EXECUTION COPY
Exhibit 99.1
PURCHASE AGREEMENT
by and among
SPX CORPORATION,
KENDRO GP II, LLC,
SPX EUROPE GmbH,
GSLE DEVELOPMENT CORPORATION,
GENERAL SIGNAL IRELAND B.V.,
THERMO ELECTRON CORPORATION
and
THERMO ELECTRON (OBERHAUSEN) GmbH
Dated as of January 19, 2005
TABLE OF CONTENTS
Page
ARTICLE I Transactions.............................................................................2
1.1. Purchase and Sale.............................................................2
1.2. Purchase Price................................................................3
1.3. Adjustments to Purchase Price.................................................3
1.4 Closing Cash..................................................................5
1.5. Closing.......................................................................6
ARTICLE II Representations and Warranties of Seller.................................................8
2.1. Organization and Good Standing................................................8
2.2. Corporate Authority and Approval..............................................9
2.3. Capitalization................................................................9
2.4. The Interests................................................................12
2.5. Subsidiaries.................................................................12
2.6. Consents.....................................................................13
2.7. No Conflicts.................................................................13
2.8. Compliance with Laws.........................................................13
2.9. Environmental Matters........................................................13
2.10. Financial Statements.........................................................15
2.11. Absence of Certain Changes or Events.........................................15
2.12. Title to Assets..............................................................16
2.13. Real Property................................................................16
2.14. Patents, Trademarks, Etc.....................................................16
2.15. Material Contracts...........................................................17
2.16. Litigation...................................................................19
2.17. Insurance....................................................................19
2.18. U.S. Employee Benefit Plans..................................................19
2.19. Non-U.S. Employee Benefit Plans..............................................20
2.20 Current Employees............................................................21
2.21. Labor Matters................................................................21
2.22. Taxes........................................................................22
2.23. Undisclosed Liabilities......................................................23
2.24. Sufficiency of Assets........................................................23
2.25. Fees.........................................................................23
2.26. Affiliate Transactions.......................................................24
2.27. Substantial Customers and Suppliers..........................................24
2.28. FDA Regulation...............................................................24
2.29. Certain Payments; Export Law Compliance......................................25
2.30. Product Warranties...........................................................25
2.31. Internal Controls............................................................25
2.32. Disclaimer...................................................................26
ARTICLE III Representations and Warranties of Purchaser.............................................26
3.1. Organization and Good Standing...............................................26
3.2. Corporate Authority and Approval.............................................27
3.3. Consents.....................................................................27
3.4. No Conflicts.................................................................27
3.5. Funds Available..............................................................27
3.6. Litigation...................................................................27
3.7. Fees.........................................................................28
3.8. Purchase for Investment......................................................28
ARTICLE IV Covenants of Seller.....................................................................28
4.1. Conduct of Business..........................................................28
4.2. Access.......................................................................33
4.3. No Solicitation..............................................................33
4.4. Intercompany Accounts, Etc...................................................33
4.5. Non-Competition..............................................................34
4.6. Employee Non-Solicitation....................................................34
4.7. Mutual Release and Waiver....................................................35
4.8 Transfer by Nominee Holders..................................................35
4.9 Release of Liens.............................................................35
4.10 Intellectual Property Rights.................................................35
4.11 Transfer of Newtown Property.................................................35
4.12 Notice.......................................................................35
4.13. Further Assurances...........................................................36
ARTICLE V Covenants of Purchaser..................................................................36
5.1. Preservation of Books and Records............................................36
5.2. Use of Seller's Name or Reputation...........................................36
5.3. Performance Bonds and Guarantees.............................................37
5.4. Further Assurances...........................................................38
ARTICLE VI Mutual Covenants of Purchaser and Seller................................................38
6.1 Cooperation..................................................................37
6.2. Insurance Claims.............................................................38
ARTICLE VII Conditions to Purchaser's Obligations...................................................40
7.1. Representations, Warranties and Covenants of Seller..........................40
7.2. Consents.....................................................................41
7.3. No Prohibitions..............................................................41
7.4. FIRPTA.......................................................................41
7.5. Resignations.................................................................41
7.6 Receivables Factoring Facility...............................................41
7.7 Major SPX Obligations........................................................41
7.8 Transition Services Agreement................................................41
7.9 Termination of Profit and Loss Agreement and of Fiscal Year of Kendro GmbH...41
ARTICLE VIII Conditions to Seller's Obligations......................................................42
8.1. Representations, Warranties and Covenants of Purchaser.......................42
8.2. Consents.....................................................................42
8.3 No Prohibitions..............................................................42
8.4. Termination of Profit and Loss Agreement and of Fiscal Year of Kendro GmbH...43
ARTICLE IX Employment Matters......................................................................43
9.1. 401(k) Plan..................................................................43
9.2. SPX Pension Plan.............................................................43
9.3. Collective Bargaining Agreements.............................................43
9.4. Other Benefit Plans; Retention of Certain Liabilities........................43
9.5 Severance....................................................................44
9.6 ERISA Affiliate Liability....................................................44
9.6. Restructuring Liability......................................................44
ARTICLE X Taxes...................................................................................46
10.1. Indemnification..............................................................46
10.2. Filing Responsibility........................................................46
10.3. Refunds......................................................................47
10.4. Audits.......................................................................47
10.5. Cooperation..................................................................48
10.6. Coordination with Other Provisions...........................................48
10.7. Transfer Taxes...............................................................48
10.8. Tax Elections and Forms......................................................49
10.9. Period of Limitation.........................................................49
10.10. Tax Definitions..............................................................50
ARTICLE XI Termination, Amendment, and Waiver......................................................51
11.1. Termination..................................................................51
11.2. Effect on Obligations........................................................51
ARTICLE XII Indemnification.........................................................................51
12.1. Survival.....................................................................51
12.2. Indemnification..............................................................52
12.3. Procedures for Claims........................................................53
12.4. Other Provisions.............................................................55
ARTICLE XIII Miscellaneous...........................................................................57
13.1. Expenses.....................................................................57
13.2. Exclusive Agreement; No Third-Party Beneficiaries............................57
13.3. Governing Law, Etc...........................................................57
13.4. Successors and Assigns.......................................................58
13.5. Publicity....................................................................58
13.6. Severability.................................................................58
13.7. Notices......................................................................58
13.8. Counterparts.................................................................59
13.9. Interpretation...............................................................59
13.10. Amendment....................................................................60
13.11. Extension; Waiver............................................................60
13.12. Foreign Exchange Conversions.................................................60
EXHIBITS
Exhibit 1.2.......Purchase Price Allocation
Exhibit 4.12......Notification
Exhibit 1.3.......Reference Balance Sheet and Net Book Value
Exhibit 7.8.......Transition Services Agreement
Exhibit 12.2......Indemnification Matters
Exhibit A.........Power of Attorney
Exhibit B.........Notarial Deed
Exhibit C.........Kendro GmbH Closing Condition Satisfaction Notice
Exhibit D ........Mutual Release and Waiver
DEFINITIONS
Term Section
Acquisition Obligations.........................................................................Section 2.15(k)
Affiliated Kendro Audit Taxes...................................................................Section 10.10(a)
Affiliated Kendro Refund Taxes..................................................................Section 10.10(b)
Agreement.......................................................................................Preamble
Ancillary Document..............................................................................Section 12.1
Back-Up Bonds and Guarantees....................................................................Section 5.3(a)
Books and Records...............................................................................Section 5.1(a)(i)
CERCLA..........................................................................................Section 12.4(f)
Closing.........................................................................................Section 1.5(a)
Closing Balance Sheet...........................................................................Section 1.3(a)(ii)
Closing Cash....................................................................................Section 1.4(a)
Closing Date....................................................................................Section 1.5(a)
Closing Payment.................................................................................Section 1.5(b)(iv)
Code............................................................................................Section 2.18(c)
commercially reasonable steps...................................................................Section 6.1(d)
Competition Activities..........................................................................Section 4.5
Confidentiality Agreement.......................................................................Section 4.2(a)
Consent.........................................................................................Section 4.1(c)
Contract........................................................................................Section 2.15
Covered Claim...................................................................................Section 6.2(b)
CryCo...........................................................................................Recitals
CryCo Shares....................................................................................Recitals
Current Employees...............................................................................Section 2.20(a)
Damages.........................................................................................Section 12.2(a)
Deductible......................................................................................Section 12.2(b)
Deemed Closing Date.............................................................................Section 7.1(b)
DOJ.............................................................................................Section 6.1(b)
Effective Closing Date..........................................................................Section 1.5(a)
Emergency Exception.............................................................................Section 4.1(c)(2)
Employees.......................................................................................Section 9.4(a)
Encumbrances....................................................................................Section 1.1
Entity Plan.....................................................................................Section 9.4(c)
Environmental Breach............................................................................Section 12.3(b)
Environmental Claims............................................................................Section 2.9(c)
Environmental Conditions........................................................................Section 2.9(d)
Environmental Laws..............................................................................Section 2.9(k)
Environmental Matters...........................................................................Section 2.9(k)
Environmental Permits...........................................................................Section 2.9(b)
ERISA...........................................................................................Section 2.18(a)
ERISA Affiliate.................................................................................Section 2.18(d)
EVA Plans.......................................................................................Section 9.4(a)
Exception.......................................................................................Section 4.1(c)
Exception Request...............................................................................Section 4.1(c)(2)
Facilities......................................................................................Section 2.13(c)
FDA.............................................................................................Section 2.28(a)
FFDCA...........................................................................................Section 2.28(a)
Final Closing Cash Amount.......................................................................Section 1.4(b)
Financial Statements............................................................................Section 2.10
FTC.............................................................................................Section 6.1(b)
GAAP............................................................................................Section 2.1
Governmental Consent............................................................................Section 2.6
Group Benefit Plan..............................................................................Section 2.18(d)
GS Ireland......................................................................................Preamble
GSLE............................................................................................Preamble
GSLE Bill of Sales..............................................................................Section 1.5(b)(iv)(G)
GSLE Kendro Assets..............................................................................Section 1.5(b)(iv)(G)
GSLE Kendro Assets & Liabilities................................................................Section 1.5(b)(iv)(G)
GSLE Kendro Liabilities.........................................................................Section 1.5(b)(iv)(G)
Hazardous Materials.............................................................................Section 2.9(k)
HSR Act.........................................................................................Section 6.1(b)
HSR Filing......................................................................................Section 6.1(b)
Income Tax......................................................................................Section 10.10(c)
Income Tax Return...............................................................................Section 10.10(d)
Indemnifiable Environmental Matter..............................................................Section 12.4(e)
Indemnification Payment.........................................................................Section 12.4(c)
indemnified party...............................................................................Section 12.1
indemnifying party..............................................................................Section 12.1
Independent Accountant..........................................................................Section 1.3(b)(ii)
Information Maintenance Period..................................................................Section 5.1(a)
Insurance Policies..............................................................................Section 2.17
Intellectual Property Rights....................................................................Section 2.14
Interests.......................................................................................Recitals
Interim Statements..............................................................................Section 2.10
Kendro AG.......................................................................................Recitals
Kendro AG Shares................................................................................Recitals
Kendro Benefit Plans............................................................................Section 2.18(a)
Kendro Business.................................................................................Recitals
Kendro Entities.................................................................................Recitals
Kendro GmbH.....................................................................................Recitals
Kendro GmbH Closing Condition Satisfaction Notice...............................................Section 1.5(b)(vi)(B)
Kendro GmbH Shares..............................................................................Recitals
Kendro GP.......................................................................................Recitals
Kendro GP II....................................................................................Preamble
Kendro GP Shares................................................................................Recitals
Kendro HK.......................................................................................Recitals
Kendro HK Shares................................................................................Recitals
Kendro LP.......................................................................................Recitals
Kendro LP Interests.............................................................................Recitals
Kendro plc......................................................................................Recitals
Kendro plc Shares...............................................................................Recitals
Kendro Pvt Shares...............................................................................Section 4.8
KeyCo...........................................................................................Recitals
KeyCo Shares....................................................................................Recitals
Litigation......................................................................................Section 2.16
material........................................................................................Section 2.12
Material Adverse Effect.........................................................................Section 2.1
Material Contracts..............................................................................Section 2.15
MedCo...........................................................................................Recitals
MedCo Shares....................................................................................Recitals
Mutual Release and Waiver.......................................................................Section 4.7
Net Book Value..................................................................................Section 1.3(c)(iii)
New Material Contract...........................................................................Section 4.1(a)(xii)
Nippon Kendro...................................................................................Recitals
Nippon Kendro Shares............................................................................Recitals
Non-Competitive Term............................................................................Section 4.5
Non-U.S. Kendro Benefit Plans...................................................................Section 2.19
Notarial Deed...................................................................................Section 1.1
Notary Public...................................................................................Section 1.1
NPL.............................................................................................Section 2.9(e)
Occurrence-Based Business Policies..............................................................Section 6.2(a)
Orders..........................................................................................Section 2.8
OSHA............................................................................................Section 2.21(f)
Other Claim.....................................................................................Section 12.3(b)
Other Claim Notice..............................................................................Section 12.3(b)
Other Interests.................................................................................Section 2.3(l)
Other Tax.......................................................................................Section 10.10(e)
Outside Date....................................................................................Section 11.1(d)
Performance Bonds and Guarantees................................................................Section 5.3(a)
Permits.........................................................................................Section 2.8
Permitted Liens.................................................................................Section 2.12
person..........................................................................................Section 13.9
Power of Attorney...............................................................................Section 1.1
Pre-Closing Covenants...........................................................................Section 12.1
Preliminary Closing Cash Amount.................................................................Section 1.4(a)
Products........................................................................................Section 2.28(a)
Purchase Amount.................................................................................Section 1.2
Purchase Price..................................................................................Section 1.2
Purchaser.......................................................................................Preamble
Purchaser Material Adverse Effect...............................................................Section 3.1
Purchaser Representative........................................................................Section 4.1(c)(1)
Purchaser's Certificate.........................................................................Section 8.1(c)
Real Property Leases............................................................................Section 2.13(b)
Reference Balance Sheet.........................................................................Section 1.3(a)(i)
Reference Net Book Value........................................................................Section 1.3(a)(i)
Remedial Action.................................................................................Section 12.4(e)
Restricted Contracts............................................................................Section 4.1(a)(xxii)(J)
Retentions and Premiums.........................................................................Section 6.2(b)
Sale Entities...................................................................................Recitals
Section 338(h)(10) Election.....................................................................Section 10.8(d)
Selected Court..................................................................................Section 13.3
Seller..........................................................................................Preamble
Seller Disclosure Schedule......................................................................Article II
Seller Representative...........................................................................Section 4.1(c)(1)
Seller's Certificate............................................................................Section 7.1(c)
Seller's knowledge..............................................................................Section 13.9
Seller's Refunds................................................................................Section 10.3
Shared Employee.................................................................................Section 2.20(b)
Site............................................................................................Section 2.9(d)
SPX.............................................................................................Preamble
SPX Encumbrances................................................................................Section 4.9
SPX Europe......................................................................................Preamble
SPX Pension Plan................................................................................Section 9.2(a)
SPX Plan Participants...........................................................................Section 9.2(a)
Straddle Period.................................................................................Section 10.10(f)
Subsidiaries....................................................................................Section 2.5
Tax or Taxes....................................................................................Section 10.10(g)
Tax Proceeding..................................................................................Section 10.10(h)
Tax Return......................................................................................Section 10.10(i)
Thermo Germany..................................................................................Preamble
Third Party Claim...............................................................................Section 12.3(a)
Third Party Claim Notice........................................................................Section 12.3(a)
Third Party Consent.............................................................................Section 2.6
Transfer Taxes..................................................................................Section 10.7
Transition Services Agreement...................................................................Section 7.8
Valid Claim Notice..............................................................................Section 12.1
Valid Other Claim Notice........................................................................Section 12.3(b)
Valid Third Party Claim Notice..................................................................Section 12.3(a)
PURCHASE AGREEMENT
This PURCHASE AGREEMENT (this "Agreement"), dated as of January 19,
2005, by and among SPX Corporation, a Delaware corporation ("SPX"), Kendro GP
II, LLC, a Delaware limited liability company and wholly owned subsidiary of SPX
("Kendro GP II"), SPX Europe GmbH, a company organized under the laws of Germany
and an indirect, wholly owned subsidiary of SPX ("SPX Europe"), General Signal
Ireland B.V., a company organized under the laws of Netherlands and an indirect,
wholly owned subsidiary of SPX ("GS Ireland"), and GSLE Development Corporation,
a Delaware corporation and a direct, wholly owned subsidiary of SPX ("GSLE")
(SPX, Kendro GP II, SPX Europe, GS Ireland and GSLE being referred to herein
individually and collectively as "Seller"), and Thermo Electron Corporation, a
Delaware corporation ("Thermo"), and Thermo Electron (Oberhausen) GmbH, a
company organized under the laws of Germany and an indirect, wholly owned German
subsidiary of Thermo ("Thermo Germany"; Thermo and Thermo Germany being referred
to herein, individually and collectively, as "Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, SPX owns directly or indirectly through SPX Europe or GS
Ireland:
(i) all of the outstanding equity interests of Medical
Equipment Maintenance Company, a Maryland corporation (such company, "MedCo" and
such equity interests, the "MedCo Shares");
(ii) all of the outstanding equity interests of Key
Scientific, Inc., a Maryland corporation (such company, "KeyCo" and such equity
interests, the "KeyCo Shares");
(iii) all of the outstanding equity interests of Cryonix,
Inc., a Maryland corporation (such company, "CryCo" and such equity interests,
the "CryCo Shares");
(iv) all of the outstanding equity interests of Kendro
Laboratory Products GmbH, a company organized under the laws of Germany (such
company, "Kendro GmbH" and such equity interests, the "Kendro GmbH Shares");
(v) all of the outstanding equity interests of Kendro
Laboratory Products AG, a company organized under the laws of Switzerland (such
company, "Kendro AG" and such equity interests, the "Kendro AG Shares");
(vi) all of the outstanding equity interests of Nippon Kendro
KK, a company organized under the laws of Japan (such company, "Nippon Kendro"
and such equity interests, the "Nippon Kendro Shares"); and
(vii) all of the outstanding equity interests of Kendro
Laboratory Products (GP) Inc., a Delaware corporation (such company, "Kendro GP"
and such equity interests, the "Kendro GP Shares").
WHEREAS, SPX owns directly and indirectly through Kendro GP and Kendro
GP II all of the outstanding partnership interests of Kendro Laboratory
Products, L.P., a Delaware limited partnership (such company, "Kendro LP" and
such partnership interests, the "Kendro LP Interests").
WHEREAS, Kendro LP, together with MedCo, KeyCo, CryCo, Kendro GmbH,
Kendro AG, Nippon Kendro and Kendro GP are collectively referred to as the "Sale
Entities," the Sale Entities and their Subsidiaries are collectively referred to
as the "Kendro Entities," and the businesses conducted by the Kendro Entities
and by GSLE in respect of the GSLE Kendro Assets and Liabilities (as defined in
Section 1.5(b)(vi)(G)) (which consist of the design, development, manufacturing,
marketing, sale and servicing of laboratory equipment for sample preparation,
processing and storage worldwide, including (i) furnaces (other than the
Lindberg and Blue M furnaces), water baths, sterilizers, centrifuges, safety
cabinets, freezers, refrigerators, incubators, compound storage, automated
screening systems for protein crystallization and related accessories and
services and (ii) certain services to the same markets, including validation
services, repository services and field repair support) are collectively
referred to as the "Kendro Business";
WHEREAS, SPX owns directly and indirectly through Kendro LP all of the
outstanding equity interests of Kendro Laboratory Products plc, a public limited
company organized under the laws of the United Kingdom (such company, "Kendro
plc" and such equity interests, the "Kendro plc Shares");
WHEREAS, SPX owns indirectly through Kendro LP all of the outstanding
equity interests of Kendro Laboratory Products (H.K.) Limited, a private company
organized under the laws of Hong Kong (such company, "Kendro HK" and such equity
interests, the "Kendro HK Shares");
WHEREAS, GSLE owns the GSLE Kendro Assets and Liabilities; and
WHEREAS, Purchaser desires to purchase from Seller and Kendro LP, and
Seller and Kendro LP desire to sell to Purchaser, the Kendro plc Shares, the
Kendro HK Shares, the MedCo Shares, the KeyCo Shares, the CryCo Shares, the
Kendro GmbH Shares, the Kendro AG Shares, the Nippon Kendro Shares, the Kendro
GP Shares and the Kendro LP Interests owned directly by Seller (collectively,
the "Interests") and the GSLE Kendro Assets and Liabilities, upon the terms and
subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE I
Transactions
------------
1.1 Purchase and Sale. On the terms and subject to the
conditions of this Agreement, at the Closing, (i) SPX and Kendro LP shall
sell, assign, transfer, convey and deliver
to Purchaser, and Purchaser shall purchase from SPX and Kendro LP, all of
the Kendro plc Shares; (ii) Kendro LP shall sell, assign, transfer, convey and
deliver to Purchaser, and Purchaser shall purchase from Kendro LP, all of the
Kendro HK Shares; (iii) SPX shall sell, assign, transfer, convey and deliver to
Purchaser, and Purchaser shall purchase from SPX, all of the MedCo Shares, the
KeyCo Shares and the CryCo Shares; (iv) SPX and Kendro GP II shall sell, assign,
transfer, convey and deliver to Purchaser, and Purchaser shall purchase from SPX
and Kendro GP II, all of the Kendro LP Interests owned directly by SPX and
Kendro GP II; (v) SPX Europe shall sell, assign, transfer, convey and deliver to
Thermo Germany, and Thermo Germany shall purchase from SPX Europe, all of the
Kendro GmbH Shares; (vi) GS Ireland shall sell, assign, transfer, convey and
deliver to Purchaser, and Purchaser shall purchase from GS Ireland, all of the
Kendro AG Shares and the Nippon Kendro Shares; (vii) SPX shall sell, assign,
transfer, convey and deliver to Purchaser, and Purchaser shall purchase from
SPX, all of the Kendro GP Shares; and (viii) GSLE shall assign, transfer, convey
and deliver to Purchaser, and Purchaser shall purchase from GSLE, the GSLE
Kendro Assets, in each case free and clear of all liens, security interests and
other encumbrances ("Encumbrances"). In furtherance of the foregoing, Thermo
Germany and SPX Europe shall execute the power of attorney attached as Exhibit A
hereto (the "Power of Attorney") concurrently with the execution of this
Agreement and no later than ten business days after the execution and delivery
of the Power of Attorney, each of Thermo Germany and SPX Europe shall through
its duly appointed attorney-in-fact, in a jurisdiction reasonably acceptable to
SPX and Thermo Germany, execute and deliver before an appropriate notary public
(the "Notary Public") a notarial deed identical in all respects to the form of
notarial deed attached as Exhibit B hereto (the "Notarial Deed"), which provides
for the transfer of legal title to the Kendro GmbH Shares upon delivery of the
Kendro GmbH Closing Condition Satisfaction Notice at the Closing.
1.2 Purchase Price. Purchaser shall pay in cash to Seller
for the Interests and assets sold by Seller hereunder, an aggregate
purchase price equal to the sum of (i) $833,500,000 (the "Purchase Amount") and
(ii) the aggregate amount of Closing Cash (as defined in Section 1.4) (the sum
of (i) and (ii), as adjusted pursuant to Sections 1.3 and 1.4, the "Purchase
Price"). The Purchase Price shall be allocated as set forth on Exhibit 1.2.
