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Exhibit 10.1
GUARANTY AND UNDERTAKINGS AGREEMENT
This GUARANTY AND UNDERTAKINGS AGREEMENT (this "
Agreement ") is entered into as of March 5, 2007, by
MEGGITT PLC, a public limited company organized under the laws of
England and Wales (" Guarantor ") in favor of and for the
benefit of K & F INDUSTRIES HOLDINGS, INC., a Delaware
corporation (the " Company ").
WHEREAS, MEGGITT-USA, Inc., a Delaware corporation ("
Purchaser ") and Ferndown Acquisition Corp., a Delaware
corporation and direct wholly-owned subsidiary of Purchaser ("
Merger Sub " and, together with Purchaser, the "
Guarantor Subsidiaries ") are wholly owned subsidiaries of
Guarantor.
WHEREAS, Purchaser, Merger Sub and the Company are
parties to that certain Agreement and Plan of Merger dated as of
the date hereof (the " Merger Agreement "; capitalized terms
defined therein and not otherwise defined herein being used herein
as therein defined).
WHEREAS, it is desired that Guarantor fully and
unconditionally guarantee and, as applicable, agree to perform the
Guaranteed Obligations (as defined below) as provided herein for
the benefit of the Company.
WHEREAS , it is desired that Guarantor make certain
representations, warranties, covenants, undertakings and agreements
in connection with the Merger and the Guaranty.
WHEREAS, as a condition and inducement to the willingness
of the Company to enter into the Merger Agreement, and pursuant to
the terms of the Merger Agreement, the Company has required
Guarantor to enter into this Agreement.
NOW, THEREFORE , in consideration of the premises, and of
the representations, warranties, covenants and agreements contained
herein, the parties hereto agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF GUARANTOR
Guarantor represents and warrants to the Company as follows:
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1.1
Organization and Good Standing . Guarantor is
duly organized, validly existing and in good standing under the
laws of England and Wales. The Company has been furnished
with true, correct and complete copies of each Organizational
Document of Guarantor.
1.2
Authorization; Execution; Enforceability .
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(a)
Guarantor has all requisite power and authority to
execute, deliver and perform its obligations under this Agreement
and to consummate, and cause the Purchaser and Merger Sub to
consummate, the Merger and the other transactions expressly
contemplated by the Merger Agreement
subject to, prior to the consummation of the
Merger and the Rights Issue, the Parent Shareholder Approval.
The only vote of the holders of outstanding securities of Guarantor
required by its Organizational Documents, by Law or otherwise to
consummate the Merger or any of the transactions expressly
contemplated hereby or by the Merger Agreement is, only with
respect to the consummation of the Merger and the Rights Issue, the
Parent Shareholder Approval.
(b)
The execution and delivery by Guarantor of this
Agreement and the other instruments and agreements to be executed
and delivered by Guarantor as contemplated hereby or by the Merger
Agreement, and the performance by Guarantor of its obligations
hereunder or as contemplated by the Merger Agreement have been duly
and validly authorized by all requisite corporate action on the
part of Guarantor subject to, with respect to the
consummation of the Merger and the Rights Issue, obtaining Parent
Shareholder Approval. This Agreement and the other
instruments and agreements to be executed and delivered by
Guarantor as contemplated hereby or by the Merger Agreement have
been or will be, when delivered, duly and validly executed and
delivered by Guarantor and constitute or upon execution and
delivery will constitute, assuming the due and valid execution and
delivery thereof by the Company, valid and binding obligations of
Guarantor enforceable against it in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors rights and to
general principles of equity.
(c)
The Rights Issue has been duly and validly
authorized by all requisite action on the part of Guarantor, except
for the Parent Shareholder Approval.
1.3
Consents . The execution, delivery and
performance of this Agreement by Guarantor and the consummation of
the Merger and the other transactions expressly contemplated hereby
or by the Merger Agreement by Guarantor do not and will not require
any consent, approval, authorization or permit of, or filing with
or notification to, any Governmental Entity or any other Person
except (i) the pre-merger notification requirements under the HSR
Act or applicable International Competition Laws set forth on
Schedule 4.3 of the Purchaser Disclosure Schedules, (ii) the
applicable requirements of the Exchange Act and the rules and
regulations promulgated thereunder, (iii) the filing of the
Certificate of Merger with the Delaware Secretary, (iv) the
notification provisions of Exon-Florio, (v) under any Export
Control Laws and NISPOM, (vi) compliance with any applicable
requirements of the U.K. Financial Services Authority after the
date hereof, and (vii) any such consent, approval, authorization,
permit, filing, or notification of the failure of which to make or
obtain would not prevent or materially delay Guarantor from
performing its obligations under this Agreement, and the other
instruments and agreements to be
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executed and delivered by Guarantor as
contemplated expressly hereby or the other transactions expressly
contemplated by the Merger Agreement.
