SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
____________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) October 28, 1996
____________________
Moog Inc.
______________________________________________________________________
(Exact Name of Registrant as Specified in Charter)
New York 1-5129 16-0757636
______________________________________________________________________
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
East Aurora, NY 14052-0018
______________________________________________________________________
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (716) 652-2000
______________________________________________________________________
N/A
______________________________________________________________________
(Former Name or Former Address, if Changed Since Last Report)
Item 2. Acquisition or Disposition of Assets
Effective October 27, 1996, the Company concluded the
acquisition of the assets related to the industrial hydraulic
servocontrols business (the "Business") of International Motion
Controls Inc. ("IMC"). The purchase price for the Business was $48.6
million. The Business, which has operated under the name Moog
Controls Inc., was spun off by the Company to its founder, William C.
Moog, in February 1988 in exchange for Mr. Moog's stock in the
Company. In September 1994, Mr. Moog entered into a partnership
arrangement with IMC whereby IMC acquired the Business, with Mr. Moog
retaining a limited partnership interest.
In a related transaction, the Company acquired a nearly
complete 110,000 foot manufacturing facility located in Orchard Park,
New York, which IMC originally intended for use by the Business. The
Business presently operates a 91,000 square foot facility located on
the Company's campus in East Aurora, New York, which it has been
leasing from the Company since 1988. The Company intends to operate
the Business from the East Aurora facility and to sell the Orchard
Park building.
The Business was acquired with proceeds from the Company's
U.S. Revolving Credit and Term Loan Facility (the "Credit Facility").
The Credit Facility was amended on October 25, 1996 to allow for the
acquisition. There were no other significant changes in the terms of
the Credit Facility. Moog will seek to acquire the Orchard Park
building by assuming its ten year industrial development bond
financing, failing which Moog will acquire the fee interest.
As previously mentioned, William C. Moog has a limited
partnership interest in the Business. Mr. Moog is the father-in-law
of Richard A. Aubrecht, the Company's Vice President of Strategy &
Technology.
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
(a) and (b) It is impracticable to file the required
financial statements for the business acquired, as well as the
required pro forma financial information respecting the acquisition,
at the time this report was filed. The omitted information will be
filed as soon as practicable, but in no event later than 60 days after
this report is required to be filed.
(c) The following is filed as a part of this report.
Exhibit 2.1. Asset Purchase Agreement dated as of
September 22, 1996 between Moog Inc., Moog Controls Inc.,
International Motion Controls Inc., Enidine Holdings, L.P. and Enidine
Holding Inc. Pursuant to Rule 601(b)(2) of Regulation S-K, exhibits
and schedules to this agreement have been omitted. The Company hereby
agrees to supplementally provide the Securities and Exchange
Commission copies of the schedules upon request.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
MOOG INC.
MOOG INC.
____________________________
(Registrant)
Date: October 31, 1996 By: /s/ Robert R. Banta
_________________________
Robert R. Banta
Executive Vice President
EXECUTION COPY
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") dated as of
the 22nd day of September, 1996, by and between Moog Inc., a New
York corporation with its principal office in East Aurora, New
York 14052 ("Buyer"), Moog Controls Inc., a Delaware corporation
with its principal office at 300 Jamison Road, East Aurora, New
York 14052 ("MCI"), International Motion Control Inc., a Delaware
corporation with its principal office at 9 Centre Drive, Orchard
Park, New York 14127 ("IMC"), Enidine Holding L.P., a Delaware
limited partnership with its principal office at 9 Centre Drive,
Orchard Park, New York 14127 ("EHLP") and Enidine Holding, Inc.,
a Delaware corporation with its principal office at 9 Centre
Drive, Orchard Park, New York 14127 ("EHI"). MCI, IMC, EHLP and
EHI are sometimes referred to herein individually as a "Company"
and collectively as the "Companies".
W I T N E S S E T H:
WHEREAS, EHLP is the owner of all the issued and
outstanding capital stock of MCI, and EHI, a wholly-owned
subsidiary of IMC, is the sole general partner of, and directly
or indirectly the owner of a 100% economic interest in, EHLP;
WHEREAS, MCI is engaged in the business of designing,
manufacturing, selling, distributing and servicing, in the United
States and world-wide, electrohydraulic valves, electrohydraulic
servovalves, electrohydraulic servoactuators and electronics (the
"Business");
WHEREAS, Companies desire to sell to Buyer and Buyer
desires to purchase all of the Business and substantially all of
the assets of the Business, all on the terms and conditions
hereinafter set forth; and
WHEREAS, as a material inducement for Buyer to enter
into this Agreement and acquire the Business, Companies will
agree, among other things, not to engage in competition with the
Business pursuant to the terms of the Non-Competition Agreement
(as hereinafter defined).
NOW, THEREFORE, in consideration of the premises and
mutual representations, warranties and covenants contained
herein, the parties agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1 Sale of Assets. At the Closing (as defined in
Section 2.1) and subject to all other terms and conditions of
this Agreement, MCI shall, and the other Companies shall cause
MCI to, sell, assign, transfer and convey to Buyer good and
marketable title, free and clear of all liens, liabilities,
encumbrances, security interests, claims and other restrictions,
in and to all assets of MCI of every kind and description,
tangible and intangible, personal and mixed, wherever located,
excepting only the Excluded Assets (as hereinafter defined). The
assets to be sold to Buyer are sometimes hereinafter referred to
as the "Subject Assets." The Subject Assets shall include,
without limitation, the following:
(a) all machinery and equipment, computer
equipment, fixtures, furniture, office equipment, tools, test
equipment, tooling, vehicles, software and other tangible
personal property used or useful in the Business including, but
not limited to, all such personal property identified on
Schedule 1.1(a) and such additional personal property, not
otherwise identified on Schedule 1.1(a), that is (i) customarily
located at the ECIDA Premises (as hereinafter defined) or the
Buyer's Premises (as hereinafter defined), or (ii) located at
MCI's vendors or suppliers, (collectively the "Personal
Property");
(b) all inventory of the Business wherever
located, including raw materials, work-in process, finished goods
and consigned inventory, including, but not limited to, all
inventory identified in Schedule 1.1(b)(the "Inventory");
(c) all patents, copyrights and trademarks (and
all applications for any of the foregoing) and all licenses,
processes, products, apparatus, formulas, trade secrets, know-
how, discoveries, inventions (including conceptions of
inventions), product drawings, computer programs, and design,
manufacturing, engineering and other technical information used
or useful in the Business including, without limitation, such
intellectual property identified on Schedule 1.1(c) (collectively
the "Intellectual Property");
(d) all sales orders, purchase orders and other
contracts, agreements, distributor and representative agreements
or appointments, arrangements and/or commitments of MCI which are
(i) existing as of the date of this Agreement but only to the
extent that the foregoing are (A) identified on Schedule 1.1(d),
or (B) entered into in the ordinary course of the Business
consistent with past practice and (I) terminable by Buyer,
without the incurrence of any liability or obligation, upon less
than 31 days' notice, and (II) do not involve the payment or
receipt of consideration in excess of $10,000, and (III) to which
no Company (or affiliate thereof) other than MCI is a party and
prior to the Closing Date, and (ii) entered into by MCI after the
date of this Agreement but only to the extent that the foregoing
are (A) entered into in the ordinary course of the Business
consistent with past practice, and (B) consistent in type and
amount with the contracts and agreements covered by clause (i) of
this Section 1.1(d) (the "Contracts");
(e) all customer and vendor lists of the
Business;
(f) all governmental and other permits, licenses,
approvals, certificates of inspection, filings, franchises and
other authorizations relating to the Subject Assets and the
Business including, but not limited to, those listed in
Schedule 1.1(f) (the "Permits and Licenses");
(g) all rights of Companies pursuant to any
express or implied warranties, representations or guarantees made
by suppliers furnishing goods or services to the Business;
(h) all original books, records and other data of
Companies relating primarily to the Business, the Subject Assets
or the Contracts and all sales literature of the Business;
(i) all prepaid expenses identified on
Schedule 1.1(i) ("Prepaid Expenses");
(j) all customer advance payments in excess of
sales recognized as of the Closing Date;
(k) all claims, causes of action and rights of
recovery of the Business;
(l) all rights to the names "Moog", "Moog
Controls" and "MCI", all variations thereof and all marks related
thereto; and
(m) all goodwill associated with the Business.
In addition, at the Closing, MCI shall sell, assign,
transfer and convey to Buyer good and marketable title, free and
clear of all liens, liabilities, encumbrances, security
interests, claims and other restrictions, in and to the assets of
IMC Controls GmbH ("GmbH") identified on Schedule 1.1(m) hereto
(the "GmbH Assets").
1.2 Excluded Assets. Notwithstanding anything else
contained in this Agreement, the Subject Assets and the GmbH
Assets shall not include (i) cash, (ii) any assets related to any
Pension Plan (as hereinafter defined,), (iii) any capital stock
of any direct or indirect subsidiary of MCI or any ownership
interest in any other entity, (iv) any accounts receivable of the
Business, (v) any interest in the real property commonly known as
7 Sterling Drive, Orchard Park, New York (the "ECIDA Premises")
or any furniture, fixtures, or equipment relating thereto, (vii)
any contracts, agreements or obligations regarding construction
or furnishing of the ECIDA Premises, (viii) any of the assets
identified on Schedule 1.2, (ix) all contracts relating to the
Intelligent Shock Mitigation and Isolation Consortium, and (x)
any rights of action or causes of action relating to any of the
foregoing (collectively the "Excluded Assets").
