EXHIBIT 10.25
AGREEMENT OF PURCHASE AND SALE
Dated as of February 24, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ HOLDINGS INC.
and SIMON OVERSEAS HOLDINGS LIMITED,
as Sellers,
SIMON ENGINEERING plc,
as Parent,
and TEREX CORPORATION,
as Buyer
TABLE OF CONTENTS
ARTICLE I TERMS OF PURCHASE AND SALE . . . . . . . . . . . . . . . . . .1
1.01. Sale of the Shares . . . . . . . . . . . . . . . . . . .1
1.02. The Closing. . . . . . . . . . . . . . . . . . . . . . .2
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE SELLERS AND
PARENT. . . .. . . . . . . . . . . . . . . . . . . . .5
2.01. Corporate Power and Authority; Effect of
Agreement . . . . . . . . . . . . . . . . . . . . . . .5
2.02. Capitalization; the Shares . . . . . . . . . . . . . . .5
2.03. Subsidiaries . . . . . . . . . . . . . . . . . . . . . .6
2.04. Organization of the Companies and the
Subsidiaries. . . . . . . . . . . . . . . . . . . . . .6
2.05. Financial Statements; Undisclosed Liabilities. . . . . .6
2.06. Absence of Certain Changes or Events . . . . . . . . . .8
2.07. Title to Assets. . . . . . . . . . . . . . . . . . . . .8
2.08. Commitments. . . . . . . . . . . . . . . . . . . . . . .9
2.09. Insurance. . . . . . . . . . . . . . . . . . . . . . . 10
2.10. Litigation . . . . . . . . . . . . . . . . . . . . . . 10
2.11. Compliance with Law; Licenses, Permits . . . . . . . . 11
2.12. Employee Benefit Plans . . . . . . . . . . . . . . . . 11
2.13. Consents . . . . . . . . . . . . . . . . . . . . . . . 12
2.14. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . 13
2.15. Fees . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.16. Environmental Matters. . . . . . . . . . . . . . . . . 13
2.17. Labor Matters. . . . . . . . . . . . . . . . . . . . . 15
2.18. Affiliates' Relationships to the Companies . . . . . . 15
2.19. Patents and Trademarks . . . . . . . . . . . . . . . . 15
2.20. Conflicts of Interest. . . . . . . . . . . . . . . . . 16
2.21. Accounts Receivable; Inventory . . . . . . . . . . . . 16
2.22. Misleading Statements. . . . . . . . . . . . . . . . . 17
2.23. Products Liability . . . . . . . . . . . . . . . . . . 17
2.24. Disclaimer . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE III REPRESENTATIONS AND WARRANTIES OF BUYER. . . . . . . . 17
3.01. Organization . . . . . . . . . . . . . . . . . . . . . 17
3.02. Corporate Power and Authority; Effect of
Agreement . . . . . . . . . . . . . . . . . . . . . . 17
3.03. Consents . . . . . . . . . . . . . . . . . . . . . . . 18
3.04. Availability of Funds. . . . . . . . . . . . . . . . . 18
3.05. Litigation . . . . . . . . . . . . . . . . . . . . . . 18
3.06. Purchase for Investment. . . . . . . . . . . . . . . . 18
3.07. Disclaimer . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE IV COVENANTS OF THE SELLERS AND PARENT. . . . . . . . . . 18
4.01. Cooperation by the Sellers . . . . . . . . . . . . . . 18
4.02. Conduct of Business. . . . . . . . . . . . . . . . . . 18
4.03. Access . . . . . . . . . . . . . . . . . . . . . . . . 19
4.04. Further Assurances . . . . . . . . . . . . . . . . . . 20
4.05. Covenant Not to Compete. . . . . . . . . . . . . . . . 20
4.06. Stockholders' Meetings . . . . . . . . . . . . . . . . 21
4.07. No Solicitation. . . . . . . . . . . . . . . . . . . . 21
ARTICLE V COVENANTS OF BUYER . . . . . . . . . . . . . . . . . . . . . 22
5.01. Cooperation by Buyer . . . . . . . . . . . . . . . . . 22
5.02. Books and Records; Personnel . . . . . . . . . . . . . 22
5.03. Further Assurances . . . . . . . . . . . . . . . . . . 23
5.04. Release of Guaranties. . . . . . . . . . . . . . . . . 23
ARTICLE VI ADDITIONAL COVENANTS . . . . . . . . . . . . . . . . . 23
6.01. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . 23
6.02. Corporate Name . . . . . . . . . . . . . . . . . . . . 27
6.03. ▇▇▇▇▇ Name . . . . . . . . . . . . . . . . . . . . . . 28
6.04. Simon LTI, Simon Duplex and Simon (UK) . . . . . . . . 28
6.05. Cash Management. . . . . . . . . . . . . . . . . . . . 29
6.06. Changes to Representations and Warranties. . . . . . . 29
ARTICLE VII CONDITIONS TO BUYER'S OBLIGATIONS. . . . . . . . . . . 30
7.01. Representations, Warranties and Covenants of the
Sellers . . . . . . . . . . . . . . . . . . . . . . . 30
7.02. No Prohibition . . . . . . . . . . . . . . . . . . . . 30
7.03. Governmental Consents. . . . . . . . . . . . . . . . . 30
7.04. Intercompany Accounts. . . . . . . . . . . . . . . . . 30
7.05. FIRPTA . . . . . . . . . . . . . . . . . . . . . . . . 31
7.06. Consents . . . . . . . . . . . . . . . . . . . . . . . 31
7.07. Release of Encumbrances. . . . . . . . . . . . . . . . 31
7.08. Resignation of Officers and Directors. . . . . . . . . 31
7.09. Books and Records. . . . . . . . . . . . . . . . . . . 31
ARTICLE VIII CONDITIONS TO PARENT'S AND THE
SELLERS' OBLIGATIONS. . . . . . . . . . . . . . . . . 31
8.01. Representations, Warranties and Covenants of
Buyer . . . . . . . . . . . . . . . . . . . . . . . . 31
8.02. No Prohibition . . . . . . . . . . . . . . . . . . . . 32
8.03. Governmental Consents. . . . . . . . . . . . . . . . . 32
8.04. Shareholder Approval . . . . . . . . . . . . . . . . . 32
8.05. Lender Consent and Releases. . . . . . . . . . . . . . 32
8.06. Books and Records. . . . . . . . . . . . . . . . . . . 32
ARTICLE IX EMPLOYMENT AND EMPLOYEE BENEFITS ARRANGEMENTS. . . . . 32
9.01. Definitions. . . . . . . . . . . . . . . . . . . . . . 32
9.02. Employment . . . . . . . . . . . . . . . . . . . . . . 33
9.03. Simon U.S. Retirement Plan . . . . . . . . . . . . . . 33
9.05. Severance. . . . . . . . . . . . . . . . . . . . . . . 35
9.06. Indemnity. . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE X TERMINATION PRIOR TO CLOSING . . . . . . . . . . . . . . . . 35
10.01. Termination. . . . . . . . . . . . . . . . . . . . . . 35
10.02. Effect on Obligations. . . . . . . . . . . . . . . . . 36
ARTICLE I. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . 36
11.01. Survival . . . . . . . . . . . . . . . . . . . . . . . 36
11.02. Indemnification. . . . . . . . . . . . . . . . . . . . 37
11.03. Interpretive Provisions. . . . . . . . . . . . . . . . 40
11.04. Entire Agreement . . . . . . . . . . . . . . . . . . . 40
11.05. Successors and Assigns . . . . . . . . . . . . . . . . 40
11.06. Headings . . . . . . . . . . . . . . . . . . . . . . . 41
11.07. Modification and Waiver. . . . . . . . . . . . . . . . 41
11.08. Expenses . . . . . . . . . . . . . . . . . . . . . . . 41
11.09. Notices. . . . . . . . . . . . . . . . . . . . . . . . 41
11.10. Governing Law. . . . . . . . . . . . . . . . . . . . . 42
11.11. Public Announcements . . . . . . . . . . . . . . . . . 43
11.12. Counterparts . . . . . . . . . . . . . . . . . . . . . 43
11.13. Currency Conversion. . . . . . . . . . . . . . . . . . 43
11.14. Exhibits and Disclosure Schedule . . . . . . . . . . . 43
DEFINED TERMS
Term Section
9.01(e) Employees ........................................ 9.01(e)
Ancillary Document ....................................... 11.01
Agreed Accounting Principles ............................. 2.05(c)
Arbitrator ............................................... 1.03(b)(iii)
Audited Financial Statements ............................. 2.05(b)
Benefit Arrangements ..................................... 9.01(d)
Books and Records ........................................ 5.02(a)
Book Value ............................................... 1.03(a)
Business ................................................. 9.01(a)
Buyer .................................................... Preamble
Buyer's Certificate ...................................... 8.01
Buyer's Health Plan ...................................... 9.04(b)
Buyer's Retirement Plan .................................. 9.03(a)
Buyer's Taxes ............................................ 6.01(e)
CAA ...................................................... 2.16(d)(i)
CERCLA ................................................... 2.16(d)(i)
CERCLIS .................................................. 2.16(a)
Closing .................................................. 1.02
Closing Date ............................................. 1.02
Closing Date Balance Sheets .............................. 1.03(b)(i)
COBRA .................................................... 2.12(g)
Code ..................................................... 2.12(b)
Commitments .............................................. 2.08
Company .................................................. Preamble
Companies ................................................ Preamble
Company Benefit Plans .................................... 9.01(c)
Confidentiality Agreement ................................ 4.03
CWA ...................................................... 2.16(d)(i)
Deductible ............................................... 11.02(a)
Disbursements ............................................ 6.05(a)
Disclosure Schedule ...................................... 2.02
Employee ................................................. 9.01(b)
Employees ................................................ 9.01(b)
Encumbrances ............................................. 2.02(b)
Environmental Breach ..................................... 11.01
Environmental Laws ....................................... 2.16(d)(i)
Environmental Losses ..................................... 2.16(d)(vi)
Environmental Permit ..................................... 2.16(d)(iv)
ERISA .................................................... 2.12(b)
Existing Guarantees ...................................... 5.04
Facilities ............................................... 2.16(d)(v)
HMTA ..................................................... 2.16(d)(i)
Hazardous Substances ..................................... 2.16(d)(ii)
HSR Act .................................................. 2.13
Indemnitee ............................................... 11.02(c)(i)
Indemnitor ............................................... 11.02(c)(i)
Intellectual Property Rights ............................. 2.19
Interim Combining Balance Sheet .......................... 2.05(a)
Interim Financial Statements ............................. 2.05(a)
Irish GAAP ............................................... 2.05(a)
IRS ...................................................... 2.12(b)
Italian GAAP ............................................. 2.05(c)
Litigation ............................................... 2.10
Lockbox Accounts ......................................... 6.05(b)
Logos .................................................... 6.02(a)
Logo Window Period ....................................... 6.02(b)
Losses ................................................... 11.02
Material Adverse Effect .................................. 2.04
Names .................................................... 6.02(a)
Name Window Period ....................................... 6.02(b)
Notice ................................................... 11.02(c)(i)
Notice of Disagreement ................................... 1.03(b)(iii)
NPL ...................................................... 2.16(a)
Parent ................................................... Preamble
Patent Rights ............................................ 2.19
Pre-Closing Cash ......................................... 6.05(b)
Pre-Closing Taxes ........................................ 6.01(b)
Purchase Price ........................................... 1.03(a)
RCRA ..................................................... 2.16(d)(i)
Real Property ............................................ 2.07(c)
Reference Amount ......................................... 1.03(a)
Release .................................................. 2.16(d)(iii)
Restricted Business ...................................... 4.05(a)
Retirement Plan Transferees .............................. 9.03(a)
Section 338 Forms ........................................ 6.01(h)(2)(a)
Section 338(h)(10) Elections ............................. 6.01(h)
Sellers .................................................. Preamble
Sellers' Certificates .................................... 7.01
Sellers' Refunds ......................................... 6.01(c)
Shares ................................................... Preamble
Sim-Tech Management ...................................... Preamble
Simon Aerials ............................................ Preamble
Simon Duplex ............................................. 4.05(a)
Simon Health Plan ........................................ 9.04(b)
Simon Ireland ............................................ Preamble
Simon LTI ................................................ 4.05(a)
Simon Overseas ........................................... Preamble
Simon Retirement Plan .................................... 9.03
▇▇▇▇▇-▇▇▇▇▇ .............................................. Preamble
Simon-Tomen .............................................. Preamble
Simon UK ................................................. 4.05(a)
Straddle Period .......................................... 6.01(b)
Straddle Returns ......................................... 6.01(a)(3)
Subsidiary ............................................... 2.03(a)
Subsidiaries ............................................. 2.03(a)
SUSHI .................................................... Preamble
Tax Matter ............................................... 6.01(f)
Telelect ................................................. Preamble
TSCA ..................................................... 2.16(d)(i)
US Corporations .......................................... 6.05(a)
US GAAP .................................................. 2.05(c)
Valuation Date ........................................... 9.03(c)
WARN ..................................................... 9.06(a)
Window Period ............................................ 6.02(b)
AGREEMENT OF PURCHASE AND SALE
This Agreement, made and entered into this 24th day of February, 1997, by
and among Simon United States Holdings Inc., a Delaware corporation ("SUSHI"),
and Simon Overseas Holdings Limited, a company incorporated under the laws of
England with registered number 786848 ("Simon Overseas" and, together with
SUSHI, collectively referred to as the "Sellers"), Simon Engineering plc, a
public limited company incorporated under the laws of England with registered
number 52665 ("Parent"), and Terex Corporation, a Delaware corporation
("Buyer").
W I T N E S S E T H :
WHEREAS, SUSHI owns all the issued and outstanding shares of capital stock
of Simon-Telelect Inc., a Delaware corporation ("Telelect"), and of Simon
Aerials Inc., a Wisconsin corporation ("Simon Aerials"); and Simon Overseas owns
all the issued and outstanding shares of capital stock of Sim-Tech Management
Limited, a private limited company incorporated under the laws of Hong Kong with
registered number 152080 ("Sim-Tech Management"), of ▇▇▇▇▇-▇▇▇▇▇, S.r.l., a
company incorporated under the laws of Italy ("▇▇▇▇▇-▇▇▇▇▇"), and of Simon
Aerials Limited, a company incorporated under the laws of Ireland ("Simon
Ireland"), and 60% of the issued and outstanding shares of capital stock of
Simon- Tomen Engineering Company Limited, a limited liability stock company
(kabushiki kaisha) organized under the laws of Japan ("Simon-Tomen" and,
together with Telelect, Simon Aerials, Sim- Tech Management, ▇▇▇▇▇-▇▇▇▇▇ and
▇▇▇▇▇ Ireland, collectively referred to as the "Companies" or singularly as a
"Company");
WHEREAS, Parent is, directly or indirectly, the owner all the issued and
outstanding capital stock of each Seller;
WHEREAS, upon the terms and subject to the conditions set forth in this
Agreement, Parent and the Sellers desire to sell to Buyer, and Buyer desires to
buy from the Sellers, all of the aforesaid shares of capital stock of the
Companies (the "Shares") owned by the Sellers;
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements, and upon the terms and subject to the conditions,
hereinafter set forth, the parties do hereby agree as follows:
ARTICLE I
TERMS OF PURCHASE AND SALE
1.01. Sale of the Shares. (a) Upon the terms and subject to the conditions
set forth in this Agreement, on the Closing Date (as defined in Section 1.02),
and subject to Section 1.01(c) the Sellers shall sell the Shares to Buyer, and
Buyer shall purchase the Shares from the Sellers for the Purchase Price
specified in Section 1.03. The Closing shall be effective as of the opening of
business on the Closing Date.
(b) At the Closing (as defined in Section 1.02), the Sellers shall
deliver to Buyer, against payment of the Purchase Price, certificates
representing the Shares (other than the Shares in ▇▇▇▇▇-▇▇▇▇▇), duly endorsed in
blank for transfer or accompanied by duly executed stock powers, stock transfer
forms or other instruments of transfer assigning such Shares in blank, and shall
take all actions necessary to cause the Shares in ▇▇▇▇▇-▇▇▇▇▇ to be registered
in Buyer's name in the register of shareholders of ▇▇▇▇▇-▇▇▇▇▇ in each case free
and clear of all Encumbrances (as defined in Section 2.02(b)). The aggregate
cost of any documentary, stamp, sales, excise, transfer or other taxes payable
(other than income taxes payable by the Sellers) in respect of the sale of the
Shares shall be borne 50% by Buyer and 50% by the Sellers.
(c) If Tomen Corporation exercises its right of first refusal to
purchase the Shares of Simon-Tomen pursuant to this Agreement, then such Shares
shall not be sold pursuant hereto, and there shall be no adjustment to the
Purchase Price as a result thereof, except as set forth in Section 1.03. In such
event, all references to the Companies in this Agreement shall be deemed not to
include Simon-Tomen and any representations with respect to Simon-Tomen shall be
deemed to have been deleted.
1.02. The Closing. The closing of the purchase and sale of the Shares (the
"Closing") shall take place at the New York offices of Fried, Frank, Harris,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, One New York Plaza, New York, New York, commencing at 10:00
a.m. on April 7, 1997 or if the conditions to the Closing set forth in Articles
VII and VIII have not been satisfied by such date, as soon as practicable after
such conditions have been satisfied (the "Closing Date").
