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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): February 25, 1995
KUHLMAN CORPORATION
(Exact Name of Registrant as Specified in Charter)
Delaware 1-7695 58-2058047
(State or other (Commission File Number) (IRS Employer Identification No.)
Jurisdiction of
Incorporation)
1 Skidaway Village Walk, Suite 201, Savannah, Georgia 31411
(Address of Principal Executive Office) (Zip Code)
Registrant's telephone number, including area code: (912) 598-7809
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events
On February 25, 1995, Kuhlman Corporation, a Delaware corporation
("Kuhlman"), Spinner Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of Kuhlman ("Acquisition"), and Schwitzer, Inc., a
Delaware corporation ("Schwitzer"), entered into an Agreement and Plan of
Merger dated as of February 25, 1995 pursuant to which Acquisition will be
merged with and into Schwitzer ("Merger"). Consummation of the Merger is
subject to the approval of the stockholders of Kuhlman and Schwitzer, and to
specified closing conditions.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Financial Statements of Business Acquired
None.
(b) Pro Forma Financial Information
None.
(c) Exhibits
(10)(a) Agreement and Plan of Merger among Kuhlman Corporation,
Spinner Acquisition Corp., and Schwitzer, Inc., dated as
of February 25, 1995.
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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.
KUHLMAN CORPORATION
(Registrant)
By: /s/ Robert S. Jepson, Jr.
-------------------------------------------
Robert S. Jepson, Jr.
Chairman and Chief Executive Officer
Dated: February 25, 1995
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EXHIBIT INDEX
Exhibit No. Description Page*
(10)(a) Agreement and Plan of Merger among Kuhlman
Corporation, Spinner Acquisition Corp., and Schwitzer,
Inc., dated as of February 25, 1995.
______________________
* Only on manually-executed copy.
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_________________________________________________________________
AGREEMENT AND PLAN OF MERGER
Among
KUHLMAN CORPORATION
SPINNER ACQUISITION CORP.
And
SCHWITZER, INC.
_________________________________________________________________
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TABLE OF CONTENTS
Page
ARTICLE I
THE MERGER . . . . . . 1
Section 1.1 The Merger. . . . . . . . . . . . 1
Section 1.2 Effective Time. . . . . . . . . . . 2
Section 1.3 Effects of the Merger . . . . . . . . 2
Section 1.4 Certificate of Incorporation, By-laws,
Directors and Officers. . . . . . . . . . . 2
Section 1.5 Conversion of Securities. . . . . . . . 2
Section 1.6 Parent to Make Certificates Available . . . . 4
(a) Exchange of Certificates . . . . . . . . 4
(b) Exchange Procedures. . . . . . . . . . 4
Section 1.7 Dividends; Transfer Taxes . . . . . . . 5
Section 1.8 No Fractional Securities. . . . . . . . 6
Section 1.9 Return of Exchange Fund . . . . . . . . 6
Section 1.10 Adjustment of Exchange Ratio . . . . . . 6
Section 1.11 No Further Ownership Rights in Company Common
Stock . . . . . . . . . . . . . . 7
Section 1.12 Closing of Company Transfer Books. . . . . . 7
Section 1.13 Further Assurances . . . . . . . . . 7
Section 1.14 Closing. . . . . . . . . . . . 7
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PARENT. 7
Section 2.1 Organization, Standing and Power. . . . . . 7
Section 2.2 Capital Structure . . . . . . . . . 8
Section 2.3 Authority; Non-Contravention. . . . . . . 9
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Section 2.4 Parent SEC Documents. . . . . . . . . 11
Section 2.5 Registration Statement and Proxy
Statement/Prospectus. . . . . . . . . . . 12
Section 2.6 Absence of Material Adverse Change. . . . . . 12
Section 2.7 Pooling of Interests; Reorganization. . . . . 12
Section 2.8 Dividends . . . . . . . . . . . 13
Section 2.9 No Violation or Infringement. . . . . . . 13
Section 2.10 Litigation . . . . . . . . . . . 13
Section 2.11 Taxes. . . . . . . . . . . . . 13
Section 2.12 Parent Benefit Plans . . . . . . . . 14
Section 2.13 Environmental Matters. . . . . . . . . 14
Section 2.14 Title to Property. . . . . . . . . . 15
Section 2.15 Brokers. . . . . . . . . . . . 15
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY . 15
Section 3.1 Organization, Standing and Power. . . . . . 15
Section 3.2 Capital Structure . . . . . . . . . 16
Section 3.3 Authority; Non-Contravention. . . . . . . 17
Section 3.4 Company SEC Documents . . . . . . . . 18
Section 3.5 Registration Statement and Proxy
Statement/Prospectus. . . . . . . . . . . 18
Section 3.6 Absence of Material Adverse Change. . . . . . 19
Section 3.7 Pooling of Interests; Reorganization. . . . . 19
Section 3.8 Dividends . . . . . . . . . . . 19
Section 3.9 No Violation or Infringement. . . . . . . 19
Section 3.10 Litigation . . . . . . . . . . . 19
Section 3.11 Taxes. . . . . . . . . . . . . 20
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Section 3.12 Company Benefit Plans. . . . . . . . . 20
Section 3.13 Environmental Matters. . . . . . . . . 21
Section 3.14 Title to Property. . . . . . . . . . 21
Section 3.15 Brokers. . . . . . . . . . . . 21
ARTICLE IV
REPRESENTATIONS AND WARRANTIES REGARDING SUB. . . 22
Section 4.1 Organization and Standing . . . . . . . 22
Section 4.2 Capital Structure . . . . . . . . . 22
Section 4.3 Authority; Non-Contravention. . . . . . . 22
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS 23
Section 5.1 Conduct of Business Pending the Merger. . . . 23
(a) Actions. . . . . . . . . . . . . 23
(b) Advice of Changes. . . . . . . . . . . 25
Section 5.2 No Solicitation . . . . . . . . . . 25
Section 5.3 Pooling of Interests; Reorganization. . . . . 26
Section 5.4 Conduct of Business of Sub Pending the Merger 26
ARTICLE VI
ADDITIONAL AGREEMENTS . . . . . 26
Section 6.1 Stockholder Approval. . . . . . . . . 26
Section 6.2 Registration Statement and Proxy Statement. . 27
Section 6.3 Access to Information . . . . . . . . 28
(a) By Parent. . . . . . . . . . . . . 28
(b) By the Company . . . . . . . . . . . 29
Section 6.4 Compliance with the Securities Act and Pooling
Requirements. . . . . . . . . . . . . 29
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Section 6.5 Stock Exchange Listing. . . . . . . . . 30
Section 6.6 Fees and Expenses . . . . . . . . . 30
Section 6.7 Reasonable Efforts. . . . . . . . . . 30
Section 6.8 Public Announcements. . . . . . . . . 31
Section 6.9 Real Estate Transfer and Gains Tax. . . . . . 31
Section 6.10 State Takeover Laws; Company Rights Agreement 32
Section 6.11 Indemnification; Directors and Officers
Insurance . . . . . . . . . . . . . 32
Section 6.12 Employee Benefits. . . . . . . . . . 32
Section 6.13 Job Vacancies. . . . . . . . . . . 33
Section 6.14 Parent's Board of Directors. . . . . . . 33
ARTICLE VII
CONDITIONS PRECEDENT TO THE MERGER . . 33
Section 7.1 Conditions to Each Party's Obligation to Effect
the Merger. . . . . . . . . . . . . . 33
(a) Stockholder Approvals. . . . . . . . . . 33
(b) NYSE Listing . . . . . . . . . . . 34
(c) Improvements Act Waiting Period. . . . . . . 34
(d) Registration Statement . . . . . . . . . 34
(e) Tax Opinion. . . . . . . . . . . . 34
(f) No Order . . . . . . . . . . . . 35
(g) Resignations of Company Directors. . . . . . . 35
(h) Other Approvals. . . . . . . . . . . 35
Section 7.2 Conditions to Obligation of the Company to
Effect the Merger . . . . . . . . . . . 35
(a) Performance of Obligations; Representations and
Warranties. . . . . . . . . . . . . . 35
(b) Fairness Opinion . . . . . . . . . . 36
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(c) Opinion of Counsel . . . . . . . . . . 36
(d) Other Documents. . . . . . . . . . . 39
Section 7.3 Conditions to Obligations of Parent and Sub to
Effect the Merger . . . . . . . . . . . 39
(a) Performance of Obligations; Representations and
Warranties. . . . . . . . . . . . . . 39
(b) Third Party Consents . . . . . . . . . 40
(c) Redemption of Rights . . . . . . . . . 40
(d) Accounting . . . . . . . . . . . . 40
(e) Fairness Opinion . . . . . . . . . . 40
(f) Opinion of Counsel . . . . . . . . . . 40
(g) Opinion of Other Counsel . . . . . . . . 42
(h) Other Documents. . . . . . . . . . . 44
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER . . 44
Section 8.1 Termination . . . . . . . . . . . 44
Section 8.2 Effect of Termination . . . . . . . . 46
Section 8.3 Amendment . . . . . . . . . . . 46
Section 8.4 Waiver. . . . . . . . . . . . . 47
ARTICLE IX
GENERAL PROVISIONS . . . . . 47
Section 9.1 Non-Survival of Representations and Warranties 47
Section 9.2 Notices . . . . . . . . . . . . 47
Section 9.3 Interpretation. . . . . . . . . . . 48
Section 9.4 Counterparts. . . . . . . . . . . 48
Section 9.5 Entire Agreement; No Third-Party Beneficiaries 48
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Section 9.6 Governing Law . . . . . . . . . . 49
Section 9.7 Assignment. . . . . . . . . . . . 49
Section 9.8 Severability. . . . . . . . . . . 49
Section 9.9 Enforcement of this Agreement . . . . . . 49
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of February 25,
1995 (this "Agreement"), among Kuhlman Corporation, a Delaware
corporation ("Parent"), Spinner Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of Parent ("Sub"), and
Schwitzer, Inc., a Delaware corporation (the "Company") (Sub and
the Company being hereinafter collectively referred to as the
"Constituent Corporations").
W I T N E S S E T H:
WHEREAS, the respective Boards of Directors of Parent,
Sub and the Company have approved and declared advisable the
merger of Sub and the Company (the "Merger"), upon the terms and
subject to the conditions set forth herein, whereby each issued
and outstanding share of Common Stock, par value $.10 per share,
of the Company ("Company Common Stock") not owned directly or
indirectly by Parent or the Company will be converted into shares
of Common Stock, par value $1.00 per share, of Parent ("Parent
Common Stock");
WHEREAS, for federal income tax purposes, it is
intended that the Merger shall qualify as a reorganization within
the meaning of Section 368(a) of the Internal Revenue Code of
1986, as amended (the "Code");
WHEREAS, it is intended that the Merger shall be
recorded for accounting purposes as a pooling of interests; and
WHEREAS, Parent, Sub and the Company desire to make
certain representations, warranties and agreements in connection
with the Merger and also to prescribe various conditions to the
Merger;
NOW, THEREFORE, in consideration of the premises and
the representations, warranties and agreements herein contained,
the parties agree as follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to
the conditions hereof, and in accordance with the General
Corporation Law of the State of Delaware (the "DGCL"), Sub shall
be merged with and into the Company at the Effective Time (as
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hereinafter defined). Following the consummation of the Merger,
the separate corporate existence of Sub shall cease and the
Company shall continue as the surviving corporation (the
"Surviving Corporation") and shall succeed to and assume all the
rights and obligations of Sub in accordance with the DGCL.
Section 1.2 Effective Time. The Merger shall become
effective when a Certificate of Merger (the "Certificate of
Merger"), executed in accordance with the relevant provisions of
the DGCL, is filed with the Secretary of State of the State of
Delaware; provided, however, that, upon mutual consent of the
Constituent Corporations the Certificate of Merger may provide
for a later date of effectiveness of the Merger not more than 30
days after the date the Certificate of Merger is filed. When
used in this Agreement, the term "Effective Time" shall mean the
later of the date and time at which the Certificate of Merger is
accepted for filing or such later time established by the
Certificate of Merger. The filing of the Certificate of Merger
shall be made as soon as practicable after the satisfaction or
waiver of the conditions to the Merger set forth herein.
Section 1.3 Effects of the Merger. The Merger shall
have the effects set forth in Section 259 of the DGCL.
Section 1.4 Certificate of Incorporation, By-laws,
Directors and Officers. The Restated Certificate of
Incorporation and the By-laws of the Company, as in effect
immediately prior to the Effective Time, shall be the Certificate
of Incorporation and the By-laws of the Surviving Corporation, in
each case until thereafter changed or amended as provided therein
or by applicable law. The directors of the Surviving Corporation
shall be Gary G. Dillon, whose term of office shall expire at the
1996 annual meeting of stockholders of the Surviving Corporation,
Curtis G. Anderson, whose term of office shall expire at its 1997
annual meeting of stockholders, and Robert S. Jepson, Jr., whose
term of office shall expire at its 1998 annual meeting of
stockholders, in each case to hold office until the expiration of
his term of office and his successor shall have been duly elected
and qualified or until his earlier death, resignation or removal.
The officers of the Company at the Effective Time shall be the
officers of the Surviving Corporation, except that Vernon J.
Nagel shall be a Vice President and an Assistant Treasurer, Ward
D. Richards shall be an Assistant Secretary, Jeffrey B. Samuels
shall be an Assistant Treasurer and Richard A. Walker shall be an
Assistant Secretary, in each case to hold office until the next
annual election of officers and his successor shall have been
duly chosen or until his earlier death, resignation or removal.
Section 1.5 Conversion of Securities. As of the
Effective Time, by virtue of the Merger and without any action on
the part of any stockholder of the Company:
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(a) All shares of Company Common Stock that are held
in the treasury of the Company or by any wholly-owned
Subsidiary (as hereinafter defined) of the Company
immediately prior to the Effective Time and any shares of
Company Common Stock owned by Parent, Sub or any other
wholly-owned Subsidiary of Parent immediately prior to the
Effective Time shall be cancelled and no capital stock of
Parent or other consideration shall be delivered in exchange
therefor.
(b) Each share of capital stock of Sub outstanding
immediately prior to the Effective Time shall be converted
into and become one fully paid and nonassessable share of
Common Stock, par value $.10 per share, of the Surviving
Corporation.
(c) Subject to the provisions of Sections 1.8 and 1.10
hereof, each share of Company Common Stock outstanding
immediately prior to the Effective Time (other than shares
to be cancelled in accordance with Section 1.5(a)) shall be
converted into 0.9615 validly issued, fully paid and
nonassessable share (the "Exchange Ratio") of Parent Common
Stock. All such shares of Company Common Stock, when so
converted, shall no longer be outstanding and shall
automatically be cancelled and retired and each holder of a
Certificate (as defined in Section 1.6(a)) representing any
such shares shall cease to have any rights with respect
thereto, except the right to receive certain dividends and
other distributions as contemplated by Section 1.7 and
shares of Parent Common Stock and any cash, without
interest, in lieu of fractional shares to be issued or paid
in consideration therefor pursuant to Section 1.8 upon the
surrender of such Certificate in accordance with Section
1.6.