1.3 Payment of the Purchase Price. In consideration
of the sale by MCI to Buyer of the Subject Assets and the GmbH
Assets and Companies' performance of this Agreement, Buyer shall
pay to MCI the aggregate amount of the sum of $48,600,000 and the
Prepayment Component (as hereinafter defined) (the "Purchase
Price"). The Purchase Price is subject to reduction as provided
in Section 1.4 hereof. At the Closing, Buyer shall pay the
Purchase Price as follows:
(a) Cash. Buyer shall wire transfer immediately
available funds to an account designated by MCI in the amount of
$46,100,000 and the Prepayment Component; and
(b) Note. Buyer shall execute and deliver to MCI
a non-negotiable promissory note ("Note") in the principal amount
of $2,500,000 which Note shall be in the form of Exhibit A.
For the purposes of this Agreement, the
"Prepayment Component" shall mean the dollar value of the
Prepaids as of the Closing Date, provided, however, that in no
event shall the Prepayment Component exceed $125,000.
1.4 Fixed Asset Value; Current Asset Value.
(a) The parties agree that the Fixed Asset Value
(as hereinafter defined) on the Closing Date shall be at least
$3,399,000 less depreciation on the fixed assets included in the
Subject Assets accrued from June 30, 1996 to the Closing Date
calculated on a basis consistent with MCI's past practice (the
"Target Value"). "Fixed Asset Value", as used herein, means the
book value of the fixed assets included in the Subject Assets
determined in accordance with generally accepted accounting
principles applied on a basis consistent with the Balance Sheet
(as hereinafter defined). In the event the Fixed Asset Value as
of the Closing Date is less than the Target Value, the Purchase
Price shall be reduced dollar-for-dollar by the extent to which
the Target Value exceeds the Fixed Asset Value as of the Closing
Date.
(b) The parties agree that the Current Asset
Value (as hereinafter defined) on the Closing Date shall be at
least $5,305,000. "Current Asset Value" as used herein means the
book value of the Inventory (as determined in accordance with
generally accepted accounting principles applied on a basis
consistent with the Balance Sheet and using the same reserve for
obsolescence as used in the Balance Sheet) less the Trade
Payables (as hereinafter defined). In the event the Current
Asset Value as of the Closing Date is less than $5,305,000, the
Purchase Price shall be reduced dollar-for-dollar by the extent
to which $5,305,000 exceeds the Current Asset Value.
(c) The balance statement establishing the Fixed
Asset Value and the Current Asset Value at the Closing Date is
hereinafter referred to as the "Closing Date Statement". Buyer
shall prepare the Closing Date Statement and submit the same to
Companies within ninety (90) days following the Closing Date. If
the parties cannot agree on the Closing Date Statement within
thirty 30 days of its submission to Companies, the disagreement
shall be resolved pursuant to Section 1.4(f) hereof.
(d) One hundred twenty (120) days after the
Closing Date or, if there is a disagreement with respect to the
Closing Date Statement, ten (10) business days after such
disagreement is finally resolved pursuant to Section 1.4(f)
hereof, MCI shall pay to Buyer the entire amounts, if any,
required by Sections 1.4(a) and 1.4(b).
(e) Any payment under this Section 1.4 shall be
made in immediately available funds. Without limiting any other
remedies available to Buyer, in the event that MCI fails to make
timely payment of any amount owed to Buyer pursuant to this
Section 1.4 after a final determination thereof, Buyer may set
off such amount against amounts payable under the Note.
(f) Disagreements with respect to the Closing
Date Statement not resolved within thirty (30) days of the
submission of the Closing Date Statement to Companies shall be
submitted to Price Waterhouse for resolution whose determination
shall be conclusive and binding on Buyer and Companies. Buyer
and Companies shall use their best efforts to cause Price
Waterhouse to render its decision within forty-five (45) days
after the parties' submission of the dispute.
1.5 Allocation of Purchase Price. The Purchase Price
shall be allocated among the Subject Assets in accordance with
Buyer's determination, provided that such determination is
reasonably satisfactory to Companies. Buyer shall submit its
determination of the allocation to Companies within ten (10) days
after the execution of this Agreement and Companies will be
deemed to have irrevocably accepted such allocation unless
written notice to the contrary is given to Buyer within seven (7)
days after Companies' receipt of such allocation. In any event,
such allocation shall value the Inventory without application of
any reserve for obsolescence. Companies and Buyer shall complete
and separately file Form 8594 with their respective federal
income tax returns for the tax year in which the Closing Date
occurs in accordance with such allocation and guidelines, and
neither Companies nor Buyer shall, without the written consent of
the other, take a position on any tax return before any
governmental agency charged with the collection of any such tax,
or in any judicial proceeding, that is in any manner inconsistent
with the terms of such allocation.
1.6 Assumption of Trade Payables. At the Closing,
Buyer shall assume those trade accounts payable of MCI which
were incurred in the ordinary course of the Business within
sixty (60) days prior to the Closing Date (or incurred more than
sixty (60) days prior to the Closing Date but subject to a bona
fide dispute) and are owed to unaffiliated third parties;
provided, however, that Buyer shall not assume any trade accounts
payable which arise out of or relate to construction of the ECIDA
Premises and, provided, further, that Buyer will not assume any
trade account payable owed to Buyer which arose more than thirty
(30) days prior to the Closing Date (the "Trade Payables").
1.7 Assumption of Contracts. At the Closing, Buyer
shall assume those obligations of MCI arising after the Closing
Date under the Contracts; provided, however, that Buyer shall
assume no liability or obligation of MCI or any other Company
relating to any act or omission by MCI or any other Company
relating to the Contracts which occurred prior to the Closing
Date.
1.8 No Other Assumption of Liabilities. Except as
specifically provided in Sections 1.6 and 1.7, Buyer will not
assume, be liable for, or become responsible for any liability of
Companies of any nature, whether accrued, absolute, contingent or
otherwise.
1.9 Non-Competition Agreement. At the Closing, in
consideration of the Purchase Price, Companies shall execute and
deliver to Buyer an agreement in the form of Exhibit B pursuant
to which the Companies shall agree not to compete with the
Business, use or disclose proprietary information of the Business
or acquire any securities of Buyer (the "Non-Competition
Agreement").
1.10 Sales Taxes. Buyer shall pay all sales and use
taxes payable with respect to Buyer's purchase of the Subject
Assets, or shall deliver to Companies appropriately completed New
York Resale Certificates, Exempt Use Certificates, or a Direct
Pay Permit, as applicable. Buyer and Companies shall cooperate
in a timely manner in making all filings, returns, reports and
forms as may be required to comply with the provisions of
applicable law in connection with the payment of any such sales
and transfer taxes.
1.11 Non-Assignable Contracts. Notwithstanding
anything in this Agreement to the contrary, this Agreement shall
not constitute an agreement to assign any Contract if the
attempted assignment thereof, without the consent of a third
party thereto, would constitute a material breach of any material
obligation to MCI or would in any way materially adversely affect
the rights of Buyer or MCI thereunder. If such consent is not
obtained, or if an attempted assignment thereof would be
ineffective or would affect materially the rights of Buyer or MCI
thereunder such that Buyer would not in fact receive all such
rights, MCI will, upon Buyer's request and at Buyer's expense, to
the extent not prohibited by or not in material violation of any
such Contract, (a) cooperate with Buyer in any commercially
reasonable arrangement designed to provide for Buyer the benefits
(including the exercise of MCI's rights) under any such Contract,
including enforcement for the benefit of Buyer of any and all
rights of MCI against a third party thereto arising out of the
breach or cancellation by such third party or otherwise, (b) hold
all monies paid to MCI thereunder on and after the Closing Date
in trust for the account of Buyer, and (c) immediately remit such
money to Buyer.
ARTICLE II
CLOSING
2.1 Closing. Buyer's acquisition of the Subject
Assets and GmbH Assets and the other transactions contemplated by
this Agreement shall be consummated at a closing (the "Closing")
to be held at the offices of Albrecht, Maguire, Heffern & Gregg,
P.C. counsel to Companies, on the fifth business day following
the last to occur of (i) expiration of all waiting periods
applicable to this Agreement under Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act") and (ii)
Buyer's receipt of the consent of Buyer's lenders as required by
Section 8.1(d), or on such other date as the parties hereto shall
mutually agree (the "Closing Date"). The Closing shall be
effective as of 12:01 a.m. (E.S.T.) on the Closing Date.
2.2 Closing Documentation. At the Closing,
(a) Companies will deliver to Buyer
(i) a duly executed Bill of Sale and
Assignment Agreement in the form of Exhibit C and such other
instruments as Buyer shall reasonably request in order to
effectively transfer to and vest in Buyer good and marketable
title to all of the Subject Assets and the GmbH Assets free and
clear of all liabilities and all liens, encumbrances, security
interests, claims and other restrictions;
(ii) the duly executed Non-Competition
Agreement;
(iii) the duly executed Termination Agreement
required pursuant to Section 5.6 hereof;
(iv) the duly executed Stipulations of
Discontinuance required pursuant to Section 5.7;
(v) the duly executed opinion of counsel to
Companies required pursuant to Section 8.1(b) hereof;
(vi) the duly executed Certificates required
pursuant to Section 8.1(f) hereof; and
(vii) such other documents as Buyer may
reasonably request.
(b) Buyer will deliver to Companies:
(i) $46,100,000 in immediately available
funds by wire transfer;
(ii) the duly executed Note;
(iii) the duly executed Termination Agreement
required pursuant to Section 6.4;
(iv) the duly executed Stipulations of
Discontinuance required pursuant to Section 6.5;
(v) the duly executed opinion of counsel to
Buyer required pursuant to Section 9.1(c); and
(vi) the duly executed Certificate required
pursuant to Section 9.1(b).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF COMPANIES
3.1 Companies jointly and severally represent and
warrant to Buyer as follows, and confirm that Buyer is relying
upon the accuracy of each such representation and warranty in
connection with the purchase of the Business as a going concern
and completion of the transactions contemplated hereby:
(a) Corporate Status. MCI, IMC and EHI are each
corporations duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation and
each has full power and authority to own, operate and lease its
properties as presently and heretofore owned, operated and leased
and to carry on its business as now and heretofore conducted.
