EXHIBIT 2.1
MASTER TRANSACTION AGREEMENT
BY AND BETWEEN
▇▇▇▇▇▇ INDUSTRIES INC.
AND
THE GENLYTE GROUP INCORPORATED
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1. Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II RELATED AGREEMENTS AND CLOSING . . . . . . . . . . . . . . . . 4
2.1. Related Agreements . . . . . . . . . . . . . . . . . . . . . . 4
2.2. Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇▇ . . . . . . . . . . . 5
3.1. Authority . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.2. Validity . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.3. Due Organization . . . . . . . . . . . . . . . . . . . . . . . 6
3.4. Brokers and Finders . . . . . . . . . . . . . . . . . . . . . 6
3.5. Opinion of Financial Advisor . . . . . . . . . . . . . . . . . 6
3.6. Information Supplied for Joint Proxy Statement . . . . . . . . 6
3.7. Representations and Warranties . . . . . . . . . . . . . . . . 6
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF GENLYTE. . . . . . . . . . . 7
4.1. Authority . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.2. Validity . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.3. Due Organization . . . . . . . . . . . . . . . . . . . . . . . 7
4.4. Brokers and Finders . . . . . . . . . . . . . . . . . . . . . 7
4.5. Opinion of Financial Advisor . . . . . . . . . . . . . . . . . 8
4.6. Information Supplied for Joint Proxy Statement . . . . . . . . 8
4.7. Representations and Warranties . . . . . . . . . . . . . . . . 8
ARTICLE V ADDITIONAL AGREEMENTS. . . . . . . . . . . . . . . . . . . . . 8
5.1. Interim Conduct of Business. . . . . . . . . . . . . . . . . . 8
5.2. Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.3. Stockholders' Approvals . . . . . . . . . . . . . . . . . . . 11
5.4. Agreement To Cooperate . . . . . . . . . . . . . . . . . . . . 12
5.5. Public Statements . . . . . . . . . . . . . . . . . . . . . . 12
5.6. Notifications . . . . . . . . . . . . . . . . . . . . . . . . 12
5.7. Joint Proxy Statement; Stockholders Meetings . . . . . . . . . 12
5.8. Alternative Proposals. . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS OF ▇▇▇▇▇▇. . . . . . . . . 14
6.1. Stockholder Approval . . . . . . . . . . . . . . . . . . . . . 14
6.2. Accuracy of Warranties and Performance of Covenants. . . . . . 14
6.3. No Pending Action . . . . . . . . . . . . . . . . . . . . . . 14
6.4. Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.5. Regulatory Approvals . . . . . . . . . . . . . . . . . . . . . 14
6.6. Condition of Business and Assets . . . . . . . . . . . . . . . 14
6.7. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.8. Financing . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.9. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.10. Related Agreements . . . . . . . . . . . . . . . . . . . . . . 15
6.11. Satisfaction of Counsel . . . . . . . . . . . . . . . . . . . 15
ARTICLE VII CONDITIONS PRECEDENT TO OBLIGATIONS OF GENLYTE. . . . . . .. . 15
7.1. Stockholder Approval . . . . . . . . . . . . . . . . . . . . . 15
7.2. Accuracy of Warranties and Performance of Covenants. . . . . . 15
7.3. No Pending Action . . . . . . . . . . . . . . . . . . . . . . 16
7.4. Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.5. Regulatory Approvals . . . . . . . . . . . . . . . . . . . . . 16
7.6. Condition of Business and Assets . . . . . . . . . . . . . . . 16
7.7. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.8. Financing . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.9. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.11. Related Agreements . . . . . . . . . . . . . . . . . . . . . . 17
7.12. Satisfaction of Counsel . . . . . . . . . . . . . . . . . . . 17
ARTICLE VIII TERMINATION BY PARTIES . . . . . . . . . . . . . . . . . . . . 17
8.1. Termination . . . . . . . . . . . . . . . . . . . . . . . . . 17
8.2. Termination Fees . . . . . . . . . . . . . . . . . . . . . . . 19
8.3. Effect of Termination . . . . . . . . . . . . . . . . . . . . 20
ARTICLE IX GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 21
9.1. Amendments and Waiver . . . . . . . . . . . . . . . . . . . . 21
9.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
9.3. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
9.4. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 22
9.5. Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
9.6. Successors and Assigns . . . . . . . . . . . . . . . . . . . . 22
9.7. Entire Transaction . . . . . . . . . . . . . . . . . . . . . . 22
9.8. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . 23
9.9. Other Rules of Construction . . . . . . . . . . . . . . . . . 23
9.10. Partial Invalidity . . . . . . . . . . . . . . . . . . . . . . 23
9.11. Authorship . . . . . . . . . . . . . . . . . . . . . . . . . . 23
MASTER TRANSACTION AGREEMENT
This Master Transaction Agreement is made and entered into this 28th day of
April, 1998 by and between ▇▇▇▇▇▇ INDUSTRIES INC., a Delaware corporation
("▇▇▇▇▇▇"), and THE GENLYTE GROUP INCORPORATED, a Delaware corporation
("GENLYTE").
WHEREAS, upon the terms and subject to the conditions set forth herein, the
parties will form and capitalize GT Lighting, LLC, a Delaware limited liability
company (the "COMPANY"), to engage in the business, operations and activities
related to the manufacture, sale, marketing and distribution of consumer,
commercial, industrial and outdoor lighting (collectively, the "BUSINESS")
pursuant to a Limited Liability Company Agreement dated April 28, 1998 by and
among ▇▇▇▇▇▇, Genlyte and the Company (the "LLC AGREEMENT");
WHEREAS, upon the terms and subject to the conditions set forth herein and
in the Related Agreements, the Company will acquire the assets to be contributed
by and assume certain liabilities of (i) ▇▇▇▇▇▇ pursuant to the Capitalization
Agreement dated April 28, 1998 by and between the Company and ▇▇▇▇▇▇ (the
"▇▇▇▇▇▇ CAPITALIZATION AGREEMENT") and (ii) Genlyte pursuant to the
Capitalization Agreement dated April 28, 1998, by and between the Company and
Genlyte (the "GENLYTE CAPITALIZATION AGREEMENT" and together with the ▇▇▇▇▇▇
Capitalization Agreement, the "CAPITALIZATION AGREEMENTS"); and
WHEREAS, the parties desire to make certain representations and warranties
to one another and provide for the coordination of the closing of all the
transactions contemplated by this Agreement and the Related Agreements;
NOW, THEREFORE, in consideration of the premises and promises herein
contained, the parties agree as set forth below:
ARTICLE I
DEFINITIONS
1.1. DEFINED TERMS. For purposes of this Agreement, unless the
language or context clearly indicates that a different meaning is intended, the
words, terms and phrases defined in this Section have the meanings set forth
below:
(A) "AFFILIATE" means, when used with reference to a
specified Person, any Person that directly or indirectly through one
or more intermediaries controls or is controlled by or is under common
control with the specified Person.
(B) "AGREEMENT" means this Master Transaction Agreement, as
amended from time to time, including all schedules and exhibits hereto
and documents referred to herein or therein.
(C) "ALTERNATIVE PROPOSAL" has the meaning assigned to such
term in Section 5.8(b).
(D) "ALTERNATIVE TRANSACTION" has the meaning assigned to
such term in Section 5.8(a).
(E) "BUSINESS" has the meaning assigned to such term in the
preamble.
(F) "BUSINESS DAY" means any day on which commercial banks
in the City of New York, New York, are open for business.
(G) "CAPITALIZATION AGREEMENTS" has the meaning assigned to
such term in the preamble.
