UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
SCHEDULE 13D
Under the Securities Exchange
Act of 1934 (Amendment No. 1 )*
NCC Industries, Inc.
(Name of Issuer)
Common Stock, par value $1.00 per share (Title
of Class of Securities)
628834 10 3
(CUSIP Number)
With a copy to:
Barry A. Adelman, Esq.
Mr. Frank Magrone Rubin Baum Levin Constant& Friedman,
165 Main Street 30 Rockefeller Plaza
Cortland, NY 13045-5428 New York, NY 10112
(607) 756-2841 (212) 698-7700
(Name, Address and Telephone Number of Person Authorized to
Receive Notices an d Communications)
April 26, 1995
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this Schedule
13D, and is filing this schedule because of Rule 13d-1(b)(3) or
(4), check the following box .
Check the following box if a fee is being paid with this statement
. (A fee is not required only if the reporting person: (1) has a
previous statement on file reporting beneficial ownership of more
than five percent of the class of securities described in Item 1;
and (2) has filed no amendment subsequent thereto reporting
beneficial ownership of less than five percent of such class.
See Rule
13d-7.)
Note: Six copies of this statement, including all exhibits, should
be filed with the Commission. See Rule 13d-1(a) for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the
subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in a
prior cover page.
The information required on the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 ("Act") or otherwise subject to the
liabilities of that section of the Act but shall be subject to all
other provisions of the Act (however, see the Notes).
SCHEDULE 13D
CUSIP NO. 628834 10 3
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
Frank Magrone
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a)
(b)
x
3 SEC USE ONLY
4 SOURCE OF FUNDS (See Instructions)
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF 7 SOLE VOTING POWER 0
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
8 SHARED VOTING POWER 0
9 SOLE DISPOSITIVE POWER 0
10 SHARED DISPOSITIVE POWER 0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (See Instructions)
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
14 TYPE OF REPORTING PERSON (See Instructions)
IN
Frank Magrone hereby amends and restates his statement on
Schedule 13D, dated August 8, 1986 (the "Statement") as
follows:
Item 1. Security and Issuer.
This Statement relates to the Common Stock, par
value $1.00 per share (the "Common Stock") of NCC
Industries, Inc. (the "Company"). The Company's
principal executive offices are located at 165 Main
Street, Cortland, New York 13045-5428.
Item 2. Identity and Background.
This statement is filed by Frank Magrone who has a
business address at NCC Industries, Inc., 165 Main
Street, Cortland, New York 13045-5428.
The present principal occupation of Mr. Magrone is
President and Chief Operating Officer of the Company.
Mr. Magrone has not been convicted in a criminal
proceeding (excluding traffic violations or similar
misdemeanors) within the last five years.
During the last five years, Mr. Magrone has not
been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction which has
resulted in Mr. Magrone being subject to a judgment,
decree or final order enjoining future violations of,
or prohibiting or mandating activities subject to,
federal or state securities laws or finding any
violation with respect to such laws.
Mr. Magrone is a United States citizen.
Item 3. Source and Amount of Funds or Other
Consideration. The source of the purchase price
paid by Mr. Magrone to the
Company on July 1, 1986 for the 250,000 shares of Common
Stock previously owned by Mr. Magrone was a loan made by
the Company to Frank Magrone in the principal amount of
$250,000. Such loan was evidenced by a promissory note,
dated as of July 1, 1986, of Mr. Magrone to the Company,
and bore interest at a rate of 7.5% per annum. Such loan
has been paid in full.
Item 4. Purpose of Transaction.
On April 26, 1995, each of Mr. Magrone, Triumph
International Overseas Limited (a Liechtenstein
corporation beneficially owning 3,670,779 shares of the
Common Stock; "Triumph") and Guenther Spiesshofer (the
beneficial owner of 3,692,279 shares of the Common Stock-
- -3,670,779 of which he is deemed to beneficially own by
virtue of the fact that he may be deemed to be a
controlling person of Triumph), pursuant to a Stock
Purchase Agreement (the "Stock Purchase Agreement") with
Maidenform Worldwide, Inc., a Delaware corporation
("Maidenform"), sold, transferred and delivered to
Maidenform all of the 4,042,479 shares of the Common
Stock owned by Mr. Magrone, Triumph and Mr. Spiesshofer
in exchange for an aggregate of approximately $9.8
million in cash and approximately 28% of the outstanding
capital stock of Maidenform having a value of
approximately $71,000,000, subject to adjustment upward,
based upon the earnings before interest and taxes of
Maidenform and the Company during the three-year period
commencing on January 1, 1995 through December 31, 1997,
in an amount not to exceed $5,500,000.
As a result of the consummation of the transactions
contemplated by the Stock Purchase Agreement, (i)
Maidenform currently owns approximately 92% of the
outstanding shares of Common Stock, and (ii) Mr. Magrone,
Triumph and Mr. Spiesshofer ceased to be beneficial
owners of any shares of the Common Stock.
Except as set forth above, Mr. Magrone has no plans
or intentions which would result in or relate to any of
the transactions described in subparagraphs (a)-(j) of
Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
Mr. Magrone is not currently the beneficial owner of any
shares of the outstanding Common Stock.
On April 26, 1995, each of Mr. Magrone, Triumph and Mr.
Spiesshofer, pursuant to the Stock Purchase Agreement
with Maidenform as described in Item 4 above, sold,
transferred and delivered to Maidenform all of the shares
of the Common Stock owned by Mr. Magrone, Triumph and Mr.
Spiesshofer in exchange for an aggregate of approximately
$9.8 million in cash and approximately 28% of the
outstanding capital stock of Maidenform having a value of
approximately $71,000,000, subject to adjustment upward,
based upon the earnings before interest and taxes of
Maidenform and the Company during the three-year period
commencing on January 1, 1995 through December 31, 1997,
in an amount not to exceed $5,500,000.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
Reference is made to Item 4 above for a discussion
of the Stock Purchase Agreement with Maidenform pursuant
to which Triumph, Mr. Spiesshofer and Mr. Magrone sold,
transferred and delivered to Maidenform on April 26, 1995
all of the shares of the Common Stock owned by them.
Except as described in Item 4 above, there are no
contracts, arrangements, understandings or relationships
(legal or otherwise) between Mr. Magrone and any other
persons with respect to any securities of the Company.
Inasmuch as Mr. Magrone is no longer the beneficial owner
of more than five percent of the outstanding shares of
Common Stock, he has no further reporting obligation
under Section 13(d) of the Securities Exchange Act of
1934, as amended, or the rules and regulations
promulgated by the Securities and Exchange Commission
thereunder.
Item 7. Material to be filed as Exhibits. PAGE
A. Promissory Note, dated as of July
1, 1986, in the principal amount of $250,000, of Frank
Magrone to the Company. *
B. Shareholders' Agreement, dated as
of July 1, 1986, by and among Triumph
International Overseas Limited, as
successor to Triumph International (Hong
Kong) Limited, a former Hong Kong B.C.C.
Corporation, Frank Magrone and the
Company. *
C. Stock Purchase Agreement, dated as
of April 26, 1995, between Maidenform
Worldwide, Inc., and Triumph International
Overseas Limited, Guenther Spiesshofer and
Frank Magrone. *
- Previously filed and incorporated herein by reference.
Signature.
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set
forth in this statement is true, complete and correct.
Dated: April 26, 1995
/s/ FRANK MAGRONE
FRANK MAGRONE
EXHIBIT INDEX
EXHIBIT DESCRIPTION PAGE
A. Promissory Note, dated as of July 1, 1986, in the
principal amount of $250,000, of Frank Magrone
to the Company *
B. Shareholders' Agreement, dated as of July 1,
1986, by and among Triumph International Overseas
Limited, as successor to
Triumph International (Hong Kong) Limited, a
former Hong Kong B.C.C. Corporation, Frank
Magrone and the Company *
C. Stock Purchase Agreement, dated as of April 26,
1995, between Maidenform Worldwide, Inc., and
Triumph International Overseas Limited, Guenther
Spiesshofer and Frank Magrone 11
*previously filed and incorporated herein by reference.
807.18-IWD-04/28/95-1:14PM
STOCK PURCHASE AGREEMENT
Between
MAIDENFORM WORLDWIDE, INC.
As Buyer
and
CERTAIN STOCKHOLDERS OF NCC INDUSTRIES, INC.
as Sellers
___________________________________
__ Dated as of April 26, 1995
___________________________________
TABLE OF CONTENTS Page
ARTICLE I DEFINITIONS 1
SECTION 1.1 Definitions 1
SECTION 1.2 Interpretation 10
ARTICLE II PURCHASE AND SALE; CLOSING 11
SECTION 2.1 Purchase and Sale of Purchased
Shares 11
SECTION 2.2 Consideration 11
SECTION 2.3 Closing 11
SECTION 2.4 12
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLERS 13
SECTION 3.1 Status of the Purchased Shares 13
SECTION 3.2 Title to the Purchased Shares 14
SECTION 3.3 Authority Relative to this
Agreement 14
SECTION 3.4 No Conflicts; Consents 14
SECTION 3.5 Corporate Existence and Power 15
SECTION 3.6 Company Subsidiaries 15
SECTION 3.7 Charter Documents and
Corporate Records 16
SECTION 3.8 Capitalization 17
SECTION 3.9 Reports and Financial
Statements 17
SECTION 3.10 Liabilities 18
SECTION 3.11 Company Receivables 18
SECTION 3.12 Inventories 19
SECTION 3.13 Absence of Certain Changes 19
SECTION 3.14 Properties 22
SECTION 3.15 Contracts 24
SECTION 3.16 Intangible Property 27
SECTION 3.17 Claims and Proceedings 28
SECTION 3.18 Restrictions on Business
Activities 29
SECTION 3.19 Taxes 29
SECTION 3.20 Employee Benefits Plans 31
SECTION 3.21 Officers, Directors and Key
Employees 35
SECTION 3.22 EmploymentRelated Matters 35
SECTION 3.23 Potential Conflicts of Interest 36
SECTION 3.24 Insurance 36
SECTION 3.25 Suppliers, Customers and
Contractors 37
SECTION 3.26 Compliance with Laws 37
SECTION 3.27 Permits 38
SECTION 3.28 Environmental Matters 38
SECTION 3.29 Finders; Fees 39
SECTION 3.30 Depositaries; Powers of
Attorney, etc. 39
SECTION 3.31 Acquisition for Investment 40
SECTION 3.32 Disclosure 40
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER 40
SECTION 4.1 Buyer Common Stock 40
SECTION 4.2 Acquisition for Investment 40
SECTION 4.3 Authority Relative to This
Agreement 41
SECTION 4.4 No Conflicts; Consents 41
SECTION 4.5 Corporate Existence and Power 42
SECTION 4.6 Subsidiaries 42
SECTION 4.7 Charter Documents 43
SECTION 4.8 Capitalization 43
SECTION 4.9 Financial Information 44
SECTION 4.10 Liabilities 44
SECTION 4.11 Receivables 45
SECTION 4.12 Inventories 45
SECTION 4.13 Absence of Certain Changes 46
SECTION 4.14 Title to Properties 48
SECTION 4.15 Contracts 51
SECTION 4.16 Intangible Property 54
SECTION 4.17 Claims and Proceedings 55
SECTION 4.18 Restrictions on Business
Activities 55
SECTION 4.19 Taxes 55
SECTION 4.20 Employee Benefits Plans 57
SECTION 4.21 Officers, Directors and Key
Employees 61
SECTION 4.22 Employment Related Matters 61
SECTION 4.23 Potential Conflicts of
Interest 62
SECTION 4.24 Insurance 62
SECTION 4.25 Suppliers, Customers and
Contractors 63
SECTION 4.26 Compliance with Laws 63
SECTION 4.27 Permits 63
SECTION 4.28 Environmental Matters 64
SECTION 4.29 Finders; Fees 65
SECTION 4.30 Disclosure 65
ARTICLE V COVENANTS AND AGREEMENTS 65
SECTION 5.1 Conduct of Business of Company 65
SECTION 5.2 Conduct of Business of Buyer 67
SECTION 5.3 Corporate Examinations and
Investigations 68
SECTION 5.4 Additional Financial
Statements 69
SECTION 5.5 Filings and Authorizations 70
SECTION 5.6 Efforts to Consummate 70
SECTION 5.7 Negotiations With Others 71
SECTION 5.8 Notices of Certain Events 72
SECTION 5.9 Public Announcements 72
SECTION 5.10 Confidentiality 73
SECTION 5.11 Expenses. 74
SECTION 5.12 Tax Matters 74
SECTION 5.13 Restrictive Covenant. 75
SECTION 5.14 Possible Future Ventures 77
ARTICLE VI CONDITIONS TO CLOSING 78
SECTION 6.1 Conditions to the Obligations
of Sellers and Buyer 78
SECTION 6.2 Conditions to the Obligations
of Sellers 79
SECTION 6.3 Conditions to the Obligations
of Buyer 81
ARTICLE VII INDEMNIFICATION 83
SECTION 7.1 Survival of Representations
and Warranties 83
SECTION 7.2 Obligation of Sellers to
Indemnify 84
SECTION 7.3 Obligation of Buyer to
Indemnify 84
SECTION 7.4 Notice and Opportunity to
Defend Third Party Claims 85
SECTION 7.5 Limits on Indemnification 86
SECTION 7.6 Tax Impact 87
SECTION 7.7 Indemnity Sole Remedy 87
ARTICLE VIII TERMINATION 87
SECTION 8.1 Termination 87
SECTION 8.2 Effect of Termination; Right
to Proceed 88
ARTICLE IX MISCELLANEOUS 89
SECTION 9.1 Notices 89
SECTION 9.2 Entire Agreement 91
SECTION 9.3 Waivers and Amendments; Non-
Contractual Remedies; Preservation of Remedies 91
SECTION 9.4 Governing Law 91
SECTION 9.5 Consent to Jurisdiction and
Service of Process 92
SECTION 9.6 Designated Buyer 92
SECTION 9.7 Binding Effect; No Assignment 92
SECTION 9.8 Exhibits 92
SECTION 9.9 Severability 93
SECTION 9.10 Counterparts 93
EXHIBITS
Exhibit A - List of Sellers
Exhibit B - Form of Legal Opinion of Counsel to Buyer
Exhibit C - Form of Legal Opinion of Counsel to Sellers
A. SELLER SCHEDULES
Schedule 3.1 Restrictions on Purchased Shares
Schedule 3.4 Seller Required Consents
Schedule 3.5 Jurisdictions in which Authorized to Transact Business
Schedule 3.6 Company Subsidiaries
Schedule 3.8 Capitalization
Schedule 3.10A Certain Liabilities
Schedule 3.10B Company Debt
Schedule 3.11 Certain Company Receivables
Schedule 3.13 Recent Developments
Schedule 3.14A Company Real Property
Schedule 3.14B Company Leased Tangible Property
Schedule 3.14C Company Permitted Liens
Schedule 3.15 Contracts
Schedule 3.16 Company Intellectual Property Rights
Schedule 3.17 Claims and Proceedings
Schedule 3.19 Tax Matters
Schedule 3.20 Employee Benefit Plans
Schedule 3.22 Employment-Related Matters
Schedule 3.23 Potential Conflicts of Interest
Schedule 3.24 Insurance
Schedule 3.25A Suppliers and Customers
Schedule 3.25B Contractors
Schedule 3.27 Permits
Schedule 3.28 Environmental Matters
Schedule 3.30 Depositories; Powers of Attorney
Schedule 5.1 Certain Matters Prior to Closing
B. BUYER SCHEDULES
Schedule 4.4 Buyer Required Consents
Schedule 4.6 Buyer Subsidiaries
Schedule 4.8 Capitalization
Schedule 4.10A Liabilities
Schedule 4.10B Buyer Debt
Schedule 4.11 Certain Buyer Receivables
Schedule 4.13 Recent Developments
Schedule 4.14A Buyer Real Property
Schedule 4.14B Buyer Leased Tangible Property
Schedule 4.14C Buyer Permitted Liens
Schedule 4.15 Contracts
Schedule 4.16 Buyer Intellectual Property Rights
Schedule 4.17 Claims and Proceedings
Schedule 4.19 Taxes
Schedule 4.9 Employee Benefit Plans
Schedule 4.22 Employment - Related Matters
Schedule 4.23 Potential Conflicts of Interest
Schedule 4.25A Suppliers and Customers
Schedule 4.25B Contractors
Schedule 4.28 Environmental Matters
Schedule 5.2 Certain Matters Prior to Closing
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated as of April 26, 1995
between MAIDENFORM WORLDWIDE, INC., a Delaware
corporation, and each of the security-holders listed on
the signature page of this Agreement (each a "Seller"
and collectively the "Sellers"):
W I T N E S S E T H:
WHEREAS, each Seller owns the number of shares of Common
Stock, par value $1.00 per share (the "Company Common
Stock"), set out in Exhibit A next to the name of such
Seller under the caption "Total Number of Purchased
Shares" (collectively, the "Purchased Shares"), which
Purchased Shares constitute approximately 92% of the issued and
outstanding shares of capital stock of NCC Industries,
Inc., a Delaware corporation (the "Company"); and
WHEREAS, each Seller desires to sell and Maidenform
Worldwide, Inc. desires to purchase all of the Purchased
Shares owned by such Seller on the terms and subject to
the conditions set forth herein; NOW, THEREFORE, in consideration of
the mutual promises,covenants and other agreements contained herein, the
parties hereby agree as follows:
DEFINITIONS
Definitions. (a) The following terms, as used
herein, have the following meanings:
"Acquisition Proposal" shall mean any proposal for the
acquisition of, or merger or other business combination
involving the Company or any Company Subsidiary or the
sale of the Purchased Shares or the sale of any equity
interest in, or a substantial portion of the Assets of,
the Company or any Company Subsidiary, other than the
transactions contemplated by this Agreement.
"Affiliate" of any person means any other person
directly or indirectly through one or more intermediary
persons, controlling, controlled by or under common
control with such person.
"Agreement" or "this Agreement" shall mean, and the
words "herein", "hereof" and "hereunder" and words of
similar import shall refer to, this agreement as it from
time to time may be amended.
"Ancillary Agreements" shall mean the following
instruments to be entered on the Closing Date: (i)
Retirement Agreement between Maidenform, Inc. and Robert
A. Brawer with a guaranty appended thereto of Buyer;
(ii) Employment Agreement between Maidenform, Inc. and
Elizabeth J. Coleman with a guaranty appended thereto of
Buyer; (iii) Employment Agreement between Maidenform,
Inc. and Catherine C. Brawer with a guaranty appended
thereto of Buyer; (iv) Employment Agreement between
Maidenform, Inc. and Magrone with a guaranty appended
thereto of Buyer; (v) Purchase Agreement between Robert
A. Brawer and Buyer with a guaranty appended thereto of
Maidenform, Inc.; and (vi) Call Agreement by and among
the stockholders of Buyer other than Triumph,
Spiesshofer and Magrone.
"Assets" shall mean properties, rights, interests and
assets of every kind, real, personal or mixed, tangible
and intangible.
"Audit" or "audited" when used in regard to financial
statements shall mean an examination of the financial
statements by a firm of independent certified public
accountants in accordance with generally accepted
auditing standards for the purpose of expressing an
opinion thereon.
"Business" in relationship to any person shall mean the
business currently conducted by such person.
"Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on
which banking institutions in the Borough of Manhattan,
the City of New York, are authorized or obligated by law
or executive order to close.
"Buyer" shall mean Maidenform Worldwide, Inc., a
Delaware corporation and the successor by operation of
law to Maidenform Worldwide, Inc., a New York
corporation (the "Predecessor"). Unless specifically
stated otherwise, references herein to "Buyer" shall
include the Predecessor.
"Buyer Balance Sheet" shall mean the consolidated
balance sheet of Buyer included in its audited financial
statements as at and for the fiscal year ended December
31, 1994.
"Buyer Balance Sheet Date" shall mean December 31, 1994.
"Buyer Common Stock" shall mean Buyer's Class A shares
of Common Stock, par value $.01 per share, entitling the
holders thereof to ten votes per share.
"Certificate of Incorporation" shall mean, in the case
of Buyer, its Restated Certificate of Incorporation,
dated the date hereof, and, in the case of any other
corporation, the certificate of incorporation, articles
of incorporation or charter of a corporation, howsoever
denominated under the laws of the jurisdiction of its
incorporation.
"Close of Business" on any given date shall mean 5:00
p.m., Eastern Time, on such date; provided, however,
that if such date is not a Business Day, "Close of
Business" shall mean 5:00 p.m., Eastern Time, on the
next succeeding Business Day.
"Company Balance Sheet" shall mean the consolidated
balance sheet of the Company included in its audited
financial statements as at and for its fiscal year ended
December 31, 1994.
"Company Balance Sheet Date" shall mean December 31,
1994.
"Company Merger" shall mean (i) a merger of the
Company with and into Buyer or one of Buyer's
Affiliates; (ii) a merger of Buyer or one of Buyer's
Affiliates with and into the Company; (iii) any other
consolidation or business combination between the
Company and Buyer or one of Buyer's Affiliates and (iv)
any one of the foregoing transactions involving any
Company Subsidiary.
"Contingency" with respect to a person shall mean any
unasserted Liability of which there is a reasonable
possibility of assertion and with respect to which the
possibility of such person incurring a Liability
materially adverse to the Condition of the Business or
the Condition of Buyer, as applicable, is not remote.
"Contract" shall mean any contract, agreement,
indenture, note, bond, lease, conditional sale contract,
mortgage, license, franchise, instrument, commitment or
other binding arrangement.
"Contractor" shall mean a person retained to design, cut,
assemble, produce or package products.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
The term "control", with respect to any person, shall
mean the power to direct the management and policies of
such person, directly or indirectly, by or through stock
ownership, agency or otherwise, or pursuant to or in
connection with an agreement, arrangement or
understanding (written or oral) with one or more other
persons by or through stock ownership, agency or
otherwise; and the terms "controlling" and "controlled"
shall have meanings correlative to the foregoing.
"Environmental Laws" shall mean any and all statutes,
laws (including case law), codes, regulations,
ordinances, rules, judgments, orders, decrees,
franchises, licenses, agreements or any other
requirement or restriction promulgated, imposed, enacted
or issued by any federal, state, local and foreign
Governmental Bodies relating to human health or the
environment, including the emission, discharge or
Release of pollutants, contaminants, Hazardous
Substances or wastes into the environment (which
includes, without limitation, ambient air, surface
water, ground water, or land), or otherwise relating to
the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of
pollutants, contaminants, Hazardous Substances or wastes
or the cleanup or other remediation thereof.
"Environmental Laws" shall include but not be limited to
the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 (42 U.S.C. 9601, et seq.), as
amended by the Superfund Amendments and Reauthorization
Act of 1986 (42 U.S.C. 9601, et seq.) as amended
("CERCLA"); the Resource Conservation and Recovery Act
of 1976, as amended (42 U.S.C. 6901, et seq.); the
Clean Water Act (Water Pollution Control Act), as
amended (33 U.S.C. 1251, et seq.); the Clean Air Act, as amended
(42 U.S.C. 7401, et seq.); the Insecticide, Fungicide and Rodenticide
Act, Pesticide Act of 1978, as amended (7 U.S.C. 136, et seq.);
the Toxic Substances Control Act of 1976, as amended (15 U.S.C.
2601 et seq.) the Safe Drinking Water Act (42 U.S.C. 300(f) et seq.) as
amended; and the Hazardous Materials Transportation Control Act (49 U.S.C.
1801 et seq.).
"Environmental Liabilities" shall mean all Liabilities
arising from, relating to, or otherwise in connection
with the Company Real Property or Buyer Real Property,
as applicable, which (i) arise under or relate to
Environmental Laws and (ii) arise from or relate in any
way to actions occurring or conditions existing on or
prior to the Closing Date, including but not limited to
Third Party Claims and Regulatory Actions.
"Environmental Permits" with respect to a person shall
mean those material Permits required by such person in
connection with its Business or the use and operation of
the real property owned or leased by it.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
"ERISA Group" shall mean all persons which are treated
as being under common control or as a single employer
with the Company or any of its Subsidiaries or Buyer or
any of its Subsidiaries, as applicable, under Section
414(b), (c), (m) or (o) of the Code.
"GAAP" shall mean generally accepted accounting
principles in effect on the date hereof as set forth in
the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified
Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such
other statements by such other entity as may be approved
by a significant segment of the accounting profession of
the United States.
"Hazardous Substances" shall mean any dangerous,
toxic, radioactive, caustic or otherwise hazardous
material, pollutant, contaminant, chemical, waste or
substance defined, listed or described as any of such in
or governed by any Environmental Law, including but not
limited to ureaformaldehyde, polychlorinated biphenyls,
asbestos or asbestos-containing materials, nuclear or
radioactive fuel or waste, radon, explosives, known
carcinogens, petroleum and its derivatives, petroleum
products, or any other waste, material, substance,
pollutant or contaminant having any constituent elements
displaying any of the foregoing characteristics, or
which might cause any injury to human health or safety
or to the environment or might subject the owner or
operator of the Company Real Property or Buyer Real
Property, as applicable, to any Regulatory Actions or
Third Party Claims.