1.03. Purchase Price; Purchase Price Adjustment; and Payment. (a) The
aggregate purchase price to be paid by Buyer for the Shares and to repay the
portion of intercompany balances owned by Simon Ireland, ▇▇▇▇▇ ▇▇▇▇▇, Sim-Tech
Management and Simon-Tomen to Simon Overseas (collectively the "Offshore
Intercompany Accounts") not contributed to the capital of such Company shall be
$90 million (the "Purchase Price"). The Purchase Price shall be allocated among
the Companies as set forth on Section 1.03 of the Disclosure Schedule, and
neither Buyer nor Parent or any Seller (nor any of their respective affiliates)
shall take any position on any tax return or with any taxing authority that is
inconsistent with the allocation of the Purchase Price set forth on Section 1.03
of the Disclosure Schedule; provided, however, that the Purchase Price allocable
to Simon Ireland, ▇▇▇▇▇-▇▇▇▇▇, Sim-Tech Management and Simon-Tomen shall, in all
cases, be at least equal to the sum of (x) the Offshore Intercompany Account
balance for such Company as of the close of business on the day preceding the
Closing Date and (y) an amount sufficient to return any aggregate cash overdraft
balance for all accounts of such Company as of the Closing Date to zero. The
Purchase Price allocable to each of Simon Ireland, ▇▇▇▇▇ ▇▇▇▇▇, Sim-Tech
Management and Simon Tomen shall be applied first to repay the portion of the
Offshore Intercompany Account balance for such Company not contributed to the
capital of such Company and second to the purchase price for the Shares of such
Company. To the extent specified in the following sentence, the Purchase Price
shall be adjusted pursuant to this Section 1.03(a) in the event and to the
extent that the Closing Date Balance Sheet (as defined in Section 1.03(b))
reveals that the aggregate Book Value (as defined below) for all Companies and
Subsidiaries, rounded to the nearest $1,000, as of the close of business on the
day before the Closing Date is not equal to $63,996,000 (which amount is subject
to adjustment to include the capitalization of the net intercompany account
balances after reconciliation thereof) (the "Reference Amount"). If the Closing
Date Balance Sheet reveals that aggregate Book Value for all Companies and
Subsidiaries is less than the Reference Amount by more than $1 million, Parent
or the Seller shall, and if the Closing Date Balance Sheet reveals that
aggregate Book Value is greater than the Reference Amount by more than $1
million, Buyer shall, pay an amount equal to the amount by which such shortfall
or excess exceeds the Reference Amount. Payment of such Purchase Price
adjustment shall be made prior to the close of business on the second business
day following the date that the Closing Date Balance Sheet shall become final
and binding pursuant to Section 1.03(b)(iii) in U.S. dollars by wire transfer of
immediately available funds to the account of Buyer or the Sellers, as the case
may be, specified thereby, together with interest on such Purchase Price
adjustment at a rate equal to the rate of interest from time to time announced
publicly by Citibank, N.A., as its base rate plus 2%, calculated based on the
number of days elapsed over 365, from the Closing Date to the date of payment.
If the consent of Tomen Corporation to the transfer of the Shares in Simon-Tomen
is not obtained prior to the Closing Date, the Reference Amount shall be reduced
by an amount equal to the Book Value attributable to Simon-Tomen as shown on the
Interim Combining Balance Sheet and the Closing Date Balance Sheet and Book
Value as of the close of business the day before the Closing Data shall be
calculated without regard to Simon-Tomen. The term "Book Value" shall mean the
amount derived by deducting the total liabilities of all Companies and
Subsidiaries, after eliminating any intercompany account balance from the total
assets of all Companies and Subsidiaries, in each case as reflected on the
Interim Combining Balance Sheet (as defined in Section 2.05(a)) and the Closing
Date Balance Sheet. Any adjustment to the Purchase Price pursuant to this
Section 1.03 shall be allocated to the Purchase Price for the Company or
Companies to which the item or items giving rise to such adjustment are
attributable based on the ratio of the amount of claims attributable to such
Company versus the total amount of all claims. For all purposes of this
Agreement, references to the intercompany accounts of any Company or Subsidiary
refer to the intercompany accounts of that Company or Subsidiary with Parent or
any subsidiary of Parent. All references herein to "dollars" or "$" shall be to
U.S. dollars (U.S. $) unless otherwise specified.
(b) (i) On or before the 90th day following the Closing Date, the
Sellers shall prepare and deliver to Buyer, in accordance with subsection (iii)
below a combining balance sheet of all Companies and Subsidiaries as of the
close of business on the day before the Closing Date, which balance sheet shall
be reported on by the Seller's independent public accountants to have been
properly prepared in accordance with the terms of this Agreement (a report in a
form reasonably satisfactory to Parent, the Sellers and Buyer) and shall satisfy
the following requirements (such balance sheet referred to as the "Closing Date
Balance Sheet"):
(A) The Closing Date Balance Sheet shall be prepared as if the
Companies were not a part of, but were separate and independent from, any
consolidated group of companies (other than those reported on in the Closing
Date Balance Sheet) and all intercompany account balances shall be contributed
to the capital of the Companies or, at the option of the Sellers with respect to
Simon Ireland, ▇▇▇▇▇ ▇▇▇▇▇, Sim-Tech Management and/or Simon-Tomen, all or a
portion thereof shall be repaid with a portion of the Purchase Price allocable
to such Company;
(B) Except for the treatment of intercompany account balances as
specified in clause (A) above, the Closing Date Balance Sheet shall be prepared
on a basis consistent with the Audited Financial Statements, the Interim
Combining Balance Sheet and the Interim Financial Statements and the past custom
and practice of the Companies and the Subsidiaries to the extent consistent
therewith. Without limiting the generality of the foregoing, the parties hereto
acknowledge and agree that the computation of Book Value will be done in a
manner consistent with the methods used in the preparation of the Interim
Financial Statements and that if disagreements should arise with respect to
individual items of inclusion and/or exclusion, the governing principle will be
that the adjustment contemplated by this Section 1.03 is intended to analyze the
economic effects of a change in Book Value from the date of the Interim
Financial Statements to the Closing Date.
(ii) The Book Value for all Companies and Subsidiaries shall be
determined by the Sellers and reported on by their independent accountants to
have been properly prepared in accordance with the terms of this Agreement (a
report in a form reasonably satisfactory to Parent, the Sellers and Buyer) and
as set forth in a statement in the form of Appendix B.
(iii) Buyer shall cause the Companies and their respective employees
to assist the Sellers in preparing, and the Sellers' independent accountants in
reporting on, the Closing Date Balance Sheet and shall provide the Sellers and
their independent accountants access at all reasonable times to the personnel,
properties, books and records of the Companies for such purpose. Buyer
acknowledges that the Sellers and Sellers' independent accountants shall have
responsibility and authority for preparing and reporting on, respectively, the
Closing Date Balance Sheet in accordance with the terms of this Agreement. At
Buyer's option and expense, a physical inventory shall be conducted by the
Companies and the Subsidiaries on a date to be agreed by the Sellers and Buyer
shortly before or promptly following the Closing Date for the purpose of
preparing the Closing Date Balance Sheet, and the Sellers, Buyer and their
respective independent accountants shall each have the right to observe the
taking of such physical inventory. Any expense incurred by the Companies and the
Subsidiaries in connection with such taking of physical inventory shall be for
the account of Buyer and shall not be reflected in the Closing Date Balance
Sheet or in determining aggregate Book Value as of the Closing Date. During the
45-day period following Buyer's receipt of the Closing Date Balance Sheet, Buyer
and its independent accountants will be permitted, each upon delivery of an
executed release agreements substantially in the form of Appendix C, to review
the working papers of the Sellers' independent accountants relating to the
Closing Date Balance Sheet. The Closing Date Balance Sheet shall become final
and binding upon the parties on the forty-fifth day following receipt thereof by
Buyer unless Buyer gives written notice of its disagreement ("Notice of
Disagreement") to the Sellers prior to such date. Any Notice of Disagreement
shall specify in reasonable detail the nature of, and reasons for, any
disagreement so asserted, which must equal or exceed $25,000 on an individual
item by Company or Subsidiary basis. Any individual disagreement of less than
$25,000 shall be disregarded in preparing the Notice of Disagreement. If a
Notice of Disagreement is received by the Sellers in a timely manner, then the
Closing Date Balance Sheet (as revised in accordance with clause (x) or (y)
below) shall become final and binding upon the parties on the earlier of (x) the
date the parties hereto resolve in writing any differences they have with
respect to any matter specified in the Notice of Disagreement or (y) the date
any disputed matters are finally resolved in writing by the Arbitrator (as
defined below). During the 45-day period following the delivery of a Notice of
Disagreement, Parent, the Sellers and Buyer shall seek in good faith to resolve
in writing any differences which they may have with respect to any matter
specified in the Notice of Disagreement. At the end of such 45- day period,
Parent, the Sellers and Buyer shall submit to an arbitrator (the "Arbitrator")
for review and resolution any and all matters which remain in dispute. The
Arbitrator shall be Coopers & ▇▇▇▇▇▇▇ LLP, or if such firm is unable or
unwilling to act, such other nationally recognized independent public accounting
firm as shall be appointed by the President of the American Arbitration
Association. The Arbitrator shall render a decision resolving the matters
submitted to the Arbitrator within 30 days of receipt of such submission. The
cost of any arbitration (including the fees of the Arbitrator) pursuant to this
clause shall be borne 50% by Buyer and 50% by the Sellers. The fees and
disbursements of Sellers' independent accountants, counsel and other costs
incurred in connection with their certification of the Closing Date Balance
Sheet shall be borne by the Sellers, and the fees and disbursements of Buyer's
independent accountants, counsel and other costs incurred in connection with
their review of the Closing Date Balance Sheet shall be borne by Buyer.
(c) Payment of the Purchase Price shall be in U.S. dollars, and shall
be made no later than 12:00 noon on the Closing Date by wire transfer of
immediately available funds to the account or accounts of the Sellers at the
bank or banks specified by the Sellers in writing at least two days prior to the
Closing Date.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLERS AND PARENT
The Sellers and Parent, jointly and severally, represent and warrant to
Buyer, both as of the date hereof and as of the Closing Date, except as to any
representation and warranty which indicates that it is being made as of a
specified date, as follows:
2.01. Corporate Power and Authority; Effect of Agreement. Parent and
each Seller are corporations duly organized or incorporated, validly existing
and in good standing under the laws of their respective jurisdiction of
incorporation or organization and have all requisite corporate power and
authority to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance by
Parent and each Seller of this Agreement and the consummation by Parent and each
Seller of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Parent and each Seller. This Agreement
has been duly and validly executed and delivered by Parent and each Seller and
constitutes the valid and binding obligation of Parent and each Seller,
enforceable against Parent and each Seller in accordance with its terms. The
execution, delivery and performance by Parent and each Seller of this Agreement
and the consummation by Parent and each Seller of the transactions contemplated
hereby will not, with or without the giving of notice or the lapse of time, or
both, conflict with or violate (x) any provision of law, rule or regulation to
which Parent, any Seller, any Company or any Subsidiary (as defined in Section
2.03) are subject, (y) any order, judgment or decree applicable to Parent, any
Seller, any Company or any Subsidiary or binding upon the assets or properties
of any Seller, any Company or any Subsidiary, or (z) any provision of the
organizational documents or the by-laws or articles of association of Parent,
any Seller, any Company or any Subsidiary.
2.02. Capitalization; the Shares. (a) The authorized capital stock of
each Company is as set forth in Section 2.02 of the disclosure schedule
delivered by Parent and the Sellers to Buyer in connection herewith (the
"Disclosure Schedule") and, except as set forth on Section 2.02 of the
Disclosure Schedule, all of such shares of the Companies are duly authorized,
issued and outstanding and are owned of record and beneficially by the Sellers.
All of the shares comprising the Shares are validly issued, fully paid and
non-assessable. There are outstanding no securities convertible into,
exchangeable for, or carrying the right to acquire, equity securities of any
Company, or subscriptions, warrants, options, calls, rights or other
arrangements or commitments obligating any Company to issue or dispose of any of
its equity securities or any ownership interest therein.
(b) The Sellers have good and valid title to the Shares, free and
clear of all liens, security interests, pledges, mortgages, rights of first
refusal, options, proxies, voting trusts or other encumbrances ("Encumbrances"),
except, as of the date of this Agreement, as set forth in Section 2.02 of the
Disclosure Schedule. At the Closing, the sale and delivery of the Shares to
Buyer pursuant to Article I hereof will vest in Buyer good and valid title to
the Shares, free and clear of all Encumbrances (other than Encumbrances created
or suffered by Buyer).
2.03. Subsidiaries. (a) Section 2.03 of the Disclosure Schedule sets
forth a list, as of the date hereof, of all direct or indirect subsidiaries of
the Companies (collectively, the "Subsidiaries" or, each individually, a
"Subsidiary"). Except as set forth in Section 2.03 of the Disclosure Schedule,
all of such shares of the Subsidiaries are duly authorized, have been duly
issued and are fully paid and nonassessable, and the Companies own, either
directly or indirectly, beneficially and of record, all of the capital stock of
the Subsidiaries free and clear of any Encumbrances. Except as set forth in
Section 2.03 of the Disclosure Schedule, there are outstanding no securities
convertible into, exchangeable for, or carrying the right to acquire, equity
securities of any Subsidiary, or subscriptions, warrants, options, rights or
other arrangements or commitments obligating any Subsidiary to issue or dispose
of any of its equity securities or any ownership interest therein.
(b) Each of Sim-Tech Management, Simon-Tomen, ▇▇▇▇▇-▇▇▇▇▇, and
▇▇▇▇▇ Ireland is or will be at the Closing adequately capitalized under the laws
of the jurisdiction in which such company is incorporated or organized and the
laws of such jurisdiction do not and will not require any such company to be
recapitalized as of the date hereof or as of the Closing Date or merely as a
result of the passage of time.
2.04. Organization of the Companies and the Subsidiaries. Each Company
and each Subsidiary is a corporation duly organized or incorporated, validly
existing and, in such jurisdictions where such concept is relevant, in good
standing under the laws of the jurisdiction of its incorporation or organization
and has all requisite corporate power and authority to carry on its business as
it is now being conducted. Each Company and each Subsidiary is duly qualified to
do business and is in good standing as a foreign corporation in the
jurisdictions listed on Section 2.04 of the Disclosure Schedule, which
constitute all jurisdictions where the nature of the property owned or leased by
it, or the nature of the business conducted by it, makes such qualification
necessary and the absence of such qualification would not have a material
adverse effect on the business, assets, financial condition or results of
operations of the Companies and the Subsidiaries taken as a whole (a "Material
Adverse Effect"). True and complete copies of the organizational documents and
by-laws of each Company and each Subsidiary have previously been delivered or
made available to Buyer.
2.05. Financial Statements; Undisclosed Liabilities. (a) Parent and
the Sellers have delivered to Buyer (i) an unaudited combined balance sheet of
Telelect and its Subsidiaries as of November 22, 1996 and the related statement
of operations for the 11-month period then ended, (ii) an unaudited consolidated
balance sheet of Simon Aerials and its Subsidiaries as of November 22, 1996 and
the related statements of operations for the 11-month period then ended, (iii)
an unaudited balance sheet of Simon Ireland as of November 22, 1996 and the
related statement of operations for the 11-month period then ended, (iv) the
unaudited balance sheet of ▇▇▇▇▇-▇▇▇▇▇ as of November 22, 1996 and the related
statement of operations for the 11-month period then ended, (v) the unaudited
balance sheet of Sim-Tech Management as of December 31, 1996 and the related
statement of operations for the 12-month period then ended, and (vi) the
unaudited balance sheet of Simon-Tomen as of December 31, 1996 and the related
statement of operations for the 12-month period then ended (collectively, the
"Interim Financial Statements"). Parent and the Sellers have also delivered to
Buyer a combining balance sheet which combines the interim balance sheets for
all Companies and Subsidiaries and eliminates all material transactions among
the Companies and Subsidiaries (the "Interim Combining Balance Sheet").
(b) Parent and the Sellers have delivered to Buyer (i) the audited
combined balance sheets of Telelect and its Subsidiaries as of December 31, 1995
and 1994, and the related combined statements of operations and retained
deficit, and cash flows for the years then ended, including the footnotes
thereto, (ii) the audited consolidated balance sheets of Simon Aerials and its
Subsidiaries as of December 31, 1995 and 1994, and the related consolidated
statements of operations and accumulated deficit, and cash flows for the years
then ended, including the footnotes thereto, (iii) the audited balance sheet of
Simon Ireland as of December 31, 1995 and 1994 and the related statements of
operations and retained deficit, and cash flows for the years then ended,
including the footnotes thereto, and (iv) the audited balance sheet of
▇▇▇▇▇-▇▇▇▇▇ as of December 31, 1995 and 1994 and the related statements of
operations and retained deficit, and cash flows for the years then ended,
including the footnotes thereto (collectively, the "Audited Financial
Statements").
(c) The financial books and records of each Company and each
Subsidiary have been maintained consistent with the individual Company's
standard accounting policies, practices and principles as set forth in Appendix
A (the "Agreed Accounting Principles"). The Audited Financial Statements of
Telelect and Simon Aerials contain such material adjustments to the books and
records of Telelect and Simon Aerials as are necessary for such statements to
have been prepared in accordance with generally accepted accounting principles
in the United States ("US GAAP"). The Interim Financial Statements of Telelect
and Simon Aerials have been prepared on a basis consistent with the Audited
Financial Statements of such Companies, except that such Interim Financial
Statements do not contain a statement of cash flows or footnotes. The Audited
Financial Statements of Simon Ireland contain such material adjustments to the
books and records of Simon Ireland as are necessary for such statements to have
been prepared in accordance with generally accepted accounting principles in
Ireland ("Irish GAAP"). The Interim Financial Statements of Simon Ireland have
been prepared on a basis consistent with the Audited Financial Statements of
such Company, except that the Interim Financial Statements do not contain a
statement of cash flows or footnotes. The Audited Financial Statements of
▇▇▇▇▇-▇▇▇▇▇ contain such material adjustments to the books and records of
▇▇▇▇▇-▇▇▇▇▇ as are necessary for such statements to have been prepared in
accordance with generally accepted accounting principles in Italy ("Italian
GAAP"). The Interim Financial Statements of ▇▇▇▇▇-▇▇▇▇▇ have been prepared on a
basis consistent with the Audited Financial Statements of such Company, except
that the Interim Financial Statements do not contain a statement of cash flows
or footnotes. On the basis of the foregoing, the Interim Financial Statements,
the Interim Combining Balance Sheet and the Audited Financial Statements fairly
present in all material respects the financial position and the results of
operations of the specified Companies and Subsidiaries as of and for the periods
indicated.
(d) Except as disclosed, reflected or reserved against in the Interim
Financial Statements, the Interim Combining Balance Sheet, the Audited Financial
Statements and Sections 2.05, 2.06, 2.10, 2.12, 2.14, 2.16 and 2.23 of the
Disclosure Schedule (other than any cross-references in such Sections to Section
2.08 of the Disclosure Schedule), the Companies and the Subsidiaries do not have
any material liabilities, commitments or obligations (secured or unsecured and
whether accrued, absolute, contingent or otherwise and whether due or to become
due) of a nature required by US GAAP, in the case of Telelect and Simon Aerials,
by Irish GAAP, in the case of Simon Ireland, or by Italian GAAP, in the case of
▇▇▇▇▇-▇▇▇▇▇, to be reflected on a balance sheet or in notes thereto, other than
any liabilities, commitments or obligations incurred after the date of the
Interim Financial Statements in the ordinary course of business.
