<PAGE> 1
Page 1 of 25 pages.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
(Amendment No. 2/Final)
Under the Securities Exchange Act of 1934
Cedar Group, Inc.
-----------------
(Name of Issuer)
Common Stock, $.001 par value per share
---------------------------------------
(Title of Class of Securities)
15033210
--------------
(CUSIP Number)
B. Bernard Burns, Jr., Esq.
UNITED DOMINION INDUSTRIES LIMITED
2300 One First Union Center
Charlotte, North Carolina 28202-6039
(704) 347-6800
---------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
with copy to:
Stephen M. Lynch, Esq.
Robinson, Bradshaw & Hinson, P.A.
1900 Independence Center
Charlotte, North Carolina 28246
(704) 377-2536
March 14, 1996
-------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement [ ]. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
This Amendment contains 25 pages.
The exhibit index is on page 5.
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<TABLE>
<S> <C>
SCHEDULE 13D
------------
CUSIP NO. 15033210 PAGE 2 OF 25 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
UNITED DOMINION INDUSTRIES LIMITED
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
NUMBER OF
SHARES 0
BENEFICIALLY
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 0
WITH
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
14 TYPE OF REPORTING PERSON
CO
</TABLE>
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Page 3 of 25 pages
PRELIMINARY STATEMENT
This Amendment No. 2/Final (this "Amendment") amends and supplements
the Statement on Schedule 13D dated August 10, 1994 as filed with the Securities
and Exchange Commission (the "Statement"), with respect to the shares of Common
Stock, $.001 par value per share (the "Common Stock"), of Cedar Group, Inc., a
Delaware corporation (the "Issuer"), by United Dominion Industries Limited, a
corporation organized under the laws of Canada (the "Reporting Person").
Capitalized terms used herein without definition have the same meaning as those
ascribed to them in the Statement. This Amendment reports that the Reporting
Person has ceased to beneficially own more than five percent of the outstanding
shares of the Common Stock.
Item 5. Interest in Securities of the Issuer.
(a), (b) and (c) Pursuant to a Purchase and Settlement Agreement dated
as of December 18, 1995 (the "Settlement Agreement") among the Reporting Person,
the Issuer and Dominion Bridge, Inc., a majority owned subsidiary of the Issuer
formerly known as 3010864 Canada Inc. (the "Subsidiary"), the Reporting Person
has sold to the Issuer all shares of Class A Preferred Stock (the "Subsidiary
Stock") of the Subsidiary owned by the Reporting Person for a total purchase
price of $(Cdn.)11,500,000. Shares of the Subsidiary Stock were convertible,
under certain circumstances, into shares of Common Stock. As a result of such
sale, the Reporting Person ceased to beneficially own any shares of Common
Stock.
(d) Not applicable.
(e) The Reporting Person ceased to beneficially own more than five
percent of the outstanding shares of Common Stock on March 14, 1996.
Item 6. Contracts, Arrangements, Undertakings or Relationships With Respect to
Securities of the Issuer.
The Settlement Agreement is filed as Exhibit 2 hereto and is
incorporated by reference herein.
Item 7. Material to be Filed as Exhibits.
The Settlement Agreement is filed as Exhibit 2 hereto.
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Page 4 of 25 pages
Signatures.
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Amendment is true, complete and
correct.
Dated: April 10, 1996
UNITED DOMINION INDUSTRIES LIMITED
By: /s/ William Dries
--------------------------------------------
William Dries, Vice President and Controller
By: /s/ Richard L. Magee
--------------------------------------------
Richard L. Magee, Assistant Secretary
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Page 5 of 25 pages
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT TITLE NUMBERED PAGE
- ------- ----- -------------
<S> <C> <C>
1* Shareholders' Agreement dated
March 31, 1994 among United Dominion
Industries Limited, Cedar Group, Inc.,
Edinov Corporation and 3010864 Canada Inc.
2 Purchase and Settlement Agreement dated as of 6
December 18, 1995 among United Dominion Industries
Limited, Cedar Group, Inc. and Dominion Bridge, Inc.
</TABLE>
______________________
* Previously filed.
<PAGE> 1
EXHIBIT 2
PURCHASE AND SETTLEMENT AGREEMENT
This Agreement, made as of the 18th day of December 1995, by and
between United Dominion Industries Limited, a corporation incorporated under the
laws of Canada ("United Dominion"); Cedar Group, Inc., a corporation
incorporated under the laws of Delaware ("Cedar Group"), and Dominion Bridge,
Inc., a corporation incorporated under the laws of Canada, originally
incorporated as 3010864 Canada Inc. ("Dominion Bridge").
Background Statement
(A) On April 8, 1994, United Dominion, Cedar Group, a corporation
affiliated with Cedar Group named Edinov Corporation, and Dominion Bridge
consummated a series of transactions pursuant to which (a) Dominion Bridge was
incorporated and became the owner of its current assets, (b) Cedar Group became
the owner of 85% of the outstanding common shares of Dominion Bridge, (c) United
Dominion became the owner of 15% of the outstanding common shares of Dominion
Bridge, and (d) Cedar Group, Dominion Bridge, Edinov and United Dominion entered
into the Shareholders' Agreement (as hereinafter defined), all as described in a
Master Agreement (as hereinafter defined). Also pursuant to the transactions,
United Dominion became the owner of all the issued and outstanding Class A
preferred shares of Dominion Bridge and Cedar Group became the owner of all the
issued and outstanding Class B preferred shares of Dominion Bridge, as further
described in the Master Agreement.
