Exhibit B
AMENDED AND RESTATED
STOCK PURCHASE AGREEMENT
Dated as of November 27, 2006
Between
Asahi Tec Corporation
And
The Purchasers listed on Schedule I hereto
TABLE OF CONTENTS
ARTICLE I
Purchase and Sale of Shares; Dollar/Yen Exchange
SECTION 1.01. Purchase and Sale of the Shares
SECTION 1.02. Dollar/Yen Exchange
ARTICLE II
Closing
SECTION 2.01. Closing
SECTION 2.02. Transactions to Be Effected at the Closing
ARTICLE III
Representations and Warranties of the Company
SECTION 3.01. Organization, Standing and Power
SECTION 3.02. Company Subsidiaries; Equity Interests
SECTION 3.03. Capital Structure; the Shares
SECTION 3.04. Authority; Execution and Delivery; Enforceability
SECTION 3.05. No Conflicts; Consents
SECTION 3.06. SEL Documents; Undisclosed Liabilities
SECTION 3.07. Information Supplied
SECTION 3.08. Absence of Certain Changes or Events
SECTION 3.09. Taxes
SECTION 3.10. Absence of Changes in Benefit Plans
SECTION 3.11. Benefit Plans
SECTION 3.12. Litigation
SECTION 3.13. Compliance with Applicable Laws
SECTION 3.14. Environmental Matters
SECTION 3.15. Intellectual Property
SECTION 3.16. Contracts; Debts Instruments
SECTION 3.17. Title to Real Properties
SECTION 3.18. Customers and Suppliers
SECTION 3.19. Brokers; Schedule of Fees and Expenses
SECTION 3.20. Financing
ARTICLE IV
Representations and Warranties of the Purchaser
SECTION 4.01. Organization, Standing and Power
SECTION 4.02. Accredited Investor; Private Offering
SECTION 4.03. Authority; Execution and Delivery; Enforceability
SECTION 4.04. No Conflicts; Consents
SECTION 4.05. Information Supplied
SECTION 4.06. Brokers
ARTICLE V
Covenants Relating to Conduct of Business
SECTION 5.01. Conduct of Business
SECTION 5.02. No Solicitation
ARTICLE VI
Additional Agreements
SECTION 6.01. Preparation of Information Statement
SECTION 6.02. Access to Information; Confidentiality
SECTION 6.03. Commercially Reasonable Efforts; Notification
SECTION 6.04. Fees and Expenses
SECTION 6.05. Public Announcements
SECTION 6.06. Transfer Taxes
ARTICLE VII
Conditions Precedent
SECTION 7.01. Conditions to Each Party's Obligation To Effect The Acquisition
SECTION 7.02. Conditions to Obligations of the Purchaser
SECTION 7.03. Condition to Obligation of the Company
ARTICLE VIII
Termination, Amendment and Waiver
SECTION 8.01. Termination
SECTION 8.02. Effect of Termination
SECTION 8.03. Amendment
SECTION 8.04. Extension; Waiver
ARTICLE IX
General Provisions
SECTION 9.01. Nonsurvival of Representations and Warranties
SECTION 9.02. Notices
SECTION 9.03. Definitions
SECTION 9.04. Interpretation
SECTION 9.05. Severability
SECTION 9.06. Counterparts
SECTION 9.07. Entire Agreement; No Third-Party Beneficiaries
SECTION 9.08. Governing Law
SECTION 9.09. Assignment
SECTION 9.10. Enforcement
SECTION 9.11. Agreement and Waiver of Certain Rights
AMENDED AND RESTATED STOCK PURCHASE AGREEMENT (this "Agreement") dated as of
November 27, 2006, between Asahi Tec Corporation, a Japanese corporation (the
"Company") and the persons named on Schedule I hereto (collectively, the
"Purchaser").
WHEREAS the Company and the Purchaser entered into a Stock Purchase Agreement
dated as of August 31, 2006 (the "Original Agreement"), and wish to amend and
restate the Original Agreement as set forth herein;
WHEREAS the Purchaser desires to subscribe for and purchase from the Company,
and the Company desires to issue and sell to the Purchaser, 18,025,238 newly
issued shares of common stock of the Company (the "Shares");
WHEREAS simultaneously with the execution and delivery of this Agreement and as
a condition to the parties' willingness to enter into this Agreement, the
Company, Argon Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of the Company ("Acquisition Sub"), and Metaldyne Corporation, a
Delaware corporation ("Mercury"), have entered into an amended and restated
agreement and plan of merger dated as of the date of this Agreement (the "Merger
Agreement"), whereby Acquisition Sub will be merged with and into Mercury, with
Mercury as the surviving corporation, and Mercury will become a wholly-owned
subsidiary of the Company (the "Merger");
WHEREAS simultaneously with the execution and delivery of this Agreement and as
a condition to the Purchaser's willingness to enter into this Agreement, RHJ
International S.A. ("RHJI") has executed and delivered to the Purchasers'
Representative (as defined in the Company Stock Purchase Agreement) an amended
and restated voting agreement (the "Company Voting Agreement") dated as of the
date of this Agreement in the form attached hereto as Exhibit A;
WHEREAS simultaneously with the execution and delivery of this Agreement and as
a condition to the Purchaser's willingness to enter into this Agreement, RHJI
and the Purchasers (as defined in the Company Stock Purchase Agreement) have
entered into an amended and restated agreement in the form attached hereto as
Exhibit B (the "Stockholders Agreement") dated as of the date of this Agreement,
to be effective as of the Closing, whereby the Purchasers and RHJI agree to
certain matters with respect to the Company;
WHEREAS simultaneously with the execution and delivery of this Agreement and as
a condition to the Purchaser's willingness to enter into this Agreement, the
Company and each of the holders of (i) the Series A Mercury Preferred Stock and
(ii) the Series A-1 Mercury Preferred Stock (together, the "Mercury Preferred
Stock") have entered into an amended and restated agreement (each, an "Other
Stock Purchase Agreement") dated as of the date of this Agreement whereby
holders of the Mercury Preferred Stock shall acquire for cash newly issued
shares of convertible preferred stock of the Company (the "Company Class C
Preferred Stock") using the Merger Consideration (as defined in the Merger
Agreement) received by such holders as consideration for such preferred stock
(each, together with the transactions contemplated by the Company Stock Purchase
Agreement, an "Other Stock Acquisition");
WHEREAS the Company and the Purchaser desire to make certain representations,
warranties, covenants and agreements in connection with the Acquisition (as
defined in Section 1.01) and also to prescribe various conditions to the
Acquisition;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
Purchase and Sale of Shares; Dollar/Yen Exchange
SECTION 1.01. Purchase and Sale of the Shares. On the terms and subject to the
conditions of this Agreement, at the Closing (as defined in Section 2.01), the
Company shall issue, sell, transfer and deliver to the Purchaser, and the
Purchaser shall subscribe for and purchase from the Company, 18,025,238 Shares
(allocated among the Purchaser as set forth on Schedule I) for a purchase price
per share equal to (Y)206 (the "Purchase Price"), payable in Japanese yen as set
forth below in Section 2.02. The issuance, purchase and sale of the Shares is
referred to in this Agreement as the "Acquisition". The Acquisition and the
other transactions contemplated by this Agreement and the other Transaction
Agreements are referred to in this Agreement collectively as the "Transactions".
SECTION 1.02. Dollar/Yen Exchange. On the terms and subject to the conditions of
this Agreement, the Purchaser agrees that, in lieu of being paid the Merger
Consideration (as defined in the Merger Agreement) to which it is entitled under
the Merger Agreement in U.S. dollars, it will accept such Merger Consideration
converted into Japanese yen at an exchange rate of (Y)117.205 per U.S. dollar
(the "Exchange Rate"). Prior to the Effective Time (as defined in the Merger
Agreement), the Company shall deposit with the PCS Paying Agent (as defined in
the Merger Agreement) the aggregate amount of the Merger Consideration, in yen
determined at the Exchange Rate, due to the Purchaser under the Merger
Agreement.
ARTICLE II
Closing
SECTION 2.01. Closing. The closing (the "Closing") of the Acquisition shall take
place at the offices of Cravath, Swaine & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at the same time during Tokyo business hours that the
Merger closing occurs, on the second business day following the satisfaction
(or, to the extent permitted, waiver by all parties) of the conditions set forth
in Section 7.01, or, if on such day any condition set forth in Section 7.02 or
7.03 has not been satisfied (or, to the extent permitted, waived by the party or
parties entitled to the benefits thereof), as soon as practicable after all the
conditions set forth in Article VII have been satisfied (or, to the extent
permitted, waived by the party or parties entitled to the benefits thereof), or
at such other place, time and date as shall be agreed in writing between the
Company and the Purchaser. The date on which the Closing occurs is referred to
in this Agreement as the "Closing Date".
SECTION 2.02. Transactions to Be Effected at the Closing. (a) As soon as
commercially practicable after the Closing, the Company shall deliver to the
Purchaser certificates representing the Purchaser's Shares, duly endorsed in
blank or accompanied by stock powers duly endorsed in blank in proper form for
transfer, with appropriate transfer tax stamps, if any, affixed; and
(b) At the Closing, the Purchaser shall deliver to the PCS Paying Agent the
Certificate or Certificates (as defined in the Merger Agreement) representing
the shares of Series B Preferred Stock of Mercury held of record by the
Purchaser, in accordance with the Merger Agreement and the instructions provided
in the letter of transmittal provided to the Purchaser by the PCS Paying Agent
(or a duly executed undertaking as required by the letter of transmittal if the
Purchaser no longer holds physical certificates), and, upon such delivery, shall
instruct the PCS Paying Agent to deliver, from the Merger Consideration
represented by such Certificate or Certificates, to the Company payment, to a
bank account designated in writing by the Company (such designation to be made
at least two business days prior to the Closing Date), of immediately available
funds in an amount of Japanese yen equal to the Purchase Price multiplied by
9,490,893.
(c) At the Closing, the Purchaser shall deliver to the Company payment, to a
bank account designated in writing by the Company (such designation to be made
at least two business days prior to the Closing Date), of immediately available
funds in an amount of Japanese yen equal to the Purchase Price multiplied by
8,534,345.
ARTICLE III
Representations and Warranties of the Company
The Company represents and warrants to the Purchaser that, except as set forth
in the letter, dated as of the date of this Agreement, from the Company to the
Purchaser (the "Company Disclosure Letter"):
SECTION 3.01. Organization, Standing and Power. Each of the Company and each of
its subsidiaries, including such entities organized under the laws of
non-Japanese jurisdictions (the "Company Subsidiaries"), is duly organized,
validly existing and in good standing (where such concept is applicable) under
the laws of the jurisdiction in which it is organized and has full corporate
power and authority, except, in the case of the Company Subsidiaries that are
not Significant Company Subsidiaries (as defined below), where the failure to be
duly organized, validly existing and in good standing, individually or in the
aggregate, has not had and would not be reasonably likely to have a material
adverse effect on the Company (a "Company Material Adverse Effect"). The Company
and each Company Subsidiary is duly qualified to do business in each
jurisdiction where the nature of its business or their ownership or leasing of
its properties make such qualification necessary or the failure to so qualify
has had or would be reasonably likely to have a Company Material Adverse Effect.
The Company has made available to the Purchaser true and complete copies of the
articles of incorporation of the Company, as amended to the date of this
Agreement (as so amended, the "Company Charter").
SECTION 3.02. Company Subsidiaries; Equity Interests. (a) Section 3.02(a) of the
Company Disclosure Letter lists each Significant Company Subsidiary (as defined
below) and its jurisdiction of organization. All the outstanding shares of
capital stock of each Company Subsidiary have been validly issued and are fully
paid and nonassessable and are, as of the date of this Agreement, owned by the
Company, by one or more Company Subsidiaries or by the Company and another
Company Subsidiary, free and clear of all pledges, liens, charges, mortgages,
rights of first refusal, options, restrictions (other than restrictions imposed
under applicable Law), leases, licenses, easements, encumbrances and security
interests of any kind or nature whatsoever (collectively, "Liens"). The Company
has made available to the Purchaser true and complete copies of the articles of
incorporation and by-laws, or comparable charter and organizational documents,
of each Significant Subsidiary, in each case amended through the date of this
Agreement. For purposes of this Agreement, a "Significant Company Subsidiary"
means any subsidiary of the Company that constitutes a significant subsidiary
within the meaning of Rule 1-02 of Regulation S-X of the United States
Securities and Exchange Commission (the "U.S. SEC").
(b) Except for its interests in the Company Subsidiaries, the Company does not
as of the date of this Agreement own, directly or indirectly, any capital stock,
membership interest, partnership interest, joint venture interest or other
equity interest with a fair market value in excess of U.S. $1 million in any
person.