2.06. Absence of Certain Changes or Events. Except as set forth in
Section 2.06 of the Disclosure Schedule or as permitted or contemplated by this
Agreement, since the date of the Interim Financial Statements, the Companies and
the Subsidiaries have not (a) suffered any damage, destruction or casualty loss
to their physical properties in excess of $200,000; (b) incurred or discharged
any obligation or liability or entered into any other transaction except in the
ordinary course of business; (c) suffered any material adverse change in the
business or financial condition of the Companies and the Subsidiaries taken as a
whole; or (d) increased the rate or terms of compensation payable or to become
payable by the Companies and the Subsidiaries to their directors, officers or
key employees or increased the rate or terms of any bonus, pension or other
employee benefit plan covering any of its directors, officers or key employees,
except in each case increases occurring in the ordinary course of business in
accordance with its customary practices (including normal periodic performance
reviews and related compensation and benefit increases) or as required by any
pre-existing Commitment (as defined in Section 2.08) identified in the
Disclosure Schedule; (e) experienced any labor dispute or disturbance; (f)
entered into any commitment or transaction (including, without limitation, any
borrowing or capital expenditure) other than in the ordinary course of business;
(g) consummated, or agreed to consummate, any sale, lease or other transfer or
disposition of any properties or assets except for the sale of inventory items
in the ordinary course of business and except for the sale of any tangible
personal property that, in the reasonable judgment of the Companies, has become
uneconomic, obsolete or worn out; (h) incurred, assumed or guaranteed any
indebtedness for borrowed money; (i) granted any Encumbrance on any of its
properties or assets; (j) entered into, amended or terminated any contract, or
waived any material rights thereunder except in the ordinary course of business;
(k) made any grant of credit to any customer or distributor on terms or in
amounts materially more favorable than those that have been extended to such
customer or distributor in the past; (l) amended the articles or certificates of
incorporation or by-laws of any Company or any Subsidiary; (m) entered into any
intercompany transactions except in the ordinary course of business consistent
with past practice; or (n) entered into any agreement or commitment to do any of
the foregoing. Buyer acknowledges that any termination of any distributorship
agreements by any distributors who indicate that such termination results from
the identity of Buyer as the purchaser of the Companies and the Subsidiaries
shall not constitute a material adverse change in the business of the Companies
and the Subsidiaries or a Material Adverse Effect, and that such loss in
distributors will not constitute a breach of this Section 2.06.
2.07. Title to Assets. (a) The Companies and the Subsidiaries have
good (and, in the case of real property, marketable) title to all of the assets
and properties which they purport to own (including those reflected on the
Interim Financial Statements, except for assets and properties sold, consumed or
otherwise disposed of in the ordinary course of business since the date of the
Interim Financial Statements) and which are material to the business or
financial condition of the Companies, free and clear of all Encumbrances, except
(i) as set forth in Section 2.07(a) of the Disclosure Schedule, (ii) liens for
taxes not yet due and payable or due but not delinquent or being contested in
good faith by appropriate proceedings and for which reserves have been provided
in accordance with the individual Company's Agreed Accounting Principles, and
(iii) mechanics', materialmans', and other inchoate liens occurring in the
ordinary course of business.
(b) All material property and assets owned or utilized by the
Companies or the Subsidiaries are in good operating condition and repair (except
for ordinary wear and tear), free from any defects (except such minor defects as
do not interfere with the use thereof in the conduct of the normal operations),
have been maintained consistent with the standards generally followed in the
industry and are sufficient to carry on the business of the Companies and the
Subsidiaries as presently conducted. All buildings, plants and other structures
owned or otherwise utilized by the Companies or the Subsidiaries are in good
condition and repair (except for ordinary wear and tear).
(c) Section 2.07(c) of the Disclosure Schedule sets forth all real
property owned, used or occupied by the Companies or any of their Subsidiaries
as of the date hereof (the "Real Property"). No public improvements have been
commenced and to the Sellers' knowledge none are planned which in either case
may result in special assessments against or otherwise materially adversely
affect any Real Property. The Sellers have no notice or knowledge of any (i)
planned or proposed increase in assessed valuations of any Real Property, (ii)
order requiring repair, alteration or correction of any existing condition
affecting any Real Property or the systems or improvements thereat or (iii)
condition or defect which could give rise to an order of the sort referred to in
clause (ii) above.
2.08. Commitments. Section 2.08 of the Disclosure Schedule sets forth,
as of the date hereof, a list of each of the following types of contracts or
agreements, whether written or oral (including any and all amendments thereto),
to which any Company or any Subsidiary is a party or by which any Company or any
Subsidiary is bound (collectively, the "Commitments"):
(i) leases of real property involving payments by any
Company or any Subsidiary of aggregate consideration or other expenditure in
excess of $100,000;
(ii) leases of personal property involving payments by any
Company or any Subsidiary of aggregate consideration or other expenditure in
excess of $100,000;
(iii) purchase commitments for inventory items or supplies
that, together with amounts on hand, constitute in excess of six months normal
usage;
(iv) sales contracts, purchase orders or commitments to
customers or distributors which aggregate in excess of $500,000 to any one
customer or distributor;
(v) agreement, understanding, contract or commitment
(written or oral) with any affiliate or any employee, agent, consultant,
distributor, dealer or franchisee other than those involving in the aggregate
consideration or other expenditure of less than $150,000;
(vi) any collective bargaining agreements with any unions,
guilds, shop committees or other collective bargaining groups;
(vii) loan agreement, promissory note, letter of credit or
other evidence of indebtedness as a signatory, guarantor or otherwise;
(viii) guarantee of the payment or performance of any
person, firm or corporation, agreement to indemnify any person or act as a
surety, or other agreement to be contingently or secondarily liable for the
obligations of any person other than (x) the endorsement of checks in the
ordinary course of business and (y) guarantees or agreements which in the
aggregate do not exceed $50,000;
(ix) contract with any governmental body; and
(x) agreement requiring any Company or any Subsidiary to
assign any interest in any trade secret or proprietary information, license
agreement or agreement prohibiting or restricting any Company or any Subsidiary
from competing in any business or geographical area or soliciting customers or
otherwise restricting it from carrying on its business anywhere in the world.
Neither any Company nor any Subsidiary is in material breach of or default
under any of the Commitments, nor has any event or omission occurred on the part
of any Company or any Subsidiary which through the passage of time or the giving
of notice, or both, would constitute a material breach of or default thereunder
or cause the acceleration of or give rise to the right to accelerate any
Company's or any Subsidiary's obligations thereunder or result in the creation
of any Encumbrance on any of the assets owned, used or occupied by such Company
or such Subsidiary thereunder. To the knowledge of the Sellers, no third party
is in material breach of or default under any Commitment, nor to the knowledge
of the Sellers has any event or omission occurred which, through the passage of
time or the giving of notice, or both, would constitute a material breach of or
default thereunder or give rise to an automatic termination, or the right of
discretionary termination, thereof. Except as set forth in Section 2.08 of the
Disclosure Schedule, the execution, delivery and performance of this Agreement
by Parent and each Seller will not conflict with, or result in the breach of,
termination of, give rise to any lien or constitute a default under, or require
the consent of any other party to, any Commitments to which Parent, a Seller, a
Company, or a Subsidiary is a party or by which Parent, a Seller, a Company, or
a Subsidiary or any of their assets is bound. Parent and the Sellers have
delivered or made available to Buyer true and correct copies of each of the
Commitments, each as amended to date.
2.09. Insurance. Section 2.09 of the Disclosure Schedule sets forth a
complete and accurate list of all policies of fire, liability, product
liability, workers compensation, health and other forms of insurance currently
in effect with respect to the business and properties of the Companies and the
Subsidiaries taken as a whole. All such insurance is in full force and effect,
and no notice of cancellation or termination, or reduction of coverage or
intention to cancel, terminate or reduce coverage, has been received with
respect to any policy for such insurance. Except as set forth in Section 2.09 of
the Disclosure Schedule, the insurance coverage provided by such policies or
insurance will not terminate or lapse by reason of the transactions contemplated
by this Agreement and, following the Closing, the Companies and the Subsidiaries
will continue to be covered under such policies for events occurring prior to
the Closing Date. Except as set forth in Section 2.09 of the Disclosure
Schedule, no such policy provides for or is subject to any currently enforceable
retroactive rate or premium adjustment, loss sharing arrangement or other actual
or contingent liability arising wholly or partially out of events arising prior
to the date hereof. Parent and the Sellers have delivered or made available to
Buyer true and correct copies of all the insurance policies set forth in Section
2.09 of the Disclosure Schedule.
2.10. Litigation. Section 2.10 of the Disclosure Schedule sets forth a
list of all lawsuits, actions or proceedings in any court or before any
governmental authority ("Litigation") pending or, to the knowledge of the
Sellers, threatened in writing against any Seller, the Companies and the
Subsidiaries which (i) relate to the business, properties, assets, liabilities,
employees, agents, consultants, distributors, dealers or franchisees of any
Company or any Subsidiary and which are seeking damages of more than $200,000 or
damages are unspecified, (ii) seek any injunctive relief, (iii) relate to this
Agreement or the transactions contemplated hereby or (iv) litigation or dispute
settled by any Seller, any Company, or any Subsidiary since January 1, 1992
under which any Seller, any Company or any Subsidiary continues to have ongoing
obligations. Except as set forth in Section 2.10 of the Disclosure Schedule, the
Companies or the Subsidiaries are not subject to any outstanding orders,
rulings, judgments or decrees of any court or governmental authority.
2.11. Compliance with Law; Licenses, Permits. Except as set forth in
Section 2.11 of the Disclosure Schedule, to the knowledge of the Sellers, the
Companies and the Subsidiaries are in compliance in all material respects with
all applicable laws, rules and regulations currently in effect. The Companies
and the Subsidiaries have all material governmental permits, licenses and
authorizations necessary for the conduct of their businesses as presently
conducted.
2.12. Employee Benefit Plans. (a) Section 2.12 of the Disclosure
Schedule lists all material Company Benefit Plans and Benefit Arrangements (as
defined in Sections 9.01(c) and (d), respectively). True and complete copies
thereof, and of all material agreements relating to their administration have
been delivered or made available to Buyer; the terms of oral agreements have
been accurately recorded in a writing delivered or made available to Buyer.
(b) With respect to each of the Company Benefit Plans intended to
qualify under Section 401(a) of the Internal Revenue Code of 1986, as amended
(the "Code"), except as set forth in Section 2.12 of the Disclosure Schedule,
(i) a favorable determination letter has been issued by the Internal Revenue
Service (the "IRS") with respect to the qualification of such Plan as of the
date set forth on Section 2.12 of the Disclosure Schedule, and either the
remedial amendment period under Section 401(b) of the Code and the regulations
thereunder has not yet expired with respect to amendments to the Plan necessary
to maintain the Plan's qualification under Section 401(a) of the Code or the
Sellers and the Companies have taken timely action prior to the expiration of
the remedial amendment period to maintain that qualification, (ii) there have
been no prohibited transactions (within the meaning of Section 406 of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
Section 4975 of the Code) for which no exemption exists under Section 408 of
ERISA or Section 4975 of the Code and for which there is any material liability
or civil penalty assessed pursuant to Section 502(i) of ERISA or material taxes
imposed by Section 4975 of the Code, and (iii) none of the Company Benefit Plans
(other than the Simon Aerials Limited Pension Life and Assurance Scheme and the
Simon Aerials Executive Benefits Plan), is a "defined benefit plan" within the
meaning of Section 3(35) of ERISA or is subject to the "minimum funding
standards" of Section 412 of the Code or the provisions of Title IV of ERISA.
For the avoidance of doubt, the Simon Ireland Pension and Life Assurance Scheme,
the Simon Ireland Executive Benefits Plan or the Simon Ireland Disability Plan
are not required to qualify under Section 401(a) of the Code.
(c) Except as set forth in Section 2.12 of the Disclosure
Schedule, the Companies' Benefit Plans and the Benefit Arrangements have been
maintained in accordance in all material respects with their terms and all
provisions of applicable law.
(d) Neither the Companies nor the Subsidiaries have any obligation
to contribute to a "multiemployer plan" as defined in Section 3(37) of ERISA
with respect to any Employee (as defined in Section 9.01(b)). For the avoidance
of doubt, the Simon Ireland Employee Benefit Plans are not subject to Section
3(37) of ERISA.
(e) Except as set forth on Section 2.12 of the Disclosure
Schedule, the Sellers, the Companies and the Subsidiaries have paid all amounts
required, if any, under applicable law or any Company Benefit Plans and Benefit
Arrangements or any agreement relating to a Company Benefit Plan or Benefit
Arrangement to which it is a party, to be paid as contributions to or benefits
under any Company Benefit Plan or Benefit Arrangement as of the date hereof
(except for benefits payable on claims under Company Benefit Plans or Benefit
Arrangements that are subject to review in the ordinary course of administration
thereof).
(f) The Sellers and the Companies have delivered or made available
to Buyer or given Buyer access to true, correct and complete copies of (A) the
latest plan documents, amendments thereto and Summary Plan Description and any
modifications thereto for each Company Benefit Plan and Benefit Arrangement
requiring same under ERISA; and (B) the most recent Form 5500 and/or Form 990
series filing (including required schedules and financial statements) for each
Company Benefit Plan and Benefit Arrangement required to file such form. None of
Sellers, the Companies and the Subsidiaries nor any officer, employee
representative or agent thereof, has been authorized to make any written or oral
representations or statements to any current or former employees, dependents,
participants or beneficiaries or other persons which are inconsistent in any
material manner with the provisions of these documents.
(g) With respect to any of the Company Benefit Plans and Benefit
Arrangements which are "group health plans" under Section 4980B of the Code and
Section 607(l) of ERISA and related regulations (relating to the benefit
continuation rights imposed by the Consolidated Omnibus Budget Reconciliation
Act of 1986 ("COBRA"), as amended), there has been timely compliance in all
material respects with all requirements imposed by COBRA, as and when applicable
to such plans, so that Sellers, the Companies and the Subsidiaries have no (or
will not incur any) material loss, assessment, penalty, loss of federal income
tax deduction or other sanction arising out of or in respect of any failure to
comply with any COBRA benefit continuation requirement, which is capable of
being assessed or asserted directly or indirectly against Sellers, the Companies
and the Subsidiaries or other member of their corporate control group, with
respect to any such plan. For the avoidance of doubt, the Simon Ireland Employee
Benefit Plans are not required to be administered, and have not been
administered, in accordance with COBRA.
(h) Except for the Simon Retirement Plan (as defined below) and
other defined benefit plans described in section 2.12(b)(iii) or as set forth in
Section 2.12 of the Disclosure Schedule or as required by law, the Company
Benefit Plans and Benefit Arrangements do not provide for any benefits to or on
behalf of persons who have retired or may in the future retire from employment
with the Business, or their dependents and beneficiaries.
(i) No liabilities of the Companies or the Subsidiaries will
result with respect to the Company Benefit Plans or Benefit Arrangements solely
as a result of the transactions contemplated in this Agreement.
2.13. Consents. Except as set forth in Section 2.13 of the Disclosure
Schedule, no consent, approval or authorization of, or exemption by, or filing
with, any governmental authority (other than under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act of 1976, as amended, and the rules and regulations
thereunder (the "HSR Act")) or any third party is required to be obtained or
made by any Seller in connection with the execution, delivery and performance by
the Sellers of this Agreement or the taking by any Seller of any other action
contemplated hereby.
2.14. Taxes. (a) Except as set forth in Section 2.14 of the Disclosure
Schedule, (i) all federal, state, local and material foreign income and other
material tax returns required to be filed with respect to the Companies and the
Subsidiaries with respect to the jurisdictions set forth in Section 2.14(a)(i)
of the Disclosure Schedule have been filed in a timely manner (taking into
account all extensions of due dates) and all taxes shown as due thereon have
been paid, (ii) there are no Encumbrances for unpaid taxes (other than taxes not
yet due and payable) upon the assets of any of the Companies or the
Subsidiaries, (iii) no claims or deficiencies for income or franchise taxes have
been asserted or assessed in writing against any of the Companies or the
Subsidiaries which remain unpaid, (iv) no waivers of statues of limitation are
in effect in respect of federal income taxes of any of the Companies or the
Subsidiaries, (v) each Company and Subsidiary has withheld and paid all taxes
required to have been withheld and paid by it in connection with payments or
distributions to its employees or other recipients and (vi) none of the
Companies has, with respect to any assets or property held, acquired or to be
acquired by it, filed a consent to the application of Section 341(f) of the
Code, as in effect during the relevant period.
(b) Section 2.14 of the Disclosure Schedule lists all federal,
state, local and foreign income tax returns filed with respect to the Companies
and the Subsidiaries for open taxable periods and indicates those returns that
are currently the subject of an audit.
2.15. Fees. Except for the fees payable to Gleacher NatWest Inc. by
Parent and the Sellers, neither the Parent, any Seller, any Company nor any
Subsidiary has paid or become obligated to pay any fee or commission to any
broker, finder or intermediary in connection with the transactions contemplated
hereby. Buyer, the Companies and the Subsidiaries shall not have any liability
for any fees or commission described in, or of the type described in, the
preceding sentence in connection with transactions contemplated hereby.
2.16. Environmental Matters. (a) Except as disclosed in Section 2.16
of the Disclosure Schedule, to the knowledge of the Sellers, (i) the Real
Property, whether owned or leased, whether used for manufacturing, sales or
otherwise, are in compliance in all material respects with all applicable
Environmental Laws (as hereinafter defined), (ii) each Seller, Company and
Subsidiary has obtained, and is in compliance in all material respects with, all
Environmental Permits (as hereinafter defined) required for the conduct of its
business as of the date hereof under applicable Environmental Laws, (iii) there
is no condition with respect to any of the Facilities which would reasonably be
expected to subject the Buyer, the Companies or the Subsidiaries to fines,
penalties or enforcement actions due to violations of Environmental Laws or
Environmental Permits or which would reasonably be expected to result in any
liability to Buyer under any requirements of Environmental Laws or Environmental
Permits, (iv) there are no lawsuits, orders, consent decrees, administrative
enforcement actions, environmental cleanup proceedings or notices of violation
pending or, to the knowledge of the Sellers, threatened, with respect to
compliance or in connection with Environmental Laws affecting the business of
any Company or any Subsidiary, (v) none of the Real Property has been placed on
or is proposed to be placed on the National Priorities List ("NPL"), the
Comprehensive Environmental Response Compensation and Liability System
("CERCLIS") or state or foreign equivalents of such lists, including laws which
establish registers of historically contaminated sites and (vi) none of the Real
Property has above or underground storage tanks which are in violation of any
Environmental Laws, nor has there been a Release of Hazardous Substances (each
as hereinafter defined) from any such tanks which would reasonably be expected
to result in any liability to Buyer.