(d) Each option to purchase shares of Company Common
Stock (a "Company Stock Option") outstanding immediately
prior to the Effective Time pursuant to the Company's Long-
term Executive Incentive Compensation Plan (the "Company
Stock Plan") shall be converted into an option (a "New
Parent Stock Option") to purchase, in lieu of the shares of
Company Common Stock purchasable thereunder immediately
prior to the Effective Time, the number of whole shares of
Parent Common Stock into which the shares of Company Common
Stock subject to such Company Stock Option would have been
converted pursuant to Section 1.5(c) had such Company Stock
Option been exercised in full immediately prior to the
Effective Time, without any change in the aggregate option
exercise price. Fractional shares shall not be issued upon
the exercise of any New Parent Stock Option, but upon the
exercise of any New Parent Stock Option for the largest
number of whole shares of parent Common Stock then subject
thereto, the Company shall pay to the holder of such New
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Parent Stock Option a sum in cash equal to the proportional
part of the per share exercise price of such New Parent
Stock Option represented by such fractional share. Each New
Parent Stock Option shall otherwise be upon the same terms
and conditions as set forth in the Company Stock Plan and
the related option agreement.
(e) Each warrant to purchase shares of Company Common
Stock (a "Company Warrant") outstanding immediately prior to
the Effective Time pursuant to the Note Agreement dated as
of April 15, 1992 among the Company, Schwitzer U.S. Inc. and
Massachusetts Mutual Life Insurance Company (the "Company
Warrant Agreement") shall be converted into a warrant (a
"New Parent Warrant") to purchase, in lieu of the shares of
Company Common Stock purchasable thereunder immediately
prior to the Effective Time, the number of whole shares of
Parent Common Stock into which the shares of Company Common
Stock subject to such Company Warrant would have been
converted pursuant to Section 1.5(c) had such Company
Warrant been exercised in full immediately prior to the
Effective Time, without any change in the aggregate option
exercise price. Fractional shares shall not be issued upon
the exercise of any New Parent Warrant, but upon the
exercise of any New Parent Warrant for the largest number of
whole shares of parent Common Stock then subject thereto,
the Company shall pay to the holder of such New Parent
Warrant a sum in cash equal to the proportional part of the
per share exercise price of such New Parent Warrant
represented by such fractional share. Each New Parent
Warrant shall otherwise be upon the same terms and
conditions as set forth in the Company Warrant Agreement.
Section 1.6 Parent to Make Certificates Available.
(a) Exchange of Certificates. Parent shall authorize
a commercial bank (or such other person or persons as shall be
acceptable to Parent and the Company) to act as Exchange Agent
hereunder (the "Exchange Agent"). As soon as practicable after
the Effective Time, Parent shall deposit with the Exchange Agent,
in trust for the holders of certificates which immediately prior
to the Effective Time represented shares of Company Common Stock
(the "Certificates"), (i) certificates representing the aggregate
number of shares of Parent Common Stock issuable to such holders
pursuant to Section 1.5(c) in exchange for outstanding shares of
Company Common Stock and (ii) the aggregate amount of cash
payable to such holders in lieu of fractional shares pursuant to
Section 1.8. Such shares of Parent Common Stock and cash in lieu
of fractional shares, together with any dividends or
distributions with respect to such shares, is hereinafter
referred to as the "Exchange Fund". Parent may instruct the
Exchange Agent to invest any cash held in the Exchange Fund in
obligations of the United States government or certificates of
deposit insured by an agency of the United States government and
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any interest or other earnings resulting from such investments
shall be the exclusive property of Parent.
(b) Exchange Procedures. As soon as practicable after
the Effective Time, Parent shall cause the Exchange Agent to mail
to each holder of record of a Certificate whose shares were
converted pursuant to Section 1.5(c) into shares of Parent Common
Stock a letter of transmittal (which shall specify that delivery
shall be effected, and risk of loss and title to the Certificates
shall pass, only upon actual delivery of the Certificates to the
Exchange Agent and shall contain instructions for use in
effecting the surrender of the Certificates in exchange for
certificates representing shares of Parent Common Stock). Upon
surrender of a Certificate for cancellation to the Exchange
Agent, together with such letter of transmittal, duly executed,
the holder of such Certificate shall be entitled to receive in
exchange therefor a certificate representing that number of whole
shares of Parent Common Stock which such holder has the right to
receive pursuant to this Article I, and the Certificate so
surrendered shall forthwith be cancelled. Until surrendered as
contemplated by this Section 1.6, each Certificate shall, at and
after the Effective Time, be deemed to represent only the right
to receive, upon surrender of such Certificate, the certificate
representing the appropriate number of shares of Parent Common
Stock in accordance with Section 1.5(c), cash in lieu of
fractional shares as provided for in Section 1.8 and certain
dividends and other distributions as contemplated by Section 1.7.
Section 1.7 Dividends; Transfer Taxes. No dividends
or other distributions that are declared on or after the
Effective Time on Parent Common Stock or are payable to the
holders of record thereof on or after the Effective Time will be
paid to persons entitled by reason of the Merger to receive
certificates representing Parent Common Stock until such persons
surrender their Certificates, as provided in Section 1.6, and no
cash payment in lieu of fractional shares shall be paid to any
such holder pursuant to Section 1.8 until such holder of such
Certificate shall so surrender such Certificate. Subject to the
effect of applicable law, there shall be paid to the record
holder of the certificates representing such Parent Common Stock
(a) at the time of such surrender or as promptly as practicable
thereafter, the amount of any dividends or other distributions
theretofore paid with respect to whole shares of such Parent
Common Stock and having a record date on or after the Effective
Time and a payment date prior to such surrender and (b) at the
appropriate payment date or as promptly as practicable
thereafter, the amount of dividends or other distributions
payable with respect to whole shares of Parent Common Stock and
having a record date on or after the Effective Time but prior to
surrender and a payment date subsequent to surrender. In no
event shall the person entitled to receive such dividends or
other distributions be entitled to receive interest on such divi-
dends or other distributions. If any cash or certificate
<PAGE> 17
representing shares of Parent Common Stock is to be paid to or
issued in a name other than that in which the Certificate
surrendered in exchange therefor is registered, it shall be a
condition of such exchange that the Certificate so surrendered
shall be properly endorsed and otherwise in proper form for
transfer and that the person requesting such exchange shall pay
to the Exchange Agent any transfer or other taxes required by
reason of the issuance of certificates for such shares of Parent
Common Stock in a name other than that of the registered holder
of the Certificate surrendered, or shall establish to the
satisfaction of the Exchange Agent that such tax has been paid or
is not applicable.
Section 1.8 No Fractional Securities. No certificates
or scrip representing fractional shares of Parent Common Stock
shall be issued upon the surrender for exchange of Certificates
pursuant to this Article I, no Parent dividend or other
distribution or stock split shall relate to any fractional share
and such fractional share shall not entitle the owner thereof to
vote or to any rights of a stockholder of Parent. In lieu of any
such fractional shares, each holder of shares of Company Common
Stock who would otherwise have been entitled to a fraction of a
share of Parent Common Stock upon surrender of Certificates for
exchange pursuant to this Article I shall, in lieu thereof, be
paid an amount in cash (without interest) equal to the value of
such fractional share based on the Closing Price of Parent Common
Stock on the business day immediately preceding the Effective
Time. The "Closing Price" of Parent Common Stock on any business
day shall for purposes of this Section 1.8 be: (a) the last sale
price, or the closing bid price if no sale occurred, of Parent
Common Stock on the principal securities exchange on which Parent
Common Stock is listed, if so listed, or (b) if not listed, the
mean between the closing high bid and low asked quotations of
Parent Common Stock on the National Association of Securities
Dealers, Inc. Automated Quotation System, or any similar system
of automated dissemination of quotations of securities prices
then in common use, if so quoted. If the closing price of Parent
Common Stock on any business day cannot be determined under the
provisions of the immediately preceding sentence, the Closing
Price of Parent Common Stock on such business day shall be the
fair market value of Parent Common Stock as determined by a
member firm of the New York Stock Exchange, Inc. selected by
Parent and reasonably acceptable to the Company.
Section 1.9 Return of Exchange Fund. Any portion of
the Exchange Fund which remains undistributed to the former
stockholders of the Company for one year after the Effective Time
(and any interest or other earnings thereon) shall be delivered
to Parent, upon demand of Parent, and any former stockholders of
the Company who have not theretofore complied with this Article I
shall thereafter look only to Parent for payment of their claim
for Parent Common Stock, any cash in lieu of fractional shares of
Parent Common Stock and any dividends or distributions with
<PAGE> 18
respect to Parent Common Stock.
Section 1.10 Adjustment of Exchange Ratio. In the
event of any reclassification, recapitalization, stock split or
stock dividend with respect to Parent Common Stock (or if a
record date with respect to any of the foregoing should occur)
prior to the Effective Time, appropriate and proportionate
adjustments, if any, shall be made to the Exchange Ratio, and all
references to the Exchange Ratio in this Agreement shall be
deemed to be to the Exchange Ratio as so adjusted.
Section 1.11 No Further Ownership Rights in Company
Common Stock. All shares of Parent Common Stock issued upon the
surrender for exchange of Certificates in accordance with the
terms hereof (including any cash paid pursuant to Section 1.8)
shall be deemed to have been issued in full satisfaction of all
rights pertaining to the shares of Company Common Stock.
Section 1.12 Closing of Company Transfer Books. At
the Effective Time, the stock transfer books of the Company shall
be closed and no transfer of shares of Company Common Stock shall
thereafter be made. If, after the Effective Time, Certificates
are presented to the Surviving Corporation, they shall be
cancelled and exchanged as provided in this Article I.
Section 1.13 Further Assurances. If at any time after
the Effective Time the Surviving Corporation shall consider or be
advised that any deeds, bills of sale, assignments or assurances
or any other acts or things are necessary, desirable or proper
(a) to vest, perfect or confirm, of record or otherwise, in the
Surviving Corporation, its right, title or interest in, to or
under any of the rights, privileges, powers, franchises,
properties or assets of either of the Constituent Corporations,
or (b) otherwise to carry out the purposes of this Agreement, the
Surviving Corporation and its proper officers and directors or
their designees shall be authorized to execute and deliver, in
the name and on behalf of either of the Constituent Corporations
in the Merger, all such deeds, bills of sale, assignments and
assurances and do, in the name and on behalf of such Constituent
Corporations, all such other acts and things necessary, desirable
or proper to vest, perfect or confirm its right, title or
interest in, to or under any of the rights, privileges, powers,
franchises, properties or assets of such Constituent Corporation
and otherwise to carry out the purposes of this Agreement.
Section 1.14 Closing. The closing of the transactions
contemplated by this Agreement (the "Closing") shall take place
at the offices of Rudnick & Wolfe, Chicago, Illinois at 9:00 am,
local time, on the first business day after the day on which the
last of the conditions set forth in Article VII hereof shall have
been fulfilled or waived or at such other time and place as
Parent and the Company shall agree.
<PAGE> 19
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to the Company as
follows:
Section 2.1 Organization, Standing and Power. Parent
is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and has the
requisite corporate power and authority to carry on its business
as now being conducted. The schedule delivered to the Company
and identified by Parent as its final disclosure schedule under
this Agreement (the "Parent Disclosure Schedule") contains a list
of each Subsidiary of Parent, indicating its jurisdiction of
incorporation or other organization, its authorized share or
other equity capital, the number and percentage of its issued and
outstanding shares or other equity interests owned of record or
beneficially by Parent or any of its Subsidiaries (naming each
such owner), and whether it is a Significant Subsidiary (as
hereinafter defined). Parent and each of its Significant
Subsidiaries is duly qualified to do business, and is in good
standing, in each jurisdiction where the character of its
properties owned or held under lease or the nature of its
activities makes such qualification necessary, except where the
failure to be so qualified would not, individually or in the
aggregate, have a Material Adverse Effect on Parent. For
purposes of this Agreement (a) "Material Adverse Change" or
"Material Adverse Effect" means, when used with respect to Parent
or the Company, as the case may be, any change or effect since
September 30, 1994 that is or, so far as can reasonably be
determined, may be materially adverse to the assets, condition
(financial or otherwise) or results of operations of Parent and
its Significant Subsidiaries taken as a whole or the Company and
its Significant Subsidiaries taken as a whole, as the case may
be, (b) "Subsidiary" means any corporation, partnership, joint
venture or other legal entity of which Parent or the Company, as
the case may be (either alone or through or together with any
other Subsidiary), owns, directly or indirectly, 50% or more of
the stock or other equity interests the holders of which are
generally entitled to vote for the election of the board of
directors or other governing body of such corporation or other
legal entity and (c) "Significant Subsidiary" means any
Significant Subsidiary within the meaning of Rule 1-02 of
Regulation S-X of the United States Securities and Exchange
Commission (the "SEC").
Section 2.2 Capital Structure. Subject to the
approval of the Amendment (as hereinafter defined), the
authorized capital stock of Parent consists of 10,000,000 shares
of Parent Common Stock and 2,000,000 shares of preferred stock,
par value $1.00 per share ("Parent Preferred Stock"), of which
<PAGE> 20
200,000 shares have been designated Junior Participating
Preferred Stock, Series A. At the close of business on February
22, 1995, (a) 6,173,798 shares of Parent Common Stock were
validly issued and outstanding, fully paid, nonassessable and
listed on the New York Stock Exchange ("NYSE") and none of such
securities had been issued in violation of any preemptive right
of any stockholder of Parent, (b) 1,033,556 shares of Parent
Common Stock were reserved for issuance upon the exercise of
outstanding options for Parent Common Stock (the "Parent Stock
Options") granted under its 1983 Stock Option Plan, its 1986
Stock Option Plan, as amended, its 1988 Stock Option Plan for
Non-Employee Directors, and its 1994 Stock Option Plan
(collectively, the "Parent Stock Plans"), (c) no shares of Parent
Common Stock were held by Parent or its wholly-owned Subsidiaries
in treasury and (d) no shares of Parent Preferred Stock were
issued and outstanding. There are no outstanding stock
appreciation rights ("SARs") issued by Parent or any of its
Subsidiaries with respect to Parent Common Stock, other than
151,000 SARs issued pursuant to Parent's 1994 Stock Appreciation
Rights Plan (the "Parent 1994 SAR Plan"). All of the shares of
Parent Common Stock issuable in exchange for Company Common Stock
at the Effective Time or upon exercise of New Parent Stock
Options or New Parent Warrants in accordance with this Agreement
will be, when so issued, duly authorized, validly issued, fully
paid, nonassessable and listed on the NYSE, subject to official
notice of issuance, and none of such securities will have been
issued in violation of any preemptive right of any stockholder of
Parent. All outstanding shares of capital stock of Parent's
Subsidiaries are validly authorized and issued, fully paid and
nonassessable and have not been issued in violation of any
preemptive right of any stockholder of any of such Subsidiaries
and, except as disclosed in the Parent Disclosure Schedule, all
of such shares are owned of record and beneficially by Parent or
a wholly-owned Subsidiary of Parent, free and clear of all liens,
charges or encumbrances. Except for (i) the outstanding Parent
Stock Options, (ii) the outstanding preferred stock purchase
rights (the "Parent Rights") issued pursuant to the Rights
Agreement dated as of April 28, 1987 between Parent and Harris
Trust and Savings Bank, as successor Rights Agent, (iii) Parent's
Employees' Stock Purchase Plan, (iv) Kuhlman Electric
Corporation's Savings Maximizer Plan and (v) Parent's 1993 Non-
Employee Directors Stock Plan, there are no options, warrants,
rights, commitments, agreements, arrangements or undertakings of
any kind to which Parent or any of its Subsidiaries is a party or
by which any of them is bound obligating Parent or any of its
Subsidiaries to issue, deliver or sell, or cause to be issued,
delivered or sold, additional shares of capital stock or other
voting securities of Parent or of any of its Subsidiaries. True
and correct copies of all plans, agreements, instruments and
other governing documents relating to the Parent Stock Options,
the Parent Stock Plans, the Parent 1994 SAR Plan, the Parent
Rights, Parent's Employees' Stock Purchase Plan, Kuhlman Electric
Corporation's Savings Maximizer Plan and Parent's 1993
<PAGE> 21
Non-Employee Directors Stock Plan have been furnished to the
Company.