SECTION 3.03. Capital Structure; the Shares. (a) The authorized number of shares
of each class of capital stock of the Company consists of 358,412,200 shares of
Company common stock ("Company Common Stock"), 28,572,000 shares of Company
Preferred Class A Stock ("Company Class A Preferred Stock") and 80,000,000
shares of Company Preferred Class B Stock ("Company Class B Preferred Stock"
and, together with the Company Class A Preferred Stock, the "Company Preferred
Stock" and, together with the Company Common Stock, the "Company Capital
Stock"). The total authorized number of shares of Capital Stock of the Company
is 397,510,516 shares. As of the date of this Agreement, (i) 60,320,132 shares
of Company Common Stock and 28,572,000 shares of Company Class A Preferred Stock
and 10,526,316 shares of Company Class B Preferred Stock were issued and
outstanding, (ii) 90,294 shares of Company Common Stock were held by the Company
in its treasury and (iii) 5,217,882 shares of Company Common Stock were subject
to outstanding options to purchase Company Common Stock ("Company Stock
Options"). Except as set forth above, as of the date of this Agreement, no
shares of capital stock or other voting securities of the Company were issued,
reserved for issuance or outstanding. As of the date of this Agreement, there
were outstanding Company Stock Options to purchase 2,429,558 shares of Company
Common Stock with exercise prices on a per share basis lower than (Y)220 and the
weighted average exercise price of such Company Stock Options was equal to
(Y)204.8 per share. All outstanding shares of Company Common Stock are, and all
such shares that may be issued prior to the Closing will be when issued, duly
authorized, validly issued, fully paid and nonassessable and not subject to or
issued in violation of any purchase option, call option, right of first refusal,
preemptive right, subscription right or any similar right under any provision of
the Japanese Corporation Law ("JCL"), the Company Charter or any Contract (as
defined in Section 3.05) to which the Company is a party or otherwise bound.
There are not any bonds, debentures, notes or other indebtedness of the Company
having the right to vote (or convertible into, or exchangeable for, securities
having the right to vote) on any matters on which holders of Company Common
Stock may vote ("Voting Company Debt"). Except as set forth above and except for
the Equity Commitment (as defined below), there are not any options, warrants,
rights, convertible or exchangeable securities, "phantom" stock rights, stock
appreciation rights, stock-based performance units, commitments, Contracts,
arrangements or undertakings of any kind to which the Company or any Company
Subsidiary is a party or by which any of them is bound (i) obligating the
Company or any Company Subsidiary to issue, deliver or sell, or cause to be
issued, delivered or sold, additional shares of capital stock or other equity
interests in, or any security convertible or exercisable for or exchangeable
into any capital stock of or other equity interest in, the Company or of any
Company Subsidiary or any Voting Company Debt, (ii) obligating the Company or
any Company Subsidiary to issue, grant, extend or enter into any such option,
warrant, call, right, security, commitment, Contract, arrangement or undertaking
or (iii) that give any person the right to receive any economic benefit or right
similar to or derived from the economic benefits and rights occurring to holders
of Company Common Stock. There are not any outstanding contractual obligations
of the Company or any Company Subsidiary to repurchase, redeem or otherwise
acquire any shares of capital stock of the Company or any Company Subsidiary.
(b) With respect to the Purchaser, assuming the Purchaser has the requisite
power and authority to be the lawful owner of the Shares set forth on Schedule I
hereto opposite the name of the Purchaser, upon payment of the Purchase Price by
the Purchaser at the Closing, such Shares will be duly authorized, validly
issued, fully paid and non-assessable, and, subject to the terms of the
Stockholders Agreement, free and clear of any Liens, other than those arising
from acts of the Purchaser or its affiliates, and free and clear of any
restrictive or other legend. Other than this Agreement and the Stockholders
Agreement, such Shares will not be subject to any voting trust agreement or
other Contract, including any Contract restricting or otherwise relating to the
voting, dividend rights or disposition of such Shares. Upon issuance of the
Shares, (i) the Shares will have been duly registered under the requirements of
the SEL, (ii) an application for the listing thereof will have been duly filed
with the TSE and (iii) subject to the terms of the Stockholders Agreement and to
TSE reporting requirements, the Shares may be transferred by the Purchaser
without the requirement of further registration thereof under the requirements
of the SEL or the TSE, other than as a result of acts of the Purchaser.
(c) As of the date of this Agreement, the TSE (as defined in Section 3.05(b))
has acknowledged the Transactions, has indicated (orally or in writing) to the
Company (or its representatives) that the consummation of the Transactions will
not result in a proceeding by the TSE to delist the Company Common Stock from
the TSE and the Company has not been notified (and none of the directors of the
Company has been notified) that the TSE has commenced or intends to commence a
proceeding to delist the Shares from the TSE as a result of the Transactions.
SECTION 3.04. Authority; Execution and Delivery; Enforceability. (a) The Company
has all requisite corporate power and authority to execute and deliver this
Agreement and the Transaction Agreements to which it is a party and to
consummate the Transactions to which it is a party. The execution and delivery
by the Company of this Agreement and each of the Transaction Agreements to which
it is a party and the consummation by the Company of the Transactions to which
it is a party have been duly authorized by all necessary corporate action on the
part of the Company, subject, in the case of the issuance of the Company Class C
Preferred Stock, to receipt of the Company Stockholder Approval (as defined
below). The Company has duly executed and delivered this Agreement, and each
Transaction Agreement to which it is a party and this Agreement and each
Transaction Agreement to which it is a party, assuming the due authorization,
execution and delivery thereof by the other parties hereto and thereto,
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms.
(b) The board of directors of the Company (the "Company Board"), at a meeting
duly called and held duly and unanimously adopted resolutions (i) approving this
Agreement and the other Transaction Agreements, the Acquisition and the other
Transactions, (ii) determining that the terms of the Acquisition and the other
Transactions are fair to and in the best interests of the stockholders of the
Company, (iii) approving the amendment of the Company Charter to authorize the
Company Class C Preferred Stock (the "Company Charter Amendment") and (iv)
recommending that the Company's stockholders approve the Company Charter
Amendment.
(c) The only vote of holders of any class or series of Company Capital Stock
necessary to consummate the Acquisition and other Transactions is (A) the
approval of the Company Charter Amendment (i) by the two-thirds affirmative vote
of the total number of votes held by the stockholders present at the Company
Common Stock stockholders meeting, (ii) by the two-thirds affirmative vote of
the total number of votes held by the stockholders present at the Company Class
A Preferred Stock stockholders meeting, (iii) by the two-thirds affirmative vote
of the total number of votes held by the stockholders present at the Company
Class B Preferred Stock stockholders meeting, and (iv) by the two-thirds
affirmative vote of the total number of votes held by the stockholders present
at the general stockholders meeting of the Company, (B) the approval of the
delegation of authority to the Company Board to determine the terms of the
issuance of the Company Class C Preferred Stock upon favorable terms by the
two-thirds affirmative vote of the total number of votes held by the
stockholders present at the general stockholders meeting of the Company and (C)
the approval of the delegation of authority to the Company Board to determine
the terms of the issuance of Company Stock Options upon favorable terms by the
two-thirds affirmative vote of the total number of votes held by the
stockholders present at the general stockholders meeting of the Company, which,
in the case of each of (A), (B) and (C), may and will be effected at the Company
Stockholders Meetings (as defined in Section 6.01(b)) (the "Company Stockholder
Approval"). The affirmative vote of the holders of Company Capital Stock, or any
of them, is not necessary to approve any Transaction Agreement or consummate any
Transaction other than the Company Charter Amendment and the matters referred to
in this Section 3.04(c).
SECTION 3.05. No Conflicts; Consents. (a) The execution and delivery by the
Company of this Agreement and each Transaction Agreement to which it is a party
do not and the consummation of the Acquisition and the other Transactions to
which it is a party and compliance with and performance of the terms hereof and
thereof will not, conflict with, or result in any violation of or default (with
or without notice or lapse of time, or both) under, or give rise to a right of
termination, cancelation or acceleration of any obligation or to loss of a
material benefit under, or to increased, additional, accelerated or guaranteed
rights or entitlements of any person under, or result in the creation of any
Lien upon any of the properties or assets of the Company or any Company
Subsidiary under, any provision of (i) the Company Charter or the comparable
charter or organizational documents of any Significant Company Subsidiary, (ii)
subject to effectiveness of the Company Facility Amendments (as defined in
Section 3.20) as contemplated by the Company Consent Letter (as defined in
Section 3.20), any material contract, lease, license, indenture, note, bond,
agreement, permit, concession, franchise or other instrument (a "Contract") to
which the Company or any Company Subsidiary is a party or by which any of their
respective properties or assets is bound or (iii) subject to the filings and
other matters referred to in Section 3.05(b), any material judgment, order or
decree ("Judgment") or statute, law (including common law), ordinance, rule or
regulation ("Law") applicable to the Company or any Company Subsidiary or their
respective properties or assets, other than, in the case of clauses (ii) and
(iii) above, any such items that, individually or in the aggregate, have not had
and would not be reasonably likely to have a Company Material Adverse Effect
(excluding for purposes of this Section 3.05(a) and the application of Section
7.02(a) hereto, clause (a)(iii) of the definition "material adverse effect").
(b) No consent, approval, license, permit, order or authorization ("Consent")
of, or registration, declaration or filing with, or permit from, any national,
local or foreign government or any court of competent jurisdiction,
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign (a "Governmental Entity") is required to be
obtained or made by or with respect to the Company or any Company Subsidiary in
connection with the execution, delivery and performance of this Agreement or any
Transaction Agreement to which it is a party and the consummation of the
Transactions to which it is a party, other than (i) compliance with and filings
under (A) the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended
(the "HSR Act"), (B) Japanese Anti-Monopoly Law (Law No. 54 of 1947, as amended)
(the "Japanese Anti-Monopoly Law"), (C) other Antitrust Laws (as defined in
Section 6.03(c)), (D) the Foreign Exchange and Foreign Trade Law of Japan (Law
No. 228 of 1949, as amended) (the "FEL"), (E) the rules and regulations of the
Tokyo Stock Exchange ("TSE"), (F) the JCL and (G) the Japanese Commercial
Registration Law (Law ▇▇. ▇▇▇ ▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇) (▇▇▇ "▇▇▇"), (▇▇) the filing
with the U.S. SEC of (A) an information statement with respect to the Merger
(such information statement, including all information required to be included
therein by Rule 13e-3 promulgated under the Securities and Exchange Act of 1934,
as amended (the "Exchange Act"), as such information statement is amended from
time to time, the "U.S. Information Statement") and (B) such reports under
Section 13 of the Exchange Act as may be required in connection with this
Agreement, the other Transaction Agreements, the Merger and the other
Transactions, (iii) the filing with the Kanto Local Finance Bureau or any other
local finance bureau (collectively, the "Bureau") of such registration, reports
and other information (such registration, reports and other information, as
amended from time to time, the "Information Statement") as may be required under
the Japanese Securities and Exchange Law (Law No. 25 of 1948, as amended) (the
"SEL") in connection with this Agreement, the other Transaction Agreements, the
Acquisition and the other Transactions, (iv) the filing of a certificate of
merger in connection with the Merger with the Secretary of State of the State of
Delaware and appropriate documents with the relevant authorities of the other
jurisdictions in which the Company is qualified to do business, (v) compliance
with and such filings as may be required under applicable Environmental Laws (as
defined in Section 3.14), (vi) such filings as may be required in connection
with the Taxes described in Section 6.06, (vii) filings under any applicable
state takeover Law and (viii) such other items (A) required solely by reason of
the participation of the Purchaser (as opposed to any third party) in the
Transactions or (B) that, individually or in the aggregate, have not had and
would not be reasonably likely to have a Company Material Adverse Effect
(excluding for purposes of this Section 3.05(b) and the application of Section
7.02(a) hereto, clause (a)(iii) of the definition "material adverse effect").
SECTION 3.06. SEL Documents; Undisclosed Liabilities. (a) The Company has filed
all reports, schedules, forms, statements and other documents required to be
filed by the Company with the Bureau, since March 31, 2006, pursuant to the
regulations of the SEL (the "Company SEL Documents").
(b) As of its respective date, each Company SEL Document complied in all
material respects with the requirements of the SEL, as the case may be, and the
rules and regulations under the SEL applicable to such Company SEL Document, and
did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The consolidated financial statements of the Company included in
the Company SEL Documents comply as of their respective dates as to form in all
material respects with applicable accounting requirements and the published
rules and regulations under the SEL with respect thereto, have been prepared in
accordance with Japanese generally accepted accounting principles ("GAAP")
applied on a consistent basis during the periods involved (except as may be
indicated in the notes thereto) and fairly present the consolidated financial
position of the Company and its consolidated subsidiaries as of the dates
thereof and the consolidated results of their operations and cash flows for the
periods shown (subject, in the case of unaudited statements, to normal year-end
audit adjustments and lack of footnote disclosure as permitted under the SEL.