(b) Except as disclosed in Section 2.16 of the Disclosure
Schedule, to the knowledge of the Sellers, there are no facts or circumstances
that would prevent the execution, delivery and performance of this Agreement
under any Environmental Laws or Environmental Permits.
(c) The Sellers and Buyer agree that the only representations and
warranties made herein with respect to any environmental, health or safety
matters (including, without limitation, any arising under Environmental Laws)
are those contained in this Section 2.16, and that no other representation or
warranty contained in this Agreement shall apply to any such environmental,
health or safety matters.
(d) For purposes of this Agreement, the following
definitions shall apply:
(i) "Environmental Laws'" shall mean all applicable laws, foreign
and domestic statutes, ordinances, rules, regulations, orders, and
consent decrees, of any governmental authority, pertaining to health,
protection of the environment, natural resources, wildlife, waste
management, and regulation of activities involving Hazardous
Substances, as that term is defined in this Agreement, including,
without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), 42 U.S.C. 9601, et seq.,
the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. 6901 et
seq., the Federal Water Pollution Control Act as amended by the Clean
Water Act ("CWA"), 33 U.S.C. 1251 et seq.; the Clean Air Act ("CAA"),
42 U.S.C. 7401 et seq., the Toxic Substances Control Act ("TSCA"), 15
U.S.C. 2601 et seq., the Hazardous Materials Transportation Act
("HMTA"), 49 U.S.C. 5101 et seq., and the Occupational Safety and
Health Act, 29 U.S.C., 651 et seq., and the regulations promulgated
thereunder, in each case as amended as of the date hereof.
(ii) "Hazardous Substances" shall mean solid or hazardous waste,
toxic substance, hazardous chemical, pollutant, contaminant,
radioactive substance, or other material of whatever kind that is
regulated by Environmental Laws.
(iii) "Release" shall mean any spilling, emitting, leaking,
pumping, injecting, depositing, disposing, discharging, dispersing,
leaching or migrating into the environment of any Hazardous Substance
whether through the air, soil, surface water, groundwater or other
medium.
(iv) "Environmental Permit" shall mean any approval, license,
order, permission, contract or similar authorization of, with or by
any governmental authority required for the ownership and operation of
any of the Facilities under Environmental Laws.
(v) "Facilities" shall mean the properties and assets to be
acquired, by Buyer pursuant to this Agreement, including, without
limitation, properties owned by the Companies and the Subsidiaries,
foreign and domestic real or personal property, whether owned, leased,
or operated by Sellers, the Companies and the Subsidiaries, in each
case as of the Closing Date.
(vi) "Environmental Losses" shall mean any and all costs
associated with any actions, claims, lawsuits, orders, consent
decrees, enforcement actions, damages (excluding consequential
damages), defenses, demands, disbursements, expenses, fines,
judgments, liabilities, liens, obligations, penalties or proceedings,
including reasonable attorneys' and consultants' fees in connection
with any actions required under any Environmental Law, in each case as
calculated net of insurance proceeds and indemnification and other
third-party payments. In connection with any CERCLA proceedings or
response actions, costs shall include reasonable fees for attorneys,
consultants, engineers, contractors and experts, in connection with
the investigation, cleanup or monitoring of any site, but only to the
extent that such costs are consistent with the National Contingency
Plan, 40 C.F.R. 300 et seq., as amended. In no event shall
Environmental Losses include any costs or liabilities arising from, in
respect of, incurred as a consequence of or in connection with the
transport or disposal of Hazardous Substances, after the Closing Date,
to or at any offsite location by or on behalf of the Buyer, the
Companies or the Subsidiaries.
2.17. Labor Matters. Except as set forth in Section 2.17 of the
Disclosure Schedule, since January 1, 1994, neither any Company nor any
Subsidiary has experienced any work stoppage due to labor disagreements, any
material labor dispute, or, to the knowledge of the Sellers, any union
organization attempt in connection with its business. Except as set forth in
Section 2.17 of the Disclosure Schedule, (a) there is no labor strike, written
request for representation, slowdown or stoppage actually pending or, to the
knowledge of the Sellers, threatened against any Company or any Subsidiary; and
(b) there are no administrative charges or court complaints against any Company
or any Subsidiary concerning alleged employment discrimination or other
employment related matters pending or, to the knowledge of the Sellers,
threatened before the U.S. Equal Employment Opportunity Commission or any
government entity. Except as set forth on Section 2.17 of the Disclosure
Schedule, there is not pending as of the date hereof any complaint against any
Company or any Subsidiary issued by or pending before the National Labor
Relations Board or any comparable foreign governmental body.
2.18. Affiliates' Relationships to the Companies. Except as set forth
in the Interim Financial Statements, the Audited Financial Statements or Section
2.18 of the Disclosure Schedule, the Companies and the Subsidiaries do not have
any outstanding contract, agreement or other arrangement with Parent or any
Seller or any of their affiliates, which will continue after the Closing.
2.19. Patents and Trademarks. The Companies and the Subsidiaries have,
or have valid, legal rights to use, all patents, patent applications,
trademarks, trademark applications, service marks, trade names, copyrights,
licenses and rights (collectively, the "Intellectual Property Rights") which are
necessary to their respective businesses. Section 2.19 of the Disclosure
Schedule sets forth a list of all inventions which are the subject of issued
letters patent or an application therefor and all trade and service marks which
have been registered or for which an application for registration is pending, in
each case which are owned and used or held for use exclusively by the Companies
and the Subsidiaries (the "Patent Rights"), specifying as to each, as
applicable: (i) the patent number or description of trade or service ▇▇▇▇; (ii)
the jurisdictions by or in which such Patent Right has been issued or registered
or in which an application for such issuance or registration has been filed,
including the respective registration or application numbers; and (iii) material
licenses, sublicenses and other agreements to which any Company or any
Subsidiary is a party and pursuant to which any person is authorized to use such
Patent Right. Except as set forth on Section 2.19 of the Disclosure Schedule,
neither the Companies nor the Subsidiaries (i) is a defendant in any claim,
suit, action or proceeding relating to their respective businesses which
involves a claim of infringement of any patents, trademarks or service marks,
(ii) has any knowledge of any existing infringement by another person of any of
the Patent Rights belonging to such Companies or such Subsidiaries or (iii) has
received written notice of the infringement by any Company or any Subsidiary of
any infringement of the patent, trademark, copyright or other intellectual
property rights of a third party, except such existing infringements, or claims,
suits, actions or proceedings the adverse determination of which would not alter
in any material respect the manner in which any Company or any Subsidiary
currently conducts its business or manufactures its products. Except as
disclosed on Section 2.19 of the Disclosure Schedule, no Patent Right is subject
to any outstanding order, judgment, decree, stipulation or agreement restricting
the use thereof by the Companies or the Subsidiaries or restricting the
licensing thereof by the Companies or the Subsidiaries to any person.
2.20 Conflicts of Interest. (a) To the knowledge of the Sellers, no
officer or director of Parent, any Seller, any Company or any Subsidiary has or
claims to have (i) any interest in the property, real or personal, tangible or
intangible, including, without limitation, intangibles, licenses, inventions,
technology, processes, designs, computer programs, know-how and formulae used in
the business of any Company or any Subsidiary (ii) any contract, commitment,
arrangement or understanding with any Seller, any Company or any Subsidiary,
except (A) to the extent applicable, as a shareholder of Parent, any Seller, any
Company or any Subsidiary, (B) as set forth in Sections 2.08(v) or 2.20 of the
Disclosure Schedule or (C) for interests which employees may have in technology,
processes, designs and know-how under applicable law except to the extent such
interests may be modified by binding agreements existing as of the date of this
Agreement.
(b) Except as set forth on Section 2.20 of the Disclosure
Schedule, to the knowledge of the Sellers, no officer or director of Parent, any
Seller, any Company or any Subsidiary has any ownership or stock interest in any
other enterprise, firm, corporation, trust or any other entity which is engaged
in any line or lines of business which are the same as, or competitive with, the
line or lines of business of any Company or any Subsidiary. For purposes of this
representation, ownership of not more than 10% of the voting stock of any
publicly held company whose stock is listed on any recognized securities
exchange or traded over the counter shall be disregarded.
2.21. Accounts Receivable; Inventory. (a) All accounts receivable of
each Company and each Subsidiary are bona fide accounts receivable and represent
sales actually made in the ordinary course of business. There has not been any
material adverse change in the collectability of accounts receivable of each
Company and each Subsidiary since the date of the Interim Financial Statements.
(b) Except as set forth in Section 2.21(b) of the Disclosure
Schedule the inventory of the Companies and the Subsidiaries is of a quality
usable in the ordinary course of business, and in amounts usable consistent with
past practices, of the Companies and the Subsidiaries in all material respects,
except for obsolete, damaged, defective or otherwise unsalable items as to which
a provision, determined in a manner consistent with the US GAAP, Irish GAAP or
Italian GAAP, as applicable, as amplified by the Agreed Accounting Principles,
has been made on the books of the Companies and/or the Subsidiaries, as the case
may be. The value of all inventory items, including finished goods,
work-in-process and raw materials, has been recorded on the books of the
Companies and the Subsidiaries in the manner set forth in the US GAAP, Irish
GAAP or Italian GAAP, as applicable, as amplified by the Agreed Accounting
Principles.
2.22. Misleading Statements. To the knowledge of the Sellers, no
representation or warranty by Parent, any Seller or any Company contained in
this Agreement, and no statement contained in the Disclosure Schedule (including
any supplement or amendment thereto) contains any untrue statement of a material
fact.
2.23. Products Liability. (a) The Sellers and Parent are not aware of
any facts that indicate that the reserves for product liability claims of the
Companies and the Subsidiaries in the aggregate reflected in the Audited
Financial Statements or the Interim Financial Statements are understated based
upon the Companies' and the Subsidiaries' historical method of establishing such
reserves.
(b) To the knowledge of the Sellers, Section 2.23 of the
Disclosure Schedule contains, in all material respects, a list, as of February
11, 1997, of all the Companies or the Subsidiaries pending and threatened
product liability litigation and written product liability claims, except for
immaterial claims as to which such parties maintain no records.
2.24. Disclaimer. EXCEPT AS SET FORTH IN THIS ARTICLE II, THE SELLERS
MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED (INCLUDING THOSE REFERRED
TO IN SECTION 2-312 OF THE NEW YORK STATE UNIFORM COMMERCIAL CODE OR IN ANY
STATUTE APPLICABLE TO REAL PROPERTY).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to the Parent and the Sellers as of
the date hereof and as of the Closing Date, except as to any representation and
warranty that indicates it is being made as of a specified date, as follows:
3.01. Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, and has all requisite corporate power and authority to carry on
its business as it is now being conducted, and to execute, deliver and perform
this Agreement and to consummate the transactions contemplated hereby.
3.02. Corporate Power and Authority; Effect of Agreement. The
execution, delivery and performance by Buyer of this Agreement and the
consummation by Buyer of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Buyer. This
Agreement has been duly and validly executed and delivered by Buyer and
constitutes the valid and binding obligation of Buyer, enforceable against Buyer
in accordance with its terms. The execution, delivery and performance by Buyer
of this Agreement and the consummation by Buyer of the transactions contemplated
hereby will not, with or without the giving of notice or the lapse of time, or
both, (i) violate any provision of law, rule or regulation to which Buyer is
subject, (ii) violate any order, judgment or decree applicable to Buyer or (iii)
violate any provision of the Certificate of Incorporation or the By-laws of
Buyer; except, in each case, for violations which in the aggregate would not
materially hinder or impair the consummation of the transactions contemplated
hereby.
3.03. Consents. Except under the HSR Act, no consent, approval or
authorization of, or exemption by, or filing with, any governmental authority or
any third party is required to be obtained or made by Buyer in connection with
the execution, delivery and performance by Buyer of this Agreement, or the
taking by Buyer of any other action contemplated hereby.
3.04. Availability of Funds. Buyer has available and will have
available on the Closing Date sufficient funds to enable it to consummate the
transactions contemplated by this Agreement.
3.05. Litigation. There is no Litigation pending or, to Buyer's
knowledge, threatened (i) against Buyer or any of its affiliates with respect to
which there is a reasonable likelihood of a determination which would have a
material adverse effect on the ability of Buyer to perform its obligations under
this Agreement, or (ii) which seeks to enjoin or obtain damages in respect of
the consummation of the transactions contemplated hereby. Neither Buyer nor any
of its affiliates is subject to any outstanding orders, rulings, judgments or
decrees which would have a material adverse effect on the ability of Buyer to
perform its obligations under this Agreement.
3.06. Purchase for Investment. Buyer is purchasing the Shares for
investment and not with a view to any public resale or other distribution
thereof and has no present intention or plan of distributing or selling to
others any such interest or granting any participation therein. Buyer
acknowledges that (i) the Shares have not been registered under the Securities
Act or under any state or foreign securities laws and (ii) it has received, or
has had access to, all information which it considers necessary or advisable to
enable it to make a decision concerning its purchase of the Shares.
3.07. Disclaimer. EXCEPT AS SET FORTH IN THIS ARTICLE III, BUYER MAKES
NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED (INCLUDING THOSE REFERRED TO
IN SECTION 2-312 OF THE NEW YORK STATE UNIFORM COMMERCIAL CODE OR IN ANY STATUTE
APPLICABLE TO REAL PROPERTY).
ARTICLE IV
COVENANTS OF THE SELLERS AND PARENT
The Sellers and Parent, jointly and severally, hereby covenant and agree
with Buyer as follows:
4.01. Cooperation by the Sellers. From the date hereof and prior to
the Closing, the Sellers and Parent will use their reasonable efforts, and will
cooperate with Buyer, to: (i) secure all necessary consents, approvals,
authorizations, exemptions and waivers from, and make or cause to be made all
necessary filings with, third parties (including pursuant to the HSR Act) as
shall be required in order to enable the Sellers and Parent to effect the
transactions contemplated hereby; (ii) defend any lawsuits or other legal
proceedings (whether judicial or administrative) challenging this Agreement or
the consummation of the transactions contemplated hereby, including seeking to
have any stay or temporary restraining order entered by any court or other
governmental authority vacated or reversed; (iii) fulfill or obtain the
fulfillment of all other conditions to Closing; and (iv) otherwise cause the
consummation of such transactions in accordance with the terms and conditions
hereof.
4.02. Conduct of Business. (a) Except as may be otherwise expressly
contemplated by this Agreement or required by any of the documents listed in the
Disclosure Schedule or except as Buyer may otherwise consent to in writing
(which consent shall not be unreasonably withheld), from the date hereof and
prior to the Closing, Parent and the Sellers will cause the Companies and the
Subsidiaries to (i) operate their businesses only in the ordinary course
consistent with past practice; (ii) use their reasonable efforts to preserve
intact their business organizations; (iii) use their reasonable efforts to
maintain their properties, machinery and equipment in sufficient operating
condition and repair to enable them to operate their businesses in all material
respects in the manner in which the businesses are currently operated, except
for substantial maintenance required by reason of fire, flood, earthquake or
other acts of God; (iv) use their reasonable efforts to continue all material
existing insurance policies (or comparable insurance) of or relating to the
Companies and the Subsidiaries in full force and effect; (v) use their
reasonable efforts to keep available until the Closing the services of their
present officers, employees and agents (as a group); (vi) subject to Section
2.06, use their reasonable efforts to preserve their relationship with their
material suppliers, customers, licensors and licensees and others having
material business dealings with the Companies such that their businesses will
not be materially impaired; (vii) not amend the organizational documents or
by-laws of any Company or any Subsidiary, except as required by law; (viii) not
sell, assign, voluntarily encumber, grant a security interest in or license with
respect to, or dispose of, any of their respective assets or properties,
tangible or intangible, having a fair market value of at least $50,000
individually or $200,000 in the aggregate, or incur any material liabilities
(including, without limitation, liabilities with respect to capital leases or
guarantees thereof not exceeding $200,000 in the aggregate), except for sales
and dispositions made or liabilities incurred, including the creation of
purchase money security interests, in the ordinary course of business; (ix) not
declare, set aside or pay any dividends or other distributions in respect of its
capital stock or redeem, purchase or otherwise acquire any of its capital stock,
provided, however, the foregoing shall not be deemed to prohibit the cash
management practices, including the payment of intercompany account balances, of
the Sellers, the Companies and the Subsidiaries conducted in accordance with
past practices in the ordinary course of business, including, for the avoidance
of doubt, the offset of cash book balances in the Disbursement Accounts (as
defined in Section 6.05(a)) carried on the books and records of the Companies
and Subsidiaries against the intercompany loan account with that Company or
Subsidiary and (x) not discount or factor receivables at levels in excess of
historical levels or auction or sell assets below cost other than in the
ordinary course of business consistent with past practice.
4.03. Access. From the date hereof and prior to the Closing, Parent
and the Sellers shall provide Buyer with such information as Buyer may from time
to time reasonably request with respect to the Companies and the Subsidiaries
and shall provide Buyer and its representatives reasonable access during regular
business hours and upon reasonable notice to the management, properties, books
and records of the Companies and the Subsidiaries as Buyer may from time to time
reasonably request; provided that Parent and Sellers shall not be obligated to
provide Buyer with any information relating to trade secrets or which would
violate any law, rule or regulation or term of any Commitment. If the provision
of such access would adversely affect the ability of the Sellers or any of their
affiliates (including the Companies and the Subsidiaries) to assert
attorney-client, attorney work product or other similar privilege, Parent and
the Sellers will cooperate in good faith with Buyer to provide Buyer with as
much access as possible without adversely affecting the attorney-client,
attorney work product or other similar privilege and will provide Buyer with
access to the attorneys handling such matter for the Companies and the
Subsidiaries who will be instructed by Parent and the Sellers to cooperate fully
with Buyer. Any disclosure whatsoever during such investigation by Buyer shall
not constitute an enlargement of or additional representations or warranties of
Parent and the Sellers beyond those specifically set forth in this Agreement.