(H) "CHANGE OF CONTROL" shall mean with respect to a party
the occurrence of any of the following events: (i) an acquisition
(whether directly from such party or otherwise) of any voting
securities of such party (the "VOTING SECURITIES") by any "PERSON" (as
the term is used for purposes of Section 13(d) or 14(d) of the
Exchange Act), immediately after which such Person has or would have
"BENEFICIAL OWNERSHIP" (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of twenty-five percent (25%) or more of the
combined voting power of such party's then outstanding Voting
Securities; (ii) the individuals who, as of the date hereof, are
members of the Board of Directors of such party (the "INCUMBENT
BOARD"), cease for any reason to constitute at least seventy-five
percent (75%) of the Board of Directors; provided, however, a "Change
of Control" shall not be deemed to occur if any of such individuals
voluntarily fail to stand for re-election or resign or if the
aggregate number of Directors is reduced so long as, after giving
effect to such failure to stand for re-election, resignation or
reduction, at least seventy-five percent (75%) of the remaining
Directors are members of the Incumbent Board; provided, further
however, that if the election, or nomination for election, by such
party's stockholders of any new director was approved by a vote of at
least seventy-five percent (75%) of the Incumbent Board, such new
director shall, for purposes of this Agreement, be considered a member
of the Incumbent Board; provided further, however, that an individual
shall not be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened "ELECTION CONTEST" (as described in Rule 14a-11 promulgated
under the Exchange Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board
of Directors (a "PROXY CONTEST") including by reason of any agreement
intended to avoid or settle any Election Contest or Proxy Contest;
(iii) the consummation of, or agreement to consummate: (A) a merger,
consolidation, share exchange or reorganization of such party in which
the stockholders of such party, as a group, cease to hold a majority
equity interest in the surviving entity; (B) a liquidation or
dissolution of or appointment of a receiver, rehabilitator,
conservator or similar person for, such party; or (C) the sale or
other disposition of all or substantially all of the assets of such
party to any Person (other than a transfer to a subsidiary); or (iv)
any other change in "control" of such party. For purposes of the
immediately preceding clause, the term "control" shall have the
meaning ascribed thereto pursuant to Rule 405 of the rules and
regulations of the SEC promulgated pursuant to the Securities Act of
1933, as amended.
(I) "CLOSING" has the meaning assigned to such term in
Section 2.2.
(J) "CLOSING DATE" has the meaning assigned to such term in
Section 2.2.
(K) "COMPANY" means GT Lighting, LLC, a Delaware limited
liability company.
(L) " CONTRACT" has the meaning assigned to such term in
the Genlyte Capitalization Agreement and the ▇▇▇▇▇▇ Capitalization
Agreement, as the case may be.
(M) "CONTRIBUTED ASSETS" means the ▇▇▇▇▇▇ Contributed
Assets and the Genlyte Contributed Assets.
(N) "CONTRIBUTED BUSINESSES" means the ▇▇▇▇▇▇ Contributed
Business and the Genlyte Contributed Business.
(O) "EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended.
(P) "GENLYTE" means The Genlyte Group Incorporated, a
Delaware corporation.
(Q) "GENLYTE AGREEMENTS" has the meaning assigned to such
term in Section 4.1.
(R) "GENLYTE CAPITALIZATION AGREEMENT" has the meaning
assigned to such term in the preamble.
(S) "GENLYTE CONTRIBUTED ASSETS" means the assets to be
contributed by Genlyte pursuant to the Genlyte Capitalization
Agreement.
(T) "GENLYTE CONTRIBUTED BUSINESS" means the Business of
Genlyte as defined in the Genlyte Capitalization Agreement.
(U) "GENLYTE REPRESENTATIVES" has the meaning assigned to
such term in Section 5.2(a).
(V) "INTEREST" has the meaning assigned to such term in the
LLC Agreement.
(W) "JOINT PROXY STATEMENT" means the Joint Proxy Statement
of ▇▇▇▇▇▇ and Genlyte to be filed with the SEC under the Exchange Act,
pursuant to which each of ▇▇▇▇▇▇ and Genlyte will seek stockholder
approval of the transactions contemplated hereby.
(X) "LAWS" means any federal, state, local or foreign law,
rule, regulation, judgment, code, ruling, statute, order or ordinance
or other requirement.
(Y) "MATERIAL ADVERSE EFFECT" means any adverse
circumstance or consequence that, individually or in the aggregate,
has an effect that is material to the financial condition, results of
operations, assets or business of the Contributed Business of the
party at issue taken as a whole.
(Z) "PERSON" means any individual, partnership, limited
liability company, corporation, cooperative, trust, estate, joint
venturer or other entity.
(AA) "POTENTIAL ACQUIROR" has the meaning assigned to such
term in Section 5.8(b).
(BB) "RELATED AGREEMENTS" means the ▇▇▇▇▇▇ Agreements and
the Genlyte Agreements.
(CC) "SECURITIES ACT" means the Securities Act of 1933, as
amended.
(DD) "SEC" means the Securities and Exchange Commission.
(EE) "▇▇▇▇▇▇" means ▇▇▇▇▇▇ Industries Inc., a Delaware
corporation.
(FF) "▇▇▇▇▇▇ AGREEMENTS" has the meaning assigned to such
term in Section 3.1.
(GG) "▇▇▇▇▇▇ CAPITALIZATION AGREEMENT" has the meaning
assigned to such term in the preamble.
(HH) "▇▇▇▇▇▇ CONTRIBUTED ASSETS" means the assets to be
contributed by ▇▇▇▇▇▇ pursuant to the ▇▇▇▇▇▇ Capitalization Agreement.
(II) "▇▇▇▇▇▇ CONTRIBUTED BUSINESS" means the Business as
defined in the ▇▇▇▇▇▇ Capitalization Agreement.
(JJ) "▇▇▇▇▇▇ REPRESENTATIVES" has the meaning assigned to
such term in Section 5.2(a).
ARTICLE II
RELATED AGREEMENTS AND CLOSING
2.1. RELATED AGREEMENTS. (a) The LLC Agreement, the ▇▇▇▇▇▇
Capitalization Agreement and the Genlyte Capitalization Agreement are being
executed and delivered simultaneously herewith.
(b) In addition, at Closing, the parties will execute and deliver all of
the other documents and agreements required to be delivered on or prior to
Closing pursuant to this Agreement and the Related Agreements.
2.2. CLOSING. The contribution of assets to and the assumption of
liabilities by, the Company and the issuance of the Interests to ▇▇▇▇▇▇ and
Genlyte contemplated by the Capitalization Agreements and the LLC Agreement (the
"CLOSING") shall take place at the offices of ▇▇▇▇▇▇▇▇ & English, LLP on the
fifth business day following the satisfaction or waiver of all conditions to the
obligations of the parties to the transactions contemplated hereby commencing at
10:00 a.m., local time on such date, or at such other date or time or other
place as the parties may mutually agree upon in writing, such date being
hereinafter referred to as the "CLOSING DATE"; provided, however, that either
▇▇▇▇▇▇ or Genlyte shall have the right, in their sole discretion, to delay the
Closing for any reasonable reason and for any reasonable period of time.
Notwithstanding the foregoing, if all of the conditions to Closing as set forth
in Articles VI and VII have been satisfied, the Closing shall occur no later
than December 31, 1998. Upon consummation, the Closing shall be deemed to take
place as of the opening of business on the Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇▇
▇▇▇▇▇▇ hereby represents and warrants to Genlyte as of the date hereof and
as of the Closing Date, as set forth below. The representations and warranties
set forth below shall survive the Closing.
3.1. AUTHORITY. ▇▇▇▇▇▇ has full capacity, right, corporate power and
authority, without the consent of any other Person, to execute and deliver this
Agreement, the LLC Agreement, the ▇▇▇▇▇▇ Capitalization Agreement, the Services
Agreement and any other agreement to which it is a party (collectively, the
"▇▇▇▇▇▇ AGREEMENTS"), and to carry out the transactions contemplated hereby and
thereby. Except with respect to the approval of the stockholders of ▇▇▇▇▇▇, all
corporate and other acts or proceedings required to be taken by ▇▇▇▇▇▇ to
authorize the execution, delivery and performance of this Agreement, the ▇▇▇▇▇▇
Agreements and the documents to be delivered at Closing and all transactions
contemplated hereby and thereby have been duly and properly taken.