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
"IRS" shall mean the Internal Revenue Service.
"Knowledge" with respect to (a) any individual shall
mean actual knowledge and (b) any corporation shall mean
the actual knowledge of the directors and the executive
officers of such corporation; and "knows" has a
correlative meaning.
"Liability" shall mean any direct or indirect
indebtedness, liability, assessment, claim, loss,
damage, deficiency, obligation or responsibility, fixed
or unfixed, choate or inchoate, liquidated or
unliquidated, secured or unsecured, accrued, absolute,
actual or potential, contingent or otherwise (including
any liability under any guaranties, letters of credit or
performance credits), of a kind required by GAAP to be
set forth on a financial statement or in the notes
thereto.
"Lien" shall mean, with respect to any Asset, any
mortgage, lien (including mechanics, warehousemen,
laborers and landlords liens), claim, pledge, charge,
security interest, preemptive right, right of first
refusal, option, judgment, title defect, or encumbrance
of any kind in respect of or affecting such Asset.
"Magrone" shall mean Frank Magrone, one of the Sellers.
"Multiemployer Plan" shall mean a multiemployer plan
(as defined in Section 4001(a)(3) of ERISA) to which any
ERISA Group member makes, or is obligated to make,
contributions for which there may be any liability.
"1934 Act" shall mean the Securities Exchange Act of
1934, as amended, and all rules and regulations
promulgated thereunder.
"1933 Act" shall mean the Securities Act of 1933, as
amended, and all rules and regulations promulgated
thereunder.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation or any entity succeeding to any or all of
its functions.
"Pension Plan" shall mean a pension plan (as defined
in Section 3(2) of ERISA) which the Company or any of
its Subsidiaries or the Buyer or any of its
Subsidiaries, as applicable, sponsors, maintains or to
which the Company or any of its Subsidiaries or the
Buyer or any of its Subsidiaries, as applicable, makes
or is obligated to make contributions.
The term "person" shall mean an individual, corporation,
partnership, joint venture, association, trust,
unincorporated organization or other entity, including a
government or political subdivision or an agency or
instrumentality thereof.
"Plan" shall mean any employee benefit plan (as defined
in Section 3(3) of ERISA), severance bonus or other
incentive compensation, vacation, change of control,
stock option, stock appreciation right, service award,
company car, club membership, relocation, educational
assistance, patent award, employee loan, policy,
practice or arrangement, employment or consultancy as to
which the Company or any of its Subsidiaries or Buyer or
any of its Subsidiaries, as applicable, sponsors,
maintains or makes or is obligated to make contributions
or payments or for which there may be any liability.
"412 Plan" shall mean a pension plan (as defined in
Section 3(2) of ERISA) which any member of the
applicable ERISA Group sponsors or maintains, and is
covered under Section 412 of the Code.
"Recapitalization Transactions" shall mean,
collectively, the following transactions which are also
described in Schedule 5.2 of Buyer's Schedules: (i) the
reincorporation merger on or prior to the date hereof of
the Predecessor into Buyer (the "Reincorporation
Merger"); (ii) the redemption prior to the date hereof
by the Predecessor of 88,697 Class B shares of its
common stock for a price of $3,050,112; (iii) the merger
prior to the date hereof of Chranima, Inc., a New York
corporation, with and into the Predecessor; (iv) the
payment prior to the date hereof of a dividend by the
Predecessor in the amount of $2,456,000; (v) the
redemption prior to the date hereof by Elizabeth Needle
Craft, Inc., a New York corporation, of its shares of
nonvoting preferred stock; (vi) the transfer of shares
(but not the registration of such transfer) on or prior
to the date hereof held by Robert A. Brawer in
Maidenform (UK) Limited and Creaciones Textiles de
Merida, S.A. de C.V. to a nominee of Maidenform, Inc.
and (vii) the filing on the date hereof of Buyer's
Certificate of Incorporation to reclassify its capital
stock and make other changes to its Certificate of
Incorporation.
"Regulatory Actions" shall mean any claim, demand,
action, suit or proceeding brought or instigated by any
Governmental Body in connection with any Environmental
Law, including, without limitation, civil, criminal
and/or administrative proceedings, and whether or not
seeking costs, damages, penalties or expenses.
"Release" shall mean the intentional or unintentional,
spilling, leaking, disposing, discharging or disturbance
of, or emitting, depositing, injecting, leaching,
escaping, or any other release or threatened release to
or from, however defined, any Hazardous Substance in
violation of any Environmental Law.
"Reportable Event" shall mean any of the events
described in Section 4043(b)(1), (2), (3), (5), (6), (8)
or (9) of ERISA.
"SEC" shall mean Securities and Exchange Commission.
"Sellers' Accountants" shall mean Coopers & Lybrand
L.L.P., independent certified public accountants, or
such other "Big 6" accounting firm selected by Sellers.
"Spiesshofer" shall mean Guenther Spiesshofer, one of the
Sellers.
"Stockholders' Agreement" shall mean the Stockholders'
Agreement among the Buyer and all its stockholders to be
entered into on the Closing Date after the consummation
of the Recapitalization Transactions and upon the
acquisition by Sellers of Buyer Common Stock.
"Subsidiary" as to any person shall mean any entity of
which securities or other ownership interests having
ordinary voting power to elect a majority of the board
of directors or other persons performing similar
functions are owned directly or indirectly through one
or more intermediaries, or both, by such person.
"Tax" (including, with correlative meaning, the terms
"Taxes" and "Taxable") shall mean (i) any net income,
gross income, gross receipts, sales, use, ad valorem,
transfer, transfer gains, franchise, profits, license,
withholding, payroll, employment, excise, severance,
stamp, occupation, premium, property or windfall profits
tax, alternative or add-on minimum tax, customs duty or
other tax, fee, assessment or charge of any kind
whatsoever (including but not limited to taxes assessed
to real property and water and sewer rents relating
thereto), together with any interest and any penalty,
addition to tax or additional amount imposed by any
Governmental Body (domestic or foreign) responsible for
the imposition of any such tax (a "Taxing Authority"),
with respect to the Company, any Company Subsidiary or
the Company Real Property (or the transfer thereof) or
Buyer or any Buyer Subsidiary, as applicable; (ii) any
liability for the payment of any amount of the type
described in the immediately preceding clause (i) as a
result of the Company or any Company Subsidiary or Buyer
or any Buyer Subsidiary, as applicable, being a member
of an affiliated or combined group with any other
corporation at any time on or prior to the Closing Date
and (iii) any liability of the Company or any Company
Subsidiary or Buyer or any Buyer Subsidiary, as
applicable, for the payment of any amounts of the type
described in the immediately preceding clause (i) as a
result of a contractual obligation to indemnify any
other person.
"Taxable Year" with respect to a person shall mean,
with respect to any Tax of such person, the calendar or
fiscal year, or shorter period, for which the Tax is
computed and the Tax return for such Tax is made.
"Third Party Claims" shall mean any claim, action,
demand, suit or proceeding (other than Regulatory
Actions) based on negligence, trespass, strict
liability, nuisance, toxic tort or detriment to human
health or welfare and, with respect to any of the
foregoing, due to Release or other contamination or
alleged contamination, or other violation of
Environmental Law and whether or not seeking costs,
damages, penalties or expenses brought by any person or
entity other than a Governmental Body.
"Triumph" shall mean Triumph International Overseas
Limited, a Liechtenstein corporation and one of the
Sellers.
"Transaction Documents" shall mean, collectively, this
Agreement, the Stockholders' Agreement, and each of the
other agreements and instruments to be executed and
delivered by all or some of the parties hereto in
connection with the consummation of the transactions
contemplated hereby.
"Unfunded Pension Liability" shall mean, as of any
determination date, the amount, if any, by which the
present value of all accrued benefits under a Plan
subject to Title IV of ERISA exceeds the fair market
value of all assets of such plan all determined using
the actuarial assumptions set forth in the Plan.
The term "voting power" when used with reference to the
capital stock of, or units of equity interests in, any
person shall mean the power under ordinary circumstances
(and not merely upon the happening of a contingency) to
vote in the election of directors of such person (if
such person is a corporation) or to participate in the
management and control of such person (if such person is
not a corporation). "Welfare Plan" shall mean an employee welfare benefit
plan within the meaning of Section 3(1) of ERISA.
"Withdrawal Liabilities" shall mean the amount of
liability determined or which may be determined pursuant
to Section 4201 of ERISA with respect to a Multiemployer
Plan.
(a) The following terms are defined in
the following sections of this Agreement:
<TABLE>
<S> <C>
Term Section
Asserted Liability 7.4(a)
Authorized Agent 9.5
Brawer Stock Sale Agreement 6.1(e)
Buyer's Accountants 2.4(c)
Buyer Debt 4.10(b)
Buyer ERISA Group Plans 3.20(a)
Buyer Intellectual Property Rights 4.16(a)
Buyer Products 4.17
Buyer Proposed Contracts 4.15(c)
Buyer Real Property 4.14(a)
Buyer Receivables 4.11
Buyer Required Consents 4.4
Buyer Returns 4.19(a)
Buyer Subsidiary 4.6(a)
Buyer Tangible Property 3.14(b)
Claims 3.17
Claims Notice 7.4(a)
Closing 2.3
Closing Date 2.3
Company Recital
Company Common Stock Recital
Company Debt 3.10(b)
Company Intellectual Property
Rights 3.16
Company Leased Real Property 3.14(a)
Company Owned Real Property 3.14(a)
Company Permitted Liens 3.14(d)
Company Products 3.17
Company Proposed Contracts 3.15(c)
Company Real Property 3.14(a)
Company Returns 3.19
Company Subsidiary 3.6(a)
Company Tangible Property 3.14(b)
Condition of the Business 3.5
Condition of Buyer 4.5
Contemplated Transactions 3.3
Contingencies 3.10(a)
Designated Buyer 9.6
Governmental Bodies 3.26
Indemnifying Party 7.4(a)
Indemnitee 7.4(a)
Laws 3.26
Losses 7.2
Orders 3.26
Permits 3.27
Pre-Closing Tax Period 3.19(b)
Purchase Price 2.2
Purchased Shares Recital
Representatives 5.3
Restrictive Covenants 5.13(c)
Restricted Period 5.13(a)(i)
Seller ERISA Group Plans 4.20(a)
Seller Permitted Liens 4.14(d)
Seller Required Consents 3.4
Seller Tangible Property 4.14(b)
Sellers Recital
Stipulated Amount 7.5(a)
WARN 3.22
</TABLE>
Interpretation. Unless the context otherwise
requires, the terms defined in Section 1.1 shall have
the meanings herein specified for all purposes of this
Agreement, applicable to both the singular and plural
forms of any of the terms defined herein. All
accounting terms defined in Section 1.1, and those
accounting terms used in this Agreement not defined in
Section 1.1, except as otherwise expressly provided
herein, shall have the meanings customarily given
thereto in accordance with GAAP. When a reference is
made in this Agreement to Sections, such reference shall
be to a Section of this Agreement unless otherwise
indicated. The 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". The use of
the neuter gender herein shall be deemed to include the
masculine and feminine genders wherever necessary or
appropriate, the use of the masculine gender shall be
deemed to include the neuter and feminine genders and
the use of the feminine gender shall be deemed to
include the neuter and masculine genders wherever
necessary or appropriate.
PURCHASE AND SALE; CLOSING
Purchase and Sale of Purchased Shares. Subject
to the terms and conditions set forth herein, each
Seller severally agrees to sell, transfer and deliver to
Buyer, and Buyer agrees to purchase, acquire and accept
from each Seller, the Purchased Shares of such Seller.
Consideration. Subject to the terms and
conditions set forth herein, the purchase price (the
"Purchase Price") payable by Buyer for the Purchased
Shares shall be payable on the Closing Date to the
Sellers in cash and/or in shares of Buyer Common Stock,
as indicated below. The cash portion of the Purchase
Price shall be payable by wire transfer of immediately
available funds to accounts designated by Sellers by
written notice given to Buyer at least two (2) Business
Days prior to the Closing Date.
Name of Cash Number of shares of Buyer
Seller portion of Common
Purchase Stock to be issued to such
Price Seller
Triumph and $26,860,496 81,925.17
Spiesshofer
Magrone 2,891,010 7,155.83
Total $29,751,506 89,081.00
Closing. The closing (the "Closing") of the
purchase and sale of the Purchased Shares hereunder
shall take place at the offices of Baer Marks & Upham,
805 Third Avenue, New York, New York at 10:00 a.m.,
local time, on the date hereof (the time and date of the
Closing being hereinafter called the "Closing Date").
All transactions consummated at the Closing shall be
deemed to have taken place simultaneously.
Purchase Price Adjustment. (a) The Purchase
Price payable to Triumph shall be increased by an amount
(the "Adjustment"), if any, equal to 45% of the excess,
if any, of $110,880,000 over the sum of (i) the
aggregate cumulative consolidated earnings before
interest and taxes ("EBIT") of Buyer and its
Subsidiaries for the three-year period commencing
January 1, 1995 and ending December 31, 1997 (the "Three-
Year Period"), plus (ii) the consolidated EBIT for the
Company and the Company Subsidiaries for the period from
January 1, 1995 through the Closing Date, provided that
(A) the amount of the Adjustment shall not exceed
$5,500,000 and (B) the Adjustment shall be reduced by an
amount equal to 8 1/2% of the excess, if any, of
$436,152,000 over the "NCC Net Sales" (determined as
provided in sub-sections (b) and (c) below) during the
Three-Year Period. The amount, if any, payable to
Triumph pursuant to the provisions of this Section 2.4
(a) shall be paid not later than April 30, 1998.
(a) In the event of the consummation of a
Company Merger, Buyer will operate the Company as a
separate sales division and will maintain separate books
and records for such division so that the determination
of NCC Net Sales will be auditable. As used in this
Section 2.4(b), the Company, or if the Company is
operated as a separate sales division of Buyer such division,
is referred to herein as the "NCC Division". For purposes hereof, "NCC Net
Sales" shall mean the total net sales (determined in
accordance with GAAP, consistently applied from year to
year) of the NCC Division to unaffiliated entities as
well as intercompany sales of the NCC Division to other
divisions of Buyer. To the extent intercompany NCC Net
Sales include sales of the NCC Division to other
divisions of Buyer that are not made on an arms-length
basis, intercompany sales of the NCC Division to other
divisions of Buyer shall be recomputed on a basis as if
such sales were on terms which were no less favorable to
the NCC Division than the terms of sales by the Company
to Buyer or an Affiliate thereof prior to Closing and
shall be priced on an arms-length basis. With respect to
sales made by the NCC Division to outlet stores of
Maidenform, Inc. such pricing, consistent with past practice, shall be on
a "close-out" basis.
(b) The EBIT of Buyer and NCC Net
Sales shall each be determined by the independent
certified public accountants engaged by Buyer with
respect to the applicable calendar year for which the
determination is made (the "Buyer's Accountants") and
shall be based upon Buyer's audited consolidated
financial statements for the respective calendar year.
The EBIT of the Company and Company Subsidiaries and the
NCC Net Sales for the period from January 1, 1995
through the Closing Date shall be based on reviewed
financial statements of the Company for such period and
shall be determined by Buyer's Accountants. The Buyer's
Accountants shall determine the elements included in
EBIT in accordance with GAAP, consistently applied from
year to year; and shall compute EBIT on a basis
consistent with the methodology used in formulating the
projections included as Exhibit 3 in the Appraisal of
the Capital Stock of Maidenform Worldwide, Inc. and NCC
Industries, Inc. as of November 30, 1994 prepared by
Core States Investment Banking. Within 120 days after
the end of the respective calendar year, Buyer shall
deliver to Sellers a copy of the EBIT of Buyer and NCC
Net Sales computations of Buyer's Accountants for the
respective calendar year.
(c) If Triumph does not agree with the
determinations made by Buyer's Accountants, in
accordance with the provisions of Section 2.4(c), and
Triumph and Buyer are unable to resolve such
disagreements within 30 days after receipt of such
determinations, or such longer period as the parties may
mutually agree upon, the matters in dispute shall be
referred for settlement to KPMG Peat Marwick LLP,
independent certified public accountants, or such other
"Big 6" accounting firm as may be mutually agreed upon
(the "Accounting Firm"). Promptly thereafter, the
Accounting Firm shall review the matters in dispute (the
"Disputed Matters") and make any adjustments necessary
to EBIT and NCC Net Sales over the relevant periods.
Each of Triumph and Buyer will make available to the
Accounting Firm all information reasonably requested by
the Accounting Firm in connection with such review. All
written communications to or from the Accounting Firm by
one party shall be furnished simultaneously to the other
party, and each party shall be afforded reasonable
opportunity to participate in all non-written
communications with the Accounting Firm in connection
with such review. Any determination by the Accounting
Firm pursuant to this Section 2.4(d) shall be delivered
by the Accounting Firm to Triumph and Buyer and shall be
final, conclusive and non-appealable. Triumph, on the
one hand, and Buyer on the other hand, shall bear the
fees and expenses of the Accounting Firm in equal shares.
REPRESENTATIONS AND WARRANTIES OF SELLERS
Each of Spiesshofer and Magrone, severally, as to the
matters relating to himself and the Purchased Shares
owned by him referred to in Sections 3.1, 3.2, 3.3, 3.4
and 3.31 (it being understood and agreed that neither
Spiesshofer nor Magrone is making any representations or
warranties as to any other Section of this Agreement),
and Triumph as to all matters referred to in this
Article III, represent and warrant to Buyer that:
Status of the Purchased Shares. Except as set
forth on Schedule 3.1, the Purchased Shares are subject to
no restrictions on transferability other than
restrictions imposed by (a) the 1933 Act and (b)
applicable state securities Laws. Except as set forth
on Schedule 3.1, there are no outstanding options,
warrants, calls, preemptive rights, rights of first
refusal, or other rights to purchase or acquire from any
Seller, or any plans, contracts or commitments providing
for the issuance of, or the granting of rights to any
Seller to acquire: (i) any capital stock of the Company
or (ii) any securities convertible into or exchangeable
for any capital stock of the Company. No Seller is
contractually obligated or entitled to repurchase or
otherwise acquire any outstanding shares of capital
stock of the Company.
Title to the Purchased Shares. Except as set
forth on Schedule 3.1, each Seller owns and holds title
to such Seller's Purchased Shares free and clear of any
Lien of any kind. At the Closing, Buyer will acquire
title to such Seller's Purchased Shares, free and clear
of any Lien of any kind other than Liens created by
Buyer.
Authority Relative to this Agreement. Each
Seller has full power, capacity and authority to execute
and deliver this Agreement and each other Transaction
Document to which he or it is a party and to consummate
the transactions contemplated hereby and thereby (the
"Contemplated Transactions"). The execution and
delivery of this Agreement and the consummation of the
Contemplated Transactions to which such Seller is a
party have been duly and validly authorized by each
Seller and no other proceedings on the part of any
Seller (or any other person) are necessary to authorize
the execution and delivery by such Seller of this
Agreement or the consummation of the Contemplated
Transactions to which such Seller is a party. This
Agreement has been duly and validly executed and
delivered by each Seller, and (assuming the valid
execution and delivery of this Agreement by the other
parties hereto) constitutes the legal, valid and binding
agreement of such Seller enforceable against such Seller
in accordance with its terms except as such obligations
and their enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the enforcement of
creditors' rights generally and except that the
availability of equitable remedies, including specific
performance, is subject to the discretion of the court
before which any proceeding therefor may be brought
(whether at law or in equity).
No Conflicts; Consents. The execution, delivery
and performance by each Seller of this Agreement and
each other Transaction Document to which he or it is a
party, the consummation of the Contemplated Transactions
to which such Seller is a party or the contemplated
change of control of the stock ownership of the Company,
will not (i) violate any provision of the Certificate of
Incorporation or By-laws (or comparable instruments) of
Triumph, the Company or any of the Company Subsidiaries;
(ii) require the Sellers, the Company or any of the
Company Subsidiaries to amend any Contract, obtain any
consent, approval or action of or waiver from, or make
any filing with, or give any notice to, any Governmental
Body or any other person, except for compliance with the
HSR Act and as set forth on Schedule 3.4 (the "Seller
Required Consents"); (iii) if the Seller Required Consents are
obtained, violate, conflict with or result in the breach
of any of the terms of, result in a material
modification of the effect of, or otherwise cause the
termination of, give any other contracting party the
right to terminate, or constitute (or with notice or
lapse of time or both constitute) a default under, any
Contract to which any Seller, the Company or any of the
Company Subsidiaries is a party or by or to which any of
them or any of their Assets may be bound or subject, or
result in the creation of any Lien upon the Purchased
Shares or upon the properties of the Company or any of
the Company Subsidiaries pursuant to the terms of any
such Contract other than such violations, conflicts,
breaches, modifications, terminations, rights to
terminate, defaults or Liens that, individually or in
the aggregate, would not have a material adverse effect
on the Condition of the Business; (iv) if the Seller
Required Consents are obtained, violate any Law or Order
of any Governmental Body against, or binding upon, any
Seller, the Company or any of the Company Subsidiaries
or upon their respective Assets or Business other than
such violations that, individually or in the aggregate,
would not have a material adverse effect on the
Condition of the Business; (v) if the Seller Required
Consents are obtained, violate or result in the
revocation or suspension of any Permit other than such
violations that, individually or in the aggregate, would
not have a material adverse effect on the Condition of
the Business; or (vi) if the Seller Required Consents
are not obtained, have a material adverse effect on the
Condition of the Business.
Corporate Existence and Power. Each of Triumph
and the Company is a corporation duly organized, validly
existing and in good standing under the laws of its
jurisdiction of incorporation, and has all requisite
powers and all material governmental licenses,
authorizations, consents and approvals required to carry
on its business as now conducted. The Company is duly
qualified to do business as a foreign corporation and is
in good standing in each continental United States
jurisdiction where the character of the property owned
or leased by it or the nature of its activities makes
such qualification necessary, except for those
jurisdictions where the failure to be so qualified would
not, individually or in the aggregate, have a material
adverse effect on the business, its Assets, financial
condition or the results of operations of the Company
and the Company Subsidiaries taken as a whole
(collectively, the "Condition of the Business"). The
Company is duly qualified to do business as a foreign corporation
in each of the jurisdictions listed on Schedule 3.5 hereto.
Company Subsidiaries. (a) Each Company
Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of its
jurisdiction of incorporation or other organization, has
all corporate or other powers and all material
governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted and is duly qualified to do business as a
foreign person and is in good standing in each
jurisdiction where the character of the property owned
or leased by it or the nature of its activities make
such qualification necessary, except for such
jurisdictions where the failure to be so qualified would
not, individually or in the aggregate, have a material
adverse effect on the Condition of the Business.
(a) Schedule 3.6 sets out the name of
each Subsidiary of the Company ("Company Subsidiary"),
its jurisdiction of incorporation or other organization,
each jurisdiction in which it is duly qualified to do
business as a foreign corporation, the authorized
capital stock or other ownership interests of, and the
securities issued by, each Company Subsidiary, together
with the holders of all such outstanding securities.
Except for the Company Subsidiaries set forth on
Schedule 3.6, the Company does not directly or
indirectly own any interest in any other person.
(b) Except as set forth on Schedule 3.6,
all of the outstanding capital stock or other ownership
interests of each Company Subsidiary is owned by the
Company, directly or indirectly, free and clear of any
Lien and any other limitation or restriction (including
any restriction on the right to vote, sell or otherwise
dispose of such capital stock or other ownership
interests). All of the outstanding capital stock or
other ownership interests of each Company Subsidiary is
validly issued, fully paid and nonassessable and was not
issued in violation of any preemptive rights, rights of
first refusal or any other contractual or legal
restrictions of any kind. Except as set forth on
Schedule 3.6, there are no outstanding (i) securities of
the Company or any Company Subsidiary convertible into
or exchangeable for capital stock or other ownership
interests in any Company Subsidiary and (ii) options,
warrants, calls or other rights to acquire from the
Company or any Company Subsidiary, and no obligation of
the Company or any Company Subsidiary to issue, any
capital stock or other ownership interests of, or any
securities convertible into or exchangeable for any
capital stock of or ownership interests in, any Company
Subsidiary. Except as set out in Schedule 3.6, there
are no outstanding obligations of any Company Subsidiary
to repurchase, redeem or otherwise acquire any
securities of the Company or any Company Subsidiary.
Charter Documents and Corporate Records. (a)
Triumph has heretofore delivered to the Buyer true and
complete copies of the Certificate of Incorporation
(certified by the Secretaries of State or other
appropriate official of their respective jurisdictions
of incorporation) and By-laws (certified by the
respective corporation's secretary or an assistant
secretary), or comparable instruments, of Triumph, the Company and
each of the Company Subsidiaries as in effect on the date hereof.