(B) Cedar Group has acquired from United Dominion all of the
common shares and all but 9,552,000 of the Class A preferred shares held by
United Dominion in Dominion Bridge.
(C) United Dominion desires to sell and Cedar Group desires to buy
all remaining Class A preferred shares held by United Dominion in Dominion
Bridge in accordance with this Agreement and to provide for the release and
discharge by United Dominion of all of its security against the assets of
Dominion Bridge and Cedar Group and Edinov all in accordance with this
Agreement. Subject to the terms hereof, United Dominion is prepared to release
and discharge its security against the assets of Dominion Bridge, Cedar Group
and Edinov, as well as any collateral or cross guarantees, relating to proposed
financing, provided by any of them with respect to the obligations of any other
of them towards United Dominion.
Statement of Agreement
Now, therefore, in consideration of the premises herein, the payments
and transfers made pursuant hereto, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
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Article I - Interpretation
1.1 - Definitions. Unless something in the subject matter or context
is inconsistent therewith:
(a) "Act" means the Canada Business Corporations Act as the same may be
supplemented, amended or replaced from time to time;
(b) "Additional Shares" has the meaning ascribed thereto in clause 2.1(b);
(c) "Agreement" means this Purchase and Settlement Agreement dated as of
December 18, 1995 between United Dominion, Cedar Group and Dominion
Bridge;
(d) "Bonding Facilities" means bonding facilities for the purposes of
bidding on and/or obtaining customer contracts obtained by the
Business and specifically includes such bonding facilities put in
place by United Dominion for the benefit of the Business as are
currently in existence;
(e) "Business" means the business of Dominion Bridge, whether now
conducted by Dominion Bridge or previously conducted as and through a
division of United Dominion;
(f) "Business Day" means any day other than a Saturday or Sunday or other
day on which the principal commercial banks are not open for business
in Toronto, Ontario, Montreal, Quebec or Charlotte, North Carolina;
(g) "Cedar Group" means Cedar Group, Inc., a corporation incorporated
under the laws of Delaware;
(h) "Cedar Group Shares" means shares of common stock of Cedar Group;
(i) "Debenture" means the debenture made April 8, 1994 by Dominion Bridge
in favour of United Dominion in the principal amount of $100 million;
(j) "Deed of Hypothec" means the deed of hypothec dated April 8, 1994
granted by Dominion Bridge in favour of United Dominion;
(k) "Dominion Bridge" means Dominion Bridge, Inc., a corporation
incorporated under the Act;
(l) "Edinov" means Edinov Corporation, a corporation incorporated under
the Act;
(m) "Hypothecation and Pledge of Securities Agreement" means the
Hypothecation and Pledge of Securities Agreement dated April 8, 1994
granted by Cedar Group to United Dominion;
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(n) "Interim Credit Agreement" means the letter agreement dated April 8,
1994 between United Dominion and Dominion Bridge regarding interim
financing of up to $10 million;
(o) "Master Agreement" means the Master Agreement dated March 9, 1994
among United Dominion, Cedar Group, Edinov and Dominion Bridge;
(p) "Oakville, Ontario Address" means 2829 Sherwood Heights Drive,
Oakville, Ontario L6J 7R7, Canada;
(q) "Original Agreements" means all the agreements, certificates and
letters executed between and among the parties hereto and Edinov in
connection with the transactions consummated on April 8, 1994,
including but not limited to the Master Agreement, Rollover Agreement,
Share Purchase Agreement, Shareholders' Agreement, Registration Rights
Agreement, Debenture, Deed of Hypothec, Hypothecation and Pledge of
Securities Agreement, Interim Credit Agreement, Pledge Agreement and
Security Agreement;
(r) "Parties" means United Dominion, Cedar Group and Dominion Bridge;
(s) "Person" means and includes any individual, corporation, partnership,
unincorporated syndicate, unincorporated organization, trust, trustee,
executor, administrator or other legal representative;
(t) "Pledge Agreement" means the Pledge Agreement dated April 8, 1994
granted by Dominion Bridge to United Dominion with respect to the
Debenture;
(u) "Preferred Shares" means the 9,552,000 7 1/2% Cumulative Redeemable
Retractable Class A Preferred Shares in the capital of Dominion Bridge
owned by United Dominion;
(v) "Proceeding" means any suit, action, dispute, claim, litigation,
arbitration or any legal, administrative or other proceeding or
governmental investigation, including appeals and applications for
review, at law or in equity or before any court or arbitrator or
federal, provincial, state, municipal or other governmental
department, commission, tribunal, board or agency;
(w) "Registration Rights Agreement" means the Registration Rights
Agreement dated April 8, 1994 between United Dominion and Cedar Group;
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(w.1) "Resolution" means a resolution of the Executive Committee of United
Dominion constituting Cedar Group as its attorney-in-fact pursuant to
Section 4.1 hereof;
(x) "Rollover Agreement" means the Rollover Agreement executed March 9,
1994 with effect as of December 31, 1993 between United Dominion and
Dominion Bridge;
(y) "Security Agreement" means the Security Agreement dated April 8, 1994
granted by Dominion Bridge to United Dominion;
(z) "Share Purchase Agreement" means the Share Purchase Agreement dated
March 10, 1994 between United Dominion and Cedar Group;
(aa) "Shareholders' Agreement" means the Shareholders' Agreement dated
April 8, 1994 among United Dominion, Cedar Group, Edinov and Dominion
Bridge;
(ab) "Specified Financial Obligations" means the obligations of United
Dominion under or in respect of each of the outstanding bonds, letters
of credit, foreign exchange contracts and guarantees of United
Dominion relating to the Business and identified in SCHEDULE A,
including all future renewal or other fees and costs payable in
respect thereof, all of which obligations were assumed and/or
guaranteed by Dominion Bridge and Cedar Group pursuant to the Original
Agreements, but for which obligations United Dominion remains directly
responsible;
(ac) "Transfer Agent" means the transfer agent appointed from time to time
by Cedar Group with respect to the Cedar Group Shares, which currently
is Pacific Corporate Trust Company;
(ad) "Transfer Agent Agreement" means the agreement substantially in the
form attached hereto as EXHIBIT B; and
(ae) "United Dominion" means United Dominion Industries Limited, a
corporation incorporated under the Act.