Section 2.3 Authority; Non-Contravention. Parent has
all corporate power and authority to enter into this Agreement
and, subject to obtaining the approval of the Amendment and the
issuance of Parent Common Stock pursuant to this Agreement by the
stockholders of Parent, to consummate the transactions
contemplated hereby. Subject to obtaining such approval by the
stockholders of Parent, the execution and delivery of this
Agreement by Parent and the consummation by Parent of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Parent. This Agreement
has been duly executed and delivered by Parent and (assuming the
valid authorization, execution and delivery of this Agreement by
the Company and the enforceability of this Agreement against the
Company) constitutes the legal, valid and binding agreement of
Parent enforceable against Parent in accordance with its terms,
except to the extent enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws of general applicability relating to or
affecting the enforcement of creditors' rights and by the effect
of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at
law). The issuance of shares of Parent Common Stock pursuant to
this Agreement and the filing of a registration statement with
the SEC by Parent on Form S-4 under the Securities Act of 1933,
as amended (together with the rules and regulations promulgated
thereunder, the "Securities Act"), for the purpose of registering
the shares of Parent Common Stock to be issued pursuant to this
Agreement has been duly authorized by Parent's Board of
Directors. (Such registration statement, including any
information incorporated by reference therein, as it is declared
effective under the Securities Act, together with any post-
effective amendments or supplements thereto prepared and filed in
accordance with this Agreement, is referred to herein as the
"Registration Statement"). Except as set forth in the Parent
Disclosure Schedule, the execution and delivery of this Agreement
do not, and the consummation of the transactions contemplated
hereby and compliance with the provisions hereof will not,
conflict with, or result in any violation of, or default (with or
without notice or lapse of time, or both) under, or give rise to
a right of termination, cancellation or acceleration of any
material obligation or to the loss of a material benefit under,
or result in the creation of any lien, security interest, charge
or encumbrance upon any of the properties or assets of Parent or
any of its Significant Subsidiaries under, any provision of (a)
the Certificate of Incorporation or By-laws of Parent (true and
complete copies of which as of the date hereof have been
delivered to the Company) or any provision of the comparable
charter or organization documents of any of its Significant
Subsidiaries, (b) any loan or credit agreement, note, bond, mort-
gage, indenture, lease or other agreement, instrument, permit,
<PAGE> 22
concession, franchise or license applicable to Parent or any of
its Significant Subsidiaries or (c) any judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to Parent
or any of its Significant Subsidiaries or any of their respective
properties or assets, other than, in the case of clauses (b) or
(c), any such conflicts, violations, defaults, rights, liens,
security interests, charges or encumbrances that, individually or
in the aggregate, would not have a Material Adverse Effect on
Parent, materially impair the ability of Parent to perform its
obligations hereunder or prevent the consummation of any of the
transactions contemplated hereby. No filing or registration
with, or authorization, consent or approval of, any domestic
(federal, state or local), foreign or supranational court,
commission, governmental body, regulatory agency, authority or
tribunal (a "Governmental Entity") is required by or with respect
to Parent, Sub or any of Parent's Significant Subsidiaries in
connection with the execution and delivery of this Agreement by
Parent and Sub or is necessary for the consummation of the Merger
and the other transactions contemplated by this Agreement, except
for (i) filings in connection, or in compliance, with the
applicable requirements of the Securities Act and the Securities
Exchange Act of 1934, as amended (together with the rules and
regulations promulgated thereunder, the "Exchange Act"), (ii) the
filing of the Certificate of Merger with the Secretary of State
of the State of Delaware and appropriate documents with the
relevant authorities of other states in which Parent, Sub or any
of Parent's Significant Subsidiaries is qualified to do business,
(iii) such filings and consents as may be required under any
environmental, health or safety law or regulation pertaining to
any notification, disclosure or required approval triggered by
the Merger or the transactions contemplated by this Agreement,
(iv) such filings as may be required in connection with the taxes
described in Section 6.9, (v) such consents, approvals, orders,
authorizations, registrations, declarations and filings as may be
required under the corporation, takeover or "Blue Sky" laws of
various states, (vi) such filings and approvals as may be
required under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended (the "Improvements Act"), and (vii) such
other consents, orders, authorizations, registrations, declara-
tions and filings the failure of which to be obtained or made
would not, individually or in the aggregate, have a Material
Adverse Effect on Parent, materially impair the ability of Parent
to perform its obligations hereunder or prevent the consummation
of any of the transactions contemplated hereby.
Section 2.4 Parent SEC Documents. Parent has filed
all documents which the Securities Act or the Exchange Act
requires Parent to file with the SEC since January 1, 1993 (the
"Parent SEC Documents"). A list of all of the Parent SEC
Documents is included in the Parent Disclosure Schedule. As of
their respective dates, the Parent SEC Documents complied in all
material respects with the requirements of the Securities Act or
the Exchange Act, as the case may be, and none of the Parent SEC
<PAGE> 23
Documents contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The
financial statements of Parent included in the Parent SEC
Documents comply as to form in all material respects with
applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto, have been prepared
in accordance with generally accepted accounting principles
(except, in the case of the unaudited statements, as permitted by
Form 10-Q of the SEC) applied on a consistent basis during the
periods involved (except as may be indicated therein or in the
notes thereto) and fairly present the consolidated financial
position of Parent and its consolidated Subsidiaries as at the
dates thereof and the consolidated results of their operations
and consolidated cash flows for the periods then ended (subject,
in the case of unaudited statements, to normal year-end audit
adjustments and to any other adjustments described therein).
Section 2.5 Registration Statement and Proxy
Statement/Prospectus. The Registration Statement and the joint
proxy statement/prospectus contained therein, including any
information incorporated by reference therein, to be used by
Parent and the Company to solicit proxies from their respective
stockholders at the Stockholder Meetings (as hereinafter defined)
(together with any amendments or supplements thereto prepared and
filed in accordance with this Agreement, the "Proxy
Statement/Prospectus") will not (a) in the case of the
Registration
Statement, at the time it becomes effective under the Securities
Act, at the time of the Stockholder Meetings and at the Effective
Time, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading
or (b) in the case of the Proxy Statement/Prospectus, at the time
of the mailing of the Proxy Statement/Prospectus to the
respective stockholders of Parent and the Company and at the time
of the Stockholder Meetings, contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made,
not misleading; provided; however, that the foregoing shall not
apply to the extent that any such untrue statement of a material
fact or omission to state a material fact was made by Parent in
reliance upon and in conformity with written information supplied
or to be supplied to Parent by the Company expressly for
inclusion or incorporation by reference in the Registration
Statement or the Proxy Statement/Prospectus. The Registration
Statement will comply as to form in all material respects with
all applicable requirements of the Securities Act, and the Proxy
Statement/Prospectus will comply as to form with all applicable
requirements of the Exchange Act; provided, however, that the
foregoing shall not apply to any written information supplied or
<PAGE> 24
to be supplied to Parent by the Company expressly for inclusion
or incorporation by reference in the Registration Statement or
the Proxy Statement/Prospectus.
Section 2.6 Absence of Material Adverse Change.
Except as disclosed in the Parent SEC Documents filed with the
SEC prior to the date hereof or in the Parent Disclosure
Schedule, there has not been any Material Adverse Change with
respect to Parent.
Section 2.7 Pooling of Interests; Reorganization. To
the knowledge of Parent, neither it nor any of its Subsidiaries
has (i) taken any action or failed to take any action which would
jeopardize the treatment of Sub's combination with the Company in
the Merger as a pooling of interests for accounting purposes or
(ii) taken any action or failed to take any action which would
jeopardize the qualification of the Merger as a reorganization
within the meaning of Section 368(a) of the Code.
Section 2.8 Dividends. Since September 30, 1994,
Parent has not declared, set aside or paid any dividends on, or
made any other actual, constructive or deemed distributions in
respect of, any of its capital stock, or otherwise made any
payments to its stockholders in their capacity as such, other
than ordinary quarterly dividends consistent with past practice,
each in an amount not in excess of $.15 per share, with respect
to Parent Common Stock.
Section 2.9 No Violation or Infringement. Except as
disclosed in the Parent Disclosure Schedule and for matters
which, individually or in the aggregate, would not have a
Material Adverse Effect on Parent: (a) Parent and its
Subsidiaries have complied in all material respects with all
requirements of law applicable to their respective assets and
businesses and (b) neither Parent nor any Subsidiary has
infringed upon or misappropriated any patent, trademark, service
mark, trade name, copyright or other proprietary right of any
other person or entity.
Section 2.10 Litigation. Except as set forth in the
Parent Disclosure Schedule, there are no actions, suits or
proceedings pending or threatened against Parent or any of its
Subsidiaries before any Governmental Entity or arbitrator which,
individually or in the aggregate, should reasonably be expected
to have a Material Adverse Effect on Parent.
Section 2.11 Taxes. Except as otherwise set forth in
the Parent Disclosure Schedule, (a) Parent and each of its
Significant Subsidiaries has filed all Tax Returns required to
have been filed on or before the date hereof; (b) all Taxes shown
to be due on the Tax Returns referred in clause (a) have been
timely paid; (c) neither Parent nor any of its Significant
Subsidiaries has waived any statute of limitations in respect of
<PAGE> 25
Taxes of Parent or such Subsidiary; (d) the Tax Returns referred
to in clause (a) relating to federal and state income Taxes have
been examined by the Internal Revenue Service or the appropriate
state taxing authority or the period for assessment of the Taxes
in respect of which such Tax Returns were required to be filed
has expired; (e) no issues that have been raised in writing by
the relevant taxing authority in connection with the examination
of the Tax Returns referred to in clause (a) are currently
pending; and (f) all deficiencies asserted or assessments made as
a result of any examination of the Tax Returns referred to in
clause (a) by a taxing authority have been paid in full. For
purposes of this Agreement (i) "Tax" (and, with correlative
meaning, "Taxes") means, any federal, state, local or foreign
income, gross receipts, property, sales, use, license, excise,
franchise, employment, payroll, withholding, alternative or added
minimum, ad valorem, transfer or excise tax, or any other tax,
custom, duty, governmental fee or other like assessment or charge
of any kind whatsoever, together with any interest or penalty,
imposed by any Governmental Entity, and (ii) "Tax Return" means
any return, report or similar statement required to be filed with
respect to any Tax (including any attached schedules), including,
without limitation, any information return, claim for refund,
amended return or declaration of estimated Tax.
Section 2.12 Parent Benefit Plans. The Parent
Disclosure Schedule contains a list of all significant "employee
welfare benefit plans" and all significant "employee pension
benefit plans" (as such terms are defined in Sections 3(1)
and 3(2) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA")) maintained or contributed to on behalf of
employees of the Parent or any of its Subsidiaries as of the date
of this Agreement (the "Parent Benefit Plans"). Except as set
forth in the Parent Disclosure Schedule, each Parent Benefit Plan
which is intended to be qualified under Section 401(a) of the
Code has been determined by the Internal Revenue Service to be so
qualified except for changes for which the remedial amendment
period under Section 401(b) of the Code has not expired. Neither
the Parent nor any of its Subsidiaries has any liability to the
Pension Benefit Guaranty Corporation with respect to any Parent
Benefit Plan except for applicable insurance premiums. Each
Parent Benefit Plan has been maintained and administered in
compliance in all material respects with ERISA and the Code.
Except as set forth in the Parent Disclosure Schedule, (a)
neither the Parent nor any of its Subsidiaries has any obligation
to contribute to any "multiemployer plan", as such term is
defined in Section 3(37) of ERISA or Section 4001(a)(3) of ERISA,
and (b) assuming the Parent and each of its Subsidiaries incurred
a complete withdrawal under Section 4203 of ERISA from all such
plans, the withdrawal liability arising under Section 4201 of
ERISA with respect to such plans would not exceed the amount set
forth in the Parent Disclosure Schedule. Except for agreements
identified in the Parent Disclosure Schedule or as expressly
provided for in this Agreement, neither Parent nor any of its
<PAGE> 26
Subsidiaries is a party to any agreement which (a) requires it to
make any bonus or severance payment to any of its officers or
employees solely by reason of the closing of the transactions
contemplated by this Agreement or (b) requires it to make a
payment to any of its officers or employees that, to the
knowledge of Parent, may be an "excess parachute payment" to a
"disqualified individual", as such terms are defined in Section
280G of the Code.
Section 2.13 Environmental Matters. Except as
disclosed in the Parent Disclosure Schedule and for matters
which, individually or in the aggregate, would not have a
Material Adverse Effect on Parent: (a) the use and operation of
the assets and properties owned or leased by Parent and its
Subsidiaries comply in all material respects with all applicable
federal, state and local environmental, safety and health laws,
ordinances, rules or regulations and (b) nothing has come to the
attention of any of the directors or officers of Parent or any of
its Subsidiaries that leads any of such persons to believe that
Parent or any of its Subsidiaries is or may be liable to any
person or Governmental Entity as a result of a release or
threatened release of any hazardous or toxic substance or waste
into the environment.
Section 2.14 Title to Property. Parent or its
Subsidiaries has good and, with respect to real property,
marketable title to all of the material assets reflected on the
consolidated financial statements of Parent included in the
Parent SEC Documents as being owned by it or its Subsidiaries and
all of the material assets thereafter acquired by it or its
Subsidiaries (except to the extent that such assets have
thereafter been disposed of in the ordinary course of business
consistent with past practice), subject to no liens, mortgages,
pledges, security interests, encumbrances, claims or charges of
any kind (collectively, "Liens") except for (a) Liens described
in the Parent SEC Documents or the Parent Disclosure Schedule,
(b) Liens for taxes not yet delinquent or the validity of which
is being contested in good faith for which sufficient accruals
have been established, (c) any Liens arising by operation of law
securing obligations not yet overdue and (d) other Liens which,
individually or in the aggregate, are not material in amount and
do not materially detract from the value or materially impair the
existing use of any material asset of Parent or any of its
Subsidiaries.