EHLP is a limited partnership duly organized, validly existing
and in good standing under the laws of the State of Delaware and
has full power and authority to own, operate and lease its
properties as presently owned, operated and leased and to carry
on its business as now and heretofore conducted. MCI is
qualified to do business, is in good standing and has all
required and appropriate licenses in each jurisdiction in which
its failure to obtain or maintain such qualification, good
standing or licensing would have a material adverse effect on the
condition (financial or otherwise), assets, properties, business
or prospects of MCI (a "Material Adverse Effect"). Schedule
3.1(a) sets forth all jurisdictions where MCI is qualified to do
business. MCI does not conduct or engage in any business other
than the Business.
(b) Authority Relative to Agreement. The
execution, delivery and performance of this Agreement and all
other agreements and instruments contemplated hereby
(collectively, the "Ancillary Agreements") by each Company and
consummation by each Company of the transactions contemplated
hereby and thereby have been duly and effectively authorized by
all necessary action, and this Agreement constitutes, and each
Ancillary Agreement when executed will constitute, a legal, valid
and binding obligation of each Company enforceable against it in
accordance with its respective terms except as the enforceability
hereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the
enforcement of creditors' rights generally and except that the
availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court in
which any proceedings may be brought.
(c) Effect of Agreement. The execution, delivery
and performance of this Agreement and the Ancillary Agreements by
Companies and the consummation by each of them of the
transactions contemplated hereby and thereby (i) except as set
forth on Schedule 3.1(c), do not require the filing with, or the
consent, waiver, approval, license or authorization of any
person, government agency or public or regulatory authority;
(ii) do not violate, with or without the giving of notice or the
passage of time, any provision of law applicable to any Company;
(iii) except as set forth on Schedule 3.1(c), do not conflict
with or result in a breach of MCI's, IMC's or EHI's Certificate
of Incorporation, as amended or its by-laws, as amended, or
EHLP's Certificate of Limited Partnership, as amended, or
Agreement of Limited Partnership, as amended, or any mortgage,
deed of trust, license, indenture or other agreement or other
instrument, or any order, judgment, decree, statute, regulation
or any other restriction of any kind or character, to which any
Company is a party or by which any Company or any of their assets
may be bound or give to others any right to terminate, or result
in termination of any provision of such instruments; and (iv) do
not result in the creation of any liability, lien, encumbrance,
security interest, claim or other restriction upon any of the
Subject Assets or GmbH Assets or other property or assets of any
Company or in the acceleration or maturity of any debt of any
Company.
(d) Ownership; Subsidiaries. Except as disclosed
on Schedule 1.1(d), all issued and outstanding capital stock of
MCI is owned by EHLP, free and clear of any lien, liability,
encumbrance, security interest, claim or other restriction. None
of the issued capital stock of MCI has been issued in violation
of any preemptive or similar right. There is no existing option,
warrant, right, call or commitment of any character relating to
the issued or unissued capital stock of MCI. EHI is the sole
general partner of EHLP and, prior to the Closing, will become
the sole limited partner of EHLP. IMC owns all the issued and
outstanding capital stock of EHI. Except as indicated in
Schedule 3.1(d), MCI does not have any subsidiary or any
ownership interest in any other business organization or entity.
(e) Financial Statements. The audited balance
sheet of MCI as at December 31, 1995 and the related audited
statements of income, cash flows and stockholder's investment for
the year then ended (including the notes thereto) and the
unaudited balance sheet of MCI as of June 30, 1996 and the
related unaudited statement of income and cash flow for the six
(6) month period then ended delivered by Companies to Buyer, are
accurate in all material respects and present fairly the
financial position of MCI as of such dates and the results of its
operations and changes in its financial position for such
periods, and except as set forth in Schedule 3.1(e), have been
prepared in conformity with generally accepted accounting
principles applied on a basis consistent with that of similar
periods for preceding years. Copies of such financial statements
are attached in Schedule 3.1(e). The balance sheet of MCI as of
June 30, 1996 is hereinafter referred to as the "Balance Sheet",
and June 30, 1996 is hereinafter referred to as the "Balance
Sheet Date".
(f) Absence of Certain Changes or Events. Since
the Balance Sheet Date, except as specified in Schedule 3.1(f),
MCI has not (i) undergone any change in its condition (financial
or other), properties, assets, liabilities, business, operations
or prospects except changes in the ordinary and usual course of
its business and consistent with its past practice and which have
not been, either in any case or in the aggregate, materially
adverse to it; (ii) issued or sold any shares of its capital
stock or any options, warrants or other rights to purchase any
such shares or any securities convertible into or exchangeable
for such shares or taken any action to reclassify or recapitalize
or split up its capital stock; (iii) mortgaged, pledged or
subjected to any lien, lease, security interest, encumbrance
claim or other restriction any of its properties or assets,
except liens for taxes not yet due and except for liens which
will be released or discharged prior to the Closing;
(iv) acquired or disposed of any interest in any asset or
property except the purchase of materials and supplies and the
sale of inventory in the ordinary and usual course of its
business and consistent with its past practice and the disposal
of equipment and other tangible property, in the ordinary course
of its business and consistent with past practice, no longer used
or useful in the Business; (v) except in the ordinary and usual
course of the Business and consistent with its past practice,
forgiven or canceled any debt or claim, waived any right, or
incurred or paid any liability or obligation; (vi) adopted or
amended any profit sharing plan, agreement, arrangement or
practice for the benefit of any director, officer or employee or
changed the compensation (including bonuses) to be paid to any
director, officer, or employee, other than immaterial amendments
and changes made in the ordinary course of the Business and
consistent with past practice; (vii) suffered any damage,
destruction or loss (whether or not covered by insurance) which
materially adversely affects its condition (financial or other),
properties, assets, business, operations or prospects;
(viii) amended or terminated any contract, agreement, or lease
relating to the Business except amendments made in the ordinary
course of the Business consistent with past practice and which
would not have a Material Adverse Effect; (ix) experienced any
labor difficulty or loss of employees or customers that
materially adversely affects it; (x) entered into any collective
bargaining agreement; (xi) sold or granted or transferred to any
party or parties any contract or license to manufacture or sell
any of the products of the Business except in the ordinary course
of the Business and consistent with past practice, (xii) sold or
granted or transferred to any party or parties any contract or
license to use any trademark, service mark, trade name,
copyright, patent or any pending application for any of the
foregoing, or any trade secret or know-how of the Business;
(xiii) merged, consolidated or entered into any binding share
exchange or other business combination, or acquired any stock,
equity interest or business of any other person; (xiv) without
limiting the generality of any of the foregoing, entered into any
transaction except in the ordinary and usual course of the
Business and consistent with its past practice which has had or
may have, so far as Companies now foresee, a Material Adverse
Effect; or (xv) agreed to, permitted or suffered any of the acts,
transactions or other things described in Subsections (i) through
(xiv) of this Section 3.1(f).
(g) Liabilities. MCI does not have any material
liabilities or obligations of any nature, whether accrued,
absolute, contingent or otherwise, except (i) as set forth in the
Balance Sheet; (ii) those trade payables incurred in the ordinary
and usual course of its business and consistent with its past
practice since the Balance Sheet Date, and (iii) as set forth on
Schedule 3.1(g). Without limiting the generality of the
foregoing, MCI has made provision in the Balance Sheet for any
loss to be sustained in fulfillment of, or from inability to
fulfill, any sales commitments.
(h) Insurance. Included in Schedule 3.1(h)
hereto is a list of all policies of property casualty and
liability (including product liability) insurance carried by MCI
or otherwise applicable to the Business identifying the nature of
risks covered, the carrier and the amount of coverage in each
case. At all times during the past two years the amount of
coverage for each such policy has been equal to or greater than
the amount required by the Contracts. All such policies are in
full force. MCI is adequately insured against the kinds of risks
usually incurred by corporations engaged in a business the same
as or similar to the Business. MCI has given due and timely
notice of any claim and of any occurrence known to Companies
which may give rise to a claim which may be covered by any such
insurance and has otherwise complied in all respects with the
provisions of such policies.
(i) Tax Matters. MCI has duly filed with the
appropriate foreign, Federal, state and local governmental
agencies all tax returns and reports which are required to be
filed by MCI, and has paid in full all taxes (including interest
and penalties) owed by MCI. Except as set forth on
Schedule 3.1(i), MCI is not a party to any pending action or
proceeding, nor, to MCI's knowledge, is any action or proceeding
threatened, by any governmental authority for assessment or
collection of taxes, and no claim for assessment or collection of
taxes, has been asserted against MCI.
(j) Real Estate. MCI does not own, and the
Subject Assets do not include, a fee interest in any real
property. The only real property used in the conduct of the
Business is (i) the real property commonly known as 300 Jamison
Road, East Aurora, New York, which MCI currently leases from the
Buyer (the "Buyer's Premises"), (ii) the ECIDA Premises, and
(iii) the leased sales offices identified on Schedule 3.1(j).
(The Buyer's Premises and the ECIDA Premises are sometimes
hereinafter referred to collectively as the "Premises".)
Except as set forth in the Buyer's Premises Report (as
hereinafter defined) and except as consistent with applicable
Environmental Laws, (i) to the best of each Company's knowledge,
no Hazardous Substances are present on or below the surface of
the Buyer's Premises or any improvements located thereon,
(ii) the Buyer's Premises has not been used by any Company or any
affiliate of any Company for the manufacture, refining,
generating, treatment, storage or disposal of any Hazardous
Substances, (iii) to the best of each Company's knowledge, none
of the soil, groundwater, or surface water of the Buyer's
Premises is contaminated by any Hazardous Substance and there is
no reasonable potential for such contamination from neighboring
real estate or improvements, and (iv) no Company or affiliate of
any Company has caused or permitted Hazardous Substances to be
omitted, discharged, or released from the Buyer's Premises or
improvements located thereon directly or indirectly into the
atmosphere, soil, groundwater or surface water.
