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STOCK PURCHASE AGREEMENT
by and between
TBG HOLDINGS N.V.,
AND
N.V. HOLLANDSCH-AMERIKAANSCHE BELEGGINGSMAATSCHAPPIJ HOLLAND-
AMERICAN INVESTMENT CORPORATION
as Sellers,
and
MUELLER INDUSTRIES, INC.,
as Buyer,
for the purchase and sale of
all outstanding capital stock of
Extruded Metals, Inc.,
a Delaware corporation
Dated as of February 27, 2007
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TABLE OF CONTENTS
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Page
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ARTICLE I. DEFINITIONS...................................................1
ARTICLE II. SALE AND PURCHASE.............................................7
Section 2.1. Agreement to Sell and to Purchase...........................7
Section 2.2. Closing.....................................................7
Section 2.3. Purchase Price..............................................7
Section 2.4. Withholding Rights..........................................7
Section 2.5. FIRPTA......................................................7
Section 2.6. Sellers' Representative.....................................7
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE SELLERS.................8
Section 3.1. Corporate Organization......................................8
Section 3.2. Qualification to Do Business; Authorization and Validity of
Agreement...................................................8
Section 3.3. No Conflict or Violation....................................9
Section 3.4. Consents and Approvals......................................9
Section 3.5. Capital Stock and Related Matters..........................10
Section 3.6. Subsidiaries and Equity Investments........................10
Section 3.7. Financial Statements.......................................10
Section 3.8. Absence of Certain Changes or Events.......................11
Section 3.9. Tax Matters................................................12
Section 3.10. Absence of Undisclosed Liabilities.........................13
Section 3.11. Owned Real Property........................................13
Section 3.12. Leases.....................................................15
Section 3.13. Assets of the Company......................................16
Section 3.14. Intellectual Property; Intangible Assets...................16
Section 3.15. Licenses and Permits.......................................17
Section 3.16. Compliance with Law........................................17
Section 3.17. Litigation.................................................17
Section 3.18. Contracts..................................................18
Section 3.19. Inventories................................................18
Section 3.20. Employee Plans.............................................19
Section 3.21. Insurance..................................................21
Section 3.22. Transactions with Directors, Officers and Affiliates.......21
Section 3.23. Labor Matters..............................................21
Section 3.24. Environmental Matters......................................22
Section 3.25. Products Liability.........................................24
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF BUYER......................24
Section 4.1. Corporate Organization.....................................24
Section 4.2. Authorization and Validity of Agreement....................25
Section 4.3. No Conflict or Violation...................................25
Section 4.4. Consents and Approvals.....................................25
Section 4.5. Investment Intent..........................................25
Section 4.6. Investment Awareness.......................................25
ARTICLE V. COVENANTS OF THE SELLERS......................................26
Section 5.1. Necessary Consents and Approvals...........................26
ARTICLE VI. COVENANTS OF THE BUYER........................................26
Section 6.1. Consents and Approvals.....................................26
Section 6.2. Benefits to Company Employees..............................26
ARTICLE VII. ADDITIONAL COVENANTS OF THE PARTIES...........................29
Section 7.1. Consummation of the Stock Purchase.........................29
Section 7.2. Information................................................29
Section 7.3. Indemnification............................................29
Section 7.4. Access to Properties and Records; Confidentiality..........32
Section 7.5. Non-Compete................................................33
ARTICLE VIII. SURVIVAL......................................................33
Section 8.1. Survival of Representations and Warranties.................33
ARTICLE IX. MISCELLANEOUS.................................................33
Section 9.1. Successors and Assigns.....................................33
Section 9.2. GOVERNING LAW; JURISDICTION................................33
Section 9.3. Expenses...................................................34
Section 9.4. Broker's and Finder's Fees.................................34
Section 9.5. Severability...............................................34
Section 9.6. Notices....................................................34
Section 9.7. Amendments; Waivers........................................35
Section 9.8. Public Announcements.......................................36
Section 9.9. Entire Agreement...........................................36
Section 9.10. Parties in Interest........................................36
Section 9.11. Scheduled Disclosures......................................36
Section 9.12. Section and Paragraph Headings.............................36
Section 9.13. Counterparts...............................................36
ii
INDEX TO SCHEDULES
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Schedule 3.2...................................................................2
Schedule 3.3(iii)..............................................................3
Schedule 3.4...................................................................4
Schedule 3.5...................................................................5
Schedule 3.8(a)(i).............................................................6
Schedule 3.8(a)(ii)............................................................7
Schedule 3.8(b)(vii)...........................................................8
Schedule 3.8(b)(viii)..........................................................9
Schedule 3.8(b)(ix)...........................................................10
Schedule 3.9(vii).............................................................11
Schedule 3.9(xiv).............................................................12
Schedule 3.10.................................................................13
Schedule 3.11(a)..............................................................14
Schedule 3.11(i)..............................................................15
Schedule 3.14.................................................................16
Schedule 3.14(a)..............................................................17
Schedule 3.15.................................................................18
Schedule 3.17.................................................................19
Schedule 3.18(a)..............................................................20
Schedule 3.18(d)..............................................................22
Schedule 3.20(a)..............................................................23
Schedule 3.20(d)..............................................................25
Schedule 3.20(g)..............................................................26
Schedule 3.20(j)..............................................................27
Schedule 3.21.................................................................28
Schedule 3.22.................................................................29
Schedule 3.23(a)(i)...........................................................30
Schedule 3.23(a)(ii)..........................................................32
Schedule 3.23(a)(iii).........................................................33
Schedule 3.23(c)..............................................................34
Schedule 3.24(a)..............................................................35
Schedule 3.24(e)..............................................................36
Schedule 3.24(f)..............................................................37
Schedule 3.24(g)..............................................................38
Schedule 3.24(l)..............................................................39
Schedule 3.25.................................................................40
Schedule 6.2..................................................................41
iii
STOCK PURCHASE AGREEMENT
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STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of February 27, 2007,
by and between TBG Holdings N.V., a Netherlands Antilles limited liability
company with corporate seat in Curacao, the Netherlands Antilles ("TBG"), N.V.
Hollandsch-Amerikaansche Beleggingsmaatschappij Holland-American Investment
Corporation, a limited liability company with corporate seat in Amstelveen, the
Netherlands ("Holland") (each of TBG and Holland, a "Seller" and, collectively,
the "Sellers") and Mueller Industries, Inc., a Delaware corporation (the
"Buyer").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Extruded Metals, Inc. (the "Company") is a Delaware corporation
that produces alloys of brass rod and bar for brass manufacturers;
WHEREAS, TBG owns 1,000 shares of common stock, par value $1.00 per share
of the Company ("Company Common Stock") and Holland owns 12,200 shares of Series
A Preferred Stock, par value $1.00 per share of the Company ("Company Preferred
Stock"), together constituting 100% of the issued and outstanding capital stock
of the Company (all such shares of capital stock are referred to herein as the
"Shares");
WHEREAS, the Buyer desires to purchase the Shares from the Sellers, and the
Sellers desire to sell the Shares to the Buyer, in each case upon the terms and
subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual terms and other agreements
set forth herein, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
"November 30, 2006 Balance Sheet" shall mean the audited balance sheet of
the Company as of November 30, 2006, audited by Ernst & Young LLP;
"Affiliate" -- an Affiliate of any Person shall mean another Person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such first Person;
"Agreement" -- See Preamble hereto;
"Balance Sheet" -- See Section 3.10;
"Business Day" shall mean a day other than a Saturday, Sunday or other day
on which banks in the States of New York or Michigan are not required or
authorized to close;
"Buyer" -- See Preamble hereto;
"Buyer Actuary" -- See Section 6.2(d);
"Cap" -- See Section 7.3(i);
"Closing" -- See Section 2.2;
"Closing Date" -- See Section 2.2;
"Code" -- the Internal Revenue Code of 1986, as amended;
"Company" -- See Recitals hereto;
"Company Common Stock" -- See Recitals hereto;
"Company Material Adverse Effect" shall mean any material adverse effect on
the business, assets, properties, or financial condition of the Company, other
than effects due to or resulting from general economic or market conditions, or
matters generally affecting the brass rod mill industry in which the Company
operates (provided any such change in general economic or market conditions, or
other such matters, shall be considered for purposes of determining whether a
Company Material Adverse Effect has occurred to the extent such change had a
materially adverse disproportionate effect on the Company when compared to other
Persons similarly situated).
"Company Pension Plan" -- See Section 6.2(d);
"Company Preferred Stock" -- See Recitals hereto;
"Company Retirees" -- See Section 3.20(g);
"Contracts" shall mean, collectively, the Leases, Purchase Orders, Sales
Orders and Other Contracts;
"Controlled Group" -- See Section 3.20(a);
"Deductible" -- See Section 7.3(i);
"De Minimus Claim" -- See Section 7.3(i);
"Environmental Claim" -- See Section 3.24(g);
"Environmental Laws" shall mean any federal, state, or local statute,
regulation, rule, ordinance, order, decree, or other requirement of law
(including, without limitation, common law) relating the environment or natural
resources or to the protection of human health, safety or welfare or to the
identification, generation, use, transportation, handling, discharge, emission,
treatment, storage, or disposal of any pollutant, contaminant, hazardous or
solid waste, or any hazardous or toxic substance or material. Without limiting
the generality of the foregoing, Environmental Laws shall include, without
limitation, the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. ss. 9601 et
seq.; the Resource Conservation and Recovery Act, 42 U.S.C. ss. 6901 et seq.;
the Federal Water Pollution Control Act, 33 U.S.C. ss. 1251 et seq.; the Clean
Air Act, 42 U.S.C. ss. 7401 et seq.; the Toxic Substances Control Act, 15 U.S.C.
ss. 2601 et seq.; the Safe Drinking Water Act, 42 U.S.C. 300(f) et seq.; the
Occupational Safety and Health Act, 29 U.S.C. ss. 651 et seq.; and the Hazardous
Materials Transportation Act, 49 U.S.C. ss. 5101 et seq., each as amended,
regulations promulgated thereunder, permits issued thereunder, and analogous and
state and local statutes, regulations, rule and ordinances;
"Environmental Permits" -- See Section 3.24(a);
"Equipment and Machinery" shall mean all the equipment, machinery,
furniture, fixtures and improvements, supplies and vehicles owned, leased or
used by the Company;
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended;
"Escrow Account" -- See Section 7.3(e)(i);
"Escrow Agreement" -- See Section 7.3(e)(i);
"Escrow Amount" -- See Section 7.3(e)(i);
"Event of Breach" -- See Section 7.3(b);
"Financial Statements" -- See Section 3.7;
"FIRPTA Affidavit" -- See Section 2.5;
"Fixed Asset Workpapers" -- See Section 3.13(a);
"GAAP" shall mean generally accepted accounting principles in the United
States applied on a consistent basis;
"Governmental Entity" shall mean any federal, state or foreign governmental
or public body, agency or authority;
"Hazardous Substance" -- See Section 3.24(d);
"HSR Act" -- See Section 3.4;
"Indebtedness" shall mean, as to any Person at any date, without
duplication, the following: (a) all obligations of such Person for borrowed
money; (b) all obligations of such Person evidenced by bonds, debentures, notes
or other similar instruments; (c) all obligations of such Person as lessee under
capital leases; (d) all payment or reimbursement obligations due and payable
under a surety bond, performance bond, bank guaranty, letter of credit or
similar instrument, in each case, issued or provided by a third party on behalf
of such Person or any of its Subsidiaries to another third party of up to a
maximum amount of money that is quantified in
such instrument in advance; and (e) all Indebtedness described in any of clauses
(a) through (f) above of others guaranteed by such Person.
"Intangible Assets" shall mean all intangible personal property rights,
including, without limitation, all rights on the part of the Company to proceeds
of any insurance policies and all claims on the part of the Company for
recoupment, reimbursement and coverage under any insurance policies and all
goodwill of the Company.