3.2. VALIDITY. This Agreement and the ▇▇▇▇▇▇ Agreements have been,
and the documents to be delivered at Closing will be, duly executed and
delivered by ▇▇▇▇▇▇ and constitute lawful, valid and legally binding obligations
of ▇▇▇▇▇▇, enforceable in accordance with their respective terms. The execution
and delivery of this Agreement and the ▇▇▇▇▇▇ Agreements and the consummation of
the transactions contemplated hereby and thereby will not result in the creation
of any lien, charge or encumbrance of any kind or the termination or
acceleration of any indebtedness or other obligation of ▇▇▇▇▇▇ and are not
prohibited by, do not violate or conflict with any provision of, do not
constitute a default under or a breach of and do not impair the rights under (a)
the Certificate of Incorporation or By-laws of ▇▇▇▇▇▇, (b) any Contract, (c) any
order, writ, injunction, decree or judgment of any court or governmental agency,
or (d) any Law applicable to ▇▇▇▇▇▇. No approval, authorization, consent or
other order or action of or filing with any court, administrative agency or
other governmental authority is required for the execution and delivery by
▇▇▇▇▇▇ of this Agreement and the ▇▇▇▇▇▇ Agreements or the consummation by ▇▇▇▇▇▇
of the transactions contemplated hereby and thereby, except as set forth in
Schedule 3.1.3 of the ▇▇▇▇▇▇ Capitalization Agreement.
3.3. DUE ORGANIZATION. ▇▇▇▇▇▇ is a corporation duly organized,
validly existing and in good standing under the laws of the state of Delaware,
and has full corporate power and authority and all requisite licenses, permits
and franchises to own, lease and operate its assets and to carry on its
business.
3.4. BROKERS AND FINDERS. Except for the fees and expenses payable to
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, which fees are reflected in its agreement with ▇▇▇▇▇▇ (a
true and correct copy of which has been provided to Genlyte), ▇▇▇▇▇▇ has not
entered into any contract, arrangement or understanding with any person or firm
which may result in the obligation of ▇▇▇▇▇▇ to pay any finder's fees, brokerage
or agent commissions or other like payments in connection with the transactions
contemplated hereby. Except for the fees and expenses paid or payable to ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, there is no claim for payment by ▇▇▇▇▇▇ of any investment banking
fees, finder's fees, brokerage or agent commissions or other like payments in
connection with the negotiations related to this Agreement or the consummation
of the transactions contemplated hereby.
3.5. OPINION OF FINANCIAL ADVISOR. The financial advisor of ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, has rendered an opinion to the Board of Directors of
▇▇▇▇▇▇ to the effect that, as of the date thereof, the Interest to be received
by ▇▇▇▇▇▇ pursuant to the ▇▇▇▇▇▇ Capitalization Agreement is fair from a
financial point of view to ▇▇▇▇▇▇; it being understood and acknowledged by
Genlyte that such opinion has been rendered for the benefit of the Board of
Directors of ▇▇▇▇▇▇ and is not intended to, and may not, be relied upon by
Genlyte or its Affiliates.
3.6. INFORMATION SUPPLIED FOR JOINT PROXY STATEMENT. None of the
information supplied or to be supplied by ▇▇▇▇▇▇ for inclusion or incorporation
by reference in the Joint Proxy Statement to be filed with the SEC by ▇▇▇▇▇▇ and
Genlyte in connection with the stockholder meetings of ▇▇▇▇▇▇ and Genlyte to be
held in connection with this Agreement and the transactions contemplated hereby
will, at the date mailed to stockholders, or at the time of such meetings,
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 the light of the circumstances under which they are made, not
misleading. The Joint Proxy Statement will, as of its mailing date, comply as
to form in all material respects with all Laws, including the Exchange Act and
the rules and regulations promulgated thereunder, except that no representation
is made by ▇▇▇▇▇▇ with respect to information supplied by Genlyte or the
stockholders of Genlyte for inclusion therein.
3.7. REPRESENTATIONS AND WARRANTIES The representations and
warranties of ▇▇▇▇▇▇ set forth in the ▇▇▇▇▇▇ Capitalization Agreement are true
and correct; provided, however, that following the Closing Date, the remedies
for breach of such representations and warranties shall be governed by the
▇▇▇▇▇▇ Capitalization Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF GENLYTE
Genlyte hereby represents and warrants to ▇▇▇▇▇▇ as of the date hereof and
as of the Closing Date, as set forth below. The representations and warranties
set forth below shall survive the Closing.
4.1. AUTHORITY. Genlyte has full capacity, right, corporate power and
authority, without the consent of any other Person, to execute and deliver this
Agreement, the LLC Agreement, the Genlyte Capitalization Agreement, the Services
Agreement and any other agreement to which it is a party (collectively, the
"GENLYTE AGREEMENTS"), and to carry out the transactions contemplated hereby and
thereby. Except with respect to the approval of the stockholders of Genlyte,
all corporate and other acts or proceedings required to be taken by Genlyte to
authorize the execution, delivery and performance of this Agreement, the Genlyte
Agreements and the documents to be delivered at Closing and all transactions
contemplated hereby and thereby have been duly and properly taken.
4.2. VALIDITY. This Agreement and the Genlyte Agreements have been,
and the documents to be delivered at Closing will be, duly executed and
delivered by Genlyte and constitute lawful, valid and legally binding
obligations of Genlyte, enforceable in accordance with their respective terms.
The execution and delivery of this Agreement and the Genlyte Agreements and the
consummation of the transactions contemplated hereby and thereby will not result
in the creation of any lien, charge or encumbrance of any kind or the
termination or acceleration of any indebtedness or other obligation of Genlyte
and are not prohibited by, do not violate or conflict with any provision of, do
not constitute a default under or a breach of and do not impair the rights under
(a) the Certificate of Incorporation or By-laws of Genlyte, (b) any Contract,
(c) any order, writ, injunction, decree or judgment of any court or governmental
agency, or (d) any Law applicable to Genlyte. No approval, authorization,
consent or other order or action of or filing with any court, administrative
agency or other governmental authority is required for the execution and
delivery by Genlyte of this Agreement and the Genlyte Agreements or the
consummation by Genlyte of the transactions contemplated hereby and thereby,
except as set forth in Schedule 3.1.3 of the Genlyte Capitalization Agreement.
4.3. DUE ORGANIZATION. Genlyte is a corporation duly organized,
validly existing and in good standing under the laws of the state of Delaware,
and has full corporate power and authority and all requisite licenses, permits
and franchises to own, lease and operate its assets and to carry on its
business.
4.4. BROKERS AND FINDERS. Except for the fees and expenses payable to
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, which fees are reflected in
its agreement with Genlyte (a true and correct copy of which has been provided
to ▇▇▇▇▇▇), Genlyte has not entered into any contract, arrangement or
understanding with any person or firm which may result in the obligation of
Genlyte to pay any finder's fees, brokerage or agent commissions or other like
payments in connection with the transactions contemplated hereby. Except for
the fees and expenses paid or payable to ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation, there is no claim for payment by Genlyte of any investment banking
fees, finder's fees, brokerage or agent commissions or other like payments in
connection with the negotiations related to this Agreement or the consummation
of the transactions contemplated hereby.
4.5. OPINION OF FINANCIAL ADVISOR. The financial advisor of Genlyte,
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, has rendered an opinion to
the Board of Directors of Genlyte to the effect that the consideration to be
received by Genlyte pursuant to the Genlyte Capitalization Agreement is fair
from a financial point of view to Genlyte; it being understood and acknowledged
by ▇▇▇▇▇▇ that such opinion has been rendered for the benefit of the Board of
Directors of Genlyte and is not intended to, and may not, be relied upon by
▇▇▇▇▇▇ or its Affiliates.