1.3 Adjustments to Purchase Price. The Purchase Price will
be subject to adjustment as specified in Section 1.3(c):
(a) Closing Balance Sheet. (i) Attached hereto as Exhibit
1.3(i) is the pro forma unaudited combined balance sheet of the Kendro
Business at October 31, 2004 (the "Reference Balance Sheet"), which reflects the
Net Book Value (as defined in Section 1.3(c)(iii)) of the Kendro Business as of
such date and a reconciliation of the Reference Balance Sheet to the October 31,
2004 balance sheet included in the Interim Statements attached as Schedule 2.10
of the Seller Disclosure Schedule. For the avoidance of any doubt, the Net Book
Value at October 31, 2004 for the purposes of the Reference Balance Sheet is
$162,156,000 (the "Reference Net Book Value") as set forth on Exhibit 1.3(i) in
the line item titled "Net Book Value."
(ii) As promptly as practicable, but in any event
within 60 business days following the Closing Date, Purchaser shall prepare
and deliver to SPX a closing balance sheet of the Kendro Business as at the
Effective Closing Date (the "Closing Balance Sheet"), which shall reflect the
Net Book Value of the Kendro Business as at the Effective Closing Date.
Except as set forth in Exhibit 1.3, the Closing Balance Sheet shall be
prepared in accordance with GAAP on a basis consistent with and using the same
methods, procedures, assumptions and adjustments employed in the preparation of
the Reference Balance Sheet. SPX and Purchaser shall conduct a joint physical
inventory of the Kendro Business as of the Closing Date for use in the
preparation of the Closing Balance Sheet. SPX and Purchaser shall pay the
expenses of their respective accounting firms in connection with the joint
physical inventory. In connection with Purchaser's preparation of the Closing
Balance Sheet, SPX shall make available to Purchaser all records, work papers
and personnel requested by Purchaser.
(b) Disputes. (i) The Closing Balance Sheet delivered by
Purchaser to SPX shall be deemed to be and shall be final, binding and
conclusive on the parties hereto unless SPX shall have notified Purchaser in
writing of one or more disputed items, specifying for each item the amount
thereof in dispute and setting forth, in reasonable detail, the nature of such
dispute and the basis therefor, within 30 business days of Purchaser's delivery
of the Closing Balance Sheet to SPX. In the event of such a dispute, SPX and
Purchaser shall in good faith attempt to resolve any such dispute, and any
resolution by them as to any disputed amounts shall be final, binding and
conclusive on the parties hereto. If the parties are unable to resolve any such
dispute within 30 business days after notice is given by SPX to Purchaser
pursuant to the first sentence of this paragraph (b), the parties shall submit
the items remaining in dispute for resolution to the Independent Accountant.
Promptly, but no later than 20 business days after the dispute is submitted to
the Independent Accountant, the Independent Accountant shall determine, based
solely on presentations by SPX and Purchaser, and not by independent review,
only those issues remaining in dispute and shall render a written report as to
the dispute and the resulting computation of the Closing Balance Sheet and the
adjustment or adjustments provided for in Section 1.3(c), based on such Closing
Balance Sheet, if any, which shall be final, binding and conclusive on the
parties. In resolving any disputed item, the Independent Accountant shall be
bound by the provisions of this Section 1.3 and may not assign a value to any
item greater than the greatest value for such item claimed by either party or
less than the smallest value for such item claimed by either party. The fees,
costs and expenses of the Independent Accountant shall be shared equally by the
parties. Whether any dispute is resolved by agreement among the parties or by
the Independent Accountant, changes to the Closing Balance Sheet shall be made
hereunder only for items as to which SPX has taken exception as provided herein.
SPX and Purchaser each shall make available to the other (upon the request of
the other) their respective work papers generated in connection with the
preparation or review of the Closing Balance Sheet. Any amounts payable pursuant
to this Section 1.3 which are not in dispute shall be paid in accordance with
paragraph (c) of this Section 1.3, notwithstanding that other amounts may remain
in dispute.
(ii) As used in this Agreement, "Independent
Accountant" means a partner or employee of KPMG LLP mutually acceptable to
SPX and Purchaser who has not performed work for either SPX or Purchaser or
their respective affiliates since January 1, 1998 and, if agreement cannot be
reached within 10 business days following the expiration of the 30 business day
period set forth in the third sentence of Section 1.3(b)(i), as shall be
selected by the American Arbitration Association upon the request of either SPX
or Purchaser.
(c) Purchase Price Adjustment. The Closing Balance Sheet
shall be deemed final for the purposes of this Section 1.3(c) upon the
earliest of (1) the failure of SPX to deliver
to Purchaser a notice of dispute within 30 business days of Purchaser's
delivery of the Closing Balance Sheet to SPX, (2) the resolution of all
disputes, pursuant to Section 1.3(b), by SPX and Purchaser and (3) the
resolution of all disputes, pursuant to Section 1.3(b), by the Independent
Accountant. Within five business days of the Closing Balance Sheet being deemed
final, the adjustment or adjustments of the Purchase Price shall be made as
follows:
(i) in the event that the Net Book Value calculated
with respect to the Closing Balance Sheet exceeds the Reference Net Book
Value, then the Purchase Price shall be adjusted upward in an amount equal to
such excess and Purchaser shall pay to SPX, on behalf of Seller, the amount of
such excess as provided below; and
(ii) in the event that the Net Book Value calculated
with respect to the Closing Balance Sheet is less than the Reference Net
Book Value, then the Purchase Price shall be adjusted downward in an amount
equal to such deficiency and SPX, on behalf of Seller, shall pay to Purchaser
the amount of such deficiency as provided below.
(iii) As used in this Agreement, "Net Book Value" shall
mean the total assets of the Kendro Business less the total liabilities of
the Kendro Business calculated in accordance with Exhibit 1.3 and this Section
1.3.
Such payments, in the case of payments to be made by SPX, shall be made, within
five business days of the determination of any such adjustment or adjustments,
to Purchaser by wire transfer in immediately available funds to an account or
accounts designated by Purchaser, and, in the case of payments to be made by
Purchaser, shall be made, within five business days of the determination of any
such adjustment or adjustments, to SPX by wire transfer in immediately available
funds to an account or accounts designated by SPX.
(d) Interest. Any payment required to be made by SPX or
Purchaser pursuant to Section 1.3(c) shall bear interest at an annual rate
equal to the average prime rate as published from time to time by JP Morgan
Chase Bank from and including the Closing Date to, but not including, the date
of such payment.
1.4. Closing Cash. (a) Not later than five (5) days prior to
the Closing Date, SPX shall provide Purchaser with a good faith estimate of
the Closing Cash (the lesser of such estimated amount and $26,000,000, the
"Preliminary Closing Cash Amount"), together with documentation supporting such
estimate. "Closing Cash" means the aggregate amount of cash and cash equivalents
of the Kendro Entities (including the amount of any uncashed checks payable to
any of the Kendro Entities) on hand as of the Effective Closing Date.
(b) As promptly as practicable, but in any event within ten
(10) business days following the Closing Date, Purchaser shall prepare and
deliver to SPX a final calculation of the Closing Cash (such amount, the "Final
Closing Cash Amount"), together with documentation supporting such calculation.
The calculation of the Final Closing Cash Amount shall be deemed to be and shall
be final, binding and conclusive on the parties hereto unless SPX shall have
notified Purchaser in writing that it disputes such calculation, specifying the
amount thereof in dispute and setting forth, in reasonable detail, the nature of
such dispute and the basis therefor, within five (5) business days of
Purchaser's delivery of the calculation of the Final Closing Cash
Amount to SPX. In the event of such a dispute, SPX and Purchaser shall in
good faith attempt to resolve any such dispute, and any resolution by them as to
any disputed amounts shall be final, binding and conclusive on the parties
hereto. If the parties are unable to resolve any such dispute within 20 days
after notice is given by SPX to Purchaser pursuant to the preceding sentence,
the dispute shall be submitted to the Independent Accountant, at the time any
items remaining in dispute with respect to the Closing Balance Sheet are
submitted to the Independent Accountant pursuant to Section 1.3(b). If there are
no items in dispute with respect to the Closing Balance Sheet, then the dispute
with respect to the calculation of the Final Closing Cash Amount shall be
submitted to the Independent Accountant promptly following the date the Closing
Balance Sheet is deemed final pursuant to Section 1.3(c). The provisions of
Section 1.3(b) relating to the submission to the Independent Accountant of items
in dispute with respect to the Closing Balance Sheet shall be equally applicable
to any dispute with respect to the calculation of the Final Closing Cash Amount,
mutatis mutandis. Any amounts payable pursuant to this paragraph (b) which are
not in dispute shall be paid in accordance with this paragraph (b),
notwithstanding that other amounts may remain in dispute.
(c) Within five (5) business days of the date the calculation
of the Final Closing Cash Amount is deemed final, (x) if the Final Closing
Cash Amount is greater than the Preliminary Closing Cash Amount, Purchaser shall
pay such difference to SPX, and (y) if the Final Closing Cash Amount is less
than the Preliminary Closing Cash Amount, SPX shall pay such difference to
Purchaser, together with interest from and including the Closing Date to, but
not including, the date of such payment, at the rate that appears, at 11:00 a.m.
(London time) on the Closing Date, on Telerate Page 3750 (or such page as may
replace such page on such service for the purpose of displaying such rate) for
six-month U.S. Dollar deposits in Europe.
1.5. Closing. (a) The closing of the transactions
contemplated hereby (the "Closing") shall be held at the offices of Fried,
Frank, Harris, Shriver & Jacobson LLP, One New York Plaza, New York, New York
10004, at 9:00 a.m., New York City time, on the third business day immediately
following the day on which the last of the conditions set forth in Articles VII
and VIII (other than those conditions that by their nature are to be satisfied
at the Closing, but subject to the satisfaction or waiver of those conditions)
are satisfied or waived in accordance with this Agreement, or at such other
place, time or date as Purchaser and Seller may agree (the "Closing Date"). The
effective time of the Closing for accounting and other purposes (the "Effective
Closing Date") (i) for the purchase of the Interests of any entity organized
under the laws of any state of the United States shall be 12:01 a.m., New York
City time, on the Closing Date, and (ii) for the purchase of the other Interests
shall be 12:01 a.m., local time (based on the jurisdiction of organization), on
the Closing Date.
(b) At the Closing:
(i) SPX and Kendro LP shall deliver to Purchaser the
share certificates representing the Kendro plc Shares, duly endorsed by SPX
or Kendro LP, as applicable, for the transfer to Purchaser or accompanied by
duly executed instruments of transfer, reasonably acceptable to Purchaser, in
blank;
(ii) Kendro LP shall deliver to Purchaser the share
certificates representing the Kendro HK Shares, duly endorsed by Kendro LP
for the transfer to Purchaser or
accompanied by duly executed instruments of transfer, reasonably acceptable
to Purchaser, in blank;
(iii) Purchaser shall pay to SPX or Kendro LP, as
appropriate, the portion of the Purchase Amount and Preliminary Closing
Cash Amount (the "Closing Payment") attributable to the Kendro plc Shares and
the Kendro HK Shares being sold by such entity as set forth in Exhibit 1.2;
(iv) Immediately following receipt of the funds
representing Kendro LP's portion of the Closing Payment to be paid pursuant
to clause (iii) above, Kendro LP will distribute such funds to its partners and
Kendro GP will distribute its portion of such funds to its stockholder(s);
(v) Immediately following the transactions described
in clauses (i) through (iv) above:
(A) Seller shall deliver to Purchaser the share
certificates representing the MedCo Shares, the KeyCo Shares and the CryCo
Shares, duly endorsed by SPX for the transfer to Purchaser or accompanied by
duly executed stock power, reasonably acceptable to Purchaser, in blank,
(B) Seller shall deliver to Thermo Germany the
closing condition satisfaction notice attached as Exhibit C hereto (the
"Kendro GmbH Closing Condition Satisfaction Notice"), duly executed by SPX
Europe, which will acknowledge the satisfaction or, if applicable, waiver of any
and all conditions precedent to the transfer of legal title to the Kendro GmbH
Shares and which, if duly executed by SPX Europe and Thermo Germany and
delivered by Thermo Germany to the Notary Public, will effect the transfer of
legal title to the Kendro GmbH Shares,
(C) Seller shall deliver to Purchaser the share
certificates representing the Kendro AG Shares, duly endorsed by GS Ireland
for the transfer to Purchaser or accompanied by duly executed instruments of
transfer, reasonably acceptable to Purchaser, in blank,
(D) Seller shall deliver to Purchaser the share
certificates representing the Nippon Kendro Shares, duly endorsed by GS
Ireland for the transfer to Purchaser or accompanied by duly executed
instruments of transfer, reasonably acceptable to Purchaser, in blank,
(E) Seller shall deliver to Purchaser
instruments of assignment, reasonably acceptable to Purchaser, transferring
the Kendro LP Interests owned directly by SPX and by Kendro GP II to Purchaser,
duly executed by SPX and Kendro GP II, respectively;
(F) Seller shall deliver to Purchaser the share
certificates representing the Kendro GP Shares, duly endorsed by SPX for
the transfer to Purchaser or accompanied by duly executed instruments of
transfer, reasonably acceptable to Purchaser, in blank;
(G) Seller shall assign, transfer, convey and
deliver to Purchaser all of the assets, properties and rights of GSLE set
forth on Schedule 1.5(b)(v)(G) (the "GSLE Kendro Assets"), subject to the
liabilities and obligations of GSLE set forth on Schedule 1.5(b)(v)(G) (the
"GSLE Kendro Liabilities," and together with the GSLE Kendro Assets, the "GSLE
Kendro Assets and Liabilities"), by executing and delivering a bill of sale and
assignment and assumption agreement, reasonably acceptable to Purchaser (the
"GSLE Bill of Sale"), providing for the assignment of all GSLE Kendro Assets and
Liabilities from GSLE (or any successor pursuant to a merger, consolidation,
liquidation or other reorganization) to Purchaser and Purchaser's acceptance and
assumption of the GSLE Kendro Assets and Liabilities;
(vi) Purchaser shall (1) pay to SPX, Kendro GP II, SPX
Europe, GS Ireland or GSLE, as appropriate, the portion of the Closing
Payment attributable to the Interests (other than the Kendro plc Shares and the
Kendro HK Shares) being sold by such person as set forth in Exhibit 1.2 and (2)
accept and assume the GSLE Kendro Assets and Liabilities by executing and
delivering the GSLE Bill of Sale; and
(vii) Payment of the entire Purchase Price shall be
made in U.S. dollars, on the Closing Date by wire transfer of immediately
available funds to an account or accounts of Seller at a bank or banks specified
by SPX in writing at least three business days prior to the Closing.
ARTICLE II
Representations and Warranties of Seller
Seller hereby represents and warrants to Purchaser, except as
otherwise set forth in the disclosure schedule delivered by Seller to Purchaser
concurrently herewith (the "Seller Disclosure Schedule"), which Seller
Disclosure Schedule shall specifically identify the specific section or
subsection, as applicable, to which each such exception relates; provided,
however, that any information set forth in one section in the Seller Disclosure
Schedule shall be deemed to apply to each other section or subsection thereof or
hereof to which the applicability or appropriateness of such disclosure is
apparent from a reading of the relevant section of the Seller Disclosure
Schedule, as follows (references to any Kendro Entity or the Kendro Entities in
this Article II and in Sections 4.1, 4.3 and 5.1 shall be deemed to include GSLE
but only in respect of the GSLE Kendro Assets and Liabilities and the Kendro
Business):
2.1. Organization and Good Standing. GSLE and each Kendro
Entity is duly organized, validly existing, and in good standing (where
applicable) under the laws of its jurisdiction of organization and has all
requisite corporate or similar power and authority to own, lease, and operate
the properties and assets it currently owns or leases and to carry on its
business as it is currently conducted and GSLE and each Kendro Entity is duly
licensed or qualified to do business as a foreign entity and is in good standing
in all jurisdictions in which the character of the properties and assets now
owned or leased by it or the nature of the business now conducted by it requires
it to be so licensed or qualified, except, in each case, where the failure to be
so organized, existing, qualified, licensed or in good standing, or to have such
power and authority, would not, individually or in the aggregate, have a
Material Adverse Effect. As used in this
Agreement, the term "Material Adverse Effect" means a material adverse
effect on the business, properties, results of operations or financial condition
of the Kendro Business, taken as a whole, but excluding any effect resulting
from or relating to (i) general political or economic conditions, general
financial and capital market conditions (including interest rates) or general
effects on any of the industries in which the Kendro Business is engaged, or, in
each case, any changes therein (including as a result of (x) an outbreak or
escalation of hostilities involving the United States or any other country or
the declaration by the United States or any other country of a national
emergency or war, or (y) the occurrence of any other calamity or crisis
(including any act of terrorism)) except to the extent that such change
disproportionately adversely affects the Kendro Business, (ii) any changes in
law, U.S. generally accepted accounting principles in effect as of the date
hereof ("GAAP") or any authoritative interpretations thereof, (iii) the public
announcement or the becoming public of the transactions contemplated by this
Agreement, (iv) any action taken or failed to be taken by Seller or any of its
affiliates or representatives at the request of Purchaser or that is required or
contemplated by this Agreement, (v) a failure to meet Seller's internal or
analysts' forecasts or projections (provided that this clause (v) shall not be
construed as providing that circumstances or events giving rise to such failure
do not constitute or contribute to a Material Adverse Effect) or (vi) any action
taken by Purchaser or any of its affiliates or representatives.
2.2. Corporate Authority and Approval. Seller has all
requisite power and authority to enter into, and perform its obligations
under, this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by Seller, the performance by
Seller of its obligations hereunder, and the consummation by Seller of the
transactions contemplated hereby have been duly authorized by all requisite
corporate, partnership, limited liability company or similar action on the part
of Seller. This Agreement has been duly executed and delivered by SPX, SPX
Europe, Kendro GP II, GS Ireland and GSLE and (assuming the valid authorization,
execution, and delivery of this Agreement by Purchaser) constitutes a valid and
binding obligation of SPX, SPX Europe, Kendro GP II, GS Ireland and GSLE
enforceable against SPX, SPX Europe, Kendro GP II, GS Ireland and GSLE in
accordance with its terms, except to the extent such enforceability may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws relating to or affecting creditors' rights
generally and to general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law).
2.3. Capitalization. (a) The outstanding share capital of
Kendro plc consists of (pound)300,000, represented by 300,000 registered
shares, par value (pound)1 per share, which shares constitute the Kendro plc
Shares. All of the issued and outstanding Kendro plc Shares have been, to the
extent required, duly authorized and validly issued and are fully paid and
nonassessable. SPX and Kendro LP are the record and beneficial owners of the
Kendro plc Shares. Except for the Kendro plc Shares, there are no shares of
capital stock or other equity securities of Kendro plc outstanding and there are
no securities outstanding convertible into, exchangeable for or carrying the
right to acquire, or any voting agreements with respect to, any equity
securities of Kendro plc or any subscriptions, warrants, options, rights or
other arrangements obligating Kendro plc to issue or acquire any of its equity
securities.
(b) The outstanding share capital of Kendro HK consists of
HK$10,000.00, represented by two ordinary shares, par value HK$1.00 per
share, which shares constitute the
Kendro HK Shares. All of the issued and outstanding Kendro HK Shares have
been, to the extent required, duly authorized, validly issued and are fully paid
and nonassessable. Kendro LP is the beneficial owner of the Kendro HK Shares.
Except for the Kendro HK Shares, there are no shares of capital stock or other
equity securities of Kendro HK outstanding and there are no securities
outstanding convertible into, exchangeable for or carrying the right to acquire,
or any voting agreements with respect to, any equity securities of Kendro HK or
any subscriptions, warrants, options, rights or other arrangements obligating
Kendro HK to issue or acquire any of its equity securities.
(c) The authorized capital stock of MedCo consists of
100,000 shares of common stock, par value $0.01 per share, of which 100
shares, constituting the MedCo Shares, are issued and outstanding. All of the
issued and outstanding MedCo Shares have been duly authorized, validly issued
and are fully paid and nonassessable. SPX is the record and beneficial owner of
the MedCo Shares. Except for the MedCo Shares, there are no shares of capital
stock or other equity securities of MedCo outstanding and there are no
securities outstanding convertible into, exchangeable for or carrying the right
to acquire, or any voting agreements with respect to, any equity securities of
MedCo or any subscriptions, warrants, options, rights or other arrangements
obligating MedCo to issue or acquire any of its equity securities.
(d) The authorized capital stock of KeyCo consists of 100
shares of common stock, no par value, of which 100 shares, constituting the
KeyCo Shares, are issued and outstanding. All of the issued and outstanding
KeyCo Shares have been duly authorized, validly issued and are fully paid and
nonassessable. SPX is the record and beneficial owner of the KeyCo Shares.
Except for the KeyCo Shares, there are no shares of capital stock or other
equity securities of KeyCo outstanding and there are no securities outstanding
convertible into, exchangeable for or carrying the right to acquire, or any
voting agreements with respect to, any equity securities of KeyCo or any
subscriptions, warrants, options, rights or other arrangements obligating KeyCo
to issue or acquire any of its equity securities.
(e) The authorized capital stock of CryCo consists of 100
shares of common stock, no par value, of which 100 shares, constituting the
CryCo Shares, are issued and outstanding. All of the issued and outstanding
CryCo Shares have been duly authorized, validly issued and are fully paid and
nonassessable. SPX is the record and beneficial owner of the CryCo Shares.
Except for the CryCo Shares, there are no shares of capital stock or other
equity securities of CryCo outstanding and there are no securities outstanding
convertible into, exchangeable for or carrying the right to acquire, or any
voting agreements with respect to, any equity securities of CryCo or any
subscriptions, warrants, options, rights or other arrangements obligating CryCo
to issue or acquire any of its equity securities.
(f) 98.8% of the Kendro LP Interests are owned of record and
beneficially by SPX, 0.2% of the Kendro LP Interests are owned of record
and beneficially by Kendro GP II, and 1.0% of the Kendro LP Interests are owned
of record and beneficially by Kendro GP. Except for the Kendro LP Interests
owned by SPX, Kendro GP II and Kendro GP, there are no partnership interests in
Kendro LP outstanding and there are no rights outstanding convertible into,
exchangeable for or carrying the right to acquire, or any voting agreements with
respect to, any partnership interests in Kendro LP or any subscriptions,
options, rights or other arrangements obligating Kendro LP to issue or acquire
any of its partnership interests.
(g) The outstanding share capital of Kendro GmbH consists of
one share with an aggregate nominal value of (euro)2,600,000, fully
paid-in, and constituting the Kendro GmbH Shares. All of the issued and
outstanding Kendro GmbH Shares have been, to the extent required, duly
authorized, validly issued and are fully paid and nonassessable. SPX Europe is
the record and beneficial owner of the Kendro GmbH Shares. Except for the Kendro
GmbH Shares, there are no shares of capital stock or other equity securities of
Kendro GmbH outstanding and there are no securities outstanding convertible
into, exchangeable for or carrying the right to acquire, or any voting
agreements with respect to, any equity securities of Kendro GmbH or any
subscriptions, warrants, options, rights or other arrangements obligating Kendro
GmbH to issue or acquire any of its equity securities.
(h) The outstanding share capital of Kendro AG consists of
CHF 200,000, represented by 200 registered shares, par value CHF 1,000 per
share, which shares constitute the Kendro AG Shares. All of the issued and
outstanding Kendro AG Shares have been, to the extent required, duly authorized,
validly issued and are fully paid and nonassessable. GS Ireland is the record
and beneficial owner of the Kendro AG Shares. Except for the Kendro AG Shares,
there are no shares of capital stock or other equity securities of Kendro AG
outstanding and there are no securities outstanding convertible into,
exchangeable for or carrying the right to acquire, or any voting agreements with
respect to, any equity securities of Kendro AG or any subscriptions, warrants,
options, rights or other arrangements obligating Kendro AG to issue or acquire
any of its equity securities.