"Intellectual Property" shall mean all of the following owned by, issued to
or licensed to the Company: (i) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto,
and all patents, patent applications, and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions, extensions and
reexaminations thereof; (ii) all trademarks, service marks, trade dress, logos,
trade names, corporate names and other indications of origin, together with all
translations, adaptations, derivations, and combinations thereof and including
all goodwill associated therewith, and all applications, registrations and
renewals in connection therewith; (iii) all copyrightable works (including,
without limitation, all software developed by or on behalf of the Company), all
copyrights, and all applications, registrations and renewals in connection
therewith; (iv) all mask works and all applications, registrations and renewals
in connection therewith; (v) all trade secrets and confidential business
information (including ideas, research and development, know-how, formulas,
compositions, manufacturing and production processes and techniques, technical
data, designs, drawings, specifications, customer and supplier lists, pricing
and cost information, and business and marketing plans and proposals); (vi) all
computer software (including object code, source code, data and related
documentation); (vii) all Internet Websites, including domain name registrations
and content and software included therein; (viii) all other proprietary rights;
(ix) all rights to recover for past infringements of any of the foregoing; and
(x) all copies and tangible embodiments thereof (in whatever form or medium);
"Leased Real Property" -- See Section 3.12(a);
"Leases" -- See Section 3.12(a);
"Liabilities" shall mean any and all liabilities and obligations of any
kind or nature, including those arising under common law, statute (or other
law), contract or otherwise, whether known or unknown, or liquidated or
unliquidated;
"Licenses and Permits" -- See Section 3.15;
"Lien" shall mean any mortgage, pledge, security interest, encumbrance of
any kind or character, lien (statutory or other), conditional sale agreement,
claim, charge, limitation or restriction;
"Loss" -- See Section 7.3(a);
"Multiemployer Plans" -- See Section 3.20(e);
"NLRB" -- See Section 3.23(b);
"Occurrence" -- See Section 3.25(b);
"Other Contracts" shall mean all Equipment and Machinery leases, and all
indentures, loan agreements, security agreements, partnership or joint venture
agreements, license agreements, maintenance contracts, service contracts,
employment, commission and consulting agreements, suretyship contracts, letters
of credit, reimbursement agreements, distribution agreements, contracts or
commitments limiting or restraining the Company from engaging or competing in
any lines of business or with any Person, documents granting the power of
attorney with respect to the affairs of the Company, agreements not made in the
ordinary course of business of the Company, options to purchase any assets or
property rights of the Company, working capital maintenance or other form of
guaranty agreements, and all other agreements to which the Company is a party,
but excluding Leases, Purchase Orders, Sales Orders and Plans;
"Owned Real Property" -- See Section 3.11(a);
"Parties" shall mean the Buyer and the Sellers;
"Pension Plan" -- See Section 3.20(d);
"Permitted Liens" means (i) Liens for Taxes or other governmental charges
not yet due and payable or which are being contested in good faith for which
adequate reserves are maintained, (ii) mechanics', carriers', warehousemen's,
workers' and other similar Liens for sums that are not yet due and payable,
(iii) Liens to secure Indebtedness disclosed in the Company's Financial
Statements, (iv) easements, rights of way, building, zoning and other similar
liens or title defects which would not be reasonably expected to have a Company
Material Adverse Effect, (v) Liens on assets incurred in the ordinary course of
business which would not be reasonably expected to have a Company Material
Adverse Effect, and (vi) other Liens that do not materially impair the use
operation, enjoyment, marketability or value of the underlying property in the
ordinary course.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
Governmental Entity;
"Plans" -- See Section 3.20(a);
"Post-Retirement Benefits" -- See Section 3.20(g);
"Pre-Closing Tax Period" -- See Section 7.3(g);
"Products" -- See Section 3.25;
"Product Liability Lawsuits" -- See Section 3.25;
"Purchase Orders" shall mean all the Company's outstanding purchase orders,
contracts or other commitments to suppliers of goods and services for materials,
supplies or other items used in its businesses;
"PVAB" -- See Section 6.2(d);
"Restricted Period" -- See Section 7.5;
"Retrofits" -- See Section 3.25;
"Sales Orders" shall mean all the Company's sales orders, contracts or
other commitments to purchasers of goods and services of its businesses;
"Securities Act" shall mean the Securities Act of 1933, as amended;
"Sellers" -- See Preamble hereto;
"Stock Purchase" -- See Section 2.1;
"Subsidiary" means, with respect to the Company, the Buyer, or any of the
Sellers, as the case may be, any entity, whether incorporated or unincorporated,
of which at least a majority of the securities or ownership interests having by
their terms ordinary voting power to elect a majority of the board of directors
or other persons performing similar functions is directly or indirectly owned or
controlled by such party or by one or more of its respective Subsidiaries or by
such party and any one or more of its respective Subsidiaries;
"Tax Return" shall mean any report, return, information return, filing,
claim for refund or other information, including any schedules or attachments
thereto, and any amendments to any of the foregoing required to be supplied to a
taxing authority in connection with Taxes;
"Taxes" shall mean all federal, state, local or foreign taxes, including,
without limitation, income, gross income, gross receipts, production, excise,
employment, sales, use, transfer, ad valorem, profits, license, capital stock,
franchise, severance, stamp, withholding, Social Security, employment,
unemployment, disability, worker's compensation, payroll, utility, windfall
profit, custom duties, personal property, real property, registration,
alternative or add-on minimum, estimated and other taxes, governmental fees or
like charges of any kind whatsoever, including any interest, penalties or
additions thereto, whether disputed or not; and "Tax" shall mean any one of
them;
"TBG" -- See Preamble hereto;
"TBG Actuary" -- See Section 6.2(d);
"TBG Pension Plan" -- See Section 6.2(d);
"Transfer Amount" -- See Section 6.2(d);
"Welfare Plan" -- See Section 3.20(c).
ARTICLE II.
SALE AND PURCHASE
Section 2.1. Agreement to Sell and to Purchase. On the Closing Date and
upon the terms and subject to the conditions set forth in this Agreement, the
Sellers shall sell, assign, transfer, convey and deliver the Shares, free and
clear of any Liens, limitations or restrictions, to the Buyer, and the Buyer
shall purchase and accept the Shares from the Sellers (the "Stock Purchase").
Section 2.2. Closing. The closing of the Stock Purchase and the
transactions contemplated by this Agreement (the "Closing") shall take place (i)
at the offices of Willkie Farr & Gallagher LLP, 787 Seventh Avenue, New York,
New York 10019, at 5:00 P.M. local time on February 27, 2007 or (ii) at such
other time and place as the Parties shall agree in writing (the "Closing Date").
At the Closing, the Sellers shall deliver to the Buyer or its designee stock
certificates representing the Shares, duly endorsed in blank for transfer or
accompanied by appropriate stock powers duly executed in blank, with all taxes,
direct or indirect, attributable to the transfer of such Shares paid or provided
for. In full consideration and exchange for the Shares, the Buyer shall
thereupon pay to the Sellers the Purchase Price as provided in Section 2.3
hereof. The Buyer shall have no obligation to purchase any Shares unless all of
the Shares are to be sold and delivered on the Closing Date.
Section 2.3. Purchase Price. The aggregate purchase price for the Shares
(the "Purchase Price") shall be $32,000,000. On the Closing Date, the Buyer
shall deliver to (i) TBG, cash in an amount equal to $25,200,000 and (ii)
Holland, cash in an amount equal to $4,300,000, payable by wire transfer in
immediately available funds to bank accounts in Rotterdam, the Netherlands, as
designated in writing by TBG and Holland, respectively, not less than three
Business Days before the Closing Date. A portion of the Purchase Price will be
held in the Escrow Account in accordance with the terms of the Escrow Agreement.
Section 2.4. Withholding Rights. The Buyer shall be entitled to deduct and
withhold from the Purchase Price otherwise payable pursuant to this Agreement
such amounts as the Buyer is required to deduct and withhold with respect to the
making of such payment under the Code, or any provision of state, local or
foreign tax law. To the extent that amounts are so deducted and withheld by the
Buyer, such withheld amounts shall be treated for all purposes of this Agreement
as having been paid as Purchase Price.
Section 2.5. FIRPTA. TBG shall deliver to Buyer an affidavit from the
Company, under penalties of perjury, stating that the Company is not and has not
been a United States real property holding corporation, dated as of the Closing
Date and in form and substance required under Treasury Regulation 1.897-2(h) so
that Buyer are exempt from withholding any portion of the Purchase Price
thereunder (the "FIRPTA Affidavit").
Section 2.6. Sellers' Representative. (a) Each Seller hereby irrevocably
constitutes and appoints TBG to act as its exclusive agent and attorney-in-fact
to give and receive notices on behalf of the Sellers and in general to do all
things and to perform all acts on each Seller's behalf as may be contemplated by
this Agreement and the Escrow Agreement. The
Sellers shall be bound by all acts of the Sellers' Representative taken in
connection and conformity with this Agreement and the Escrow Agreement.
(b) This power of attorney, and all authority hereby conferred, is
irrevocable and will not be terminated by any act of any Seller or by operation
of law, whether by the death or incapacity of any Seller or by the occurrence of
any other event. The Sellers' Representative is acting solely in an agency
capacity and will have no personal liability of any type for any action taken in
the capacity of the Sellers' Representative in accordance with the terms of this
Agreement, including, without limitation, the compromise, settlement, payment or
defense of any claim (including, without limitation, expenses and costs
associated therewith) under this Agreement regardless of whether any Seller is
the claimant or the party against whom a claim is being made, other than
relating to the gross negligence or willful misconduct of the Sellers'
Representative.
(c) Each Seller agrees jointly and severally, to indemnify, defend and hold
the Sellers' Representative harmless from and against any and all claims,
losses, liabilities, damages and expenses (including, without limitation,
reasonable attorneys' fees and costs) which it may suffer or sustain as a result
of any action taken in good faith hereunder or under the Escrow Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each of the Sellers, jointly and severally, hereby represents and warrants
to Buyer as follows:
Section 3.1. Corporate Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. TBG is a limited liability company duly organized, validly existing
and in good standing under the laws of the Netherlands Antilles. Holland is a
limited liability company duly organized, validly existing and in good standing
under the laws of the Netherlands. The Company and each of the Sellers has all
requisite corporate power and authority to own or lease its properties and
assets and to conduct its business as now conducted. Copies of the Certificate
of Incorporation and By-Laws of the Company and the organizational documents of
each of the Sellers, with all amendments thereto to the date hereof, have been
furnished to Buyer or its representatives, and such copies are accurate and
complete.
Section 3.2. Qualification to Do Business; Authorization and Validity of
Agreement. The Company is duly qualified to do business as a foreign corporation
and is in good standing in every jurisdiction in which the character of the
properties and assets owned or leased by it or the nature of the business
conducted by it makes such qualification necessary, except where the failure to
do so would not have a Company Material Adverse Effect. Schedule 3.2 sets forth
all jurisdictions in which the Company is qualified to do business. Each of the
Sellers has all requisite corporate power and authority to enter into this
Agreement and to carry out its respective obligations hereunder. The execution
and delivery by each of the Sellers of this Agreement and the performance of
each of their respective obligations hereunder have been
duly authorized by all necessary corporate action by the Board of Directors of
each of the Sellers, respectively, and no other corporate proceedings on the
part of each of the Sellers are necessary to authorize such execution, delivery
and performance. This Agreement has been duly executed by each of the Sellers
and, assuming the due authorization, execution and delivery of this Agreement by
the Buyer, constitutes the valid and binding obligation of each of the Sellers,
enforceable against each of the Sellers in accordance with its terms, except
that the enforceability of this Agreement is subject to applicable bankruptcy,
insolvency or other similar laws relating to or affecting the enforcement of
creditors' rights generally and to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
Section 3.3. No Conflict or Violation. (a) Except as set forth on Schedule
3.3, the execution, delivery and performance by each of the Sellers of this
Agreement do not, and the Stock Purchase and the transactions contemplated in
this Agreement or in any related document will not (i) violate or conflict with
any provision of the Certificate of Incorporation or By-Laws of the Company or
the organizational documents of any of the Sellers, (ii) violate any provision
of law, any regulation, or any order, judgment or decree of any court or other
governmental or regulatory authority, (iii) violate or result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
contract, lease, loan agreement, mortgage, security agreement, trust indenture
or other agreement or instrument to which the Company or any of the Sellers is a
party or by which either is bound or to which any of its properties or assets is
subject, (iv) result in the creation or imposition of any Lien upon any of the
assets, properties or rights of the Company or any of the Sellers, or (v) result
in the cancellation, modification, revocation or suspension of any of the
Licenses and Permits or the Environmental Permits, other than, in the case of
(iii), (iv) and (v) above, any such conflicts, violations, defaults, rights or
Liens that, individually or in the aggregate, would not have a Company Material
Adverse Effect or materially impair the ability of any of the Sellers to
consummate the Stock Purchase and the transactions contemplated hereby.