(c) Except as set forth in the most recent audited consolidated balance sheet of
the Company (including the notes thereto) included in the Filed Company SEL
Documents (as defined in Section 3.08), and except for liabilities and
obligations incurred in the ordinary course of business since the date of such
balance sheet, neither the Company nor any Company Subsidiary has any
liabilities or obligations of any nature (whether accrued, absolute, contingent
or otherwise) required by GAAP to be set forth on a consolidated balance sheet
of the Company and its consolidated subsidiaries or in the notes thereto that,
individually or in the aggregate, would be reasonably likely to have a Company
Material Adverse Effect.
(d) The effectiveness of any additional disclosure requirement or applicable
accounting rule, consensus or pronouncement that has been formally proposed or
adopted by the FSA (as defined in Section 6.01), any Japanese financial
accounting standards board or any similar body but that is not yet in effect, is
not reasonably likely to lead to any material change in the Company's
disclosures as set forth in the Filed Company SEL Documents.
(e) None of the Company Subsidiaries is, or has at any time since March 31,
2006, been, subject to (separately from the Company) the reporting requirements
under the SEL.
SECTION 3.07. Information Supplied. None of the information supplied or to be
supplied by the Company for inclusion or incorporation by reference in the
Information Statement or any other document required to be filed by the Company
with the Bureau relating to the Transactions, including the Acquisition (the
"Company Disclosure Documents") will contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they are made, not misleading. The Company Disclosure Documents will
comply as to form in all material respects with the requirements of the SEL and
the rules and regulations thereunder, except that no representation is made by
the Company with respect to statements made or incorporated by reference therein
or omitted therefrom based on information supplied by the Purchaser in writing
for inclusion or incorporation by reference therein.
SECTION 3.08. Absence of Certain Changes or Events. (a) From the date of the
most recent audited financial statements included in the Company SEL Documents
filed and publicly available prior to the date of this Agreement (the "Filed
Company SEL Documents") to the date of this Agreement, the Company has conducted
its business only in the ordinary course, and during such period there has not
been:
(i) any event, change, effect, development or state of facts that, individually
or in the aggregate, has had or would be reasonably likely to have a Company
Material Adverse Effect;
(ii) any declaration, setting aside, allotment or payment of any dividend or
other distribution (whether in cash, stock or property) with respect to any
Company Common Stock or any repurchase for value by the Company of any Company
Common Stock;
(iii) any split, combination or reclassification of any Company Common Stock or
any issuance or the authorization of any issuance of any other securities in
respect of, in lieu of or in substitution for shares of Company Common Stock;
(iv) (A) any grant by the Company or any Company Subsidiary to any current
director or officer of the Company or to any other employee or independent
contractor of the Company or any Company Subsidiary reasonably likely to earn
annual base compensation and bonuses in 2006 of $200,000 or more (any such
current director or officer of the Company or other employee or independent
contractor, a "Covered Participant") of any loan or any increase in any type of
compensation, benefits, perquisites or bonus or award opportunity, except for
grants of normal cash bonus opportunities, normal increases of cash compensation
and increases in fringe or other benefits that are not material, in each case in
the ordinary course of business consistent with prior practice or as was
required under employment agreements in effect as of the date of the most recent
audited financial statements included in the Filed Company SEL Documents, (B)
any grant by the Company or any Company Subsidiary to any Covered Participant of
any severance, change in control, termination or similar compensation or
benefits or increases therein, or of the right to receive any severance, change
in control, termination or similar compensation or benefits or increases
therein, except as was required under employment, severance or termination
agreements in effect as of the date of the most recent audited financial
statements included in the Filed Company SEL Documents, (C) any action by the
Company or any Company Subsidiary to fund or in any other way secure the payment
of a material amount of compensation or benefits under any Company Benefit Plan
(as defined in Section 3.10(a)) or Company Benefit Agreement (as defined in
Section 3.10(b)) or (D) any entry by the Company or any Company Subsidiary into,
or any amendment of, any Company Benefit Agreement with any Covered Participant;
(v) any damage, destruction or loss, whether or not covered by insurance, that,
individually or in the aggregate, would be reasonably likely to have a Company
Material Adverse Effect;
(vi) any change in accounting methods, principles or practices by the Company or
any Company Subsidiary materially affecting the consolidated assets, liabilities
or results of operations of the Company, except insofar as may have been
required by a change in GAAP or applicable Law;
(vii) any material elections with respect to Taxes (as defined in Section 3.09)
by the Company or any Company Subsidiary or settlement or compromise by the
Company or any Company Subsidiary of any material Tax liability or refund;
(viii) any material revaluation by the Company or any Company Subsidiary of any
of the material assets of the Company or any Company Subsidiary, except insofar
as may have been required by applicable Law; or
(ix) any action by the Company or any Company Subsidiary which, if taken after
the date hereof, would constitute a breach of any provisions of Section
5.01(a)(ii), (iv) or (vi) or any authorization, consent or agreement by the
Company or any Company Subsidiary to take any of the actions prohibited by the
foregoing provisions of Section 5.01(a).
SECTION 3.09. Taxes. (a) The Company, and each Company Subsidiary, has duly and
timely filed, or has caused to be timely filed on its behalf, all material Tax
Returns required to be filed by it. All such Tax Returns were true, correct and
complete in all material respects. All material Taxes owed (whether or not shown
on any Tax Return) have been timely paid in full. To the Company's knowledge, no
claim has been made in writing during the three year period ending on the
Closing Date by an authority in a jurisdiction where the Company, or any Company
Subsidiary, does not file Tax Returns that the Company, or any Company
Subsidiary, is or may be subject to taxation by that jurisdiction. There are no
liens with respect to Taxes upon any asset of the Company, or any Company
Subsidiary, other than liens for Taxes not yet due and payable.
(b) The Company, and each Company Subsidiary, has deducted, withheld and timely
paid to the appropriate governmental authority all material Taxes required to be
deducted, withheld or paid in connection with amounts paid or owing to any
employee, independent contractor, creditor, stockholder or other third party,
and the Company, and each Company Subsidiary, has complied with all material
reporting and record keeping requirements.
(c) No dispute, audit, investigation, proceeding or claim concerning any
material Tax liability of the Company, or any Company Subsidiary, has been
raised by a governmental authority in writing, and to the Company's knowledge,
no such dispute, audit, investigation, proceeding, or claim is pending or being
conducted. The Company has provided or made available to the Purchaser true,
correct and complete copies of all material Tax Returns, examination reports,
and statements of deficiencies filed, assessed against, or agreed to by the
Company or any Company Subsidiary since January 1, 2001.
(d) The Company, and each Company Subsidiary, has not waived any statute of
limitations in respect of material Taxes or agreed to any extension of time with
respect to a material Tax assessment or deficiency. The Company, and each
Company Subsidiary, has not executed any power of attorney with respect to any
Tax, other than powers of attorney that are no longer in force. Section 3.09(d)
of the Company Disclosure Letter lists all closing agreements, private letter
rulings, technical advice memoranda, binding oral agreements, rulings or advice
or similar agreements or rulings relating to Taxes that have been entered into
or issued by any governmental authority with or in respect of the Company and
each Company Subsidiary since January 1, 2001.
(e) The Company, and each Company Subsidiary, is not a party to any contractual
obligation relating to Tax sharing or Tax allocation, other than customary
commercial agreements with vendors, lenders, customers and other third parties
(such as tax gross-ups in loan agreements or property tax escalation clauses in
real estate leases) entered into in the ordinary course of business. The
Company, and each Company Subsidiary, does not have any material liability for
the Taxes of any person under any provision of national, local or foreign law,
as a transferee or successor or by contract.
(f) The Company, and each Company Subsidiary, will not be required to include
any amount in taxable income or exclude any item of deduction or loss from
taxable income for any taxable period (or portion thereof) ending after the
Closing Date as a result of (a) any "closing agreement" as described in any
provision of national, state, local or foreign Income Tax law executed on or
prior to the Closing Date, (b) any deferred intercompany gain or excess loss
account described in any provision or administrative rule of national, local or
foreign law, (c) any installment sale or open transaction disposition made on or
prior to the Closing Date, or (d) any prepaid amount received on or prior to the
Closing Date.
(g) For purposes of this Agreement:
"Tax" or "Taxes" means (i) any and all national, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental, customs duties, capital stock,
franchise, profits, withholding, social security (or similar), unemployment,
disability, real property, personal property, sales, use, transfer,
registration, value added, alternative or add-on minimum, estimated, or other
tax of any kind or any charge of any kind in the nature of (or similar to) taxes
whatsoever, including any interest, penalty, or addition thereto, whether
disputed or not and (ii) any liability for the payment of any amounts of the
type described in clause (i) of this definition as a result of being a member of
an affiliated, consolidated, combined or unitary group for any period, as a
result of any tax sharing or tax allocation agreement, arrangement or
understanding, or as a result of being liable for another person's taxes as a
transferee or successor or by contract.
"Tax Return" or "Return" means all national, local and foreign Tax returns,
declarations, statements, reports, schedules, forms and information returns and
any amended Tax return relating to Taxes.
SECTION 3.10. Absence of Changes in Benefit Plans. (a) From the date of the most
recent audited financial statements included in the Filed Company SEL Documents
to the date of this Agreement, neither the Company nor any Company Subsidiary
has terminated, adopted, amended, modified or agreed to terminate, adopt, amend
or modify (or announced an intention to terminate, adopt, amend or modify), in
any material respect, any collective bargaining agreement or any bonus, pension,
profit sharing, deferred compensation, incentive compensation, equity
compensation, stock ownership, stock purchase, stock appreciation, restricted
stock, stock option, phantom stock, performance, retirement, thrift, savings,
stock bonus, cafeteria, paid time off, perquisite, fringe benefit, vacation,
unemployment insurance, severance, change in control, termination, retention,
disability, death benefit, hospitalization, medical or other welfare benefit or
other employee benefit plan, program, policy or arrangement, whether oral or
written, funded or unfunded, sponsored, maintained, contributed to or required
to be sponsored, maintained or contributed to by the Company or any Company
Subsidiary or any other person or entity that, together with the Company or any
Company Subsidiary, is treated as a single employer under any applicable Law
(each, a "Commonly Controlled Entity"), in each case providing benefits to any
current or former director, officer, employee or independent contractor of the
Company or any Company Subsidiary (each, a "Participant") and whether or not
subject to Japanese law (all such plans, programs and arrangements, including
any such plan, program or arrangement entered into or adopted on or after the
date of this Agreement, "Company Benefit Plans") or has made any material change
in any actuarial or other assumption used to calculate funding obligations with
respect to any Company Benefit Plan that is a Company Pension Plan (as defined
in Section 3.11(a)), or any material change in the manner in which contributions
to any such Company Pension Plan are made or the basis on which such
contributions are determined.
(b) As of the date of this Agreement, there is not any material (i) employment,
deferred compensation, severance, change in control, termination, employee
benefit, loan, indemnification, retention, equity compensation, bonus, award,
consulting or similar agreement between the Company or any Company Subsidiary,
on the one hand, and any Participant, on the other hand, (ii) agreement between
the Company or any Company Subsidiary, on the one hand, and any Participant, on
the other hand, the benefits of which are contingent, or the terms of which are
materially altered, upon the occurrence of transactions involving the Company or
any Company Subsidiary of the nature contemplated by this Agreement or (iii)
trust or insurance Contract or other agreement to fund or otherwise secure
payment of any compensation or benefit to be provided to any Participant (all
such agreements under clauses (i), (ii) and (iii), collectively, "Company
Benefit Agreements").
(c) To the Company's knowledge, the exercise price of each Company Stock Option
is not less than the fair market value of a share of Company Common Stock as
determined on the date of grant of such Company Stock Option.
SECTION 3.11. Benefit Plans. (a) Section 3.11(a) of the Company Disclosure
Letter contains a complete and correct list of all Company Benefit Plans that
are "employee pension benefit plans" (as defined in Section 3(2) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")), whether or not
subject to ERISA (a "Company Pension Plan"), or "employee welfare benefit plans"
(as defined in Section 3(1) of ERISA), whether or not subject to ERISA, and all
other material Company Benefit Plans. The Company has delivered or made
available to the Purchaser complete and correct copies of (i) each such Company
Benefit Plan and each material Company Benefit Agreement (or, in the case of any
such Company Benefit Plan or material Company Benefit Agreement that is
unwritten, a written description thereof), (ii) the two most recent annual
reports required to be filed, or such similar reports, statements, information
returns or material correspondence required to be filed with or delivered to any
Governmental Entity, with respect to each material Company Benefit Plan , (iii)
the most recent summary plan description for each material Company Benefit Plan
for which a summary plan description is required under applicable Law, and any
summary of material modifications prepared for each material Company Benefit
Plan, (iv) each trust agreement and group annuity or insurance contract and
other documents relating to the funding or payment of benefits under any
material Company Benefit Plan, (v) the most recent determination or
qualification letter issued by any Governmental Entity for each Company Benefit
Plan intended to qualify for favorable Tax treatment for which such a letter has
been obtained, as well as a true, correct and complete copy of each pending
application therefor, if applicable, and (vi) the two most recent actuarial
valuations for each material Company Benefit Plan for which actuarial valuations
have been obtained. Section 3.11(a) of the Company Disclosure Letter sets forth
the forecasted obligation amount as of December 31, 2005, as determined by GAAP,
for each Company Benefit Plan. Proper provision or reserve for the Company
Benefit Plans and for all private pension payments reasonably likely to be
required to be made by the Company has been made for accounting purposes under
GAAP.