4.6. INFORMATION SUPPLIED FOR JOINT PROXY STATEMENT. None of the
information supplied or to be supplied by Genlyte for inclusion or incorporation
by reference in the Joint Proxy Statement to be filed with the SEC by ▇▇▇▇▇▇ and
Genlyte in connection with the stockholder meetings of ▇▇▇▇▇▇ and Genlyte to be
held in connection with this Agreement and the transactions contemplated hereby
will, at the date mailed to stockholders, or at the time of such meetings,
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 the light of the circumstances under which they are made, not
misleading. The Joint Proxy Statement will, as of its mailing date, comply as
to form in all material respects with all Laws, including the Exchange Act and
the rules and regulations promulgated thereunder, except that no representation
is made by Genlyte with respect to information supplied by ▇▇▇▇▇▇ or the
stockholders of ▇▇▇▇▇▇ for inclusion therein.
4.7. REPRESENTATIONS AND WARRANTIES The representations and
warranties of Genlyte set forth in the Genlyte Capitalization Agreement are true
and correct; provided, however, that following the Closing Date, the remedies
for breach of such representations and warranties shall be governed by the
Genlyte Capitalization Agreement.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1. INTERIM CONDUCT OF BUSINESS. (a) From the date hereof until the
Closing, each of ▇▇▇▇▇▇ and Genlyte shall preserve, protect and maintain their
respective Contributed Business consistent with prior practice and in the
ordinary course of business. Without limiting the generality of the foregoing,
from the date hereof until the Closing, except for transactions expressly
approved in writing by the other party or pursuant to Section 5.8, ▇▇▇▇▇▇ and
Genlyte shall, with respect to their respective Contributed Business:
(i) maintain inventories at current levels, except sales in
the ordinary course of business, and maintain the properties of their
Contributed Business and Contributed Assets in good repair, order and
condition, reasonable wear and tear excepted;
(ii) maintain and keep in full force and effect all
insurance on assets and property or for the benefit of employees of
the Contributed Business, all liability and other casualty insurance,
and all bonds on personnel of the Contributed Business, presently
carried;
(iii) except as set forth on Schedule 5.1, not merge or
consolidate with or agree to merge or consolidate with, nor purchase
or agree to purchase all or substantially all of the assets of, nor
otherwise acquire, any corporation, partnership, or other business
organization or division thereof;
(iv) except as set forth on Schedule 5.1, not sell, lease or
otherwise dispose of or agree to sell, lease or otherwise dispose of,
or grant an option with respect to, any of the Contributed Business'
assets, properties, rights or claims, except for inventory and other
assets sold in the ordinary course of business;
(v) preserve intact the organization and reputation of the
Contributed Business and use its reasonable commercial efforts to keep
available the services of the present executives, employees and agents
of the Contributed Business and preserve the good will of suppliers,
customers and others having business relationships with the
Contributed Business;
(vi) pay accounts payable and other obligations of the
Contributed Business when they become due and payable in the ordinary
course of business consistent with prior practice;
(vii) not grant any security interest, lien, charge,
encumbrance or claim on any assets of the Contributed Business, except
in the ordinary course of business and consistent with prior practice;
(viii) maintain the Contributed Business' books, accounts and
records in the usual, regular and ordinary manner on a basis
consistent with prior years;
(ix) not enter into, amend or terminate, or agree to enter
into, amend or terminate any Contract; provided, however, that the
foregoing shall not prohibit the termination or extension of any
Contract necessary to the Contributed Business arising in the ordinary
course of business and consistent with past practice;
(x) except as set forth on Schedule 5.1, not declare, set
aside or pay any dividend or make any other distribution with respect
to their capital stock or the capital stock of their respective
Affiliates, except dividends made in the ordinary course;
(xi) perform in all material respects all of its obligations
under all Contracts and other agreements and instruments relating to
or affecting the Contributed Business or its assets, and comply in all
material respects with all Laws applicable to the Assets, except where
non-performance or non-compliance would not have a Material Adverse
Effect;
(xii) not enter into, amend or terminate any employment,
bonus, severance or retirement contract or arrangement, nor increase
any salary or other form of compensation payable or to become payable
to any executives or employees of the Contributed Business other than
in the ordinary course of business;
(xiii) not take any action or intentionally omit to take any
action, which action or omission would result in a breach of any of
the representations and warranties set forth under the Genlyte
Capitalization Agreement or the ▇▇▇▇▇▇ Capitalization Agreement, as
the case may be, or in the failure or inability of the parties to
consummate the transactions contemplated hereby; or
(xiv) not incur or become subject to, nor agree to incur or
become subject to, any debt, obligation or liability, contingent or
otherwise, except for borrowings under or refinancing of, the existing
credit facilities of ▇▇▇▇▇▇ or Genlyte, as the case may be, up to the
existing borrowing limit on the date hereof, current liabilities and
contractual obligations in the ordinary course.
(b) Nothing contained in this Agreement shall give ▇▇▇▇▇▇, directly or
indirectly, rights to control or direct Genlyte's Contributed Business. Prior
to the Closing Date, Genlyte shall exercise, consistent with the terms and
conditions of this Agreement, complete control and supervision of its
Contributed Business.
(c) Nothing contained in this Agreement shall give Genlyte, directly or
indirectly, rights to control or direct ▇▇▇▇▇▇' Contributed Business. Prior to
the Closing Date, ▇▇▇▇▇▇ shall exercise, consistent with the terms and
conditions of this Agreement, complete control and supervision of its
Contributed Business.
5.2. ACCESS.
(a) Subject to applicable law, Genlyte shall afford to ▇▇▇▇▇▇ and its
accountants, counsel, financial advisors and other representatives (the "▇▇▇▇▇▇
REPRESENTATIVES") and ▇▇▇▇▇▇ shall afford to Genlyte and its accountants,
counsel, financial advisors and other representatives (the "GENLYTE
REPRESENTATIVES") full access during normal business hours with reasonable
notice throughout the period prior to the Closing Date to all of their
respective properties, books, contracts, commitments and records and, during
such period, shall furnish promptly to one another (i) a copy of each report,
schedule and other document filed with or received by any of them from the SEC
in connection with the transactions contemplated by this Agreement and (ii) such
other information concerning their respective businesses, properties and
personnel as ▇▇▇▇▇▇ or Genlyte, as the case may be, shall reasonably request;
provided, however, that no investigation pursuant to this Section 5.2 shall
amend or modify any representations or warranties made herein or in the Related
Agreements or the conditions to the obligations of the respective parties to
consummate the transactions contemplated hereby and thereby. ▇▇▇▇▇▇ shall hold
and shall use its reasonable commercial efforts to cause the ▇▇▇▇▇▇
Representatives to hold, and Genlyte shall hold and shall use its reasonable
commercial efforts to cause Genlyte Representatives to hold, in strict
confidence all non-public documents and information furnished to ▇▇▇▇▇▇ or to
Genlyte, as the case may be, in connection with the transactions contemplated by
this Agreement, except that (i) ▇▇▇▇▇▇ and Genlyte may disclose such information
as may be necessary in connection with seeking any required approvals, consents
or financings, and (ii) each of ▇▇▇▇▇▇ and Genlyte may disclose any information
that it is required by Law or judicial or administrative order to disclose.
Neither ▇▇▇▇▇▇ nor Genlyte shall use or knowingly permit the use of such non-
public information or other confidential or proprietary knowledge of the other
party for any purpose other than in connection with the transactions
contemplated hereby without the prior consent of the other parties hereto;
provided, that any information that is otherwise publicly available, without
breach of this provision, or has been obtained from a third party without a
breach of such third party's duties, shall not be subject to this Section
5.2(a).