As used in this Agreement (i) "Hazardous Substances"
shall mean waste, substance, materials, smoke, gas or particulate
matter defined as hazardous, toxic or dangerous under any
Environmental Law, (ii) "Environmental Law" shall mean the
Comprehensive Environmental Response Compensation and Liability
Act and any other law commonly referred to as "superfund" or
"superlien", the Clean Water Act, the Clean Air Act or any
successor to such laws or any other applicable federal, state or
local environmental, health or safety law, rules or regulations
imposing liability or standards concerning or in connection with
hazardous, toxic or dangerous waste, substance, materials, smoke,
gas or particulate matter, and (iii) "Buyer's Premises Report"
shall mean that certain Summary of Hydrogeologic Site Conditions,
300 Jamison Road, East Aurora, New York prepared by Blasland,
Bouck and Lee dated July, 1994.
(k) Title to and Condition of Property. Except
for the security interests identified on Schedule 3.1(k), which
security interests will be terminated upon the Closing, MCI has
good and marketable title to all of the Subject Assets and the
GmbH Assets subject to no mortgage, pledge, lien, conditional
sale agreement, security interest, claim, encumbrance or other
restriction. All Personal Property and all similar property
included among the GmbH Assets is in good condition and repair,
reasonable wear and tear excepted and conforms in all material
respects with all applicable laws, ordinances and regulations.
(l) Contracts; No Defaults. Except for the
Contracts, MCI is not a party to or subject to any agreement,
contract or commitment (whether oral or written) which is
material to the Business. All Contracts are valid, binding and
in full force and effect and MCI is not in default or, to the
best of each Companies' knowledge, alleged to be in default
thereunder and no Company has knowledge that any other party
thereto is in default. Nothing has occurred which, with or
without the passage of time or giving of notice or both, would
constitute a default by MCI or, to each Company's knowledge, any
other party under any Contract. Except for (i) Contracts noted
on Schedule 3.1(l), (ii) those Contracts requiring payment or
receipt by MCI of less than $10,000 or terminable upon 30 days or
less notice, and (iii) Contracts not material to the conduct of
the Business, each Contract may be assigned to Buyer without the
consent of any other person and without giving notice to any
person regarding this Agreement or the sale and transfer of the
Subject Assets or other transactions contemplated hereby. MCI
has not, nor under generally accepted accounting principles is
MCI required to, accrue for a loss in respect of any of the
Contracts.
(m) Inventory. The Inventory consists of items
of good, useable and saleable quality, valued at the lower of
cost or market on a consistent basis. All Inventory is useable
and/or saleable in the ordinary and usual course of the Business
except to the extent reserved for on the Balance Sheet. The
quantities of Inventory are reasonable and warranted in the
present circumstances of the Business.
(n) Advance Payments. Except as disclosed on
Schedule 3.1(n), none of the Companies has received any payment
in respect of goods or services of the Business which have not
been provided or delivered.
(o) Labor Matters. There are no strikes,
arbitrations, grievances, other labor disputes or, to MCI's
knowledge, union organizational drives pending or threatened
between MCI and any of its employees. MCI is not party to any
union, collective bargaining or other similar agreements. MCI
has paid in full all wages, salaries, commissions, bonuses and
other compensation (including severance pay and vacation
benefits) for all services performed by its employees as due in
the ordinary and usual course of its business. MCI is not liable
for any arrears of wages or any payroll taxes or any penalties or
other damages for failure to comply with any applicable foreign,
federal, state and local laws relating to the employment of
labor. Schedule 3.1(o) hereto contains the names and current
annual salary or hourly wage of all employees of MCI.
(p) Employee Benefit Plans. For purposes of this
Section, "Controlled Group" shall mean MCI and any trade or
business, whether or not incorporated, which is part of a
controlled group under common control or affiliated with MCI
within the meaning of Section 4001(b)(1) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or
Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of
1986, as amended ("Code").
(i) Employee Welfare Benefit Plans. Each
employee welfare benefit plan, fund, arrangement or practice
which MCI or any other member of the Controlled Group directly or
indirectly maintains or contributes to, or is obligated to
maintain or contribute to, or has ever maintained or contributed
to, if a group health plan within the meaning of Section 607(1)
of ERISA and Section 5001(b)(1) of the Code, is in compliance, in
all material respects, with Sections 601 through 608 of ERISA and
Section 4980B of the Code.
(ii) Employee Pension Benefit Plans. With
respect to each plan, fund, arrangement or practice that is or
may be a "defined benefit plan" as defined in Section 3(35) of
ERISA which MCI or any other member of the Controlled Group
directly or indirectly maintains or contributes to, or is
obligated to maintain or contribute to ("Pension Plan"): (A) the
Pension Plan is, and has been, operated in all material respects
in compliance with its governing documents (except as otherwise
required by applicable law), ERISA, the Code, all regulations,
rulings and announcements promulgated or issued thereunder, and
all other applicable law; (B) the Pension Plan has not suffered
an "accumulated funding deficiency" as defined in Section
302(a)(2) of ERISA and Section 412(a) of the Code (whether or not
waived); (C) other than the sale of the Subject Assets
contemplated by this Agreement, the Pension Plan has not been
subject to a "reportable event" (as defined in Section 4043(b) of
ERISA), the reporting of which has not been waived by regulation;
(D) no termination or partial termination of the Pension Plan
within the meaning of Section 4042 of ERISA or Section 411(d)(3)
of the Code has occurred, and no condition exists that would
constitute grounds for the termination or partial termination of
the Pension Plan; and (E) all applicable premiums due to the
Pension Benefit Guaranty Corporation ("PBGC") for plan
termination insurance have been paid in full on a timely basis.
Neither MCI nor any other member of the Controlled Group has
incurred nor expects to incur, either directly or indirectly, any
liability under Title IV of ERISA, including, without limitation,
any withdrawal liability within the meaning of Title IV of ERISA
with respect to any multiemployer plan (as defined in Section
4001(a)(3) of ERISA), but excluding liability for premiums to the
PBGC.
(q) Transactions with Certain Persons. No
current or former director, officer, employee or shareholder of
any Company or any of their affiliates has any interest in any
property, real or personal, tangible or intangible, used in or
pertaining to the Business and there have been no transactions
between MCI and any current or former director, officer, employee
or shareholder of any Company or their affiliates except as
disclosed on Schedule 3.1(q) hereto.
(r) Intellectual Property. Except as disclosed
on Schedule 3.1(r), the Intellectual Property is not subject to
any outstanding licenses, liens, encumbrances, claims or other
restrictions or rights of others, except for liens which will not
survive the Closing, and there are no pending or, to MCI's
knowledge, threatened challenges to any of the Intellectual
Property. To the best knowledge of each Company, the Business
as heretofore conducted does not infringe or constitute, and has
not infringed or constituted, an unlawful invasion of any rights
of any person and no notice of any such infringement or invasion
has been received by any Company. MCI has the right to use, free
and clear of the claims or rights of others, all Intellectual
Property. The Intellectual Property constitutes all such
property necessary to conduct the Business as heretofore
conducted.
(s) Litigation and Claims. Except as described
in Schedule 3.1(s) hereto, there is no pending or, to MCI's
knowledge, threatened action, suit, proceeding, claim,
investigation or notice (collectively, "Actions") by or against
MCI or affecting the Business (whether or not covered by
insurance) and there is no outstanding order, notice, writ,
injunction or decree of any court, government or governmental
agency against or affecting MCI or the Business. Schedule 3.1(s)
identifies all Actions as to which MCI was a party or affecting
the Business which have been resolved during the past twenty-four
(24) months (whether by settlement, arbitration, judicial
decision or otherwise) involving more than $10,000. During the
fiscal year ended December 31, 1995, product warranty claims
against MCI with respect to products of the Business did not
exceed $30,000.
(t) Permits. The Licenses and Permits constitute
all licenses, permits and approvals required to conduct the
Business as heretofore conducted. All Licenses and Permits are
valid and in full force and effect. This Agreement and
consummation of the transactions contemplated hereby will not
terminate or materially adversely affect the existence, validity
and continued effectiveness of any of the Licenses and Permits.
(u) Compliance with Law. MCI is and has been in
compliance in all material respects with all laws, ordinances,
regulations, orders, licenses, franchises and permits applicable
to it, its properties and assets, and to the operation of the
Business, including, but not limited to such laws and regulations
relating to protection of the public health or environment, waste
disposal, hazardous substances or wastes and occupational health
and safety.
(v) Books and Records. The books and records of
MCI are complete and correct in all material respects and
accurately reflect in all material respects the basis for the
financial condition and results of operations of MCI as set forth
in the financial statements referred to in Section 3.1(e) hereof.
(w) Finders' Fees. No person acting on behalf of
any Company has claims to, or is entitled to, under any contract
or otherwise, any payment as a broker, finder or intermediary in
connection with the origin, negotiation, execution or
consummation of the transactions provided for in this Agreement.
(x) General Representation and Warranty. To
Company's knowledge, neither this Agreement nor any Ancillary
Agreement, Schedule or other documents furnished by or on behalf
of any Company in connection with this Agreement contains any
untrue statement of a material fact or omits to state any
material fact necessary to make the statements contained herein
or therein not misleading in any material respect. There is no
fact or circumstance not generally known to the public but known
to any Company which, as now foreseen by the Company, materially
adversely affects, or in the future is likely to materially
adversely affect the condition (financial or other), properties,
assets, liabilities, business, operations or prospects of the
Business which has not been set forth in this Agreement or the
Schedules hereto. The Subject Assets constitute all of the
assets used by MCI, other than the Excluded Assets, to design,
manufacture, test, sell and service the products of the Business
and to otherwise conduct the Business as heretofore conducted by
MCI.
