerning any Tax Return of AIG filed with respect to any
taxable year or period ending on or before the Closing Date. Such notice
hereunder shall include a complete copy of any such notice, letter,
correspondence or claim.
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(c) Any sales, use, VAT, stock transfer, real property
transfer, real property transfer gains or other transfer or similar Taxes
incurred as a result of the sale of the Shares contemplated by this Agreement
shall be paid by the Sellers.
5.12 NO SOLICITATION. The Sellers and AIG agree that, prior to any
termination of this Agreement pursuant to Article VII hereof, none of the
Companies, any of their Subsidiaries or any of the Sellers (a) will solicit,
initiate or negotiate with respect to any inquiries or proposals relating to (i)
the possible direct or indirect acquisition of the Shares or of all or a portion
of the assets or business of the Companies or any Subsidiary of the Companies or
(ii) any merger or consolidation with AIG or any Subsidiary of AIG, and/or (b)
participate in any discussions or negotiations regarding, furnish any
information with respect to, assist or participate in, or facilitate in any
other manner any effort or attempt by any person to do or seek any of the
foregoing. In the event that any person makes any proposal, offer, inquiry or
contact with respect to any of the foregoing, the Sellers shall promptly notify
any such offer or that AIG is not available for purchase.
5.13 QUALIFYING SHARES. The transfer of the Shares of the Foreign
Subsidiaries shall be inscribed as of the Closing in the shareholders' register
of each of Alliance Europe and Alliance Graphics and signed by the Buyer,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇ ▇▇▇▇▇ (or their representatives pursuant to a
valid power of attorney). The parties shall take any and all other steps as are
required to transfer effectively such Shares under the laws of the appropriate
foreign jurisdictions.
5.14 NOTICE OF DEVELOPMENTS. Each party will keep the other parties
reasonably informed of any material development affecting the ability of the
parties to consummate the transactions contemplated by this Agreement.
5.15 CONFIDENTIALITY. Each of the Sellers will treat and hold as such
all of the Confidential Information, and refrain from using any of the
Confidential Information except in connection with this Agreement for a period
of three (3) years from the Closing. In the event that any of the Sellers is
requested or required (by oral question or request for information or documents
in any legal proceeding, interrogatory, subpoena, civil investigative demand, or
similar process) to disclose any Confidential Information, such Seller will
notify the Buyer as reasonably early as the circumstances permit of the request
or requirement so that the Buyer may seek an appropriate protective order or
waive compliance with the provisions of this Section 5.15. If, in the absence
of a protective order or the receipt of a waiver hereunder, any of the Sellers
is compelled to disclose any Confidential Information to any tribunal, such
Seller may disclose the Confidential Information to the tribunal; PROVIDED,
HOWEVER, that the disclosing Seller shall cooperate with the Buyer to obtain, at
the reasonable request of the Buyer and at the sole expense of Buyer, an order
or other assurance that confidential treatment will be accorded to such portion
of the Confidential Information required to be disclosed as the Buyer shall
designate. The foregoing provisions shall not apply to any Confidential
Information which is generally available to the public immediately prior to the
time of disclosure.
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5.16 NON-COMPETITION; NON-SOLICITATION.
(a) For a period of three (3) years after the Closing Date,
without the prior written consent of the Buyer, none of the Sellers nor any of
their Affiliates shall, directly or indirectly, own, manage, operate or control,
or participate in the ownership, management, operation or control of, any
business which derives any material amount of revenues from any business
activities similar to or competitive with the Business, except that nothing
contained herein shall prevent the Sellers and their Affiliates from owning less
than one percent (1%) of the outstanding shares of a publicly-traded company.
(b) For a period of two (2) years after the Closing Date,
none of the Sellers nor any of their Affiliates shall, without the prior written
approval of the Buyer, directly or indirectly, solicit, encourage, entice or
induce any person who is an employee of any of the Companies at any time on or
after the date hereof to terminate his or her employment with such Company.
(c) Each of the Sellers agrees that any remedy at law for any
breach by it or any of their Affiliates of this Section 5.16 would be
inadequate, and the Buyer shall be entitled, without requirement of posting any
bond or indemnity, to injunctive relief in such a case. The parties hereby
acknowledge the reasonableness of the time, geographic scope and nature of the
foregoing restrictions; nonetheless, if it is ever held that any restriction
placed upon the Sellers by this Section 5.16 is too onerous or is not necessary
for the protection of the Buyer, the Sellers agree that any court of competent
jurisdiction may impose such lesser restriction that such court may consider to
be necessary or appropriate to properly protect the Buyer.
