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EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
Dated March 8, 2005
among
GARDNER DENVER, INC.,
PT ACQUISITION CORPORATION
and
THOMAS INDUSTRIES INC.
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TABLE OF CONTENTS
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ARTICLE I
Definitions................................................................................1
Section 1.01
Definitions................................................................................1
Section 1.02 Cross References to Certain Terms Defined Elsewhere
in this Agreement......................4
ARTICLE II The
Merger.................................................................................6
Section 2.01 The
Merger.................................................................................6
Section 2.02
Closing....................................................................................6
Section 2.03 Effective
Time.............................................................................6
Section 2.04
Effects....................................................................................6
Section 2.05 Certificate of Incorporation and
Bylaws....................................................7
Section 2.06
Directors..................................................................................7
Section 2.07
Officers...................................................................................7
ARTICLE III Effect of Merger; Exchange of
Certificates.................................................7
Section 3.01 Effect on Capital
Stock....................................................................7
Section 3.02 Exchange of
Certificates...................................................................8
Section 3.03 Stock Options, SARs and Performance
Shares................................................10
ARTICLE IV Representations and Warranties of the
Company.............................................12
Section 4.01 Organization, Standing and
Power..........................................................12
Section 4.02 Company Subsidiaries; Equity
Interests....................................................12
Section 4.03 Capital
Structure.........................................................................12
Section 4.04 Authority; Execution and Delivery,
Enforceability.........................................13
Section 4.05 No Conflicts;
Consents....................................................................14
Section 4.06 SEC Documents and Related
Matters.........................................................15
Section 4.07 Proxy Statement and Company Future SEC
Filings............................................17
Section 4.08 Compliance with Applicable
Laws...........................................................19
Section 4.09 Litigation and
Insurance..................................................................20
Section 4.10
Taxes.....................................................................................20
Section 4.11 Certain
Agreements........................................................................21
Section 4.12 Absence of Changes in Benefit
Plans.......................................................21
Section 4.13 ERISA Compliance; Excess Parachute
Payments...............................................22
Section 4.14 Absence of Certain Changes or
Events......................................................24
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Section 4.15
Properties................................................................................24
Section 4.16 Intellectual
Property.....................................................................24
Section 4.17 Environmental
Matters.....................................................................25
Section 4.18 Labor and Employment
Matters..............................................................26
Section 4.19 Brokers; Schedule of Fees and
Expenses....................................................26
Section 4.20 Opinion of Financial
Advisor..............................................................27
ARTICLE V Representations and Warranties of Parent and
Sub..........................................27
Section 5.01 Organization, Standing and
Power..........................................................27
Section 5.02
Sub.......................................................................................27
Section 5.03 Authority; Execution and Delivery,
Enforceability.........................................27
Section 5.04 No Conflicts;
Consents....................................................................27
Section 5.05 Information
Supplied......................................................................28
Section 5.06
Brokers...................................................................................28
Section 5.07
Financing.................................................................................28
Section 5.08 No Additional Representations; Investigation by
Parent and Sub............................29
ARTICLE VI Covenants Relating to Conduct of
Business.................................................30
Section 6.01 Conduct of
Business.......................................................................30
Section 6.02 No
Solicitation...........................................................................33
ARTICLE VII Additional
Agreements.....................................................................34
Section 7.01 Preparation of Proxy Statement; Stockholders
Meeting......................................34
Section 7.02 Access to Information;
Confidentiality....................................................35
Section 7.03 Best Efforts;
Notification................................................................35
Section 7.04 Employment, Compensation and Benefit
Plans................................................36
Section 7.05 Indemnification; Directors' and Officers'
Insurance.......................................37
Section 7.06 Fees and
Expenses.........................................................................39
Section 7.07 Public
Announcements......................................................................39
Section 7.08 Transfer
Taxes............................................................................39
ARTICLE VIII Conditions
Precedent......................................................................39
Section 8.01 Conditions to Each Party's Obligation To Effect The
Merger................................39
Section 8.02 Further Conditions to Obligation of the
Company...........................................40
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Section 8.03 Further Conditions to Obligation of Parent and
Sub........................................40
ARTICLE IX Termination, Amendment and
Waiver.........................................................41
Section 9.01
Termination...............................................................................41
Section 9.02 Effect of
Termination.....................................................................42
Section 9.03
Amendment.................................................................................44
Section 9.04 Extension;
Waiver.........................................................................44
ARTICLE X General
Provisions........................................................................45
Section 10.01 Non-Survival of Representations, Warranties and
Agreements................................45
Section 10.02
Notices...................................................................................45
Section 10.03 Interpretation; Disclosure
Letters........................................................46
Section 10.04
Severability..............................................................................46
Section 10.05
Counterparts..............................................................................46
Section 10.06 Entire Agreement; No Third-Party
Beneficiaries............................................47
Section 10.07 Governing
Law.............................................................................47
Section 10.08
Assignment................................................................................47
Section 10.09 Enforcement; Jurisdiction; WAIVER OF JURY
TRIAL...........................................47
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This AGREEMENT AND PLAN OF MERGER (this "AGREEMENT") is
dated
this 8th day of March, 2005 by and among Gardner Denver, Inc., a
Delaware
corporation ("PARENT"), PT Acquisition Corporation, a Delaware
corporation and a
wholly owned Subsidiary of Parent ("SUB"), and Thomas Industries
Inc., a
Delaware corporation (the "COMPANY").
WHEREAS, the Boards of Directors of Sub and the Company have
approved and deemed it advisable and in the best interests of
their respective
stockholders to consummate, and the Board of Directors of Parent
has approved,
the acquisition of the Company by Parent on the terms and
subject to the
conditions set forth in this Agreement;
WHEREAS, the Boards of Directors of Sub and the Company have
approved and deemed it advisable and in the best interests of
their respective
stockholders to consummate, and the Board of Directors of Parent
has approved,
the merger (the "MERGER") of Sub with and into the Company, on
the terms and
subject to the conditions set forth in this Agreement;
WHEREAS, upon the consummation of the Merger, each issued
and
outstanding share of common stock of the Company, par value
$1.00 per share (the
"COMPANY COMMON STOCK"), shall be converted into the right to
receive in cash
$40.00 (such amount, or any higher amount per share of Company
Common Stock paid
pursuant to this Agreement, the "MERGER PRICE"), upon the terms
and subject to
the limitations and conditions of this Agreement;
WHEREAS, the Boards of Directors of Parent, Sub and the
Company have each determined that the Merger and the other
Transactions are
consistent with, and in furtherance of, their respective
business strategies and
goals; and
WHEREAS, Parent, Sub and the Company desire to make certain
representations, warranties, covenants and agreements in
connection with the
Merger and also to prescribe various conditions to the
Merger.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements
set forth
herein, the parties hereto agree as follows:
ARTICLE I
Definitions
-----------
Section 1.01 Definitions. As used in this Agreement, the
following terms shall have the meanings set forth below:
"AFFILIATE" of any Person means another Person that,
directly
or indirectly, through one or more intermediaries, controls, is
controlled by,
or is under common control with, such first Person.