(b) No shares of Company Common Stock or Company Preferred Stock have been
transferred or sold, directly or indirectly, as part of their initial
distribution or at any time thereafter, in or from within the Netherlands
Antilles to, or for the account of, any individual or legal entity who or which
is a "resident" as defined in Section 1 of the Netherlands Antilles Foreign
Exchange Ordinance (Landsverordening Deviezenverkeer), unless such "resident"
obtained a specific licence to purchase securities or non-resident status under
Netherlands Antilles foreign exchange control regulations. All shares of Company
Common Stock and Company Preferred Stock have been offered in the Netherlands
only in accordance with the Dutch Financial Markets Supervision Act (Wet op het
financieel toezicht).
Section 3.4. Consents and Approvals. Schedule 3.4 sets forth a true and
complete list of each consent, notice, waiver, authorization or approval of or
to any Governmental Entity, or of any other Person, and each declaration to or
filing or registration with any such Governmental Entity, that is required in
connection with the execution and delivery of this Agreement by each of the
Sellers or the performance by each of the Sellers of their respective
obligations hereunder, except where the failure to obtain any such consent,
waiver, authorization or approval or to make such declaration of filing would
not have a Company Material Adverse Effect or materially impair the ability of
any of the Sellers to consummate the Stock Purchase and the transactions
contemplated hereby. All such consents, waivers, notices,
authorizations or approvals or declaration or filings set forth on Schedule 3.4
have been made, delivered or obtained as of the Closing Date. The execution,
delivery and performance of this Agreement by each of the Sellers does not
require the consent or approval of, or filing with, any Governmental Entity or
any other Person, including the filing of a pre-merger notification report under
the Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended (the "HSR
Act").
Section 3.5. Capital Stock and Related Matters. As of the date hereof, the
authorized capital stock of the Company consists of (i) 1,000 shares of Company
Common Stock, of which 1,000 shares are issued and outstanding and (ii) 20,000
shares of Company Preferred Stock, of which 12,200 are issued and outstanding.
The issued and outstanding capital stock of the Company consists exclusively of
the Shares and, upon the consummation of the Stock Purchase, the Buyer will own
all of the issued and outstanding capital stock of the Company. Schedule 3.5
sets forth the names of the beneficial and record owners of the Company Common
Stock and the Company Preferred Stock and the number of shares held by each such
owner. Each of the Sellers has good and marketable title, free and clear of any
Liens, to the Company Common Stock and Company Preferred Stock, as applicable,
set forth on Schedule 3.5. The sale and transfer of the Shares by the Sellers to
the Buyer will vest title to the Shares in the Buyer free and clear of any
Liens, limitations or restrictions of any nature whatsoever. The Company Common
Stock and the Company Preferred Stock has been duly authorized and validly
issued and is fully paid and nonassessable. Except as set forth above or on
Schedule 3.5, no shares of Company Common Stock or Company Preferred Stock are
outstanding; the Company does not have outstanding any securities convertible
into or exchangeable for any shares of capital stock, any rights to subscribe
for or to purchase or any options for the purchase of, or any agreements
providing for the issuance (contingent or otherwise) of, or any calls,
commitments or claims of any other character relating to the issuance of, any
capital stock, or any stock or securities convertible into or exchangeable for
any capital stock; and the Company is not subject to any obligation (contingent
or otherwise) to repurchase or otherwise acquire or retire, or to register under
the Securities Act, any shares of capital stock. The Company does not have
outstanding any bonds, debentures, notes or other obligations the holders of
which have the right to vote (or convertible into or exercisable for securities
having the right to vote) with the stockholders of the Company on any matter.
Section 3.6. Subsidiaries and Equity Investments. The Company has no
Subsidiaries. Except as set forth on Schedule 3.6, the Company does not directly
or indirectly own any interest in any other corporation, partnership, joint
venture or other business association or entity.
Section 3.7. Financial Statements. The Company has heretofore furnished to
Buyer copies of the audited balance sheets of the Company as of November 30,
2004, 2005 and 2006 audited by Ernst & Young LLP, together with the related
audited statements of operations and cash flows for the fiscal years then ended
and the notes thereto, accompanied by the reports thereon of such public
accountants (collectively, the "Financial Statements"). The Financial
Statements, including the notes thereto, (i) were prepared in accordance with
GAAP applied on a consistent basis throughout the periods covered thereby, (ii)
present fairly the financial position, results of operations and cash flows of
the Company as of such dates and for the periods then ended, (iii) are prepared
in accordance with the books of account and records of the Company,
and (iv) can be legitimately reconciled with the financial statements and the
financial records maintained and the accounting methods applied by the Company.
Section 3.8. Absence of Certain Changes or Events.
(a) Except as set forth on Schedule 3.8, since November 30, 2006, there has
not been:
(i) any event that has had or could reasonably be expected to have a
Company Material Adverse Effect;
(ii) any material loss, damage, destruction or other casualty to the assets
or properties of the Company;
(iii) any change in any method of accounting or accounting practice of the
Company;
(iv) any adoption of any new employee benefit plan, policy, program or
arrangement, or amendment of any employee benefit plan in a way that would serve
to materially increase the benefits payable thereunder;
(v) any entry into, or material amendment of, any collective bargaining
agreement or similar labor contract;
(vi) any institution of any pending or threatened action, claim, complaint,
proceeding, suit or investigation which relates to the Stock Purchase and the
transactions contemplated hereby or that has had or could reasonably be expected
to have a Company Material Adverse Effect; or
(vii) any loss of the employment, services or benefits of any supplier or
customer of the Company accounting for $100,000 or more of the Company's
expenses (in the case of suppliers) or revenues (in the case of customers).
(b) Since November 30, 2006, the Company has operated in the ordinary
course of its businesses consistent with past practice and, except as set forth
on Schedule 3.8 hereto, has not:
(i) failed to discharge or satisfy any Lien or pay or satisfy any
obligation or liability (whether absolute, accrued, contingent or otherwise),
other than liabilities being contested in good faith and for which adequate
reserves have been provided and Liens arising in the ordinary course of business
that do not, individually or in the aggregate, interfere with the use,
operation, enjoyment or marketability of any of its assets, properties or
rights;
(ii) mortgaged, pledged or subjected to any Lien any of its assets,
properties or rights, except for Permitted Liens;
(iii) sold or transferred any of its material assets or canceled any debts
or claims or waived any rights, except in the ordinary course of business
consistent with past practice;
(iv) disposed of any patents, trademarks or copyrights or any patent,
trademark or copyright applications;
(v) defaulted on any material obligation having a value in excess of
$100,000;
(vi) entered into any transaction material to its business, except in the
ordinary course of business consistent with past practice;
(vii) written down the value of any inventory or written off as
uncollectible any of its accounts receivable or any portion thereof not
reflected in the November 30, 2006 Balance Sheet;
(viii) granted any increase in the compensation or benefits of its
employees other than increases in accordance with past practice or entered into
any employment or severance agreement or arrangement with any of them other than
severance arrangements entered into in the ordinary course of business providing
for payments of less than $100,000;
(ix) made any capital expenditure in excess of $250,000, or additions to
property, plant and equipment used in its operations other than ordinary repairs
and maintenance;
(x) incurred any obligation or liability for the payment of severance
benefits, except in the ordinary course of business consistent with past
practice;
(xi) declared, paid, or set aside for payment any dividend or other
distribution in respect of shares of its capital stock or other securities, or
redeemed, purchased or otherwise acquired, directly or indirectly, any shares of
its capital stock or other securities, or agreed to do so;
(xii) entered into any agreement that is material to its business to settle
any pending or threatened claim in any jurisdiction; or
(xiii) entered into any agreement or made any commitment to do any of the
foregoing.
Section 3.9. Tax Matters. Except as disclosed on Schedule 3.9, (i) the
Company has filed when due all Tax Returns required by applicable law to be
filed and the Company has paid all Taxes required to be paid in respect of the
periods covered by such Tax Returns; (ii) the information contained in such Tax
Returns is true, complete and accurate; (iii) Taxes of the Company for periods
ending on or before the Closing Date (whether or not shown on any Tax Return),
if required to have been paid, have been paid; (iv) there is no action, suit,
proceeding, investigation, audit or claim now pending against, or with respect
to, the Company in respect of any Tax or assessment, nor, to the knowledge of
the Company, is there any claim for additional Tax or assessment asserted by any
Tax authority; (v) any liability of the Company for Taxes that are not yet due
and payable, or which are being contested in good faith, have been provided for
in the financial statements of the Company; (vi) to the knowledge of the
Company, since January 1, 2000, no claim has been made by any Tax authority in a
jurisdiction where the Company does not currently file a Tax Return that either
it is or may be subject to Tax by such jurisdiction, nor to the knowledge of the
Company, is any such assertion threatened; (vii) there is no outstanding request
for any extension of time within which to pay any Taxes or file any Tax Returns;
(viii) there has been no waiver or extension of any applicable statute of
limitations for the assessment or collection of any Taxes of the Company; (ix)
there are no Liens for Taxes (other than Taxes not yet due and payable) upon any
of the assets of the Company; (x) the Company is not a party to any agreement,
whether written or unwritten, providing for the payment of Taxes, payment for
Tax losses, entitlements to refunds or similar Tax matters; (xi) no ruling with
respect to Taxes (other than a request for determination of the status of a
qualified pension plan) has been requested by or on behalf of the Company; (xii)
the Company has not been a United States real property holding corporation
within the meaning of Section 897(c)(2) of the Code during the applicable period
specified in Section 897(c)(1)(A)(ii) of the Code; (xiii) the Company has
withheld and paid all material Taxes required to be withheld in connection with
any amounts paid or owing to any employee, creditor, independent contractor or
other third party; (xiv) the Company (A) has never been the parent or a member
of an affiliated group filing a consolidated federal income Tax Return or (B)
has any liability for the Taxes of any Person under Reg. section 1.1502-6 (or
any similar provision of state, local, or foreign law), as a transferee or
successor, by contract, or otherwise; (xv) the Company will not be required to
include any item of income in, or exclude any item of deduction from, taxable
income for any taxable period (or portion thereof) ending after the Closing Date
as a result of any: (A) change in method of accounting for a taxable period
ending on or prior to the Closing Date; (B) "closing agreement" as described in
Section 7121 of the Code (or any corresponding or similar provision of state,
local or foreign income Tax law) executed on or prior to the Closing Date; (C)
installment sale or open transaction disposition made on or prior to the Closing
Date; or (D) prepaid amount received on or prior to the Closing Date; (xvi) the
Company has not distributed stock of another Person, or has had its stock
distributed by another Person, in a transaction that was purported or intended
to be governed in whole or in part by Section 355 or Section 361 of the Code;
and (xvii) the Company has not engaged in any reportable transaction within the
meaning of Section 6111 or 6112 of the Code.
Section 3.10. Absence of Undisclosed Liabilities. Except as set forth on
Schedule 3.10, the Company has no indebtedness or liability, absolute or
contingent, of a type required to be included on a balance sheet prepared in
accordance with GAAP, except for liabilities or obligations (i) reflected in the
latest balance sheet included in the Financial Statements (the "Balance Sheet"),
(ii) that were incurred since the date of the Balance Sheet in the ordinary
course of business and consistent with past practice or (iii) that would not
have a Company Material Adverse Effect.
Section 3.11. Owned Real Property.
(a) Schedule 3.11 sets forth a complete and accurate description of all
real property and the improvements located thereon owned by the Company (the
"Owned Real Property").
(b) The Company has good and marketable title in fee simple to the Owned
Real Property and the Owned Real Property is not subject to any Liens (other
than Permitted Liens). Except as set forth on Schedule 3.11, none of the Owned
Real Property is subject to any lease, license or other agreement granting to
any Person or entity any right to the use, occupancy or enjoyment of such
property or any portion thereof.
