SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
Annual Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1996
Commission file number
0-4538
CYBEX INTERNATIONAL, INC.
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(Exact name of registrant as specified in its charter)
New York 11-1731581
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2100 Smithtown Avenue, Ronkonkoma, New York 11779
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(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code (516) 585-9000
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Securities registered pursuant to Section 12(b) of the Act:
Name of each exchange on
Title of Each Class which registered
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Common Stock, $.10 Par Value American Stock Exchange
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Securities registered pursuant to Section 12(g) of the Act:
NONE
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(Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [_]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
The aggregate market value of the voting stock held by non-affiliates of the
registrant as of March 17, 1997
Common Stock, $.10 Par Value -- $35,334,652
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The number of shares outstanding of each of the registrant's classes of common
stock, as of March 17, 1997
Common Stock, $.10 Par Value -- 4,378,379 shares
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DOCUMENTS INCORPORATED BY REFERENCE:
The information required by Part III (Items 10, 11, 12 and 13) is incorporated
by reference from the Registrant's definitive proxy statement, which involves
the election of directors, to be filed with the Commission pursuant to
Regulation 14A, or if such proxy statement is not filed with the Commission on
or before 120 days after the end of the fiscal year covered by this Report, such
information will be included in an amendment to this Report filed no later than
the end of such 120-day period.
<PAGE>
PART I
ITEM 1. BUSINESS
GENERAL
CYBEX International, Inc., formerly Lumex, Inc. (the "Company"), designs,
develops, manufactures and sells/distributes strength training and
cardiovascular exercise equipment used in fitness conditioning, sports medicine
and rehabilitation. These products are marketed under a number of trademarks
leading with the name CYBEX(R). The Company operates in one industry segment,
the exercise equipment industry, which includes institutional fitness
facilities, sports teams, research/educational centers, hospitals, private
practice physical therapy clinics and rehabilitation centers.
On April 3, 1996, the Company sold substantially all of the assets of its Lumex
Division business, as more fully described below under the caption
"Restructuring Plan".
On December 27, 1996, the Company entered into an Agreement and Plan of Merger
(the "Merger Agreement") whereby a wholly-owned subsidiary of the Company would
be merged with and into Trotter Inc. ("Trotter"), a manufacturer of premium
quality cardiovascular and strength equipment for the home and commercial
fitness markets. The Merger Agreement is more fully described under the caption
"Recent Developments".
The Company has a wholly-owned finance subsidiary, CYBEX Financial Corp.
("CFC"), which provides capital equipment financing for CYBEX products primarily
to its domestic customer base. CFC is operated as a separate business unit with
separate profit and loss responsibilities.
Founded in 1947, the Company is a New York based corporation. Its executive
offices are currently located at 2100 Smithtown Avenue, Ronkonkoma, New York
11779; the telephone number is (516) 585-9000.
RESTRUCTURING PLAN
In December 1995, the Board of Directors of the Company announced a strategic
plan to restructure the Company's operations which included the decision to sell
the Lumex Division business. The Lumex Division had been engaged in the
healthcare industry for 49 years designing, manufacturing and marketing a wide
range of specialty patient seating, bath safety products, mobility products and
therapeutic support systems for use by patients at home and in health care
facilities such as hospitals and nursing homes.
On April 3, 1996, the Company completed the sale of substantially all the assets
of its Lumex Division to Fuqua Enterprises, Inc. ("Fuqua") for $40,750,000 in
cash. Accordingly, the Company has reflected the results of operations of the
Lumex Division as Discontinued Operations for financial statement purposes for
all years presented, as further described in Note B to the accompanying
consolidated financial statements.
The asset sale agreement with Fuqua contains representations, warranties,
covenants and indemnification provisions of the Company customary for
transactions of this type. The representations, warranties and covenants of all
parties to the agreement generally survive for one year after the date of
closing. The agreement also provides for a post-closing adjustment to the sales
price based on the change in the net assets of the Lumex Division from December
31, 1995, through the closing date. The Company has received notice from Fuqua
that Fuqua believes the stated amount of the net assets of the Lumex Division as
of the closing date are overstated by $9.3 million. The
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Company has determined to proceed to arbitration to resolve this dispute. An
initial submission to the arbitrator was made by Fuqua in March 1997, and the
Company's initial submission is due on or about April 25, 1997. Fuqua has also
notified the Company of claims for breaches of certain of the Company's
representations and warranties in the asset sale agreement involving
substantially the same matters submitted to the arbitrator. The Company recorded
a $4.0 million charge to discontinued operations in 1996 ($3.6 million in the
fourth quarter) representing a change in its estimated loss on the sale of the
Lumex Division including accruals for professional fees and other expenses.
In connection with the December 1995 restructuring announcement, the Company
also initiated a plan to restructure its remaining CYBEX operations to improve
manufacturing processes, increase productivity and competitiveness and sharply
reduce operating expenses. As part of its efforts to reduce operating costs the
Company consolidated its separate rehabilitation and fitness sales forces into
one combined group, phased down production of unprofitable product lines and
eliminated approximately 75 sales, administrative and engineering positions. The
Company recorded a 1995 fourth quarter charge to earnings of approximately $8.2
million before taxes, which charges included, among other items, severance
payments related to organizational restructuring of the CYBEX business and the
writedown of inventories specific to its older rehabilitation products (see Note
C to the consolidated financial statements).
PRODUCTS
The Company develops, manufactures, distributes and services fitness and
rehabilitation equipment. These products can generally be grouped into three
major categories: strength systems; cardiovascular exercise products; and
testing and rehabilitation products.
The contribution to net sales of the Company's strength systems, cardiovascular
and testing and rehabilitation product lines over the past three years is as
follows (dollars in millions):
<TABLE>
<CAPTION>
1994 1995 1996
-------------------------- -------------------------- --------------------------
Net Net Net
Sales Percent Sales Percent Sales Percent
----------- ----------- ------------ ------------ ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Strength Systems $39.8 57% $44.7 59% $51.5 64%
Cardiovascular Products 14.9 21 16.5 22 16.4 20
Testing and Rehab Products 15.7 22 14.2 19 12.8 16
----------- ----------- ------------ ------------ ----------- -----------
$70.4 100% $75.4 100% $80.7 100%
=========== =========== ============ ============ =========== ===========
</TABLE>
Strength Systems - The Company manufactures variable resistance weight training
machines marketed under the trademark "CYBEX Strength Systems" (previously as
"Eagle Fitness Systems by CYBEX"). The Company entered the strength training
market in 1983 with its acquisition of Eagle Performance Systems, Inc., and has
expanded the number of variable resistance machines since then from 12 to 29.
Each machine exercises a major muscle group in relative isolation, and features
adjustable seats and pads, utilizes aircraft cable to provide a smooth and quiet
low maintenance operation, weight selection adjustments that are accessible from
the exercise position and design configurations that maximize the use of floor
space.
In 1989, the Company introduced a free-weight product line of 17 benches and
stations. Since then, the free-weight product line has been expanded to 43. The
free-weight line is complemented by a line of barbells and plates.
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In 1990, CYBEX Strength Systems were expanded to include the CYBEX "Modular
Systems". This product line, while inheriting the advanced design and high
performance features of the CYBEX variable resistance and free weight strength
systems, introduced a revolutionary concept to the multi-gym field. Each Modular
System may be configured to accommodate up to eight stations, including four
selectorized weight and four body weight stations, from 25 available work
stations all utilizing a fraction of the space that individual weight stations
would require. The CYBEX "Tandem System" integrates two Modular Systems in a
back-to-back format to create a circuit or expand a strength training area in a
space-efficient manner.
The CYBEX Plate Loaded Series was introduced in 1994. Designed to combine the
controlled resistance profile, convenience and safety of a variable resistance
machine, it preserves the natural feel of free weights for people accustomed to
working out with free weights while providing for low maintenance and a smaller
space commitment for gym owners. This product line now includes 20 different
machines.
In 1995, the Company introduced its VR2 second generation variable resistance
weight training machines which included the unique patented Dual Axis
Technology. Using this technology the exercise movement is defined by the user,
rather than by the machine. Resistance is applied to the targeted muscle groups
from two directions simultaneously, providing an increased exercise intensity,
while retaining a biomechanically correct arc of movement. The CYBEX VR2
equipment offers a more attractive appearance, greater ease of use and
additional safety features, such as a weight stack guard and locking aircraft
pin. CYBEX VR2 provides for a natural complement to the original CYBEX VR
Classic line. During 1996, the number of VR2 machines was expanded from 12 to
19.
In April, 1997, the Company plans to introduce a new 15 piece line of variable
resistance weight training machines with shipments beginning in May. The New VR
(also referred to internally as Metric) will be the natural successor to most of
the units in CYBEX VR Classic line. The New VR is value engineered based on the
experience gained most recently in the development of VR2, providing our
customers with a high-quality competitively-priced line with the CYBEX signature
feel and biomechanical correctness.
Cardiovascular Products - In 1992, the Company introduced THE BIKE, a cycle
ergometer. THE BIKE was designed by integrating the most popular features that
were identified by customer focus groups. These features include a
biomechanically contoured design, numerous pre-programmed operating modes and
profiles, as well as a durable structural steel frame and multi-position handle
bars. A year later the Company expanded its offering of cardiovascular products
to include THE SEMI. THE SEMI is a semi-recumbent cycle ergometer that
incorporates the same features as THE BIKE and is designed to complement THE
BIKE in both function and appearance. In April 1997, the Company will introduce
both standard and "elite" models of a new low-cost Bike with shipments scheduled
to begin in June. This new Bike will be structured to provide competitive price
points and favorable margins. The standard model will incorporate specially
designed features which emphasize the three major points of contact - the hands,
feet and seat. The elite model will include heart rate, increased programming
and the capability for RS232 ports and cardio-theater linking.
In 1995, the Company continued expanding its line of cardiovascular products to
include THE MILL, a treadmill featuring the CYBEX Controlled Impact System. The
Controlled Impact System allows the user to select from nine different settings,
the firmness of the deck surface in response to their stride, weight and level
of fitness. Other features include a computerized control panel, manual or
pre-set workout profiles, inclines up to 15% and speeds from 1.0 to 12.0 mph.
THE MILL is designed to provide a natural complement to the CYBEX family of
cardiovascular products.
Fastex - In 1994, the Company acquired the exclusive worldwide rights to
distribute FASTEX, a functional activity system for testing and exercise for use
in the rehabilitation and commercial fitness
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markets. The FASTEX patented computer-guided, force measuring floor permits
clinicians to objectively identify and quantify a patient's functional
weaknesses or limitation. FASTEX can then be used as an exercise and training
system to strengthen and improve the deficit while documenting the patient's
progress through a series of computer prompted exercises created by the
clinician to improve strength, stability, reaction time and patient confidence.
Testing and Rehabilitation Products - In 1995, the Company introduced NORM, its
latest generation extremity testing and rehabilitation system. This testing and
rehabilitation product utilizes isokinetic resistance to provide accurate and
reproducible measurement of dynamic performance and functional capability.
Isokinetic resistance is an automatically accommodating resistance which varies
in opposition to the amount of force applied against it. NORM, which stands for
Normative Outcomes for Rehabilitation Management, provides clinicians with
instant access to the world's largest on-line isokinetic normative database
which provides immediate objective documentation to assess patient needs. As
with earlier generations of CYBEX testing and rehabilitation products, NORM
provides clinicians with isokinetic concentric resistance, eccentric loading and
continuous passive motion (CPM). These features, along with its twenty three
standard set up patterns, compact design and windows-based software, enable
clinicians to provide a comprehensive rehabilitation program at lower cost while
opening up new markets through pre-placement screenings, return to work
evaluations and worker compensation assessments.
As part of its strategic planning process, the Company is evaluating its
isokinetic rehabilitation product line. Potential alternatives include
relocating and continuing the operations, downsizing, selling or merging this
product line. The Company's isokinetic products, sold principally to private
practice physical therapists, sports medicine facilities and hospitals, have
come under severe pressure in recent years primarily due to changes in the U.S.
healthcare reimbursement system.
PRODUCT DEVELOPMENT
The Company employed 26 persons as part of its New Product Development Group at
December 31, 1996, to improve existing products and develop new designs. This
group has expertise in mechanical and electrical design, isokinetic technology,
computer applications, software design and development, and application and
integration of sophisticated technology to functional biomechanics.
The Company also uses independent health care professionals and works closely
with university researchers to review the Company's designs and test new
products.
The cost of the Company's product development activities, including salaries and
employee benefits, materials used and allocated facility expenses, amounted to
$4,065,000 in 1994, $5,058,000 in 1995 and $3,990,000 in 1996. Product
development costs are expensed as incurred. Product development activities will
continue to be a significant factor in the Company's long-term growth.
5
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MARKETING, SALES AND SERVICES
CYBEX institutional fitness and rehabilitation products are marketed in the
United States through 19 sales representatives and five independent sales agents
supported by two directors of sales and two sales managers. Sales are made
directly to users such as professional sports teams, university physical
education and physiology departments, gym owners, health clubs, orthopedic
surgeons, hospital physical therapy departments, private practice physical
therapists, sports medicine clinics, medical research laboratories and
individuals.
International markets are served by an in-house staff of 11 people who
coordinate the efforts of 60 worldwide distributors. To coordinate, expand and
improve its sales and servicing efforts in Europe, including Russia, Africa and
the Middle East, the Company entered into a joint venture agreement to form a
new company, CYBEX Forza International, Ltd. The joint venture is 50% owned by
the Company and 50% owned by The Forza Group Ltd. ("Forza"), the Company's
distributor in the United Kingdom. Under the terms of the agreement, the Company
sells its products to the joint venture on a cost-plus basis while Forza will
manage the sales, marketing and administrative efforts of the joint venture. The
new venture will also pursue selective European based manufacturing
opportunities. In addition to the Company's products, the joint venture will
distribute other notable fitness products including, but not limited to, Cross
Conditioning, The Step Company, Quinton, Tectrix and Reebok fitness products
(U.K.). Both Forza and the Company will share equally in the net profits of the
joint venture. Upon consummation of the merger, the existing joint venture
arrangement will be terminated and be replaced by a new agreement with Forza
with different transfer pricing, terms and geography.
Early in 1993 the Company formed a subsidiary, CYBEX Fitness Gerate Vertrieb
GmbH, to exclusively handle the German fitness market, and also opened an office
in Japan to address the growing needs of the Asia-Pacific markets.
CYBEX contracts with independent licensed physical therapists who provide
on-site training to customers on equipment use and clinical applications. They
also assist with marketing efforts and provide design and operational feedback
to management as to the actual field performance of new products and
accessories.
Through a third party service provider, the Company offers customer
installations, emergency service, preventative maintenance and extended warranty
contracts throughout the United States.
CYBEX products have frequently been used by university and medical research
facilities for testing and measurement of protocols. Published results of
accredited research, now totaling over 1,000 independent articles, are made
available to customers attesting to the accuracy, effectiveness, validity and
reproducibility of the results of CYBEX products.
The Company's product lines are advertised in trade and professional journals
and are supported by extensive literature, public service booklets and
audio-visual presentations, which are developed and prepared by the Company's
marketing and support staff. CYBEX products are also shown at numerous trade
shows, exhibits and seminars.
The Company offers lease financing for its products to its customers through
CFC, its wholly-owned finance subsidiary. The Company periodically enters into
agreements to sell lease receivables to financial institutions to provide
continuous funding for its leasing programs.
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Export sales for the three years ended December 31, 1994, 1995 and 1996, were
$16,880,000, $21,585,000, and $26,017,000, respectively. No single geographic
area outside of the United States was material relative to consolidated sales,
operating profits or identifiable assets. Export sales of the Company are
subject to normal risks, such as protective tariffs and export/import controls.
However, since the majority of these sales are to countries with stable
political environments and payments are made in U.S. dollars, the Company
believes such political and foreign exchange risks are minimal.
MANUFACTURING AND SOURCES OF SUPPLY
The Company's manufacturing techniques make use of metal fabrication, electronic
processes, hardware and software integration. Raw materials and purchased
components are comprised primarily of aluminum and steel tubing, hydraulic and
electronic components, precision parts, milled products and upholstery. These
materials are machined, welded, finished, upholstered and assembled to create
finished products. Circuit boards for computerized controls are also assembled
in house.
The Company purchases its raw materials from numerous suppliers and has not had
any difficulties in obtaining any components or raw materials. Management
believes alternative sources of supply are readily available for almost all
necessary raw materials. Therefore, the Company has not historically entered
into any long-term contracts with suppliers. While the Company does enter into
volume-based contract arrangements for the supply of certain hardware and
software used in its principal products, management believes alternative sources
could be found for these materials, if necessary.
Generally, the Company does not consider its backlog to be a significant factor
in its operations.
PATENTS AND LICENSES
The Company continuously focuses its efforts towards improving existing products
and developing new designs and technology. As these improvements and designs are
developed, the Company regularly files for exclusive patent applications both
domestically and internationally. When necessary, the Company will protect its
patents and patent rights through legal recourse. Nevertheless, the Company does
not believe that patent protection or the expiration of a patent will have a
significant impact on its operations. The Company believes that its position in
the exercise equipment industry depends on its expertise in designing,
engineering, production and marketing skills achieved through 26 years of
experience.
COMPETITION
The Company's Strength Systems product line has extensive competition from other
companies selling institutional weight training and exercise equipment. However,
the Company continues to be a leading manufacturer of strength systems and has
the resources to continue increasing market share through its emphasis on
product development and marketing.
CYBEX cardiovascular systems have extensive competition from other companies who
have much larger market share positions than CYBEX in this product category and
who sell into both commercial fitness and rehabilitation markets.
The Company believes its leadership positions and future growth is largely
dependent upon new product innovation, product quality, diversity of features,
customer service and pricing. No single customer accounted for more than 10% of
net sales in 1994, 1995 or 1996.
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GOVERNMENTAL REGULATION
The "Good Manufacturing Practices for Medical Devices" of the Food and Drug
Administration (the "FDA") sets forth standards for the Company's manufacturing
processes, which require the maintenance of certain records and provide for
unscheduled inspections of the Company's facilities. In addition, the Company
has instituted systems and procedures relative to the Medical Device Reporting
(MDR) rule implemented by the FDA in December 1984. This rule requires a device
manufacturer to report to the FDA when it becomes aware that one of its devices
may have caused or contributed to a death or serious injury. State, local and
foreign governments have also adopted regulations relating to the manufacture
and marketing of medical health care products. The Company believes that it is
presently in material compliance with all applicable regulations.
The Medical Device Amendments of 1976 to the Federal Food, Drug and Cosmetic Act
and regulations issued or proposed thereunder, provide for regulation by the FDA
of the manufacture of medical devices including some of the Company's products.
These regulations include requirements that owners and operators of
establishments engaged in the manufacture of medical devices must register with
the FDA and furnish lists, updated periodically, of devices manufactured by
them. There are also certain requirements of state, local and foreign
governments which must be complied with in the manufacture and marketing of the
Company's products. To date, the Company has not experienced any significant
difficulty in complying with the requirements imposed upon it by the FDA or
other government agencies.
The Company's operations are subject to federal, state and local laws and
regulations relating to the environment. The Company regularly monitors and
reviews its operations and practices for compliance with these laws and
regulations, and the Company is in material compliance with such environmental
laws and regulations. Despite these compliance efforts, some risk of liability
is inherent in the operation of the business of the Company as it is with other
companies engaged in similar businesses. There can be no assurance that the
Company will not incur significant costs in the future for environmental
compliance.
ASSOCIATES
The Company employed 573 associates as of December 31, 1996, of whom 437 are
engaged in various manufacturing, quality control, engineering, research and
development, shipping and warehousing operations. There are 136 associates
engaged in administration, marketing and sales. Approximately 47 of the
associates who are directly engaged in manufacturing and other production at the
Company's Ronkonkoma facility are covered by a collective bargaining agreement
which expires in 1999.
RECENT DEVELOPMENTS
Merger Agreement - On December 27, 1996, the Company entered into an Agreement
and Plan of Merger (the "Merger Agreement") whereby a wholly-owned subsidiary of
the Company would be merged with and into Trotter Inc. ("Trotter"), a
manufacturer of premium quality cardiovascular and strength equipment for the
home and commercial fitness markets. Pursuant to the terms of the Merger
Agreement all of the shares of the common stock, $.01 par value ("Trotter Common
Stock"), of Trotter issued and outstanding at the effective time shall be
converted into the right to receive, and shall be exchanged for, the number of
fully-paid and non-assessable CYBEX Common Shares (rounded upward to the nearest
whole share) which, upon issuance together with the holders of options to
purchase Trotter Common Stock, shall equal 50.001% of all CYBEX Common Shares
issued and outstanding on a fully diluted basis, calculated using the treasury
stock method for outstanding stock options and assuming a price of $9.75 per
share for the CYBEX Common Stock, immediately following
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the effective time. The Merger is subject to the satisfaction of certain
conditions including the approval by the Company's shareholders.
Sale of Ronkonkoma, New York Facility - The Company has signed an agreement to
sell its manufacturing, warehouse and office facilities located in Ronkonkoma,
New York for $4.5 million. The facility is subject to an industrial revenue bond
with an outstanding principal balance of $615,000. The sale of this facility is
expected to be finalized in the second quarter of 1997 and result in a gain for
financial statement purposes. The Company plans on moving its Ronkonkoma
operations, including manufacturing, to a smaller leased facility in the same
geographic area.
Isokinetics Rehabilitation Product Line - As part of its strategic planning
process, the Company is evaluating its isokinetic rehabilitation product line.
Potential alternatives including relocating and continuing operations,
downsizing, selling or merging this product line. The Company's isokinetic
products, sold principally to private practice physical therapists, sports
medicine facilities and hospitals, have come under severe pressure in recent
years primarily due to changes in the U.S. healthcare reimbursement system.
European Joint Venture - In 1996, the Company entered into a joint venture
agreement to form a new company, CYBEX Forza International, Ltd., to coordinate,
expand and improve its sales and servicing efforts in Europe, as well as Russia,
Africa and the Middle East. The joint venture is equally owned by the Company
and The Forza Group Ltd. ("Forza"), the Company's distributor in the United
Kingdom. Under the terms of the agreement, the Company sells its products to the
joint venture on a cost-plus basis while Forza will manage the sales, marketing
and administrative efforts of the joint venture. The new venture will also
pursue selective European based manufacturing opportunities. In addition to the
Company's products, the joint venture will distribute other notable fitness
products, including but not limited to, Cross Conditioning, The Step Company,
Quinton, Tectrix and Reebok fitness products (U.K.). Both Forza and the Company
will share equally in the net profits of the joint venture. Upon consummation of
the merger, the existing joint venture arrangement will be terminated and be
replaced by a new agreement with Forza with different transfer pricing, terms
and geography.
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ITEM 2. PROPERTIES
The following table describes the Company's major facilities:
<TABLE>
<CAPTION>
Approximate
Area
Location (sq. ft) Use
- --------------------------------------------------- ------------------ ------------------------------------------------
<S> <C> <C>
Owned Facilities:
Ronkonkoma, New York 110,000 Executive offices, manufacturing and warehouse
facility
Owatonna, Minnesota 210,000 Offices, manufacturing and warehouse facility
Leased Facilities:
Woodinville, Washington 30,270 Offices, manufacturing and warehouse facility
Colorado Springs, Colorado 27,000 Executive, sales and admin. offices
Colorado Springs, Colorado 3,700 Research and development
Limburgerhof, Germany 6,100 Sales and administration
</TABLE>
The Company has agreed to sell its Ronkonkoma, New York facility. See "Recent
Developments" for additional information.
The Company is also closing its Woodinville, Washington facility in the first
quarter of 1997, transferring its treadmill manufacturing operations to another
facility. For additional information see Note C to the Company's consolidated
financial statements.
All the facilities are well maintained and kept in good repair.
Additional information concerning the financing of the Company's owned
facilities is described in Note E to the Company's consolidated financial
statements.
ITEM 3. LEGAL PROCEEDINGS
The Company is not presently involved in any legal proceedings which, in its
opinion, are material to its financial condition.
As a manufacturer of fitness and rehabilitation products, the Company is
inherently subject to the hazards of product liability litigation; however, the
Company has maintained, and expects to continue to maintain, insurance coverage
which the Company believes is adequate to protect against these risks.
The Company and Fuqua have disagreed with respect to certain proposed
adjustments to the purchase price in connection with the sale of the Lumex
Division and have determined to proceed to arbitration to resolve this dispute.
Fuqua has also notified the Company of claims for breaches of certain of the
Company's representations and warranties in the asset sale agreement involving
substantially the same matters submitted to the arbitrator. For additional
information see Note B to the Company's consolidated financial statements.
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ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of the Company's security holders during the
fourth quarter of 1996.
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS
The Company's common shares are traded on the American Stock Exchange (AMEX).
The Company's Amex symbol is CYB.
The following table shows the high and low market prices as reported by the
AMEX:
<TABLE>
<CAPTION>
1996 1995
---- ----
Calendar High Low High Low
- -------- ---- --- ---- ---
<S> <C> <C> <C> <C>
First Quarter 14.13 9.13 15.13 11.25
Second Quarter 12.88 10.25 13.75 10.50
Third Quarter 12.13 9.75 12.13 9.50
Fourth Quarter 11.88 9.00 11.75 8.63
</TABLE>
As of February 28, 1997 there were approximately 556 common shareholders of
record. This figure does not include stockholders with shares held under
beneficial ownership in nominee name.
The Company has not paid any dividends since August 1990. The Company's ability
to pay dividends is limited to 20% of its net income by the terms of its
financing arrangements with the Town of Islip Industrial Development Agency (see
Note E to the Company's consolidated financial statements).
On December 31, 1996, the Company issued 1,250 shares of its common stock from
treasury to John C. Spratt, for serving as Chairman of the Board of the
Directors. In issuing these shares, the Company relied on the exemption from
registration provided by Section 4(2) of the Securities Act of 1933, as amended.
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ITEM 6. SELECTED FINANCIAL DATA
The following information has been extracted from the Company's consolidated
financial statements for the five years ended December 31, 1996. This selected
financial data should be read in conjunction with the consolidated financial
statements of the Company and the related notes included in Item 8 of this
report. Statement of operations data has been restated to reflect only the
results from continuing operations (see Note B to the consolidated financial
statements).
<TABLE>
<CAPTION>
Year Ended December 31,
----------------------------------------------------------------------------------
1992 1993 1994 1995 1996
-------------- -------------- -------------- -------------- --------------
(in thousands, except per share data)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Net sales $53,849 $54,780 $70,420 $75,448 $80,711
Cost of sales 28,891 32,225 41,757 45,624 48,405
-------------- -------------- -------------- --------------- ---------------
Gross profit 24,958 22,555 28,663 29,824 32,306
Selling, general and administrative
expenses 22,325 25,960 28,440 44,143 32,718
-------------- -------------- -------------- --------------- ---------------
Operating income (loss) 2,633 (3,405) 223 (14,319) (412)
Interest expense (245) (367) (1,143) (1,723) (882)
Interest income 685 1,134 2,048 1,582 650
Loss from joint venture -- -- -- -- (159)
-------------- -------------- -------------- --------------- ---------------
Income (loss) from continuing operations
before income tax provision (benefit)
3,073 (2,638) 1,128 (14,460) (803)
Income tax provision (benefit) 854 (1,333) 135 (3,344) 32
-------------- -------------- -------------- --------------- ---------------
Income (loss) from continuing operations
$ 2,219 $ (1,305) $ 993 $(11,116) $(835)
============== ============== ============== =============== ===============
Income (loss) per share of Common
Stock from continuing operations $ .51 $ (.31) $ .23 $ (2.55) $(.19)
============== ============== ============== =============== ===============
Weighted average number of
common shares 4,325 4,201 4,315 4,351 4,392
============== ============== ============== =============== ===============
<CAPTION>
December 31
---------------------------------------------------------------------------------
1992 1993 1994 1995 1996
-------------- -------------- -------------- -------------- --------------
(in thousands)
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Working capital $30,863 $31,702 $37,158 $27,692 $24,629
Net assets of discontinued
operations -- -- -- 37,214 --
Total assets 69,037 85,766 94,168 98,918 63,487
Long-term debt (net of current
maturities) 5,131 12,076 12,771 2,715 1,986
Stockholders' equity 47,970 48,736 52,637 40,634 35,538
</TABLE>
12
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
On April 3, 1996, the Company completed the sale of substantially all the assets
of its Lumex Division for $40,750,000 in cash. Accordingly, the results of
operations of the Lumex Division have been reclassified as discontinued
operations.
The following discussion, including statistics presented, refers solely to
continuing operations unless otherwise stated.
RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, statement of
operations data from the Selected Financial Data in Item 6 of this Report,
presented both as a percentage of net sales and as a percentage change from the
prior year:
<TABLE>
<CAPTION>
Year Ended December 31, % Inc. (Dec.)
----------------------- -------------
1995 vs. 1996 vs.
--------- --------
1994 1995 1996 1994 1995
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Net sales 100.0% 100.0% 100.0% 7.1% 7.0%
Cost of sales 59.3 60.5 60.0 9.3 6.1
-------------- ------------ -------------
Gross profit 40.7 39.5 40.0 4.1 8.3
Selling, general and administrative
expenses 40.4 58.5 40.5 55.2 (25.9)
-------------- ------------ -------------
Operating income (loss) .3 (19.0) (0.5) * *
Interest expense (1.6) (2.3) (1.1) 50.7 (48.8)
Interest income 2.9 2.1 0.8 (22.8) (58.9)
Loss from joint venture -- -- (0.2)
-------------- ------------ -------------
Income (loss) from continuing operations
before income taxes 1.6% (19.2)% (1.0)% * *
============== ============ =============
</TABLE>
* Not meaningful
1996 VS. 1995:
Continuing operations in 1996 resulted in a loss of $835,000, compared to a loss
of $11,116,000 in 1995. Included in these results were $2.2 million and $10.2
million of one-time and nonrecurring charges in 1996 and 1995, respectively,
which have been reflected in selling, general and administrative expenses.
Net sales increased 7.0% in 1996, to $80,711,000, as compared to $75,448,000 in
1995. Excluding shipments of consumer fitness equipment phased out in December
1995, net sales increased 11.6%.
Shipments of the Company's institutional strength products grew 18%, fueled by
the continued strong growth of the VR2, the Company's second generation variable
resistance weight training machines; plate loaded; and free weight product
lines. Shipments of cardiovascular products grew 5%, as the growth in the
institutional treadmill line more than offset lower shipments of the Bike and
the Semi.
Sales to the domestic rehabilitation market were flat compared to the prior year
as the strong growth in shipments of both strength and cardiovascular fitness
products to this market offset the continued decline in shipments of isokinetic
rehabilitation products. The decline in isokinetic rehabilitation product
shipments resulted from the impact of less selling activity from a consolidated
sales force, national
13
<PAGE>
healthcare reimbursement issues and the continued emphasis on managed care.
International sales rose 20.5% as strong growth in shipments of both strength
and cardiovascular products more than offset a small decline in shipments of
isokinetic rehabilitation products.
Cost of sales as a percentage of sales improved to 60% in 1996, as compared to
60.5% in 1995. The improvements came primarily from a more favorable product mix
and increased production efficiencies for products introduced in the prior year,
offset by the impact of increased international shipments which have lower
margins.
Selling, general and administrative ("SG&A") expenses were $11,425,000 lower in
1996 compared to 1995. Excluding nonrecurring and one-time charges of
$10,200,000 in 1995 and $2,200,000 in 1996, SG&A expenses were $3.4 million
lower in 1996 as compared to 1995, despite higher sales levels. These expense
reductions were largely attributable to the restructuring plan initiated in the
fourth quarter of 1995 which included, among other things, the consolidation of
the separate fitness and rehabilitation sales forces, the realignment of the
customer service department, phase out of consumer fitness products and general
workforce reductions.
Included as part of the nonrecurring and infrequent charges recorded in 1996
were the following:
- - $540,000 of incremental costs incurred for the prospective merger with
Trotter Inc.