5.17 NEW AIG STOCKHOLDERS. AIG and each of the Sellers agrees that
any Person who after the date of this Agreement is offered shares of Common
Stock shall, as a condition precedent to the acquisition of such shares of
Common Stock, become a party to this Agreement by executing this Agreement and
delivering the same to the Buyer at its address specified in Section 9.3 hereof.
Upon such execution and delivery, such Person shall be a Seller for all purposes
of this Agreement.
ARTICLE VI
CLOSING CONDITIONS
6.1 CONDITIONS TO THE OBLIGATIONS OF THE SELLERS. The obligations of
each Seller to consummate the transactions contemplated hereby shall be subject
to the fulfillment at or prior to the Closing Date of the following conditions,
any one or more of which may be waived in writing by the Sellers holding a
majority of the Shares:
(a) The representations and warranties of the Buyer contained
herein, taken as a whole, shall be true and correct in all material respects at
and as of the Closing Date as though such representations and warranties were
made at and as of such date.
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(b) The Buyer shall have performed and complied in all
material respects with all agreements, obligations, covenants and conditions
required by this Agreement to be performed or complied with by it on or prior to
the Closing Date.
(c) No statute, rule, regulation, executive order, decree,
preliminary or permanent injunction or restraining order shall have been
enacted, entered, promulgated or enforced by any Governmental Entity which
prohibits or restricts the consummation of the transactions contemplated hereby.
No action or proceeding by any Governmental Entity shall have been commenced
(and be pending) against the Sellers, the Companies or any of their respective
Affiliates, associates, officers or directors seeking to prevent or delay the
transactions contemplated hereby or challenging any of the terms or provisions
of this Agreement or seeking material damages in connection therewith.
(d) All consents and approvals of Governmental Entities
(including, without limitation, consents under the HSR Act or termination or
expiration of the applicable waiting period thereunder) or third parties
necessary for consummation by the Sellers and/or AIG of the transactions
contemplated hereby shall have been obtained, other than those which, if not
obtained, would not have a material adverse effect on the business, operations,
assets, liabilities or condition (financial or otherwise) of AIG.
(e) The Buyer shall have furnished the Sellers with such
certificates of its officers and others to evidence its compliance with the
conditions set forth in Section 6.01(a)-(d) as may be reasonably requested by
the Sellers.
(f) The Buyer, the Sellers' Agent, the Sellers and the Escrow
Agent shall have entered into the Escrow Agreement, in substantially the form
attached hereto as EXHIBIT E.
(g) AIG, the Sellers' Agent and the Sellers shall have
entered into the Royalty Agreement, in substantially the form attached hereto as
EXHIBIT F.
6.2 CONDITIONS TO THE OBLIGATIONS OF THE BUYER. The obligations of
the Buyer to consummate the transactions contemplated hereby shall be subject to
the fulfillment at or prior to the Closing Date of the following conditions, any
one or more of which may be waived in writing by the Buyer:
(a) The representations and warranties of the Sellers contained
herein, taken as a whole, shall be true and correct in all material respects at
and as of the Closing Date as though such representations and warranties were
made at and as of such date.
(b) The Sellers shall have performed and complied in all material
respects with all agreements, obligations, covenants and conditions required by
this Agreement to be performed or complied with by the Sellers on or prior to
the Closing Date.
(c) No statute, rule, regulation, executive order, decree,
preliminary or permanent injunction or restraining order shall have been
enacted, entered, promulgated or enforced by any Governmental Entity which
prohibits or restricts the consummation of the
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transactions contemplated hereby. No action or proceeding by any Governmental
Entity shall have been commenced (and be pending) against the Buyer or any of
its Affiliates, associates, officers or directors seeking to prevent or delay
the transactions contemplated hereby or challenging any of the terms or
provisions of this Agreement or seeking material damages in connection
therewith.
(d) All consents and approvals of Governmental Entities
(including, without limitation, consents under the HSR Act or termination or
expiration of the applicable waiting period thereunder) or third parties
necessary for consummation by the Buyer of the transactions contemplated hereby
or the ongoing operation of the Business subsequent to the Closing shall have
been obtained, other than those which, if not obtained, would not have a
Material Adverse Effect.
(e) The Sellers shall have furnished the Buyer with such
certificates of the Sellers' Agent to evidence the compliance with the
conditions set forth in Section 6.2(a) to (d) as may be reasonably requested by
the Buyer.
(f) The Buyer, the Sellers' Agent, the Sellers and the Escrow
Agent shall have entered into the Escrow Agreement, in substantially the form
attached hereto as EXHIBIT E.
(g) AIG, the Sellers' Agent and the Sellers shall have
entered into the Royalty Agreement, in substantially the form attached hereto as
EXHIBIT F.