"BUSINESS DAY" means any day that is not a Saturday, a
Sunday
or a day on which banks are required or permitted to be closed
in the State of
New York.
"CODE" means the Internal Revenue Code of 1986, as amended.
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"COMPANY MATERIAL ADVERSE EFFECT" means (a) any change,
effect, event, occurrence or state of facts having a material
adverse effect on
the business, assets, financial condition or results of
operations of the
Company and the Company Subsidiaries, taken as a whole, other
than effects
relating to (1) changes, effects, events, occurrences or
circumstances that
generally affect the United States or the global economy or the
industries in
which the Company operates, (2) general economic, financial or
securities market
conditions in the United States or elsewhere, (3) the execution,
delivery or
announcement of this Agreement or the announcement of the
Merger, (4) changes in
GAAP or requirements applicable to the Company and the Company
Subsidiaries, (5)
changes in Laws or interpretations thereof by a Governmental
Entity, (6)
changes, effects, events or occurrences caused by or resulting
from the taking
of any action required or permitted by this Agreement or
approved by Parent or
(7) any outbreak of major hostilities in any country in which
the Company
operates or in which the United States is involved or any act of
terrorism
within the United States or any country in which the Company
operates or
directed against United States facilities or citizens wherever
located or (b) a
material adverse effect on the ability of the Company to perform
its obligations
under this Agreement.
"COMPANY PERFORMANCE SHARES" mean the performance shares
issued under the Company Stock Plan.
"COMPANY SAR" means any stock appreciation right linked to
the
price of Company Common Stock and granted under the Company
Stock Plan.
"COMPANY STOCK OPTION" means any option to purchase Company
Common Stock granted under the Company Stock Plan.
"COMPANY STOCK PLAN" means the Thomas Industries Inc. 1995
Incentive Stock Plan, as Amended and Restated (and predecessors
thereto
including the Thomas Industries Inc. 1995 Incentive Stock Plan
and the Thomas
Industries Inc. Non-Employee Director Stock Option Plan).
"COMPANY TAKEOVER PROPOSAL" means any proposal or offer (1)
for a merger, share exchange, business combination,
consolidation, dual listed
structure, liquidation, dissolution, recapitalization,
reorganization or other
similar transaction involving the Company, or (2) to acquire in
any manner,
directly or indirectly, 15% or more of the equity securities of
the Company or
(3) to acquire, lease, exchange, mortgage, pledge, dispose of or
otherwise
transfer, in any manner (including through any arrangement
having substantially
the same economic effect as a sale of assets), directly or
indirectly, over 15%
of the consolidated total assets of the Company, in a single
transaction or a
series of related transactions, in each case other than the
Transactions.
"ISO" means a Company Stock Option that meets the incentive
stock option requirements of Section 422 of the Code.
"PARENT MATERIAL ADVERSE EFFECT" means any effect, event or
change that prevents or materially delays the ability of Parent
and Sub to
perform their obligations under this Agreement or to consummate
the Merger or
the other Transactions in accordance with the terms hereof.
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"PERSON" means any individual, firm, corporation,
partnership,
company, limited liability company, trust, joint venture,
association,
Governmental Entity or other entity.
"SARBANES-OXLEY ACT" means the Sarbanes-Oxley Act of 2002.
"SEC" means the United States Securities and Exchange
Commission.
"SIGNIFICANT COMPANY SUBSIDIARY" means any Subsidiary of the
Company that constitutes a significant subsidiary within the
meaning of Rule
1-02 of Regulation S-X of the SEC.
"SUBSIDIARY" of any Person means another Person, an amount
of
the voting securities, other voting ownership or voting
partnership interests of
which is sufficient to elect at least a majority of its Board of
Directors or
other governing body (or, if there are no such voting interests,
50% or more of
the equity interests of which) is owned directly or indirectly
by such first
Person.
"SUPERIOR COMPANY PROPOSAL" means a written proposal made by
a
third Person to acquire all of the outstanding Company Common
Stock or all or
substantially all of the assets of the Company and the Company
Subsidiaries,
pursuant to a tender or exchange offer, a merger, a
consolidation, a liquidation
or dissolution, a recapitalization or a sale of assets, in each
case that the
Board of Directors of the Company determines in good faith after
consulting with
the Company's outside financial and legal advisors (i) is
reasonably capable of
being completed, taking into account all legal, financial,
regulatory and other
aspects of such proposal, and (ii) presents to the Company and
its stockholders
more favorable financial and other terms, taken as a whole, than
the Merger
(taking into account any changes in the terms of the Merger made
by Parent and
Sub as a result of such proposal).
"TAXES" includes all forms of taxation, whenever created or
imposed, and whether of the United States or elsewhere, and
whether imposed by a
local, municipal, governmental, state, foreign, Federal or other
Governmental
Entity, or in connection with any agreement with respect to
taxes, including all
interest, penalties and additions imposed with respect to such
amounts.
"TAX RETURN" means all Federal, state, local, provincial and
foreign Tax returns, declarations, statements, reports,
schedules, forms and
information returns and any amended Tax return relating to
Taxes.
"TRANSACTIONS" means the Merger and the other transactions
contemplated by this Agreement.
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Section 1.02 Cross References to Certain Terms Defined
Elsewhere in this Agreement.
Term Section
---- -------
Affected Employee 7.04(c)
Affiliate 1.01
Agreement Preamble
All Benefit Plans and Agreements 4.12
Appraisal Shares 3.01(d)
Auditing Standard No. 2 4.07(c)
Baird 4.19
Business Day 1.01
Certificate of Merger 2.03
Certificates 3.02(b)
Certifications 4.06(b)
Closing 2.02
Closing Date 2.02
Code 1.01
Company Preamble
Company Benefit Agreements 4.12
Company Benefit Plans 4.12
Company Board 4.04(b)
Company Bylaws 4.01
Company Capital Stock 4.03
Company Charter 4.01
Company Common Stock Preamble
Company Contracts 4.11
Company Disclosure Letter Article IV
Company Future SEC Filings 4.07(c)
Company Intellectual Property 4.16
Company Material Adverse Effect 1.01
Company Multiemployer Pension Plan 4.13(b)
Company Pension Plans 4.13(a)
Company Performance Shares 1.01
Company Permits 4.08(a)
Company Rights 4.03
Company Rights Agreement 4.03
Company SAR 1.01
Company SEC Documents 4.06(b)
Company Stock Option 1.01
Company Stock Plan 1.01
Company Stockholder Approval 4.04(c)
Company Stockholders Meeting 7.01(b)
Company Subsidiary 4.02
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Term Section
---- -------
Company Takeover Proposal 1.01
Company Termination Fee 9.02(b)
Company 2004 Form 10-K 4.07(b)
Confidentiality Agreement 7.02
Consent 4.05(b)
Contract 4.05(a)
DGCL 2.01
Effective Time 2.03
Environmental Laws 4.17(a)
ERISA 4.13(a)
Exchange Act 3.03(f)
Exchange Fund 3.02
Expense Reimbursement 9.02(c)
GAAP 4.06(e)
Governmental Entity 4.05(b)
Hazardous Materials 4.17(c)
HSR Act 4.05(b)
Indemnified Parties 7.05(b)
Infringe 4.16
Injunction 8.01(c)
Insolvent 5.07(c)
Judgment 4.05(a)
Law 4.05(a)
Liens 4.02(a)
Management Report 4.07(c)
Merger Preamble
Merger Consideration 3.01(c)(2)
Merger Price Preamble
Outside Date 9.01(d)
Parent Preamble
Parent Disclosure Letter Article V
Parent Material Adverse Effect 1.01
Parent Termination Fee 9.02(d)
Paying Agent 3.02
Permitted Liens 4.15
Person 1.01
Proxy Statement 7.01
Representatives 6.02(b)
Requisite Regulatory Approvals 8.01(b)
Sarbanes-Oxley Act 1.01
SEC 1.01
Section 262 3.01(d)
Securities Act 4.06(c)
Significant Company Subsidiary 1.01
Sub Preamble
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Term Section
---- -------
Subsidiary 1.01
Superior Company Proposal 1.01
Surviving Corporation 2.01
Tail Insurance 7.05(c)
Tax Return 1.01
Taxes 1.01
Transactions 1.01
Transfer Taxes 7.08
U.S. Benefit Plans and Agreements 4.12
ARTICLE II
The Merger
----------
Section 2.01 The Merger. On the terms and subject to the
conditions set forth in this Agreement, and in accordance with
the Delaware
General Corporation Law (the "DGCL"), Sub shall be merged with
and into the
Company at the Effective Time. At the Effective Time, the
separate corporate
existence of Sub shall cease and the Company shall continue as
the surviving
corporation (the "SURVIVING CORPORATION"). As a result of the
Merger, the
Company shall become a wholly-owned Subsidiary of Parent.