1.2 - Headings. The division of this Agreement into Articles and
Sections and the insertion of headings are for the convenience of reference only
and shall not affect the construction or interpretation of this Agreement. The
terms "this Agreement", "hereof", "hereunder" and similar expressions refer to
this Agreement and not to any particular Articles, Sections or other portions
hereof and include any agreement supplemental hereto. Unless something in the
subject matter or context is inconsistent therewith, references herein to
Articles and Sections are to Articles and Sections of this Agreement.
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1.3 - Extended Meanings. In this Agreement, unless the context
otherwise requires, words importing the singular number only shall include the
plural and vice-versa and words importing the masculine gender shall include
feminine and neuter genders and vice-versa.
1.4 - Currency. All references to currency herein are to the lawful
money of Canada unless otherwise explicitly indicated.
1.5 - Schedules and Exhibits. The following schedules and exhibits
are annexed to this Agreement and are incorporated by reference and deemed to be
a part hereof:
Schedule A Specified Financial Obligations
Exhibit B Transfer Agent Agreement
Exhibit C Resolution
Article II - Purchase and Settlement
2.1 - General Terms. United Dominion hereby sells, exchanges and
transfers to Cedar Group, and Cedar Group accepts, the Preferred Shares for an
aggregate purchase price of $11,500,000. The $11,500,000 is to be satisfied as
follows:
(a) as to $5,000,000, by the contemporaneous purchase of 5,000,000
Preferred Shares for an aggregate cash payment of $5,000,000; and
(b) as to $6,500,000, by the sale pursuant to section 2.5 of up to a
maximum of 1,250,334 fully registered Cedar Group Shares (being
842,000 Cedar Group Shares issuable upon conversion of the remaining
Preferred Shares and up to an additional 408,334 Cedar Group Shares
(the "Additional Shares")).
2.2 - Release of Funds to United Dominion. The $5,000,000 payable to
United Dominion pursuant to clause 2.1(a) has been deposited by Cedar Group
into the trust account of its lawyers, Pouliot Mercure. Such funds (together
with interest thereon from the date of this Agreement) shall be delivered to
United Dominion forthwith upon the execution of this Agreement, and this
Agreement shall constitute the irrevocable instruction to such attorneys to pay
such funds as aforesaid.
2.3 - Use of "Husky" funds in trust. As part of the cash payment of
$5,000,000 contemplated by clause 2.1(a), the principal amount of $450,000
together with the interest accrued thereon to the date of this Agreement,
relating to the Husky settlement referred to in section 4.2 hereof, shall be
released from the trust account of the attorneys of Dominion Bridge holding such
funds and paid forthwith to United Dominion, and this Agreement, upon its
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execution, shall constitute irrevocable instruction to such attorneys to pay
such funds as aforesaid.
2.4 - Limitation on United Dominion Holdings. United Dominion agrees
that it shall not hold in excess of 750,000 Cedar Group Shares at any one time.
2.5 - Sale of Cedar Group Shares. All the Cedar Group Shares issued
to United Dominion pursuant to this Agreement shall be sold according to the
following criteria:
(a) Subject to the provisions hereof, Cedar Group shall sell at least
200,000 Cedar Group Shares during each consecutive 30 day period
following the execution of this Agreement until either (i) United
Dominion shall have realized $6,500,000 pursuant to the provisions of
this Agreement for the sale of the Cedar Group Shares issued to United
Dominion pursuant hereto, or (ii) all 1,250,334 Cedar Group Shares
contemplated to be sold hereby have been sold.
(b) If, for any reason (including the application of clause (e)), Cedar
Group fails to sell at least 200,000 Cedar Group Shares during any
such 30 day period, at the expiration of such period, Cedar Group
shall immediately remit, or cause the Transfer Agent to remit, to
United Dominion the number of Cedar Group Shares representing the
difference between 200,000 Cedar Group Shares and the number of Cedar
Group Shares actually sold by Cedar Group during such period.
(c) United Dominion shall be free to dispose of the Cedar Group Shares it
receives pursuant to the preceding clause in accordance with the
following procedure. In the event United Dominion proposes to sell
any Cedar Group Shares received pursuant to section 2.5, it will first
provide to Cedar Group notice in writing by fax of its intention to do
so. Such notice will state (i) the number of Cedar Group Shares
intended to be sold and (ii) the price per share at which United
Dominion anticipates it will consummate the sale. The price set forth
in the notice will be the closing price for Cedar Group Shares if the
notice is provided after the close of the market, or, if provided
prior to the close, the estimated price provided to United Dominion by
the broker United Dominion intends to use to consummate the sale.