(h) The Buyer shall have received from counsel to the Sellers
an opinion with respect to the matters set forth in EXHIBIT G attached hereto,
addressed to the Buyer and dated as of the Closing Date.
(i) The Sellers shall, at their expense (and at no cost to
the Buyer and/or AIG), have caused to be cancelled (i) all outstanding options,
warrants, convertible securities or other rights to purchase or subscribe for
any capital stock of AIG, and (ii) any options, warrants, convertible securities
or other such rights in any of the other Companies held by employees of any such
Companies.
(j) No Material Adverse Effect, or event or condition which
could reasonably be expected to result in or give rise to a Material Adverse
Effect, shall have occurred since the date hereof.
(k) No unsatisfied liens for the failure to pay Taxes of any
nature whatsoever shall exist against the Companies, or against or in any way
affecting any Shares.
(l) The Buyer shall have received the proceeds of the
Financing pursuant to the Debt Commitments.
(m) The Buyer shall have entered into an employment
agreement, on terms satisfactory to the Buyer, with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, in
substantially the form attached hereto as EXHIBIT H.
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(n) Except for any directors as to whom the Buyer has waived
this condition, each of the Companies shall deliver the written resignations of
all directors of each such Company effective as of the Closing Date.
(o) The agreements set forth in SECTION 3.24 of the
Disclosure Schedule and any other similar agreements providing for management or
consulting fees payable to Wind Point, the other Sellers or any of their
respective Affiliates (other than agreements entered into as of the date hereof)
shall be terminated with no further liability or obligation on the part of AIG,
the Buyer or any of their respective Affiliates following the Closing Date.
ARTICLE VII
TERMINATION AND ABANDONMENT
7.1 TERMINATION. This Agreement may be terminated at any time prior
to the Closing Date:
(a) by mutual consent of the Buyer and Sellers holding a
majority of the Shares;
(b) by the Sellers holding a majority of the Shares or by the
Buyer at any time on or after 5:00 p.m. on October 31, 1998, PROVIDED, HOWEVER,
that (i) such October 31, 1998 date shall be extended in the event that there
shall then exist, and to the extent reasonably required in order for either
party to respond to, any pending request for further information in connection
with compliance under the HSR Act, and (ii) the right to terminate this
Agreement under this Section 7.1(b) shall not be available to any party (A) who
shall then be in material breach or default of any of its representations,
warranties or covenants under this Agreement, or (B) whose failure to fulfill
any obligation under this Agreement has been the cause of, or resulted in, the
failure of the Closing to occur on or before such date;
(c) by the Buyer, if there has been a material violation or
breach by the Sellers of any agreement, representation or warranty contained in
this Agreement which has rendered the satisfaction of any condition to the
obligations of the Buyer impossible and such violation or breach has not been
waived by the Buyer or cured by the Sellers (following reasonable notice) to the
Buyer's reasonable satisfaction;
(d) by the Buyer, if a matter or problem resulting in a
Material Adverse Effect has occurred or been discovered and, following
reasonable notice to the Sellers, not been resolved to the Buyer's sole
satisfaction;
(e) by the Buyer, if there shall be in effect or announced to
occur any labor strike, work stoppage, slowdown or other such event or condition
relating to any material portion of the operations of AIG; or
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(f) by the Sellers holding a majority of the Shares, if there
has been a material violation or breach by the Buyer of any agreement,
representation or warranty contained in this Agreement which has rendered the
satisfaction of any condition to the obligations of the Sellers impossible and
such violation or breach has not been waived by the Sellers or cured by the
Buyer (following reasonable notice) to the Sellers' reasonable satisfaction.
7.2 PROCEDURE AND EFFECT OF TERMINATION. In the event of termination
of this Agreement and abandonment of the transactions contemplated hereby by
either party pursuant to Section 7.1, written notice thereof shall forthwith be
given to the other party and this Agreement shall terminate and the transactions
contemplated hereby shall be abandoned, without further action by the parties
hereto. If this Agreement is terminated as provided herein, this Agreement,
other than the obligations of each party under Sections 5.6, 5.9, 5.15 and 7.3
hereof, shall forthwith become null and void, without any liability on the part
of either party hereto, or any Subsidiaries or Affiliates of, or any officers,
directors or employees of, either party. Nothing contained in this Section 7.2
shall relieve either party of liability for a breach of any of its covenants or
agreements contained in this Agreement.