All such information and access, any information included in the Disclosure
Schedule and any information and access relating to the Parent provided to
Buyer, shall be subject to the terms and conditions of the letter agreement
dated October 11, 1996 (the "Confidentiality Agreement").
4.04. Further Assurances. At any time or from time to time after the
Closing, Parent and the Sellers shall, at the request of Buyer and at Buyer's
expense, (i) execute and deliver any further instruments or documents and take
all such further action as Buyer may reasonably request in order to effectuate
the consummation of the transactions contemplated hereby and (ii) cooperate with
Buyer in order to afford Buyer the benefit of all insurance policies covering
the Companies and the Subsidiaries for periods prior to the Closing Date.
4.05. Covenant Not to Compete. (a) For a period of eight years from
and after the Closing Date, Parent and the Sellers will not, and will cause
their subsidiaries and affiliates, not to, (i) directly or indirectly, engage in
any business, activity or operation competitive with the current business of the
Companies and the Subsidiaries, (ii) manufacture, market or sell anywhere in the
world any products currently being manufactured, marketed or sold by the
Companies or the Subsidiaries or any product presently under development by the
Companies or the Subsidiaries (together with (i), the "Restricted Business") or
(iii) directly or indirectly, induce, solicit, aid or assist any other person to
induce or solicit, employees, salespersons, agents, consultants, distributors,
representatives, advisors, customers or suppliers of such business to terminate,
curtail or otherwise limit their employment or business relationships with the
business of the Companies or the Subsidiaries; provided, however, that the
restriction set forth in this sentence shall not apply to and the definition of
Restricted Business shall not include (x) the ownership by Parent and the
Sellers of up to 8% of the outstanding equity interests of any publicly traded
company; provided that Parent and the Sellers (A) do not actively participate in
the operation or management of such publicly traded company and (B) shall not
(1) transfer to such company any proprietary information exclusive to the
Restricted Business of the Companies and the Subsidiaries or (2) transfer to
such company the right to operate under the name "Simon", or (y) the business
and operations of Simon Ladder Towers, Inc., a Pennsylvania corporation ("Simon
LTI"), Simon Duplex, Inc., an Ohio corporation ("Simon Duplex"), or Simon (UK)
1995 Limited, a corporation incorporated under the laws of England and operating
through Simon Access (UK) Limited ("Simon UK"), as conducted as of the Closing
Date. A general description of the businesses conducted by Simon LTI, Simon
Duplex and Simon (UK) are set forth in Section 4.05(a) of the Disclosure
Schedule.
(b) Notwithstanding the foregoing, Parent and/or the Sellers shall
be permitted to acquire, and thereafter to own and operate, any business that
includes the Restricted Business, provided, in each such case, that for the last
full fiscal year and any partial fiscal year of such acquired business preceding
such acquisition, and at all times during Parent's or any Seller's ownership
thereof, such acquired business derives not more than 10% of its revenues from
the Restricted Business; provided, further, however, that Parent and the Sellers
shall not (i) transfer to such acquired Restricted Business any proprietary
information exclusive to the Restricted Business of the Companies and the
Subsidiaries or (ii) operate the acquired Restricted Business with or under the
Name "Simon".
(c) The provisions of this Section 4.05 shall not bind or apply to
any subsidiary of Parent or any Seller that is sold to any person other than an
affiliate of Parent or any Seller, nor shall they bind or apply to any
non-affiliate acquiror of any such subsidiary or of any assets of Parent and/or
any Seller or of any of their subsidiaries; provided, however, that Parent and
the Sellers shall not (i) transfer to such non-affiliate acquirer any
proprietary information exclusive to the Restricted Business of the Companies
and the Subsidiaries or (ii) permit such non-affiliate acquirer to operate the
Restricted Business of the acquired subsidiary, other than in the case of Simon
LTI, Simon Duplex and Simon (UK) with respect to their businesses as conducted
on the Closing Date, with or under the Name "Simon."
4.06. Stockholders' Meetings. Parent shall call, give notice of and
convene and hold a meeting of its stockholders to be held as promptly as
practicable after receipt of approval or termination of the waiting period under
the HSR Act for the purpose of voting upon this Agreement and the transactions
contemplated hereby. Parent will, through its Boards of Directors, recommend to
its stockholders approval of this Agreement and the transactions contemplated
hereby and will use all reasonable efforts to solicit from its stockholders
proxies in favor of this Agreement and the transactions contemplated hereby,
subject to the determination by the Board of Directors of Parent, taking into
account the written advice of its counsel, that recommending approval of such
matters would not be inconsistent with the fiduciary obligations of the Board of
Directors; provided, however, that if the Board of Directors of Parent does not
recommend, or withdraws its recommendation of, approval of this Agreement and
the transactions contemplated hereby to the stockholders of Parent other than as
a result of a breach by Buyer of any of its obligations hereunder, and Parent's
stockholders do not approve the Agreement and the transactions contemplated
hereby, Buyer shall be entitled to reimbursement from Parent and the Sellers of
Buyer's reasonable out-of-pocket costs and expenses, including, without
limitation, attorney's fees and disbursements, accountant's fees and
disbursements, financing commitment fees and expenses and out-of-pocket costs
and expenses incurred by it in connection with this Agreement and the
transactions contemplated hereby, including, without limitation, any financing
by Buyer related thereto.
4.07. No Solicitation. (a) Parent and the Sellers shall not, nor shall
they permit any of their subsidiaries, including, without limitation, the
Companies and the Subsidiaries, to, and shall not authorize or permit any
officer, director or employee of, or any investment banker, attorney or other
advisor or representative of, Parent or the Sellers or any of their subsidiaries
to, (i) solicit, initiate, or encourage the submission of any proposal to
acquire all or any of the Shares or a material portion of the assets of any
Company or Subsidiary (an "Acquisition Proposal") or (ii) participate, directly
or indirectly, in any discussions or negotiations regarding, or furnish to any
person any information with respect to, or take any other action to facilitate
any inquiries or the making of any proposal that constitutes, or may reasonably
be expected to lead to, any Acquisition Proposal; provided, however, that prior
to the Closing, to the extent required by the fiduciary obligations of the Board
of Directors, determined taking into account the written advice of its counsel,
Parent or any Seller may, in response to an unsolicited, bona fide written
Acquisition Proposal, participate in discussions or negotiations with, or
furnish information with respect to the Companies and the Subsidiaries pursuant
to a customary confidentiality agreement (as determined by Parent's counsel and
reasonably acceptable to Buyer) to, any person. Parent and the Seller shall (i)
promptly inform Buyer of their receipt of any written Acquisition Proposal and
the identity of the person making such proposal, (ii) provide Buyer with a copy
of such Acquisition Proposal, unless, based on the written advice of its
counsel, the Board determines it would be a breach of its fiduciary obligations
to provide a copy thereof to Buyer, and (iii) keep Buyer fully informed of the
status of any such Acquisition Proposal.
ARTICLE V
COVENANTS OF BUYER
Buyer hereby covenants and agrees with Parent and the Sellers as follows:
5.01. Cooperation by Buyer. From the date hereof and prior to the
Closing, Buyer will use its reasonable efforts, and will cooperate with Parent
and the Sellers, to: (i) secure all necessary consents, approvals,
authorizations, exemptions and waivers from, and make or cause to be made all
necessary filings with, third parties (including pursuant to the HSR Act) as
shall be required in order to enable Buyer to effect the transactions
contemplated hereby; (ii) defend any lawsuits or other legal proceedings
(whether judicial or administrative) challenging this Agreement or the
consummation of the transactions contemplated hereby, including seeking to have
any stay or temporary restraining order entered by any court or other
governmental authority vacated or reversed; (iii) fulfill or obtain the
fulfillment of all other conditions to Closing; and (iv) otherwise cause the
consummation of such transactions in accordance with the terms and conditions
hereof.
5.02. Books and Records; Personnel. For a period of seven years from
the Closing Date:
(a) Buyer shall not, and shall cause the Companies and the
Subsidiaries not to, dispose of or destroy any of the books and records of the
Companies or the Subsidiaries relating to periods prior to the Closing ("Books
and Records") without first offering to turn over possession thereof to Parent
and the Sellers by written notice to Parent and the Sellers at least 30 days
prior to the proposed date of such disposition or destruction.
(b) Buyer shall, and shall cause the Companies and the
Subsidiaries to, allow Parent and the Sellers and their agents access to all
Books and Records during normal working hours at Buyer's principal place of
business or at any location where any Books and Records are stored, and Parent
and the Sellers shall have the right, at their own expense, to make copies of
any Books and Records; provided, however, that any such access or copying shall
be had or done in such a manner so as not to interfere with the normal conduct
of business of Buyer, any Company or any Subsidiary.
(c) Buyer shall, and shall cause the Companies and the
Subsidiaries to, make available to Parent and the Sellers upon reasonable
written request (i) copies of any Books and Records, (ii) personnel of Buyer,
any Company or any Subsidiary to assist Parent and the Sellers in locating and
obtaining any Books and Records at such times as Buyer shall reasonably
determine, and (iii) any personnel of Buyer, any Company or any Subsidiary whose
assistance or participation is reasonably required by Parent and the Sellers or
any of their affiliates in anticipation of, or preparation for, existing or
future Litigation or other such matters in which Parent and the Sellers or any
of their affiliates are involved at such times as Buyer shall reasonably
determine. Parent and the Sellers shall reimburse Buyer or the Companies for the
reasonable out-of-pocket expenses incurred by any of them in performing the
covenants contained in this Section 5.02(c).
(d) The foregoing provisions of this Section 5.02 shall be in
addition to the obligations of Buyer under Sections 6.01(g) and 11.02(c)(ii).
5.03. Further Assurances. At any time or from time to time after the
Closing, Buyer shall, at the request of Parent and the Sellers and at the
Parent's and Sellers' expense, execute and deliver any further instruments or
documents and take all such further action as Parent and the Sellers may
reasonably request in order to effectuate the consummation of the transactions
contemplated hereby.
5.04. Release of Guaranties. Buyer shall use reasonable efforts to
have Parent and the Sellers released from any liability under obligations of
Parent or any Seller in favor of any Company or any Subsidiary or the guarantees
by or from Parent or any Seller of the obligations of any Company or any
Subsidiary (collectively, the "Existing Guaranties") and to have the Existing
Guaranties terminated as promptly as practicable following the Closing, but in
no event later than 90 days after the Closing Date. Buyer agrees to indemnify,
defend and hold harmless Parent and the Sellers from any loss, including as a
result of any payments made by Parent or any Seller under the Existing
Guaranties that may be suffered or incurred by Parent or any Seller pursuant to
the Existing Guaranties following the Closing. Section 5.04 of the Disclosure
Schedule sets forth a list of the Existing Guarantees.
ARTICLE VI
ADDITIONAL COVENANTS
6.01. Taxes. (a) Returns. (1) Consolidated Returns. Buyer shall cause
each Company and each Subsidiary to consent to join, for all taxable periods of
the Companies and the Subsidiaries ending on or before the Closing Date for
which each of the Companies and the Subsidiaries are eligible to do so, in any
consolidated, combined or unitary federal, state, local and foreign income and
franchise tax returns which Parent or Seller shall request them to join. Parent
and the Sellers shall cause to be prepared and filed all such consolidated,
combined or unitary returns. Buyer agrees to cooperate with Parent and the
Sellers and their affiliates in the preparation of the portions of such returns
pertaining to the Companies and the Subsidiaries, and hereby agrees to take no
position inconsistent with the Companies and the Subsidiaries being members of
such groups. Parent and the Sellers shall cause to be timely paid all taxes to
which such returns relate for all periods covered by such returns.
(2) Other Pre-Closing Returns. Parent and the Sellers shall
cause to be prepared and Buyer shall cause to be timely filed all required
state, local and foreign income and franchise tax returns of the Companies and
the Subsidiaries (other than those to be filed by Parent and the Sellers
pursuant to Section 6.01(a)(1)) for any period which ends on or before the
Closing Date, for which returns have not been filed as of such date. Buyer and
its affiliates, including the Companies and the Subsidiaries after the Closing
Date, shall cooperate with Parent and the Sellers and their affiliates in the
preparation of such returns. Parent and the Sellers shall provide such returns
to Buyer not less than five days before the due date (including extensions) for
filing such returns.
(3) Straddle Returns. Buyer shall cause to be prepared and
timely filed all required state and local income and franchise tax returns and
foreign income tax returns of each of the Companies and the Subsidiaries for
taxable periods beginning before and ending after the Closing Date ("Straddle
Returns"). At least 15 days prior to the filing of any Straddle Returns required
to be caused to be filed by Buyer pursuant to the preceding sentence, Buyer
shall submit for its approval copies of such returns to Parent and the Seller
(directly or indirectly) of the Company or the Subsidiary to which such Straddle
Return relates, which approval shall not be unreasonably withheld. In the event
of a dispute with respect to any Straddle Returns, Buyer shall determine the
final form of such returns without prejudice to Parent's and such Seller's right
to dispute the amount of "Pre-Closing Taxes" (as defined in Section 6.01(b)).
All such returns shall be made, to the extent permitted by law, in a manner
consistent with prior practice with respect to each of the Companies and the
Subsidiaries.
(b) Payments. Buyer shall timely cause to be paid all taxes with
respect to the returns to be caused to be filed by Buyer pursuant to Section
6.01(a)(2) and Section 6.01(a)(3). Such taxes to be caused to be paid by Buyer,
to the extent attributable to any period or portion of a period ending on or
before the Closing Date, shall be referred to herein as "Pre- Closing Taxes".
Parent and the Seller (directly or indirectly) of the Company or the Subsidiary
to which such return relates shall pay to Buyer an amount equal to the
Pre-Closing Taxes due with respect to any such returns caused to be filed by
Buyer (after taking into account any estimated taxes previously paid and net of
any tax benefits to Buyer or any of its affiliates, including each of the
Companies and the Subsidiaries) in excess of the amount reflected as a liability
for income and franchise taxes on the relevant Closing Date Balance Sheet. Where
the Pre- Closing Taxes involve a period which begins before and ends after the
Closing Date (a "Straddle Period"), such Pre-Closing Taxes shall be calculated
as though the taxable year of each Company and each Subsidiary terminated at the
close of business on the Closing Date; provided, however, that, in the case of a
franchise tax not based on income, receipts, proceeds, profits or similar items,
Pre-Closing Taxes shall be equal to the amount of franchise tax for the taxable
year, multiplied by a fraction, the numerator of which shall be the number of
days from the beginning of the taxable year through the Closing Date and the
denominator of which shall be the number of days in the taxable year. Subject to
Parent's and a Seller's right to dispute the amounts of any Pre-Closing Taxes,
any amounts owed by Parent and a Seller to Buyer pursuant to this paragraph (b)
shall be paid by such Seller within the later of ten days of Buyer's request
therefor or ten days prior to the date on which Buyer is required to cause to be
paid the related tax liability. Parent and the Sellers, on the one hand, and
Buyer, on the other hand, shall seek in good faith to resolve any dispute with
respect to the amount of Pre-Closing Taxes. If Parent and the Sellers and Buyer
are unable to resolve any such dispute, the amount of Pre-Closing Taxes shall be
determined by the Arbitrator, selected in the manner provided in Section
1.03(b)(iii) hereof, whose decision shall, in the absence of manifest error, be
binding on the parties hereto. The party in any arbitration whose position is
closest to the final decision of the Arbitrator (based on the final positions of
the parties submitted to the Arbitrator) shall be entitled to an award of the
cost of such arbitration (including the fees of an arbitrator); provided,
however, that if the Arbitrator finds the circumstances so warrant, he may
divide the cost of such arbitration (including the fees of the Arbitrator)
between the parties thereto in a manner he sees fit .
(c) Refunds. Any refunds or credits of federal, state, local or
foreign income and franchise taxes (including any interest thereon) received by
or credited to any Company or any Subsidiary attributable to periods ending on
or prior to the Closing Date or to Straddle Periods (in the case of Straddle
Periods, which were not borne by Buyer) (collectively, "Sellers' Refunds"),
other than any such refunds or credits reflected on the Closing Date Balance
Sheet, shall be for the benefit of Parent and the Sellers, and Buyer shall use
its reasonable efforts to obtain any Sellers' Refunds and shall cause the
Companies and the Subsidiaries to pay over to Parent and the Sellers any
Sellers' Refunds, net of any tax costs to Buyer or any of its affiliates,
including each of the Companies and the Subsidiaries, immediately upon receipt
thereof. In addition, if the Pre-Closing Taxes with respect to a Straddle Period
of any Company or any Subsidiary are less than the payments previously made by
or credited to such Company or Subsidiary with respect to such Straddle Period,
Buyer shall cause such Company or Subsidiary to pay to Parent and the Sellers
the excess of such previous payments over such Pre-Closing Taxes immediately
upon such Company or Subsidiary receiving the benefit of such excess payments
through a reduction in any tax payment required to be made by such Company or
Subsidiary after the Closing.
(d) Parent's and Sellers' Indemnification of Buyer. Subject to
Section 6.01(e), if the Closing shall occur, and subject to Buyer fulfilling its
obligations under Section 6.01(f), Parent and the Sellers will indemnify and
hold harmless Buyer and each of the Companies and the Subsidiaries against any
and all liability (including, without limitation, interest, additions to tax and
penalties, but net of any tax benefits to Buyer or any of its affiliates,
including any Company or any Subsidiary) for (i) federal, state, local and
foreign income and franchise taxes and all wage, income, foreign and other
withholding taxes assessed against any Company or any Subsidiary with respect to
all taxable periods of any of the Companies or the Subsidiaries ending on or
prior to the Closing Date, (ii) Pre-Closing Taxes that relate to a Straddle
Period, and (iii) federal, state, local and foreign income and franchise taxes
of any member (other than any Company or any Subsidiary) of any affiliated group
of which a Seller is a member assessed against any Company or any Subsidiary for
any taxable period ending on or prior to the Closing Date by reason of any
Company or any Subsidiary being severally liable for the entire tax of such
affiliated group pursuant to treasury regulations 1.1502-6 or any analogous
state or local tax provision to the extent the aggregate amount of any tax
described in clauses (i), (ii) and (iii) exceeds the amount reserved or accrued
for income and franchise taxes on the relevant Closing Date Balance Sheet.