The stock and transfer books of the Company and each of
the Company Subsidiaries have been made available to the
Buyer for its inspection and are true and complete.
(a) All financial, business and
accounting books, ledgers, accounts and official and
other records relating to the Company and each Company
Subsidiary have been properly and accurately kept and
completed in all material respects, and there are no
material inaccuracies or discrepancies contained or
reflected therein. Neither the Company nor any Company
Subsidiary has any records, systems, Contracts, data or
information, recorded, stored, maintained, operated or
otherwise wholly or partly dependent upon or held by any
means (including any electronic, mechanical or
photographic process, whether computerized or not) which
(including all means of access thereto and therefrom) are not
under their exclusive ownership and direct control.
Capitalization. The authorized capital stock of
the Company consists of 10,000,000 shares of Common
Stock, par value $1.00 per share, and 500,000 shares of
preferred stock, par value $1.00 per share. There are:
(a) 4,375,492 shares of Company Common Stock issued and
outstanding, 4,042,479 of which are owned by the Sellers
in the respective amounts set forth on Exhibit A; (b)
491,349 shares of Company Common Stock held by the
Company in its treasury; and (c) no shares of preferred
stock of the Company issued and outstanding. All
outstanding shares of capital stock of the Company are
duly authorized and validly issued, are fully paid and
nonassessable and were not issued in violation of any
preemptive rights, rights of first refusal or any other
contractual or legal restrictions of any kind. There
are no outstanding (i) securities of the Company
convertible into or exchangeable for shares of capital
stock or voting securities of the Company and (ii)
options, warrants, calls, preemptive rights, rights of
first refusal or other rights to acquire from the
Company, and no obligation of the Company to issue, any
capital stock, voting securities or securities
convertible into or exchangeable for capital stock or
voting securities of the Company. There are no
outstanding obligations of the Company to repurchase,
redeem or otherwise acquire any securities of the
Company or any Company Subsidiary.
Reports and Financial Statements. Triumph has
previously furnished to the Buyer true and complete
copies of (i) the Company's Annual Reports on Form 10-K
for each of the two fiscal years ended December 31, 1994
and 1993 as filed with the SEC; and (ii) all other
reports or registration statements filed by the Company
with the SEC since January 1, 1993. Except for the
Information Statement pursuant to Section 14(f) of the
1934 Act furnished to stockholders of the Company in
connection with the Contemplated Transactions, the
Company has not issued or distributed any proxy or
information statements since January 1, 1992. As of
their respective dates, the Company's Annual Reports on
Form 10-K, and all other reports filed with the SEC
since January 1, 1994 did 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, which untrue
statement or omission has not been corrected or updated
in a document subsequently filed with the SEC. The
consolidated balance sheet and statements of cash flows
and operations of the Company and statements of income
and retained earnings as of and for the years ended
December 31, 1994, 1993, 1992 and 1991 audited by
Coopers & Lybrand, L.L.P., copies of all of which have
been furnished to Buyer, have been prepared in
accordance with GAAP applied on a consistent basis
(except as may be indicated therein or in the notes
thereto), are accurate, show all material Liabilities,
and fairly present in accordance with GAAP the
consolidated financial position of the Company and the
Company Subsidiaries as of the dates thereof and the
consolidated results of operations and cash flows (or
changes in financial position, as the
case may be), of the Company and the Company
Subsidiaries for each of the periods then ended. Since
January 1, 1993, the Company has filed with the SEC all
reports and registration statements and all other
filings required to be filed with the SEC under the
rules and regulations of the SEC.
Liabilities. (a) Except as set forth in
Schedule 3.10A, Triumph is not aware of any unasserted
Contingency, except (i) Contingencies which are accrued
or reserved against in the consolidated balance sheet of
the Company as of December 31, 1994 or reflected in the
notes to the audited financial statements of the Company
for the fiscal year ended December 31, 1994; and (ii)
Liabilities incurred after the Company Balance Sheet
Date in the ordinary course of business and consistent
with past practice.
Schedule 3.10B sets forth, as of the date
hereof, a brief description of all Liabilities of the
Company and each of its Company Subsidiaries in respect
of (i) money borrowed from and owed to any bank,
financial institution or other person; (ii) any
indebtedness arising under leases required to be
capitalized under GAAP; (iii) any indebtedness arising
under purchase money obligations and (iv) any
indebtedness or potential indebtedness under any
guaranty, letter of credit or performance credit (the
indebtedness or potential indebtedness described in the
foregoing clauses being referred to, herein,
collectively, as "Company Debt"). Except as set forth on
Schedule 3.10B, all Company Debt may be repaid or
prepaid upon no more than 30 days' notice without
premium or penalty.
Company Receivables. (a) All the accounts
receivable of the Company and each Company Subsidiary
(the "Company Receivables") reflected in the Company
Balance Sheet and all Company Receivables that have
arisen since the Company Balance Sheet Date (except such
Company Receivables as have been collected since such
date) are valid and enforceable claims, and constitute
bona fide Company Receivables resulting from the sale of
goods and services in the ordinary course of business in
conformity with applicable purchase orders, agreements
and specifications. To the knowledge of Triumph, the
Company Receivables are subject to no valid defense,
offsets, returns, allowances or credits of any kind
other than in the ordinary course of business and are
fully collectible within 90 days from the date they are
invoiced except to the extent of the amount of the
reserve for doubtful accounts reflected in the Company
Balance Sheet, it being understood and agreed that
nothing contained herein shall be deemed to guarantee
the collectibility of the Company Receivables. Triumph
has heretofore delivered to Buyer a schedule as at March
31, 1995 setting forth the total amount of Company
Receivables and a schedule of the aging of such Company
Receivables based on 0-30 days, 31-60 days, 61-90 days
and over 90 days. All chargebacks with customers to
which the Company or any Company Subsidiary has agreed
have been credited to the customers concerned.
(a) Schedule 3.11 sets forth a brief
description and list (including the principal amount and
maturity date) of any loan made by the Company or any
Company Subsidiary: (i) in excess of $15,000 to any
employee of the Company or any Company Subsidiary and
(ii) to any person other than employees of the Company or any
Company Subsidiary.
Inventories. The inventories of the Company and
each of the Company Subsidiaries reflected in the
Company Balance Sheet and all inventory items acquired
since the Company Balance Sheet Date consist of raw
materials, supplies, work-in-process and finished goods
of such quality and in such quantities as are being used
or are reasonably anticipated to be usable, or are being
sold or are suitable for sale, in the ordinary course of
its business. Such inventories are valued at the lower
of cost or market and were determined in accordance with
GAAP consistently applied. Since the Company Balance
Sheet Date, the Company and each of the Company
Subsidiaries have continued to replenish its inventories
in a normal and customary manner consistent with prior
practice and prudent business judgment. The Company and
each Company Subsidiary have established adequate
reserves for inventory that no longer constitutes part
of their current line. The amount of such reserves and
the methodology used to determine same have been
disclosed in writing by Triumph to Buyer with specific
reference to this Section 3.12.
Absence of Certain Changes. Since the Company
Balance Sheet Date, except as set forth in this
Agreement or disclosed or referred to in Schedule 3.13,
each of the Company and the Company Subsidiaries has
conducted its business in the ordinary course consistent
with past practices and there has not been:
(a) Any event that has had or would
reasonably be expected to have a material adverse effect
on the Condition of the Business;
(b) Any declaration, setting aside or
payment of any dividend or other distribution with
respect to any shares of capital stock of the Company or
any of the Company Subsidiaries;
(c) Any amendment to the Certificate
of Incorporation or By-laws of the Company or any of the
Company Subsidiaries or any amendment to any term of any
outstanding security of the Company or any of the
Company Subsidiaries;
(d) Any (i) incurrence, assumption or
guarantee by the Company or any of the Company
Subsidiaries of any Liability other than in the ordinary course of
business in amounts and on terms consistent with past
practices, (ii) issuance or sale of any securities
convertible into or exchangeable for debt securities of
the Company or any of the Company Subsidiaries, or (iii)
issuance or sale of options or other rights to acquire
from Seller, the Company or any of the Company
Subsidiaries, directly or indirectly, debt securities of
the Company or any of the Company Subsidiaries or any
securities convertible into or exchangeable for any such
debt securities;
Any creation, incurrence or assumption by
the Company or any of the Company Subsidiaries of any
Lien on any Asset other than (i) Liens for Taxes not yet
due or being contested in good faith (and for which
adequate reserves have been established); (ii) Liens
which do not materially detract from the value of such
Asset as now used, or materially interfere with any
present or intended use of such Asset; or (iii) Permitted Liens.
(f) Any making or forgiving of any
loan, advance or capital contribution to or investment in any
person other than loans, advances or capital
contributions to or investments in Company Subsidiaries
made in the ordinary course of business consistent with
past practices;
(g) Any damage, destruction or other
casualty loss (whether or not covered by insurance),
condemnation or other taking affecting the business or
Assets of the Company or any of the Company Subsidiaries
which, individually or in the aggregate, has had or will
reasonably be expected to have a material adverse effect
on the Condition of the Business;
(h) Except in the ordinary course of
business, any transaction or commitment made, or any
Contract entered into, by the Company or any of the
Company Subsidiaries relating to its Assets or business
(including the acquisition or disposition of any
substantial Assets) or any relinquishment by the Company
or any of the Company Subsidiaries of any Contract or
other right;
(i) Any change in any method of
accounting or accounting practice by the Company or any
of the Company Subsidiaries;
(j) Any assumption or guarantee of the
obligations of any person other than a Company Subsidiary;
(k) Any grant of any severance or
termination pay to any stockholder or officer of the
Company or any of the Company Subsidiaries, any entering
into of any employment, deferred compensation or other
similar agreement (or any amendment to any such existing
agreement) with any stockholder, officer or director of
the Company or any of the Company Subsidiaries or any
increase in benefits payable under any existing
severance or termination pay policies or employment
agreements, or any increase in compensation, bonus or
other benefits payable to any stockholder, officer or
director of the Company or any of the Company
Subsidiaries in each case, other than routine increases
in the ordinary course of business or disclosed to Buyer
in writing with specific reference to this Section
3.13(k) or on any Schedule.
(l) Any labor dispute, other than
routine individual grievances, or any activity or proceeding by
a labor union or representative thereof to organize any
employees of the Company or any of the Company
Subsidiaries, which employees were not subject to a
collective bargaining agreement at the Company Balance
Sheet Date, or any lockouts, strikes, slowdowns, work
stoppages or, to the knowledge of Triumph, threats
thereof by or with respect to such employees;
(m) Any waiver of any material right
under any Contract of the type required to be set forth on any
Schedule;
(n) Except for any changes made in the
ordinary course of business, any material change in any
of the Company's or any of the Company Subsidiaries'
business policies, including advertising, investment,
marketing, pricing, purchasing, production, personnel,
sales, returns, budget or product acquisition policies;
(o) Except in the ordinary course of
business, any payment, directly or indirectly, of any
material Liability before the same became due in
accordance with its terms;
(p) Any termination or failure to
renew, or the receipt of any written threat (that was
not subsequently withdrawn) to terminate or fail to
renew, any Contract that is or was material to the
Condition of the Business; or
(q) Any Contract or arrangement made
by the Company or any of the Company Subsidiaries to
take any action which, if taken prior to the date
hereof, would have made any representation or warranty
in this Section untrue or incorrect in any material
respect.
Properties. (a) Schedule 3.14A sets forth a
complete list and brief description of all real property
owned by the Company or any of the Company Subsidiaries
(the "Company Owned Real Property") and all real
property leased or operated by the Company or any of the
Company Subsidiaries (the "Company Leased Real
Property") (together, the Company Owned Real Property
and the Company Leased Real Property shall be referred
to as the "Company Real Property"). With respect to the
Company Owned Real Property, Schedule 3.14A also sets
forth for each Company Owned Real Property a list of any
title insurance policies, appraisal reports and
environmental reports in the possession or under the
control of the Company or any of the Company
Subsidiaries, copies of all of which have been provided
to Buyer. With respect to the Company Leased Real
Property, Schedule 3.14A also sets forth the date of
each lease and any amendments thereto, the term thereof,
including any renewal options, options to purchase,
rights of first refusal, and the aggregate monthly
rental payable thereunder.
(a) With respect to the Company Real
Property and the Company's or the Company Subsidiaries'
operations thereat, except as set forth in Schedule 3.14A:
(i) To the knowledge of Triumph,
there are no violations of any Law (including but not
limited to zoning and setback requirements) where the
effect of any such violation, individually or in the
aggregate, would have a materially adverse effect on the
Condition of the Business;
(ii) The Company or the Company
Subsidiaries have obtained and complied with all Permits
and Orders, except where the failure to obtain such
Permits and Orders or comply therewith, individually or
in the aggregate, would not have a material adverse
effect on the Condition of the Business;
(iii) All buildings, structures and
other improvements located thereon that are owned or
leased are in working condition and repair, reasonable
wear and tear excepted, except where such failure to be
in working condition and repair, reasonable wear and
tear excepted, would not have a material adverse effect
on the Condition of the Business, and neither the
Company nor any Company Subsidiary has done or
performed, or caused to be done or performed, any work
or required any services within the past year except for
which payment in full has been made and lien waivers
obtained;
(iv) There is no pending or, to
the knowledge of Triumph, threatened Claim (including
Third Party Claims), or any existing condition or basis
which may give rise to any such Claim, or which may
otherwise result in the imposition of a Lien or
forfeiture of any of the Company Owned Real Property, or
otherwise prohibit, restrict or materially interfere
with its use as presently conducted except for Claims
which would not have a material adverse effect on the
Condition of the Business;
(v) To the knowledge of Triumph,
there is no pending or threatened Claim (including Third
Party Claims), or any existing condition or basis which
may give rise to any such Claim, or which may otherwise
result in the imposition of a Lien or forfeiture of any
of the Company Leased Real Property, or otherwise
prohibit, restrict or materially interfere with its use
as presently conducted except for Claims which would not
have a material adverse effect on the Condition of the
Business,
There are no pending, or to the
knowledge of Triumph, threatened proceedings, which may
result in a total or partial condemnation, eminent
domain or other taking of any Company Owned Real
Property;
(vii) To the knowledge of Triumph,
there are no pending or threatened proceedings, which
may result in a total or partial condemnation, eminent
domain or other taking of any Company Leased Real
Property;
(viii) There are no claims of or
rights to possession, or any claims of adverse possession, with
respect to all or any portion of any of the Company
Owned Real Property;
(ix) To the knowledge of Triumph,
there are no claims of or rights to possession, or any
claims of adverse possession, with respect to all or any
portion of any of the Company Leased Real Property; and
(x) The Company or a Company
Subsidiary has good and insurable fee title to the
Company Owned Real Property and a valid and existing
leasehold interest in the Company Leased Real Property
subject to no Liens except for Company Permitted Liens.
(b) Triumph has heretofore provided to
Buyer a complete and correct list and description of all
tangible property (the "Company Tangible Property")
owned or used by the Company or any Company Subsidiary
or which the Company or any of the Company Subsidiaries
holds an option to acquire having a value individually
of $500,000 or more or $500,000 or more in the aggregate
in case of any group of similar items of Company
Tangible Property, including, without limitation, all
machinery, sewing or cutting machines, equipment,
furniture, furnishings, leasehold improvements, fixtures
and vehicles. All Company Tangible Property has been
maintained in the ordinary course and is in working
order, reasonable wear and tear excepted, except for a
nonmaterial portion of such Company Tangible Property
that may be undergoing repairs or maintenance in the
ordinary course and except where such failure to
maintain would not have a material adverse effect on the
Condition of the Business.
(c) Schedule 3.14B sets forth the date
of each lease of Company Tangible Property and any
amendments thereto, the term thereof including renewal
options, options to purchase and the aggregate monthly
rent payable thereunder.
(d) Except as set out in Schedule
3.14C, the Company or a Company Subsidiary has good title to
all Company Tangible Property reflected on the Company
Balance Sheet or acquired after the Company Balance
Sheet Date except for Company Tangible Property sold or
disposed of since the Company Balance Sheet Date in the
ordinary course of business consistent with past
practice. The Company or a Company Subsidiary has good
title to all raw materials, work in process or finished
Company Products located at the premises of any
Contractor. Except as set forth on Schedule 3.14C, none
of such Company Tangible Property is subject to any
Liens, except for the following (collectively, "Company
Permitted Liens"):
(i) Liens disclosed on the
Company Balance Sheet or the notes thereto;
(ii) Liens for Taxes not yet due
or payable or being contested in good faith (and for which
adequate reserves have been established on the Company
Balance Sheet);
(iii) Liens, easements, zoning or
other planning restrictions or limitations on use or
other irregularities in title, none of which materially
detracts from the value of such Assets as now used, or
materially interferes with any present use of such
Assets;
(iv) Liens arising in the ordinary
course of business which do not materially detract from
the value of such Assets as now used or materially
interfere with any present use of such Assets; and
(v) Liens of carriers,
warehousemen, mechanics, materialmen, vendors, lessors
and landlords incurred in the ordinary course of
business.
Contracts. (a) Except for Contracts pursuant to
the terms of which there is either a current or future
obligation or right of the Company or a Company
Subsidiary to make payments or receive payments not in
excess (individually or, in the case of any group of
similar items, in the aggregate) of $50,000, Schedule
3.15 sets forth as of the date hereof a complete and
accurate list of all Contracts to which either the
Company or any of the Company Subsidiaries is a party,
or by or to which it or its Assets are bound or subject,
including, without limitation:
(i) Contracts with any current or
former employee, independent contractor, consultant,
agent or other representative or with any Affiliate of
any of the foregoing;
(ii) Contracts relating to the
design of any Company Products;
Other than in the ordinary course of
business: (A) Contracts for the sale of any of its
Assets or (B) Contracts for the grant to any person of
any preferential rights to purchase any of its Assets;
(iv) Contracts under which the
Company and/or any of the Company Subsidiaries agree to
indemnify any person;
(v) Contracts under which the
Company and/or any of the Company Subsidiaries agree to share Tax
liability of, or with, any party;
(vi) Contracts that cannot be
cancelled without material Liability, premium or penalty;
(vii) Contracts with any person to
advertise or market any of the Company's or any of the
Company Subsidiaries' Company Products other than in the
ordinary course of business;
(viii) Contracts relating to the
acquisition of any operating business or the capital
shares of any other person;
(ix) Options for the purchase or
sale of any Asset;
(x) Contracts requiring the
payment to any person of an override or similar commission or
fee;
(xi) Contracts with customers,
independent suppliers, Contractors and manufacturers
other than in the ordinary course of business;
(xii) Sales agency, licensing,
manufacturer's representative or distributorship
agreements;
(xiii) Contracts pursuant to which
any party is required to purchase or sell a stated portion of
its requirements or output to another party;
(xiv) Contracts for the payment of
fees or other consideration to any officer or director of the
Company or any of the Company Subsidiaries or to any
other entity in which any of the foregoing has an
interest; and
(xv) Management Contracts and other
similar agreements with any person.
Schedule 3.15 also sets forth as of the date
hereof a complete and accurate list of the following
Contracts to which either the Company or any of the
Company Subsidiaries is a party, or by which it or its
Assets are bound or subject:
(i) Contracts with any current or
former stockholder, officer or director that will impose,
after the Closing Date, continuing obligations on the
Company or any Company Subsidiary;
(ii) Contracts with any labor union
or association representing any employee;
(iii) Partnership or joint venture
agreements;
(iv) Contracts containing covenants
not to compete in any line of business or with any person
in any geographical area (or not to solicit or accept any
business) or covenants of any other person not to compete
in any line of business or in any geographical area with
the Company or any Company Subsidiary (or not to solicit
or accept any business);
(v) Contracts relating to any
Company Debt relating to indebtedness in excess of $250,000; and
(vi) Contracts providing rights of
exclusivity to distributors or retailers for definite or
indefinite periods for any products or product lines or
for the use of any trademark or tradename.
(c) Schedule 3.15 also lists and
describes the status of all Contracts currently in
negotiation or proposed by the Company or any of the
Company Subsidiaries as to which there exists a draft
agreement, letter of intent or similar instrument and
which is of a type which if entered into by the Company
or any of the Company Subsidiaries would be required to
be listed on Schedule 3.15 or on any other Schedule (the
"Company Proposed Contracts").
There are no Contracts, other than those set
forth on Schedule 3.15, on any other Schedule to this
Agreement or which are not required to be disclosed
hereunder. Except as set forth on Schedule 3.15, all
Contracts (individually or, in the case of any group of
similar Contracts, in the aggregate) material to the
Condition of the Business are valid, subsisting, in full
force and effect and binding upon the Company or any of
the Company Subsidiaries, as the case may be, and, to the
knowledge of Triumph, on the other parties thereto in
accordance with their terms, and the Company and each of
the Company Subsidiaries has paid in all material
respects or accrued all amounts due thereunder and has
satisfied in all material respects or provided for all of
its liabilities and obligations thereunder to be
satisfied or provided for through the date hereof, and is
not in default under any of them in any material respect,
nor, to the knowledge of Triumph, is any other party to
any Contract (individually or, in the case of any group
of similar Contracts, in the aggregate) material to the Condition
of the Business in default thereunder in any material respect, nor, to the
knowledge of Triumph, does any condition exist that with
notice or lapse of time or both would constitute a
material default thereunder. Except as separately
identified on Schedule 3.15 hereto, neither the Company
nor any of the Company Subsidiaries is a party to or bound by any
Contract that materially adversely affects the Condition
of the Business. Except as separately identified on
Schedule 3.15 hereto or on any other Schedule, no
approval or consent of any person is needed in order that the
Contracts (individually or, in the case of any group of
similar Contracts, in the aggregate) material to the
Condition of the Business continue in full force and
effect following the consummation of the Contemplated
Transactions and the operation of the Business of the
Company and the Company Subsidiaries together with that
of the Buyer and the Buyer Subsidiaries except for such
approvals or consents which, if not obtained, would not
have a material adverse effect on the Condition of the
Business. Except as set forth on Schedule 3.15 or any
other Schedule, the termination of any Contract will not cause the
Buyer, the Company or any Company Subsidiary of the Company to incur
any material penalty, loss, expense or termination payment.
(e) There have been delivered to Buyer,
true and complete copies of (i) all of the Contracts
required to be set forth on Schedule 3.15 or on any other
Schedule and (ii) the most recent draft, letter of intent
or term sheet of all of the Company Proposed Contracts
required by the provisions of Section 3.15(c) to be set
forth on Schedule 3.15.
Intangible Property. (a) Schedule 3.16 sets
forth all patents, trademarks, registered copyrights,
service marks and trade names owned or used by the
Company or any of the Company Subsidiaries, all
applications for any of the foregoing, and all permits,
grants and licenses or other rights running to or from
the Company or any of the Company Subsidiaries relating
to any of the foregoing, and there are no other patents,
models, industrial designs, trademarks, copyrights,
service marks and trade names that are material to the
Condition of the Business (the "Company Intellectual
Property Rights").
(a) To the knowledge of Triumph, with
respect to Company Intellectual Property Rights owned by
the Company material to the Condition of the Business:
(i) all United States renewals and other maintenance
actions in respect of the registrations set forth in
Schedule 3.16 have been appropriately filed; (ii) the
Company has exercised its best efforts to ensure
compliance with all United States registration and
recording requirements, and has paid all necessary
government fees; and (iii) the United States trademark
registrations and licenses thereof are valid with respect
to Company Products that are covered by the
registrations. Triumph or, as disclosed in Schedule 3.16,
the Company owns the "Lilyette" trademark or any variant
thereof and Schedule 3.16 identifies all jurisdictions
in which such trademark has been registered or is in use.
(b) Except as set forth in Schedule
3.16 or except for any restrictions of an immaterial
nature, the Company has the right to use, free and clear
of any Claims or rights of others, all material trade
secrets, know-how, processes, technology, blue prints, art work, films,
negatives, photographs, separations, patterns and package
and other designs utilized in the conduct of its
business, except where such failure to have such rights
would not, individually or in the aggregate, have a
material adverse effect on the Condition of the Business.
The Company has the right to use in its advertising
materials, without liability to any person, the
photographs or other depictions of models that it does
use.
(c) Except as set forth on Schedule
3.16, no material Company Intellectual Property Right is
subject to any Lien or outstanding Order or Contract
restricting the use or licensing thereof. Except as set
forth on Schedule 3.16, (i) neither the Company nor any
of the Company Subsidiaries during the three years
preceding the date hereof has been sued or charged in
writing with or been a defendant in any Claim which has
not been terminated prior to the date hereof and which
involves a Claim of infringement arising out of the use,
registration or ownership of any Company Intellectual
Property Rights material to the Condition of the
Business; and (ii) Triumph has no knowledge of any such charge
or Claim of any infringement during the three years preceding the
date hereof by any other person arising out of the use,
registration or ownership of any material Company Intellectual
Property Rights.