- - $900,000 of expenses related to the closing of the Company's Woodinville
manufacturing facility and phase out of the consumer fitness product line.
- - $380,000 of costs related to the relocation of the Company's head offices
to Colorado.
- - $380,000 of other expenses, including consulting fees paid related to the
completion of the first phase of the Company's overall systems upgrade
project.
Product development expenses, included in SG&A expenses, were $4.0 million in
1996, approximately $1.0 million lower than the prior year, the result of
workforce reductions after the completion in 1995 of the CYBEX Norm and VR2
product lines.
Interest expense was $841,000, or 48.8% lower in 1996 as compared to 1995
primarily due to lower average outstanding balances as the Company repaid $28
million of borrowings in April 1996 from proceeds received from the sale of the
Lumex Division.
Interest income declined $932,000, or 58.9%, in 1996 as compared to 1995 due to
lower average outstanding balances held in the Company's lease receivable
portfolio.
The Company has recorded refundable taxes of $2,718,000 resulting from net
operating losses incurred in 1995 and 1996. The Company has significant
carryforward tax losses and has not recorded any additional tax benefit for
financial statement purposes.
14
<PAGE>
1995 VS. 1994:
Continuing operations in 1995 resulted in a net loss of $11,116,000, compared to
net income in the prior year of $993,000. The loss is attributable primarily to
nonrecurring charges in 1995, which have been reflected in selling and
administrative expense.
Net sales increased 7.1% to $75,448,000 in 1995, as compared to $70,420,000 in
1994. Sales to the domestic institutional fitness market grew more than 11% in
1995 as compared to 1994, fueled by the introduction of VR2, its second
generation variable resistance weight training machines, and continued strong
growth of the CYBEX Plate Loaded Series, introduced in 1994. Sales of
cardiovascular products were lower in 1995 as severe competitive pricing
practices impacted shipments of THE BIKE and THE SEMI, more than offsetting
sales of the new Q45 institutional treadmill.
Sales to the domestic rehabilitation market were 17% lower in 1995 as the market
continued to constrict, the impact of national healthcare reimbursement issues
and the continued emphasis on managed care. During 1995, the Company introduced
NORM, its lower-priced, latest generation extremity testing and rehabilitation
system designed to provide clinicians a comprehensive rehabilitation program
with instant access to one of the world's largest on-line isokinetic normative
databases.
International sales grew 27.8% as product shipments increased significantly into
both the rehabilitation and institutional fitness market segments.
Cost of sales increased to 60.5% of sales in 1995 from 59.3% of sales in 1994 as
the benefits of increased production volume and product mix were more than
offset by start up manufacturing costs for new products, higher raw material
costs and a larger proportion of shipments being made to the international
market where product pricing is lower.
Selling, general and administrative costs rose 55.2% to $44,143,000 in 1995 as
compared to $28,440,000 in 1994, due in large part to the nonrecurring charges
recorded in the fourth quarter of 1995 of approximately $8.2 million and
additional one-time charges of approximately $2.0 million recorded earlier in
the year. Included as part of the nonrecurring charges recorded in the fourth
quarter were the following:
- - $2.3 million of costs related to the consolidation of the Company's sales
forces and elimination of approximately 75 sales, administrative and
engineering positions;
- - $3.0 million of expenses for phasing down of production and servicing of
unprofitable or older product lines;
- - $1.3 million of costs related to contractual obligations and settlements;
- - $1.6 million of other expenses related to realignment of the CYBEX
business.
One-time charges incurred earlier in 1995 included a $750,000 settlement to a
contractual dispute, approximately $700,000 in severance and paid recruitment
costs for senior executive management changes, and professional fees for
corporate services provided exceeding $550,000.
Product development expenses, included in SG&A, increased 24.4% or $993,000, to
$5,058,000 in 1995 due to planned increases in spending to accelerate the
development and introduction during 1995 of major new products including the VR2
product line, NORM and the Q45 institutional treadmill.
15
<PAGE>
Selling, general and administrative costs in 1995 also included increased costs
in the expansion of international markets, the amortization of rights and
licenses acquired in 1995, higher shipping costs and were further impacted by
favorable experience in self-insurance reserves in 1994 not repeated in 1995.
Interest expense rose to $1,723,000 in 1995 compared to $1,143,000 in 1994
principally due to increased borrowings.
Interest income was 22.8% lower in 1995 than 1994 due to lower average balances
held in the Company's lease portfolio as the Company regularly sold portions of
its portfolio to provide continued funding for its leasing activities.
The effective tax benefit rate for continuing operations in 1995 was 23.1%, the
result of a deferred tax valuation allowance of $2,698,000.
LIQUIDITY AND CAPITAL RESOURCES
At December 31, 1996, the Company's working capital was approximately $24.6
million, including cash and cash equivalents of $7.1 million; its current ratio
was 2.0 to 1; and total long-term borrowings were less than $5.8 million. The
Company's financial condition was improved by the sale of the Lumex Division,
completed on April 3, 1996, for $40.75 million in cash.
Cash used in operating activities in 1996 was $8.3 million. Excluding the impact
of the leasing activities of CFC and payments made related to $8.2 million of
nonrecurring charges recorded in the fourth quarter of 1995, the continuing
operations provided $4.5 million of cash. The Company's lease financing programs
for customers resulted in $9.7 million of new leases being written during 1996,
which have been or are expected to be refinanced through periodic sales of
bundled leases to third party financial institutions. Proceeds received from the
sales of the leases are included in financing activities discussed below. During
1996, the Company also made payments totaling more than $3.1 million related to
nonrecurring charges. Cash was generated from improved asset management,
including a $1.9 million reduction in trade receivables and a $2.1 million
reduction in inventories.
In 1995, cash used in operating activities, excluding leasing activities and
payments made for nonrecurring charges, was $8.8 million, primarily resulting
from a $5.7 million increase in trade receivables from strong fourth quarter
shipments and an increase of $2.6 million in inventories related to new products
introduced in 1995. Cash used for new leases written in 1995 was $9.2 million
and payments for nonrecurring charges totaled $500,000.
Cash provided by investing activities in 1996 was $37.8 million principally
resulting from the sale of the Lumex Division in April, 1996. Cash used in
investing activities in 1995 was $2.0 million, the result of capital
expenditures and the purchase of certain licenses and rights related to the
Fastex product.
Capital expenditures, principally funded from operations and long-term debt,
were $2,089,000, $3,638,000 and $1,061,000 in 1994, 1995 and 1996, respectively.
Cash used in financing activities was $20.3 million in 1996, reflecting the net
effect of the repayment of $30 million of short and long-term debt from the
proceeds from the sale of the Lumex Division and the proceeds received from
sales of lease receivables of $7.0 million and $2.5 million of a term loan
secured by lease receivables. In 1995, financing activities provided $24.0
million in cash principally from $15.7 million of net short and long-term
borrowings and $8.3 million from the sale of leases.
16
<PAGE>
The Company sells portions of its lease portfolio under several different
limited or full recourse programs. Leases are secured by the equipment sold as
well as personal guarantees and often require cash down payments. These
provisions, combined with the Company's ability to refurbish and re-market
returned equipment, have effectively limited the Company's exposure to losses on
lease defaults. Losses under these programs were not significant during the past
three years.
At December 31, 1996, the Company's long-term debt represented 6% of total
equity. The Company has a $5 million bank line of credit under which, subsequent
to the sale of the Lumex Division, there have been no outstanding borrowings.
Management expects the cash flow generated from its operations and the sale of
its Ronkonkoma, New York manufacturing facility, together with vendor financing
available for capital equipment purchases will be sufficient to meet its capital
expenditure requirements (including $900,000 for a new powder coating system)
and working capital needs, including the balance of payments of approximately
$1.8 million, related to nonrecurring and one-time charges. CFC, the Company's
finance subsidiary, is expected to support its operations through periodic sales
of its lease portfolios to third party financial institutions. The sale of
leases have varying recourse provisions and at December 31, 1996, the maximum
contingent liability under such provisions was $9.2 million.
The merger requires the consents of Trotter and Company lenders and will result
in the Company and Trotter not being in compliance with certain financial ratios
and certain other restrictive covenants of their long-term debt agreements and
credit facilities. In addition, the ongoing operations of CYBEX Financial Corp.
require arrangements with third party financial institutions to provide funding
to support its leasing programs.
The Company and Trotter believe they will be successful in obtaining the
necessary waivers and consents from their lending institutions and in securing
commitments from other financial institutions to continue to participate in
purchasing portions of the Company's lease receivables. If such waivers and
arrangements are not obtained, the Company and Trotter believe that other
sources of financing will be available to support the needs of the combined
operations.
17
<PAGE>
F-1
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
CYBEX INTERNATIONAL, INC.
(FORMERLY LUMEX, INC.)
<TABLE>
<CAPTION>
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS AND SCHEDULES
<S> <C>
Report of Independent Auditors..................................................................................F-2
Financial Statements:
Consolidated Balance Sheets--December 31, 1995 and 1996.......................................................F-3
Consolidated Statements of Operations--Years ended December 31,
1994, 1995 and 1996.........................................................................................F-4
Consolidated Statements of Stockholders' Equity--Years ended
December 31, 1994, 1995 and 1996............................................................................F-5
Consolidated Statements of Cash Flows---Years ended
December 31, 1994, 1995 and 1996............................................................................F-6
Notes to Consolidated Financial Statements....................................................................F-7
</TABLE>
All schedules for which provision is made in the applicable accounting
regulation of the Securities and Exchange Commission that are not required under
the related instructions or are inapplicable have been omitted.
<PAGE>
F-2
Report of Independent Auditors
Board of Directors and Stockholders
CYBEX International, Inc.
We have audited the accompanying consolidated balance sheets of CYBEX
International, Inc. as of December 31, 1995 and 1996, and the related
consolidated statements of operations, stockholders' equity, and cash flows for
each of the three years in the period ended December 31, 1996. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the consolidated financial position of CYBEX
International, Inc. at December 31, 1995 and 1996, and the consolidated results
of its operations and its cash flows for each of the three years in the period
ended December 31, 1996, in conformity with generally accepted accounting
principles.
/s/ ERNST & YOUNG LLP
Melville, New York
March 6, 1997
<PAGE>
F-3
CYBEX INTERNATIONAL, INC.
(FORMERLY LUMEX, INC.)
<TABLE>
<CAPTION>
CONSOLIDATED BALANCE SHEETS
(Dollars in thousands)
DECEMBER 31,
-------------------------------
1995 1996
---- ----
<S> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents $1,798 $7,068
Investments 2,476 --
Accounts receivable 22,482 20,364
Inventories 12,024 9,934
Lease receivables 574 2,144
Property held for sale -- 3,051
Net assets of discontinued operations 37,214 --
Refundable income taxes 2,782 2,718
Other current assets 2,684 3,729
------------- -------------
Total Current Assets 82,034 49,008
Property, Plant and Equipment
Land 586 253
Buildings and improvements 9,034 4,559
Machinery and equipment 17,481 18,695
------------- -------------
27,101 23,507
Less accumulated depreciation (13,810) (13,849)
------------- -------------
13,291 9,658
Lease receivables 1,402 2,270
Intangible assets 1,687 1,215
Other assets 504 1,336
------------- -------------
$98,918 $63,487
============= =============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities
Short-term borrowings $15,250 $ --
Current maturities of long-term debt 14,330 3,776
Accounts payable 10,874 7,136
Accrued liabilities 13,888 13,467
------------- -------------
Total Current Liabilities 54,342 24,379
Deferred income taxes 1,227 1,584
Long-term debt 2,715 1,986
Stockholders' Equity
Common Stock, par value $.10 per share, authorized 15,000,000
shares, issued 4,458,354 shares in 1995; 4,510,068 shares in 1996 446 451
Capital surplus 17,128 17,591
Retained earnings 24,101 19,252
Treasury stock, at cost (54,897 shares in 1995; 131,689 shares in 1996) (629) (1,531)
Unearned compensation expense (412) (225)
------------- -------------
Total Stockholders' Equity 40,634 35,538
------------- -------------
$98,918 $63,487
============= =============
</TABLE>
See notes to consolidated financial statements.
<PAGE>
F-4
CYBEX INTERNATIONAL, INC.,
(FORMERLY LUMEX, INC.)
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENTS OF OPERATIONS
(Dollars in thousands, except per share data)
YEAR ENDED DECEMBER 31,
------------------------------------------------
1994 1995 1996
---- ---- ----
<S> <C> <C> <C>
Net sales $70,420 $75,448 $80,711
Cost of sales 41,757 45,624 48,405
------------- ------------- --------------
Gross profit 28,663 29,824 32,306
Selling, general and administrative expenses 28,440 44,143 32,718
------------- ------------- --------------
Operating income (loss) 223 (14,319) (412)
Interest expense (1,143) (1,723) (882)
Interest income 2,048 1,582 650
Loss from joint venture -- -- (159)
------------- ------------- --------------
Income (loss) from continuing operations before income taxes 1,128 (14,460) (803)
Income taxes 135 (3,344) 32
------------- ------------- --------------
Income (loss) from continuing operations 993 (11,116) (835)
Discontinued operations:
Income (loss) from discontinued operations net of income tax
provision of $1,437 in 1994 and $792 in 1995 2,489 1,350 --
Loss on disposal, net of income tax benefit of $199 in 1995 -- (3,138) (4,014)
------------- ------------- --------------
Net income (loss) $3,482 $(12,904) $(4,849)
============= ============= ==============
Net income (loss) per share of common stock:
Continuing operations $ .23 $ (2.55) $ (.19)
Discontinued operations .58 (.41) (.91)
============= ============= ==============
Net income (loss) $ .81 $ (2.96) $ (1.10)
============= ============= ==============
</TABLE>
See notes to consolidated financial statements.
<PAGE>
F-5
<TABLE>
<CAPTION>
CYBEX INTERNATIONAL, INC. Unrealized Unearned
(formerly Lumex, Inc.) Common Stock Capital Retained Gains/Losses Treasury Compensation ESOP Loan
Shares Par Value Surplus Earnings on Investments Stock Expense Receivable
------ --------- ------- -------- -------------- ----- ------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1993 4,305 $430 $15,829 $33,522 $(879) $(165)
Net Income 3,482
Stock allocated under ESOP 310
Loan to repurchase ESOP shares distributed (60)
Loan to repurchase 6,554 shares from
Treasury 13 72 (85)
Exercise of stock options 66 7 325
Purchase of common shares (57)
Retirement of common shares (10) (1) (120) 119
Unrealized loss on investments ($225)
Tax benefit derived from stock option plan 120
------ ------ ------- ----- ----- ----- -----
Balance at December 31, 1994 4,361 436 16,167 37,004 (225) (745) ---
Net loss (12,904)
Stock allocated under ESOP 291
Loan to repurchase ESOP shares distributed (159)
Loan to repurchase shares from Treasury (32) 164 (132)
Exercise of stock options 15 2 75
Retirement of common shares (2)
Unrealized gain on investments 225
Restricted stock issued 65 6 673 $(673)
Restricted stock canceled (62) 55
Common stock issued to Directors 6 1 64 14
Common stock issued as compensation 11 1 152
Tax benefit derived from stock option plan 31
Amortization of unearned compensation 206
Other 1
------ ------ ------- ----- ----- ----- -----
Balance at December 31, 1995 4,458 446 17,128 24,101 --- (629) (412) ---
Net loss (4,849)
Stock allocated under ESOP 168
Repurchase of common shares (1,016)
Exercise of stock options 44 4 307
Restricted stock canceled 14 (110) 105
Common stock issued to Directors 8 1 94 56
Tax benefit derived from stock option plan 48
Amortization of unearned compensation 82
------ ---- ------- ------- ----- ----- ----- -----
Balance at December 31, 1996 4,510 $451 $17,591 $19,252 $ --- $(1,531) $(225) $ ---
====== ===== ======== ======== ====== ======== ====== =====
</TABLE>
See notes to consolidated financial statements.
<PAGE>
F-6
CYBEX INTERNATIONAL, INC.
(FORMERLY LUMEX, INC.)
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Dollars in thousands)
YEAR ENDED DECEMBER 31,
---------------------------------------------
1994 1995 1996
---- ---- ----
<S> <C> <C> <C>
OPERATING ACTIVITIES:
Net income (loss) $3,482 $(12,904) $(4,849)
Non cash items included in net income(loss):
Depreciation and amortization 3,224 5,231 2,940
Contribution of Common Stock to ESOP 311 291 --
Deferred income taxes 648 551 --
Provisions for losses on accounts and lease receivables 11 368 767
Discontinued operations -- 2,690 3,867
Changes in operating assets and liabilities:
Accounts receivable (8,020) (6,278) 1,897
Inventories (373) (5,373) 2,090
Refundable income taxes -- (2,782) 64
Other current assets 355 (1,080) (1,720)
Lease receivables (15,605) (14,527) (9,698)
Accounts payable 2,793 7,773 (3,738)
Accrued liabilities 371 7,503 (3,826)
------------ ------------- ------------
NET CASH USED IN OPERATING ACTIVITIES (12,803) (18,537) (12,206)
------------ ------------- ------------
INVESTING ACTIVITIES:
Proceeds from sale of discontinued operations
net of closing and other costs -- -- 36,800
Purchases of property, plant and equipment (3,614) (9,593) (1,061)
Purchases of investments (1,003) -- --
Proceeds from sales and maturities of investments 7,105 2,633 2,476
Decrease (increase) in other assets 1,881 (348) (429)
Increase in intangible assets (792) (6,083) (36)
------------ ------------- ------------
NET CASH PROVIDED BY (USED IN) INVESTING ACTIVITIES
3,577 (13,391) 37,750
------------ ------------- ------------
FINANCING ACTIVITIES:
Proceeds from short-term debt -- 15,250 --
Repayment of short-term debt -- -- (15,250)
Proceeds from sale of leases 16,803 8,344 6,954
Proceeds from long-term debt 5,000 4,500 3,517
Principal payments of long-term debt (3,305) (4,030) (14,800)
Common shares reacquired (57) -- (927)
Other 271 (84) 232
------------ ------------- ------------
NET CASH PROVIDED BY (USED IN) FINANCING ACTIVITIES 18,712 23,980 (20,274)
------------ ------------- ------------
NET INCREASE (DECREASE) IN CASH AND CASH
EQUIVALENTS 9,486 (7,948) 5,270
CASH AND CASH EQUIVALENTS -- January 1 260 9,746 1,798
------------ ------------- ------------
CASH AND CASH EQUIVALENTS -- December 31 $9,746 $1,798 $7,068
============ ============= ============
</TABLE>
See notes to consolidated financial statements.
<PAGE>
F-7
CYBEX INTERNATIONAL, INC.
(FORMERLY LUMEX, INC.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
NOTE A--SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of consolidation: The consolidated financial statements include the
accounts of CYBEX International, Inc., formerly Lumex, Inc., and its
subsidiaries (the "Company") after elimination of all significant intercompany
accounts and transactions. The Company accounts for its 50% ownership in CYBEX
Forza International Ltd. under the equity method of accounting as the Company
does not have a controlling voting interest.
Prior year financial statements have been restated to reflect the results of
operations of the Lumex Division, which was sold in April 1996, as discontinued
operations - see Note B. All amounts included in these notes to consolidated
financial statements pertain to continuing operations unless otherwise stated.
Merger Agreement - On December 27, 1996, the Company entered into an Agreement
and Plan of Merger (the "Merger Agreement") whereby a wholly-owned subsidiary of
the Company would be merged with and into Trotter Inc. ("Trotter"), a
manufacturer of premium quality cardiovascular and strength equipment for the
home and commercial fitness markets. Pursuant to the terms of the Merger
Agreement all of the shares of the common stock, $.01 par value ("Trotter Common
Stock"), of Trotter issued and outstanding at the effective time shall be
converted into the right to receive, and shall be exchanged for, the number of
fully-paid and non-assessable CYBEX Common Shares (rounded upward to the nearest
whole share) which, upon issuance together with the holders of options to
purchase Trotter Common Stock, shall equal 50.001% of all CYBEX Common Shares
issued and outstanding on a fully diluted basis, calculated using the treasury
stock method for outstanding stock options and assuming a price of $9.75 per
share for the CYBEX Common Stock, immediately following the effective time. The
Merger is subject to the satisfaction of certain conditions, including the
approval by the Company's shareholders.
Business: The Company operates in one industry, the exercise equipment industry,
where it designs, manufactures and markets a wide variety of exercise equipment
for the fitness, rehabilitation and sports medicine markets.
Cash and cash equivalents: The Company considers all highly liquid investments
with an original maturity of three months or less when purchased to be cash
equivalents.
Investments: In May 1993, the Financial Accounting Standards Board issued
Statement No. 115, Accounting for Certain Debt and Equity Securities ("SFAS
115"). The Company adopted the provisions of the new standard for investments
held as of or acquired after January 1, 1994. SFAS 115 requires the Company to
evaluate its investment policies and classify individual securities held for
investment as either held to maturity, trading or available-for-sale. Management
has determined that all of the Company's investments (consisting of various debt
securities) are available-for-sale. Available-for-sale securities are stated at
fair value, with unrealized gains and losses, net of income tax, reported as a
<PAGE>
F-8
CYBEX INTERNATIONAL, INC.
(FORMERLY LUMEX, INC.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
NOTE A--SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
separate component of stockholders' equity. In accordance with SFAS 115 prior
period financial statements have not been restated to reflect the change in
accounting principle. The Cumulative effect as of January 1, 1994, of adopting
SFAS 115, was not material to the Company's financial condition or results of
operations.
Inventories: Inventories are stated at the lower of cost or market. Inventory
costs have been determined by the last-in first-out ("LIFO") method for
approximately 33% and 23% of inventories at December 31, 1995 and 1996,
respectively. Costs for the remaining inventories have been determined using the
first-in first-out ("FIFO") method.
Impairment of Long-Lived Assets: In 1995, The Financial Accounting Standards
Board issued Statement No. 121, Accounting for Impairment of Long-Lived Assets
and for Long Lived Assets to Be Disposed Of, ("SFAS 121"), which the Company
adopted effective January 1, 1996. SFAS 121 requires that long-lived assets and
certain identifiable intangibles held and used by a company be reviewed for
possible impairment whenever events or changes in circumstances indicate that
the carrying amount of an asset may not be recoverable. SFAS 121 also requires
that long-lived assets and certain identifiable intangibles held for sale be
reported at the lower of carrying amount or fair value less cost to sell. The
effect of adoption of SFAS 121 was not material to the Company's financial
statements.
Property, plant and equipment: Property, plant and equipment, including
expenditures for renewals and betterments, are recorded at cost. Depreciation
and amortization of plant and equipment is computed using the straight-line
method over their related estimated useful lives (buildings, 40 years; building
improvements, 15 years; machinery and equipment, 3 to 10 years).
Intangibles: Intangibles consist principally of an exclusive license and patent
rights recorded at cost and amortized over their estimated useful lives by the
straight-line method for periods ranging from 3 to 30 years. Accumulated
amortization at December 31, 1995 and 1996 was $756,000 and $1,264,000,
respectively.
Fair value of financial instruments: To meet the reporting requirements of FASB
Statement 107, Disclosures about Fair Value of Financial Instruments, the
Company calculates the fair value of financial instruments and includes this
additional information in the notes to the financial statements when the fair
value is different than the carrying value of those financial instruments. When
the fair value is equal to the carrying value, no additional disclosure is made.
The Company uses quoted market prices whenever available to calculate these fair
values.
<PAGE>
F-9
CYBEX INTERNATIONAL, INC.
(FORMERLY LUMEX, INC.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
NOTE A--SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Income taxes: The Company adopted the provisions of the Financial Accounting
Standards Board Statement No. 109, Accounting for Income Taxes ("SFAS 109") as
of January 1, 1993. Under SFAS 109, the liability method is used in accounting
for income taxes. Under this method, deferred tax assets and liabilities are
determined based on differences between financial reporting and tax bases of
assets and liabilities using tax rates and laws that will be in effect when the
differences are expected to reverse.
Use of estimates: The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates.
Stock Based Compensation: The Company has four stock-based compensation plans
which are described in Note F to the consolidated financial statements. The
Company has elected to continue to follow Accounting Principles Board Opinion
No. 25, Accounting for Stock Issued to Employees ("APB 25") and related
Interpretations in accounting for its stock-based compensation plans rather than
the alternative fair value accounting provided for under Financial Accounting
Standards Board Statement No. 123, Accounting for Stock-Based Compensation
("SFAS 123"). Under APB 25, because the exercise price of the Company's employee
stock options granted equals the market price of the underlying stock on the
date of grant, no compensation expense is recognized.
Net income (loss) per common share: Net income (loss) per share of Common Stock
is computed by dividing net income (loss) by the weighted average number of
common shares and common share equivalents (dilutive stock options) outstanding
during each year (4,315,000 in 1994, 4,351,000 in 1995 and 4,392,000 in 1996).
Reclassifications: Certain reclassifications have been made to the 1994 and 1995
consolidated financial statements to conform to the current year's presentation.
NOTE B--DISCONTINUED OPERATIONS
On April 3, 1996, the Company completed the sale of substantially all the assets
of its Lumex Division to Fuqua Enterprises, Inc. ("Fuqua") for $40,750,000 in
cash. Accordingly, the Company has reclassified its consolidated financial
statements to reflect the net assets as of December 31, 1995 and operating
results for all years presented of the Lumex Division as discontinued
operations. Net sales for the Lumex Division were $60,777,000, $63,295,000 and
$13,444,000 for the years ended December 31, 1994 and 1995 and for the first
quarter of 1996, respectively. The net losses from discontinued operations for
the period between the measurement date (October 1, 1995) and December 31, 1995
of $1,247,000, and for the period from January 1, 1996 to April 3, 1996 of
approximately $984,000, have been included in the loss on disposal of $3,138,000
for the year ended December 31, 1995, as shown in the consolidated statements of
operations.
<PAGE>
F-10
CYBEX INTERNATIONAL, INC.
(FORMERLY LUMEX, INC.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE B--DISCONTINUED OPERATIONS (CONTINUED)
The net assets of discontinued operations at December 31, 1995 are summarized as
follows (in thousands):
<TABLE>
<CAPTION>
<S> <C>
Current assets $20,782
Property, plant and equipment 12,758
Lease receivables 13,593
Other assets 5,995
Current liabilities (13,224)
Accrued loss on disposal (2,690)
------------
Net assets $37,214
============
</TABLE>
The asset sale agreement with Fuqua provides for a post-closing adjustment to
the sales price based on the change in the net assets of the Lumex Division from
December 31, 1995, through the closing date. The Company has received notice
from Fuqua that Fuqua believes the stated amount of the net assets of the Lumex
Division as of the closing date are overstated by $9.3 million. The Company has
determined to proceed to arbitration to resolve this dispute. An initial
submission to the arbitrator was made by Fuqua in March 1997, and the Company's
initial submission is due on or about April 25, 1997. Fuqua has also notified
the Company of claims for breaches of certain of the Company's representations
and warranties in the asset sale agreement involving substantially the same
matters submitted to the arbitrator. The Company recorded a $4.0 million charge
to discontinued operations in 1996 ($3.6 million in the fourth quarter)
representing a change in its estimated loss on the sale of the Lumex Division
including accruals for professional fees and other expenses.
NOTE C--NONRECURRING AND CERTAIN INFREQUENT CHARGES
In 1995, the Company recorded pre-tax nonrecurring charges totaling $10.2
million which have been reflected in selling, general and administrative
expenses. Of these charges, $8.2 million were recorded in the fourth quarter of
1995, including the estimated costs associated with a restructuring plan. Under
the plan, the Company consolidated its sales forces, phased down the production
of unprofitable product lines and eliminated approximately 75 sales,
administrative and engineering positions. Included in the nonrecurring charges
are costs related to, among other things, severance payments and related
personnel costs of $2.3 million, phasing down production of unprofitable or
older product lines of $3.0 million, contractual obligations of $1.3 million and
other expenses totaling $1.6 million related to the restructuring of its CYBEX
business, of which $.9 million was paid or charged against the reserves in 1995.
At December 31, 1995, $5.1 million and $2.3 million of these reserves were
reflected in accrued liabilities and inventory reserves, respectively, in the
Company's consolidated balance sheet.
During 1996, the Company made payments and incurred charges against the reserves
for severance and related costs of $1.1 million, contractual obligations of
$491,000, discontinued product lines of $700,000 and other expenses of
$1,110,000. Adjustments were made to decrease the reserve in 1996 for severance
and contractual obligations of $370,000 and $229,000, respectively. Adjustments
were made to increase the reserve in 1996 for discontinued product lines and
other expenses of $856,000 and $60,000, respectively. The remaining balance in
the reserves for nonrecurring charges at December 31, 1996, was $4.2 million and
was comprised of $800,000 for severance, $3.1 million for
<PAGE>
F-11
CYBEX INTERNATIONAL, INC.
(FORMERLY LUMEX, INC.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE C--NONRECURRING AND CERTAIN INFREQUENT CHARGES (CONTINUED)
discontinued product lines and $300,000 for other expenses. The non-cash portion
of the balance of nonrecurring charges is approximately $3.1 million and the
cash portion is approximately $1.1 million.
One-time charges incurred earlier in 1995 included a $750,000 settlement to a
contractual dispute, approximately $700,000 in severance and paid recruitment
costs for senior executive management changes, and professional fees for
corporate services provided of $550,000.
In 1996, the Company recorded pre-tax nonrecurring and certain infrequent
charges of $2.2 million which have been reflected in selling, general and
administrative expenses. Included in these charges are costs related to, among
other things, the prospective merger with Trotter Inc. of $540,000 (including
bonuses to Directors of $325,000), closing the Woodinville manufacturing
facility and phase out of the consumer fitness product line of $900,000,
relocation costs for the Company's head offices of $380,000 and other costs of
$380,000, including consulting fees related to the completion of the first phase
of the Company's overall systems upgrade project. Payments made in 1996 totaled
$900,000, principally related to relocation and systems upgrade, leaving a
balance remaining at December 31, 1996 of $1.3 million, all of which is expected
to be utilized in 1997.
At December 31, 1996, the outstanding balance of the remaining reserves were
included in the Company's consolidated balance sheet in the following accounts:
$2.5 million in inventory reserves; $.6 million in accounts receivable reserves;
$.3 million in accounts payable and $2.1 million in accrued liabilities.
NOTE D--INVESTMENTS
The Company has determined that all of its investment securities are classified
as available-for-sale. The amortized cost of debt securities in this category is
adjusted for amortization of premiums and accretion of discounts to maturity.
Such amortization is included in investment income. Realized gains and losses
and declines in value judged to be other than temporary on available-for-sale
securities are included in other income. The cost of securities sold is based on
the specific identification method. Interest and dividends are included in
interest income.
Available-for-sale securities held by the Company at December 31, 1995 were
comprised of obligations of states and other political subdivisions. Proceeds
received from sales of securities available-for-sale were $2,633,000 in 1995 and
$2,476,000 in 1996. Gross gains and gross losses on such sales were not
significant.
<PAGE>
F-12
CYBEX INTERNATIONAL, INC.
(FORMERLY LUMEX, INC.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE E--LONG-TERM DEBT AND OTHER FINANCING ARRANGEMENTS
Long-term debt consists of the following (in thousands):
<TABLE>
<CAPTION>
December 31,
-------------------------------
1995 1996
------------ ------------
<S> <C> <C>
Bank term loans $13,525 $ 2,012
Industrial development revenue bond 1,245 615
Industrial development revenue note 2,275 2,100
Note payable ____ 1,035
------------ ------------
17,045 5,762
Less current portion 14,330 3,776
------------ ------------
$ 2,715 $ 1,986
============ ============
</TABLE>
In May 1996, the Company borrowed $2,465,000 from a bank pursuant to a five
year, 9.48% fixed rate term loan agreement. The term loan is payable in fifty
seven principal installments plus interest which commenced June 15, 1996. The
term loan is secured by an equivalent amount of specific lease receivables which
are included in lease receivables in the Company's consolidated balance sheet.