(e) Buyer's Indemnification of Parent and the Sellers. It is
understood by the parties hereto that Parent and the Sellers shall not indemnify
Buyer or any of its affiliates and instead that Buyer shall, if the Closing
shall occur, pay, or cause to be paid, and Buyer, the Companies and the
Subsidiaries shall jointly and severally indemnify Parent and the Sellers and
their affiliates against and hold them harmless from any liability for taxes,
additions to tax, interest, penalties or other tax detriment (which, if Section
338(h)(10) Elections are not made with respect to a Company and its Subsidiaries
as described below, shall include, but not be limited to, the utilization of any
net operating loss or capital loss or the utilization of any tax credits or
other tax attributes by such Company and its Subsidiaries) arising from (i) any
action by Buyer or any affiliate of Buyer (including any Company and any
Subsidiary) on the Closing Date, including without limitation, any sale or other
disposition of assets by any Company or any Subsidiary on the Closing Date
("Buyer's Taxes"), (ii) if Section 338(h)(10) Elections are not made with
respect to a Company and its Subsidiaries as described below, (a) any election
or deemed election under Section 338(g) of the Code with respect to such Company
and its Subsidiaries and (b) all other tax liabilities of such Company and its
Subsidiaries in connection with the operations of such Company and its
Subsidiaries on the Closing Date and (iii) failure of Simon Ireland to make
timely payments of PAYE/PRSI taxes for taxable periods beginning on or after the
Closing Date.
(f) Audits. Buyer shall promptly notify Parent and the Sellers in
writing upon receipt by Buyer or any affiliate of Buyer (including any Company
or any Subsidiary after the Closing Date) of notice of any pending or threatened
federal, state, local or foreign tax audits or assessments which may affect the
tax liabilities of the Companies or the Subsidiaries and for which Parent and
the Sellers would be liable under Section 6.01(d). Parent and the Sellers shall
have the sole right to represent the interests of each Company and each
Subsidiary in any federal, state, local or foreign tax matter, including any
audit or administrative or judicial proceeding or the filing of any amended
return, which involves a refund to which Parent and the Sellers would be
entitled under Section 6.01(c) or a tax liability or potential tax liability for
which Parent and the Sellers would be liable under Section 6.01(d) (a "Tax
Matter"), and to employ counsel of their choice at their expense. With respect
to any Company or Subsidiary for which a Section 338(h)(10) election is not
made, Parent and the Sellers shall not, without the prior written consent of
Buyer (which consent shall not be unreasonably withheld), settle any Tax Matter
or take any other action in connection with a Tax Matter that would adversely
affect such Company or Subsidiary. Buyer agrees that it will cooperate fully
with Parent and the Sellers and their counsel in the defense or compromise of
any Tax Matter. In no case shall Buyer or any Company or any Subsidiary settle
or otherwise compromise any Tax Matter without the prior written consent of
Parent and the Sellers.
(g) Cooperation. After the Closing Date, Buyer, Parent and each
Seller shall make available to the other, as reasonably requested, all
information, records or documents relating to tax liabilities or potential tax
liabilities of each of the Companies and the Subsidiaries for all periods prior
to or including the Closing Date and shall preserve all such information,
records and documents until the expiration of any applicable statute of
limitations or extensions thereof. Buyer shall prepare and provide to Parent and
a Seller such federal, state, local and foreign tax information packages as
Parent and such Seller shall request for the use of Parent and such Seller in
preparing any tax return that relates to any Company or any Subsidiary. Such tax
information packages shall be completed by Buyer and provided to Parent and a
Seller within 45 days after a request of Parent and such Seller therefor.
Notwithstanding any other provisions hereof, each party shall bear its own
expenses in complying with the foregoing provisions.
(h) Section 338 Elections and Forms. (1) If Buyer requests within
90 days following the Closing, Parent and a Seller shall join with Buyer in
making elections under Section 338(h)(10) of the Code, and the regulations
promulgated thereunder, and any applicable analogous provision of state or local
law, with respect to the sale and acquisition of the stock of any one or more of
the Companies and their Subsidiaries hereunder (the "Section 338(h)(10)
Elections").
(2) In the case of any Section 338(h)(10) Elections that are
made in accordance with Section 6.01(h)(1) hereof,
(a) Buyer shall be responsible for the preparation and timely
filing of all returns (other than income and franchise tax returns the
responsibility for the preparation and filing of which is governed by Section
6.01(a)), documents, statements and other forms required to be filed with any
federal, state or local taxing authority in connection with the Section
338(h)(10) Elections (the "Section 338 Forms"); provided, however, that Parent
and the relevant Seller shall be solely responsible for calculating the gain or
loss resulting from making the Section 338(h)(10) Elections;
(b) Parent and the relevant Seller shall cooperate with Buyer to
enable Buyer to prepare and file all Section 338 Forms and shall execute and
deliver to Buyer such documents or forms as are required by the Code or the
regulations promulgated thereunder (and any applicable analogous provision of
state or local law) to properly complete the Section 338 Forms, provided that
such material is completed and delivered by Buyer to Parent and such Seller for
execution at least 60 days prior to the date Buyer wishes to file such material;
and,
(c) The Purchase Price, liabilities of the relevant Company and
its Subsidiaries, and other relevant items, shall be allocated in accordance
with the rules of Section 338 of the Code and the regulations promulgated
thereunder. Such allocation shall be set forth on a schedule which shall be
prepared jointly by Buyer, Parent, and the relevant Seller within 120 days
following the Closing Date. All allocations contained in such schedule shall be
used by each party and their affiliates in preparing the Section 338 Forms and
all relevant income and franchise tax returns.
(d) Tax Sharing. Other than pursuant to this Section 6.01, as of
the Closing Date, none of the Companies or the Subsidiaries shall have any
further rights or obligations under any tax-sharing agreement amongst any of
them and Parent, any Seller and/or any of their affiliates.
6.02. Corporate Name. (a) Buyer acknowledges that Parent and the
Sellers have the absolute and exclusive proprietary right to all names, marks,
trade names, trademarks, service names and service marks (collectively, "Names")
incorporating "Simon" or any similar Name and to all corporate symbols or logos
(collectively, "Logos") incorporating "Simon" or any similar Name, all right of
Parent, the Sellers and their respective affiliates to which and the goodwill
represented thereby and pertaining thereto are being retained by Parent and the
Sellers. Buyer agrees that it will not, and will cause the Companies and the
Subsidiaries not to, use the Name "Simon" or any similar Name or any Logo
incorporating such Name or any similar Name in any manner including in
connection with the sale of any products or services or otherwise in the conduct
of its business, except as expressly permitted by paragraph (b) of this Section
6.02. Within five business days following the Closing, Buyer shall cause the
Companies and the Subsidiaries to amend their respective charter to eliminate
the word "Simon" from their corporate Name. Parent and the Sellers acknowledge
that the Companies and the Subsidiaries have a proprietary right as between
Parent and the Sellers, on the one hand, and the Companies and Subsidiaries, on
the other hand, to the 'S' shaped Logo as set forth in Section 6.02(a) of the
Disclosure Schedule.
(b) For a period of 18 months from the Closing Date (the "Logo
Window Period"), in the case of the "Simon" Logo set forth in Section 6.02(b) of
the Disclosure Schedule (the "Simon Logo"), and three years, in the case of the
"Simon" Name, from the Closing Date (the "Name Window Period"), Parent shall and
hereby irrevocably grants the Companies and the Subsidiaries the right to use
the Simon Logo and the "Simon" Name in connection with the operation of the
businesses of the Companies and the Subsidiaries as currently conducted
including, during the Logo Window Period and the Name Window Period,
respectively, to (i) use any molds or castings included in the equipment or
machinery owned by the Companies and the Subsidiaries despite the appearance
thereon and on the products manufactured therewith of the Name "Simon" or the
Simon Logo, (ii) sell all such products produced by the Companies or the
Subsidiaries and (iii) use any other assets on hand at the Companies and the
Subsidiaries, including, without limitation, any catalogs, invoices, packaging
material or stationery, bearing the Simon Name or the Simon Logo. Immediately
upon the expiration of the Logo Window Period and the Name Window Period, as the
case may be, Buyer shall, and shall cause the Companies and the Subsidiaries to,
cease to use in any manner the Name "Simon" or the Simon Logo incorporating such
Name and remove or obliterate such Name or the Simon Logo from any molds,
castings, products or other assets and clearly and prominently ▇▇▇▇ the new name
of the Companies and the Subsidiaries thereon. At all times following the
Closing, Buyer shall indicate that neither Buyer nor the Companies and the
Subsidiaries are affiliated with Parent, the Sellers or any of their affiliates.
Parent hereby grants to Buyer and the Companies and the Subsidiaries an
irrevocable non-exclusive, royalty-free license to use the Name "Simon" during
the Name Window Period and to the Simon Logo during the Logo Window Period for
the purposes specified in the first sentence of this Section 6.01(b).
(c) Buyer shall ensure that any products bearing the Simon Logo,
the Name "Simon" or any similar Name or any Logo incorporating such Name or any
similar name sold by the Companies pursuant to paragraph (b) of this Section
6.02 shall meet the quality standards of the Sellers as such standards exist on
the date hereof, and the Sellers shall have access to the premises of Buyer and
the Companies and the Subsidiaries at reasonable times and upon reasonable
notice to satisfy themselves as to such quality.
(d) Buyer shall, and shall cause the Companies and the
Subsidiaries to, indemnify Parent, the Sellers and their affiliates and hold
them harmless against any and all Losses incurred or suffered by any of them
arising out of or resulting from the use of the Name "Simon" or any similar Name
or any Logo incorporating such Name or any similar Name by Buyer or any Company
or any Subsidiary after the Closing, whether or not such use is authorized under
paragraph (b) of this Section 6.02.
6.03. ▇▇▇▇▇ Name. Buyer acknowledges that, after the Closing, Parent,
the Sellers, Buyer, ▇▇▇▇▇-▇▇▇▇▇ and their respective affiliates will not have
any right or license to, and will not be entitled to use, the name "▇▇▇▇▇" or
any Name or Logo incorporating ▇▇▇▇▇. Within five business days following the
Closing, Buyer shall cause ▇▇▇▇▇-▇▇▇▇▇ to amend its charter to eliminate the
word "▇▇▇▇▇" from its corporate Name. After the Closing, Buyer agrees that it
will not, and it will cause the Companies and the Subsidiaries not to, use the
Name "▇▇▇▇▇" or any similar Name or any Logo incorporating such Name or any
similar Name in any manner, including in connection with the sale of any of
▇▇▇▇▇-▇▇▇▇▇'▇ products or services or otherwise in the conduct of its business.
Buyer shall, and shall cause the Companies and the Subsidiaries to, jointly and
severally indemnify the Parent, the Sellers and their affiliates and hold them
harmless against any losses incurred by them arising out of or resulting from
the use by Buyer, any Company or any Subsidiary of the Name "▇▇▇▇▇" after the
Closing.
6.04. Simon LTI, Simon Duplex and Simon (UK). Prior to the three year
anniversary of the Closing Date, Buyer shall not, and shall cause the Companies
and the Subsidiaries not to, solicit the employment of or enter into any
discussions with respect to the employment of any officer or employee of Simon
LTI, Simon Duplex or Simon (UK) or encourage any officer or employee of Simon
LTI, Simon Duplex or Simon (UK) or their successors and assigns to resign or
quit, without the written consent of Parent or SUSHI or their successors and
assigns (which consent may be withheld in their absolute discretion). From and
after the Closing Date, Buyer shall not, and shall cause the Companies and the
Subsidiaries not to, disclose to any person or entity, without the written
consent of Parent or SUSHI (which consent may be withheld in their absolute
discretion), any confidential information of whatever nature regarding the
business or operations of Simon LTI, Simon Duplex or Simon (UK) or their
successors and assigns in the possession of the Buyer or any Company or any
Subsidiary on the Closing Date; unless such information is now or shall
hereafter have specifically entered into the public domain (otherwise than as a
consequence of unauthorized disclosure by Buyer, any Company or any Subsidiary
or any of their employees or representatives) or such disclosure is required by
law or in response to a valid order of any court or governmental agency of
competent jurisdiction; provided that Simon LTI, Simon Duplex or Simon (UK) or
their successors and assigns shall have been given notice and the disclosing
party shall limit the confidential information disclosed only to that
information which counsel advises the disclosing party is legally required and
uses its best efforts to limit the use of such information for the purposes for
which the order was issued and to otherwise preserve the confidentiality of such
information.
6.05. Cash Management. (a) As part of the cash management program of
Telelect, Simon Aerials, their subsidiaries (collectively, the "U.S.
Corporations") and SUSHI, the U.S. Corporations maintain separate controlled
disbursement checking accounts at The Fifth Third Bank (collectively, the
"Disbursement Accounts") on which checks and drafts in respect of the U.S.
Corporations are drawn and which are funded by SUSHI. At the Closing, the
Disbursement Accounts, and all cash contained therein, shall be assigned by the
Companies and the Subsidiaries to SUSHI. Any Disbursement Account in the name of
a party other than the Companies or the Subsidiaries shall not be assigned to
the Companies, Subsidiaries or Buyer. From and after the Closing, Buyer shall
not write any checks drawn on the Disbursement Account, and SUSHI shall be
responsible to fund the Disbursement Accounts in amounts sufficient to pay all
checks and drafts in respect of the U.S. Corporations that are written but not
presented for payment prior to the close of business on the day immediately
preceding the Closing Date.
(b) Also as part of the cash management program of SUSHI and the
U.S. Corporations, SUSHI maintains separate lockbox collection accounts in
respect of each U.S. Corporation (collectively, the "Lockbox Accounts") from
which the available cash balances are transferred daily to a central account
maintained by SUSHI. SUSHI shall be entitled, prior to the Closing, to collect
and retain the proceeds of all items received in the Lockbox Accounts or
otherwise in respect of the U.S. Corporations (including the amount of any
checks received by the U.S. Corporations), and all other cash on hand (including
any cash held in any bank accounts of the U.S. Corporations), through the close
of business on the day immediately preceding the Closing Date (the "Pre-Closing
Cash"); provided, however, that SUSHI may at its option not collect but leave in
the Lockbox Accounts or other locations of the U.S. Corporations all or any
portion of the Pre-Closing Cash, and the aggregate amount of such uncollected
Pre-Closing Cash shall be paid to SUSHI together with and in the same manner as
the Purchase Price; provided, further, however, that SUSHI shall leave in each
bank account of the Companies and the Subsidiaries (other than the Disbursement
Accounts) cash in an amount sufficient to cover all checks written on that
account but not presented for payment as of the close of business on the day
preceding the Closing Date. If after the Closing it is determined that the
amount of Pre-Closing Cash is greater or less than the sum of the amount, if
any, that was collected by SUSHI and the amount, if any, that was uncollected
and paid together with the Purchase Price, Buyer shall pay SUSHI or SUSHI shall
pay Buyer, as applicable, the difference between the two amounts promptly after
such determination. Any cash received in the Lockbox Accounts on or after the
Closing Date in respect of a receivable reflected in the Closing Date Balance
Sheet shall be paid by SUSHI to the Company or Subsidiary to which such cash is
attributable promptly following receipt thereof. Parent and the Sellers shall
use reasonable efforts to transfer the Lockbox Accounts to the Companies and the
Subsidiaries as soon as practicable following the Closing, free and clear of any
Encumbrances.
(c) Parent and Simon Overseas shall ensure that any cash
aggregate overdraft balance for Simon Ireland or ▇▇▇▇▇ ▇▇▇▇▇ as of the Closing
Date shall be not less than zero.
6.06. Changes to Representations and Warranties. Parent and the
Sellers, on the one hand, and Buyer, on the other hand, each hereby agree that
they shall promptly notify the other party if, prior to the Closing, they have
actual knowledge that any representation or warranty in this Agreement is or has
become untrue in any material respect or that the information in the Disclosure
Schedule is or has become inaccurate in any material respect. For the purpose of
this Section 6.06, the actual knowledge of Parent and the Sellers means the
actual knowledge of ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇▇, and the actual knowledge of Buyer
means the actual knowledge of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
ARTICLE VII
CONDITIONS TO BUYER'S OBLIGATIONS
The obligation of Buyer to purchase and pay for the Shares shall be subject
to the satisfaction (or waiver) on or prior to the Closing Date of all of the
conditions set forth in this Article VII. It is agreed that Buyer's obligation
to consummate the transactions contemplated by this Agreement is not subject to
receipt of any financing.
7.01. Representations, Warranties and Covenants of the Sellers. The
Sellers shall have performed or complied in all material respects with their
agreements and covenants contained herein required to be performed or complied
with on or prior to the time of Closing, and the representations and warranties
of the Sellers contained herein shall be true on and as of the Closing Date with
the same effect as though made on and as of the Closing Date, except to the
extent that any such representations and warranties were made as of a specified
date and as to such representations and warranties the same shall continue on
the Closing Date to have been true as of the specified date, provided, further
that for purposes of this Section 7.01, a representation and warranty shall not
be deemed to be untrue to the extent that such failure to be untrue does not
have a Material Adverse Effect. Notwithstanding anything to the contrary herein,
Buyer shall not be relieved of its obligation to purchase and pay for the Shares
by reason of the Sellers' breach of any of their representations and warranties
or covenants unless such breach has a Material Adverse Effect. Buyer shall have
received a certificate of each Seller, dated the Closing Date and signed by an
authorized officer of such Seller, certifying as to the performance of all
agreements and covenants and the accuracy of the representations and warranties
of the Sellers contained herein as of the Closing Date, as amended or modified
by any amendments or modifications to the Disclosure Schedule or as set forth in
such certificate, with respect to such Seller (the "Sellers' Certificates").
Buyer's acceptance of the Sellers' Certificates shall not constitute a waiver by
Buyer of any of its rights under this Agreement or under applicable securities
laws.
7.02. No Prohibition. No statute, rule or regulation or injunction or
order of any court or administrative agency of competent jurisdiction shall be
in effect as of the Closing which prohibits Buyer from consummating the
transactions contemplated hereby.
7.03. Governmental Consents. The applicable waiting period under the
HSR Act shall have expired or been terminated and all other consents, approvals,
authorizations, exemptions and waivers from governmental agencies that shall be
required in order to enable Buyer to purchase the Shares shall have been
obtained
7.04. Intercompany Accounts. The Sellers shall have contributed any
intercompany account balances (as described in Section 1.03(b)(i)(A)) owed to
them by any Company or any Subsidiary to the capital of such Company or
Subsidiary, or, at the options of the Sellers with respect to Simon Ireland,
▇▇▇▇▇ ▇▇▇▇▇, Sim-Tech Management and/or Simon-Tomen, deemed any intercompany
account repaid with the portion of the Purchase Price allocable to such Company,
and shall have repaid any intercompany account balances owed by them to any
Company or any Subsidiary.
