EXECUTION COPY AGREEMENT AND PLAN OF MERGER

Agreement and Plan of Merger

You are currently viewing:

This Agreement and Plan of Merger involves

THOMAS INDUSTRIES INC

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.

Title: EXECUTION COPY AGREEMENT AND PLAN OF MERGER
Governing Law: Delaware Date: 3/9/2005
Industry: Misc. Capital Goods Law Firm: Baker & McKenzie LLP; McDermott Will & Emery LLP Sector: Capital Goods

EXECUTION COPY

AGREEMENT AND PLAN OF MERGER

Dated March 8, 2005

among

GARDNER DENVER, INC.,

PT ACQUISITION CORPORATION

and

THOMAS INDUSTRIES INC.

<PAGE>

<TABLE>

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

-i-

<PAGE>

TABLE OF CONTENTS

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

-ii-

<PAGE>

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

</TABLE>

-iii-

<PAGE>

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.

<PAGE>

"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-

<PAGE>

"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-

<PAGE>

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-

<PAGE>

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-

<PAGE>

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-

<PAGE>

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.

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

-7-

<PAGE>

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

-8-

<PAGE>

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.

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-

<PAGE>

(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.

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

-10-

<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.

-11-

<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

-12-

<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.

-13-

<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.

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

-14-

<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.

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-

<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."

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-

<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").

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,

-17-

<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)

-18-

<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.

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

-19-

<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 and claims

schedule. With respect to each matter listed on such schedule, Section 4.09(a)

of the

SITE SEARCH

AGREEMENTS / CONTRACTS

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Get Email Updates