(c) The Owned Real Property and all improvements on the Owned Real Property
and the operations therein conducted conform to and comply with all applicable
health, fire, environmental, safety, zoning and building laws, ordinances and
administrative regulations, Permits and other regulations (including, without
limitation, the Americans with Disabilities Act) and all covenants, easements,
rights of way, licenses, grants, building or use restrictions, exceptions,
encroachments, reservations or other impediments, except for possible
nonconforming uses or violations that have not and would not have a Company
Material Adverse Effect, and that do not and will not give rise to any penalty,
fine or other liability, and the Company has not received any notice to the
contrary.
(d) The buildings, driveways and all other structures and improvements upon
the Owned Real Property are all within the boundary lines of such property or
have the benefit of valid, perpetual and non-terminable easements and there are
no encroachments thereon that would materially affect the use thereof.
(e) The Company has not received any notice from any utility company or
municipality of any fact or condition which could result in the discontinuation
of presently available or otherwise necessary sewer, water, electric, gas,
telephone or other utilities or services for any of the Owned Real Property. All
public utilities required for the operation of the Owned Real Property and
necessary for the conduct of the business of the Company are properly installed
and operating. The Owned Real Property has adequate rights of access to all
water, sewer, sanitary sewer and storm drain facilities and community services.
(f) The Company does not have any knowledge of, and the Company has not
received any notice of, any pending or contemplated (i) rezoning, condemnation
or other similar proceeding affecting the Owned Real Property; or (ii) special
assessment against the Owned Real Property.
(g) To the knowledge of the Company, each parcel of real property
comprising any part of the Owned Real Property, including without limitation all
buildings and improvements thereon, and the present use, operation or condition
thereof: (i) is assessed as one or more separate tax lots and no part of such
property is part of a tax lot which includes other property which is not a part
of the Owned Real Property; (ii) is not located in an area designated as a flood
zone; and (iii) is not subject to any purchase option, right of first refusal or
first offer or other similar right.
(h) The Owned Real Property and all buildings, structures, improvements and
fixtures located on the Owned Real Property have been maintained in accordance
with normal industry practice, are in good operating condition and repair
(subject to normal wear and tear) and are suitable for the purposes for which
they are currently used.
(i) True and complete copies of all existing policies of title insurance
for all parcels of the Owned Real Property for which such policies exist,
together with all surveys referred to in such title insurance policies or
otherwise in the Company's possession, have been delivered to Buyer and are
identified on Schedule 3.11 hereto.
(j) Access from public streets and provision for parking and
loading/unloading at each parcel of the Owned Real Property conforms to all
applicable legal requirements and is adequate for the conduct of the business of
the Company in the ordinary course of its business.
Section 3.12. Leases.
(a) Schedule 3.12 sets forth a list of all leases, licenses, permits,
subleases and occupancy agreements, together with all amendments and supplements
thereto, with respect to all properties in which the Company has a leasehold
interest, whether as lessor, sublessor, licensor, lessee, sublessee or licensee
(each, a "Lease" and collectively, the "Leases"; the property covered by Leases
under which the Company is a lessee is referred to herein as the "Leased Real
Property"). The Sellers have furnished true, correct and complete copies of all
Leases to Buyer or its representatives. No option has been exercised under any
of such Leases, except options whose exercise has been evidenced by a written
document, a true, complete and accurate copy of which has been delivered to
Buyer or its representatives with the corresponding Lease.
(b) Each Lease is in full force and effect and is valid, binding and
enforceable in accordance with its respective terms and no Lease has been
modified or amended except pursuant to an amendment referred to on Schedule
3.12. Neither the Company nor any other party to a Lease has given to the other
party written notice of or has made a claim with respect to any breach or
default of or with respect to any Lease. The Company is not in default under any
Lease and, to the knowledge of the Company, no other party to a Lease is in
default.
(c) Except as set forth on Schedule 3.12, none of the Leased Real Property
is subject to any sublease, license or other agreement granting to any Person or
entity any right to the use, occupancy or enjoyment of such property or any
portion thereof. The Leased Real Property, all improvements thereon and thereto,
and the operations therein conducted conform to and comply with all applicable
health, fire, insurance, environmental, safety, zoning and building laws,
ordinances and administrative regulations, Permits and other regulations
(including, without limitation, the Americans with Disabilities Act) and all
covenants, easements, rights of way, licenses, grants, building or use
restrictions, exceptions, encroachments, reservations or other impediments,
except for possible nonconforming uses or violations that have not and would not
have a Company Material Adverse Effect, and that do not and will not give rise
to any penalty, fine or other liability, and the Company has not received any
notice to the contrary.
(d) The Leased Real Property has been maintained in accordance with normal
industry practice, is in good operating condition and repair (subject to normal
wear and tear) and is suitable for the purposes for which it is currently used.
(e) There are no guaranties (from the Company or from other Persons) in
favor of the lessors of any of the Leased Real Property.
(f) The Company has not sold, assigned, transferred, pledged or encumbered
all or any part of its leasehold interests in the Leased Real Property.
(g) Except as set forth on Schedule 3.12, there is no pending or, to the
knowledge of the Company, threatened: (i) condemnation or other similar
proceeding affecting any part of the Leased Real Property by any governmental
authority; or (ii) special assessment against any part of the Leased Real
Property.
Section 3.13. Assets of the Company.
(a) The assets, properties and rights of the Company (i) owned as of
November 30, 2006 are set forth in the book depreciation workpapers as of
November 30, 2006 and (ii) acquired since November 30, 2006 and on or prior to
January 31, 2007 are listed on the capital expense rollforward furnished to
Buyer ((i) and (ii) being referred to collectively as the "Fixed Asset
Workpapers")) constitute all of the assets, properties and rights (including,
without limitation, the Owned Real Property) which are used in the operation of
the businesses of the Company immediately prior to Closing and which are
necessary or required for the conduct of such businesses as currently conducted.
There are no material assets, properties, rights or interests of any kind or
nature that the Company has been using, holding or operating in its businesses
prior to the Closing that will not be used, held or owned by the Company
immediately following the Closing.
(b) The Company has good and marketable title, free and clear of any Liens,
to, or a valid leasehold interest under enforceable leases in, all of the
assets, properties and rights of the Company reflected in the Company's
Financial Statements, except for Permitted Liens.
(c) The Equipment and Machinery is in good operating condition and repair
(normal wear and tear excepted).
Section 3.14. Intellectual Property; Intangible Assets. (a) Schedule 3.14
sets forth a complete and correct listing of all applications, registrations and
patents and all Intellectual Property material to the business of the Company
included in the Intellectual Property. The Company owns, or has a valid license
or otherwise has the right to use, in all jurisdictions in which it carries on
business, all Intellectual Property without violating or conflicting with the
rights of others. Except as set forth on Schedule 3.14(a), all Intellectual
Property is owned by the Company, free and clear of all Liens, except for
Permitted Liens. There has not been communicated to the Company the threat of
any claim that the holder of such Intellectual Property is in violation or
infringement of any service mark, patent, trademark, trade name, trademark or
trade name registration, copyright or copyright registration of any other
Person. To the Company's knowledge, the Stock Purchase and the consummation of
the transactions contemplated by this Agreement will not prohibit the Company
from using any of the Intellectual Property in a manner substantially similar to
its current use of such Intellectual Property in its businesses.
(b) Schedule 3.14(b) sets forth a true and complete list of all of the
Intangible Assets and a summary description of each such item. There is no
restriction affecting the use of any of the Intangible Assets, and no license
has been granted with respect thereto. To the knowledge of the Company, each of
the Intangible Assets is valid and in good standing, is not currently being
challenged, is not involved in any pending or threatened administrative or
judicial proceeding, and does not conflict with any rights of any other Person.
The Company's rights in and to the Intangible Assets are sufficient and adequate
in all material respects to permit the conduct of the businesses of the Company
as now conducted and none of the products or operations of the businesses of the
Company involves any infringement of any proprietary right of any other Person.
Section 3.15. Licenses and Permits. Schedule 3.15 sets forth a true and
complete list of all licenses, permits, franchises, authorizations and approvals
issued or granted to the Company by any Governmental Entity (the "Licenses and
Permits"), and all pending applications therefor. Each License and Permit has
been duly obtained, is valid and in full force and effect, and is not subject to
any pending or, to the knowledge of the Company, threatened administrative or
judicial proceeding to revoke, cancel, suspend or declare such License and
Permit invalid in any respect. The Licenses and Permits are sufficient and
adequate in all material respects to permit the continued lawful conduct of the
businesses of the Company in the manner now conducted and none of the operations
of the Company are being conducted in a manner that violates any of the terms or
conditions under which any License and Permit was granted. The Stock Purchase
and the consummation of the transactions contemplated by this Agreement will not
result in the termination or suspension of any License or Permit.
Section 3.16. Compliance with Law. The operations of the businesses of the
Company have been conducted in accordance with all applicable laws, regulations,
orders and other requirements of all courts and other governmental or regulatory
authorities having jurisdiction over the Company and its assets, properties and
operations, except where the failure to so comply would not have a Company
Material Adverse Effect. The Company has not received notice of any violation of
any such law, regulation, order or other legal requirement, and is not subject
to, or in default with respect to, any order, writ, judgment, award, injunction
or decree of any national, state or local court or governmental or regulatory
authority or arbitrator, domestic or foreign, applicable to the Company or any
of its assets, properties or operations except for violations or defaults that
would not have a Company Material Adverse Effect. This Section 3.16 does not
apply to laws, regulations, order and other requirements relating to tax matters
(which are covered by Section 3.9 hereof) employee plans (which are covered by
Section 3.20 hereof), labor matters (which are covered by Section 3.23 hereof)
and environmental matters (which are covered by Section 3.24 hereof).
Section 3.17. Litigation. Except as set forth on Schedule 3.17, there are
no claims, actions, suits, proceedings, labor disputes or investigations pending
or, to the knowledge of the Company, threatened, before any national, state or
local court or governmental or regulatory authority, domestic or foreign, or
before any arbitrator of any nature, brought by or against the Company or, to
the knowledge of the Company, any of its officers, directors, employees, agents
or Affiliates involving, affecting or relating to the Company, the assets,
properties or rights of the Company or the Stock Purchase and the transactions
contemplated by this Agreement, nor is any basis known to the Company for any
such action, suit, proceeding or
investigation, except for claims, actions, suits, proceedings or investigations
that would not have a Company Material Adverse Effect. Schedule 3.17 sets forth
a list and a summary description of all such pending actions, suits,
proceedings, disputes or investigations. Neither the Company nor its assets,
properties or rights are subject to any order, writ, judgment, award, injunction
or decree of any national, state or local court or governmental or regulatory
authority or arbitrator, domestic or foreign, that affects or might affect the
businesses, assets, properties or rights of the Company, except for orders,
writs, judgments, awards, injunctions or decrees that would not have a Company
Material Adverse Effect, or that would or might materially interfere with the
Stock Purchase and the transactions contemplated by this Agreement.
Section 3.18. Contracts.
(a) Schedule 3.18(a) sets forth a complete and correct list and, if such
contract is not in writing, a summary description of all Contracts (as in effect
on the date hereof) involving more than $50,000 per year. To the extent that the
items listed in Schedules 3.4, 3.8, 3.10, 3.11, 3.12, 3.14 and 3.15 may be
considered Contracts, such items need not be included on the list set forth on
Schedule 3.18.
(b) Each Contract is valid, binding and enforceable against the Company in
accordance with its terms, except that the enforceability of this Agreement is
subject to applicable bankruptcy, insolvency or other similar laws relating to
or affecting the enforcement of creditors' rights generally and to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), and is in full force and effect on the date
hereof. The Company is not in default or delinquent in performance, status or
any other respect (claimed or actual) in connection with, any Contract, and no
event has occurred which, with due notice or lapse of time or both, would
constitute such a default. To the knowledge of the Company, no other party to
any Contract is in default in respect thereof, and no event has occurred which,
with due notice or lapse of time or both, would constitute such a default,
except for possible defaults which would not have a material adverse effect on
the Company, its assets, properties or financial condition or its business as
now conducted. TBG or the Company has delivered to Buyer or its representatives
true and complete originals or copies of all the Contracts.
(c) The Company is not subject to, by contract or otherwise, any
non-compete obligation.