(i) The outstanding share capital of Nippon Kendro consists
of JPY 10,000,000, represented by 200 shares, which shares constitute the
Nippon Kendro Shares. All of the issued and outstanding Nippon Kendro Shares
have been, to the extent required, duly authorized, validly issued and are fully
paid and nonassessable. GS Ireland is the record and beneficial owner of the
Nippon Kendro Shares. Except for the Nippon Kendro Shares, there are no shares
of capital stock or other equity securities of Nippon Kendro outstanding and
there are no securities outstanding convertible into, exchangeable for or
carrying the right to acquire, or any voting agreements with respect to, any
equity securities of Nippon Kendro or any subscriptions, warrants, options,
rights or other arrangements obligating Nippon Kendro to issue or acquire any of
its equity securities.
(j) The authorized capital stock of Kendro GP consists of
1,000 shares of common stock, par value $0.01 per share, of which 100
shares, constituting the Kendro GP Shares, are issued and outstanding. All of
the issued and outstanding Kendro GP Shares have been validly issued and are
fully paid and nonassessable. SPX is the record and beneficial owner of the
Kendro GP Shares. Except for the Kendro GP Shares, there are no shares of
capital stock or other equity securities of Kendro GP outstanding and there are
no securities outstanding convertible into, exchangeable for or carrying the
right to acquire, or any voting agreements with respect to, any equity
securities of Kendro GP or any subscriptions, warrants, options, rights or other
arrangements obligating Kendro GP to issue or acquire any of its equity
securities.
(k) Schedule 2.3(k) of the Seller Disclosure Schedule sets
forth a true and complete list of each equity investment (including
obligations that are convertible into equity securities) made by any Kendro
Entity in any Person (including the percentage ownership as of the most recent
practicable date for which such Kendro Entity has capitalization information for
such entity and any management rights granted to such Kendro Entity) other than
the Subsidiaries ("Other Interests"). The Other Interests are owned directly or
indirectly by such Kendro Entity free and clear of all Encumbrances.
2.4 . The Interests. (a) Upon delivery to Purchaser at the
Closing of certificates representing the Interests (other than the Kendro
LP Interests and the Kendro GmbH Shares), duly endorsed by SPX, GS Ireland or
Kendro LP, as appropriate, for transfer to Purchaser or accompanied by duly
executed stock powers or other instruments of transfer in blank, and upon the
receipt by the appropriate person of the portion of the Purchase Price
attributable thereto, legal and valid title to the Interests (other than the
Kendro LP Interests and the Kendro GmbH Shares) will pass to Purchaser, free and
clear of any Encumbrances, and Purchaser will become the record and beneficial
owner of the Interests (other than the Kendro LP Interests and the Kendro GmbH
Shares).
(b) Upon delivery to Purchaser at the Closing of an
instrument of assignment executed by SPX and Kendro GP II transferring the
Kendro LP Interests owned by them to Purchaser and upon the receipt by SPX and
Kendro GP II of the portion of the Purchase Price attributable thereto, legal
and valid title to the Kendro LP Interests (other than the Kendro LP Interests
owned by Kendro GP, which will be acquired by Purchaser through its purchase of
the Kendro GP Shares) will pass to Purchaser, free and clear of any
Encumbrances.
(c) Upon delivery to Thermo Germany at the Closing of the
Kendro GmbH Closing Condition Satisfaction Notice and effectiveness of the
Notarial Deed and upon the receipt by SPX Europe of the portion of the Purchase
Price attributable thereto, legal and valid title to the Kendro GmbH Shares will
pass to Thermo Germany, free and clear of any Encumbrances.
2.5. Subsidiaries. A complete list of the Subsidiaries of
each of the Sale Entities is set forth in Schedule 2.5 of the Seller
Disclosure Schedule. Schedule 2.5 of the Seller Disclosure Schedule sets forth,
with respect to each Subsidiary, the (i) entire authorized capital stock of each
such Subsidiary, and (ii) total issued and outstanding capital stock of each
such Subsidiary, including the record and beneficial holders thereof. Except as
set forth in Schedule 2.5 of the Seller Disclosure Schedule, (i) none of the
Sale Entities directly or indirectly owns any equity or similar interest in, or
any interest convertible into, exchangeable for, or carrying the rights to
acquire, any equity or similar interest in, any corporation, partnership, joint
venture or other business association or entity, (ii) all the outstanding shares
of capital stock of, or other ownership interests in, the Subsidiaries of the
Sale Entities have been, to the extent required, duly authorized, validly issued
and are fully paid and non-assessable, (iii) other than shares of capital stock
or other equity securities held of record or beneficially by the Sale Entities
or a wholly owned Subsidiary of any of them, there are no shares of capital
stock or other equity securities of any of the Subsidiaries of the Sale Entities
outstanding and (iv) there are no securities outstanding convertible into,
exchangeable for or carrying the right to acquire, or any voting agreements with
respect to, any equity securities of any of the Subsidiaries of the Sale
Entities or any subscriptions, warrants, options, rights or other arrangements
obligating any of the Subsidiaries of the Sale Entities to issue or acquire any
of its equity securities. Sorvall, L.L.C., a Delaware limited liability company,
Sorvall (U.K.) Limited, an English private limited company, Lab Impex Research
Limited, an English private limited company, and Kendro
Laboratory Products Pty., Ltd, a private company organized under the laws
of Australia, are inactive companies, do not conduct any business, are not
engaged in any business activities and do not have any debts or obligations
(other than obligations for franchise taxes not yet due and payable). The term
"Subsidiaries," with respect to a person, shall mean any corporation or other
form of legal entity of which more than 50% of the outstanding voting securities
are on the date hereof directly or indirectly owned by such person.
2.6. Consents. Except as set forth in Schedule 2.6 of the
Seller Disclosure Schedule, no consent, approval, waiver or authorization
of, or exemption by, or filing with, any governmental authority (each, a
"Governmental Consent") or of any third party to a Material Contract (each, a
"Third Party Consent") is required in connection with the execution, delivery
and performance by Seller of this Agreement or the taking by it of any other
action contemplated hereby (excluding Governmental Consents, if any, which
solely Purchaser is required to obtain or make, as to which no representations
or warranties are made), except for such Governmental Consents or Third Party
Consents which, if not obtained, would not, individually or in the aggregate,
result in Purchaser or Seller becoming subject to a significant penalty.
2.7. No Conflicts. The execution and delivery of, and
performance by Seller of its obligations under, this Agreement and the
consummation by Seller of the transactions contemplated hereby will not, with or
without the giving of notice or the lapse of time, or both, subject to obtaining
any Governmental Consents referred to in Sections 2.6 and 3.3 or Third Party
Consents referred to in Section 2.6, and except as set forth on Schedule 2.7 of
the Seller Disclosure Schedule, (i) violate any provision of the organizational
documents of Seller or any of the Kendro Entities, (ii) violate any material
Order applicable to Seller or any of the Kendro Entities or (iii) conflict with
or result in the breach of any material agreement reflecting obligations of
Seller or any of the Kendro Entities, including without limitation, any Material
Contracts.
2.8. Compliance with Laws. Except as set forth on Schedule
2.8 of the Seller Disclosure Schedule, each of the Kendro Entities is in
material compliance with all applicable federal, state, local and foreign laws,
rules and regulations currently in effect, all of its governmental permits,
licenses and authorizations ("Permits"), and all outstanding orders, rulings,
judgments or decrees (collectively, "Orders") applicable to it. Except as set
forth on Schedule 2.8 of the Seller Disclosure Schedule, the Kendro Entities
have all material Permits necessary for the conduct of the Kendro Business as
presently conducted.
2.9. Environmental Matters. Except as set forth on Schedule
2.9 of the Seller Disclosure Schedule:
(a) The Kendro Entities are in compliance in all material
respects with all applicable Environmental Laws (as defined in Section 2.9(k)).
(b) The Kendro Entities have or have applied for all Permits
required under Environmental Laws for the operation of the Kendro Business
as presently conducted (the "Environmental Permits"). Each of the Environmental
Permits is in full force and effect, and there are no violations, and no
investigations or proceedings pending, or, to Seller's knowledge, threatened,
with respect to such Environmental Permits.
(c) (i) There are no pending or, to Seller's knowledge,
threatened claims, complaints, investigations or proceedings with respect
to any alleged failure by the Kendro Entities to comply with any Environmental
Law and (ii) the Kendro Entities have not received any written notice of any
pending Litigation, nor, to Seller's knowledge, are any such actions threatened,
alleging violation or liability in connection with the conduct of the Kendro
Business under any Environmental Laws. The aforementioned claims, complaints,
investigations, proceedings and pending or threatened litigation are hereinafter
referred to as "Environmental Claims."
(d) Since January 1, 2003, there has been no material
release of a Hazardous Material (as defined in Section 2.9(k)) (i) by any
of the Kendro Entities at, from, in, on or under any real property currently or
formerly owned, operated, leased or used by a Kendro Entity (a "Site") during
the period of such Site's ownership, operation, lease or use by a Kendro Entity
or (ii) to Seller's knowledge, by any third party at, from, in or under any
Site. To Seller's knowledge, no Hazardous Materials are present in or migrating
through soil, surface water or groundwater at any Site, in each case, which
requires investigation or remediation under Environmental Laws. The
aforementioned releases of Hazardous Materials are hereinafter referred to as
"Environmental Conditions."
(e) To Seller's knowledge, none of the Kendro Entities or
any predecessor of the Kendro Entities has transported or arranged for the
transportation, treatment, storage, handling, or disposal, of any Hazardous
Material to any off-site location which is listed on the National Priorities
List ("NPL") under CERCLA, listed for possible inclusion on the NPL by the
Environmental Protection Agency in the Comprehensive Environmental Response and
Liability Information System, as provided for by 40 CFR ss. 300.5 or on any
similar state or local list, or that is the subject of federal, state or local
enforcement actions or other investigations that may lead to Environmental
Claims.
(f) To Seller's knowledge, no government action has been
taken or is in process that has required or would reasonably be expected to
require any of the Kendro Entities to place any notice or restriction relating
to the presence of Hazardous Materials at any Site in any deed to the real
property on which such Site is located.
(g) None of the Kendro Entities has handled any Hazardous
Materials in the conduct of its business or on any Site except in
compliance in all material respects with applicable Environmental Laws.
(h) To Seller's knowledge, there are no active or abandoned
underground storage tanks or surface impoundments for Hazardous Materials,
polychlorinated biphenyl-containing equipment, asbestos, asbestos-containing
material or ionizing and non-ionizing radiation source material at any Site.
(i) Since January 1, 2003, there have been no environmental
investigations, studies, audits, tests, reviews or other analyses conducted
by, or in the possession of, Seller or any of the Kendro Entities with respect
to any Site. All material documentation of such investigations, studies, audits,
tests, review or other analyses have been provided to Purchaser.
(j) Since January 1, 2003, no Kendro Entity has received a
CERCLA 104(e) request for information as a "Potentially Responsible Party"
(PRP) under CERCLA.
(k) As used in this Agreement, the term (i) "Environmental
Matters" refers to all liabilities and obligations arising from or related
to Environmental Laws, Environmental Conditions or Environmental Claims, (ii)
"Environmental Laws" means all applicable laws (including, but not limited to,
CERCLA, the Resource Conservation and Recovery Act, the Clean Water Act and the
common law), rules, regulations, Orders, and Permits relating to protection of
public health or the environment, pollution control, or Hazardous Materials, as
currently in effect, and the term "Hazardous Materials" means any materials
containing any (i) "hazardous substance" as defined by CERCLA, (ii) petroleum,
including crude oil or any fraction thereof, (iii) natural gas, natural gas
liquids or synthetic gas usable for fuel, and (iv) asbestos, polychlorinated
biphenyls or isomers of dioxin. Notwithstanding any other provision of this
Agreement, this Section 2.9 contains the exclusive representations and
warranties of Seller concerning Environmental Matters.
2.10. Financial Statements. Seller has delivered to Purchaser
(a) unaudited combined balance sheets of the Kendro Business as at October
31, 2004, and unaudited combined statements of income and cash flow of the
Kendro Business for the ten month period ended October 31, 2004 (collectively
the "Interim Statements") and (b) unaudited combined balance sheets of the
Kendro Business as at December 31, 2003, and unaudited combined statements of
income and cash flow of the Kendro Business for the fiscal years ended December
31, 2003, including the notes thereto (which together with the Interim
Statements are herein collectively referred to as the "Financial Statements"), a
copy of each of which is attached as Schedule 2.10 to the Seller Disclosure
Schedule. The Financial Statements present fairly in all material respects the
combined financial position and combined results of operations and cash flow of
the Kendro Business as at the respective dates indicated and for the respective
periods then ended in conformity with GAAP consistently applied in the periods
presented except (i) as set forth in the notes thereto and (ii) that in the case
of the Interim Statements, such statements are subject to normal year end
adjustments. The books and records of the Kendro Business are, in all material
respects, (x) correct and complete and (y) maintained in accordance with good
business practices and all applicable laws.
2.11. Absence of Certain Changes or Events. Since October 31,
2004 (except, since the date hereof, as permitted or contemplated by this
Agreement or as set forth on Schedule 2.11 of the Seller Disclosure Schedule),
the Kendro Entities have not (i) suffered any damage, destruction or casualty
loss to their physical properties that, individually or in the aggregate, had a
replacement value at the time of the incident of Three Hundred Thousand Dollars
($300,000) or more net of insurance coverage; (ii) incurred or discharged any
obligation or liability or entered into or taken any other transaction except in
the ordinary course of business and except for obligations, liabilities and
transactions that would not, individually or in the aggregate, have a Material
Adverse Effect; (iii) suffered any changes that, individually or in the
aggregate, would have a Material Adverse Effect; (iv) increased the rate or
terms of compensation payable or to become payable to any of their directors,
officers or key employees, or increased the rate or terms of any bonus, pension
or other employee benefit plan covering any of their directors, officers or key
employees, except in each case for increases occurring in the ordinary course of
business in accordance with their respective customary practices (including
normal periodic
performance reviews and related compensation and benefit increases) or as
required by law, rule, regulation or any pre-existing Contract; (v) amended or
modified the respective charter or bylaws of any Kendro Entity, except as
required or appropriate in connection with the transactions contemplated by this
Agreement; or (vi) prior to the date hereof entered into any new Material
Contract.
2.12. Title to Assets. Except as set forth on Schedule 2.12 of
the Seller Disclosure Schedule, each of the Kendro Entities has good title
to or a valid leasehold in all of its material assets, in each case free and
clear of all Encumbrances, except for (i) liens for Taxes, mechanic's,
materialmen's, landlord's, warehousemen's, carriers' or other like liens arising
or incurred in the ordinary course of business if the underlying obligations are
not past due, not yet due or are being contested in good faith by appropriate
proceedings; and (ii) such Encumbrances as do not materially detract from the
value or impair the use of the property subject thereto or make such property
unmarketable ("Permitted Liens"). As used in this Agreement in respect of Seller
or the Kendro Entities, the term "material" means material to the business,
properties, results of operations, or financial condition of the Kendro
Business, taken as a whole.
2.13. Real Property.
(a) Owned Real Property. Schedule 2.13(a) lists all real
property owned by the Kendro Entities. No other Person has the right to use
or occupancy of any portion of any of such owned real properties.
(b) Leased Real Property. Schedule 2.13(b) lists all leases
of real property under which any of the Kendro Entities is a tenant or
subtenant (the "Real Property Leases"). Assuming that it is a legal, valid and
binding obligation of the other party thereto, each of the foregoing Real
Property Leases is a valid and binding obligation of Seller and/or one of the
Kendro Entities and is enforceable against Seller and/or one of the Kendro
Entities in accordance with its terms, except to the extent such enforceability
may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws relating to or affecting creditors' rights
generally and to general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law). Neither Seller nor any of
the Kendro Entities nor, to the knowledge of Seller, any other party is in
breach of or default under in any material respect any Real Property Lease, and
no event has occurred or conditions exist that with or without notice, lapse of
time or the happening or occurrence of any other event would constitute a breach
or default thereunder in any material respect by any of Seller or the Kendro
Entities or, to Seller's knowledge, any other party or permit termination,
modification or acceleration thereof, by any of the Kendro Entities or, to
Seller's knowledge, any other party to the Real Property Lease.
(c) Facilities. Except for Permitted Liens, no Person other
than the Kendro Entities has the right of use or occupancy of any portion
of the real property subject to the Real Property Leases (collectively, the
"Facilities"). There is no material Litigation pending or, to Seller's
knowledge, threatened affecting or relating to the Facilities.
2.14. Patents, Trademarks, Etc. Schedule 2.14(a) of the Seller
Disclosure Schedule sets forth a list, as of the date hereof, of all
registered United States and foreign patents,
trademarks, trade names, copyrights and applications therefor which are
owned, primarily used or primarily held for use by any of the Kendro Entities
(the "Intellectual Property Rights"). Schedule 2.14(b) of the Seller Disclosure
Schedule sets forth all contracts and/or licenses whereby the Kendro Entities
granted or received any Intellectual Property Right (other than (i) any
agreement for generally available off-the-shelf commercial computer software
with a value not greater than $5,000 and (ii) licenses granted by the Kendro
Entities to their customers in the ordinary course of business for computer
software (which the Kendro Entities had the right to license) embedded or
bundled with products sold by the Kendro Entities). The Kendro Entities own or
possess adequate licenses or other valid rights to use all Intellectual Property
Rights except as disclosed in Schedule 2.14(c) of the Seller Disclosure
Schedule. Except as set forth on Schedule 2.14(d) of the Seller Disclosure
Schedule, (x) to Seller's knowledge, no other Person has asserted ownership
rights in any of the Intellectual Property Rights, (y) the conduct of the Kendro
Business as now being conducted does not infringe any valid patents, trademarks,
trade names or copyrights of any third party and (z) to Seller's knowledge, none
of the Intellectual Property Rights is being infringed upon by any third party.
2.15. Material Contracts. Schedule 2.15 of the Seller
Disclosure Schedule sets forth a list, as of the date hereof, of each
contract or agreement to which Seller in respect of any of the Kendro Entities,
or to which any of the Kendro Entities, is a party (each, a "Contract") that:
(a) provides for future payments thereunder reasonably
expected to be more than $500,000 per year, including, without limitation,
all such Contracts that are (i) Contracts for capital expenditures (including
leases of personal property), (ii) distribution, dealer or sales agency
Contracts, and (iii) Contracts for the purchase or sale of any assets, but
excluding sales orders or other Contracts for the sale of finished goods entered
into in the ordinary course of business;
(b) restricts the kinds of businesses in which any of the
Kendro Entities or any employee, director or officer thereof may engage or
the geographical area in which any of the Kendro Entities may conduct its
business;
(c) is an indenture, mortgage, loan agreement or other
Contract for the borrowing or advancement of money or a line of credit;
(d) is a license (whether as licensor or licensee) or
similar agreement permitting the use of any Intellectual Property Rights
(other than (i) any agreement for generally available off-the-shelf commercial
computer software with a value not greater than $5,000 and (ii) licenses granted
by the Kendro Entities to their customers in the ordinary course of business for
computer software (which the Kendro Entities had the right to license) embedded
or bundled with products sold by the Kendro Entities);
(e) is a joint venture, partnership, development or similar
agreement;
(f) is a contract relating to identification, investigation,
cleanup, abatement, removal or other actions in connection with any
liabilities arising under Environmental Laws
requiring payments by Seller or the Kendro Entities in excess of $25,000
individually or $500,000 in the aggregate;
(g) is a contract under which any of the Kendro Entities is
lessor of or permits any third Person to hold or operate any personal
property or agreement under which any of the Kendro Entities is lessee providing
for lease payments the remaining unpaid balance of which is in excess of
$250,000;
(h) is a contract for the future purchase of fixed assets or
the maintenance thereof or for the future purchase of materials, supplies
or equipment, other than in the ordinary course of business, which involves
payments to be made by any of the Kendro Entities in excess of $250,000;
(i) is a contract or other undertaking under which the
consequences of a default or termination would have a Material Adverse Effect;
(j) is a contract requiring R&D expenditures by any of the
Kendro Entities of more than $150,000;
(k) is a contract relating to or including any earnout,
contingent payment or indemnity obligation entered into in connection with
the acquisition or disposition of a business or product line by any Kendro
Entity ("Acquisition Obligations");
(l) is collective bargaining or labor union agreement;
(m) is an employment, consulting or severance agreement that
provides for a base salary or base wages in excess of $100,000 per year;
(n) is a guarantee of an obligation of any person other than
a Kendro Entity; or
(o) is not of the foregoing type and is material
(collectively, the "Material Contracts").
Each of the Material Contracts is a valid and binding
obligation of Seller and/or one of the Kendro Entities and is enforceable
against Seller and/or one of the Kendro Entities in accordance with its terms,
except to the extent such enforceability may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws relating to or affecting creditors' rights generally and to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law). Except as set forth in Schedule 2.15 of the
Seller Disclosure Schedule, neither Seller nor any of the Kendro Entities nor,
to the knowledge of Seller, any other party is in breach of or default under in
any material respect any Material Contract, and no event has occurred or
conditions exist that with or without notice, lapse of time or the happening or
occurrence of any other event would constitute a breach or default thereunder in
any material respect by any of Seller or the Kendro Entities or, to Seller's
knowledge, any other party or permit termination, modification or acceleration
thereof, by any of the Kendro Entities or, to Seller's knowledge, any other
party to the Material Contract.
2.16. Litigation. Except as set forth in Schedule 2.16 of the
Seller Disclosure Schedule, there is no action or proceeding in any court
or before any governmental authority ("Litigation") pending or, to Seller's
knowledge, threatened against Seller in respect of the Kendro Business or
against any of the Kendro Entities or that seeks to enjoin or obtain damages in
respect of the consummation of the transactions contemplated hereby. None of the
Kendro Entities is subject to any outstanding Orders that, individually or in
the aggregate, would have a Material Adverse Effect.
2.17. Insurance. Schedule 2.17 of the Seller Disclosure
Schedule sets forth a list, as of the date hereof, of all casualty, general
liability and other insurance maintained by Seller in respect of any of the
Kendro Entities or by any of the Kendro Entities (the "Insurance Policies").
Each of the Insurance Policies is in full force and effect and no written notice
has been received by Seller or any of the Kendro Entities from any insurance
carrier purporting to cancel coverage under any of the Insurance Policies. There
are no pending claims against the Insurance Policies with respect to the Kendro
Entities as to which the insurers have denied liability. Seller and/or the
Kendro Entities, as applicable, have made timely premium payments with respect
to all of the material Insurance Policies.
2.18. U.S. Employee Benefit Plans. (a) Schedule 2.18(a) of the
Seller Disclosure Schedule sets forth a list, as of the date hereof, of all
employee benefit plans (within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")) and all other
material employee benefits, arrangements and policies (other than individual
employment, consulting or similar Contracts) primarily subject to the laws of
the United States or any state thereof that are maintained or contributed to by
Seller or any of the Kendro Entities for the benefit of the current or former
employees of Seller or any of the Kendro Entities whose employment primarily
relates to any of the Kendro Entities (the "Kendro Benefit Plans"), other than
those mandated by statute.
(b) Seller has made available to Purchaser (i) true and
complete copies of all Kendro Benefit Plans; (ii) the most recent annual
actuarial evaluation, if any, prepared for each Kendro Benefit Plan; (iii) the
most recent annual report (series 5500), if any, required under ERISA with
respect to each Kendro Benefit Plan; (iv) the most recent determination letter
received from the Internal Revenue Service, if any, for each Kendro Benefit
Plan; and (v) the most recent Summary Plan Description, if any, required under
ERISA with respect to each Kendro Benefit Plan.