Section 2.02 Closing. The closing of the Merger (the
"CLOSING") will take place at the offices of McDermott Will
& Emery LLP, 227
West Monroe St., Chicago, Illinois 60606 at 10:00 a.m. on the
date (the "CLOSING
DATE") that is the second Business Day following the
satisfaction (or, to the
extent permitted by Law, waiver by all parties) of the
conditions set forth in
Article VIII, or, if on such day any condition set forth in
Article VIII has not
been satisfied (or, to the extent permitted by Law, has not been
waived by the
party or parties entitled to the benefits thereof), as soon as
practicable after
all the conditions set forth in Article VIII have been satisfied
(or, to the
extent permitted by Law, waived by the parties entitled to the
benefits
thereof), or at such other place, time and date as shall be
agreed in writing
between Parent and the Company.
Section 2.03 Effective Time. Subject to the provisions of
this
Agreement, on the Closing Date the Company and Sub shall execute
and deliver for
filing a certificate of merger (the "CERTIFICATE OF MERGER") to
the Secretary of
State of the State of Delaware in such form and manner provided
in the DGCL and
shall make all other filings or recordings required under the
DGCL in connection
with the Merger. The Merger shall become effective at such time
as the
Certificate of Merger is duly filed with the Secretary of State
of the State of
Delaware, or at such later time as may be specified in the
Certificate of Merger
(the time the Merger becomes effective being the "EFFECTIVE
TIME").
Section 2.04 Effects. The Merger shall have the effects set
forth in Section 259 of the DGCL.
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Section 2.05 Certificate of Incorporation and Bylaws. (a) At
the Effective Time, the Certificate of Incorporation of the
Surviving
Corporation shall be amended to read in the form of Exhibit A
and, as so
amended, such Certificate of Incorporation shall be the
Certificate of
Incorporation of the Surviving Corporation until thereafter
changed or amended
as provided therein or by applicable Law.
(b) The bylaws of Sub as in effect immediately prior to the
Effective Time shall be the bylaws of the Surviving Corporation
until thereafter
changed or amended as provided therein or by applicable Law.
Section 2.06 Directors. The directors of Sub immediately
prior
to the Effective Time shall be the directors of the Surviving
Corporation, until
the earlier of their resignation or removal or until their
respective successors
are duly elected and qualified, as the case may be.
Section 2.07 Officers. The officers of the Company
immediately
prior to the Effective Time shall be the officers of the
Surviving Corporation,
until the earlier of their resignation or removal or until their
respective
successors are duly elected or appointed and qualified, as the
case may be.
ARTICLE III
Effect of Merger; Exchange of Certificates
------------------------------------------
Section 3.01 Effect on Capital Stock. At the Effective Time,
by virtue of the Merger and without any action on the part of
Parent, Sub, the
Company or the holder of any shares of Company Common Stock or
any shares of
capital stock of Sub:
(a) Capital Stock of Sub. Each issued and outstanding share
of
capital stock of Sub issued and outstanding immediately prior to
the Effective
Time shall be converted into and become one fully paid and
nonassessable share
of common stock, par value $0.01 per share, of the Surviving
Corporation.
(b) Cancellation of Treasury Stock and Parent-Owned Company
Common Stock. Each share of Company Common Stock that is owned
by the Company
(or any Subsidiary of the Company), Parent (or any Subsidiary of
Parent) or Sub
shall no longer be outstanding and shall automatically be
canceled and retired
and shall cease to exist, and no consideration shall be
delivered or deliverable
in exchange therefor.
(c) Conversion of Company Common Stock. (1) Except as
otherwise provided by Sections 3.01(b) and 3.01(d), each issued
share of Company
Common Stock shall be converted into the right to receive the
Merger Price.
(2) The aggregate amount of cash payable upon the conversion
of all of the issued shares of Company Common Stock pursuant to
this Section
3.01(c) is referred to as the "MERGER CONSIDERATION." As of the
Effective Time,
all such shares of Company Common Stock shall no longer be
outstanding and shall
automatically be canceled and retired and shall cease to exist,
and each holder
of a certificate representing any such shares of Company Common
Stock shall
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cease to have any rights with respect thereto, except the right
to receive
Merger Consideration upon surrender of such certificate in
accordance with
Section 3.02, without interest.
(d) Appraisal Rights. Notwithstanding anything in this
Agreement to the contrary, each of the shares ("APPRAISAL
SHARES") of Company
Common Stock that are outstanding immediately prior to the
Effective Time and
that are held by any Person who is entitled to demand and
properly demands
appraisal of such Appraisal Shares pursuant to, and who complies
in all respects
with, Section 262 of the DGCL ("SECTION 262") shall not be
converted into the
Merger Price as provided in Section 3.01(c), but rather the
holders of Appraisal
Shares shall be entitled to payment of the fair market value of
such Appraisal
Shares in accordance with Section 262; provided that if any such
holder shall
fail to perfect or otherwise shall waive, withdraw or lose the
right to
appraisal under Section 262, then the right of such holder to be
paid the fair
value of any of such holder's Appraisal Shares shall cease and
each of such
holder's Appraisal Shares shall be deemed to have been converted
as of the
Effective Time into, and to have become exchangeable solely for
the right to
receive, the Merger Price as provided in Section 3.01(c),
without any interest
thereon.
Section 3.02 Exchange of Certificates. (a) Paying Agent.