3.2 No Additional Representations. MCI IS MAKING NO
REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, BEYOND
THOSE EXPRESSLY GIVEN IN THIS AGREEMENT OR IN ANY ANCILLARY
AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OR
REPRESENTATION AS TO CONDITION, MERCHANTABILITY OR SUITABILITY AS
TO ANY OF THE SUBJECT ASSETS. EXCEPT AS OTHERWISE SPECIFICALLY
PROVIDED IN THIS AGREEMENT, THE SUBJECT ASSETS ARE BEING SOLD ON
AN "AS IS, WHERE IS" BASIS.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
4.1 Buyer represents and warrants to Companies as
follows:
(a) Organization. Buyer is a corporation duly
incorporated, validly existing and in good standing under the
laws of the State of New York and has full power and authority to
own, operate and lease its properties as presently owned,
operated and leased and to carry on its business as now and
heretofore conducted.
(b) Authority Relative to Agreement. The
execution, delivery and performance of this Agreement and the
Ancillary Agreements by Buyer and consummation by it of the
transactions contemplated hereby and thereby have been duly and
effectively authorized by all necessary corporate action, and
this Agreement constitutes, and each Ancillary Agreement when
executed will constitute, a legal, valid and binding obligation
of Buyer enforceable in accordance with its terms except as the
enforceability hereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting the enforcement of creditors' rights generally and
except that the availability of the equitable remedy of specific
performance or injunctive relief is subject to the discretion of
the court in which any proceedings may be brought.
(c) Effect of Agreement. The execution, delivery
and performance of this Agreement and the Ancillary Agreements by
Buyer and the consummation by it of the transactions contemplated
hereby and thereby (i) except as set forth on Schedule 4.1(c), do
not require the filing by Buyer with, or the consent, waiver,
approval, license or authorization of, any person, government
agency or public or regulatory authority; (ii) do not violate,
with or without the giving of notice or the passage of time, any
provision of law applicable to Buyer; or (iii) except as set
forth on Schedule 4.1(c), do not conflict with or result in a
breach of Buyer's Certificate of Incorporation or its by-laws or
any mortgage, deed of trust, license, indenture, or other
agreement or instrument or any order, judgment, decree, statute,
regulation or any other restriction of any kind or character to
which Buyer is a party or by which Buyer or any of its assets may
be bound.
(d) Finders' Fees. No person acting on behalf of
Buyer has claims to, or is entitled to under any contract or
otherwise, any payment as a broker, finder or intermediary in
connection with the origin, negotiation, execution or
consummation of the transactions provided for in this Agreement.
(e) General Representation and Warranty. To
Buyer's knowledge, neither this Agreement nor any Ancillary
Agreement, Schedule or other documents furnished by or on behalf
of Buyer in connection with this Agreement contains any untrue
statement of a material fact or omits to state any material fact
necessary to make the statements contained herein or therein not
misleading in any material respect.
ARTICLE V
CERTAIN COVENANTS OF COMPANIES
5.1 Conduct of Business Pending Closing. From the
date of this Agreement to the Closing Date:
(a) Negative Covenants. Except as otherwise
expressly provided by this Agreement, or as Buyer may otherwise
consent to in writing, MCI shall not, and IMC, EHI and EHLP shall
cause MCI not to, engage in any activity or enter into any
transaction outside of the ordinary and usual course of its
business or which would be inconsistent with its past practice or
with the terms of this Agreement or which would render inaccurate
in any material respect as of the Closing Date any of the
representations and warranties set forth in Article III. Without
limiting the generality of the foregoing, MCI shall not, and IMC,
EHI and EHLP shall cause MCI not to: (i) undergo any change in
its condition (financial or other), properties, assets,
liabilities, business, operations or prospects except changes in
the ordinary and usual course of its business and consistent with
its past practice and which are not, either in any case or in the
aggregate, materially adverse to it; (ii) declare, set aside, or
pay any dividend or other distribution in respect of its capital
stock or make any direct or indirect redemption, purchase or
other acquisition of any shares of its capital stock or make any
payment to any Company; (iii) mortgage, pledge or subject to any
lien, lease, security interest, encumbrance, or other
restriction, any of its properties or assets which survive the
Closing, except liens for taxes not yet due; (iv) acquire or
dispose of any interest in any asset or property except the
purchase of materials and supplies and the sale of inventory in
the ordinary and usual course of the Business and consistent with
its past practice; (v) except in the ordinary and usual course of
the Business and consistent with its past practice, forgive or
cancel any debt or claim, waive any right, or incur or pay any
liability or obligation; (vi) adopt or amend any profit sharing
plan, agreement, arrangement or practice for the benefit of any
director, officer or employee or change the compensation
(including bonuses) to be paid to any director, officer or
employee except scheduled salary or wage increases for non-
management employees made in the ordinary course of the Business
and consistent with past practice; (vii) suffer any damage,
destruction or loss which, after application of any available
insurance proceeds, has a Material Adverse Effect; (viii) amend
or terminate any contract, agreement or lease except in the
ordinary course of the Business consistent with past practice and
which will not have a Material Adverse Effect; (ix) experience
any labor difficulty, or loss of employees or customers that
materially adversely affects it; (x) enter into any collective
bargaining agreement; (xi) except for the engagement of
distributors in the ordinary course of the Business and
consistent with past practice, sell or grant or transfer to any
party or parties any license, to manufacture or sell any of the
products of the Business, or to use any trademark, service mark,
trade name, copyright, patent or pending application for any of
the foregoing, or any trade secret or know-how of MCI;
(xii) merge or consolidate or enter into a binding share exchange
or any other business combination or acquire any stock, equity
interest or business of any other person; (xiii) without limiting
the generality of any of the foregoing, enter into any
transaction except in the ordinary and usual course of its
business and consistent with its past practice; (xiv) or agree
to, permit or suffer any of the acts, transactions or other
things described in Subsections (i) through (xiii) of this
Section 5.1(a).
(b) Conduct of Business. MCI shall, and IMC, EHI
and EHLP shall cause MCI to, preserve intact MCI's business
organization, use its best efforts to retain the employees
identified in Schedule 7.1 and preserve its good will with all
suppliers, customers, employees and others having business
relations with MCI.
(c) Access to Information. Subject to the terms
of the Confidentiality Agreement dated August 14, 1996 between
Buyer and IMC which agreement shall remain in effect until the
Closing, Companies shall afford Buyer and its representatives
full access, during normal business hours and upon reasonable
notice, to all of the assets, properties, books, records, and
agreements of MCI, and shall furnish to Buyer and its
representatives such information regarding MCI and the Business
as Buyer may reasonably request. Companies shall also cooperate
with Buyer in an inspection of the Premises and all improvements
thereon, including, without limitation, an environmental audit of
the Premises. The investigation by Buyer and furnishing of
information to Buyer shall not affect the right of Buyer to rely
on the representations, warranties, covenants and agreements of
Companies in this Agreement.
5.2 Consents of Others. Prior to the Closing,
Companies shall use commercially reasonable efforts to obtain,
and to the extent necessary shall fully cooperate with Buyer to
assist Buyer's efforts to obtain, all authorizations, licenses,
consents and permits of others and other governmental and
official authorizations required to permit the consummation of
the transactions contemplated by this Agreement and the
continuation of the Business by Buyer. Without limiting the
generality of the foregoing, Companies shall use commercially
reasonable efforts to obtain all consents necessary for the
assignment of the Contracts to Buyer.
5.3 Change in Representations and Warranties. In the
event any Company learns that any of the representations and
warranties of Companies or Buyer contained in or referred to in
this Agreement is or will become inaccurate in any material
respect, such Company shall give immediate detailed written
notice thereof to Buyer.
5.4 Cooperation. After the Closing, Companies shall
reasonably assist and cooperate with Buyer in effecting a
transition of ownership of the Business to Buyer without a
material disruption of the operations of the Business and so as
to best preserve the good will of its customers and others having
business relationships with the Business.
5.5 Change of Name. Immediately upon the Closing,
Companies will, and will cause their affiliates to, discontinue
using, in any respect, the names "Moog", "Moog Controls", "MCI",
any variations thereof and any marks related thereto and MCI will
promptly amend its Certificate of Incorporation to change its
name to a name which does not include the name "Moog" or "MCI".
Evidence of the completion of such amendment shall be furnished
to Buyer within ten (10) days after the Closing.
5.6 Termination of Lease, Etc. At the Closing,
Companies will execute and deliver to Buyer an agreement
terminating certain agreements entered into by Buyer and MCI as
of February 27, 1988, in the form of Exhibit D hereto (the
"Termination Agreement").
5.7 Discontinuance of Litigation. At the Closing,
Companies will execute and deliver to Buyer Stipulations of
Discontinuance in the form of Exhibit E with respect to all
litigation between Buyer and MCI currently pending.
5.8 Antitrust Laws. As soon as practicable after the
execution of this Agreement by Buyer and Companies, Companies
shall make all filings which are required under the HSR Act with
respect to the transactions contemplated by this Agreement.
Companies will furnish to Buyer such information and assistance
as Buyer may request in connection with its preparation of
necessary filings or submissions to any governmental agency,
including, without limitation, any filings necessary under the
provisions of the HSR Act. Companies will furnish Buyer copies
of all correspondence, filings and communications (or memoranda
setting forth the substance thereof) between Companies or their
representatives, on the one hand, and the Federal Trade
Commission, the Antitrust Division of the U.S. Department of
Justice or any other governmental agency or authority or members
of their respective staffs, on the other hand, with respect to
this Agreement or the transactions contemplated hereby, except
for any such information deemed confidential to the Companies.