7.05. FIRPTA. SUSHI shall have delivered to Buyer a valid certification
of non-foreign status pursuant to Section 1445(b)(2) of the Code and Treasury
Regulation Section 1.1445- 2(b)(2). Such certification shall conform to the
model certification provided in Treasury Regulation Section 1.1445-
2(b)(2)(iii)(B), or shall be in form and substance otherwise satisfactory to
Buyer.
7.06. Consents. The Sellers shall have obtained all written consents,
assignments, waivers (including, without limitation, waivers of any rights of
first refusal) or authorizations set forth in Section 7.06 of the Disclosure
Schedule.
7.07. Release of Encumbrances. The Companies and the Subsidiaries shall
have been released from the Encumbrances set forth in Section 7.07 of the
Disclosure Schedule.
7.08. Resignation of Officers and Directors. Buyer shall have received
the resignations, effective as of the Closing, of (i) as a director, each
director of the Companies and the Subsidiaries and (ii) as an officer, those
officers of the Companies and the Subsidiaries that are set forth in a written
notice provided by Buyer to the Sellers and Parent at least two weeks before the
Closing Date.
7.09. Books and Records. The Sellers shall have delivered to Buyer the
books and records of the Companies and the Subsidiaries.
ARTICLE VIII
CONDITIONS TO PARENT'S AND THE SELLERS' OBLIGATIONS
The obligation of the Sellers to sell the Shares shall be subject to the
satisfaction (or waiver) on or prior to the Closing Date of all of the following
conditions:
8.01. Representations, Warranties and Covenants of Buyer. Buyer shall
have performed or complied in all material respects with its agreements and
covenants contained herein to be performed or complied with on or prior to the
time of Closing, and the representations and warranties of Buyer contained
herein shall be true in all material respects on and as of the Closing Date with
the same effect as though made on and as of the Closing Date, except to the
extent that any such representations and warranties were made as of a specified
date and as to such representations and warranties the same shall continue on
the Closing Date to have been true in all material respects as of the specified
date. Parent and the Sellers shall have received a certificate of Buyer, dated
the Closing Date and signed by an authorized officer of Buyer, certifying as to
the fulfillment of the condition set forth in this Section 8.0l (the "Buyer's
Certificate"). Parent's and the Sellers' acceptance of the Buyer's Certificate
shall not constitute a waiver of any of their rights under this Agreement or
under applicable securities laws.
8.02. No Prohibition. No statute, rule or regulation or injunction or
order of any court or administrative agency of competent jurisdiction shall be
in effect as of the Closing which prohibits Parent or the Sellers from
consummating the transactions contemplated hereby.
8.03. Governmental Consents. The applicable waiting period under the
HSR Act shall have expired or been terminated and all other consents, approvals,
authorizations, exemptions and waivers from governmental agencies that shall be
required in order to enable the Sellers to sell the Shares to Buyer shall have
been obtained (except for such consents, approvals, authorizations, exemptions
and waivers, the absence of which would not prohibit such sale or render such
sale illegal).
8.04. Shareholder Approval. The shareholders of Parent shall have
approved the transactions contemplated by this Agreement by the requisite vote
in accordance with applicable law.
8.05. Lender Consent and Releases. On or prior to the Closing Date,
Parent's and SUSHI's lenders shall have released the Companies and the
Subsidiaries from any guarantees executed by them in favor of such lenders.
8.06. Books and Records. Buyer shall have delivered to the Sellers and
Parent the books and records of Parent, the Sellers and any subsidiary of the
Sellers, including, without limitation, Simon LTI and Simon Duplex, not
purchased by Buyer.
ARTICLE IX
EMPLOYMENT AND EMPLOYEE BENEFITS ARRANGEMENTS
9.01. Definitions. (a) The term "Business" shall mean individually and
collectively (i) the Companies and the Subsidiaries and (ii) Sellers and their
affiliates and any predecessor to any of the foregoing but only with respect to
the Companies and the Subsidiaries.
(b) The term "Employees" shall mean all current employees
(including those on layoff, disability or leave of absence, whether paid or
unpaid), former employees and retired employees of the Business and the term
"Employee" shall mean any of the Employees.
(c) The term "Company Benefit Plans" shall mean each and all
"employee benefit plans" as defined in Section 3(3) of ERISA, maintained or
contributed to by the Business or in which the Business participates or
participated and which provides benefits to Employees or their spouses or
covered dependents, including (i) any such plans that are "employee welfare
benefit plans" as defined in Section 3(1) of ERISA and (ii) any such plans that
are "employee pension benefit plans" as defined in Section 3(2) of ERISA.
(d) The term "Benefit Arrangements" shall mean each and all
pension, supplemental pension, basic and supplemental accidental death and
dismemberment, basic and supplemental life and health insurance and benefits
(including medical, dental and hospitalization), savings, bonus, deferred
compensation, incentive compensation, business travel and accident, holiday,
vacation, severance pay, salary continuation, sick pay, sick leave, short and
long term disability, tuition refund, service award, company car, scholarship,
relocation, patent award, fringe benefit and other employee benefit
arrangements, plans, contracts (other than individual employment, consulting or
severance contracts), policies or practices of the Business providing employee
or executive compensation or benefits to Employees, other than the Company
Benefit Plans.
(e) The term "9.01(e) Employees" shall mean the individuals set
forth in Section 9.01(e) of the Disclosure Schedule.
9.02. Employment. Nothing contained herein shall confer any third-party
beneficiary right (actual or implied) upon any Employee of the Companies or the
Subsidiaries or obligate Buyer to continue any Employee in its employ or the
employ of the Companies or the Subsidiaries for any specified period of time or
at any specified salary, wages or benefits after the Closing Date. As of the
Closing Date, Buyer shall cause the Companies and the Subsidiaries to assume all
obligations of SUSHI or Simon Access Limited under the employment agreements
with the Section 9.01(e) Employees, except that the Companies and the
Subsidiaries shall not assume any obligation in respect of any retention bonus
or stay-pay arrangement payable to any Employee or 9.01(e) Employee upon
consummation of the transactions contemplated hereby.
9.03. Simon U.S. Retirement Plan. (a) Effective as of the Closing Date,
all Employees and 9.01(e) Employees, except for former employees and retired
employees of the Business, who were immediately prior to the Closing Date
participants in the Simon United States Holdings Inc. 401(k) Retirement Plan
(formerly known as the Simon U.S. Retirement Plan) (the "Simon Retirement Plan")
(the "Retirement Plan Transferees") shall become participants in the Terex
Corporation and Affiliates 401(k) Retirement Plan (the "Buyer's Retirement
Plan") and shall cease to be participants in the Simon Retirement Plan. The
Retirement Plan Transferees shall receive credit under the Buyer's Retirement
Plan for all service credited under the Simon Retirement Plan for purposes of
eligibility to participate, eligibility for benefits and vesting under Buyer's
Retirement Plan. SUSHI shall take all action necessary to cause the accounts of
the Retirement Plan Transferees who, as of the Closing Date, are current
Employees and 9.01(e) Employees, to become fully vested under the Simon
Retirement Plan.
(b) Within 60 days after the Closing Date, Buyer shall deliver to
SUSHI the most recent favorable determination letter issued by the IRS that the
Buyer's Retirement Plan satisfied the requirements for qualification under
Section 401(a) and 401(k) of the Code and a certification in a form reasonably
satisfactory to Seller, that either (i) the remedial amendment period under
Section 401(b) of the Code and the regulations thereunder has not yet expired
with respect to amendment(s) to the Plan, if any, necessary to maintain the
Plan's qualification under Section 401(a) and 401(k) of the Code, or (ii) the
Buyer has taken timely action prior to the expiration of the remedial amendment
period to maintain that qualification.
(c) Effective as of the Closing Date or as soon as practicable
after the receipt by SUSHI of the determination letter and the certification
described in Section 9.03(b), SUSHI shall cause the trustee of the Simon
Retirement Plan to transfer to the Buyer's Retirement Plan cash or assets in
kind as mutually agreed upon by SUSHI and the Buyer, in an amount equal to the
account balances of the Simon Retirement Plan which relate to the Retirement
Plan Transferees as of a valuation date (the "Valuation Date") not more than 60
days preceding the date of transfer, and reduced by any benefits paid during the
period following such Valuation Date of transfer. Upon the transfer of assets
contemplated in this Section 9.03(c), the Simon Retirement Plan shall be
relieved of and the Buyer's Retirement Plan shall assume, all liabilities and
obligations with respect to the payment of the transferred account balances.
9.04. Other Benefit Plans. (a) Subject to the specific provisions of
Sections 9.03 and the remaining paragraphs of Section 9.04, as of the Closing
Date all Employees and all 9.01(e) Employees, except for former employees and
retired employees of the Business, shall cease to be covered by the Company
Benefit Plans and Benefit Arrangements and shall become covered by and eligible
for such employee benefit plans and fringe benefit arrangements, if any,
provided by Buyer to similarly situated employees of Buyer and its affiliates.
Such Employees and all 9.01(e) Employees shall receive credit for all service
with the Parent and the Sellers and their affiliates (including the Companies
and the Subsidiaries) and their respective predecessors prior to the Closing
Date for all purposes for which such service is recognized under the Buyer's
employee benefit plans, provided that, in the event Buyer shall establish a new
employee benefit plan, Employees shall not receive credit under such plan for
service for periods prior to the earliest date such service is recognized for
similarly situated employees of Buyer and its affiliates.
(b) As of the Closing Date, all Employees and all 9.01(e)
Employees and their eligible dependents who were immediately prior to the
Closing Date covered as participants or beneficiaries under the Simon United
States Holdings Inc. Health and Welfare Benefits Plan (the "Simon Health Plan")
(including such Employees and all 9.01(e) Employees and dependents covered under
the Simon Health Plan pursuant to COBRA) shall cease to be covered under the
Simon Health Plan. Seller shall take, or cause to be taken, all such action as
may be necessary to effect such cessation or participation, and the Companies
and the Seller shall cease to be participating employers under the Simon Health
Plan as of the Closing Date. Effective as of the Closing Date, said Employees
and their eligible dependents shall become participants and beneficiaries under
the Terex Health Plan (the Buyer's Health Plan) under terms and conditions
applicable to similarly situated employees of Buyer and its affiliates and their
dependents.
(c) Buyer shall cause the Buyer's Health Plan to recognize
periods of coverage under the Simon Health Plan for the purpose of applying any
pre-existing conditions and actively-at- work exclusions set forth by the
Buyer's Health Plan and shall provide that any expenses incurred on or before
the Closing Date shall be taken into account under such plans for purposes of
satisfying applicable deductible, coinsurance and maximum out-of-pocket
provisions.
(d) As of the Closing Date, each Company and Subsidiary shall
assume all of the liabilities and obligations of the Parent and the Sellers and
their affiliates which relate specifically to the Employees employed by the
Company or Subsidiary, as the case may be, including all liabilities and
obligations under the Company Benefit Plans and Benefit Arrangements and
workers' compensation arrangements with respect to the Employees and all 9.01(e)
Employees and their dependents and beneficiaries, including, but not limited to,
(i) liabilities and obligations for wages, benefits, compensation,
contributions, insurance and health maintenance organization premiums, whether
incurred or accrued before, on or after the Closing Date and whether or not
reported as of the Closing Date, (ii) liabilities and obligations arising under
the continuation coverage requirements of Section 4980B(f) of the Code and
Section 601 of ERISA with respect to all Employees and all 9.01(e) Employees (or
any beneficiary or dependent of any Employee) who, as of the Closing Date, have
exercised or are eligible to exercise their right to such continuation coverage
and (iii) liabilities and obligations to provide post-retirement health and life
insurance benefits to Employees and 9.01(e) Employees (whether or not currently
retired). Notwithstanding the foregoing sentence, neither the Buyer nor any
Company or Subsidiary shall assume any liability or obligation of Seller for
benefits accruing after the Closing Date under the Company Benefit Plans or
Benefit Arrangements.
9.05. Severance. Without limiting the generality of Section 9.04, Buyer
agrees to provide, or cause the Companies and the Subsidiaries to provide,
severance pay and other severance benefits to any Employee or 9.01(e) Employee
with a written employment contract disclosed in Section 2.08(a)(v) or 9.01(e) of
the Disclosure Schedule, in accordance with any applicable provision of such
individual's employment contract.
9.06. Indemnity. (a) Without limiting the generality of Section 9.04,
Buyer, the Companies and the Subsidiaries shall jointly and severally indemnify
the Parent and the Sellers and their affiliates and hold each of them harmless
from and against any Losses which may be incurred or suffered by any of them,
(i) under the Worker Adjustment and Retraining Notification Act ("WARN") arising
out of, or relating to, any actions taken by Buyer or the Companies or the
Subsidiaries on or after the Closing Date and (ii) in connection with any claim
made by any Employee or 9.01(e) Employee arising out of or relating to the
failure by the Companies or the Subsidiaries to continue any particular employee
benefit plan or provide any particular employee benefit or level of benefit, and
(b) Parent, Sellers and their affiliates shall jointly and severally indemnify
and hold harmless Buyer, the Companies and the Subsidiaries from and against any
Losses which may be incurred or suffered by any of them (i) under WARN arising
out of, or relating to, any actions taken by Parent or Sellers prior to the
Closing Date or (ii) under or pursuant to any Company Benefit Plan and Benefit
Arrangement as a result of or related to any employee covered by such plans and
arrangements who are not Employees.
ARTICLE X
TERMINATION PRIOR TO CLOSING
10.01. Termination. This Agreement may be terminated at any time prior
to the Closing:
(a) By the mutual written consent of Buyer, Parent and the
Sellers; or
(b) By Parent or the Sellers, if the condition set forth in
Section 8.03 shall not have been satisfied within 45 days after the date of this
Agreement; provided, however, if Buyer shall be unable to make its initial
filing under the HSR Act within 15 days after the date of this Agreement solely
as a result of the failure of Parent and the Sellers to provide timely to Buyer
any information that Buyer needs from Parent or the Sellers to complete such
filing, the 45-day period shall be extended by one day for each day following
such 15-day period through and including the day Parent or the Sellers deliver
such information to Buyer; Parent and the Sellers must give notice to Buyer
promptly following the expiration of such 45-day period, but in no event more
than five days following the expiration of such 45-day period, if they intend to
terminate this Agreement pursuant to this clause (b); or
(c) By either Parent, the Sellers or Buyer in writing, if the
Closing shall not have occurred on or before June 30, 1997; provided, however,
that such failure to close is not a result of breach by Buyer (in the case of
termination by Buyer) or by Parent and/or any Seller (in the case of termination
by Parent or the Sellers) of any representation, warranty, covenant, agreement,
obligation, or any understanding hereunder.
(d) By either the Sellers or Buyer in writing, if there shall
have been a material breach by the other party of any of its representations,
warranties, covenants or agreements contained herein and such breach results in
a failure to satisfy a condition to the terminating party's obligation to
consummate the transactions provided herein, unless such breach can be remedied
with diligent effort in a reasonable period, in which case this Agreement cannot
be terminated for such period, not to exceed 15 days, as may be necessary to
remedy such breach after actual knowledge of such breach by the breaching party.
10.02. Effect on Obligations. Termination of this Agreement pursuant to
this Article X shall terminate all obligations of the parties hereunder, except
for the obligations under Sections 10.02, 11.08 and 11.11 and the last sentence
of Section 4.03; provided, however, that termination pursuant to clause (c) or
(d) of Section 10.01 by reason of breaches of representations and warranties or
covenants or agreements shall not relieve the defaulting or breaching party
(whether or not it is the terminating party) from any liability to the other
party hereto.
ARTICLE XI
MISCELLANEOUS
11.01. Survival. Except as otherwise set forth in this Section 11.01,
the representations and warranties made in this Agreement or in any agreement,
certificate (including the Sellers' Certificates and the Buyer's Certificate) or
other document executed at or prior to the Closing in connection herewith (an
"Ancillary Document") shall survive the Closing and shall expire on June 30,
1998 and shall thereupon expire together with any right to indemnification for
breach thereof (except to the extent a written notice asserting a claim for
breach of any such representation or warranty, describing the nature of the
breach in reasonable detail, shall have been given prior to such date to the
party which made such representation or warranty, in which case such
representation and warranty shall survive, to the extent of such claim only,
until such claim is resolved, whether or not the amount of the damages or
expenses resulting from such breach has been finally determined at the time the
notice is given, if, but only if, in the case of a claim made by Buyer by reason
of a third party claim, the written notice is accompanied by a copy of the
written notice of the third party claimant; and provided that any notice
asserting a claim for breach of any of the representations and warranties
contained in Section 2.16 (or in the Sellers' Certificates insofar as they
pertain to Section 2.16) as to any environmental, health and safety matters)
(including, without limitation, any arising under Environmental Laws or
Environmental Permits) (an "Environmental Breach") shall not be effective notice
unless accompanied by (a) written notice from the applicable regulatory
authority, or, if there has been a claim made against Buyer by a third party,
the written notice of the third party claimant, alleging the existence of the
conditions as to which an Environmental Breach is claimed or (b) a written
report from a reputable environmental consulting firm which is not affiliated
with Buyer or any Company or Subsidiary, the fees and expenses of which firm
shall be borne solely by Buyer, confirming, in reasonable detail, the existence
of the conditions as to which an Environmental Breach is claimed). The
representations and warranties contained in Sections 2.01, 2.02, 2.03 and 2.14
(and in the Sellers' Certificates insofar as they pertain to Sections 2.01,
2.02, 2.03 and 2.14) shall survive the Closing until the expiration of the
applicable statute of limitations (as extended by the application of any tolling
principles). The representations and warranties contained in Section 2.06 (and
in the Sellers' Certificates insofar as they pertain to Section 2.06) insofar as
they relate to any real property owned by the Companies and the Subsidiaries
shall expire at the Closing if Buyer, the Companies or the Subsidiaries obtain
or have in effect title insurance with respect thereto which covers the matter
or matters subject to such breach. The representations and warranties contained
in Section 2.16 (and in Sellers' Certificates insofar as they pertain to Section
2.16) shall expire at the third anniversary of the Closing. The covenants and
agreements contained herein to be performed or complied with prior to the
Closing (and the provisions of the Sellers' Certificates and the Buyer's
Certificate pertaining thereto) shall expire at the Closing. The covenants and
agreements contained herein to be performed or complied with at or after the
Closing, including, without limitation, the indemnification obligations
contained in Sections 6.01(d) and (e), shall survive the Closing until the
expiration of the applicable statute of limitations (without regard to the
application of any tolling principles). Parent's and the Sellers'
indemnification obligations set forth in Section 11.02(a)(iii)(y) and (z) shall
expire on the ninth anniversary of the Closing Date and in no event shall any
Seller be responsible for any Environmental Losses or other Losses incurred,
expended or suffered thereafter with respect to matters addressed therein.