Parent shall appoint JPMorgan Trust Company, N.A. or another
paying agent
acceptable to the Company to act as paying agent (the "PAYING
AGENT") for the
payment of the Merger Consideration upon surrender of
certificates representing
Company Common Stock. Parent shall take all steps necessary to
enable and cause
the Surviving Corporation to provide to the Paying Agent
immediately following
the Effective Time all the cash necessary to pay for the shares
of Company
Common Stock converted into the right to receive cash pursuant
to Section 3.01
and the amounts payable to holders of Company Stock Options,
Company SARs and
Company Performance Shares as set forth in Section 3.03 (such
cash being
hereinafter referred to as the "EXCHANGE FUND"). The Exchange
Fund shall not be
used for any other purpose. The Paying Agent shall invest any
cash deposited
with the Paying Agent by Parent as directed by Parent; provided
that no such
investment or losses thereon shall affect the Merger
Consideration payable to
holders of shares of Company Common Stock entitled to receive
such
consideration, or the consideration to be paid to the holders of
the Company
Stock Options, Company SARs and Company Performance Shares as
set forth in
Section 3.03, and Parent shall promptly provide additional funds
to Paying Agent
for the benefit of holders of shares of Company Common Stock,
Company Stock
Options, Company SARs and Company Performance Shares entitled to
receive such
consideration in the amount of any such losses. Any interest or
income produced
by such investment shall not be deemed part of the Exchange Fund
and shall be
payable to Parent.
(b) Exchange Procedure. As soon as reasonably practicable
after the Effective Time, but in no event later than three
Business Days after
the Effective Time, Parent shall cause the Paying Agent to mail
to each holder
of record of a certificate or certificates that immediately
prior to the
Effective Time represented outstanding shares of Company Common
Stock (the
"CERTIFICATES") whose shares were converted into the right to
receive Merger
Consideration pursuant to Section 3.01, (1) a letter of
transmittal (which shall
specify that delivery shall be effected, and risk of loss and
title to the
Certificates shall pass, only upon delivery of the Certificates
to the Paying
Agent and shall be in such form and have such other provisions
as are reasonably
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acceptable to each of Parent and the Company) and (2)
instructions for use in
effecting the surrender of the Certificates in exchange for
payment of the
Merger Consideration therefor. Upon surrender of a Certificate
for cancellation
to the Paying Agent together with such letter of transmittal,
duly completed and
validly executed in accordance with the instructions thereto,
and such other
documents as may reasonably be required pursuant to such
instructions, the
holder of such Certificate shall be entitled to receive in
exchange therefor the
amount of cash into which the shares of Company Common Stock
theretofore
represented by such Certificate shall have been converted
pursuant to Section
3.01, and the Certificate so surrendered shall forthwith be
canceled. In the
event of a transfer of ownership of Company Common Stock that is
not registered
in the transfer records of the Company, payment may be made to a
Person other
than the Person in whose name the Certificate so surrendered is
registered, if
such Certificate shall be properly endorsed or otherwise be in
proper form for
transfer and the Person requesting such payment shall pay any
transfer or other
Taxes required by reason of the payment to a Person other than
the registered
holder of such Certificate or establish to the satisfaction of
Parent that such
Tax has been paid or is not applicable. Until surrendered as
contemplated by
this Section 3.02, each Certificate shall be deemed at any time
after the
Effective Time to represent only the right to receive upon such
surrender the
amount of cash, without interest, into which the shares of
Company Common Stock
theretofore represented by such Certificate have been converted
pursuant to
Section 3.01. No interest shall be paid or accrue on the cash
payable upon
surrender of any Certificate.
(c) No Further Ownership Rights in Company Common Stock. The
Merger Consideration paid in accordance with the terms of this
Article III upon
conversion of any shares of Company Common Stock shall be deemed
to have been
paid in full satisfaction of all rights pertaining to such
shares of Company
Common Stock, subject, however, to the Surviving Corporation's
obligation to pay
any dividends or make any other distributions with a record date
prior to the
Effective Time that may have been declared or made by the
Company on such shares
of Company Common Stock in accordance with the terms of this
Agreement or prior
to the date of this Agreement and which remain unpaid at the
Effective Time.
After the Effective Time there shall be no further registration
of transfers on
the stock transfer books of the Surviving Corporation of shares
of Company
Common Stock that were outstanding immediately prior to the
Effective Time. If,
after the Effective Time, any certificates formerly representing
shares of
Company Common Stock are presented to the Surviving Corporation
or the Paying
Agent for any reason, they shall be canceled and exchanged as
provided in this
Article III.
(d) Termination of Exchange Fund. Upon demand by Parent, any
portion of the Exchange Fund that remains undistributed to the
holders of
Company Common Stock for one year after the Effective Time shall
be delivered to
Parent, upon demand, and any holder of Company Common Stock,
Company Stock
Options, Company SARs or Company Performance Shares who has not
theretofore
complied with this Article III shall thereafter look only to
Parent for payment
of its claim for Merger Consideration or the consideration to be
paid pursuant
to Section 3.03, as the case may be.
(e) No Liability. None of Parent, Sub, the Company or the
Paying Agent shall be liable to any Person in respect of any
cash from the
Exchange Fund delivered to a public official pursuant to any
applicable
abandoned property, escheat or similar Law.
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(f) Withholding Rights. Each of Parent, the Surviving
Corporation and the Paying Agent shall be entitled to deduct and
withhold from
the consideration otherwise payable to any holder of Company
Common Stock
pursuant to this Agreement such amounts as may be required to be
deducted and
withheld with respect to the making of such payment under the
Code, or under any
provision of state, local or foreign Tax Law. To the extent such
amounts are so
withheld by Parent, the Surviving Corporation or the Paying
Agent, such withheld
amounts shall be treated for all purposes of this Agreement as
having been paid
to the holder of the Company Common Stock in respect of which
such deduction and
withholding was made by Parent, the Surviving Corporation or the
Paying Agent.
(g) Lost Certificates. If any Certificate has been or is
claimed to have been lost, stolen or destroyed, upon the making
of an affidavit
of that fact by the Person claiming that Certificate has been
lost, stolen or
destroyed, the Paying Agent will deliver in exchange for such
lost, stolen or
destroyed Certificate, the proper amount of the Merger
Consideration. The
Surviving Corporation shall have the right to require the
posting of a bond or
other indemnity in connection with any such affidavit.
Section 3.03 Stock Options, SARs and Performance Shares. (a)
As soon as practicable following the date of this Agreement, the
Board of
Directors or the committee administering the Company Stock Plan
shall adopt such
resolutions or take such other actions, as are required to
adjust the terms of
all outstanding Company Stock Options that are not ISOs and all
outstanding
Company SARs heretofore granted under the Company Stock Plan to
provide that
each Company Stock Option that is not an ISO and each Company
SAR outstanding at
the Effective Time shall be cancelled and that in exchange
therefor the holder
thereof shall not have the right to receive any capital stock of
the Company or
the Surviving Corporation after the Effective Time or to receive
from the
Company or the Surviving Corporation any consideration other
than an amount of
cash equal to (1) the excess, if any, of (x) the Merger Price
over (y) the
exercise price per share of Company Common Stock subject to such
Company Stock
Option that is not an ISO or Company SAR, as the case may be,
multiplied by (2)
the number of shares of Company Common Stock for which such
Company Stock Option
that is not an ISO or Company SAR shall not theretofore have
been exercised. All
amounts payable pursuant to this paragraph shall be subject to
any required
withholding of Taxes and shall be paid without interest.