Claims and Proceedings. Except as set forth on
Schedule 3.17, there are no outstanding material Orders
of any Governmental Body against or involving the
Company, any of the Company Subsidiaries or their
respective Assets other than Orders affecting the apparel
industry generally. Except as set forth on Schedule 3.17,
there are no actions, suits, claims or counterclaims or
legal, administrative or arbitral proceedings or
investigations (collectively, "Claims") (whether or not
the defense thereof or Liabilities in respect thereof are
covered by insurance), pending or threatened in writing,
against or involving the Company or any of the Company
Subsidiaries or any of their respective Assets which (i)
involve a claim for the payment of money damages of
$100,000 or more; (ii) relate to employment, regardless
of amount other than workers' compensation Claims,
severance Claims or Claims under Plans; or (iii)
individually or in the aggregate, would have a material
adverse effect upon the Contemplated Transactions or upon
the Condition of the Business other than Claims affecting
the apparel industry generally. Except as set forth on
Schedule 3.17, to the knowledge of Triumph, the Company
or the Company Subsidiaries, there is no fact, event or
circumstances that would give rise to any Claim that
would be required to be set forth on Schedule 3.17 if
currently pending or threatened. All notices required to
have been given to any insurance company listed as
insuring against any Claim set forth on Schedule 3.17
have been timely and duly given and, except as set forth
on Schedule 3.17, no insurance company has asserted in
writing that such Claim is not covered by the applicable
policy relating to such Claim. Except as set forth on
Schedule 3.17 there are no material product liability
Claims against or involving the Company or any of the
Company Subsidiaries or, to the knowledge of Triumph, any
product manufactured, marketed or distributed at any time
by the Company or any of the Company Subsidiaries
("Company Products") and no such Claims have been
settled, adjudicated or otherwise disposed of since
January 1, 1992. There are no material Claims pending
or, to the knowledge of Triumph, threatened that would
give rise to any right of indemnification on the part of
any director or officer of the Company or any of the
Company Subsidiaries or the heirs, executors or
administrators of such director or officer, against the
Company or any of the Company Subsidiaries or any
successor to the business of the Company or any of the
Company Subsidiaries.
Restrictions on Business Activities. There is no
Order binding upon the Company or any of the Company
Subsidiaries which has or would reasonably be expected to
have the effect of prohibiting or adversely affecting (i)
competition by the Company or any of the Company
Subsidiaries, (ii) any business practice of the Company
or any of the Company Subsidiaries, (iii) any acquisition
of property by the Company or any of the Company
Subsidiaries, or (iv) to the knowledge of Triumph, the
Condition of the Business.
Taxes. (a) Except as set forth in the Company
Balance Sheet (including the notes thereto) or on
Schedule 3.19, (i) all Tax returns, statements,
applications, reports and forms required by law to be
filed with any Taxing Authority on or before the Closing
Date with respect to any Pre-Closing Tax Period (as
hereinafter defined) by or on behalf of the Company or
any Company Subsidiary (collectively, the "Company
Returns") have been timely filed through the date hereof
or will be filed when due (taking into account any
extension granted by the appropriate Taxing Authority);
(ii) as of the time of filing, the Company Returns
correctly reflected (and, as to any Company Returns not
filed as of the date hereof and required to be filed on
or before the Closing Date, will correctly reflect) the
facts regarding the income, business, Assets, operations,
activities and status of the Company, the Company
Subsidiaries and any other information required to be
shown therein; (iii) the Company and Company Subsidiaries
have timely paid or made provision for in reserves shown
in the Company Balance Sheet all Taxes that are due and
payable for any period ended on or prior to the date of
the Company Balance Sheet; (iv) the Company and Company
Subsidiaries have made or on or before the Closing Date
will make provision for all Taxes payable by the Company
and Company Subsidiaries for any Pre-Closing Tax Period
for which no Company Return has been filed; (v) the
charges, accruals and reserves for Taxes reflected or
that will be reflected on the books of the Company and
the Company Subsidiaries are adequate to cover the Tax
liabilities accruing or payable by the
Company and the Company Subsidiaries in respect of any
PreClosing Tax Period; (vi) all Liabilities of the
Company and the Company Subsidiaries with respect to
federal income Taxes have been finally determined except
for the fiscal years 1988 through 1993, the only years
not closed by the expiration of the statute of
limitations; (vii) no deficiency for any Tax or claim for
additional Taxes by any Taxing Authority has been
proposed, asserted or assessed in writing against the
Company or any Company Subsidiary (or any member of any
affiliated or combined group of which the Company or any
Company Subsidiary is or has been a member); (viii)
neither the Company nor any Company Subsidiary (or any
member of any affiliated or combined group of which the
Company or any Company Subsidiary is or has been a
member) has been granted any extension or waiver of the
limitation period applicable to any Company Returns; (ix) neither
the Company nor any Company Subsidiary has filed any
consent or election under the Code, other than such
consents and elections, if any, reflected in the Company
Returns or otherwise disclosed in writing to Buyer with
specific reference to this Section 3.19(a)(ix) or which
could have a material adverse effect on the Condition of
the Business; (x) neither the Company nor any Company
Subsidiary has entered into or will enter into any
agreement or consent under Section 341(f) of the Code;
(xi) neither the Company nor any Company Subsidiary owns
any interest in real property in the State of New York or
in any other jurisdiction which would result, as a result
of the consummation of the Contemplated Transactions, in
the imposition of the New York State Real Property
Transfer Gains Tax for real property located in New York
or a similar tax for real property located in any other
jurisdiction; (xii) there are no Liens for Taxes upon the
Assets of the Company or any Company Subsidiary other
than for Taxes not yet due and payable; (xiii) neither
the Company nor any Company Subsidiary will be required,
as a result of a change in method of accounting for a
PreClosing Tax Period, to include any adjustment under
Section 481(c) of the Code in taxable income for any Tax
period (or portion thereof) ending on the Closing Date;
(xiv) neither the Company nor any Company Subsidiary has
been a member of an affiliated group other than one of
which the Company was the common parent, or filed or
been included in a combined, consolidated or unitary
Company Return together other than one filed by the
Company; (xv) neither the Company nor any Company
Subsidiary is currently under any contractual obligation
to indemnify any other person with respect to Taxes;
(xvi) the Company is not and has not been a United
States real property holding corporation as defined in
Section 897(c)(2) of the Code during the applicable
period specified in Section 897(c)(1)(A)(ii) thereof;
and (xvii) since its organization on February 6, 1992,
Crescent Industries Inc. has been a possessions
corporation that qualified for the Puerto Rico and
possessions tax credit and since April 27, 1992 has been
exempt from Puerto Rican income Taxes.
(a) As used herein, "Pre-Closing Tax
Period" means any tax period (or portion thereof) ending
on or before the Closing Date.
(b) True and correct copies of the
Company Returns for the years 1991, 1992 and 1993 have
been delivered to Buyer.
(c) Neither the Company nor any Company
Subsidiary is party to any tax-sharing or tax allocation
agreement pursuant to which it is obligated to pay any
amount to anyone else.
(d) Except as set forth on Schedule 3.19,
neither the Company nor any Company Subsidiary holds or
has held a permit, registration, certificate or like
instrument as a "dealer" or other collecting agent from
a state Taxing Authority under which it collects sales
tax from its business operations and remits such tax to
such Taxing Authority.
Employee Benefits Plans. (a) Schedule 3.20
contains a true and complete list of (i) all of the
Plans of the Company, any of the Company Subsidiaries, and of any
other companies or entities which constitute a member of
the Company ERISA Group, which are presently in effect
or, in the case of Pension Plans, have been in effect at
any time prior to the date hereof and for which there is
any liability; (ii) any other pension, profit sharing,
retirement, deferred compensation, stock purchase, stock
option, incentive, bonus, sabbatical leave, vacation,
all employment or severance Contracts (including,
without limitation, arrangements providing for benefits
in the event of a change of ownership in whole or in
part of the Company), disability, hospitalization,
health and medical insurance plans, relocation, child
care, educational assistance or other employee benefit
plan or program which any member of the Company ERISA
Group maintains or to which any member of the Company
ERISA Group has any present or future obligation to
contribute; and (iii) separately identifies all Plans
providing retiree benefits. (The Plans or programs
described in clauses (i), (ii) and (iii) including all
non-qualified plans are herein collectively referred to
as the "Company ERISA Group Plans".) Except as set forth in
Schedule 3.20, the Company has delivered or made available to Buyer
true and complete copies of all documents (including
plan documents and related trust agreements) as they may
have been amended to the date of delivery or
availability, embodying or relating to clauses (i), (ii)
and (iii) hereinabove and a written description of each
non-written plan. Since such date of delivery or
availability, the Company ERISA Group Plans have not
been amended to materially change the terms thereof.
The Company has also delivered to Buyer true and
complete copies of annual reports (Form 5500) for the
last three (3) years, summary annual reports, summary
plan descriptions and a summary of material
modifications with respect to each Company ERISA Group
Plan, as applicable.
(a) Except as listed on Schedule 3.20,
the Company ERISA Group maintains no tax qualified
Pension Plans nor has the Company ERISA Group ever
maintained any other tax-qualified Pension Plan for the
benefit of employees.
(b) With respect to each 412 Plan,
there has been no failure to make any contribution or
pay any amount due as required by Section 412 of the
Code, Section 302 of ERISA or the terms of any such 412
Plan, and no request or receipt of any funding waiver
has been requested or received from the Internal Revenue
Service.
(c) Except as set forth in Schedule
3.20, no trust has been established in connection with
any 412 Plan pursuant to Section 4049 of ERISA (as in
effect on December 17, 1987) and no liabilities that
would have a material adverse effect on the Condition of
the Business have been asserted against the Company or
any Company Subsidiary or any member of the Company
ERISA Group in connection with any such 412 Plan by the
PBGC or by a trustee appointed pursuant to Section
4042(b) or (c) of ERISA, and no Lien has been attached
and neither the PBGC nor the Internal Revenue Service
has threatened to attach a Lien on any Assets of or any
member of the Company ERISA Group as a result of any
failure to comply with the Code or the Treasury
regulations thereunder or ERISA.
(d) Except as set forth on Schedule
3.20, the IRS has issued favorable determination letters
to the effect that each qualified Company ERISA Group
Plan as amended for The Tax Reform Act of 1986 and subsequent
legislation qualifies under Section 401(a) of the Code
and that the related trusts are exempt from taxation
under Section 501(a) of the Code and such determination
letters remain in effect and have not been revoked. To
the knowledge of Triumph, nothing has occurred or is
expected to occur that would adversely affect the
qualified status of any Company ERISA Group Plan or any
related trusts subsequent to the issuance of such
determination letters.
(e) Except as set forth on Schedule 3.20, all
Plans maintained by the Company or any member of the
Company ERISA Group have been and continue to be in
compliance in all material respects (i) in operation
with the requirements prescribed by any and all Laws and
Orders applicable to the Company ERISA Group Plans
including but not limited to ERISA and the Code and with
any other contractual obligations and, except as set
forth in Schedule 3.20, all reports and disclosures
including Form 5500s relating to the Company ERISA Group Plans required
to be filed with or furnished to Governmental Bodies,
participants or beneficiaries prior to the Closing Date
have been or will be filed or furnished in a timely
manner and in accordance with applicable law; and (ii)
in form with those requirements of the Code and the
regulations thereunder and ERISA which must be met on
the date hereof.
(f) To the knowledge of Triumph, no
member of the Company ERISA Group nor any other
"disqualified person" or "party in interest" (as defined
in Section 4975 of the Code and Section 3 of ERISA,
respectively) has engaged in any "prohibited
transaction," as such term is defined in Section 4975 of
the Code or Section 406 of ERISA, which could subject
any of the Company ERISA Group Plans (or their related
trusts), any officer, director or employee of any entity
within the ERISA Group or any trustee, administrator or
any other fiduciary of any of the Company ERISA Group
Plans to a tax or penalty imposed under Section 4975 of
the Code or Section 502(i) of ERISA and which would have
a material adverse effect on the Condition of the
Business.
(g) Except as set forth on Schedule
3.20, there are no Claims (other than routine claims for
benefits in the ordinary course) pending or, to the
knowledge of Triumph, threatened against any of the
Company ERISA Group Plans or the Assets of any of the
Company ERISA Group Plans or against any fiduciary of
any of the Company ERISA Group Plans for which the
Company or the Company Subsidiaries may be directly or
indirectly liable, through indemnification obligations
or otherwise.
(h) No member of the Company ERISA Group
has provided or is required to provide, security to any
single-employer plan pursuant to Section 401(a) of the
Code.
(i) The consummation of the
Contemplated Transactions will not accelerate any
liability under any of the Company ERISA Group Plans
because of an acceleration of any rights or benefits to
which employees may be entitled thereunder.
(j) With respect to any Company ERISA
Group Plan that is a Welfare Plan, (i) each such Welfare
Plan, the contributions to which are claimed as a
deduction under any provision of the Code, is in
compliance in all material respects with all applicable requirements
pertaining to such deduction, (ii) with respect to any
welfare benefit fund within the meaning of Section 419
of the Code that comprises part of a Welfare Plan, there
is no disqualified benefit within the meaning of Section
4976(b) of the Code that would subject the Company or
any of the Company Subsidiaries to a tax under Section
4976(a) of the Code which would have a material adverse
effect on the Condition of the Business, (iii) any
Welfare Plan which is a group health plan within the
meaning of Section 5000(b) of the Code satisfies in all
material respects the requirements of Section 4980(B) of
the Code, and (iv) all employer contributions due have
been fully and timely paid or accrued on the books of
the Company or the Company Subsidiaries.
(k) Schedule 3.20 sets forth the
present value of the liability of each Company ERISA
Group Plan that is a Welfare Plan and that provides
benefits or coverage extending beyond a participant's
termination of employment with the Company, excluding
the liability for those benefits required by Section
4980B of the Code or those which are provided at the
sole expense of the participant or beneficiary of the
participant.
(l) Except as set forth on Schedule 3.20,
neither the Company nor any member of the Company ERISA Group
has incurred or reasonably expects to incur (i) any
Withdrawal Liabilities (and no event has occurred which,
with the giving of notice under Section 4219 of ERISA,
would result in Withdrawal Liability), or (ii) any
Liabilities under Title IV of ERISA with respect to any
412 Plan. Schedule 3.20 also identifies (A) each
Multiemployer Plan to which the Company or Company ERISA
Group Member currently makes, is obligated to make, or
has made or been obligated to make contributions; (B)
provides a schedule of the contributions made to each
such Multiemployer Plan over the past five years; and
(C) provides a schedule of any withdrawal liability
payments which a Company ERISA Group Member is obligated
to make or has made in the last 10 years to any
Multiemployer Plan; and (D) the amount of withdrawal
liability that would be due assuming complete withdrawal
from all Multiemployer Plans to which Company or any
member of the Company ERISA Group contribute. With the
exception of the representation contained in this
Section 3.20(m), any representation contained herein
with regard to Multiemployer Plans shall be limited to
matters of which the Company has knowledge.
(m) Except as set forth in Schedule
3.20, within the last five years, neither the Company
nor any member of the Company ERISA Group has
transferred any Assets or Liabilities of a 412 Plan
subject to Title IV of ERISA which had, at the date of
such transfer, Unfunded Pension Liabilities or has
engaged in a transaction which may reasonably be subject
to Section 4212(c) of ERISA.
(n) Neither the Company nor any member
of the Company ERISA Group sponsors or maintains or has
obligations direct, contingent or otherwise, with
respect to any benefit plan that is subject to the laws
of any country other than the United States.
(o) No Company ERISA Group Plan holds
securities of the Company or the Company's Subsidiaries.
(p) There has been no Reportable Event
with respect to any 412 Plan within the last five years.
(q) With respect to any supplemental
employee retirement plans, excess benefit plans (as
defined in Section 3(36) of ERISA), severance
arrangements with individual employees, whether written
or not, or other non qualified plans or arrangements,
Schedule 3.20 identifies the individuals or class of
individuals covered by each such plan or arrangement.
(r) Except as set forth on Schedule
3.20, as of December 31, 1994, no 412 Plan sponsored by
Company or any member of the Company ERISA Group has any
amount of Unfunded Pension Liability.
Officers, Directors and Key Employees. Sellers
have provided to Buyer a schedule setting forth (a) the
name, total compensation (as reflected on the applicable
forms W-2), date of hire and salary history for the two
years ended December 31, 1994 of each existing director,
executive officer or management employee of the Company
and the Company Subsidiaries earning total compensation
for the year ended December 31, 1994, (as reflected on
the applicable forms W-2) in excess of $75,000, (b) the
wage rates and earnings of production workers employed
by the Company or any Company Subsidiary in its
Cortland, New York and Puerto Rico facilities, and (c)
any payments or commitments to pay any severance or termination pay to
any such person. Except as set forth on such schedule,
the employment of all such persons is terminable at will.
Employment-Related Matters. Except as set forth
in Schedule 3.22, (a) the Company and the Company
Subsidiaries are not a party to any Contract with any labor
organization or other representative of their employees;
(b) there is no unfair labor practice charge or
complaint pending or, to the knowledge of Triumph,
threatened against the Company or any of the Company
Subsidiaries; (c) there is no labor strike, slowdown,
work stoppage or other material labor controversy in
effect or, to the knowledge of Triumph, threatened
against or otherwise affecting the Company or any of the
Company Subsidiaries; (d) the Company and the Company
Subsidiaries have not experienced any labor strike,
slowdown, work stoppage or similar material labor
controversy within the past three years; (e) no
representation question has been raised respecting any
of the Company's or any of the Company Subsidiaries'
employees working within the past three years, nor, to
the knowledge of Triumph, are there any campaigns being
conducted to solicit authorization from the Company's
employees or any of the Company Subsidiaries' employees
to be represented by any labor organization; (f) no
collective bargaining agreement relating to any of the
Company's employees or any of the Company Subsidiaries'
employees is being negotiated other than extensions or
renewals of existing agreements set forth in Schedule
3.22; (g) no material Claim before any Governmental Body
brought by or on behalf of any employee, prospective
employee, former employee, retiree, labor organization
or other representative of the Company's employees or
any of the Company Subsidiaries' employees, is pending
or, to the knowledge of Triumph, threatened against the
Company or any of the Company Subsidiaries; (h) to the
knowledge of Triumph, neither the Company nor any of the
Company Subsidiary is a party to, or otherwise bound by,
any material Order relating to its employees or employment
practices relating to the employees other than those
affecting the industry generally; (i) the Company and
the Company Subsidiaries are in compliance with all
applicable Laws, policies, procedures, agreements and
Contracts, relating to employment, employment practices,
wages, hours, and terms and conditions of employment,
except where the failure to comply would not,
individually or in the aggregate, have a material
adverse effect on the Condition of the Business; (j)
except with respect to ongoing disputes of a routine
nature involving immaterial amounts, the Company and the
Company Subsidiaries have paid in full to all of their
employees all wages, salaries, commissions, bonuses,
benefits and other compensation due and payable to such
employees on or prior to the date hereof; (k) and the
Company and the Company Subsidiaries are in compliance
with their obligations with respect to their employees
pursuant to the Worker Adjustment and Retraining
Notification Act of 1988 ("WARN"), and all other
notification and bargaining obligations arising under
any collective bargaining agreement, statute or
otherwise.
Potential Conflicts of Interest. Except as set
forth in Schedule 3.23, no officer, director or
Affiliate of the Company or any of the Company
Subsidiaries, no spouse of any such officer, director or
Affiliate, nor, to the knowledge of Triumph, no entity
controlled by one or more of the foregoing:
(a) owns, directly or indirectly, any
interest in (excepting less than 1% stock holdings for
investment purposes in securities of publicly held and
traded companies), or is an officer, director, employee
or consultant of, any person that carries on business in
competition with the Company or any of the Company
Subsidiaries;
(b) owns, directly or indirectly, in
whole or in part, any material Asset that the Company or
any of the Company Subsidiaries uses in the conduct of
its business; or
(c) has any material Claim whatsoever
against, or owes any amount to, the Company or any of
the Company Subsidiaries, except for claims in the
ordinary course of business such as for accrued vacation
pay and accrued benefits under employee benefit plans.
Insurance. Schedule 3.24 sets forth a list of
all insurance policies, fidelity and surety bonds and
fiduciary liability policies covering the Assets,
Business, operations, employees, officers and directors
of the Company and the Company Subsidiaries and true and
complete copies of all such policies and bonds have been
delivered to Buyer. Schedule 3.24 also sets forth with
respect to each policy and bond the applicable deductible amounts and any
material limitations to coverage. There is no Claim by
the Company or any of the Company Subsidiaries pending
under any of such policies or bonds as to which coverage
has been questioned, denied or disputed by the
underwriters of such policies or bonds, or requirement
by any insurer to perform work which has not been
satisfied. All premiums payable under all such policies
and bonds have been paid and the Company and the Company
Subsidiaries are otherwise in compliance in all
material respects with the terms and conditions of all
such policies and bonds. Such policies of insurance and
bonds (or other policies and bonds providing
substantially similar insurance coverage) other than
those relating to director and officer liability
insurance have been in effect since January 1, 1994 and
remain in full force and effect. The insurance in
effect with respect to Company Owned Real Property is in
an amount of the full replacement value of the buildings
and improvements. Triumph does not know of any
threatened termination of, premium increase with respect
to, or uncompleted requirements under any of such
policies or bonds.
Suppliers, Customers and Contractors. Schedule
3.25A lists, by dollar volume paid for the 12 months
ended December 31, 1994, the 15 largest raw material
suppliers and the 25 largest customers of the Company or
Company Subsidiary. Schedule 3.25B lists the names and
addresses of those Contractors retained by the Company
or any of the Company Subsidiaries involving payments,
for the 12 months ended December 31, 1994, in excess of
$50,000. The relationships of the Company and the
Company Subsidiaries with such suppliers, customers and
Contractors are reasonable commercial working relationships and: (i) no
supplier or Contractor has refused to provide credit, or
has suspended the provision of credit, to the Company or
any of the Company Subsidiaries as a result of the
failure or delay in payment of amounts due to such
suppliers or Contractors; (ii) all amounts owing to such
suppliers and Contractors, if not in dispute, have been
paid in accordance with their respective terms; (iii) no
person within the last twelve months has threatened in
writing to cancel, or otherwise terminate, the
relationship of such person with the Company or any of
the Company Subsidiaries, and (iv) no person during the
last twelve months has decreased materially or, to the
knowledge of Triumph, threatened in writing to decrease
or limit materially, its relationship with the Company
or any of the Company Subsidiaries or, to the knowledge
of Triumph, intends to decrease or limit materially its
services or supplies to the Company or any of the
Company Subsidiaries or its usage or purchase of the
services or products of the Company or any of the
Company Subsidiaries.
Compliance with Laws. Neither the Company nor
any of the Company Subsidiaries is in violation of any
applicable order, judgment, injunction, award, citation,
decree, consent decree or writ (collectively, "Orders"),
or any applicable law, statute, code, ordinance, rule,
regulation or other requirement (collectively, "Laws"),
of any government or political subdivision thereof,
whether federal, state, local or foreign, or any agency
or instrumentality of any such government or political
subdivision, or any court or arbitrator (collectively,
"Governmental Bodies") affecting its Assets, affairs or
business, where the effect of any such violation,
individually or in the aggregate, would have a
materially adverse effect on the Condition of the
Business. Neither the Company nor any of the Company
Subsidiaries has made any illegal payment to officers or
employees of any Governmental Body, or made any illegal
payment to customers for the sharing of fees or to
customers or suppliers for rebating of charges, or
engaged in any other illegal reciprocal practice, or
made any illegal payment or given any other
illegal consideration to purchasing agents or other
representatives of customers in respect of sales made or
to be made by the Company or any of the Company
Subsidiaries.
Permits. The Company and the Company
Subsidiaries have obtained all licenses, permits,
certificates, certificates of occupancy, orders,
authorizations and approvals of (collectively,
"Permits"), and have made all required registrations and
filings with, any Governmental Body that are necessary
to the conduct of their respec tive businesses, except
for such Permits which, if not in the possession of the
Company or the Company Subsidiaries, would not have a
materially adverse effect on the Condition of the
Business. All Permits material to the Condition of the
Business are listed on Schedule 3.27 and are in full
force and effect; no material violations are or have
been recorded in respect of any such Permit; and no
proceeding is pending or threatened to revoke or limit
any Permit.
Environmental Matters. (a) Except as set forth
in Schedule 3.28, with respect to each of the Company
and each of the Company Subsidiaries, there has been no
manufacture, refining, storage, transport, disposal or
treatment of Hazardous Substances by such party (or, to
the knowledge of such party, its predecessor in
interest), or any Release at, on or under any Company
Real Property by the Company or any Company Subsidiary
or, to knowledge of Triumph, by any other person, in
violation of any Environmental Law or which would
require remedial action under any Environmental Law; to
the knowledge of Triumph, none of the soil, ground water
or surface water of such Company Real Property is
contaminated by any Release.