(d) Schedule 3.18(d) sets forth a true and complete list of all outstanding
Indebtedness of the Company as of the Closing Date, and includes a description
of all documents and agreements which set forth the terms of such Indebtedness,
the amount of the balance owing as of the Closing Date, the applicable interest
rate in effect as of the Closing Date, and a listing of all collateral securing
such Indebtedness (if any), and a description of any applicable prepayment
penalties or make-whole amounts that would be payable if such Indebtedness were
to be paid in full as of the Closing Date.
Section 3.19. Inventories. The inventories of the Company (including
tooling, spare parts and supplies) reflected on the November 30, 2006 Balance
Sheet, or acquired by the Company after the date thereof and prior to the
Closing Date, are carried at not more than the
lower of cost or market, and the Company has no reason to believe that such
inventories include any obsolete inventory or surplus inventory for which
adequate reserves have not been established on the Financial Statements. As used
herein, "obsolete inventory" is inventory which, at November 30, 2006, was not
usable or salable in the lawful and ordinary course of business of the Company
as now conducted because of legal restrictions, failure to meet specifications,
loss of market, damage, physical deterioration or for any other cause, in each
case net of reserves provided therefor on the November 30, 2006 Balance Sheet;
and "surplus inventory" is inventory that, at November 30, 2006, exceeded known
or anticipated requirements in the reasonable business judgment of the Company.
Section 3.20. Employee Plans.
(a) Schedule 3.20(a) sets forth all material pension, savings, retirement,
health, insurance, severance and other employee benefit or fringe benefit plans
maintained or sponsored by the Company and any trade or business (whether or not
incorporated) under common control with the Company within the meaning of
Sections 414(b), (c), (m) or (o) of the Code (the "Controlled Group"), or with
respect to which the Company has any responsibility or liability (collectively
referred to herein as the "Plans"). With respect to the Plans, the Company and
any member of the Controlled Group have delivered to Buyer or its
representatives current copies of: (i) the Plan documents, and, where
applicable, related trust agreements, and any related material agreements which
are in writing; (ii) summary Plan descriptions; (iii) the most recent Internal
Revenue Service determination letter relating to each Plan for which a letter of
determination was obtained; and (iv) to the extent required to be filed, the
most recent Annual Report (Form 5500 Series and accompanying schedules of each
Plan and required financial statements) as filed with the Internal Revenue
Service; and (v) audited financial statements, if any.
(b) In all material respects, each Plan conforms to, and its administration
is in substantial compliance with, all applicable requirements of law,
including, without limitation, ERISA and the Code and all of the Plans are in
full force and effect as written, and all premiums, contributions and other
payments required to be made by the Company or any member of the Controlled
Group under the terms of any Plan have been made or accrued.
(c) Each Plan maintained by the Company or any member of the Controlled
Group which provides benefits to or otherwise covers employees of the Company
that is intended to be qualified under Section 401(a) of the Code and each trust
maintained pursuant thereto has been determined to be exempt from Federal
taxation by the Internal Revenue Service and has a favorable determination
letter from the Internal Revenue Service with respect to each such Plan, and, to
the knowledge of the Company, nothing has occurred since the date of such letter
which could adversely impact such qualification and tax exemption. No Plan
maintained by the Company or any member of the Controlled Group which provides
benefits to or otherwise covers employees of the Company that is an employee
welfare benefit plan as defined in Section 3(1) of ERISA (the "Welfare Plan") is
funded through a voluntary employees' beneficiary association as defined in
Section 501(c)(9) of the Code.
(d) Except as set forth in Schedule 3.20(d) neither the Company nor any
member of the Controlled Group has maintained, contributed to or incurred any
liability with
respect to any Plan subject to Title IV of ERISA or Section 412 of the Code (a
"Pension Plan") within the six-year period ending on the date of this Agreement.
There is no "amount of unfunded benefit liabilities," as defined in Section
4001(a)(18) of ERISA, in any of the Pension Plans. Neither the Company nor any
member of the Controlled Group has incurred any material liability under Section
4062 of ERISA to the Pension Benefit Guaranty Corporation or to a trustee
appointed under Section 4042 of ERISA which remains unsatisfied. Neither the
Company nor any member of the Controlled Group has engaged in any transaction
described in Section 4069 of ERISA. Exhibit A to Schedule 3.20(d) fairly and
accurately shows the Company's estimated proportionate amount of overfunded
pension liabilities under the TBG Pension Plan as of November 30, 2006, based on
the assumptions stated therein.
(e) There are no multiemployer plans (as defined in Subsection 3(37) of
ERISA) ("Multiemployer Plans") to which the Company or any other member of the
Controlled Group is, or has been within the six-year period ending on the date
of this Agreement, required to make a contribution or other payment. Neither the
Company nor any member of the Controlled Group has incurred any withdrawal
liability on account of a complete or partial withdrawal from any material
Multiemployer Plan, nor has any of them incurred any liability due to the
termination or reorganization of such a Multiemployer Plan, in either case which
remains unsatisfied.
(f) There has been no non-exempt prohibited transaction (within the meaning
of Section 4975 of the Code or Part 4 of Subtitle B of Title I of ERISA) with
respect to any Plan or penalty incurred with respect to any Plan under Section
502(i) of ERISA.
(g) Except as set forth on Schedule 3.20(g), the Company does not maintain
any Plan providing post-retirement benefits other than Plans qualified under
Section 401(a) of the Code ("Post-Retirement Benefits"). The names of all
Company retirees (including eligible dependents) who are eligible for
Post-Retirement Benefits are set forth on Schedule 3.20(g) ("Company Retirees");
for purposes of this Section 3.20(g), Company Retirees includes all eligible
employees and their dependants of Detroit Gasket. Exhibit A to Schedule 3.20(g)
fairly and accurately shows the Company's estimated aggregate unfunded accrued
Post-Retirement Benefit obligations with respect to active Company employees and
Company Retirees as of November 30, 2006, based on the assumptions stated
therein. The Company is not liable for Post-Retirement Benefits under any plan
not maintained by the Company. The Company has complied in all material respects
with the requirements of Section 4980B of the Code and Sections 601 et seq. of
ERISA relating to continuation coverage for group health plans.
(h) There are no pending actions, claims or lawsuits which have been
asserted, instituted or, to the knowledge of the Company, threatened, against
the Plans, the assets of any of the trusts under such Plans or the Plan sponsor
or the Plan administrator, or, to the knowledge of the Company, against any
fiduciary of the Plans with respect to the operation of such Plans (other than
routine benefit claims).
(i) There has been no mass layoff or plant closing as defined by the Worker
Adjustment and Retraining Notification Act or any similar state or local "plant
closing" law with respect to the employees of the Company which resulted in any
liability of the Company which remains unsatisfied.
(j) To the knowledge of the Company, the execution of, and performance of
the transactions contemplated in, this Agreement will not, either alone or upon
the occurrence of events occurring subsequent to the date hereof and up to and
including the Closing Date, result in (i) except as set forth on Schedule
3.20(j), 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 or (ii) the Company's
failing to be able to deduct for Federal income tax purposes any items on
account of Section 280G of the Code.
Section 3.21. Insurance. Schedule 3.21 lists the fidelity bonds and the
aggregate coverage amount and type and generally applicable deductibles of all
policies of title, liability, fire, casualty, business interruption, workers'
compensation and other forms of insurance insuring the Company and its assets,
properties and operations. The Company has furnished a true, complete and
accurate copy of all such policies and bonds to Buyer or its representatives.
Except as set forth on Schedule 3.21, all such policies and bonds are in full
force and effect. The Company is not in default in any material respect under
any provisions of any such policy of insurance nor has the Company received
notice of cancellation of any such insurance. There is no material claim by the
Company pending under any of such policies or bonds as to which coverage has
been questioned, denied or disputed by the underwriters of such policies or
bonds. The insurance maintained by the Company in connection with its business
is adequate in accordance with industry standards and the requirements of any
applicable Leases.
Section 3.22. Transactions with Directors, Officers and Affiliates. Except
as set forth on Schedule 3.22, the Company is not a party to any agreement or
arrangement with any of the directors, officers or stockholders of the Company
or any Affiliate or family member of any of the foregoing under which they: (i)
lease any real or personal property (either to or from such Person), (ii)
license technology (either to or from such Person), (iii) are obligated to
purchase any tangible or intangible asset from or sell such asset to such
Person, (iv) purchase products or services from such Person, (v) pay or receive
commissions, rebates or other payments or (vi) provide or receive any other
material benefit. The Company does not employ as an employee or engage as a
consultant any family member of any of the directors, officers or stockholders
of the Company. Except as set forth on Schedule 3.22, to the knowledge of the
Company, during the past three years none of the directors, officers or
stockholders of the Company, or any family member of any of such Persons, has
been a director or officer of, or has had any direct or indirect interest in,
any Person which during such period has been a supplier, customer or sales agent
of the Company or has competed with or been engaged in any business of the kind
being conducted by the Company. No Affiliate of the Company owns or has any
rights in or to any of the assets, properties or rights used by the Company in
the ordinary course of its businesses.
Section 3.23. Labor Matters.
(a) Except as set forth on Schedule 3.23(a): (i) the Company is not a party
to any outstanding employment agreements or contracts with officers or employees
of the Company that are not terminable at will, or that provide for the payment
of any bonus or commission; (ii) the Company is not a party to any agreement,
policy or practice that requires it to pay termination or severance pay to
salaried, non-exempt or hourly employees of the Company (other than as required
by law); (iii) the Company is not a party to any collective bargaining
agreement or other labor union contract applicable to employees of the Company
nor does the Company know of any activities and proceedings of any labor union
to organize any such employees; and (iv) the Company is not a party to any
material consulting agreements.
(b) Except as set forth on Schedule 3.23(b): (i) the Company is in
compliance in all material respects with all applicable laws relating to
employment and employment practices, wages, hours, and terms and conditions of
employment; (ii) there is no unfair labor practice charge or complaint pending
before the National Labor Relations Board ("NLRB") relating to the Company;
(iii) there is no labor strike, material slowdown or material work stoppage or
lockout pending or, to the knowledge of the Company, threatened against or
affecting the Company, and the Company has not experienced any strike, material
slowdown or material work stoppage, lockout or other collective labor action by
or with respect to employees of the Company since 2002; (iv) there is no
representation claim or petition pending before the NLRB or any similar foreign
agency and, to the knowledge of the Company, no question concerning
representation exists relating to the employees of the Company; (v) there are no
charges with respect to or relating to the Company pending before the Equal
Employment Opportunity Commission or any state, local or foreign agency
responsible for the prevention of unlawful employment practices; and (vi) the
Company has received no notice from any national, state, local or foreign agency
responsible for the enforcement of labor or employment laws of an intention to
conduct an investigation of the Company and no such investigation is in
progress.
(c) Schedule 3.23(c) sets forth a true and complete list dated as of
December 31, 2006 containing the name, position, starting employment date,
current annual salary and bonus and commissions in 2006 of each current employee
of the Company.
Section 3.24. Environmental Matters.
(a) Except as set forth on Schedule 3.24(a), each of the Company, the
Affiliates and their respective Subsidiaries and all products manufactured or
distributed by or on behalf of any of them, are and have been, in material
compliance with all applicable Environmental Laws and all licenses, permits,
registrations, approvals and other authorizations required thereunder
("Environmental Permits").
(b) None of the Company, the Affiliates and their respective Subsidiaries
reasonably expects that material expenditures will be necessary for each of them
to comply with Environmental Laws currently in effect or proposed.
(c) Each of the Company, the Affiliates and their respective Subsidiaries
has obtained, or has made timely and complete application for or for renewal of,
all Environmental Permits required under Environmental Laws; none of the
Environmental Permits is subject to any pending or threatened administrative or
judicial proceeding to revoke, cancel, suspend or declare such Environmental
Permit invalid in any respect; no additional Environmental Permits or
modifications to Environmental Permits are reasonably expected to be required;
and no Environmental Permit will in any way be affected or modified by, or
terminate or lapse by reason of, the transactions contemplated by this
Agreement;
(d) No substance identified or regulated pursuant to any Environmental Law,
including, without limitation, any hazardous substance, hazardous waste, toxic
substance, pollutant, contaminant, or petroleum or any fraction thereof, and no
bacteria, mold, fungi or toxic growth (each a "Hazardous Substance"), is located
on, at, beneath, near, within or has migrated from any real property currently
or formerly owned, operated or leased by any of the Company, the Affiliates and
their respective Subsidiaries or predecessors in any manner that will give rise
to liability under any Environmental Law or to a need to undertake any action to
respond to such Hazardous Substance.