5.9 Audit. Prior to the Closing, Companies, at no
cost to Buyer, shall engage Ernst & Young LLP to prepare audited
financial statements of the Business for fiscal year ended
December 31, 1995 and the nine months ended September 30, 1996,
the same to be in form and content satisfactory to the United
States Securities and Exchange Commission (the "SEC"). In
addition, Companies shall, at their expense, obtain from Ernst &
Young LLP requisite consents required by Buyer to utilize Ernst &
Young LLP's reports on the aforementioned financial statements in
future periods for inclusion in Buyer's SEC filing requirements
for its next three fiscal years.
5.10 Conditions, etc.. Companies shall use all
commercially reasonable efforts to cause the conditions to
Closing set forth in Articles VIII and IX to be fulfilled.
5.11 Certain Sales to Distributors. Prior to the
Closing, MCI shall not knowingly ship products to its
distributors in furtherance of any policy requiring such
distributors to maintain minimum inventory levels.
5.12 Backlog Verification. Companies represent and
warrant that, as of August 31, 1996, MCI's backlog was $5.7
million. Within ten (10) days after the execution of this
Agreement, Companies shall provide Buyer with all information
requested by Buyer to verify MCI's backlog of $5.7 million as of
August 31, 1996.
ARTICLE VI
CERTAIN COVENANTS OF BUYER
6.1 Conduct of Business Pending Closing. Except as
otherwise provided in this Agreement, or as Companies may
otherwise consent to in writing, Buyer shall not, pending
Closing, engage in any activity or enter into any transaction (i)
which would be inconsistent with the terms of this Agreement; or
(ii) which would render inaccurate, in any material respect, as
of the Closing Date any of its representations and warranties set
forth in this Agreement.
6.2 Consents of Others. Prior to the Closing, Buyer
shall use its best efforts to obtain all authorizations,
licenses, consents and permits of others and other governmental
and official authorizations required of it to permit it to
consummate the transactions contemplated by this Agreement.
6.3 Change in Representations and Warranties. In the
event Buyer learns that any of the representations and warranties
of Buyer or Companies contained in or referred to in this
Agreement is or will become inaccurate, in any material respect,
Buyer shall give immediate detailed written notice thereof to
Companies.
6.4 Termination of Lease Etc. At the Closing, Buyer
will execute and deliver to Companies the Termination Agreement.
6.5 Discontinuance of Litigation. At the Closing,
Buyer will execute and deliver to Companies Stipulations of
Discontinuance and General Releases in the forms of Exhibit E
with respect to all litigation between Buyer and MCI currently
pending.
6.6 Antitrust Laws. As soon as practicable after the
execution of this Agreement by Buyer and Companies, Buyer shall
make all filings which are required under the HSR Act with
respect to the transactions contemplated by this Agreement.
Buyer will furnish Companies with copies of all correspondence,
filings and communications (or memoranda setting forth the
substance thereof) between Buyer or its representatives, on the
one hand, and the Federal Trade Commission, the Antitrust
Division of the U.S. Department of Justice or any other
governmental agency or authority or members of their
representative staffs, on the other hand, with respect to such
filings.
6.7 Conditions, etc.. Buyer shall use all
commercially reasonably efforts to cause the conditions to
Closing set forth in Articles VIII and IX to be fulfilled.
ARTICLE VII
EMPLOYEES AND EMPLOYMENT MATTERS
7.1 Employment by Buyer. Upon the Closing, MCI shall
terminate the employment of, and Buyer shall offer employment to,
each MCI or GmbH employee who is listed on Schedule 7.1 who is
then actively employed by MCI or GmbH (i.e., not on long term
disability or other leave) (the "Employees"). Buyer's offer of
employment to the Employees shall be on such terms as Buyer, in
its sole discretion, shall determine. Nothing herein, expressed
or implied, confers upon any Employee any rights or remedies of
any nature or kind, including, without limitation, any rights of
employment with Buyer.
7.2 List of Employees. Schedule 7.1 lists the name,
sex, date of birth, date of hire, department, job title, labor
grade and rate of pay of the Employees and the Companies jointly
and severally warrant to Buyer that such schedule is accurate and
complete in all material respects. The Companies also jointly
and severally represent and warrant to Buyer that included on
Schedule 7.1 is a complete and accurate description of MCI's
severance policy.
7.3 Liability. Without limiting the generality of
Section 1.8, Companies shall retain and pay all obligations and
liabilities arising out of MCI's employment of the Employees or
the termination thereof, including liability for all claims with
respect to occurrences on or before the Closing Date (regardless
of when such claim is filed) arising out of labor or employment,
workers compensation, disability, unemployment insurance and
related matters.
7.4 Severance and WARN Act. It is agreed that Buyer
is not responsible for any liability, cost or expense with
respect to an Employee who refuses Buyer's offer of employment.
Buyer will provide a severance program for each Employee who
accepts Buyer's offer of employment at least comparable to the
MCI severance program described on Schedule 7.1. Buyer agrees to
pay and be responsible for all liability, cost, expense and
sanctions resulting from the failure to comply with the Worker
Adjustment and Retraining Notification Act ("WARN Act"), and the
regulations thereunder, in connection with the termination of any
Employee's employment with Buyer. Companies agree to pay and be
responsible for all liability, cost, expense and sanctions
resulting from the failure to comply with the WARN Act, and the
regulations thereunder, in connection with the sale of the
Business to Buyer or the termination of any Employee's employment
with MCI.
ARTICLE VIII
CONDITIONS TO OBLIGATION OF
BUYER TO CONSUMMATE CLOSING
8.1 Conditions. The obligation of Buyer under this
Agreement to consummate the Closing is subject to the conditions
that:
(a) Covenants, Representations and Warranties.
Companies shall have performed in all material respects, all
obligations and agreements and complied with all covenants
contained in this Agreement to be performed and complied with by
each of them prior to or at the Closing Date. The
representations and warranties of Companies set forth in this
Agreement shall be accurate in all material respects, at and as
of the date made and also at and as of the Closing Date, with the
same force and effect as though made on and as of the Closing
Date.
(b) Opinion of Companies' Counsel. Buyer shall
have received from counsel to Companies the favorable opinion,
dated the Closing Date, in the form of Exhibit F hereto.
(c) No Adverse Change. There shall have been no
material adverse change in the business, properties, operations,
financial condition, earnings or contractual or business
relationships with third parties of the Business.
(d) Consents. Buyer shall be assured that all
permits, licenses and other governmental and official
authorizations reasonably necessary to Buyer to continue to
conduct the Business as heretofore conducted and to consummate
the transactions contemplated by this Agreement have been
obtained and will be in effect. Without limiting the generality
of the foregoing, Companies will have obtained all consents
necessary for the assignment of the Contracts to Buyer except
where the failure to have obtained such a consent with respect to
a Contract will not have a material adverse effect on Buyer's
operation of the Business. In addition, Buyer's lenders shall
have consented, on terms reasonably satisfactory to Buyer in its
sole discretion, to Buyer's consummation of the transactions
contemplated hereby as required under the terms of Buyer's
revolving credit facility.
(e) HSR Act. All waiting periods applicable to
this Agreement and the transactions contemplated hereby under the
HSR Act shall have expired.
(f) Certificates. Buyer shall have received
certificates executed by an officer of each Company dated the
Closing Date, in the form of Exhibit G hereto.
(g) Foreign Litigation. All currently pending
litigation between Buyer and its affiliates and Companies and
their affiliates and distributors regarding use of the "Moog" or
"Moog Controls" names and marks in foreign jurisdictions and
unfair trade practices arising from the sale of MCI products
shall have been discontinued on the merits with prejudice.
ARTICLE IX
CONDITIONS TO OBLIGATION OF
COMPANIES TO CONSUMMATE CLOSING
9.1 Conditions. The obligations of Companies under
this Agreement to consummate the Closing are subject to the
conditions that:
(a) Covenants, Representations and Warranties.
Buyer shall have performed, in all material respects, all
obligations and agreements and complied with all covenants
contained in this Agreement to be performed and complied with by
Buyer prior to or at the Closing and the representations and
warranties of Buyer set forth in Article IV shall be accurate in
all material respects, at and as of the Closing Date, with the
same force and effect as though made on and as of the Closing
Date.
(b) Certificate. Companies shall have received a
certificate executed by Buyer, dated the Closing Date, in the
form of Exhibit H hereto.
(c) Opinion of Buyer's Counsel. Companies shall
have received from counsel to Buyer the favorable opinion, dated
the Closing Date, in the form of Exhibit I hereto.
(d) HSR Act. All waiting periods applicable to
this Agreement and the transactions contemplated hereby under the
HSR Act shall have expired.
(e) Foreign Litigation. All currently pending
litigation between Buyer and its affiliates and Companies and
their affiliates and distributors regarding use of the "Moog" or
"Moog Controls" names and marks in foreign jurisdictions and
unfair trade practices arising from the sale of MCI products
shall have been discontinued on the merits with prejudice.
ARTICLE X
TERMINATION
10.1 Termination. This Agreement may be terminated at
any time prior to the Closing:
(a) Mutual Consent. Upon the mutual consent of
all parties hereto;
(b) Adverse Proceedings. By either Buyer or
Companies if any order to restrain, enjoin or otherwise prevent
the consummation of this Agreement or transactions contemplated
hereby shall have been entered or, on the Closing Date, there is
any pending or threatened litigation in any court, or any
proceeding by or before any governmental body, with a view to
seeking to restrain or prohibit consummation of this Agreement or
in which damages are sought in connection with this Agreement, or
if any investigation by any governmental body is pending or
threatened which might result in any such litigation or other
proceeding;
(c) Termination Date. By either Buyer or
Companies if the Closing shall not have occurred prior to
December 31, 1996 provided that the terminating party is not in
material default under any provision of this Agreement; or
(d) Cause. By Buyer or Companies, upon written
notice to the other, if such other party or its affiliate has
breached any representation, warranty or covenant contained in
this Agreement in any material respect and the breach has
continued without cure for a period of thirty (30) days after
notice of the breach.