(a) During the past five years neither
the Company nor any of the Company Subsidiaries has
received any written (i) notice of any violation with
respect to any Environmental Law; (ii) notice of any
actual, pending or threatened Regulatory Action
involving such party, or any present or former owner,
lessee or operator of the Company Real Property; or
(iii) notice of any Third Party Claim.
(b) Except as set forth in Schedule
3.28, to the knowledge of Triumph: (i) there are no
incinerators, septic tanks, underground tanks or
cesspools located on, at or under the Company Real
Property, (ii) all sewage from the Company Real Property
is discharged into a public sanitary sewer system, and
(iii) there has been no Release by the Company or any of
the Company Subsidiaries into the atmosphere, adjoining
or adjacent to any body of water, or on to adjacent
property.
(c) Each of the Company and the
Company Subsidiaries, as applicable, has obtained, and
is in compliance with, all material Environmental
Permits, except where the failure to obtain or be in
compliance with any such Environmental Permits would
not, singly or in the aggregate, have a material adverse
effect on the Condition of the Business.
(d) Except as set forth on Schedule
3.28 or as would not, singly or in the aggregate, have a
material adverse effect on the Condition of the
Business, all such Environmental Permits are in full
force and effect, and the Company and each Company
Subsidiary has made all appropriate filings for issuance or
renewal of such Environmental Permits.
(e) Except as set forth on Schedule
3.28 or as would not, singly or in the aggregate, have a
material adverse effect on the Condition of the
Business, there are no facts, events, conditions,
circumstances, activities, practices, incidents,
actions, omissions or plans known to Triumph, the
Company or the Company Subsidiaries that: (i) may give
rise to any Regulatory Action including the Company or
any of the Company Subsidiaries or the Company Real
Property, or (ii) is reasonably likely to form the basis
of any Third Party Claim involving the Company, any of
the Company Subsidiaries or the Company Real Property.
Except as set forth on Schedule 3.28, there are no
Regulatory Actions or Third Party Claims relating to,
arising from or otherwise affecting the Company Real
Property.
Finders; Fees. Except for Tucker Anthony
Incorporated whose fees will be paid in accordance with
the provisions by Section 5.11, there is no investment
banker, broker, finder or other intermediary which has
been retained by or is authorized to act on behalf of
any Seller, the Company or any of the Company
Subsidiaries who might be entitled to any fee or commission from the
Company or any of the Company Subsidiaries upon
consummation of the Contemplated Transactions.
Depositaries; Powers of Attorney, etc. Schedule
3.30 sets forth (i) the name of each bank or similar
entity in which the Company or each of the Company
Subsidiaries has an account, lock box or safe deposit
box and the names of all persons authorized to draw
thereon or to have access thereto; and (ii) the name of
each person holding a general or special power of
attorney from the Company or each of the Company
Subsidiaries and a description of the terms thereof.
Acquisition for Investment. Those Sellers who
are acquiring Buyer Common Stock are acquiring such
stock for their own account and not with a present
intention to make any sale, disposition, distribution or
other transfer of Buyer Common Stock in a manner that
will be in violation of any applicable securities Laws
and understand that the Buyer Common Stock has not been
registered under the 1933 Act or under the securities
Laws of any state.
Disclosure. Neither this Agreement, the Schedules
hereto, nor any audited or unaudited financial
statements, documents or certificates furnished or to be
furnished to Buyer by or on behalf of any Seller
pursuant to this Agreement contains any untrue statement
of a material fact or omits to state a material fact
necessary in order to make the statements contained
herein or therein not misleading. There are no facts
which would materially adversely affect the Condition of
the Business which have not been set forth herein, or in
any Schedule hereto, or in any certificate or statement
furnished or to be furnished to Buyer by Seller.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Sellers that:
Buyer Common Stock. The Buyer Common Stock to be
issued as part of the Purchase Price is validly
authorized and, when issued and delivered in accordance
with this Agreement, will be validly issued, fully paid
and non assessable and will not be issued in violation
of any preemptive rights, rights of first refusal or
other contractual restrictions of any kind of the
shareholders of Buyer, and the applicable Sellers will
receive good title to the Buyer Common Stock free and
clear of all Liens.
Acquisition for Investment. Buyer is acquiring
the Purchased Shares for its own account and not with a
present intention to make any sale, disposition,
distribution or other transfer of the Purchased Shares
in a manner that will be in violation of any
applicable securities Laws and understands that the Purchased
Shares have not been registered under the 1933 Act or
under the securities Laws of any state.
Authority Relative to This Agreement. Buyer has
full corporate power and authority to execute and
deliver this Agreement and each other Transaction
Document to which it is a party and to consummate the
Contemplated Transactions. The execution and delivery of this
Agreement and the consummation of the Contemplated Transactions to which
Buyer is a party have been duly and validly authorized
and approved by the Board of Directors and shareholders
of Buyer and no other corporate proceedings on the part
of Buyer are necessary to authorize the execution and
delivery by Buyer of this Agreement or the consummation
of the Contemplated Transactions to which Buyer is a
party. This Agreement has been duly and validly executed and
delivered by Buyer and (assuming the valid execution and
delivery of this Agreement by the other parties hereto)
constitutes the legal, valid and binding agreement of
Buyer, enforceable against Buyer in accordance with its
terms, except as such obligations and their
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar
laws affecting the enforcement of creditors' rights
generally and except that the availability of equitable
remedies, including specific performance, is subject to
the discretion of the court before which any proceeding
therefor may be brought (whether at law or in equity).
No Conflicts; Consents. Except as set forth in
Schedule 4.4, the execution, delivery and performance by
Buyer of this Agreement and each other Transaction
Document to which it is a party and the consummation of
the Contemplated Transactions to which Buyer is a party
will not (i) violate any provision of the Certificate of
Incorporation or By-laws of Buyer or any Buyer
Subsidiary; (ii) require Buyer or any Buyer Subsidiary
to amend any Contract, obtain any consent, approval or
action of or waiver from, or make any filing with, or
give any notice to, any Governmental Body or any other
person, except for compliance with the HSR Act and as
set forth in Schedule 4.4 (the "Buyer Required
Consents"); (iii) if the Buyer Required Consents are
obtained, violate, conflict with or result in the breach
of any of the terms of, result in a material
modification of the effect of, or otherwise cause the
termination of, give any other contracting party the
right to terminate, or constitute (or with notice or lapse of
time or both constitute) a default under, any Contract
to which Buyer or any Buyer Subsidiary is a party or by
or to which any of them or any of their Assets may be
bound or subject, or result in the creation of any Lien
upon the Buyer Common Stock being issued to Sellers or
upon the properties of Buyer or any Buyer Subsidiary
pursuant to the terms of any such Contract other than
such violations, conflicts, breaches, modifications,
terminations, rights to terminate, defaults or Liens
that, individually or in the aggregate, would not have a
material adverse effect on the Condition of Buyer; (iv)
if the Buyer Required Consents are obtained, violate any
Law or Order of any Governmental Body against, or
binding upon, Buyer or any Buyer Subsidiary or upon
their respective Assets or Business other than such
violations that, individually or in the aggregate, would
not have a material adverse effect on the Condition of
Buyer; (v) if the Buyer Required Consents are obtained,
violate or result in the revocation or suspension of any
Permit other than such violations that, individually or
in the aggregate, would not have a material adverse
effect on the Condition of Buyer or (vi) if the Buyer
Required Consents are not obtained, have a material
adverse effect on the Condition of Buyer.
Corporate Existence and Power. Buyer is a
corporation duly organized, validly existing and in good
standing under the laws of its state of incorporation
and has all requisite corporate powers and all material
governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted. Buyer is duly qualified to do business as a
foreign corporation and is in good standing in each
continental United States jurisdiction where the
character of the property owned or leased by it or the nature of
its activities makes such qualification necessary,
except for those jurisdictions where the failure to be
so qualified would not, individually or in the
aggregate, have a material adverse effect on the
business, its Assets, financial condition or the results
of operations of Buyer or the Buyer Subsidiaries taken
as a whole (collectively, the "Condition of Buyer").
Buyer is duly qualified to do business as a foreign
corporation in each of the United States jurisdictions
listed on Schedule 4.6 hereto.
Subsidiaries. (a) Each Subsidiary of Buyer (each,
a "Buyer Subsidiary") is a corporation duly organized,
validly existing and in good standing under the laws of
its jurisdiction of incorporation or other organization,
and has all corporate or other powers and all material
governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted and is duly qualified to do business as a
foreign person and is in good standing in each
continental United States jurisdiction where the
character of the property owned or leased by it or the
nature of its activities make such qualification
necessary, except for such jurisdictions where the
failure to be so qualified would not, individually or in
the aggregate, have a material adverse effect on the
Condition of Buyer.
(a) Schedule 4.6 sets out the name of
each Buyer Subsidiary, its jurisdiction of incorporation
or other organization, each United States jurisdiction
in which it is duly qualified to do business as a
foreign corporation, the authorized capital stock or other ownership
interests of, and the securities issued by, each Buyer Subsidiary,
together with the holders of all such outstanding
securities. Except for the Buyer Subsidiaries set forth
on Schedule 4.6, Buyer does not directly or
indirectly own any interest in any other person.
(b) Except as set forth on Schedule 4.6,
all of the outstanding capital stock or other ownership
interests of each Buyer Subsidiary is owned by Buyer,
directly or indirectly, free and clear of any Lien and
any other limitation or restriction (including any
restriction on the right to vote, sell or otherwise
dispose of such capital stock or other ownership
interests). All of the outstanding capital stock or
other ownership interests of each Buyer Subsidiary is
validly issued, fully paid and nonassessable and was not
issued in violation of any preemptive rights, rights of
first refusal or any other contractual or legal
restrictions of any kind. Except as set forth on
Schedule 4.6, there are no outstanding (i) securities of
Buyer or any Buyer Subsidiary convertible into or
exchangeable for capital stock or other ownership
interests in any Buyer Subsidiary and (ii) options,
warrants, calls or other rights to acquire from any
Buyer Subsidiary, and no obligation of Buyer or any
Buyer Subsidiary to issue, any capital stock or other
ownership interests of, or any securities convertible
into or exchangeable for any capital stock of or
ownership interests in, any Buyer Subsidiary. Except as
set out in Schedule 4.6, there are no outstanding
obligations of Buyer or any Buyer Subsidiary to repurchase, redeem or
otherwise acquire any securities of the Buyer or any
Buyer Subsidiary.
Charter Documents. (a) Buyer has heretofore
delivered to the Sellers true and complete copies of the
Certificate of Incorporation (certified by the Secretary
of State of the State of Delaware or, if unavailable on
the date hereof, by the Secretary of Buyer) and By-laws
certified by the Secretary of Buyer in effect on the
date hereof. The stock and transfer books of Buyer and
each of the Buyer Subsidiaries have been made available
to the Sellers for their inspection and are true and
complete.
(a) All financial, business and
accounting books, ledgers, accounts and official and
other records relating to Buyer and each Buyer
Subsidiary have been properly and accurately kept and
completed in all material respects, and there are no
material inaccuracies or discrepancies contained or
reflected therein. Neither Buyer nor any Buyer
Subsidiary has any records, systems, Contracts, data or
information, recorded, stored, maintained, operated or
otherwise wholly or partly dependent upon or held by any
means (including any electronic, mechanical or
photograph process, whether computerized or not) which
(including all means of access thereto and therefrom)
are not under their exclusive ownership and direct
control.
Capitalization. (a) Immediately prior to the
filing of Buyer's Certificate of Incorporation on the
date hereof, the authorized capital stock of Buyer
consisted of: (i) 200,000 Class A Common Shares, par
value $.01 per share, of which 145,642 shares were
issued and outstanding; (ii) 1,000,000 Class B Common Shares, par value
$.01 per share, of which 697,493 were issued and outstanding and
of which 423,207 were owned by Subsidiaries; (iii)
100,000 First Preferred Shares, par value $.01 per
share, of which no shares were issued and outstanding;
and (d) 100,000 Second Preferred Shares, par value $.01
per share, of which 56,670 were issued and outstanding.
All of such shares were duly authorized and validly
issued, were fully paid and nonassessable.
(a) The Recapitalization Transactions
affecting Buyer or any United States Subsidiary have
been duly and validly consummated in accordance with
applicable law except that the Reincorporation Merger
has not become effective, as of the date hereof, under
New York law. The authorized capital stock of Buyer
consists of (i) $1,500,000 shares of Common Stock, par
value $.01 per share, of which no shares are issued or
outstanding, (ii) 1,000,000 shares of Class A Common
Stock, par value $.01 per share, of which, after giving
effect to the issuance of shares thereof to the Sellers
pursuant to this Agreement, there will be 900,189 shares
issued and outstanding, of which 423,207 shares are
owned by Subsidiaries, (iii) one share of Special
Preferred Stock, par value $.01 per share, of which one
share is issued and outstanding, and (iv) 500,000 shares
of Preferred Stock, par value $.01 per share, of which
no shares are issued and outstanding. All outstanding
shares of capital stock of Buyer have been duly
authorized and validly issued, fully paid and are non-
assessable and have not been issued in violation of any
preemptive rights, rights of first refusal or any other
contractual legal restrictions of any kind. Except for
the restrictions contained in the Stockholders'
Agreement, there are no outstanding
(A) securities of Buyer convertible into or exchangeable
for shares of capital stock or voting securities of
Buyer, and (B) options, warrants, calls, preemptive
rights, rights of first refusal or other rights to
acquire from Buyer, and no obligation of Buyer to issue,
any capital stock, voting securities or securities
convertible into or exchangeable for capital stock or
voting securities of Buyer. Except as set forth in the
Stockholders' Agreement, there are no outstanding
obligations of Buyer or any Buyer Subsidiary to
repurchase, redeem or otherwise acquire any securities
of Buyer.
Financial Information. The consolidated balance
sheet and statements of cash flows and operations of
Buyer and statement of income and retained earnings as
of and for the years ended December 31, 1994, 1993, 1992
and 1991 audited by Ernst & Young, copies of all of
which have been furnished to the Sellers, have been
prepared in accordance with GAAP applied on a consistent
basis (except as may be indicated therein or in the
notes thereto), are accurate, show all material
Liabilities, and fairly present in accordance with GAAP
the consolidated financial position of Buyer and the
Buyer Subsidiaries as of the dates thereof and the
consolidated results of operations and cash flows (or
changes in financial position, as the case may be), of
Buyer and the Buyer Subsidiaries for each of the periods
then ended.
Liabilities. (a) Except as set forth in
Schedule 4.10A, Buyer and the Buyer Subsidiaries are not
aware of any unasserted Contingency, except
(i) Contingencies which are accrued or reserved against
in the consolidated balance sheet of Buyer as of December
31, 1994 or reflected in the notes to the audited
financial statements of Buyer for the fiscal year ended
December 31, 1994; and (ii) Liabilities incurred after
December 31, 1994 in the ordinary course of business and
consistent with past practice.
(a) Schedule 4.10B sets forth, as of
the date hereof, a brief description of all Liabilities
of Buyer and each Buyer Subsidiaries in respect of (i)
money borrowed from and owed to any bank, financial
institution or other person; (ii) any indebtedness
arising under leases required to be capitalized under
GAAP; (iii) any indebtedness arising under purchase money
obligations and (iv) any indebtedness or potential
indebtedness under any guaranty, letter of credit or
performance credit (the indebtedness or potential
indebtedness described in the foregoing clauses being
referred to, herein, collectively, as "Buyer Debt").
Except as set forth on Schedule 4.10B, all Buyer Debt may
be repaid or prepaid upon no more than 30 days' notice
without premium or penalty.
Receivables. (a) All the accounts receivable of
Buyer and each Buyer Subsidiary (the "Buyer Receivables")
reflected in the Buyer Balance Sheet and all Buyer
Receivables that have arisen since the Buyer Balance
Sheet Date (except such Buyer Receivables as have been
collected since such date) are valid and enforceable
claims, and constitute bona fide Buyer Receivables
resulting from the sale of goods and services in the
ordinary course of business in conformity with applicable
purchase orders , agreements and specifications. To
Buyer's knowledge, the Buyer Receivables are subject to
no valid defense, offsets, returns, allowances or credits of
any kind other than in the ordinary course of business and are fully
collectible within 90 days from the date they are
invoiced except to the extent of the amount of the
reserve for doubtful accounts reflected in the Buyer
Balance Sheet, it being understood and agreed that
nothing contained herein shall be deemed to guarantee
the collectibility of the Buyer Receivables. Buyer has
heretofore delivered to Sellers a schedule as at March
31, 1995 setting forth the total amount of Buyer
Receivables and a schedule of the aging of such Buyer Receivables based
on 030 days, 31-60 days, 61-90 days and over 90 days.
All chargebacks with customers to which Buyer or any
Buyer Subsidiary has agreed have been credited to the
customers concerned.
(a) Schedule 4.11 sets forth a brief
description and list (including the principal amount and
maturity date) of any loan made by Buyer or any Buyer
Subsidiary: (i) in excess of $15,000 to any employee of
Buyer or any Buyer Subsidiary and (ii) to any person
other than employees of Buyer or any Buyer Subsidiary.
Inventories. The inventories of Buyer and of
each Buyer Subsidiary reflected in the Buyer Balance
Sheet and all inventory items acquired since the Buyer
Balance Sheet Date consist of raw materials, supplies,
work-in-process and finished goods of such quality and
in such quantities as are being used or are reasonably
anticipated to be usable, or are being sold or are
suitable for sale, in the ordinary course of its
business. Such inventories are valued at the lower of
cost or market and were determined in accordance
with GAAP consistently applied. Since the Buyer Balance
Sheet Date, Buyer and each of the Buyer Subsidiaries
have continued to replenish its inventories in a normal
and customary manner consistent with prior practice and
prudent business judgment. Buyer and each Buyer
Subsidiary have established adequate reserves for
inventory that no longer constitutes part of their
current line. The amount of such reserves and the
methodology used to determine same have been disclosed
in writing by Buyer to Sellers with specific reference
to this Section 4.12.
Absence of Certain Changes. Since the Buyer
Balance Sheet Date, except as set forth in this
Agreement or disclosed or referred to in Schedule 4.13,
each of Buyer and the Buyer Subsidiaries has conducted
its business in the ordinary course consistent with past
practices and there has not been:
(a) Any event that has had or would
reasonably be expected to have a material adverse effect
on the Condition of Buyer;
(b) Any declaration, setting aside or
payment of any dividend or other distribution with
respect to any shares of capital stock of Buyer or any
of the Buyer Subsidiaries;
(c) Any amendment to the Certificate
of Incorporation or By-laws of Buyer or any of the Buyer
Subsidiaries or any amendment to any term of any
outstanding security of the Buyer or any of the Buyer
Subsidiaries;
(d) Any (i) incurrence, assumption or
guarantee by Buyer or any of the Buyer Subsidiaries of
any Liability other than in the ordinary course of business
in amounts and on terms consistent with past practices,
(ii) issuance or sale of any securities convertible into
or exchangeable for debt securities of Buyer or any of
the Buyer Subsidiaries, or (iii) issuance or sale of
options or other rights to acquire from Buyer or any of
the Buyer Subsidiaries, directly or indirectly, debt
securities of Buyer or any of the Buyer Subsidiaries or
any securities convertible into or exchangeable for any
such debt securities;
Any creation, incurrence or assumption by
Buyer or any of the Buyer Subsidiaries of any Lien on
any Asset other than (i) Liens for Taxes not yet due or
being contested in good faith (and for which adequate
reserves have been established); (ii) Liens which do not
materially detract from the value of such Asset as now
used, or materially interfere with any present or
intended use of such Asset; or (iii) Permitted Liens.
(f) Any making or forgiving of any
loan, advance or capital contribution to or investment in any
person other than loans, advances or capital
contributions to or investments in Buyer Subsidiaries
made in the ordinary course of business consistent with
past practices;
(g) Any damage, destruction or other
casualty loss (whether or not covered by insurance),
condemnation or other taking affecting the business or
Assets of Buyer or any of the Buyer Subsidiaries which,
individually or in the aggregate, has had or will
reasonably be expected to have a material adverse effect on the
Condition of Buyer;
(h) Except in the ordinary course of
business, any transaction or commitment made, or any
Contract entered into, by Buyer or any of the Buyer
Subsidiaries relating to its Assets or business
(including the acquisition or disposition of any
substantial Assets) or any relinquishment by Buyer or
any of the Buyer Subsidiaries of any Contract or other
right;
(i) Any change in any method of
accounting or accounting practice by Buyer or any of the Buyer
Subsidiaries;
(j) Any assumption or guarantee of the
obligations of any person other than a Buyer Subsidiary;
(k) Any grant of any severance or
termination pay to any stockholder or officer of Buyer
or any of the Buyer Subsidiaries, any entering into of
any employment, deferred compensation or other similar
agreement (or any amendment to any such existing
agreement) with any stockholder, officer or director of
Buyer or any of the Buyer Subsidiaries or any increase
in benefits payable under any existing severance or
termination pay policies or employment agreements, or
any increase in compensation, bonus or other benefits
payable to any stockholder, officer or director of Buyer
or any of the Buyer Subsidiaries in each case, other
than routine increases in the ordinary course of
business or disclosed to Sellers in writing with
specific reference to his Section 4.13(k) or on any
Schedule;
(l) Any labor dispute, other than
routine individual grievances, or any activity or proceeding by
a labor union or representative thereof to organize any
employees of Buyer or any of the Buyer Subsidiaries,
which employees were not subject to a collective
bargaining agreement at the Buyer Balance Sheet Date, or
any lockouts, strikes, slowdowns, work stoppages or, to
the knowledge of Buyer, threats thereof by or with
respect to such employees;
(m) Any waiver of any material right
under any Contract of the type required to be set forth on any
Schedule;
(n) Except for any changes made in the
ordinary course of business, any material change in any
of Buyer's or any of the Buyer Subsidiaries' business
policies, including advertising, investment, marketing,
pricing, purchasing, production, personnel, sales,
returns, budget or product acquisition policies;
(o) Except in the ordinary course of
business, any payment, directly or indirectly, of any
material Liability before the same became due in
accordance with its terms;
(p) Any termination or failure to
renew, or the receipt of any written threat (that was
not subsequently withdrawn) to terminate or fail to
renew, any Contract that is or was material to the
Condition of Buyer; or
(q) Any Contract or arrangement made
by Buyer or any of the Buyer Subsidiaries to take any
action which, if taken prior to the date hereof, would
have made any representation or warranty in this Section
untrue or incorrect in any material respect.
Title to Properties. (a) Schedule 4.14A sets
forth a complete list and brief description of all real
property owned by Buyer or any of the Buyer Subsidiaries
(the "Buyer Owned Real Property") and all real property
leased or operated by Buyer or any of the Buyer
Subsidiaries if the annual base rent thereunder exceeds
$250,000 (all real property leased or operated by Buyer
or any of the Buyer Subsidiaries (including those with
an annual base rent of less than $250,000) is
hereinafter referred to as the "Buyer Leased Real
Property") (together, the Buyer Owned Real Property and
the Buyer Leased Real Property shall be referred to as
the "Buyer Real Property"). With respect to the Buyer
Owned Real Property, Schedule 4.14 also sets forth for
each Buyer Owned Real Property a list of the most recent
title insurance policies, appraisal reports and
environmental reports in the possession or under the
control of the Buyer or any of the Buyer Subsidiaries,
copies of all of which have been provided to Buyer.
With respect to the Buyer Leased Real Property with
annual base rent in excess of $250,000, Schedule 4.14A
also sets forth the date of each lease, the term
thereof, the address and square footage of the property,
and the aggregate monthly rental payable thereunder.