(b) (i) Each Company Benefit Plan has been administered in compliance with its
terms, and (ii) each Company Benefit Plan (and the Company and the Company
Subsidiaries with respect to such plans) is in compliance with applicable Law
and the terms of any applicable collective bargaining agreements, except for
such instances of noncompliance with either plan terms or Laws that,
individually or in the aggregate, have not had and would not reasonably be
likely to have a Company Material Adverse Effect.
(c) Each Company Benefit Plan required to have been approved by any non-U.S.
Governmental Entity (or permitted to have been approved to obtain any beneficial
Tax or other status) has been so approved; no such approval has been revoked
(nor, to the knowledge of the Company, has revocation been threatened) and no
event has occurred since the date of the most recent approval that could
reasonably be expected to affect any such approval, except for such failures to
approve, revocations of approval and events that, individually or in the
aggregate, have not had and would not be reasonably likely to have a Company
Material Adverse Effect.
(d) None of the Company, any Company Subsidiary, any employee of the Company or
any Company Subsidiary, any of the Company Benefit Plans, including the Company
Pension Plans and, to the knowledge of the Company, any trusts created under any
of the Company Benefit Plans or any trustee, administrator or other fiduciary of
any Company Benefit Plan or trust created thereunder and any agent of the
foregoing, has engaged in a "prohibited transaction" under applicable Law or any
other breach of fiduciary responsibility that could subject the Company, any
Company Subsidiary, any such employee or any of the Company Benefit Plans, or,
to the knowledge of the Company, any such trust, trustee, administrator or other
fiduciary, to Tax or penalty on prohibited transactions imposed under applicable
Law or any other liability for breach of fiduciary duty under any applicable
Law, except for such prohibited transactions and other breaches of fiduciary
responsibility that, individually or in the aggregate, have not had and would
not be reasonably likely to have a Company Material Adverse Effect.
(e) With respect to any Company Benefit Plan that is an employee welfare benefit
plan, whether or not subject to ERISA, no such Company Benefit Plan provides
benefits after termination of employment, except where the cost thereof is borne
entirely by the former employee (or his or her eligible dependents or
beneficiaries).
(f) No Participant will be entitled to (i)(A) any severance, separation, change
of control, termination, bonus or other additional compensation or benefits, or
(B) any acceleration of the time of payment or vesting of any compensation or
benefits, including the accelerated vesting of Company Stock Options held by
such Participant, or the forgiveness of indebtedness owed by such Participant,
in each case as a result of any of the Transactions (alone or in combination
with any other event) or in connection with the termination of such
Participant's employment on or after the Effective Time or (ii) any compensation
or benefits related to or contingent upon, or the value of which will be
calculated on the basis of, any of the Transactions (alone or in combination
with any other event). The execution and delivery of this Agreement and the
consummation of the Transactions (alone or in combination with any other event)
and compliance by the Company with the provisions hereof do not and will not
require the funding (whether through a grantor trust or otherwise) of any
Company Benefit Plan, Company Benefit Agreement or any other employment
arrangement and will not limit the Company's ability to amend, modify or
terminate any Company Benefit Plan or Company Benefit Agreement.
(g) Since January 1, 2003, and through the date of this Agreement, neither the
Company nor any Company Subsidiary has received notice of, and, to the knowledge
of the Company, there are no (i) pending termination proceedings or other suits,
claims (except claims for benefits payable in the normal operation of the
Company Benefit Plans), actions or proceedings against, or involving or
asserting any rights or claims to benefits under, any Company Benefit Plan or
Company Benefit Agreement or (ii) pending investigations (other than routine
inquiries) by any Governmental Entity with respect to any Company Benefit Plan
or Company Benefit Agreement, except for such proceedings, suits, claims,
actions and investigations that, individually or in the aggregate, have not had
and would not be reasonably likely to have a Company Material Adverse Effect.
(h) Neither the Company nor any Company Subsidiary has any liability or
obligations, including under or on account of a Company Benefit Plan or Company
Benefit Agreement, arising out of the hiring of persons to provide services to
the Company or any Company Subsidiary and treating such persons as consultants
or independent contractors and not as employees of the Company or any Company
Subsidiary, except for any such liability and obligations that, individually or
in the aggregate, have not had and would not be reasonably likely to have a
Company Material Adverse Effect.
(i) None of the employees of the Company or any Company Subsidiary is a member
of, represented by or otherwise subject to any (i) labor union, works council or
similar organization or (ii) collective bargaining agreement, industry-wide
collective bargaining agreement or any similar collective agreement, in each
case with respect to such employee's employment by the Company or any Company
Subsidiary, and the Company and the Company Subsidiaries do not have any
obligation (including to inform or consult with any such employees or their
representatives in respect of the Transactions) with respect to any such
organization or agreement. Each of the Company and the Company Subsidiaries is
in compliance with all applicable Laws and orders with respect to labor
relations, employment and employment practices, occupational safety and health
standards, terms and conditions of employment, payment of wages, classification
of employees, immigration, visa, work status, pay equity and workers
compensation, and is not engaged in any unfair labor practice, except for such
failures to comply and unfair labor practices that, individually or in the
aggregate, have not had and would not be reasonably likely to have a Company
Material Adverse Effect. There is no unfair labor practice charge or complaint
against the Company or any Company Subsidiary pending or, to the knowledge of
the Company, threatened before the competent Labor Standards Supervision Office
("Roudou Kijun Kantoku Sho"), the competent Committee on Labor Affairs ("Roudou
I-inkai") or any comparable Governmental Entity that has had or would be
reasonably likely to have a Company Material Adverse Effect. Since December 31,
2003, there has been no, and there currently is no, labor strike, material
dispute, request for representation, union organization attempt, slowdown or
stoppage actually pending or, to the knowledge of the Company, threatened
against or affecting the Company or any Company Subsidiary that, individually or
in the aggregate, has had or would reasonably be expected to have a Company
Material Adverse Effect. No grievance or arbitration proceeding arising out of a
collective bargaining agreement is pending or, to the knowledge of the Company,
threatened against the Company or any Company Subsidiary that has had or would
be reasonably likely to have a Company Material Adverse Effect.
SECTION 3.12. Litigation. (a) As of the date of this Agreement, there is no
claim, demand, suit, action or proceeding pending or, to the knowledge of the
Company, threatened in writing against or affecting the Company or any Company
Subsidiary that involves an amount in controversy in excess of $1.0 million,
seeks material injunctive relief or would be reasonably likely to have a Company
Material Adverse Effect, if resolved in accordance with the plaintiff's demands.
(b) There is no suit, action or proceeding pending or, to the knowledge of the
Company, threatened against or affecting the Company or any Company Subsidiary
nor is there any judgment outstanding against the Company or any Company
Subsidiary that, individually or in the aggregate, has had or would be
reasonably likely to have a Company Material Adverse Effect.
SECTION 3.13. Compliance with Applicable Laws. The Company and the Company
Subsidiaries and their relevant personnel and operations are in compliance with
all applicable Laws, including those relating to occupational health and safety
except for any such failure to be in compliance as, individually or in the
aggregate, has not had and would not be reasonably likely to have a Company
Material Adverse Effect. Neither the Company nor any Company Subsidiary has
received any written communication during the past two years from a Governmental
Entity that alleges that the Company or a Company Subsidiary is not in
compliance with any applicable Law except for such failure to be in compliance
as, individually or in the aggregate, has not had and would not be reasonably
likely to have a Company Material Adverse Effect. The Company and the Company
Subsidiaries have in effect all permits, licenses, variances, exemptions,
authorizations, operating certificates, franchises, orders and approvals of all
Governmental Entities (collectively, "Permits"), necessary for them to own,
lease or operate their properties and assets and to carry on their businesses as
now conducted, except for such Permits the absence of which, individually or in
the aggregate, has not had and would not be reasonably likely to have a Company
Material Adverse Effect and there has occurred no violation of, default (with or
without the lapse of time or the giving of notice, or both) under, or event
giving to others any right of termination, amendment or cancelation of, with or
without notice or lapse of time or both, any such Permit, except for such
violations, defaults or events that, individually or in the aggregate, have not
had and would not be reasonably likely to have a Company Material Adverse
Effect. This Section 3.13 does not relate to matters with respect to Taxes,
which are the subject of Section 3.09 or to Environmental Permits or
Environmental Laws, which are the subject of Section 3.14.
SECTION 3.14. Environmental Matters. Except for such matters that, individually
or in the aggregate, have not had and would not be reasonably likely to have a
Company Material Adverse Effect:
(a) The Company and each of the Company Subsidiaries are in compliance with all
Environmental Laws (as defined below).
(b) Since July 31, 2003, neither the Company nor any of the Company Subsidiaries
has received any written communication that alleges that the Company or any of
its subsidiaries is in violation of or has liability under any Environmental Law
or written request for information pursuant to any Environmental Law.
(c) (i) The Company and each of the Company Subsidiaries have obtained and are
in compliance with all Permits pursuant to Environmental Law (collectively
"Environmental Permits") necessary for their operations as presently conducted
and (ii) all such Environmental Permits are valid and in good standing.
(d) There are no Environmental Claims pending or, to the knowledge of the
Company, threatened in writing, against the Company or any of the Company
Subsidiaries.
(e) Neither the Company nor any of the Company Subsidiaries has entered into or
agreed to, or is otherwise subject to, any Judgment relating to any
Environmental Law or to the investigation or remediation of Hazardous Materials
(as defined below).
(f) There has been no treatment, storage or Release (as defined below) of any
Hazardous Material that would be reasonably likely to form the basis of any
Environmental Claim against the Company or any of the Company Subsidiaries or
against any person whose liabilities the Company or any of the Company
Subsidiaries has retained or assumed either contractually or by operation of
law.
(g) None of the Company, the Company Subsidiaries or any Person whose
liabilities the Company or any of the Company Subsidiaries has, or may have,
retained or assumed, either contractually or by operation of law, has
manufactured, sold or distributed any products containing asbestos in any form.
(h) (i) neither the Company nor any of the Company Subsidiaries has retained or
assumed, either contractually or by operation of law, any liabilities or
obligations that would be reasonably likely to form the basis of any
Environmental Claim (as defined below) against the Company or any of the Company
Subsidiaries, and (ii) to the knowledge of the Company, no Environmental Claims
are pending against any Person whose liabilities the Company or any of the
Company Subsidiaries has, or may have, retained or assumed, either contractually
or by operation of law.
(i) Definitions. As used in this Agreement:
(1) "Environmental Claim" means any and all administrative, regulatory or
judicial actions, suits, demands, directives, claims, liens, Judgments,
investigations, proceedings or written notices of noncompliance, violation or
potential responsibility alleging liability of whatever kind or nature
(including liability or responsibility for the costs of enforcement proceedings,
investigations, cleanup, governmental response, removal or remediation, natural
resources damages, property damages, personal injuries, medical monitoring,
penalties, contribution, indemnification and injunctive relief) arising out of,
based on or resulting from (x) the presence or Release of, or exposure to, any
Hazardous Materials at any location; or (y) the failure to comply with any
Environmental Law;
(2) "Environmental Laws" means all applicable national, local and foreign laws,
rules, regulations, Judgments, legally binding agreements, standards prescribed
by Governmental Entities or Environmental Permits issued, promulgated or entered
into by or with any Governmental Entity, relating to pollution or protection or
restoration of natural resources or the environment (including ambient air,
indoor air, surface water, groundwater, land surface or subsurface strata),
endangered or threatened species or human health (to the extent relating to
exposure to Hazardous Materials);
(3) "Hazardous Materials" means any contaminant, pollutant, waste or other
substance which is defined as hazardous or toxic under Environmental Laws, or
the release or presence of which is regulated under any Environmental Law; and
(4) "Release" means any actual or threatened release, spill, emission, leaking,
dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching
or migration into or through the environment (including ambient air, indoor air,
surface water, groundwater, land surface or subsurface strata) or within any
building, structure, facility or fixture.