7.3 CERTAIN PAYMENTS UPON TERMINATION.
(a) Upon any termination of this Agreement (i) by the Buyer,
or (ii) by the Sellers pursuant to Section 7.1(f) hereof, then, provided that
the representations and warranties made by the Sellers in this Agreement are
then true and correct in all material respects and the Sellers have performed
all of their covenants and obligations under this Agreement, the Buyer shall
immediately pay to the Sellers' Agent (for the ratable benefit of the Sellers),
by wire transfer of immediately available funds, the sum of $750,000 in
reimbursement for and in consideration of, among other things, the Sellers'
time, expenses and lost opportunity costs; PROVIDED, HOWEVER, that no payment
shall be required under this Section 7.3(a) if, at the time of termination of
this Agreement, (A) there exists a material deviation (as hereinafter defined)
affecting AIG, (B) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ is not ready, willing and able to enter into
and perform his employment agreement substantially in the form of EXHIBIT H, (C)
there is in effect or announced to occur any labor strike, work stoppage,
slowdown or other such event or condition relating to any material portion of
the operations of AIG, (D) there is pending any litigation, action, proceeding
or Order enjoining or restraining, or which seeks to enjoin or restrain, the
consummation of the transactions contemplated by this Agreement, or (E) the
required consent of any governmental agency has not been obtained or is not in
effect. As used herein, the term "material deviation" means either of (x) a
reduction of 5% or more in AIG's aggregate net asset value from that reflected
in the consolidated balance sheet of AIG as of June 30, 1998, or (y) a negative
variation of 10% or more in AIG's consolidated earnings before interest, taxes,
depreciation and amortization from that reflected in AIG's budgeted performance
for the period of January 1, 1998 through the close of the most recent fiscal
month of AIG prior to the date of termination of this Agreement, in either case
without giving effect to adjustments relating to foreign currency translation or
current and deferred income tax expenses; and PROVIDED, FURTHER, HOWEVER, that
no payment shall be required under this Section 7.3(a) if the Buyer has
terminated this Agreement pursuant to Section 7.1(b) of this Agreement and the
reason for such termination is the failure of the Buyer to satisfy the closing
condition set forth in Section 6.2(l) hereof due to
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the absence of a new union contract in effect with respect to the union
employees at AIG's Okmulgee, Oklahoma manufacturing facility.
(b) Upon any termination of this Agreement (i) by the Buyer
pursuant to Section 7.1(c) hereof, or (ii) by the Sellers other than pursuant to
Section 7.1(b) if such termination occurs after December 31, 1998, or 7.1(f)
hereof, then the Sellers shall, jointly and severally, immediately pay to the
Buyer, by wire transfer of immediately available funds, the sum of $750,000 in
reimbursement for and in consideration of, among other things, the Buyer's time,
expenses and lost opportunity costs.
ARTICLE VIII
SURVIVAL AND INDEMNIFICATION
8.1 GENERAL.
(a) From and after the Closing Date, the Sellers shall
defend, indemnify and hold harmless the Buyer (which shall, for purposes of this
Article VIII, include its Affiliates, each of their respective directors and
officers, and each of their heirs, executors, successors and assigns of any of
the foregoing) from, against and in respect of any and all claims, losses,
costs, expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties, costs of investigation and reasonable attorneys'
fees, that the Buyer may incur, sustain or suffer ("Losses") as a result of any
breach of, or failure by the Sellers to perform, any of the representations,
warranties, covenants or agreements of the Sellers contained in this Agreement.
Notwithstanding the foregoing, Losses shall not include claims for
misrepresentation or breach of warranty under Section 3.6 of this Agreement.
(b) From and after the Closing Date, the Buyer shall defend,
indemnify and hold harmless the Sellers (which shall, for purposes of this
Article VIII, include its Affiliates, each of their respective directors and
officers, and each of their heirs, executors, successors and assigns of any of
the foregoing) from, against and in respect of any and all claims, losses,
costs, expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties, costs of investigation and reasonable attorneys'
fees, that the Sellers may incur, sustain or suffer as a result of any breach
of, or failure by Buyer to perform, any of the representations, warranties,
covenants or agreements of the Buyer contained in this Agreement.
(c) The obligations of indemnity of each of the Sellers
described in Section 8.1(a) of this Agreement shall be several, and not joint,
in accordance with their proportionate interests in the Shares as reflected in
EXHIBIT B hereto; PROVIDED, HOWEVER, that if the Buyer is unable, after
exercising reasonable efforts to collect on any specific Losses from one or more
of the Sellers who are not then affiliated with the Buyer, including, but not
limited to, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Defaulting Sellers"), then Wind
Point shall perform and satisfy the indemnification obligation of the Defaulting
Sellers hereunder to the Buyer with respect to such Losses on a several basis.
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8.2 LIMITATIONS ON CERTAIN INDEMNITY.