(c) With respect to each Kendro Benefit Plan that is
intended to be qualified under Section 401(a) of the Internal Revenue Code of
1986, as amended (the "Code"), and is maintained by Seller or any of the
Kendro Entities for any of their employees, (x) Seller or the Kendro Entity has
obtained a favorable determination letter from the Internal Revenue Service, (y)
such plan has been operated in compliance with ERISA and in accordance with the
provisions of, and the rules and regulations covering, such plan except where
the failure to so comply would not, individually or in the aggregate, have a
Material Adverse Effect, and (z) Seller and the Kendro Entities have not, and to
Seller's knowledge no other person has, engaged in a transaction prohibited by
Section 4975 of the Code or Section 406 of ERISA that would, individually or in
the aggregate, have a Material Adverse Effect.
(d) Each Group Benefit Plan that is subject to Part 3 of
Subtitle B of Title I of ERISA or Section 412 of the Code has been
maintained in compliance with the minimum funding standards of ERISA and the
Code. For the purposes of this Agreement, the term "Group Benefit Plan" shall
mean any employee benefit plan (within the meaning of Section 3(3) of ERISA)
maintained or contributed to by any ERISA Affiliate or any Kendro Benefit Plan.
For purposes of this Agreement, the term "ERISA Affiliate" shall mean any entity
which is, or at any applicable time was, a member of (i) a controlled group of
corporations (as defined in Section 414(b) of the Code), (ii) a group of trades
or businesses under common control (as defined in Section 414(c) of the Code),
or (iii) an affiliated service group (as defined under Section 414(m) of the
Code or the regulations under Section 414(o) of the Code), any of which includes
or included any Kendro Entity.
(e) No reportable event, within the meaning of Section 4043
of ERISA, has occurred with respect to any Group Benefit Plan which is
subject to Title IV of ERISA, other than reportable events with respect to which
notice has been waived by the Pension Benefit Guaranty Corporation or that would
not, individually or in the aggregate, have a Material Adverse Effect.
(f) No liability under Title IV of ERISA (including plan
termination liabilities and withdrawal liabilities with respect to any
Multiemployer Plan) has been incurred or is reasonably likely to be incurred, in
each case which would result in any liability to a Kendro Entity.
(g) Except as disclosed in Schedule 2.18(g) of the Seller
Disclosure Schedule, the execution of this Agreement and the consummation
of the transactions contemplated hereby will not (either alone or upon the
occurrence of any additional or subsequent events) constitute an event under any
Kendro Benefit Plan, or agreement or other obligation of Seller or any Kendro
Entity that will or may result in any payment (whether of severance pay or
otherwise), acceleration, forgiveness of indebtedness, vesting, distribution,
increase in benefits or obligation to fund benefits with respect to any
Employee.
2.19. Non-U.S. Employee Benefit Plans. Schedule 2.19 of the
Seller Disclosure Schedule sets forth a list, as of the date hereof, of all
employee benefit plans and other employee benefits, arrangements and policies
(other than individual employment, consulting or similar Contracts) primarily
subject to non-US laws that are maintained or contributed to by Seller or any of
the Kendro Entities for the benefit of current or former employees of Seller or
any of the Kendro Entities whose employment primarily relates to any of the
Kendro Entities (collectively, "Non-US Kendro Benefit Plans"), other than those
mandated by statute and those plans where the aggregate obligations are de
minimis. Each Non-US Kendro Benefit Plan has been established, maintained,
funded (if required), and administered in all material respects in accordance
with its terms. Each Non-US Kendro Benefit Plan is in compliance in all material
respects with the requirements of the laws of the jurisdictions governing such
plans (including laws relating to funding requirements). There are no
proceedings pending or, to Seller's knowledge, threatened (other than routine
claims for benefits) with respect to any Non-US Kendro Benefit Plan or with
respect to the assets of any Non-US Kendro Benefit Plan which would reasonably
be expected to result in a material liability to Seller or any Kendro Entity.
Neither Seller nor any Kendro Entity has received written notice of any
inquiries,
investigations, audits or proceedings, pending or threatened, by any
governmental authority with respect to any Non-US Kendro Benefit Plan or any
related trust.
2.20. Current Employees.
(a) Set forth on Schedule 2.20 of the Seller Disclosure
Schedule is a true and complete list of all employees of the Kendro
Entities as of the date hereof whose base salary or base wages exceeds US
$100,000 or equivalent amount in applicable non-U.S. currency (the "Current
Employees"), together with their respective names, positions, rates of pay, most
recent bonus paid, identity of employer and dates of hire. Except as would not,
individually or in the aggregate, result in any material liability to any Kendro
Entity, no written request for any change to such rate of pay required to be
honored by any of the Kendro Entities has been received by any of the Kendro
Entities. For each Current Employee on a leave of absence (other than vacation),
Schedule 2.20 indicates the nature of the leave of absence and (to the extent
known) the employee's anticipated date of return to active employment.
(b) The consummation of the transactions contemplated by
this Agreement will not result in any liability to any Kendro Entity for
severance payments or other severance-related benefits with respect to any
Shared Employee who remains an employee of Seller rather than of the Kendro
Entities immediately following the Closing. Except as set forth on Schedule 2.20
of the Seller Disclosure Schedule, there are no Shared Employees. "Shared
Employee" means (i) an employee of Seller who also provides services to any of
the Kendro Entities in the course of his duties as such employee or (ii) an
employee of any Kendro Entity who also provides services to Seller in the course
of his duties as such employee.
2.21. Labor Matters.
(a) Except as set forth on Schedule 2.21 of the Seller
Disclosure Schedule, neither Seller nor any Kendro Entity is a party to or
bound by any collective bargaining agreement or other contract, agreement or
arrangement with any trade union or other similar body or organization
representing any employees of any Kendro Entity. Since January 1, 2003, no
Kendro Entity has received notice of any petition filed or proceeding instituted
by an employee or group of employees of any Kendro Entity with the National
Labor Relations Board seeking recognition of a bargaining representative, nor,
to Seller's knowledge, is any such petition or proceeding threatened.
(b) Since January 1, 2003, there has been no claim that a
Kendro Entity has committed any material unfair labor practice. To Seller's
knowledge, no organizational effort is currently being made or threatened by or
on behalf of any labor union with respect to employees of any Kendro Entity.
Since January 1, 2003, there has been no (i) labor strike or stoppage nor, to
Seller's knowledge, is any such labor strike or stoppage threatened against any
Kendro Entity or (ii) to Seller's knowledge, actual or threatened labor slowdown
against any Kendro Entity.
(c) Each Kendro Entity is in compliance in all material
respects with all Laws governing or relating to employment, employment
practices, termination, immigration, compensation, benefits, terms and
conditions of employment and wages and hours, in each case,
with respect to employees, including without limitation the Worker
Adjustment and Retraining Notification Act and all comparable provisions of
state labor codes.
(d) Except as set forth on Schedule 2.21 of the Seller
Disclosure Schedule, there are no pending or, to Seller's knowledge,
threatened claims or actions against any Kendro Entity under any worker's
compensation policy or long-term disability policy other than claims for
benefits under such policies made in the ordinary course of business.
(e) No Kendro Entity is liable for any material payment to
any trust or other fund or to any governmental authority, with respect to
unemployment compensation benefits, social security or other benefits or
obligations for Employees (other than routine payments to be made in the normal
course of business).
(f) No citation has been issued by the Occupational Safety
and Health Administration ("OSHA") within the last twenty-four (24) months
against any Kendro Entity and no notice of contest, claim, complaint, charge,
investigation or other administrative enforcement proceeding involving any
Kendro Entity has been filed or is pending or, to Seller's knowledge, is
threatened against any Kendro Entity under OSHA or any other law relating to
occupational safety and health.
(g) Schedule 2.21(g) of the Seller Disclosure Schedule sets
forth those jurisdictions in which employees of any Kendro Entity are
covered by works councils or other similar bodies, along with the name of each
such works council or other body. Any notices required by reason of the sale of
the Kendro Business to be given to any such works councils or other bodies prior
to the execution of this Agreement have been given. There is no other obligation
of Seller or any Kendro Entity at or prior to the Closing with respect to any
such works council or other body in connection with the sale of the Kendro
Business.
2.22. Taxes. All material federal, state, local and foreign
Tax Returns required to be filed by Seller in respect of the Kendro
Entities or by any of the Kendro Entities have been filed in a timely manner
(taking into account all timely requested extensions of due dates), and Seller
and each of the Kendro Entities have paid, or established adequate reserves in
accordance with GAAP for, all Taxes required to be paid except as would not,
individually or in the aggregate, have a Material Adverse Effect. No
deficiencies for any federal, state, local or foreign Taxes have been asserted
or assessed in writing against Seller in respect of the Kendro Entities or
against any of the Kendro Entities (including under Treas. Reg. ss. 1.1502-6 (or
any analogous or similar state, local, or foreign law)) that remain unpaid and
there is no action, suit, Tax authority proceeding, or audit with respect to any
Tax now in progress, pending in writing, or, to the knowledge of Seller,
threatened against or with respect to any Kendro Entity. No waivers of statutes
of limitation are in effect in respect of United States federal, state and local
Income Taxes for any of the Kendro Entities, and there is no outstanding
extension of the time for filing any United States federal, state or local
Income Tax Return of any Kendro Entity. The Kendro Entities have timely withheld
and paid all Taxes that were required to have been withheld and paid by them in
connection with amounts paid or owing to any employee, independent contractor,
creditor, stockholder or other person. No Kendro Entity will be required, as a
result of a change in method of accounting for any period ending on or before or
including the Closing Date, to include any adjustment under Section 481(c) of
the Code (or any similar or corresponding provision under any other Income Tax
law) in taxable income for any period ending after the Closing Date. No Kendro
Entity will be required to include any item of income in taxable income for any
Tax period (or portion thereof) ending after the Closing Date as a result of any
"closing agreement" as described in Section 7121 of the Code (or any
corresponding or similar provision of state, local or foreign income Tax law),
offer in compromise or other agreement with any Tax authority executed on or
prior to the Closing Date. No Kendro Entity is obligated to make any payments,
or is a party to any agreement that could obligate it to make any payments, that
will not be deductible under Code Sections 162(m) or 280G. No Kendro Entity is a
party to or bound by any Tax sharing or allocation agreement that will not be
terminated as to that Kendro Entity on or before the Closing Date. No Kendro
Entity has been a "distributing corporation" or a "controlled corporation" in
connection with a distribution intended or purported to be governed by Section
355 of the Code in the two (2) year period prior to the date of this Agreement
or in a distribution that would otherwise constitute part of a plan or a series
of related transactions within the meaning of Section 355(e) of the Code that
includes the transactions contemplated in this Agreement. There are no
outstanding rulings of, or requests for rulings by, any Tax authority addressed
to a Kendro Entity that are, or if issued would be, binding on any Kendro Entity
that would cause an increase in any Tax liability of any of the Kendro Entities
for any Tax Period (or portion thereof) beginning after the Closing Date.
2.23. Undisclosed Liabilities. The Kendro Business does not
have any liabilities of any nature that would be required by GAAP to be
reflected on a balance sheet or in the notes thereto of the Kendro Business,
other than (i) liabilities that are reflected in the Financial Statements; (ii)
liabilities disclosed or referred to in Schedule 2.23 of the Seller Disclosure
Schedule; and (iii) liabilities arising since October 31, 2004 in the ordinary
course of business and consistent with past practice.
2.24. Sufficiency of Assets. Except as set forth on Schedule
2.24 of the Seller Disclosure Schedule, the assets of the Kendro Entities
include all of the assets and properties that are necessary to conduct the
Kendro Business as it is currently conducted. The Kendro Entities constitute all
of the entities owned or controlled directly or indirectly by SPX that conduct
the Kendro Business. All tangible assets of the Kendro Business (other than any
asset the replacement cost of which would be less than $150,000 and which is not
of material importance to the respective operations of the Kendro Business) are
(i) in good working order and condition, ordinary wear and tear excepted, (ii)
have been reasonably maintained, (iii) are suitable for the uses for which they
are being utilized in the Kendro Business, (iv) do not require more than
regularly scheduled maintenance in the ordinary course consistent with the
established maintenance policies of the Kendro Business, as applicable, in order
to keep them in good operating condition, and (v) comply in all material
respects with all requirements under any laws and any licenses which govern the
use and operation thereof.
2.25. Fees. Except for the fees payable to Goldman, Sachs &
Co., which are the responsibility of Seller, neither Seller nor any of the
Kendro Entities has paid or become obligated (nor have they created any
liability or obligation on the part of Purchaser) to pay any fee or commission
to any broker, finder or intermediary in connection with the transactions
contemplated hereby.
2.26. Affiliate Transactions. Except as set forth on Schedule
2.26 of the Seller Disclosure Schedule, there are no contracts or
arrangements pursuant to which any goods, services, materials or supplies are
provided (i) by any Kendro Entity, on the one hand, to SPX or any affiliate of
SPX (other than any Kendro Entity) on the other hand or (ii) by SPX or any
affiliate of SPX (other than any Kendro Entity) on the one hand to any Kendro
Entity on the other hand.
2.27. Substantial Customers and Suppliers. Schedule 2.27(a) of
the Seller Disclosure Schedule lists the 10 largest customers of the Kendro
Business, taken as a whole, on the basis of revenues for goods sold or services
provided for the year ended December 31, 2003 and for the ten months ended
October 31, 2004. Schedule 2.27(b) of the Seller Disclosure Schedule lists the
10 largest suppliers of the Kendro Business, taken as a whole, on the basis of
cost of goods or services purchased for the year ended December 31, 2003 and for
the ten months ended October 31, 2004. Schedule 2.27(c) of the Seller Disclosure
Schedule lists the three largest customers and suppliers of the Kendro Business
(on the basis described in the first two sentences) for each of the following
businesses acquired during 2004: DataCentric Automation, H+P Labortechnik and
Medical Air Technology. None of the customers or suppliers listed on Schedule
2.27 of the Seller Disclosure Schedule has indicated that it will limit or alter
in any material respect or terminate its business relationship with the Kendro
Business as a result of the transactions contemplated by this Agreement.
2.28. FDA Regulation. (a) Since January 1, 2003, the Kendro
Entities have been in compliance in all material respects with all
applicable provisions of the Federal Food, Drug and Cosmetic Act 21 U.S.C. 301
et seq. ("FFDCA"), the Public Health Service Act and all applicable implementing
U.S. Food and Drug Administration ("FDA") rules, regulations and policies, and
all corresponding applicable foreign, state and local laws, rules and
regulations relative to the conduct or operation of the Kendro Business, the
products manufactured or sold by any of the Kendro Entities (the "Products") or
the ownership or use of any of their assets or properties (including, without
limitation, the good manufacturing practice requirements under the Quality
System Regulation, 21 C.F.R. 820, and the electronic records and the electronic
signatures regulation at C.F.R. Part 11). Since January 1, 2003, none of the
Products is or has been adulterated or misbranded as defined under FFDCA. Since
January 1, 2003, no Kendro Entity has received any written notification from the
FDA or any other applicable governmental authority indicating that any of the
Products is misbranded or adulterated. Since January 1, 2003, none of the
employees, agents or independent contractors of the Kendro Entities has been
disbarred, subject to disbarment under 21 U.S.C. 335, or otherwise disqualified
or suspended from performing services or otherwise subject to any restrictions
or sanctions by the FDA or any other governmental authority or professional
body.
(b) Since January 1, 2003, no Kendro Entity has received any
written notice of, and Seller has no knowledge that any Kendro Entity is
subject to, any written adverse inspection, finding of deficiency, finding of
non-compliance, regulatory or warning letter, safety alert, mandatory or
voluntary recall or any investigation, penalty for corrective or remedial action
or other compliance or enforcement action, in each case by or from a
governmental authority relating to the Products or to the facilities in which
such Products are or were developed, manufactured, assembled, packaged or
handled. Since January 1, 2003, no Kendro
Entity has received any written report of an adverse event pertaining to
the Products that have resulted in, or are reasonably likely to result in, a
lawsuit against any of the Kendro Entities.
2.29. Certain Payments; Export Law Compliance. None of the
Kendro Entities nor any of their respective directors, officers, agents or
employees or any other Persons acting for or on behalf of the Kendro Entities,
has, since January 1, 2003, directly or indirectly made payments in material
violation of any law, including, without limitation, the making of any unlawful
payment, contribution, bribe or kickback to any person affiliated with any
political party or government. Since January 1, 2003, none of the Kendro
Entities has violated in any material respect any law concerning the export or
re-export of any products or services or the prohibited boycott of any country.
2.30. Product Warranties. The standard product warranty of
each of the Kendro Entities (other than warranties under applicable law) as
of the date of this Agreement is described on Schedule 2.30 of the Seller
Disclosure Schedule.
2.31. Internal Controls.
(a) Since January 1, 2002, to Seller's knowledge, neither
Seller nor any Kendro Entity, nor, any director, officer, employee,
auditor, accountant or representative of Seller or any Kendro Entity has
received or otherwise had or obtained any written complaint, allegation,
assertion or claim (or oral complaint that is subsequently summarized or reduced
to writing), regarding the accounting or auditing practices, procedures,
methodologies or methods of any Kendro Entity or any of their respective
internal controls over financial reporting, including any complaint, allegation,
assertion or claim that any Kendro Entity has engaged in questionable accounting
or auditing practices. Since January 1, 2002, no attorney representing Seller or
any Kendro Entity, whether or not employed by Seller or any Kendro Entity, has
reported evidence of a material violation of securities laws, breach of
fiduciary duty or similar violation by any Kendro Entity or any of their
respective officers, directors, employees or agents for their actions taken
primarily in respect of the Kendro Business to the Board of Directors of Seller
or any Kendro Entity or any respective committee thereof or to any director or
officer of Seller or any Kendro Entity.
(b) The Kendro Entities (taken as a whole) have in place an
effective process to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles including
those policies and procedures that (1) pertain to the maintenance of records
that in reasonable detail accurately and fairly reflect the transactions and
dispositions of the assets of the Kendro Entities (taken as a whole); (2)
provide reasonable assurance that transactions are recorded as necessary to
permit preparation of financial statements in accordance with generally accepted
accounting principles, and that receipts and expenditures of the Kendro Entities
(taken as a whole) are being made only in accordance with the authorizations of
management; and (3) provide reasonable assurance regarding prevention or timely
detection of unauthorized acquisition, use or disposition of the assets the
Kendro Entities (taken as a whole) that could have a material effect on the
financial statements of the Kendro Entities (taken as a whole). During the
periods covered by the Financial Statements, (A) there have been no changes in
the internal control over financial reporting for any Kendro Entity that have
materially
affected, or are reasonably likely to materially affect, such Kendro
Entity's internal control over financial reporting; and (B) all significant
deficiencies and material weaknesses of which Seller has knowledge as of the
date hereof in the design or operation of internal control over financial
reporting for any Kendro Entity have been reported to the Board of Directors of
such entity and such entity's external auditors, and any such reports are
identified in Schedule 2.31 of the Seller Disclosure Schedule. To Seller's
knowledge, there have been no instances of fraud, whether or not material, that
occurred during any period covered by the Financial Statements involving the
management of any Kendro Entity or their respective employees who have a
significant role in the internal control over financial reporting.
(c) To Seller's knowledge, since January 1, 2002, no
director, officer, employee or representative of Seller or any Kendro
Entity has provided or is providing information to any law enforcement agency
regarding the commission or possible commission of any crime, or the violation
or possible violation, by Seller or any Kendro Entity, or any of their
respective officers or directors, of any law, with respect to any Kendro Entity.
Since January 1, 2002, neither Seller nor any Kendro Entity nor, to Seller's
knowledge, any of their respective officers, employees, contractors,
subcontractors or agents, has discharged, demoted, suspended, threatened,
harassed or in any other manner discriminated against an employee of any Kendro
Entity in the terms and conditions of employment because of any lawful act of
such employee described in 18 U.S.C. Section 1514A(a).
2.32. Disclaimer. Neither Seller nor any of its affiliates,
representatives or advisors has made, or shall be deemed to have made, to
Purchaser any representation or warranty other than those expressly made by
Seller in Sections 2.1 through 2.31 hereof. In any event, no representation or
warranty has been made or is being made herein to Purchaser (i) as to
merchantability, suitability or fitness for a particular purpose, or quality,
with respect to any of the tangible assets being so transferred, or as to the
condition or workmanship thereof or the absence of any defects therein, whether
latent or patent (or any other representation or warranty referred to in section
2-312 of the uniform commercial code of any applicable jurisdiction), (ii) with
respect to any projections, estimates or budgets delivered to or made available
to Purchaser, or (iii) with respect to any other information or documents made
available to Purchaser except, in the case of clauses (i) and (iii) only, as
expressly covered by a representation or warranty contained in Sections 2.1
through 2.31 hereof.
ARTICLE III
Representations and Warranties of Purchaser
Purchaser hereby represents and warrants to Seller as follows:
3.1. Organization and Good Standing. Purchaser is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has all requisite corporate or
similar power and authority to own, lease, and operate the properties and assets
it currently owns or leases and to carry on its business as such business is
currently conducted. Purchaser is duly licensed or qualified to do business as a
foreign corporation and is in good standing in all jurisdictions in which the
character of the
properties and assets now owned or leased by it or the nature of the
business now conducted by it requires it to be so licensed or qualified, except
where the failure so to be so licensed, qualified or in good standing would not,
individually or in the aggregate, materially hinder, impair or delay the
consummation of the transactions contemplated hereby (a "Purchaser Material
Adverse Effect").
3.2 . Corporate Authority and Approval. Purchaser has all
requisite corporate or similar power and authority to enter into, and
perform its obligations under, this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by Purchaser,
the performance by Purchaser of its obligations hereunder, and the consummation
by Purchaser of the transactions contemplated hereby have been duly authorized
by all requisite corporate action on the part of Purchaser. This Agreement has
been duly executed and delivered by Purchaser and (assuming the valid
authorization, execution, and delivery of this Agreement by Seller) constitutes
a valid and binding obligation of Purchaser enforceable against Purchaser in
accordance with its terms, except to the extent such enforceability may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws relating to or affecting creditors' rights
generally and to general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law).
3.3. Consents. Except as set forth in items 1 and 2 of
Schedule 2.6 of the Seller Disclosure Schedule, no Governmental Consent is
required in connection with the execution, delivery and performance by Purchaser
of this Agreement or the taking by it of any other action contemplated hereby
(excluding Governmental Consents, if any, which Seller or any of the Kendro
Entities is required to obtain or make, as to which no representations or
warranties are made), except for Governmental Consents which, if not obtained,
would not, individually or in the aggregate, have a Purchaser Material Adverse
Effect.
3.4. No Conflicts. The execution and delivery of, and
performance by Purchaser of its obligations under, this Agreement and the
consummation by Purchaser of the transactions contemplated hereby will not, with
or without the giving of notice or the lapse of time, or both, subject to
obtaining any Governmental Consents referred to in Sections 2.6 and 3.3, (i)
violate any provision of its charter or bylaws, (ii) violate any Order
applicable to Purchaser, or (iii) conflict with or result in the breach of any
agreement reflecting obligations of Purchaser, except in the case of clauses
(ii) or (iii) for violations, conflicts or breaches that would not, individually
or in the aggregate, have a Purchaser Material Adverse Effect.
3.5. Funds Available. Purchaser will have on the Closing
Date, sufficient funds to enable it to pay the Purchase Price and otherwise
to consummate the transactions contemplated by this Agreement.
3.6. Litigation. There is no Litigation pending or, to
Purchaser's knowledge, threatened against Purchaser (i) with respect to
which there is a reasonable likelihood of a determination that, individually or
in the aggregate, would have a Purchaser Material Adverse Effect or (ii) that
seeks to enjoin or obtain damages in respect of the consummation of the
transactions contemplated hereby.
