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EXHIBIT 2
PURCHASE AGREEMENT
This PURCHASE AGREEMENT ("Agreement") is made and entered into
as of December 31, 1993, by and among SPX Corporation, a Delaware corporation
("SPX"), Kodiak Partners Corp., a Delaware corporation ("Kodiak"), Kodiak
Partners II Corp., a newly-formed Delaware corporation and wholly-owned
subsidiary of SPX ("Kodiak II"), Riken Corporation, a Japanese corporation
("Riken"), and Riken International U.S.A., Inc., a Delaware corporation
("Seller").
WHEREAS, pursuant to the Fourth Amended and Restated Agreement
of Limited Partnership (the "Partnership Agreement") of Sealed Power
Technologies Limited Partnership (the "Partnership") dated as of October 9,
1991 among Sealed Power Management Corp., a Delaware corporation (the "Managing
General Partner"), Kodiak, Seller and various individuals, Seller owns a 48%
limited partnership interest and a 1% general partnership interest in the
Partnership (the "Partnership Interests");
WHEREAS, the Managing General Partner has a capitalization
consisting of 500 authorized shares of Class A Common Stock, $.01 par value,
all of which shares are issued and outstanding and owned by Kodiak, and 500
shares of Class B Common Stock, $.01 par value, all of which shares are issued
and outstanding and owned by Seller (the "MGP Shares");
WHEREAS, Kodiak II desires to purchase the Partnership
Interests and the MGP Shares and Seller desires to sell the Partnership
Interests and the MGP Shares to Kodiak II;
WHEREAS, Kodiak currently owns 275 shares of the issued and
outstanding Common Stock, no par value (the "ARC Shares"), of Allied Ring
Corporation, a Delaware corporation ("ARC");
WHEREAS, Riken desires to purchase the ARC Shares and Kodiak
desires to sell the ARC Shares to Riken;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained in this Agreement, the parties agree
as follows:
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ARTICLE I
PURCHASE AND SALE OF PARTNERSHIP INTERESTS,
MGP SHARES AND ARC SHARES; GUARANTY OF PAYMENT
1.1 Agreement to Purchase and Sell the Partnership Interests,
MGP Shares and ARC Shares. Upon the terms and subject to the conditions set
forth in this Agreement: (a) Seller hereby agrees to sell and Kodiak II hereby
agrees to purchase from Seller, the Partnership Interests and the MGP Shares,
in each case on the Closing Date (as defined below) free and clear of all
Encumbrances (as defined below) for $39 million (the "Kodiak II Purchase
Price") and (b) Kodiak hereby agrees to sell and Riken hereby agrees to
purchase from Kodiak, the ARC Shares on the Closing Date free and clear of all
Encumbrances for $550,000 (the "ARC Purchase Price").
1.2 SPX Guaranty. SPX hereby absolutely and irrevocably
guarantees to Riken and Seller, the full and prompt payment of the sum of
$38,450,000 (the Kodiak II Purchase Price less the ARC Purchase Price), which
amount is payable by Kodiak II to Riken or Seller at Closing. This guaranty is
an absolute, unconditional and irrevocable guaranty of payment by Kodiak II and
is in no way conditioned upon any requirement that Riken or Seller first
attempt to collect payment from Kodiak II or any other party, obligor or
guarantor, institute any suit or other legal proceedings against Kodiak II or
any successors thereto, or resort to any other security or other means of
obtaining payment or upon any other contingency whatsoever upon Kodiak II's
failure to make the payment required by Sections 1.1(a) and 1.4(b)(i).
1.3 The Closing. The consummation (the "Closing") of the
transactions contemplated in this Agreement shall take place at the Chicago
offices of Skadden, Arps, Slate, Meagher & Flom at 10:00 a.m., local time, on
March 15 , 1994 or as soon thereafter as practicable following satisfaction or
waiver of all of the conditions set forth in Article IV and Article V hereof or
at such other place and time as may be agreed upon in writing by SPX, Kodiak,
Kodiak II, Riken and Seller (the date on which the Closing occurs is referred
to as the "Closing Date").
