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EXHIBIT 10.9
STOCK PURCHASE AGREEMENT
BETWEEN
FORD MOTOR COMPANY
(AS SELLER)
AND
MSX INTERNATIONAL (HOLDINGS), INC.
(AS BUYER)
DATED JULY 25, 1997
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is entered into as of
the 25th day of July, 1997, by and between FORD MOTOR COMPANY. a Delaware
corporation ("FORD" or "Seller") and MSX INTERNATIONAL (HOLDINGS), INC., a
Delaware corporation ("MSX" or "Buyer"). Seller and Buyer are referred to
collectively herein as the "Parties."
R E C I T A L S
A. Seller owns all of the outstanding capital stock of Geometric
Results Incorporated, a Delaware corporation ("GRI") and desires to sell such
stock of GRI to Buyer.
B. Buyer desires to purchase all of the outstanding capital
stock of GRI from Seller under terms and conditions mutually agreeable to the
Parties.
C. This Agreement contemplates a transaction in which Buyer,
directly or indirectly or through one of more of its Subsidiaries, will purchase
from Seller, and Seller will transfer to Buyer, all of the outstanding capital
stock of GRI and its Subsidiaries in return for cash and other consideration as
provided hereunder.
D. As a part of the consideration paid by Buyer for GRI. Buyer
and Seller will at the Closing execute a Master Vendor Agreement and Supply
Agreement pursuant to which GRI will continue to provide FORD various services
subsequent to the Closing.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained and contained in the Master Vendor Agreement and
Master Supply Agreement, the Parties agree as follows.
ARTICLE 1 - DEFINITIONS
1.1 "Affiliate" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act.
1.2 "Agreement" means this Stock Purchase Agreement, the exhibits
hereto and the certificates delivered in connection herewith, as the same shall
be amended, modified or restated from time to time.
1.3 "Ancillary Agreements" means the Transition Services
Agreement, the Master Vendor Agreement, the Master Supply Agreement, the
Sublease, the Side Letter Agreements, the Software License and the
Grantback-License Agreement.
1.4 "Buyer" has the meaning set forth in the preface above.
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1.5 "Cash" means cash and cash equivalents (including investments
in parent, marketable securities and short term investments) calculated in
accordance with GAAP applied on a basis consistent with the preparation of the
Financial Statements.
1.6 "Closing" has the meaning set forth in Article 2.4 below.
1.7 "Closing Date" has the meaning set forth in Article 2.4
below.
1.8 "Code" means the Internal Revenue Code of 1986, as amended,
and the rules and regulations promulgated thereunder.
1.9 "Confidentiality Agreement" means the letter agreement
between FORD and MSX entered into February 25, 1997 regarding non-disclosure of
Evaluation Material.
1.10 "Employee Benefit Plan" means any (i) nonqualified deferred
compensation or retirement plan or arrangement which is an Employee Pension
Benefit Plan, (ii) qualified defined contribution retirement plan or arrangement
which is an Employee Pension Benefit Plan, (iii) qualified defined benefit
retirement plan or arrangement which is an Employee Pension Benefit Plan
(including any Multiemployer Plan), or (iv) Employee Welfare Benefit Plan or
material fringe benefit plan or program.
1.11 "Employee Pension Benefit Plan" has the meaning set forth in
ERISA Section 3 (2).
1.12 "Employee Welfare Benefit Plan" has the meaning set forth in
ERISA Section 3 (1).
1.13 "ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the rules and regulations promulgated thereunder.
1.14 "Evaluation Material" has the meaning given to such term in
the Confidentiality Agreement.
1.15 "FORD" means FORD Motor Company, a Delaware corporation.
1.16 "Financial Statement" has the meaning set forth in Article
3.1.2.6 below.
1.17 "GAAP" means United States generally accepted accounting
principles as in effect from time to time.
1.18 "GRI" means Geometric Results Incorporated, a Delaware
corporation.
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1.19 "▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended.
1.20 "Income Tax" means any federal, state, local, or foreign
income or similar tax, including any interest, penalty, or addition thereto,
whether disputed or not.
1.21 "Indemnified Party" has the meaning set forth in Article
6.4(i) below.
1.22 "Indemnifying Party" has the meaning set forth in Article
6.4(i) below.
1.23 "Knowledge" as it relates to Buyer, means actual knowledge
without independent investigation of the officers of Buyer, and as it relates to
Seller, means actual knowledge without independent investigation of the officers
of GRI, its Subsidiaries or Seller.
1.24 "Loss" has the meaning set forth in Article 6.2 below.
1.25 "Most Recent Financial Statements" has the meaning set forth
in Article 3.1.2.6 below.
1.26 "Most Recent Fiscal Month End" has the meaning set forth in
Article 3.1.2.6 below.
1.27 "MSX" means MSX International (Holdings), Inc., a Delaware
corporation.
1.28 "Offered Shares" means all of the issued and outstanding
shares of the common stock, par value $ 1.00 per share, of GRI.
1.29 "Ordinary Course of Business" means the ordinary course of
business consistent with past custom and practice (including with respect to
quantity and frequency).
1.30 "Other Taxes" means any federal, state, local or foreign
employment, value added, sales, real or personal property, franchise or similar
tax, including any interest, penalty or addition thereto, whether disputed or
not.
1.31 "Party" or "Parties" has the meaning set forth in the
preface above.
1.32 "PBGC" means the Pension Benefit Guaranty Corporation.
1.33 "PeopleNet" means the contract or process by which GRI
presently provides on-site contract personnel services to FORD in North America.
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1.34 "Person" means an individual, a proprietorship, a partnership,
a corporation, an association, a joint stock company, a trust, a joint venture,
an unincorporated organization, other business organization, trust, union, or a
governmental entity (or any department, agency, or political subdivision
thereof).
1.35 "Power Products Division" means the assets, properties and
business of the sale, marketing and servicing of Ford industrial and marine
engines, transmissions, parts and components previously conducted by GRI and its
Subsidiaries.
1.36 "Purchase Price" has the meaning set forth in Article 2.2
below.
1.37 "Securities Act" means the Securities Act of 1933, as
amended.
1.38 "Securities Exchange Act" means the Securities Exchange Act
of 1934, as amended.
1.39 "Security Interest" means any mortgage, pledge, lien,
encumbrance, charge, adverse claim, levy, lease, any conditional sale contract,
or other security interest, other than (i) any statutory lien arising in the
Ordinary Course of Business with respect to a liability that is not yet due or
delinquent, (ii) liens for taxes not yet due and payable or for taxes that the
taxpayer is contesting in good faith through appropriate proceedings for which
adequate reserves have been established in accordance with GAAP, (iii) liens
securing rental payments under capital lease arrangements and listed on Exhibit
1.39, and (iv) other liens arising in the Ordinary Course of Business whether or
not incurred in connection with the borrowing of money, and listed on Exhibit
1.39.
1.40 "Seller" has the meaning set forth in the preface above.
1.41 "Side Letter Agreements" means the letter agreements entered
into at the Closing with respect to (i) employees of the Power Products
Division, (ii) employees of DDS and (iii) postal rates charged to DDS.
1.42 "Subsidiary" means any corporation with respect to which a
specified Person (or a Subsidiary thereof) owns a majority of the common stock
or has the power to vote or direct the voting of sufficient securities to elect
a majority of the directors.
1.43 "Tax Return" means any return, declaration. report, claim for
refund, or information return or statement relating to Income Taxes or Other
Taxes, including any schedule or attachment thereto.
1.44 "Third Party Claim" has the meaning set forth in Article 6.4
below.
ARTICLE 2 - PURCHASE AND SALE
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2.1 Basic Transaction.
On and subject to the terms and conditions of this Agreement, Buyer,
either directly or indirectly through one or more Subsidiaries, agrees to
purchase from Seller, and Seller agrees to sell, transfer and convey to Buyer,
all of the Offered Shares for the consideration specified hereinbelow in this
Article 2. Subject to the prior written consent of Seller, which may not be
unreasonably withheld, Buyer may directly or indirectly, through one or more of
Buyer's Subsidiaries, acquire all of the capital stock of one or more of GRI's
Subsidiaries directly from GRI, or effect a merger of one or more of GRI's
Subsidiaries with and into one or more of Buyer's Subsidiaries, as elected by
Buyer in a writing delivered to Seller within a reasonable period prior to
Closing, and the Parties will execute such documentation as is reasonably
required by Buyer to effectuate such transaction(s).
2.2 Purchase Price.
2.2.1 Purchase Price. Buyer agrees to pay to Seller at
the Closing the amount of $60 million less an amount equal to the amount by
which the Estimated GRI Cash (as hereafter defined in Article 4.1.13) is less
than S27 million (the "Initial Purchase Price") for the Offered Shares, by wire
transfer of the full amount of the Initial Purchase Price in immediately
available funds.
2.2.2 Adjustment. The Initial Purchase Price will be
adjusted by the amount, if any, by which the Cash of GRI as of the Closing Date
is less than the Estimated GRI Cash (the "Adjustment Payment"). Buyer shall make
a determination of the Cash of GRI as promptly as possible following the Closing
Date, but in any event, not later than 10 days following the Closing Date and
shall provide Seller with Buyer's determination of the Cash of GRI as of the
Closing Date. The Adjustment Payment shall be made by Seller to Buyer within
five days after final determination.
2.3 Transaction Fee.
2.3.1 Fee. FORD will pay MSX, at Closing, by wire
transfer in immediately available funds, a fee of $1 million for various
administrative services provided by MSX and arising as a result of the
transactions contemplated herein (the "Transaction Fee").
2.3.2 Recoupment. FORD and MSX shall undertake
reasonable efforts to permit FORD to recoup the Transaction Fee from
revenues realized by GRI from an increase in the fee charged to vendors to
PeopleNet or other price savings from such vendors. In the event of such
revenues from an increased fee or savings, MSX shall pay to FORD one-third of
such increased revenues or savings until the earlier of (i) 100% of the
Transaction Fee is recovered by FORD or (ii) December 31, 1998.
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2.4 The Closing.
The closing of the transactions contemplated by this Agreement (the
"Closing") shall take place at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PLLC in Detroit,
Michigan, commencing at, 10:00 a.m. local time on the second business day
following the satisfaction or waiver of all conditions to the obligations of the
Parties to consummate the transactions contemplated hereby (other than
conditions with respect to actions the respective Parties will take at the
Closing itself) or such other date as Buyer and Seller may mutually determine
(the "Closing Date").
2.5 Deliveries at the Closing.
At the Closing, (i) Seller will deliver to Buyer the various
certificates, instruments, agreements and documents referred to in Article 2.1
above and Article 5.1 below, (ii) Buyer will deliver to Seller the various
certificates, instruments, agreements and documents referred to in Article 2.1
above or Article 5.2 below, (iii) Seller will deliver to Buyer stock
certificates representing all of the Offered Shares, all of the shares of any
GRI Subsidiary, the stock of which is acquired directly by Buyer or one of its
Subsidiaries and all of the shares of any GRI Subsidiary registered in the name
of any party other than GRI (without any restrictive legend thereon), endorsed
in blank or accompanied by duly executed assignment documents, with requisite
stock transfer tax stamps, if any, attached, (iv) Buyer will deliver to Seller
the consideration specified in Article 2.2.1 above, (v) Seller will deliver to
Buyer the consideration specified in Article 2.3.1 above, (vi) Buyer and Seller
will execute and deliver to each other the Ancillary Agreements and (vii) Seller
will remit to a bank account controlled by GRI, in immediately available funds,
GRI's investments in parent.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Seller. Seller
represents and warrants to Buyer that the statements contained in this Article
3.1 are correct and complete as of the date of this Agreement and will be
correct and complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the date of this Agreement throughout this
Article 3.1).
3.1.1 Representations and Warranties Regarding FORD.
3.1.1.1 Organization of Seller. Seller is a
corporation duly organized, validly existing, and in good standing under the
laws of the jurisdiction of its incorporation, has full power and authority to
own its properties and to carry on its business as now conducted.
3.1.1.2 Authorization of Transaction. Seller
has full power and authority (including full corporate power and authority) to
execute and deliver this Agreement and the Ancillary Agreements and to perform
its obligations hereunder and
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thereunder. This Agreement has been duly executed and delivered by Seller and
the Ancillary Agreements, upon execution by Seller, will have been duly executed
and delivered by Seller, and each such agreement is or upon execution will be a
valid and binding obligation of the Seller, enforceable in accordance with its
terms and conditions, except as enforceability may be limited by the effects of
bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization or
other similar laws and court decisions relating to or affecting the rights of
creditors generally or by general principles of equity (whether considered in
equity or at law).