The industrial development revenue bond provided the funds to construct and
equip the manufacturing facility in Ronkonkoma, New York. The bond is
collateralized by land, building and equipment with a net book value of
$5,388,000 at December 31, 1996, bears interest at 60% of the bank's prime rate
and has a final payment of $615,000 due on June 30, 1997. The effective interest
rate at December 31, 1996 was 4.95%. Under the terms of the bond agreement, the
Company is subject to certain restrictive covenants including limitations on
additional borrowings, limitation on the payment of cash dividends to 20% of net
income and compliance with certain financial ratios. The Company was not in full
compliance with certain of these financial covenants at December 31, 1996 and
received the appropriate waivers from the bank.
The industrial development revenue note was used to construct and equip the
manufacturing facility in Owatonna, Minnesota. The note is collateralized by
land, building and equipment with a net book value of $6,757,000 at December 31,
1996, bears interest at 62.5% of the bank's prime rate and requires annual
principal payments of $175,000 on each January 1 through 2003 with a final
payment of $875,000 on January 1, 2004. The effective interest rate at December
31, 1996 was 5.16%. The note agreement requires compliance with certain
financial ratios. The Company's current ratio at December 31, 1996 was not in
compliance with the required ratio of 2.5 to 1.0. The bank has waived this
default and amended the terms of the agreement giving the bank the ability to
call the loan in its entirety during the first 90 days of any calendar year
beginning in 1998. The Company has classified this note as current at December
31, 1996 due to the uncertainty of obtaining the bank's approval for the merger
with Trotter.
The note payable bears interest at a fixed rate of 8.9% and is collateralized by
certain manufacturing equipment with a net book value of $894,000 at December
31, 1996.
<PAGE>
F-13
CYBEX INTERNATIONAL, INC.
(FORMERLY LUMEX, INC.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE E--LONG-TERM DEBT AND OTHER FINANCING ARRANGEMENTS (CONTINUED)
Annual principal payments of long-term debt are as follows (in thousands):
1997 $3,776
1998 979
1999 452
2000 322
2001 233
-----------
$5,762
===========
The Company has a bank line of credit which provides up to $5 million of
available credit. Any borrowings under this Agreement would bear interest at the
bank prime rate plus 1/4% at the time of borrowing. The credit facility is
principally secured by the Company's trade accounts receivable and inventories.
Selected data on the Company's short-term borrowings are as follows (dollars in
thousands):
<TABLE>
<CAPTION>
1995 1996
-------------- --------------
<S> <C> <C>
Balance at December 31 $15,250 ___
Weighted average interest
rate at December 31 7.42% ___
Maximum amount outstanding
at any month end $15,250 $15,250
Average amount outstanding $8,813 1,271
Weighted average interest
rate for the year 7.50% 7.41%
</TABLE>
Cash paid for interest was $1,103,000, $1,730,000 and $975,000 for the years
ended December 31, 1994, 1995 and 1996, respectively.
NOTE F--STOCKHOLDERS' EQUITY
The Company has elected to follow APB 25 and related Interpretations in
accounting for its employee stock options because, as discussed below, the
alternative fair value accounting provided for under Financial Accounting
Standards Board Statement No. 123 ("SFAS 123"), Accounting for Stock-Based
Compensation, requires use of option valuation models that were not developed
for use in valuing employee stock options. Under APB 25, because the exercise
price of the Company's employee stock options equals the market price of the
underlying stock on the date of grant, no compensation expense is recognized.
<PAGE>
F-14
CYBEX INTERNATIONAL, INC.
(FORMERLY LUMEX, INC.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE F--STOCKHOLDERS' EQUITY (CONTINUED)
Proforma information regarding net income and earnings per share is required by
SFAS 123, and has been determined as if the Company had accounted for its
employee stock options granted in 1995 and 1996 under the fair value method of
that Statement. The fair value for these options was estimated at the date of
grant using a Black-Scholes option pricing model.
The Black-Scholes option valuation model was developed for use in estimating the
fair value of traded options which have no vesting restrictions and are fully
transferable. In addition, option valuation models require the input of highly
subjective assumptions including the expected stock price volatility. Because
the Company's employee stock options have characteristics significantly
different from those of traded options, and because changes in the subjective
input assumptions can materially affect the fair value estimate, in management's
opinion, the existing models do not necessarily provide a reliable single
measure of the fair value of its employee stock options.
The fair values of these options at the date of grant was estimated with the
following weighted-average assumptions for 1995 and 1996: risk-free interest
rate of 5.9%, no dividend yield, volatility factor of the expected market price
of the Company's common stock of 33% and a weighted-average expected life of the
option of five years.
For purposes of proforma disclosures, the estimated fair value of the options is
amortized to expense over five years. The Company's proforma information follows
(in thousands except for earnings per share information):
<TABLE>
<CAPTION>
December 31
1995 1996
--------------- --------------
<S> <C> <C>
Proforma loss from continuing operations $ (11,133) $ (889)
Proforma net loss $ (12,921) $ (4,903)
Proforma loss per share from continuing operations $ (2.57) $ (.20)
Proforma net loss per share $ (2.98) $ (1.12)
</TABLE>
Because SFAS 123 is applicable only to options granted subsequent to December
31, 1994 and employee stock options granted vest over a four year period, its
proforma effect may not be representative of the effect in future years when
the effect would include the impact of multiple awards.
<PAGE>
F-15
CYBEX INTERNATIONAL, INC.
(FORMERLY LUMEX, INC.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE F--STOCKHOLDERS' EQUITY (CONTINUED)
Omnibus Incentive Plan: In June 1995, shareholders approved the 1995 Omnibus
Incentive Plan ("Omnibus Plan"), designed to provide incentives which will
attract and retain individuals key to the success of the Company through direct
or indirect ownership of the Company's Common Stock. Benefits under the Omnibus
Plan may be granted in any one or a combination of stock options, stock
appreciation rights, stock awards, performance awards and bonus stock purchase
awards. The Ominibus Plan has 250,000 shares of Common Stock reserved for
issuance and provides that the terms and conditions of each award are to be
determined by a committee of the Board of Directors charged with administering
the Omnibus Plan. Under the Omnibus Plan, the committee may grant either
incentive or nonqualified stock options with a term not to exceed ten years from
the grant date and at an exercise price per share that the committee may
determine (which in the case of incentive stock options may not be less than the
fair market value of a share of Common Stock on the date of grant). The
committee may also grant stock appreciation rights either in tandem with, or
independently of, an award of stock options. Under the Omnibus Plan, the
committee is authorized to permit key employees selected by the committee to
elect to convert up to a maximum percentage, as determined by the committee, of
their annual cash bonus incentive into Common Stock of the Company at a price
per share fixed by the committee, which will not be less than 85% of the fair
market value of the Common Stock on the regular bonus payment date. Options
granted under the Omnibus Plan become exercisable over a four year period
following the grant date and expire after ten years.
At December 31, 1996, there were 50,521 shares outstanding under restricted
stock awards granted in 1995. There were no restricted stock awards granted in
1996. Restricted stock awards vest in one to five years from the date of grant.
Upon the issuance of restricted stock, unearned compensation equal to fair
market value at the date of grant is charged to stockholders' equity and
amortized to expense over the period in which the restrictions lapse.
Amortization expense of $206,000 and $82,000 were charged to operations in 1995
and 1996, respectively.
1987 Stock Option Plan: The Company also has shares available for the granting
of options under the 1987 Stock Option Plan. Under this plan, a committee of the
Board of Directors charged with administering the plan may grant either
incentive or nonqualified stock options with a term not to exceed ten years from
the grant date, at an exercise price per share that the committee may determine
(which in the case of incentive stock options may not be less than the fair
market value of a share of Common Stock on the date of grant), and with such
other conditions as the committee determines. The committee may also grant stock
appreciation rights either in tandem with, or independently of, an award of
stock options under the plan. Options granted under this plan become exercisable
over a four year period following the grant date and expire after ten years.
<PAGE>
F-16
CYBEX INTERNATIONAL, INC.
(FORMERLY LUMEX, INC.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE F--STOCKHOLDERS' EQUITY (CONTINUED)
The following is a summary of activity in the 1995 Omnibus Incentive Plan and
1987 Stock Option Plan:
<TABLE>
<CAPTION>
1995 Omnibus Incentive Plan 1987 Stock Option Plan
------------------------------- --------------------------------------------------
Weighted Weighted
Number Average Number Average
of Exercise of Option Exercise
Shares Price Shares Price Price
-------------- -------------- --------------- -------------- --------------
<S> <C> <C> <C> <C> <C>
Outstanding at Jan. 1, 1994 246,950 $ 5 - $19
Granted 144,600 $10 - $11
Exercised (65,900) $ 5
Forfeited (48,800) $10 - $14
---------------
Outstanding at Dec. 31, 1994 ___ 276,850 $ 5 - $19
Granted 40,000 $10 70,100 $11
Exercised ___ (15,050) $ 5
Forfeited ___ (70,625) $10 - $14
--------------
---------------
Outstanding at Dec. 31, 1995 40,000 $10 261,275 $ 5 - $19 $10.49
Granted ___ 16,000 $ 9 $ 9.00
Exercised ___ (43,650) $ 5 - $10 $ 7.34
Forfeited (7,500) $10 (109,075) $10 - $14 $10.74
Expired ___ (6,000) $14 $14.00
-------------- ---------------
Outstanding at Dec. 31, 1996 32,500 $10 118,550 $ 9 - $19 $11.88
============== ===============
Exercisable at Dec. 31:
1996 13,750 $10 70,675 $13.20
1995 ___ 119,681 $11.48
Shares available for future
issuance at Dec. 31:
1996 166,979 156,400
1995 150,009 57,325
</TABLE>
The weighted average fair value of options granted during 1995 and 1996 were
$4.03 per share and $3.70 per share, respectively.
<PAGE>
F-17
CYBEX INTERNATIONAL, INC.
(FORMERLY LUMEX, INC.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE F--STOCKHOLDERS' EQUITY (CONTINUED)
The following table summarizes information about stock options outstanding at
December 31, 1996:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
---------------------------------------------------------- ----------------------------------------
Weighted-Average
Remaining Weighted-Average Weighted-Average
Range of Number Contractual Life Exercise Number Exercise
Exercise Outstanding Price Outstanding Price
Price at 12/31/96 at 12/31/96
--------------------- ------------------ ----------------- ----------------- ------------------ ------------------
<S> <C> <C> <C> <C> <C>
$ 9.38-$10.70 94,050 8.7 years $ 9.98 27,425 $10.03
$12.13-$13.88 47,000 4.8 12.94 47,000 12.94
$18.75 10,000 .1 18.75 10,000 18.75
------------------ ------------------
$ 9.38-$18.75 151,050 6.9 years $11.48 84,425 $12.68
================== ==================
</TABLE>
Stock Retainer Plan for Nonemployee Directors: In June 1995, the shareholders
approved the Stock Retainer Plan for Nonemployee Directors ("Retainer Plan"),
which provides that each nonemployee director will receive 70% of their annual
retainer or, in the case of the Chairman of the Board of Directors, shall
receive 50% of his annual retainer, in shares of Common Stock of the Company.
The number of shares to be issued will be computed by dividing the applicable
amount of the annual retainer to be paid in stock by the fair market value of a
common share on January 1 of each calendar year. Up to 35,000 shares of Common
Stock may be issued pursuant to the Retainer Plan. The issuance of shares in
payment of annual retainers will result in compensation expense based on the
fair market value of such shares. The Company issued 6,223 shares in 1995 and
8,064 shares in 1996 under the Retainer Plan representing $65,000 and $95,000
for director fees paid in 1995 and 1996, respectively. The Company also reissued
1,250 shares in 1995 and 5,000 shares in 1996 from Treasury representing $14,000
and $56,000 in director fees in 1995 and 1996, respectively, which were not part
of the Retainer Plan.
Leveraged Employee Stock Ownership Plan: The Company maintains a leveraged
Employee Stock Ownership Plan (ESOP) which is a noncontributory plan covering
substantially all employees meeting a one year length of service requirement.
The plan is designed to give employees a proprietary interest in the Company
through Common Stock ownership.
<PAGE>
F-18
CYBEX INTERNATIONAL, INC.
(FORMERLY LUMEX, INC.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE F--STOCKHOLDERS' EQUITY (CONTINUED)
In 1989, the ESOP borrowed $1,297,000 from the Company to acquire 108,100 shares
previously held in treasury. Each year the Company contributes amounts to the
ESOP sufficient for the ESOP to reduce its loan balance and release a portion of
its unallocated shares to eligible employees. In addition the ESOP has made
periodic borrowings from the Company to repurchase shares distributed to former
participants. Contributions by the Company to the ESOP are charged to expense.
During 1994 the remaining unallocated shares held by the ESOP were allocated to
eligible employees and the remaining loan balance was eliminated. During 1995
and 1996, 14,972 and 15,181 shares, respectively, of the Company's Common Stock
were transferred from treasury stock to the ESOP. In 1994, 1995 and 1996,
25,900, 25,900 and 15,181 shares, respectively, were allocated to eligible
employees and $310,000, $291,000 and $168,000, respectively, were charged to
expense by the Company.
For financial statement purposes the Company's loan receivable had been
reflected as a reduction in stockholders' equity.
Shareholders' Rights Plan: In May 1988, as further amended by the Board of
Directors in March 1989, a Shareholders Rights Plan (the "Rights Plan") was
adopted to insure that any acquisition of the Company would be on terms that are
fair to and in the best interest of all shareholders. Under the Rights Plan,
holders of Common Stock are entitled to receive one right for each share of
Common Stock held. Separate rights certificates would be issued and become
exercisable in the event an acquiring party accumulates 15% or more of the
Company's Common Stock or announces an offer to acquire 30% or more of the
Common Stock.
Each right will entitle a holder, except a 15% or more holder, to buy one
one-hundredth share of a newly authorized Series A Preferred Stock at an
exercise price of $60.00. Each one one-hundredth share of such preferred stock
is essentially equivalent to one share of the Company's Common Stock. However,
if an acquiring party accumulates 15% or more of the Company's Common Stock or
certain other events occur, each right entitles the holder (other than a 15%
holder) to purchase for $60 either $120 worth of Series A Preferred Stock or
$120 worth of common stock in the entity acquiring the Company. The purchase
price per share would be the market price of the Company's Common Stock or the
common stock of such acquiring entity.
The rights expire in May 1998 and may be redeemed by the Company at a price of
$.05 per right at any time up to ten days after they become exercisable (subject
to extension in certain circumstances) or in connection with a transaction
approved by Independent Directors (as defined in the Rights Plan).
<PAGE>
F-19
CYBEX INTERNATIONAL, INC.
(FORMERLY LUMEX, INC.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE G--INCOME TAXES
The provision (benefit) for income taxes on continuing operations included in
the accompanying Consolidated Statements of Operations is summarized as follows
(in thousands):
<TABLE>
<CAPTION>
1994 1995 1996
------------ ------------- ------------
<S> <C> <C> <C>
Current:
Federal $ (33) $ (2,816) $--
State and local 60 23 32
------------ ------------- ------------
27 (2,793) 32
Deferred 108 (551) --
------------ ------------- ------------
$ 135 $ (3,344) $32
============ ============= ============
</TABLE>
The significant components of the Company's deferred tax liabilities and assets
are as follows (in thousands):
<TABLE>
<CAPTION>
1995 1996
---------- -----------
<S> <C> <C>
Deferred tax liabilities:
Accelerated depreciation $ 1,022 $ 1,379
Other - net 205 205
-----------
----------
Total deferred tax liabilities 1,227 1,584
Deferred tax assets (included in other current assets):
Net operating loss carryforward -- 2,861
Nonrecurring charge 1,798 582
Discontinued operations 772 1,174
Warranty reserves 816 617
Insurance obligations 276 332
Bad debt reserves 240 407
LIFO reserves 82 45
Inventory cost capitalization 87 81
Other - net 82 4
---------- -----------
Total deferred tax assets 4,153 6,103
Valuation allowance (2,698) (4,291)
---------- -----------
Net deferred tax asset $228 $228
========== ===========
</TABLE>
The Company has recognized a benefit equal to taxes recoverable from the
utilization of net operating loss carrybacks and has recorded a valuation
allowance of $2,698,000 and $4,291,000 in 1995 and 1996, respectively. No
valuation allowance was recorded at December 31, 1994.
<PAGE>
F-20
CYBEX INTERNATIONAL, INC.
(FORMERLY LUMEX, INC.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE G--INCOME TAXES (CONTINUED)
The reconciliation of tax computed on the results from continuing operations at
the federal statutory rate to the provision (benefit) for income taxes is as
follows (in thousands):
<TABLE>
<CAPTION>
1994 1995 1996
------------ ----------- ------------
<S> <C> <C> <C>
Tax computed at statutory rate $383 $(4,916) $(273)
Tax free interest earned on
investments (107) (67) (6)
Foreign Sales Corporation
exempt income (101) (105) ___
State income taxes, net of federal tax benefit 40 15 21
Research and development tax
credit (57) ___ ___
Valuation allowance ___ 1,707 249
Other, net (23) 22 41
------------ ----------- ------------
$135 $(3,344) $32
============ =========== ============
</TABLE>
The Company received a tax benefit from the exercise of non-qualified stock
options of $31,000 and $48,000 credited directly to capital surplus during the
years ended December 31, 1995 and 1996, respectively.
At December 31, 1996, the Company had net operating loss carryforwards of
$6,705,000 expiring in 2011.
Cash paid for income taxes was $844,000, $157,000 and $254,000 for the years
ended December 31, 1994, 1995 and 1996, respectively.
NOTE H--BENEFIT PLANS
The Company has a noncontributory defined contribution retirement plan
("Retirement Plan") covering substantially all employees. Contributions to the
Retirement Plan are based upon annual compensation for those persons employed
(as defined) at December 31 and are funded annually. Retirement Plan expense was
$267,000, $360,000 and $155,000 in 1994, 1995 and 1996, respectively.
NOTE I--LEASES
As Lessor
The Company offers lease financing of selected products to its customers under
sales-type leases. Leases are generally for three to five years at which time
title transfers to the lessee. Leases are secured by the equipment financed,
often with additional security in the form of other equipment liens, letters of
credit, cash down payments and personal guarantees.
<PAGE>
F-21
CYBEX INTERNATIONAL, INC.
(FORMERLY LUMEX, INC.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE I--LEASES (CONTINUED)
Lease receivables were comprised of the following (in thousands):
<TABLE>
<CAPTION>
1995 1996
-------------- --------------
<S> <C> <C>
Minimum lease payments receivable $2,467 $5,257
Less unearned interest income (430) (616)
Less allowance for uncollectible accounts (61) (227)
-------------- --------------
Lease receivables 1,976 4,414
Current portion 574 2,144
--------------
==============
Non current portion $1,402 $2,270
============== ==============
</TABLE>
Minimum lease payments receivable as of December 31, 1996 were as follows (in
thousands):
1997 $2,828
1998 1,721
1999 500
2000 174
2001 34
Thereafter --
-----------
$5,257
===========
The Company financed $10.8 million and $12.5 million of its equipment sales for
the years ended December 31, 1995 and 1996, respectively. Income from leasing
activities for the years ended December 31, 1994, 1995 and 1996 was $517,000,
$567,000 and $176,000, respectively.
The Company periodically enters into agreements, generally subject to limited
recourse, to sell lease receivables to financial institutions to provide
continuous funding for its leasing programs. The Company sold $8.3 million and
$7.0 million of lease receivables in 1995 and 1996, respectively. Under the
terms of these agreements the Company will continue to bill and collect the
monthly lease payments which are then remitted to respective lenders each month.
The Company is subject to recourse provisions which may require it to repurchase
or replace leases in default. In return, the Company receives the collateralized
lease equipment. The recourse provisions, which range from 15% to 100% of the
outstanding net lease receivables, may be reduced annually based upon the
remaining outstanding lease stream. At December 31, 1996, the maximum contingent
liability under these recourse provisions was $9.2 million. Estimated credit
losses of $323,000 under the recourse provisions have been accrued consistent
with management's expectations based upon historical and industry experience,
and are included in accrued liabilities in the accompanying Consolidated Balance
Sheet.
<PAGE>
F-22
CYBEX INTERNATIONAL, INC.
(FORMERLY LUMEX, INC.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE I--LEASES (CONTINUED)
As Lessee
The Company has lease commitments expiring at various dates through 2001
principally for facilities and data processing equipment under noncancelable
operating leases. Future minimum payments under these leases at December 31,
1996 are as follows (in thousands):
1997 $632
1998 449
1999 340
2000 319
2001 215
-----------
$1,955
===========
Rent expense under operating leases for 1994, 1995 and 1996 was $435,000,
$591,000 and $687,000, respectively.
NOTE J--OTHER INFORMATION
Sale of Ronkonkoma, New York Facility - The Company has signed an agreement to
sell its manufacturing, warehouse and office facility located in Ronkonkoma, New
York for $4.5 million. The facility is subject to an industrial revenue bond
with an outstanding principal balance of $615,000. The sale of this facility is
expected to be finalized in the second quarter of 1997 and result in a gain for
financial statement purposes. The Company plans on moving its Ronkonkoma
operations, including manufacturing, to a smaller leased facility in the same
geographic area.
Equity Investment: - In the fourth quarter of 1996, the Company entered into a
joint venture agreement to form a new company, CYBEX Forza International Ltd.,
to coordinate, expand and improve its sales and servicing efforts in Europe, as
well as Russia, Africa and the Middle East. The joint venture is equally owned
by the Company and The Forza Group Ltd. ("Forza"), the Company's distributor in
the United Kingdom. In addition to the Company's products, the joint venture
will distribute other fitness products and will also pursue selective European
based manufacturing opportunities. At December 31, 1996, the Company's
investment in and advances to the joint venture totaled $180,000 and is
reflected in other assets in the accompanying consolidated balance sheet. Total
revenues and gross assets of the joint venture were not material to the
Company's consolidated financial statements.
<PAGE>
F-23
CYBEX INTERNATIONAL, INC. (FORMERLY LUMEX, INC.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE J--OTHER INFORMATION (CONTINUED)
Receivables: Trade accounts receivable are stated net of allowances for doubtful
accounts of $943,000 in 1995 and $1,106,000 in 1996. The provision for bad debts
for the years ended December 31, 1994, 1995 and 1996 was $67,000, $633,000 and
$221,000, respectively.
Inventories: Inventories were as follows (in thousands):
1995 1996
------------ ------------
Finished goods $4,160 $3,053
Work in process 3,828 3,973
Raw materials 4,036 2,908
------------ ------------
$12,024 $9,934
============ ============
Year-end inventories valued under the LIFO method were $2,952,000 in 1995 and
$1,544,000 in 1996. The replacement cost of LIFO inventories exceeds stated LIFO
costs by approximately $1,501,000 and $953,000 at December 31, 1995 and 1996,
respectively.
Intangible Assets: In February 1995, the Company exercised an option, under an
existing distributorship agreement with Impulse Technologies, Inc. (Impulse) to
acquire the exclusive license and patent rights to certain products developed by
Impulse, including a functional activity system for testing and exercise
(FASTEX) for $1.5 million plus a royalty of 8% of net sales until expiration of
the patent rights.
Accrued Liabilities: Accrued liabilities consisted of the following (in
thousands):
<TABLE>
<CAPTION>
1995 1996
------------ ------------
<S> <C> <C>
Salaries, bonuses and commissions $1,238 $1,104
Accrued vacation 549 588
Customer deposits 1,214 1,158
Warranty reserves 710 782
Self insurance obligations 948 977
Nonrecurring charges 5,125 2,075
Discontinued operations ___ 3,453
Other 4,104 3,330
------------ ------------
$13,888 $13,467
============ ============
</TABLE>
Export Sales: Sales to foreign customers for the years ended December 31, 1994,
1995 and 1996 were $16,880,000, $21,585,000, and $26,017,000, respectively. No
single geographic area outside of the United States was material relative to
consolidated sales, operating profits or identifiable assets.
Product Development Expenses: Product development expenses, included in selling,
general and administrative expenses in the accompanying consolidated statements
of operations, for the years ended December 31, 1994, 1995 and 1996 were
$4,065,000, $5,058,000 and $3,990,000, respectively.
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURE
Not applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information required to be furnished pursuant to this item with respect to
Directors and Executive Officers of the Company will be set forth under the
captions "MANAGEMENT OF THE COMPANY - Executive Officers and Directors" and
"OTHER MATTERS TO BE CONSIDERED AT ANNUAL MEETING - Proposal No. 4 - Election of
Directors" in the Company's definitive proxy statement, which involves the
election of directors (the "Proxy Statement"), to be filed with the Commission
pursuant to Regulation 14A not later than 120 days after the end of the fiscal
year covered by this Report, and is incorporated herein by reference, or if such
Proxy Statement is not filed with the Commission on or before 120 days after the
end of the fiscal year covered by this Report, such information will be included
in an amendment to this Report filed no later than the end of such 120-day
period.
The information required to be furnished pursuant to this item with respect to
compliance with Section 16(a) of the Securities Exchange Act of 1934 will be set
forth under the caption "EXECUTIVE COMPENSATION - Section 16(a) Beneficial
Ownership Reporting Compliance" in the Proxy Statement, and is incorporated
herein by reference, or if such Proxy Statement is not filed with the Commission
on or before 120 days after the end of the fiscal year covered by this Report,
such information will be included in an amendment to this Report filed no later
than the end of such 120-day period.
ITEM 11. EXECUTIVE COMPENSATION
The information required to be furnished pursuant to this item will be set forth
under the captions "MANAGEMENT OF THE COMPANY - Director Compensation" and
"EXECUTIVE COMPENSATION" in the Proxy Statement, and is incorporated herein by
reference, or if such Proxy Statement is not filed with the Commission on or
before 120 days after the end of the fiscal year covered by this Report, such
information will be included in an amendment to this Report filed no later than
the end of such 120-day period.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The information required to be furnished pursuant to this item will be set forth
under the caption "OWNERSHIP OF COMPANY COMMON STOCK BY CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT" in the Proxy Statement, and is incorporated herein by
reference, or if such Proxy Statement is not filed with the Commission on or
before 120 days after the end of the fiscal year covered by this Report, such
information will be included in an amendment to this Report filed no later than
the end of such 120-day period.
41
<PAGE>
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required to be furnished pursuant to this item will be set forth
under the caption "MANAGEMENT OF THE COMPANY - Certain Relationships and Related
Transactions" in the Proxy Statement, and is incorporated herein by reference,
or if such Proxy Statement is not filed with the Commission on or before 120
days after the end of the fiscal year covered by this Report, such information
will be included in an amendment to this Report filed no later than the end of
such 120-day period.
42
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) The following documents are filed or incorporated by
reference as a part of this report:
(1) (2) Financial Statements and Schedules
----------------------------------
See Index to Consolidated Financial Statements and
Schedules (Part II - Item 8).
(3) Exhibits
2(a) Asset Sale Agreement, dated as of March 13, 1996, by and
between the Company, MUL Acquisition Corp. I, MUL
Acquisition Corp. II and Fuqua Enterprises, Inc.,
incorporated by reference to Exhibit 2.1 to the Company's
Current Report on Form 8-K, dated April 3, 1996.
2(b)(i) Agreement and Plan of Merger, dated as of December 27,
1996, by and among the Company, Trotter Inc., and CAT'S
TAIL, INC. (FILED HEREWITH)
2(b)(ii) First Amendment to Agreement and Plan of Merger, dated as
of January 16, 1997, to Agreement and Plan of Merger,
dated as of December 27, 1996, by and among the Company,
Trotter Inc., and CAT'S TAIL, INC. (FILED HEREWITH)
3(a)(1) Restated Certificate of Incorporation of the Company,
dated May 20, 1988, incorporated by reference to Exhibit
3(a)(1) to the Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1996 (the "June 1996 10-Q").
3(a)(2) Certificate of Amendment of the Certificate of
Incorporation of the Company, dated May 30, 1988,
incorporated by reference to Exhibit 3(a)(2) to the June
1996 10-Q.
3(a)(3) Certificate of Amendment of the Certificate of
Incorporation of the Company, dated August 7, 1996,
incorporated by reference to Exhibit 3(a)(3) to the June
1996 10-Q.
3(b) By-Laws of the Company, as amended, incorporated by
reference to Exhibit 3(b) to the Company's Annual Report
on Form 10-K for the year ended December 31, 1987.
4(i)(a) Rights Agreement dated as of May 23, 1988 between the
Company and Registrar & Transfer Company, incorporated
reference to Exhibit 4.1 to the Company's Current Report
on Form 8-K dated May 18, 1988 (the "May 1988 8-K").
4(i)(b) Amendment to Rights Agreement dated as of March 15, 1989
between the Company and Registrar & Transfer Company,
incorporated by reference to Exhibit 4.1 to the Company's
Current Report on Form 8-K dated March 15, 1989.
4(ii)(a) Guaranty dated as of June 1, 1982 by the Company in favor
of Citibank, N.A., incorporated by reference to Exhibit
4(ii)(a) to the Company's Annual Report on Form 10-K for
the year ended December 31, 1982 (the "1982 10-K").
43
<PAGE>
4(ii)(b) Bond Purchase Agreement dated as of June 1, 1982 by and
among the Town of Islip Industrial Development Agency, the
Company and Citibank, N.A., incorporated by reference to
Exhibit 4(ii)(b) to the 1982 10-K.
4(ii)(c) Lease Agreement dated as of June 1, 1982 between the Town
of Islip Industrial Development Agency and the Company,
incorporated by reference to Exhibit 4(ii)(c) to the 1982
10-K.
4(ii)(d) Pledge and Assignment with Acknowledgement thereof by the
Company, dated as of June 1, 1982 from the Town of Islip
Industrial Development Agency to Citibank, N.A.,
incorporated by reference to Exhibit 4(ii)(d) to the 1982
10-K.
10(i)(a) Loan Agreement dated December 28, 1983 between City of
Owatonna, Minnesota and the Company, incorporated by
reference to Exhibit 10(i)(b) to the 1983 10-K.
<PAGE>
10(i)(b) Combination Mortgage, Security Agreement and Fixture
Financing Statement dated December 28, 1983 between the
Company, Mortgagor, and Norwest Bank Owatonna, National
Association, Mortgagee, incorporated by reference to
Exhibit 10(i)(c) to the 1983 10-K.
10(i)(c) Construction Loan Agreement dated December 28, 1983 by and
between the Company and Norwest Bank, National
Association, and the City of Owatonna, incorporated by
reference to Exhibit 10(i)(d) to the 1983 10-K.
10(i)(d) Assignment of Rents and Leases dated December 28, 1983
between the Company and Norwest Bank Owatonna, National
Association, incorporated by reference to Exhibit 10(i)(e)
to the 1983 10-K.
10(i)(e) Form of City of Owatonna Industrial Development Revenue
Note in the principal amount of $3,500,000 dated December
1983, incorporated by reference to Exhibit 10(i)(f) to the
1983 10-K.
10(ii) Lumex, Inc. Amended and Restated 1987 Stock Option Plan,
incorporated by reference to Exhibit 28 to the Company's
Registration Statement on Form S-8 (No. 33-48124), filed
May 26, 1992.*
10(iii)(a) Form of Severance Agreement for certain senior executives
of the Company, incorporated by reference to Exhibit 10.1
to the June 1988 8-K.*
10(iii)(b) Form of Severance Agreement for certain employees of the
Company, incorporated by reference to Exhibit 10.2 to the
June 1988 8-K.*
10(iv) Lumex, Inc. Long-Term Incentive Plan, incorporated by
reference to Exhibit 10(v) to the Annual Report on Form
10-K for the year ended December 31, 1993 (the "1993
10-K").*
10(v) Loan Agreement, dated as of July 30, 1993, among the
Company, CYBEX Financial Corp., and Chemical Bank,
incorporated by reference to Exhibit 10(vi) to the 1993
10-K.