1.4 Deliveries at Closing. (a) At or prior to the Closing,
Seller shall deliver or cause to be delivered to Kodiak II the following:
(i) a certificate evidencing the MGP
Shares, free and clear of all Encumbrances, which certificate
shall be properly endorsed for transfer or accompanied by duly
executed stock powers, in either case executed in blank or in
favor of Kodiak II (with all necessary stock transfer and
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other documentary stamps affixed), and otherwise in a form acceptable
for transfer on the books of the Managing General Partner;
(ii) an instrument or instruments of
assignment of the Partnership Interests, together with evidence of
payment of all applicable transfer and similar taxes, and any other
documents that are necessary to transfer to Kodiak II good and
marketable title to the Partnership Interests, free and clear of all
Encumbrances;
(iii) resignations of the directors of the
Managing General Partner elected by Seller; and
(iv) the certificate required to be
delivered pursuant to Section 5.4.
(b) At or prior to the Closing, Kodiak II and/or
Kodiak, as the case may be, shall deliver or cause to be delivered to Seller or
Riken, as the case may be, the following:
(i) $38,450,000 (the Kodiak II Purchase
Price less the ARC Purchase Price) by wire transfer of immediately
available United States funds to an account or accounts designated by
Seller and Riken;
(ii) the certificate required to be
delivered pursuant to Section 4.4; and
(iii) a certificate evidencing the ARC
Shares, free and clear of all Encumbrances, which certificate shall be
properly endorsed for transfer or accompanied by duly executed stock
powers, in either case executed in blank or in favor of Riken or such
designee as Riken may have directed prior to the Closing (with all
necessary stock transfer and other documentary stamps affixed), and
otherwise in a form acceptable for transfer on the books of ARC.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF RIKEN AND SELLER
Riken and Seller jointly and severally represent and warrant
to SPX, Kodiak and Kodiak II as follows:
2.1 Organization and Qualification. Riken and Seller are
each corporations duly organized, validly existing and in good standing under
the laws of the jurisdiction of their incorporation. The Partnership Interests
and the MGP Shares represent the only interests of Riken and Seller in the
Partnership and the Managing General Partner.
2.2 Ownership of Partnership Interests and MGP Shares. The
Partnership Interests and the MGP Shares are owned and have been owned at all
times during the immediately preceding twelve months, beneficially and of
record, by Seller, and Seller has complete power and right to sell, assign,
transfer and deliver the Partnership Interests and MGP Shares free and clear of
all options, pledges, security interests, liens, charges or other encumbrances
or restrictions on transfer or voting of any kind whatsoever ("Encumbrances"),
other than restrictions contained in the Partnership Agreement and the
Stockholders Agreement, dated October 9, 1991, between Kodiak and Seller (the
"Stockholders Agreement"). Upon consummation of the transactions contemplated
hereby, Kodiak II will acquire good and marketable title to the Partnership
Interests and the MGP Shares, free and clear of all Encumbrances other than
restrictions contained in the Partnership Agreement and the Stockholders
Agreement.
2.3 Authorization. Each of Riken and Seller has full
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The Board of Directors of
Seller and the Board of Directors of Riken have duly approved and authorized
the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby and no further corporate action or other
proceeding on the part of Riken or Seller is necessary to approve and authorize
the execution and delivery of this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Riken and Seller and constitutes a valid and binding agreement of
Riken and Seller, enforceable against each of them in accordance with its
terms, except that such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to creditors' rights
generally or to general principles of equity (regardless of whether enforcement
is sought in a proceeding at equity or at law).