(e) Except as set forth on Schedule 3.24(e), none of the Owned Real
Property, Leased Real Property and any property previously owned, leased or
operated by the Company, the Affiliates or any of their respective Subsidiaries
or predecessors, or any of the improvements contained thereon, contains or
formerly contained any underground or aboveground storage tank, surface
impoundment, landfill, land disposal area, polychlorinated biphenyls, asbestos,
asbestos-containing material or urea formaldehyde insulation or has been the
subject of any environmental investigation or response pursuant to any
Environmental Law.
(f) Except as set forth on Schedule 3.24(f), none of the Company, its
Affiliates or their respective Subsidiaries or predecessors has any actual or
contingent liability arising from any treatment, transport or disposal or
arrangement for the treatment, transport or disposal of any Hazardous Substance
at or to any location.
(g) Except as set forth on Schedule 3.24(g), none of the Company, its
Affiliates and their respective Subsidiaries has received notice of, and there
is no pending or, to the knowledge of the Company, threatened claim, complaint,
notice of violation or potential liability, request for information,
investigation, proceeding, order, decree or lawsuit relating to any Hazardous
Substance, including, without limitation, exposure thereto, or pursuant to any
Environmental Law relating in any way to any of them ("Environmental Claim")
nor, to the best of the Company's knowledge, is there any basis for any such
Environmental Claim.
(h) None of the Owned Real Property or Leased Real Property is a "facility"
within the meaning of Mich. Comp. Laws ss. 324.20101 et seq., or is subject to
any current or threatened deed restriction, use restriction, institutional or
engineering control or Lien pursuant to Environmental Laws.
(i) None of the Company, the Affiliates and their respective Subsidiaries
is subject to any order, writ, judgment, award, injunction or decree of any
Governmental Authority or arbitrator, domestic or foreign, or to any private
agreement relating to any Hazardous Substance or any Environmental Law.
(j) TBG or the Company has provided the Buyer with true and complete copies
of all (i) Environmental Permits, (ii) notices, demands, claims or actions
relating to the Company, the Affiliates or any of their respective Subsidiaries
or the Owned Real Property or the Leased Real Property pursuant to Environmental
Law, and (iii) reports, data, or other documentation related to all
investigations, audits, or assessments of environmental conditions at any of the
Owned Real Property or Leased Real Property or compliance of the Company, the
Affiliates and any of their respective Subsidiaries with any Environmental Law.
(k) None of the Company, its Affiliates or any of their respective
Subsidiaries or predecessors has manufactured, used, processed, distributed,
fabricated, incorporated into any other material, or sold any
asbestos-containing material, silica, or manganese-containing welding rods at
any time and there is no pending or, to the best of Company's knowledge,
threatened claim relating to asbestos-containing materials, silica, or
manganese-containing welding rods pending or threatened against any of them.
(l) Without limiting any other provision of this Section 3.24, except as
set forth on Schedule 3.24(l), no trichloroethene, tetrachloroethene, or other
chlorinated solvent, or hexavalent chromium, trivalent chromium or other type of
chromium is or has been used, stored, or contained in any raw materials, at the
Owned Real Property or the Leased Real Property.
(m) None of the matters set forth on Schedule 3.24 would reasonably be
expected to result in a Material Adverse Effect.
Section 3.25. Products Liability. (a) Except as set forth on Schedule 3.25,
(i) there is no notice, demand, claim, action, suit, inquiry, hearing,
proceeding, notice of violation or investigation of a civil, criminal or
administrative nature before any court or governmental or other regulatory or
administrative agency, commission or authority, domestic or foreign, against or
involving any products manufactured, produced, distributed or sold by or on
behalf of the Company (including any parts or components) (collectively,
"Products"), or class of claims or lawsuits involving the same or similar
Product which is pending or threatened, resulting from an alleged defect in
design, manufacture, materials or workmanship of any Product, or any alleged
failure to warn, or from any breach of implied warranties or representations
(collectively, "Product Liability Lawsuits"); (ii) there has not been any
Occurrence (as hereinafter defined); and (iii) there has not been, within the
past 12 months, nor is there under consideration or investigation by the
Company, any Product rework or retrofit (collectively, "Retrofits") conducted by
or on behalf of the Company.
(b) For purposes of this Section 3.25, the term "Occurrence" shall mean any
accident, happening or event which takes place at any time which is caused or
allegedly caused by any alleged hazard or alleged defect in manufacture, design,
materials or workmanship including, without limitation, any alleged failure to
warn or any breach of express or implied warranties or representations with
respect to, or any such accident, happening or event otherwise involving any
Product that can reasonably be expected to result in a claim or loss.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer hereby represents and warrants to the Sellers as follows:
Section 4.1. Corporate Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and has all requisite corporate power and authority to own or lease its
properties and assets and to conduct its businesses as now conducted. Copies of
the Certificate of Incorporation and By-Laws of the
Buyer, with all amendments thereto to the date hereof, have been furnished to
TBG or its representatives, and such copies are accurate and complete.
Section 4.2. Authorization and Validity of Agreement. Buyer has all
requisite corporate power and authority to enter into this Agreement and to
carry out its obligations hereunder. The execution and delivery by Buyer of this
Agreement and the performance of Buyer's obligations hereunder have been duly
authorized by all necessary corporate action by the Board of Directors of Buyer,
and no other corporate proceedings on the part of Buyer are necessary to
authorize such execution, delivery and performance. This Agreement has been duly
executed by Buyer and, assuming the due authorization, execution and delivery of
this Agreement by the Buyer, constitutes Buyer's valid and binding obligation,
enforceable against Buyer in accordance with its terms, except that the
enforceability of this Agreement is subject to applicable bankruptcy, insolvency
or other similar laws relating to or affecting the enforcement of creditors'
rights generally and to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
Section 4.3. No Conflict or Violation. The execution, delivery and
performance by Buyer of this Agreement do not and the consummation by Buyer of
the Stock Purchase and the other transactions contemplated hereby will not (i)
violate or conflict with any provision of the Certificate of Incorporation or
By-Laws of Buyer, (ii) violate or result in a breach of or constitute (with due
notice or lapse of time or both) a default under any contract, lease, loan
agreement, mortgage, security agreement, trust indenture or other agreement or
instrument to which Buyer is a party or by which it is bound or to which any of
its properties or assets is subject, (iii) result in the creation or imposition
of any Lien upon any of the assets, properties or rights of Buyer, or (iv)
result in the cancellation, modification, revocation or suspension of any
license or permit material to the business of the Buyer, other than, in case of
(ii), (iii) and (iv) above, any such conflicts, violations, defaults, rights or
Liens that, individually or in the aggregate, would not have a material adverse
effect on the business of Buyer and its Subsidiaries considered as one
enterprise, materially impair the ability of Buyer to perform its obligations
thereunder or prevent the consummation of any of the transactions contemplated
hereby.
Section 4.4. Consents and Approvals. The execution, delivery and
performance of this Agreement by Buyer does not require the consent or approval
of, or filing with, any Governmental Entity or any other Person, including the
filing of a pre-merger notification report under the HSR Act, except for such
consents, approvals and filings, of which the failure to obtain or make would
not, individually or in the aggregate, have a material adverse effect on the
business of Buyer and its Subsidiaries considered as one enterprise or have a
material adverse effect on the ability of Buyer to consummate the transactions
contemplated hereby.
Section 4.5. Investment Intent. Buyer is acquiring the Shares for its own
account, for the purpose of investment only and not with a view to, or for sale
in connection with, any distribution thereof in violation of applicable
securities laws.
Section 4.6. Investment Awareness. Buyer understands that the shares of
Company Common Stock and Company Preferred Stock have not been registered under
the Securities Act and that Buyer will not be permitted to sell or otherwise
transfer such shares
unless they are registered under the Securities Act or unless an exemption from
such registration is available.
ARTICLE V.
COVENANTS OF THE SELLERS.
Section 5.1. Necessary Consents and Approvals. (a) Each of the Sellers
shall (i) use commercially reasonable efforts to obtain and/or deliver all
necessary consents, waivers, authorizations, notifications and approvals, if
any, (each of which shall be in a form that is reasonably acceptable to Buyer)
of all Governmental Entities, and of all other Persons, required in connection
with the execution, delivery and performance by each of the Sellers of this
Agreement, and (ii) from and after the Closing Date, as requested by the Buyer,
diligently assist and cooperate with Buyer in preparing and filing all documents
(if any) to be submitted by Buyer to any Governmental Entities, in connection
with the transactions contemplated by this Agreement and in obtaining any
governmental consents, waivers, authorizations or approvals, if any, which Buyer
may seek or require in connection with such transactions (which assistance and
cooperation shall include, without limitation, timely furnishing to Buyer all
information concerning the Company that counsel to Buyer reasonably determines
is required to be included in such documents or could reasonably be expected to
be helpful in obtaining any such required consent, waiver, authorization or
approval).
(b) On or after the Closing Date, if the Buyer requests in writing the
assistance or cooperation of either of the Sellers pursuant to Section 5.1(a),
the Buyer shall reimburse such Seller for reasonable out-of-pocket fees and
expenses (including reasonable legal fees and expenses) incurred by such Seller,
which amount shall not exceed $10,000 without the prior written approval of the
Buyer, in connection with providing the assistance or cooperation specified and
requested by the Buyer pursuant to Section 5.1(a). Notwithstanding the
foregoing, the Buyer shall not be responsible for any fees or expenses of either
Seller that result from an investigation or suit that involves either Seller or
relates to either Seller's ownership of the Company.
ARTICLE VI.
COVENANTS OF THE BUYER.
Section 6.1. Consents and Approvals. Buyer shall use commercially
reasonable efforts to obtain all consents and approvals of third parties
required to be obtained by it to effect the Stock Purchase and the transactions
contemplated by this Agreement.
Section 6.2. Benefits to Company Employees.
(a) For any employee whose employment is terminated by the Buyer without
cause within six months of the Closing Date, the Buyer shall cause the Company
to pay to such employee severance benefits at least equal to the severance
benefits that the employee would have received under the existing severance
policy of the Company attached hereto as Schedule 6.2. Nothing in this Section
6.2 shall be construed as creating any employment contract between
any employee of the Company and Buyer or the Company or to diminish or restrict
in any way Buyer's or the Company's right to terminate any employee.
(b) To the extent that service is relevant for purposes of eligibility,
benefit accrual and vesting (and, in order to calculate the amount of any
vacation, sick days, severance and similar benefits) under any benefit plan or
bonus plan maintained by Buyer or the Company, in which employees of the
Company, following the Closing Date, become entitled to participate (other than
benefits accrued under any defined benefit pension plan maintained by Buyer or
the Company), Buyer shall or cause the Company to credit such employees for
service earned on and prior to the Closing Date with the Company or any of its
Affiliates and with service otherwise recognized by the Company or any of its
Affiliates for such purposes under the applicable plan.
(c) Following the Closing Date, Buyer shall, or shall cause the Company to,
waive limitations on eligibility, enrollment and benefits relating to any
preexisting medical conditions of the employees of the Company and their
eligible dependents to the extent waived or otherwise satisfied under existing
Plans. Following the Closing Date, Buyer shall recognize, and shall cause the
Company and its Affiliates to also recognize, for purposes of annual deductible,
co-pays and out of pocket limits under its health and dental benefit plans,
deductible, co-pays and out of pocket expenses paid by employees of the Company
and their respective dependents under health and dental employee Plans in the
calendar year in which the Closing Date occurs to the extent the employees
participate in any such Buyer or Company benefit plans in such same calendar
year.