(b) In the event that this Agreement is terminated in accordance with
its terms, each party shall promptly redeliver to the other all non-public
written material provided pursuant to this Section 5.2 and shall not retain any
copies, extracts or other reproductions in whole or in part of such written
material. In such event, all documents, memoranda, notes and other writings
prepared by ▇▇▇▇▇▇ or Genlyte based on the information in such material shall be
destroyed (and ▇▇▇▇▇▇ and Genlyte shall use their respective reasonable
commercial efforts to cause their advisors and representatives to similarly
destroy their documents, memoranda and notes), and such destruction (and
reasonable commercial efforts) shall be certified in writing by an authorized
officer supervising such destruction. The last two sentences of Section 5.2(a)
and the provisions of Section 5.2(b) shall survive any termination of this
Agreement.
5.3. STOCKHOLDERS' APPROVALS. (a) Subject to the fiduciary duties of
the Board of Directors of ▇▇▇▇▇▇ under applicable Law, ▇▇▇▇▇▇ shall, as promptly
as practicable, submit the transactions contemplated by this Agreement and the
▇▇▇▇▇▇ Agreements for the approval of its stockholders at a meeting of
stockholders and shall use its reasonable best efforts to obtain stockholder
approval and adoption of the transactions contemplated by this Agreement and the
▇▇▇▇▇▇ Agreements. Subject to the fiduciary duties of the Board of Directors of
▇▇▇▇▇▇ under applicable Law, such meeting of stockholders shall be held as soon
as practicable. ▇▇▇▇▇▇ shall use its reasonable best efforts to cause the Joint
Proxy Statement to be mailed to its stockholders at the earliest practicable
date. Subject to the fiduciary duties of the Board of Directors of ▇▇▇▇▇▇ under
applicable Law, ▇▇▇▇▇▇ shall, through its Board of Directors, recommend to its
stockholders approval of the transactions contemplated by this Agreement.
(b) Subject to the fiduciary duties of the Board of Directors of Genlyte
under applicable Law, Genlyte shall, as promptly as practicable, submit the
transactions contemplated by this Agreement and the Genlyte Agreements for the
approval of its stockholders at a meeting of stockholders and shall use its
reasonable best efforts to obtain stockholder approval and adoption of the
transactions contemplated by this Agreement and the Genlyte Agreements. Subject
to the fiduciary duties of the Board of Directors of Genlyte under applicable
Law, such meeting of stockholders shall be held as soon as practicable. Genlyte
shall use its reasonable best efforts to cause the Joint Proxy Statement to be
mailed to its stockholders at the earliest practicable date. Subject to the
fiduciary duties of the Board of Directors of Genlyte under applicable Law,
Genlyte shall, through its Board of Directors, recommend to its stockholders
approval of the transactions contemplated by this Agreement.
5.4. AGREEMENT TO COOPERATE. Subject to the terms and conditions
herein provided and subject to the fiduciary duties of the respective boards of
directors of Genlyte and ▇▇▇▇▇▇, each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all action and to do, or cause
to be done, all things necessary, proper or advisable under applicable Laws to
consummate and make effective the transactions contemplated by this Agreement,
including using its reasonable best efforts to obtain all necessary or
appropriate waivers, consents or approvals of third parties required in order to
preserve material contractual relationships of ▇▇▇▇▇▇ and Genlyte and their
respective Affiliates, all necessary or appropriate waivers, consents and
approvals, to effect all necessary filings and submissions and to lift any
injunction or other legal bar to the transactions contemplated hereby and
contemplated by the Related Agreements. Each party agrees to use all reasonable
efforts to comply with each of their respective covenants and agreements
contained in the Related Agreements.
5.5. PUBLIC STATEMENTS. The parties shall consult with each other
prior to issuing any press release or any written public statement with respect
to this Agreement or the transactions contemplated hereby and shall not issue
any such press release or written public statement prior to such consultation.
5.6. NOTIFICATIONS. Each party shall notify the other party and keep
it advised as to (a) any litigation or administrative proceeding that is either
pending or, to its knowledge, threatened against such party which challenges the
transactions contemplated hereby; (b) any material damage to or destruction of
its Contributed Business; (c) any breach of its own representations and
warranties set forth herein or in any of the Related Agreements; and (d) any
fact of which such party has knowledge that indicates that any condition to
Closing is reasonably likely not to be satisfied in a timely fashion. No
disclosure by any party pursuant to this Section 5.6, however shall be deemed to
amend or supplement any schedules or to prevent or cure any misrepresentations,
breach of warranty or breach of covenant contained herein or in the Related
Agreements.
5.7. JOINT PROXY STATEMENT; STOCKHOLDERS MEETINGS. ▇▇▇▇▇▇ and Genlyte
shall promptly prepare and file with the SEC the Joint Proxy Statement in
preliminary form. Each party shall use its commercially reasonable efforts to
respond to any comments of the SEC staff with respect thereto, in order to
permit mailing to stockholders of the definitive Joint Proxy Statement as
promptly as practicable. Prior to the date of approval of the transactions
contemplated hereby by their respective stockholders, each of ▇▇▇▇▇▇ and Genlyte
shall correct promptly any information provided by it to be used specifically in
the Joint Proxy Statement that shall have become false or misleading in any
material respect and shall take all steps necessary to file with the SEC and
have cleared by the SEC any amendment or supplement to the Joint Proxy Statement
so as to correct the same and to cause the Joint Proxy Statement as so corrected
to be disseminated to the stockholders of ▇▇▇▇▇▇ and Genlyte, in each case, to
the extent required by applicable Law.
5.8. ALTERNATIVE PROPOSALS. Each of ▇▇▇▇▇▇ and Genlyte hereby agree
that:
(a) After the date hereof and prior to the Closing Date or earlier
termination of this Agreement, such party shall not, and shall not permit any of
its Affiliates to, and such party shall, and shall cause each of its Affiliates
to, cause each officer, director and employee of such party and its Affiliates,
and each attorney, accountant, investment banker, financial advisor and other
agent retained by them, not to, directly or indirectly, initiate, solicit or
encourage or take any other action to knowingly facilitate or intentionally
engage in any discussion in relation to, any inquiries or the submission of any
proposal or offer to acquire or operate all or any material part of its
Contributed Business or to acquire any Person (including such party) that
directly or indirectly owns all or any part of its Contributed Business, whether
by merger, share exchange, purchase of stock, purchase of assets, tender offer,
joint venture or otherwise, and whether for cash, securities or any other
consideration or combination thereof, if such transaction would be materially
inconsistent with or preclusive of the transactions contemplated hereby (any
such inconsistent or preclusive transaction being referred to herein as an
"ALTERNATIVE TRANSACTION"). Such party will immediately cease and cause to be
terminated any existing initiation, solicitation, encouragement, discussions or
negotiations with parties other than the other party hereto with respect to
Alternative Transactions.
(b) Notwithstanding the provisions of Section 5.8(a), in response to
a proposal for an Alternative Transaction (an "ALTERNATIVE PROPOSAL") that is
unsolicited and made after the date hereof and prior to the stockholder vote,
(i) such party may engage in discussions or negotiations regarding such
Alternative Proposal with the Person who makes such Alternative Proposal (a
"POTENTIAL ACQUIROR"); and (ii) such party may furnish to any Potential Acquiror
(subject to the execution of a confidentiality agreement containing
confidentiality provisions substantially similar to the confidentiality
provision of this Agreement or any other confidentiality agreements between the
parties) confidential or non-public information concerning such party or its
Affiliates, if such party's Board of Directors, after consulting with its
outside legal counsel and receiving the written advice of such counsel,
determines in good faith that the failure to provide such confidential or non-
public information to or negotiate with, a Potential Acquiror would be
reasonably likely to constitute a breach of its fiduciary duty to such party's
stockholders. It is understood and agreed by the parties that negotiations and
other activities conducted in accordance with this Section 5.8(b) shall not
constitute a violation of Sections 5.1 or 5.8(a).