(a) Notwithstanding any other provision of this Agreement to
the contrary, except with respect to any Losses involving proven fraud by any of
the Sellers and except as specified in Section 8.2(c) with respect to
Environmental Claims (as defined below), the Sellers shall not be liable to the
Buyer with respect to Losses unless and then only to the extent that the
aggregate amount of all Losses incurred by the Buyer and not paid for by
applicable insurance shall exceed the sum of $500,000 (the "General Basket").
Except as specified in Section 8.2(c), the Sellers shall thereafter be liable
for all Losses in excess of the Basket, up to a maximum aggregate liability
equal to $4,000,000 (the "Cap"), provided that there shall not be counted
against the General Basket or such limitation of liability, and the General
Basket and such limitation of liability shall not apply to, any Losses involving
proven fraud by any of the Sellers.
(b) The Buyer shall be entitled to indemnification by the
Sellers for Losses only in respect of claims for which notice of claim shall
have been given to the Sellers on or before December 31, 1999, or, (i) with
respect to Losses relating to a breach of any warranties under Sections 3.13 and
3.22 hereof, the expiration of the final statute of limitations for those tax
returns and/or reports covered by the warranties under Sections 3.13 and 3.22
hereof, (ii) with respect to Losses for which indemnification may be sought
under Section 3.18 hereof ("Environmental Claims"), on or before the third
anniversary of the Closing Date unless, prior to such date, the Buyer has
notified in reasonable detail the Sellers of a claim for indemnity hereunder;
PROVIDED, HOWEVER, that the Buyer shall not be entitled to indemnification
hereunder in the event that the subject claim for indemnification relates to a
third-party claim and the Buyer delayed giving notice thereof to the Sellers to
such an extent as to cause material prejudice to the defense of such third-party
claim, or (iii) with respect to Losses relating to a breach of warranties under
Article II hereof, without limitation as to time. Any claim for indemnification
by the Buyer under this Section 8.2 shall be paid first from the Escrow Fund in
accordance with the procedures set forth in the Escrow Agreement.
(c) Notwithstanding the provisions of Section 8.2(a) as to
the limitations of liability payable by the Sellers hereunder, the following
provisions shall apply to any Environmental Claims by the Buyer for
indemnification:
(i) As to any Environmental Claims relating to or
involving AIG's existing manfacturing facility located in Crespin, France or
AIG's former facility located in Port Carbon, Pennsylvania (together, the
"Special Facilities"), the Buyer shall be entitled to indemnification only if
the subject Losses involve proven fraud by any of the Sellers or if the
aggregate amount of all such other (i.e., non-fraud) Losses for which
indemnification is otherwise available hereunder exceeds $600,000 (the "Special
Environmental Basket"). If the Special Environmental Basket has been reached,
then, with respect to non-fraud Losses relating to the Special Facilities only,
the Sellers shall promptly pay, as incurred, two-thirds of the amount of any
such Losses incurred by the Buyer or AIG in excess of the Special Environmental
Basket, with the Buyer retaining the balance of any such Losses, but the
additional amount of indemnification payable by the Sellers under this Section
8.2(c), when aggregated with all other
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indemnification payments by the Sellers under this Article VIII (other than
Losses involving proven fraud by any of the Sellers) shall not exceed the Cap.
(ii) As to any Environmental Claims relating to or
involving any facilities of AIG other than the Special Facilities, the Buyer
shall be entitled to indemnification from the Sellers who shall promptly pay, as
incurred, two-thirds of the amount of any Losses incurred by the Buyer or AIG,
with the Buyer retaining the balance of any such Losses, with no deduction with
respect to the General Basket or Special Environmental Basket, except that the
aggregate amount of indemnification payable by the Sellers under this Article
VIII (other than Losses involving proven fraud by any of the Sellers) shall not
exceed the Cap.
8.3 CLAIMS FOR INDEMNITY. Whenever a claim shall arise for which any
party shall be entitled to indemnification hereunder, the indemnified party
shall notify the indemnifying party in writing within thirty (30) days of the
indemnified party's first receipt of notice of, or the indemnified party's
obtaining actual knowledge of, such claim, and in any event within such shorter
period as may be necessary for the indemnifying party or parties to take
appropriate action to resist such claim. Such notice shall specify all facts
known to the indemnified party giving rise to such indemnity rights and shall
estimate (to the extent reasonably possible) the amount of potential liability
arising therefrom. If the indemnifying party shall be duly notified of such
dispute, the parties shall attempt to settle and compromise the same or may
agree to submit the same to arbitration or, if unable or unwilling to do any of
the foregoing, such dispute shall be settled by appropriate litigation, and any
rights of indemnification established by reason of such settlement, compromise,
arbitration or litigation shall promptly thereafter be paid and satisfied by
those indemnifying parties obligated to make indemnification hereunder.