(a) With respect to the Buyer Real
Property and the respective operations thereat by Buyer
or any Buyer Subsidiary:
(i) To the knowledge of Buyer,
there are no violations of any Law (including but not
limited to zoning and setback requirements) where the
effect of any such violation, individually or in the
aggregate, would have a materially adverse effect on the
Condition of Buyer;
(ii) Buyer or the Buyer
Subsidiaries have obtained and complied with all Permits and Orders,
except where the failure to obtain such Permits and
Orders or comply therewith, individually or in the
aggregate, would not have a material adverse effect on
the Condition of Buyer;
(iii) All buildings, structures and
other improvements located thereon that are owned or
leased are in working condition and repair, reasonable
wear and tear excepted, except where such failure to be
in working condition and repair, reasonable wear and
tear excepted, would not have a material adverse effect
on the Condition of Buyer, and neither Buyer nor any of
the Buyer Subsidiaries has done or performed, or caused
to be done or performed, any work or required any
services within the past year except for which payment
in full has been made and lien waivers obtained;
(iv) There is no pending or, to
the knowledge of Buyer, threatened Claim (including Third
Party Claims), or any existing condition or basis which
may give rise to any such Claim, or which may otherwise
result in the imposition of a Lien or forfeiture of any
of the Buyer Owned Real Property, or otherwise prohibit,
restrict or materially interfere with its use as
presently conducted except for Claims which would not have a material
adverse effect on the Condition of Buyer;
(v) To the knowledge of Buyer,
there is no pending or threatened Claim (including Third
Party Claims), or any existing condition or basis which
may give rise to any such Claim, or which may otherwise
result in the imposition of a Lien or forfeiture of any
of the Buyer Leased Real Property, or otherwise
prohibit, restrict or materially interfere with its use
as presently conducted except for Claims which would not
have a material adverse effect on the Condition of
Buyer;
There are no pending, or to the
knowledge of Buyer, threatened proceedings, which may
result in a total or partial condemnation, eminent
domain or other taking of any Buyer Owned Real Property;
(vii) To the knowledge of Buyer,
there are no pending or threatened proceedings, which
may result in a total or partial condemnation, eminent
domain or other taking of any Buyer Leased Real
Property;
(viii) There are no claims of or
rights to possession, or any claims of adverse
possession, with respect to all or any portion of any of
the Buyer Owned Real Property;
(ix) To the knowledge of Buyer,
there are no claims of or rights to possession, or any
claims of adverse possession, with respect to all or any
portion of any of the Buyer Leased Real Property; and
(x) Buyer or a Buyer Subsidiary has
good and insurable fee title to the Buyer Owned Real
Property or a Buyer Subsidiary and a valid and existing
leasehold interest in Buyer Leased Real Property or a
Buyer Subsidiary subject to no Liens except for Buyer
Permitted Liens.
(b) The tangible property owned or
used by Buyer ("Buyer Tangible Property") including, without
limitation, all machinery, sewing or cutting machines,
equipment, furniture, furnishings, leasehold
improvements, fixtures and vehicles have been maintained
in the ordinary course and is in working order,
reasonable wear and tear excepted, except for a
nonmaterial portion of such Buyer Tangible Property that
may be undergoing repairs or maintenance in the ordinary
course and except where such failure to maintain would
not have a material adverse effect on the Condition of
Buyer.
(c) Schedule 4.14B sets forth, with
respect to each lease of Buyer Tangible Property with an
annual base rent in excess of $250,000, the commencement
date of the lease, and any amendment thereto, the term
thereof, and the aggregate monthly rent payable
thereunder.
(d) Except as set out in Schedule
4.14C, Buyer or a Buyer Subsidiary has good title to all
Buyer Tangible Property reflected on the Buyer Balance
Sheet or acquired after the Buyer Balance Sheet Date
except for Buyer Tangible Property sold or disposed of
since the Buyer Balance Sheet Date in the ordinary
course of business consistent with past practice. Buyer
or a Buyer Subsidiary has good title to all raw
materials, work in process or finished Buyer Products located at
the premises of any Contractor. Except as set forth on Schedule 4.14C, none
of such Buyer Tangible Property is subject to any Liens,
except for the following (collectively, "Buyer Permitted Liens"):
(i) Liens disclosed on the Buyer
Balance Sheet or the notes thereto;
(ii) Liens for Taxes not yet due
or payable or being contested in good faith (and for
which adequate reserves have been established on the
Buyer Balance Sheet);
(iii) Liens, easements, zoning or
other planning restrictions or limitations on use or
other irregularities in title, none of which materially
detracts from the value of such Assets as now used, or
materially interferes with any present use of such
Assets;
(iv) Liens arising in the ordinary
course of business which do not materially detract from
the value of such Assets as now used or materially
interfere with any present use of such Assets; and
(v) Liens of carriers,
warehousemen, mechanics, materialmen, vendors, lessors, and landlords
incurred in the ordinary course of business.
Contracts. (a) Except for Contracts pursuant to
the terms of which there is either a current or future
obligation or right of Buyer or a Buyer Subsidiary to
make payments or receive payments not in excess
individually of $250,000 during any calendar year,
Schedule 4.15 sets forth as of the date hereof a
complete and accurate list of all Contracts to which
either Buyer or any of the Buyer Subsidiaries is a
party, or by or to which it or its Assets are bound or
subject, including, without limitation:
(i) Contracts with any
current or former employee, independent contractor, consultant,
agent or other representative or with any Affiliate of
any of the foregoing;
(ii) Contracts relating to
the design of any Buyer Products;
(iii) Other than in the
ordinary course of business: (A) Contracts for the sale of any
of its Assets or (B) Contracts for the grant to any
person of any preferential rights to purchase any of its
Assets;
Contracts under which Buyer and/or
any of the Buyer Subsidiaries agree to indemnify any
person;
(v) Contracts under which
Buyer and/or any of the Buyer Subsidiaries agree to
share Tax liability of, or with, any party;
(vi) Contracts that cannot be
cancelled without material Liability, premium or penalty;
(vii) Contracts with any
person to advertise or market any of Buyer's or any of the
Buyer Subsidiaries' Products other than in the ordinary
course of business;
(viii) Contracts relating to
the acquisition of any operating business or the capital
shares of any other person;
(ix) Options for the purchase
or sale of any Asset;
(x) Contracts requiring the
payment to any person of an override or similar commission or fee;
(xi) Contracts with customers,
independent suppliers, Contractors and manufacturers
other than in the ordinary course of business;
(xii) Sales agency, licensing,
manufacturer's representative or distributorship
agreements;
(xiii) Contracts pursuant to which
any party is required to purchase or sell a stated
portion of its requirements or output to another party;
(xiv) Contracts for the payment of
fees or other consideration to any officer or director
of Buyer or any of the Buyer Subsidiaries or to any
other entity in which any of the foregoing has an
interest; and
(xv) Management Contracts and
other similar agreements with any person.
(b) Schedule 4.15 also sets forth as
of the date hereof a complete and accurate list of the
following Contracts to which either Buyer or any of the
Buyer Subsidiaries is a party, or by which it or its
Assets are bound or subject:
Contracts with any current or
former stockholder, officer or director that impose,
after the Closing Date, continuing obligations on a
Buyer or a Buyer Subsidiary;
(ii) Contracts with any labor
union or association representing any employee;
(iii) Partnership or joint
venture agreements;
(iv) Contracts containing
covenants not to compete in any line of business or with
any person in any geographical area (or not to solicit
or accept any business) or covenants of any other person
not to compete in any line of business or in any
geographical area with Buyer or any Buyer Subsidiary (or
not to solicit or accept any business);
(v) Contracts relating to
any Buyer Debt in respect of: (A) money borrowed from
and owed to any bank, financial institution or other
person; (B) any indebtedness in excess of $500,000
arising under leases required to be capitalized under
GAAP; (C) any indebtedness in excess of $500,000 arising
under purchase money obligations and (D) any
indebtedness or potential indebtedness in excess of
$500,000 under any guaranty, letter of credit or
performance credit; and
(vi) Contracts providing
rights of exclusivity to distributors or retailers for
definite or indefinite periods for any products or
product lines or for the use of any trademark or
tradename.
(c) Schedule 4.15 also lists and
describes the status of all Contracts currently in negotiation or
proposed by Buyer or any of the Buyer Subsidiaries as to
which there exists a draft agreement, letter of intent
or similar instrument and which is of a type which if
entered into by Buyer or any of the Buyer Subsidiaries
would be required to be listed on Schedule 4.15 or on
any other Schedule (the "Buyer Proposed Contracts").
There are no Contracts, other than those set
forth on Schedule 4.15, on any other Schedule to this
Agreement or which are not required to be disclosed
hereunder. Except as set forth on Schedule 4.15, all
Contracts (individually or, in the case of any group of
similar Contracts, in the aggregate) material to the
Condition of Buyer are valid, subsisting, in full force
and effect and binding upon Buyer or any of the Buyer
Subsidiaries, as the case may be, and, to the knowledge
of Buyer, on the other parties thereto in accordance
with their terms and Buyer and each of the Buyer
Subsidiaries has paid in all material respects or
accrued amounts due thereunder and has satisfied in all
material respects or provided for all of its liabilities
and obligations thereunder to be satisfied or provided
for through the date hereof, and is not in default under
any of them in any material respect, nor, to the
knowledge of Buyer, is any other party to any Contract
(individually or, in the case of any group of similar
Contracts, in the aggregate) material to the Condition of
Buyer in default thereunder in any material respect, nor, to the
knowledge of Buyer, does any condition exist that with notice or lapse of
time or both would constitute a material default
thereunder. Except as separately identified on Schedule
4.12 hereto, neither Buyer nor any of the Buyer
Subsidiaries is a party to or bound by any Contract that
materially adversely affects the Condition of Buyer.
Except as separately identified on Schedule 4.15 hereto
or on any other Schedule, no approval or consent of any
person is needed in order that the Contracts
(individually or, in the case of any group of similar
Contracts, in the aggregate) material to the Condition
of Buyer continue in full force and effect following the
consummation of the Contemplated Transactions and the
operation of the Business of the Company and the Company
Subsidiaries together with that of the Buyer and the
Buyer Subsidiaries except for such approvals or consents
which, if not obtained, would not have a material
adverse effect on the Condition of the Buyer. Except as
set forth on Schedule 4.15 or any other Schedule, the
termination of any Contract will not cause Buyer or any
Buyer Subsidiary to incur any material penalty, loss,
expense or termination payment.
(e) Buyer has given Triumph access to
true and complete copies of (i) all of the Contracts required
to be set forth on Schedule 4.15 or on any other
Schedule or (ii) the most recent draft, letter of intent
or term sheet of all of the Buyer Proposed Contracts
required by the provisions of Section 4.15(c) to be set
forth on Schedule 4.15.
Intangible Property. (a) Buyer or the Buyer
Subsidiaries own or have the right to use all material
trademarks, tradenames, servicemarks, patents, models,
industrial designs and registered copyrights
(collectively, "Buyer Intellectual Property Rights")
necessary to the conduct of their respective businesses.
Schedule 4.16 sets forth a list of those trademarks that
are material to the Condition of Buyer.
To the knowledge of Buyer, with respect to
Buyer Intellectual Property Rights material to the
Condition of Buyer (i) all United States renewals and
other maintenance actions in respect of the registration
relating to such trademarks have been appropriately
filed; (ii) Buyer or a Buyer Subsidiary has exercised
its best efforts to ensure compliance with all United
States registration and recording requirements, and has
paid all necessary government fees; and (iii) the United
States trademark registrations and licenses thereof are
valid with respect to Buyer Products that are covered by
the registrations.
(b) Except for restrictions of an
immaterial nature, Buyer or Buyer Subsidiary has the
right to use, free and clear of any Claims or rights of
others, all material trade secrets, know-how, processes,
technology, blue prints, art work, films, negatives,
photographs, separations, patterns and package and other
designs utilized in the conduct of its business, except
where such failure to have such rights would not,
individually or in the aggregate, have a material
adverse effect on the Condition of Buyer.
(c) Except as set forth on Schedule
4.16, no material Buyer Intellectual Property Right is
subject to any Lien or outstanding Order or Contract
restricting the use or licensing thereof. Except as set
forth on Schedule 4.16, (i) neither Buyer nor any of the
Buyer Subsidiaries during the three years preceding the
date hereof has been sued or charged in writing with or
been a defendant in any Claim which has not been
terminated prior to the date hereof and which involves a
Claim of infringement arising out of the use,
registration or ownership of any Buyer Intellectual
Property Rights material to the Condition of Buyer; and
(ii) Buyer has no knowledge of any such charge or Claim
of any infringement during the three years preceding the
date hereof by any other person arising out of the use,
registration or ownership of any material Buyer
Intellectual Property Rights.
Claims and Proceedings. Except as set forth on
Schedule 4.17, there are no outstanding material Orders
of any Governmental Body against or involving Buyer, any of
the Buyer Subsidiaries or their respective Assets other
than Orders affecting the apparel industry generally.
Except as set forth on Schedule 4.17, there are no
Claims (whether or not the defense thereof or
Liabilities in respect thereof are covered by
insurance), pending or threatened in writing, against or
involving Buyer or any of the Buyer Subsidiaries or any
of their respective Assets which (i) involve a claim for
the payment of money damages of $100,000 or more; (ii)
relate to employment, regardless of amount, other than
workers' compensation Claims, severance Claims or Claims
under Plans or (iii) individually or in the aggregate,
would have a material adverse effect upon the
Contemplated Transactions or upon the Condition of Buyer
other than Claims affecting the apparel industry
generally. Except as set forth on Schedule 4.17, to the knowledge of Buyer,
there is no fact, event or circumstances that would give
rise to any Claim that would be required to be set forth
on Schedule 4.17 if currently pending or threatened.
All notices required to have been given to any insurance
company listed as insuring against any Claim set forth
on Schedule 4.17 have been timely and duly given and,
except as set forth on Schedule 4.17, no insurance company has
asserted in writing that such Claim is not covered by
the applicable policy relating to such Claim. Except as
set forth on Schedule 4.17 there are no material product
liability Claims against or involving Buyer or any of
the Buyer Subsidiaries or, to the knowledge of Buyer,
any product manufactured, marketed or distributed at any
time by Buyer or any of the Buyer Subsidiaries ("Buyer
Products") and no such Claims have been settled,
adjudicated or otherwise disposed of since January 1,
1992. There are no material Claims pending or, to the
knowledge of Buyer, threatened that would give rise to
any right of indemnification on the part of any director
or officer of Buyer or any of the Buyer Subsidiaries or
the heirs, executors or administrators of such director
or officer, against Buyer or any of the Buyer
Subsidiaries or any successor to the business of Buyer
or any of the Buyer Subsidiaries.
Restrictions on Business Activities. There is no
Order binding upon Buyer or any of the Buyer
Subsidiaries which has or would reasonably be expected
to have the effect of prohibiting or adversely affecting
(i) competition by Buyer or any of the Buyer
Subsidiaries, (ii) any business practice of Buyer or any
of the Buyer Subsidiaries, (iii) any acquisition of
property by Buyer or any of the Buyer Subsidiaries, or
(iv) to the knowledge of Buyer, the Condition of Buyer.
Taxes. (a) Except as set forth in the Buyer
Balance Sheet (including the notes thereto) or on
Schedule 4.19, (i) all Tax returns, statements,
applications, reports and forms required by law to be
filed with any Taxing Authority on or before the Closing
Date with respect to any Pre-Closing Tax Period (as
hereinafter defined) by or on behalf of Buyer or any
Buyer Subsidiary (collectively, the "Buyer Returns")
have been timely filed through the date hereof or will
be filed when due (taking into account any extension
granted by the appropriate Taxing Authority); (ii) as of
the time of filing, the Buyer Returns correctly
reflected (and, as to any Buyer Returns not filed as of
the date hereof and required to be filed on or before
the Closing Date, will correctly reflect) the facts
regarding the income, business, Assets, operations,
activities and status of Buyer, the Buyer Subsidiaries
and any other information required to be shown therein;
(iii) Buyer and the Buyer Subsidiaries have timely paid
or made provision for in reserves shown in the Buyer
Balance Sheet all Taxes that are due and payable for any
period ended on or prior to the date of the Buyer
Balance Sheet; (iv) the Buyer and Buyer Subsidiaries
have made or on or before the Closing Date will make
provision for all Taxes payable by the Buyer and Buyer
Subsidiaries for any Pre-Closing Tax Period for which no
Buyer Return has been filed; (v) the charges, accruals
and reserves for Taxes reflected or that will be
reflected on the books of the Buyer and the Buyer
Subsidiaries are adequate to cover the Tax liabilities
accruing or payable by Buyer and the Buyer Subsidiaries
in respect of any Pre-Closing Tax Period; (vi)
all Liabilities of Buyer and the Buyer Subsidiaries with
respect to federal income Taxes have been finally
determined except for fiscal years 1988 through 1993,
the only years not closed by the expiration of the
statute of limitations; (vii) no deficiency for any Tax
or claim for additional Taxes by any Taxing Authority
has been proposed, asserted or assessed in writing
against the Buyer or any Buyer Subsidiary (or any member
of any affiliated or combined group of which the Buyer
or any Buyer Subsidiary is or has been a member); (viii)
neither Buyer nor any Buyer Subsidiary (or any member of
any affiliated or combined group of which Buyer or any
Buyer Subsidiary is or has been a member) has been
granted any extension or waiver of the limitation period
applicable to any Buyer Returns or otherwise disclosed
in writing to Triumph or which could have a material
adverse effect on the Condition of Buyer; (ix) neither
Buyer nor any Buyer Subsidiary has filed any consent or
election under the Code, other than such consents and
elections, if any, reflected in the Buyer Returns or
otherwise disclosed in writing to Sellers with specific
reference to this Section 4.19(a)(ix) or which could
have a material adverse effect on the condition of
Buyer; (x) neither Buyer nor any Buyer Subsidiary has entered
into or will enter into any agreement or consent under
Section 341(f) of the Code; (xi) neither Buyer nor any
Buyer Subsidiary owns any interest in real property in
the State of New York or in any other jurisdiction which
would result, as a result of the consummation of the
Contemplated Transactions, in the imposition of the New
York State Buyer Real Property Transfer Gains Tax for
real property located in New York or a similar tax for
real property located in any other jurisdiction; (xii)
there are no Liens for Taxes upon the Assets of the
Buyer or any Buyer Subsidiary other than Taxes not yet
due and payable; (xiii) neither Buyer nor any Buyer
Subsidiary will be required, as a result of a change in
method of accounting for a Pre-Closing Tax Period, to
include any adjustment under Section 481(c) of the Code
in taxable income for any Tax period (or portion
thereof) ending on the Closing Date; (xiv) neither Buyer
nor any Buyer Subsidiary has been a member of an
affiliated group other than one of which Buyer was the
common parent, or filed or been included in a combined,
consolidated or unitary Buyer Return together other than
one filed by Buyer; (xv) neither Buyer nor any Buyer
Subsidiary is currently under any contractual obligation
to indemnify any other person with respect to Taxes;
(xvi) Buyer is not and has not been a United States real
property holding corporation as defined in Section
897(c)(2) of the Code during the applicable period
specified in Section 897(c)(1)(A)(ii) thereof; and
(xvii) since its organization, Buyer has been a
possessions corporation that qualified for the Puerto
Rico and possessions tax credit and since such date has
been exempt from Puerto Rican income Taxes.
(a) As used herein, "Pre-Closing Tax
Period" means any tax period (or portion thereof) ending
on or before the Closing Date.
(b) True and correct copies of the Buyer
Returns for the years 1991, 1992 and 1993 have been
delivered to Sellers.
(c) Neither Buyer nor any Buyer
Subsidiary is party to any tax-sharing or tax allocation
agreement pursuant to which it is obligated to pay any
amount to anyone else.
(d) Except with respect to sales taxes
collected at the "outlet" stores of Buyer Subsidiaries,
neither Buyer nor any Buyer Subsidiary holds or has held
a permit, registration, certificate or like instrument
as a "dealer" or other collecting agent from a state
Taxing Authority under which it collects sales tax from
its business operations and remits such tax to such
Taxing Authority.
Employee Benefits Plans. (a) Schedule 4.20
contains a true and complete list of (i) all of the
Plans of the Buyer, any of the Buyer Subsidiaries, and
of any other companies or entities which constitute a
member of the Buyer ERISA Group, which are presently in
effect or, in the case of Pension Plans, have been in
effect at any time prior to the date hereof and for
which there is any liability; (ii) any other pension,
profit sharing, retirement, deferred compensation, stock
purchase, stock option, incentive, bonus, sabbatical
leave, vacation, all employment or severance Contracts
(including, without limitation, arrangements providing
for benefits in the event of a change of ownership in
whole or in part of the Buyer), disability,
hospitalization, health and medical insurance plans,
relocation, child care, educational assistance or other
employee benefit plan or program which
any member of the Buyer ERISA Group maintains or to
which any member of the Buyer ERISA Group has any
present or future obligation to contribute; and (iii)
separately identifies all Plans providing retiree
benefits. (The Plans or programs described in clauses
(i), (ii) and (iii) including all nonqualified plans are
herein collectively referred to as the "Buyer ERISA
Group Plans".) Except as set forth in Schedule 4.20,
the Buyer has delivered or made available to
Sellers true and complete copies of all documents
(including plan documents and related trust agreements)
as they may have been amended to the date of delivery or
availability, embodying or relating to clauses (i), (ii)
and (iii) hereinabove and a written description of each
non-written plan. Since such date of delivery or
availability, the Buyer ERISA Group Plans have not been
amended to materially change the terms thereof. The
Buyer has also delivered to Sellers true and complete
copies of annual reports (Form 5500) for the last three
(3) years, summary annual reports, summary plan
descriptions and a summary of material modifications
with respect to each Buyer ERISA Group Plan, as
applicable.
(a) Except as set forth in Schedule 4.20,
the Buyer ERISA Group maintains no tax qualified Pension
Plans nor has the Buyer ERISA Group ever maintained any
other tax-qualified Pension Plan for the benefit of
employees.
(b) With respect to each 412 Plan,
there has been no failure to make any contribution or
pay any amount due as required by Section 412 of the
Code, Section 302 of ERISA or the terms of any such 412
Plan, and no request or receipt of any funding waiver
has been requested or received from the Internal Revenue
Service.
(c) Except as set forth in Schedule
4.20, no trust has been established in connection with
any 412 Plan pursuant to Section 4049 of ERISA (as in
effect on December 17, 1987) and no liabilities that
would have a material adverse effect on the Condition of
the Buyer have been asserted against the Buyer or any
Buyer Subsidiary or any member of the Buyer ERISA Group
in connection with any such 412 Plan by the PBGC or by a
trustee appointed pursuant to Section 4042(b) or (c) of
ERISA, and no Lien has been attached and neither the
PBGC nor the Internal Revenue Service has threatened to
attach a Lien on any Assets of or any member of the
Buyer ERISA Group as a result of any failure to comply
with the Code or the Treasury regulations thereunder or
ERISA.
(d) Except as set forth in Schedule
4.20, the IRS has issued favorable determination letters
to the effect that each qualified Buyer ERISA Group Plan
as amended for the Tax Reform Act of 1986 and subsequent
legislation qualifies under Section 401(a) of the Code
and that the related trusts are exempt from taxation
under Section 501(a) of the Code and such determination
letters remain in effect and have not been revoked. To
the knowledge of Buyer, nothing has occurred or is
expected to occur that would adversely affect the
qualified status of any Buyer ERISA Group Plans or any
related trusts subsequent to the issuance of such
determination letters.
(e) Except as set forth in Schedule
4.20, all Plans maintained by the Buyer or any member of
the Buyer ERISA Group have been and continue to be in
compliance in all material respects (i) in operation
with the requirements prescribed by any and all Laws and
Orders applicable to the Buyer ERISA Group Plans
including but not limited to ERISA and the Code and with any other
contractual obligations and, except as set forth in
Schedule 4.20, all reports and disclosures including
Form 5500s relating to the Buyer ERISA Group Plans required
to be filed with or furnished to Governmental Bodies,
participants or beneficiaries prior to the Closing Date
have been or will be filed or furnished in a timely
manner and in accordance with applicable law; and (ii)
in form with those requirements of the Code and the
regulations thereunder and ERISA which must be met on
the date hereof.
(f) To the knowledge of Buyer, no member
of the Buyer ERISA Group nor any other "disqualified
person" or "party in interest" (as defined in Section
4975 of the Code and Section 3 of ERISA, respectively)
has engaged in any "prohibited transaction," as such
term is defined in Section 4975 of the Code or Section
406 of ERISA, which could subject any of the Buyer ERISA
Group Plans (or their related trusts), any officer,
director or employee of any entity within the ERISA
Group or any trustee, administrator or any other
fiduciary of any of the Buyer ERISA Group Plans to a tax
or penalty imposed under Section 4975 of the Code or
Section 502(i) of ERISA and which would have a material
adverse effect on the Condition of the Buyer.
(g) Except as set forth in Schedule
4.20, there are no Claims (other than routine claims for
benefits in the ordinary course) pending or, to the
knowledge of Buyer, threatened against any of the Buyer
ERISA Group Plans or the Assets of any of the Buyer
ERISA Group Plans or against any fiduciary of any of the
Buyer ERISA Group Plans for which the Buyer or the Buyer
Subsidiaries may be directly or indirectly liable,
through indemnification obligations or otherwise.
(h) No member of the Buyer ERISA Group
has provided or is required to provide, security to any
single-employer plan pursuant to Section 401(a) of the Code.
(i) The consummation of the
Contemplated Transactions will not accelerate any
liability under any of the Buyer ERISA Group Plans
because of an acceleration of any rights or benefits to
which employees may be entitled thereunder.
(j) With respect to any Buyer ERISA
Group Plan that is a Welfare Plan, (i) each such Welfare
Plan, the contributions to which are claimed as a
deduction under any provision of the Code, is in
compliance in all material respects with all applicable
requirements pertaining to such deduction, (ii) with
respect to any welfare benefit fund within the meaning
of Section 419 of the Code that comprises part of a
Welfare Plan, there is no disqualified benefit within
the meaning of Section 4976(b) of the Code that would
subject the Buyer or any of the Buyer Subsidiaries to a
tax under Section 4976(a) of the Code which would have a
material adverse effect on the Condition of the
Business, (iii) any Welfare Plan which is a group health
plan within the meaning of Section 5000(b) of the Code
satisfies in all material respects all of the
requirements of Section 4980(B) of the Code, and (iv)
all employer contributions due have been fully and
timely paid or accrued on the books of the Buyer or the
Buyer Subsidiaries.