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2.4 No Approvals or Conflicts. Except with respect to the
Partnership Agreement and the Stockholders Agreement, neither the execution and
delivery by Riken or Seller of this Agreement nor the consummation by Riken or
Seller of the transactions contemplated hereby will (i) violate, conflict with
or result in a breach of any provision of the charter or by-laws or similar
governing document of Riken or Seller, (ii) violate, conflict with or result in
a breach of any provision of, or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, or result
in the creation of any Encumbrance upon any of Seller's or Riken's properties
or assets, including Seller's interest in the Partnership Interests or the MGP
Shares or upon the properties or assets of any of their respective subsidiaries
or affiliates (including, without limitation, the Partnership) under any note,
indenture, license, franchise, permit, lease, contract, agreement or other
instrument or obligation to which Seller or Riken or any of their respective
subsidiaries or affiliates may be bound or subject, (iii) violate any order,
writ, injunction, decree, judgment, ruling, law, rule or regulation of any
court or governmental authority, domestic or foreign, applicable to the
Partnership or Riken or Seller or any of their respective subsidiaries or
affiliates or any of their respective properties or assets or (iv) require any
consent, approval or authorization of, or notice to, or declaration, filing or
registration with, any governmental or regulatory authority or other person in
connection with the execution, delivery and performance of this Agreement by
Riken or Seller; except in the case of clauses (ii), (iii) and (iv) above,
where such violation, conflict, breach, default, termination, acceleration,
creation or failure to obtain or make any such consent, approval,
authorization, notice, declaration, filing or registration, or any other
consequence or event described therein, would not, individually or in the
aggregate, be reasonably likely to adversely affect the ability of Riken or
Seller to consummate the transactions contemplated hereby.
2.5 Investment Intent. Riken is acquiring the ARC Shares for
its own account and not with a view to or for sale in connection with any
distribution thereof.
2.6 Brokers and Finders. Neither Riken, Seller nor any of
their respective officers, directors, employees, affiliates or associates has
employed any broker or finder or incurred any liability for any brokerage fees,
commissions or finders' fees in connection with the transactions contemplated
by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SPX, KODIAK AND KODIAK II
SPX, Kodiak and Kodiak II jointly and severally represent and
warrant to Riken and Seller as follows:
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3.1 Corporate Organization. SPX, Kodiak and Kodiak II are
each corporations duly organized, validly existing and in good standing under
the laws of the State of Delaware.
3.2 Ownership of ARC Shares. The ARC Shares are owned,
beneficially and of record, by Kodiak, and Kodiak has complete power and right
to sell, assign, transfer and deliver the ARC Shares free and clear of all
Encumbrances. Upon consummation of the transactions contemplated hereby, Riken
will acquire good and marketable title to the ARC Shares, free and clear of all
Encumbrances.
3.3 Authorization, etc. Each of SPX, Kodiak and Kodiak II
has full corporate power and authority to execute and deliver this Agreement
and to carry out the transactions contemplated hereby. The Board of Directors
of each of SPX, Kodiak and Kodiak II has duly approved and authorized the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby and no further corporate action or other
proceeding on the part of SPX, Kodiak or Kodiak II is necessary to approve and
authorize the execution and delivery of this Agreement by SPX, Kodiak or Kodiak
II or to consummate the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by each of SPX, Kodiak and Kodiak
II and constitutes a valid and binding obligation of SPX, Kodiak and Kodiak II,
enforceable against each of them in accordance with its terms, except that such
enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to creditors' rights generally or to
general principles of equity (regardless of whether enforcement is sought in a
proceeding at equity or at law).
3.4 No Approvals or Conflicts. Neither the execution and
delivery by SPX, Kodiak or Kodiak II of this Agreement nor the consummation by
SPX, Kodiak or Kodiak II of the transactions contemplated hereby will (i)
violate, conflict with or result in a breach of any provision of the
certificate of incorporation or by-laws of SPX, Kodiak or Kodiak II, (ii)
except as shown on Schedule A hereto, violate, conflict with or result in a
breach of any provision of, or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, or result
in the creation of any Encumbrance upon any of SPX's, Kodiak's or Kodiak II's
properties or assets, including the ARC Shares, or upon the properties or
assets of any of their subsidiaries or affiliates (including, without
limitation, the Partnership), under any note, indenture, license, franchise,
permit, lease, contract, agreement or other instrument or obligation to which
SPX, Kodiak or Kodiak II or any of their subsidiaries or affiliates or any of
their respective properties may be bound or subject, (iii) violate any order,
writ, injunction, decree, judgment, ruling, law, rule or regulation of any
court or governmental authority, domestic or foreign, applicable to SPX, Kodiak
or Kodiak II or any of their subsidiaries or affiliates or any of their
respective properties or assets, or (iv) require
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any consent, approval or authorization of, or notice to, or declaration, filing
or registration with, any governmental or regulatory authority in connection
with the execution, delivery and performance of this Agreement by SPX, Kodiak
or Kodiak II; except in case of clauses (ii), (iii) and (iv) above, where such
violation, conflict, breach, default, termination, acceleration, creation or
failure to obtain or make any such consent, approval, authorization, notice,
declaration, filing or registration, or any other consequence or event
described therein, would not, individually or in the aggregate, be reasonably
likely to adversely affect the ability of SPX, Kodiak or Kodiak II to
consummate the transactions contemplated hereby.