Cedar Group will have the option to notify United Dominion in writing
by fax by 2:30 p.m., New York, N.Y. time, on the Business Day
following the date United Dominion sent its notice that Cedar Group
will purchase the Cedar Group Shares described in the notice at the
price set forth therein. In the event Cedar Group fails timely to
provide such notice, United Dominion may proceed to consummate the
sale of such Cedar Group Shares at the current market price. In the
event Cedar Group timely provides notice that it will purchase such
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Cedar Group Shares, Cedar Group must deliver funds to settle the
transaction within three business days. If Cedar Group fails to
deliver the necessary funds within three business days, United
Dominion will be free to dispose of such Cedar Group Shares as set
forth in the notice at the then current market price and Cedar Group
shall immediately remit to United Dominion the amount by which the
proceeds actually received by United Dominion from the sale of such
Cedar Group Shares is less than the amount that was due from Cedar
Group pursuant to the exercise of its purchase and option. In
addition, United Dominion will thereafter be free to dispose of any
Cedar Group Shares it receives pursuant to section 2.5 without
providing any prior notice whatsoever to Cedar Group. In addition to
the foregoing, in the event United Dominion proposes to sell Cedar
Group Shares received pursuant to this section 2.5 at a price below
U.S.$5.00 per share, United Dominion shall not sell any such Cedar
Group Shares at a price below the then current market price for Cedar
Group Shares. United Dominion shall be required to advise Cedar Group
of the amount of all proceeds received by it from the sale of such
Cedar Group Shares.
(d) Cedar Group advises that 1,158,334 Cedar Group Shares of the 1,250,334
Cedar Group Shares contemplated to be sold hereby are currently
registered. Cedar Group undertakes to register the remaining 92,000
Cedar Group Shares immediately if United Dominion fails to realize at
least $6,500,000 pursuant to this Agreement on the basis of the first
1,158,334 Cedar Group Shares.
(e) Notwithstanding clause (a), Cedar Group shall not sell any Cedar Group
Shares for disposition at a per share price less than U.S.$5.00
without the prior written approval of United Dominion.
(f) Cedar Group shall direct that all gross proceeds realized from the
disposition of the Cedar Group Shares, less reasonable commissions
paid to registered securities brokers not exceeding U.S.$0.04 per
share, shall be paid directly to United Dominion up to aggregate gross
proceeds of $6,500,000.
(g) If United Dominion realizes $6,500,000 on the sale of Cedar Group
Shares pursuant to the provisions of this Agreement before all of the
Cedar Group Shares in its possession are disposed of, United Dominion
shall return any unsold Cedar Group Shares to Cedar Group forthwith.
United Dominion undertakes not to sell more Cedar Group Shares than
are reasonably required to realize a total of $6,500,000 for such
Cedar Group Shares pursuant to the provisions of this Agreement.
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(h) United Dominion shall pay to Cedar Group the amount, if any, by which
the amount it realizes for the Cedar Group Shares pursuant to the
provisions of this Agreement exceeds $6,500,000.
(i) Should United Dominion not realize at least $6,500,000 for the Cedar
Group Shares pursuant to the provisions of this Agreement, it shall
have no further claim against Cedar Group, Dominion Bridge or Edinov
Corporation with respect to the purchase of the Preferred Shares.
(j) To the extent that funds are delivered by Cedar Group to United
Dominion in U.S. dollars or United Dominion sells Cedar Group Shares
in U.S. dollars, for the purposes of converting such amounts into
Canadian dollars, the parties agree that the noon spot rate for
exchanges on the date of delivery in the case of deliveries by Cedar
Group and on the date of settlement in the case of sales by United
Dominion shall apply.
2.6 - Anti-Dilution Provisions. If, at any time and from time to
time, there is a change in the capital of Cedar Group which would have resulted
in a change in the Exchange Rate as contemplated by clauses 5.8(b) through
5.8(c) of the Shareholders' Agreement were such agreement still in force, the
right of United Dominion to receive Cedar Group Shares hereunder, including the
right to receive Additional Shares, shall be adjusted in the same manner as the
Exchange Rate would have been adjusted pursuant to the Shareholders' Agreement.
2.7 - Allocation of Purchase Price. Cedar Group and United Dominion
agree that the $11,500,000 purchase price shall be allocated as follows:
(a) $1 for the settlement of all claims, guarantees and other obligations,
including without limitation any unpaid dividends on the Preferred
Shares and any interest payments, but excluding the tax benefits
specifically detailed below, and
(b) $11,499,999 for the purchase of the Preferred Shares.
2.8 - Endorsement of Share Certificates. United Dominion acknowledges
that the law firm of Pouliot Mercure is holding the share certificates
representing the Preferred Shares in trust, and hereby undertakes to endorse
the share certificates of all Class A preferred shares of Dominion Bridge ever
purchased from it by Cedar Group, whether pursuant to this Agreement or prior
hereto.
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Article III - Representations and Warranties
3.1 - Representations and Warranties of United Dominion. United
Dominion represents and warrants to Cedar Group and Dominion Bridge as follows
and acknowledges that each of Cedar Group and Dominion Bridge is relying upon
such representations and warranties in connection with the transactions
contemplated in this Agreement:
(a) Corporate Organization. United Dominion is a corporation
incorporated, organized and subsisting under the laws of Canada, with
all requisite corporate power to own its assets and properties and to
conduct its business as presently being conducted by it.