(b) As soon as practicable following the date of this
Agreement, the Board of Directors or the committee administering
the Company
Stock Plan shall adopt such resolutions or take such other
actions, as are
required to adjust the terms of all outstanding ISOs heretofore
granted under
the Company Stock Plan to provide that each ISO outstanding at
the Effective
Time shall be fully vested and exercised automatically on a net
exercise basis
with the ISO holder immediately selling the shares received on
exercise to the
Company for an amount of cash equal to the number of shares
received multiplied
by the Merger Price. All amounts payable pursuant to this
paragraph shall not be
subject to any required withholding of Taxes and shall be paid
without interest.
(c) As soon as practicable following the date of this
Agreement, the Board of Directors or the committee administering
the Company
Stock Plan shall adopt such resolutions or take such other
actions, as are
required to adjust the terms of any Company Performance Share
awards heretofore
granted under the Company Stock Plan to provide that as of the
Effective Time
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<PAGE>
the performance goals established thereunder shall be deemed
satisfied and 100%
of the target shares then credited to each participant shall be
awarded and
deemed payable to each participant; provided that the holder
thereof shall not
have the right to receive any capital stock of the Company or
the Surviving
Corporation after the Effective Time or to receive from the
Company or the
Surviving Corporation any consideration other than an amount of
cash equal to
(x) the Merger Price multiplied by (y) the number of target
shares awarded to
the participant pursuant to this sentence. All amounts payable
pursuant to this
paragraph shall be subject to any required withholding of Taxes
and shall be
paid without interest.
(d) As soon as practicable following the date of this
Agreement, the Board of Directors or the committee administering
the Company
Stock Plan shall adopt such resolutions or take such other
actions, as are
required to adjust the terms of any deferrals under such plan to
non-employee
directors to provide that participants shall not have the right
to receive any
capital stock of the Company or the Surviving Corporation after
the Effective
Time or to receive from the Company or the Surviving Corporation
any
consideration other than an amount of cash equal to the Merger
Price multiplied
by the number of full and fractional shares held by the
participant under such
plan.
(e) The Company Stock Plan shall terminate as of the
Effective
Time, and the provisions in any other Company Benefit Plan
providing for the
issuance, transfer or grant of any capital stock of the Company
or any interest
in respect of any capital stock of the Company shall be deleted
as of the
Effective Time, and the Company shall ensure that following the
Effective Time
no holder of a Company Stock Option, Company SAR or Company
Performance Share or
any participant in the Company Stock Plan or other Company
Benefit Plan shall
have any right thereunder to acquire any capital stock of the
Company or the
Surviving Corporation.
(f) As soon as reasonably practicable after the Effective
Time, but in no event later than three Business Days after the
Effective Time,
Parent shall cause the Paying Agent to mail to each holder of
Company Stock
Options, Company SARs and Company Performance Shares entitled to
receive cash in
exchange therefor pursuant to this Section 3.03 (i) a letter of
transmittal
(which shall be in such form and have such other provisions as
are reasonably
acceptable to each of Parent and the Company) and (ii)
instructions reasonably
acceptable to Parent and the Company for use in effecting the
surrender,
cancellation and termination of such Company Stock Options,
Company SARs and
Company Performance Shares in exchange for cash in accordance
with this Section
3.03.
(g) Prior to the Effective Time, the Board of Directors or
Compensation Committee of the Company shall take all reasonable
actions required
pursuant to Rule 16b-3(e) under the Securities Exchange Act of
1934, as amended
(the "EXCHANGE ACT"), to cause the disposition in the Merger of
Company Common
Stock, Company Stock Options, Company SARs and Company
Performance Shares by
each executive officer and director of the Company who is
subject to the
reporting requirements of Section 16(a) of the Exchange Act with
respect to the
Company to be exempt from the provisions of Section 16(b) of the
Exchange Act.
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<PAGE>
ARTICLE IV
Representations and Warranties of the Company
---------------------------------------------
The Company represents and warrants to Parent and Sub that,
except as set forth in the Company SEC Documents or in the
letter, dated as of
the date of this Agreement, from the Company to Parent and Sub
(the "COMPANY
DISCLOSURE LETTER"):
Section 4.01 Organization, Standing and Power. Each of the
Company and each Company Subsidiary is duly organized, validly
existing and in
good standing under the Laws of the jurisdiction in which it is
organized and
has full corporate power and authority to conduct its businesses
as presently
conducted. The Company and each Company Subsidiary is duly
qualified to do
business in each jurisdiction where the nature of its business
or the ownership
or leasing of its properties makes such qualification necessary
or the failure
to so qualify has had or could reasonably be expected to have a
Company Material
Adverse Effect. The Company has made available to Parent true
and complete
copies of the certificate of incorporation of the Company, as
amended to the
date of this Agreement (as so amended, the "COMPANY CHARTER"),
and the bylaws of
the Company, as amended to the date of this Agreement (as so
amended, the
"COMPANY BYLAWS"), and the comparable charter and organizational
documents of
each Significant Company Subsidiary, in each case as amended
through the date of
this Agreement.
Section 4.02 Company Subsidiaries; Equity Interests. (a) The
Company Disclosure Letter lists each Subsidiary of the Company
(each, a "COMPANY
SUBSIDIARY") and its jurisdiction of organization. All the
outstanding shares of
capital stock of each Company Subsidiary have been validly
issued and are fully
paid and nonassessable and, except as set forth in the Company
Disclosure
Letter, are owned by the Company, by another Company Subsidiary
or by the
Company and another Company Subsidiary (other than director's
qualifying shares
or similar requirements of a foreign jurisdiction), free and
clear of all
pledges, liens, charges, mortgages, encumbrances, security
interests or other
adverse claims of any kind or nature whatsoever (collectively,
"Liens"). Except
with respect to agreements relating to director's qualifying
shares or similar
requirements of a foreign jurisdiction, neither the Company nor
any Company
Subsidiary is a party to any voting trust, proxy or other
agreement or
understanding with respect to the voting of any capital stock of
the Company or
any Company Subsidiary.
(b) Except for its interests in the Company Subsidiaries and
except for the ownership interests set forth in the Company
Disclosure Letter,
the Company does not own, directly or indirectly, any capital
stock, membership
interest, partnership interest, joint venture interest or other
equity interest
with a fair market value as of the date of this Agreement in
excess of
$1,000,000 in any Person.