3.5 Investment Intent. Kodiak II is acquiring the
Partnership Interests and the MGP Shares for its own account and not with a
view to or for sale in connection with any distribution thereof.
3.6 Brokers and Finders. Neither SPX, Kodiak, Kodiak II nor
any of their respective officers, directors, employees, affiliates or
associates has employed any broker or finder or incurred any liability for any
brokerage fees, commissions or finders' fees for which Seller or Riken will be
liable in connection with the transactions contemplated by this Agreement.
ARTICLE IV
CONDITIONS TO SELLER'S AND RIKEN'S OBLIGATIONS
Each and every obligation of Seller and Riken under this
Agreement to consummate the transactions contemplated hereby is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions,
unless waived in writing by Seller and Riken:
4.1 Representations and Warranties. The representations and
warranties made by SPX, Kodiak and Kodiak II in this Agreement shall be true
and correct in all material respects when made and at and as of the Closing
Date as though such representations and warranties were made at and as of such
date, except for changes expressly permitted or contemplated by the terms of
this Agreement.
4.2 Performance. Each of SPX, Kodiak and Kodiak II shall
have performed and complied in all material respects with all agreements,
obligations and conditions required by this Agreement to be so performed or
complied with by SPX, Kodiak and Kodiak II prior to the Closing.
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4.3 Injunctions. On the Closing Date, there shall be no
injunction, writ, preliminary restraining order or other order in effect of any
nature issued by a court or governmental agency of competent jurisdiction
directing that the transactions provided for herein not be consummated as
provided herein.
4.4 Officer's Certificate. Each of SPX, Kodiak and Kodiak II
shall have delivered to Seller a certificate, dated the Closing Date and
executed by the President or a Vice President of SPX, Kodiak and Kodiak II,
certifying to the fulfillment of the conditions specified in Sections 4.1 and
4.2 hereof.
ARTICLE V
CONDITIONS TO SPX'S, KODIAK'S AND KODIAK II'S OBLIGATIONS
Each and every obligation of SPX, Kodiak and Kodiak II under
this Agreement to consummate the transactions contemplated hereby is subject to
the satisfaction, at or prior to the Closing, of each of the following
conditions, unless waived in writing by SPX, Kodiak and Kodiak II:
5.1 Representations and Warranties. The representations and
warranties made by Riken and Seller in this Agreement shall be true and correct
in all material respects when made and at and as of the Closing Date as though
such representations and warranties were made at and as of such date, except
for changes expressly permitted or contemplated by the terms of this Agreement.
5.2 Performance. Each of Riken and Seller shall have
performed and complied in all material respects with all agreements,
obligations and conditions required by this Agreement to be so performed or
complied with by Riken or Seller prior to the Closing.
5.3 Injunctions. On the Closing Date there shall be no
injunction, writ, preliminary restraining order or other order in effect of any
nature issued by a court or governmental agency of competent jurisdiction
directing that the transactions provided for herein not be consummated as
provided herein.
5.4 Officer's Certificate. Each of Riken and Seller shall
have delivered to SPX, Kodiak and Kodiak II a certificate, dated the Closing
Date and executed by an officer of Riken and Seller, respectively, certifying
to the fulfillment of the conditions specified in Sections 5.1 and 5.2 hereof.
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5.5 Consents. SPX shall have received consents, waivers or
amendments to permit the transactions contemplated herein pursuant to the
agreements listed on Schedule A hereto or, refinancing of the amounts borrowed
pursuant to such agreements upon terms and conditions reasonably satisfactory
to SPX.