SECTION 3.15. Intellectual Property. The Company or one of the Company
Subsidiaries owns, or is validly licensed or otherwise has the right to use, all
patents, patent rights, trademarks, trademark rights, trade names, trade name
rights, service marks, service ▇▇▇▇ rights, copyrights, domain names and other
proprietary intellectual property rights and computer programs (collectively,
"Intellectual Property Rights") used in the conduct of the business of the
Company and the Company Subsidiaries, except where the failure to own, be
validly licensed or have the right to use such Intellectual Property Rights,
individually or in the aggregate, has not had and would not be reasonably likely
to have a Company Material Adverse Effect. No claims are pending or, to the
knowledge of the Company, threatened in writing that the Company or any Company
Subsidiary is infringing or otherwise adversely affecting the rights of any
person with regard to any Intellectual Property Right, except for any such
claims that, individually or in the aggregate, have not had and would not be
reasonably likely to have a Company Material Adverse Effect. To the knowledge of
the Company, no person is infringing the rights of the Company or any Company
Subsidiary with respect to any Intellectual Property Right, except for such
infringements that, individually or in the aggregate, have not had and would not
be reasonably likely to have a Company Material Adverse Effect.
SECTION 3.16. Contracts. (a) None of the Company, any of the Company
Subsidiaries or, to the knowledge of the Company, any other party to any Company
Material Contract is in violation of or in default under (nor does there exist
any condition which upon the passage of time or the giving of notice would cause
such a violation of or default under) any Company Material Contract, to which it
is a party or by which it or any of its properties or assets is bound, except
for violations or defaults that, individually or in the aggregate, have not
resulted and would not be reasonably likely to result in a Company Material
Adverse Effect. A "Company Material Contract" means any contract to which the
Company or any Company Subsidiary is a party that provides for payment or series
of payments or performance by a party thereto having an aggregate value
exceeding 100 million Japanese yen or equivalent amount of foreign currency
therewith per year.
(b) All Company Material Contracts are valid, binding and in full force and
effect and are enforceable by the Company or the applicable Company Subsidiary
in accordance with their terms, except for such failures to be valid, binding,
in full force and effect or enforceable that, individually or in the aggregate,
have not had and would not be reasonably likely to have a Company Material
Adverse Effect. None of the Company and the Company Subsidiaries has received
any written notice of the intention of any party to terminate any Company
Material Contract. Complete and correct copies of all Company Material
Contracts, together with all material modifications and amendments thereto, have
been made available to the Purchaser (either as an exhibit to a Filed SEL
Document or otherwise).
SECTION 3.17. Title to Real Properties. (a) Each of the Company and each Company
Subsidiary has good and marketable title to, or valid leasehold interests in,
all its real properties free and clear of all Liens, except for such defects in
title, easements, restrictive covenants and similar encumbrances or impediments
that, individually or in the aggregate, have not had and would not be reasonably
likely to have a Company Material Adverse Effect.
(b) Except where the failure to comply, the failure to be in full force and
effect or the default has not had and would not be reasonably likely to have a
Company Material Adverse Effect, each of the Company and each Company Subsidiary
has complied in all respects with the terms of all leases to which it is a party
and under which it is in occupancy, all such leases are in full force and effect
and no extant notice of default has been given by either party to such leases,
and no event has occurred, which with the giving of notice or the passage of
time or both would constitute a default under any of such leases.
SECTION 3.18. Customers and Suppliers. (a) Since January 1, 2005, there has been
no adverse change in the relationship of the Company with any customer of the
Company or any Company Subsidiary with annual sales of $15 million or more or
any of the 15 largest suppliers to the Company or any Company Subsidiary by
annual sales volume (excluding utilities), except for such change that,
individually or in the aggregate, has not had and would not be reasonably likely
to have a Company Material Adverse Effect.
(b) To the Knowledge of the Company, there is no material dispute with any
customer with annual sales of $15 million or more in connection with any product
sold by the Company or any Company Subsidiary to any such customer that has
given rise or would be reasonably likely to give rise to a material liability or
cost, except for such dispute that, individually or in the aggregate, has not
had and would not be reasonably likely to have a Company Material Adverse
Effect.
SECTION 3.19. Brokers; Schedule of Fees and Expenses. No broker, investment
banker, financial advisor or other person, other than Deutsche Bank Securities
Inc. and RHJI, the fees and expenses of which will be paid by the Company, is
entitled to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the Acquisition and the other Transactions based
upon arrangements made by or on behalf of the Company.
SECTION 3.20. Financing. (a) The Company has received and accepted (1) a
commitment letter dated November 27, 2006 (the "Commitment Letter"), from the
lenders party thereto (collectively, the "Lenders") relating to the commitment
of the Lenders to provide the debt financing required by Mercury and its
subsidiaries to effect the Refinancing (as defined below) and to pay related
fees and expenses of the Transactions, (2) a commitment letter dated November
27, 2006 (the "Company Commitment Letter"), from Aozora Bank, Ltd.,
("Aozora")relating to the commitment of Aozora to provide the bridge financing
(the "Bridge Financing") required by the Company, the Purchasers and the holders
of Mercury common stock and holders of Mercury preferred stock to consummate the
Merger, the Acquisition and the Other Stock Acquisitions, (3) the commitment
letter dated November 27, 2006, from Aozora, on behalf of the lenders (the
"Company Lenders") under the Company's existing credit facility (the "Company
Consent Letter") to enter into a consent agreement confirming the approval by
the Company Lenders of certain amendments to the Company's existing credit
facility required thereunder by the Company in connection with the Transactions
and Refinancing (as defined below) (the "Company Facility Amendments") and (4) a
commitment letter dated November 27, 2006 (the "Equity Commitment" and, together
with the Commitment Letter, the Company Commitment Letter and the Company
Consent Letter, the "Commitments"), between RHJI, and the Company relating to
the agreement of RHJI to provide the equity financing to the Company as
specified therein (the "RHJI equity financing"). The Company has provided or
made available to the Purchasers' Representative a true, correct and complete
copy of each of the Commitments. The financing contemplated by the Commitment
Letter, the Company Consent Letter and the Company Commitment Letter is referred
to herein as the "Financing."
(b) Subject to its terms and conditions, the Financing, RHJI equity financing
and the Acquisition, when funded in accordance with the applicable terms and
conditions of the Commitment Letter, Company Commitment Letter, Company Consent
Letter, Equity Commitment and this Agreement, will provide Acquisition Sub with
funds at the Effective Time sufficient to (i) consummate the Merger, (ii)
finance the Consent Solicitations (as defined in the Merger Agreement), (iii)
refinance the existing indebtedness of Mercury and its subsidiaries described in
the Commitment Letter (the "Refinancing"), (iv) provide the Bridge Financing and
(v) pay related fees and expenses of the Transactions.
ARTICLE IV
Representations and Warranties of the Purchaser
The Purchaser represents and warrants to the Company that:
SECTION 4.01. Organization, Standing and Power. (a) The Purchaser is duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized and has full power and authority to
conduct its businesses as presently conducted.
SECTION 4.02. Accredited Investor; Private Offering. (a) The Purchaser is (i) an
"accredited investor" as such term is defined in Rule 501(a) of Regulation D
promulgated under the Securities Act of 1933, as amended (the "Securities Act"),
(ii) a "qualified purchaser" within the meaning of the Investment Company Act of
1940, as amended (the "Investment Company Act") and (iii) not an "investment
company" as defined in Section 3 of the Investment Company Act, and meets at
least one category and has indicated all categories applicable to it in each of
Sections A, B and C of the Accredited Investor Questionnaire attached hereto as
Exhibit C.
(b) Private Offering. The Company Stock purchased by the Purchaser pursuant to
this Agreement is being acquired for investment only and not with a view to any
public distribution thereof, and the Purchaser shall not offer to sell or
otherwise dispose of such Company Stock so acquired by it in violation of any of
the registration requirements of the Securities Act.
SECTION 4.03. Authority; Execution and Delivery; Enforceability. The Purchaser
has all requisite power and authority to execute and deliver this Agreement and
each Transaction Agreement to which it is a party and to consummate the
Transactions to which it is a party. The execution and delivery by the Purchaser
of this Agreement and each Transaction Agreement to which it is a party and the
consummation by it of the Transactions to which it is a party have been duly
authorized by all necessary corporate action on the part of the Purchaser. The
Purchaser has duly executed and delivered this Agreement and each Transaction
Agreement to which it is a party, and this Agreement and each Transaction
Agreement to which it is a party, assuming the due authorization, execution and
delivery thereof by the other parties thereto constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 4.04. No Conflicts; Consents. (a) The execution and delivery by the
Purchaser of this Agreement and each Transaction Agreement to which it is a
party, do not, and the consummation of the Acquisition and the other
Transactions to which it is a party and compliance with and performance of the
terms hereof and thereof will not, conflict with, or result in any violation of
or default (with or without notice or lapse of time, or both) under, or give
rise to a right of termination, cancelation or acceleration of any obligation or
to loss of a material benefit under, or to increased, additional, accelerated or
guaranteed rights or entitlements of any person under, or result in the creation
of any Lien upon any of the properties or assets of the Purchaser or any of its
subsidiaries under, any provision of (i) the charter or organizational documents
of the Purchaser or any of the Purchaser's subsidiaries, (ii) any material
Contract to which the Purchaser or any of its subsidiaries is a party or by
which any of their respective properties or assets is bound or (iii) subject to
the filings and other matters referred to in Section 4.04(b), any material
Judgment or material Law applicable to the Purchaser or any of its subsidiaries
or their respective properties or assets, other than, in the case of clauses
(ii) and (iii) above, any such items that, individually or in the aggregate,
have not had and would not be reasonably likely to have, a material adverse
effect on the Purchaser (with respect to the Purchaser, a "Purchaser Material
Adverse Effect") (excluding for purposes of this Section 4.04(a) and the
application of Section 7.03(a) hereto, clause (a)(iii) of the definition
"material adverse effect").
(b) No Consent of, or registration, declaration or filing with any Governmental
Entity is required to be obtained or made by or with respect to the Purchaser or
any of its subsidiaries in connection with the execution, delivery and
performance of this Agreement or any Transaction Agreement to which it is a
party or the consummation of the Transactions to which the Purchaser is a party,
other than (i) compliance with and filings under (A) the HSR Act, (B) the
Japanese Anti-Monopoly Law, (C) other Antitrust Laws, (D) the FEL, (E) the rules
and regulations of the TSE, (F) the JCL and (G) the CRL, (ii) the filing with
the U.S. SEC of (A) the U.S. Information Statement and (B) such reports under
the Exchange Act as may be required in connection with the Merger Agreement and
the other Transaction Agreements, the Acquisition and the other Transactions,
(iii) the filing with the Bureau of the Information Statement as may be required
under the SEL in connection with this Agreement, the other Transaction
Agreements, the Acquisition and the other Transactions, (iv) the filing of a
certificate of merger in connection with the Merger with the Secretary of State
of the State of Delaware and appropriate documents with the relevant authorities
of the other jurisdictions in which the Company is qualified to do business, (v)
compliance with and such filings as may be required under applicable
Environmental Laws, (vi) such filings as may be required in connection with the
Taxes described in Section 6.06, (vii) filings under any applicable state
takeover Law and (viii) such other items (A) required solely by reason of the
participation of the Company (as opposed to any third party) in the Transactions
or (B) that, individually or in the aggregate, have not had and would not be
reasonably likely to have a Company Material Adverse Effect (excluding for
purposes of this Section 4.04(b) and the application of Section 7.03(a) hereto,
clause (a)(iii) of the definition "material adverse effect").
SECTION 4.05. Information Supplied. None of the information supplied or to be
supplied by the Purchaser for inclusion or incorporation by reference in the
Information Statement will contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they are made, not misleading.
SECTION 4.06. Brokers. No broker, investment banker, financial advisor or other
person, other than Lazard Freres & Co. LLC, the fees and expenses of which will
be paid by Mercury, is entitled to any broker's, finder's, financial advisor's
or other similar fee or commission in connection with the Acquisition and the
other Transactions based upon arrangements made by or on behalf of the
Purchaser.
ARTICLE V
Covenants Relating to Conduct of Business
SECTION 5.01. Conduct of Business. (a) Conduct of Business by the Company.