Section 4.03 Capital Structure. The authorized capital stock
of the Company consists of 60,000,000 shares of Company Common
Stock and
3,000,000 shares of preferred stock, par value $1.00 per share
(the "COMPANY
PREFERRED STOCK" and, together with the Company Common Stock,
the "COMPANY
CAPITAL STOCK"). At the close of business on March 3, 2005, (a)
17,849,925
shares of Company Common Stock and no shares of Company
Preferred Stock were
issued and outstanding, (b) 822,339 shares of Company Common
Stock were held by
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<PAGE>
the Company in its treasury, (c) 1,032,826 shares of Company
Common Stock were
subject to outstanding Company Stock Options, Company SARs or
Company
Performance Shares and 810,851 additional shares of Company
Common Stock were
reserved for issuance pursuant to the Company Stock Plan, (d)
22,539.41 shares
of Company Common Stock were subject to outstanding deferrals by
non-employee
directors under the Company Stock Plan and (e) 60,000,000 shares
of Company
Common Stock and 3,000,000 shares of Company Preferred Stock
were reserved for
issuance in connection with the rights (the "COMPANY RIGHTS")
issued pursuant to
the Amended and Restated Rights Agreement dated as of April 20,
2000 (as amended
from time to time, the "COMPANY RIGHTS AGREEMENT"), between the
Company and
National City Bank, as Rights Agent. Except as set forth above,
at the close of
business on March 3, 2005, no shares of capital stock or other
equity securities
of the Company, including any securities or instruments
containing profit
participation or similar features, were issued, reserved for
issuance or
outstanding. All outstanding shares of Company Capital Stock
are, and all such
shares that may be issued prior to the Effective Time will be
when issued, duly
authorized, validly issued, fully paid and nonassessable. No
outstanding shares
of Company Capital Stock were issued in violation of any
contract to which the
Company or any Company Subsidiary is or was a party or any
statutory preemptive
right, right of first refusal or similar right. Except for this
Agreement or as
set forth above or disclosed in the Company Disclosure Letter,
there are not any
options, warrants, rights, convertible or exchangeable
securities, subscriptions
or agreements to which the Company or any Company Subsidiary is
a party (1)
obligating the Company or any Company Subsidiary to issue,
deliver or sell, or
cause to be issued, delivered or sold, additional shares of
capital stock or
other equity interests in, or any security convertible or
exercisable for or
exchangeable into any capital stock of or other equity interest
in, the Company
or of any Company Subsidiary or (2) obligating the Company or
any Company
Subsidiary to issue, grant, extend or enter into any such
option, warrant, call,
right, security, commitment, Contract, arrangement or
undertaking. There are not
any outstanding contractual obligations of the Company or any
Company Subsidiary
to repurchase, redeem or otherwise acquire any shares of capital
stock of the
Company or any Company Subsidiary. The Company has made
available to Parent a
true and complete copy of the Company Rights Agreement, as
amended to the date
of this Agreement. As of the Effective Time, all of the Company
Rights shall
have expired and no Company Right shall be outstanding. As of
the Effective
Time, the former holders of Company Rights shall not be entitled
to receive any
payment or consideration in connection therewith. Except as set
forth in the
Company Disclosure Letter, the Board of Directors of the Company
has not
declared any dividend or distribution with respect to the
Company Common Stock
the record or payment date for which is on or after the date of
this Agreement.
Section 4.04 Authority; Execution and Delivery,
Enforceability. (a) Except for the receipt of the Company
Stockholder Approval,
the execution and delivery by the Company of this Agreement and
the consummation
by the Company of the Merger and the other Transactions have
been duly
authorized by all necessary corporate action on the part of the
Company. The
Company has duly executed and delivered this Agreement and,
assuming this
Agreement constitutes the valid and binding agreement of Parent
and Sub, this
Agreement constitutes its legal, valid and binding obligation,
enforceable
against it in accordance with its terms.
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<PAGE>
(b) The Board of Directors of the Company (the "COMPANY
BOARD"), at a meeting duly called and held duly and unanimously
adopted
resolutions (i) approving this Agreement, the Merger and the
other Transactions,
(ii) determining that the terms of the Merger and the other
Transactions are
fair to and in the best interests of the stockholders of the
Company, (iii)
recommending that the Company's stockholders adopt this
Agreement and (iv)
declaring that this Agreement is advisable.
(c) The only vote of holders of any class or series of
Company
Capital Stock necessary to approve and adopt this Agreement and
the Merger is
the adoption of this Agreement by the holders of a majority of
the outstanding
Company Common Stock (the "COMPANY STOCKHOLDER APPROVAL").
Section 4.05 No Conflicts; Consents. (a) Except as set forth
in the Company Disclosure Letter, the execution and delivery by
the Company of
this Agreement does not, and the consummation of the Merger and
the other
Transactions will not, conflict with, or result in any violation
of or default
(with or without notice or lapse of time, or both) under, or
give rise to a
right of termination, cancellation or acceleration of any
obligation or loss of
a material benefit under, or result in the creation of any Lien
upon any of the
properties or assets of the Company or any Company Subsidiary
under, any
provision of (1) the Company Charter, the Company Bylaws or the
comparable
charter or organizational documents of any Company Subsidiary,
(2) to the
knowledge of the Company, any contract, lease, license,
indenture, note, bond,
agreement, permit, concession, franchise or other instrument (a
"CONTRACT") to
which the Company or any Company Subsidiary is a party or by
which any of their
respective properties or assets is bound or (3) to the knowledge
of the Company,
subject to the filings and other matters referred to in Section
4.05(b), any
judgment, order or decree ("JUDGMENT") or statute, law,
ordinance, rule or
regulation (including common law and interpretations thereof by
a Governmental
Entity) ("LAW") applicable to the Company or any Company
Subsidiary or their
respective properties or assets, other than, in the case of
clauses (2) and (3)
above, any such items that, individually or in the aggregate,
would not
reasonably be expected to have a Company Material Adverse
Effect.
(b) Except as set forth in the Company Disclosure Letter, no
consent, approval, license, permit, order or authorization
("CONSENT") of, or
registration, declaration or filing with, or permit from, any
Federal, state,
local or foreign government or any court of competent
jurisdiction,
administrative agency or commission or other governmental
authority or
instrumentality, domestic or foreign (a "GOVERNMENTAL ENTITY")
is required to be
obtained or made by or with respect to the Company or any
Company Subsidiary in
connection with the execution, delivery and performance of this
Agreement or the
consummation of the Transactions, which failure to make or
obtain, individually
or in the aggregate, would reasonably be expected to have a
Company Material
Adverse Effect, other than (1) compliance with and filings under
(i) the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended
(the "HSR
ACT"), and (ii) applicable foreign merger control or competition
Laws and
regulations, (2) the filing with the SEC of (i) the Proxy
Statement and (ii)
such other reports under the Exchange Act or the rules and
regulations of the
New York Stock Exchange, as may be required in connection with
this Agreement,
the Merger or the other Transactions and the obtaining from the
SEC of such
orders as may be required in connection therewith, (3) the
filing and
recordation of appropriate documents for the Merger and the
other Transactions
as required by the DGCL and appropriate documents with the
relevant authorities
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<PAGE>
of the other jurisdictions in which the Company is qualified to
do business, (4)
such filings as may be required in connection with the Taxes
described in
Section 7.08, and (5) such other items (i) that may be required
under the
applicable Law of any foreign country or Governmental Entity or
(ii) required
solely by reason of the participation of Parent or Sub (as
opposed to any third
party) in the Merger or the Transactions.