10.2 Effect of Termination. If this Agreement is
terminated pursuant to Section 10.1(a), 10.1(b) or 10.1(c), this
Agreement shall become void and of no further force and effect,
and none of the parties hereto (nor their respective affiliates,
directors, shareholders, officers, employees, agents,
consultants, attorneys-in-fact or other representatives) shall
have any liability in respect of such termination. If this
Agreement is terminated pursuant to Section 10.1(d), Buyer and
Companies shall each have such rights and remedies as may be
available under applicable law.
10.3 Failure to Close. If for any reason this
Agreement is terminated prior to Closing, (i) Buyer shall
promptly, upon the request of MCI, return to MCI all documents
and other information regarding the Business (or notes made
therefrom), including all originals and all copies thereof,
theretofore delivered to Buyer by or on behalf of MCI; and (ii)
the terms of the Confidentiality Agreement dated August 14, 1996
between Buyer and IMC shall survive such termination.
ARTICLE XI
CERTAIN POST CLOSING COVENANTS
11.1 Warranty Repairs. Buyer shall perform, at Buyer's
expense, repair or replacement services under product warranties
for products sold or shipped by the Business prior to the Closing
Date.
11.2 Insurance. For a period of six (6) years
following the Closing, Companies shall maintain product liability
insurance coverage with respect to products of the Business sold
on or before the Closing Date. Such coverage shall be maintained
with a nationally recognized and reputable carrier reasonably
satisfactory to Buyer and shall be on such terms, including
deductibles and limits, that are no less favorable than the
coverage maintained by Companies as of the date hereof.
11.3 Intellectual Property. Without limiting
Companies' obligations under the Non-Competition Agreement, upon
the Closing, Companies shall not retain copies or duplicates of,
and shall otherwise not use or disclose, the Intellectual
Property conveyed to Buyer pursuant to Section 1.1(c).
11.4 Product Liability. Without limiting the
generality of Section 1.8, Companies shall retain all liability
and obligations for products of the Business which were sold by
MCI prior to the Closing Date.
11.5 Use of Name. Except as hereinafter provided,
Buyer shall not use, in any respect, the names "IMC" or
"International Motion Control" and any variation thereof in
connection with the Business or otherwise. Notwithstanding the
foregoing, Buyer may, for a period of nine (9) months after the
Closing, use the sales literature and other materials included
among the Subject Assets which contain the names "IMC",
"International Motion Control" or variations thereof.
11.6 Access to Books and Records. For a period of six
(6) years after the Closing, the Buyer shall preserve and retain
and provide Company with reasonable access to, upon request and
for proper business purposes, the books, records and other
material described in Section 1.1(h) transferred to the Buyer as
a result of the sale of the Subject Assets. For the purposes of
this Section 11.6, proper business purposes shall include
litigation, financial reporting, and tax matters.
11.7 Collection of MCI's Accounts Receivable. As soon
as practicable after the Closing, MCI shall furnish to Buyer a
list of the Business' outstanding accounts receivable as of the
Closing Date, which accounts receivable are, pursuant to Section
1.2, included among the Excluded Assets (the "Accounts"). During
the ninety (90) day period immediately following the Closing,
Buyer will use commercially reasonable efforts (excluding
litigation or referral to a collection agency) to collect the
Accounts and MCI hereby appoints Buyer as its attorney-in-fact to
collect the Accounts. Buyer will remit to MCI in accordance with
the following schedule: (i) on the 31st day following the
Closing, Buyer will pay to MCI 40% of the Accounts; (ii) on the
61st day following the Closing, Buyer will pay to MCI 52% of the
Accounts less $500,000; and (iii) on the 91st day following the
Closing, Buyer will pay to MCI an amount equal to the total
amount collected by Buyer in respect of the Accounts since the
Closing less the payments made by Buyer to MCI pursuant to
clauses (i) and (ii) above.
The Companies shall promptly inform Buyer of their
direct receipt of payment in respect of the Accounts and Buyer
may reduce any payment to MCI pursuant to the preceding sentence
by the amount of any payments in respect of the Accounts received
directly by any Company. In addition, Companies will take such
actions as reasonably requested by Buyer to cause all customers
of the Business to make payments on the Accounts to Buyer.
Upon expiration of the ninety-first (91st) day after
the Closing, Buyer will have no further responsibility for
collection of the Accounts and will promptly return to MCI all
records regarding the Accounts. In no event shall Buyer incur
any liability to any Company for its failure to collect any of
the Accounts or any portion thereof. No Company shall take any
action with respect to collecting the Accounts until expiration
of the ninety-one (91) day collection period. All payments
received by Buyer from a person who was a customer of the
Business before the Closing and continues to be a customer of the
Business after the Closing shall be applied by Buyer to the
oldest account first, except in cases where a particular account
is disputed by the customer or where the customer otherwise
designates the account that is being paid.
11.8 Cooperation in Litigation. The parties shall
reasonably cooperate with each other at the requesting party's
expense in the prosecution or defense of any litigation or other
proceeding arising from their respective operation of the
Business.
ARTICLE XII
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
COVENANTS AND INDEMNIFICATION
12.1 Survival. The representations and warranties,
covenants, agreements and obligations of the parties hereto shall
survive the Closing, provided, however, that survival of the
representations and warranties shall be subject to Sections 12.3
and 12.5.
12.2 Companies' Indemnification. Companies hereby
agree jointly and severally to defend, indemnify and hold
harmless Buyer, whether by offset against the Note given pursuant
to Section 1.3 or otherwise, from and against any and all
damages, claims, liabilities, losses, costs and expenses
whatsoever (including attorneys fees) arising out of,
attributable to, resulting from, or incurred with respect to (i)
any breach of warranty or misrepresentation by or on behalf of
any Company under this Agreement or any Ancillary Agreement, or
the breach or non-performance of any covenant, agreement, or
obligation to be performed by any Company under this Agreement or
any Ancillary Agreement; (ii) any misrepresentation in, or
omission from, any certificate or instrument executed and
delivered or to be executed and delivered by or on behalf of any
Company in connection with this Agreement or any Ancillary
Agreement; (iii) any act or omission of any Company in the
conduct of the Business prior to the Closing Date; (iv) any
liability or obligation of any Company not expressly assumed by
Buyer pursuant to Sections 1.6 and 1.7 of this Agreement, or (v)
the failure of the parties to comply with Article 6 of the New
York Uniform Commercial Code, Section 1141 of the New York Tax
Law or any similar statute or regulation in connection with the
transactions contemplated hereby.
12.3 Limitations on Companies' Indemnification. Buyer
may not assert a claim against Companies based upon a breach of
the representations contained in Article III after the second
anniversary of the Closing Date unless Buyer shall have notified
Companies in writing of such breach prior to the second
anniversary of the Closing Date; provided however, that this time
limitation shall not apply to a breach of Companies'
representations or warranties contained in Sections 3.1(b),
3.1(i), 3.1(j), and 3.1(k) (with respect to title to the Subject
Assets and the GmbH Assets). Buyer shall not be entitled to
indemnification with respect to a breach of a representation or
warranty unless and until the total amount for which Buyer is
entitled to indemnification for all matters exceeds $50,000, in
which case Companies shall indemnify Buyer for the amount of all
damages arising from breaches of representations and warranties
to the extent that such damages exceed $50,000; provided,
however, that such limitation shall not apply to a breach of
Company's representations or warranties contained in
Sections 3.1(m) and 3.1(n). Notwithstanding the foregoing, in no
event shall Companies be liable for an aggregate amount greater
than the Purchase Price for all indemnifications hereunder.
12.4 Buyer's Indemnification. Buyer hereby agrees to
defend, indemnify and hold harmless Companies from and against
any and all damages, claims, liabilities, losses, costs and
expenses whatsoever (including attorney's fees) arising out of,
attributable to, resulting from or incurred with respect to
(i) any breach of warranty or misrepresentation by or on behalf
of Buyer under this Agreement or any Ancillary Agreement, or the
breach or nonperformance of any covenant, agreement or obligation
to be performed by Buyer under this Agreement or any Ancillary
Agreement; (ii) any misrepresentation in, or omission from, any
certificate or instrument executed and delivered or to be
delivered and executed by or on behalf of Buyer in connection
with this Agreement or any Ancillary Agreement; (iii) the failure
by Buyer to pay or perform the liabilities and obligations
specifically assumed by Buyer pursuant to Sections 1.6 and 1.7 of
this Agreement; (iv) the failure by Buyer to pay any sales tax or
use tax pursuant to Section 1.10 and (iv) any other liability
arising out of any act or omission of Buyer in the conduct of the
Business after the Closing.
12.5 Limitations on Buyer's Indemnification. Companies
may not assert a claim against Buyer based upon a breach of the
representations contained in Article IV after the second
anniversary of the Closing Date unless Company shall have
notified Buyer in writing of such breach prior to the second
anniversary of the Closing Date. Companies shall not be entitled
to indemnification with respect to a breach of representation or
warranty unless the total amount for which Companies are entitled
to indemnification for all matters exceeds $50,000, in which case
Buyer shall indemnify the Companies for the amount of all damages
arising from breaches of representations and warranties to the
extent that such damages exceed $50,000, provided, however, that
such limitation shall not apply to a breach of Buyer's
representation or warranties contained in Section 4.1(b).