(c) Such party shall immediately notify the other party of its
receipt of any Alternative Proposal or any request for confidential or non-
public information relating to such party or its Affiliates in connection with
an Alternative Proposal or for access to the properties, books or records of
such party or any Affiliate by any Person that it is considering making, or has
made, an Alternative Proposal and prior to providing such access shall obtain a
confidentiality agreement with such Person.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF ▇▇▇▇▇▇
Each and all of the obligations of ▇▇▇▇▇▇ to consummate the transactions
contemplated by this Agreement and the Related Agreements are subject to
fulfillment prior to or at the Closing of the following conditions:
6.1. STOCKHOLDER APPROVAL. The transactions contemplated by this
Agreement and the Related Agreements shall have been approved and adopted by the
requisite vote of the stockholders of ▇▇▇▇▇▇ and Genlyte under applicable Law.
6.2. ACCURACY OF WARRANTIES AND PERFORMANCE OF COVENANTS. The
representations and warranties of Genlyte contained herein and in the Related
Agreements shall be true, correct and accurate in all respects (in the case of
any representation or warranty containing any materiality qualification) or in
all material respects (in the case of any representation or warranty without any
materiality qualification) as if made on and as of the Closing Date. The
Company and Genlyte shall have performed all of the obligations and complied in
all material respects with each and all of the covenants, agreements and
conditions required to be performed or complied with on or prior to the Closing
pursuant to this Agreement and the Related Agreements.
6.3. NO PENDING ACTION. No court of competent jurisdiction or
governmental, regulatory or administrative agency or commission shall have
issued an order, decree or ruling or taken any other action (which order, decree
or ruling Genlyte and ▇▇▇▇▇▇ shall use their commercially reasonable efforts to
lift), in each case temporarily or permanently restraining, enjoining or
otherwise prohibiting the transactions contemplated by this Agreement and the
Related Agreements.
6.4. CONSENTS. All consents by third parties that are required for
the consummation of the transactions contemplated hereby, or that are required
in order to prevent a breach of or a default under or a termination of any
Contract, shall have been obtained or provided for, except where the failure to
obtain the same would not be reasonably likely, individually or in the
aggregate, to have a Material Adverse Effect on the Company following the
Closing Date.
6.5. REGULATORY APPROVALS. All regulatory agencies shall have taken
such action as may be required to permit the consummation of the transactions
contemplated hereby and such actions shall remain in full force and effect and
shall be reasonably satisfactory in form and substance to ▇▇▇▇▇▇ and its
counsel.
6.6. CONDITION OF BUSINESS AND ASSETS. The Contributed Businesses and
the Contributed Assets shall not have been adversely affected in any way by any
act of God, fire, flood, accident, war, labor disturbance, legislation (proposed
or enacted), or other event or occurrence, whether or not covered by insurance,
and there shall have been no change in the Contributed Assets or the Contributed
Businesses, their financial condition or prospects, taken as a whole, which
would have a Material Adverse Effect thereon.
6.7. LITIGATION. Neither ▇▇▇▇▇▇ nor the Company nor any of the
Contributed Assets shall have been made a party or subject to any litigation
related to Genlyte or its Affiliates, which is reasonably expected to have a
Material Adverse Effect.
6.8. FINANCING. The Company shall have in place on or prior to the
Closing Date, a credit facility, including a working capital line of credit, in
an amount which is appropriate given the outstanding indebtedness of the Company
on the Closing Date, the contemplated growth, including acquisitions, and the
nature and size of the Company, on such terms as are reasonably acceptable to
▇▇▇▇▇▇ and Genlyte.
6.9. INSURANCE. The Company shall have in place general liability,
workers' compensation, product liability and directors and officers insurance
policies and other insurance policies reasonably necessary to operate the
Business, which are in amounts and subject to deductibles and self-insured
retentions customarily maintained for businesses of the size of the Company in
the industry in which it competes.
6.10. RELATED AGREEMENTS. All of the conditions precedent contained in
any of the Related Agreements shall have been satisfied or waived and the
Closing or effectiveness of the Related Agreements shall occur simultaneously
with the Closing.
6.11. SATISFACTION OF COUNSEL. All corporate and other actions and
proceedings in connection with the transactions contemplated hereby, all
resolutions, documents and instruments incidental thereto, and all other related
legal matters, shall be reasonably satisfactory in form and substance to counsel
for ▇▇▇▇▇▇, and ▇▇▇▇▇▇ shall have received all such resolutions, documents and
instruments, or copies thereof, certified if requested, as its counsel shall
have requested.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF GENLYTE
Each and all of the obligations of Genlyte to consummate the transactions
contemplated by this Agreement and the Related Agreements are subject to
fulfillment prior to or at the Closing of the following conditions:
7.1. STOCKHOLDER APPROVAL. The transactions contemplated by this
Agreement and the Related Agreements shall have been approved and adopted by the
requisite vote of the stockholders of ▇▇▇▇▇▇ and Genlyte under applicable Law.
7.2. ACCURACY OF WARRANTIES AND PERFORMANCE OF COVENANTS. The
representations and warranties of ▇▇▇▇▇▇ contained herein and in the Related
Agreements shall be true, correct and accurate in all respects (in the case of
any representation or warranty containing any materiality qualification) or in
all material respects (in the case of any representation or warranty without any
materiality qualification) as if made on and as of the Closing Date. The
Company and ▇▇▇▇▇▇ shall have performed all of the obligations and complied in
all material respects with each and all of the covenants, agreements and
conditions required to be performed or complied with on or prior to the Closing
pursuant to this Agreement and the Related Agreements.
7.3. NO PENDING ACTION. No court of competent jurisdiction or
governmental, regulatory or administrative agency or commission shall have
issued an order, decree or ruling or taken any other action (which order, decree
or ruling Genlyte and ▇▇▇▇▇▇ shall use their commercially reasonable efforts to
lift), in each case temporarily or permanently restraining, enjoining or
otherwise prohibiting the transactions contemplated by this Agreement and the
Related Agreements.
7.4. CONSENTS. All consents by third parties that are required for
the consummation of the transactions contemplated hereby, or that are required
in order to prevent a breach of or a default under or a termination of any
Contract, shall have been obtained or provided for, except where the failure to
obtain the same would not be reasonably likely, individually or in the
aggregate, to have a Material Adverse Effect on the Company following the
Closing Date.
7.5. REGULATORY APPROVALS. All regulatory agencies shall have taken
such action as may be required to permit the consummation of the transactions
contemplated hereby and such actions shall remain in full force and effect and
shall be reasonably satisfactory in form and substance to Genlyte and its
counsel.
7.6. CONDITION OF BUSINESS AND ASSETS. The Contributed Businesses and
the Contributed Assets shall not have been adversely affected in any way by any
act of God, fire, flood, accident, war, labor disturbance, legislation (proposed
or enacted), or other event or occurrence, whether or not covered by insurance,
and there shall have been no change in the Contributed Assets or the Contributed
Businesses, their financial condition or prospects, taken as a whole, which
would have a Material Adverse Effect thereon.
7.7. LITIGATION. Neither Genlyte nor the Company nor any of the
Contributed Assets shall have been made a party or subject to any litigation
related to ▇▇▇▇▇▇ or its Affiliates, which is reasonably expected to have a
Material Adverse Effect.
7.8. FINANCING. The Company shall have in place on or prior to the
Closing Date, a credit facility, including a working capital line of credit, in
an amount which is appropriate given the outstanding indebtedness of the Company
on the Closing Date, the contemplated growth, including acquisitions, and the
nature and size of the Company, on such terms as are reasonably acceptable to
▇▇▇▇▇▇ and Genlyte.
7.9. INSURANCE. The Company shall have in place general liability,
workers' compensation, product liability and directors and officers insurance
policies and other insurance policies reasonably necessary to operate the
Business, which are in amounts and subject to deductibles and self-insured
retentions customarily maintained for businesses of the size of the Company in
the industry in which it competes.