(c) The Company and the Company Board have taken all action
necessary to (1) render the Company Rights inapplicable to this
Agreement, the
Merger and the other Transactions and (2) ensure that Parent and
Sub will not
become an "Acquiring Person" (as defined in the Company Rights
Agreement) by
reason of this Agreement, the Merger or any other
Transaction).
(d) The Company Board has taken all actions necessary to
cause
the provisions of Section 203 of the DGCL to be inapplicable to
Parent or Sub
with respect to this Agreement, the Merger and the other
Transactions. To the
Company's knowledge, no other fair price, moratorium, control
share acquisition
or other form of antitakeover statute, rule or regulation of any
state or
jurisdiction applies or purports to apply to this Agreement, the
Merger or the
other Transactions.
Section 4.06 SEC Documents and Related Matters.
(a) The Company has filed on a timely basis all reports,
schedules, forms, statements and other documents required to be
filed by it with
the SEC since January 1, 2003. No Company Subsidiary is required
to file any
report, schedule, form, statement and other document with the
SEC.
(b) Except to the extent available in full without redaction
on the SEC's website at least two Business Days prior to the
date of this
Agreement, Section 4.06 of the Company Disclosure Letter lists,
and the Company
has made available to Parent complete copies of, all of the
following:
(i) the Company's Annual Reports on Form 10-K for the
fiscal years of the Company ended December 31, 2002 and December
31, 2003;
(ii) the Company's Quarterly Reports on Form 10-Q for each
of the first three fiscal quarters in the fiscal years of the
Company ended
December 31, 2003 and December 31, 2004;
(iii) the Company's Current Reports on Form 8-K filed with
the SEC from January 1, 2003 through the date of this
Agreement;
(iv) all proxy statements relating to the Company's
meetings of stockholders (whether annual or special) held, and
all information
statements relating to stockholder consents, from January 1,
2003 through the
date of this Agreement;
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<PAGE>
(v) all certifications and statements required pursuant to
Rule 13a-14(a) or 15d-14(a) under the Exchange Act or 18 U.S.C.
ss.1350 (Section
906 of the Sarbanes-Oxley Act) with respect to any report
referred to in clause
(i) and (ii) above (the "Certifications"); and
(vi) all other forms, reports, registration statements and
other documents (other than preliminary materials if the
corresponding
definitive materials have been provided to Parent pursuant to
this Section 4.06)
filed by the Company with the SEC from January 1, 2003 through
the date of this
Agreement.
The foregoing reports, schedules, forms, statements and
other
documents are collectively referred to in this Agreement as the
"Company SEC
Documents."
(c) The Company SEC Documents as of their respective dates
of
filing with the SEC (or, if amended or superseded by a filing
prior to the date
of this Agreement, as of the date of such filing) (i) were
prepared in all
material respects in accordance with the requirements of the
Securities Act of
1933, as amended (the "Securities Act"), and the Exchange Act,
as applicable,
and the rules and regulations of the SEC thereunder and (ii) did
not at the time
they were filed with the SEC contain any untrue statement of a
material fact or
omit to state a material fact required to be stated therein or
necessary in
order to make the statements made therein, in the light of the
circumstances
under which they were made, not misleading.
(d) Section 4.06 of the Company Disclosure Letter lists and
the Company has delivered to Parent complete copies of all
comment letters
received by the Company from the Staff of the SEC since January
1, 2003 and all
responses to such comment letters by or on behalf of the
Company. The term
"comment letter" as used herein shall exclude routine
correspondence or
communications sent to or received from the SEC that do not
contain substantive
comments regarding the Company's filings under the Securities
Act or the
Exchange Act.
(e) The consolidated financial statements of the Company,
including the notes thereto, included or incorporated by
reference in the
Company SEC Documents were prepared in accordance with generally
accepted
accounting principles ("GAAP") and Regulation S-X of the SEC as
in effect on the
date of filing such reports (except, in the case of unaudited
statements, as
permitted by Form 10-Q or Form 8-K of the SEC) applied on a
consistent basis
during the periods involved (except as may be indicated in the
notes thereto)
and fairly present the consolidated financial position of the
Company and its
consolidated Subsidiaries as of the dates thereof and the
consolidated results
of their operations, changes in stockholders' equity and cash
flows for the
periods shown (subject, in the case of unaudited statements, to
the absence of
footnotes and to normal year-end audit adjustments). Except as
provided in the
Company SEC Documents and with respect to Genlyte Thomas Group
LLC, no financial
statements of any Person other than the Company and the Company
Subsidiaries are
required by GAAP or Regulation S-X of the SEC to be included in
the consolidated
financial statements of the Company. As of the date of the
Agreement, the
Company has consolidated cash and cash equivalents of not less
than $230
million.
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<PAGE>
(f) Except as set forth in the Company SEC Documents or
liabilities incurred since September 30, 2004 in the ordinary
course of business
consistent with past practice, neither the Company nor any
Company Subsidiary
has any material liabilities or obligations of any nature
(whether accrued,
absolute, contingent or otherwise) that, individually or in the
aggregate, would
reasonably be expected to have a Company Material Adverse
Effect.
(g) The Company maintains disclosure controls and procedures
as defined in Rule 13a-15(e) or 15d-15(e) under the Exchange
Act.
(h) The Company has prepared and is implementing a plan to
comply with requirements of Section 404 of the Sarbanes-Oxley
Act on the date by
which it must comply with such requirements. As of the date of
this Agreement,
the Company is not aware of any reason it will not comply with
the requirements
of Section 404 of the Sarbanes-Oxley Act on the applicable
compliance date.
During the period from January 1, 2003 through the date of this
Agreement, the
management of the Company has not disclosed to the Company's
independent
registered public accounting firm or the audit committee of the
Board of
Directors of the Company any occurrence of material fraud that
involves
management or other employees of the Company or the Company
Subsidiaries who
have a significant role in the Company's internal controls over
financial
reporting.
(i) The Company is in compliance in all material respects
with
the applicable listing standards of the New York Stock Exchange
and has not
since January 1, 2003 received any written notice from the New
York Stock
Exchange asserting any material non-compliance with such
standards.
Section 4.07 Proxy Statement and Company Future SEC Filings.
(a) The Proxy Statement will not, on the date it is first
published or sent or delivered to the Company stockholders or at
the time of the
Company Stockholders Meeting, contain any untrue statement of a
material fact or
omit to state any material fact required to be stated therein or
necessary in
order to make the statements made therein, in light of the
circumstances under
which they were made, not misleading. The Proxy Statement will
comply as to form
in all material respects with the requirements of the Exchange
Act and the
applicable rules and regulations of the SEC thereunder.
Notwithstanding the
foregoing, no representation or warranty is made by the Company
with respect to
statements made or incorporated by reference therein based on
information
supplied by Parent or Sub specifically for inclusion or
incorporation by
reference in any of the foregoing documents.
(b) The Company has provided Parent with the most recent
draft
of the Company's Annual Report on Form 10-K for the fiscal year
of the Company
ended December 31, 2004 (the "Company 2004 Form 10-K").