8.4 RIGHT TO DEFEND. If the facts giving rise to any claim for
indemnification shall involve any actual or threatened action or demand by any
third party against the indemnified party or any of its Affiliates, the
indemnifying party shall be entitled (without prejudice to the indemnified
party's right to participate at its own expense through counsel of its own
choosing), at its expense and through a single counsel of its own choosing, to
defend or prosecute such claim in the name of the indemnifying party, or if
necessary, in the name of the indemnified party. In any event, the indemnified
party shall give the indemnifying party advance written notice of any proposed
compromise or settlement of any such claim. If the remedy sought in any such
action or demand is solely money damages, the indemnifying party shall have
fifteen (15) days after receipt of such notice of settlement to object to the
proposed compromise or settlement, and if it does so object, the indemnifying
party shall be required to undertake, conduct and control, though counsel of its
own choosing and at its sole expense, the settlement or defense thereof, and the
indemnified party shall cooperate with the indemnifying party in connection
therewith.
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ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 AMENDMENT AND MODIFICATION. Subject to applicable law, this
Agreement may be amended, modified or supplemented only by written agreement of
the parties at any time prior to the Closing Date with respect to any of the
terms contained herein.
9.2 WAIVER OF COMPLIANCE; CONSENTS. Any failure of any of the
parties to comply with any obligation, covenant, agreement or condition
contained herein may be waived by the party entitled to the benefits thereof,
but such waiver or failure to insist upon strict compliance with such
obligation, covenant, agreement or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure.
9.3 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person, by cable, telegram or telex, or by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties as follows:
If to the Sellers or
Sellers' Agent to: ; Wind Point Partners
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to: ▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇ ▇▇▇▇, Esq.
If to the Buyer to: PolyVision Corporation
▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and
Chief Executive Officer
-and-
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇, Director
c/o The Alpine Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇▇ Traurig
The MetLife Building
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
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or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereof).
9.4 ASSIGNMENT. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by either
party hereto without the prior written consent of the other party, nor is this
Agreement intended to confer upon any other person except the parties hereto any
rights or remedies hereunder, PROVIDED, HOWEVER, that the Buyer may, without
requirement of any consent of any of the Sellers, assign (a) any or all of its
rights and interests hereunder to a wholly-owned Subsidiary (in any or all of
which cases the Buyer nonetheless shall remain liable and responsible for the
performance of all of its obligations hereunder), and (b) any or all of its
rights (including, without limitation, rights to indemnification) hereunder to
any financial institution(s) or other lender(s) providing financing to the Buyer
and/or AIG from time to time.
9.5 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be
governed by the laws of the State of New York (regardless of the laws that might
otherwise govern under applicable New York principles of conflicts of law) as to
all matters, including but not limited to matters relating to validity,
construction, effect, performance and remedies. Each of the parties agrees to
(i) the irrevocable designation of the Secretary of State of the State of New
York as its agent upon whom process against it may be served and (ii) personal
jurisdiction in any action brought in any court, federal or state, within the
State of New York, County of New York having subject matter jurisdiction arising
under this Agreement.
9.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.7 INTERPRETATION. The article and section headings contained in
this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement.
9.8 ENTIRE AGREEMENT. This Agreement, including the documents,
schedules, certificates and instruments referred to herein, the letter dated
June 29, 1998 to ▇▇▇▇▇▇ ▇▇▇▇▇▇ from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and the Confidentiality
Agreements, embody the entire agreement and understanding of the parties hereto
in respect of the transactions contemplated by this Agreement. There are no
restrictions, promises, representations, warranties, covenants or undertakings,
other than those expressly set forth or referred to herein or therein. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such transactions other than the Confidentiality Agreements.
9.9 FACSIMILE SIGNATURE. This Agreement may be executed manually or
by facsimile signature, receipt of which is confirmed. In the case of signatures
sent by facsimile, signatures manually affixed shall be subsequently sent to all
parties.
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IN WITNESS WHEREOF, the Sellers and the Buyer have caused to be signed
by their duly authorized officers this Agreement as of the date first above
written.
POLYVISION CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and CEO
ALLIANCE INTERNATIONAL GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President and CEO
SELLERS:
WIND POINT PARTNERS III, L.P.