ARTICLE VI
COVENANTS AND AGREEMENTS
6.1 Confidentiality. Each of Riken and Seller will hold, and
will cause their respective consultants and advisors to hold, in strict
confidence, unless compelled to disclose by judicial or administrative process
or, in the opinion of its respective counsel, by other requirements of law, all
documents and information concerning SPX, Kodiak, Kodiak II and the Partnership
furnished to them in connection with this Agreement, the Partnership Agreement
or the Partnership or reflecting or based upon, in whole or in part, such
information, except to the extent that such information can be shown to have
been (i) previously known by the party or parties to which it was furnished
(provided that such information is not subject to another confidentiality
agreement or other obligation of secrecy owed to the party or parties providing
such information), (ii) in the public domain through no fault of the party or
parties to which it was furnished or (iii) later lawfully acquired from other
sources by the party or parties to which it was furnished (provided that such
sources are not known by such party or parties to be bound by a confidentiality
agreement with or other obligation of secrecy to the disclosing party or
parties or another party). Each of Riken's and Seller's covenant contained in
this Section 6.1 shall continue for five years from the Closing Date, except to
the extent the information referred to herein comes into the public domain
through no fault of the party or parties required to hold it in confidence.
6.2 Notice of Breach of Representation or Warranty. From
time to time prior to the Closing, the parties agree to notify promptly each
other with respect to any matter, condition or occurrence hereafter arising
which, if existing or occurring at the date of this Agreement would have
resulted in the breach of a representation or warranty made in this Agreement.
No such notice with respect to this Agreement shall be deemed to cure any
breach of any representation or warranty made in this Agreement so as to permit
the Closing to occur unless SPX, Kodiak, Kodiak II, Riken or Seller, as the
case may be, specifically agrees thereto in writing.
6.3 Covenant to Satisfy Conditions. Each of Riken, Seller,
Kodiak, Kodiak II and SPX agree to use reasonable efforts to insure that the
conditions set forth in Article IV
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and Article V hereof are satisfied, insofar as such matters are within the
control of any of them.
6.4 Obligations under Partnership Agreement. Each of Riken
and Seller agrees that from and after the date hereof they shall not take any
position in any tax return, amended tax return or audit or otherwise with
respect to taxes that is inconsistent with any provision of the Partnership
Agreement. Except as otherwise provided in this Section 6.4 and Section 6.1,
as of the Effective Date (as defined below), Seller shall no longer be deemed
to be a partner in the Partnership and shall not have any continuing obligation
or liability to any other partner of the Partnership or the Partnership and no
other partner or the Partnership shall have any continuing obligation or
liability to Seller or Riken, in each case, under the terms of the Partnership
Agreement.
6.5 Effective Date. Each of Riken, Seller, SPX, Kodiak and
Kodiak II agree that the transfer of the MGP Shares and Partnership Interests
by Seller to Kodiak II and the transfer of the ARC Shares by SPX to Riken shall
be effective immediately prior to the close of business on December 31, 1993
(the "Effective Date").
ARTICLE VII
TERMINATION
7.1 Termination. This Agreement may be terminated and
abandoned at any time prior to Closing:
(a) by the mutual written consent of Riken, Seller,
Kodiak, Kodiak II and SPX; or
(b) by either Riken, Seller, Kodiak, Kodiak II or
SPX in the event the Closing has not occurred on or before September 30, 1994;
provided, however, that the right to terminate this Agreement shall not be
available to any party whose failure to fulfill any obligation under this
Agreement has been the cause of, or resulted in, the failure of the Closing to
occur on or before such date.
7.2 Effect of Termination. In the event of any termination
of this Agreement, neither party to this Agreement will have any liability to
the other, except for any breach of any provisions of this Agreement.
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ARTICLE VIII
CONDUCT OF BUSINESS OF
PARTNERSHIP PENDING THE CLOSING
8.1 Regular Course of Business. Prior to the Closing, the
parties hereto agree to use best efforts to insure that the Partnership shall
carry on the Partnership Operations (as hereinafter defined) substantially in
the same manner as heretofore conducted, and shall not institute with respect
to the Partnership Operations any new methods of purchase, sale, lease,
management, or accounting or operation or engage in any transaction or
activity, enter into any agreement or make any commitment relating to the
Partnership Operations, except in the ordinary course of business and
consistent with past practice. For purposes of this Agreement, "Partnership
Operations" means all of the Partnership's properties, assets, operations and
businesses and all other rights and privileges, real, personal or mixed,
intangible or tangible, pertaining, or relating to the Partnership's divisions
of every kind and description, wherever such properties, assets, operations and
businesses may be located, as the same exist on the date of this Agreement.