(k) Schedule 4.20 sets forth the
present value of the liability of each Buyer ERISA Group
Plan that is a Welfare Plan and that provides benefits or coverage
extending beyond a participant's termination of
employment with the Buyer, excluding the liability for
those benefits required by Section 4980B of the Code or
those which are provided at the sole expense of the
participant or beneficiary of the participant.
(l) Except as set forth on Schedule 4.20,
neither the Buyer nor any member of the Buyer ERISA Group has
incurred or reasonably expects to incur (i) any
Withdrawal Liabilities (and no event has occurred which,
with the giving of notice under Section 4219 of ERISA,
would result in Withdrawal Liability), or (ii) any
Liabilities under Title IV of ERISA with respect to any
412 Plan. Schedule 4.20 also identifies (A) each
Multiemployer Plan to which the Buyer or a Buyer ERISA
Group Member currently makes, is obligated to make, or
has made or been obligated to make contributions, (B)
provides a schedule of the contributions made to each
such Multiemployer Plan over the past five years; (C)
provides a schedule of any withdrawal liability payments
which a Buyer ERISA Group is obligated to make or has
made in the last 10 years to any Multiemployer Plan and
(D) the amount of withdrawal liability that would be due
assuming complete withdrawal from all Multiemployer
Plans to which Buyer or any member of the Buyer ERISA
Group contribute. With the exception of the
representation contained in this Section 4.20(m), any
representation contained herein with regard to
Multiemployer Plans shall be limited to matters of which
the Company has knowledge.
(m) Except as set forth in Schedule
4.20, within the last five years, neither the Buyer nor
any member of the Buyer ERISA Group has transferred any
Assets or Liabilities of a 412 Plan subject to Title IV
of ERISA which had, at the date of such transfer,
Unfunded Pension Liabilities or has engaged in a
transaction which may reasonably be subject to Section
4212(c) of ERISA.
Neither the Buyer nor any member of the
Buyer ERISA Group sponsors or maintains or has
obligations direct, contingent or otherwise, with
respect to any benefit plan that is subject to the laws
of any country other than the United States.
(o) No Buyer ERISA Group Plan holds
securities of the Buyer or any of the Buyer's
Subsidiaries.
(p) There has been no Reportable Event
with respect to any 412 Plan within the last five years.
(q) With respect to any supplemental
employee retirement plans, excess benefit plans (as
defined in Section 3(36) of ERISA), severance
arrangements with individual employees, whether written
or not, or other nonqualified plans or arrangements,
Schedule 4.20 identifies the individuals or class of
individuals covered by each such plan or arrangement.
(r) Except as set forth on Schedule
4.20, as of December 31, 1994, no 412 Plan sponsored by
Buyer or any member of the Buyer ERISA Group has any
amount of Unfunded Pension Liability.
Officers, Directors and Key Employees. Buyer has
provided to Sellers a schedule setting forth (a) the
name, total compensation (as reflected on the applicable
forms W 2), date of hire and salary history for the two
years ended December 31, 1994 of each existing director,
executive officer or management employee of Buyer or the
Buyer Subsidiaries earning total compensation for the
year ended December 31, 1994 (as reflected on the
applicable forms W-2) in excess of $75,000, and (b) any
payments or commitments to pay any severance or
termination pay to any such person. Except as set forth
on such schedule, the employment of all such persons is
terminable at will.
Employment-Related Matters. Except as set forth
in Schedule 4.22, (a) Buyer and the Buyer
Subsidiaries are not a party to any Contract with any
labor organization or other representative of their employees;
(b) there is no unfair labor practice charge or complaint pending or, to
the knowledge of Buyer, threatened against Buyer or any
of the Buyer Subsidiaries; (c) there is no labor strike,
slowdown, work stoppage or other material labor
controversy in effect or, to the knowledge of Buyer,
threatened against or otherwise affecting Buyer or any
of the Buyer Subsidiaries; (d) Buyer and the Buyer
Subsidiaries have not experienced any labor strike,
slowdown, work stoppage or similar material labor
controversy within the past three years; (e) no material
Claim before any Governmental Body brought by or on
behalf of any employee, prospective employee, former
employee, retiree, labor organization or other
representative of Buyer's employees or any of the Buyer
Subsidiaries' employees, is pending or, to the knowledge
of Buyer, threatened against Buyer or any of the Buyer
Subsidiaries; (f) to the knowledge of Buyer, neither
Buyer nor any of its Subsidiaries is a party to, or
otherwise bound by, any material Order relating to its
employees or employment practices relating to the
employees other than those affecting the industry
generally; (g) Buyer and the Buyer Subsidiaries are in
compliance with all applicable Laws, policies, procedures, agreements
and Contracts, relating to employment, employment practices, wages,
hours, and terms and conditions of employment except
where the failure to comply would not, individually, or
in the aggregate, have a material adverse effect on the
Condition of Buyer; (h) except with respect to ongoing
disputes of a routine nature, involving immaterial
amounts Buyer and the Buyer Subsidiaries have paid in
full to all of their employees all wages, salaries,
commissions, bonuses, benefits and other compensation
due and payable to such employees on or prior to the
date hereof and (i) Buyer and the Buyer Subsidiaries are
in compliance with their obligations with respect to
their employees pursuant to the WARN, and all other
notification and bargaining obligations arising under
any collective bargaining agreement, statute or
otherwise.
Potential Conflicts of Interest. Except as set
forth in Schedule 4.23, no officer, director or
Affiliate of Buyer or any of the Buyer Subsidiaries, no
spouse of any such officer, director or Affiliate, nor,
to the knowledge of any Buyer, no entity controlled by
one or more of the foregoing:
(a) owns, directly or indirectly, any
interest in (excepting less than 1% stock holdings for
investment purposes in securities of publicly held and
traded companies), or is an officer, director, employee
or consultant of, any person that carries on business in
competition with Buyer or any Buyer Subsidiary;
(b) owns, directly or indirectly, in
whole or in part, any material Asset that Buyer or any
of the Buyer Subsidiaries uses in the conduct of its
business; or
(c) has any material Claim whatsoever
against, or owes any amount to, Buyer or any of the
Buyer Subsidiaries, except for claims in the ordinary
course of business such as for accrued vacation pay and
accrued benefits under employee benefit plans.
Insurance. The insurance policies, fidelity and
surety bonds and fiduciary liability policies covering
the Assets, Business, operations, employees, officers
and directors of Buyer and the Buyer Subsidiaries are of
the type and in amounts customarily carried by persons
conducting businesses similar to those of Buyer and the
Buyer Subsidiaries. There is no Claim by Buyer or any
of the Buyer Subsidiaries pending under any of such
policies or bonds as to which coverage has been
questioned, denied or disputed by the underwriters of
such policies or bonds, or requirement by any insurer to
perform work which has not been satisfied. All premiums
payable under all such policies and bonds have been paid
and Buyer and the Buyer Subsidiaries are otherwise in
compliance in all material respects with the terms and
conditions of all such policies and bonds. Such
policies of insurance and bonds (or other policies and
bonds providing substantially similar insurance
coverage) other than those relating to director and
officer liability insurance have been in effect since
January 1, 1994 and remain in full force and effect.
The insurance in effect with respect to the Buyer Real
Property is in an amount of the full replacement value
of the buildings and improvements. Buyer does not know
of any threatened termination of, premium increase with
respect to, or uncompleted requirements under any of such policies or
bonds.
Suppliers, Customers and Contractors. Schedule
4.25A lists, by dollar volume paid for the 12 months
ended December 31, 1994, the 15 largest raw material
suppliers and the 25 largest customers of Buyer or Buyer
Subsidiary. Schedule 4.25B lists the names and
addresses of those Contractors retained by Buyer or any of the Buyer
Subsidiaries involving payments, for the 12 months ended
December 31, 1994, in excess of $50,000. The
relationships of Buyer and the Buyer Subsidiaries with
such suppliers, customers and Contractors are reasonable
commercial working relationships and: (i) no supplier
or Contractor has refused to provide credit, or has
suspended the provision of credit, to Buyer or any of
the Buyer Subsidiaries as a result of the failure or
delay in payment of amounts due to such suppliers or
Contractors; (ii) all amounts owing to such suppliers
and Contractors, if not in dispute, have been paid in
accordance with their respective terms; (iii) no person
within the last twelve months has threatened in writing
to cancel, or otherwise terminate, the relationship of
such person with Buyer or any of the Buyer Subsidiaries,
and (iv) no person during the last twelve months has decreased
materially or, to the knowledge of Buyer, threatened in writing to
decrease or limit materially, its relationship with
Buyer or any of the Buyer Subsidiaries or, to the
knowledge of Buyer intends to decrease or limit
materially its services or supplies to Buyer or any of
the Buyer Subsidiaries or its usage or purchase of the
services or products of Buyer or any of the Buyer
Subsidiaries.
Compliance with Laws. Neither Buyer nor any of
the Buyer Subsidiaries is in violation of any applicable
Order or Law of any Governmental Bodies affecting its
Assets, affairs or business, where the effect of any
such violation, individually or in the aggregate, would
have a materially adverse effect on the Condition of
Buyer. Neither Buyer nor any of the Buyer Subsidiaries
has made any illegal payment to officers or employees of
any Governmental Body, or made any illegal payment to
customers for the sharing of fees or to customers or
suppliers for rebating of charges, or engaged in any
other illegal reciprocal practice, or made any illegal
payment or given any other illegal consideration to
purchasing agents or other representatives of customers
in respect of sales made or to be made by Buyer or any
of the Buyer Subsidiaries.
Permits. Buyer and the Buyer Subsidiaries have
obtained all Permits of, and have made all required
registrations and filings with, any Governmental Body
that are necessary to the conduct of their respective
businesses, except for such Permits which, if not in the
possession of Buyer or the Buyer Subsidiaries, would not
have a materially adverse effect on the Condition of
Buyer. All Permits material to the Condition of Buyer
are in full force and effect; no material violations are
or have been recorded in respect of any such Permit; and
no proceeding is pending or threatened to revoke or
limit any such Permit.
Environmental Matters. (a) With respect to each
of Buyer and each of the Buyer Subsidiaries, there has
been no manufacture, refining, storage, transport, disposal or
treatment of Hazardous Substances by such party (or, to
the knowledge of such party, its predecessor in
interest), or any Release at, on or under, any Buyer
Real Property by the Buyer or any Buyer Subsidiary or,
to Buyer's knowledge, by any other person, in violation
of any Environmental Law or which would require remedial
action under any Environmental Law; to the knowledge of
Buyer, except as set forth in Schedule 4.28, none of
the soil, ground water or surface
water of such Buyer Real Property is contaminated by any
Release.
(a) During the past five years neither
Buyer nor any of the Buyer Subsidiaries has received any
written (i) notice of any violation with respect to any
Environmental Law; (ii) notice of any actual, pending or
threatened Regulatory Action involving such party, or
any present or former owner, lessee or operator of the
Buyer Real Property; or (iii) notice of any Third Party
Claim.
(b) To the knowledge of Buyer, except as
set forth in Schedule 4.28, (i) there are no
incinerators, septic tanks, underground tanks or
cesspools located on, at or under the Buyer Real
Property, (ii) all sewage from the Buyer Real Property
is discharged into a public sanitary sewer system, and
(iii) there has been no Release by Buyer or any of the
Buyer Subsidiaries into the atmosphere, adjoining or
adjacent to any body of water, or on to adjacent
property.
Each of Buyer and the Buyer Subsidiaries, as
applicable, has obtained, and is in compliance with, all
material Environmental Permits except where the failure
to obtain or be in compliance with any such
Environmental Permits would not, singly or in the
aggregate, have a material adverse effect on the
Condition of Buyer.
(d) Except as set forth on Schedule
4.28 or as would not, singly or in the aggregate, have a
material adverse effect on the Condition of Buyer, all
such Environmental Permits are in full force and effect,
and Buyer and each Subsidiary has made all appropriate
filings for issuance or renewal of such Environmental
Permits.
(e) Except as set forth on Schedule
4.28 or as would not, singly or in the aggregate, have a
material adverse effect on the Condition of Buyer, there
are no facts, events, conditions, circumstances,
activities, practices, incidents, actions, omissions or
plans known to Buyer or the Buyer Subsidiaries that: (i)
may give rise to any Regulatory Action including Buyer
or any of the Buyer Subsidiaries or the Buyer Real
Property, or (ii) is reasonably likely to form the basis
of any Third Party Claim involving Buyer, any of the
Buyer Subsidiaries or the Buyer Real Property. Except
as set forth on Schedule 4.28, there are no Regulatory
Actions or Third Party Claims relating to, arising from
or otherwise affecting the Buyer Real Property.
Finders; Fees. Except for Corestates Investment
Banking whose fees will be paid by Buyer, there is no
investment banker, broker, finder or other intermediary
which has been retained by or is authorized to act on
behalf of Buyer or any Buyer Subsidiary who might be
entitled to any fee or commission from Buyer or any
Buyer Subsidiary upon consummation of the Contemplated
Transactions.
Disclosure. Neither this Agreement, the
Schedules hereto, nor any audited or unaudited financial
statements, documents or certificates furnished or to be
furnished to Sellers by or on behalf of Buyer pursuant
to this Agreement contains any untrue statement of a
material fact or omits to state a material fact
necessary in order to make the statements contained
herein or therein not misleading. There are no facts
which would materially adversely affect the Condition of
Buyer which have not been set forth herein, or in any
Schedule hereto, or in any certificate or statement
furnished or to be furnished to Sellers by Buyer.
COVENANTS AND AGREEMENTS
Conduct of Business of Company. (a) From
the date hereof through the Closing Date, except as set
forth in Schedule 5.1, Triumph agrees to use reasonable
efforts to cause the Company and each Company
Subsidiary:
(i) To conduct their operations
according to their ordinary and usual course of business
consistent with past practice, to preserve intact their
present business organization, to keep available the
services of their present officers and employees, to use
reasonable efforts to preserve and maintain their Assets
and to use reasonable efforts to preserve their
relationships with customers, suppliers, Contractors and
others having business dealings with them.
(ii) To maintain in the ordinary
course of business consistent with past practice and in
accordance with all Contracts, the Real Property, all
their material structures, equipment and other Tangible
Property in their present repair, order and condition,
except for depletion, depreciation and ordinary wear and
tear.
(iii) To keep in full force and
effect insurance comparable in amount and scope of coverage to
insurance now carried by them.
(iv) To perform all of their
obligations under the Contracts disclosed on any
Schedule hereto and not enter into any material
amendments or modifications thereof other than in the
ordinary course of business or as required by this
Agreement.
(v) To maintain their books of
account and records in the usual, regular and ordinary
manner.
(vi) To comply in all material
respects with all Laws applicable to them and pay all
Taxes, which become due and payable other than Taxes
contested in good faith and for which adequate reserves
have been established.
(vii) Not to incur any material
Liability nor to enter into any Contract with a value in
excess of $250,000, except in the ordinary course of
business.
(viii) Not to cause or permit any
Liens to be created or any conditions to exist which may
become a Lien.
(ix) Not to undertake (nor permit
to be undertaken) any of the actions specified in Section
3.13 which are within the control of a Seller.
(x) With respect to any employees
of the Company or any Company Subsidiary not to: (A) make,
institute, agree to or change any bonus, profit sharing,
pension, retirement, severance, termination, "parachute"
or other similar arrangement or plan for employees; and
(B) otherwise than in accordance with past practices and
in similar amounts: (1) increase the compensation
payable or to become payable to any employee, and (2)
accrue any bonus, percentage of compensation or other
like benefit to or for the credit of any employee.
(xi) Not to authorize or make any
capital expenditures in excess of $250,000 or not listed
on Schedule 5.1.
(xii) Not to effectuate a "plant
closing" or "mass layoff," as those terms are defined in
WARN, affecting in whole or in part any of its
facilities or operating units or any of its employees.
(b) From the date hereof through the
Closing Date, each Seller agrees to use reasonable
efforts to cause the affairs of the Company and each
Company Subsidiary to be conducted in such a manner so
that the representations and warranties of Sellers
contained herein shall continue to be true and correct
on and as of the Closing Date as if made on and as of
the Closing Date.
Conduct of Business of Buyer. (a) Except as set
forth in Schedule 5.2, from the date hereof through the
Closing Date, Buyer agrees, and will cause each Buyer
Subsidiary, to comply with all the terms and condition
set forth in Section 7 of the Stockholders' Agreement.
In addition, from the date hereof through the Closing
Date, Buyer agrees, and will cause each Buyer
Subsidiary:
(i) To conduct their operations
according to their ordinary and usual course of business
consistent with past practice, to use reasonable efforts
to preserve intact their present business organization,
to keep available the services of their present officers
and employees, to use reasonable efforts to preserve and
maintain their Assets and to use reasonable efforts to
preserve their relationships with customers, suppliers,
Contractors and others having business dealings with
them.
(ii) To maintain in the ordinary
course of business consistent with past practice and in
accordance with all Contracts, the Buyer Real Property,
all their material structures, equipment and other
Tangible Property in their present repair, order and
condition, except for depletion, depreciation and
ordinary wear and tear.
(iii) To keep in full force and
effect insurance comparable in amount and scope of coverage to
insurance now carried by them.
(iv) To perform all of their
obligations under the Contracts disclosed on any
Schedule hereto and not enter into any material
amendments or modifications thereof other than in the
ordinary course of business or as required by this
Agreement.
(v) To maintain their books of
account and records in the usual, regular and ordinary
manner.
(vi) To comply in all material
respects with all Laws applicable to them and pay all
Taxes, which become due and payable other than Taxes
contested in good faith and for which adequate reserves
have been established.
(vii) Not to incur any material
Liability nor to enter into any Contract with a value in
excess of $250,000, except in the ordinary course of
business.
(viii) Not to cause or permit any
Liens to be created or any conditions to exist which may
become a Lien, except in the ordinary course of business.
(ix) Not to undertake (nor permit
to be undertaken) any of the actions specified in
Section 4.13 which are within the control of Buyer.
(x) With respect to any employees
of Buyer or any Buyer Subsidiary not to: (A) make,
institute, agree to or change any bonus, profit sharing,
pension, retirement, severance, termination, "parachute"
or other similar arrangement or plan for employees,
except in accordance with past practices; and (B)
otherwise than in accordance with past practices and in
similar amounts: (1) increase the compensation payable
or to become payable to any employee, and (2) accrue any
bonus, percentage of compensation or other like benefit
to or for the credit of any employee.
(xi) Not to authorize or make any
capital expenditures in excess of $250,000 or not listed
on Schedule 5.2.
Not to effectuate a "plant closing" or
"mass layoff," as those terms are defined in WARN,
affecting in whole or in part any of its facilities or
operating units or any of its employees.
(b) From the date hereof through the
Closing Date, except in the ordinary course of business
and for changes disclosed in any Schedule or otherwise
contemplated hereby, Buyer agrees to use reasonable
efforts to conduct the affairs of Buyer (and to cause
the affairs of each Buyer Subsidiary to be conducted) in
such a manner so that the representations and warranties
of Buyer contained herein shall continue to be true and
correct on and as of the Closing Date as if made on and
as of the Closing Date.
Corporate Examinations and Investigations. (a)
Prior to the Closing Date, Sellers agree that Buyer
shall be entitled, through the directors, officers,
employees, attorneys, accountants, representatives,
consultants and other agents (collectively,
"Representatives") of Buyer to make such investigation
of the Assets, Businesses and operations of the Company
and the Company Subsidiaries, and such examination of
the books, records and financial condition of the
Company and the Company Subsidiaries, as Buyer
reasonably deems necessary. Any such investigation and
examination shall be conducted at reasonable times,
under reasonable circumstances and upon reasonable
notice, and the Sellers shall, and shall cause the
Company and the Company Subsidiaries to, cooperate fully
therein. No investigation by Buyer shall diminish or
obviate any of the representations, warranties,
covenants or agreements of a Seller contained in this
Agreement. In order that Buyer may have full
opportunity to make such physical, business, accounting
and legal review, examination or investigation as it may
reasonably deem necessary of the affairs of the Company
and the Company Subsidiaries, Sellers shall make
available and shall cause the Company and the Company
Subsidiaries to make available to the Representatives of
Buyer during such period, without however causing any
unreasonable interruption in the operations of the
Company, all such information and copies
of such documents and records concerning the affairs of
the Company and the Company Subsidiaries as such
Representatives may reasonably request, shall permit the
Representatives of Buyer access to the Assets of Company
and the Company Subsidiaries and all parts thereof and
to their respective customers, suppliers, Contractors
and others, and shall cause the Company and the Company
Subsidiaries' Representatives to cooperate fully in
connection with such review and examination.
(b) Prior to the Closing Date, Buyers agree that
Sellers shall be entitled, through their Representatives
to make such investigation of the assets, Businesses and
operations of Buyer and the Buyer Subsidiaries, and such
examination of the books, records and financial
condition of Buyer and the Buyer Subsidiaries, as
Sellers reasonably deem necessary. Any such
investigation and examination shall be conducted at
reasonable times, under reasonable circumstances and
upon reasonable notice, and Buyer shall, and shall cause
the Buyer Subsidiaries to, cooperate fully therein. No
investigation by Sellers shall diminish or obviate any
of the representations, warranties, covenants or
agreements of Buyer contained in this Agreement. In
order that Sellers may have full opportunity to make
such physical, business, accounting and legal review,
examination or investigation as they may reasonably deem
necessary of the affairs of Buyer and the Buyer
Subsidiaries, Buyer shall make available and shall cause
the Buyer Subsidiaries to make available to the
Representatives of Sellers during such period, without
however causing any unreasonable interruption in the
operations of Buyer or the Buyer Subsidiaries, all such
information and copies of such documents and records
concerning the affairs of Buyer and the Buyer
Subsidiaries as such Representatives may reasonably
request, shall permit the Representatives of Sellers
access to the assets of Buyer and the Buyer Subsidiaries
and all parts thereof and to their respective customers,
suppliers, Contractors and others, and shall cause
Buyer's and the Buyer Subsidiaries' Representatives to
cooperate fully in connection with such review and
examination.
Additional Financial Statements. (a) Prior to
the Closing Date, as soon as available and in any event
within thirty (30) calendar days after the end of each
monthly accounting period of the Company, Sellers shall
furnish Buyer, with a management report with respect to
gross sales, receivables, estimated inventories, capital
expenditures and related information if and only to the
extent such management report is prepared for the use of
the management of the Company and the Company
Subsidiaries, but in no event, in any less detail than
is consistent with past practice.
(a) Prior to the Closing Date, as soon
as available and in any event within thirty (30)
calendar days after the end of each monthly accounting
period of Buyer, Buyer shall furnish Sellers with a
management report with respect to gross sales,
receivables, estimated inventories, capital expenditures
and related information if and only to the extent such
management report is prepared for the use of the
management of Buyer and Buyer Subsidiaries, but in no
event, in any less detail than is consistent with past
practice.
Filings and Authorizations. Sellers and Buyer,
before or promptly after the execution and delivery of
this Agreement, shall file or supply, or cause to be
filed or supplied, all notifications, reports and other
information required to be filed or supplied pursuant to
the HSR Act in connection with the Contemplated
Transactions and which are required by Law to effectuate
the consummation of the Contemplated Transactions.
Sellers and Buyer shall cooperate with each other in
connection with such filing and furnish each other with
copies of such filings and any correspondence received
from any Governmental Body in connection therewith.
Sellers and Buyer, as promptly as practicable, shall
make, or cause to be made, all such other filings and
submissions under such Laws as are applicable to them or
to their respective Subsidiaries and Affiliates, as may
be required for them to consummate the Contemplated
Transactions in accordance with the terms of this
Agreement. All such filings shall comply in form and
content in all material respects with applicable Law.
Efforts to Consummate. (a) Subject to the terms
and conditions herein provided, each party hereto,
without payment or further consideration, shall use its
reasonable, good faith efforts to take or cause to be
taken all action and to do or cause to be done all
things necessary, proper or advisable under applicable
Laws, Permits and Orders to consummate and make
effective, as soon as reasonably practicable, the
Contemplated Transactions, including, but not limited
to, the obtaining of all Seller Required Consents and
Buyer Required Consents and Permits of any third party,
whether private or governmental, required in connection
with such party's performance of such transactions and
each party hereto shall cooperate with the other in all
of the foregoing.