3.7. Fees. Purchaser has no liability or obligation to pay
any fee or commission to any broker, finder or intermediary in connection
with the transactions contemplated hereby for which Seller could become liable
or obligated.
3.8. Purchase for Investment. Purchaser will be acquiring the
Interests solely for its own account for investment and not with a view to
the distribution thereof. Purchaser is an "Accredited Investor" within the
meaning of Rule 501(a) of Regulation D of the Securities Act of 1933, as
amended.
ARTICLE IV
Covenants of Seller
Seller hereby covenants and agrees with Purchaser as follows:
4.1. Conduct of Business.
(a) Except as set forth on Schedule 4.1 or as may be
otherwise contemplated by this Agreement or required by any of the
documents listed in the Seller Disclosure Schedule and except as Purchaser may
otherwise consent to in writing (which consent shall not be unreasonably
withheld or delayed), from the date hereof and prior to the Closing, Seller
shall (in respect of the Kendro Business), and shall cause each of the Kendro
Entities to,
(i) conduct the Kendro Business only in the ordinary course;
(ii) maintain the properties, machinery and equipment of the
Kendro Entities in sufficient operating condition and repair to enable it
to conduct the Kendro Business in all material respects in the manner in which
it is currently conducted, except for maintenance or repair required by reason
of fire, flood, earthquake or other acts of God;
(iii ) continue all material Insurance Policies in full force
and effect (or obtain replacement Insurance Policies with substantially the
same coverage); (iv) not issue any capital stock or other equity interest, or
any options, warrants or other rights of any kind to purchase any capital stock
or other equity interest, in any of the Kendro Entities;
(v) not increase the rate or terms of compensation payable
or to become payable by it to any of the directors, officers or employees
of the Kendro Business, and not increase the rate or terms of any bonus, pension
or other employee benefit plan covering any of the directors, officers or
employees of the Kendro Business, except in each case increases occurring in the
ordinary course of business in accordance with its customary practices
(including normal periodic performance reviews and related compensation and
benefit increases) or as required by law, rule or regulation or by any
pre-existing Contract set forth in Schedule 2.15, 2.18(a) or 2.19 of the Seller
Disclosure Schedule;
(vi) use its reasonable efforts to preserve its relationships
with the material lenders, suppliers, customers, licensors and licensees of
the Kendro Business and others
having material business dealings with it such that the Kendro Business
shall not be materially impaired;
(vii) not make or change any election in respect of Taxes
(other than in accordance with past practice), or adopt or request
permission of any Tax authority to change any accounting method in respect of
Taxes, or settle any claim or assessment in respect of Taxes, in each case to
the extent such election, change or settlement would affect the Tax liabilities
of Purchaser and its Subsidiaries (including the Kendro Entities) after the
Closing Date;
(viii) not factor any accounts receivable of the Kendro
Business;
(ix) not adopt any new employee benefit plan covering
employees of the Kendro Business, except as required by law, rule or
regulation or by any pre-existing Contract set forth in Schedule 2.15, 2.18(a)
or 2.19 of the Seller Disclosure Schedule;
(x) not (A) sell, lease, license or dispose of any real
property owned by any Kendro Entity or (B) in the case of any Kendro
Entity, acquire any real property, amend in any material respect any Real
Property Lease or enter into any lease for any real property (other than leases
for sales offices of less than 2,000 square feet with a term of less than one
(1) year);
(xi) not mortgage or pledge any property or assets of any
Kendro Entity or subject any such property or assets to any Encumbrance
(other than Permitted Liens and other than mortgages, pledges or Encumbrances
that are terminated at or prior to the Closing);
(xii) not (A) terminate prior to its stated term any Material
Contract or any Contract entered into after the date hereof that, if
entered into prior to the date hereof, would be a Material Contract (a "New
Material Contract"), (B) make any material amendment to or waive any material
right under any Material Contract or any New Material Contract, other than in
the ordinary course of business in order to preserve its relationship with a
party having material business dealings with the Kendro Business, or (C) take or
omit to take any action that would constitute a material violation of or default
under any Material Contract or any New Material Contract;
(xiii) not (A) settle any Litigation relating to or respecting
any Kendro Entity or the Kendro Business, other than a settlement that
solely involves the payment of money by any Kendro Entity, or (B) commence or
institute any Litigation relating to or respecting a Kendro Entity or the Kendro
Business (other than, in the case of clause (B), in connection with Litigation
set forth on Schedule 2.16 of the Seller Disclosure Schedule and other than
collection actions in the ordinary course of business consistent with past
practice);
(xiv) not collect, or accelerate the collection of, any
accounts receivable of the Kendro Business in a manner that is outside the
ordinary course of business or not consistent with past practice;
(xv) not agree to any product warranty that differs in any
material respect from the comparable standard product warranty of such
Kendro Entity as in effect on the
date hereof, except in the ordinary course of business consistent with past
practice (including for competitive considerations) or as required by law, rule
or regulation;
(xvi) not acquire (A) by merging or consolidating with, or by
purchasing all or a substantial portion of the assets or any capital stock
or other equity interest of, or by any other manner, any business or any
corporation, partnership, joint venture, limited liability company, association
or other business organization or division thereof or (B) any assets that are
material, in the aggregate, to the Kendro Business, except purchases of
inventory, raw materials, supplies and components in the ordinary course of
business;
(xvii) not sell, lease, license or otherwise dispose of any of
the properties or assets of any of the Kendro Entities, except in the
ordinary course of business consistent with past practice;
(xviii) whether or not in the ordinary course of business, not
sell, lease, license or otherwise dispose of any assets material to the
Kendro Business (including without limitation the capital stock or other equity
interest of any of the Subsidiaries, but excluding the sale or non-exclusive
license of products in the ordinary course of business);
(xix) not make any loans, advances (other than routine
advances to employees of the Kendro Entities in the ordinary course of
business) or capital contributions to, or investment in, any Person, other than
the Kendro Entities and other than loans or advances of cash to Seller or any of
its affiliates pursuant to their cash management procedures which will be repaid
in full or cancelled at or prior to the Closing;
(xx) not make any capital expenditures with respect to
property, plant or equipment in excess of $500,000 in the aggregate for all
of the Kendro Business, other than pursuant to the capital expenditures budget
set forth on Schedule 4.1(a)(xx);
(xxi) not take any action that would result in a restructuring
charge under GAAP;
(xxii) not enter into any of the following:
(A) any Contract that provides for future payments
reasonably expected to be in excess of $500,000 per year (provided that
this clause (A) shall not restrict Seller or a Kendro Entity from entering into
any Contract which Seller or any of the Kendro Entities is expressly permitted,
without the need to obtain Purchaser's consent, to enter into pursuant to
another clause of this Section 4.1(a));
(B) any distribution, dealer or sales agency Contract
that involve payments that are reasonably expected to be in excess of
$500,000 per year;
(C) any Contract of the type specified in clause (b)
of Section 2.15 (other than a distribution, dealer or sales agency Contract
entered into in the ordinary course of business, but subject with respect to
such Contracts to the requirements of clause (B) above);
(D) any Contract of the type specified in clause (c)
or (n) of Section 2.15 unless such Contract is terminated and all
indebtedness and obligations thereunder are repaid and satisfied at or prior to
the Closing;
(E) any Contract of the type specified in clause (d)
of Section 2.15 (other than a renewal or replacement of an existing license
in the ordinary course of business and on substantially similar terms as the
existing license);
(F) any Contract of the type specified in clause (e)
of Section 2.15;
(G) any Contract relating to indemnification,
investigation, cleanup, abatement, removal or other actions in connection
with any liabilities arising under Environmental Laws requiring payments by
Seller or the Kendro Entities in excess of $25,000 individually or $500,000 in
the aggregate, except as required by applicable law, rule or regulation or
unless all payments owing under such Contract are either made in full prior to
the Closing or accrued in full on the Closing Balance Sheet;
(H) any Contract of the type specified in clause (g),
(h), (k) or (m) of Section 2.15 (provided that each reference in clauses
(g) and (h) to "$250,000" shall be deemed to be a reference to "$500,000"; and
provided further that in no event shall the aggregate payments under all such
Contracts under each of clauses (g) and (h) exceed $1 million);
(I) any Contract requiring R&D expenditures by any of
the Kendro Entities of more than $250,000 (other than expenditures pursuant
to the R&D budget set forth on Schedule 4.1(a)(xxii)(I)), provided that in no
event shall the aggregate payment obligations under all such Contracts exceed
$500,000; or
(J) any Contract of the type specified in clause (l)
of Section 2.15, except as required by, and only to the extent required by,
the applicable law of any foreign jurisdiction in which an Employee works or is
based;
(the Contracts specified in clauses (A) through (J) of this Section 4.1(a)(xxii)
being "Restricted Contracts"); provided, however, that this Section 4.1(a)(xxii)
shall not restrict or prohibit Seller in respect of the Kendro Business or any
Kendro Entity from entering into any Restricted Contract or agreeing to enter
into any Restricted Contract to the extent such Contract is terminable by Seller
or the Kendro Entity, as applicable, without cost or penalty upon notice of 90
days or less; and provided, further, that, subject to the requirements of clause
(a)(xv) of this Section 4.1(a), nothing in this Section 4.1 shall be construed
to restrict or prohibit Seller in respect of the Kendro Business or any Kendro
Entity from (I) entering into any sales order or similar Contract for the sale
of finished goods in the ordinary course of business consistent with past
practice or (II) terminating or amending the same in the ordinary course of
business consistent with past practice; and
(xxiii) not agree in writing or otherwise enter into a binding
commitment to take any of the foregoing actions.
(b) The parties acknowledge and agree that the breach by Seller of
any covenant or covenants contained in clauses (x) through (xxii), and
clause (xxiii) insofar as it relates to clauses (x) through (xxii), of Section
4.1(a) shall not cause the condition in Section 7.1(a) to be deemed to be not
satisfied unless all such breaches, in the aggregate, would have a Material
Adverse Effect; provided, however, that this provision shall not in any way
affect Purchaser's right to seek indemnification under Section 12.2 for any
Damages incurred or suffered by reason of any such breaches.
(c) The process by which (i) Seller shall notify Purchaser of any
request for an exception to the restrictions imposed on the conduct of the
Kendro Business as set forth in this Section 4.1 (an "Exception") and (ii)
Purchaser shall give its consent to a requested Exception (a "Consent") shall be
as follows:
1. Seller and Purchaser shall each appoint a principal
representative through whom all such communications regarding Exceptions
and Consents shall be made (the "Seller Representative" and the "Purchaser
Representative," respectively). Seller and Purchaser shall be entitled to change
their respective representatives by providing the other with notice in
accordance with the provisions of Section 13.7. The respective names of the
Seller Representative and the Purchaser Representative, until changed in
accordance with this Section 4.1(c)(1), are set forth on Schedule 4.1(c).
2. Seller shall provide Purchaser with a request for
an Exception (an "Exception Request"), and Purchaser shall provide any
Consent, in accordance with the provisions of Section 13.7. If Seller requests
an Exception, Purchaser shall not unreasonably withhold or delay providing its
Consent to such Exception. If Purchaser does not deliver to Seller its objection
to an Exception Request within five (5) business days of delivery of the
Exception Request (the date of delivery of an Exception Request being deemed to
occur, for all purposes of this paragraph, as set forth in Section 13.7),
Purchaser shall be deemed to have given its Consent with respect to such
Exception Request. Notwithstanding the foregoing, if the Exception Request
relates to an emergency situation requiring immediate attention in order to
avoid risk to human life or substantial damage to property (e.g., an
environmental spill or act of God) (an "Emergency Exception"), Purchaser shall
be deemed to have given its Consent with respect to such requested Emergency
Exception unless Purchaser shall have delivered to Seller its objection to such
requested Emergency Exception within two (2) business days of delivery of the
Exception Request; provided, however, that to the extent Seller is required by
applicable law, rule or regulation to take action (or refrain from taking
action) sooner than the procedures provided above would allow, Seller shall be
permitted to take such action (or refrain from taking action) to comply with
such law, rule or regulation, notwithstanding any objection by Purchaser; and
provided, further, that if the exigencies of an Emergency Exception require
Seller to take action (or refrain from taking action) sooner than the procedures
provided above would allow, Purchaser shall be required to deliver its objection
(if any) to the Exception Request relating to such Emergency Exception within
the time period specified in the Exception Request (which time period shall be a
minimum of 24 hours).
3. Notwithstanding the foregoing, any consent given
in writing by Purchaser to Seller, so long as it expressly states that
Purchaser is consenting to a request by Seller pursuant to this Section 4.1,
shall be a valid consent binding on Purchaser, notwithstanding that the
procedures of Section 4.1(c)(1) and (2) were not adhered to.
4.2. Access. (a) From the date hereof and prior to the
Closing, Seller shall, and shall cause the Kendro Entities to, provide
Purchaser and its representatives, during regular business hours and upon
reasonable notice, with such information in respect of the Kendro Entities and
the transactions contemplated by this Agreement, and with such access to the
properties, books and records of the Kendro Entities, as Purchaser may from time
to time reasonably request; provided, however, that Seller and the Kendro
Entities shall not be obligated to provide Purchaser with any information
relating to trade secrets or to provide access to or to disclose information
where such access or disclosure would violate any law, rule, regulation, Order,
fiduciary duty to any partners or the term of any Contract, or adversely affect
the ability of Seller, any Kendro Entity or any of their respective affiliates
to assert attorney-client, attorney work product or other similar privilege; and
provided, further, that in no event shall such access include access to Seller's
facility located at 31 Pecks Lane, Newtown, Connecticut or with respect to any
facility or property of Seller, "Phase II" or other environmental testing or
sampling of properties of the Kendro Entities. Any disclosure whatsoever during
such investigation to Purchaser shall not constitute an enlargement of or
additional representations or warranties of Seller beyond those specifically set
forth in this Agreement. All such information and access shall be subject to the
terms and conditions of the letter agreement, dated October 8, 2004, between
Purchaser and SPX, as amended (the "Confidentiality Agreement").
(b) Seller shall reasonably assist Purchaser in connection
with Purchaser's retaining Seller's accountants to audit the Kendro
Business, including executing consents or waivers necessary for Seller's
accountants to perform such audit. Seller shall afford its auditors (or such
other auditors as Purchaser may select) such access as is reasonably necessary
for the performance of such audit; provided, however, that it is understood that
such audit may not be completed until after consummation of the transactions
contemplated hereby and that in no event will the audit be a condition to the
consummation of the transactions contemplated hereby.
4.3. No Solicitation. From the date hereof and prior to the
Closing, Seller shall not, nor shall it authorize or permit any of the
Kendro Entities or any of their respective directors, officers or employees or
any investment banker or other representative or agent retained by any of them
to, directly or indirectly, solicit, initiate, encourage or participate in any
way (including by way of furnishing information) in any discussions or
negotiations with any person (other than Purchaser or an affiliate of Purchaser
or Seller or an affiliate of Seller) or enter into any Contract with any person
(other than Purchaser or an affiliate of Purchaser or Seller or an affiliate of
Seller) concerning any merger, consolidation, sale of shares of capital stock or
similar transactions involving any of the Kendro Entities or a sale of a
substantial portion of the assets of the Kendro Entities other than the sale of
inventory in the ordinary course of business.
4.4. Intercompany Accounts, Etc. Prior to the Closing, except
as set forth on Schedule 4.4, (i) all intercompany accounts, notes or other
arrangements reflecting amounts owing from (x) SPX or any of its direct or
indirect Subsidiaries (other than a Kendro Entity) to any of the Kendro Entities
or GSLE with respect to the GSLE Kendro Assets or (y) any of the Kendro Entities
or GSLE with respect to the GSLE Kendro Assets to SPX or any of its direct or
indirect Subsidiaries (other than a Kendro Entity) shall be distributed,
cancelled or repaid in full, (ii) all Contracts between SPX or any of its direct
or indirect Subsidiaries (other than a Kendro Entity), on the one hand, and any
of the Kendro Entities or GSLE with respect to the GSLE
Kendro Assets, on the other hand, shall be terminated without any liability
to any party thereto, and (iii) all borrowings by the Kendro Entities or GSLE
with respect to the GSLE Assets from third parties shall be repaid in full.
4.5. Non-Competition. For a period of four (4) years
following the Closing (the "Non-Competitive Term"), neither Seller nor any
of its Subsidiaries shall, directly or indirectly, engage anywhere in the world
in, or have any ownership interest in, or participate in the financing,
operation, management or control of, any Person that engages or participates in
any business that is substantially similar to or competitive with the Kendro
Business as conducted as of the Closing Date (collectively, the "Competition
Activities"); provided, however, that the foregoing shall not prohibit Seller
and its Subsidiaries from (i) owning any debt or debt obligations of any Person
or entity, (ii) investing in securities representing less than five percent (5%)
of the outstanding capital stock of any publicly-traded entity, or (iii) making
an acquisition of a company that contains a competing business (provided that
the primary intent of the acquisition was not to acquire the competing business
and the revenues of the competing business are not greater than fifteen percent
(15%) of the total revenues of the acquired entity). Each of the parties hereto
agrees that if any provision of this Section 4.5 shall contravene or be invalid
under the laws of any state or jurisdiction applicable hereto, then such
contravention or invalidity shall not invalidate all of the provisions of this
Section 4.5; but, rather, this Section 4.5 shall be construed, insofar as the
laws of that state or jurisdiction are concerned, as not containing such
provision, and the rights and obligations created hereby shall be construed and
enforced accordingly. If, however, any such contravening provision relates to
the term of the covenants contained in this Section 4.5 or the geographic areas
to which they apply, then such covenants shall be construed as providing for the
maximum time period and widest geographic area or areas which the laws of that
state or jurisdiction permit. The rights of the parties hereunder shall inure
to, and the obligations of Seller hereunder shall be binding on, its successors
and assigns. Each of Seller and Purchaser hereby acknowledges and agrees that,
in the context of this Agreement, the terms stated in this Section 4.5 are no
broader than necessary to protect Purchaser's legitimate business interest in
connection with the purchase of the Kendro Entities and any associated goodwill.
Notwithstanding the foregoing, with respect to any Competition Activities in any
member country of the European Union, (a) the Non-Competitive Term shall be for
a period of three (3) years following the Closing and (b) the obligations of
Seller and its Subsidiaries under this Section shall only apply in those member
countries where products of the Kendro Entities are offered and/or sold as of
the Closing Date.
4.6. Employee Non-Solicitation. From the Closing Date until
the second (2nd) anniversary of the Closing, neither Seller nor any of its
Subsidiaries shall, directly or indirectly, solicit any employee of Purchaser or
any of its subsidiaries who was introduced to Seller during the acquisition
process, or any employee of any Kendro Entity, to terminate his or her
employment for employment by Seller or its affiliates; provided, however, that
Seller and its Subsidiaries shall be entitled to solicit or hire at any time any
person through conducting general recruiting and solicitation of employment
efforts, as long as such efforts are not specifically aimed or intended in
particular for an employee of Purchaser or its subsidiaries, or any employee of
any Kendro Entity.
4.7. Mutual Release and Waiver. Seller on the one hand and
the Kendro Entities on the other hand shall execute a Mutual Release and
Waiver at the Closing in the form attached hereto as Exhibit D (the "Mutual
Release and Waiver").
4.8. Transfer by Nominee Holders. At the Closing, Seller
shall cause the nominee holders of any Kendro HK Shares and any equity
interests of Kendro Laboratory Products India Pvt. Ltd. (such equity interests,
the "Kendro Pvt Shares"), to take all appropriate action to effectuate the
transfer to Purchaser or its nominee of such Kendro HK Shares and Kendro Pvt
Shares in accordance with Section 1.5(b).
4.9. Release of Liens. Seller shall (i) cause the release at
the Closing, contingent only on payment by Purchaser of the Closing
Payment, of (A) the Encumbrances referenced in items 1, 2, 3 (other than items
3.3.7 through 3.3.10 and item 3.5.1) and 5, 6 and 7 of Schedule 2.12 of the
Seller Disclosure Schedule and in Schedule 2.15(c) of the Seller Disclosure
Schedule and (B) any other Encumbrance on any of the Interests or equity
interests of any of the Subsidiaries of any of the Sale Entities (such
Encumbrances referred to in clauses (A) and (B) of this clause (i) are
collectively referred to as the "Major SPX Obligations"), and (ii) use its best
efforts to cause the release at the Closing, contingent only on payment by
Purchaser of the Closing Payment, of (x) all obligations of any Kendro Entity or
GSLE with respect to the GSLE Kendro Assets with respect to (1) the Encumbrance
referenced in item 3.5.1 of Schedule 2.12 of the Seller Disclosure Schedule and
(2) all bank guarantees, letters of credit, corporate guarantees,
indemnification and other obligations of any Kendro Entity or GSLE with respect
to the GSLE Kendro Assets in favor of SPX or any other entity (other than
another Kendro Entity) controlled directly or indirectly by SPX and (y) all
other Encumbrances on the assets of the Kendro Business securing any obligations
of SPX or any other entity (other than another Kendro Entity) controlled
directly or indirectly by SPX (such obligations and Encumbrances referred to in
clauses (x) and (y) of this clause (ii) are collectively referred to as the
"Other SPX Obligations" and together with the Major SPX Obligations are referred
to as the "SPX Obligations").
4.10. Intellectual Property Rights. Seller hereby grants to
Purchaser and the Kendro Entities, effective upon the Closing, a
non-exclusive right, for a period of five (5) years from the Closing Date, to
use in all territories any intellectual property then owned by Seller and not
listed on Schedule 2.14 of the Seller Disclosure Schedule that is required for
use by any of the Kendro Entities in the ordinary course of business as of the
Closing Date. Such grant is personal to Purchaser and the Kendro Entities and
shall not be transferable to any other person without the prior written consent
of Seller other than to customers as part of the sale of a product. The parties
hereto understand that nothing in this Section 4.10 shall give Purchaser any
right to use the trade name/trademark SPX and that, except as set forth in
Section 5.2, Purchaser shall not have any right to use such trade
name/trademark.
4.11. Transfer of Newtown Property. Prior to the Closing,
Seller shall cause Kendro LP to transfer all of its interest in the real
property located at 31 Pecks Lane, Newtown, Connecticut to an affiliate of
Seller other than a Kendro Entity.
4.12. Notice. Seller shall comply with the notifications,
communications and other provisions of Exhibit 4.12.
4.13. Further Assurances. At any time after the Closing Date,
Seller shall, at Purchaser's expense and without incurring any legal
liability beyond that provided for in this Agreement, promptly execute,
acknowledge and deliver any other assurances or documents reasonably requested
by Purchaser and necessary for Purchaser to satisfy its obligations hereunder or
obtain the benefits contemplated hereby.
ARTICLE V
Covenants of Purchaser
Purchaser hereby covenants and agrees with Seller:
5.1. Preservation of Books and Records. (a) For a period
ending upon the earlier of (1) seven (7) years (or ten (10) years, in the
case of Kendro GmbH) from the end of the calendar year in which the Closing
occurs or (2) the expiration of any applied statute of limitations, including
any extensions thereof (the "Information Maintenance Period"):
(i) Purchaser shall not dispose of or destroy any of
the books and records of any of the Kendro Entities relating to periods
prior to the Closing ("Books and Records") without first offering to turn over
possession thereof to Seller by written notice to Seller at least 90 days prior
to the proposed date of such disposition or destruction.
(ii) Purchaser shall allow Seller and its agents
access to all Books and Records on reasonable notice and at reasonable
times at Purchaser's principal place of business or at any location where any
Books and Records are stored, and Seller shall have the right, at its own
expense, to make copies of any Books and Records; provided, however, that any
such access or copying shall be had or done in such a manner so as not to unduly
interfere with the normal conduct of Purchaser's business.