1.4
Litigation . There is no Proceeding, at Law or
in equity, by any Person pending or, to the Knowledge of Guarantor,
threatened, which would prevent or have a material adverse effect
on Guarantor’s ability to perform its obligations under this
Agreement or the Merger Agreement, and the other instruments and
agreements to be executed and delivered by Guarantor as
contemplated expressly hereby or by the Merger Agreement or the
consummation of the Merger, the performance of the Guaranteed
Obligations or the other transactions expressly contemplated hereby
or by the Merger Agreement.
1.5
No Brokers . Other than N M Rothschild &
Sons and Merrill Lynch International, neither Guarantor nor any of
its Subsidiaries has (i) employed or engaged any broker, investment
banker, agent or finder or (ii) incurred any Liability for any
brokerage fees or expenses, commissions or finders’ fees or
expenses, payable by Guarantor or any Subsidiary thereof in
connection with the transactions expressly contemplated by the
Merger Agreement or hereby.
1.6
Solvency . Immediately following the Closing,
each of Guarantor, Purchaser and the Surviving Corporation will be
Solvent (assuming for the purposes of this representation that the
Company and each of its Subsidiaries was Solvent immediately prior
to the Closing).
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1.7
Proxy Statement Information; Other Filings .
The information provided by Guarantor or its Subsidiaries relating
to Guarantor or its Subsidiaries expressly for inclusion in the
Proxy Statement will not, at the time the Proxy Statement is first
mailed or at the time of the Special Meeting, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they are made,
not misleading. Any such information that is to be so
provided shall be specifically identified and agreed upon in
writing, in advance, by Guarantor and the Company. No Other
Filing made by Guarantor with the SEC or any other filing made by
Guarantor or any Subsidiary thereof with any Governmental Entity in
relation to the Merger or the other transactions expressly
contemplated by the Merger Agreement or any other communication
made by Guarantor or any transactions expressly contemplated by the
Merger Agreement will, at the time of filing or furnishing thereof,
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under
which they are made, not misleading.
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ARTICLE II
GUARANTY
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2.1
Guaranty .
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(a)
In order to induce the Company to enter into the
Merger Agreement, Guarantor irrevocably and unconditionally
guaranties, as primary obligor and not merely as surety, the due
and punctual performance and payment in full of all Guaranteed
Obligations (as hereinafter defined) when the same shall become
due, whether under the Merger Agreement, by operation of Law or
otherwise (the " Guaranty "). The Guaranty is a
guaranty of performance and payment when due and not merely of
collection. The obligations of Guarantor hereunder are
independent of the Guaranteed Obligations, and a separate action or
actions may be brought and prosecuted against Guarantor regardless
of whether any action is brought against either or both of the
Guarantor Subsidiaries or whether either or both of the Guarantor
Subsidiaries is joined in any such action or actions. The
Guaranty shall be unconditional regardless of any bankruptcy,
insolvency or similar proceeding with respect to either or both of
the Guarantor Subsidiaries. Guarantor acknowledges that the
Guaranteed Obligations are being incurred for and will inure to the
benefit of the Company.
(b)
The term " Guaranteed Obligations " means any
and all representations, warranties, covenants, undertakings or
obligations of either or both of the Guarantor Subsidiaries or
Guarantor arising under, pursuant to or in connection with the
Merger Agreement, the Merger or any of the other transactions
expressly contemplated by the Merger Agreement. For avoidance
of doubt, the " Guaranteed Obligations " shall include any
and all covenants, undertakings or obligations with respect to
which Purchaser and/or Merger Sub have agreed to cause Parent or
its Affiliates to perform pursuant to or in connection with the
Merger Agreement. The Guarantor expressly agrees to comply
with all obligations imposed upon it or purported to be imposed
upon it or any of its Affiliates under the Merger Agreement to the
same extent as if it were a party to the Merger
Agreement.
(c)
In the event that all or any portion of the
Guaranteed Obligations are performed (by payment or otherwise) by
Purchaser and/or Merger Sub, the obligations of Guarantor hereunder
shall be reinstated in the event that all or any part of such
performance (by payment or otherwise) is rescinded or recovered
directly or indirectly from the Company as a preference, fraudulent
transfer or otherwise, and any such payments that are so rescinded
or recovered shall constitute Guaranteed Obligations.
(d)
Upon the failure of either or both of the Guarantor
Subsidiaries to perform or pay any of the Guaranteed Obligations
when and as the same shall
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