7.10. AUDITED FINANCIAL STATEMENTS. The audited financial statements
of ▇▇▇▇▇▇' Contributed Business for the three years ended December 31, 1997
shall have been completed and shall not be materially different from the
unaudited financial statements of ▇▇▇▇▇▇' Contributed Business for the three-
year period ended December 31, 1997, which unaudited financial statements have
been provided to Genlyte.
7.11. RELATED AGREEMENTS. All of the conditions precedent contained in
any of the Related Agreements shall have been satisfied or waived and the
Closing or effectiveness of the Related Agreements shall occur simultaneously
with the Closing.
7.12. SATISFACTION OF COUNSEL. All corporate and other actions and
proceedings in connection with the transactions contemplated hereby, all
resolutions, documents and instruments incidental thereto, and all other related
legal matters, shall be reasonably satisfactory in form and substance to counsel
for Genlyte, and Genlyte shall have received all such resolutions, documents and
instruments, or copies thereof, certified if requested, as its counsel shall
have requested.
ARTICLE VIII
TERMINATION BY PARTIES
8.1. TERMINATION. This Agreement and the Related Agreements may be
terminated and the transactions contemplated herein and therein may be abandoned
at any time prior to the Closing:
(a) by mutual written consent of the parties hereto;
(b) [intentionally omitted];
(c) by either ▇▇▇▇▇▇ or Genlyte in the event that the
Closing does not occur for any reason on or before December 31, 1998;
provided, however, that if the Closing does not occur due to the act
or omission of one of the parties, that party may not terminate this
Agreement pursuant to the provisions of this Section;
(d) by ▇▇▇▇▇▇, upon approval of the ▇▇▇▇▇▇ Board of
Directors, if prior to stockholder approval (i) without violation of
Section 5.8, ▇▇▇▇▇▇ shall have received after the date hereof an
Alternative Proposal, (ii) the ▇▇▇▇▇▇ Board of Directors shall have
determined, in the exercise of its good faith judgment and after
consultation with its legal counsel and receipt of a written opinion
from its financial advisors, that the Alternative Transaction
contemplated by such Alternative Proposal (if consummated pursuant to
its terms) would be more favorable from a financial point of view to
▇▇▇▇▇▇ or its stockholders, as applicable, than the transactions
contemplated by this Agreement and (iii) ▇▇▇▇▇▇ shall have given
Genlyte at least five (5) Business Days' prior written notice of the
material terms and conditions of such Alternative Proposal and of its
intention to terminate this Agreement pursuant to this provision, in
order to effect such Alternative Proposal; provided, however, that
such termination under this clause (d) shall not be effective, and
▇▇▇▇▇▇ shall not be entitled to enter into a definitive agreement
providing for an Alternative Transaction, until ▇▇▇▇▇▇ has made
payment to Genlyte of the fee required to be paid pursuant to Section
8.2(a);
(e) by Genlyte, upon approval of the Genlyte Board of
Directors, if prior to stockholder approval (i) without violation of
Section 5.8, Genlyte shall have received after the date hereof an
Alternative Proposal, (ii) the Genlyte Board of Directors shall have
determined, in the exercise of its good faith judgment and after
consultation with its legal counsel and receipt of a written opinion
from its financial advisors, that the Alternative Transaction
contemplated by such Alternative Proposal (if consummated pursuant to
its terms) would be more favorable from a financial point of view to
Genlyte or its stockholders, as applicable, than the transactions
contemplated by this Agreement and (iii) Genlyte shall have given
▇▇▇▇▇▇ at least five (5) Business Days' prior written notice of the
material terms and conditions of such Alternative Proposal and of its
intention to terminate this Agreement pursuant to this provision, in
order to effect such Alternative Proposal; provided, however, that
such termination under this clause (e) shall not be effective, and
Genlyte shall not be entitled to enter into a definitive agreement
providing for an Alternative Transaction, until Genlyte has made
payment to ▇▇▇▇▇▇ of the fee required to be paid pursuant to Section
8.2(b);
(f) by ▇▇▇▇▇▇, if the Genlyte Board of Directors or
committee thereof shall have resolved to accept or recommended to the
Genlyte stockholders an Alternative Proposal or shall have withdrawn
or adversely modified or taken a public position materially
inconsistent with its approval or recommendation to the stockholders
of Genlyte of the transactions contemplated hereby or shall not have
submitted this Agreement and the Genlyte Agreements and the
transactions contemplated hereby and thereby for the approval of its
stockholders at a meeting of stockholders or used its reasonable best
efforts to obtain such stockholder approval;
(g) by Genlyte, if the ▇▇▇▇▇▇ Board of Directors or
committee thereof shall have resolved to accept or recommended to the
▇▇▇▇▇▇ stockholders an Alternative Proposal or shall have withdrawn or
adversely modified or taken a public position materially inconsistent
with its approval or recommendation to the stockholders of ▇▇▇▇▇▇ of
the transactions contemplated hereby or shall not have submitted this
Agreement and the ▇▇▇▇▇▇ Agreements and the transactions contemplated
hereby and thereby for the approval of its stockholders at a meeting
of stockholders or used its reasonable best efforts to obtain such
stockholder approval;
(h) by ▇▇▇▇▇▇, if (i) a Change of Control of Genlyte shall
have occurred, (ii) Genlyte shall have entered into a definitive
agreement providing for, or publicly announced its intention to
effect, any transaction involving a Change of Control of Genlyte or
(iii) a tender offer or exchange offer shall have been commenced or
publicly announced that, if consummated, would have the effect of a
Change of Control of Genlyte;
(i) by Genlyte, if (i) a Change of Control of ▇▇▇▇▇▇ shall
have occurred, (ii) ▇▇▇▇▇▇ shall have entered into a definitive
agreement providing for, or publicly announced its intention to
effect, any transaction involving a Change of Control of ▇▇▇▇▇▇ or
(iii) a tender offer or exchange offer shall have been commenced or
publicly announced that, if consummated, would have the effect of a
Change of Control of ▇▇▇▇▇▇; or
(j) by either party, if the approval of the stockholders of
such party or the other party contemplated by Section 5.3 is not
obtained at the applicable stockholders meeting, including
adjournments thereof.
Any right of termination set forth above shall be exercised by written notice
from the terminating party to the other party.
8.2. TERMINATION FEES.
(a) If this Agreement is terminated by ▇▇▇▇▇▇ pursuant to Section
8.1(d) or by Genlyte pursuant to Section 8.1(g) or (i), then ▇▇▇▇▇▇ shall pay
Genlyte a fee of $4.5 million plus documented expenses of Genlyte, which
expenses shall not exceed $2.0 million in the aggregate; provided, however, that
no fee shall be payable following a termination of this Agreement pursuant to
Section 8.1(i)(iii) unless and until the relevant tender offer or exchange offer
has been consummated and a Change of Control of ▇▇▇▇▇▇ has occurred.
(b) If this Agreement is terminated by Genlyte pursuant to Section
8.1(e) or by ▇▇▇▇▇▇ pursuant to Section 8.1(f) or (h), then Genlyte shall pay
▇▇▇▇▇▇ a fee of $6.5 million plus documented expenses of ▇▇▇▇▇▇, which expenses
shall not exceed $2.0 million in the aggregate; provided, however, that no fee
shall be payable following a termination of this Agreement pursuant to Section
8.1(h)(iii) unless and until the relevant tender offer or exchange offer has
been consummated and a Change of Control of Genlyte has occurred.
(c) If this Agreement is terminated by ▇▇▇▇▇▇ due to the failure of
Genlyte to obtain stockholder approval as set forth in Section 8.1(j), then
Genlyte shall pay ▇▇▇▇▇▇ a fee of $3.25 million plus documented expenses of
▇▇▇▇▇▇, which expenses shall not exceed $2.0 million in the aggregate.