(iii) Purchaser shall make available to Seller upon
written request (1) Purchaser's personnel to assist Seller in locating and
obtaining any Books and Records, and (2) any of Purchaser's personnel whose
assistance or participation is reasonably required by Seller or any of its
affiliates in anticipation of or preparation for, or for depositions or
testimony in, existing or future Litigation or other matters in which Seller or
any of its affiliates is involved. Seller shall reimburse Purchaser for the
reasonable out-of-pocket expenses incurred by it in performing the covenants
contained in this Section 5.1(a).
(b) The Information Maintenance Period shall be extended in
the event that any Litigation or investigation has been commenced or is
pending or threatened at the termination of such Information Maintenance Period
and such extension shall continue until any such Litigation or investigation has
been settled through judgment or otherwise or is no longer pending or
threatened.
(c) The provisions of this Section 5.1 shall be in addition
to any other obligations of Purchaser under this Agreement.
5.2. Use of Seller's Name or Reputation. Except as
specifically set forth herein, after the Closing, Purchaser shall not
operate the Kendro Business utilizing, based on or
taking advantage of the name, reputation or corporate goodwill of Seller or
any of its Subsidiaries (other than any Kendro Entity); provided, however, that
the Kendro Entities and Purchaser with respect to the GSLE Kendro Assets may use
packaging, advertising, sales and promotional materials bearing the corporate
names, product identification numbers or consumer information telephone numbers
of Seller on products of the Kendro Business until the date that is six months
after the Closing Date, or such shorter period if limited by the requirements of
any law, rule or regulation or if new product labeling and/or packaging is
printed within such six-month time period. The Kendro Entities and Purchaser
with respect to the GSLE Kendro Assets shall maintain quality standards for
products of the Kendro Business at least equal to those maintained by such
Kendro Entity and GSLE on the Closing Date for so long as any of the Kendro
Entities or Purchaser with respect to the GSLE Kendro Assets continues to use
any packaging, advertising, sales or promotional materials bearing the corporate
names, product identification numbers or consumer information telephone numbers
of Seller.
5.3. Performance Bonds and Guarantees. (a) Subject to
Sections 5.3(b) and (c), at the Closing, Purchaser shall deliver to Seller
back-up performance bonds, surety bonds, bank guarantees, letters of credit
and/or corporate guarantees (collectively, "Back-Up Bonds and Guarantees"), in
an aggregate principal amount equal to the amount outstanding on the Closing
Date and with terms and from banks or other financial institutions or surety
companies (or in the case of corporate guarantees, Purchaser itself), in each
case reasonably satisfactory to Seller, to collateralize any performance bonds,
surety bonds, bank guarantees, letters of credit and/or corporate guarantees
(collectively, "Performance Bonds and Guarantees") given by SPX or any of its
direct or indirect Subsidiaries (other than a Kendro Entity) in respect of the
Kendro Business (in each case, or portions thereof) remaining outstanding on the
Closing Date with respect to which SPX or any of its direct or indirect
Subsidiaries (other than a Kendro Entity) will have any liability after the
Closing. Not later than ten (10) days prior to the Closing, Seller shall
preliminarily advise Purchaser, and not later than two (2) business day prior to
the Closing, Seller shall advise Purchaser in writing of the Performance Bonds
and Guarantees to be collateralized pursuant to this Section 5.3.
(b) To the extent any Performance Bonds and Guarantees
required to be collateralized in accordance with Section 5.3(a) were not
included in the written notice delivered to Purchaser pursuant to Section
5.3(a), Purchaser shall use its best efforts to collateralize any such
Performance Bonds and Guarantees with Back-Up Bonds and Guarantees as promptly
as practicable following, and in any event within ten days of receipt by
Purchaser of, notification of the existence of any such Performance Bonds and
Guarantees.
(c) Notwithstanding Sections 5.3(a) and (b), Purchaser shall
not be obligated to collateralize any Performance Bonds and Guarantees to
the extent that the aggregate amount of such Performance Bonds and Guarantees
exceeds, in the aggregate $1,500,000, but shall reimburse Seller for any
liability incurred by Seller in respect of any such Performance Bonds and
Guarantees within ten (10) days of receipt by Purchaser of notification that
Seller has incurred any such liability accompanied by evidence reasonably
acceptable to Purchaser that Seller has incurred such liability.
(d) After the Closing, Purchaser may replace any Performance
Bonds and Guarantees with new performance bonds, surety bonds, bank
guarantees, letters of credit and/or
corporate guarantees, reasonably satisfactory to Seller, so that Seller no
longer has liability for the Performance Bonds and Guarantees being replaced,
and upon delivery to SPX of evidence reasonably acceptable to SPX of such
replacement the Back-Up Bonds and Guarantees shall be reduced on a dollar for
dollar basis.
5.4. Further Assurances. At any time after the Closing Date,
Purchaser shall, at Seller's expense and without incurring any legal
liability beyond that provided for in this Agreement, promptly execute,
acknowledge and deliver any other assurances or documents reasonably requested
by Seller and necessary for Seller to satisfy its obligations hereunder or
obtain the benefits contemplated hereby.
ARTICLE VI
Mutual Covenants of Purchaser and Seller
Purchaser and Seller hereby covenant and agree with each
other:
6.1. Cooperation. (a) From the date hereof and prior to the
Closing, each party shall (i) use its best efforts and cooperate with the
other party to promptly secure all necessary consents, approvals,
authorizations, exemptions and waivers from third parties (including
Governmental Consents) as shall be required in order to enable the parties to
effect the transactions contemplated hereby, including causing all actions to be
taken as are necessary to have the Notarial Deed executed, and use its
reasonable efforts to obtain the non-governmental authority third party consents
set forth on Schedules 2.6 and 2.7 of the Seller Disclosure Schedule, and (ii)
otherwise use its best efforts to cause the consummation of such transactions as
promptly as practicable in accordance with the terms and conditions hereof,
including defending against any suits, actions or proceedings, judicial or
administrative, challenging this Agreement or the consummation of the
transactions contemplated hereby, and seeking to vacate or reverse any temporary
restraining order, preliminary injunction or other legal restraint or
prohibition entered or imposed by any court or other governmental authority that
is not yet final and non-appealable.
(b) Without limiting the generality of the foregoing, Seller
and Purchaser shall duly file with the Federal Trade Commission ("FTC") and
the Antitrust Division of the U.S. Department of Justice (the "DOJ") the
notification and report form (the "HSR Filing") required under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), with respect to the transactions contemplated hereby no later than the
tenth business day following the date hereof. The HSR Filing shall be in
substantial compliance with the requirements of the HSR Act, and Seller and
Purchaser shall request early termination of the waiting period required by the
HSR Act and shall promptly provide any additional information reasonably
requested by the FTC or the DOJ. In addition, Seller and Purchaser shall make,
as soon as practicable, all filings and submissions with the foreign regulatory
authorities listed on Schedule 6.1. Each party shall keep the other apprised of
the status of any communications with, and any inquiries or requests for
additional information from, any governmental authority with respect to the
transactions contemplated by this Agreement.
(c) Each of Seller, on the one hand, and Purchaser, on the
other hand, shall, subject to applicable law and except as prohibited by
any applicable representative of any applicable governmental authority, (i)
promptly notify the other of any substantive or otherwise material written
communication to that party from the FTC, the DOJ, any State Attorney General or
any other governmental authority, and permit the other party to review in
advance any proposed substantive or otherwise material written communication to
any of the foregoing; (ii) not agree to participate in any substantive meeting
or discussion with any governmental authority in respect of any filings,
investigation or inquiry concerning this Agreement or the transactions
contemplated hereby unless it consults with the other party in advance and, to
the extent permitted by such governmental authority, gives the other party the
opportunity to attend and participate thereat; and (iii) furnish the other party
with copies of all substantive or otherwise material correspondence, filings,
and written communications (and shall keep the other party apprised of the
substance of any material oral communications) between them and their
Subsidiaries and their respective representatives on the one hand, and any
government or regulatory authority or members or their respective staffs on the
other hand, with respect to this Agreement and the transactions contemplated
hereby.
(d) In connection with the filings referenced in Section
6.1(b) Purchaser shall offer to take (and if such offer is accepted, commit
to take) all commercially reasonable steps that it is capable of taking to avoid
or eliminate impediments under any antitrust, competition or trade regulation
law that may be asserted by any governmental authority with respect to the
transactions contemplated hereby (and refrain from taking any action that would
make it more likely that any governmental authority would make any such
assertion) so as to enable the Closing Date to occur as promptly as practicable.
For purposes of this section, "commercially reasonable steps" shall include
Purchaser's agreement to make an offer to and enter into an agreement with any
governmental authority to divest, and to hold separate pending such divestiture,
any assets and operations of Purchaser or its affiliates (including any of the
Kendro Entities or GSLE after the Closing) as are necessary to prevent the
commencement of any action or proceeding seeking, and/or prevent the entry of,
or effect the dissolution of, a decree, restraining or other order and/or
preliminary or permanent injunction preventing the consummation, in whole or in
part, of the transactions contemplated by this Agreement, provided, that
Purchaser shall be required to divest only such assets or operations of (i) the
Kendro Business with aggregate 2004 revenues which do not exceed $85 million
and/or (ii) Purchaser or its Subsidiaries (as of the date immediately prior to
the Closing) with aggregate 2004 revenues which do not exceed $5 million;
provided, further, that under no circumstances shall Purchaser be required to
divest assets or operations whose aggregate 2004 revenues exceed $85 million.
6.2. Insurance Claims.
(a) Seller shall maintain, and shall not take any steps to
prospectively or retrospectively cancel, buy-out or remove any of the Kendro
Entities as an insured from, any and all Insurance Policies maintained by any
Seller or any Subsidiary of any Seller providing coverage for periods prior to
the Closing with respect to events, occurrences or matters occurring prior to
the Closing (including those matters that have not been reported prior to
Closing) (the "Occurrence-Based Business Policies"), subject in each case to the
applicable deductibles, limits, and other terms and conditions of such policies.
Seller shall cause Purchaser and each Kendro
Entity that is not a named insured to be added or included effective as of
the Closing as an additional named insured under each Occurrence-Based Business
Policy providing coverage for 2005, and shall use its reasonable efforts to add
or include such persons as additional named insureds under each Occurrence-Based
Business Policy providing coverage for 2002, 2003 and 2004.
(b) Seller shall cooperate with Purchaser in order to afford
Purchaser the right to receive payment under the Occurrence-Based Business
Policies with respect to any claim or loss covered by such Policies that
constitutes a liability of the Kendro Business or any Kendro Entity (each, a
"Covered Claim"). Purchaser's right to receive payment on any Covered Claim
shall be subject to any deductibles, limits and other terms and conditions of
the applicable Occurrence-Based Business Policies, including without limitation
self-insured retentions, retained amounts, retentions or exclusions and
retrospectively rated premiums that arise solely from, and are calculated solely
based on, such Covered Claim (collectively, "Retentions and Premiums"). In
connection therewith, SPX shall assert the Covered Claim and pay over to
Purchaser any amounts received under the Occurrence-Based Business Policies in
respect thereof (subject to reimbursement of Seller for its Retentions and
Premiums and the reasonable fees of attorneys and advisors retained by the
insurance company to defend such Claims).
(c) Upon Purchaser's request, Seller shall provide
reasonable cooperation to Purchaser with respect to filing and
administering each Covered Claim. Seller shall not be required to pay any
out-of-pocket expenses in providing reasonable cooperation under this Section
6.2 and shall be released of its obligation to provide reasonable cooperation
with respect to any Covered Claim to the extent any such out-of-pocket
expenditure is required to which Purchaser does not consent. Purchaser agrees
that if Purchaser or any of the Kendro Entities suffers a loss for which it
desires to assert a Covered Claim under an Occurrence-Based Business Policy, it
shall first so notify Seller and request that Seller assert on behalf of
Purchaser or any of the Kendro Entities the Covered Claim or Claims of Purchaser
or the Kendro Entities. If Seller does not provide such cooperation within
thirty (30) days of receipt of a request therefor from Purchaser, Purchaser and
its affiliates shall have the right, but not the obligation, to file and
administer the Covered Claim under the applicable Occurrence-Based Business
Policies and, in connection therewith, Seller hereby covenants and agrees to
issue any necessary documents to Purchaser (including without limitation any
powers of attorney that may be required) to enable Purchaser and its affiliates
to file and/or administer such Covered Claim.
ARTICLE VII
Conditions to Purchaser's Obligations
The obligations of Purchaser to consummate the transactions
contemplated by this Agreement shall be subject to the satisfaction (or waiver
by Purchaser, where permissible) at or prior to the Closing of all of the
following conditions:
7.1. Representations, Warranties and Covenants of Seller.
(a) Seller shall have complied in all material respects with its agreements
and covenants contained herein to be complied with on or prior to the Closing
Date.
(b) All the representations and warranties of Seller
contained herein shall be true on and as of the date that is the earlier of
(x) the Closing Date and (y) the earliest date beginning on the 45th day from
the date hereof on which the conditions contained in Sections 7.1(b) and 7.3 are
capable of being satisfied (such date, the "Deemed Closing Date") (regardless of
whether they are true at any time thereafter) with the same effect as though
made on and as of the Deemed Closing Date (except for those representations and
warranties which were made as of a specified date, which shall continue on the
Deemed Closing Date to have been true on such specified date), except where the
failure to be true, individually or in the aggregate (and without regard to any
qualifications as to materiality or Material Adverse Effect contained in such
representations and warranties), would not have a Material Adverse Effect.
(c) Purchaser shall have received a certificate executed by
or on behalf of Seller (the "Seller's Certificate"), dated as of the
Closing Date, certifying as to the fulfillment of the conditions set forth in
Sections 7.1(a) and (b).
7.2. Consents. (a) The waiting period applicable to the
consummation of the transactions contemplated hereby under the HSR Act
shall have expired or been earlier terminated and all other Governmental
Consents, the failure of which to obtain would, individually or in the
aggregate, have a Material Adverse Effect, shall have been made or obtained and
(b) all other consents listed on Schedule 7.2 shall have been obtained.
7.3. No Prohibitions. No statute, rule or regulation or Order
of any court or governmental authority shall be in effect which prohibits
Purchaser from consummating the transactions contemplated by this Agreement. No
material claim, action, suit, proceeding, litigation, or investigation which
challenges this Agreement or the consummation of the transactions contemplated
herein or which seeks to enjoin any of the transactions contemplated herein,
shall be instituted or threatened against any party hereto by any governmental
authority.
7.4. FIRPTA. SPX shall have provided an affidavit, issued
pursuant to and in compliance with Treasury Regulation 1.1445-2(b)(2) and
dated as of the Closing Date, certifying that SPX is not a foreign person.
7.5. Resignations. Each person who is a director or officer
(or, in the case of a foreign jurisdiction, a holder of a position similar
to a director or officer) of any of the Kendro Entities who is also an employee,
director or officer (or, in the case of a foreign jurisdiction, a holder of a
position similar to a director or officer) of Seller shall have delivered a
resignation letter to Purchaser, or have been removed as such director, officer
or holder of such position without cost to Purchaser or any of the Kendro
Entities, in each case effective upon the Closing.
7.6. Receivables Factoring Facility. Purchaser shall have
received evidence reasonably satisfactory to it that the Kendro Entities
and the GSLE Kendro Assets have been released from any and all obligations under
the Receivables Purchase Agreement, dated as of December 30, 2003, as amended on
April 1, 2004, by and among SPX Receivables II, LLC, as Seller, and SPX, Kendro
LP, and certain other affiliates of SPX, as Originating Entities, and GE Capital
Commercial Services, Inc.
7.7. Major SPX Obligations. Purchaser shall have received
evidence reasonably satisfactory to it that the Kendro Entities and the
GSLE Kendro Assets have been released from any and all obligations under (a) the
Seventh Amended and Restated Credit Agreement, dated as of October 6, 1998, as
Amended and Restated as of February 12, 2004, among SPX, the foreign subsidiary
borrowers party thereto, and the lenders thereto, and (b) the Major SPX
Obligations, in each case, contingent only upon payment by Purchaser of the
Closing Payment.
7.8. Transition Services Agreement. A Transition Services
Agreement substantially in the form set forth in Exhibit 7.8 (the
"Transition Services Agreement") shall have been duly executed and delivered by
Seller.
7.9. Termination of Profit and Loss Transfer Agreement and of
Fiscal Year of Kendro GmbH. All action that is necessary to terminate the
existing Profit and Loss Transfer Agreement with Kendro GmbH as well as the
fiscal year of Kendro GmbH as of the Closing Date shall have been taken.
ARTICLE VIII
Conditions to Seller's Obligations
The obligation of Seller to consummate the transactions
contemplated by this Agreement shall be subject to the satisfaction (or waiver
by Seller, where permissible) at or prior to the Closing of all of the following
conditions:
8.1. Representations, Warranties and Covenants of Purchaser.
(a) Purchaser shall have complied in all material respects with its
agreements and covenants contained herein to be complied with on or prior to the
Closing Date.
(b) The representations and warranties of Purchaser
contained herein shall be true on and as of the Closing Date with the same
effect as though made on and as of the Closing Date (except for those
representations and warranties which were made as of a specified date, which
shall continue on the Closing Date to have been true on such specified date),
except where the failure to be true, individually or in the aggregate (and
without regard to any qualifications as to materiality or Material Adverse
Effect contained in such representations and warranties), would not have a
Purchaser Material Adverse Effect.
(c) Seller shall have received a certificate executed by or
on behalf of Purchaser (the "Purchaser's Certificate"), dated as of the
Closing Date, certifying as to the fulfillment of the conditions set forth in
Sections 8.1(a) and (b).
8.2. Consents. The waiting period applicable to the
consummation of the transactions contemplated hereby under the HSR Act
shall have expired or been earlier terminated and all other Governmental
Consents, the failure of which to obtain would, individually or in the
aggregate, have a Material Adverse Effect, shall have been made or obtained.
8.3. No Prohibitions. No statute, rule or regulation or Order
of any court or governmental authority shall be in effect which prohibits
Seller from consummating the transactions contemplated by this Agreement. No
material claim, action, suit, proceeding, litigation, or investigation which
challenges this Agreement or the consummation of the transactions contemplated
herein or which seeks to enjoin any of the transactions contemplated herein,
shall be instituted or threatened against any party hereto by any governmental
authority.
8.4. Termination of Profit and Loss Transfer Agreement and of
Fiscal Year of Kendro GmbH. All action that is necessary to terminate the
existing Profit and Loss Transfer Agreement with Kendro GmbH as well as the
fiscal year of Kendro GmbH as of the Closing Date shall have been taken.
ARTICLE IX
Employment Matters
9.1. 401(k) Plan. Purchaser shall permit all U.S.-based
Employees who participated in the SPX Retirement Savings and Stock
Ownership Plan immediately prior to the Closing to effect a direct rollover of
their accounts in cash (including outstanding participant loans) to Purchaser's
401(k) plan.
9.2. SPX Pension Plan. (a) As of the Closing Date, Seller
shall take all actions necessary to provide that the SPX Individual Account
Retirement Plan (the "SPX Pension Plan") shall retain all liabilities under the
SPX Pension Plan with respect to all benefits accrued through the Closing Date
by the Employees who are participants as of the Closing Date in the SPX Pension
Plan (the "SPX Plan Participants"), as if all such SPX Plan Participants had
terminated employment in respect of the SPX Pension Plan on the Closing Date.
(b) There shall be no transfer of assets or liabilities of
he SPX Pension Plan to any benefit plan of Purchaser or any of its
affiliates (including any of the Kendro Entities) and Purchaser acknowledges
that Purchaser and its affiliates (including any of the Kendro Entities) shall
have no right, title or interest in any of the assets of the SPX Pension Plan.
9.3. Collective Bargaining Agreements. Purchaser shall, or
shall cause one of its affiliates to, (i) recognize the collective
bargaining agreements recognized by or applicable to the Kendro Entities and
listed on Schedule 2.21(a) of the Seller Disclosure Schedule, and (ii) expressly
assume such collective bargaining agreements and any obligations thereunder, and
employ (as successor employer) all employees covered by such collective
bargaining agreements, on the Closing Date. Purchaser shall, or shall cause one
of its affiliates to, assume any responsibilities with respect to recall rights
of laid-off employees of the Kendro Entities covered by such collective
bargaining agreements on the Closing Date.
9.4. Other Benefit Plans; Retention of Certain Liabilities.
(a) With respect to persons who are employees of any of the Kendro Entities
immediately prior to the Closing ("Employees"), other than those Employees
covered by a collective bargaining agreement or works council, for a period of
at least one year following the Closing Date, Purchaser shall, or shall cause
the Kendro Entities to, (i) provide the Employees with the same base salary or
base
wages as in effect immediately prior to the Closing Date and (ii) cause the
Employees to participate in Purchaser's compensation and employee benefit plans
and programs providing compensation (including bonus compensation) and employee
benefits that are substantially similar in the aggregate as the benefits
provided to Purchaser's employees in comparable positions, provided, however,
that as to any such plan or program in which participation is elective,
Purchaser will be deemed to have complied with clause (ii) of this Section
9.4(a) if Purchaser provides the Employees with an election to participate
therein. With respect to the SPX Executive EVA Incentive Compensation Plans and
any other EVA plans (the "EVA Plans"), (x) SPX shall determine whether any
bonuses shall be payable under the EVA Plans for the Employees and (y) if the
Closing occurs, at SPX's option, SPX shall pay such bonuses, or SPX shall remit
to Purchaser an amount equal to the aggregate bonuses, if any, to be paid to the
Employees plus social security and other employment tax payments and other
amounts required to be paid by a Kendro Entity in connection with, or as a
result of, such bonus payments, including, without limitation, the employer
portion of any related employment taxes under the EVA Plans, and Purchaser
shall, in accordance with SPX's direction (which direction shall include the
amounts to be paid on an Employee-by-Employee basis), pay such bonuses to the
Employees (it being understood that Purchaser's only liability under the EVA
Plans is to pay any amounts so remitted). SPX shall pay the amount of the "bank
balance" under the EVA Plans remaining after payment of such bonuses to each
Employee with such a balance. Nothing in this Agreement shall require Purchaser
to continue to employ any Employee for any specific period following the Closing
or prevent Purchaser from terminating any Employee after the Closing.
(b) Purchaser shall cause the Employees after the Closing
Date to be granted credit for all service with Seller and its affiliates
and their respective predecessors prior to the Closing Date for purposes of
participation, vesting and benefit levels where length of service is relevant to
benefit levels to the same extent credit for such service was recognized by
Seller and its affiliates, except that no credit for service will be given for
any defined benefit plan or where granting credit for such service would result
in a duplication of benefits, and Purchaser shall cause any pre-existing
condition exclusions, actively-at-work requirements and waiting periods to be
waived and shall cause any expenses incurred under any Seller employee benefit
plan on or before the Closing Date and during the plan year in which the Closing
Date occurs by an Employee or an Employee's covered dependents to be taken into
account for purposes of satisfying applicable deductible, coinsurance, and
maximum out-of-pocket provisions. SPX and Purchaser shall reasonably cooperate
such that, as of the Closing Date or the earliest practicable date thereafter,
Blue Cross Blue Shield of Illinois shall, at SPX's expense, provide a tape
setting forth the amount of such expenses to Blue Cross Blue Shield of Georgia.