3.1.1.3 Noncontravention. Neither the execution
and the delivery of this Agreement or the Ancillary Agreements, nor the
consummation of the transactions contemplated hereby or thereby, will (i)
violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which Seller is subject or any provision of its
charter or bylaws or (ii) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, covenant, contract, lease, license, instrument, or other obligation
or arrangement to which Seller is a party or by which it is bound or to which
any of its assets is subject.
3.1.1.4 Offered Shares. Seller holds of record
and owns beneficially all of the Offered Shares, free and clear of any
restrictions on transfer (other than restrictions under the Securities Act and
state securities laws), taxes, Security Interests (without regard to any
exceptions included in such defined term), options, warrants, purchase rights,
contracts, commitments, equities, claims, and demands. Seller is not a party to
any option, warrant, purchase right, or other contract or commitment that could
require Seller to sell, transfer or otherwise dispose of any capital stock of
GRI (other than this Agreement). Seller is not a party to any voting trust,
proxy or other agreement or understanding with respect to the voting of any of
the Offered Shares. The Offered Shares represent all of the issued and
outstanding shares of GRI as of the Closing Date. At the Closing, there will be
no restrictions upon the vesting in Buyer of unencumbered marketable title to
the Offered Shares, free and clear of liens, encumbrances and other claims of
any kind whatsoever, and such title shall then vest in Buyer.
3.1.1.5 Approvals. Except for the filing of
premerger notification reports generally required by law with the Federal Trade
Commission and the Department of Justice, and any similar filings in foreign
jurisdictions, no approval of or filing with any foreign, federal, state or
local court, authority or administrative agency is necessary to authorize the
execution and delivery of this Agreement and the Ancillary Agreements by the
Seller or GRI or the consummation of the transactions contemplated herein and
therein by the Seller. Prior to the Closing, such reports by the Seller will
have been prepared in accordance with law and filed in a timely manner so as to
permit the Closing to be consummated by the Seller as herein provided.
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3.1.2 Representations and Warranties Regarding GRI.
Seller represents and warrants to Buyer that the statements contained in this
Article 3.1.2 are correct and complete as of the date of this Agreement and will
be correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement
throughout this Article 3.1.2). Except as specifically provided in this Article
3, (a) the representations and warranties set forth in this Article 3.1.2 are
not made with respect to the Power Products Division and (b) the term "GRI and
its Subsidiaries" does not include the Power Products Division .
3.1.2.1 Organization, Qualification, and
Corporate Power. Each of GRI and its Subsidiaries is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation, and is duly qualified to conduct business as
a foreign corporation in each of the jurisdictions (which are set forth in
Exhibit 3.1.2.1) in which the ownership, use or leasing of its properties or the
conduct of its business requires such qualification, and has effected all
registrations required by the laws of the jurisdiction concerned. Each of GRI
and its Subsidiaries has full corporate power and authority to carry on the
businesses in which it is engaged and to own, lease and use the properties
owned, leased and used by it. Exhibit 3.1.2.1 identifies the directors and
officers of each of GRI and its Subsidiaries. Seller has provided to Buyer true,
complete and correct copies of the corporate and minute books of each of GRI and
its Subsidiaries.
3.1.2.2 Capitalization. The entire authorized
capital stock of GRI consists of 10,000 shares of common stock, $1.00 par value,
of which 10 shares are issued and outstanding, all of which constitute the
Offered Shares. No other shares of capital stock of GRI are authorized, issued
or outstanding. All of the issued and outstanding Offered Shares have been duly
authorized, are validly issued, fully paid, and nonassessable, and are held of
record by Seller, free and clear of all liens, encumbrances and claims. There
are no outstanding or authorized options, warrants, purchase rights,
subscription rights, conversion rights, exchange rights, or other contracts or
commitments that could require GRI to issue, sell, or otherwise cause to become
outstanding any of its capital stock. Exhibit 3.1.2.2 lists all outstanding or
authorized stock appreciation, phantom stock, profit participation, or similar
rights with respect to GRI or the Offered Shares, true, complete and accurate
copies of which have been provided to Buyer. All obligations under any such
plans listed on Exhibit 3.1.2.2 have been fully accrued for in the Most Recent
Financial Statements.
3.1.2.3 Noncontravention. Neither the execution
and delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, will (i) violate any provision of the charter or bylaws of
any of GRI and its Subsidiaries, or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement
to which any of GRI and its Subsidiaries is a party or by which it is bound or
to which any of its assets is subject or result in
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the imposition of any Security Interest (without regard to any exceptions
included in such defined term) upon any of its assets.
3.1.2.4 Title to Tangible Assets. Each of GRI and
its Subsidiaries has good and marketable title to, or a valid marketable
leasehold interest in, and has a valid legal right to use all of the tangible
assets used in the conduct of its business, free and clear of all Security
Interests. Exhibit 3.1.2.4 lists all personal property leases under which GRI or
any Subsidiary has an obligation in excess of $100,000 annually. True, complete
and correct copies of all such leases have been provided to Buyer. Exhibit
3.1.2.4 lists or describes all tangible personal property owned by or an
interest in which is claimed by any other person (whether Seller, a customer,
supplier, affiliate or other Person, excepting only a third party lessor of
personal property) which is used by GRI or its Subsidiaries or for which GRI or
any of its Subsidiaries is responsible (true, complete and correct copies of all
agreements relating thereto have been delivered to Buyer). Exhibit 3.1.2.4 also
lists or describes all tangible personal property which is owned or used by the
Power Products Division, the ownership of which will be removed from GRI
pursuant to the transaction contemplated by Article 4.1.7 of this Agreement.
After the Closing, GRI or one of its Subsidiaries will continue to own, lease,
or have a right to use (without any increase in cost to GRI) all intangible and
tangible assets and properties necessary to conduct its respective business as
presently conducted (without additional cost, royalty or other fee to GRI or its
Subsidiaries) including, without limitation, those assets (tangible and
intangible) and properties which have been shared between any of GRI, the Power
Products Division and Seller except as set forth on Exhibit 3.1.2.4. Exhibit
3.1.2.4 describes all services provided by Seller, the Power Products Division
or Seller's Affiliates to GRI or its Subsidiaries and with respect to each such
service, the charges (or allocations) to GRI or its Subsidiaries by Seller
therefor.
3.1.2.5 Subsidiaries. Exhibit 3.1.2.5 sets forth
for each Subsidiary of GRI (i) its name and jurisdiction of incorporation, (ii)
the number of shares of authorized capital stock of each class of its capital
stock, (iii) the number of issued and outstanding shares of each class of its
capital stock, the names of the holders thereof, and the number of shares held
by each such holder, and (iv) the number of shares of its capital stock held in
treasury. All of the issued and outstanding shares of capital stock of each
Subsidiary of GRI have been duly authorized and are validly issued, fully paid,
and nonassessable. Either GRI or one of its Subsidiaries holds of record and
owns beneficially all of the outstanding shares of each Subsidiary of GRI. Other
than as set forth in Exhibit 3.1.2.5, GRI does not own directly or indirectly
any interest or have any investment in any corporation or other business. There
are no outstanding or authorized options, warrants, purchase rights, conversion
rights, exchange rights or other contracts or commitments that could require any
of GRI's Subsidiaries to issue, sell or otherwise cause to become outstanding
any of its capital stock. There are no outstanding or authorized stock
appreciation, phantom stock, profit participation, or similar rights with
respect to the Subsidiaries of GRI or their shares.
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3.1.2.6 Financial Statements. Attached hereto as
Exhibit 3.1.2.6 are the following financial statements (collectively the
"Financial Statements"): (i) unaudited consolidated balance sheets and
statements of income, changes in stockholders' equity, and cash flows as of and
for the fiscal year ended 1996 for GRI and its Subsidiaries (which shall also
include the Power Products Division), including the notes thereto and all
additional or supplemental information supplied therewith, (ii) audited
consolidated balance sheets and statements of income, changes in stockholders'
equity, and cash flow as of and for the fiscal years ended 1994, 1995 and 1996
for GRI and its Subsidiaries (which shall also include the Power Products
Division), including the notes thereto, all additional or supplemental
information supplied therewith and the report prepared in connection therewith
by the independent certified public accountants auditing such financial
statements and (iii) unaudited consolidated balance sheets and statements of
income, changes in stockholders' equity, and cash flow (the "Most Recent
Financial Statements" as of and for the six months ended June 30, 1997 (the
"Most Recent Fiscal Month End" for GRI and its Subsidiaries (which shall also
include the Power Products Division) (and as of the corresponding dates and for
the corresponding periods in the preceding fiscal year), including the notes
thereto and all additional or supplemental information supplied therewith. The
Financial Statements (including the notes thereto) (a) have been prepared in
accordance with GAAP applied on a consistent basis throughout the periods
covered thereby and, in the case of the Financial Statements included as part of
(ii) above, have been audited in accordance with generally accepted auditing
standards, and (b) present fairly the properties, assets and financial position
of GRI and its Subsidiaries (including the Power Products Division) as of such
dates and the results of operations of GRI and its Subsidiaries (including the
Power Products Division) for such dates and periods; provided, however, that the
Most Recent Financial Statements are subject to normal year-end adjustments and
lack footnotes and other presentation items. Exhibit 3.1.2.6 sets forth the
year-end adjustments made to the unaudited financial statements in connection
with the preparation of the audited financial statements for the fiscal year
ended 1996. Exhibit 3.1.2.6 also sets forth the accounting methodology for
removal of the assets and liabilities of the Power Products Division from GRI
and any other financial statements to be delivered pursuant to this Agreement
shall be prepared in accordance with such methodology. All of GRI's and its
Subsidiaries' receivables of any nature are collectible in the Ordinary Course
of Business without offset subject to reserves reflected in the Financial
Statements or otherwise recorded in the Ordinary Course of Business and will be
collected by December 31, 1997. As of the Most Recent Fiscal Month End there are
no liabilities or obligations of any kind or nature, contingent or otherwise,
which are not reflected in the Most Recent Financial Statements and since such
date neither GRI nor its Subsidiaries has incurred any such liability or
obligation other than those incurred in the Ordinary Course of Business.
3.1.2.7 Events Subsequent to Most Recent Fiscal
Year End.
(a) Since December 31, 1996, there has not
been any material adverse change, either individually or in the aggregate, in
the business, properties, financial position, results of operations or net worth
of GRI or its Subsidiaries (whether as a result of any casualty or disaster,
accident, labor dispute, attrition of key employees, exercise of
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the power of eminent domain or other governmental act, or as a result of any
other event or circumstance) and (ii) neither GRI nor its Subsidiaries has
sustained any loss or damage to its properties, whether or not insured, which
affects its ability to conduct its business; except as set forth on Exhibit
3.1.2.7, the business of GRI and its Subsidiaries has since such date been
conducted in the same manner as theretofore conducted and in the Ordinary Course
of Business; after the close of business on such date no transaction has taken
place and no material contract has been entered into by GRI or its Subsidiaries
other than in the Ordinary Course of Business; and specifically, without
limitation of the foregoing, there have been no sales, removals or deliveries of
inventory (other than in the Ordinary Course of Business), machinery, fixtures
or other tangible or intangible assets of any nature since such date. Without
limiting the generality of the foregoing, since that date neither GRI nor any of
its Subsidiaries has engaged in any practice, taken any action, or entered into
any transaction outside the Ordinary Course of Business, other than as
contemplated by this Agreement in connection with this transaction.
(b) Since December 31, 1996, there has been
no material casualty affecting GRI or its Subsidiaries or loss, damage or
destruction to any of their properties, whether or not covered by or
compensated under any insurance policy covering GRI or its Subsidiaries.
(c) Since December 31, 1996, neither GRI nor
its Subsidiaries has:
(i) issued capital stock or declared
or paid any dividend (except for
dividends paid by any Subsidiary of GRI
to GRI) or made any other payment from
capital or surplus or other distribution
of any nature, or directly or indirectly
redeemed, purchased or otherwise acquired
or recapitalized or reclassified any of
its capital stock or liquidated in whole
or in part;
(ii) except as described in Exhibit
3.1.2.7, acquired all or substantially
all of the stock or assets of any other
company (including any such acquisition
structured as a merger or consolidation)
or made any loan of money to or
investment in any other company;
(iii) created, incurred or assumed or
committed to create, incur or assume any
indebtedness or other liability, except
for accounts payable or other current
liabilities which (1) are not for
borrowed money, (2) were incurred in the
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Ordinary Course of Business, and (3) have
not been materially adverse to the
business, properties, financial position,
results of operations or net worth of GRI
and its Subsidiaries;
(iv) mortgaged, pledged, leased or
otherwise encumbered any asset other than
in the Ordinary Course of Business;
(v) except as described in Exhibit
3.1.2.7, raised salaries, hourly rates or
the rate of bonuses or commissions or
other compensation payable to directors,
officers or other employees of GRI or its
Subsidiaries, except for normal increases
consistent with past practice, or
adopted, entered into, amended, or
terminated any Employee Benefit Plan;
(vi) varied insurance coverage;
(vii) altered or amended its charter or
bylaws;
(viii) entered into, materially amended
or terminated any material contract,
agreement, franchise, permit or license,
except in the Ordinary Course of
Business;
(ix) agreed with Seller or any of
Seller's Affiliates to modify pricing or
terms of any relationship to the
detriment of GRI or any of its
Subsidiaries; or
(x) entered into any agreement,
commitment or understanding to do or
engage in any of the foregoing after the
date hereof.