(d) As of the Closing Date, TBG shall cause the Company to withdraw from
and cease to participate in the TBG Retirement Income Plan (the "TBG Pension
Plan"). As soon as reasonably practicable after and effective as of the Closing
Date, Buyer will cause the Company to adopt or become a participating employer
in a qualified defined benefit plan (the "Company Pension Plan") for the benefit
of the Company's current and former employees and former Detroit Gasket
employees who are participants in, or beneficiaries of, the TBG Pension Plan as
of the Closing Date. The terms of the Company Pension Plan shall expressly
provide that (i) current and former Company employees who were participants in,
or beneficiaries of, the TBG Pension Plan immediately prior to the Closing Date
shall become participants in, or beneficiaries of (as the case may be), the
Company Pension Plan as of the Closing Date and (ii) all periods of prior
employment with the Company and its Affiliates which is recognized under the TBG
Pension Plan for eligibility, vesting, benefit accrual and early retirement
subsidies shall be credited under the Company Pension Plan in respect of such
employees. Buyer agrees to provide that the accrued benefits of current and
former employees of the Company under the Company's Pension Plan shall be no
less than the accrued benefits of such current and former employees of the
Company under the TBG Pension Plan as of the Closing Date. Accrued benefits of
such current and former employees of the Company that are vested under the TBG
Pension Plan as of the Closing Date shall be nonforfeitable under the Company
Pension Plan. After the receipt by TBG of written notice from the Company of the
adoption and/or existence of the Company Pension Plan and the trust thereunder
(which notice shall be provided within 180 days of the Closing Date), TBG or one
of its Affiliates will direct the trustee of the TBG Pension Plan to transfer in
cash or in kind, as agreed to by Buyer and TBG, from the trust under the TBG
Pension Plan to the trust under the Company Pension Plan, an amount determined
by the certified actuary of the TBG Pension Plan (the "TBG Actuary") in
accordance
with Section 414(l) of the Code. In the event that the TBG Pension Plan is
overfunded, as determined in accordance with Section 414(l) of the Code, the
amount will be equal to the product of (i) a fraction, the numerator of which is
the present value of accumulated benefits ("PVAB"), determined as of the Closing
Date in accordance with Section 414(l) of the Code, with respect to the
Company's current and former employees under the TBG Pension Plan, and the
denominator of which is the PVAB, determined as of the Closing Date in
accordance with Section 414(l) of the Code, with respect to all current and
former employees of all TBG Affiliates (including the Company) under the TBG
Pension Plan, multiplied by (ii) the fair market value of the assets of the TBG
Pension Plan as of the Closing Date, as determined by the TBG Actuary; provided
that in no event shall the amount transferred be less than the amount required
under Sections 414(d) and 414(l) of the Code (the "Transfer Amount"). Anything
herein to the contrary notwithstanding, the Transfer Amount shall be (i) reduced
by any payments that are made by the TBG Pension Plan after the Closing Date and
prior to the transfer date with respect to the Company's current and former
employees, including any administrative expenses properly allocable to such
employees, and (ii) credited (or debited) with the pro rata share of the actual
investment experience on the assets of the TBG Pension Plan allocable to the
Transfer Amount from the Closing Date until the transfer date. The Transfer
Amount determination by the TBG Actuary shall be subject to review by an actuary
selected by Buyer (the "Buyer Actuary") with all documentation reasonably
necessary for the Buyer Actuary to verify the Transfer Amount; provided,
however, that if the Buyer Actuary certifies in writing, within 60 days of
receiving such supporting documentation, that the Buyer Actuary disagrees with
the TBG Actuary's determination of the Transfer Amount, then the chief financial
officers of Buyer and TBG shall negotiate, in good faith, to resolve such
dispute, and if unable to come to an agreement, Buyer and TBG shall agree upon
and engage an impartial actuary, who shall be entitled to the privileges and
immunities of an arbitrator, to resolve any disagreement and whose determination
as to any such disagreement (if not contrary to ERISA) shall be conclusive,
final and binding. Buyer and TBG shall share equally all costs and fees of such
impartial actuary. At the time the Transfer Amount is paid to the trust under
the Company Pension Plan, the Company and the Company Pension Plan shall assume
all liabilities for all accrued benefits under the TBG Pension Plan in respect
of current and former Company employees and each of TBG, its Affiliates and the
TBG Pension Plan shall be relieved of all liabilities for such benefits.
Notwithstanding anything contained herein to the contrary, no such transfer of
assets and liabilities shall take place until the 31st day following the filing
of any required Form 5310-A in connection therewith and appropriate notification
of the transfer of assets and liabilities has been made to the PBGC.
(e) Following the Closing Date, the Company will retain its existing
obligation (including, without limitation, as required by Section 420 of the
Code) to provide Post-Retirement Benefits to active Company employees and
Company Retirees under the TBG Retiree Medical Plan (the "Retiree Medical
Plan"), subject to the Company's rights to amend, modify or terminate such
Post-Retirement Benefits under the Retiree Medical Plan. Any provision of the
Retiree Medical Plan to the contrary notwithstanding, after the Closing, the
Company shall continue to be a "Participating Employer" under the Retiree
Medical Plan until such time as the Company or Buyer establishes a comparable
plan for Company employees and Company Retirees, which the Company or Buyer
shall establish within 180 days following the Closing. The establishment of such
plan shall not affect the rights of the Buyer and/or the Company to amend,
modify or terminate Post-Retirement Benefits at any time.
(f) Nothing contained in this Section 6.2, express or implied: (i) shall be
construed to establish, amend, or modify any benefit plan, program, agreement or
arrangement (except as specifically contemplated by Section 6.2(e)), (ii) shall
alter or limit the ability of the Company, the Buyer, or any of their respective
Affiliates to amend, modify or terminate any benefit plan, program, agreement or
arrangement at any time assumed, established, sponsored or maintained by any of
them, (iii) is intended to confer upon any current or former employee any right
to employment or continued employment for any period of time, or any right to a
particular term or condition of employment, or (iv) is intended to confer upon
any Person (including employees, retirees, or dependents or beneficiaries of
employees or retirees) any right as a third-party beneficiary of this Agreement.
ARTICLE VII.
ADDITIONAL COVENANTS OF THE PARTIES.
Section 7.1. Consummation of the Stock Purchase. Buyer and each of the
Sellers shall provide all reasonable assistance to, and shall cooperate with,
each other to bring about the consummation of the Stock Purchase as soon as
practicable in accordance with the terms and conditions of this Agreement.
Section 7.2. Information. Each of the Sellers and Buyer shall each, upon
request by the other, furnish the other with all information concerning itself,
its Subsidiaries, directors, executive officers and stockholders and such other
matters as may be reasonably necessary or advisable in connection with any
statement, filing, notice or application made by or on behalf of Buyer, the
Company or any of Buyer's Subsidiaries to any third party and/or any
Governmental Entity in connection with the Stock Purchase and the transactions
contemplated by this Agreement.
Section 7.3. Indemnification.
(a) From and after the Closing Date, and regardless of any investigation at
any time made by or on behalf of Buyer or of any knowledge or information that
Buyer may have, TBG shall indemnify and agree to fully defend, save and hold the
Buyer harmless if Buyer shall at any time or from time to time suffer or incur
any damages, Liability, loss, cost, expense, interest award, judgment or penalty
(including all reasonable attorneys', consultants' and experts' fees, including
such fees incurred in any action or proceeding between the Buyer and TBG (or any
of the Sellers) and/or the Company, or costs of investigation), claim or cause
of action (each, a "Loss") arising out of, relating to or resulting from, or
shall pay or become obligated to pay any sum on account of any and all Events of
Breach under Section 7.3(b).
(b) As used herein, "Event of Breach" shall be and mean any one or more of
the following:
(i) any untruth or inaccuracy in any representation by either of the
Sellers or the breach of any warranty by either of the Sellers contained in this
Agreement or any certificate, schedule, exhibit or annex or other document
furnished by the other party pursuant to this Agreement or in connection with
the Closing; provided that, to the extent any representation
or warranty is qualified by immateriality, materiality, material adverse effect,
knowledge or any derivation of the foregoing, such qualifications shall be
ignored for purposes of indemnification under this Section 7.3; or
(ii) any failure by any of the Sellers duly to perform or observe any term,
provision, covenant, agreement or condition on the part of such indemnitor to be
performed or observed under this Agreement.
(c) If an Event of Breach occurs or is alleged and Buyer asserts that TBG
has become obligated to Buyer pursuant to this Section 7.3, or if any suit,
action, investigation, claim or proceeding is begun, made, instituted or
maintained as a result of which TBG may become obligated to the Buyer hereunder,
Buyer shall give written notice to TBG (or, if only TBG has knowledge of such an
event, TBG shall give written notice to Buyer).
(d) TBG may, and at the request of Buyer shall, participate in and defend,
contest or otherwise protect Buyer against any such suit, action, investigation,
claim or proceeding by counsel of TBG's choice at its sole cost and expense;
provided, however, that TBG shall not make any settlement or compromise without
the prior written consent of Buyer, which consent shall not be unreasonably
withheld. Buyer shall have the right, but not the obligation, to participate at
its own expense in the defense thereof by counsel of Buyer's choice and shall in
any event cooperate with and assist TBG to the extent reasonably possible. If
TBG fails timely to defend, contest or otherwise protect against such suit,
action, investigation, claim or proceeding, Buyer shall have the right to do so,
including, without limitation, the right to make any compromise or settlement
thereof, and Buyer shall be entitled to recover the entire cost thereof from
TBG, including, without limitation, reasonable attorneys' fees, disbursements
and amounts paid as the result of such suit, action, investigation, claim or
proceeding.
(e) Any indemnification payments by TBG to Buyer pursuant to this Section
7.3 shall first be paid from the proceeds, if any, of the Escrow Account as set
forth below:
(i) At the Closing, TBG has directed Buyer to deposit $2,500,000 (the
"Escrow Amount"), which Escrow Amount shall be delivered to the Escrow Agent for
deposit into an escrow account (the "Escrow Account"). The Escrow Amount shall
be held pursuant to the provisions of the escrow agreement between the Sellers
and the Buyer, dated as of the date hereof (the "Escrow Agreement"), a copy of
which is attached hereto as Exhibit 7.3(e). The Escrow Amount will be available
to compensate Buyer for Losses pursuant to this Section 7.3.
(ii) On the eighteen (18)-month anniversary of the Closing Date, the
Escrow Amount plus income and earnings, if any (or such lesser amount then
remaining in the Escrow Account) shall be released from the Escrow Account to
TBG in accordance with the terms of the Escrow Agreement; provided that if any
good faith claims for indemnification by Buyer have been made pursuant to this
Agreement and remain unresolved at such time and an amount equal to such
unresolved good faith claims would not remain in the Escrow Account following
such release from the Escrow Account, an amount equal to such good faith claims
shall remain in the Escrow Account and all other amounts in the Escrow Account
at such time shall be released from the Escrow Account to TBG. Notwithstanding
the foregoing, nothing in
this Section shall affect the survival of representations and warranties as
provided for by Section 8.1.
(f)
(i) If an Event of Breach of Section 3.11(b) of this Agreement occurs
or is alleged, TBG's payment obligations under this Section 7.3 for Losses
relating to such Event of Breach shall be 100% of any Losses up to the
Purchase Price.
(ii) If an Event of Breach of Section 3.24 of this Agreement occurs or
is alleged, TBG's payment obligations under this Section 7.3 for Losses
relating to such Events of Breach shall be: (i) 100% of the first
$2,000,000 of any Losses, (ii) 75% of the next $3,000,000 of any Losses in
excess of $2,000,000 up to $5,000,000, (iii) 60% of the next $5,000,000 of
any Losses in excess of $5,000,000 up to $10,000,000 and (iv) when Losses
exceed $10,000,000, 50% of any Losses incurred in excess of $10,000,000 up
to $37,000,000; provided, however, that with respect to any Loss arising
out of, relating to or resulting from, on account of or in connection with
the Sunrise Landfill clean up as set forth on Schedule 3.24(f), the Sellers
shall be liable only to the extent that such Losses are in excess of the
amount reserved for such Losses on the face of the consolidated balance
sheet of the Company as of the Closing Date. In no event shall Sellers be
responsible for any Losses under this Section 7.3(f)(ii) in excess of
$37,000,000.