At Purchaser's request, SPX and Purchaser shall reasonably cooperate such that,
on the date that is three months following the Closing Date or the earliest
practicable date thereafter, Blue Cross Blue Shield of Illinois shall, at
Purchaser's expense, provide a second tape setting forth any changes or updates
to the amount of such expenses. If any Employee shall submit an explanation of
benefits statement to Purchaser (together with such supporting documentation as
Purchaser shall reasonably request from such Employee), Purchaser shall reflect
such changes or updates to such amounts as are set forth on such Employee's
explanation of benefits statement. Notwithstanding anything to the contrary
contained herein, Purchaser shall have no obligation to take into account any
amounts or expenses that are not set forth on either of such tapes or accurately
reflected on Employee explanation of benefits statements.
(c) SPX shall retain all liabilities and obligations (i)
under any Kendro Benefit Plan or any Non-US Kendro Benefit Plan that is not
an Entity Plan except to the extent that any such liabilities and obligations
are accrued on the Closing Balance Sheet and (ii) with respect to worker's
compensation claims of any of the Employees of the Kendro Entities prior to the
Effective Closing Date, whether or not reported prior to the Effective Closing
Date. The Kendro Entities shall retain all liabilities and obligations under any
Entity Plan, and the Kendro Entities shall assume all liabilities and
obligations under any other Kendro Benefit Plan to the extent that any such
liabilities and obligations are accrued on the Closing Balance Sheet. Without
limiting the generality of the preceding sentence, Purchaser shall assume and
the Kendro Entities shall retain all liabilities and obligations under the plans
listed on Schedule 9.4(c) notwithstanding that the liabilities thereunder are
not fully funded or accrued on the Closing Balance Sheet. For purposes of this
Section 9.4(c), "Entity Plan" means any Kendro Benefit Plan or Non-US Kendro
Benefit Plan sponsored or maintained solely by one or more of the Kendro
Entities or to which solely one or more of the Kendro Entities is obligated to
contribute.
(d) SPX shall be responsible for all liabilities and
obligations owing to each individual under the sale retention agreements
referenced in Schedule 2.15(m) of the Seller Disclosure Schedule, other than the
severance payments and other severance-related benefit entitlements set forth on
the schedule previously furnished to Purchaser.
9.5. Severance. After the Closing, Purchaser shall cause each
of the Kendro Entities to provide severance pay and other benefit
entitlements, if any, that may be owing to any Employee whose employment is
terminated by any of the Kendro Entities at any time after the Closing. If such
severance occurs on or within one year after the Closing Date, such severance
pay and benefit entitlements shall be determined (on an Employee by Employee
basis) in accordance with the severance policy applicable to such Employee
immediately prior to the Closing, if more favorable than the severance policy of
the Kendro Entity, as applicable, in effect after the Closing. Seller shall be
responsible for and shall indemnify and hold harmless Purchaser and its
affiliates (including the Kendro Entities) against all claims for severance pay
and other benefit entitlements, if any, arising solely by reason of Seller's
sale of the Kendro Business. Purchaser shall be responsible for and shall
indemnify and hold harmless Seller and its affiliates against all claims for
severance pay and other benefit entitlements, if any, arising by reason of any
action taken by Purchaser or any of its affiliates following the Closing with
respect to the compensation, benefits, employment or termination of employment
of any Employee, including, without limitation, actions taken pursuant to the
first sentence of Section 9.4(a).
9.6. ERISA Affiliate Liability. Seller shall be responsible
for and shall indemnify and hold harmless Purchaser and its affiliates
(including the Kendro Entities) against any liabilities under ERISA or Section
412 of the Code or Chapter 43 of the Code arising by reason of a Kendro Entity
being an ERISA Affiliate of any person that is not a Kendro Entity.
9.7. Restructuring Liability. Seller shall retain and pay all
restructuring obligations (as such term is used under GAAP) of the Kendro
Entities, including without limitation severance obligations of the Kendro
Entities, for restructuring actions taken on or prior to the date hereof.
ARTICLE X
Taxes
10.1. Indemnification. (a) Seller shall be responsible for and
shall indemnify and hold harmless Purchaser and its affiliates (including
the Kendro Entities) against all (i) liabilities for Income Taxes of the Kendro
Entities, in each case in respect of Taxable periods ending on or before the
Closing Date, (ii) liabilities pursuant to Treasury Regulation ss. 1.1502-6 (or
any analogous or similar state, local, or foreign law) for Income Taxes of
Seller or any consolidated, combined or unitary group of which Seller is or has
been a member in respect of any Taxable period that ends on, before or includes
the Closing Date, (iii) liabilities for Income Taxes of the Kendro Entities for
the portion of any Straddle Period ending on the Closing Date (such liability to
be determined on a closing of the books method), and (iv) liabilities for Other
Taxes of the Kendro Entities, in respect of Taxable periods ending on or before
the Closing Date and the portion of any Straddle Period ending on the Closing
Date (such liability to be determined on a closing of the books method, or, in
the case of real, personal and intangible property Taxes and other Taxes imposed
on a per diem basis, using a per diem allocation), in the case of each of the
foregoing clauses net of any Tax benefit received in connection therewith, and,
in the case of clause (iv), only to the extent such liabilities for Other Taxes
exceed the accruals for Other Taxes reflected on the Closing Balance Sheet.
Notwithstanding anything to the contrary in this Agreement, Seller shall not be
responsible for any Taxes resulting from events that occur or are deemed to
occur after the Closing that are not in the ordinary course of business or
specifically contemplated by this Agreement, and Purchaser shall indemnify
Seller for any such Taxes.
(b) Subject to Section 10.4, Seller shall pay to Purchaser
any payment of Taxes which are the responsibility of Seller pursuant to
Section 10.1(a) on the later of (x) five days after Seller receives written
notice from Purchaser requesting such payment and (y) two days prior to the date
such Taxes are required to be paid.
10.2. Filing Responsibility. (a) Seller shall timely prepare
and file, or cause to be timely prepared and filed, all Income Tax Returns
of any of the Kendro Entities for all Tax periods ending on or before the
Closing Date, and shall timely pay, or cause to be paid, when due, all Income
Taxes due on such returns.
(b) Purchaser shall timely prepare and file, or cause to be
timely prepared and filed, all Income Tax Returns of all Kendro Entities
for all Straddle Periods, and shall timely pay, or cause to be paid, when due,
all Taxes relating to such Income Tax Returns. Such Income Tax Returns shall be
prepared in a manner consistent with prior practice of Seller and the respective
Kendro Entities concerning the income, properties or operations (including all
elections and accounting methods and conventions) of the Kendro Entities, except
as otherwise required by law, rule or regulation or by changes in the relevant
underlying facts. Purchaser shall provide, or cause to be provided, to Seller a
substantially final draft of such Income Tax Return at least thirty (30) days
prior to the due date for filing such returns (taking all extensions into
account), for Seller's review and comment. Purchaser shall make such revisions
to such Income Tax Returns as are reasonably requested by Seller to the extent
those changes (i) are consistent with the underlying facts and applicable laws,
rules and regulations and (ii) do not increase any Tax
liability of Purchaser or any of its subsidiaries (including the Kendro
Entities) for any period or portion thereof beginning after the Closing Date.
Purchaser and Seller shall attempt in good faith to jointly agree on the making
of any other revision reasonably requested by Seller described in clause (i) of
the previous sentence, using the perspective of a person that owns the Kendro
Entities both before and after the Closing, and giving due regard to the Tax
benefit to Seller compared to the Tax cost to Purchaser of any such requested
revision, and to the merits of the respective Tax positions taken by Seller and
Purchaser, and if Purchaser and Seller are unable to jointly agree, such
requested revisions shall be referred to an Independent Accountant, who shall
decide on the making of such requested revision using the same perspective and
with the same regard. Seller shall be responsible for the payment of Income
Taxes due with respect to such Income Tax Returns to the extent provided in
Section 10.1.
(c) Purchaser and Seller shall provide each other with
copies of any Income Tax Returns of the Kendro Entities that it files or
causes to be filed pursuant to Section 10.2(a) or (b) after the Closing (not
including any consolidated or combined Income Tax Return which includes Seller
or any affiliate of Seller (other than a Kendro Entity)) no later than 10 days
after the filing of such Income Tax Returns; provided, for the avoidance of
doubt, that Purchaser shall have no obligation to provide Seller copies of any
Tax Returns for periods ending after the Closing Date unless those periods are
Straddle Periods.
10.3. Refunds. Any refunds or credits of Taxes (including any
interest thereon), if received by any of the Kendro Entities, or by Seller
with respect to any of the Kendro Entities, or if credited to any of the Kendro
Entities attributable to periods ending prior to the Closing Date or to portions
of Straddle Periods ending on the Closing Date (as determined on a closing of
the books method) ("Seller's Refunds"), shall be for the benefit of Seller, and
Purchaser shall cause the Kendro Entities to pay over to Seller any Seller's
Refunds immediately upon receipt thereof. In the case of a Seller's Refund that
is a credit to any of the Kendro Entities, Purchaser shall cause such Kendro
Entity to pay such Seller's Refund to Seller immediately upon receipt of the
benefit of such credit through a reduction in any Tax payment required to be
made by any of the Kendro Entities after the Closing. In addition, if the Taxes
with respect to the pre-Closing portion of a Straddle Period of any of the
Kendro Entities are less than the payments previously made (or deemed made) by
the Kendro Entities with respect to the pre-Closing portion of such Straddle
Period, Purchaser shall cause the Kendro Entities to pay to Seller the excess of
such previous payments over such Taxes immediately upon the Kendro Entities'
receiving the benefit of such excess payments through a reduction in any Tax
payment required to be made by the Kendro Entities after the Closing. Seller
shall have the sole right, at its expense, to pursue any Seller's Refunds
(including filing amended returns and applying for competent authority or
analogous relief) with respect to (a) any correlative adjustments to the
settlement of any Tax Proceeding and (b) any Affiliated Kendro Refund Taxes.
10.4. Audits. Purchaser shall promptly notify Seller in
writing upon receipt by Purchaser or its affiliates of notice of any
pending or threatened Tax Proceeding that may affect the Tax liabilities or
indemnification obligations of, or otherwise relate to, Seller in respect of Tax
periods ending on or prior to the Closing Date or for Straddle Periods. Seller
shall have the sole right, at its expense, to represent all interests in any
such Tax Proceeding (other than with respect to Straddle Periods), and to employ
counsel of its choice, and Purchaser agrees that it will cooperate fully with
Seller and its counsel in the defense against or compromise of any claim in
any said proceeding; provided, however, that with respect to any Tax
Proceeding that could reasonably be expected to affect the Tax liability of
Purchaser or any of its subsidiaries (including the Kendro Entities) for any
period ending after the Closing Date, Purchaser shall be kept informed of the
progress of such Tax Proceeding, and Purchaser's consent shall be required prior
to the settlement of such Tax Proceeding, which consent shall not be
unreasonably withheld or delayed, provided that no consent shall be required
with respect to any Tax Proceeding regarding Affiliated Kendro Audit Taxes.
Purchaser shall have the sole right, at its expense, to represent all interests
in any Tax Proceeding for Tax periods ending after the Closing Date, and to
employ counsel of its choice; provided, however, that with respect to Straddle
Periods, Seller shall be kept informed of the progress of such Tax Proceeding,
and Seller's consent shall be required prior to the settlement of any such Tax
Proceeding, which consent shall not be unreasonably withheld or delayed.
10.5. Cooperation. After the Closing, Purchaser and Seller
shall promptly make available or cause to be made available to the other,
as reasonably requested including for purposes of disclosure to any Taxing
authority, all information, records or documents relating to Tax liabilities,
potential Tax liabilities, or refunds of or relating to the Kendro Entities for
all periods prior to or including the Closing Date and shall preserve all such
information, records and documents until the expiration of the period referred
to in Section 5.1. Purchaser and Seller shall cooperate with respect to the
filing of any Income Tax Return pursuant to Section 10.2, and Purchaser shall
cause the Kendro Entities to sign or provide any necessary powers of attorney in
respect of Income Tax Returns to be filed by Seller pursuant to Section 10.2(a).
With respect to any Seller's Refunds that Seller is entitled to pursue pursuant
to the last sentence in Section 10.3, Purchaser shall, and shall cause the
Kendro Entities to, cooperate with Seller with respect to any claim for Seller's
Refunds (including filing, at Seller's request, any such claim or any amended
Tax Return with respect thereto). Purchaser and Seller shall reasonably
cooperate with each other with respect to any Tax Proceeding. Purchaser shall
prepare and provide to Seller any federal, state, local and foreign Tax
information packages reasonably requested by Seller for Seller's use in
preparing its Tax Returns or those of the Kendro Entities which it is required
to file pursuant to Section 10.2(a). Such Tax information packages shall be
completed by Purchaser and provided to Seller within 90 days after Seller's
request therefor. Each party shall bear its own expenses in complying with the
foregoing provisions.
10.6. Coordination with Other Provisions. Notwithstanding
anything in this Agreement to the contrary, the provisions of this Article
X shall apply in lieu of the provisions of Article XII with respect to any claim
for indemnification for matters subject to Section 10.1, and the provisions of
Section 10.4 shall apply to the conduct of any Tax Proceeding.
10.7. Transfer Taxes. Purchaser and Seller shall share equally
any liability for sales, use, transfer, real property transfer,
documentary, recording, gains, stock transfer and similar Taxes and fees, and
any deficiency, interest or penalty asserted with respect thereof (collectively,
"Transfer Taxes") arising out of or in connection with the transactions effected
pursuant to this Agreement. The parties shall cooperate to ensure the timely and
correct filing of all necessary documentation and Tax Returns with respect to
such Transfer Taxes.
10.8. Tax Elections and Forms. (a) Seller hereby agrees to
cause Kendro LP to make an election pursuant to Section 754 of the Code
with respect to the taxable year of Kendro LP ending on the Closing Date.
Purchaser shall cooperate in the making of such election.
(b) Seller and Purchaser shall jointly prepare a schedule of
the portion of the Purchase Price that shall be allocated to "unrealized
receivables" and "inventory items" of Kendro LP within the meaning of Section
751(c) and Section 751(d) of the Code. The allocations contained in such
schedule shall be used by Seller, Purchaser, the Kendro Entities and their
affiliates in preparing all relevant Tax Returns.
(c) Purchaser shall make, or cause to be made, an election
under Section 338(g) of the Code with respect to Kendro plc and Kendro HK
effective as of the Closing Date. Purchaser shall be allowed at its option to
make a 338(g) election with respect to any Kendro Entity that is a foreign
corporation within the meaning of Section 7701 of the Code for which such an
election can be made. Purchaser shall submit to Seller a copy of the Form 8883
to be filed in connection with such 338(g) elections not later than 90 days
after the Closing Date, and shall provide such other information incident to the
election as reasonably requested by Seller. Purchaser shall not make, or cause
to be made, an election under Section 338(g) of the Code with respect to any
Kendro Entity other than as expressly provided for in this Section 10.8.
(d) With respect to Purchaser's acquisition of the Kendro GP
Shares hereunder, Purchaser and Seller hereby agree to join in making an
election under Section 338(h)(10) of the Code, and the Treasury Regulations
promulgated thereunder and any comparable provision of state or local tax law
(the "Section 338(h)(10) Election"). Seller and Purchaser shall be jointly
responsible for the preparation and timely filing of Form 8023 (or any successor
form) in connection with the Section 338(h)(10) Election and Seller shall
cooperate with Purchaser to enable Purchaser to prepare and file such form and
to complete the Section 338(h)(10) Election. The portion of the purchase price
allocated to Kendro GP in accordance with Section 1.2, the liabilities of Kendro
GP, if any, and other relevant items shall be allocated to the assets of Kendro
GP in accordance with the rules of Section 338(h)(10) of the Code and the
Treasury Regulations promulgated thereunder. Such allocation shall be set forth
on a schedule which shall be jointly prepared by Purchaser and Seller within 75
days following the Closing Date. All allocations contained in such schedule
shall be used by each party in preparing Form 8883 (or any successor form) and
all relevant Tax Returns, subject to adjustment to reflect (x) Seller's selling
expenses as a reduction of sales proceeds, and (y) Purchaser's acquisition
expenses as an addition to purchase price.
(e) The purchase price allocation determined under Section
1.2 hereof (as appropriately adjusted to take into account any adjustments
in the Purchase Price under Sections 1.3, 1.4 and 12.4) shall be used by all
parties in preparing all relevant Tax Returns and for all Tax purposes. In any
audit or other proceeding related to the determination of any Tax, neither
Seller nor Purchaser shall contend or represent that such allocations and fair
market values are not correct.
10.9. Period of Limitation. Any claim for indemnification for
Taxes under this Article X shall be brought prior to the sixtieth (60th)
day following the expiration of the statute
of limitations (taking all extensions into account) for the assessment of
Taxes that are the subject of the indemnification claim.
10.10. Tax Definitions. For purposes of this Agreement:
(a) "Affiliated Kendro Audit Taxes" means (i) federal Income
Taxes calculated on a consolidated basis, (ii) state and local Income Taxes
calculated on a combined, consolidated, unitary or other group basis with Seller
or any affiliate of Seller (other than a Kendro Entity) in the jurisdictions
listed on Schedule 10.10, (iii) United States state and local Income Taxes of
Kendro GP in respect of periods ending on or before the Closing Date and (iv)
United States federal Income Tax Returns of Kendro LP and state Income Tax
Returns of Kendro LP in respect of the jurisdictions listed on Schedule 10.10 or
in which Kendro GP files a combined, consolidated, unitary or other group basis
Income Tax Return with Seller or any affiliate of Seller (other than a Kendro
Entity), in each case under this clause (iv) in respect of taxable periods
ending on or before the Closing Date.
(b) "Affiliated Kendro Refund Taxes" means (i) United States
federal, state, local and foreign Income Taxes calculated on a
consolidated, combined, unitary or other group basis with Seller or any
affiliate of Seller (other than a Kendro Entity) and (ii) United States federal,
state and local Income Taxes of Kendro GP or Kendro LP.
(c) "Income Tax" means any federal, state, local, or foreign
Tax based on or measured by reference to net income, including any
interest, penalty, or addition thereto, whether disputed or not;
(d) "Income Tax Return" means any return, declaration,
report, claim for refund, or information return or statement relating to
Income Taxes, including any schedule or attachment thereto, and including any
amendment thereof;
(e) "Other Tax" means any Tax other than Income Tax;
(f) "Straddle Period" means a Taxable period beginning on or
before and ending after the Closing Date;
(g) "Tax" or "Taxes" means any federal, state, local, or
foreign income, gross receipts, license, payroll, employment, excise,
severance, stamp, occupation, premium, windfall profits, environmental
(including taxes under Code ss.59A), customs duties, capital stock, net worth,
intangibles, franchise, profits, withholding, social security (or similar),
unemployment, disability, real property, personal property, sales, use,
transfer, registration, value added, alternative or add-on minimum, estimated,
or other tax of any kind whatsoever, including any interest, penalty, or
addition thereto, whether disputed or not;
(h) "Tax Proceeding" means any Tax audit or assessment, and
any administrative or court proceeding with respect to such an audit or
assessment; and
(i) "Tax Return" means any return, declaration, report,
claim for refund, or information return or statement relating to Taxes,
including any schedule or attachment thereto, and including any amendment
thereof.
ARTICLE XI
Termination, Amendment, and Waiver
11.1. Termination. This Agreement may be terminated by either
party prior to the Closing:
(a) by the mutual written consent of Seller and Purchaser;
(b) by Purchaser, upon written notice to Seller, if any of
the conditions to the Closing set forth in Article VII shall have become
incapable of fulfillment by Seller and shall not have been waived in writing by
Purchaser;
(c) by Seller, upon written notice to Purchaser, if any of
the conditions to the Closing set forth in Article VIII shall have become
incapable of fulfillment by Purchaser and shall not have been waived in writing
by Seller; and
(d) by either Purchaser, on the one hand, or Seller, on the
other hand, if the Closing shall not have occurred on or before the 180th
day following the date hereof (the "Outside Date"), unless on the Outside Date,
the conditions set forth in Sections 7.9 and 8.4 are the only conditions that
are not capable of being satisfied, in which event the Outside Date shall be
extended by a maximum of an additional fifteen (15) business days for the
purpose of satisfying such conditions; provided however, that the right to
terminate this Agreement under this Section 11.1(d) shall not be available to
any party whose failure to perform any covenant or obligation under this
Agreement has been the cause of, or resulted in, the failure of the Closing to
occur by such date.
11.2. Effect on Obligations. Termination of this Agreement
pursuant to this Article XI shall terminate all rights and obligations of
the parties hereunder and none of the parties shall have any liability to the
other party hereunder, except that Article XIII, the Confidentiality Agreement,
and the last sentence of Section 4.2(a) shall remain in effect, and provided
that nothing herein shall relieve any party from liability for any breach of any
covenant or agreement in this Agreement or any willful and intentional breach of
a representation prior to such termination in any manner that shall have
proximately contributed to the occurrence of the failure of the Closing to
occur.
ARTICLE XII
Indemnification
12.1. Survival. The representations and warranties made in
this Agreement or in any agreement, certificate (including the Purchaser's
Certificate and the Seller's Certificate) or other document executed at or prior
to the Closing in connection herewith (an "Ancillary Document") shall survive
the Closing for a period of 18 months and shall thereafter expire, together with
any right to indemnification for breach thereof; provided, however, that (x) the
representation and warranty set forth in Section 2.19 shall survive the Closing
for a period of three (3) years and shall thereafter expire, together with any
right to indemnification for breach
thereof; (y) the representation and warranty set forth in Section 2.9 shall
survive the Closing for a period of two (2) years and shall thereupon expire,
together with any right to indemnification for breach thereof; and (z) the
representations and warranties set forth in Sections 2.2, 2.3, 2.4, 2.22, 2.25,
3.2, 3.7 and 3.8, together with any right to indemnification for breach thereof,
shall survive the Closing until 60 days after the expiration of the applicable
statute of limitations. The covenants and agreements contained herein to be
performed or complied with at or prior to the Closing (the "Pre-Closing
Covenants") (other than any such covenants and agreements contained in Article X
and other than the covenants and agreements contained in Section 4.1(a)(vii))
shall survive the Closing for a period of 18 months and shall thereafter expire,
together with any right to indemnification for breach thereof. The covenants and
agreements contained herein to be performed or complied with after the Closing
(other than the covenant and agreement to indemnify against breaches of
representations and warranties and Pre-Closing Covenants, which shall expire as
set forth in the first two sentences of this Section 12.1), and the covenants
and agreements contained in Section 4.1(a)(vii) and in Article X, shall survive
the Closing until the expiration of the applicable statute of limitations;
provided, however, that the covenant and agreement referred to in item 2(b) of
Exhibit 12.2 shall survive the Closing for a period of five (5) years and shall
thereafter expire, together with any right to indemnification for breach
thereof. Notwithstanding anything in this Section 12.1 to the contrary, to the
extent a Valid Third Party Claim Notice or Valid Other Claim Notice (each, a
"Valid Claim Notice") with respect to a breach of a particular representation,
warranty, covenant or agreement shall have been given in accordance with Section
12.3 by the party seeking indemnification (the "indemnified party") to the party
from whom indemnification is being sought (the "indemnifying party") prior to
the expiration date (as provided in this Section 12.1) of such representation,
warranty, covenant or agreement, such representation, warranty, covenant or
agreement shall survive, to the extent of the claim set forth in the Valid Claim
Notice only, until such claim is resolved.
12.2. Indemnification. (a) If the Closing shall occur, each
Seller jointly and severally shall indemnify Purchaser (including for this
Article, the Kendro Entities) and hold it harmless from and against any losses,
claims, damages, liabilities, costs or expenses (including reasonable attorneys'
fees and disbursements, but not including internal management, administrative or
overhead costs that an indemnified party incurs in connection with the
administration, supervision or performance of actions required in response to a
claim) (collectively, "Damages"), that are incurred or suffered by it (i) by
reason of the breach of any of the representations or warranties made by Seller
herein or in the Seller's Certificate; (ii) by reason of the failure by Seller
to perform or comply with any of its covenants and agreements contained herein;
(iii) by reason of the imposition on Purchaser of any liabilities of GSLE other
than the GSLE Kendro Liabilities; (iv) by reason of Seller's failure to obtain
releases, at or prior to the Closing, of the SPX Obligations or (v) by reason of
any of the matters set forth on Exhibit 12.2.