(b) Due Authorization. United Dominion has all requisite corporate power
to enter into this Agreement and to take, perform or execute all
proceedings, acts and instruments necessary or advisable to consummate
the transactions contemplated hereby and fulfil its obligations
hereunder. All necessary corporate action has been taken by or on the
part of United Dominion to authorize its execution and delivery of
this Agreement and the taking, performing or execution of such
proceedings, acts and instruments as are necessary or advisable for
consummating the transactions contemplated hereby.
(c) Enforceability. This Agreement has been duly executed and delivered
on behalf of United Dominion, and this Agreement constitutes a legal,
valid and binding obligation of United Dominion, enforceable against
it in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws and by general principles of equity.
(d) Absence of Conflict. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby and in
compliance with and fulfilment of the terms and provisions of this
Agreement will not: (i) conflict with or result in a breach in the
terms, conditions or provisions of, or constitute a default under: (1)
the constating documents, by-laws, resolutions or any unanimous
shareholder agreement of United Dominion; or (2) any mortgage,
judgment, order, award or decree to which United Dominion is a party
or by which it is bound, except for any such breach or default that
would not, individually or in the aggregate, have a material adverse
effect on the capacity or ability of United Dominion to consummate the
transactions contemplated hereby; or (ii) require any affirmative
approval, consent, authorization or other order or action by any
Court, governmental authority or regulatory body applicable to United
Dominion.
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(e) Ownership of Shares. United Dominion is the sole registered and
beneficial owner of the Preferred Shares, free of any lien or other
encumbrance except as set forth in the Shareholders' Agreement, and
has full corporate authority to transfer the Preferred Shares as
required pursuant to this Agreement.
3.2 - Representations and Warranties of Cedar Group. Cedar Group
represents and warrants to United Dominion as follows and acknowledges that
United Dominion is relying upon such representations and warranties in
connection with the transactions contemplated in this Agreement:
(a) Corporate Organization. Cedar Group is a corporation incorporated,
organized and subsisting under the laws of Delaware. Cedar Group has
all requisite corporate power to own its assets and properties and to
conduct its business as presently being conducted by it.
(b) Due Authorization. Cedar Group has all requisite corporate power to
enter into this Agreement and to take, perform or execute all
proceedings, acts and instruments necessary or advisable to consummate
the transactions contemplated hereby and to fulfil its obligations
hereunder. All necessary corporate action has been taken by or on the
part of Cedar Group to authorize its execution and delivery of this
Agreement and the taking, performing or executing of such proceedings,
acts and instruments as are necessary or advisable for consummating
the transactions contemplated hereby and fulfilling its obligations
hereunder.
(c) Enforceability. This Agreement has been duly executed and delivered
on behalf of Cedar Group and this Agreement constitutes a legal, valid
and binding obligation of Cedar Group, enforceable against it in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws or general principles of equity.
(d) Absence of Conflict. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby will not: (i)
conflict with or result in a breach of the terms, conditions or
provisions of, or constitute a default under: (1) the constating
documents, by-laws, resolutions or any unanimous shareholder agreement
of Cedar Group; or (2) any instrument, agreement, mortgage, judgment,
order, award, decree or other instrument or restriction to which Cedar
Group is a party or by which it is bound, except for any such breach
or default that would not, individually or in the aggregate, have a
material adverse effect upon Cedar Group's capacity or ability to
consummate the transactions contemplated hereby; or (ii) require any
affirmative approval, consent, authorization or other order or action
by any Court, governmental authority or regulatory body
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applicable to Cedar Group (including any stock exchange or securities
regulatory authority) or by any creditor of Cedar Group or any party
to any agreement to which Cedar Group is a party or by which Cedar
Group is bound.
(e) Registration of Shares. The Cedar Group Shares to be issued to United
Dominion pursuant to Article II have been registered by Cedar Group
with the United States Securities and Exchange Commission under the
United States Securities Act of 1933, as amended, the issuance of all
such Cedar Group Shares shall not violate any applicable U.S. federal
or state securities laws and all such Cedar Group Shares shall when
issued by Cedar Group to United Dominion be fully paid, non-assessable
and freely tradeable shares.
3.3 - Representations and Warranties of Dominion Bridge. Dominion
Bridge represents and warrants to United Dominion as follows and acknowledges
that United Dominion is relying upon such representations and warranties in
connection with the transactions contemplated in this Agreement:
(a) Corporate Organization. Dominion Bridge is a corporation
incorporated, organized and subsisting under the laws of Canada.
Dominion Bridge has all requisite corporate power to own its assets
and properties and to conduct its business as presently being
conducted by it.
(b) Due Authorization. Dominion Bridge has all requisite corporate power
to enter into this Agreement and to take, perform or execute all
proceedings, acts and instruments necessary or advisable to consummate
the transactions contemplated hereby and to fulfil its obligations
hereunder. All necessary corporate action has been taken by or on the
part of Dominion Bridge to authorize its execution and delivery of
this Agreement and the taking, performing or executing of such
proceedings, acts and instruments as are necessary or advisable for
consummating the transactions contemplated hereby and fulfilling its
obligations hereunder.
(c) Enforceability. This Agreement has been duly executed and delivered
on behalf of Dominion Bridge and this Agreement constitutes a legal,
valid and binding obligation of Dominion Bridge, enforceable against
it in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws or general principals of equity.