44
<PAGE>
10(vi) First Amendment to Loan Agreement, dated as of November
26, 1993, among the Company, CYBEX Financial Corp., and
Chemical Bank, incorporated by reference to Exhibit
10(vii) to the 1993 10-K.
10(vii) Consulting Agreement, dated May 5, 1994, between L. Cohen
and the Company, incorporated by reference to Exhibit
10(viii) to the Quarterly Report on Form 10-Q for the
quarter ended June 30, 1994.*
10(viii) Loan Agreement, dated as of May 18, 1994, among the
Company, CYBEX Financial Corp. and European American Bank,
incorporated by reference to Exhibit 10(ix) to the Annual
Report on Form 10-K for the year ended December 31, 1994
(the "1994 10-K").
10(ix) Ultimate Net Loss Vendor Agreement with Portfolio
Purchase, dated December 30, 1994, among the Company,
CYBEX Financial Corp. and C.I.T., incorporated by
reference to Exhibit 10(x) to the 1994 10-K.
10(x) Portfolio Purchase Agreement, dated December 30, 1994,
among the Company, CYBEX Financial Corp. and European
American Bank, incorporated by reference to Exhibit 10(xi)
to the 1994 10-K.
10(xi) Consulting Agreement, dated January 27, 1994, between JDX
Limited and the Company, incorporated by reference to
Exhibit 10(xii) to the 1994 10-K.*
10(xii) Lumex, Inc. 1995 Omnibus Incentive Plan, incorporated by
reference to the Company's definitive proxy statement,
dated May 1, 1995, for its Annual Meeting of Shareholders
held on June 5, 1995 (the "1995 Proxy").*
10(xiii) Lumex, Inc. 1995 Stock Retainer Plan for Nonemployee
Directors, incorporated by reference to the 1995 Proxy.*
10(xiv) Employment Agreement, dated August 9, 1995, between J.
Raymond Elliott and the Company, incorporated by reference
to Exhibit 10(xv) to Amendment No. 1 to the Quarterly
Report on Form 10-Q/A for the quarter ended September 30,
1995 (the "September 1995 10-Q").*
10(xv) Employment Agreement, dated August 17, 1995, between John
R. Cowin and the Company, incorporated by reference to
Exhibit 10(xvi) to the September 1995 10-Q.*
10(xvi) Employment Agreement, dated October 16, 1995, between
Robert McNally and the Company, incorporated by reference
to Exhibit 10(xvi) to Amendment No. 1 to the Company's
Annual Report on Form 10-K/A for the year ended December
31, 1995 (the "1995 10-K/A").*
10(xvii) Covenant Not to Compete, dated as of April 3, 1996, by and
among the Company, Lumex Medical Products, Inc. (f/k/a MUL
Acquisition Corp. I), MUL Acquisition Corp. II, and Fuqua
Enterprises, Inc.., incorporated by reference to Exhibit
10(xvii) to the June 1996 10-Q.
45
<PAGE>
10(xviii) Amended and Restated Employment Agreement, dated May 9,
1996, between J. Raymond Elliott and the Company,
incorporated by reference to Exhibit 10(xviii) to the
Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1996 (the "September 1996 10-Q").*
10(xix) Severance Agreement, dated August 22, 1996, between Robert
McNally and the Company, incorporated by reference to
Exhibit 10(xix) to the September 1996 10-Q.*
21 Subsidiaries of the Registrant. (FILED HEREWITH)
23 Consent of Ernst & Young LLP. (FILED HEREWITH)
27 Financial Data Schedule. (FILED HEREWITH)
* Executive Compensation Plans and Arrangements
(b) Reports on Form 8-K
No reports on Form 8-K have been filed during the quarter ended
December 31, 1996.
46
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this Report to be signed on its
behalf by the undersigned, thereunto duly authorized.
CYBEX International, Inc.
-------------------------------------------
(Registrant)
March 27, 1997 By: /s/ Robert McNally
- -------------- ---------------------------------------------
(Date) Robert McNally, on behalf of the Registrant
and as Chief Financial Officer and Sr. Vice
President of Finance.
47
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the Registrant and
in the capacities and on the dates indicated.
March 27, 1997 By: /s/ J. Raymond Elliott
- --------------- -------------------------------------
J. Raymond Elliott, President and
Chief Executive Officer and Director.
March 27, 1997 By: /s/ Kay Knight Clarke
- --------------- -------------------------------------
Kay Knight Clarke, Director
March 27, 1997 By: /s/ Thomas W. Kahle
- --------------- -------------------------------------
Thomas W. Kahle, Director
March 27, 1997 By: /s/ Robert R. McMillan
- --------------- -------------------------------------
Robert R. McMillan, Director
March 27, 1997 By: /s/ Carol G. Nelson
- --------------- -------------------------------------
Carol G. Nelson, Director
March 27, 1997 By: /s/ Jack C. Spratt
- ---------------- -------------------------------------
John C. Spratt, Director
March 27, 1997 By: /s/ Alan H. Weingarten
- --------------- -------------------------------------
Alan H. Weingarten, Director
48
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
----------- -----------
2(a) Asset Sale Agreement, dated as of March 13, 1996, by and
between the Company, MUL Acquisition Corp. I, MUL
Acquisition Corp. II and Fuqua Enterprises, Inc.,
incorporated by reference to Exhibit 2.1 to the Company's
Current Report on Form 8-K, dated April 3, 1996.
2(b)(i) Agreement and Plan of Merger, dated as of December 27,
1996, by and among the Company, Trotter Inc., and CAT'S
TAIL, INC. (FILED HEREWITH)
2(b)(ii) First Amendment to Agreement and Plan of Merger, dated as
of January 16, 1997, to Agreement and Plan of Merger,
dated as of December 27, 1996, by and among the Company,
Trotter Inc., and CAT'S TAIL, INC. (FILED HEREWITH)
3(a)(1) Restated Certificate of Incorporation of the Company,
dated May 20, 1988, incorporated by reference to Exhibit
3(a)(1) to the Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1996 (the "June 1996 10-Q").
3(a)(2) Certificate of Amendment of the Certificate of
Incorporation of the Company, dated May 30, 1988,
incorporated by reference to Exhibit 3(a)(2) to the June
1996 10-Q.
3(a)(3) Certificate of Amendment of the Certificate of
Incorporation of the Company, dated August 7, 1996,
incorporated by reference to Exhibit 3(a)(3) to the June
1996 10-Q.
3(b) By-Laws of the Company, as amended, incorporated by
reference to Exhibit 3(b) to the Company's Annual Report
on Form 10-K for the year ended December 31, 1987.
4(i)(a) Rights Agreement dated as of May 23, 1988 between the
Company and Registrar & Transfer Company, incorporated
reference to Exhibit 4.1 to the Company's Current Report
on Form 8-K dated May 18, 1988 (the "May 1988 8-K").
4(i)(b) Amendment to Rights Agreement dated as of March 15, 1989
between the Company and Registrar & Transfer Company,
incorporated by reference to Exhibit 4.1 to the Company's
Current Report on Form 8-K dated March 15, 1989.
4(ii)(a) Guaranty dated as of June 1, 1982 by the Company in favor
of Citibank, N.A., incorporated by reference to Exhibit
4(ii)(a) to the Company's Annual Report on Form 10-K for
the year ended December 31, 1982 (the "1982 10-K").
4(ii)(b) Bond Purchase Agreement dated as of June 1, 1982 by and
among the Town of Islip Industrial Development Agency, the
Company and Citibank, N.A., incorporated by reference to
Exhibit 4(ii)(b) to the 1982 10-K.
4(ii)(c) Lease Agreement dated as of June 1, 1982 between the Town
of Islip Industrial Development Agency and the Company,
incorporated by reference to Exhibit 4(ii)(c) to the 1982
10-K.
49
<PAGE>
EXHIBIT NO. DESCRIPTION
----------- -----------
4(ii)(d) Pledge and Assignment with Acknowledgement thereof by the
Company, dated as of June 1, 1982 from the Town of Islip
Industrial Development Agency to Citibank, N.A.,
incorporated by reference to Exhibit 4(ii)(d) to the 1982
10-K.
10(i)(a) Loan Agreement dated December 28, 1983 between City of
Owatonna, Minnesota and the Company, incorporated by
reference to Exhibit 10(i)(b) to the 1983 10-K.
10(i)(b) Combination Mortgage, Security Agreement and Fixture
Financing Statement dated December 28, 1983 between the
Company, Mortgagor, and Norwest Bank Owatonna, National
Association, Mortgagee, incorporated by reference to
Exhibit 10(i)(c) to the 1983 10-K.
10(i)(c) Construction Loan Agreement dated December 28, 1983 by and
between the Company and Norwest Bank, National
Association, and the City of Owatonna, incorporated by
reference to Exhibit 10(i)(d) to the 1983 10-K.
10(i)(d) Assignment of Rents and Leases dated December 28, 1983
between the Company and Norwest Bank Owatonna, National
Association, incorporated by reference to Exhibit 10(i)(e)
to the 1983 10-K.
10(i)(e) Form of City of Owatonna Industrial Development Revenue
Note in the principal amount of $3,500,000 dated December
1983, incorporated by reference to Exhibit 10(i)(f) to the
1983 10-K.
10(ii) Lumex, Inc. Amended and Restated 1987 Stock Option Plan,
incorporated by reference to Exhibit 28 to the Company's
Registration Statement on Form S-8 (No. 33-48124), filed
May 26, 1992.*
10(iii)(a) Form of Severance Agreement for certain senior executives
of the Company, incorporated by reference to Exhibit 10.1
to the June 1988 8-K.*
10(iii)(b) Form of Severance Agreement for certain employees of the
Company, incorporated by reference to Exhibit 10.2 to the
June 1988 8-K.*
10(iv) Lumex, Inc. Long-Term Incentive Plan, incorporated by
reference to Exhibit 10(v) to the Annual Report on Form
10-K for the year ended December 31, 1993 (the "1993
10-K").*
10(v) Loan Agreement, dated as of July 30, 1993, among the
Company, CYBEX Financial Corp., and Chemical Bank,
incorporated by reference to Exhibit 10(vi) to the 1993
10-K.
10(vi) First Amendment to Loan Agreement, dated as of November
26, 1993, among the Company, CYBEX Financial Corp., and
Chemical Bank, incorporated by reference to Exhibit
10(vii) to the 1993 10-K.
10(vii) Consulting Agreement, dated May 5, 1994, between L. Cohen
and the Company, incorporated by reference to Exhibit
10(viii) to the Quarterly Report on Form 10-Q for the
quarter ended June 30, 1994.*
50
<PAGE>
EXHIBIT NO. DESCRIPTION
----------- -----------
10(viii) Loan Agreement, dated as of May 18, 1994, among the
Company, CYBEX Financial Corp. and European American Bank,
incorporated by reference to Exhibit 10(ix) to the Annual
Report on Form 10-K for the year ended December 31, 1994
(the "1994 10-K").
10(ix) Ultimate Net Loss Vendor Agreement with Portfolio
Purchase, dated December 30, 1994, among the Company,
CYBEX Financial Corp. and C.I.T., incorporated by
reference to Exhibit 10(x) to the 1994 10-K.
10(x) Portfolio Purchase Agreement, dated December 30, 1994,
among the Company, CYBEX Financial Corp. and European
American Bank, incorporated by reference to Exhibit 10(xi)
to the 1994 10-K.
10(xi) Consulting Agreement, dated January 27, 1994, between JDX
Limited and the Company, incorporated by reference to
Exhibit 10(xii) to the 1994 10-K.*
10(xii) Lumex, Inc. 1995 Omnibus Incentive Plan, incorporated by
reference to the Company's definitive proxy statement,
dated May 1, 1995, for its Annual Meeting of Shareholders
held on June 5, 1995 (the "1995 Proxy").*
10(xiii) Lumex, Inc. 1995 Stock Retainer Plan for Nonemployee
Directors, incorporated by reference to the 1995 Proxy.*
10(xiv) Employment Agreement, dated August 9, 1995, between J.
Raymond Elliott and the Company, incorporated by reference
to Exhibit 10(xv) to Amendment No. 1 to the Quarterly
Report on Form 10-Q/A for the quarter ended September 30,
1995 (the "September 1995 10-Q").*
10(xv) Employment Agreement, dated August 17, 1995, between John
R. Cowin and the Company, incorporated by reference to
Exhibit 10(xvi) to the September 1995 10-Q.*
10(xvi) Employment Agreement, dated October 16, 1995, between
Robert McNally and the Company, incorporated by reference
to Exhibit 10(xvi) to Amendment No. 1 to the Company's
Annual Report on Form 10-K/A for the year ended December
31, 1995 (the "1995 10-K/A").*
10(xvii) Covenant Not to Compete, dated as of April 3, 1996, by and
among the Company, Lumex Medical Products, Inc. (f/k/a MUL
Acquisition Corp. I), MUL Acquisition Corp. II, and Fuqua
Enterprises, Inc.., incorporated by reference to Exhibit
10(xvii) to the June 1996 10-Q.
10(xviii) Amended and Restated Employment Agreement, dated May 9,
1996, between J. Raymond Elliott and the Company,
incorporated by reference to Exhibit 10(xviii) to the
Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1996 (the "September 1996 10-Q").*
10(xix) Severance Agreement, dated August 22, 1996, between Robert
McNally and the Company, incorporated by reference to
Exhibit 10(xix) to the September 1996 10-Q.*
51
<PAGE>
EXHIBIT NO. DESCRIPTION
----------- -----------
21 Subsidiaries of the Registrant. (FILED HEREWITH)
23 Consent of Ernst & Young LLP. (FILED HEREWITH)
27 Financial Data Schedule. (FILED HEREWITH)
AGREEMENT AND PLAN OF MERGER
among
CYBEX INTERNATIONAL, INC.
and
TROTTER INC.
and
CAT'S TAIL, INC.
Dated as of December 27, 1996
<PAGE>
TABLE OF CONTENTS
ARTICLE I
THE MERGER
Section 1.1 Effects of the Merger . . . . . . . . . . 1
Section 1.2 Effective Time of the Merger . . . . . . 2
ARTICLE II
TREATMENT OF SHARES
Section 2.1 Conversion of Shares . . . . . . . . . . 2
Section 2.2 Exchange of Stock Certificates; Record
Date . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.3 No Further Rights in Trotter Common
Stock . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.4 Registration of Merger Shares. . . . . . 3
Section 2.5 Closing of Transfer Books . . . . . . . . 3
ARTICLE III
THE CLOSING
Section 3.1 Closing . . . . . . . . . . . . . . . . . 3
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF CYBEX
Section 4.1 Organization and Qualification . . . . . 4
Section 4.2 Subsidiaries . . . . . . . . . . . . . . 4
Section 4.3 Capitalization . . . . . . . . . . . . . 5
Section 4.4 Authority; Non-Contravention; Statutory
Approvals; Compliance . . . . . . . . . 6
Section 4.5 Reports and Financial Statements . . . . 8
Section 4.6 Absence of Certain Changes or Events . . 9
Section 4.7 Litigation . . . . . . . . . . . . . . . 11
Section 4.8 Registration Statement; Proxy Statement . 11
Section 4.9 Tax Matters . . . . . . . . . . . . . . . 12
Section 4.10 Employee Matters; ERISA . . . . . . . . . 14
Section 4.11 Environmental Protection . . . . . . . . 17
Section 4.12 Vote Required . . . . . . . . . . . . . . 19
<PAGE>
Page
---
Section 4.13 Corporate Records . . . . . . . . 20
Section 4.14 No Undisclosed Liabilities . . . . . . . 20
Section 4.15 Real and Personal Property . . . . . . . 20
Section 4.16 Intangible Property . . . . . . . . . . . 22
Section 4.17 Material Contracts . . . . . . . . . . . 22
Section 4.18 Related Party Transactions . . . . . . . 23
Section 4.19 Opinion of Financial Advisor . . . . . . 24
Section 4.20 Insurance . . . . . . . . . . . . . . . . 24
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF TROTTER
Section 5.1 Organization and Qualification . . . . . 24
Section 5.2 Subsidiaries . . . . . . . . . . . . . . 25
Section 5.3 Capitalization . . . . . . . . . . . . . 25
Section 5.4 Authority; Non-Contravention; Statutory
Approvals; Compliance . . . . . . . . . . 26
Section 5.5 Financial Statements . . . . . . . . . . 28
Section 5.6 Absence of Certain Changes or Events . . 28
Section 5.7 Litigation . . . . . . . . . . . . . . . 31
Section 5.8 Registration Statement; Proxy Statement . 31
Section 5.9 Tax Matters . . . . . . . . . . . . . . . 31
Section 5.10 Employee Matters; ERISA . . . . . . . . . 33
Section 5.11 Environmental Protection . . . . . . . . 36
Section 5.12 Corporate Records . . . . . . . . . . . . 37
Section 5.13 No Undisclosed Liabilities . . . . . . . 37
Section 5.14 Real and Personal Property . . . . . . . 38
Section 5.15 Intangible Property . . . . . . . . . . . 39
Section 5.16 Material Contracts . . . . . . . . . . . 39
Section 5.17 Related Party Transactions . . . . . . . 40
Section 5.18 Insurance . . . . . . . . . . . . . . . . 41
ARTICLE VI
CONDUCT OF BUSINESS PENDING THE MERGER
Section 6.1 Covenants of the Parties . . . . . . . . 41
<PAGE>
Page
---
ARTICLE VII
ADDITIONAL AGREEMENTS
Section 7.1 Access to Information . . . . . . . . . . 45
Section 7.2 Proxy Statement; Registration
Statement . . . . . . . . . . . . . . . . 45
Section 7.3 Regulatory Matters . . . . . . . . . . . 46
Section 7.4 Shareholder Approval . . . . . . . . . . 46
Section 7.5 Directors' and Officers'
Indemnification . . . . . . . . . . . . . 47
Section 7.6 Public Announcements . . . . . . . . . . 48
Section 7.7 Employee Agreements and Workforce
Matters . . . . . . . . . . . . . . . . . 49
Section 7.8 Employee Benefit Plans . . . . . . . . . 49
Section 7.9 Stock Option and Other Stock Plans . . . 49
Section 7.10 No Solicitations . . . . . . . . . . . . 50
Section 7.11 CYBEX Board of Directors . . . . . . . . 51
Section 7.12 Tax-Free Reorganization. . . . . . . . . 51
Section 7.13 Listing of Stock. . . . . . . . . . . . . 51
Section 7.14 Expenses . . . . . . . . . . . . . . . . 51
Section 7.15 Further Assurances . . . . . . . . . . . 51
ARTICLE VIII
CONDITIONS
Section 8.1 Conditions to Each Party's Obligation to
Effect the Merger . . . . . . . . . . . . 52
Section 8.2 Conditions to Obligation of Trotter to
Effect the Merger . . . . . . . . . . . . 53
Section 8.3 Conditions to Obligation of CYBEX to
Effect the Merger . . . . . . . . . . . . 54
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
Section 9.1 Termination . . . . . . . . . . . . . . . 55
Section 9.2 Effect of Termination . . . . . . . . . . 56
Section 9.4 Amendment . . . . . . . . . . . . . . . . 56
Section 9.5 Waiver . . . . . . . . . . . . . . . . . 57
<PAGE>
Page
---
ARTICLE X
GENERAL PROVISIONS
Section 10.1 Non-Survival; Effect of Representations
and Warranties. . . . . . . . . . . . . . 57
Section 10.2 Brokers . . . . . . . . . . . . . . . . . 57
Section 10.3 Notices . . . . . . . . . . . . . . . . . 57
Section 10.4 Miscellaneous . . . . . . . . . . . . . . 59
Section 10.5 Interpretation . . . . . . . . . . . . . 60
Section 10.6 Counterparts; Effect . . . . . . . . . . 60
Section 10.7 Parties' Interest . . . . . . . . . . . . 60
Section 10.8 Waiver of Jury Trial and Certain
Damages . . . . . . . . . . . . . . . . . 60
Section 10.9 Enforcement . . . . . . . . . . . . . . . 60
<PAGE>
Page
---
EXHIBITS
Exhibit 8.2(d) CYBEX Certificate
Exhibit 8.3(d) Trotter Certificate
Exhibit 8.3(e) Selling Shareholder Certificate
SCHEDULES
CYBEX Disclosure Schedule
-------------------------
Section 4.1 Organization and Qualification.
Section 4.2 Subsidiaries.
Section 4.3 Capitalization.
Section 4.4(b) Non-Contravention.
Section 4.4(c) Consents of Third Parties.
Section 4.4(d) Compliance.
Section 4.6 Absence of Certain Changes or Events.
Section 4.7 Litigation.
Section 4.9 Tax Matters.
Section 4.10 Employee Matters; ERISA.
Section 4.10(a) Benefit Plans.
Section 4.10(g) Payments Resulting from Merger.
Section 4.10(h) Labor Agreements.
Section 4.11 Environmental Protection.
Section 4.15 Real and Personal Property.
Section 4.16 Intangible Property.
Section 4.17 Material Contracts.
Section 4.18 Related Party Transactions.
Section 4.20 Insurance.
Section 6.1(a) Ordinary Course of Business.
Section 6.1(g) Compensation; Benefits.
Trotter Disclosure Schedule
---------------------------
Section 5.1 Organization and Qualification.
Section 5.2 Subsidiaries.
Section 5.3 Capitalization.
Section 5.4(b) Non-Contravention.
Section 5.4(c) Consents of Third Parties
<PAGE>
Section 5.4(d) Compliance.
Section 5.6 Absence of Certain Changes or Events.
Section 5.7 Litigation.
Section 5.9 Tax Matters.
Section 5.9(m) Tax Sharing Agreements.
Section 5.10 Employee Matters; ERISA.
Section 5.10(a) Benefit Plans.
Section 5.10(g) Payments Resulting from Merger.
Section 5.10(h) Labor Agreements.
Section 5.11 Environmental Protection.
Section 5.14 Real and Personal Property.
Section 5.15 Intangible Property.
Section 5.16 Material Contracts.
Section 5.17 Related Party Transactions.
Section 5.18 Insurance.
Section 6.1(g) Compensation; Benefits.
<PAGE>
INDEX OF PRINCIPAL TERMS
Term Page
---- ----
1935 Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Acquisition Proposal . . . . . . . . . . . . . . . . . . . . 51
Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Closing Agreement . . . . . . . . . . . . . . . . . . . . . . 14
Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . 4
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Confidentiality Agreement . . . . . . . . . . . . . . . . . . 45
Constituent Corporations . . . . . . . . . . . . . . . . . . . 1
Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . 22
CYBEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CYBEX Balance Sheet . . . . . . . . . . . . . . . . . . . . . 20
CYBEX Benefit Plans . . . . . . . . . . . . . . . . . . . . . 15
CYBEX Common Shares . . . . . . . . . . . . . . . . . . . . . . 5
CYBEX Disclosure Schedule . . . . . . . . . . . . . . . . . . . 4
CYBEX Financial Statements . . . . . . . . . . . . . . . . . . 8
CYBEX Material Adverse Effect . . . . . . . . . . . . . . . . . 9
CYBEX Material Contracts . . . . . . . . . . . . . . . . . . 23
CYBEX Owned Properties . . . . . . . . . . . . . . . . . . . 20
CYBEX Owned Property . . . . . . . . . . . . . . . . . . . . 20
CYBEX Preferred Shares . . . . . . . . . . . . . . . . . . . . 5
CYBEX Properties . . . . . . . . . . . . . . . . . . . . . . 20
CYBEX Property . . . . . . . . . . . . . . . . . . . . . . . 20
CYBEX Real Property Lease . . . . . . . . . . . . . . . . . . 20
CYBEX Required Consents . . . . . . . . . . . . . . . . . . . . 7
CYBEX Required Statutory Approvals . . . . . . . . . . . . . . 7
CYBEX Rights Agreement . . . . . . . . . . . . . . . . . . . . 5
CYBEX SEC Reports . . . . . . . . . . . . . . . . . . . . . . . 8
CYBEX Shareholders' Approval . . . . . . . . . . . . . . . . 19
CYBEX Special Meeting . . . . . . . . . . . . . . . . . . . . 46
CYBEX Stock Plans . . . . . . . . . . . . . . . . . . . . . . . 5
DGCL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Effective Time . . . . . . . . . . . . . . . . . . . . . . . . 2
Environmental Claim . . . . . . . . . . . . . . . . . . . . . 18
Environmental Laws . . . . . . . . . . . . . . . . . . . . . 19
<PAGE>
Term Page
---- ---
Environmental Permits. . . . . . . . . . . . . . . 17
ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . 8
Final Order . . . . . . . . . . . . . . . . . . . . . . . . . 52
GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Governmental Authority . . . . . . . . . . . . . . . . . . . . 7
Hazardous Materials . . . . . . . . . . . . . . . . . . . . . 19
Include . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Includes . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Including . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Indemnified Liabilities . . . . . . . . . . . . . . . . . . . 47
Indemnified Parties . . . . . . . . . . . . . . . . . . . . . 47
Indemnified Party . . . . . . . . . . . . . . . . . . . . . . 47
Initial Termination Date . . . . . . . . . . . . . . . . . . 55
Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Merger Certificate . . . . . . . . . . . . . . . . . . . . . . 2
PBGC . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
PCBs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Permitted Exceptions . . . . . . . . . . . . . . . . . . . . 21
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Proxy Statement . . . . . . . . . . . . . . . . . . . . . . . 12
Release . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Representatives . . . . . . . . . . . . . . . . . . . . . . . 45
Smith Barney . . . . . . . . . . . . . . . . . . . . . . . . 24
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Surviving Corporation . . . . . . . . . . . . . . . . . . . . . 1
Tax Return . . . . . . . . . . . . . . . . . . . . . . . . . 12
Tax Ruling . . . . . . . . . . . . . . . . . . . . . . . . . 14
Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Trotter . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Trotter Balance Sheet . . . . . . . . . . . . . . . . . . . . 28
Trotter Balance Sheet Date . . . . . . . . . . . . . . . . . 28
Trotter Benefit Plans . . . . . . . . . . . . . . . . . . . . 34
Trotter Common Stock . . . . . . . . . . . . . . . . . . . . 25
Trotter Disclosure Schedule . . . . . . . . . . . . . . . . . 24
Trotter Financial Statements . . . . . . . . . . . . . . . . 28
Trotter Intellectual Property . . . . . . . . . . . . . . . . 39
Trotter Material Adverse Effect . . . . . . . . . . . . . . . 29
<PAGE>
Term Page
---- ----
Trotter Material Contracts . . . . . . . . . . . . 39
Trotter Owned Properties . . . . . . . . . . . . . . . . . . 38
Trotter Owned Property . . . . . . . . . . . . . . . . . . . 38
Trotter Properties . . . . . . . . . . . . . . . . . . . . . 38
Trotter Property . . . . . . . . . . . . . . . . . . . . . . 38
Trotter Real Property Lease . . . . . . . . . . . . . . . . . 38
Trotter Required Consents . . . . . . . . . . . . . . . . . . 27
Trotter Required Statutory Approvals . . . . . . . . . . . . 27
Trotter Stock Plans . . . . . . . . . . . . . . . . . . . . . 25
Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Voting Debt . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Without limitation . . . . . . . . . . . . . . . . . . . . . 60
<PAGE>
AGREEMENT AND PLAN OF MERGER, dated as of December 27,
1996, by and among CYBEX International, Inc., a New York
corporation ("CYBEX"), Trotter Inc., a Delaware corporation
("Trotter"), and CAT'S TAIL, INC., a direct wholly-owned
subsidiary of CYBEX and a Delaware corporation (the "Company").
WHEREAS, CYBEX and Trotter have determined to engage in
a business combination by way of a merger;
WHEREAS, in furtherance thereof, the respective Boards
of Directors of CYBEX, Trotter and the Company have approved this
Agreement and the merger of the Company with and into Trotter
(the "Merger");
WHEREAS, the parties intend that the Merger constitute
a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the premises and
the representations, warranties, covenants and agreements
contained herein, the parties hereto, intending to be legally
bound hereby, agree as follows:
ARTICLE I
THE MERGER
Section 1.1 Effects of the Merger. At the Effective
Time, (a) the separate existence of the Company shall cease and
the Company shall be merged with and into Trotter (Trotter and
the Company are sometimes referred to herein as the "Constituent
Corporations", and Trotter immediately after the Effective Time
is sometimes referred to herein as the "Surviving Corporation"),
(b) the Surviving Corporation shall be a Delaware corporation,
(c) the certificate of incorporation of the Company shall be the
certificate of incorporation of the Surviving Corporation until
duly amended, (d) the by-laws of the Company shall be the by-laws
of the Surviving Corporation until duly amended, (e) the name of
Trotter shall be the name of the Surviving Corporation, and
(f) the Merger shall have all the effects provided by applicable
law.
<PAGE>
Section 1.2 Effective Time of the Merger. Subject
to the provisions of this Agreement, on the Closing Date (as
defined in Section 3.1), a certificate of merger (the "Merger
Certificate") shall be executed and filed by Trotter and
the Company with the Secretary of State of the State of Delaware
pursuant to the Delaware General Corporation Law (the "DGCL").
The Merger shall become effective at such time as the Merger
Certificate has been so filed or at such time thereafter as is
provided in the Merger Certificate (the "Effective Time").
ARTICLE II
TREATMENT OF SHARES
Section 2.1 Conversion of Shares. (a) At the
Effective Time, by virtue of the Merger and without any further
action on the part of CYBEX, Trotter, the Company or the
Surviving Corporation or any of the respective stockholders
thereof, all of the shares of Trotter Common Stock issued and
outstanding at the Effective Time shall be converted into the
right to receive, and shall be exchanged for, the number of
fully-paid and non-assessable CYBEX Common Shares (rounded upward
to the nearest whole share) which, upon issuance, shall equal
50.001% of all CYBEX Common Shares issued and outstanding on a
fully diluted basis calculated using the treasury stock method
and assuming a price of $9.75 per share for the CYBEX Common
Stock (assuming issuance of all Trotter Common Stock subject to
the Trotter Stock Plans immediately before the Effective Time)
immediately following the Effective Time (the "Total Merger
Consideration"). The amount of CYBEX Common Shares to be
received upon conversion of each share of Trotter Common Stock
(the "Merger Consideration") shall equal the Total Merger
Consideration, divided by the number of shares of Trotter Common
Stock issued and outstanding on a fully diluted basis (assuming
issuance of all Trotter Common Stock subject to the Trotter Stock
Plans immediately before the Effective Time) at the Effective
Time.
(b) Upon conversion of the shares of Trotter Common
Stock into the right to receive the Merger Consideration in the
manner described in paragraph 2.1(a), each record holder of
issued and outstanding Trotter Common Stock immediately prior to
the Effective Time shall have the right to receive a certificate
representing such whole number of CYBEX Common Shares equal to
the product of (A) the Merger Consideration and (B) the number of
issued and outstanding shares of Trotter Common Stock of which
such Person is the record holder immediately prior to the
Effective Time.
<PAGE>
Section 2.2 Exchange of Stock Certificates; Record
Date. On or after the Effective Date, each holder of record of a
certificate or certificates that immediately prior to the
Effective Time represented issued and outstanding shares of
Trotter Common Stock whose shares were converted into
the Merger Consideration shall surrender such certificates
for cancellation to CYBEX, together with a letter of transmittal,
duly executed. In exchange therefor, CYBEX shall deliver to
each such holder the Merger Consideration required under
this Agreement.
Section 2.3 No Further Rights in Trotter Common
Stock. As of the Effective Time, all shares of Trotter Common
Stock shall no longer be outstanding and shall automatically be
cancelled and shall cease to exist, and each holder of a
certificate representing shares of Trotter Common Stock as of the
Effective Time shall cease to have any rights with respect
thereto, except the right to receive the Merger Consideration
upon surrender of such certificate as provided in Section 2.2.