3.1.2.8 Legal Compliance. Each of GRI and its
Subsidiaries has complied with all applicable laws (including rules,
regulations, codes, plans, injunctions, judgments, orders, decrees, directives,
rulings, and charges thereunder) of federal, state, local, and foreign
governments and supranational authorities (and all agencies thereof). Neither
GRI nor any of its Subsidiaries is subject to any judicial, governmental or
administrative order, judgment or decree. Each of GRI and its Subsidiaries has
obtained all governmental licenses, permits, approvals, authorizations,
exemptions, classifications and certificates material to the conduct of its
business or to the ownership of its properties (collectively referred to herein
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as "Licenses"). True, complete and accurate copies of all Licenses have been
provided to Buyer. Each License is valid, binding and in full force and effect
and neither Seller nor any of GRI or its Subsidiaries is, or has received any
notice that it is, in default (or with the giving of notice or lapse of time or
both, would be in default) under any License. For purposes of this Article
3.1.2.8, GRI includes the Power Products Division.
3.1.2.9 Tax Matters. Seller has made available to
Buyer true, complete and accurate copies of that portion of Seller's Tax Returns
relating to GRI and its Subsidiaries filed for all tax periods ended on and
after December 31, 1991. Each of GRI and its Subsidiaries has filed all Tax
Returns that it was required to file, and has paid all Income Taxes and Other
Taxes shown thereon as owing. Neither GRI nor any of its Subsidiaries has any
deficiency with respect to any tax period ending on or prior to the Closing Date
on account of Income Taxes or Other Taxes and is not and will not be subject to
any liability or assessment with respect to such Income Taxes or Other Taxes,
whether or not assessed, which are not timely and adequately provided for in the
tax accruals in the Most Recent Financial Statements, other than current and
deferred taxes of GRI or its Subsidiaries for 1997 not yet due which arise
solely from income earned or operations in the Ordinary Course of Business after
the date of the Most Recent Financial Statements and which are consistent in
character and amount with the tax accruals reflected in the Financial
Statements. The federal Income Tax Returns relating to GRI and its Subsidiaries
have been audited by the Internal Revenue Service through December 31, 1989.
Except as set forth on Exhibit 3.1.2.9, none of GRI and its Subsidiaries (i) has
waived any statute of limitations in respect of Income Taxes or Other Taxes or
agreed to any extension of time with respect to an Income Tax or Other Tax
assessment or deficiency or (ii) is a party to any tax allocation or sharing
agreement (except as set forth on Exhibit 3.1.2.9) and none of them has any
liability under Treasury Regulation Section 1.1502-6 or otherwise for the taxes
of any other person. GRI has not filed any consent under Code Section 341(f)
concerning collapsible corporations. GRI has not made any payments, nor is it
obligated to make any payments, that will not be deductible under Code Section
280G. For purposes of this Article 3.1.2.9, GRI includes the Power Products
Division.
3.1.2.10 Real Property.
(a) The sole real property currently or
previously owned by GRI is ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the
"Property") as described in Exhibit 3.1.2.10. GRI has good and marketable fee
simple title to the Property, free and clear of all easements, restrictions,
occupancy agreements, assessments, liens, encumbrances, claims or other matters
affecting title, use or occupancy, except for (i) liens for nondelinquent ad
valorem taxes and (ii) such easements, liens and encumbrances as do not detract
from or interfere with the present or planned use of the Property subject
thereto. All of the easements, liens, and encumbrances referred to in clause
(ii) above are set forth in Exhibit 3.1.2.10. Either GRI or its Subsidiaries has
a valid leasehold interest in all the real property leased by it (the "Leased
Properties"). True, complete and accurate copies of all real property leases
with respect to the Leased Properties have been provided to Buyer. A list of all
such leases is also set forth on
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Exhibit 3.1.2.10. All such Leased Properties in the United States are in
multi-tenant office facilities. The sole property previously leased by GRI
consisted of a multi-tenant office facility. None of Seller nor GRI or its
Subsidiaries has received any notice of, nor has Knowledge (a) of any easements,
restrictions, occupancy agreements, assessments, liens, encumbrances, claims or
other matters affecting GRI's or its Subsidiaries' rights under any leasehold
estate, or (b) that such leasehold estates are subordinate to, or defeasible by,
any lien on the subject real estate, or any prior lease thereon. No governmental
authority having jurisdiction over the Property or the Leased Properties has
given any notice of a possible future imposition of assessments affecting such
property or the exercise of the power of eminent domain.
(b) Seller has provided to Buyer true,
complete and accurate copies of all environmental reports, studies or analyses
in the possession of Seller, GRI or its Subsidiaries which have been conducted
with respect to the Property and the Leased Properties. Neither Seller nor GRI
or its Subsidiaries have received notice from any governmental authority in the
last three years that the Property or the Leased Properties, or the conduct of
the business of GRI and its Subsidiaries thereon, have violated any
environmental law, zoning ordinance, or building code or any other foreign,
federal, state or local law rule, regulation or ordinance of any governmental
authority or the common law. Except as disclosed in Exhibit 3.1.2.10, neither
Seller's records nor those of GRI or its Subsidiaries show the presence of any
underground storage tank on the Property.
3.1.2.11 Intellectual Property. Exhibit 3.1.2.11
identifies each copyright, patent, trade name, trademark, service ▇▇▇▇ or
registration, whether registered or common law, and all applications therefor
that are pending or in the process of preparation, in the United States and in
foreign countries (the " Intellectual Property Rights") to the extent directly
or indirectly owned, licensed, used, required for use or controlled in whole or
in part by GRI or its Subsidiaries. Exhibit 3.1.2.11 also lists all licenses and
other agreements or arrangements allowing GRI or its Subsidiaries to use
Intellectual Property Rights of third parties, including Seller or its
Affiliates, in the United States or foreign countries. True, complete and
accurate copies of all such licenses or agreements have been provided to Buyer.
Except as set forth in Exhibit 3.1.2.11, GRI or one of its Subsidiaries is the
sole and exclusive owner of the Intellectual Property Rights listed in Exhibit
3.1.2.11, free and clear of any claims, liens, licenses, sublicenses, charges or
encumbrances and no governmental registration of any of the Intellectual
Property Rights has lapsed, expired or been canceled. abandoned, opposed or the
subject of a re-examination request. All Intellectual Property Rights used in or
necessary for the conduct of GRI's and its Subsidiaries' business as now
conducted are licensed to or owned by GRI or its Subsidiaries and there have
been no claims, and except as set forth on Exhibit 3.1.2.11, none of Seller, GRI
or any of its Subsidiaries has any Knowledge of any basis for any claim,
challenging the scope, validity or enforceability of any of the Intellectual
Property Rights. There are no instances where it has been held, claimed, or
alleged (other than the assertion by the Gas Research Institute with respect to
the name "GRI"), whether directly or indirectly, and neither Seller nor GRI or
its Subsidiaries has any Knowledge that any of the Intellectual Property Rights
of GRI or its Subsidiaries infringe the intellectual property rights of any
third party, or that any
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activity of any third party infringes upon any of the Intellectual Property
Rights. Neither GRI nor its Subsidiaries has been, nor is GRI or its
Subsidiaries now, conducting its business in a manner which has been or is in
violation of any intellectual property rights of another. Except as set forth on
Exhibit 3.1.2.11, none of GRI or its Subsidiaries requires a license or other
proprietary right to so operate its business.
3.1.2.12 Material Contracts. Exhibit 3.1.2.12
lists all of the existing agreements, contracts and other commitments (including
all amendments or modifications to the foregoing) to which any of GRI and its
Subsidiaries is a party, written or unwritten, (including, without limiting the
generality of the foregoing, all supply contracts; guarantee agreements; sales
representation and distribution agreements; purchase orders and commitments;
product warranties; and powers of attorney but excluding any such agreement or
contract which has been provided pursuant to another representation and warranty
in this Agreement). Notwithstanding the foregoing, Exhibit 3.1.2.12 need not
list:
(i) any contract with a customer made
(A) in the Ordinary Course of Business on
or after the date hereof or (B) prior to
the date hereof, in either case whereby
GRI or one of its Subsidiaries is
obligated to deliver less than $1,000,000
in invoice value of services or goods in
each transaction or series of related
transactions; or
(ii) any purchase commitment made (A)
in the Ordinary Course of Business at
prevailing prices on or after the date
hereof or (B) prior to the date hereof,
in either case which is not in excess of
$100,000 in each transaction or series of
related transactions.
The pricing provisions in contracts with FORD and its Affiliates which are not
listed in Exhibit 3.1.2.12 are, in the aggregate, not less favorable than market
prices. Concurrently with the delivery of the aforementioned list, Buyer has
been given true, complete and correct copies of all written instruments
evidencing the items listed in Exhibit 3.1.2.12 and has also been given copies
of the forms of written purchase and sales orders used by GRI and its
Subsidiaries. Purchase orders and purchase commitments may be canceled at any
time without penalty except as will be otherwise described in Exhibit 3.1.2.12.
All of the agreements, contracts and commitments listed in Exhibit
3.1.2.12, all real property leases and all personal property leases and all of
the agreements, contracts and commitments not required to be listed by reason of
clause (i) or (ii) of Section 3.1.2.12 and all other material agreements,
contracts and commitments listed or described in another provision or exhibit to
this Agreement, are valid and binding obligations of the parties thereto in
accordance
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with their respective terms and there has occurred no event which would
constitute any breach of or default in any provision of any such agreement,
contract or commitment or which would permit the acceleration or termination of
any obligation of any party thereto or the creation of a lien or encumbrance
upon any asset of GRI or its Subsidiaries or which would give rise to any of the
foregoing upon the giving of notice or lapse of time.
3.1.2.13 Litigation. Exhibit 3.1.2.13 sets forth
each instance in which any of GRI or its Subsidiaries or an Employee Benefit
Plan or trust related thereto (i) is subject to any outstanding injunction,
judgment, order, decree, ruling, or charge or (ii) is a party to any action,
suit, proceeding, hearing, or investigation of, in or before any court or quasi-
judicial or administrative agency of any federal, state, local or foreign
jurisdiction. Other than as set forth on Exhibit 3.1.2.13, no litigation of any
kind or nature or governmental or administrative investigation or proceeding to
which any of GRI its Subsidiaries or an Employee Benefit Plan or trust related
thereto may be a party is now pending or threatened, no claim which has not
ripened into litigation or other proceeding has been made or threatened against
it, and Seller has not received notice of, nor does Seller have Knowledge of,
any facts, circumstances or conditions which might reasonably be expected to
give rise to any such claim, investigation, proceeding or litigation, in each
case whether or not covered by insurance. Neither GRI nor any of its
Subsidiaries has any liability, and will not have any liability following the
Closing, on account of (a) defective products or services (including liability
on account of product warranties) manufactured, sold, provided or performed by
or on behalf of GRI or its Subsidiaries prior to the Closing or (b) GRI's or its
Subsidiaries' working conditions (other than workers' compensation claims
contained on the workers' compensation loss run previously provided to Buyer) as
they exist at any time prior to the Closing.
3.1.2.14 Employee Matters.
(a) Except as set forth in Exhibit 3.1.2.14,
no employees of GRI or its Subsidiaries are represented by a union or other
labor organization and there is no organizing drive respecting the employees of
GRI or its Subsidiaries. True and complete copies of any applicable collective
bargaining agreement will be provided to Buyer prior to Closing. Each of GRI and
its Subsidiaries has complied with the terms of any applicable collective
bargaining agreements (or its foreign equivalent) and all applicable laws
affecting employment and employment practices, terms and conditions of
employment and wages and hours. There is no unfair labor practice charge or
complaint (or its foreign equivalent) pending or threatened against GRI or its
Subsidiaries before any government agency (U.S. or foreign) that regulates labor
affairs. There is no actual or threatened labor strike, slowdown, work stoppage
or lockout with respect to represented employees of GRI or its Subsidiaries.
(b) Exhibit 3.1.2.14 lists all Employee
Benefit Plans (whether or not subject to ERISA) maintained by or contributed to
by GRI or its Subsidiaries for its employees in the United States. None of GRI
nor any Subsidiary with respect to its employees in the United States has (a)
ever contributed to any multiemployer plan (as defined in ERISA Section.