Section 2.15 Brokers. No broker, investment banker or
other person is entitled to any broker's, finder's or other
similar fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or
on behalf of Parent or Sub. Parent shall be responsible for and
pay all financial advisory fees and expenses of The Chase
Manhattan Bank, N.A., to the extent payable.
<PAGE> 27
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and Sub
as follows:
Section 3.1 Organization, Standing and Power. The
Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware and has
the requisite corporate power and authority to carry on its busi-
ness as now being conducted. The schedule delivered to Parent
and identified by the Company as its final disclosure schedule
under this Agreement (the "Company Disclosure Schedule") contains
a list of each Subsidiary of the Company, indicating its juris-
diction of incorporation or other organization, its authorized
share or other equity capital, the number and percentage of its
issued and outstanding shares or other equity interests owned of
record or beneficially by the Company or any of its Subsidiaries
(naming each such owner), and whether it is a Significant
Subsidiary. The Company and each of its Significant Subsidiaries
is duly qualified to do business, and is in good standing, in
each jurisdiction where the character of its properties owned or
held under lease or the nature of its activities makes such
qualification necessary, except where the failure to be so
qualified would not, individually or in the aggregate, have a
Material Adverse Effect on the Company.
Section 3.2 Capital Structure. The authorized capital
stock of the Company consists of 50,000,000 shares of Company
Common Stock and 10,000,000 shares of preferred stock, par value
$1.00 per share (the "Company Preferred Stock"). At the close of
business on February 22, 1995, (a) 7,231,866 shares of Company
Common Stock were validly issued and outstanding, fully paid,
nonassessable and listed on the NYSE and none of such securities
had been issued in violation of any preemptive right of any
stockholder of the Company, (b) 487,992 shares of Company Common
Stock were reserved for issuance upon the exercise of outstanding
Company Stock Options, (c) 500,000 shares of Company Common Stock
were reserved for issuance upon the exercise of outstanding
Company Warrants, (d) 23,509 shares of Company Common Stock were
held by the Company or its wholly-owned Subsidiaries in treasury,
and (e) no shares of Company Preferred Stock were issued or
outstanding. There are no outstanding SARs issued by the Company
with respect to Company Common Stock, other than 75,000 phantom
stock rights issued pursuant to an Agreement dated as of October
18, 1994 between Gary G. Dillon and a Subsidiary of the Company.
All outstanding shares of capital stock of the Company's
Subsidiaries are validly authorized and issued, fully paid and
nonassessable and have not been issued in violation of any
preemptive right of any stockholder of any of such Subsidiaries
and, except as disclosed in the Company Disclosure Schedule, all
<PAGE> 28
of such shares are owned of record and beneficially by the
Company or a wholly-owned Subsidiary of the Company, free and
clear of all liens, charges or encumbrances. Except for (i) the
outstanding Company Stock Options, (ii) the outstanding Company
Warrants, (iii) the obligations of the Company under its three
tax reduction investment plans (the "Company 401(k) Plans") and
(iv) the outstanding common stock purchase rights (the "Company
Rights") issued pursuant to the Rights Agreement dated as of
April 14, 1989 between the Company and Harris Trust and Savings
Bank, as Rights Agent (the "Company Rights Agreement"), there are
no options, warrants, rights, commitments, agreements,
arrangements or undertakings of any kind to which the Company or
any of its Subsidiaries is a party or by which any of them is
bound obligating the Company or any of its Subsidiaries to issue,
deliver or sell, or cause to be issued, delivered or sold,
additional shares of capital stock or other voting securities of
the Company or of any of its Subsidiaries. True and correct
copies of all plans, agreements, instruments and other governing
documents relating to, the Company Stock Options, the Company
Warrants, the Company Rights and the Company 401(k) Plans have
been furnished to Parent.
Section 3.3 Authority; Non-Contravention. The Company
has all corporate power and authority to enter into this
Agreement and, subject to obtaining the approval of this
Agreement by the stockholders of the Company, to consummate the
transactions contemplated hereby. Subject to obtaining such
approval by the stockholders of the Company, the execution and
delivery of this Agreement by the Company and the consummation by
the Company of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of
the Company. This Agreement has been duly executed and delivered
by the Company and (assuming the valid authorization, execution
and delivery of this Agreement by Parent and Sub and the
enforceability of this Agreement against each of them)
constitutes the legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms,
except to the extent enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws of general applicability relating to or
affecting the enforcement of creditors' rights and by the effect
of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at
law). Except as set forth in the Company Disclosure Schedule,
the execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby and
compliance with the provisions hereof will not, conflict with, or
result in any violation of, or default (with or without notice or
lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any material
obligation or to the loss of a material benefit under, or result
in the creation of any lien, security interest, charge or
encumbrance upon any of the properties or assets of the Company
<PAGE> 29
or any of its Significant Subsidiaries under, any provision of
(a) the Certificate of Incorporation or By-laws of the Company
(true and complete copies of which as of the date hereof have
been delivered to Parent) or any provision of the comparable
charter or organization documents of any of its Significant
Subsidiaries, (b) any loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument,
permit, concession, franchise or license applicable to the Com-
pany or any of its Significant Subsidiaries or (c) any judgment,
order, decree, statute, law, ordinance, rule or regulation appli-
cable to the Company or any of its Significant Subsidiaries or
any of their respective properties or assets, other than, in the
case of clauses (b) or (c), any such conflicts, violations,
defaults, rights, liens, security interests, charges or encum-
brances that, individually or in the aggregate, would not have a
Material Adverse Effect on the Company, materially impair the
ability of the Company to perform its obligations hereunder or
prevent the consummation of any of the transactions contemplated
hereby. No filing or registration with, or authorization, con-
sent or approval of, any Governmental Entity is required by or
with respect to the Company or any of its Significant Subsidi-
aries in connection with the execution and delivery of this
Agreement by the Company or the consummation by the Company of
the transactions contemplated hereby, except for (i) filings in
connection, or in compliance, with the applicable requirements of
the Securities Act and the Exchange Act (ii) the filing of the
Certificate of Merger with the Secretary of State of the State of
Delaware and appropriate documents with the relevant authorities
of other states in which the Company or any of its Significant
Subsidiaries is qualified to do business, (iii) such filings and
consents as may be required under any environmental, health or
safety law or regulation pertaining to any notification, dis-
closure or required approval triggered by the Merger or the
transactions contemplated by this Agreement, (iv) such filings as
may be required in connection with the taxes described in Section
6.9, (v) such consents, approvals, orders, authorizations, regis-
trations, declarations and filings as may be required under the
corporation, takeover or "Blue Sky" laws of various states, (vi)
such filings and approvals as may be required under the Improve-
ments Act, and (vii) such other consents, approvals, orders,
authorizations, registrations, declarations and filings the
failure of which to be obtained or made would not, individually
or in the aggregate, have a Material Adverse Effect on the
Company, materially impair the ability of the Company to perform
its obligations hereunder or prevent the consummation of any of
the transactions contemplated hereby.
Section 3.4 Company SEC Documents. The Company has
filed all documents which the Securities Act or the Exchange Act
require the Company to file with the SEC since January 1, 1993
(the "Company SEC Documents"). A list of all of the Company SEC
Documents is included in the Company Disclosure Schedule. As of
their respective dates, the Company SEC Documents complied in all
<PAGE> 30
material respects with the requirements of the Securities Act or
the Exchange Act, as the case may be, and none of the Company SEC
Documents contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
The financial statements of the Company included in the Company
SEC Documents comply as to form in all material respects with
applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto, have been prepared
in accordance with generally accepted accounting principles
(except, in the case of unaudited statements, as permitted by
Form 10-Q of the SEC) applied on a consistent basis during the
periods involved (except as may be indicated therein or in the
notes thereto) and fairly present the consolidated financial
position of the Company and its consolidated Subsidiaries as at
the dates thereof and the consolidated results of their
operations and consolidated cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end
audit adjustments and to any other adjustments described
therein).
Section 3.5 Registration Statement and Proxy
Statement/Prospectus. The Proxy Statement/Prospectus will not,
at the time of the mailing of the Proxy Statement/Prospectus to
the respective stockholders of Parent and the Company and at the
time of the Stockholder Meetings, contain any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made,
not misleading; provided, however, that the foregoing shall not
apply to the extent that any such untrue statement of a material
fact or omission to state a material fact was made by the Company
in reliance upon and in conformity with written information
supplied or to be supplied to the Company by Parent expressly for
inclusion or incorporation by reference in the Proxy
Statement/Prospectus. The Proxy Statement/Prospectus will comply
as to
form with all applicable requirements of the Exchange Act;
provided, however, that the foregoing shall not apply to any
written information supplied or to be supplied to the Company by
Parent expressly for inclusion or incorporation by reference in
the Proxy Statement/Prospectus.
Section 3.6 Absence of Material Adverse Change.
Except as disclosed in the Company SEC Documents filed with the
SEC prior to the date hereof or in the Company Disclosure
Schedule, there has not been any Material Adverse Change with
respect to the Company.
Section 3.7 Pooling of Interests; Reorganization. To
the knowledge of the Company, neither it nor any of its
Subsidiaries has (i) taken any action or failed to take any
<PAGE> 31
action which would jeopardize the treatment of Sub's combination
with the Company in the Merger as a pooling of interests for
accounting purposes or (ii) taken any action or failed to take
any action which would jeopardize the qualification of the Merger
as a reorganization within the meaning of Section 368(a) of the
Code.
Section 3.8 Dividends. Since September 30, 1994, the
Company has not declared, set aside or paid any dividends on, or
made any other actual, constructive or deemed distributions in
respect of, any of its capital stock, or otherwise made any
payments to its stockholders in their capacity as such.
Section 3.9 No Violation or Infringement. Except as
disclosed in the Company Disclosure Schedule and for matters
which, individually or in the aggregate, would not have a
Material Adverse Effect on the Company: (a) the Company and its
Subsidiaries have complied in all material respects with all
requirements of law applicable to their respective assets and
businesses and (b) neither the Company nor any Subsidiary has
infringed upon or misappropriated any patent, trademark, service
mark, trade name, copyright or other proprietary right of any
other person or entity.
Section 3.10 Litigation. Except as set forth in the
Company Disclosure Schedule, there are no actions, suits or
proceedings pending or threatened against the Company or any of
its Subsidiaries before any Governmental Entity or arbitrator
which, individually or in the aggregate, should reasonably be
expected to have a Material Adverse Effect on the Company.
Section 3.11 Taxes. Except as otherwise set forth in
the Company Disclosure Schedule, (a) the Company and each of its
Significant Subsidiaries has filed all Tax Returns required to
have been filed on or before the date hereof; (b) all Taxes shown
to be due on the Tax Returns referred in clause (a) have been
timely paid; (c) neither the Company nor any of its Significant
Subsidiaries has waived any statute of limitations in respect of
Taxes of the Company or such Subsidiary; (d) the Tax Returns
referred to in clause (a) relating to federal and state income
Taxes have been examined by the Internal Revenue Service or the
appropriate state taxing authority or the period for assessment
of the Taxes in respect of which such Tax Returns were required
to be filed has expired; (e) no issues that have been raised in
writing by the relevant taxing authority in connection with the
examination of the Tax Returns referred to in clause (a) are
currently pending; and (f) all deficiencies asserted or
assessments made as a result of any examination of the Tax
Returns referred to in clause (a) by a taxing authority have been
paid in full.
Section 3.12 Company Benefit Plans. The Company
Disclosure Schedule contains a list of all significant "employee
<PAGE> 32
welfare benefit plans" and all significant "employee pension
benefit plans" (as such terms are defined in Sections 3(1)
and 3(2) of ERISA) maintained or contributed to on behalf of
employees of the Company or any of its Subsidiaries as of the
date of this Agreement (the "Company Benefit Plans"). Except as
set forth in the Company Disclosure Schedule, each Company
Benefit Plan which is intended to be qualified under
Section 401(a) of the Code has been determined by the Internal
Revenue Service to be so qualified except for changes for which
the remedial amendment period under Section 401(b) of the Code
has not expired. Neither the Company nor any of its Subsidiaries
has any liability to the Pension Benefit Guaranty Corporation
with respect to any Company Benefit Plan except for applicable
insurance premiums. Each Company Benefit Plan has been
maintained and administered in compliance in all material
respects with ERISA and the Code. Except as set forth in the
Company Disclosure Schedule, (a) neither the Company nor any of
its Subsidiaries has any obligation to contribute to any
"multiemployer plan", as such term is defined in Section 3(37) of
ERISA or Section 4001(a)(3) of ERISA, and (b) assuming the
Company and each of its Subsidiaries incurred a complete
withdrawal under Section 4203 of ERISA from all such plans, the
withdrawal liability arising under Section 4201 of ERISA with
respect to such plans would not exceed the amount set forth in
the Company Disclosure Schedule. Except for agreements
identified in the Company Disclosure Schedule or as expressly
provided for in this Agreement, neither the Company nor any of
its Subsidiaries is a party to any agreement which (a) requires
it to make any bonus or severance payment to any of its officers
or employees solely by reason of the change of control of the
Company effected by the consummation of the Merger or (b)
requires it to make a payment to any of its officers or employees
that, to the knowledge of the Company, may be an "excess
parachute payment" to a "disqualified individual", as such terms
are defined in Section 280G of the Code.
Section 3.13 Environmental Matters. Except as
disclosed in the Company Disclosure Schedule and for matters
which, individually or in the aggregate, would not have a
Material Adverse Effect on the Company: (a) the use and operation
of the assets and properties owned or leased by the Company and
its Subsidiaries comply in all material respects with all
applicable federal, state and local environmental, safety and
health laws, ordinances, rules or regulations and (b) nothing has
come to the attention of any of the directors or officers of the
Company or any of its Subsidiaries that leads any of such persons
to believe that the Company or any of its Subsidiaries is or may
be liable to any person or Governmental Entity as a result of a
release or threatened release of any hazardous or toxic substance
or waste into the environment.
Section 3.14 Title to Property. The Company or its
Subsidiaries has good and, with respect to real property,
<PAGE> 33
marketable title to all of the material assets reflected on the
consolidated financial statements of the Company included in the
Company SEC Documents as being owned by it or its Subsidiaries,
including, without limitations, its facility located at
Asheville, North Carolina, and all of the material assets
thereafter acquired by it or its Subsidiaries (except to the
extent that such assets have thereafter been disposed of in the
ordinary course of business consistent with past practice),
subject to no Liens, except for (a) Liens described in the
Company SEC Documents, (b) Liens for taxes not yet delinquent or
the validity of which is being contested in good faith for which
sufficient accruals have been established, (c) any Liens arising
by operation of law securing obligations not yet overdue and (d)
other Liens which, individually or in the aggregate, are not
material in amount and do not materially detract from the value
or materially impair the existing use of any material asset of
the Company or any of its Subsidiaries.