By: Wind Point Partners, its General Partner
(As a Seller and Sellers' Agent)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Member
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. STILL
------------------------------
▇▇▇▇▇▇▇ ▇. Still
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
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POLYVISION CORPORATION
▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
November 20, ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ Partners
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Dear Sirs:
PolyVision Corporation, a New York corporation (the "Buyer"),
Alliance International Group, Inc., a Delaware corporation ("AIG"), Wind
Point Partners III, L.P., a Delaware limited partnership ("Wind Point"), and
the other stockholders of AIG (together with Wind Point, the "Sellers") have
entered into a Stock Purchase Agreement, dated as of September 1, 1998 (the
"Purchase Agreement"), which they now desire to amend and modify as follows.
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Purchase Agreement.
1. SEPARATE PURCHASE OF FOREIGN SUBSIDIARIES. The Buyer,
AIG and the Sellers have agreed to restructure the transactions contemplated
by the Purchase Agreement to permit the Buyer to purchase the outstanding
capital stock of each of Alliance Europe and Aubecq (together, the "European
Subsidiaries") in separate transactions. In this regard, the parties agree
that (i) the closings of such separate acquisitions shall be occur
immediately prior to the Closing, (ii) the Purchase Price shall be allocated
as set forth below to reflect such separate acquisitions, and shall be paid
in the same manner as provided in Section 1.3 of the Purchase Agreement,
(iii) Section 1.3(b) of the Purchase Agreement shall apply as if AIG and the
European Subsidiaries were acquired in a single transaction, (iv) the Buyer
shall bear all out-of-pocket costs of implementing such restructuring, and
shall indemnify and reimburse the Sellers for any such costs, including but
not limited to Taxes paid and reasonable attorneys' fees of the Sellers, and
(v) the terms and conditions of the purchase and sale of the capital stock of
the European Subsidiaries otherwise shall be made on the same terms and
conditions as the purchase and sale of the Shares under the Purchase
Agreement to the extent such terms and conditions are relevant to the
purchase and sale of the capital stock of the European Subsidiaries. The
indemnities made by the Sellers in the Purchase Agreement shall be applicable
to and enforceable by each Purchaser under, and as defined in, the Share
Purchase Agreements relating to the sale of the capital stock of the European
Subsidiaries, the forms of which are attached as EXHIBIT 1 hereto.
Accordingly, immediately prior to the Closing, the Sellers
shall cause (a) first, AIG to cause Alliance Europe and Alliance Pentagon to
assign, convey and transfer to a wholly-owned French subsidiary of the Buyer
all of the outstanding capital stock of Aubecq in consideration for
U.S.$4,000,000, and (b) second, AIG to assign, convey and transfer to a
wholly-owned Belgian subsidiary of the Buyer all of the outstanding capital
stock of Alliance Europe in consideration for U.S.$7,000,000. Alliance
Europe shall use the purchase price received in the sale of its capital stock
of Aubecq to reduce the outstanding revolving credit borrowings of Alliance
Europe to KBC Bank N.V. (formerly Kredietbank N.V.). Each of the Sellers,
AIG and the Buyer shall use their best efforts to obtain any and all
approvals and consents required for these separate transactions prior to the
Closing Date.
2. NEW AIG SHAREHOLDERS. Wind Point has advised the Buyer
that, subsequent to the execution of the Purchase Agreement, there have been
certain changes to the list of Sellers attached as Exhibit B to the Purchase
Agreement, including the addition of new AIG shareholders and transfers by
certain of the Sellers. EXHIBIT 2 hereto contains a true and complete list
of the names and addresses of the holders of record of all of the Shares, and
the number of Shares held by each such Seller, on the date hereof. Pursuant
to Section 5.17 of the Purchase Agreement, by executing this letter
agreement, each of the new AIG shareholders, namely ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇▇, Immaculate Conception Congregation and Wind Point III Executive
Advisor Partners, L.P., agrees with the Buyer and the other parties to the
Purchase Agreement to be a "Seller" for all purposes of the Purchase
Agreement and this letter agreement and to be bound by and comply with all
the provisions of the Purchase Agreement governing the Sellers, and all
Shares acquired by them shall be held subject to the provisions of the
Purchase Agreement.
As indicated on EXHIBIT 2, it is understood that The
Northwestern Mutual Life Insurance Company ("NML"), which holds warrants to
acquire certain shares of capital stock of AIG, intends prior to Closing to
exchange its warrants for a pro rata portion of the Purchase Price which will
be paid to NML as though it were a Seller under the Purchase Agreement,
Seller Note (as defined below) and Royalty Agreement, notwithstanding that
NML will not execute such agreements. Pursuant to a warrant exchange
agreement between AIG and NML, under which NML's warrant will be surrendered
and cancelled, NML shall also be entitled to its pro rata portion of any
rights or obligations under the Seller Note and Royalty Agreement.