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3137 or 4001(a)(3)), or (b) maintained any defined benefit plan subject to Title
IV of ERISA, nor does GRI or any Subsidiary maintain any retiree medical or
retiree life insurance programs.
(i) Each such Employee Benefit Plan
(and each related trust, insurance
contract, or fund) complies in form and
in operation in all respects with its
governing documents and the applicable
requirements of ERISA and the Code.
(ii) All contributions and premium
payments (including all employer
contributions and employee salary
reduction contributions) which are due
have been paid and will be timely paid
through the date of Closing to each such
Employee Benefit Plan which is an
Employee Pension Benefit Plan or Employee
Welfare Benefit Plan.
(iii) Each such Employee Benefit Plan
which is an Employee Pension Benefit Plan
has received a current determination
letter from the Internal Revenue Service
to the effect that it meets the
requirements of Code ss.401 (a), and
Buyer is unaware of any event that has
occurred, whether by action or failure to
act, which has resulted in or could cause
the loss of such qualification, and each
trust thereunder is exempt from tax
pursuant to Code Section 501(a); true
complete and accurate copies of the
aforementioned determination letters have
been provided to Buyer.
(c) Exhibit 3.1.2.14 lists and describes all
Employee Welfare Benefit Plans and Employee Pension Benefit Plans which have
been terminated since January 1, 1991. The terminations of all such Employee
Pension Benefit Plans have been approved by the Internal Revenue Service and, in
the case of any defined benefit pension plan, by the PBGC.
(d) All of the Employee Benefit Plans,
programs and policies maintained or contributed by GRI or any Subsidiary in
which its employees or former employees are entitled to participate (other than
in the United States) are listed in Exhibit 3.1.2.14 (the "Foreign Plans") and
true, complete and accurate copies of all such plans, programs and policies will
be provided to Buyer prior to Closing. Each Foreign Plan complies in form and in
operation in all respects with all applicable laws and all contributions which
are due to have been paid under any such Foreign Plan prior to the Most Recent
Fiscal Month End will have been
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paid or fully accrued for on the Most Recent Financial Statements and,
following such date, each of GRI and its Subsidiaries have continued to satisfy
its obligations under such Foreign Plans.
3.1.2.15 Employees. Seller has provided to Buyer a
true, accurate and complete list of the names and annual salaries of all
officers and other non-hourly rated employees of GRI or its Subsidiaries
receiving compensation at an annual rate (including bonuses, commissions and
other compensation) in excess of $100,000 (or the foreign currency equivalent
thereof), together with the amount of bonuses and description of agreements or
arrangements for commissions and other compensation or benefits of any nature,
including, without limitation, tax-non/qualified pension, profit sharing,
welfare and other benefit plans, severance and vacation policies (to the extent
not described in Article 3.1.2.14), to be paid or provided to any person
pursuant to agreement, custom, or present understanding. Except as set forth on
Exhibit 3.1.2.15, (i) neither GRI nor any of its Subsidiaries is a party to any
employment contract, oral or written, with any executive or employee, other than
an employment contract providing for at will termination with respect to United
States employees and (ii) neither GRI nor any of its Subsidiaries is a party to
any employment contract, oral or written, which varies from the standard form
contracts previously provided to Buyer, with respect to foreign employees.
Neither Seller nor GRI or its Subsidiaries has any Knowledge that any officer or
other key employee of GRI or its Subsidiaries identified on the employee list
provided in this Section 3.1.2.15 is actively seeking to leave the employment of
GRI.
3.1.2.16 Insurance. Exhibit 3.1.2.16 lists all
policies of insurance and all self-insurance of Seller or GRI insuring GRI and
its Subsidiaries. True, complete and accurate copies of all such policies have
been provided to Buyer. All of such policies of insurance are in full force and
effect as stated therein and the premiums therefor have been paid as they became
due and payable.
3.2 Representations and Warranties of the Buyer. Buyer represents
and warrants to Seller that the statements contained in this Article 3.2 are
correct and complete as of the date of this Agreement and will be correct and
complete as of the Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement throughout this Article
3.2).
3.2.1 Organization of Buyer. Buyer is a corporation
duly organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation and has full power and authority to own its
properties and to carry on its business as now conducted.
3.2.2 Authorization of Transaction. Buyer has full
power and authority (including full corporate power and authority) to execute
and deliver this Agreement and the Ancillary Agreements and to perform its
obligations hereunder and thereunder. This Agreement has been duly executed and
delivered by Buyer and the Ancillary Agreements, upon execution by Buyer, will
have been duly executed and delivered by Buyer, and each such agreement is or
upon execution will be a valid and binding obligation of the Buyer,
enforceable
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in accordance with its terms and conditions, except as enforceability may be
limited by the effects of bankruptcy, insolvency, fraudulent conveyance,
moratorium, reorganization or other similar laws and court decisions
relating to or affecting the rights of creditors generally or by general
principles of equity (whether considered in equity or at law).
3.2.3 Noncontravention. Neither the execution and the
delivery of this Agreement or the Ancillary Agreements, nor the consummation of
the transactions contemplated hereby or thereby, will (i) violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government, governmental agency, or
court to which the Buyer is subject or any provision of its charter or bylaws or
(ii) conflict with, result in a breach of, constitute a default under, result in
the acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement, covenant,
contract, lease, license, instrument, or other arrangement to which the Buyer is
a party or by which it is bound or to which any of its assets is subject.
3.2.4 Investment. Buyer (i) understands that the Offered
Shares have not been, and will not be, registered under the Securities Act, or
under any state securities laws, and are being offered and sold in reliance upon
federal and state exemptions for transactions not involving any public offering,
and (ii) is acquiring the Offered Shares solely for its own account for
investment purposes, and not with a view to the distribution thereof.
ARTICLE 4 - COVENANTS
4.1 Pre-Closing Covenants. The Parties agree as follows with
respect to the period between the execution of this Agreement and the Closing.
4.1.1 General. Each of the Parties will use its
reasonable best efforts to take all action and to do all things necessary,
proper or advisable in order to consummate and make effective the transactions
contemplated by this Agreement (including satisfaction, but not waiver, of the
closing conditions set forth in Article 5 below).
4.1.2 Notices and Consents. Each of the Parties will (and
Seller will cause each of GRI and its Subsidiaries to) give any notices to, make
any filings with, and use its reasonable best efforts to obtain any
authorizations, consents. and approvals of governments and governmental agencies
in connection with the matters referred to in this Agreement. Without limiting
the generality of the foregoing, each of the Parties will file any notification
and report forms and related material that it may be required to file with the
Federal Trade Commission and the Antitrust Division of the United States
Department of Justice under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, will use its reasonable
best efforts to obtain a waiver from the applicable waiting period, and will
make any further filings, foreign or domestic, that may be necessary, proper, or
advisable in connection therewith. Notwithstanding the foregoing, however,
whichever entity is required by
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applicable law to make such filings with foreign agencies, shall take primary
responsibility for making such filings.
4.1.3 Operation of Business. Seller will not cause or
permit any of GRI and its Subsidiaries to engage in any practice, take any
action, or enter into any transaction outside the Ordinary Course of Business or
as described in Article 3.1.2.7. More specifically, but without limiting the
foregoing, Seller:
(i) Shall cause each of GRI and its
Subsidiaries to carry on their business in a
diligent manner consistent with prior practice in
the Ordinary Course of Business, except as
described on Exhibit 4.1.3, not initiate any new
method of management or operation, and Seller will
use its best efforts to preserve each of GRI's and
its Subsidiaries' business organization intact and
conserve the goodwill and relationships of its
customers, suppliers and others having business
relations with it and the services of all officers,
employees, agents and representatives.
(ii) Shall not, without the prior consent of
Buyer, permit any of GRI or its Subsidiaries to (A)
make any capital contribution or investment in any
corporation, business or other entity; (B) declare,
set aside or pay any payment, dividend or other
distribution of any nature in respect of its
capital stock except that Subsidiaries of GRI
located in jurisdictions other than the United
States may pay dividends to GRI to the extent that
GRI will not incur any adverse Income Tax or Other
Tax liabilities in connection therewith; (C)
acquire or dispose of a capital asset having an
initial cost of $100,000 or more; (D) merge or
consolidate with any other corporation, business or
other entity or acquire any assets of any other
corporation, business or other entity (other than
inventory in the Ordinary Course of Business or as
otherwise specifically permitted by this
Agreement); or (E) enter into, materially amend or
terminate any material contract, agreement,
franchise, permit or license.
(iii) Shall cause GRI and its Subsidiaries to
(i) duly and timely file all reports and returns
required to be filed with any governmental agency
and will promptly pay when due all taxes,
assessments and governmental charges including
interest and penalties levied or assessed, unless
diligently contested in good faith by appropriate
proceedings; (ii) maintain and keep in
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good order all buildings, offices, shops and
other structures, and keep all machinery, tools,
equipment, fixtures and other property used or
useable in its business in good condition, repair
and working order, (iii) maintain in full force and
effect all policies of insurance now in effect; and
(iv) not do any act or omit any act or permit any
omission to act, within its control, which will
cause a breach or default in any material respect
in any of its contracts, commitments or
obligations.
4.1.4 Full Access. Seller will permit, and will cause
each of GRI and its Subsidiaries to permit, representatives of Buyer to have
full access at all reasonable times, and in a manner so as not to interfere with
the normal business operations of GRI and its Subsidiaries, to all premises,
properties, personnel, books, records (including tax records), contracts, and
documents of or pertaining to each of GRI and its Subsidiaries, will permit
Buyer to conduct any environmental inspections, tests, studies or analyses, and
will furnish Buyer with documents and all such other information concerning its
properties and business as Buyer may reasonably request. In accordance with the
Confidentiality Agreement, Buyer will treat and hold confidential any Evaluation
Material it receives from any of Seller, GRI and its Subsidiaries in the course
of the reviews contemplated by this Article 4, will not use any of the
Evaluation Material except in connection with this Agreement, and, if this
Agreement is terminated for any reason whatsoever, will return to Seller, GRI
and its Subsidiaries or destroy all tangible embodiments (and all copies) of the
Evaluation Material which are in its possession.
4.1.5 Further Actions. Neither Seller nor GRI or its
Subsidiaries shall take any action or omit to take any action within the control
of any of them to the extent such action or omission might result in any of the
representations or warranties contained in this Agreement being inaccurate or
incorrect on and as of the date of Closing.
4.1.6 Exclusivity. As long as this Agreement shall remain
effective, neither Seller nor GRI will negotiate with any other person with
respect to the sale or disposition of the Offered Shares or the assets or
business of GRI or its Subsidiaries (other than those assets or that portion of
the business exclusive to the Power Products Division).
4.1.7 Power Products Division. Prior to Closing, Seller
shall dividend or otherwise remove the assets of Power Products Division as
shown on Exhibit 3.1.2.4, offer employment to and employ all employees of the
Power Products Division, and assume all of the liabilities and obligations of
the Power Products Division. Seller shall not, however, remove any tangible or
intangible asset (i) which is also used by GRI or its Subsidiaries in the
conduct of their respective business and (ii) which would prejudice GRI or its
Subsidiaries in the conduct of their respective business.
4.1.8 Notice of Developments.
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(a) Seller shall notify Buyer of any development
subsequent to the date of execution of this Agreement causing any changed facts,
circumstances or information from the matters described in the representations
and warranties in Article 3 hereof, including the Exhibits thereto and of any
fact, circumstance or information which would render any representation or
warranty of Seller in this Agreement incomplete, untrue or incorrect in any
respect.
(b) Each Party will give prompt written notice to the
other of any development causing a breach of any of its own representations and
warranties in Articles 3.1, 3.1.2 or 3.2 above; provided, however, that except
as hereafter provided in Article VI, no disclosure by Seller or any Party
pursuant to this Article 4.1.8, shall be deemed to amend or supplement any
Exhibit or to prevent or cure any misrepresentation or breach of warranty.
4.1.9 Broker Fees. Each Party, as appropriate, will pay
any fees or commissions to any broker, finder or agent it retained with respect
to the transactions contemplated by this Agreement for which a Party could
become liable or obligated.