Section 2.4 Registration of Merger Shares. As
promptly as practicable after the execution of this Agreement,
Trotter and CYBEX shall prepare and CYBEX shall file with the
Securities and Exchange Commission (the "SEC") a registration
statement on Form S-4 (the "Registration Statement") to register
under the Securities Act of 1933, as amended (the "Securities
Act") the CYBEX Common Shares issuable pursuant to the Merger, as
provided in Section 7.2.
Section 2.5 Closing of Transfer Books. From and
after the Effective Time, the stock transfer books of Trotter
shall be closed and no transfer of any capital stock of Trotter
shall thereafter be made. If, after the Effective Time,
Certificates are presented to Trotter, they shall be cancelled
and exchanged for the Merger Consideration as provided in Section
2.2.
ARTICLE III
THE CLOSING
Section 3.1 Closing. The closing of the Merger (the
"Closing") shall take place at the offices of Weil, Gotshal &
Manges LLP, 767 Fifth Avenue, New York, New York 10153 at 10:00
A.M., local time, on the second business day immediately
following the date on which the last of the conditions set forth
in Article VIII hereof (other than such conditions which require
deliveries at Closing) is fulfilled or waived, or at such other
time, date and place as CYBEX and Trotter shall mutually agree
(the "Closing Date").
<PAGE>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF CYBEX
CYBEX represents and warrants to Trotter as follows:
Section 4.1 Organization and Qualification. Except
as set forth in Section 4.1 of the schedule delivered by CYBEX on
the date hereof (the "CYBEX Disclosure Schedule"), each of CYBEX
and each of its Subsidiaries (as defined below) is a corporation
duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation or organization, has
all requisite corporate power and authority, and has been duly
authorized by all necessary approvals and orders to own, lease
and operate its assets and properties to the extent owned, leased
and operated and to carry on its business as it is now being
conducted and is duly qualified and in good standing to do
business in each jurisdiction in which the nature of its business
or the ownership or leasing of its assets and properties makes
such qualification necessary other than in such jurisdictions
where the failure so to qualify would not have a material adverse
effect on CYBEX and its Subsidiaries taken as a whole. As used
in this Agreement, the term "Subsidiary" of a person shall mean
any corporation or other entity (including partnerships and other
business associations) of which at least a majority of the
outstanding capital stock or other voting securities having
voting power under ordinary circumstances to elect directors or
similar members of the governing body of such corporation or
entity shall at the time be held, directly or indirectly, by such
person.
Section 4.2 Subsidiaries. Section 4.2 of the CYBEX
Disclosure Schedule sets forth a description as of the date
hereof, of all subsidiaries and joint ventures of CYBEX,
including the name of each such entity and CYBEX's interest
therein. Except as set forth in Section 4.2 of the CYBEX
Disclosure Schedule, none of CYBEX's Subsidiaries is a "public
utility company," a "holding company," a "subsidiary company" or
an "affiliate" of any public utility company within the meaning
of Section 2(a)(5), 2(a)(7), 2(a)(8) or 2(a)(11) of the Public
Utility Holding Company Act of 1935, as amended (the "1935 Act"),
respectively. Except as set forth in Section 4.2 of the CYBEX
Disclosure Schedule, all of the issued and outstanding shares of
capital stock of each of CYBEX's Subsidiaries are validly issued,
<PAGE>
fully paid, nonassessable and free of preemptive rights, and are
owned, directly or indirectly, by CYBEX free and clear of any
liens, claims, encumbrances, security interests, equities,
charges and options of any nature whatsoever and there are no
outstanding subscriptions, options, calls, contracts, voting
trusts, proxies or other commitments, understandings,
restrictions, arrangements, rights or warrants, including any
right of conversion or exchange under any outstanding security,
instrument or other agreement, obligating any such Subsidiary
to issue, deliver or sell, or cause to be issued, delivered
or sold, additional shares of its capital stock or obligating
it to grant, extend or enter into any such agreement or commitment.
Section 4.3 Capitalization. As of the date hereof,
the authorized capital stock of CYBEX consists of 15,000,000
common shares, $.10 par value ("CYBEX Common Shares"), and
500,000 preferred shares, $1.00 par value ("CYBEX Preferred
Shares"). At the close of business on December 20, 1996, (i)
4,362,232 CYBEX Common Shares were outstanding, not more than
499,213 CYBEX Common Shares were reserved for issuance pursuant
to CYBEX's Amended and Restated 1987 Stock Option Plan, 1995
Omnibus Incentive Plan and 1995 Stock Retainer Plan for
Nonemployee Directors (such Plans, collectively, the "CYBEX Stock
Plans"), of which 181,571 shares were subject to existing options
or rights, (ii) 145,820 CYBEX Common Shares were held by CYBEX in
its treasury, (iii) no CYBEX Common Shares were held by its
Subsidiaries, (iv) no CYBEX Preferred Shares were outstanding and
(v) no bonds, debentures, notes or other indebtedness having the
right to vote (or convertible into securities having the right to
vote) on any matters on which stockholders may vote ("Voting
Debt") were issued or outstanding. All outstanding CYBEX Common
Shares are validly issued, fully paid and nonassessable and are
not subject to preemptive rights. Section 4.3 of the CYBEX
Disclosure Schedule includes a list of each outstanding option
and right at December 20, 1996 existing under the CYBEX Stock
Plans, including the name of the holder of such option or right,
the number of shares subject thereto, the exercise price of such
option, the portion thereof which is vested at December 20, 1996
and, if the exercisability of such option or right may be
accelerated in any way by the transactions contemplated by this
Agreement or for any other reason, an indication of the extent of
such acceleration. As of the date of this Agreement, except
pursuant to this Agreement, the CYBEX Stock Plans and the Rights
Agreement, dated as of May 23, 1988 and amended as of March 15,
1989, between CYBEX and Registrar and Transfer Company (the
"CYBEX Rights Agreement"), there are no options, warrants, calls,
rights, commitments or agreements of any character to which CYBEX
or any Subsidiary is a party or by which it is bound obligating
CYBEX or any Subsidiary to issue, deliver or sell, or cause to be
issued, delivered or sold, additional shares of capital stock or
<PAGE>
any Voting Debt securities of CYBEX or any Subsidiary or
obligating CYBEX or any Subsidiary to grant, extend or enter into
any such option, warrant, call, right or agreement. Except for
the outstanding options and rights under the CYBEX Stock Plans
and the CYBEX Rights Agreement, as described in the CYBEX
Disclosure Schedule, after the Effective Time, there will be no
option, warrant, call, right or agreement obligating CYBEX or any
Subsidiary to issue, deliver or sell, or cause to be issued,
delivered or sold, any shares of capital stock or any Voting Debt
of CYBEX or any Subsidiary, or obligating CYBEX or any Subsidiary
to grant, extend or enter into any such option, warrant, call,
right or agreement.
Section 4.4 Authority; Non-Contravention; Statutory
Approvals; Compliance.
(a) Authority. CYBEX has all requisite power and
authority to enter into this Agreement, and, subject to the
applicable CYBEX Shareholders' Approval (as defined in Section
4.12) and the applicable CYBEX Required Statutory Approvals (as
defined in Section 4.4(c)), to consummate the transactions
contemplated hereby or thereby. The execution and delivery of
this Agreement and the consummation by CYBEX of the transactions
contemplated hereby have been duly authorized by all necessary
corporate action on the part of CYBEX, subject to obtaining the
applicable CYBEX Shareholders' Approval. This Agreement has been
duly and validly executed and delivered by CYBEX and, assuming
the due authorization, execution and delivery hereof by the other
signatories hereto, constitutes the valid and binding obligation
of CYBEX enforceable against it in accordance with its terms.
(b) Non-Contravention. Except as set forth in Section
4.4(b) of the CYBEX Disclosure Schedule, the execution and
delivery of this Agreement by CYBEX does not, and the
consummation of the transactions contemplated hereby will not, in
any material respect, violate, conflict with or result in a
material breach of any provision of, or constitute a material
default (with or without notice or lapse of time or both) under,
or result in the termination or modification of, or accelerate
the performance required by, or result in a right of termination,
cancellation or acceleration of any obligation or the loss of a
material benefit under, or result in the creation of any material
lien, security interest, charge or encumbrance upon any of the
properties or assets of CYBEX or any of its Subsidiaries (any
such violation, conflict, breach, default, right of termination,
modification, cancellation or acceleration, loss or creation, a
"Violation" with respect to CYBEX, such term when used in Article
V having a correlative meaning with respect to Trotter) pursuant
<PAGE>
to any provisions of (i) the certificate of incorporation, by-
laws or similar governing documents of CYBEX or any of its
Subsidiaries, (ii) subject to obtaining the CYBEX Required
Statutory Approvals and the receipt of the CYBEX Shareholders'
Approval, any statute, law, ordinance, rule, regulation,
judgment, decree, order, injunction, writ, permit or license of
any Governmental Authority (as defined in Section 4.4(c))
applicable to CYBEX or any of its Subsidiaries or any of their
respective properties or assets, (iii) subject to obtaining the
third-party consents set forth in Section 4.4(b) of the CYBEX
Disclosure Schedule (the "CYBEX Required Consents"), any material
note, bond, mortgage, indenture, deed of trust, license,
franchise, permit, concession, contract, lease or other
instrument, obligation or agreement of any kind to which CYBEX or
any of its Subsidiaries is a party or by which it or any of its
properties or assets may be bound or affected, or (iv) the CYBEX
Rights Agreement, except in the case of clause (ii) or (iii) for
any such violation which would not have a CYBEX Material Adverse
Effect (as defined in Section 4.6).
(c) Consents of Third Parties. No declaration, filing
or registration with, or notice to or authorization, consent or
approval of any court, federal, state, local or foreign gov-
ernmental or regulatory body (including a stock exchange or other
self-regulatory body) or authority (each, a "Governmental
Authority") or any individual, corporation, partnership, firm,
joint venture, association, joint stock company, trust,
unincorporated organization or other entity (each a "Person") is
necessary for the execution and delivery of this Agreement by
CYBEX or the consummation by CYBEX of the transactions
contemplated hereby, except as described in Section 4.4(c) of the
CYBEX Disclosure Schedule or the failure of which to obtain would
not result in a CYBEX Material Adverse Effect (the "CYBEX
Required Statutory Approvals").
(d) Compliance. Except as set forth in Section
4.4(d), Section 4.10 or Section 4.11 of the CYBEX Disclosure
Schedule, or as disclosed in the CYBEX SEC Reports (as defined in
Section 4.5) filed prior to the date hereof, neither CYBEX nor
any of its Subsidiaries is in violation of, is under
investigation with respect to any violation of, or has been given
notice or been charged with any violation of, any law, statute,
order, rule, regulation, ordinance or judgment (including,
without limitation, any applicable environmental law, ordinance
or regulation) of any Governmental Authority, except for possible
violations which individually or in the aggregate would not have
a CYBEX Material Adverse Effect. Except as set forth in Section
4.4(d) of the CYBEX Disclosure Schedule or in Section 4.11 of the
CYBEX Disclosure Schedule, CYBEX and its Subsidiaries have all
permits, licenses, franchises and other governmental
authorizations, consents and approvals necessary to conduct their
<PAGE>
businesses as presently conducted which are material to the
operation of the businesses of CYBEX and its Subsidiaries.
Except as set forth in Section 4.4(d) of the CYBEX Disclosure
Schedule, CYBEX and each of its Subsidiaries is not in breach or
violation of or in default in the performance or observance of
any term or provision of, and no event has occurred which, with
lapse of time or action by a third party, could result in a
default under (i) its certificate of incorporation or by-laws or
(ii) any contract, commitment, agreement, indenture, mortgage,
loan agreement, note, lease, bond, license, approval or other
instrument to which it is a party or by which it is bound or to
which any of its property is subject, except for possible
violations, breaches or defaults which individually or in the
aggregate would not have a CYBEX Material Adverse Effect.
Section 4.5 Reports and Financial Statements. The
filings required to be made by CYBEX and its Subsidiaries since
January 1, 1993 under the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), have been
filed with the SEC, including all forms, statements, reports,
agreements (oral or written) and all documents, exhibits,
amendments and supplements appertaining thereto, and complied, as
of their respective dates, and all such reports and documents
filed with the SEC after the date of this Agreement and
prior to the Effective Time will comply as of their respective
date, in all material respects with all applicable
requirements of the appropriate statute and the rules
and regulations thereunder, except for such filings the failure
of which to have been made would not result in a CYBEX Material
Adverse Effect. CYBEX has made available, and with respect to
filings with the SEC after the date of this Agreement and prior
to the Effective Time, will make available, to Trotter a true and
complete copy of each report, schedule, registration statement
and definitive proxy statement filed by CYBEX pursuant to the
requirements of the Securities Act or Exchange Act with the SEC
since January 1, 1993 (as such documents have since the time of
their filing been amended, the "CYBEX SEC Reports"). As of their
respective dates, the CYBEX SEC Reports did not and will not
contain any untrue statement of a material fact or omit 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 audited consolidated
financial statements and unaudited interim financial statements
of CYBEX included and to be included in the CYBEX SEC Reports
(collectively, the "CYBEX Financial Statements") are complete and
correct in all material respects and have been prepared and will
be prepared in accordance with generally accepted accounting
principles applied on a consistent basis ("GAAP") (except as may
be indicated therein or in the notes thereto and except with
respect to unaudited statements as permitted by Rule 10-01 of
Regulation S-X of the SEC) and in conformity with the practices
<PAGE>
consistently applied by CYBEX without modification of the
accounting principles used in the preparation thereof and fairly
present the financial position of CYBEX as of the dates thereof
and the results of its operations and cash flows for the periods
then ended, subject, in the case of the unaudited interim
financial statements, to (i) normal, recurring audit adjustments,
(ii) required footnotes and (iii) statement of cash flows.
Section 4.6 Absence of Certain Changes or Events.
Except as disclosed in the CYBEX SEC Reports filed prior to the
date hereof or as set forth in Section 4.6 of the CYBEX
Disclosure Schedule, since October 1, 1996:
(i) CYBEX and each of its Subsidiaries have
conducted their business only in the ordinary course of
business consistent with past practice;
(ii) there has not been, and no fact or condition
exists which would have or, insofar as reasonably can be
foreseen, could have, a material adverse effect on the
business, assets, financial condition or results of
operations of CYBEX and its Subsidiaries taken as a whole or
which could delay or prevent the transactions contemplated
hereby (a "CYBEX Material Adverse Effect");
(iii) there has not been any damage, destruction or
loss, whether or not covered by insurance, with respect to
the property and assets of CYBEX or any Subsidiary having a
replacement cost of more than $50,000 for any single loss or
$100,000 for all such losses;
(iv) there has not been any declaration, setting
aside or payment of any dividend or other distribution in
respect of any shares of capital stock of CYBEX or any
repurchase, redemption or other acquisition by CYBEX or any
Subsidiary of any outstanding shares of capital stock or
other securities of, or other ownership interest in, CYBEX
or any Subsidiary;
(v) neither CYBEX nor any Subsidiary has awarded
or paid any bonuses to employees of CYBEX or any Subsidiary
with respect to the fiscal year ended December 31, 1995,
entered into any employment, deferred compensation,
severance or similar agreement (nor amended any such
agreement) or agreed to increase the compensation payable or
to become payable by it to any of CYBEX's or any
<PAGE>
Subsidiary's directors, officers, employees, agents or
representatives or agreed to increase the coverage or bene-
fits available under any severance pay, termination pay,
vacation pay, company awards, salary continuation for dis-
ability, sick leave, deferred compensation, bonus or other
incentive compensation, insurance, pension or other employee
benefit plan, payment or arrangement made to, for or with
such directors, officers, employees, agents or representa-
tives (other than normal increases in the ordinary course of
business consistent with past practice and that in the
aggregate have not resulted in a material increase in the
benefits or compensation expense of CYBEX and its
Subsidiaries taken as a whole);
(vi) there has not been any material change by
CYBEX or any Subsidiary in accounting or tax reporting
principles, methods or policies;
(vii) neither CYBEX nor any Subsidiary has failed
to promptly pay and discharge current liabilities except
where disputed in good faith by appropriate proceedings;
(viii) neither CYBEX nor any Subsidiary has made any
loans, advances or capital contributions to, or investments
in, any Person or paid any fees or expenses to any affiliate
of CYBEX;
(ix) neither CYBEX nor any Subsidiary has
mortgaged, pledged or subjected to any Lien (as defined in
Section 4.15) any of its assets, or acquired any
assets or sold, assigned, transferred, conveyed, leased or
otherwise disposed of any assets of CYBEX or any Subsidiary,
except for assets acquired or sold, assigned, transferred,
conveyed, leased or otherwise disposed of in the ordinary
course of business consistent with past practice;
(x) neither CYBEX nor any Subsidiary has
discharged or satisfied any Lien, or paid any obligation or
liability (fixed or contingent), except in the ordinary
course of business consistent with past practice and which,
would not have a CYBEX Material Adverse Effect;
(xi) neither CYBEX nor any Subsidiary has canceled
or compromised any debt or claim or amended, canceled,
terminated, relinquished, waived or released any contract or
right except in the ordinary course of business consistent
with past practice and which would not have a CYBEX Material
Adverse Effect;
<PAGE>
(xii) neither CYBEX nor any Subsidiary has made or
committed to make any capital expenditures or capital addi-
tions or betterments in excess of $100,000 individually or
$500,000 in the aggregate;
(xiii) neither CYBEX nor any Subsidiary has in-
stituted or settled any material legal proceeding;
(xiv) neither CYBEX nor any Subsidiary has issued
any capital stock, bonds or other corporate securities or
debt instrument, or granted any options, warrants or other
rights calling for the issuance thereof;
(xv) neither CYBEX nor any Subsidiary has amended
its Certificate of Incorporation or By-Laws except as
contemplated by this Agreement;
(xvi) neither CYBEX nor any Subsidiary has incurred
any bank indebtedness; and
(xvii) CYBEX has not agreed to do anything set forth
in this Section 4.6.
Section 4.7 Litigation. Except as disclosed in the
CYBEX SEC Reports filed prior to the date hereof or as set forth
in Section 4.7, Section 4.9 or Section 4.11 of the CYBEX
Disclosure Schedule, (i) there are no claims, suits, actions or
proceedings, pending or, to the knowledge of CYBEX, threatened,
nor are there, to the knowledge of CYBEX, any investigations
or reviews pending or threatened against, relating to or
affecting CYBEX or any of its Subsidiaries which would have
a CYBEX Material Adverse Effect, (ii) there have not
been any significant developments since October 1, 1996 with
respect to such disclosed claims, suits, actions, proceedings,
investigations or reviews and (iii) there are no judgments,
decrees, injunctions, rules or orders of any court, governmental
department, commission, agency, instrumentality or authority or
any arbitrator applicable to CYBEX or any of its Subsidiaries,
except for such that would not have a CYBEX Material Adverse
Effect.
Section 4.8 Registration Statement; Proxy Statement.
Subject to the accuracy of the representations of Trotter made in
Section 5.8, the Registration Statement shall not, at the time
<PAGE>
the Registration Statement is filed with the SEC and at the time
it becomes effective under the Securities Act, contain any untrue
statements of a material fact or omit to state any material fact
necessary in order to make the statements included therein not
misleading. None of the information supplied or to be supplied
by or on behalf of CYBEX for inclusion or incorporation by
reference in the proxy statement, in definitive form, relating to
the meeting of the CYBEX shareholders to be held in connection
with the issuance of CYBEX Common Shares as provided herein and
the amendment of CYBEX's certificate of incorporation to
authorize additional CYBEX Common Shares (the "Proxy Statement")
will, at the dates mailed to shareholders and at the times of the
meetings of shareholders to be held in connection with the
transactions contemplated by the Merger, 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. The Proxy Statement will comply
as to form in all material respects with the provisions of the
Securities Act and the Exchange Act and the rules and regulations
thereunder.
Section 4.9 Tax Matters. "Taxes," as used in this
Agreement, means any federal, state, county, local or foreign
taxes, charges, fees, levies or other assessments, including all
net income, gross income, sales and use, ad valorem, transfer,
gains, profits, excise, franchise, real and personal property,
gross receipt, capital stock, production, business and
occupation, disability, employment, payroll, license, estimated,
stamp, custom duties, severance or withholding taxes or charges
imposed by any governmental entity, and includes any interest and
penalties (civil or criminal) on or additions to any such taxes.
"Tax Return," as used in this Agreement, means a report, return
or other information required to be supplied to a governmental
entity with respect to Taxes including, where permitted or
required, combined or consolidated returns for any group of
entities that includes CYBEX or any of its Subsidiaries or
Trotter or any of its Subsidiaries, as the case may be.
Except as set forth in Section 4.9 of the CYBEX
Disclosure Schedule:
(a) Filing of Timely Tax Returns. CYBEX and each of
its Subsidiaries have filed (or there has been filed on its
behalf) all Tax Returns required to be filed by each of them
under applicable law, except for those the failure of which to
file would not have a CYBEX Material Adverse Effect. All such
Tax Returns were and are in all material respects true, complete
and correct and filed on a timely basis.
(b) Payment of Taxes. To the best knowledge of CYBEX,
CYBEX and each of its Subsidiaries have, within the time and in
the manner prescribed by law, paid all Taxes that are currently
<PAGE>
due and payable except for those contested in good faith and for
which adequate reserves have been taken.
(c) Tax Reserves. CYBEX and its Subsidiaries have
established on their books and records reserves adequate to pay
all Taxes and reserves for deferred income taxes in accordance
with GAAP, which reserves are included in the CYBEX Balance
Sheet.
(d) Tax Liens. There are no Tax liens upon the assets
of CYBEX or any of its Subsidiaries except liens for Taxes not
yet due.
(e) Withholding Taxes. CYBEX and each of its
Subsidiaries have complied in all material respects with the
provisions of the Code relating to the withholding of Taxes, as
well as similar provisions under any other laws, and have, within
the time and in the manner prescribed by law, withheld from
employee wages and paid over to the proper governmental
authorities all amounts required.
(f) Extensions of Time for Filing Tax Returns.
Neither CYBEX nor any of its Subsidiaries has requested any
extension of time within which to file any Tax Return, which Tax
Return has not since been filed.
(g) Waivers of Statute of Limitations. Neither CYBEX
nor any of its Subsidiaries has executed any outstanding waivers
or comparable consents regarding the application of the statute
of limitations with respect to any Taxes or Tax Returns.
(h) Expiration of Statute of Limitations. The statute
of limitations for the assessment of all Taxes has expired for
all applicable Tax Returns of CYBEX and each of its Subsidiaries
or those Tax Returns have been examined by the appropriate taxing
authorities for all periods through the date hereof, and no
deficiency for any Taxes has been proposed,
asserted or assessed against CYBEX or any of its Subsidiaries
that has not been resolved and paid in full.
(i) Audit, Administrative and Court Proceedings. No
audits or other administrative proceedings or court proceedings
are presently pending with regard to any Taxes or Tax Returns of
CYBEX or any of its Subsidiaries.
(j) Powers of Attorney. No power of attorney
currently in force has been granted by CYBEX or any of its
Subsidiaries concerning any Tax matter.
<PAGE>
(k) Tax Rulings. Neither CYBEX nor any of its
Subsidiaries has received a Tax Ruling (as defined below) or
entered into a Closing Agreement (as defined below) with any
taxing authority that would have a continuing adverse effect
after the Closing Date. "Tax Ruling," as used in this Agreement,
shall mean a written ruling of a taxing authority relating to
Taxes. "Closing Agreement," as used in this Agreement, shall
mean a written and legally binding agreement with a taxing
authority relating to Taxes.
(l) Availability of Tax Returns. CYBEX has made
available to Trotter complete and accurate copies of (i) all Tax
Returns, and any amendments thereto, filed by CYBEX or any of its
Subsidiaries, (ii) all audit reports received from any taxing
authority relating to any Tax Return filed by CYBEX or any of its
Subsidiaries and (iii) any Closing Agreements entered into by
CYBEX or any of its Subsidiaries with any taxing authority.
(m) Tax Sharing Agreements. Neither CYBEX nor any of
its Subsidiaries is a party to any agreement relating to
allocating or sharing of Taxes.
(n) Code Section 280G. Neither CYBEX nor any of its
Subsidiaries is a party to any agreement, contract or arrangement
that could result, on account of the transactions contemplated
hereunder, separately or in the aggregate, in the payment of any
"excess parachute payments" within the meaning of Section 280G of
the Code.
(o) Liability for Others. To the best knowledge of
CYBEX, none of CYBEX or any of its Subsidiaries has any liability
for Taxes of any person other than CYBEX and its Subsidiaries (i)
under Treasury Regulations Section 1.1502-6 (or any similar
provision of state, local or foreign law) as a transferee or
successor, (ii) by contract or (iii) otherwise.
Section 4.10 Employee Matters; ERISA. Except as set
forth in Section 4.10 of the CYBEX Disclosure Schedule:
(a) Benefit Plans. Section 4.10 (a) of the CYBEX Dis-
closure Schedule contains a true and complete list of each
employee benefit plan covering employees, former employees or
directors of CYBEX and each of its Subsidiaries or their
beneficiaries, or providing benefits to such persons in respect
of services provided to any such entity, including, but not
limited to, any employee benefit plans within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of
<PAGE>
1974, as amended ("ERISA") and any severance or change in control
agreement (collectively, the "CYBEX Benefit Plans").
(b) Contributions. All material contributions and
other payments required to be made by CYBEX or any of its
Subsidiaries to any CYBEX Benefit Plan (or to any person pursuant
to the terms thereof) have been made or the amount of such
payment or contribution obligation has been reflected in the
CYBEX Financial Statements.
(c) Qualification; Compliance. Each of the CYBEX
Benefit Plans intended to be "qualified" within the meaning of
Section 401(a) of the Code has been determined by the IRS to be
so qualified, and, to the best knowledge of CYBEX, no
circumstances exist that are reasonably expected by CYBEX to
result in the revocation of any such determination. CYBEX is in
compliance in all material respects with, and each of the CYBEX
Benefit Plans is and has been operated in all material respects
in compliance with, all applicable laws, rules and regulations
governing such plan, including, without limitation, ERISA and the
Code. Each CYBEX Benefit Plan intended to provide for the
deferral of income, the reduction of salary or other
compensation, or to afford other income tax benefits, complies
with the requirements of the applicable provisions of the Code or
other laws, rules and regulations required to provide such income
tax benefits.
(d) Liabilities. With respect to the CYBEX Benefit
Plans, individually and in the aggregate, no event has occurred,
and, to the best knowledge of CYBEX, there does not now exist any
condition or set of circumstances, that could subject CYBEX or
any of its Subsidiaries to any material liability arising under
the Code, ERISA or any other applicable law (including, without
limitation, any liability to any such plan or the Pension Benefit
Guaranty Corporation (the "PBGC")), or under any indemnity
agreement to which CYBEX is a party, excluding liability for
benefit claims and funding obligations payable in the ordinary
course.
(e) Welfare Plans. None of the CYBEX Benefit Plans
that are "welfare plans," within the meaning of Section 3(1) of
ERISA, provides for any retiree benefits, other than continuation
coverage required to be provided under Section 4980B of the Code
or Part 6 of Title I of ERISA.
(f) Documents Made Available. CYBEX has made
available to Trotter a true and correct copy of each collective
bargaining agreement to which CYBEX or any of its Subsidiaries is
<PAGE>
a party or under which CYBEX or any of its Subsidiaries has
obligations and, with respect to each CYBEX Benefit Plan, where
applicable, (i) such plan and summary plan description, (ii) the
most recent annual report filed with the IRS, (iii) each related
trust agreement, insurance contract, service provider or
investment management agreement (including all amendments to each
such document), (iv) the most recent determination of the IRS
with respect to the qualified status of such CYBEX Benefit Plan
and (v) the most recent actuarial report or valuation.
(g) Payments Resulting from Merger. (i) Except as
set forth in Section 4.10(g) of the CYBEX Disclosure Schedule,
the consummation or announcement of any transaction contemplated
by this Agreement will not (either alone or upon the occurrence
of any additional or further acts or events) result in any (A)
payment (whether of severance pay or otherwise) becoming due from
CYBEX or any of its Subsidiaries to any officer, employee, former
employee or director thereof or to the trustee under any "rabbi
trust" or similar arrangement or (B) benefit under any CYBEX
Benefit Plan being established or becoming accelerated, vested or
payable and (ii) neither CYBEX nor any of its Subsidiaries is a
party to (A) any management, employment, deferred compensation,
severance (including any payment, right or benefit resulting from
a change in control), bonus or other contract for personal
services with any officer, director or employee, (B) any
consulting contract with any person who prior to entering into
such contract was a director or officer of CYBEX or (C) any plan,
agreement, arrangement or understanding similar to any of the
foregoing, which with respect to clause (A), (B) and (C) provide
for payment in excess of $10,000 per annum or $50,000 in the
aggregate.
(h) Labor Agreements. Except as set forth in Section
4.10(h) of the CYBEX Disclosure Schedule, as of the date hereof,
neither CYBEX nor any of its Subsidiaries is a party to any
collective bargaining agreement or other labor agreement with any
union or labor organization. To the best knowledge of CYBEX, as
of the date hereof, there is no current union representation
question involving employees of CYBEX or any of its Subsidiaries,
nor does CYBEX know of any activity or proceeding of any labor
organization (or representative thereof) or employee group to
organize any such employees. Except as disclosed in the CYBEX
SEC Reports filed prior to the date hereof or in Section 4.10(h)
of the CYBEX Disclosure Schedule or except to the extent such
would not have a CYBEX Material Adverse Effect, (i) there is no
unfair labor practice, employment discrimination or other
material complaint against CYBEX or any of its Subsidiaries
pending, or to the best knowledge of CYBEX, threatened, (ii)
there is no strike, lockout or material dispute, slowdown or work
stoppage pending, or to the best knowledge of CYBEX,
<PAGE>
threatened against or involving CYBEX and (iii) there is no
proceeding, claim, suit, action or governmental investigation
pending or, to the best knowledge of CYBEX, threatened, in
respect of which any director, officer, employee or agent of
CYBEX or any of its Subsidiaries is or may be entitled to claim
indemnification from CYBEX or such Subsidiary pursuant to their
respective certificates of incorporation or by-laws or as
provided in the indemnification agreements listed in Section
4.10(h) of the CYBEX Disclosure Schedule. Neither CYBEX nor any
Subsidiary has ever been a party to a multi-employer retirement
plan.
Section 4.11 Environmental Protection. Except as set
forth in Section 4.11 of the CYBEX Disclosure Schedule or in the
CYBEX SEC Reports filed prior to the date hereof:
(a) Compliance. CYBEX and each of its Subsidiaries is
in compliance with all applicable Environmental Laws (as defined
in Section 4.11(g)(ii)) except where the failure to so comply
would not have a CYBEX Material Adverse Effect, and neither CYBEX
nor any of its Subsidiaries has received any communication
(written or oral), from any person or Governmental Authority that
alleges that CYBEX or any of its Subsidiaries is not in such
compliance with applicable Environmental Laws.
(b) Environmental Permits. CYBEX and each of its
Subsidiaries has obtained or has applied for all environmental,
health and safety permits and governmental authorizations
(collectively, the "Environmental Permits") necessary for the
construction of their facilities or the conduct of their
operations except where the failure to so obtain would not have a
CYBEX Material Adverse Effect, and all such Environmental Permits
are in good standing or, where applicable, a renewal application
has been timely filed and is pending agency approval and CYBEX
and its Subsidiaries are in material compliance with all terms
and conditions of the Environmental Permits.
(c) Environmental Claims. To the best knowledge of
CYBEX, there is no Environmental Claim (as defined in Section
4.11(g)(i)) which would have a CYBEX Material Adverse Effect
pending (i) against CYBEX or any of its Subsidiaries, (ii)
against any person or entity whose liability for any
Environmental Claim CYBEX or any of its Subsidiaries has or may
have retained or assumed either contractually or by operation of
law or (iii) against any real or personal property or operations
which CYBEX or any of its CYBEX Subsidiaries owns, leases or
manages, in whole or in part.