(d) If this Agreement is terminated by Genlyte due to the failure of
▇▇▇▇▇▇ to obtain stockholder approval as set forth in Section 8.1(j), then
▇▇▇▇▇▇ shall pay Genlyte a fee of $2.25 million plus documented expenses of
Genlyte, which expenses shall not exceed $2.0 million in the aggregate.
(e) If (i) this Agreement is terminated prior to the occurrence of
the Closing for any reason other than pursuant to Section 8.1(a), (ii) prior to
such date as is 270 days after such termination there shall occur a Change of
Control of a party or a party shall enter into a definitive agreement providing
for, or shall publicly announce its intention to effect, any transaction
involving a Change of Control of such party or involving the sale or other
disposition of all or substantially all of the Contributed Business or
Contributed Assets of such party (including by transfer to a joint venture or
similar arrangement) to or with an unaffiliated Person or a tender offer or
exchange offer shall have been commenced or publicly announced that, if
consummated, would result in a Change of Control of such party and (iii) no fee
has previously been paid by such party pursuant to Section 8.2(a) or (b), then
upon (and subject to) the occurrence of such Change of Control or the
consummation of such transaction, to the extent applicable, ▇▇▇▇▇▇ will pay to
Genlyte the fee and documented expenses set forth in Section 8.2(a) in the event
of a Change of Control of ▇▇▇▇▇▇ and, to the extent applicable, Genlyte will pay
to ▇▇▇▇▇▇ the fee and documented expenses set forth in Section 8.2(b) in the
event of a Change of Control of Genlyte, less the amount of any fee previously
paid pursuant to this Section 8.2 as a result of the failure to obtain
stockholder approval.
Any such amount shall be paid in cash by wire transfer in immediately
available funds, (i) in the case of Section 8.1(d) or (e) or Section 8.2(c) or
(d), at or prior to the termination referred to therein and (ii) in the case of
Section 8.1(f), (g), (h) or (i) or Section 8.2(e), not later than five (5)
Business Days after the obligation to make such payment arises.
If one party fails to promptly pay to the other any fee due under this
Section 8.2, the defaulting party shall pay the costs and expenses (including
reasonable legal fees and expenses) in connection with any action, including the
filing of any lawsuit or other legal action, taken to collect payment, together
with interest on the amount of any unpaid fee at the publicly announced prime
rate of Citibank, N.A. from the date such fee was required to be paid.
In no event will either ▇▇▇▇▇▇ or Genlyte be entitled to receive more than
$6.5 million or $4.5 million, as the case may be, plus documented expenses in
each case of up to $2.0 million pursuant to this Section 8.2. This Section 8.2
is the sole and exclusive remedy with respect to a termination of this Agreement
and the transactions contemplated hereby pursuant to Sections 8.1(d), (e), (f),
(g), (h), (i) and (j) and Section 8.2(e). In the event this Agreement is
terminated and the termination fee is paid pursuant to Section 8.2, this Section
8.2 shall be the sole and exclusive remedy with respect to such termination and
any other claim for breach of contract and representation and warranty and
failure to perform or satisfy any covenant, agreement or other obligation
contained in this Agreement or the Related Agreements.
Notwithstanding the foregoing, in the event this Agreement is terminated
pursuant to Section 8.1(c), the party not entitled to terminate under Section
8.1(c) shall have no rights under this Section 8.2(e).
8.3. EFFECT OF TERMINATION. In the event of any termination of this
Agreement as provided above, this Agreement shall forthwith become wholly void
and of no further force and effect and there shall be no liability on the part
of any party, its Affiliates or their respective officers or directors;
provided, however, that upon any such termination the obligations of the parties
with respect to this Article VIII (including Section 8.2), the last two
sentences of Section 5.2(a), Sections 3.4, 3.6, 4.4, 4.6, 5.2(b) and 9.3 and the
Confidentiality Agreement previously entered into by and between ▇▇▇▇▇▇ and
Genlyte shall remain in full force and effect and if the Company has been formed
the parties shall dissolve it, or shall cause it to be dissolved; and provided,
further, that subject to the last paragraph of Section 8.2 nothing herein will
relieve any party from liability for damages for any breach of covenants or
representations and warranties of this Agreement prior to Closing.
ARTICLE IX
GENERAL PROVISIONS
9.1. AMENDMENTS AND WAIVER.
(a) No amendment, waiver or consent with respect to any provision of
this Agreement shall in any event be effective, unless the same shall be in
writing and signed by the parties hereto, and then such amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
(b) The failure of any party at any time or times to require
performance of any provisions hereof shall in no manner affect that party's
right at a later time to enforce the same. No waiver by any party of the breach
of any term or covenant contained in this Agreement in any one or more instances
shall be deemed to be, or construed as, a further or continuing waiver of any
such breach, or a waiver of the breach of any other term or covenant contained
in this Agreement.
9.2. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be, personally delivered or sent by
facsimile transmission with confirming copy sent by overnight courier (such as
Express Mail, Federal Express, etc.) and a delivery receipt obtained and
addressed to the intended recipient as follows:
(a) If to Genlyte:
The Genlyte Group Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ & English, LLP
Four Gateway Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to ▇▇▇▇▇▇:
▇▇▇▇▇▇ Industries Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.C.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may change its address for receiving notice by written notice given to
the others named above. Notices shall be deemed given as of the date of
receipt.
9.3. EXPENSES. Except as otherwise expressly provided herein, each
party to this Agreement shall pay its own costs and expenses in connection with
the transactions contemplated herein, including fees of counsel, investment
bankers and accountants. The expenses incurred in connection with printing and
filing (but not preparing) the Joint Proxy Statement shall be shared equally by
▇▇▇▇▇▇ and Genlyte. The provisions of this Section shall survive any
termination of this Agreement.
9.4. COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
9.5. CAPTIONS. The captions contained in this Agreement are for
convenience of reference only, shall not be given meaning and do not form a part
of this Agreement.
9.6. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to
the benefit of the parties named herein and their respective successors and
permitted assigns. This Agreement shall not be assigned by either party hereto
without the express prior written consent of the other party and any attempted
assignment, without such consents, shall be null and void. This Agreement does
not create any rights, claims or benefits inuring to any person that is not a
party hereto nor create or establish any third-party beneficiary hereto.
9.7. ENTIRE TRANSACTION. This Agreement and the agreements and
documents referred to herein contain the entire agreement and understanding
among the parties with respect to the transactions contemplated hereby and
supersede all other agreements, understandings and undertakings among the
parties on the subject matter hereof. All exhibits and schedules hereto are
hereby incorporated by reference and made a part of this Agreement.
9.8. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal substantive laws of the state of
Delaware, without giving effect to conflict of laws rules.
9.9. OTHER RULES OF CONSTRUCTION. References in this Agreement to
sections, schedules and exhibits are to sections of, and schedules and exhibits
to, this Agreement unless otherwise indicated. Words in the singular include
the plural and in the plural include the singular. The word "OR" is not
exclusive. The word "INCLUDING" shall mean including, without limitation. The
term "ORDINARY COURSE" means the ordinary course of the business consistent with
the past practice of the respective Contributed Business. The section and other
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
9.10. PARTIAL INVALIDITY. In the event that any provision of this
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof.
9.11. AUTHORSHIP. The parties hereto agree that the terms and language
of this Agreement were the result of negotiations between the parties and, as a
result, there shall be no presumption that any ambiguities in this Agreement
shall be resolved against either party. Any controversy over construction of
this Agreement shall be decided without regard to events of authorship or
negotiation.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
▇▇▇▇▇▇ INDUSTRIES INC.
By:
Its:
THE GENLYTE GROUP INCORPORATED
By:
Its:
LIST OF SCHEDULES
TO THE
MASTER TRANSACTION AGREEMENT
BETWEEN
▇▇▇▇▇▇ INDUSTRIES INC.
AND
THE GENLYTE GROUP INCORPORATED
DATED AS OF APRIL 28, 1998
Schedule 5.1: Activities Not Conducted in the Ordinary Course of Business