4.1.10 Allocation of Purchase Price. Not later than six
months after the Closing, Buyer shall in good faith prepare a schedule (the
"Allocation Schedule") and deliver it to Seller setting forth the allocation of
the consideration to be paid by Buyer pursuant to Buyer's election of tax
treatment under Section 338(h)(10) of the Code (and any corresponding elections
under state, local or foreign tax law (collectively, a "Section 338(h)(10)
Election")). The Allocation Schedule shall be determined in accordance with
Section 338 of the Code. Buyer and Seller shall have 30 days from the date of
such delivery to resolve any disagreements regarding the Allocation Schedule. At
the end of such period, any remaining disagreements shall be resolved pursuant
to the Tax Dispute Resolution Mechanism set forth in Article 4.3.7 below. The
value of the foreign subsidiaries of GRI shall be presumed to be their net worth
(excluding the Power Products Division). If any change in the Allocation
Schedule is made necessary as a result of an adjustment to the Purchase Price,
then Buyer and Seller shall agree on the amount of such increase or decrease and
the allocation thereof among the assets of each of GRI and its Subsidiaries in
accordance with the requirements of the Code. In connection with the preparation
of the Allocation Schedule, the Parties shall cooperate with each other and
provide such information as either of them shall reasonably request.
4.1.11 Collection of Accounts Receivable. Seller shall
institute a permanent payment mechanism for payment of accounts receivable
relating to AdTeam, PeopleNet and Diversified Document Solutions (" DDS") such
that FORD shall pay such accounts receivable, after the Closing, in immediately
available funds within 24 hours (or the next FORD business day) after payment by
Buyer to its suppliers. The Parties will negotiate in good faith to
appropriately assess the external auditing required for monitoring and
verification of this payment mechanism. Expenses paid by FORD on behalf of GRI
will be reimbursed by GRI on a basis consistent with past practice.
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4.1.12 Consents. To the extent that any contract, lease,
agreement or other arrangement with or benefiting GRI or its Subsidiaries would
be breached or violated by the consummation of this transaction, Seller, at
Seller's cost and expense, will use its reasonable best efforts to obtain any
required consent or waiver of any third party of any such breach or violation.
If any such waiver or consent shall not be obtained, Seller shall cooperate with
Buyer in any reasonable arrangements designed to provide Buyer, at no additional
cost or expense to Buyer, with the benefits intended to be received by GRI or
its Subsidiaries under the relevant contract, lease, agreement or other
arrangement. Seller shall consent to or waive any right it may have to object to
any change of control of GRI or its Subsidiaries under any agreements,
contracts, understandings or commitments between Seller and its Affiliates and
GRI or one of its Subsidiaries.
4.1.13 Estimated Cash of GRI. Seller shall deliver to
Buyer one business day prior to the Closing Date a good faith estimate of the
Cash of GRI on the Closing Date (the "Estimated GRI Cash ").
4.2 Post-Closing Covenants. The Parties agree as follows with
respect to the period following the Closing:
4.2.1 General. In case at any time after the Closing any
further action is necessary or desirable to carry out the purposes of this
Agreement, each of the Parties will take such further action (including the
execution and delivery of such further instruments and documents) as any other
Party reasonably may request, all at the sole cost and expense of the requesting
Party (unless the requesting Party is entitled to indemnification therefor under
Article 6.2 or 6.3 below).
4.2.2 Litigation Support. In the event and for so long
as any Party actively is, contesting or defending against any action, suit,
proceeding, hearing, investigation, charge, complaint, claim, or demand in
connection with (i) any transaction contemplated under this Agreement or (ii)
any fact, situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or transaction on or prior
to the Closing Date involving any of GRI and its Subsidiaries, each of the
other Parties shall cooperate with the other or its counsel in the defense or
contest, make available its personnel, and provide such testimony and access to
its books and records as shall be necessary in connection with the defense or
contest, all at the sole cost and expense of the contesting or defending Party,
which shall pay out-of-pocket expenses of the other Party (unless the
contesting or defending Party is entitled to indemnification therefor under
Article 6.2 or 6.3 below or the Parties are otherwise in an adversarial
relationship).
4.2.3 GRI Employee Plans. Buyer shall take no action to
cause GRI to terminate the GRI Employee Benefit Plans or Foreign Plans during
calendar year 1997 (except any plans provided by or through Seller, which may be
discontinued except as set forth below). Buyer shall cause GRI to make any
payments due under the Severance Plan after the Closing
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Date until such time as the plan is terminated. Seller has provided to Buyer a
true, complete and accurate copy of the GRI Severance Plan. Nothing contained in
this Article 4.2.3 shall be construed to prevent Buyer from terminating or
modifying to any extent or in any respect any Employee Benefit Plan or Foreign
Plan of GRI or its Subsidiaries after December 31, 1997. Effective as of the
Closing Date, Seller shall take such action as is necessary to terminate the
participation of employees of GRI or its Subsidiaries in the employee discount
plans, training programs, and other fringe benefit plans and programs maintained
by Seller, except to the extent that (i) the availability of any such plan or
program is required pursuant to the terms of any applicable collective
bargaining agreement in which employees of GRI participate, in which event such
plan or program shall continue until the effective termination of such
collective bargaining agreement, at the cost at which GRI or its Subsidiaries
currently pays Seller, if any, and/or (ii) termination of any such plan or
program in foreign jurisdictions would cause GRI or one of its Subsidiaries to
have to compensate any employee for the loss of any such plan or program, in
which event any such plan or program shall continue for the shortest period of
time necessary to permit GRI or its Subsidiaries to terminate it without
incurring any such liability; provided, however, FORD's obligation under this
Article 4.2.3 will be subject to renegotiation based on the facts existing at
the time.
4.2.4 Reports; Access to Books and Records; Audited
Financial Statements.
(a) After the Closing, each of Buyer and Seller shall
permit the other Party, its respective officers, counsel and other
representatives to have reasonable access to, and the right to make copies of
such Party's books, records and files as reasonably necessary in connection with
tax return preparation or tax compliance matters. FORD further agrees to make
available to Buyer access to such of FORD's books, records and files and to
otherwise cooperate with Buyer in timely providing such information as is
reasonably necessary in connection with any public offering by Buyer.
(b) Within ninety (90) days following the Closing Date,
Seller shall, at its expense, deliver to Buyer copies of the audited
consolidated balance sheets and statements of income, changes in stockholders'
equity and cash flow as of and for the fiscal year ended 1996 for GRI and its
Subsidiaries (excluding the Power Products Division) prepared in accordance with
the methodology contained in Exhibit 3.1.2.6.
4.2.5 Agreement Not to Compete; Confidential Information.
4.2.5.1 Non-Competition. Seller acknowledges and
recognizes the highly competitive nature of GRI's business and accordingly
agrees as follows:
(a) Seller agrees that during and for the period
commencing with the Closing Date and ending on the date that is seven years
after such date (the "Restricted Period"), neither Seller nor its Affiliates
will directly or indirectly engage in the Business
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Activities (as hereinafter defined) whether such engagement is as an owner,
partner, investor (other than as a passive investor with less than a controlling
interest in the outstanding capital stock of a publicly traded corporation),
consultant, advisor, agent or other participant, in the Geographic Territory (as
hereinafter defined), whether for a for-profit or not-for-profit entity.
(b) Seller agrees that during the Restricted Period,
neither Seller nor its Affiliates will directly or indirectly engage in any of
the Business Activities as a supplier to any customer with whom GRI or its
Subsidiaries has done business within two years prior to the date hereof,
whether as a partner, investor (other than as a passive investor with less than
a controlling interest in the outstanding capital stock of a publicly traded
corporation), consultant, advisor, agent or other participant, whether for a
for-profit or not-for-profit entity.
(c) Seller agrees that during the Restricted Period,
neither Seller nor its Affiliates will directly or indirectly assist others in
engaging in any of the Business Activities in the manner prohibited to Seller
and its Affiliates under this Agreement.
(d) Seller agrees that during the Restricted Period,
neither Seller nor its Affiliates will directly or indirectly induce employees
of GRI or its Subsidiaries to engage in any activities hereby prohibited to the
Seller or its Affiliates or to terminate their employment.
(e) For purposes of this Article 4.2.5, the term
"Business Activities" shall mean (a) the activities of GRI or its Subsidiaries
as of the Closing Date, (b) the activities of GRI or its Subsidiaries (excluding
the Power Products Division) during the two year period preceding the Closing
Date, and (c) temporary staffing activities with the exception of Ford utilizing
those UAW employees who have protected status under the current Ford/UAW
collective bargaining agreement who are displaced from their permanent positions
with Ford to fill temporary positions ("Displaced Ford Employees"), provided
that FORD shall not utilize or place any Displaced Ford Employee working as
salaried designers or hourly mechanics engaged in prototype build outside FORD.
For purposes of this Article 4.2.5, the term "Geographic Territory" is defined
as North America, Western Europe, Australia, Argentina, Brazil, Korea, Poland
and New Zealand. Nothing contained in this Article 4.2.5 shall prevent FORD from
entering into joint ventures, whether or not located in the Geographic
Territory, provided that such joint ventures do not engage in the Business
Activities in any manner prohibited to Seller and its Affiliates herein.
4.2.5.2 Exclusions. Nothing contained in this
Article 4.2.5 shall deprive Ford of the ability to insource the Business
Activities, subject to the specific restrictions contained in the Master Vendor
Agreement and the Master Supply Agreement, and the general principle that FORD
will not deprive MSXI of the benefits of this Agreement and its related
transactions by FORD insourcing of such Business Activities.
4.2.5.3 Confidential Information. Seller
acknowledges that GRI's and its Subsidiaries' trade secrets, private or secret
processes as they currently exist and
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information concerning products, development, technical information, procurement
and sales activities and procedures, promotion and pricing techniques and credit
and financial data concerning customers currently possessed or known by FORD are
GRI's valuable, special and unique assets, access to and knowledge of which have
been gained by virtue of the Seller's ownership of GRI. In light of the highly
competitive nature of the industry in which GRI and its Subsidiaries conduct
business, Seller further agrees that all knowledge and information described in
the preceding sentence shall be considered confidential information. In
recognition of this fact, Seller agrees that for a period of two years from the
Closing Date, Seller and its Affiliates will take such steps to protect the
confidential and proprietary nature of such information as it would take with
respect to its own confidential information. The foregoing restrictions shall
not apply to any such information that (i) now or hereafter lawfully becomes a
matter of public record other than as a result of a disclosure in violation of
this Agreement (provided that any such information will be deemed confidential
until such time as it has lawfully become a matter of public record), (ii) is
approved for release by GRI, (iii) is lawfully acquired by Seller from a third
party who is not subject to any confidentiality obligation or (iv) is required
by law to be disclosed.
4.2.5.4 Scope of Restrictions. It is expressly
understood and agreed that although the Buyer and Seller consider the
restrictions contained in this Agreement to be reasonable for the purpose of
preserving for GRI and its Subsidiaries its goodwill, proprietary rights and
going business value, if a final judicial determination is made by a court
having jurisdiction that the time or territory or any other restriction
contained in this Article 4.2.5 is an unenforceable restriction against the
Seller, the provisions of such restriction shall not be rendered void but shall
be deemed amended to apply as to such maximum time and territory and to such
other extent as such court may judicially determine or indicate to be
reasonable. Alternatively, if the court referred to above finds that any
restriction contained in this Agreement is unenforceable, and such restriction
cannot be amended so as to make it enforceable, such finding shall not affect
the enforceability of any of the other restrictions contained herein. The
provisions of this Article 4.2.5.4 shall in no respect limit or otherwise affect
the obligations of Seller under any agreements with GRI or its Subsidiaries.
4.2.5.5 Remedies. Seller acknowledges and agrees
that Buyer's remedy at law for a breach or threatened breach of any of the
provisions of this Article 4.2.5 would be inadequate and, in recognition of this
fact, in the event of a breach or threatened breach by Seller of the provisions
of Article 4.2.5. it is agreed that Buyer, in addition to its remedy at law,
without posting any bond, shall be entitled to, and the Seller agrees not to
oppose Buyer's request for, equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent injunction or
any other equitable remedy which may then be appropriate. Seller acknowledges
that the granting of a temporary injunction, temporary restraining order or
permanent injunction merely prohibiting the use of trade secrets and like
proprietary information would not be an adequate remedy upon breach or
threatened breach hereof, and consequently agrees upon any such breach or
threatened breach to the granting of injunctive relief prohibiting the design,
development, manufacture, sale, marketing or servicing
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of products of the kind designed, developed, manufactured, sold, marketed or
services by GRI or its subsidiaries. Nothing herein contained shall be construed
as prohibiting Buyer or GRI or its Subsidiaries from pursuing any other remedies
available to it for such breach or threatened breach.
4.3 Section 338(h)(10) Election.
4.3.1 Buyer and Seller shall make a timely, effective and
irrevocable election under Section 338(h)(10) (the "Section 338(h)(10)
Election") with respect to the purchase and sale of the Offered Shares and GRI
Subsidiaries incorporated under the laws of any state in the United States.