Subject to the obligations of Buyer in Section 4.07, no investigation by Buyer
or on Buyer's behalf heretofore or hereafter conducted shall affect the
representations, warranties or covenants of Parent and the Sellers set forth in
this Agreement.
11.02. Indemnification. (a) Parent and the Sellers shall, jointly and
severally, indemnify Buyer and its affiliates (including the Companies and the
Subsidiaries) and hold each of them harmless from and against, and in respect
of, any damages, claims, losses, charges, actions, suits, proceedings,
deficiencies, taxes, interest, penalties, and reasonable costs and expenses
(including without limitation reasonable attorneys' fees and expenses)
(collectively, "Losses") (net of any tax benefits or insurance recoveries) which
are incurred or suffered by any of them (i) by reason of the breach of any of
the representations or warranties made by Parent and the Sellers herein or in
any Ancillary Document (other than any which do not survive the Closing or which
are contained in Section 2.16 hereof), (ii) by reason of the failure by the
Sellers to perform or comply with any of the covenants or agreements contained
herein (other than those contained in Section 11.02(a)(iii)(y) and (z) herein)
or in any Ancillary Document to be performed or complied with by Sellers at or
after the Closing; (iii) by reason of Losses which are Environmental Losses
which are incurred or suffered by any of them (x) by reason of the breach of any
of the representations and warranties made by Seller contained in Section 2.16
herein; (y) arising from, in respect of, incurred as a consequence of or in
connection with any and all real property, business entities or assets, whether
domestic or foreign, formerly owned, leased or operated by the Companies or the
Subsidiaries and not owned, leased or operated by the Companies or any of the
Subsidiaries as of the Closing Date; or (z) arising from, in respect of,
incurred as a consequence of or in connection with the transport or disposal of
any Hazardous Substances to or at any offsite facility or location by the
Companies or the Subsidiaries as of the Closing Date or (iv) by reason of any
retroactive rate or premium adjustments for workers compensation insurance for
periods prior to the Closing Date to the extent not covered by any reserve
therefor on the Closing Date Balance Sheet. Notwithstanding the foregoing, all
representations and warranties concerning inventory, receivables, reserves and
current liabilities and any matters which the parties specifically resolve in
connection with the finalization of the Closing Date Balance Sheets, whether as
a result of a decision of the Arbitrator or an agreement of the parties, shall
not be the basis for an indemnity claim under this Agreement. Any recovery by
Buyer and its affiliates for indemnification shall be limited as follows: (1)
Buyer and its affiliates shall not be entitled to any recovery unless a claim
for indemnification is made in accordance with Sections 11.01 and paragraph
(c)(i) of this Section 11.02 and within the time period of survival set forth in
Section 11.01; (2) Buyer and its affiliates shall not be entitled to recover any
amount for indemnification claims under clauses (i) and (iii)(x) of this Section
11.02(a) unless and until the amount which Buyer and its affiliates are entitled
to recover in respect of such claims exceeds, in the aggregate, $3 million, and
only for individual claims or a series of related claims in excess of $25,000,
in which event (subject to clause (3) below) the entire amount which Buyer and
its affiliates are entitled to recover in respect of such claims less $1.5
million (the "Deductible") shall be payable; and (3) the maximum amount
recoverable by Buyer and its affiliates for indemnification claims under clauses
(i) and (iii)(x) of this Section 11.02(a) shall in the aggregate be equal to $20
million.
(b) Buyer, the Companies and the Subsidiaries shall, jointly and
severally, indemnify Parent, the Sellers and their affiliates and hold each of
them harmless from and against all Losses (net of any tax benefit or insurance
recovery) which are incurred or suffered by any of them (i) by reason of the
breach by Buyer of any of the representations or warranties made by Buyer herein
or in any Ancillary Document or (ii) by reason of the failure by Buyer (or, from
and after the Closing, the Companies and the Subsidiaries) to perform or comply
with any of the covenants or agreements contained herein or in any Ancillary
Document to be performed or complied with by either of them at or after the
Closing. Any recovery by Parent, any Seller and their affiliates for
indemnification shall be limited as follows: (1) Parent, the Sellers and their
affiliates shall not be entitled to any recovery unless a claim for
indemnification is made in accordance with paragraph (c)(i) of this Section
11.02 and within the time period set forth in Section 11.01 (2) Parent, the
Sellers and their Affiliates shall not be entitled to recover any amount for
indemnification under clause (i) of this Section 11.02(a) unless and until the
amount which Parent, the Sellers and their affiliates are entitled to recover in
respect of such claims exceeds, in the aggregate, the Deductible and only for
individual claims, or a series of related claims, in excess of $25,000 in which
event (subject to clause (3) below) the entire amount which Parent, Sellers and
their affiliates are entitled to recover in respect of such claims less the
Deductible shall be payable and (3) the maximum amount recoverable by Parent,
Sellers or any of their affiliates for indemnification claims under clause (i)
of this Section 11.02(a) shall in the aggregate be equal to $20 million.
(c) (i) In the event that any party shall incur or suffer any
Losses in respect of which indemnification may be sought by such party pursuant
to the provisions of this Section 11.02, the party seeking to be indemnified
hereunder (the "Indemnitee") shall assert a claim for indemnification by written
notice (a "Notice") to the party from whom indemnification is sought (the
"Indemnitor") stating the nature and basis of such claim, and, if such claim is
with respect to a third party claim or an Environmental Breach, accompanied by
the documentation set forth in Section 11.01. In the case of losses arising by
reason of any third party claim, the Notice shall be given within 30 days of the
filing or other written assertion of any such claim against the Indemnitee. In
the event that a claim for indemnification is not resolved by the Indemnitor and
the Indemnitee within 24 months after the date such claim is brought, the
Indemnitee shall have 30 days after the expiration of such 24 month period to
commence a lawsuit with respect to such claim and if no such lawsuit is
commenced by the Indemnitee within such 30- day period, the Indemnitor shall
have no further obligation or liability hereunder or otherwise to Buyer and its
affiliates with respect to such claim.
(ii) The Indemnitee shall provide to the Indemnitor on
request all information and documentation reasonably necessary to support and
verify any Losses which the Indemnitee believes give rise to a claim for
indemnification hereunder and shall give the Indemnitor reasonable access
without cost to all books and records in the possession of, and make available
at times reasonably acceptable to Buyer all personnel (including to attend or
participate in depositions and/or trials) under the control of, the Indemnitee,
which would have bearing on such claim.
(iii) In the case of third party claims for which
indemnification is sought, the Indemnitor shall have the option (x) to conduct
any proceedings or negotiations in connection therewith, (y) to take all other
steps to settle or defend any such claim (provided that the Indemnitor shall not
settle any such claim without the consent of the Indemnitee, which consent shall
not be unreasonably withheld) and (z) to employ counsel to contest any such
claim or liability in the name of the Indemnitee or otherwise. In any event, the
Indemnitee shall be entitled to participate at its own expense and by its own
counsel in any proceedings relating to any third party claim. The Indemnitor
shall, within 45 days of receipt of the Notice, notify the Indemnitee of its
intention to assume the defense of such claim. Until the Indemnitee has received
notice of the Indemnitor's election whether to defend any claim, the Indemnitee
shall take reasonable steps to defend (but may not settle) such claim. If, after
assuming the defense of any third party claim the Indemnitor shall determine
such claim is not covered by the indemnification provided by this Section 11.02,
the Indemnitor may, upon 60 days notice to the Indemnitee, withdraw from the
defense of such claim. If the Indemnitor shall decline to assume the defense of
any such claim, or shall fail to notify the Indemnitee within 45 days after
receipt of the Notice of the Indemnitor's election to defend such claim, the
Indemnitee shall defend against such claim (provided that the Indemnitee shall
not settle such claim without the consent of the Indemnitor, which consent shall
not be unreasonably withheld). The expenses of all proceedings, contests or
lawsuits in respect of such claims (other than those incurred by the Indemnitee
which are referred to in the second sentence of this subparagraph (iii)) shall
be borne by the Indemnitor but only if the Indemnitor is responsible pursuant
hereto to indemnify the Indemnitee in respect of the third party claim and, if
applicable, only to the extent required by the second sentence of Section
11.02(a). Regardless of which party shall assume the defense of the claim, the
parties agree to cooperate fully with one another in connection therewith. In
the case of a claim for indemnification made under Section 11.02(a)(i) or
11.02(b)(i), (a) if (and to the extent) the Indemnitor is responsible pursuant
hereto to indemnify the Indemnitee in respect of the third party claim, then
within ten days after the occurrence of a final non-appealable determination
with respect to such third party claim, the Indemnitor shall pay the Indemnitee,
in immediately available funds, the amount of any Losses (or such portion
thereof as the Indemnitor shall be responsible for pursuant to the provisions
hereof, including, without limitation, the second sentence of Section 11.02(a)),
and (b) in the event that any Losses incurred by the Indemnitee do not involve
payment by the Indemnitee of a third party claim, then, if (and to the extent)
the Indemnitor is responsible pursuant hereto to indemnify the Indemnitee
against such Losses, the Indemnitor shall within ten days after agreement on the
amount of Losses or the occurrence of a final non-appealable determination of
such amount pay to the Indemnitee, in immediately available funds, the amount of
such Losses (or such portion thereof as the Indemnitor shall be responsible for
pursuant to the provisions hereof.
(d) The provisions of this Section 11.02 shall apply to all
claims for indemnification hereunder, except indemnification claims which
involve matters addressed by Sections 6.01(d) or 6.01(e), which claims shall be
governed by solely such Sections.
(e) Except as set forth in Sections 5.04, 6.01, 6.02 and 6.03,
the indemnification provided in this Section 11.02 shall be the sole and
exclusive remedy of Parent, the Sellers and Buyer with respect to this Agreement
and the transactions contemplated hereby. All amounts payable by one party in
indemnification of the other shall be considered an adjustment to the Purchase
Price. Notwithstanding the generality of the foregoing, the indemnification
provided in this Section 11.02 relating to environmental, health and safety
matters (including, without limitation, any arising under Environmental Laws or
Environmental Permits) shall constitute Buyer's sole and exclusive remedy and
Buyer hereby waives any rights and remedies that it may otherwise have against
Parent, the Sellers and the Companies under any Environmental Laws, including,
without limitation, any claims for recovery or contribution under CERCLA, its
state analogies or common law.
(f) In no event shall Parent or the Sellers be liable for loss of
profits or consequential damages by reason of a breach of any representation,
warranty or covenant made by the Sellers or any of their affiliates in this
Agreement or any Ancillary Document.
(g) Notwithstanding anything in this Agreement to the contrary,
neither Parent nor the Sellers shall be responsible for any liability or
obligation as a result of Buyers', or the Companies' or the Subsidiaries'
failure to comply with applicable law after the Closing.
(h) Upon making any payment to an Indemnitee for any
indemnification claim pursuant to this Section 11.02, the Indemnitor shall be
subrogated, to the extent of such payment, to any rights which the Indemnitee
may have against any other parties with respect to the subject matter underlying
such indemnification claim.
11.03. Interpretive Provisions. be Whenever used in this Agreement, "to
the Sellers' knowledge" or "to the knowledge of the Sellers" shall mean the
actual knowledge of those officers and/or employees of the Sellers and Parent
who are listed in Section 11.03 of the Disclosure Schedule and "to Buyer's
knowledge" or "to the knowledge of Buyer" shall mean the actual knowledge of
Buyer and the persons listed in Section 11.03 of the Disclosure Schedule.
(b) The words "hereof," "herein," "hereby" and "hereunder" and
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision thereof.
(c) For purposes of this Agreement, the Companies and the
Subsidiaries shall be deemed to be affiliates of Parent and the Sellers prior to
the Closing and affiliates of Buyer after the Closing.
11.04. Entire Agreement. This Agreement (including the Disclosure
Schedule) and the Confidentiality Agreement constitute the sole understanding of
the parties with respect to the subject matter hereof. Matters disclosed by
Parent or the Sellers to Buyer pursuant to any Section of this Agreement shall
be deemed to be disclosed with respect to all Sections of this Agreement. The
Confidentiality Agreement shall survive for the full term thereof in accordance
with the terms thereof regardless of the execution of this Agreement but shall
terminate upon the consummation of the Closing, except with respect to those
matters that were disclosed to Buyer which constitute confidential business
information of Parent or any subsidiary of Seller not purchased by Buyer.
Notwithstanding the foregoing, nothing in this Agreement (including the
Disclosure Schedule) shall be deemed to expand or restrict the rights of any
party hereto under the securities laws of any jurisdiction to the extent such
laws are applicable to the transactions contemplated hereby.
11.05. Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties hereto; provided, however, that this
Agreement may not be assigned by Buyer without the prior written consent of
Parent and the Sellers (which may be withheld in their absolute discretion),
except that Buyer may, at its election, assign this Agreement to (i) any direct
or indirect wholly owned subsidiary or (ii) its lenders in connection with the
transactions contemplated by this Agreement, so long as (a) the representations
and warranties of Buyer made herein are equally true of such assignee and (b)
such assignment does not have any adverse consequences to Parent or the Sellers
or any of their affiliates (including, without limitation, any adverse tax
consequences or any adverse effect on the ability of Buyer to consummate (or
timely consummate) the transactions contemplated hereby), and (c) such assignee
shall execute a counterpart of this Agreement agreeing to be bound by the
provisions hereof as "Buyer," and agreeing to be jointly and severally liable
with the assignor and any other assignee for all of the obligations of the
assignor hereunder, but no such assignment of this Agreement or any of the
rights or obligations hereunder shall relieve Buyer of its obligations under
this Agreement.
11.06. Headings. The headings of the Articles, Sections and paragraphs
of this Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction hereof.
11.07. Modification and Waiver. No amendment, modification or
alteration of the terms or provisions of this Agreement shall be binding unless
the same shall be in writing and duly executed by the parties hereto, except
that any of the terms or provisions of this Agreement may be waived in writing
at any time by the party which is entitled to the benefits of such waived terms
or provisions. No waiver of any of the provisions of this Agreement shall be
deemed to or shall constitute a waiver of any other provision hereof (whether or
not similar). No delay on the part of any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof.
11.08. Expenses. Except as otherwise provided herein, Parent, each
Seller and Buyer shall pay all costs and expenses incurred by it or on its
behalf in connection with this Agreement and the transactions contemplated
hereby, including, without limiting the generality of the foregoing, fees and
expenses of its own financial consultants, accountants and counsel.
11.09. Notices. Any notice, request, instruction or other document to
be given hereunder by any party hereto to any other party shall be in writing
and shall be given (and will be deemed to have been duly given upon receipt) by
delivery in person, by electronic facsimile transmission, cable, telegram, telex
or by international overnight courier, postage prepaid,
if to Parent or the Sellers to:
Simon Engineering plc
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telecopy: 011 441 71 881 2225
with a copy to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
if to Buyer to:
Terex Corporation
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
or at such other address for a party as shall be specified by like notice.
11.10. Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of New York applicable to agreements
made and to be performed wholly within such jurisdiction. Each of the parties
hereto hereby irrevocably and unconditionally consents to submit to the
exclusive jurisdiction of the courts of the State of New York and of the United
States of America, in each case located in the County of New York, for any
Litigation arising out of or relating to this Agreement and the transactions
contemplated hereby (and agrees not to commence any Litigation relating thereto
except in such courts), and further agrees that service of any process, summons,
notice or document by U.S. registered mail to its respective address set forth
in Section 11.09 shall be effective service of process for any Litigation
brought against it in any such court. Each of the parties hereto hereby
irrevocably and unconditionally waives any objection to the laying of venue of
any Litigation arising out of this Agreement or the transactions contemplated
hereby in the courts of the State of New York or the United States of America,
in each case located in County of New York, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such Litigation brought in any such court has been brought in an
inconvenient forum. The party in any Litigation whose position is closest to the
final decision of the judge in such Litigation (based on the final positions of
the parties prior to commencement of Litigation) shall be entitled to an award
of the cost of such Litigation including reasonable fees and disbursements of
counsel; provided, however, that if the judge in such Litigation finds the
circumstances so warrant, he may divide the cost of such Litigation between the
parties thereto in a manner he sees fit.
11.11. Public Announcements. Neither Parent, any Seller nor Buyer shall
make any public statements, including, without limitation, any press releases,
with respect to this Agreement and the transactions contemplated hereby without
the prior written consent of the other party (which consent shall not be
unreasonably withheld), except as may be required by applicable law or the rules
of the New York Stock Exchange, the London Stock Exchange or the City Code on
Take-overs and Mergers. If a public statement is required to be made by law or
the rules of the New York Stock Exchange, the London Stock Exchange or the City
Code on Take-overs and Mergers, the parties shall consult with each other in
advance as to the contents and timing thereof.
11.12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
11.13. Currency Conversion. If, for any purpose under this Agreement,
including the preparation of any Closing Date Balance Sheet, it is necessary to
convert an amount denominated in a currency other than U.S. dollars into U.S.
dollars, the parties hereto agree, to the fullest extent they may legally and
effectively do so, that the rate of exchange used shall be that published in The
Wall Street Journal as the rate to purchase with U.S. dollars the applicable
currency in New York, New York on the business day immediately preceding the
date as of which such amount is stated or, in the case of any payment, the
payment date.
11.14. Exhibits and Disclosure Schedule. The Disclosure Schedule and
the Exhibits hereto are hereby incorporated herein and shall be made a part
hereof.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed on its behalf as of the date first above written.
SIMON UNITED STATES HOLDINGS INC.
By:________________________________
Title:_____________________________
SIMON OVERSEAS HOLDINGS LIMITED
By:________________________________
Title:_____________________________
SIMON ENGINEERING plc
By:__________________________________
Title:_______________________________
TEREX CORPORATION
By:__________________________________
Title:_______________________________