8.2 Organization. Prior to the Closing, the parties hereto
agree to use best efforts to insure that the Partnership shall preserve the
relationships of the Partnership Operations with lessors, suppliers,
distributors, customers and others having business relations with it; provided,
however, that nothing herein shall prevent the Partnership from asserting any
claims against any such lessors, suppliers, distributors, customers and others.
8.3 Compliance with Laws. The parties hereto agree to use
best efforts to insure that the Partnership shall use all reasonable efforts to
comply duly with all laws applicable to the Partnership Operations, the
violation of which would be reasonably likely to result in a material adverse
effect upon the Partnership Operations.
ARTICLE IX
MISCELLANEOUS
9.1 Survival of Representations and Warranties. The several
representations and warranties of the parties contained in this Agreement or in
any instrument delivered pursuant hereto shall survive the Closing Date for a
period of one year; provided however, that the representations and warranties
contained in Sections 2.2 and 3.2 shall survive the Closing Date without
limitation.
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9.2 Fees and Expenses. Each of the parties shall bear its
own expenses in connection with the negotiation and consummation of the
transactions contemplated by this Agreement. If either of the parties has
retained a broker or finder in connection with the transactions contemplated
herein, such party shall bear the fees and expenses of such broker or finder.
9.3 Further Assurances. From time to time, each party,
without further consideration, will execute and deliver such documents
(including, without limitations, any tax election) and take such action as the
other party may reasonably request in order to more effectively consummate the
transactions contemplated hereby and to vest in Kodiak II title to the
Partnership Interests and the MGP Shares and to vest in Riken title to the ARC
Shares. SPX agrees to negotiate in good faith with its creditors to obtain all
necessary modifications, consents, amendments or waivers which may be required
pursuant to the agreements listed on Schedule A attached hereto that are not
being repaid or refinanced as contemplated by Section 5.5.
9.4 Governing Law; Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of New York (without
giving effect to its principles of conflict of laws). The parties acknowledge
and agree that each has entered into this Agreement in the mutual expectation
that its terms and conditions will be governed by and interpreted in accordance
with the substantive laws of the State of New York. Therefore, the parties
waive any right which any of them may have to challenge the efficacy of this
provision or to contend that the laws of any other jurisdiction should govern
the interpretation of this Agreement because such other jurisdiction has more
significant contacts with, or a greater interest in, the matter in dispute than
does the State of New York. Each party agrees that any suit, action or
proceeding with respect to this Agreement, and the performance of the parties
hereunder shall only be brought in the Courts of the State of New York in the
County of New York, City of New York, or in the United States District Court
for the Southern District of New York. Accordingly, each party submits
irrevocably to the exclusive jurisdiction of each such Court for the purpose of
any such suit, action or proceeding and waives irrevocably both any right which
it may have to bring any such suit, action or proceeding in any forum other
than a Court of the State of New York in the County of New York, City of New
York, or in the United States District Court for the Southern District of New
York, and any defense which it may have to the enforcement of this provision,
whether based on the inconvenience of the forum or otherwise. Each party
acknowledges that service of process in any such suit, action or proceeding may
be effected in any manner then permitted, as the case may be, under the New
York Civil Practice Law and Rules or the Federal Rules of Civil Procedure of
the United States of America (or any instrument corresponding thereto).
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9.5 Amendment. This Agreement may not be amended, modified
or supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
9.6 No Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but, except as provided in
this Section 9.6, neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto without
the prior written consent of the other parties; Kodiak II may assign all or any
portion of its rights and obligations to purchase the Partnership Interests and
the MGP Shares under this Agreement to any person, corporation, business trust,
joint venture, association or company (a "Kodiak Permitted Assignee"); Riken
may assign all or any portion of its rights and obligations to purchase the ARC
Shares to a direct or indirect wholly-owned subsidiary of Riken (a "Riken
Permitted Assignee"). If such assignment shall be made by Kodiak II or Riken,
as the case may be, such Kodiak Permitted Assignee or Riken Permitted Assignee
shall be entitled to all of the rights and shall assume all of the obligations
of Kodiak II or Riken, as the case may be, with respect to such assignment but
such assignment shall not relieve Kodiak II or Riken, as the case may be, of
its obligations hereunder.