Buyer may, at its option, make an election pursuant to Section 338 with respect
to any of GRI's foreign subsidiaries. Buyer may make, cause or permit any of its
Subsidiaries to make any election under Code Section 338 or any similar election
under state, local or foreign tax law with respect to the purchase and sale of
the capital stock of any of GRI and its Subsidiaries.
4.3.2 Each Party agrees to be bound by the allocations
set forth in the Allocation Schedule, to complete Form 8023-A with its federal
income tax return consistent with such allocation for the tax year in which the
Closing occurs, to file, or cause to be filed, all other tax returns in a manner
consistent with such allocation and not to take any actions inconsistent
therewith.
4.3.3 Buyer shall pay to Seller as additional Purchase
Price such amount (the "Tax Election Amount"), if any, (net of Income Tax on
such amount at an assumed rate of 38%) as shall equal the excess of (i) the
amount of taxes due as a result of the deemed sale of the assets of GRI pursuant
to the Section 338(h)(10) Election, taking into account any available losses or
credits resulting from such deemed asset sale. over (ii) the amount of taxes
that would have been incurred by Seller as a result of a sale (without an
Section 338(h)(10) Election) of the Offered Shares for the Purchase Price,
disregarding for this purpose any distribution of GRI's assets pursuant to or as
contemplated by this Agreement. In no event shall Buyer's obligations under the
whole of this Article 4.3 exceed $200,000 in the aggregate. The Seller shall be
liable for and shall pay all taxes of GRI, FORD or FORD's subsidiaries resulting
from the deemed sale of the assets of GRI pursuant to the Section 338(h)(10)
Election in excess of Buyer's obligation hereunder. Any additional Purchase
Price payable by the Buyer pursuant to this Article 4.3.3 shall be disregarded
for purposes of calculating the Tax Election Amount. In the event that a tax
authority asserts that an amount of tax described in clause (i) above is greater
than that originally determined by the Parties, Seller shall give notice to
Buyer of such determination, and shall keep Buyer reasonably informed (including
providing copies of documentation reasonably requested by Buyer) of the progress
of the matter and consult with Buyer relative to its disposition. Seller shall
be entitled to reimbursement pursuant to this Section 4.3.3 on the basis of the
amount eventually determined if Seller has resolved the matter in a manner which
constitutes a payment of a liability which is due or reaches a reasonable
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compromise of such matter. Any dispute shall be resolved by the Tax Dispute
Resolution Mechanism.
4.3.4 Seller shall deliver to Buyer a computation of the
Tax Election Amount within a reasonable period following a determination of the
allocation pursuant to Article 4.3.2 and Buyer shall have 30 days to review such
computation. Any remaining disagreements pertaining to the computation of the
Tax Election Amount that are not resolved within such 30 day period (hereinafter
the "Buyer Review Period") shall be resolved pursuant to the Tax Dispute
Resolution Mechanism set forth in Article 4.3.7 below. At the close of the Buyer
Review Period, Buyer shall pay to Seller the portion of the Tax Election Amount
that Buyer does not dispute. If it is determined that Buyer owes Seller an
additional amount, Buyer shall pay to Seller such additional amount plus
interest thereon at the " overpayment rate" as defined in section 6621 (a) of
the Code from the close of Buyer Review Period to the date of payment.
4.3.5 Subject to the limitation stated in Article 4.3.3,
Buyer shall indemnify and hold Seller harmless from and against (i) any adverse
tax consequences suffered by Seller as a result of any transaction proposed by
Buyer pursuant to Section 2.1, or (ii) any tax payable by Seller as a result of
any election under Section 338 of the Code (other than the Section 338(h)(10)
Election) with respect to a GRI Subsidiary, including, without limiting the
generality of the foregoing, a tax payable upon the deemed sale of a foreign
subsidiary of GRI which would otherwise have been offset by foreign tax credits
attributable to a foreign subsidiary of GRI. Any disputes concerning the amount
to which Seller is entitled under this Article 4.3.5 shall be resolved pursuant
to the Tax Dispute Resolution Mechanism.
4.3.6 Each Party hereby agrees to provide, and to cause
GRI and its Subsidiaries to provide, the other Party with such cooperation and
information as such other Party may reasonably request in filing a tax return,
amended return or claim for refund, determining its tax liability arising out of
the transactions contemplated by this Agreement or computing the Tax Election
Amount. Such cooperation and information shall include providing copies of
returns and work papers and making employees available on a mutually convenient
basis to answer questions. Any information obtained pursuant to this Section
4.3.6 shall be kept confidential, except to the extent disclosure is necessary
to file a tax return or claim for refund, or to conduct a proceeding.
4.3.7 Where it is provided that a dispute is to be
resolved pursuant to the "Tax Dispute Resolution Mechanism", such dispute shall
be resolved as follows. Buyer and Seller shall submit the dispute to a jointly
selected "Big Six" accounting firm (the "Settlement Firm") for resolution. If
Buyer and Seller cannot jointly agree on an accounting firm to serve as the
Settlement Firm, each Party shall submit the name of an accounting firm (which
firm shall not be Coopers & ▇▇▇▇▇▇▇) to Coopers & ▇▇▇▇▇▇▇, who shall select one
of such firms by lot. The decision of the Settlement Firm shall be final and
binding on the Parties. Except as otherwise provided in this Agreement, the fees
and expenses of the Settlement Firm shall be borne equally by Buyer and Seller.
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4.4 Plan of Liquidation. Prior to the Closing, Seller and GRI
shall adopt a plan of complete liquidation (within the meaning of section 332 of
the Code) of GRI.
4.5 Advisory Board. FORD will undertake to participate in a joint
Advisory Board (as described in the Master Vendor Agreement and Master Supply
Agreement) to meet periodically to oversee the relationship between FORD and
Buyer.
4.6 Transition Services. As of the date hereof, Seller provides
to GRI and its Subsidiaries various services and the use of certain tangible and
intangible assets. Moreover, after the Closing, certain employees of Seller (the
"Ford DDS Employees") will continue to work at positions within GRI until such
time as the Ford DDS Employees are reassigned by Seller. Finally, Seller has
requested that GRI continue to provide certain services to the Power Products
Division pending the disposition of such division. While it is contemplated that
at the Closing the Parties will enter into a Transition Services Agreement
governing the delivery of all such services, the Parties also recognize that the
Closing may occur prior to identification of all services and finalization of
the Transition Services Agreement. Accordingly, the Parties agree as follows:
(i) FORD will lease to Buyer the Ford DDS Employees at
the rates contained in Exhibit 4.6 for a period not to exceed one year.
(ii) With respect to the services currently provided by
FORD and its Affiliates to GRI and its Subsidiaries (other than the services
identified on Exhibit 4.6), the status quo will prevail (i.e., FORD and its
Affiliates will continue to provide all other services currently provided by
FORD and its Affiliates to GRI or its Subsidiaries or their employees at the
rate FORD presently charges GRI, or at no charge if no payment is current made
by GRI) until such time as the Parties agree to other terms and conditions.
Promptly after the Closing, the Parties will commence negotiations with respect
to the terms and conditions upon which such services will be continued.
(iii) Except as otherwise specifically provided in this
Agreement, GRI and its Subsidiaries will continue to have the use, at no charge
to GRI or its Subsidiaries. of all tangible and intangible assets owned by
Seller or its Affiliates and currently used by GRI or its Subsidiaries for so
long as such assets are required by GRI or its Subsidiaries to perform any
services for Seller or its Affiliates.
(iv) With respect to the services currently provided by
GRI and its Subsidiaries to the Power Products Division (excluding any services
currently provided by FORD or its Affiliates which are discontinued), the status
quo will prevail (i.e., GRI and its Subsidiaries will continue to provide to the
Power Products Division all services currently provided by GRI and its
Subsidiaries at the rate GRI presently allocates to such services), until such
time as the Parties agree to other terms and conditions. Promptly after the
Closing, the
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Parties will commence negotiations with respect to the terms and conditions upon
which such services will be continued.
4.7 Workers' Compensation. Seller shall pay, discharge and be
responsible for workers' compensation claims, damages, expenses, liabilities or
administrative responsibilities of any kind whatsoever related to the employment
of the employees of GRI or its Subsidiaries arising out of an occurrence on or
before the Closing, whether reported or unreported as of the Closing. Buyer
shall pay, discharge and be responsible for workers' compensation claims,
damages, expenses, liabilities or administrative responsibilities of any kind
whatsoever related to the employment of the employees of GRI or its
Subsidiaries, arising out of an occurrence after the Closing; provided, however,
that a claim arising out of a cumulative trauma disorder and determined to have
resulted from an employee's working conditions before and after the Closing Date
shall be prorated between Buyer and Seller based upon the employee's years of
service with Buyer and Seller, respectively, for a period of five years after
the Closing, after which time Buyer shall have full responsibility for any such
cumulative trauma disorder claims.
ARTICLE 5 - CONDITIONS TO OBLIGATION TO CLOSE
5.1 Conditions to Obligation of Buyer. The obligation of Buyer to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
5.1.1 The representations and warranties set forth in
Article 3.1 and Article 3.1.2 above shall be true and correct in all material
respects (if not qualified by materiality) and in all respects (if qualified by
materiality) at and as of the Closing Date, and there shall not have been any
material error, misstatement or omission in any Exhibit, Schedule or other
document delivered in connection herewith.
5.1.2 Seller shall have performed and complied with all
of its agreements, covenants and obligations hereunder through the Closing.
5.1.3 There shall not be any injunction, judgment, order,
decree, ruling, or charge in effect preventing or making illegal consummation of
any of the transactions contemplated by this Agreement or the Ancillary
Agreements or which could reasonably be expected to otherwise result in a
material diminution of the benefits of the transactions contemplated by this
Agreement or any Ancillary Agreement. No suit, action or other proceeding shall
be pending or threatened before any court or government agency seeking to
restrain, prohibit or obtain damages or other relief in connection with this
Agreement or the consummation of the transactions contemplated herein and there
shall have been no investigation or inquiry made or commenced by any
governmental agency in connection with this Agreement or the transactions
contemplated herein.
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5.1.4 Seller shall have delivered to Buyer a certificate,
signed by an officer of Seller, to the effect that each of the conditions
specified above in Articles 5.1.1 - 5.1.3 is satisfied in all respects, and a
certificate from Seller and each officer and director (other than non-employee
directors) of GRI and its Subsidiaries that each either waives or has no claim,
as may be appropriate, against GRI or its Subsidiaries for unpaid dividends,
bonuses, profit sharing or Intellectual Property Rights or other claims of
whatsoever kind, nature or description, except only salaries and fringe benefits
normally accrued and described in such certificate.
5.1.5 All applicable waiting periods (and any extensions
thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act shall have expired or otherwise been
terminated and the Parties, GRI and its Subsidiaries shall have received all
other authorizations, consents, and approvals of governments and governmental
agencies, foreign and domestic, required by law or regulation in order to
consummate the transactions contemplated by this Agreement and no such approval
shall be subject to the satisfaction of any condition that has not been
satisfied or waived or otherwise impose any liabilities or restrictions on
Buyer.
5.1.6 The relevant Parties shall have entered into the
Ancillary Agreements in such form and substance as is satisfactory in all
respects to Seller and Buyer, and the same shall be in full force and effect.
5.1.7 Buyer shall have received from Seller, or Seller
shall have transferred to GRI in a manner reasonably satisfactory to Buyer, all
of Seller's right, title and interest to the trademarks and service marks
exclusive to GRI or its Subsidiaries and used in the ongoing operations of GRI.
5.1.8 Buyer shall have received from Seller's counsel an
opinion in form and substance reasonably satisfactory to Buyer, addressed to
Buyer, and dated as of the Closing Date.
5.1.9 All actions to be taken by Seller in connection
with consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the transactions
contemplated hereby will be reasonably satisfactory in form and substance to
Buyer.
5.1.10 The consents or waivers referred to in Article
4.1.12 shall have been obtained in form and substance reasonably satisfactory to
Buyer and shall not be subject to the satisfaction of any condition that has not
been satisfied or waived or otherwise impose any limitations or restrictions on
Buyer.
5.1.11 Seller shall have delivered to Buyer duly signed
resignations from office but not from employment, effective at Closing, of such
officers and directors of GRI and its Subsidiaries as have been requested by
Buyer.
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Buyer may waive any condition specified in this Article 5.1 if it executes a
writing so stating at or prior to the Closing.
5.2 Conditions to Obligation of Seller. The obligation of Seller
to consummate the transactions to be performed by it in connection with the
Closing is subject to satisfaction of the following conditions:
5.2.1 The representations and warranties set forth in
Article 3.2 above shall be true and correct in all material respects (if not
qualified by materiality) and in all respects (if qualified by materiality) at
and as of the Closing Date.
5.2.2 Buyer shall have performed and complied with all
of its agreements, covenants and obligations hereunder through the Closing.