Section 3.15 Brokers. No broker, investment banker or
other person (other than J. P. Morgan Securities Inc., the fees
and expenses of which, to the extent payable, will be paid by the
Surviving Corporation) is entitled to any broker's, finder's or
other similar fee or commission in connection with the trans-
actions contemplated by this Agreement based upon arrangements
made by or on behalf of the Company.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES REGARDING SUB
Parent and Sub jointly and severally represent and
warrant to the Company as follows:
Section 4.1 Organization and Standing. Sub is a
corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware. Sub was
organized solely for the purpose of acquiring the Company and
engaging in the transactions contemplated by this Agreement and
has not engaged in any business since it was incorporated which
is not in connection with the acquisition of the Company and this
Agreement.
Section 4.2 Capital Structure. The authorized capital
stock of Sub consists of 1,000 shares of common stock, par value
$.01 per share, all of which are validly issued and outstanding,
fully paid and nonassessable and are owned by Parent free and
clear of all liens, charges and encumbrances.
Section 4.3 Authority; Non-Contravention. Sub has all
corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution
and delivery of this Agreement, the performance by Sub of its
<PAGE> 34
obligations hereunder and the consummation of the transactions
contemplated hereby have been duly authorized by its Board of
Directors and Parent as its sole stockholder, and, no other
corporate proceedings on the part of Sub are necessary to
authorize this Agreement and the transactions contemplated
hereby. This Agreement has been duly and validly executed and
delivered by Sub and (assuming the due authorization, execution
and delivery hereof by the Company and the enforceability of this
Agreement against the Company) constitutes the legal, valid and
binding agreement of Sub enforceable against Sub in accordance
with its terms, except to the extent enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws of general
applicability relating to or affecting the enforcement of
creditors' rights and by the effect of general principles of
equity (regardless of whether enforceability is considered in a
proceeding in equity or at law). The execution and delivery of
this Agreement do not, and the consummation of the transactions
contemplated hereby and compliance with the provisions hereof
will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time, or both) under,
or give rise to a right of termination, cancellation or
acceleration of any obligation or to the loss of a material
benefit under, or result in the creation of any lien, security
interest, charge or encumbrance upon any of the properties or
assets of Sub under, any provision of (i) the Certificate of
Incorporation or By-laws of Sub (true and complete copies of
which as of the date hereof have been delivered to the Company)
(ii) any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, conces-
sion, franchise or license applicable to Sub or (iii) any judg-
ment, order, decree, statute, law, ordinance, rule or regulation
applicable to Sub or any of its properties or assets, other than,
in the case of clauses (ii) or (iii), any such conflicts, viola-
tions, defaults, rights, liens, security interests, charges or
encumbrances that, individually or in the aggregate, would not
have a Material Adverse Effect on Parent, materially impair the
ability of Sub to perform its obligations hereunder or prevent
the consummation of any of the transactions contemplated hereby.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
Section 5.1 Conduct of Business Pending the Merger.
(a) Actions. During the period from the date of
this Agreement through the Effective Time, each of the
Company and Parent shall, and each shall cause its
respective Subsidiaries to, in all material respects carry
on its respective businesses in, and not enter into any
material transaction other than in accordance with, the
<PAGE> 35
ordinary course and, to the extent consistent therewith, use
all reasonable efforts to preserve intact its current
business organizations, keep available the services of its
current officers and employees and preserve its
relationships with customers, suppliers and others having
business dealings with it to the end that its goodwill and
ongoing businesses shall be unimpaired at the Effective
Time. Without limiting the generality of the foregoing,
and, except as disclosed in the Company Disclosure Schedule
or the Parent Disclosure Schedule or as otherwise expressly
contemplated by this Agreement, each of the Company and
Parent shall not, and each shall not permit any of its
respective Subsidiaries to, without the prior written
consent of the other parties to this Agreement:
(i) (A) declare, set aside or pay any dividends on, or
make any other actual, constructive or deemed distributions
in respect of, any of its respective capital stock, or
otherwise make any payments to its respective stockholders
in their capacity as such, other than (1) ordinary quarterly
dividends by Parent consistent with past practice, each in
an amount not in excess of $.15 per share with respect to
Parent Common Stock, (2) dividends declared by Parent prior
to the date of this Agreement and (3) dividends payable to
the Company declared by any of the Company's Subsidiaries or
to Parent declared by any of Parent's Subsidiaries, (B)
split, combine or reclassify any of its capital stock or
issue or authorize the issuance of any other securities in
respect of, in lieu of or in substitution for, shares of its
capital stock, and (c) purchase, redeem or otherwise acquire
any shares of capital stock of each of the Company or
Parent, or any of its respective Subsidiaries or any other
securities thereof or any rights, warrants or options to
acquire any such shares or other securities, other than the
Company's redemption of the Company Rights prior to the
Effective Time in accordance with Section 7.3(c);
(ii) issue, deliver, sell, pledge, dispose of or
otherwise encumber any shares of its capital stock, any
other voting securities or equity equivalent or any
securities convertible into, or any rights, warrants or
options to acquire, any such shares, voting securities,
equity equivalent or convertible securities (other
than, in the case of the Company, the issuance of
Company Common Stock (and associated Company Rights)
during the period from the date of this Agreement
through the Effective Time (A) upon the exercise of
Company Stock Options outstanding on the date of this
Agreement in accordance with their current terms, (B)
upon the exercise of Company Warrants outstanding on
the date of this Agreement in accordance with their
current terms, (C) in accordance with the terms,
existing at the date of this Agreement, of the Company
<PAGE> 36
401(k) Plans and, in the case of Parent, the issuance
of Parent Common Stock (and associated Parent Rights)
during such period (A) upon the exercise of Parent
Stock Options outstanding on the date of this Agreement
in accordance with their current terms and (B) in
accordance with the terms, existing at the date of this
Agreement, of the Parent 1994 SAR Plan, Parent's
Employees' Stock Purchase Plan, Kuhlman Electric
Corporation's Savings Maximizer Plan, the Parent Rights
and Parent's 1993 Non-Employee Directors Stock Plan);
(iii) amend its Certificate of Incorporation
(other than, in the case of Parent, to approve and
adopt the Amendment) or amend in any material respects
its By-laws;
(iv) acquire or agree to acquire by merging or
consolidating with, or by purchasing a portion of the
assets of or equity in, or by any other manner, any
business or any corporation, partnership, association
or other business organization or division thereof or
otherwise acquire or agree to acquire any assets, in
each case that are material or substantial,
individually or in the aggregate, to the Company and
its Subsidiaries taken as a whole, and to Parent and
its Subsidiaries taken as a whole, respectively;
(v) sell, lease or otherwise dispose of or agree
to sell, lease or otherwise dispose of, any of its
assets (other than sales or other dispositions of
inventory in the ordinary course of business) that are
material, individually or in the aggregate, to the
Company and its Subsidiaries taken as a whole, or to
Parent and its Subsidiaries taken as a whole,
respectively;
(vi) except in the ordinary course of business
consistent with past practice, (A) incur or assume any
indebtedness for borrowed money or guarantee any such
indebtedness or issue or sell any debt securities or
guarantee any debt securities of others or (B) make any
loans, advances or capital contributions to, or
investments in, any other person, other than to the
Company or any wholly-owned Subsidiary of the Company
or to Parent or any wholly-owned Subsidiary of Parent,
respectively;
(vii) alter through merger, liquidation, reor-
ganization, restructuring or in any other fashion the
corporate structure or ownership of any Subsidiary of
the Company or any Subsidiary of Parent, respectively;
or
<PAGE> 37
(viii) enter into or adopt, or amend any exist-
ing, severance plan, agreement or arrangement or, other
than in the ordinary course of business, enter into or
amend any employee benefit plan (including, without
limitation, the Company Stock Plan, its Performance
Unit Plan and the Company 401(k) Plans with respect to
the Company and the Parent Stock Plans, the Parent 1994
SAR Plan, its Employees' Stock Purchase Plan, Kuhlman
Electric Corporation's Savings Maximizer Plan and
Parent's 1993 Non-Employee Directors Stock Plan with
respect to Parent), or any employment or consulting
agreement, except compensation increases associated
with promotions and annual reviews in the ordinary
course of business consistent with past practice.
(b) Advice of Changes. Each of the Company and
Parent shall promptly advise the other such party orally and
in writing of any change or event having, or which, insofar
as can reasonably be foreseen, would have, a Material
Adverse Effect on the Company or Parent, respectively.
Section 5.2 No Solicitation. From and after the date
hereof, neither the Company nor Parent will solicit or initiate,
nor will either such party permit any of its officers, directors,
employees, agents and other representatives or those of any of
its Subsidiaries to, directly or indirectly, solicit or initiate,
any takeover proposal or offer from any person, or engage in
discussions or negotiations relating thereto; provided, however,
that (a) either such party may engage in discussions or negotia-
tions with a third party who seeks to initiate such discussions
or negotiations or may furnish to such third party information
concerning such party and its business, properties or assets and
(b) following receipt of a takeover proposal the Board of
Directors of either such party may withdraw or modify its
recommendation referred to in Section 6.1, but in each case
referred to in the foregoing clauses (a) and (b) only to the
extent that the Board of Directors of such party shall conclude
in good faith after consultation with its outside counsel that
such action is necessary in order for the Board of Directors of
such party to act in a manner which is consistent with its
fiduciary obligations under applicable law. Each of the Company
and Parent will promptly notify the other party of any takeover
proposal or offer, including the material terms and conditions
thereof, but shall not be required to indicate the identity of
the person or group making such takeover proposal or offer. As
used in this Agreement, "takeover proposal" or "offer" shall mean
any proposal or offer, other than a proposal or offer by Parent,
the Company or any of their respective affiliates, for a tender
or exchange offer, a merger, consolidation or other business com-
bination involving the Company, Parent or any of their respective
Subsidiaries or any proposal to acquire in any manner a substan-
tial equity interest in, or a substantial portion of the assets
of, the Company, Parent or any of their respective Subsidiaries.
<PAGE> 38
Section 5.3 Pooling of Interests; Reorganization.
During the period from the date of this Agreement through the
Effective Time, unless the other parties shall otherwise agree in
writing, none of Parent, Sub, any other Subsidiary of Parent, the
Company nor any Subsidiary of the Company shall (a) knowingly
take or fail to take any action which would jeopardize the
treatment of Sub's combination with the Company as a pooling of
interests for accounting purposes or (b) knowingly take or fail
to take any action which would jeopardize qualification of the
Merger as a reorganization within the meaning of Section 368(a)
of the Code.
Section 5.4 Conduct of Business of Sub Pending the
Merger. During the period from the date of this Agreement
through the Effective Time, Sub shall not engage in any
activities of any nature except as provided in or contemplated by
this Agreement.
ARTICLE VI
ADDITIONAL AGREEMENTS
Section 6.1 Stockholder Approval. Each of Parent and
the Company shall take all action necessary in accordance with
all applicable federal and state laws and their respective
Certificates of Incorporation and By-laws to call separate annual
meetings of their respective stockholders to be held on the same
date (such meetings, including any adjournment of either or both
of such meetings, being referred to herein collectively as the
"Stockholder Meetings"), (a) in the case of the Company, to
consider and vote on (i) the approval of this Agreement, (ii) the
election of one class of directors and (iii) the ratification of
the appointment of auditors and (b) in the case of Parent, to
consider and vote on (i) the approval of an amendment to the
Certificate of Incorporation of Parent to increase the number of
authorized shares of Parent Common Stock from 10,000,000 to
20,000,000 shares and to eliminate the designation therein of
shares of Parent Preferred Stock as Junior Participating
Preferred Stock, Series A (the "Amendment"), (ii) the approval of
the issuance of Parent Common Stock pursuant to this Agreement,
(iii) the approval of Parent's 1994 Stock Option Plan, (iv) the
election of one class of directors and (v) the ratification of
the selection of auditors, and (c) in both cases, to consider and
vote upon such other matters as may be necessary to effect or
related to the transactions contemplated hereunder. The
Stockholder Meetings shall be held as soon as practicable
following the date upon which the Registration Statement becomes
effective. The Company shall, through its Board of Directors but
subject to the fiduciary duties of its Board of Directors under
applicable law as determined by such Board of Directors in good
faith after consultation with the Company's outside counsel,
<PAGE> 39
recommend to its stockholders the approval of this Agreement and
otherwise use all reasonable efforts to obtain such stockholder
approval, and Parent shall, through its Board of Directors but
subject to the fiduciary duties of its Board of Directors under
applicable law as determined by such Board of Directors in good
faith after consultation with Parent's outside counsel, recommend
to its stockholders the approval of the Amendment and the
approval of the issuance of Parent Common Stock pursuant to this
Agreement and otherwise use all reasonable efforts to obtain such
stockholder approvals.
Section 6.2 Registration Statement and Proxy
Statement. Parent shall prepare and file with the SEC as soon as
practicable the Registration Statement containing the Proxy
Statement/Prospectus to be used at the Stockholder Meetings and
shall use all reasonable efforts to have the Registration
Statement declared effective by the SEC as soon as practicable.
Parent shall also take any action required to be taken under
state securities or "Blue Sky" laws in connection with the
issuance of the Parent Common Stock pursuant to this Agreement.
The Company shall furnish in writing to Parent all information
concerning the Company, its officers, directors and principal
stockholders and any of its Subsidiaries required for use in the
Registration Statement, and the Company shall take such other
actions as Parent may reasonably request in connection with the
preparation of such Registration Statement and the actions to be
taken by Parent pursuant to this Section 6.2. Parent will advise
the Company, promptly after it receives notice thereof, of the
time when the Registration Statement has become effective or any
supplement or amendment thereto has been filed, of the issuance
of any stop order, of the suspension of the qualification for
offering or sale in any jurisdiction of the shares of Parent
Common Stock issuable pursuant to this Agreement or any request
by the SEC for an amendment or supplement of the Registration
Statement or for additional information. If at any time after
the mailing of the Proxy Statement/Prospectus and prior to the
Effective Time, any event with respect to any party, its
officers, directors or principal stockholders or any of its
Subsidiaries or any event with respect to the Merger shall occur
which is required to be described in the Proxy
Statement/Prospectus or the Registration Statement, such party
shall immediately inform the other parties of such event and all
parties hereto shall cooperate in the preparation of a mutually
satisfactory amendment or supplement describing such event and
such amendment or supplement shall be promptly filed with the SEC
and, as required by law, disseminated to the respective
stockholders of Parent and the Company. It shall be conditions
(in each case unless waived by both Parent and the Company) to
the mailing of the Proxy Statement/Prospectus to the stockholders
of Parent and the stockholders of the Company that (a) Parent and
the Company shall have received the opinions of The Chase
Manhattan Bank, N.A. and J.P. Morgan Securities, Inc.,
respectively, dated as of the date of the Proxy
<PAGE> 40
Statement/Prospectus to the effect described in Sections 7.2(b)
and 7.3(e), respectively, (b) such opinions shall be included in
the Proxy Statement/Prospectus and (c) each of the Company and
Parent shall have executed a letter agreement identifying the
information provided by each of the Company and Parent for use in
the Proxy Statement/Prospectus.