Notwithstanding the foregoing, in no event shall Buyer be liable
for an aggregate amount greater than the Purchase Price for all
indemnifications hereunder.
12.6 Indemnity Procedure.
(a) If a claim for damages (a "Claim") is to be
made by a party entitled to indemnification hereunder against the
indemnifying party, the party claiming such indemnification shall
give a written notice ("Claim Notice") to the indemnifying party
as soon as practicable after the party entitled to
indemnification becomes aware of any fact, condition or event
which may give rise to damages for which indemnification may be
sought under Section 12.2 or Section 12.3, as the case may be.
The Claim Notice shall describe in reasonable detail the factual
and legal basis for the claim and the damages that may be
assessed therewith to the extent then known. The failure of any
indemnified party to give timely notice hereunder shall not
affect rights to indemnification hereunder, except to the extent
that the indemnifying party demonstrates actual damage caused by
such failure.
(b) After an indemnifying party's receipt of a
Claim Notice regarding a claim asserted by a third party filed
against a party seeking indemnification hereunder (a Third Party
Claim"), if the indemnifying party shall acknowledge in writing
to the indemnified party that the indemnifying party shall be
obligated under the terms of its indemnity hereunder in
connection with such Third Party Claim, then the indemnifying
party shall be entitled, if it so elects, (i) to take control of
the defense and investigation of such Third Party Claim, (ii) to
employ and engage attorneys of its own choice to handle and
defend the Third Party Claim, at the indemnifying party's cost,
risk and expense unless the named parties to such Third Party
Claim include both the indemnifying party and the indemnified
party and the indemnified party has been advised in writing by
counsel that there may be one or more legal defenses available to
such indemnified party that are different from or additional to
those available to the indemnifying party, and (iii) to
compromise or settle such Third Party Claim, which compromise or
settlement shall be made only with the written consent of the
indemnified party, such consent not to be unreasonably withheld.
If the indemnifying party fails to assume the defense of such
lawsuit or action within fifteen (15) calendar days after receipt
of notice thereof, the indemnified party against which such has
been asserted will (upon delivering notice to such effect to the
indemnifying party) have the right to undertake, at the
indemnifying party's cost and expense, the defense, compromise or
settlement of such lawsuit or action on behalf of and for the
account and risk of the indemnifying party; provided, however,
that such lawsuit or action shall not be compromised or settled
without the written consent of the indemnifying party, which
consent shall not be unreasonably withheld. In the event the
indemnified party assumes the defense of the lawsuit or action,
the indemnified party will keep the indemnifying party reasonably
informed of the progress of any such defense, compromise or
settlement. The indemnifying party shall be liable for any
settlement of any action effected pursuant to and in accordance
with this Section 12.6 and for any final judgment (subject to any
right of appeal), and the indemnifying party agrees to indemnify
and hold harmless the indemnified party from and against any
damages by reason of such settlement or judgment.
12.7 Reduction for Insurance and Taxes. The amount (an
"Indemnity Payment") which an indemnifying party is required to
pay on behalf of any indemnified party pursuant to this Article
XII shall be reduced by the amount of any insurance proceeds
theretofore or thereafter actually received by or on behalf of
the indemnified party in reduction of the related indemnifiable
loss. An indemnified party which shall have received or on
behalf of which there shall be paid an Indemnity Payment and
which shall subsequently receive insurance proceeds in respect of
the related indemnifiable loss, shall pay to the indemnifying
party the amount of such insurance proceeds or, if lesser, the
amount of the Indemnity Payment. Where any tax benefit is
available to the indemnified party with respect to an
indemnifiable event, the Indemnity Payment shall be reduced
dollar for dollar by the amount of such tax benefit actually
received.
12.8 Exclusivity as to Representations. Following the
Closing, the rights to indemnification provided by this Article
XII shall be exclusive with respect to a breach of representation
or warranty contained in this Agreement and shall be construed to
exclude and preclude the exercise of, and shall be in
substitution and replacement of, any other rights of the parties
hereto, express or implied, under this Agreement or applicable
law, except in the event of a fraudulent breach of a
representation or warranty.
12.9 Non-Exclusivity as to Covenants. Except as
specifically set forth in Section 12.8, the rights to
indemnification provided by this Article XII are not exclusive
and shall not be construed to exclude or preclude the exercise
of, and shall not be in substitution or replacement of, any other
rights of the parties hereto, express or implied, under this
Agreement or applicable law.
ARTICLE XIII
MISCELLANEOUS
13.1 Entire Agreement. This Agreement, together with
all Schedules and Ancillary Agreements, constitutes the entire
Agreement and supersedes all prior agreements and understandings,
both written and oral, between the parties hereto with respect
to the subject matter hereof and no party shall be liable or
bound to the other in any manner by any warranties,
representations, covenants or agreements except as specifically
set forth herein or expressly required to be made or delivered
pursuant hereto.
13.2 Modifications. Any amendment, change or
modification of this Agreement shall be void unless in writing
and signed by all parties hereto.
13.3 Further Assurances. From time to time after the
Closing Date, Companies will execute all such instruments and
take all such actions as Buyer shall reasonably request in order
more effectively to convey and transfer all of the Subject Assets
to Buyer. Company, Shareholder and Buyer shall also execute and
deliver to the appropriate other party such other instruments as
may be reasonably required in connection with the performance of
this Agreement and each shall take all further actions as may be
reasonably required to carry out the transactions contemplated by
this Agreement.
13.4 Binding Effect and Benefits. This Agreement
shall be binding upon and shall inure to the benefit of Buyer and
Companies and their respective successors, permitted assigns,
transferees and legal representatives. This Agreement shall not
be assignable by any party hereto except Buyer may assign this
Agreement to a wholly-owned subsidiary corporation, provided
however that any such assignment shall not relieve Buyer of any
of its obligations hereunder.
13.5 Expenses. Companies and Buyer shall each bear
and pay all costs and expenses respectively incurred by each of
them on their behalf in connection with this Agreement,
including, without limitation, fees and expenses of their own
financial consultants, accountants and counsel.
13.6 Knowledge or Belief. The knowledge of any
officer of any Company shall be deemed to be knowledge of each
Company and the knowledge of any officer of the Buyer shall be
deemed to be knowledge of the Buyer.
13.7 Notices. Any notices or other communications
required or permitted to be given pursuant to this Agreement
shall be deemed to have been given if in writing and delivered
personally or sent by certified mail, postage prepaid, addressed
as follows:
(a) To Buyer:
Moog Inc.
East Aurora, New York 14052
Attn: Robert T Brady, President and
Chief Executive Officer
With a copy to:
Phillips, Lytle, Hitchcock, Blaine & Huber
3400 Marine Midland Center
Buffalo, NY 14203
Attn: John B. Drenning, Esq.
(b) To Companies:
c/o International Motion Control Inc.
9 Centre Drive
Orchard Park, New York 14127
Attn: John Burgess, President
With a copy to:
Albrecht, Maguire, Heffern & Gregg, P.C.
2100 Main Place Tower
Buffalo, New York 14202
Attn: David C. Horan, Esq.
or such other addresses as shall be furnished in writing by any
party to the other party.
13.8 Headings. The headings in this Agreement are for
purposes of reference only and shall not limit or otherwise
affect the meanings hereof.
13.9 Governing Law. This Agreement shall be governed,
construed and enforced in accordance with the laws of the State
of New York without regard to principles of conflicts of law.
13.10 Specific Performance. Since a breach of the
provisions of this Agreement could not adequately be compensated
by money damages, Buyer and Companies shall be entitled, either
before or after the Closing, in addition to any other right or
remedy available, to an injunction restraining such breach or a
threatened breach and to specific performance of any provision of
this Agreement, and in such case no bond or other security shall
be required in connection therewith, and the parties hereby
consent to the issuance of such an injunction and to the ordering
of specific performance.
13.11 Bulk Sales. Companies shall comply with the
bulk sales provisions of the sales tax laws of the State of
New York. Buyer waives compliance by Companies with all
provisions of the Uniform Commercial Code - Bulk Transfers laws
of the State of New York or any other state imposed upon it. In
addition to and not in lieu of any other obligation of Companies
under this Agreement, Companies jointly and severally agree to
indemnify and hold harmless Buyer from any loss, liability or
expense, including, without limitation, the reasonable fees and
disbursements of counsel, suffered or incurred by Buyer by reason
of the failure of Companies to comply with the provisions of the
Uniform Commercial Code or any jurisdiction regarding bulk sales.
13.12 No Third Party Rights. This Agreement is not
intended and shall not be construed to create any rights in any
parties other than Companies and Buyer and no other person shall
asset any rights as a third party beneficiary hereunder.
13.13 Public Announcements. On and after the date
hereof and through the Closing Date, none of the parties shall
issue any press release or make any public statement regarding
the transactions contemplated by this Agreement prior to
obtaining the other parties' approval, which approval shall not
be unreasonably withheld, except that no such approval shall be
necessary to the extent that in the opinion of counsel to the
party proposing to make such disclosure, disclosures are required
by law. Such opinion of counsel shall be confirmed in writing
and promptly delivered to the other parties. The parties may
disclose information with respect to the transactions
contemplated hereby to their employees, agents, securities
analysts, lenders, rating agencies and portfolio managers and
consultants only to the extent such persons have a need to know
and agree to be bound by the terms hereof relative to the
disclosure of such information.
IN WITNESS WHEREOF, each of the parties hereto have
duly executed this Agreement as of the date above first written.
MOOG INC.
By________________________________
MOOG CONTROLS INC.
By
INTERNATIONAL MOTION CONTROL INC.
By
ENIDINE HOLDING, INC.
By
ENIDINE HOLDING, L.P.
By ENIDINE HOLDING, INC.,
general partner
By