(d) Absence of Conflict. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby will not: (i)
conflict with or result in a breach of the terms, conditions or
provisions of, or
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constitute a default under: (1) the constating documents, by-laws,
resolutions or any unanimous shareholder agreement of Dominion Bridge;
or (2) any instrument, agreement, mortgage, judgment, order, award,
decree or other instrument or restriction to which Dominion Bridge is
a party or by which it is bound, except for any such breach or default
that would not, individually or in the aggregate, have a material
adverse effect upon Dominion Bridge's capacity or ability to
consummate the transactions contemplated hereby; or (ii) require any
affirmative approval, consent, authorization or other order or action
by any Court, governmental authority or regulatory body applicable to
Dominion Bridge(including any stock exchange or securities regulatory
authority) or by any creditor of Dominion Bridge or any party to any
agreement to which Dominion Bridge is a party or by which Dominion
Bridge is bound.
Article IV - Certain Releases, Covenants and Other Agreements
4.1 - Release of Collateral. Subject to the delivery of the sum of
$5,000,000 contemplated by clause 2.1(a) hereof, and to the provisions of
Section 5.1 hereof, United Dominion hereby irrevocably releases and discharges
all security interests, bonds, debentures, hypothecs and any other such rights
that it holds or might hold in the assets and shares of Dominion Bridge, Cedar
Group and Edinov Corporation pursuant to the Original Agreements or otherwise,
including, without limiting the generality of the foregoing, the Guarantee and
Postponement of Claim dated April 8, 1994 from Cedar Group, but excluding the
Guarantees and Postponements of Claim dated March 9, 1994 from Cedar Group and
Edinov Corporation. United Dominion shall execute any and all release
documents that may be necessary or appropriate to evidence the release of the
collateral and hereby instructs that same be filed or registered in the
appropriate registry, filing or recording offices at Cedar Group's expense.
United Dominion hereby irrevocably constitutes and appoints Michel Marengere
and Nicolas Matossian, or either one of them, as its true and lawful
attorney-in-fact and agent for, in the name of and on behalf of United Dominion
to execute and deliver in the name of United Dominion all such documents or
instruments as may be necessary effectively to release and discharge such
security, or any part thereof. Such appointment and power of attorney, being
coupled with an interest, shall not be revoked by the insolvency, dissolution
or bankruptcy of United Dominion and United Dominion hereby ratifies and
confirms and agrees to ratify and confirm all that Michel Marengere and Nicolas
Matossian, or either one of them, may lawfully do or cause to be done by virtue
of the provisions hereof. Michel Marengere and Nicolas Matossian hereby agrees
only to use such power of attorney to release and discharge such security and
Cedar Group agrees to indemnify and save harmless United Dominion from any
improper exercise of such power of attorney.
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4.2 - Husky Settlement. Subject to the delivery of the sum of
$5,000,000 contemplated by clause 2.1(a) hereof, United Dominion hereby
irrevocably releases Dominion Bridge and Cedar Group from any claims for the
$863,030 payment made by United Dominion (by way of offset in favour of Cedar
Group on a prior purchase of Class A preferred shares) to Bracknell Corporation
and any funds held in trust in connection therewith shall be released in
accordance with the terms of this Agreement. Similarly, Dominion Bridge and
Cedar Group hereby irrevocably releases United Dominion from any claim with
respect to such litigation with Bracknell Corporation.
4.3 - Intentionally Omitted.
4.4 - Carr and Donald Claim. Cedar Group and Dominion Bridge agree
that they shall jointly and severally have and bear responsibility for all
alleged obligations owed by United Dominion to Carr and Donald and Associates,
a subcontractor of United Dominion in the Business, which obligations were
assumed by Dominion Bridge pursuant to the Original Agreements. Cedar Group
and Dominion Bridge have received a copy of a statement of claim from Carr and
Donald and Associates dated June 26, 1995 commencing action number 95-CU-86423
in the Ontario Court (General Division). Cedar Group and Dominion Bridge
hereby acknowledge their agreement to jointly and severally indemnify and hold
United Dominion, its officers, directors, agents and employees harmless from
and against any and all claims by Carr and Donald and Associates for any
amounts due and owing to Carr and Donald and Associates from United Dominion or
the Business including, without limitation, all legal fees and costs incurred
by United Dominion or a solicitor and client basis. Each party shall provide
to the others any and all reasonable assistance necessary or desirable in
connection with the defense of any such claim, whether or not such party has
any indemnity obligations pursuant thereto.
4.5 - Bonds, Letters of Credit and Guaranties. The provisions of
Section 4.2 of the Shareholders' Agreement with respect to Bonding Facilities
and Specified Financial Obligations in existence on April 8, 1994 (except for
the portion of subsection (c) thereof regarding the grant of second priority
security) shall remain in full force and effect and shall not be amended
pursuant to this Agreement in any way, except that such provisions shall also
apply to any and all Bonding Facilities and Specified Financial Obligations
entered into by United Dominion between April 8, 1994 and the date of this
Agreement, and except that United Dominion shall release its security interests
in the assets of Dominion Bridge in effect to secure the obligations of Dominion
Bridge, Cedar Group and Edinov with respect thereto. The specific bonds, letters
of credit and foreign exchange exposures for which Cedar Group and Dominion
Bridge will continue to jointly and severally indemnify United Dominion are set
forth on SCHEDULE A to this Agreement. United Dominion shall have no further or
other
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obligation whatsoever with respect to bonding, provision of letters of credit,
foreign exchange contracts or other credit or currency matters.