3. MODIFICATION OF PURCHASE PRICE CONSIDERATION. The
Sellers have agreed to accept, in payment of $8,000,000 of the Cash Portion
of the Purchase Price, a Convertible Subordinated Promissory Note of the
Buyer in the principal amount of $8,000,000 payable to the Sellers' Agent on
behalf of the Sellers, in the form of EXHIBIT 3 hereto (the "Seller Note").
Accordingly, on the Closing Date, the Buyer (a) shall pay to the Sellers, in
accordance with the terms of Section 1.3 of the Purchase Agreement,
$67,000,000 of the Cash Portion of the Purchase Price (minus (i) the
principal and interest and all other charges of indebtedness other than the
prepayment premium to NML, plus (ii) one-half of the prepayment premium on
the indebtedness owed to NML, up to a maximum payment by the Buyer of
$800,000) and (b) shall deliver the Seller Note to the Sellers' Agent.
4. MODIFICATION OF ROYALTY AGREEMENT. The Sellers and AIG
have agreed that the Sellers who are currently employees of AIG and the
Immaculate Conception Congregation shall forego their participation in any
payments which may be due to them now or in the future under the Royalty
Agreement, which has been modified to reflect this arrangement, and that the
Sellers listed on EXHIBIT 4 shall sign and be the beneficiaries of the
Royalty Agreement in the percentages listed thereon.
5. ELIMINATION OF ESCROW AGREEMENT. The Buyer and the
Sellers agree to eliminate the requirement of an Escrow Deposit pursuant to
Section 1.4 of the Purchase Agreement.
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Notwithstanding the foregoing, the Sellers acknowledge and agree that the
principal amount of the Seller Note shall be subject to offset by
indemnifiable Losses of the Buyer arising under Section 8.2 of the Purchase
Agreement in the same manner and to the same extent as previously described
in the Escrow Agreement attached as Exhibit E to the Purchase Agreement.
6. CLARIFICATION TO SECTION 8.2(C). Notwithstanding the
disclosures set forth in the Environmental Reports referred to in Section
3.18 of the Disclosure Schedule, the environmental indemnity obligations of
the Sellers contained in Section 8.2(c) of the Purchase Agreement include the
remediation requirements under Environmental Laws with respect to Crespin,
France and Port Carbon, Pennsylvania.
7. ALPINE EQUITY INVESTMENT. The Buyer will, on or prior to
the Closing, receive $5,000,000 cash from The Alpine Group, Inc. in
consideration of shares of the Buyer's Series C Convertible Preferred Stock
having the rights, restrictions, privileges and preferences as set forth in
the Certificate of Amendment of the Certificate of Incorporation of the
Buyer, a copy of which has been previously delivered to the Sellers' Agent.
8. CONFIDENTIALITY. The Buyer and the Sellers agree that
none of them will disclose, or permit any disclosure of, the existence, terms
or conditions of this letter agreement, except as, and only to the extent,
required by law or valid judicial process. Each of the Buyer and the Sellers
shall exhaust all legal defenses and remedies reasonably available to avoid
any such disclosure in the event that any legal claim or other judicial
process is asserted or utilized seeking to compel such disclosure.
9. THIRD PARTY RIGHTS. Except as otherwise expressly set
forth in Section 9.4 of the Purchase Agreement or, with respect to NML, as
set forth in the second paragraph of Section 2 above, the Purchase Agreement
as amended by this letter agreement shall inure to the sole benefit of the
parties thereto, and the Purchase Agreement as amended by this letter
agreement shall create no rights or benefits in any other Person.
10. EFFECT ON PURCHASE AGREEMENT; MISCELLANEOUS. The
Purchase Agreement shall be deemed to be amended and modified by the terms of
this letter agreement. Except as so amended and modified, all of the terms
and conditions of the Purchase Agreement shall remain in full force and
effect. This letter agreement shall be governed by the laws of the State of
New York and may be executed in one or more counterparts which together shall
constitute one instrument.
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If the foregoing is in accordance with your understanding,
please sign and return to the Buyer the enclosed counterpart of this letter,
whereupon this letter shall constitute a binding agreement between the Buyer,
AIG and the Sellers in accordance with its terms.
Very truly yours,
POLYVISION CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Chief Executive Officer
Agreed to and Accepted
as of the date first written above:
ALLIANCE INTERNATIONAL GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇
President and Chief Executive Officer
WIND POINT PARTNERS III, L.P.
By: Wind Point Partners, its General Partner
(as a Seller and Sellers' Agent)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Managing Member
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IMMACULATE CONCEPTION CONGREGATION
(a non-profit religious organization)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
WIND POINT III EXECUTIVE ADVISOR PARTNERS, L.P.
By: Wind Point Partners, its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Managing Member
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