Section 6.3 Access to Information.
(a) By Parent. The Company shall, and shall
cause each of its Subsidiaries to, afford to Parent, and to
Parent's accountants, counsel, financial advisers and other
representatives, reasonable access and permit them to make
such inspections as they may reasonably request during
normal business hours during the period from the date of
this Agreement through the Effective Time to all their
respective properties, books, contracts, commitments and
records and, during such period, the Company shall, and
shall cause each of its Subsidiaries to, furnish promptly to
Parent (i) access to each report, schedule, registration
statement and other document filed by it during such period
pursuant to the requirements of federal or state laws and
(ii) all other information concerning its business,
properties and personnel as Parent may reasonably request.
In no event shall the Company be required to supply to
Parent, or to Parent's accountants, counsel, financial
advisors or other representatives, any information relating
to indications of interest from, or discussions with, any
other potential acquirors of the Company which were received
or conducted prior to the date hereof except to the extent
necessary for use in the Registration Statement. Except as
required by law, Parent will hold, and will cause its
affiliates, associates and representatives to hold, any
nonpublic information in confidence until such time as such
information otherwise becomes publicly available and shall
use its best efforts to ensure that such affiliates, associ-
ates and representatives do not disclose such information to
others without the prior written consent of the Company. In
the event of termination of this Agreement for any reason,
Parent shall promptly return or destroy all nonpublic
documents so obtained from the Company or any of its
Subsidiaries and any copies made of such documents for
Parent.
(b) By the Company. Parent shall, and shall
cause each of its Subsidiaries to, afford to the Company,
and to Company's accountants, counsel, financial advisers
and other representatives, reasonable access and permit them
to make such inspections as they may reasonably request
during normal business hours during the period from the date
of this Agreement through the Effective Time to all their
respective properties, books, contracts, commitments and
records and, during such period, Parent shall, and shall
<PAGE> 41
cause each of its Subsidiaries to, furnish promptly to the
Company (i) access to each report, schedule, registration
statement and other document filed by it during such period
pursuant to the requirements of federal or state laws and
(ii) all other information concerning its business,
properties and personnel as the Company may reasonably
request. Except as required by law, the Company will hold,
and will cause its affiliates, associates and
representatives to hold, any nonpublic information in
confidence until such time as such information otherwise
becomes publicly available and shall use its best efforts to
ensure that such affiliates, associates and representatives
do not disclose such information to others without the prior
written consent of Parent. In the event of termination of
this Agreement for any reason, the Company shall promptly
return or destroy all nonpublic documents so obtained from
Parent or any of its Subsidiaries and any copies made of
such documents for the Company.
Section 6.4 Compliance with the Securities Act and
Pooling Requirements. Prior to the Effective Time, the Company
shall cause to be prepared and delivered to Parent a list
(reasonably satisfactory to counsel for Parent) identifying all
persons who, at the time of the Stockholder Meetings, may be
deemed to be "affiliates" of the Company as that term is used in
paragraphs (c) and (d) of Rule 145 under the Securities Act (the
"Affiliates"). The Company shall use its best efforts to cause
each person who is identified as an Affiliate in such list to
deliver to Parent on or prior to the Effective Time a written
agreement, in the form previously approved by the parties hereto,
that such Affiliate will not sell, pledge, transfer or otherwise
dispose of any shares of Parent Common Stock issued to such
Affiliate pursuant to the Merger, except pursuant to an effective
registration statement under the Securities Act or in compliance
with paragraph (d) of Rule 145 or another exemption from the
registration requirements of the Securities Act and that such
Affiliate will not sell or in any other way reduce such
Affiliate's risk relative to any shares of Parent Common Stock
received in the Merger (within the meaning of Section 201.01 of
the SEC's Financial Reporting Release No. 1), until such time as
financial results (including combined sales and net income)
covering at least 30 days of post-merger operations have been
published, except as permitted by Staff Accounting Bulletin No.
76 issued by the SEC.
Section 6.5 Stock Exchange Listing. Parent shall use
its best efforts to list on the NYSE, upon official notice of
issuance, the shares of Parent Common Stock to be issued pursuant
to this Agreement.
Section 6.6 Fees and Expenses. Whether or not the
Merger is consummated, all costs and expenses incurred in
connection with this Agreement and the transactions contemplated
<PAGE> 42
hereby shall be paid by the party incurring such costs and
expenses, except as Parent and the Company shall otherwise agree
in writing. Notwithstanding the foregoing, if (a) the Board of
Directors of the Company shall withdraw or materially modify its
recommendation to the stockholders of the Company to approve this
Agreement in accordance with Section 5.2 or (b) the Company shall
terminate this Agreement in accordance with Section 8.1(g), the
Company shall reimburse Parent for up to $500,000 of such
expenses actually incurred by Parent, including without
limitation legal, accounting, and investment banking fees and
expenses, promptly after receipt of one or more statements
therefor in reasonable detail; provided, however, that if prior
to the expiration of one year after any such withdrawal,
modification or termination, a merger, consolidation or other
business combination, or a tender or exchange offer, shall occur
which effects a change of control of the Company (an "Alternative
Transaction"), on the third business day after the closing of the
Alternative Transaction, the Company shall pay to Parent, in lieu
of its obligation to make any further expense reimbursements, an
amount equal to the excess of $2,000,000 over the total expense
reimbursements previously made by the Company pursuant to this
sentence.
Section 6.7 Reasonable Efforts. Upon the terms and
subject to the conditions set forth in this Agreement, each of
the parties agrees to use all reasonable efforts to take, or
cause to be taken, all actions, and to do, or cause to be done,
and to assist and cooperate with the other parties in doing, all
things necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the Merger
and the other transactions contemplated by this Agreement,
including (a) the obtaining of all necessary actions or non-
actions, waivers, consents and approvals from Governmental
Entities and the making of all necessary registrations and
filings and the taking of all reasonable steps as may be
necessary to obtain an approval or waiver from, or to avoid an
action or proceeding by any Governmental Entity, including but
not limited to any filing under the Improvements Act, (b) the
obtaining of all necessary consents, approvals or waivers from
third parties, (c) the defending of any lawsuits or other legal
proceedings, whether judicial or administrative, challenging this
Agreement or the consummation of the transactions contemplated
hereby, including seeking to have any stay or temporary restrain-
ing order entered by any court or other Governmental Entity
vacated or reversed, and (d) the execution and delivery of any
additional instruments necessary to consummate the transactions
contemplated by this Agreement; provided, however, that no party
shall be under any obligation to take any action pursuant to this
Section 6.7 to the extent that its Board of Directors shall
conclude in good faith after consultation with the its outside
counsel that such action is inconsistent with such Board of
Directors' fiduciary obligations under applicable law. Notwith-
standing anything to the contrary in this Section 6.7, no party
<PAGE> 43
shall commit to any divestiture transaction, or any other
material modification of its existing business or the existing
business of its Significant Subsidiaries, without the prior
written consent of all other parties.
Section 6.8 Public Announcements. Parent and Sub, on
the one hand, and the Company, on the other hand, will consult
with each other before issuing any press release or otherwise
making any public statements with respect to the transactions
contemplated by this Agreement, and shall not issue any such
press release or make any such public statement prior to such
consultation, except as may be required in the opinion of the
issuing party's outside counsel by applicable law or by
obligations pursuant to any listing agreement with the NYSE, in
which case the issuing party shall give the other parties notice
thereof as promptly as practicable.
Section 6.9 Real Estate Transfer and Gains Tax.
Subject to the last sentence of Section 1.7, Parent and the
Company agree that the Surviving Corporation will pay any real
property transfer or gains tax, or similar transfer tax, if any,
attributable to the transfer of the beneficial ownership of the
Company's or its Subsidiaries' real property (collectively, the
"Gains Taxes"), and any penalties or interest with respect to the
Gains Taxes, payable in connection with the consummation of the
Merger. The Company agrees to cooperate with Sub in the filing
of any returns with respect to the Gains Taxes, including
supplying in a timely manner a complete list of all real property
interests held by the Company or its Subsidiaries and any
information with respect to such property that is reasonably
necessary to complete such returns. The portion of the Merger
consideration allocable to the real property of the Company and
its Subsidiaries shall be determined by Sub or Parent in its
reasonable discretion. The stockholders of the Company shall be
deemed to have agreed to be bound by the allocation established
pursuant to this Section 6.9 in the preparation of any return
with respect to the Gains Taxes.
Section 6.10 State Takeover Laws; Company Rights
Agreement. If Section 203 of the DGCL shall become applicable to
the transactions contemplated hereby, the Company and the members
of the Board of Directors of the Company shall use all reasonable
efforts to grant such approvals and take such actions as are
necessary so that the transactions contemplated hereby may be
consummated as promptly as practicable on the terms contemplated
hereby and otherwise act to minimize the effects of such Section
203 of the DGCL on the transactions contemplated hereby. The
Board of Directors of the Company has amended the Company Rights
Agreement such that neither Parent nor Sub shall become an
Acquiring Person (as defined in the Company Rights Agreement) as
a result of entering into this Agreement. Immediately prior to
the Effective Time, the Company shall redeem all outstanding
Company Rights at a redemption price of $.01 per Company Right.
<PAGE> 44
No other action is required to prevent the holders of Company
Rights from having any right under the Company Rights Agreement
as a result of the execution, delivery and performance of this
Agreement and the consummation of the Merger (other than the
right to receive such redemption price for their respective
Company Rights).
Section 6.11 Indemnification; Directors and Officers
Insurance. From and after the Effective Time, Parent agrees to
indemnify and hold harmless all past and present officers and
directors of the Company and of its Subsidiaries to the full
extent such persons may be indemnified by the Company pursuant to
the Company's Certificate of Incorporation and By-Laws for acts
or omissions occurring at or prior to the Effective Time and
shall advance reasonable litigation expenses incurred by such
officers and directors in connection with defending any action
arising out of such acts or omissions. In addition, for a period
of not less than six years from the Effective Time, Parent will
provide, or cause the Surviving Corporation to provide, to the
Company's current directors and officers an insurance and indem-
nification policy that provides coverage for events occurring
through the Effective Time (the "D&O Insurance") that is no less
favorable than the existing policy or, if substantially equiva-
lent insurance coverage is unavailable, the best available cover-
age; provided, however, that Parent and the Surviving Corporation
shall not be required to pay an annual premium for the D&O
Insurance in excess of three times the last annual premium paid
prior to the date hereof, but in such case shall purchase as much
coverage as possible for such amount.
Section 6.12 Employee Benefits. Parent shall cause
the Company and its Subsidiaries (a) to honor all severance and
employment agreements with the officers and employees of the
Company or any of its Subsidiaries and (b) to maintain until at
least two (2) years after the Effective Time, employee benefits,
plans, programs and policies for retirees, officers and employees
(including terminated officers and employees) of the Company and
any of its Subsidiaries (including the Company's policies with
respect to severance pay and outplacement services) that are no
less favorable than those being provided to such retirees,
officers and employees on the date hereof; provided, however,
that nothing in this sentence shall be construed to be a
financial guarantee of any obligation of the Company or any of
its Subsidiaries. For purposes of eligibility to participate in
and vesting in all benefits provided to retirees, officers and
employees, the retirees, officers and employees of the Company
and its Subsidiaries will be credited with their hours and years
of service with the Company and its Subsidiaries and hours and
years of service with prior employers to the extent service with
prior employers is taken into account under plans of the Company
and its Subsidiaries.
Section 6.13 Job Vacancies. Parent shall maintain at
<PAGE> 45
its corporate offices a listing of job vacancies and newly
created positions at Parent and its Subsidiaries (including the
Surviving Corporation and its Subsidiaries), and upon the request
of any officer or employee of the Company or its Subsidiaries who
is terminated as a result of the Merger or within eighteen months
following the Effective Time, shall provide such terminated
officer or employee with a copy of such list of vacancies or
positions; provided, however, that Parent and its Subsidiaries
shall have no obligation under this Section 6.13 to hire any such
terminated officer or employee to fill any of such vacancies or
positions or to delay filling any of them until such terminated
officer or employee has received a copy of such list. The
service time of any such terminated officer or employee who
accepts employment with Parent or its Subsidiaries will include
all service time with the Company or its Subsidiaries and, in the
case of employment opportunities requiring a relocation of the
officer's or employee's place of residence, such officer or
employee will be provided relocation expenses and reimbursement
consistent with Parent's existing reimbursement policy for
transferred or newly hired officers or employees.
Section 6.14 Parent's Board of Directors. Parent's
Board of Directors will take all necessary action to cause Gary
G. Dillon to be elected to the Board of Directors of Parent as
soon as practicable after the Effective Time.
ARTICLE VII
CONDITIONS PRECEDENT TO THE MERGER
Section 7.1 Conditions to Each Party's Obligation to
Effect the Merger. The respective obligations of each party to
effect the Merger shall be subject to the fulfillment at or prior
to the Effective Time of the following conditions:
(a) Stockholder Approvals. This Agreement shall have
been approved by the requisite vote of the holders of
Company Common Stock and the Amendment and the issuance of
shares of Parent Common Stock pursuant to this Agreement
shall have been approved by the requisite vote of the
holders of Parent Common Stock.
(b) NYSE Listing. The Parent Common Stock issuable
pursuant to this Agreement shall have been authorized for
listing on the NYSE, upon official notice of issuance.
(c) Improvements Act Waiting Period. All applicable
waiting periods under the Improvements Act shall have
expired or been terminated.
(d) Registration Statement. The Registration
Statement shall have become effective in accordance with the
<PAGE> 46
provisions of the Securities Act. No stop order suspending
the effectiveness of the Registration Statement shall have
been issued by the SEC and remain in effect. All necessary
state securities or "Blue Sky" authorizations shall have
been received.
(e) Tax Opinion. The Company and Parent shall have
received a legal opinion of Sidley & Austin, special counsel
to the Company, in form and substance satisfactory to the
Company, dated the Effective Time, substantially to the
effect that, on the basis of facts, representations and
assumptions set forth in such opinion which are consistent
with the state of facts existing as of the Effective Time,
for federal income tax purposes:
(i) The Merger will constitute a reorganization within
the meaning of Section 368(a) of the Code and the Company,
Parent and Sub will each be a party to such reorganization
within the meaning of Section 368(b) of the Code;
(ii) No gain or loss will be recognized by the Company
as a result of the Merger;
(iii) No gain or loss will be recognized by the
stockholders of the Company upon the conversion of their
Company Common Stock into shares of Parent Common Stock
pursuant to the Merger (except for cash paid in lieu of a
fractional share of Parent Common Stock);
(iv) The aggregate tax basis of the shares of Parent
Common Stock received in exchange for shares of Company
Common Stock pursuant to the Merger (including a fractional
share of Parent Common Stock for which cash is paid) will be
the same as the aggregate tax basis of such shares of
Company Common Stock;
(v) The holding period for shares of Parent Common
Stock received in exchange for shares of Company Common
Stock pursuant to the Merger will include the period that
such shares of Company Common Stock were held by the holder,
provided such shares of Company Common Stock were held as
capital assets by the holder at the Effective Time; and
(vi) A stockholder of the Company who receives cash in
lieu of a fractional share of Parent Common Stock will
recognize gain or loss equal to the difference, if any,
between such stockholder's basis in the fractional share and
the amount of cash received.