Except for matters set forth in the Company Disclosure Letter or otherwise
expressly permitted by this Agreement, from the date of this Agreement to the
Closing the Company shall, and shall cause each Company Subsidiary to, conduct
its business in the usual, regular and ordinary course in substantially the same
manner as previously conducted and, to the extent consistent therewith, use all
commercially reasonable efforts to preserve intact its current business
organization, keep available the services of its current officers and employees
and keep its relationships with customers, suppliers, licensors, licensees,
distributors and others having business dealings with them. In addition, and
without limiting the generality of the foregoing, except for matters set forth
in the Company Disclosure Letter or otherwise expressly permitted by this
Agreement, from the date of this Agreement to the Closing, the Company shall
not, and shall not permit any Company Subsidiary to, do any of the following
without the prior written consent of the Purchaser:
(i) (A) declare, set aside, allot or pay any dividends on, or make any other
distributions in respect of, any of its capital stock, other than dividends and
distributions by a direct or indirect wholly owned subsidiary of the Company to
its parent, (B) split, combine or reclassify any of its capital stock or issue
or authorize the issuance of any other securities in respect of, in lieu of or
in substitution for shares of its capital stock, or (C) purchase, redeem or
otherwise acquire any shares of capital stock of the Company or any Company
Subsidiary or any other securities thereof or any rights, warrants or options to
acquire any such shares or other securities;
(ii) issue, deliver, sell or grant (A) any shares of its capital stock, (B) any
Voting Company Debt or other voting securities, (C) any securities convertible
into or exchangeable for, or any options, warrants or rights to acquire, any
such shares, Voting Company Debt, voting securities or convertible or
exchangeable securities or (D) any "phantom" stock, "phantom" stock rights,
stock appreciation rights, restricted stock units or stock-based performance
units, other than the issuance of the Company Common Stock and Company Preferred
Stock issued in connection with the Transactions (including to RHJI pursuant to
the Equity Commitment) and the issuance of Company Common Stock upon the
exercise of Company Stock Options outstanding on the date of this Agreement and
in accordance with their present terms;
(iii) amend its articles of incorporation, by-laws or other comparable charter
or organizational documents, other than the Company Charter Amendment;
(iv) acquire or agree to acquire or transfer or agree to transfer by merging or
consolidating with, or by corporate separation, stock-for-stock exchange, stock
transfer, business assignment or receiving assignment of business or by
purchasing a substantial equity interest in or substantial portion of the assets
of, or by any other manner, any business or any corporation, partnership, joint
venture, association or other business organization or division thereof that
would be material to the Company and the Company Subsidiaries, taken as a whole;
(v) make any change in accounting methods, principles or practices materially
affecting the reported consolidated assets, liabilities or results of operations
of the Company, except insofar as may have been required by a change in GAAP;
(vi) incur any indebtedness for borrowed money or guarantee any such
indebtedness of another person, issue or sell any debt securities or warrants or
other rights to acquire any debt securities of the Company or any Company
Subsidiary, guarantee any debt securities of another person, enter into any
"keep well" or other agreement to maintain any financial statement condition of
another person or enter into any arrangement having the economic effect of any
of the foregoing, except for short-term borrowings incurred in the ordinary
course of business consistent with past practice, the Bridge Financing and such
other long term indebtedness, guarantees, debt securities or other agreements or
arrangements that would not be reasonably likely to have a Company Material
Adverse Effect;
(vii) make or change any material Tax election; or
(viii) authorize any of, or commit or agree to take any of, the foregoing
actions.
(b) Advice of Changes. The Company shall promptly advise the Purchaser orally
and in writing of any change or event that has or could be reasonably likely to
have a Company Material Adverse Effect.
(c) Periodic Reports. In connection with the continuing operation of the
business of the Company and the Company Subsidiaries between the date of this
Agreement and the Closing and to the extent permitted by Antitrust Laws (as
defined in Section 6.02(c)), the Company shall use commercially reasonable
efforts to report in good faith on a regular basis to the representatives of the
Purchaser to report material operational developments and the general status of
ongoing operations pursuant to procedures reasonably requested in writing by the
Purchaser; provided that the consultation required by this Section 5.01(d) shall
be conducted in a manner so as not to disrupt in any material respect the
business of the Company and the Company Subsidiaries; provided further that the
Company and the Company Subsidiaries shall not report to the Purchaser or its
representatives any non-public information related to output, pricing or any
other competitively-sensitive matter. The Purchaser acknowledges that it shall
not have any approval rights under this Section 5.01(c). The Company
acknowledges that any such reports shall not constitute a waiver by the
Purchaser of any rights it may have under this Agreement and that the Purchaser
shall not have any liability or responsibility for any actions of the Company,
any Company Subsidiary or any of their respective directors or officers with
respect to matters that are the subject of such reports. All information
exchanged pursuant to this Section 5.01(c) shall be subject to the
Confidentiality Agreement (as defined in Section 6.02). For the avoidance of
doubt, the Company shall not be required to provide any information pursuant to
this Section 5.01(c) to the extent such information is not required to be
provided pursuant to Section 6.02.
SECTION 5.02. No Solicitation. (a) Prior to the Closing Date, the Company shall
not, nor shall it authorize or permit any Company Subsidiary to, nor shall it
authorize or permit any officer, director or employee of, or any investment
banker, attorney or other advisor or representative (each, a "Representative"
and collectively, "Representatives") of, the Company or any Company Subsidiary
to, (i) directly or indirectly solicit, initiate or encourage the submission of,
any Company Takeover Proposal (as defined in Section 5.02(e)), (ii) enter into
any agreement with respect to any Company Takeover Proposal or (iii) directly or
indirectly participate in any discussions or negotiations regarding, or furnish
to any person any information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes, or may
reasonably be expected to lead to, any Company Takeover Proposal. Without
limiting the foregoing, it is agreed that any violation of the restrictions set
forth in the preceding sentence by any Representative or affiliate of the
Company or any Company Subsidiary shall be deemed to be a breach of this Section
5.02(a) by the Company. The Company shall, and shall cause its Representatives
to, cease immediately all discussions and negotiations regarding any proposal
that constitutes, or may reasonably be expected to lead to, a Company Takeover
Proposal.
(b) Prior to the Closing Date, the Company promptly shall advise the Purchaser
orally and in writing of any Company Takeover Proposal or any inquiry with
respect to or that could reasonably be expected to lead to any Company Takeover
Proposal and the identity of the person making any such Company Takeover
Proposal or inquiry including any change to the material details of any such
Company Takeover Proposal or inquiry. The Company shall (i) keep the Purchaser
fully informed of the status including any change to the material details of any
such Company Takeover Proposal or inquiry and (ii) provide to the Purchaser as
soon as practicable after receipt or delivery thereof with copies of all
material correspondence and other written material sent or provided to the
Company from any third party in connection with any Company Takeover Proposal or
sent or provided by the Company to any third party in connection with any
Company Takeover Proposal.
(c) Nothing contained in this Section 5.02 shall prohibit the Company from
making any required disclosure to the Company's stockholders if, in the good
faith judgment of the Company Board, after consultation with outside counsel,
failure so to disclose would be inconsistent with its obligations under
applicable Law.
(d) For purposes of this Agreement:
"Company Takeover Proposal" means (i) any proposal or offer for a merger,
consolidation, dissolution, recapitalization or other business combination
involving the Company, (ii) any proposal for the issuance by the Company of over
20% of its equity securities as consideration for the assets or securities of
another person or (iii) any proposal or offer to acquire in any manner, directly
or indirectly, over 20% of the equity securities or consolidated total assets of
the Company, in each case other than the Transactions and the Equity Commitment
and Financing.
ARTICLE VI
Additional Agreements
SECTION 6.01. Preparation of Information Statement. (a) The Company shall, as
soon as practicable following the date of this Agreement, prepare and file with
the Bureau the Information Statement to be provided to the Company's
stockholders in preliminary form, and each of the Company and the Purchaser
shall use its commercially reasonable efforts to respond as promptly as
practicable to any comments of the Bureau, or its upper body, the Finance
Services Agency (the "FSA") with respect thereto. The Company shall notify the
Purchaser promptly of the receipt of any comments from the Bureau, the FSA or
their staff and of any request by the Bureau or the FSA or their staff for
amendments or supplements to the Information Statement or on any other Company
Disclosure Document or for additional information and shall supply the Purchaser
with copies of all correspondence between the Company or any of its
representatives, on the one hand, and the Bureau, the FSA or their staff, on the
other hand, with respect to the Information Statement or any other Company
Disclosure Document. If at any time prior to receipt of the Company Stockholder
Approval there shall occur any event that should be set forth in an amendment or
supplement to the Information Statement, the Company shall promptly prepare and
mail to its stockholders such an amendment or supplement. The Company shall not
mail any Information Statement, or any amendment or supplement thereto, to which
the Purchaser reasonably objects. The Company shall use its commercially
reasonable efforts to cause the Information Statement to be mailed to the
Company's stockholders as promptly as practicable after filing with the Bureau.
Notwithstanding the foregoing, prior to filing or mailing the Information
Statement or any other Company Disclosure Document (or any amendment or
supplement thereto) or responding to any comments of the Bureau and the FSA with
respect thereto, the Company (i) shall provide the Purchaser an opportunity to
review and comment on such document or response and (ii) shall include in such
document or response all reasonable comments proposed by the Purchaser.
(b) Special Stockholder Meetings. The Company represents and warrants that it
has duly called, given notice of, convened and held on November 16, 2006, (i) a
meeting of the Company Common Stock stockholders, (ii) a meeting of the Company
Class A Preferred Stock stockholders, (iii) a meeting of the Company Class B
Preferred Stock stockholders and (iv) a general stockholders meeting of the
Company (the "Company Stockholders Meetings") and has (A) obtained the Company
Stockholder Approval and (B) elected as directors to the Company Board the
persons designated as such in accordance with Section 2(e) of the Stockholders
Agreement, provided that each of which are effective only so long as the Closing
occurs on or prior to January 16, 2007; provided further that if the Closing has
not occurred on or prior to January 16, 2007, then the Company shall, as soon as
practicable following such date, duly call, give notice of, convene and hold
additional Company Stockholders Meetings for the purpose of (A) seeking the
Company Stockholder Approval and (B) electing as directors to the Company Board
the persons designated as such in accordance with Section 2(e) of the
Stockholders Agreement. The Company shall, through the Company Board, recommend
to its stockholders that they give the Company Stockholder Approval, except to
the extent that the Company Board shall have withdrawn or modified its approval
or recommendation of the Company Charter Amendment after the Company Board shall
have determined in good faith, after consultation with outside counsel, that the
failure to do so would be inconsistent with its obligations under applicable
Law.
SECTION 6.02. Access to Information; Confidentiality. The Company shall, and
shall cause each of its subsidiaries to, afford to the Purchaser and to the
Purchaser's officers, employees, accountants, counsel, financial advisors and
other representatives, reasonable access during normal business hours during the
period prior to the Closing (as long as such access is not unreasonably
disruptive to the business of the Company or its subsidiaries) to all their
respective properties, books, contracts, commitments, personnel and records and,
during such period, the Company shall, and shall cause each of its subsidiaries
to, furnish promptly to the Purchaser (a) a copy of each report, schedule,
registration statement and other document filed by it during such period
pursuant to the requirements of Japanese securities laws and (b) all other
information concerning its business, properties and personnel as the Purchaser
may reasonably request; provided, however, that either party may withhold (i)
any document or information that is subject to the terms of a confidentiality
agreement with a third party, (ii) such portions of documents or information
relating to output, pricing or other matters that are highly sensitive if the
exchange of such documents (or portions thereof) or information, as determined
by such party's counsel, would reasonably be expected to raise antitrust
concerns for such party (or any of its affiliates) or (iii) such portions of
documents or information that would reasonably be expected to jeopardize any
attorney-client privilege or contravene any Law or fiduciary duty (provided that
each party shall in good faith seek and implement a reasonable alternative to
provide Purchaser's counsel with access to such document or information. All
information exchanged pursuant to this Section 6.02 shall be subject to the
terms of the confidentiality agreement dated September 29, 2005, between RHJI
and Mercury (the "Confidentiality Agreement") as if the Purchaser was a party
thereto with the same obligations thereunder as Mercury.
SECTION 6.03. Commercially Reasonable Efforts; Notification. (a) Upon the terms
and subject to the conditions set forth in this Agreement, each of the parties
shall use its commercially reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and cooperate with the
other parties in doing, all things necessary, proper or advisable to consummate
and make effective, in the most expeditious manner practicable, the Acquisition
and the other Transactions, including (i) the obtaining of all necessary actions
or nonactions, waivers, consents and approvals from Governmental Entities and
the making of all necessary registrations and filings (including filings with
Governmental Entities, if any) and the taking of all reasonable steps as may be
necessary to obtain an approval or waiver from, or to avoid an action or
proceeding by, any Governmental Entity, (ii) the obtaining of all necessary
consents, approvals or waivers from third parties, (iii) the defending of any
lawsuits or other legal proceedings, whether judicial or administrative,
challenging this Agreement or any other Transaction Agreement or the
consummation of the Transactions, including seeking to have any stay or
temporary restraining order entered by any court or other Governmental Entity
vacated or reversed and (iv) the execution and delivery of any additional
instruments necessary to consummate the Transactions and to fully carry out the
purposes of the Transaction Agreements. Nothing in this Agreement shall be
deemed to require any party to waive any substantial rights or agree to any
substantial limitation on its operations or to dispose of any significant asset
or collection of assets. Notwithstanding the foregoing, the Company and its
Representatives shall not be prohibited under this Section 6.03(a) from taking
any action permitted by Section 5.02(b). Subject to applicable Law relating to
the exchange of information, the Company and the Purchaser and their respective
counsel shall have the right to review in advance, and to the extent practicable
each shall consult the other on, any filing made with, or written materials
submitted to, any Governmental Entity in connection with the Acquisition and the
other Transactions. The Company and the Purchaser shall provide the other party
and its counsel with the opportunity to participate in any meeting with any
Governmental Entity in respect of any filing, investigation or other inquiry in
connection with the Acquisition or the other Transactions.
