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Exhibit 2.1
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
Dated March 8, 2005
among
GARDNER DENVER, INC.,
PT ACQUISITION CORPORATION
and
THOMAS INDUSTRIES INC.
TABLE OF CONTENTS
Page
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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Page
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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TABLE OF CONTENTS
Page
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
- iii -
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.
"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.
-2-
"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.
-3-
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
-4-
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
-5-
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.
-6-
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
-7-
Common Stock shall 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
-8-
provisions as are reasonably 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.
-9-
(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
-10-
Effective Time 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.
-11-
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
-12-
were held by 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.
-13-
(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
-14-
documents with the relevant authorities 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;
-15-
(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.
Section 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.
-16-
(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
--------------------------
-17-
the date they are filed with the SEC, 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) 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.
-18-
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 Governmental Entity indicated
-19-
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 and claims schedule.
With respect to
each matter listed on such schedule, Section 4.09(a) of the
Company
---------------
Disclosure Letter sets forth the Company's insurance coverage
and policy
limits applicable to such matter and the amount, if any, of the
reserve
relating to such matter to be set forth or reflected in the
Company's
consolidated balance sheet as of December 31, 2004.
Section 4.10 Taxes. (a) The Company and each Company
-----
Subsidiary has filed, or has caused to be filed on its behalf,
all Tax
Returns required to be filed by it, except to the extent any
failure to
file, individually or in the aggregate, has not had and would
not reasonably
be expected to have a Company Material Adverse Effect. All such
Tax Returns
are true and complete in all material respects. All Taxes shown
to be due on
such Tax Returns have been timely paid, except to the extent
that any
failure to pay, individually or in the aggregate, would not
reasonably be
expected to have a Company Material Adverse Effect.
(b) The most recent financial statements contained in the
Company SEC Documents reflect an adequate reserve, in accordance
with GAAP,
for all Taxes payable by the Company and the Company
Subsidiaries for all
Taxable periods and portions thereof through the date of such
financial
statements. No material deficiency with respect to any Taxes has
been
proposed, asserted or assessed against the Company or any
Compan
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