In rendering such opinion, Sidley & Austin may receive and
rely as to matters of fact upon representations contained in
certificates of the Company, Parent, Sub and others, and may
condition such opinion on the receipt from certain
<PAGE> 47
stockholders of the Company of certificates verifying that
such stockholders have no present plan or intention to sell
or dispose of, or otherwise diminish their equity risk with
respect to, the shares of Parent Common Stock to be
distributed to them in the Merger.
(f) No Order. No Governmental Entity or court of
competent jurisdiction shall have enacted, issued,
promulgated, enforced or entered any law, rule, regulation,
executive order, decree, injunction or other order (whether
temporary, preliminary or permanent) which is then in effect
and has the effect of making this Agreement or the
transactions contemplated hereby illegal.
(g) Resignations of Company Directors. Each of the
directors of the Company, other than Gary G. Dillon and
Robert S. Jepson, Jr., shall have delivered to the Company
his written resignation as a director of the Company,
effective as of the Effective Time.
(h) Other Approvals. All authorizations, consents,
orders, declarations or approvals of, or filings with, or
terminations or expirations of waiting periods imposed by,
any Governmental Entity, the failure to obtain which would
have a Material Adverse Effect on Parent (on a consolidated
basis, assuming the Merger had taken place), shall have been
obtained, shall have occurred or shall have been filed.
Section 7.2 Conditions to Obligation of the Company to
Effect the Merger. The obligation of the Company to effect the
Merger shall be subject to the fulfillment at or prior to the
Effective Time of the following additional conditions:
(a) Performance of Obligations; Representations and
Warranties. Parent and Sub shall have performed in all
material respects each of their agreements contained in this
Agreement required to be performed on or prior to the
Effective Time, each of the representations and warranties
of Parent and Sub contained in this Agreement that is
qualified by materiality shall be true and correct on and as
of the Effective Time as if made on and as of such date,
each of the representations and warranties that is not so
qualified shall be true and correct in all material respects
on and as of the Effective Time as if made on and as of such
date, in each case except as contemplated or permitted by
this Agreement, and Parent shall have furnished to the
Company a certificate, dated the Effective Time, signed by
the Chairman of the Board, the President or an Executive
Vice President of Parent, certifying to the effect that to
the best of the signing officer's knowledge and belief, the
conditions set forth in this Section 7.2(a) have been
satisfied in full.
<PAGE> 48
(b) Fairness Opinion. The Company shall have received
in form satisfactory to the Company, an opinion of J. P.
Morgan Securities Inc., dated as of the date of the Proxy
Statement/Prospectus, substantially to the effect that the
consideration to be received by the stockholders of the
Company in the Merger is fair to such stockholders from a
financial point of view, and as of the Effective Time and
based upon circumstances then in effect such opinion shall
not have been withdrawn or modified in any material respect.
(c) Opinion of Counsel. The Company shall have
received a legal opinion from Rudnick & Wolfe, special
counsel to Parent, dated the Effective Time, substantially
to the effect that:
(i) The incorporation, existence and good standing of
Parent, Sub and each of Parent's Significant Subsidiaries
are as stated in this Agreement; the authorized shares of
capital stock of Parent, Sub and each of Parent's Signifi-
cant Subsidiaries are as stated in this Agreement; all
outstanding shares of Parent Common Stock and all
outstanding shares of capital stock of Parent's Significant
Subsidiaries are duly and validly authorized and issued,
fully paid and nonassessable and have not been issued in
violation of any preemptive right of any stockholder of
Parent or any of such Subsidiaries; all of the issued and
outstanding shares of capital stock of Parent's Significant
Subsidiaries are owned of record and, to the knowledge of
such counsel, beneficially by Parent or a wholly-owned
Subsidiary of Parent, and such counsel is not aware of any
liens, charges or encumbrances on any of such shares; and to
the knowledge of such counsel, there is no existing option,
warrant, right, call, subscription or other agreement or
commitment obligating Parent, Sub or any of Parent's
Significant Subsidiaries to issue or sell, or to purchase or
redeem, any shares of the capital stock of Parent or any of
its Significant Subsidiaries, other than as stated in this
Agreement.
(ii) Each of Parent and Sub has full corporate power
and authority to execute, deliver and perform this Agree-
ment; this Agreement has been duly authorized, executed and
delivered by Parent and Sub; this Agreement (assuming valid
authorization, execution and delivery of this Agreement by
the Company and the enforceability of this Agreement against
the Company) constitutes the legal, valid and binding agree-
ment of Parent and Sub enforceable against Parent and Sub in
accordance with its terms, except to the extent enforce-
ability may be limited by bankruptcy, insolvency, reorgani-
zation, moratorium, fraudulent transfer or other similar
laws of general applicability relating to or affecting the
enforcement of creditors' rights and by the effect of
general principles of equity (regardless of whether enforce-
<PAGE> 49
ability is considered in a proceeding in equity or at law)
and except that such counsel need express no opinion with
respect to the enforcement of rights to indemnification
against liabilities under the federal securities laws; and
the Amendment and the issuance of shares of Parent Common
Stock pursuant to this Agreement have been duly authorized
by all necessary corporate action.
(iii) The execution, delivery and performance by
Parent and Sub of this Agreement will not violate the
Certificate of Incorporation or By-Laws of Parent or of Sub
and, to the knowledge of such counsel, will not violate,
result in a breach of or constitute a default under any
material lease, mortgage, contract, agreement, instrument,
law, rule, regulation, judgment, order or decree to which
Parent, Sub or any of Parent's Significant Subsidiaries is a
party or by which any of them or any of their respective
properties or assets may be bound, which violation, breach
or default should reasonably be expected to have a Material
Adverse Effect on Parent.
(iv) To the knowledge of such counsel, no consent,
approval, authorization or order of any Governmental Entity
which has not been obtained is required on behalf of Parent,
Sub or any of Parent's other Subsidiaries for the consumma-
tion of the transactions contemplated by this Agreement.
(v) To the knowledge of such counsel, neither Parent
nor Sub is subject to any injunction (whether temporary,
preliminary or permanent) by any court of competent juris-
diction against consummation of the transactions contem-
plated by this Agreement.
(vi) Except as set forth in the Parent Disclosure
Schedule or the Parent SEC Documents, to the knowledge of
such counsel, there are no actions, suits or proceedings
pending or threatened against Parent or any of its
Subsidiaries before any Governmental Entity or arbitrator
which, individually or in the aggregate, should reasonably
be expected to have a Material Adverse Effect on Parent.
(vii) The shares of Parent Common Stock to be issued
pursuant to this Agreement will be, when so issued, shares
of Parent Common Stock that have been duly authorized and
validly issued, are fully paid and nonassessable and have
not been issued in violation of any preemptive right of any
stockholder of Parent.
(viii) The shares of Parent Common Stock issuable
pursuant to this Agreement have been duly listed on the
NYSE, subject to official notice of issuance.
(ix) The Registration Statement has become effective
<PAGE> 50
under the Securities Act and, to the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for
such purpose has been instituted or threatened by the SEC.
(x) (A) At the time the Registration Statement became
effective, the Registration Statement (other than the
financial statements, financial data, statistical data and
supporting schedules included therein and information relat-
ing to and supplied by the Company, as to which such counsel
need express no opinion) complied as to form in all material
respects with the requirements of the Securities Act and the
Exchange Act.
(B) In the course of the preparation of the Registra-
tion Statement and the Proxy Statement/Prospectus, such
counsel has considered the information set forth therein in
light of the matters required to be set forth therein, and
has participated in conferences with officers and represen-
tatives of Parent and the Company, including their respec-
tive counsel and independent public accountants, during the
course of which the contents of the Registration Statement
and the Proxy Statement/Prospectus and related matters were
discussed. Such counsel has not independently checked the
accuracy or completeness of, or otherwise verified, and
accordingly is not passing upon, and does not assume respon-
sibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the
Proxy Statement/Prospectus; and such counsel has relied as
to materiality, to a large extent, upon the judgment of
officers and representatives of Parent. However, as a
result of such consideration and participation, nothing has
come to such counsel's attention which causes such counsel
to believe that the Registration Statement (other than the
financial statements, financial data, statistical data and
supporting schedules included therein, the section captioned
"Management's Discussion and Analysis of Results of
Operations and Financial Condition" relating to Parent and
the information relating to and supplied by the Company, as
to which such counsel need express no belief), at the time
it became effective, contained any untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Proxy Statement/
Prospectus (other than the financial statements, financial
data, statistical data and supporting schedules included
therein, the section captioned "Management's Discussion and
Analysis of Results of Operations and Financial Condition"
relating to Parent and information relating to and supplied
by the Company, as to which such counsel need express no
belief), at the time the Registration Statement became
effective, at the time of mailing the Proxy Statement/
<PAGE> 51
Prospectus to the respective stockholders of Parent and the
Company or at the time of the Stockholder Meetings, included
any untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(xi) The Amendment and the Certificate of Merger have
been duly filed with the Secretary of State of the State of
Delaware and the Amendment and the Merger have become effec-
tive under the DGCL.
In rendering such opinion, Rudnick & Wolfe may rely as to
matters of fact upon the representations of officers of
Parent, Sub or any of Parent's other Subsidiaries contained
in any certificate delivered to such counsel and certifi-
cates of public officials. Such opinion shall be limited to
the General Corporation Law of the State of Delaware and the
laws of the United States of America.
(d) Other Documents. Parent and Sub shall have fur-
nished to the Company at the Closing such other customary
documents, certificates or instruments as the Company may
reasonably request evidencing compliance by Parent and Sub
with the terms of this Agreement.
Section 7.3 Conditions to Obligations of Parent and
Sub to Effect the Merger. The obligations of Parent and Sub to
effect the Merger shall be subject to the fulfillment at or prior
to the Effective Time of the following additional conditions:
(a) Performance of Obligations; Representations and
Warranties. The Company shall have performed in all
material respects each of its agreements contained in this
Agreement required to be performed on or prior to the
Effective Time, each of the representations and warranties
of the Company contained in this Agreement that is qualified
by materiality shall be true and correct on and as of the
Effective Time as if made on and as of such date, each of
the representations and warranties that is not so qualified
shall be true and correct in all material respects on and as
of the Effective Time as if made on and as of such date, in
each case except as contemplated or permitted by this
Agreement, and the Company shall have furnished to Parent a
certificate, dated the Effective Time, signed by the
Chairman of the Board, the President or a Vice President of
the Company, certifying to the effect that to the best of
the signing officer's knowledge and belief, the conditions
set forth in this Section 7.3(a) have been satisfied.
(b) Third Party Consents. All required
authorizations, consents or approvals of any third party
(other than a Governmental Entity), the failure to obtain
<PAGE> 52
which would have a Material Adverse Effect on Parent (on a
consolidated basis, assuming the Merger had taken place),
shall have been obtained.
(c) Redemption of Rights. The Company shall have
redeemed all outstanding Company Rights at a redemption
price of $.01 per Company Right immediately prior to the
Effective Time.
(d) Accounting. Based on the advice of Arthur
Andersen LLP and such other advice as Parent may reasonably
deem relevant, Parent shall have no reasonable basis for
believing that following the Merger, the combination of the
Company and Sub may not be accounted for as a "pooling of
interests" in accordance with generally accepted accounting
principles.
(e) Fairness Opinion. Parent shall have received in
form satisfactory to Parent, an opinion of The Chase
Manhattan Bank, N.A., dated as of the date of the Proxy
Statement/Prospectus, substantially to the effect that, as
of such date, the Exchange Ratio was fair to Parent from a
financial point of view, and as of the Effective Time and
based upon circumstances then in effect such opinion shall
not have been withdrawn or modified in any material respect.
(f) Opinion of Counsel. Parent shall have received a
legal opinion from Sidley & Austin, special counsel to the
Company, dated the Effective Time, substantially to the
effect that:
(i) The incorporation, existence and good standing of
the Company are as stated in this Agreement and the
authorized shares of capital stock of the Company are as
stated in this Agreement.
(ii) The Company has full corporate power and author-
ity to execute, deliver and perform this Agreement; this
Agreement has been duly authorized, executed and delivered
by the Company; and this Agreement (assuming the valid
authorization, execution and delivery of this Agreement by
Parent and Sub and the enforceability of this Agreement
against each of them) constitutes the legal, valid and
binding agreement of the Company enforceable against the
Company in accordance with its terms, except to the extent
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other
similar laws of general applicability relating to or
affecting the enforcement of creditors' rights and by the
effect of general principles of equity (regardless of
whether enforceability is considered in a proceeding in
equity or at law).
<PAGE> 53
(iii) The execution, delivery and performance by the
Company of this Agreement will not violate the Certificate
of Incorporation or By-laws of the Company.
(iv) To the knowledge of such counsel, no consent,
approval, authorization or order of any Governmental Entity
which has not been obtained is required on behalf of the
Company or any of its Subsidiaries for the consummation of
the transactions contemplated by this Agreement.
(v) To the knowledge of such counsel, the Company is
not subject to any injunction (whether temporary, prelimi-
nary or permanent) by any court of competent jurisdiction
against consummation of the transactions contemplated by
this Agreement.
(vi)(A) At the time the Registration Statement became
effective, the information relating to and supplied by the
Company contained in the Registration Statement and the
information relating to the transactions provided for in
this Agreement (other than the financial statements,
financial data, statistical data and supporting schedules
included therein, as to which such counsel need express no
opinion) complied as to form in all material respects with
the requirements of the Securities Act and the Exchange Act.
(B) In the course of the preparation of the
Registration Statement and the Proxy Statement/Prospectus,
such counsel has considered the information set forth
therein in light of the matters required to be set forth
therein, and has participated in conferences with officers
and representatives of the Company and Parent, including
their respective counsel and independent public accountants,
during the course of which the contents of the Registration
Statement and the Proxy Statement/Prospectus and related
matters were discussed. Such counsel has not independently
checked the accuracy or completeness of, or otherwise
verified, and accordingly is not passing upon, and does not
assume responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration
Statement or the Proxy Statement/Prospectus; and such
counsel has relied as to materiality, to a large extent,
upon the judgment of officers and representatives of the
Company. However, as a result of such consideration and
participation, nothing has come to such counsel's attention
which causes such counsel to believe that the Registration
Statement (other than the financial statements, financial
data, statistical data and supporting schedules included
therein, the section captioned "Management's Discussion and
Analysis of Results of Operations and Financial Condition"
relating to the Company and the information relating to and
supplied by Parent, as to which such counsel need express no
belief), at the time it became effective, contained any
<PAGE> 54
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Proxy
Statement/Prospectus (other than the financial statements,
financial data, statistical data and supporting schedules
included therein, the section captioned "Management's
Discussion and Analysis of Results of Operations and
Financial Condition" relating to the Company and the
information relating to and supplied by Parent, as to which
such counsel need express no belief), at the time the
Registration Statement became effective, at the time of
mailing the Proxy Statement/Prospectus to the respective
stockholders of the Company and Parent or at the time of the
Stockholder Meetings, included any untrue statement of a
material fact or omitted to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(xi) The Certificate of Merger has been duly filed
with the Secretary of State of the State of Delaware and the
Merger has become effective under the DGCL.