(c) Except as would not, individually or in the aggregate,
have a Company Material Adverse Effect:
(i) the Company 2004 Form 10-K and the other reports
filed by the Company with the SEC pursuant to Section 13(a) of
the Exchange Act
on or after the date of this Agreement but on or prior to the
Closing Date (the
"Company Future SEC Filings") will not, on the date they are
filed with the SEC,
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<PAGE>
contain any untrue statement of a material fact or omit to state
any material
fact required to be stated therein or necessary in order to make
the statements
made therein, in light of the circumstances under which they
were made, not
misleading;
(ii) the consolidated financial statements of the
Company, including the notes thereto, included or incorporated
by reference in
the Company Future SEC Filings will be prepared in accordance
with GAAP and
Regulation S-X of the SEC as in effect on the date of filing
such reports
(except in the case of unaudited statements, as permitted by
Form 10-Q or Form
8-K of the SEC) applied on a consistent basis during the periods
involved
(except as may be indicated in the notes thereto) and will
fairly present the
consolidated financial position of the Company and its
consolidated Subsidiaries
as of the dates thereof and the consolidated results of their
operations,
changes in stockholders' equity and cash flows for the periods
shown (subject,
in the case of unaudited statements, to the absence of footnotes
and normal
year-end audit adjustments);
(iii) the consolidated financial statements of the
Company included in the Company 2004 Form 10-K will be
accompanied by an
opinion, which will not be subject to any qualification or
limitation, issued by
the Company's independent registered public accounting firm;
(iv) the Company Future SEC Filings will comply as to
form in all material respects with the requirements of the
Exchange Act and the
applicable rules and regulations of the SEC thereunder;
(v) to the Company's knowledge, there is no reason why
the Certifications required to be filed with the Company 2004
Form 10-K cannot
be filed without material qualification or exception;
(vi) to the Company's knowledge, (A) the Company's
management will conclude that the Company's internal control
over financial
reporting was effective as of December 31, 2004 based on the
criteria set forth
by the Committee of Sponsoring Organizations of the Treadway
Commission (COSO)
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<PAGE>
in Internal Control-Integrated Framework and (B) the management
report on
internal control over financial reporting included in the
Company 2004 Form 10-K
("Management Report") will not describe any "material
weaknesses" as defined in
the Public Company Accounting Oversight Board's Auditing
Standard No. 2, as in
effect as of the date hereof ("Auditing Standard No. 2"), in the
design or
operation of the Company's internal control over financial
reporting; and
(vii) to the Company's knowledge, the attestation report
by the Company's independent registered public accounting firm
with respect to
the Management Report included in the Company 2004 Form 10-K
will concur in all
material respects with management's assessment included in the
Management Report
and will conclude that the Company maintained, in all material
respects,
effective internal control over financial reporting as of
December 31, 2004
based on the criteria set forth by the Committee on Sponsoring
Organizations of
the Treadway Commission (COSO) in Internal Control-Integrated
Framework.
For the avoidance of doubt, the Company acknowledges that a
statement
of the existence of one or more "material weaknesses" as defined
in Auditing
Standard No. 2 with respect to the Company's internal control
over financial
reporting contained in the Management Report, or in the
attestation by the
Company's independent registered public accounting firm with
respect to the
Management Report, will be deemed to have a Company Material
Adverse Effect,
irrespective of whether the Company had knowledge thereof as of
the date of this
Agreement.
Section 4.08 Compliance with Applicable Laws.
(a) To the knowledge of the Company, except as disclosed in
the Company SEC Documents or in the Company Disclosure Letter,
and except for
instances of noncompliance or violation that, individually and
in the aggregate,
would not reasonably be expected to have a Company Material
Adverse Effect, (i)
the Company and the Company Subsidiaries hold all permits,
licenses, variances,
exemptions, orders and approvals of all Governmental Entities
that are material
to the operation of the businesses of the Company and the
Company Subsidiaries,
taken as a whole (the "COMPANY PERMITS"), (ii) the Company and
the Company
Subsidiaries and their respective operations are in compliance
with the terms of
the Company Permits and all applicable Laws, and (iii) since
January 1, 2004,
neither the Company nor any of the Company Subsidiaries has been
given written
notice of any violation or purported violation of any Company
Permits or Laws.
This Section 4.08(a) and Section 4.08(c) do not relate to (1)
matters with
respect to Taxes, which are the subject of Section 4.10, (2)
employee benefits
matters, which are the subject of Section 4.13, (3)
environmental matters, which
are the subject of Section 4.17 and (4) labor and employment
matters, which are
the subject of Section 4.18.
(b) To the knowledge of the Company, except as disclosed in
the Company SEC Documents or in the Company Disclosure Letter
and except for
matters that, individually or in the aggregate, would not
reasonably be expected
to have a Company Material Adverse Effect, none of the Company,
any of the
Company Subsidiaries or any of their respective directors,
officers, employees
or agents has in connection with the operation of the businesses
of the Company
and the Company Subsidiaries (i) used any corporate or other
funds for unlawful
contributions, payments, gifts or entertainment, or made any
unlawful
expenditures relating to political activity to government
officials, candidates
or members of political parties, political parties, public
international
organizations, or organizations, or established or maintained
any unlawful or
unrecorded accounts in violation of Sections 13(b)(2)(a) and
13(b)(2)(b) of the
Exchange Act, or any other similar applicable foreign, Federal
or state Law,
(ii) paid, accepted or received any unlawful contributions,
payments,
expenditures or gifts, or (iii) violated or operated in
noncompliance with any
export restrictions, anti-boycott regulations, embargo
regulations or other
applicable domestic or foreign Laws.
(c) To the knowledge of the Company, except as disclosed in
the Company SEC Documents or in the Company Disclosure Letter
and except for
matters that, individually or in the aggregate, would not
reasonably be expected
to have a Company Material Adverse Effect, since January 1,
2004, no
investigation, review, audit, prosecution or other enforcement
action by any
Governmental Entity is or was pending, or threatened in writing,
against or with
respect to the Company or any of the Company Subsidiaries, nor
has any
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<PAGE>
Governmental Entity indicated in a writing made available to the
Company or any
Company Subsidiary an intention to conduct the same.
Section 4.09 Litigation and Insurance.
(a) Except as disclosed in the Company SEC Documents or in
the
Company Disclosure Letter and except for matters that,
individually or in the
aggregate, would not reasonably be expected to have a Company
Material Adverse
Effect, there is no suit, action or proceeding pending or, to
the knowledge of
the Company, threatened against the Company or any Company
Subsidiary, nor is
there any Judgment outstanding against the Company or any
Company Subsidiary.
(b) Section 4.09(b) of the Company Disclosure Letter sets
forth all the insurance policies maintained by, or covering, the
Company and the
Company Subsidiaries as of the date of this Agreement. All the
policies listed
on Section 4.09(b) of the Company Disclosure Letter are in full
force and effect
and, to the Company's knowledge, no written notice of
cancellation of any such
policies have been received by the Company or the Company
Subsidiaries. Section
4.09(a) of the Company Disclosure Letter includes a copy of the
most recent
version of the Company's regularly-maintained pending litigation
a
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