4.6 - Legal Accounts. Except for the legal accounts of Borden &
Elliot, Cedar Group and Dominion Bridge agree that they shall jointly and
severally have and bear responsibility for any outstanding accounts from the
law firms retained as agents in provinces of Canada outside of Ontario in
connection with the legal services provided and disbursements incurred by such
firms in connection with the Original Agreements, including all registrations
thereof (including specifically the account of Pitblado & Hoskin (Manitoba)
dated January 23, 1995, the account of McDougall Ready (Saskatchewan) dated
November 30, 1994 and the account of Stewart McKelvey Stirling Scales (Nova
Scotia) dated October 19, 1995 and the account of their sub-agent, Hicks,
LeMoine dated October 31, 1995). Cedar Group and Dominion Bridge hereby agree
to jointly and severally indemnify and hold United Dominion, its officers,
directors, agents and employees harmless from and against any and all claims by
such law firms for any amounts due and owing to any of them from United
Dominion or the Business as a result of their having provided such services in
connection with the Original Agreements and in connection with the release of
the United Dominion security against Dominion Bridge property. Each party
shall provide to the others any and all reasonable assistance necessary or
desirable in connection with the defense of any such claim, whether or not such
party has any indemnity obligations pursuant thereto.
4.7 - Claims of Former Employees.
(a) United Dominion shall be solely responsible for any and all claims of
Keith Preston and Donald Mathewson with respect to amounts due
pursuant to their employment with United Dominion or Dominion Bridge,
or the termination thereof and, accordingly, United Dominion shall
indemnify and hold Cedar Group and Dominion Bridge harmless from and
against any and all such claims, including all legal fees and costs
incurred by Cedar Group and Dominion Bridge on a solicitor and client
basis.
(b) Cedar Group and Dominion Bridge shall be jointly and severally
responsible for any and all claims of Paul Kandola with respect to
amounts due pursuant to his employment with United Dominion or
Dominion Bridge, or the termination thereof and, accordingly, Cedar
Group and Dominion Bridge shall jointly and severally indemnify and
hold United Dominion harmless from and against any and all such
claims, including all legal fees and costs incurred by United Dominion
on a solicitor and client basis.
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4.8 - Continuing Cooperation. Each Party shall continue to cooperate
with each other Party in respect of any Proceeding relating to the Business
which is now pending or which is commenced after the date hereof and with all
items remaining to be accomplished in connection with the Original Agreements
except as expressly treated herein. Such cooperation shall include providing
reasonable access during normal business hours to all records and all personnel
relevant thereto. In addition to and without limiting the generality of the
foregoing, United Dominion agrees that Dominion Bridge and Cedar Group may
continue or commence any Proceeding in the name of United Dominion, if required
in order to assert a claim that United Dominion may have had in connection with
the Business that was transferred to Dominion Bridge pursuant to the Rollover
Agreement, provided however that Dominion Bridge and Cedar Group agree to
indemnify and save United Dominion harmless from and against any and all costs,
judgments in respect of counterclaims, fees, and any other expenses of any kind
incurred in connection therewith.
Article V - Prior Agreements.
5.1 - The Original Agreements. The provisions, terms, conditions,
representations, warranties, agreements and indemnities of the Master Agreement,
the Rollover Agreement, the Share Purchase Agreement, the Guarantees and
Postponements of Claim dated March 9, 1994 from Cedar Group and Edinov
Corporation and all other written agreements between or among the Parties shall
continue in full force and effect except where specifically amended, modified or
revised herein or inconsistent herewith. Notwithstanding the foregoing, the
Interim Credit Commitment and the related Guarantee and Postponement of Claim of
Cedar Group dated April 8, 1994 each terminated on October 8, 1994 by their
terms and the Debenture, the Pledge Agreement, the Security Agreement, the Deed
of Hypothec and, the Hypothecation and Pledge of Securities Agreement are each
hereby terminated and will be released as contemplated by Section 4.1. The
Registration Rights Agreement and the Shareholders' Agreement are hereby
terminated, except to the extent that the Shareholders' Agreement is referred to
herein or might be required to interpret or apply the provisions of this
Agreement.
5.2 - Settlement. Upon execution, delivery and performance of this
Agreement, the Parties agree and acknowledge that all allegations contained in
the letter of Pouliot Mercure to United Dominion dated December 18, 1995 and the
reply letter of Borden & Elliot dated December 21, 1995 are retracted and each
Party releases each other Party from any and all claims relating to such
matters. Cedar Group and Dominion Bridge confirm that United Dominion has
satisfied, or they have waived, all conditions in their favour with respect to
the transactions contemplated by the Original Agreements. United Dominion
confirms that Cedar Group and Dominion Bridge have satisfied, or United Dominion
has waived, all
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conditions in its favour with respect to the transactions contemplated by the
Original Agreements. United Dominion hereby releases Cedar Group, Dominion
Bridge and Edinov from any obligation or liability for the letter of credit
drawn upon by Defence Construction (1951) Limited in the amount of $500,000.
The Parties also agree to release each other from any proceedings commenced or
threatened with respect to the Preferred Shares and the subject matter of this
Agreement.
Article VI - Indemnification
6.1 - Indemnification by United Dominion. United Dominion hereby
indemnifies and holds Dominion Bridge, Cedar Group, and their respective
officers, directors, agents and employees, harmless at all times from and
after the date of this Agreement, and will reimburse such indemnified persons
on demand for, any payment, any related expenses (including reasonable
attorneys' fees) and cost of investigation incurred in defending against such
payment (or claim therefor) made by any such indemnified person at any time in
respect of any and all claims, demands, actions, causes of action, damages,
deficiencies, losses, liabilities and expenses (hereinafter referred to in this
Article as "Claims") arising in connection with any inaccuracy in any
representation or any breach of warranty made by United Dominion in this
Agreement, or any failure by United Dominion duly to perform and observe any
term, provision, covenant, agreement or condition under this Agreement on its
part to be performed or observed.