In rendering such opinion, Sidley & Austin may rely as to
matters of fact upon the representations of officers of the
Company and its Subsidiaries contained in any certificate
delivered to such counsel and certificates of public
officials. Such opinion shall be limited to the General
Corporation Law of the State of Delaware and the laws of the
United States of America.
(g) Opinion of Other Counsel. Parent shall have
received a legal opinion from Schiff, Hardin & Waite,
regular outside counsel to the Company, dated the Effective
Time, substantially to the effect that:
(i) The incorporation, existence, good standing and
the authorized shares of capital stock of each of the
Company's Significant Subsidiaries are as stated in this
Agreement.
(ii) All of the outstanding shares of Company Common
Stock and all of the outstanding shares of capital stock of
the Company's Significant Subsidiaries (A) are duly and
validly authorized and issued, fully paid and nonassessable
and have not been issued in violation of any preemptive
right of any stockholder of the Company or any of such
Subsidiaries and (B), in the case of such shares of the
Company's Significant Subsidiaries, are owned of record and,
to the knowledge of such counsel, beneficially by the
Company or a wholly-owned Subsidiary of the Company, and
such counsel is not aware of any liens, charges or
encumbrances on any of such shares.
<PAGE> 55
(iii) To the knowledge of such counsel, there is no
existing option, warrant, right, call, subscription or other
agreement or commitment obligating the Company or any of its
Significant Subsidiaries to issue or sell, or to purchase or
redeem, any shares of capital stock of the Company or any of
its Significant Subsidiaries, other than as stated in this
Agreement.
(iv) To the knowledge of such counsel, the execution,
delivery and performance by the Company of this Agreement
will not violate, result in a breach of or constitute a
default under any material lease, mortgage, contract, agree-
ment, instrument, law, rule, regulation, judgment, order or
decree to which the Company or any of its Significant
Subsidiaries is a party or to which any of them or any of
their respective properties or assets may be bound, which
violation, breach or default should reasonably be expected
to have a Material Adverse Effect on the Company.
(v) Except as set forth in the Company Disclosure
Schedule or the Company SEC Documents, to the knowledge of
such counsel, there are no actions, suits or proceedings
pending or threatened against the Company or any of its
Subsidiaries before any Governmental Entity or arbitrator
which, individually or in the aggregate, should reasonably
be expected to have a Material Adverse Effect on the
Company.
(vi) In the course of the preparation of the Registra-
tion Statement and the Proxy Statement/Prospectus, such
counsel has considered the information set forth therein in
light of the matters required to be set forth therein, and
has participated in conferences with officers and represen-
tatives of the Company and Parent, including their respec-
tive counsel and independent public accountants, during the
course of which the contents of the Registration Statement
and the Proxy Statement/Prospectus and related matters were
discussed. Such counsel has not independently checked the
accuracy or completeness of, or otherwise verified, and
accordingly is not passing upon, and does not assume respon-
sibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the
Proxy Statement/Prospectus; and such counsel has relied as
to materiality, to a large extent, upon the judgment of
officers and representatives of the Company. However, as a
result of such consideration and participation, nothing has
come to such counsel's attention which causes such counsel
to believe that the Registration Statement (other than the
financial statements, financial data, statistical data and
supporting schedules included therein, the section captioned
"Management's Discussion and Analysis of Results of
Operations and Financial Condition" relating to the Company
<PAGE> 56
and the information relating to and supplied by Parent, as
to which such counsel need express no belief), at the time
it became effective, contained any untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Proxy
Statement/Prospectus (other than the financial statements,
financial data, statistical data and supporting schedules
included therein, the section captioned "Management's
Discussion and Analysis of Results of Operations and
Financial Condition" relating to the Company and the
information relating to and supplied by Parent, as to which
such counsel need express no belief), at the time the
Registration Statement became effective, at the time of
mailing of the Proxy Statement/Prospectus to the respective
stockholders of the Company and Parent or at the time of the
Stockholder Meetings, included any untrue statement of a
material fact or omitted to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, Schiff Hardin & Waite may rely as
to matters of fact upon the representations of officers of
the Company and its Subsidiaries contained in any
certificate delivered to such counsel and certificates of
public officials. Such opinion shall be limited to the
General Corporation Law of the State of Delaware and the
laws of the United States of America. With respect to
matters governed by the laws of Brazil, Canada and the
United Kingdom, such counsel may rely upon the opinions of
(i) Eduardo Caio da Silva Prado, (ii) Blake, Cassels &
Greydon and (iii) Lovell, White and Durrant, respectively.
(h) Other Documents. The Company shall have furnished
to Parent at the closing such other customary documents,
certificates or instruments as Parent may reasonably request
evidencing compliance by the Company with the terms of this
Agreement.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
Section 8.1 Termination. This Agreement may be
terminated at any time prior to the Effective Time, whether
before or after any approval of this Agreement by the
stockholders of the Company or any approval of the Amendment and
the issuance of Parent Common Stock pursuant to this Agreement by
the stockholders of Parent:
(a) by mutual written consent of Parent and the
Company;
<PAGE> 57
(b) by Parent if (i) the Company shall have failed to
comply in any material respect with any of its covenants or
agreements contained in this Agreement required to be
complied with by the Company prior to the date of such
termination and such failure shall not have been cured
within five business days following receipt by the Company
from Parent of written notice of such failure and demand for
cure, (ii) the stockholders of the Company shall have failed
to approve this Agreement at the Company's Stockholder
Meeting, or (iii) the stockholders of Parent shall have
failed to approve the Amendment and the issuance of Parent
Common Stock pursuant to this Agreement at Parent's
Stockholder Meeting.
(c) by the Company if (i) Parent or Sub shall have
failed to comply in any material respect with any of its
covenants or agreements contained in this Agreement required
to be complied with by Parent or Sub prior to the date of
such termination, and such failure to comply shall not have
been cured within five business days following receipt by
Parent from the Company of written notice of such failure
and demand for cure, (ii) the stockholders of the Company
shall have failed to approve this Agreement at the Company's
Stockholder Meeting, or (iii) the stockholders of Parent
shall have failed to approve the Amendment and the issuance
of Parent Common Stock pursuant to this Agreement at the
Parent's Stockholder Meeting;
(d) by either Parent or the Company if (i) the Merger
has not been effected on or prior to the close of business
on September 30, 1995; provided, however, that the right to
terminate this Agreement pursuant to this clause shall not
be available to any party whose failure to fulfill any
obligation of this Agreement has been the cause of, or re-
sulted in, the failure of the Merger to have been effected
on or prior to such date, or (ii) any court of competent
jurisdiction shall have issued an order, decree or ruling or
taken any other action permanently enjoining, restraining or
otherwise prohibiting the transactions contemplated by this
Agreement and such order, decree, ruling or other action
shall have become final and nonappealable;
(e) by either Parent or the Company if there has been
(i) a material breach by the other of any of its
representations or warranties contained in this Agreement
that is not qualified as to materiality or (ii) any breach
by the other of any of its representations or warranties
contained in this Agreement that is qualified as to
materiality, and in each case such breach shall not have
been cured within five business days following receipt by
the breaching party from the other party of written notice
of such breach and demand for cure;
<PAGE> 58
(f) by Parent, (i) if the Board of Directors of the
Company shall not have recommended, or shall have resolved
not to recommend, or shall have materially modified or
withdrawn its recommendation of the Merger or (ii) if the
Board of Directors of the Company shall have recommended, or
shall have resolved to recommend, to the stockholders of the
Company any takeover proposal or offer of any other person;
(g) by the Company if there is a takeover proposal or
offer relating to (i) a tender or exchange offer for all or
substantially all of the outstanding shares of Company
Common Stock, (ii) a merger, consolidation or other business
combination involving the Company, or (iii) an acquisition
of all or substantially all of the outstanding shares of
Company Common Stock or all or substantially all of the
assets of the Company, in each case for a consideration that
provides to the stockholders of the Company a value per
share of Company Common Stock which, in the good faith
judgment of the Board of Directors of the Company, provides
a higher value per share than the consideration per share
pursuant to this Agreement;
(h) by the Company, if the average of the daily clos-
ing prices of a share of Parent Common Stock reported as
"New York Stock Exchange Composite Transactions" by The Wall
Street Journal (Midwest Edition) during the 20 consecutive
trading day period ending at the end of the third trading
day prior to the Stockholder Meetings (the "Average Parent
Common Stock Price"), is less than $11.00; or
(i) by Parent, if the Average Parent Common Stock
Price is more than $16.00.
Section 8.2 Effect of Termination. In the event of
termination of this Agreement by either Parent or the Company, as
provided in Section 8.1, this Agreement shall forthwith become
void and there shall be no liability hereunder on the part of the
Company, Parent or Sub or their respective officers or directors
(except as set forth in the last two sentences of Section 6.3(a)
the last two sentences of Section 6.3(b) and Section 6.6, which
shall survive such termination); provided, however, that nothing
contained in this Section 8.2 shall relieve any party hereto from
any liability for any breach of this Agreement.
Section 8.3 Amendment. This Agreement may be amended
by the parties hereto, by or pursuant to action taken by their
respective Boards of Directors, at any time before or after
approval of this Agreement by the stockholders of the Company or
the approval of the Amendment and the issuance of shares of
Parent Common Stock pursuant to this Agreement by the
stockholders of Parent, but, after any such approval by the
stockholders of the Company or the stockholders of Parent, no
<PAGE> 59
amendment shall be made which changes the Exchange Ratio as
provided in Section 1.5(c) or which in any way materially
adversely affects the rights of the stockholders of the Company
or the stockholders of Parent, as the case may be, without the
further approval of such stockholders. This Agreement may not be
amended except by an instrument in writing signed on behalf of
each of the parties hereto.
Section 8.4 Waiver. At any time prior to the
Effective Time, the parties hereto may (i) extend the time for
the performance of any of the obligations or other acts of the
other parties hereto, (ii) waive any inaccuracies in the
representations and warranties contained herein or in any
document delivered pursuant hereto and (iii) waive compliance
with any of the agreements or conditions contained herein which
may legally be waived. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set
forth in an instrument in writing signed on behalf of such party.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1 Non-Survival of Representations and
Warranties. None of the representations and warranties in this
Agreement or in any instrument delivered pursuant to this
Agreement shall survive the Effective Time.
Section 9.2 Notices. All notices and other
communications required or permitted hereunder shall be in
writing and shall be deemed to have been given or delivered when
delivered personally, when telecopied (with a confirmatory copy
sent by private overnight courier) or one day after being sent by
private overnight courier to the parties at the following
addresses (or at such other address for a party as shall be
specified by like notice):
(a) if to Parent or Sub, to
Kuhlman Corporation
1 Skidaway Village Walk
Suite 201
Savannah, GA 31411
Attention: Chairman and Chief
Executive Officer
(Telecopy No. (912) 598-0737)
with copies to:
Stephen A. Landsman
<PAGE> 60
Rudnick & Wolfe
203 North La Salle Street
Chicago, IL 60601
(Telecopy No. (312) 984-2299)
(b) if to the Company, to
Schwitzer, Inc.
Highway 191
Brevard Road
P. O. Box 15075
Asheville, NC 28813
Attention: Chairman, President and
Chief Executive Officer
(Telecopy No. (704) 684-4017)
with copies to:
Thomas A. Cole
Sidley & Austin
One First National Plaza
Chicago, IL 60603
(Telecopy No. (312) 853-7036)
and
Robert J. Minkus
Schiff, Hardin & Waite
7200 Sears Tower
Chicago, IL 60606
(Telecopy No. (312) 258-5600)
Section 9.3 Interpretation. When a reference is made
in this Agreement to a Section, such reference shall be to a
Section of this Agreement unless otherwise indicated. The table
of contents and headings contained in this Agreement are for
reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words
"include," "includes" or "including" are used in this Agreement,
they shall be deemed to be followed by the words "without
limitation."
Section 9.4 Counterparts. This Agreement may be
executed in counterparts, all of which shall be considered one
and the same agreement, and shall become effective when one or
more counterparts have been signed by each of the parties and
delivered to the other parties.
Section 9.5 Entire Agreement; No Third-Party
Beneficiaries. This Agreement, including the documents and
instruments referred to herein, and the letter agreement dated
January 9, 1995 between Parent and the Company (a) constitutes
<PAGE> 61
the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with
respect to the subject matter hereof and (b) except for
provisions of Sections 6.9, 6.11, 6.12 and 6.13, is not intended
to confer upon any person other than the parties any rights or
remedies hereunder.
Section 9.6 Governing Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the
State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
Section 9.7 Assignment. Neither this Agreement nor
any of the rights, interests or obligations hereunder shall be
assigned by any of the parties without the prior written consent
of the other parties. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the parties and their respective successors and
assigns.
Section 9.8 Severability. If any term or other
provision of this Agreement is invalid, illegal or incapable of
being enforced because of any rule of law or public policy, all
other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated
hereby are not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties
shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible
in a mutually acceptable manner in order that such transactions
shall be consummated as originally contemplated to the fullest
extent possible.
Section 9.9 Enforcement of this Agreement. The
parties agree that irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed
in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that each party shall be
entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States or any state
having jurisdiction, this being in addition to any other remedy
to which such party is entitled at law or in equity.
IN WITNESS WHEREOF, Parent, Sub and the Company have
caused this Agreement to be signed by their respective officers
thereunto duly authorized, all as of the date first written
above.
KUHLMAN CORPORATION
<PAGE> 62
By /s/ Robert S. Jepson, Jr.
---------------------------
Name: Robert S. Jepson, Jr.
Title: Chairman and Chief
Executive Officer
Attest:
/s/ Richard A. Walker
- - - - ------------------------
Name: Richard A. Walker
Title: Secretary
SPINNER ACQUISITION CORP.
By /s/ Robert S. Jepson, Jr.
----------------------------
Name: Robert S. Jepson, Jr.
Title: Chairman and Chief
Executive Officer
Attest:
/s/ Richard A. Walker
- - - - --------------------------
Name: Richard A. Walker
Title: Secretary
SCHWITZER, INC.
By /s/ Gary G. Dillon
__________________________
Name: Gary G. Dillon
Title: Chairman, President
and Chief Executive
Officer
Attest:
/s/ Richard H. Prange
- - - - ----------------------------
Name: Richard H. Prange
Title: Secretary