(g) The Sellers shall indemnify Buyer and hold it harmless from and against
all Taxes (or the non-payment thereof) of Company for all taxable periods ending
on or before the Closing Date and the portion through the end of the Closing
Date for any taxable period that includes (but does not end on) the Closing Date
("Pre-Closing Tax Period"); provided, however, that the Sellers shall be liable
only to the extent that such Taxes are in excess of the amount, if any, reserved
for such Taxes on the face of consolidated balance sheet of the Company as of
the Closing Date. The Sellers shall reimburse Buyer for any Taxes of the Company
that are the responsibility of the Sellers pursuant to this Section 7.3 within
fifteen (15) Business Days after the Buyer or Company notifies TBG: (1) that
such Taxes have been paid and (2) the amount such Taxes exceed the amount
reserved for such Taxes on the face of the consolidated balance sheet of the
Company as of the Closing Date. All parties agree that any dispute as to the
amount TBG owes the Buyer or Company pursuant to this Section 7.3(g) shall be
resolved by KPMG LLP.
(h) The parties agree that any indemnification payments made pursuant to
this Agreement shall be treated for Tax purposes as an adjustment to the
Purchase Price, unless otherwise required by applicable Law.
(i) Except for amounts of indemnity payable under Section 7.3(f) for Losses
relating to Events of Breach of Sections 3.11(b) or 3.24 of this Agreement
(which shall not be subject to the Deductible, De Minimus Claim and Cap
provisions set forth below):
(i) No amounts of indemnity shall be payable under this Section 7.3 as
a result of any claim arising on account of an Event of Breach unless and
until the Buyer has suffered, incurred, sustained or become subject to
Losses in excess of $250,000 (the "Deductible") in the aggregate, in which
case Buyer may bring a claim for all Losses in
excess of such amount; provided, that the amount of Losses resulting from
such claim, or aggregated claims arising out of the same or similar facts,
events or circumstances, exceeds $25,000 (any claim, or aggregated claims
arising out of the same or similar facts, events or circumstances,
involving Losses equal to or less than such amount being referred to as a
"De Minimus Claim"); and
(ii) The aggregate amounts of indemnity payable by TBG to Buyer under
this Section 7.3 (other than Section 7.3(f)) for indemnifiable Losses shall
not exceed $8,000,000 (the "Cap"); provided, however, that the Cap shall
not apply to breaches or inaccuracies of any representations and warranties
contained in Sections 3.5 and 3.9.
(j) This Section 7.3 shall be the exclusive remedy of Buyer following the
Closing for any breaches of this Agreement and the transactions contemplated
hereby, other than any remedies for willful misconduct or fraud. Buyer shall use
all reasonable efforts to minimize and mitigate its Losses hereunder. Buyer
shall provide any information in connection with the matters covered by this
Section 7.3 as TBG may reasonably request and to the extent permitted by
applicable law.
Section 7.4. Access to Properties and Records; Confidentiality. (a) The
Sellers have afforded to Buyer, and to the accountants, counsel and
representatives of Buyer, full access during normal business hours through the
period prior to the Closing Date to all properties, books, Contracts,
commitments and files and records (including, but not limited to, Tax Returns
and correspondence with accountants) of the Company and, after the Closing Date,
shall furnish promptly to Buyer all other information concerning the Company and
its properties and personnel as Buyer may reasonably request, provided that no
investigation or receipt of information pursuant to this Section 7.4 shall
qualify any representation or warranty of the Company or the conditions or the
obligations of Buyer.
(b) Buyer shall cause its officers, employees and other representatives to
hold in confidence all confidential information obtained under (a) above, other
than any information (i) that is or becomes publicly known to Buyer or such
Persons otherwise than in violation of this Agreement, (ii) known to the party
to whom disclosed prior to such disclosure, or disclosed to such party by a
third party not under an obligation of confidentiality to the Party to this
Agreement disclosing the same, (iii) developed by the party to whom disclosed
independently of the information so disclosed, or (iv) required to be disclosed
by law. Buyer shall not (and shall insure that such other Persons do not),
without the prior written consent of the Company use such information other than
in connection with this Agreement and the Stock Purchase or disclose such
information to others. To the extent that any such confidential information
relates to the customers of the Company, such information shall not be
disclosed, directly or indirectly, to any employee of Buyer who is directly, or
indirectly, involved in selling to or setting prices for the sale to customers
in competing transactions.
(c) If this Agreement is terminated, Buyer shall, and each shall cause its
representatives to, promptly upon the request of the Company return or cause to
be destroyed all copies of confidential information furnished to it and its
representatives and all notes and summaries of the confidential information.
Section 7.5. Non-Compete. Each of the Sellers agrees that for the period
commencing on the date of this Agreement and ending on the second anniversary of
the Closing Date hereunder (such period is hereinafter referred to as the
"Restricted Period") with respect to the one hundred mile radius around any city
or town in which, or any location at which, the Company or any of its
Subsidiaries or Affiliates is actively providing services or otherwise doing
business, each of the Sellers or any of their controlled Affiliates shall not
participate or engage, directly or indirectly, for themselves or either of them
or on behalf of or in conjunction with any person, partnership, corporation or
other entity, whether as an employee, agent, officer, director, shareholder,
partner, joint venturer, investor or otherwise, in any business activity if such
activity consists of any business activity undertaken or expressly contemplated
to be undertaken by the Buyer in connection with any part, or the entirety of,
the business purchased from the Sellers.
ARTICLE VIII.
SURVIVAL.
Section 8.1. Survival of Representations and Warranties. (a) Subject to
Section 8.1(b), the representations or warranties contained in this Agreement
shall survive for eighteen (18) months after the Closing Date. The covenants
made by the parties in this Agreement with respect to action to be taken or
omitted after the Closing Date shall survive the Closing and the consummation of
the transactions contemplated by this Agreement.
(b) The representations and warranties contained in (i) Section 3.9 shall
survive for the duration of the applicable statute of limitations, limitations
period, or equitable counterpart to such statute of limitations or limitations
period that applies to any claim arising under any law, regulation, order,
decree, contract, lease, loan agreement, license, or other thing referenced in
Section 3.9; (ii) Section 3.24 shall survive for five (5) years after the
Closing Date; and (iii) Section 3.5 and 3.11(b) shall survive indefinitely after
the Closing Date.
ARTICLE IX.
MISCELLANEOUS.
Section 9.1. Successors and Assigns. Except as otherwise provided in this
Agreement, no party hereto shall assign this Agreement or any rights or
obligations hereunder without the prior written consent of the other parties
hereto and any such attempted assignment without such prior written consent
shall be void and of no force and effect. This Agreement shall inure to the
benefit of and shall be binding upon the successors and permitted assigns of the
parties hereto. Notwithstanding the foregoing, the Buyer shall have the
unrestricted right to assign this Agreement or all or any of its rights
hereunder and/or to delegate all or any part of its obligations hereunder to any
Affiliate or Subsidiary of the Buyer, but in such event the Buyer shall remain
fully liable for the performance of all of such obligations in the manner
prescribed in this Agreement.
Section 9.2. GOVERNING LAW; JURISDICTION. THIS AGREEMENT SHALL BE
CONSTRUED, PERFORMED AND ENFORCED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS
OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF. THE PARTIES HERETO
IRREVOCABLY ELECT AS THE SOLE JUDICIAL FORUM FOR THE ADJUDICATION OF ANY MATTERS
ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, AND CONSENT TO THE
JURISDICTION OF, THE COURTS OF THE STATE OF NEW YORK OR THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK.
Section 9.3. Expenses. All the fees, expenses and costs incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such fees, expenses and costs. Notwithstanding the
foregoing, the Sellers shall pay the transfer taxes, if any, in connection with
the transactions contemplated by this Agreement.
Section 9.4. Broker's and Finder's Fees. Buyer represents and warrants that
it has dealt with no broker or finder in connection with any of the transactions
contemplated by this Agreement. The Sellers, jointly and severally, represent
and warrant that the Company has not dealt with any broker or finder in
connection with any of the transactions contemplated by this Agreement.
Section 9.5. Severability. In the event that any part of this Agreement is
declared by any court or other judicial or administrative body to be null, void
or unenforceable, said provision shall survive to the extent it is not so
declared, and all of the other provisions of this Agreement shall remain in full
force and effect so long as, and only so long as, the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party hereto or to the stockholders of the Company or
Buyer. Upon a determination that any provision is invalid, illegal or incapable
of being enforced and does not adversely affect the substance of these
transactions in a material way, the Parties will 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 to the end that the transactions
contemplated by this Agreement are consummated to the extent possible.
Section 9.6. Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given (i) on the date of service if served personally on the
party to whom notice is to be given; (ii) on the day of transmission if sent via
facsimile transmission to the facsimile number given below, and telephonic
confirmation of receipt is obtained promptly after completion of transmission;
(iii) on the day after delivery to Federal Express or similar overnight courier
or the Express Mail service maintained by the United States Postal Service; or
(iv) on the fifth day after mailing, if mailed to the party to whom notice is to
be given, by first class mail, registered or certified, postage prepaid and
properly addressed, to the party as follows:
If to the Sellers:
TBG Management S.A.M.
B.P. 89
29, bd Princesse Charlotte
MC 98007 Monaco Cedex
Attn.: Clifford Thring
Telecopy: +377-93-155108
Copy to:
Clifford Chance US LLP
31 West 52nd Street
New York, New York 10019
Attn: Brian Hoffmann, Esq.
Viqar Shariff, Esq.
Telecopy: (212) 878-8375
If to Buyer:
Mueller Industries, Inc.
8285 Tournament Drive
Suite 150
Memphis, Tennessee 38125
Attn: Gary C. Wilkerson, Esq.
Telecopy: (901) 753-3254
Copy to:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019
Attn: Serge Benchetrit, Esq.
Telecopy: (212) 728-8111
Any party may change its address for the purpose of this Section by giving
the other party written notice of its new address in the manner set forth above.
Section 9.7. Amendments; Waivers. This Agreement may be amended or
modified, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by the
parties hereto, or in the case of a waiver, by the party waiving compliance. Any
waiver by any party of any condition, or of the breach of any provision, term,
covenant, representation or warranty contained in this Agreement, in any one or
more instances, shall not be deemed to be nor construed as a further or
continuing waiver
of any such condition, or of the breach of any other provision, term, covenant,
representation or warranty of this Agreement.
Section 9.8. Public Announcements. No Party shall issue any press release
or make any public announcement relating to the subject matter of this Agreement
without the prior written approval of the other Party; provided, however, that
any Party may make any public disclosure it believes in good faith is required
by applicable law or any listing or trading agreement concerning its
publicly-traded securities (in which case the disclosing Party will use its
reasonable efforts to advise the other Party prior to making the disclosure).
Section 9.9. Entire Agreement. This Agreement contains the entire
understanding among the parties hereto with respect to the transactions
contemplated hereby and supersedes and replaces all prior and contemporaneous
agreements and understandings, oral or written, with regard to such
transactions. All Exhibits and Schedules hereto and any documents and
instruments delivered pursuant to any provision hereof are expressly made a part
of this Agreement as fully as though completely set forth herein.
Section 9.10. Parties in Interest. Nothing in this Agreement is intended to
confer any rights or remedies under or by reason of this Agreement on any
Persons other than parties hereto and their respective successors and permitted
assigns. Nothing in this Agreement is intended to relieve or discharge the
obligations or liability of any third Persons to the Company or Buyer. No
provision of this Agreement shall give any third parties any right of
subrogation or action over or against the Company or Buyer.
Section 9.11. Scheduled Disclosures. The disclosure of any matter, fact or
circumstance in a Schedule to this Agreement that relates to a specified Section
shall be deemed disclosure against any representation and warranty set forth in
any other Section of this Agreement so long as its relevance to the other
applicable Sections is reasonably apparent on its face.
Section 9.12. Section and Paragraph Headings. The section and paragraph
headings in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
Section 9.13. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which shall constitute the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
MUELLER INDUSTRIES, INC.
By: /s/ Gary C. Wilkerson
----------------------------------------------
Name: Gary C. Wilkerson
Title: Vice President, General Counsel and
Secretary
TBG HOLDINGS NV
By: /s/ Jack E. Haegele
----------------------------------------------
Name: Jack E. Haegele
Title: Authorized Signatory
NV HOLLANDSCH-AMERIKAANSCHE BELEGGINGSMAATSCHAPPIJ
By: /s/ Jack E. Haegele
---------------------------------------------
Name: Jack E. Haegele
Title: Authorized Signatory