9.7 Publicity. None of SPX, Riken, Kodiak, Kodiak II or
Seller shall make or issue, or cause to be made or issued, any announcement or
written statement concerning this Agreement or the transactions contemplated
hereby for dissemination to the general public without the prior written
consent of the other parties. This provision shall not apply, however, to any
announcement or written statement required, in the opinion of counsel to such
party, to be made by law or the regulations of any federal or state
governmental agency or any stock exchange, except that the party required to
make such announcement shall, whenever practicable, consult with the other
parties concerning the timing and content of such announcement before such
announcement is made.
9.8 Waiver. Any of the terms or conditions of this Agreement
which may be lawfully waived may be waived in writing at any time by the party
which is entitled to the benefits thereof. Any waiver of any of the provisions
of this Agreement by any party hereto shall be binding only if set forth in an
instrument in writing signed on behalf of such party. No failure to enforce
any provision of this Agreement shall be deemed to or shall constitute a waiver
of such provision and no waiver of any of the provisions of this Agreement
shall be deemed to or shall constitute a waiver of any other provision hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
9.9 Notices. Any notices and other communications to be
given in connection with this Agreement shall be in writing, and shall be
deemed to have been given upon the
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earliest of delivery thereof if by hand or upon receipt if sent by mail
(registered or certified mail, postage prepaid, return receipt requested), or
on the second business day after deposit if sent by a recognized overnight
delivery service or upon transmission if sent by telex or facsimile
transmission (with request for assurance of receipt in a manner customary for
communications of such type) as follows:
If to SPX or Kodiak II:
SPX Corporation
100 Terrace Plaza
Muskegon, Michigan 49443
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Meagher & Flom
333 West Wacker Drive
Chicago, Illinois 60606
Attention: William R. Kunkel
If to Riken or Seller:
Riken Corporation
13-5 Kudankita 1-chome
Chiyoda-ku, Tokyo 102 Japan
Attention: Managing Director
with a copy to:
Whitman, Breed, Abbott & Morgan
200 Park Avenue
New York, New York 10166
Attention: Jay Gladis
or to such other address as any party hereto may, from time to time, designate
in a written notice given in like manner.
9.10 Complete Agreement. This Agreement and the other
documents and writings referred to herein or delivered pursuant hereto, contain
the entire understanding of
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the parties with respect to their subject matter. There are no restrictions,
agreements, promises, warranties, covenants or undertakings other than those
expressly set forth in such documents with respect to the subject matter of
this Agreement. Except as otherwise provided herein, this Agreement supersedes
all prior agreements and understandings, both written and oral, between the
parties with respect to such subject matter. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
9.11 Counterparts. This Agreement may be executed in one or
more counterparts all of which shall be considered one and the same agreement
and each of which shall be deemed an original.
9.12 Headings. The headings contained in this Agreement are
for reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
9.13 Severability. Any provision of this Agreement which is
invalid, illegal or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity, illegality, or
unenforceability, without affecting in any way the remaining provisions hereof
in such jurisdiction or rendering that or any other provision of this Agreement
invalid, illegal or unenforceable in any other jurisdiction.
9.14 Third Party Beneficiaries. Nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the
parties hereto or their respective successors and permitted assigns (including,
without limitation, a Permitted Assignee pursuant to Section 9.6), any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
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IN WITNESS WHEREOF, SPX, Kodiak, Kodiak II, Riken and Seller
have caused this Agreement to be executed by their duly authorized officers as
of the day and year first above written.
SPX CORPORATION
By: /s/ Dale A. Johnson
Name: Dale A. Johnson
Title: Chairman & Chief Executive Officer
KODIAK PARTNERS CORP.
By: /s/ James M. Sheridan
Name: James M. Sheridan
Title: Vice President
KODIAK PARTNERS II CORP.
By: /s/ James M. Sheridan
Name: James M. Sheridan
Title: Vice President
RIKEN CORPORATION
By: /s/ Ko Chiba
Name: Ko Chiba
Title: President
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RIKEN INTERNATIONAL U.S.A.,
INC.
By: /s/ T. Suzuki
Name: T. Suzuki
Title: President