6.2 - Indemnification by Dominion Bridge and Cedar Group. Dominion
Bridge and Cedar Group, jointly and severally, hereby indemnify and hold United
Dominion and its officers, directors, agents and employees harmless at all
times from and after the date of this Agreement, and will reimburse such
indemnified persons on demand for, any payment, any related expenses
(including reasonable attorneys' fees) and cost of investigation incurred in
defending against such payment (or claim therefore) made by any such
indemnified person at any time in respect of any and all Claims arising in
connection with any inaccuracy in any representation or any breach of warranty
made by Dominion Bridge or Cedar Group in this Agreement, or any failure by
Dominion Bridge or Cedar Group duly to perform and observe any term, provision,
covenant, agreement or condition under this Agreement on its part to be
performed or observed.
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Article VII - Miscellaneous
7.1 - Further Assurances. Each of United Dominion, Cedar Group
and Dominion Bridge shall from time to time execute and deliver all such
further documents and instruments and do all acts and things as the other may
reasonably require to carry out effectively or better evidence or perfect the
full intent and meaning of this Agreement.
7.2 - Time of the Essence. Time shall be of the essence of this
Agreement.
7.3 - Benefit of the Agreement. This Agreement shall enure to the
benefit of and be binding upon the respective successors and permitted assigns
of the parties hereto.
7.4 - Assignment. No party to this Agreement may assign this
Agreement or any of its rights or obligations hereunder without the prior
written consent of the other party.
7.5 - Entire Agreement. This Agreement and the agreements referred to
herein and therein constitute the entire agreement between the parties hereto
with respect to the subject matter hereof. There are no representations,
warranties, terms, conditions, undertakings or collateral agreements, express,
implied or statutory, between the parties other than as expressly contemplated
by this Agreement and the other agreements referred to above.
7.6 - Amendments and Waiver. No modification of or amendment to this
Agreement shall be valid or binding unless set forth in writing and duly
executed by the parties hereto and no waiver of any breach of any term or
provision of this Agreement shall be effective or binding unless made in
writing and signed by both the party purporting to give the same and, unless
otherwise provided, shall be limited to the specific breach waived.
7.7 - Notices. Any demand, notice or other communication
(hereinafter in this Section 7.7 referred to as a "Communication") to be given
in connection with this Agreement shall be given in writing and shall be given
by personal delivery, by registered or certified mail or by transmittal by
telecopier or other form of electronic communication addressed to the recipient
as follows:
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To United Dominion:
United Dominion Industries Limited
2300 One First Union Center
301 South College Street
Charlotte, North Carolina 28202
Attention: General Counsel
Telecopier: 704-347-6817
To Dominion Bridge and/or Cedar Group:
c/o Cedar Group, Inc.
500 Notre Dame Street
Lachine, Quebec
H8S 2B2
Attention: President
Telecopier: 514-634-2448
and to:
Pouliot Mercure
1155 Rene Levesque West
Suite 3100
Montreal, Quebec
H3B 3S6
Attention: Brian Riordan
Telecopier: (514) 875-4308
or to such other address, telecopier number or individual as may be designated
by notice given by any party to the other. Any Communication given by personal
delivery shall be conclusively deemed to have been given on the day of actual
delivery thereof, and, if given by telecopier or other form of electronic
communication, shall be deemed given and received on the date of such
transmission if received during normal business hours of the recipient and on
the next Business Day if it is received after the end of such normal business
hours on the date of the transmission. If the party giving any Communication
knows or ought reasonably to know of any difficulties with the postal system
which might materially adversely affect the delivery of mail, any such
Communication shall not be mailed but shall be given by personal delivery or by
telecopier or other form of electronic communication transmittal. Any Party
receiving a notice by telecopier or other form of electronic communication
shall provide an acknowledgement of such receipt to the sending Party by any
means permissible hereunder.
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7.8 - Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein.
7.9 - Non-Merger. The covenants, representations, warranties,
indemnities and other undertakings of each of the parties hereto shall not merge
upon the completion of the transactions contemplated hereby but instead shall
survive such completion and continue in full force and effect.
7.10 - Third Party Beneficiaries. No Person, other than the parties
hereto, shall have or acquire any rights as a result of this Agreement.
7.11 - Execution in Counterparts. This Agreement may be executed in
one or more counterparts, each of which when so executed shall be deemed to be
an original and such counterparts together shall constitute but one and the same
instrument.
7.12 - Legal Fees. Each party shall be responsible for its own legal
fees in connection with this Agreement and the transactions contemplated
hereby.
IN WITNESS WHEREOF the parties have executed this Agreement as of the
18th day of December, 1995.
UNITED DOMINION INDUSTRIES LIMITED
By: /s/ Glenn A. Eisenburg, SVP & CFO
----------------------------------
By: /s/ B.B. Burns, Jr., SVP
-------------------------
CEDAR GROUP, INC.
By: /s/ Michel Marengere
---------------------
Its: Chairman and C.E.O.
--------------------
DOMINION BRIDGE, INC.
By: /s/ Michel Marengere
---------------------
Its:
Chairman and C.E.O.
-------------------
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