<PAGE>
(d) Releases. CYBEX has no knowledge of any Releases
(as defined in Section 4.11(g)(iv)) of any Hazardous Material (as
defined in Section 4.11(g)(iii)) that would be reasonably
likely to form the basis of any Environmental Claim against
CYBEX or any of its Subsidiaries, or against any person
or entity whose liability for any Environmental Claim CYBEX or
any of its Subsidiaries has or may have retained or assumed
either contractually or by operation of law except for any
Environmental Claim which would not have a CYBEX Material Adverse
Effect.
(e) Predecessors. CYBEX has no knowledge, with
respect to any predecessor of CYBEX or any of its Subsidiaries,
of any Environmental Claim which would have a CYBEX Material
Adverse Effect pending or threatened, or of any Release of
Hazardous Materials that would be reasonably likely to form the
basis of any Environmental Claim which would have a CYBEX
Material Adverse Effect.
(f) Disclosure. To CYBEX's best knowledge, CYBEX has
disclosed to Trotter all facts which CYBEX reasonably believes
form the basis of an Environmental Claim which would have a CYBEX
Material Adverse Effect.
(g) Definitions. As used in this Agreement:
(i) "Environmental Claim" means any and all
administrative, regulatory or judicial actions, suits,
demands, demand letters, directives, claims, liens,
investigations, proceedings or notices of noncompliance or
violation (written or oral) by any person or entity
(including any Governmental Authority) alleging potential
liability (including, without limitation, potential
responsibility for or liability for enforcement,
investigatory costs, cleanup costs, governmental response
costs, removal costs, remedial costs, natural resources
damages, property damages, personal injuries or penalties)
arising out of, based on or resulting from (A) the presence,
Release or threatened Release into the environment of any
Hazardous Materials at any location, whether or not owned,
operated, leased or managed by CYBEX or any of its
Subsidiaries (for purposes of this Section 4.11) or by
Trotter or any of its Subsidiaries (for purposes of Section
5.11); or (B) circumstances forming the basis of any
violation or alleged violation of any Environmental Law or
(C) any and all claims by any third party seeking damages,
contribution, indemnification, cost recovery, compensation
or injunctive relief resulting from the presence or Release
of any Hazardous Materials.
<PAGE>
(ii) "Environmental Laws" means all federal, state
and local laws, rules and regulations relating to pollution,
the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface
strata) or protection of human health as it relates to the
environment including, without limitation, laws and
regulations relating to Releases or threatened Releases
of Hazardous Materials, or otherwise relating to the
manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous
Materials.
(iii) "Hazardous Materials" means (a) any
petroleum or petroleum products, radioactive materials,
asbestos in any form that is or could become friable, urea
formaldehyde foam insulation and transformers or other
equipment that contain dielectric fluid containing
polychlorinated biphenyls ("PCBs"); (b) any chemicals,
materials or substances which are now defined as or included
in the definition of "hazardous substances," "hazardous
wastes," "hazardous materials," "extremely hazardous
wastes," "restricted hazardous wastes," "toxic substances,"
"toxic pollutants," or words of similar import under any
Environmental Law and (c) any other chemical, material,
substance or waste, exposure to which is now prohibited,
limited or regulated under any Environmental Law in a
jurisdiction in which CYBEX or any of its Subsidiaries
operates (for purposes of this Section 4.11) or in which
Trotter or any of its Subsidiaries operates (for purposes of
Section 5.11).
(iv) "Release" means any release, spill, emission,
leaking, injection, deposit, disposal, discharge, dispersal,
leaching or migration into the atmosphere, soil, surface
water, groundwater or property.
Section 4.12 Vote Required. The approval of (i) the
issuance of CYBEX Common Shares as provided herein and (ii) the
amendment to CYBEX's certificate of incorporation to authorize
additional CYBEX Common Shares and (iii) the amendment to the
CYBEX Stock Plans to authorize an increase in the number of
options issuable thereunder, by a majority of the votes entitled
to be cast by all holders of CYBEX Common Shares (the "CYBEX
Shareholders' Approval") is the only vote of the holders of any
class or series of the capital stock of CYBEX or any of its
Subsidiaries required to approve this Agreement, the Merger and
the other transactions contemplated hereby.
<PAGE>
Section 4.13 Corporate Records.
(a) Organizational Documents. CYBEX has delivered to
Trotter true, correct and complete copies of the certificates of
incorporation (each certified by the Secretary of State or other
appropriate official of the applicable jurisdiction of organ-
ization) and by-laws (each certified by the secretary, assistant
secretary or other appropriate officer of CYBEX) or comparable
organizational documents of CYBEX and each of its Subsidiaries.
(b) Minute Books. The minute books of CYBEX and each
Subsidiary previously made available to Trotter contain complete
and accurate records of all meetings and accurately reflect all
other corporate action of the stockholders and board of directors
(including committees thereof) of CYBEX and its Subsidiaries.
Section 4.14 No Undisclosed Liabilities. Except as
otherwise disclosed in Section 4.6 of the CYBEX Disclosure
Schedule, neither CYBEX nor any Subsidiary has any indebtedness,
obligations or liabilities of any kind (whether accrued,
absolute, contingent or otherwise, and whether due or to become
due) that would have been required to be reflected in, reserved
against or otherwise described in the unaudited balance sheet of
CYBEX as of September 30, 1996 (the "CYBEX Balance Sheet") or in
the notes thereto in accordance with GAAP which was not fully
reflected in, reserved against or otherwise described in the
CYBEX Balance Sheet or the notes thereto or was not incurred in
the ordinary course of business consistent with past practice
since the date of the CYBEX Balance Sheet.
Section 4.15 Real and Personal Property.
(a) Section 4.15 of the CYBEX Disclosure Schedule sets
forth a complete list of (i) all real property and interests in
real property owned in fee by CYBEX and its Subsidiaries
(individually, a "CYBEX Owned Property" and collectively, the
"CYBEX Owned Properties"), and (ii) all real property and inte-
rests in real property leased by CYBEX and its Subsidiaries
(individually, a "CYBEX Real Property Lease" and the real proper-
ties specified in such leases, together with the CYBEX Owned
Properties, being referred to herein individually as a "CYBEX
Property" and collectively as the "CYBEX Properties") as lessee
or lessor. CYBEX and its Subsidiaries have good and marketable
fee title to all CYBEX Owned Property, free and clear of any
lien, pledge, mortgage, deed of trust, security interest, claim,
lease, charge, option, right of first refusal, easement,
servitude, transfer restriction, encumbrance or any other
restriction or limitation whatsoever (collectively, "Liens"),
<PAGE>
except (A) Liens set forth in Section 4.15 of the CYBEX
Disclosure Schedule and (B) Permitted Exceptions (as defined
below). The CYBEX Properties constitute all interests in real
property currently used or currently held for use in connection
with the business of CYBEX and which are necessary for the
continued operation of the business of CYBEX as the business is
currently conducted. CYBEX and its Subsidiaries have a valid and
enforceable leasehold interest under each of the CYBEX Real
Property Leases, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally and subject, as to enforceability,
to general principles of equity (regardless of whether enforce-
ment is sought in a proceeding at law or in equity), and neither
CYBEX nor any Subsidiary has knowledge of any default or event
that with notice or lapse of time, or both, would constitute a
default by CYBEX or any Subsidiary under any of the CYBEX Real
Property Leases. All of the CYBEX Properties,
buildings, fixtures and improvements thereon owned or leased by
CYBEX and its Subsidiaries are in good operating condition and
repair (subject to normal wear and tear). CYBEX has delivered or
otherwise made available to Trotter true, correct and complete
copies of (i) all deeds, title reports and surveys for the CYBEX
Owned Properties and (ii) the CYBEX Real Property Leases,
together with all amendments, modifications or supplements, if
any, thereto. "Permitted Exceptions" means (i) all defects,
exceptions, restrictions, easements, rights of way and
encumbrances disclosed in policies of title insurance which have
been made available to Trotter (in the case of CYBEX's property)
or CYBEX (in the case of Trotter's property); (ii) statutory
liens for current taxes, assessments or other governmental
charges not yet delinquent or the amount or validity of which is
being contested in good faith by appropriate proceedings,
provided an appropriate reserve is established therefor; (iii)
mechanics', carriers', workers', repairers' and similar Liens
arising or incurred in the ordinary course of business that are
not material to the business, operations and financial condition
of the property so encumbered or CYBEX or Trotter, as the case
may be; (iv) zoning, entitlement and other land use and
environmental regulations by any Governmental Body, provided that
such regulations have not been violated; and (v) such other
imperfections in title, charges, easements, restrictions and
encumbrances which do not materially detract from the value of or
materially interfere with the present use of any property subject
thereto or affected thereby.
(b) CYBEX and its Subsidiaries have good and
marketable title to all of their respective tangible personal
properties and assets, free and clear of all Liens except
Permitted Exceptions. Such properties and assets are in good
operating condition and repair (subject to normal wear and tear).
<PAGE>
Section 4.16 Intangible Property.
(a) Section 4.16 of the CYBEX Disclosure Schedule
contains a list of each patent, registered trademark, trade name,
registered service mark and registered copyright owned by or
licensed to CYBEX and/or its Subsidiaries and pending
applications therefor, and each license or other agreement
relating thereto. Except as set forth in Section 4.16 of the
CYBEX Disclosure Schedule, each of the foregoing is owned by the
party shown on such Schedule as owning the same, free and clear
of all mortgages, claims, liens, security interests, charges and
encumbrances and is in good standing and not the subject of any
challenge or, reexamination, interference or opposition
proceeding.
(b) Except as set forth in Section 4.16 of the CYBEX
Disclosure Schedule, to the knowledge of CYBEX, all of the
patents, patent applications, trademarks, service marks, trade
names, copyrights, mask work rights, trade secrets, know-how,
proprietary technical information, and computer software (collectively
referred to herein as "Intellectual Property") owned or used by
CYBEX or its Subsidiaries in their business (referred to herein
as the "CYBEX Intellectual Property") are owned by or licensed to
CYBEX or its Subsidiaries using same free and clear of all
mortgages, claims, liens, security interests, charges and
encumbrances.
(c) Except as set forth in Section 4.16 of the CYBEX
Disclosure Schedule, no licenses of rights have been granted to
any person to use, and, to the knowledge of CYBEX, no person is
infringing, any of the CYBEX Intellectual Property and the
business of CYBEX and its Subsidiaries is not operating under
license of any Intellectual Property from, or other obligation to
pay royalties to, any Person. There have been no claims made and
neither CYBEX nor any Subsidiary has received any notice or
otherwise knows or has reason to believe that any of the CYBEX
Intellectual Property is invalid or conflicts with the asserted
rights of others, or that the business of CYBEX or its
Subsidiaries conflicts with or infringes the Intellectual
Property rights of others. There is no claim, suit or proceeding
pending by or against CYBEX or any of its Subsidiaries charging
the infringement of any Intellectual Property.
Section 4.17 Material Contracts. Section 4.17 of the
CYBEX Disclosure Schedule sets forth all of the following
contracts, agreements, indentures, notes, bonds, loans,
instruments, leases, commitments, or other arrangements or
agreements (collectively "Contracts") to which CYBEX or any of
its Subsidiaries is a party or by which it is bound
<PAGE>
(collectively, the "CYBEX Material Contracts"): (i) Contracts
with any current officer or director of CYBEX or any of its
Subsidiaries; (ii) Contracts with any labor union or association
representing any employee of CYBEX or any of its Subsidiaries;
(iii) Contracts pursuant to which any party is required to
purchase or sell a stated portion of its requirements or output
from or to another party; (iv) Contracts for the sale of any of
the assets of CYBEX or any of its Subsidiaries other than in the
ordinary course of business or for the grant to any person of any
preferential rights to purchase any of its assets; (v) joint
venture agreements (vi) material Contracts containing covenants
of CYBEX or any of its Subsidiaries not to compete in any line of
business or with any person in any geographical area or covenants
of any other person not to compete with CYBEX or any of its
Subsidiaries in any line of business or in any geographical area;
(vii) Contracts relating to the acquisition by CYBEX or any of
its Subsidiaries of any operating business or the capital stock
of any other person; (viii) Contracts relating to the borrowing
of money; or (ix) any other Contracts, other than CYBEX Real
Property Leases and ordinary course purchase orders or capital
expenditures, which involve the expenditure of more than $150,000
in the aggregate or $100,000 annually or require performance by
any party more than one year from the date hereof. There have
been made available to Trotter, its affiliates and their
representatives true and complete copies of all of the CYBEX
Material Contracts. Except as set forth in Section 4.17 of the
CYBEX Disclosure Schedule, all of the CYBEX Material Contracts and
other agreements are in full force and effect and are the legal, valid
and binding obligation of CYBEX and/or its Subsidiaries,
enforceable against them in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally
and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a
proceeding at law or in equity). Except as set forth in Section
4.17 of the CYBEX Disclosure Schedule, neither CYBEX nor any
Subsidiary is in default in any material respect under any CYBEX
Material Contract, nor, to the knowledge of CYBEX, is any other
party to any CYBEX Material Contract in default thereunder in any
material respect.
Section 4.18 Related Party Transactions. Except as
set forth in Section 4.18 of the CYBEX Disclosure Schedule,
neither CYBEX nor any of its affiliates has borrowed any moneys
from or has outstanding any indebtedness or other similar obli-
gations to CYBEX. Except as set forth in Section 4.18 of the
CYBEX Disclosure Schedule, neither CYBEX, any Subsidiary of
CYBEX, any affiliate of CYBEX nor any officer or employee of any
of them (i) owns any direct or indirect interest of any kind in,
or controls or is a director, officer, employee or partner of, or
<PAGE>
consultant to, or lender to or borrower from or has the right to
participate in the profits of, any Person which is (A) a compe-
titor, supplier, customer, landlord, tenant, creditor or debtor
of CYBEX or any of its Subsidiaries, (B) engaged in a business
related to the business of CYBEX or any of its Subsidiaries, or
(C) a participant in any transaction to which CYBEX or any of its
Subsidiaries is a party or (ii) is a party to any Contract with
CYBEX or any of its Subsidiaries.
Section 4.19 Opinion of Financial Advisor. The Board
of Directors of CYBEX has received the opinion of Smith Barney
Inc. ("Smith Barney"), dated the date of this Agreement, to the
effect that, as of such date, the Total Merger Consideration is
fair from a financial point of view to CYBEX.
Section 4.20 Insurance. Except as set forth in
Section 4.20 of the CYBEX Disclosure Schedule, CYBEX and each of
its Subsidiaries is, and has been continuously since January 1,
1993, insured with financially responsible insurers in such
amounts and against such risks and losses as are customary in all
material respects for companies conducting the business as
conducted by CYBEX and its Subsidiaries during such time period.
Except as set forth in Section 4.20 of the CYBEX Disclosure
Schedule, neither CYBEX nor any of its Subsidiaries has received
any notice of cancellation or termination with respect to any
material insurance policy of CYBEX or any of its Subsidiaries.
The insurance policies of CYBEX and each of its Subsidiaries
are valid and enforceable policies in all material respects.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF TROTTER
Trotter represents and warrants to CYBEX as follows:
Section 5.1 Organization and Qualification. Except
as set forth in Section 5.1 of the schedule delivered by Trotter
on the date hereof (the "Trotter Disclosure Schedule"), each of
Trotter and each of its Subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization, has all
requisite corporate power and authority, and has been duly
authorized by all necessary approvals and orders to own, lease
and operate its assets and properties to the extent owned, leased
and operated and to carry on its business as it is now being
conducted and is duly qualified and in good standing to do
business in each jurisdiction in which the nature of its business
<PAGE>
or the ownership or leasing of its assets and properties makes
such qualification necessary other than in such jurisdictions
where the failure so to qualify would not have a material adverse
effect on Trotter and its Subsidiaries taken as a whole.
Section 5.2 Subsidiaries. Section 5.2 of the
Trotter Disclosure Schedule sets forth a description as of the
date hereof of all Subsidiaries and joint ventures of Trotter,
including the name of each such entity and Trotter's interest
therein. Except as set forth in Section 5.2 of the Trotter
Disclosure Schedule, none of Trotter's Subsidiaries is a "public
utility company," a "holding company," a "subsidiary company" or
an "affiliate" of any public utility company within the meaning
of Section 2(a)(5), 2(a)(7), 2(a)(8) or 2(a)(11) of the 1935 Act,
respectively. Except as set forth in Section 5.2 of the Trotter
Disclosure Schedule, all of the issued and outstanding shares of
capital stock of each of Trotter's Subsidiaries are validly
issued, fully paid, nonassessable and free of preemptive rights,
and are owned, directly or indirectly, by Trotter free and clear
of any liens, claims, encumbrances, security interests, equities,
charges and options of any nature whatsoever and there are no
outstanding subscriptions, options, calls, contracts, voting
trusts, proxies or other commitments, understandings,
restrictions, arrangements, rights or warrants, including any
right of conversion or exchange under any outstanding security,
instrument or other agreement, obligating any such Subsidiary to
issue, deliver or sell, or cause to be issued, delivered or sold,
additional shares of its capital stock or obligating it to grant,
extend or enter into any such agreement or commitment.
Section 5.3 Capitalization. As of the date hereof,
the authorized capital stock of Trotter consists of 4,750,000
shares of common stock, $.01 par value ("Trotter Common Stock"),
and no preferred stock. At the close of business on December 26,
1996, (i) 3,800,000 shares of Trotter Common Stock were
outstanding, not more than 1,488,000 shares of Trotter Common
Stock were reserved for issuance pursuant to Trotter's 1993 Non-
Qualified Stock Option Plan, 1994 Stock Option Plan and options
for directors (collectively, the "Trotter Stock Plans"), of which
388,500 shares were subject to existing options, (ii) no shares
of Trotter Common Stock were held by Trotter in its treasury or
by its Subsidiaries, (iii) no shares of Trotter Preferred Stock
were outstanding, and (iv) no Voting Debt is issued or
outstanding. All outstanding shares of Trotter Common Stock are
validly issued, fully paid and nonassessable and are not subject
to preemptive rights. Section 5.3 of the Trotter Disclosure
Schedule includes a list of each outstanding option and right at
December 26, 1996 existing under the Trotter Stock Plans,
including the name of the holder of such option or right, the
number of shares subject thereto, the exercise price of such
option, the portion thereof which is vested at December 26, 1996
and, if the exercisability of such option or right may be
<PAGE>
accelerated in any way by the transactions contemplated by this
Agreement or for any other reason, an indication of the extent of
such acceleration. As of the date of this Agreement, except
pursuant to the Trotter Stock Plans, there are no options,
warrants, calls, rights, commitments or agreements of any
character to which Trotter or any Subsidiary is a party or by
which it is bound obligating Trotter or any Subsidiary to issue,
deliver or sell, or cause to be issued, delivered or sold,
additional shares of capital stock or any Voting Debt securities
of Trotter or any Subsidiary or obligating Trotter or any
Subsidiary to grant, extend or enter into any such option,
warrant, call, right or agreement. Except for the outstanding
options under the Trotter Stock Plans as described in the Trotter
Disclosure Schedule, after the Effective Time, there will be no
option, warrant, call, right or agreement obligating Trotter or
any Subsidiary to issue, deliver or sell, or cause to be issued,
delivered or sold, any shares of capital stock or any Voting Debt
of Trotter or any Subsidiary, or obligating Trotter or any
Subsidiary to grant, extend or enter into any such option,
warrant, call, right or agreement.
Section 5.4 Authority; Non-Contravention; Statutory
Approvals; Compliance.
(a) Authority. Trotter has all requisite power and
authority to enter into this Agreement and, subject to the
applicable Trotter Required Statutory Approvals (as defined in
Section 5.4(c)), to consummate the transactions contemplated
hereby or thereby. The execution and delivery of this Agreement
and the consummation by Trotter of the transactions contemplated
hereby and thereby have been duly authorized by all necessary
corporate action on the part of Trotter. This Agreement has been
duly and validly executed and delivered by Trotter and, assuming
the due authorization, execution and delivery hereof
by the other signatories hereto, constitutes the valid and
binding obligation of Trotter enforceable against it in
accordance with its terms.
(b) Non-Contravention. Except as set forth in Section
5.4(b) of the Trotter Disclosure Schedule, the execution and
delivery of this Agreement by Trotter does not, and the
consummation of the transactions contemplated hereby will not,
result in a material Violation pursuant to any provisions of (i)
the certificate of incorporation, by-laws or similar governing
documents of Trotter or any of the its Subsidiaries, (ii) subject
to obtaining the Trotter Required Statutory Approvals, any
statute, law, ordinance, rule, regulation, judgment, decree,
order, injunction, writ, permit or license of any Governmental
Authority applicable to Trotter or any of its Subsidiaries or any
of their respective properties or assets or (iii) subject to
<PAGE>
obtaining the third-party consents set forth in Section 5.4(b) of
the Trotter Disclosure Schedule (the "Trotter Required
Consents"), any material note, bond, mortgage, indenture, deed of
trust, license, franchise, permit, concession, contract, lease or
other instrument, obligation or agreement of any kind to which
Trotter or any of its Subsidiaries is a party or by which it or
any of its properties or assets may be bound or affected, except
in the case of clause (ii) or (iii) for any such Violation which
would not have a Trotter Material Adverse Effect (as defined in
Section 5.6).
(c) Consents of Third Parties. No declaration, filing
or registration with, or notice to or authorization, consent or
approval of, any Person or Governmental Authority is necessary
for the execution and delivery of this Agreement by Trotter or
the consummation by Trotter of the transactions contemplated
hereby, except as described in Section 5.4(c) of the Trotter
Disclosure Schedule or the failure of which to obtain would not
result in a Trotter Material Adverse Effect (the "Trotter
Required Statutory Approvals").
(d) Compliance. Except as set forth in Section
5.4(d), Section 5.10 or Section 5.11 of the Trotter Disclosure
Schedule, neither Trotter nor any of its Subsidiaries is in
violation of, is under investigation with respect to any
violation of, or has been given notice or been charged with any
violation of, any law, statute, order, rule, regulation,
ordinance or judgment (including, without limitation, any
applicable environmental law, ordinance or regulation) of any
Governmental Authority except for possible violations which
individually or in the aggregate would not have a Trotter
Material Adverse Effect. Except as set forth in Section 5.4(d)
of the Trotter Disclosure Schedule or in Section 5.11 of the
Trotter Disclosure Schedule, Trotter and its Subsidiaries have
all permits, licenses, franchises and other governmental
authorizations, consents and approvals necessary to conduct their
businesses as presently conducted which are material to the
operation of the businesses of Trotter and its Subsidiaries.
Except as set forth in Section 5.4(d) of the Trotter Disclosure
Schedule, Trotter and each of its Subsidiaries is not in breach
or violation of or in default in the performance or observance
of any term or provision of, and no event has occurred which, with
lapse of time or action by a third party, could result in a default
under (i) its certificate of incorporation or by-laws or (ii) any
contract, commitment, agreement, indenture, mortgage, loan agreement,
note, lease, bond, license, approval or other instrument to which it
is a party or by which it is bound or to which any of its property is
subject except for possible violations, breaches or defaults
which individually or in the aggregate would not have a Trotter
Material Adverse Effect.
<PAGE>
Section 5.5 Financial Statements. Trotter has
delivered to CYBEX copies of (i) the audited consolidated balance
sheets of Trotter and its Subsidiaries as at December 31, 1995,
1994 and 1993 and the related audited consolidated statements of
income and of cash flows of Trotter and its Subsidiaries for the
years then ended and (ii) the unaudited consolidated balance
sheet of the Trotter and its Subsidiaries as at September 30,
1996 and the related consolidated statements of income of Trotter
and its Subsidiaries for the nine month period then ended and
Trotter will deliver to CYBEX copies of the audited consolidated
balance sheets of Trotter and its Subsidiaries as at December 31,
1996 and the related audited consolidated statements of income
and of cash flows of Trotter and its Subsidiaries for the year
then ended (such audited and unaudited statements, including the
related notes and schedules thereto, are referred to herein as
the "Trotter Financial Statements"). Each of the Trotter
Financial Statements is complete and correct in all material
respects, has been prepared and will be prepared in accordance
with GAAP (subject to normal year-end adjustments in the case of
the unaudited statements) and in conformity with the practices
consistently applied by Trotter without modification of the
accounting principles used in the preparation thereof and fairly
present the financial position, of Trotter and its Subsidiaries
as of the dates thereof and the results of its operations and
cash flows for the periods then ended, subject, in the case of
the unaudited interim financial statements, to (i) normal,
recurring, audit adjustments, (ii) required footnotes and (iii)
statement of cash flows.
For the purposes hereof, the unaudited consolidated
balance sheet of Trotter and its Subsidiaries as at September 30,
1996 is referred to as the "Trotter Balance Sheet" and
September 30, 1996 is referred to as the "Trotter Balance Sheet
Date."
Section 5.6 Absence of Certain Changes or Events.
Except as set forth in Section 5.6 of the Trotter Disclosure
Schedule, since the Trotter Balance Sheet Date:
(i) Trotter and each of its Subsidiaries have
conducted their business only in the ordinary course of
business consistent with past practice;
(ii) there has not been, and no fact or condition
exists which would have or, insofar as reasonably can be
foreseen, could have, a material adverse effect on the
business, assets, financial condition, results of operations
or prospects of Trotter and its Subsidiaries taken as a
whole or which could delay or prevent the transactions
contemplated hereby (a "Trotter Material Adverse Effect");
<PAGE>
(iii) there has not been any damage, destruction or
loss, whether or not covered by insurance, with respect to
the property and assets of Trotter or any Subsidiary having
a replacement cost of more than $50,000 for any single loss
or $100,000 for all such losses;
(iv) there has not been any declaration, setting
aside or payment of any dividend or other distribution in
respect of any shares of capital stock of Trotter or any
repurchase, redemption or other acquisition by Trotter or
any Subsidiary of any outstanding shares of capital stock or
other securities of, or other ownership interest in, Trotter
or any Subsidiary;
(v) neither Trotter nor any Subsidiary has
awarded or paid any bonuses to employees of Trotter or any
Subsidiary with respect to the fiscal year ended December
31, 1995, entered into any employment, deferred compens-
ation, severance or similar agreement (nor amended any such
agreement) or agreed to increase the compensation payable or
to become payable by it to any of Trotter's or any
Subsidiary's directors, officers, employees, agents or
representatives or agreed to increase the coverage or bene-
fits available under any severance pay, termination pay,
vacation pay, company awards, salary continuation for dis-
ability, sick leave, deferred compensation, bonus or other
incentive compensation, insurance, pension or other employee
benefit plan, payment or arrangement made to, for or with
such directors, officers, employees, agents or representa-
tives (other than normal increases in the ordinary course of
business consistent with past practice and that in the
aggregate have not resulted in a material increase in the
benefits or compensation expense of Trotter and its
Subsidiaries taken as a whole);
(vi) there has not been any material change by
Trotter or any Subsidiary in accounting or tax reporting
principles, methods or policies;
(vii) neither Trotter nor any Subsidiary has failed
to promptly pay and discharge current liabilities except
where disputed in good faith by appropriate proceedings;
<PAGE>
(viii) neither Trotter nor any Subsidiary has made
any loans, advances or capital contributions to, or
investments in, any Person or paid any fees or expenses to
any affiliate of Trotter;
(ix) neither Trotter nor any Subsidiary has
mortgaged, pledged or subjected to any Lien any of its
assets, or acquired any assets or sold, assigned, trans-
ferred, conveyed, leased or otherwise disposed of any assets
of Trotter or any Subsidiary, except for assets acquired or
sold, assigned, transferred, conveyed, leased or otherwise
disposed of in the ordinary course of business consistent
with past practice;
(x) neither Trotter nor any Subsidiary has
discharged or satisfied any Lien, or paid any obligation or
liability (fixed or contingent), except in the ordinary
course of business consistent with past practice and which,
would not have a Trotter Material Adverse Effect;
(xi) neither Trotter nor any Subsidiary has
canceled or compromised any debt or claim or amended,
canceled, terminated, relinquished, waived or released any
contract or right except in the ordinary course of business
consistent with past practice and which would not have a
Trotter Material Adverse Effect;
(xii) neither Trotter nor any Subsidiary has made
or committed to make any capital expenditures or capital
additions or betterments in excess of $100,000 individually
or $500,000 in the aggregate;
(xiii) neither Trotter nor any Subsidiary has in-
stituted or settled any material legal proceeding;
(xiv) neither Trotter nor any Subsidiary has issued
any capital stock, bonds or other corporate securities or
debt instrument, or granted any options, warrants or other
rights calling for the issuance thereof;
(xv) neither Trotter nor any Subsidiary has
amended its Certificate of Incorporation or By-Laws;
(xvi) neither Trotter nor any Subsidiary has
incurred any bank indebtedness; and
<PAGE>
(xvii) Trotter has not agreed to do anything set
forth in this Section 5.6.
Section 5.7 Litigation. Except as set forth in
Section 5.7, Section 5.9 or Section 5.11 of the Trotter
Disclosure Schedule, (i) there are no claims, suits, actions or
proceedings, pending or, to the knowledge of Trotter, threatened,
nor are there, to the knowledge of Trotter, any investigations or
reviews pending or threatened against, relating to or affecting
Trotter or any of its Subsidiaries which would have a Trotter
Material Adverse Effect, (ii) there have not been any significant
developments since October 1, 1996 with respect to such disclosed
claims, suits, actions, proceedings, investigations or reviews
and (iii) there are no judgments, decrees, injunctions, rules or
orders of any court, governmental department, commission, agency,
instrumentality or authority or any arbitrator applicable to
Trotter or any of its Subsidiaries except for such that would not
have a Trotter Material Adverse Effect.
Section 5.8 Registration Statement; Proxy Statement.
None of the information supplied or to be supplied by or on
behalf of Trotter for inclusion or incorporation by reference in
the Registration Statement or Proxy Statement will, as to the
Registration Statement, at the time if it is filed with the SEC
and at the time it becomes effective under the Securities Act,
and as to the Proxy Statement, at the dates mailed to
shareholders and at the times of the meetings of shareholders to
be held in connection with the Merger, 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.
Section 5.9 Tax Matters. Except as set forth in
Section 5.9 of the Trotter Disclosure Schedule:
(a) Filing of Timely Tax Returns. Trotter and each of
its Subsidiaries have filed (or there has been filed on its
behalf) all Tax Returns required to be filed by each of them
under applicable law except for those the failure of which to
file would not have a Trotter Material Adverse Effect. All such
Tax Returns were and are in all material respects true, complete
and correct and filed on a timely basis.
(b) Payment of Taxes. To the best knowledge of
Trotter, Trotter and each of its Subsidiaries have, within the
time and in the manner prescribed by law, paid all Taxes that are
currently due and payable except for those contested in good
faith and for which adequate reserves have been taken.
<PAGE>
(c) Tax Reserves. Trotter and each of its
Subsidiaries have established on their books and records reserves
adequate to pay all Taxes and reserves for deferred income taxes
in accordance with GAAP which reserves are included in the
Trotter Balance Sheet.
(d) Tax Liens. There are no Tax liens upon the assets
of Trotter or any of its Subsidiaries except liens for Taxes not
yet due.
(e) Withholding Taxes. Trotter and each of its
Subsidiaries have complied in all material respects with the
provisions of the Code relating to the withholding of Taxes, as
well as similar provisions under any other laws, and have, within
the time and in the manner prescribed by law, withheld from
employee wages and paid over to the proper governmental
authorities all amounts required.
(f) Extensions of Time for Filing Tax Returns.
Neither Trotter nor any of its Subsidiaries has requested any
extension of time within which to file any Tax Return, which Tax
Return has not since been filed.
(g) Waivers of Statute of Limitations. Neither
Trotter nor any of its Subsidiaries has executed any outstanding
waivers or comparable consents regarding the application of the
statute of limitations with respect to any Taxes or Tax Returns.