5.2.3 There shall not be any injunction, judgment, order,
decree, ruling, or charge in effect preventing consummation of any of the
transactions contemplated by this Agreement or the Ancillary Agreements or which
could reasonably be expected to otherwise result in a material diminution of the
benefits of the transactions contemplated by this Agreement or any Ancillary
Agreement. No suit, action or other proceeding shall be pending or threatened
before any court or government agency seeking to restrain, prohibit or obtain
damages or other relief in connection with this Agreement or the consummation of
the transactions contemplated herein and there shall have been no investigation
or inquiry made or commenced by any governmental agency in connection with this
Agreement or the transactions contemplated herein.
5.2.4 Buyer shall have delivered to Seller a certificate
signed by an officer of Buyer to the effect that each of the conditions
specified above in Article 5.2.1 - 5.2.3 is satisfied in all respects.
5.2.5 All applicable waiting periods (and any extensions
thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act shall have expired or otherwise been
terminated and the Parties, GRI and its Subsidiaries shall have received all
other authorizations, consents, and approvals of governments and governmental
agencies, foreign and domestic, required by law or regulation in order to
consummate the transactions contemplated by this Agreement and no such approval
shall be subject to the satisfaction of any condition that has not been
satisfied or waived or otherwise impose any liabilities or restrictions on
Seller.
5.2.6 Seller shall have received from Buyer's counsel an
opinion in form and substance reasonably satisfactory to Seller, addressed to
Seller, and dated as of the Closing Date.
5.2.7 The relevant Parties shall have entered into the
Ancillary Agreements in such form and substance as is satisfactory in all
respects to Seller and Buyer, and the same shall be in full force and effect.
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5.2.8 All actions to be taken by Buyer in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the transactions
contemplated hereby will be reasonably satisfactory in form and substance to
Seller.
Seller may waive any condition specified in this Article 5.2 if it executes a
writing so stating at or prior to the Closing.
ARTICLE 6 - REMEDIES
6.1 Survival of Representations and Warranties.
6.1.1 Relating to Buyer and Seller. All of the
representations and warranties of the Parties contained in Articles 3.1.1 and
3.2 above shall survive the Closing and continue in full force and effect
forever thereafter (subject to any applicable statutes of limitations).
6.1.2 Relating to GRI. All of the representations and
warranties of Seller contained in Article 3.1.2 above shall survive the Closing
and continue in full force and effect for the following time periods: (i) The
representations and warranties contained in Articles 3.1.2.1, 3.1.2.2, 3.1.2.3,
3.1.2.4 (in the latter case, with respect to title to assets), 3.1.2.5,
3.1.2.10(a) (in the latter case, with respect to title to property) and 3.1.2.11
(with respect to title to intellectual property) shall survive the Closing and
continue in full force and effect forever thereafter (subject to any applicable
statutes of limitations); (ii) the representations and warranties contained in
Articles 3.1.2.9, 3.1.2.11, 3.1.2.12 and 3.1.2.14 shall survive the Closing and
continue in full force and effect until ninety (90) days after the expiration of
the applicable statute of limitations with respect to the matters referred to in
such Articles; (iii) the representation and warranty contained in Article
3.1.2.10(b) shall survive the Closing and continue in full force and effect for
five years thereafter; (iv) the representations and warranties contained in
Articles 3.1.2.6, 3.1.2.8 and 3.1.2.13 shall survive the Closing and continue in
full force and effect for three years thereafter, and (v) all other
representations and warranties shall survive the Closing and continue in full
force and effect for two years thereafter, provided, however, that the
limitations set forth in this Article 6.1.2 shall not apply to a breach of or an
inaccurate or incorrect representation or warranty which was made by a Party
other than with the good faith belief that such representation or warranty was
accurate or correct. Notwithstanding the foregoing, any representation or
warranty shall survive the time at which it would otherwise expire in accordance
with this Article 6.1.2 to the extent that Buyer or Seller, as the case may be,
makes a written claim for indemnification for breach of that representation or
warranty (setting forth in reasonable detail the factual and contractual bases
upon which such Party is entitled to indemnification under this Agreement) prior
to the time at which that representation or warranty would otherwise expire.
Except as set forth in this Article 6.1.2, the provisions of this Agreement
shall survive the Closing and shall continue indefinitely.
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6.2 Indemnification Provisions for the Benefit of Buyer. Without
limiting any other rights or remedies available to Buyer, Seller shall
indemnify, defend and hold harmless Buyer, GRI and their respective affiliates
and the respective officers, directors, employees and shareholders of the
foregoing from, against and with respect to any claim, liability, obligation,
loss, damage, assessment, judgment, cost and expense (including reasonable
attorney's and accountant's fees and costs and expenses reasonably incurred in
investigating, preparing, defending against or prosecuting any litigation or
claim, action, suit, proceeding or demand), of any kind or character (and
without giving effect to any tax benefit to the indemnified party) (individually
a "Loss" and collectively "Losses"), arising out of or in any manner incident,
relating or attributable to (i) any inaccuracy in any representation or breach
of any warranty of Seller contained in this Agreement or in any certificate,
instrument of transfer or other document or agreement executed by Seller or GRI
in connection with this Agreement or otherwise made or given in connection with
this Agreement, (ii) any failure by GRI or Seller to perform or observe, or to
have performed or observed, in full, any covenant or agreement to be performed
or observed by either of them under this Agreement or under any certificates or
other documents executed by Seller or GRI in connection with this Agreement,
(iii) reliance by Buyer on any books or records of GRI or reliance by Buyer on
any information or certificate furnished to Buyer pursuant to this Agreement by
or on behalf of Seller, GRI or any of GRI's officers, (iv) the Power Products
Division, ▇▇▇▇▇, or any other assets, divisions, subsidiaries, joint ventures,
investments, product lines or business of GRI or its Subsidiaries which has been
sold, discontinued, liquidated or otherwise disposed of prior to the Closing,
including, without limitation, Other Taxes or Income Tax on the actual or
imputed direct earnings of the Power Products Division or any other such assets,
divisions, subsidiaries, joint ventures, investments, product lines or
investments, (v) GRI's handling, storage, use, disposal, delivery for disposal
or generation of hazardous or toxic substances, wastes of any kind or similar
materials at any time prior to the Closing, (vi) the contamination of the
Property by a release, prior to the Closing Date, or the contamination of other
real estate caused by a release at the Property prior to the Closing Date with
or by pollutants, wastes, or any other substances at any time prior to the
Closing, (vii) the contamination of any real property previously or currently
leased or operated by GRI or its Subsidiaries with or by pollutants, wastes or
any other substances from activities conducted by Seller, GRI or its
Subsidiaries, prior to the Closing Date, (viii) any agreements, contracts,
negotiations or other dealings by Seller or GRI with any person concerning the
sale of the capital stock or business of GRI or its Subsidiaries, (ix) any
guaranty to which GRI or its Subsidiaries is a party and which guarantees
amounts payable by, or obligations of, any person or entity other than GRI, or
(x) any of the claims or litigation listed on Exhibit 3.1.2.13.
6.3 Indemnification Provisions for the Benefit of Seller. Buyer
shall indemnify, defend and hold harmless Seller and its affiliates and the
officers, directors, employees and shareholders of Seller from, against and with
respect to any Loss. arising out of or in any manner incident, relating or
attributable to (i) any inaccuracy in any representation or breach of any
warranty of Buyer contained in this Agreement or in any certificate, instrument
of transfer or other document or agreement executed by Buyer in connection with
this Agreement or otherwise made or given in connection with this Agreement,
(ii) any failure by Buyer to perform
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or observe, or to have performed or observed, in full, any covenant or agreement
to be performed or observed by it under this Agreement or under any certificates
or other documents executed by Buyer in connection with this Agreement.
6.4 Matters Involving Third Parties.
(i) If any third party shall notify any
Party (the "Indemnified Party") with respect to any matter
(a "Third Party Claim") which may give rise to a claim for
indemnification against the other Party (the "Indemnifying
Party") under this Article 6, then the Indemnified Party
shall promptly notify the Indemnifying Party thereof in
writing; provided, however, that failure to give such notice
shall not affect the indemnification provided hereunder
except to the extent the Indemnifying Party shall have been
actually prejudiced as a result of such failure. The
Indemnifying Party shall promptly mitigate any such
prejudice to the extent possible.
(ii) Indemnifying Party will have the right to
assume and thereafter conduct the defense of the Third Party
Claim with counsel of its choice reasonably satisfactory to
the Indemnified Party; provided, however, that the
Indemnifying Party will not consent to the entry of any
judgment or enter into any settlement with respect to the
Third Party Claim without the prior written consent of the
Indemnified Party), (not to be withheld unreasonably) unless
the judgment or proposed settlement involves only the payment
of money damages and does not impose an injunction or other
equitable relief upon the Indemnified Party. In any event,
the Indemnified Party shall have the right to employ separate
counsel, at its own expense, to participate and consult with
the counsel of the Indemnifying Party.
(iii) Unless and until an Indemnifying Party
assumes the defense of the Third Party Claim as provided in
Article 6.4(ii) above, the Indemnified Party may defend
against the Third Party Claim in any manner it reasonably may
deem appropriate.
(iv) In no event will the Indemnified Party
consent to the entry of any judgment or enter into any
settlement with respect to the Third Party Claim without the
prior written consent of each of the Indemnifying Parties
(not to be withheld unreasonably).
(v) In the event any Indemnified Party
should have a claim under Article 6 against any
Indemnifying Party that does not involve a third party
lawsuit, the Indemnified Party shall deliver an Indemnity
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Notice with reasonable promptness to the Indemnifying Party.
The failure by any Indemnified Party to give the Indemnity
Notice shall not impair such Party's rights hereunder except
to the extent that an Indemnifying Party demonstrates that it
has been irreparably prejudiced thereby. The Indemnifying
Party shall promptly mitigate any such prejudice to the
extent possible. If the Indemnifying Party notifies the
Indemnified Party that it does not dispute the claim
described in such Indemnity Notice or fails to notify the
Indemnified Party within 30 calendar days after receipt of
the Indemnity Notice (the "Dispute Period") whether the
Indemnifying Party disputes the claim described in such
Indemnity Notice, the amount of the Loss specified in the
Indemnity Notice will be conclusively deemed a liability of
the Indemnifying Party under Article 6 and the Indemnifying
Party shall pay the amount of such Loss to the Indemnified
Party on demand or the third-party claimant, as appropriate.
If the Indemnifying Party has delivered notice disputing its
liability to the Indemnified Party (a "Dispute Notice")
within the Dispute Period, the Indemnifying Party and the
Indemnified Party will proceed in good faith to negotiate a
resolution of such dispute, and if not resolved through
negotiations within a reasonable time, such dispute shall be
resolved through arbitration in accordance with Article 8 of
this Agreement.
6.5 Limitations on Indemnity. Notwithstanding anything to the
contrary in this Agreement:
(a) Seller shall have no liability or
obligation with respect to a claim made pursuant to Article
6.2(i) arising out of any inaccuracy in any representation or
breach of any warranty in any of Article 3.1.2.1, 3.1.2.3,
3.1.2.7, 3.1.2.8, 3.1.2.11 (except to the extent relate to
title), 3.1.2.13, 3.1.2.15 or 3.1.2.16 to the extent that (x)
any individual Loss is less than $20,000 (provided that to
the extent Buyer incurs more than one Loss which arises out
of the same or related underlying facts or circumstances
which individually are less than $20,000 but which in the
aggregate exceed $20,000, this subsection (a) shall not be
applicable); and (y) the aggregate of all such Losses not
limited by subsection (x) is less than or equal to Seven
Hundred Thousand Dollars ($700,000) (the "Basket"). To the
extent that the aggregate of all such Losses exceeds the
Basket, Seller's liability shall remain limited to such
Losses that are in excess of the Basket.
(b) To the extent that (i) prior to the
Closing, as a result of any investigation or information
provided pursuant to Section 4.1.8, Buyer had Knowledge a
representation and warranty was breached in a material
respect by Seller, (ii) Buyer nonetheless consummated the
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transactions contemplated hereby, and (iii) after the
Closing, Buyer suffers a Loss directly caused by such breach,
then Buyer shall nevertheless be entitled to indemnity under
Article 6.2(i) provided, however, that the amount of Buyer's
Loss shall be subject to the Basket. Nothing in this Article
6.5(b) shall limit any right of Buyer under this Agreement or
at law or equity relative to a representation or warranty
which was made by Seller other than with the good faith
belief that such representation or warranty was accurate or
correct.
(c) To the extent that Buyer may bring a
claim for indemnity pursuant to Section 6.2(i) for a Loss
which would also be the basis for a claim for indemnity
pursuant to Section 6.2(ii)-(x), Seller's liability shall be
determined as if the claim for indemnity were based on
Section 6.2(ii)-(x), as applicable.