(b) Any recovery by Purchaser for indemnification shall be
limited as follows: (1) Purchaser shall not be entitled to any recovery
unless a claim for indemnification is made in accordance with Section 12.3, so
as to constitute a Valid Claim Notice, and within the time period of survival
set forth in Section 12.1; (2) Purchaser shall not be entitled to recover any
amount for indemnification claims under clause (i) of Section 12.2(a) unless and
until the amount that Purchaser is entitled to recover in respect of such claims
exceeds, in the aggregate,
$8,335,000 (less any amount applied to reduce or eliminate the recovery by
Purchaser in respect of any claim under item 2(b) of Exhibit 12.2) (the
"Deductible"), in which event (subject to clause (3) below) the entire amount
that Purchaser is entitled to recover in respect of such claims less the
Deductible shall be payable; (3) the maximum amount recoverable by Purchaser for
indemnification claims under clause (i) of Section 12.2(a) shall in the
aggregate be equal to $125,025,000; provided, that clause (3) shall not apply to
claims relating to a breach of the representations and warranties in Sections
2.2, 2.3 and 2.4, in which case the maximum amount recoverable by Purchaser for
indemnification claims under clause (i) of Section 12.2(a) (along with any other
amounts payable under this Article XII (which shall be limited as herein set
forth)) shall in the aggregate be equal to an amount equal to the Purchase
Price; and (4) Purchaser shall not be entitled to recover any amount for
indemnification claims under item 2(b) of Exhibit 12.2 unless and until the
amount that Purchaser is entitled to recover in respect of such claims shall
exceed, in the aggregate, the lesser of (x) $2,000,000 and (y) the difference
between (A) the Deductible and (B) all amounts applied to the Deductible to
reduce or eliminate the recovery by Purchaser in respect of any indemnification
claims under clause (i) of Section 12.2(a). No Damages shall be included in
determining whether the Deductible has been reached unless a Valid Claim Notice
seeking indemnification for such Damages has been given by Purchaser to Seller
in accordance with Section 12.3.
(c) If the Closing shall occur, Purchaser shall indemnify
each Seller and hold each of them harmless from and against all Damages
that are incurred or suffered by either of them (i) by reason of the breach by
Purchaser of any of the representations or warranties made by Purchaser herein
or in the Purchaser's Certificate, (ii) by reason of the failure by Purchaser to
perform or comply with any of its covenants and agreements contained herein or
(iii) by reason of the imposition on Seller of any of the GSLE Liabilities;
provided, however, that Seller shall not be entitled to any recovery unless a
claim for indemnification is made in accordance with Section 12.3, so as to
constitute a Valid Claim Notice, and within the time period of survival set
forth in Section 12.1.
(d) No individual claim or series of related claims for
indemnification under Section 12.2(a)(i) shall be valid and assertable
unless it is (or they are) for an amount in excess of Twenty Thousand Dollars
($20,000) and any claim less than such amount shall not be included in the
calculation of the limitation in Section 12.2(b)(2).
12.3. Procedures for Claims. (a)(i) In order for an
indemnified party to be entitled to any indemnification provided for under
this Article XII in respect of, arising out of or involving a claim made by any
third party against the indemnified party (a "Third Party Claim"), the
indemnified party must notify the indemnifying party in writing of the Third
Party Claim (a "Third Party Claim Notice") promptly following receipt by such
indemnified party of written notice, if any, of the Third Party Claim, which
notification, to be a valid Third Party Claim Notice, with the effect set forth
in Sections 12.1 and 12.2 (a "Valid Third Party Claim Notice"), must be
accompanied by a copy of the written notice of the third party claimant to the
indemnified party asserting the Third Party Claim; provided, that the failure to
provide such notice promptly (so long as a Valid Third Party Claim Notice is
given before the expiration of the applicable period set forth in Section 12.1)
shall not affect the obligations of the indemnifying party hereunder except to
the extent the indemnifying party is prejudiced thereby. The indemnified party
shall deliver to the indemnifying party copies of all other notices and
documents (including court papers) received by the indemnified party relating to
the Third Party Claim.
(ii ) The indemnifying party shall have the right to
defend against any such Third Party Claim (including to conduct any
proceedings or settlement negotiations) with counsel of its own choosing;
provided that if no portion of the Damages arising from the Third Party Claim
will be paid by insurance, such counsel shall be reasonably satisfactory to the
indemnified party. The indemnified party shall have the right to participate in
the defense of any Third Party Claim and to employ its own counsel (it being
understood that the indemnifying party shall control such defense), at its own
expense. Prior to the time the indemnified party is notified by the indemnifying
party as to whether the indemnifying party will assume the defense of a Third
Party Claim, the indemnified party shall take all actions reasonably necessary
to timely preserve the collective rights of the parties with respect to such
Third Party Claim, including responding timely to legal process. If the
indemnifying party shall decline to assume the defense of a Third Party Claim
(or shall fail to notify the indemnified party of its election to defend such
Third Party Claim) within 30 days after the giving by the indemnified party to
the indemnifying party of a Valid Third Party Claim Notice with respect to the
Third Party Claim, the indemnified party shall defend against the Third Party
Claim and the indemnifying party shall be liable to the indemnified party for
all reasonable fees and expenses incurred by the indemnified party in the
defense of the Third Party Claim, including without limitation the reasonable
fees and expenses of counsel employed by the indemnified party, if and to the
extent that the indemnifying party is responsible to indemnify for such Third
Party Claim. Regardless of which party assumes the defense of a Third Party
Claim, the parties agree to cooperate with one another in connection therewith.
Such cooperation shall include providing records and information that are
relevant to such Third Party Claim, and making employees and officers available
on a mutually convenient basis to provide additional information and explanation
of any material provided hereunder and to act as a witness or respond to legal
process. Whether or not the indemnifying party assumes the defense of a Third
Party Claim, the indemnified party shall not admit any liability with respect
to, or settle, compromise or discharge, such Third Party Claim without the
indemnifying party's prior written consent, which consent will not be
unreasonably withheld or delayed. Without the prior written consent of the
indemnified party, which will not be unreasonably withheld or delayed, the
indemnifying party shall not admit any liability or enter into any settlement,
compromise or discharge with respect to a Third Party Claim unless such
settlement, compromise or discharge includes a release of the indemnified party
arising out of such Third Party Claim.
(b) In order for an indemnified party to be entitled to any
indemnification provided for under this Article XII in respect of a claim
that does not involve a Third Party Claim being asserted against such
indemnified party (an "Other Claim"), the indemnified party must promptly notify
the indemnifying party in writing of such Other Claim (the "Other Claim
Notice"), which notification, to be a valid Other Claim Notice, with the effect
set forth in Sections 12.1 and 12.2 (a "Valid Other Claim Notice"), (i) must
certify that the indemnified party has in good faith already sustained some
(though not necessarily all) Damages with respect to such claim and (ii) if the
Other Claim Notice is asserting a claim for breach of any of the representations
and warranties contained in Section 2.9 (or in the Seller's Certificate insofar
as its pertains to Section 2.9) as to Environmental Matters or a claim under
item 2(b) of Exhibit 12.2 (an "Environmental Breach"), must be accompanied by a
written report from a reputable
nationally or regionally recognized environmental consulting firm
confirming, in reasonable detail, the existence of the conditions as to which an
Environmental Breach is claimed. The failure by any indemnified party to notify
the indemnifying party promptly (so long as a Valid Other Claim Notice is given
before the expiration of the applicable period set forth in Section 12.1) shall
not relieve the indemnifying party from any liability that it may have to such
indemnified party under Section 12.2, except to the extent that the indemnifying
party has been prejudiced by such failure. If (x) the indemnified party delivers
an Other Claim Notice to the indemnifying party and such Other Claim Notice does
not constitute a Valid Other Claim Notice because it does not contain a
certification that the indemnified party has in good faith already sustained
some Damage with respect to such claim and (y) such Other Claim Notice describes
in detail the basis for its claim, then, if such indemnified party delivers a
Valid Other Claim Notice with respect to such claim within either (x) three
months from the delivery of such Other Claim Notice or (y) the applicable
survival period set forth in Section 12.1, when such Valid Other Claim Notice is
delivered it shall have the same effect as if it were delivered prior to the
expiration of the applicable period set forth in Section 12.1.
12.4. Other Provisions. (a) The indemnification provided in
this Article XII shall be the sole and exclusive remedy for any inaccuracy
or breach of any representation or warranty made by Seller or Purchaser in this
Agreement or in the Seller's Certificate or the Purchaser's Certificate,
respectively, except in the case of fraud. All amounts payable by one party in
indemnification of the other shall be considered an adjustment to the Purchase
Price.
(b) In no event shall Seller be liable for loss of profits
(except as set forth in Schedule 12.2A to Exhibit 12.2) or consequential
damages incurred by Purchaser in connection with an Other Claim, it being
understood that Seller shall only be liable (subject to the limitations on
liability set forth in this Article XII) for loss of profits (except as set
forth in Schedule 12.2A to Exhibit 12.2) or consequential damages that are
incurred or suffered by a third party and that form a part of the Third Party
Claim of such third party.
(c) Upon making any payment to an indemnified party for any
indemnification claim under this Agreement, the indemnifying party shall be
subrogated, to the extent of such payment (an "Indemnification Payment"), to any
rights which the indemnified party or its affiliate may have against any other
parties (including under any insurance policies unless such insurance policies
are paid for by the indemnified party) with respect to the subject matter
underlying such indemnification claim. The indemnified party and its affiliates
shall cooperate with the indemnifying party in the pursuit of such rights and
shall promptly turn over to the indemnifying party any payments (up to the
amount of the Indemnification Payment) received in respect of such rights.
(d) Notwithstanding anything in this Agreement to the
contrary, Seller shall have no liability for any failure by Purchaser or
any of its affiliates to comply with applicable law after the date that is 180
days from the Closing by reason of the Kendro Business being operated after such
date in the manner operated prior to the Closing.
(e) In respect of any matter set forth on item 2(a) or 3(b)
of Exhibit 12.2 or any Environmental Breach (each, an "Indemnifiable
Environmental Matter") for which a Valid Claim Notice has been submitted, the
indemnifying party shall be entitled to control all Remedial
Action with respect thereto, and in the case of an Environmental Breach the
indemnified party shall be entitled to participate fully in all substantive
deliberations regarding the Environmental Breach and any Remedial Action with
respect thereto. The indemnifying party shall only be responsible for Remedial
Actions that are required to be undertaken by an Environmental Law and only for
such Remedial Action as represents the least stringent remedy required by an
Environmental Law based on the use of the property as of the Closing Date. As
used in this Agreement, "Remedial Action" means the investigation, cleanup or
remediation of contamination, environmental degradation or damage caused by,
related to or arising from the generation, use, handling, treatment, storage,
transportation, disposal, discharge, release or emission of Hazardous Materials,
including investigations, cleanup or other requirements under any Environmental
Law.
(f) Purchaser understands and agrees that the rights
accorded by Section 12.2(a) in respect of item 3(a) of Exhibit 12.2 or any
Indemnifiable Environmental Matter are its sole and exclusive remedy against
Seller with respect to any Indemnifiable Environmental Matter or any other
Environmental Matters whatsoever. Purchaser and the Kendro Entities (each on its
own behalf and on behalf of its affiliates and the successors and assigns of any
of the foregoing) each hereby waives any right to seek contribution or other
recovery from either Seller or from any of their affiliates that any of them may
now or in the future ever have under any Environmental Laws, including, without
limitation, 42 U.S.C. ss.ss. 9607 and 9613(f) of the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), as such laws were in the
past or are currently in effect, or may in the future be enacted or be in
effect. Purchaser and the Kendro Entities (each on its own behalf and on behalf
of its affiliates and the successors and assigns of any of the foregoing) each
hereby further unconditionally releases each Seller and their affiliates from
any and all claims, demands and causes of action that any of them may now or in
the future ever have against either Seller or any of their affiliates for
recovery under CERCLA or under any other Environmental Laws as such laws were in
the past or are currently in effect, or may in the future be enacted or be in
effect. Nothing in this Section 12.4(f) shall affect any rights that Purchaser
may have under Section 12.2 for indemnification for any breach by Seller of the
representations and warranties contained in Section 2.9 subject to the
limitations set forth in Sections 12.1 and 12.2.
(g) The amount of any Damages shall be (x) reduced by the
amount of insurance proceeds received by the indemnified party as
compensation in connection therewith and increased by the amount of increased
premium required to be paid by such indemnified party arising from the act or
omission, fact or circumstance giving rise to the payment of such insurance
proceeds and (y) computed net of any Tax benefits (which shall be calculated at
an assumed 35% tax rate) received by the indemnified party in connection
therewith.
(h) Notwithstanding anything herein to the contrary,
Purchaser shall have no right to any indemnification under this Article XII
for any matter if (i) the Net Book Value calculated with respect to the Closing
Balance Sheet was reduced for such matter or (ii) the Net Book Value calculated
with respect to the Closing Balance Sheet was not reduced for such matter, if
Purchaser had sought to reduce the Net Book Value for such matter, Seller
disputed such reduction, such dispute was resolved in favor of Seller pursuant
to Section 1.3(b), and such favorable resolution was not based on a
determination that the disputed item was not required by
GAAP or by the provisions of Section 1.3 or Exhibit 1.3 to be reflected on
the Closing Balance Sheet.
ARTICLE XIII
Miscellaneous
13.1. Expenses. Except as otherwise expressly provided herein,
Seller, on the one hand, and Purchaser on the other hand, shall pay all
costs and expenses incurred by such party or on its behalf in connection with
this Agreement and the transactions contemplated hereby, including without
limiting the generality of the foregoing, fees and expenses of its financial
consultants, accountants and counsel. Notwithstanding the foregoing, Purchaser
shall pay all fees and expenses of the notary incurred in connection with the
notarization of the Notarial Deed.
13.2. Exclusive Agreement; No Third-Party Beneficiaries. This
Agreement (including the Seller Disclosure Schedule and all Exhibits and
Schedules hereto), the Confidentiality Agreement, the Transition Services
Agreement and the Notarial Deed constitute the sole understanding of the parties
with respect to the subject matter hereof. Any such disclosure shall expressly
not be deemed to constitute an admission by Seller or to otherwise imply that
any such matter is material for the purposes of this Agreement. Notwithstanding
anything contained in this Agreement to the contrary, nothing in this Agreement,
express or implied, is intended to confer on any person other than the parties
hereto or their respective successors and permitted assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
13.3. Governing Law, Etc. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware
applicable to agreements made and to be performed wholly within such
jurisdiction. Each of the parties hereto hereby irrevocably and unconditionally
consents to submit to the exclusive jurisdiction of the courts of the State of
Delaware and of the United States of America in each case located in the County
of New Castle (each, a "Selected Court") for any Litigation arising out of or
relating to this Agreement and the transactions contemplated hereby (and agrees
not to commence any Litigation relating thereto except in any of the Selected
Courts, provided that a party may commence any Litigation in a court other than
a Selected Court solely for the purpose of enforcing an order or judgment issued
by one of the Selected Courts), and further agrees that service of any process,
summons, notice or document by U.S. registered mail to its respective address
set forth in Section 13.7 shall be effective service of process for any
Litigation brought against it in any such court. Each of the parties hereto
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any Litigation arising out of this Agreement or the transactions
contemplated hereby in the Selected Courts and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any court that any
such Litigation brought in any Selected Court has been brought in an
inconvenient forum. Each of the parties hereto hereby irrevocably and
unconditionally waives, to the fullest extent permitted by applicable law, any
and all rights to trial by jury in connection with any Litigation arising out of
or relating to this Agreement or the transactions contemplated hereby.
13.4. Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties hereto; provided, however, that this
Agreement may not be assigned by Purchaser without the prior written consent of
Seller except that Purchaser may, at its election, assign this Agreement, in
whole or in part, to one or more direct or indirect wholly-owned Subsidiaries so
long as (i) the representations and warranties of Purchaser made herein are
equally true of such assignee and (ii) such assignment does not have any adverse
consequences to Seller or any of its affiliates (including, without limitation,
any adverse Tax consequences or any adverse effect on the ability of Seller to
timely consummate the transactions contemplated hereby), but no such assignment
of this Agreement or any of the rights or obligations hereunder shall relieve
Purchaser of any of its obligations under this Agreement. Such assignee shall
execute a counterpart of this Agreement agreeing to be bound by the provisions
hereof as "Purchaser," and agreeing to be jointly and severally liable with
Purchaser and any other assignee for all of the obligations of the assignor
hereunder.
13.5. Publicity. No public release or announcement concerning
the transactions contemplated hereby shall be issued by any party without
the prior consent of the other party (which consent shall not be unreasonably
withheld), except as such release or announcement may be required by law or the
rules or regulations of any United States or foreign securities exchange, in
which case the party required to make the release or announcement shall give the
other party notice in advance of such issuance.
13.6. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
adverse manner to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner so
that the transactions contemplated hereby are fulfilled to the greatest extent
possible.
13.7. Notices. Any notice, request, instruction or other
document to be given hereunder by any party hereto to any other party shall
be in writing and shall be given by (i) delivery in person (and shall be deemed
delivered upon receipt), (ii) electronic facsimile transmission or other
standard forms of written telecommunications (and shall be deemed delivered upon
receipt of electronic confirmation or other evidence of receipt), (iii)
nationally recognized overnight courier (and shall be deemed delivered on the
following business day, with Saturday being deemed a business day for purposes
of this clause (iii) if Saturday delivery instructions were given to the
courier) or (iv) registered or certified mail, postage prepaid (and shall be
deemed delivered two business days following mailing):
(a) If to Seller, to:
SPX Corporation
13515 Ballantyne Corporate Place
Charlotte, NC 28277
Attention: General Counsel
Telecopy: 704-752-7442
with a copy to:
Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, New York 10004-1980
Attention: John M. Bibona
Telecopy: (212) 859-4000
(b) If to Purchaser, to:
Thermo Electron Corporation
81 Wyman Street
Waltham, Massachusetts 02454
Attention: General Counsel
Attention: Director, Corporate Development
Telecopy: (781) 622-1283
with a copy to:
Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
Attention: Hal J. Leibowitz
Telecopy: (617) 526-5000
or at such other address for a party as shall be specified by like notice.
13.8. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute but one and the same agreement.
13.9. Interpretation. When a reference is made in this
Agreement to Articles, Sections or Exhibits, such reference is to an
Article or a Section of, or an Exhibit to, this Agreement, unless otherwise
indicated. The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be understood to be followed
by the words "without limitation." Whenever the words "herein," "hereof,"
"hereto" or "hereunder" are used in this Agreement, they shall be deemed to
refer to this Agreement as a whole and not to any specific Section of this
Agreement. The inclusion of a dollar amount with respect to any representation,
warranty, covenant or agreement contained herein shall not be deemed to be an
admission that such amount is a material amount. Whenever used in this
Agreement, "Seller's knowledge" shall mean the actual knowledge (as well as the
knowledge obtainable by such individual after
reasonable investigation) of the persons listed on Schedule 13.9 and
"person" shall mean any individual, corporation, partnership, association,
trust, limited liability company or other entity or organization.
13.10. Amendment. This Agreement may not be amended except by
an instrument in writing signed on behalf of each of the parties.
13.11. Extension; Waiver. At any time the parties may extend
the time for the performance of any of the obligations or other acts of the
other party, waive any inaccuracies in the representations and warranties
contained in this Agreement and waive compliance with any of the agreements or
conditions contained in this Agreement. Any agreement on the part of a party to
any such extension or waiver shall be valid only if set forth in an instrument
signed on behalf of such party. The waiver by any party hereto of a breach of
any provision hereunder shall not operate to be construed as a waiver of any
prior or subsequent breach of the same or any other provision hereunder.
13.12. Foreign Exchange Conversions. If any amount to be paid,
transferred, allocated, indemnified, reimbursed, calculated or referenced
pursuant to, or in accordance with, the terms of this Agreement or any Exhibit
or Schedule referred to herein must be converted to another currency, such
amount shall be converted at the exchange rate between those two currencies most
recently quoted in The Wall Street Journal in New York as of the business day
immediately prior to (or, if no such quote exists on such business day, on the
closest business day prior to) the day on which the party required to make such
payment, transfer, indemnification, reimbursement, calculation or reference
first becomes obligated to do so hereunder; provided, however, that nothing in
this Section 13.12 shall be deemed to require either party to make any foreign
currency conversion or other similar calculation that violates or conflicts
with, or otherwise causes a party to violate, applicable law or GAAP.
[Remainder of page left intentionally blank]
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
SPX CORPORATION
By: /s/ Christopher J. Kearney
--------------------------
Name: Christopher J. Kearney
Title: President and Chief Executive Officer
KENDRO GP II, LLC
By: /s/ Patrick J. O'Leary
----------------------
Name: Patrick J. O'Leary
Title: Vice President and Treasurer
SPX EUROPE GmbH
By: /s/ Patrick J. O'Leary
----------------------
Name: Patrick J. O'Leary
Title:
GENERAL SIGNAL IRELAND B.V.
By: /s/ Christopher J. Kearney
--------------------------
Name: Christopher J. Kearney
Title: Vice President and Secretary
GSLE DEVELOPMENT CORPORATION
By: /s/ Christopher J. Kearney
--------------------------
Name: Christopher J. Kearney
Title: Vice President and Secretary
THERMO ELECTRON CORPORATION
By: /s/ Marijn Dekkers
------------------
Name: Marijn Dekkers
Title: President & CEO
THERMO ELECTRON (OBERHAUSEN) GmbH
By: /s/ Seth H. Hoogasian
---------------------
Name: Seth H. Hoogasian
Title: Attorney-In-Fact
The undersigned hereby agree to be bound by the provisions of Section 12.4(f) of
the foregoing Agreement effective as of the Closing, as though the undersigned
were original signatories thereto.
MEDICAL EQUIPMENT MAINTENANCE COMPANY
By: /s/ Christopher J. Kearney
---------------------------------------------
Name: Christopher J. Kearney
Title: Vice President and Secretary
KEY SCIENTIFIC, INC.
By: /s/ Christopher J. Kearney
---------------------------------------------
Name: Christopher J. Kearney
Title: Vice President and Secretary
CRYONIX, INC.
By: /s/ Christopher J. Kearney
---------------------------------------------
Name: Christopher J. Kearney
Title: Vice President and Secretary
KENDRO LABORATORY PRODUCTS GmbH
By: /s/ Dennis Pope
---------------------------------------------
Name: Dennis Pope
Title:
KENDRO LABORATORY PRODUCTS AG
By: /s/ Uwe Ditzen
---------------------------------------------
Name: Uwe Ditzen
Title: Managing Director
NIPPON KENDRO KK
By: /s/ Jeffrey Johnston
---------------------------------------------
Name: Jeffrey Johnston
Title: Senior Vice President Latin
America Asia Pacific
KENDRO LABORATORY PRODUCTS (GP), INC.
By: /s/ Christopher J. Kearney
---------------------------------------------
Name: Christopher J. Kearney
Title: Vice President and Secretary
KENDRO LABORATORY PRODUCTS, L.P.
By: KENDRO LABORATORY
PRODUCTS (GP), INC. its General
Partner
By: /s/ Christopher J. Kearney
---------------------------------------------
Name: Christopher J. Kearney
Title: Vice President and Secretary