(h) Expiration of Statute of Limitations. The statute
of limitations for the assessment of all Taxes has expired for
all applicable Tax Returns of Trotter and each of its
Subsidiaries or those Tax Returns have been examined by the
appropriate taxing authorities for all periods through the date
hereof, and no deficiency for any Taxes has been proposed,
asserted or assessed against Trotter or any of its Subsidiaries
that has not been resolved and paid in full.
(i) Audit, Administrative and Court Proceedings. No
audits or other administrative proceedings or court proceedings
are presently pending with regard to any Taxes or Tax Returns of
Trotter or any of its Subsidiaries.
(j) Powers of Attorney. No power of attorney
currently in force has been granted by Trotter or any of its
Subsidiaries concerning any Tax matter.
<PAGE>
(k) Tax Rulings. Neither Trotter nor any of its
Subsidiaries has received a Tax Ruling or entered into a Closing
Agreement with any taxing authority that would have a continuing
adverse effect after the Closing Date.
(l) Availability of Tax Returns. Trotter has made
available to CYBEX complete and accurate copies of (i) all Tax
Returns, and any amendments thereto, filed by Trotter or any of
its Subsidiaries, (ii) all audit reports received from any taxing
authority relating to any Tax Return filed by Trotter or any of
its Subsidiaries and (iii) any Closing Agreements entered into by
Trotter or any of its Subsidiaries with any taxing authority.
(m) Tax Sharing Agreements. Except as described in
Section 5.9(m) of the Trotter Disclosure Schedule, neither
Trotter nor any of its Subsidiaries is a party to any agreement
relating to allocating or sharing of Taxes. Trotter has provided
CYBEX with true and correct copies of all documents listed in
Section 5.9(m) of the Trotter Disclosure Schedule and no such
documents will be amended without the consent of the majority of
the non-Trotter parties to such agreements.
(n) Code Section 280G. Neither Trotter nor any of its
Subsidiaries is a party to any agreement, contract or arrangement
that could result, on account of the transactions contemplated
hereunder, separately or in the aggregate, in the payment of any
"excess parachute payments" within the meaning of Section 280G of
the Code.
(o) Liability for Others. To the best knowledge of
Trotter, none of Trotter or any of its Subsidiaries has any
liability for Taxes of any person other than Trotter and its
Subsidiaries (i) under Treasury Regulations Section 1.1502-6 (or
any similar provision of state, local or foreign law) as a
transferee or successor, (ii) by contract, or (iii) otherwise.
(p) Excess Loss Account. On the date hereof there is
no, and at the Effective Time there will not be any, Excess Loss
Account (as such term is defined in Treasury Regulation Section
1.1502-19) with respect to the capital stock of Trotter or any of
its Subsidiaries.
Section 5.10 Employee Matters; ERISA. Except as set
forth in Section 5.10 of the Trotter Disclosure Schedule:
<PAGE>
(a) Benefit Plans. Section 5.10(a) of the Trotter
Disclosure Schedule contains a true and complete list of each
employee benefit plan covering employees, former employees or
directors of Trotter and each of its Subsidiaries or their
beneficiaries, or providing benefits to such persons in respect
of services provided to any such entity, including, but not
limited to, any employee benefit plans within the meaning of
Section 3(3) of ERISA and any severance or change in control
agreement (collectively, the "Trotter Benefit Plans").
(b) Contributions. All material contributions and
other payments required to be made by Trotter or any of its
Subsidiaries to any Trotter Benefit Plan (or to any person
pursuant to the terms thereof) have been made or the amount of
such payment or contribution obligation has been reflected in the
Trotter Financial Statements.
(c) Qualification; Compliance. Each of the Trotter
Benefit Plans intended to be "qualified" within the meaning of
Section 401(a) of the Code has been determined by the IRS to be
so qualified, and, to the best knowledge of Trotter, no
circumstances exist that are reasonably expected by Trotter to
result in the revocation of any such determination. Trotter is
in compliance in all material respects with, and each of the
Trotter Benefit Plans is and has been operated in all material
respects in compliance with, all applicable laws, rules and
regulations governing such plan, including, without limitation,
ERISA and the Code. Each Trotter Benefit Plan intended to
provide for the deferral of income, the reduction of salary or
other compensation, or to afford other income tax benefits,
complies with the requirements of the applicable provisions of
the Code or other laws, rules and regulations required to provide
such income tax benefits.
(d) Liabilities. With respect to the Trotter Benefit
Plans, individually and in the aggregate, no event has occurred,
and, to the best knowledge of Trotter, there does not now exist
any condition or set of circumstances, that could subject Trotter
or any of its Subsidiaries to any material liability arising
under the Code, ERISA or any other applicable law (including,
without limitation, any liability to any such plan or the PBGC),
or under any indemnity agreement to which Trotter is a party,
excluding liability for benefit claims and funding obligations
payable in the ordinary course.
(e) Welfare Plans. None of the Trotter Benefit Plans
that are "welfare plans," within the meaning of Section 3(1) of
ERISA, provides for any retiree benefits, other than continuation
coverage required to be provided under Section 4980B of the Code
or Part 6 of Title I of ERISA.
<PAGE>
(f) Documents Made Available. Trotter has made
available to CYBEX a true and correct copy of each collective
bargaining agreement to which Trotter or any of its Subsidiaries
is a party or under which Trotter or any of its Subsidiaries has
obligations and, with respect to each Trotter Benefit Plan, where
applicable, (i) such plan and summary plan description, (ii) the
most recent annual report filed with the IRS, (iii) each related
trust agreement, insurance contract, service provider or
investment management agreement (including all amendments to each
such document), (iv) the most recent determination of the IRS
with respect to the qualified status of such Trotter Benefit
Plan, and (v) the most recent actuarial report or valuation.
(g) Payments Resulting from Merger. (i) Except as
disclosed in Section 5.10(g) of the Trotter Disclosure Schedule,
the consummation or announcement of any transaction contemplated
by this Agreement will not (either alone or upon the occurrence
of any additional or further acts or events) result in any (A)
payment (whether of severance pay or otherwise) becoming due from
Trotter or any of its Subsidiaries to any officer, employee,
former employee or director thereof or to the trustee under any
"rabbi trust" or similar arrangement, or (B) benefit under any
Trotter Benefit Plan being established or becoming accelerated,
vested or payable and (ii) neither Trotter nor any of its
Subsidiaries is a party to (A) any management, employment,
deferred compensation, severance (including any payment, right or
benefit resulting from a change in control), bonus or other
contract for personal services with any officer, director or
employee, (B) any consulting contract with any person who prior
to entering into such contract was a director or officer of
Trotter, or (C) any plan, agreement, arrangement or understanding
similar to any of the foregoing, which with respect to clause
(A), (B) and (C) provide for payment in excess of $10,000 per
annum or $50,000 in the aggregate.
(h) Labor Agreements. Except as set forth in Section
5.10(h) of the Trotter Disclosure Schedule, as of the date
hereof, neither Trotter nor any of its Subsidiaries is a party to
any collective bargaining agreement or other labor agreement with
any union or labor organization. To the best knowledge of
Trotter, as of the date hereof, there is no current union
representation question involving employees of Trotter or any of
its Subsidiaries, nor does Trotter know of any activity or
proceeding of any labor organization (or representative thereof)
or employee group to organize any such employees. Except as
<PAGE>
disclosed in Section 5.10(h) of the Trotter Disclosure Schedule
or except to the extent such would not have a Trotter Material
Adverse Effect, (i) there is no unfair labor practice, employment
discrimination or other material complaint against Trotter or any
of its Subsidiaries pending, or to the best knowledge of Trotter,
threatened, (ii) there is no strike, lockout or material dispute,
slowdown or work stoppage pending, or to the best knowledge of
Trotter, threatened, against or involving Trotter, and (iii)
there is no proceeding, claim, suit, action or governmental
investigation pending or, to the best knowledge of Trotter,
threatened, in respect of which any director, officer, employee
or agent of Trotter or any of its Subsidiaries is or may be
entitled to claim indemnification from Trotter or such Subsidiary
pursuant to their respective certificates of incorporation or by-
laws or as provided in the indemnification agreements listed in
Section 5.10(h) of the Trotter Disclosure Schedule. Neither
Trotter nor any Subsidiary has ever been a party to a multi-
employer retirement plan.
<PAGE>
Section 5.11 Environmental Protection. Except as set
forth in Section 5.11 of the Trotter Disclosure Schedule:
(a) Compliance. Trotter and each of its Subsidiaries
is in compliance with all applicable Environmental Laws except
where the failure to so comply would not have a Trotter Material
Adverse Effect; and neither Trotter nor any of its Subsidiaries
has received any communication (written or oral), from any person
or Governmental Authority that alleges that Trotter or any of its
Subsidiaries is not in such compliance with applicable
Environmental Laws.
(b) Environmental Permits. Trotter and each of its
Subsidiaries has obtained or has applied for all the En-
vironmental Permits necessary for the construction of their
facilities or the conduct of their operations except where the
failure to so comply would not have a Trotter Material Adverse
Effect, and all such Environmental Permits are in good standing
or, where applicable, a renewal application has been timely filed
and is pending agency approval, and Trotter and its Subsidiaries
are in material compliance with all terms and conditions of the
Environmental Permits.
(c) Environmental Claims. To the best knowledge of
Trotter, there is no Environmental Claim which would have a
Trotter Material Adverse Effect pending (i) against Trotter or
any of its Subsidiaries or joint ventures, (ii) against any
person or entity whose liability for any Environmental Claim
Trotter or any of its Subsidiaries has or may have retained or
assumed either contractually or by operation of law, or
<PAGE>
(iii) against any real or personal property or operations which
Trotter or any of its Subsidiaries owns, leases or manages, in
whole or in part.
(d) Releases. Trotter has no knowledge of any
Releases of any Hazardous Material that would be reasonably
likely to form the basis of any Environmental Claim against
Trotter or any of its Subsidiaries, or against any person or
entity whose liability for any Environmental Claim Trotter or any
of its Subsidiaries has or may have retained or assumed either
contractually or by operation of law except for any Environmental
Claim which would not have a Trotter Material Adverse Effect.
(e) Predecessors. Trotter has no knowledge, with
respect to any predecessor of Trotter or any of its Subsidiaries,
of any Environmental Claim which would have a Trotter Material
Adverse Effect pending or threatened, or of any Release of
Hazardous Materials that would be reasonably likely to form the
basis of any Environmental Claim which would have a Trotter
Material Adverse Effect.
(f) Disclosure. To Trotter's best knowledge, Trotter
has disclosed to CYBEX all facts which Trotter reasonably
believes form the basis of an Environmental Claim which would
have a Trotter Material Adverse Effect.
Section 5.12 Corporate Records.
(a) Organizational Documents. Trotter has delivered
to CYBEX true, correct and complete copies of the certificates of
incorporation (each certified by the Secretary of State or other
appropriate official of the applicable jurisdiction of organ-
ization) and by-laws (each certified by the secretary, assistant
secretary or other appropriate officer of Trotter) or comparable
organizational documents of Trotter and each of its Subsidiaries.
(b) Minute Books. The minute books of Trotter and
each Subsidiary previously made available to CYBEX contain com-
plete and accurate records of all meetings and accurately reflect
all other corporate action of the stockholders and board of
directors (including committees thereof) of Trotter and its
Subsidiaries.
Section 5.13 No Undisclosed Liabilities. Except as
otherwise disclosed in Section 5.6 of the Trotter Disclosure
Schedule, neither Trotter nor any Subsidiary has any
indebtedness, obligations or liabilities of any kind (whether
accrued, absolute, contingent or otherwise, and whether due or to
become due) that would have been required to be reflected in,
<PAGE>
reserved against or otherwise described in the Trotter Balance
Sheet or in the notes thereto in accordance with GAAP which was
not fully reflected in, reserved against or otherwise described
in the Trotter Balance Sheet or the notes thereto or was not
incurred in the ordinary course of business consistent with past
practice since the date of the Trotter Balance Sheet.
Section 5.14 Real and Personal Property.
(a) Section 5.14 of the Trotter Disclosure Schedule
sets forth a complete list of (i) all real property and interests
in real property owned in fee by Trotter and its Subsidiaries
(individually, a "Trotter Owned Property" and collectively, the
"Trotter Owned Properties"), and (ii) all real property and inte-
rests in real property leased by Trotter and its Subsidiaries
(individually, a "Trotter Real Property Lease" and the real
properties specified in such leases, together with the Trotter
Owned Properties, being referred to herein individually as a
"Trotter Property" and collectively as the "Trotter Properties")
as lessee or lessor. Trotter and its Subsidiaries have good and
marketable fee title to all Trotter Owned Property, free and
clear of any Lien except (A) Liens set forth in Section 5.14 of
the Trotter Disclosure Schedule and (B) Permitted Exceptions.
The Trotter Properties constitute all interests in real
property currently used or currently held for
use in connection with the business of Trotter and which are
necessary for the continued operation of the business of Trotter
as the business is currently conducted. Trotter and its
Subsidiaries have a valid and enforceable leasehold interest
under each of the Trotter Real Property Leases, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally
and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a
proceeding at law or in equity), and neither Trotter nor any
Subsidiary has knowledge of any default or event that with notice
or lapse of time, or both, would constitute a default by Trotter
or any Subsidiary under any of the Trotter Real Property Leases.
All of the Trotter Properties, buildings, fixtures and
improvements thereon owned or leased by Trotter and its
Subsidiaries are in good operating condition and repair (subject
to normal wear and tear). Trotter has delivered or otherwise
made available to CYBEX true, correct and complete copies of (i)
all deeds, title reports and surveys for the Trotter Owned
Properties and (ii) the Trotter Real Property Leases, together
with all amendments, modifications or supplements, if any,
thereto.
<PAGE>
(b) Trotter and its Subsidiaries have good and
marketable title to all of their respective tangible personal
properties and assets, free and clear of all Liens except
Permitted Exceptions. Such properties and assets are in good
operating condition and repair (subject to normal wear and tear).
Section 5.15 Intangible Property.
(a) Section 5.15 of the Trotter Disclosure Schedule
contains a list of each patent, registered trademark, trade name,
registered service mark and registered copyright owned by or
licensed to Trotter and/or its Subsidiaries and pending
applications therefor, and each license or other agreement
relating thereto. Except as set forth in Section 5.15 of the
Trotter Disclosure Schedule, each of the foregoing is owned by
the party shown on such Schedule as owning the same, free and
clear of all mortgages, claims, liens, security interests,
charges and encumbrances and is in good standing and not the
subject of any challenge or reexamination, interference or
opposition proceeding.
(b) Except as set forth in Section 5.15 of the Trotter
Disclosure Schedule, to the knowledge of Trotter, all of
Intellectual Property owned or used by Trotter or its
Subsidiaries in their business (referred to herein as the
"Trotter Intellectual Property") is owned by or licensed to
Trotter or its Subsidiaries using same free and clear of all
mortgages, claims, liens, security interests, charges and
encumbrances.
(c) Except as set forth in Section 5.15 of the Trotter
Disclosure Schedule, no licenses of rights have been granted to
any person to use, and, to the knowledge of Trotter, no person is
infringing, any of the Trotter Intellectual Property and the
business of Trotter and its Subsidiaries is not operating under
license of any Intellectual Property from, or other obligation to
pay royalties to, any Person. There have been no claims made and
neither Trotter nor any Subsidiary has received any notice or
otherwise knows or has reason to believe that any of the Trotter
Intellectual Property is invalid or conflicts with the asserted
rights of others, or that the business of Trotter or its
Subsidiaries conflicts with or infringes the Intellectual
Property rights of others. There is no claim, suit or proceeding
pending by or against Trotter or any of its Subsidiaries charging
the infringement of any Intellectual Property.
Section 5.16 Material Contracts. Section 5.16 of the
Trotter Disclosure Schedule sets forth all of the following
Contracts to which Trotter or any of its Subsidiaries is a party
or by which it is bound (collectively, the "Trotter Material
<PAGE>
Contracts"): (i) Contracts with any current officer or director
of Trotter or any of its Subsidiaries; (ii) Contracts with any
labor union or association representing any employee of Trotter
or any of its Subsidiaries; (iii) Contracts pursuant to which any
party is required to purchase or sell a stated portion of its
requirements or output from or to another party; (iv) Contracts
for the sale of any of the assets of Trotter or any of its
Subsidiaries other than in the ordinary course of business or for
the grant to any person of any preferential rights to purchase
any of its assets; (v) joint venture agreements (vi) material
Contracts containing covenants of Trotter or any of its
Subsidiaries not to compete in any line of business or with any
person in any geographical area or covenants of any other person
not to compete with Trotter or any of its Subsidiaries in any
line of business or in any geographical area; (vii) Contracts
relating to the acquisition by Trotter or any of its Subsidiaries
of any operating business or the capital stock of any other
person; (viii) Contracts relating to the borrowing of money; or
(ix) any other Contracts, other than Trotter Real Property
Leases, which involve the expenditure of more than $150,000 in
the aggregate or $25,000 annually or require performance by any
party more than one year from the date hereof. There have been
made available to CYBEX, its affiliates and their representatives
true and complete copies of all of the Trotter Material
Contracts. Except as set forth in Section 5.16 of the Trotter
Disclosure Schedule, all of the Trotter Material Contracts and
other agreements are in full force and effect and are the legal,
valid and binding obligation of Trotter and/or its Subsidiaries,
enforceable against them in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally
and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a
proceeding at law or in equity). Except as set forth in Section
5.16 of the Trotter Disclosure Schedule, neither Trotter nor any
Subsidiary is in default in any material
respect under any Trotter Material Contract, nor, to the
knowledge of Trotter, is any other party to any Trotter Material
Contract in default thereunder in any material respect.
Section 5.17 Related Party Transactions. Except as
set forth in Section 5.17 of the Trotter Disclosure Schedule,
neither Trotter nor any of its affiliates has borrowed any moneys
from or has outstanding any indebtedness or other similar obli-
gations to Trotter. Except as set forth in Section 5.17 of the
Trotter Disclosure Schedule, neither Trotter, any Subsidiary of
Trotter, any affiliate of Trotter nor any officer or employee of
any of them (i) owns any direct or indirect interest of any kind
in, or controls or is a director, officer, employee or partner
of, or consultant to, or lender to or borrower from or has the
right to participate in the profits of, any Person which is (A) a
competitor, supplier, customer, landlord, tenant, creditor or
<PAGE>
debtor of Trotter or any of its Subsidiaries, (B) engaged in a
business related to the business of Trotter or any of its
Subsidiaries, or (C) a participant in any transaction to which
Trotter or any of its Subsidiaries is a party or (ii) is a party
to any Contract with Trotter or any of its Subsidiaries.
Section 5.18 Insurance. Except as set forth in
Section 5.18 of the Trotter Disclosure Schedule, Trotter and each
of its Subsidiaries is, and has been continuously since January
1, 1993, insured with financially responsible insurers in such
amounts and against such risks and losses as are customary in all
material respects for companies conducting the business as
conducted by Trotter and its Subsidiaries during such time
period. Except as set forth in Section 5.18 of the Trotter
Disclosure Schedule, neither Trotter nor any of its Subsidiaries
has received any notice of cancellation or termination with
respect to any material insurance policy of Trotter or any of its
Subsidiaries. The insurance policies of Trotter and each of its
Subsidiaries are valid and enforceable policies in all material
respects.
ARTICLE VI
CONDUCT OF BUSINESS PENDING THE MERGER
Section 6.1 Covenants of the Parties. After the
date hereof and prior to the Effective Time or earlier
termination of this Agreement, CYBEX and Trotter each agree as
follows, each as to itself and to each of its Subsidiaries,
except as expressly contemplated or permitted in this Agreement
or to the extent the other parties hereto shall otherwise consent
in writing, which consent shall not be unreasonably withheld:
(a) Ordinary Course of Business. Except as set forth
in Section 6.1(a) of the CYBEX Disclosure Schedule, each party
hereto shall, and shall cause its Subsidiaries to,
carry on their respective businesses in the usual, regular and
ordinary course in substantially the same manner as heretofore
conducted and use all commercially reasonable efforts to preserve
intact their present business organizations and goodwill,
preserve the goodwill and relationships with customers, suppliers
and others having business dealings with them and, subject to
prudent management of workforce needs and ongoing programs
currently in force, keep available the services of their present
officers and employees and neither party will intentionally take
any action which would cause the representations set forth in
Section 4.6 or 5.6 to be incorrect at the Effective Time.
<PAGE>
(b) Dividends. No party shall, nor shall any party
permit any of its Subsidiaries to, (i) declare or pay any
dividends on or make other distributions in respect of any of
their capital stock other than to such party or its wholly owned
subsidiaries; (ii) split, combine or reclassify any of their
capital stock or issue or authorize or propose the issuance of
any other securities in respect of, in lieu of, or in
substitution for, shares of their capital stock; or (iii) redeem,
repurchase or otherwise acquire any shares of their capital
stock, other than for the purpose of funding employee stock
ownership plans in accordance with past practice.
(c) Issuance of Securities. No party shall, nor shall
any party permit any of its Subsidiaries to, issue, agree to
issue, deliver, sell, award, pledge, dispose of or otherwise
encumber or authorize or propose the issuance, delivery, sale,
award, pledge, disposal or other encumbrance of, any shares of
their capital stock of any class or any securities convertible
into or exchangeable for, or any rights, warrants or options to
acquire, any such shares or convertible or exchangeable
securities, other than intercompany issuances of capital stock,
and other than issuances (1) in the case of CYBEX and its
Subsidiaries, of CYBEX Common Shares pursuant to the exercise of
stock options or rights issued under the CYBEX Stock Plans
outstanding as of the date hereof, and (2) in the case of
Trotter, shares of Trotter Common Stock pursuant to the exercise
of stock options issued under the Trotter Stock Plans outstanding
as of the date hereof and the grant of options on the later of
the Effective Time and March 31, 1997, as indicated in Section
5.3 of the Trotter Disclosure Schedule.
(d) Charter Documents. No party shall amend or
propose to amend its respective certificate of incorporation, by-
laws or regulations, or similar organic documents, except as
contemplated herein.
(e) No Acquisitions. No party shall, nor shall any
party permit any of its Subsidiaries to, acquire, or publicly
propose to acquire, or agree to acquire, by merger or
consolidation with, or by purchase or otherwise, a substantial
equity interest in or a substantial portion of the assets
of, any Person or division thereof, nor shall any party
acquire or agree to acquire a material amount of assets.
(f) Indebtedness. Except as contemplated by this
Agreement, no party shall, nor shall any party permit any of its
Subsidiaries to, incur or guarantee any indebtedness (including
any debt borrowed or guaranteed or otherwise assumed including,
without limitation, the issuance of debt securities or warrants
or rights to acquire debt) or enter into any "keep well" or other
agreement to maintain any financial statement condition of
<PAGE>
another person or enter into any arrangement having the economic
effect of any of the foregoing other than (i) indebtedness or
guarantees in the ordinary course of business consistent with
past practice (such as the issuance of commercial paper, the use
of existing credit facilities or hedging activities); (ii) long-
term indebtedness not aggregating more than $500,000; (iii)
arrangements between such party and its Subsidiaries or among its
Subsidiaries; or (iv) in connection with the refunding of
existing indebtedness.
(g) Compensation, Benefits. Except as set forth in
Section 6.1(g) of the CYBEX Disclosure Schedule or the Trotter
Disclosure Schedule, as may be required by applicable law or as
contemplated by this Agreement, no party shall, nor shall any
party permit any of its Subsidiaries to, (i) enter into, adopt or
amend or increase the amount or accelerate the payment or vesting
of any benefit or amount payable under, any employee benefit plan
or other contract, agreement, commitment, arrangement, plan or
policy maintained by, contributed to or entered into by such
party or any of its Subsidiaries, or increase, or enter into any
contract, agreement, commitment or arrangement to increase in any
manner, the compensation or fringe benefits, or otherwise to
extend, expand or enhance the engagement, employment or any
related rights, of any director, officer or other employee of
such party or any of its Subsidiaries, except for normal
increases in the ordinary course of business consistent with past
practice that, in the aggregate, do not result in a material
increase in benefits or compensation expense to such party or any
of its Subsidiaries or (ii) enter into or amend any employment,
severance or special pay arrangement with respect to the
termination of employment or other similar contract, agreement or
arrangement with any director or officer or other employee other
than in the ordinary course of business consistent with past
practice.
(h) Cooperation, Notification. Each party shall (i)
confer on a regular and frequent basis with one or more
representatives of the other party to discuss, subject to
applicable law, material operational matters and the general
status of its ongoing operations; (ii) promptly notify the other
party of any significant changes in its business, properties,
assets, condition (financial or other), results of operations or
prospects; (iii) advise the other party of any change or event
which has had or, insofar as reasonably can be foreseen, is
reasonably likely to result in, in the case of CYBEX, a CYBEX
Material Adverse Effect or, in the case of Trotter, a Trotter
Material Adverse Effect; and (iv) promptly provide the other
party with copies of all filings made by such party or any of its
Subsidiaries with any state or federal court, administrative
agency, commission or other Governmental Authority in connection
with this Agreement and the transactions contemplated hereby.
<PAGE>
(i) Third-Party Consents. CYBEX shall, and shall
cause its Subsidiaries to, use all commercially reasonable
efforts to obtain all CYBEX Required Consents. CYBEX shall
promptly notify Trotter of any failure or prospective failure to
obtain any such consents and, if requested by Trotter, shall
provide copies of all CYBEX Required Consents obtained by CYBEX
to Trotter. Trotter shall, and shall cause its Subsidiaries to,
use all commercially reasonable efforts to obtain all Trotter
Required Consents. Trotter shall promptly notify CYBEX of any
failure or prospective failure to obtain any such consents and,
if requested by CYBEX, shall provide copies of all Trotter
Required Consents obtained by Trotter to CYBEX.
(j) No Breach, Etc. No party shall, nor shall any
party permit any of its Subsidiaries to, willfully take any
action that would or is reasonably likely to result in a material
breach of any provision of this Agreement, or in any of its
representations and warranties set forth in this Agreement being
untrue on and as of the Closing Date.
(k) Contracts. No party shall, except in the ordinary
course of business consistent with past practice, modify, amend,
terminate, renew or fail to use reasonable business efforts to
renew any material contract or agreement to which such party or
any Subsidiary of such party is a party or waive, release or
assign any material rights or claims.
(l) Insurance. Each party shall, and shall cause its
Subsidiaries to, maintain with financially responsible insurance
companies insurance in such amounts and against such risks and
losses as are customary for companies engaged in the business
conducted by CYBEX and its Subsidiaries and Trotter and its
Subsidiaries, as the case may be.
(m) Permits. Each party shall, and shall cause its
Subsidiaries to, use reasonable efforts to maintain in effect all
existing governmental permits which are material to the
operations of such party or its Subsidiaries.
(n) Proxy Statement; Registration Statement. If at
any time prior to the Effective Time, either CYBEX, Trotter, the
Company or any of their respective affiliates, officers or
directors should discover any information relating to CYBEX,
Trotter or the Company which should be set forth in an amendment
to the Registration Statement or a supplement to the Proxy Statement,
such party shall promptly inform the other parties.
<PAGE>
ARTICLE VII
ADDITIONAL AGREEMENTS
Section 7.1 Access to Information. Upon reasonable
notice, each party shall, and shall cause its Subsidiaries to,
afford to the officers, directors, employees, accountants,
counsel, investment bankers, financial advisors and other rep-
resentatives of the other (collectively, "Representatives")
reasonable access, during normal business hours throughout the
period prior to the Effective Time, to all of its properties,
books, contracts, commitments and records (including, but not
limited to, Tax Returns) and, during such period, each party
shall, and shall cause its Subsidiaries to, furnish promptly to
the other (i) access to each report, schedule and other document
filed or received by it or any of its Subsidiaries pursuant to
the requirements of federal or state securities laws or filed
with or sent to the SEC or any other federal or state regulatory
agency or commission, and (ii) access to all information
concerning themselves, their subsidiaries, directors, officers
and shareholders and such other matters as may be reasonably
requested by the other party in connection with any filings,
applications or approvals required or contemplated by this
Agreement or for any other reason related to the transactions
contemplated by this Agreement. Each party shall, and shall
cause its Subsidiaries and Representatives to, hold in strict
confidence all documents and information concerning the other
furnished to it in connection with the transactions contemplated
by this Agreement in accordance with the Confidentiality
Agreement, dated June 18, 1996, between CYBEX and Trotter, as it
may be amended from time to time (the "Confidentiality
Agreement").
Section 7.2 Proxy Statement; Registration
Statement.
(a) Preparation and Filing. CYBEX will prepare and
file with the SEC as soon as reasonably practicable after the
date hereof the Proxy Statement and the Registration Statement.
CYBEX will use its best efforts to have the Registration
Statement declared effective as soon thereafter as practicable.
The Proxy Statement shall include the recommendations of the
Board of Directors of CYBEX in favor of the Merger, which shall
not be withdrawn, modified or withheld except in compliance with
the fiduciary duties of CYBEX's Board of Directors under
applicable law. Each of the parties hereto shall furnish all
information concerning itself which is required or customary for
inclusion in the Proxy Statement and the Registration Statement.
The information provided by any party hereto for use in the Proxy
Statement or the Registration Statement shall be true and correct
in all
<PAGE>
material respects without omission of any material fact which is
required to make such information not false or misleading. No
representation, covenant or agreement is made by any party hereto
with respect to information supplied by any other party for
inclusion in the Proxy Statement.
(b) Fairness Opinion Not Withdrawn. It shall be a
condition to the obligation of CYBEX to hold the CYBEX Special
Meeting that the opinion of Smith Barney, referred to in Section
4.19, shall not have been withdrawn.
Section 7.3 Regulatory Matters.
(a) HSR Filings. Each party hereto as soon as
reasonably practicable after the date hereof shall file or cause
to be filed with the Federal Trade Commission and the Department
of Justice any notifications required to be filed by their
respective "ultimate parent" companies under the Hart-Scott-
Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), and the rules and regulations promulgated thereunder with
respect to the transactions contemplated hereby. Such parties
will use all commercially reasonable efforts to make such filings
promptly and to respond promptly to any requests for additional
information made by either of such agencies.
(b) Other Regulatory Approvals. Each party hereto
shall cooperate and use its best efforts to promptly prepare and
file all necessary documentation, to effect all necessary
applications, notices, petitions, filings and other documents,
and to use all commercially reasonable efforts to obtain all
necessary permits, consents, approvals and authorizations of all
Governmental Authorities necessary or advisable to obtain the
CYBEX Required Statutory Approvals and the Trotter Required
Statutory Approvals.
Section 7.4 Shareholder Approval. Subject to the
provisions of Section 7.2(b), CYBEX shall, as soon as reasonably
practicable after the date hereof (i) take all steps necessary to
duly call, give notice of, convene and hold a special meeting of
its shareholders (the "CYBEX Special Meeting") for the purpose of
securing the CYBEX Shareholders' Approval and (ii) distribute to
its shareholders the Proxy Statement in accordance with
applicable federal and state law and with its certificate of
incorporation and by-laws.
<PAGE>
Section 7.5 Directors' and Officers'
Indemnification.