(d) Seller's obligation to indemnify Buyer
pursuant to any of Article 6.2(v), (vi) or (vii) shall
terminate on the seventh anniversary of the Closing Date;
provided, however, that such obligation shall continue to the
extent that Buyer makes a written claim for indemnification
pursuant to one of such subsections prior to the seventh
anniversary of the Closing Date.
(e) Buyer shall not be entitled to
indemnification for any Losses to the extent of any reserve
account specifically set up for the matter underlying or
causing said Loss which is set forth on the Most Recent
Financial Statements (excluding any reserve related to the
Power Products Division).
6.6 Control of Environmental Matters. The Seller shall have the
right to conduct all investigations, feasibility studies, remedial actions and
other activities the purpose of which is to assess, evaluate or otherwise comply
with its obligations hereunder with respect to environmental matters specified
in Articles 6.2(v), (vi) and (vii). Seller shall have the right to control the
methodology, extent and implementation of any cleanup, remediation, removal or
response actions for which it shall have responsibility under this Agreement,
provided that Seller shall use reasonable efforts to minimize interference or
other disruption of the operations of Buyer on the Property. Seller shall
promptly provide copies of all reports, studies or analyses in connection with
any cleanup, remediation, removal or response action. Buyer shall cooperate with
Seller in responding to any governmental agency with respect to any assessments.
studies, removal, response or remediation activities, and by providing Seller
(without cost to Seller) access to those areas of the Property that Seller deems
reasonable.
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ARTICLE 7 - EXAMINATION PERIOD AND TERMINATION
7.1 Delivery of Materials by Seller. Prior to the execution of
this Agreement, Seller will have delivered to Buyer the Financial Statements for
GRI and its subsidiaries as of and for the year ended December 31, 1996, and
Buyer and Seller will have agreed upon the accounting methodology for removing
the assets, liabilities, and transactions for the Power Products Division as set
forth in Exhibit 3.1.2.6. Notwithstanding provisions of this Agreement which
contemplate that other documents will be delivered by Seller prior to execution,
the parties recognize that the goal of such delivery may not be met and that
they need to provide for the contingency that this Agreement will be executed
prior to the completion of delivery of all such documents to Buyer in time for
Buyer to evaluate them before signing this Agreement. In the event that all such
documents have not been delivered by Seller to Buyer prior to execution, Seller
will use its best efforts to cause documents to be delivered to Buyer as soon as
practicable, but in any event, not later than July 25, 1997. Once Seller has
notified Buyer in writing that all documents forming the basis for the
representations and warranties have been delivered, Buyer shall have a period of
ten (10) business days to complete its review of such documents. If the
documents delivered reveal issues or matters indicating that (i) since December
31, 1996, there has been a materially adverse change in the business or
financial condition of GRI and its Subsidiaries from what is shown in the 1996
Financial Statements, or (ii) there has been or will be a material variance from
the cost reduction tasks for 1997 contained in the business plan prepared by GRI
and attached as Exhibit 7.1(ii), Buyer may terminate this Agreement by giving
notice of termination to Seller during such ten day period.
7.2 Termination of Agreement. Either Party may terminate this
Agreement as provided below:
7.2.1 Buyer and Seller may terminate this Agreement by
mutual written consent at any time prior to the Closing.
7.2.2 Buyer may terminate this Agreement by giving written notice
to Seller at any time prior to the Closing (i) in the event Seller has
breached any representation or warranty in any material respect or there is any
material misstatement or material omission with respect to any representation
or warranty or any breach of or failure to perform any covenant contained in
this Agreement in any material respect, Buyer has notified Seller of the
breach, and the breach has continued without cure for a period of 30 days after
the notice of breach or (ii) if the Closing shall not have occurred on or
before August 31, 1997, by reason of the failure of any condition precedent
under Article 5.1 hereof (unless the failure results primarily from Buyer
itself breaching any representation, warranty, or covenant contained in this
Agreement); and
7.2.3 Seller may terminate this Agreement by giving written notice
to Buyer at any time prior to the Closing (i) in the event Buyer has breached
any representation or warranty or there is any material misstatement or
material omission with respect to any representation or warranty or any breach
of or failure to perform any covenants contained in this
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Agreement in any material respect. Seller has notified Buyer of the breach, and
the breach has continued without cure for a period of 30 days after the notice
of breach or (ii) if the Closing shall not have occurred on or before August 31,
1997, by reason of the failure of any condition precedent under Article 5.2
hereof (unless the failure results primarily from Seller itself breaching any
representation, warranty, or covenant contained in this Agreement).
7.2.4 Such notice shall clearly specify the breach or
failure or the misstatement or omission on the part of the notified Party.
7.2.5 By an instrument in writing delivered to the other
Party, either Buyer or Seller may waive any condition precedent contained
herein for the benefit of the Party delivering such waiver and, upon the
exercise of such right of waiver, the transactions shall be closed in
accordance with the terms contained in this Agreement as modified by said
writing.
7.3 Effect of Termination. If any Party terminates this Agreement
pursuant to Article 7.1 or 7.2 above, all rights and obligations of the Parties
hereunder shall terminate without any liability of any Party to the other Party
(except for any liability of any Party then in breach); provided, however, that
the confidentiality provisions contained in Article 4.1.4 above shall survive
termination.
ARTICLE 8 - ALTERNATE DISPUTE RESOLUTION
8.1 Dispute Resolution. If a dispute arises between the Parties
relating to this Agreement, the following procedure shall be implemented before
either Party pursues other available remedies except that either Party may seek
injunctive relief from a court where appropriate in order to maintain the status
quo while this procedure is being followed:
8.1.1 The Parties shall hold a meeting promptly,
attended by persons with decision-making authority regarding the dispute, to
attempt in good faith to negotiate a resolution of the dispute; provided,
however, that no such meeting shall be deemed to vitiate or reduce the
obligations and liabilities of the Parties or be deemed a waiver by a Party
hereto of any remedies to which such Party would otherwise be entitled.
8.1.2 If, within 30 days after such meeting, the Parties
have not succeeded in negotiating a resolution of the dispute, they agree to
submit the dispute to mediation in accordance with the then-current Model
Procedure for Mediation of Business Disputes of the Center for Public Resources
and to bear equally the costs of the mediation.
8.1.3 The Parties will jointly appoint a mutually
acceptable mediator, seeking assistance in such regard from the Center for
Public Resources if they have been unable to agree upon such appointment within
20 days from the conclusion of the negotiation period.
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8.1.4 The Parties agree to participate in good faith in
the mediation and negotiations related thereto for a period of 30 days. If the
Parties are not successful in resolving the dispute through the mediation, then
the Parties agree to submit the matter to binding arbitration or a private
adjudicator. The award of the arbitrator may be entered in any court of
competent jurisdiction.
8.2 Mediation or arbitration shall take place in the City of
Detroit, unless otherwise agreed by the Parties. The substantive and procedural
law of the State of Michigan shall apply to the proceedings. Equitable remedies
shall be available in any arbitration. Punitive damages shall not be awarded.
This Article 8 is subject to the Federal Arbitration Act, 9 U.S.C.A. Section. I
et seq.
ARTICLE 9 - MISCELLANEOUS
9.1 Confidentiality of Terms; Press Releases and Public
Announcements. The Parties will use all reasonable efforts to prevent the
disclosure of any of the terms or conditions hereof to any person, other than
counsel. No Party shall issue any press release or make any public announcement
relating to the subject matter of this Agreement prior to the Closing without
the prior written approval of the other Party; provided, however, that any Party
may make any public disclosure it believes in good faith is required by
applicable law or any listing or trading agreement concerning its
publicly-traded securities (in which case the disclosing Party will use its
reasonable best efforts to advise the other Party prior to making the
disclosure).
9.2 No Third Party Beneficiaries. This Agreement shall not
confer any rights or remedies upon any Person other than the Parties and their
respective successors and permitted assigns.
9.3 Entire Agreement. Except for the Ancillary Agreements, this
Agreement and the Confidentiality Agreement dated February 25, 1997, constitute
the entire agreement among the Parties and supersedes any prior understandings,
agreements, or representations by or among the Parties, written or oral, to the
extent they have related in any way to the subject matter hereof and thereof.
9.4 Succession and Assignment. This Agreement shall be binding
upon and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written
approval of the other Party; provided, however, that a Party may (i) assign any
or all of its rights and interests hereunder to one or more of its Affiliates
and (ii) designate one or more of its Affiliates to perform its obligations
hereunder (in any or all of which cases the assignor nonetheless shall remain
responsible for the performance of all of its obligations hereunder).
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9.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
9.6 Titles and Headings. The article and section headings
contained in this Agreement are inserted for convenience only and shall not
affect in any way the meaning or interpretation of this Agreement.
9.7 Notices. All notices, requests, demands, claims, and other
communications hereunder Will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if it is sent by
registered or certified mail, return receipt requested, postage prepaid, and
addressed to the intended recipient as set forth below:
If to Sellers:
Mr. ▇▇▇▇ ▇▇▇▇▇▇
Ford Motor Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Copy to:
Secretary
Ford Motor Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Buyer:
▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Executive VP & CFO
MSX International, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Copy to:
General Counsel
MSX International, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, ordinary mail, or electronic mail), but no such notice, request,
demand, claim, or other communication shall be deemed to have been duly given
unless and until it actually is received by the intended recipient. Any Party
may change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other Parties notice
in the manner herein set forth.
9.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Michigan, without
giving effect to any choice or conflict of law provision or rule thereunder.
9.9 Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by Buyer
and Seller. No waiver by any Party of any default, misrepresentation, or breach
of warranty or covenant hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
9.10 Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
9.11 Expenses. Regardless of whether the transactions
contemplated by this Agreement are consummated, each Party will bear its own
costs and expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions contemplated hereby;
provided, however, that (a) the Parties shall equally bear the cost of all
governmental filings required to consummate the transaction contemplated by
this Agreement and (b) Seller agrees that GRI will not bear or pay any of the
fees and expenses related to this transaction in excess of $15,000.
9.12 Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word 'including' shall mean including without limitation. The Parties intend
that each representation, warranty and covenant contained herein shall have
independent significance.
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9.13 Incorporation of Exhibits and Annexes. The Exhibits and
Annexes identified in this Agreement are incorporated herein by reference and
made a part hereof.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
FORD MOTOR COMPANY MSX INTERNATIONAL (HOLDINGS). INC.
By: By:
------------------------ ------------------------
Title: Title:
--------------------- ---------------------
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EXHIBITS
1.42 Schedule of Security Interests
3.1.2.1 Jurisdiction of Incorporation and Jurisdictions in which GRI
and its Subsidiaries are qualified to conduct business as
foreign corporations; Directors and Officers of each of GRI
and its Subsidiaries
3.1.2.2 Copies of all outstanding or authorized stock appreciation,
phantom stock, profit participation or similar rights with
respect to GRI or Offered Shares
3.1.2.4 Personal property leases in excess of $100,000 annually; all
tangible personal property owned by or an interest in which is
claimed by others used by GRI or for which GRI is responsible;
all tangible personal property owned or used by PPD,
indicating items also used by GRI, the ownership of which will
be removed from GRI; any of such assets GRI will no longer
have a right to use; services provided by Seller or its
affiliates to GRI
3.1.2.5 Name and jurisdiction of incorporation of each Subsidiary;
number of shares of authorized capital stock; number of issued
and outstanding shares and names of holders thereof; treasury
stock
3.1.2.6 Financial Statements; accounting methodology for removal of PPD
3.1.2.7 Exceptions to Ordinary Course
3.1.2.7(ii) Events Subsequent Business Combinations
3.1.2.7(v) Events Subsequent Change in Compensation
3.1.2.9 Waivers of statutes of limitations relating to taxes; tax
allocation or sharing agreements
3.1.2.10 All easements, liens and encumbrances referred to in 3.1.2.10
(a)(ii)
3.1.2.10(a) Real Property
3.1.2.10(b) Waste haulers, etc.
3.1.2.11 Intellectual Property
3.1.2.12 Material Contracts
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3.1.2.13 Litigation
3.1.2.14 Employee Matters
3.1.2.15 Employee compensation
3.1.2.16 All policies of insurance insuring GRI and Subsidiaries in
other jurisdictions
4.1.3 Exceptions to Ordinary Course
4.1.7 Liabilities of Power Products Division
4.2.3 GRI Severance Plan.
4.5 Non-Ford earn-out
4.6 Transition Services
5.1.6 Form of Ancillary Agreements
5.1.8 Form of Seller's counsel opinion
5.2.6 Form of Buyer's counsel opinion
7.1(iii) Financial Statements of GRI
7.1(iv) Business Plan
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