(b) Prior to Closing, the Company shall give prompt notice to the Purchaser, and
the Purchaser shall give prompt notice to the Company, of (i) any representation
or warranty made by it contained in this Agreement or any Transaction Agreement
that is qualified as to materiality becoming untrue or inaccurate in any respect
or any such representation or warranty that is not so qualified becoming untrue
or inaccurate in any material respect or (ii) the failure by it to comply with
or satisfy in any material respect any covenant, condition or agreement to be
complied with or satisfied by it under this Agreement; provided, however, that
no such notification shall be deemed to be a waiver or cure of any such breach
or failure to comply or affect the representations, warranties, covenants or
agreements of the parties or the conditions to the obligations of the parties
under this Agreement or the Transaction Agreements.
(c) Nothing in Section 6.03(a) shall require the Purchaser to dispose of any of
its assets or to limit its freedom of action with respect to any of its
businesses, or to consent to any disposition of the Company's assets or limits
on the Company's freedom of action with respect to any of its businesses, or to
commit or agree to any of the foregoing, and nothing in Section 6.03(a) shall
authorize the Company to commit or agree to any of the foregoing, to obtain any
consents, approvals, permits or authorizations to remove any impediments to the
Acquisition relating to the HSR Act, any Japanese competition Law or other
antitrust, competition or premerger notification, trade regulation law,
regulation or order ("Antitrust Laws") or to avoid the entry of, or to effect
the dissolution of, any injunction, temporary restraining order or other order
in any suit or proceeding relating to Antitrust Laws.
(d) Nothing in this Section 6.03 shall require the Purchaser to (i) consent to
any action or omission by the Company that would be inconsistent with Section
5.01 absent such consent or (ii) agree to amend or waive any provision of this
Agreement.
SECTION 6.04. Fees and Expenses. All fees and expenses incurred in connection
with the Acquisition and the other Transactions shall be paid by the party
incurring such fees or expenses, whether or not the Acquisition is consummated.
SECTION 6.05. Public Announcements. The Purchaser, on the one hand, and the
Company, on the other hand, shall consult with each other before issuing, and
provide each other the opportunity to review and comment upon, any press release
or other public statements with respect to the Acquisition and the other
Transactions and neither the Purchaser nor the Company shall issue any such
press release or make any such public statement prior to such consultation,
except as may be required by applicable Law, court process or by obligations
pursuant to any listing agreement with any national securities exchange.
SECTION 6.06. Transfer Taxes. All stock transfer, real estate transfer,
documentary, stamp, recording and other similar Taxes (including interest,
penalties and additions to any such Taxes) ("Transfer Taxes") incurred in
connection with the Acquisition shall be paid by the Company, and the Purchaser
shall reasonably cooperate with the Company in preparing, executing and filing
any Tax Returns with respect to such Transfer Taxes.
ARTICLE VII
Conditions Precedent
SECTION 7.01. Conditions to Each Party's Obligation To Effect The Acquisition.
The respective obligation of each party to effect the Acquisition is subject to
the satisfaction or waiver on or prior to the Closing Date of the following
conditions:
(a) Company Stockholder Approval. The Company shall have obtained the Company
Stockholder Approval.
(b) Antitrust. Any waiting period (and any extension thereof) applicable to the
Acquisition under the Japanese Anti-Monopoly Law shall have been terminated or
shall have expired. Any consents, approvals and filings under any foreign
Antitrust Law of any country, the absence of which would prohibit the
consummation of the Acquisition or would be reasonably likely to have a Company
Material Adverse Effect, shall have been obtained or made; provided, however,
that prior to asserting this condition, subject to Section 6.03, the applicable
party shall have used its commercially reasonable efforts to obtain or make such
consents, approvals and filings.
(c) No Injunctions or Restraints. No temporary judgment issued by any court of
competent jurisdiction or other law preventing the consummation of the
Acquisition shall be in effect; provided, however, that prior to asserting this
condition, subject to Section 6.03, the applicable party shall have used its
commercially reasonable efforts to prevent the entry of any such injunction or
other order and to appeal as promptly as possible any such judgment that may be
entered.
(d) Merger Agreement. The Company, Acquisition Sub and Mercury shall have
consummated the transactions contemplated by the Merger Agreement without the
amendment, modification or waiver in any material respect of any material term
or condition thereof.
(e) Other Stock Purchase Agreements. The transactions contemplated by each of
the Other Stock Purchase Agreements shall have been consummated without the
amendment, modification or waiver in any material respect of any material term
or condition thereof.
(f) Stockholders Agreement. The Stockholders Agreement shall have become
effective and remain in full force and effect.
(g) Japanese Regulatory. Any waiting periods (and any extensions thereof)
applicable to the Acquisition under the FEL, SEL and JCL shall have been
terminated or shall have expired.
(h) Financing. The Company and Acquisition Sub shall have obtained the proceeds
contemplated by the Financing or the Alternative Financing (as defined in the
Merger Agreement) and the proceeds of the Equity Commitment; provided, however,
that prior to asserting this condition, the applicable party shall have complied
in all material respects with its respective obligations under Section 6.11 of
the Merger Agreement.
(i) Approval for Listing. The Shares shall have been approved for listing on the
TSE and the next business day following the Closing shall be listed thereon;
provided, however, that prior to asserting this condition, subject to Section
6.03, the applicable party shall have used its commercially reasonable efforts
to obtain such approval and listing.
(j) Company Stock Purchase Agreement. The transactions contemplated by the
Company Stock Purchase Agreement shall have been consummated without the
amendment, modification or waiver in any material respect of any material term
or condition thereof.
(k) Appointment of Directors. The persons designated as directors in accordance
with Section 2(e) of the Stockholders Agreement shall have been elected to the
Company Board.
SECTION 7.02. Conditions to Obligations of the Purchaser. The obligations of the
Purchaser to effect the Acquisition are further subject to the following
conditions:
(a) Representations and Warranties. The representations and warranties of the
Company in this Agreement (other than those set forth in Sections 3.01, 3.03 and
3.04) shall be true and correct, as of the date of this Agreement and as of the
Closing Date as though made on the Closing Date, except to the extent such
representations and warranties expressly relate to an earlier date (in which
case such representations and warranties shall be true and correct, on and as of
such earlier date), other than for such failures to be true and correct that,
individually or in the aggregate, have not had and would not be reasonably
likely to have a Company Material Adverse Effect (it being agreed that for
purposes of determining whether such representations and warranties shall be
true and correct and applying the foregoing Company Material Adverse Effect
qualifier, all such representations and warranties that already are qualified by
reference to a Company Material Adverse Effect or other materiality qualifier
shall be deemed to be not so qualified). The representations and warranties of
the Company set forth in Sections 3.01, 3.03 and 3.04 that are qualified by a
Company Material Adverse Effect or other materiality qualifier shall be true and
correct, and those not so qualified shall be true and correct in all material
respects, as of the date of this Agreement and as of the Closing Date as though
made on the Closing Date, except to the extent such representations and
warranties expressly relate to an earlier date (in which case such
representations and warranties shall be true and correct, or true and correct in
all material respects, as applicable, on and as of such earlier date). The
Purchaser shall have received a certificate signed on behalf of the Company by
the chief executive officer and the chief financial officer of the Company to
such effect.
(b) Performance of Obligations of the Company. The Company shall have performed
in all material respects all obligations required to be performed by it under
this Agreement at or prior to the Closing Date, and the Purchaser shall have
received a certificate signed on behalf of the Company by the chief executive
officer and the chief financial officer of the Company to such effect.
(c) Absence of Company Material Adverse Effect. Since the date of this
Agreement, there shall not have been any event, change, effect, development or
state of facts that, individually or in the aggregate, has had or would be
reasonably likely to have a Company Material Adverse Effect.
SECTION 7.03. Condition to Obligation of the Company. The obligation of the
Company to effect the Acquisition is further subject to the following
conditions:
(a) Representations and Warranties. The representations and warranties of the
Purchaser in this Agreement shall be true and correct in all material respects,
as of the date of this Agreement and as of the Closing Date as though made on
the Closing Date, except to the extent such representations and warranties
expressly relate to an earlier date (in which case such representations and
warranties shall be true and correct in all material respects, on and as of such
earlier date) and the Company shall have received a certificate signed on behalf
of the Purchaser to such effect.
(b) Performance of Obligations of Purchaser. The Purchaser shall have performed
in all material respects all obligations required to be performed by it under
this Agreement at or prior to the Closing Date, and the Company shall have
received a certificate signed on behalf of the Purchaser to such effect.
(c) Company Lender Consent. The Company Facility Amendments shall have become
effective on the terms and conditions contemplated in the Company Consent
Letter.
ARTICLE VIII
Termination, Amendment and Waiver
SECTION 8.01. Termination. This Agreement may be terminated at any time prior to
the Closing:
(a) by mutual written consent of the Company and the Purchaser;
(b) by either the Company or the Purchaser:
(i) if the Acquisition is not consummated on or before March 15, 2007 (the
"Outside Date"), unless the failure to consummate the Acquisition is the result
of a willful and material breach of this Agreement by the party seeking to
terminate this Agreement; provided, however, that the passage of such period
shall be tolled for any part thereof during which any party shall be subject to
a nonfinal order, decree, ruling or action restraining, enjoining or otherwise
prohibiting the consummation of the Acquisition;
(ii) if any Governmental Entity issues an order, decree or ruling or takes any
other action permanently enjoining, restraining or otherwise prohibiting the
Acquisition and such order, decree, ruling or other action shall have become
final and nonappealable;
(iii) if, upon the votes thereon at the duly held first round of meetings to
obtain the Company Stockholder Approval, the Company Stockholder Approval is not
validly obtained and, upon the votes thereon at the duly held second round of
meetings to obtain the Company Stockholder Approval, the Company Stockholder
Approval is not validly obtained; or
(iv) if the Merger Agreement is terminated in accordance with its terms;
(c) by the Purchaser, if the Company breaches or fails to perform in any
material respect any of its representations, warranties or covenants contained
in any Transaction Agreement, which breach or failure to perform (A) would give
rise to the failure of a condition set forth in Section 7.02(a) or 7.02(b), and
(B) cannot be or has not been cured by the Outside Date (provided that the
Purchaser is not then in willful and material breach of any representation,
warranty or covenant contained in this Agreement); or
(d) by the Company, if the Purchaser breaches or fails to perform in any
material respect any of its representations, warranties or covenants contained
in this Agreement, which breach or failure to perform (i) would give rise to the
failure of a condition set forth in Section 7.03(a) or 7.03(b), and (ii) cannot
be or has not been cured by the Outside Date (provided that the Company is not
then in willful and material breach of any representation, warranty or covenant
contained in this Agreement).
SECTION 8.02. Effect of Termination. In the event of termination of this
Agreement by either the Company or the Purchaser as provided in Section 8.01,
this Agreement shall forthwith become void and have no effect, without any
liability or obligation on the part of the Company or the Purchaser, other than
Section 3.19, Section 4.06, the last sentence of Section 6.02, Section 6.04,
this Section 8.02 and Article IX, which provisions shall survive such
termination, and except to the extent that such termination results from the
willful and material breach by a party of any representation, warranty or
covenant set forth in this Agreement, in which case the aggrieved party shall be
entitled to all remedies available at law or in equity.
SECTION 8.03. Amendment. This Agreement may not be amended except by an
instrument in writing signed by the Company and the Purchaser.
SECTION 8.04. Extension; Waiver. At any time prior to the Closing, the Company
and the Purchaser may (a) extend the time for the performance of any of the
obligations or other acts of the other parties, (b) waive any inaccuracies in
the representations and warranties contained in this Agreement or in any
document delivered pursuant to this Agreement or (c) waive compliance with any
of the agreements or conditions contained in this Agreement. Any agreement on
the part of a party to any such extension or waiver shall be valid only if set
forth in an instrument in writing signed by the Company or by the Purchaser on
behalf of the Company or the Purchaser, as applicable. The failure of any party
to this Agreement to assert any of its rights under this Agreement or otherwise
shall not constitute a waiver of such rights.
ARTICLE IX
General Provisions
SECTION 9.01. Nonsurvival of Representations and Warranties. None of the
representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive the Closing, except for Section 3.03(b)
which shall survive the Closing. This Section 9.01 shall not limit any covenant
or agreement of the parties which by its terms contemplates performance after
the Closing.
SECTION 9.02. Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given upon receipt by the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(a) if to the Purchaser, to Heartland Industrial Partners, L.P. ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
with a copy to:
Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ Bring, Esq.
(b) if to the Company, to
Asahi Tec Corporation
▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇▇
Fax: ▇▇-▇▇▇-▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ Mori & Tomotsune
Izumi ▇▇▇▇▇▇ ▇▇▇▇▇
▇-▇-▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇,
▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇▇
Fax: (▇▇) ▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
with a copy to:
RHJ International SA
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
with a copy to:
Cravath, Swaine & ▇▇▇▇▇ LLP
Worldwide Plaza
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.; and
The Company promptly shall provide the Purchaser with a copy of each notice
delivered under the Merger Agreement.