(a) Indemnification. To the extent, if any, not
provided by an existing right of indemnification or other
agreement or policy, from and after the Effective Time, the
Company shall, to the fullest extent permitted by applicable law,
indemnify, defend and hold harmless each person who is now, or has
been at any time prior to the date hereof, or who becomes prior to
the Effective Time, an officer, director or employee of any of the
parties hereto or any Subsidiary (each an "Indemnified Party" and
collectively, the "Indemnified Parties") against (i) all losses,
expenses (including reasonable attorney's fees and expenses), claims,
damages or liabilities or, subject to the proviso of the next
succeeding sentence, amounts paid in settlement, arising out of
actions or omissions occurring at or prior to the Effective Time
(and whether asserted or claimed prior to, at or after the
Effective Time) that are, in whole or in part, based on or
arising out of the fact that such person is or was a director,
officer or employee of such party (the "Indemnified
Liabilities"), and (ii) all Indemnified Liabilities to the extent
they are based on or arise out of or pertain to the transactions
contemplated by this Agreement. In the event of any such loss,
expense, claim, damage or liability (whether or not arising
before the Effective Time), (i) the Company shall pay the
reasonable fees and expenses of counsel selected by the
Indemnified Parties, which counsel shall be reasonably
satisfactory to the Company, promptly after statements therefor
are received and otherwise advance to such Indemnified Party upon
request reimbursement of documented expenses reasonably incurred,
in either case to the extent not prohibited by the DGCL, (ii) the
Company will cooperate in the defense of any such matter and
(iii) any determination required to be made with respect to
whether an Indemnified Party's conduct complies with the
standards set forth under the DGCL and the certificate of
incorporation or by-laws of the Company shall be made by
independent counsel mutually acceptable to the Company and the
Indemnified Party; provided, however, that the Company shall not
be liable for any settlement effected without its written consent
(which consent shall not be unreasonably withheld). The
Indemnified Parties as a group may retain only one law firm with
respect to each related matter except to the extent there is, in
the opinion of counsel to an Indemnified Party, under applicable
standards of professional conduct, a conflict on any significant
issue between positions of such Indemnified Party and any other
Indemnified Party or Indemnified Parties.
(b) Insurance. For a period of six years after the
Effective Time, the Company shall cause to be maintained in
effect policies of directors and officers' liability insurance
maintained by CYBEX and Trotter for the benefit of those persons
who are currently covered by such policies on terms no less
<PAGE>
favorable than the terms of such current insurance coverage;
provided, however, that the Company shall not be required to
expend in any year an amount in excess of 200% of the annual
aggregate premiums currently paid by CYBEX and Trotter for such
insurance; and provided, further, that if the annual premiums of
such insurance coverage exceed such amount, the Company shall be
obligated to obtain a policy with the best coverage available, in
the reasonable judgment of the Board of Directors of the Company,
for a cost not exceeding such amount.
(c) Successors. In the event the Company or any of
its successors or assigns (i) consolidates with or merges into
any other person and shall not be the continuing or surviving
corporation or entity of such consolidation or merger or
(ii) transfers all or substantially all of its properties and
assets to any person, then and in either such case, proper
provisions shall be made so that the successors and assigns of
the Company shall assume the obligations set forth in this
Section 7.5.
(d) Survival of Indemnification. To the fullest
extent permitted by law, from and after the Effective Time, all
rights to indemnification as of the date hereof in favor of the
employees, agents, directors and officers of CYBEX, Trotter and
their respective Subsidiaries with respect to their activities as
such prior to the Effective Time, as provided in their respective
certificates of incorporation and by-laws in effect on the date
thereof, or otherwise in effect on the date hereof, shall survive
the Merger and shall continue in full force and effect for a
period of not less than six years from the Effective Time.
(e) Benefit. The provisions of this Section 7.5 are
intended to be for the benefit of, and shall be enforceable by,
each Indemnified Party, his or her heirs and his or her repre-
sentatives.
Section 7.6 Public Announcements. Subject to each
party's disclosure obligations imposed by law, CYBEX and Trotter
will cooperate with each other in the development and
distribution of all news releases and other public information
disclosures with respect to this Agreement or any of the
transactions contemplated hereby and shall not issue any public
announcement or statement with respect hereto or thereto without
the consent of the other party (which consent shall not be
unreasonably withheld).
<PAGE>
Section 7.7 Employee Agreements and Workforce
Matters.
(a) Certain Employee Agreements. Subject to Sections
7.8, and 7.9, the Company and its Subsidiaries shall honor,
without modification, all contracts, agreements, collective
bargaining agreements and commitments of the parties prior to the
date hereof that apply to any current or former employee or
current or former director of the parties hereto; provided,
however, that this undertaking is not intended to prevent the
Company from enforcing such contracts, agreements, collective
bargaining agreements and commitments in accordance with their
terms, including, without limitation, any reserved right to
amend, modify, suspend, revoke or terminate any such contract,
agreement, collective bargaining agreement or commitment.
Section 7.8 Employee Benefit Plans. At the
Effective Time, the Trotter Stock Options Plans shall be
terminated and prior to the Closing, CYBEX and Trotter shall
cooperate in establishing employee benefit plans for the
Surviving Corporation and for the transition of the existing
plans of both CYBEX and Trotter.
Section 7.9 Stock Option and Other Stock Plans. At
the Effective Time, each outstanding option to purchase shares of
Trotter Common Stock (each a "Trotter Stock Option") under
Trotter Stock Plans, whether vested or unvested, will be assumed
by CYBEX. Each Trotter Stock Option so assumed by CYBEX shall
continue to have, and be subject to, the same terms and
conditions set forth in the applicable Trotter Stock Plan
immediately prior to the Effective Time, except that (i) such
Trotter Stock Option shall be exercisable for that number of
whole shares of CYBEX Common Stock equal to the product of the
number of shares of Trotter Common Stock that were issuable upon
exercise of such Trotter Stock Option immediately prior to the
Effective Time, multiplied by the Merger Consideration, rounded
up to nearest whole number of shares of CYBEX Common Stock, (ii)
the per share exercise price shall be equal to the quotient
determined by dividing the exercise price per share of Trotter
Common Stock at which such Trotter Stock Option was exercisable
immediately prior to the Effective Time by the Merger
Consideration, rounded up to the nearest whole cent, and (iii)
each Trotter Stock Option shall be immediately exercisable.
(b) At the Effective Time, the Company shall issue to
each holder of an outstanding Trotter Stock Option a document
evidencing the foregoing assumption of such Trotter Stock Option
by CYBEX.
<PAGE>
(c) CYBEX agrees to file a Registration Statement on
Form S-8 for the shares of CYBEX Common Stock issuable with
respect to the assumed Trotter Stock Options, no later than ten
(10) days after the Effective Date.
Section 7.10 No Solicitations. From and after the
date hereof, CYBEX and Trotter will not, and will not authorize
or permit any of their respective Representatives to, directly or
indirectly, solicit, initiate or encourage (including by way of
furnishing information) or take any other action to facilitate
knowingly any inquiries or the making of any proposal which
constitutes or may reasonably be expected to lead to an
Acquisition Proposal (as defined herein) from any Person, or
engage in any discussion or negotiations relating thereto or
accept any Acquisition Proposal; provided, however, that
notwithstanding any other provision hereof, CYBEX may (i) at any
time prior to obtaining the CYBEX Shareholders' approval engage
in discussions or negotiations with a third party who (without
any solicitation, initiation, encouragement, discussion or
negotiation, directly or indirectly, by or with CYBEX or its
Representatives after the date hereof) seeks to initiate such
discussions or negotiations and may furnish such third party
information concerning CYBEX and its business, properties and
assets if, and only to the extent that, (A) (x) the third party
has first made an Acquisition Proposal that is financially
superior to the Merger and not subject to any financing
conditions (as determined in good faith in each case by CYBEX's
Board of Directors after consultation with its financial
advisors) and (y) CYBEX's Board of Directors shall conclude in
good faith, after considering applicable provisions of state law,
on the basis of written advice of outside counsel that such
action is necessary for the Board of Directors to act in a manner
consistent with its fiduciary duties under applicable law and (B)
prior to furnishing such information to or entering into
discussions or negotiations with such Person, CYBEX (x) provides
prompt notice to Trotter to the effect that it is furnishing
information to or entering into discussions or negotiations with
such Person and (y) receives from such Person an executed
confidentiality agreement in reasonably customary form on terms
not more favorable to such Person than the terms contained in the
Confidentiality Agreement; (ii) comply with Rule 14e-2
promulgated under the Exchange Act with regard to a tender or
exchange offer, and/or (iii) accept an Acquisition Proposal from
a third party, provided CYBEX terminates this Agreement pursuant
to Section 9.1(e). Each party shall immediately cease and
terminate any existing solicitation, initiation, encouragement,
activity, discussion or negotiation with any parties conducted
heretofore by the party or its Representatives with respect to
the foregoing. Each party will notify the other of any such
discussions or negotiations, requests for information or the
receipt of any Acquisition Proposal, including the identity of
the Person or group involved and the terms and conditions of any
Acquisition Proposal. As used herein, "Acquisition Proposal"
shall mean a proposal or offer (other than by the other party
hereto) for a tender or exchange offer, merger, consolidation or
other business combination involving the party or any material
subsidiary of the party or any proposal to acquire in any manner
a substantial equity interest in or a substantial portion of the
assets of the party or any material subsidiary.
<PAGE>
Section 7.11 CYBEX Board of Directors. CYBEX's and
Trotter's respective Boards of Directors will take such action as
may be necessary to cause the number of directors comprising the
full Board of Directors of CYBEX at the Effective Time to be 9
persons, 4 of whom shall be designated by CYBEX prior to the
Effective Time and 5 of whom shall be designated by Trotter prior
to the Effective Time. The initial designation of such directors
among the three classes of the Board of Directors of CYBEX shall
be agreed to by CYBEX and Trotter, the designees of each party to
be divided equally among such classes; provided, however, that
if, prior to the Effective Time, any of such designees shall
decline or be unable to serve, the party which designated such
person shall designate another person to serve in such person's
stead. Promptly following the Effective Date, Peter Haines
shall be appointed the Chief Executive Officer of CYBEX.
Section 7.12 Tax-Free Reorganization. CYBEX and
Trotter shall use all reasonable efforts to cause the
representations set forth in the CYBEX Certificate and the
Trotter Certificate, respectively, to be true in all material
respects as of the Effective Time.
Section 7.13 Listing of Stock. CYBEX agrees to apply
for listing on the American Stock Exchange, the CYBEX Common
Shares issuable, and those required to be reserved for issuance,
in connection with the Merger, upon official notice of issuance.
Section 7.14 Expenses. All costs and expenses
incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such
expenses, except all out-of-pocket printing and solicitation
costs in connection with the Registration Statement and the Proxy
Statement shall be shared equally by CYBEX and Trotter.
Section 7.15 Further Assurances. Each party will,
and will cause its Subsidiaries to, execute such further
documents and instruments and take such further actions as may
reasonably be requested by any other party in order to consummate
the Merger in accordance with the terms hereof.
<PAGE>
ARTICLE VIII
CONDITIONS
Section 8.1 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 satisfaction on or
prior to the Closing Date of the following conditions, except, to
the extent permitted by applicable law, that such conditions may
be waived in writing pursuant to Section 9.5 by the joint action
of the parties hereto:
(a) Shareholder Approval. The CYBEX Shareholders'
Approval shall have been obtained.
(b) No Injunction. No temporary restraining order or
preliminary or permanent injunction or other order by any federal
or state court preventing consummation of the Merger shall have
been issued and be continuing in effect, and the Merger and the
other transactions contemplated hereby shall not have been prohibited
under any applicable federal or state law or regulation.
(c) Statutory Approvals. The CYBEX Required Statutory
Approvals and the Trotter Required Statutory Approvals shall have
been obtained at or prior to the Effective Time, such approvals
shall have become Final Orders (as defined below) and such Final
Orders do not impose terms or conditions which, in the aggregate,
would have, or insofar as reasonably can be foreseen, could have,
a material adverse effect on the business, assets, financial
condition or results of operations of the Company and its
prospective subsidiaries taken as a whole or which would be
materially inconsistent with the agreements of the parties
contained herein. A "Final Order" means action by the relevant
regulatory authority which has not been reversed, stayed,
enjoined, set aside, annulled or suspended, with respect to which
any waiting period prescribed by law before the transactions
contemplated hereby may be consummated has expired, and as to
which all conditions to the consummation of such transactions
prescribed by law, regulation or order have been satisfied.
<PAGE>
(d) Registration Statement Effective. The SEC shall
have declared the Registration Statement effective. No stop
orders suspending the effectiveness of the Registration Statement
or any part thereof shall have been issued, and no proceeding for
that purpose, and no similar proceeding in respect of the Proxy
Statement, shall have been initiated or threatened in writing by
the SEC.
(e) Stock Listing. The CYBEX Common Shares issuable
to stockholders of Trotter pursuant to this Agreement and such
other shares required to be reserved for issuance in connection
with the Merger shall have been authorized for listing on the
American Stock Exchange, Inc. upon official notice of issuance.
(f) Fairness Opinion. The opinion of Smith Barney
referred to in Section 4.19 shall not have been withdrawn.
Section 8.2 Conditions to Obligation of Trotter to
Effect the Merger. The obligation of Trotter to effect the
Merger shall be further subject to the satisfaction, on or prior
to the Closing Date, of the following conditions, except as may
be waived by Trotter in writing pursuant to Section 9.5:
(a) Performance of Obligations of CYBEX. CYBEX
(and/or its appropriate Subsidiaries) will have performed in all
material respects its agreements and covenants contained in or
contemplated by this Agreement required to be performed by it at
or prior to the Effective Time.
(b) Representations and Warranties. The
representations and warranties of CYBEX set forth in this
Agreement shall be true and correct in all material respects (i)
on and as of the date hereof and (ii) on and as of the Closing
Date with the same effect as though such representations and
warranties had been made on and as of the Closing Date (except
for representations and warranties that expressly speak only as
of a specific date or time other than the date hereof or the
Closing Date which need only be true and correct as of such date
or time).
(c) Closing Certificates. Trotter shall have received
a certificate signed by the chief financial officer of CYBEX,
dated the Closing Date, to the effect that, to the best of such
officer's knowledge, the conditions set forth in Section 8.2(a)
and Section 8.2(b) have been satisfied.
(d) CYBEX Certificate. Trotter shall have received a
certificate, substantially in the form of Exhibit 8.2(d) hereof
(the "CYBEX Certificate"), signed by the Chief Financial Officer
of CYBEX.
<PAGE>
Section 8.3 Conditions to Obligation of CYBEX to
Effect the Merger. The obligation of CYBEX to effect the Merger
shall be further subject to the satisfaction, on or prior to the
Closing Date, of the following conditions, except as may be
waived by CYBEX in writing pursuant to Section 9.5:
(a) Performance of Obligations of Trotter. Trotter
(and/or its appropriate Subsidiaries) will have performed in all
material respects its agreements and covenants contained in or
contemplated by this Agreement required to be performed by it at
or prior to the Effective Time.
(b) Representations and Warranties. The
representations and warranties of Trotter set forth in this
Agreement shall be true and correct in all material respects (i)
on and as of the date hereof and (ii) on and as of the Closing
Date with the same effect as though such representations and
warranties had been made on and as of the Closing Date (except
for representations and warranties that expressly speak only as
of a specific date or time other than the date hereof or the
Closing Date which need only be true and correct as of such date
or time).
(c) Closing Certificates. CYBEX shall have received a
certificate signed by the chief financial officer of Trotter,
dated the Closing Date, to the effect that, to the best of such
officer's knowledge, the conditions set forth in Section 8.3(a)
and Section 8.3(b) have been satisfied.
(d) Trotter Certificate. CYBEX shall have received a
certificate, substantially in the form of Exhibit 8.3(d) hereof
(the "Trotter Certificate"), signed by the Chief Financial
Officer of Trotter.
(e) Selling Shareholder Certificate. CYBEX shall have
received a certificate, substantially in the form of Exhibit
8.3(e) hereof, signed by the Chief Financial Officer of UM Equity
Corp.
<PAGE>
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
Section 9.1 Termination. This Agreement may be
terminated at any time prior to the Closing Date, whether before
or after approval by the shareholders of the respective parties
hereto contemplated by this Agreement:
(a) by mutual written consent of the Boards of
Directors of CYBEX and Trotter;
(b) by either Trotter or CYBEX (i) if there has been a
material breach of any representation, warranty, covenant or
agreement on the part of the other set forth in this Agreement,
which breach has not been cured within 20 business days following
receipt by the breaching party of notice of such breach or
adequate assurance of such cure shall not have been given by or
on behalf of the breaching party within such 20 business-day
period, or (ii) if any state or federal law, order, rule or
regulation is adopted or issued, which has the effect, as
supported by the written opinion of outside counsel for such
party, of prohibiting the Merger, or by any party hereto if any
court of competent jurisdiction in the United States or any State
shall have issued an order, judgment or decree permanently
restraining, enjoining or otherwise prohibiting the Merger, and
such order, judgment or decree shall have become final and
nonappealable;
(c) by any party hereto, by written notice to the
other parties, if the Effective Time shall not have occurred on
or before June 30_, 1997 (the "Initial Termination Date");
provided, however, that the right to terminate the Agreement
under this Section 9.1(c) shall not be available to any party
whose failure to fulfill any obligation under this Agreement has
been the cause of, or resulted in, the failure of the Effective
Time to occur on or before this date;
(d) by any party hereto, by written notice to the
other parties, if the CYBEX Shareholders' Approval shall not have
been obtained at a duly held CYBEX Special Meeting, including any
adjournments thereof; or
(e) by CYBEX, prior to the approval of this Agreement
by the shareholders of CYBEX, upon five days' prior notice to
Trotter, if, as a result of an Acquisition Proposal by a party
other than Trotter or any of its affiliates, the Board of
Directors of CYBEX determines in good faith that their fiduciary
<PAGE>
obligations under applicable law require that such Acquisition
Proposal be accepted; provided, however, that (i)
the Board of Directors of CYBEX shall have been advised in
writing by outside counsel that notwithstanding a binding
commitment to consummate an agreement of the nature of this
Agreement entered into in the proper exercise of their applicable
fiduciary duties, such fiduciary duties would also require the
directors to reconsider such commitment as a result of such
Acquisition Proposal; and (ii) prior to any such termination,
CYBEX shall, and shall cause its respective financial and legal
advisors to, negotiate with Trotter to make such adjustments in
the terms and conditions of this Agreement as would enable CYBEX
to proceed with the transactions contemplated herein.
Section 9.2 Effect of Termination. In the event of
termination of this Agreement by either CYBEX or Trotter pursuant
to Section 9.1 there shall be no liability on the part of either
CYBEX or Trotter or their respective officers or directors
hereunder, except as provided in Section 9.3 and except that
Section 7.14, the agreement contained in the last sentence of
Section 7.1, Section 10.2 and Section 10.8 shall survive the
termination.
Section 9.3 Topping Fee. If CYBEX terminates this
Agreement pursuant to Section 9.1(e) and consummates a
transaction for the merger, consolidation or other business
combination of CYBEX with an unrelated third party within twelve
months after the date of termination of this Agreement, then,
provided that Trotter shall not have materially breached any of
the representations, warranties, covenants or agreements made on
its part such that either of the conditions set forth in Sections
8.3(a) or (b) will not be satisfied, CYBEX shall pay to Trotter,
within five (5) business days following Trotter's written request
therefor, an amount equal to the sum of $2,000,000 plus all
actual out-of-pocket costs and expenses (not to exceed $250,000
in the aggregate) incurred by Trotter through the date of
termination in connection with this Agreement and the
transactions contemplated hereby.
Section 9.4 Amendment. This Agreement may be
amended by the Boards of Directors of the parties hereto, at any
time before or after approval hereof by the shareholders of CYBEX
and Trotter and prior to the Effective Time, but after such
approvals, no such amendment shall (i) alter or change the amount
or kind of shares, rights or any of the proceedings of the
treatment of shares under Article II or (ii) alter or change any
of the terms and conditions of this Agreement if any of the
alterations or changes, alone or in the aggregate, would
materially adversely affect the rights of holders of CYBEX Common
Shares or Trotter Common Stock, except for alterations or changes
that could otherwise be adopted by the Board of Directors of the
Company, without the further approval of such shareholders, as
applicable. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties
hereto.
<PAGE>
Section 9.5 Waiver. At any time prior to the
Effective Time, the parties hereto may (a) extend the time for
the performance of any of the obligations or other acts of the
other parties hereto, (b) waive any inaccuracies in the
representations and warranties contained herein or in any
document delivered pursuant hereto and (c) waive compliance with
any of the agreements or conditions contained herein, to the
extent permitted by applicable law. Any agreement on the part of
a party hereto to any such extension or waiver shall be valid if
set forth in an instrument in writing signed on behalf of such
party.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 Non-Survival; Effect of Representations
and Warranties. All representations, warranties and agreements
in this Agreement shall not survive the Merger, except as
otherwise provided in this Agreement and except for the
agreements contained in this Section 10.1 and in Article II,
Section 7.5, Section 7.14, Section 9.3 and Section 10.8.
Section 10.2 Brokers. CYBEX represents and warrants
that, except for Smith Barney whose fees have been disclosed to
Trotter prior to the date hereof, no broker, finder or investment
banker is entitled to any brokerage, finder's or other fee or
commission in connection with the Merger or the transactions
contemplated by this Agreement based upon arrangements made by or
on behalf of CYBEX. Trotter represents and warrants that, except
for Howard Lawson & Co., whose fees have been disclosed to CYBEX
prior to the date hereof, no broker, finder or investment banker
is entitled to any brokerage, finder's or other fee or commission
in connection with the Merger or the transactions contemplated by
this Agreement based upon arrangements made by or on behalf of
Trotter.
Section 10.3 Notices. All notices and other
communications hereunder shall be in writing and shall be deemed
given (i) if delivered personally, (ii) if sent by reputable
overnight courier service, (iii) if telecopied (which is
confirmed), or (iv) five days after being mailed by registered or
certified mail (return receipt requested) to the parties at the
following addresses (or at such other address for a party as
shall be specified by like notice):
<PAGE>
(a) If to CYBEX, to
CYBEX International, Inc.
2100 Smithtown Avenue
Ronkonkoma, NY 11779
Attn: Chairman of the Board
Chief Executive Officer
Chief Financial Officer
Telecopy: (516) 585-9000
Telephone: (516) 585-1840
with a copy to
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Attn: Jeffrey J. Weinberg
Telecopy: (212) 310-8007
Telephone: (212) 310-8000
and
(b) if to Trotter, to
Trotter Inc.
10 Trotter Drive
Medway, MA 02053
Attn: Chief Executive Officer
Telecopy: (508) 533-5799
Telephone: (508) 533-4300
<PAGE>
with a copy to
UM Holdings Ltd.
65 Haddon Avenue
Haddonfield, NJ 08033
Attn: John Aglialoro
Telecopy: (609) 354-2216
Telephone: (609) 354-2200
and a copy to
Archer & Greiner
One Centennial Square
Haddonfield, NJ 08033
Attn: Jim Carll
Telecopy: (609) 795-0574
Telephone: (609) 354-3031
(c) if to the Company, to
c/o Chief Executive Officer of CYBEX at
the address set forth above
and
c/o Chief Executive Officer of Trotter at
the address set forth above.
Section 10.4 Miscellaneous. This Agreement
(including the documents and instruments referred to herein) (i)
constitutes the entire agreement and supersedes all other prior
agreements and understandings, both written and oral, among the
parties, or any of them, with respect to the subject matter
hereof other than the Confidentiality Agreement; (ii) shall not
be assigned by operation of law or otherwise; and (iii) shall be
governed by and construed in accordance with the laws of the
State of New York applicable to contracts executed in and to be
fully performed in such State, without giving effect to its
conflicts of law rules or principles and except to the extent the
provisions of this Agreement (including
<PAGE>
the documents or instruments referred to herein) are expressly
governed by or derive their authority from the DGCL.
Section 10.5 Interpretation. When a reference is
made in this Agreement to Sections or Exhibits, such reference
shall be to a Section or Exhibit of this Agreement, respectively,
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 10.6 Counterparts; Effect. This Agreement
may be executed in one or more counterparts, each of which shall
be deemed to be an original, but all of which shall constitute
one and the same agreement.
Section 10.7 Parties' Interest. This Agreement
shall be binding upon and inure solely to the benefit of each
party hereto, and, except for rights of Indemnified Parties as
set forth in Section 7.5, nothing in this Agreement, express or
implied, is intended to confer upon any other person any rights
or remedies of any nature whatsoever under or by reason of this
Agreement.
Section 10.8 Waiver of Jury Trial and Certain
Damages. Each party to this Agreement waives, to the fullest
extent permitted by applicable law, (i) any right it may have to
a trial by jury in respect of any action, suit or proceeding
arising out of or relating to this Agreement and (ii) any right
it may have to receive damages from any other party based on any
theory of liability for any special, indirect, consequential
(including lost profits) or punitive damages.
Section 10.9 Enforcement. 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 the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this
Agreement in any court of the United States located in the State
of New York or in New York state court, this being in addition to
any other remedy to which they are entitled at law or in equity.
In addition, each of the parties hereto (a) consents to submit
itself to the personal jurisdiction of any federal court located
in the State of New York or any New York state court in the event
<PAGE>
any dispute arises out of this Agreement or any of the
transactions contemplated by this Agreement, (b) agrees that it
will not attempt to deny such personal jurisdiction by motion or
other request for leave from any such court and (c) agrees that
it will not bring any action relating to this Agreement or any of
the transactions contemplated by this Agreement in any court
other than a federal or state court sitting in the State of New
York.
<PAGE>
IN WITNESS WHEREOF, CYBEX, Trotter and the Company have
caused this Agreement to be signed by their respective officers
thereunto duly authorized as of the date first written above.
CYBEX INTERNATIONAL, INC.
By: /s/ John C. Spratt
---------------------------
Name: John C. Spratt
Title: Chairman of the Board
TROTTER INC.
By: /s/ John Aglialoro
---------------------------
Name: John Aglialoro
Title: Chairman of the Board
CAT'S TAIL, INC.
By: /s/ John C. Spratt
---------------------------
Name: John C. Spratt
Title: Chairman of the Board
NYFS10...:\80\60380\0026\1196\AGR0146X.38E
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
FIRST AMENDMENT (this "Amendment"), dated as of January 16,
1997, to Agreement and Plan of Merger, dated as of December 27, 1996,
by and among CYBEX International, Inc., a New York corporation
("CYBEX"), Trotter Inc., a Delaware corporation ("Trotter"), and CAT'S
TAIL, INC., a direct wholly-owned subsidiary of CYBEX and a Delaware
corporation (the "Company") (the "Merger Agreement").
WHEREAS, CYBEX, Trotter and the Company desire to amend the
Merger Agreement in order to correct certain errors and/or eliminate
certain ambiguities in the Merger Agreement;
WHEREAS, capitalized terms not otherwise defined herein have
the meanings ascribed to them in the Merger Agreement;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, the parties hereto hereby agree as
follows:
SECTION 1. Amendments. The Merger Agreement is hereby
----------
amended as follows:
(a) Sections 2.2, 7.9(c) and 7.11 of the Merger Agreement are
amended by deleting each reference to "Effective Date" and
substituting therefor "Effective Time".
(b) Section 6.1(g) of the CYBEX Disclosure Schedule is amended
by adding the following: "CYBEX may secure by letter of credit or
otherwise the balance of the payments due to J. Raymond Elliott under
his employment agreement with the Company".
(c) Section 7.5 of the Merger Agreement is amended by deleting
each reference to "DGCL" and substituting therefor "New York Business
Corporation Law".
(d) Section 7.7 of the Merger Agreement is amended to delete the
"(a)" that immediately precedes the heading "Certain Employee
Agreements".
(e) Section 7.9 of the Merger Agreement is amended to insert an
"(a)" immediately following the heading "Stock Option and Other Stock
Plans".
<PAGE>
(e) Section 7.9 of the Merger Agreement is amended to insert an
"(a)" immediately following the heading "Stock Option and Other Stock
Plans".
(f) Sections 7.5, 7.7 and 7.9(b) of the Merger Agreement are
amended by deleting each reference to "the Company" and substituting
therefor "CYBEX".
(g) Section 8.1(c) of the Merger Agreement is amended to read in
its entirety as follows:
Statutory Approvals. All waiting periods applicable to
the consummation of the Merger under the HSR Act shall have
expired or been terminated and all approvals of, or filings with,
any Governmental Authority required to consummate the
transactions contemplated hereby shall have been obtained or
made, other than immaterial approvals and filings, the failure to
obtain or make which would have no material adverse effect on
CYBEX or Trotter or, following the Effective Time, CYBEX.
(h) The Index of Principal Terms of the Merger Agreement is
amended by deleting the reference to the term "Final Order".
SECTION 2. Miscellaneous.
-------------
(a) Except as specifically amended above, the Merger Agreement
shall remain in full force and effect and is hereby ratified and
confirmed.
(b) This Amendment may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto.
(c) This Amendment shall be governed by and construed in
accordance with the laws of the State of New York applicable to
contracts executed in and to be fully performed in such State, without
giving effect to its conflicts of law rules or principles.
(d) This Amendment may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
<PAGE>
IN WITNESS WHEREOF, CYBEX, Trotter and the Company have
caused this Amendment to be signed by their respective officers
thereunto duly authorized as of the date first written above.
CYBEX INTERNATIONAL, INC.
By: /s/ John C. Spratt
---------------------------
Name: John C. Spratt
Title: Chairman of the Board
TROTTER INC.
By: /s/ John Aglialoro
---------------------------
Name: John Aglialoro
Title: Chairman of the Board
CAT'S TAIL, INC.
By: /s/ John C. Spratt
---------------------------
Name: John C. Spratt
Title: Chairman of the Board
NYFS10...:\80\60380\0026\2286\AMD1167L.50B
EXHIBIT 21
Subsidiaries of CYBEX International, Inc.
CYBEX International, Inc. owns all of the outstanding capital stock of each of
its subsidiaries listed below:
Eagle Performance Systems, Inc., a Minnesota corporation.
CYBEX Financial Corp., a New York corporation.
General Medical Equipment, Ltd., a United States Virgin Islands corporation.
CYBEX Fitness Gerate Vertrieb, GmbH, a German corporation.
CAT'S TAIL INC., a Delaware corporation.
EXHIBIT 23
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 2-79563) pertaining to the Incentive Stock Option Plan of Lumex, Inc.
dated September 29, 1982, the Registration Statement (Form S-8 No. 33-46109)
pertaining to the Charles E. Murcott 1982 Stock Option Plan, the Registration
Statement (Form S-8 No. 33-46110) pertaining to the Lumex, Inc. 1987 Stock
Option Plan, the Registration Statement (Form S-8 No. 33-48124) pertaining to
the Lumex, Inc. 1987 Stock Option Plan, the Registration Statement (Form S-8 No.
33-59947) pertaining to the Lumex, Inc. 1995 Omnibus Incentive Plan, and the
Registration Statement (Form S-8 No. 33-59945) pertaining to the Lumex, Inc.
1995 Stock Retainer Plan for Nonemployee Directors of our report dated March 6,
1997, with respect to the consolidated financial statements of CYBEX
International, Inc. (formerly Lumex, Inc.) included in the Annual Report (Form
10-K) for the year ended December 31, 1996.
/s/ ERNST & YOUNG LLP
Melville, New York
March 27, 1997
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This Schedule contains summary financial
information extracted from the financial
statements contained in the body of the Form 10-K
and is qualified in its entirety by reference to
such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> DEC-31-1996
<CASH> 7,068
<SECURITIES> 0
<RECEIVABLES> 22,508
<ALLOWANCES> 0
<INVENTORY> 9,934
<CURRENT-ASSETS> 49,008
<PP&E> 23,507
<DEPRECIATION> (13,849)
<TOTAL-ASSETS> 63,487
<CURRENT-LIABILITIES> 24,379
<BONDS> 1,986
0
0
<COMMON> 451
<OTHER-SE> 35,087
<TOTAL-LIABILITY-AND-EQUITY> 63,487
<SALES> 80,711
<TOTAL-REVENUES> 80,711
<CGS> 48,405
<TOTAL-COSTS> 48,405
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 882
<INCOME-PRETAX> (803)
<INCOME-TAX> 32
<INCOME-CONTINUING> (835)
<DISCONTINUED> (4,014)
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (4,849)
<EPS-PRIMARY> (1.10)
<EPS-DILUTED> (1.10)
</TABLE>