SECTION 9.03. Definitions. For purposes of this Agreement:
An "affiliate" of any person means another person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control with, such first person.
"business day" means any day other than a Saturday or Sunday, on which banks
located in Tokyo or New York are not required or authorized by law to remain
closed.
"Company Stock Purchase Agreement" means the stock purchase agreement dated as
of the date of this Agreement between the Company, the Purchasers listed on
Schedule I thereto and the Purchasers' Representative.
A "material adverse effect" on a party means (a) a material adverse effect on
the business, assets, financial condition or results of operations of the party
and its subsidiaries, taken as a whole except, in each case, to the extent
arising or resulting from, or caused or attributable to, any of the following,
individually or taken together: (i) general U.S., Japanese or global economic,
political or market conditions to the extent not materially disproportionately
affecting the party and its subsidiaries, taken as whole, relative to other
automotive industry participants in the party's geographic area, (ii) changes in
applicable generally accepted accounting principles or Law, (iii) the public
announcement of the Transactions, the consummation of the Transactions or the
execution of the Transaction Agreements or (iv) acts of terrorism or war to the
extent not materially disproportionately affecting the party and its
subsidiaries, taken as whole, relative to other automotive industry participants
in the party's geographic area, (b) a material adverse effect on the ability of
the party to perform its obligations under this Agreement or the other
Transaction Agreements to which it is a party or (c) a material adverse effect
on the ability of the party to consummate the Transactions to which it is a
party.
A "person" means any individual, firm, corporation, partnership, company,
limited liability company, trust, joint venture, association, Governmental
Entity or other entity.
A "subsidiary" of any person means another person, an amount of the voting
securities, other voting ownership or voting partnership interests of which is
sufficient to elect at least a majority of its board of directors or other
governing body (or, if there are no such voting interests, 50% or more of the
equity interests of which) is owned directly or indirectly by such first person.
For the avoidance of doubt, in no event shall Mercury or any subsidiary of
Mercury be deemed to be a subsidiary of the Company for any purpose of this
Agreement (including after giving effect to the Merger).
"Transaction Agreements" means this Agreement, the Company Voting Agreement, the
Merger Agreement, the Company Stock Purchase Agreement, the Stockholders
Agreement and the Other Stock Purchase Agreements and documents delivered in
connection with the foregoing.
SECTION 9.04. Interpretation. When a reference is made in this Agreement to a
Section, such reference shall be to a Section of this Agreement unless otherwise
indicated. The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation".
SECTION 9.05. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule or Law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the extent possible.
SECTION 9.06. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
SECTION 9.07. Entire Agreement; No Third-Party Beneficiaries. This Agreement and
the Transaction Agreements, taken together with the Company Disclosure Letter,
(a) constitute the entire agreement, and supersede after the date of this
Agreement all prior agreements and understandings (including the Original
Agreement), both written and oral, among the parties with respect to the
Transactions (other than the Confidentiality Agreement) and (b) are not intended
to confer upon any person other than the parties any rights or remedies.
SECTION 9.08. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof, except to the extent the laws of Japan are mandatorily applicable to
the Acquisition.
SECTION 9.09. Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise by any of the parties without the prior
written consent of the other parties; provided that the Purchaser may assign to
any of the Purchasers (as defined in the Company Stock Purchase Agreement) its
right (but no obligation in connection therewith) to receive from the Company
any of the Shares acquired in exchange for payment delivered to the Company
pursuant to Section 2.02(c) so long as such assignment is in a form reasonably
acceptable to the Company. Any purported assignment in violation of this Section
9.09 shall be void. Subject to the preceding sentences, this Agreement will be
binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns.
SECTION 9.10. Enforcement. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement or any Transaction
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement or any
Transaction Agreement and to enforce specifically the terms and provisions of
this Agreement and each other Transaction Agreement in any New York state court,
any Federal court located in the State of New York or the State of Delaware or
in any Delaware state court, this being in addition to any other remedy to which
they are entitled at law or in equity. In addition, each of the parties hereto
(a) consents to submit itself to the personal jurisdiction of any New York state
court, any Federal court located in the State of New York or the State of
Delaware or in any Delaware state court, in the event any dispute arises out of
this Agreement, any Transaction Agreement or any Transaction, (b) agrees that it
will not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, (c) agrees that it will not bring any
action relating to this Agreement or any other Transaction Agreement or any
Transaction in any court other than any New York state court, any Federal court
sitting in the State of New York or the State of Delaware or any Delaware state
court and (d) waives any right to trial by jury with respect to any action
related to or arising out of this Agreement or any other Transaction Agreement
or any other Transaction.
SECTION 9.11. Agreement and Waiver of Certain Rights. (a) The Purchaser, by the
execution and delivery of this Agreement, hereby waives in relation to the
Merger, its rights under Section 262 of the Delaware General Corporation Law
("Section 262") in connection with its Appraisal Shares (as defined in the
Merger Agreement) including any rights to demand appraisal of such Appraisal
Shares, and hereby consents and agrees, in relation to the Merger, not to
exercise any rights under Section 262, including any appraisal rights, with
respect to such Appraisal Shares.
(b) The Purchaser hereby consents, with respect to the limitations and approval
and consent rights set forth in the Shareholders Agreement (the "Mercury
Shareholders Agreement") by and among Mascotech, Inc., Masco Corporation,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Foundation, the Heartland Entities
listed on the signature pages thereto and the HIP Co-Investors listed on the
signature pages thereto, dated as of November 28, 2000, to Mercury's
participation in the Transactions and the TM Distribution (subject to the
payment date of the TM Distribution being on or after the Closing Date and being
made conditional on the Closing). The Purchaser further consents and
acknowledges that at the Effective Time the Mercury Shareholders Agreement shall
terminate and be of no force and effect.
(c) Subject to the consummation of the Merger, the Purchaser, by the execution
and delivery of this Agreement, (i) hereby acknowledges, consents to and agrees
that the TM Distribution (as defined in the Merger Agreement) shall be declared
and made without registration under the Securities Act or the Exchange Act of
the securities distributed thereby, that the TM Distribution shall be made on
the terms set forth in the Merger Agreement (subject to the payment date of the
TM Distribution being on or after the Closing Date and being made conditional on
the Closing) and that it waives (subject to the foregoing) any remedy of
rescission or any other remedies against Mercury or the Company in connection
therewith and (ii) hereby consents and agrees to the declaration and
consummation of the TM Distribution (subject to the payment date of the TM
Distribution being on or after the Closing Date and being made conditional on
the Closing).
IN WITNESS WHEREOF, the Company and the Purchaser have duly executed this
Agreement, all as of the date first written above.
ASAHI TEC CORPORATION,
by: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
HEARTLAND INDUSTRIAL PARTNERS, L.P.
By: HEARTLAND INDUSTRIAL
ASSOCIATES, L.L.C. Its: General
Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Member
METALDYNE INVESTMENT FUND I, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Member
HIP SIDE-BY-SIDE PARTNERS, L.P.
By: HEARTLAND INDUSTRIAL ASSOCIATES,
L.L.C. Its:
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Member
METALDYNE INVESTMENT FUND II, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Member
CREDIT SUISSE FIRST BOSTON EQUITY
PARTNERS, L.P.
By: Hemisphere Private Equity Partners,
Ltd., Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
CREDIT SUISSE FIRST BOSTON EQUITY PARTNERS
(BERMUDA), L.P.
By: Hemisphere Private Equity Partners,
Ltd., Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
CREDIT SUISSE FIRST BOSTON FUND
INVESTMENTS VI HOLDINGS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
CREDIT SUISSE FIRST BOSTON FUND
INVESTMENTS VI-B (BERMUDA), L.P.
By: Merchant Capital, Inc., Its General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
CREDIT SUISSE FIRST BOSTON U.S.
EXECUTIVE ADVISORS, L.P.
By: Hemisphere Private Equity Partners,
Ltd., Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
EMA PARTNERS FUND 2000, L.P.
By: Credit Suisse (Bermuda) Limited, Its
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
EMA PRIVATE EQUITY FUND 2000, L.P.
By: Credit Suisse (Bermuda) Limited, Its
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
MASCO CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
----------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Chairman of a Special
Committee of the Board of
Directors of Masco Corporation
▇▇▇▇▇▇▇ AND ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ FOUNDATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Trustee, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ Trust Dated February
15, 2006 as Amended and
Restated
WACHOVIA CAPITAL PARTNERS 2000, LLC,
(formerly First Union Capital Partners,
LLC)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
BANCBOSTON CAPITAL INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Director
EQUITY ASSET INVESTMENT TRUST
By: /s/ ▇▇▇ ▇▇▇▇▇▇
--------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
ANNEX HOLDINGS I LP
By: Annex Capital Partners, LLC, its
General Partner
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Member
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES LLC
By: Allianz Leben Private Equity Fonds
Plus GmbH, its Member
By: /s/ WANCHING ANG
----------------
Name: Wanching Ang
Title: Managing Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
LONG POINT CAPITAL FUND, L.P.
By: Long Point Capital Partners, LLC, its
General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Managing Director
LONG POINT CAPITAL PARTNERS, L.L.C.
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇ PARTNERS INVESTMENTS, L.P.
By: ▇▇▇▇▇▇ PARTNERS GENERAL PARTNER, L.P.
Its: General Partner
By: ▇▇▇▇▇▇ PARTNERS INVESTMENTS (GP2),
L.P. Its: General Partner
By: ▇▇▇▇▇▇ PARTNERS INVESTMENTS (GP), LLC
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Member
▇▇▇▇▇▇ PARTNERS INVESTMENTS (A), L.P.
By: ▇▇▇▇▇▇ PARTNERS GENERAL PARTNER, L.P.
Its: General Partner
By: ▇▇▇▇▇▇ PARTNERS INVESTMENTS (GP2),
L.P. Its: General Partner
By: ▇▇▇▇▇▇ PARTNERS INVESTMENTS (GP), LLC
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Member
▇▇▇▇▇▇ PARTNERS INVESTMENTS (B), L.P.
By: ▇▇▇▇▇▇ PARTNERS GENERAL PARTNER, L.P.
Its: General Partner
By: ▇▇▇▇▇▇ PARTNERS INVESTMENTS (GP2),
L.P. Its: General Partner
By: ▇▇▇▇▇▇ PARTNERS INVESTMENTS (GP), LLC
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Member
PRIVATE EQUITY PORTFOLIO FUND II, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
CRM 1999 ENTERPRISE FUND, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: CFO
SCHEDULE I
Purchaser Shares
-------------------------------------------------------------------------------- ------------------
Metaldyne Investment Fund I, LLC, Heartland Industrial Partners, L.P. 17,277,081
-------------------------------------------------------------------------------- ------------------
HIP Side-by-Side Partners, L.P. 1,050,363
-------------------------------------------------------------------------------- ------------------
Metaldyne Investment Fund II, LLC, Heartland Industrial Partners, L.P. 253,728
-------------------------------------------------------------------------------- ------------------
Credit Suisse First Boston Equity Partners, L.P. 6,419,944
-------------------------------------------------------------------------------- ------------------
Credit Suisse First Boston Equity Partners (Bermuda), L.P. 1,794,540
-------------------------------------------------------------------------------- ------------------
Credit Suisse First Boston Fund Investments VI Holdings, LLC 124,250
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Credit Suisse First Boston Fund Investments VI-B (Bermuda), L.P. 29,696
-------------------------------------------------------------------------------- ------------------
Credit Suisse First Boston U.S. Executive Advisors, L.P. 5,732
-------------------------------------------------------------------------------- ------------------
Masco Corporation 2,161,348
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▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Foundation 573,463
-------------------------------------------------------------------------------- ------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 538,696
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First Union Capital Partners, LLC 1,385,513
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BancBoston Capital Inc. 667,099
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Metropolitan Life Insurance Company 513,153
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Equity Asset Investment Trust 513,153
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Annex Holdings I LP Annex Capital Partners LLC 513,153
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LongPoint Capital Fund, L.P. 503,881
-------------------------------------------------------------------------------- ------------------
LongPoint Capital Partners, L.L.C. 9,272
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EMA Partners Fund 2000, L.P. 462,378
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EMA Private Equity Fund 2000, L.P. 297,580
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▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Associates LLC 256,576
-------------------------------------------------------------------------------- ------------------
▇▇▇▇▇▇ Partners Investments, L.P. 235,133
-------------------------------------------------------------------------------- ------------------
▇▇▇▇▇▇ Partners Investments (A), L.P. 142,975
-------------------------------------------------------------------------------- ------------------
▇▇▇▇▇▇ Partners Investments (B), L.P. 135,044
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Private Equity Portfolio Fund II, LLC 102,630
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CRM 1999 Enterprise Fund, LLC 51,316
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Total Purchasers' Shares 36,017,697
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