(a) Without limiting the generality of
the foregoing, prior to the Closing:
(i) Bill Blass, Ltd., pursuant to
the License Agreement dated as of October 1, 1989, by
and between Bill Blass, Ltd. and Wundies Enterprises,
Inc., pursuant to the License Agreement, dated June 15,
1991 between Wundies Enterprises, Inc. and the Company,
shall have consented to (A) the continued distribution
by the Company pursuant to such Agreements of Company
Products under the name of "Bill Blass" as part of a
combined enterprise that also distributes products under
the name of "Oscar de La Renta"; (B) the change of
control of the Company contemplated by this Agreement
and (C) a Company Merger, if one is effected.
(ii) Sellers shall cause the
Company to have complied with the provisions of Section
14(f) of the 1934 Act to permit the Board of Directors
of the Company to be reconstituted as of the Closing
Date with nominees designated by Buyer.
(iii) Sellers shall use reasonable
efforts to obtain the Seller Required Consents in form
that will permit, without further consent, a Company
Merger, if one is effected; provided that the failure to
obtain any such consent in such form will not constitute
a default hereunder.
(iv) The Contracts identified by
means of an asterisk on Schedule 3.15 shall have been
terminated without liability on the part of the Company,
any Company Subsidiary, Buyer or any Buyer Subsidiary.
(b) Whenever this Agreement requires
the Company or the Company Subsidiaries to take any
action (or to use any effort to take such action) or
refrain from taking any action, such requirement shall
be deemed to include an undertaking on the part of
Triumph to cause the Company or the Company Subsidiaries
concerned to take (or use the required effort to take)
or refrain from taking such action.
Negotiations With Others. (a) From and after
the date hereof unless and until this Agreement shall
have terminated in accordance with its terms, Triumph
and each of Spiesshofer and Magrone acting solely in the
capacity as stockholders of the Company, agree that none
of them will directly or indirectly to (i) solicit,
engage in discussions or engage in negotiations with any
person (other than Buyer or any of its Affiliates) with
respect to an Acquisition Proposal; (ii) provide
information to any person (other than Buyer or any of
its Affiliates) in connection with an Acquisition
Proposal; or (iii) enter into any transaction with any
person (other than Buyer or any of its Affiliates) with
respect to an Acquisition Proposal. If any Seller, the
Company, any Company Subsidiary or Representative
receives any offer or proposal to enter into discussions
or negotiations relating to any of the above, Sellers
will immediately notify Buyer in writing as to the
identity of the offeror or the party making any such
proposal and the specific terms of such offer or
proposal.
(a) In addition, from and after the
date hereof unless and until this Agreement shall have
been terminated in accordance with its terms, Triumph
agrees that it will not, directly or indirectly, vote
its securities in the Company to authorize; (i) the sale
of all or substantially all of the assets of the Company
to any person other than Buyer or any of its Affiliates,
or (ii) a merger or other business combination with any
Person other than Buyer or any of its Affiliates.
(b) Neither Spiesshofer nor Magrone
shall be deemed to be in breach of the terms hereof by
reason of either or both of them taking or refusing to take any
action that, in either of his or their reasonable
judgment, would cause them, in their capacities as
directors of the Company, to breach their fiduciary
duties to the Company and its stockholders.
Notices of Certain Events. Prior to the Closing
Date, Sellers shall advise Buyer promptly after
learning, after the date thereof, of any management
employee of the Company or any of the Company
Subsidiaries whose base compensation in the Company's
1994 fiscal year exceeded $75,000, who intends to cancel
or otherwise terminate his or her relationship with the
Company or any of the Company Subsidiaries. Prior to
the Closing Date, Buyer shall advise Triumph promptly
after learning, after the date thereof, of any
management employee of Buyer or any Buyer Subsidiary
whose base compensation in its 1994 fiscal year exceeded
$75,000, who intends to cancel or otherwise terminate
his or her relationship with Buyer or any of the Buyer
Subsidiaries. In addition, prior to the Closing
Date, each of Sellers and Buyer shall promptly notify
the other of:
(a) any notice or other communication
from any person alleging that the consent of such person
is or may be required in connection with the
Contemplated Transactions;
(b) any notice or other communication
from any Governmental Body in connection with the
Contemplated Transactions; and
(c) any event, condition or
circumstance occurring from the date hereof through the
Closing Date that would constitute a violation or breach
of any representation or warranty, whether made as of
the date hereof or as of the Closing Date, or that would
constitute a violation or breach of any covenant of any
party contained in this Agreement.
Public Announcements. Prior to the Closing Date,
Sellers and Buyer will consult with each other before
issuing any press release or otherwise making any public
statement with respect to the Contemplated Transactions,
and will not issue any such press release or make any
such public statement without the prior approval of the
other party, except as may be required by applicable Law
in which event the other party shall have the right to
review and comment upon any such press release or public
statement prior to its issuance. The fact that a party
has the foregoing right to review or comment shall not
mean that such party's consent is needed prior to the
issuance of such press release or public statement.
Confidentiality. (a) Buyer, on the one hand,
and each Seller, on the other hand, each shall hold in
strict confidence, and shall use its best efforts to
cause all its Representatives to hold in strict
confidence, unless compelled to disclose by judicial or
administrative process, or by other requirements of Law,
all information concerning the Sellers, the Company and
the Company Subsidiaries (in the case of Buyer) and
Buyer and the Buyer Subsidiaries (in the case of the
Sellers) which is created or obtained prior to, on or
after the dates hereof in connection with the
Contemplated Transactions, and Buyer and Sellers each
shall not use or disclose to others, or permit the use of or
disclosure of, any such information created or obtained
except to the extent that such information can be shown
(i) to have been previously known by Buyer or any Seller
as the case may be and (ii) to have been made known to
Buyer or Seller, as the case may be, from a third-party
not in breach of any confidentiality requirement or
(iii) to have been made public through no fault of Buyer
or any Seller, as the case may be, or any of their
respective Representatives, and will not release or
disclose such information to any other person, except
its officers, directors, employees, Representatives and
lending institutions who need to know such information
in connection with this Agreement and who shall be
advised of the provisions of this Section 5.10 and shall
agree to be bound by the terms hereof.
(a) In the event that a party (the
"First Party") or its Representatives are requested or
required (by oral questions, interrogatories, requests
for information or documents subpoena, civil
investigative demand or similar process) to make a
disclosure in violation of the provisions of this
Section 5.10, it is agreed that the First Party will
provide the other (the "Second Party") with prompt
notice of such request(s) so that the Second Party may
seek an appropriate protective order and/or waive
compliance with the provisions of this Agreement. If in
the absence of a protective order or the receipt of a
waiver hereunder, the First Party or its Representatives
are nonetheless, in the opinion of the First Party's
counsel, compelled to make any such disclosure to any
Governmental Body or else stand liable for contempt or
suffer other censure or penalty, the First Party or its
Representative may make any such disclosure to such
Governmental Body without liability hereunder, provided,
however, that such disclosure may be made only after the
First Party has given the Second Party notice of such
requirement and the Second Party has had 48 hours (or
such lesser time as is reasonably available) to obtain a
protective order or restrictions on any such
requirement.
(c) If the Contemplated Transactions are not
consummated, such confidence shall be maintained except
(i) as required by Law or (b) to the extent such
information is made public through no fault of Buyer or
any Seller, as the case may be, or any of their
respective Representatives. If the Contemplated
Transactions are not consummated and if requested by any
Seller or Buyer, as the case may be, Buyer shall return
to Sellers' Agent all tangible evidence of such
information regarding Sellers, the Company and the
Company Subsidiaries and Sellers shall return to Buyer
all tangible evidence of such information regarding
Buyer and Buyer Subsidiaries.
Expenses. (a) Buyer will pay or reimburse the
Company or Sellers, as appropriate, for the following
fees and expenses incurred in connection with the
negotiation and consummation of the Contemplated
Transactions: (i) any and all sales, gains, transfer or
documentary Taxes and recording and filing fees
applicable to the transfers or deemed transfers under
applicable United States Law of any Asset located in the
United States and the Purchased Shares to Buyer; (ii)
the reasonable legal fees and expenses of counsel to
Sellers; (iii) the fees and expenses of Tucker Anthony
Incorporated under Contract numbered 33 referred to in
Schedule 3.15; (iv) up to $65,175 in respect of the fees
and expenses of Coopers & Lybrand L.L.P., in connection
with their due diligence investigation relating to the
Contemplated Transactions, and any balance of such fees
and expenses will be borne and paid by Triumph; and (v)
any other fees or expenses incurred by the Company or
the Sellers to any persons other than persons enumerated
in the foregoing subclauses of this Section 5.11(a)
provided that Buyer shall not be required to pay or
reimburse fees or expenses in accordance with the
provisions of this Section 5.11(a)(v) in an amount
exceeding $78,705.30 unless such fees or expenses shall
have been authorized by Buyer in writing.
(a) Except as otherwise specifically
provided herein, Buyer and Sellers shall bear their
respective expenses incurred in connection with the
preparation, execution and performance of this Agreement
and the Contemplated Transaction, including, without
limitation, all fees and expenses of their respective
Representatives.
Tax Matters. (a) From the date hereof through
the Closing Date, Sellers shall cause the Company and
the Company Subsidiaries to file in a timely manner all
required Returns to be filed on or before the Closing
Date, taking into account any extensions obtained from
the appropriate taxing authority, and pay Taxes of any
kind or nature that are due and payable thereon. From
the date hereof through the Closing Date, Buyer shall,
and shall cause the Buyer Subsidiaries to, file in a
timely manner all required Returns to be filed on or
before the Closing Date, taking into account any
extensions obtained from the appropriate taxing
authority, and pay Taxes or any kind or nature that are
due and payable thereon.
(a) Between the date hereof and the
Closing Date, without the prior written consent of Buyer
which consent shall not be unreasonably withheld or
delayed, neither the Company nor any of the Company
Subsidiaries shall make or change any election, change
an annual accounting period, adopt or change any
accounting method, relating to the Company or the
Company Subsidiaries or surrender any right to claim a
refund of Taxes. Between the date hereof and the
Closing Date, the Company or any Company Subsidiary
shall be permitted to file any amended Return, enter
into any closing agreement, settle any Tax Claim,
consent to any extension or waiver of the limitation
period applicable to any Tax Claim relating to the
Company or any Company Subsidiaries, take any action or
omit to take any action, even if any such election,
adoption, change, amendment, agreement, settlement,
surrender, consent or other action or omission would
have the effect of increasing the current or future Tax
liability of the Company, any Company Subsidiary, Buyer
or any Affiliate of Buyer provided that promptly after
taking any such action or omitting to take any such
action, Triumph promptly gives written notice thereof to
Buyer.
Restrictive Covenant. (a) Each of Triumph,
Spiesshofer and Magrone and, by its signature to this
Agreement, Triumph International Spiesshofer & Braun, a
Swiss Kollektivgesellschaft (partnership), agree as
follows:
(i) during the seven (7) year
period commencing on the Closing Date, he or it will
not, directly or indirectly, sell or distribute for resale in the
United States (the "Territory") through any person other
than Buyer or a Buyer Subsidiary any identical style of
foundation garment distributed on the Closing Date by
the Company or by Triumph through the Company unless the
Company, Buyer and the Buyer Subsidiaries have
discontinued the sale or distribution of such style, or
gross sales of such style for the then most recently
completed fiscal year shall have been less than $25,000,
in which event he or it shall have the right to
distribute such style free of any restrictions contained
in this Agreement;
(ii) during the period commencing
on the Closing Date and terminating on the date six (6)
months after the date that Triumph ceases for any reason
whatsoever (including, without limitation, by reason of
voluntary resignation of Triumph's designees or pursuant
to Section 1(b) of the Stockholders Agreement) to have
any designees on the Board of Directors of Buyer and
waives in writing all of its rights under Section 8 (g)
of the Stockholders Agreement, he or it will not
purchase a business which on the date of such purchase
is engaged in the foundation garment business in the
Territory; provided, however that if he or it shall
desire to engage in bona fide negotiations with respect
to the purchase of any such business prior to he or it
engaging in such negotiations, Triumph shall cause any
designees of Triumph then on the Board of Directors of
Buyer to resign from such Board and shall waive all of
its rights under Sections 8(g) and 1(b) of the
Stockholders Agreement (as well as its rights thereafter
to designate persons to serve on the Board of Directors
of Buyer but Triumph shall continue to be obligated to
vote as set forth in the Stockholders Agreement until
such obligation would otherwise terminate in accordance
with the Stockholders Agreement); provided further,
however, that (I) nothing contained in this clause (ii)
shall limit his or its right to effect a purchase of a
company or business that includes a foundation garment
business in the Territory which foundation garment
business does not constitute a significant portion of
the purchased company or business if the principal
purpose of effecting such purchase is to purchase other
businesses and (II) the passive ownership of not more
than 4% of the issued and outstanding shares of a class
of securities regularly traded on a national securities
exchange or quoted in an automated inter-dealer
quotation system shall not be prohibited by this clause
(ii); and (iii) during the two (2) year
period commencing on the Closing Date, he or it will
not, directly or indirectly, sell or distribute, or seek
to sell or distribute, to Wal-Mart, J.C. Penney, K-Mart,
Sears, Mervyns, Target Stores or Dillards any foundation
garments that will be sold by such retailers; it being
understood and agreed that nothing contained in this
clause (iii) shall, or shall be construed to, preclude
Triumph or its affiliates from selling or distributing
foundation garments to, or manufacturing foundation
garments for, Mast Industries, Inc. or Goddess which are
to be sold or distributed to such retailers so long as
Triumph or its affiliates have not (x) arranged with
such retailers to buy foundation garments from Mast
Industries, Inc. or Goddess in a manner intended to
circumvent this Section 5.13(a)(iii), or (y)
participated in any way, other than having acted as a
contractor or a subcontractor, in the sale or
distribution arrangements to such retailers.
(b) Notwithstanding anything to the contrary
contained herein, (I) Triumph, Spiesshofer and Triumph
International Spiesshofer & Braun shall be permitted,
directly or indirectly, to continue to sell or otherwise
provide products, including foundation garments, to Mast
Industries, Inc. and Goddess (and to their respective
successors and affiliates) regardless of to whom Mast
Industries, Inc. or Goddess distributes or sells such
products so long as Triumph or its affiliates have not
(x) arranged with such retailers to buy foundation
garments from Mast Industries, Inc. or Goddess in a
manner intended to circumvent Section 5.13(a)(iii), or
(y) participated in any way, other than having acted as
a contractor or a
subcontractor, in the sale or distribution arrangement
to such retailers, (II) except as otherwise expressly
prohibited by Sections 5.13 (a) (i) and (iii) and
subject to Buyer's rights, if any, pursuant to Section
5.14 hereof, Triumph, Spiesshofer and Triumph
International Spiesshofer & Braun shall not be
prohibited, directly or indirectly, from engaging in any
way in the manufacture, sale or distribution for resale
of foundation garments, whether branded or unbranded, to
retailers (or to distributors who sell to retailers),
and (III) Triumph, Spiesshofer and Triumph International
Spiesshofer & Braun shall not be prohibited, directly or
indirectly, from engaging in the manufacture, as a
contractor or subcontractor, of foundation garments for
a third party (other than to a third party which is
primarily a retailer, or affiliated with a party that is
primarily a retailer, except that they shall not be so
prohibited from acting as a contractor or subcontractor
to any such third party that is primarily a retailer, or
affiliated with a party that is primarily a retailer,
unless they are otherwise expressly prohibited from
selling or distributing to such party pursuant to
Section 5.13(a)(iii)) engaged in the sale or
distribution of foundation garments in the Territory.
(c) Each Seller acknowledges and agrees
that the restrictive covenants set forth in this Section
5.13 (collectively, the "Restrictive Covenants") are
reasonable and valid in geographical and temporal scope
and in all other respects. If any court determines that
any of the Restrictive Covenants, or any part thereof,
is invalid or unenforceable, the remainder of the
Restrictive Covenants shall not thereby be affected and
shall be given full force and effect, without regard to
the invalid or unenforceable parts.
(d) If any court determines that any of
the Restrictive Covenants, or any part thereof, is
invalid or unenforceable for any reason, such court
shall have the power to modify such Restrictive
Covenant, or any part thereof, and, in its modified
form, such Restrictive Covenant shall then be valid and
enforceable.
(e) In the event of a breach or
threatened breach by a Seller of any of the covenants
contained in this Section 5.13, Buyer shall be entitled
to a temporary restraining order, a preliminary
injunction and/or a permanent injunction restraining
such Seller from breaching or continuing to breach any
of said covenants.
Possible Future Ventures. Until the earlier to
occur of (i) the Second Sale Date (as such term is
defined in the Stockholders' Agreement) and (ii) five years from the
Closing Date, Triumph agrees that if it wishes to
appoint a distributor, agent or licensee in the United
States with respect to the foundation garments it
manufacturers or distributes under the Triumph
trademark, Triumph will so advise Buyer and give Buyer a
reasonable opportunity to conduct negotiations with
respect to Triumph's appointment of Buyer as such
distributor, agent or licensee; provided, however, that
nothing contained herein shall be construed as an
obligation of Triumph to so appoint Buyer and Buyer
shall have no rights against Triumph of any nature
whatsoever arising by reason of Triumph's decision, for
any reason, not to so appoint Buyer.
CONDITIONS TO CLOSING
Conditions to the Obligations of Sellers and
Buyer. The obligations of Buyer and Sellers to
consummate the Contemplated Transactions are subject to
the satisfaction of the following conditions:
HSR Act. Any applicable waiting period
under the HSR Act relating to the Contemplated
Transactions shall have expired.
(b) No Injunction. No provision of
any applicable Law and no Order shall prohibit the
consummation of the Contemplated Transactions.
(c) No Proceeding or Litigation. No
Claim instituted by any person (other than a Governmental
Body) including any Third Party Claim, shall have been
commenced or pending against a Seller, the Company or
the Company Subsidiaries, Buyer, any Buyer Subsidiary or
any of their respective Affiliates, associates, officers
or directors which Claim seeks to restrain, prevent,
change or delay in any material respect the Contemplated
Transactions or seeks to challenge any of the terms or
provisions of this Agreement or seeks material damages
in connection with any of such transactions or seeks to
restrain or prevent the ownership and operations by
Buyer after the Closing Date of the Company and the
Company Subsidiaries.
(d) Recapitalization Transactions.
Except for the Reincorporation Merger which has not become
effective in New York on the date hereof, the
Recapitalization Transactions, affecting Buyer or any
United States Subsidiary, shall have been consummated.
(e) Stock Sale Agreement. The
transactions contemplated by the Stock Sale Agreement,
dated the date hereof, between Triumph and Catherine C.
Brawer (and the related trusts identified therein) (the
"Brawer Stock Sale Agreement") shall have closed
concurrently with the Closing hereunder.
(f) Stockholders' Agreement. The
Stockholders' Agreement shall have been executed and
delivered by and to the applicable parties.
(g) Ancillary Agreements. Each of the
Ancillary Agreements shall have executed and delivered
by and to the applicable parties.
(h) Letter Agreements. The following
letter agreements shall have been executed and delivered
by and to the applicable parties:
(i) Letter agreement among
Maidenform, Inc., the Company and Triumph as to the use
of the Lillyettes and Lilyette trademarks;
(ii) Letter agreement between
Maidenform, Inc. and Triumph as to certain manufacturing
services; and
Letter agreement between Buyer and its
stockholders in connection with the possible
reestablishment of the Predecessor.
(i) Gains Tax Filings. The parties
shall have complied with all pre-transfer audit requirements
with respect to all pre-transfer filings relating to
real property located in New York in which the Company
has an interest.
Conditions to the Obligations of Sellers. All
obligations of Sellers hereunder are subject, at the
option of Sellers, to the fulfillment prior to or at the
Closing of each of the following further conditions:
(a) Performance. Buyer shall have
performed and complied in all material respects with all
agreements, obligations and covenants required by this
Agreement to be performed or complied with by it at or
prior to the Closing Date.
(b) Representations and Warranties.
The representations and warranties of Buyer contained in
this Agreement and in any certificate or other writing
delivered by Buyer pursuant hereto shall be true in all
material respects at and as of the Closing Date as if
made at and as of such time (except: (i) that the
representations and warranties that are subject to a
materiality qualification shall be true in all respects
(ii) to the extent such representations and warranties
speak as of an earlier time; (iii) for the
representation and warranty set forth in Section
4.19(a)(viii); and (iv) for the failure to obtain any
Buyer Required Consents if such failure will not have a
materially adverse effect on the Condition of the
Business).
(c) Cash Portion of Purchase Price.
Buyer shall have paid by wire transfer of immediately
available funds to Sellers the cash portion of the
Purchase Price payable to them.
(d) No Adverse Change. During the
period from the Buyer Balance Sheet Date to the Closing Date,
there shall not have been (i) any material adverse
change in the Condition of Buyer; (ii) any damage,
destruction, casualty, determination or other event to
or affecting the Assets of Buyer or any Buyer Subsidiary
which has a material adverse effect on the Assets or the
Business of Buyer; or (iii) any Claims or Liens filed,
or to the knowledge of Buyer threatened, against or
affecting Buyer, any Buyer Subsidiary or their
respective Assets which, if adversely determined, is
reasonably likely to have a material adverse effect on
the Condition of Buyer.
(e) Delivery of Buyer Common Stock.
Buyer shall cause to be delivered to those Sellers receiving
Buyer Common Stock as part of the Purchase Price stock
certificates, registered in the names of the applicable
Sellers (with the legends required by the Stockholders'
Agreement), evidencing the shares of Buyer Common Stock
to be acquired by them.
(f) Buyer Required Consents. All
Buyer Required Consents shall have been obtained except for
those approvals, authorizations and consents which the
failure to obtain would not, individually or in the
aggregate, have a material adverse effect upon the
Condition of Buyer or the consummation of the
Contemplated Transactions.
(g) Documentation. There shall have
been delivered to Sellers the following:
(i) A certificate, dated the
Closing Date, of the President or a Vice-President of
Buyer confirming the matters set forth in Section
6.2(a), (b) and (d) hereof.
(ii) A certificate, dated the
Closing Date, of the Secretary or Assistant Secretary of
Buyer certifying, among other things, that attached or
appended to such certificate (A) is a true and correct
copy of its Certificate of Incorporation and all
amendments if any thereto as of the date thereof; (B) is
a true and correct copy of its By-laws as of the date
hereof; (C) is a true copy of all corporate actions
taken by it, including resolutions of its board of
directors authorizing the execution, delivery and
performance of this Agreement, and each other document
to be delivered by Buyer pursuant hereto; and (D) are
the names and signatures of its duly elected or
appointed officers who are authorized to execute and
deliver this Agreement and any certificate, document or
other instrument in connection herewith.
(iii) A signed opinion of Buyer's
counsel, dated the Closing Date and addressed to
Sellers, substantially in the form of opinion annexed as
Exhibit B hereto.
(iv) Copies of all Buyer Required Consents.
(v) The written designation, if
any, by Buyer pursuant to the provisions of Section 9.6
hereof.
(h) Environmental Matters. With
respect to each Buyer Owned Real Property that Buyer's
lenders required Buyer to deliver a Phase I
Environmental report, Sellers shall have received a copy
of such reports.
Conditions to the Obligations of Buyer. All
obligations of Buyer hereunder are subject, at their
option, to the fulfillment prior to or at the Closing of
each of the following further conditions:
(a) Performance. Sellers shall have
performed and complied in all material respects with all
agreements, obligations and covenants required by this
Agreement to be performed or complied with by them at or
prior to the Closing Date. In addition to the
foregoing, whether or not Sellers shall have used the
reasonable efforts required by Sections 5.1 and 5.6, the
Company and each Company Subsidiary shall be in actual
compliance with the provisions of Section 5.1.
(b) Representations and Warranties.
The representations and warranties of Sellers contained
in this Agreement and in any certificate or other
writing delivered by the Sellers pursuant hereto shall
be true in all material respects at and as of the
Closing Date as if made at and as of such time (except:
(i) that the representations and warranties that are
subject to a materiality qualification shall be true in
all respects), (ii) for the representations and
warranties set forth in Section 3.19(a)(viii), (iii) to
the extent such representations and warranties speak of an earlier time;
and (iv) except for the failure to obtain any Seller
Required Consents if such failure will not have a
materially adverse effect on the Condition of the
Business).
(c) No Adverse Change. During the
period from the Company Balance Sheet Date to the
Closing Date, there shall not have been (i) any material
adverse change in the Condition of the Business; (ii)
any damage, destruction, casualty, determination or
other event to or affecting the Assets of the Company or
any Company Subsidiary which has a material adverse
effect on the Assets or the Business of the Company; or
(iii) any Claims or Liens filed, or to the knowledge of
any Seller threatened, against or affecting the Company,
any Company Subsidiary or the Assets which, if adversely
determined, is reasonably likely to have a material
adverse effect on the Condition of the Business.
(d) Environmental Matters. Buyer
shall have received a Phase I Environmental Report for
each of the Company Owned Real Properties.
(e) Payment of Gains Taxes. Buyer
shall have received evidence reasonably satisfactory to
it that all applicable real property transfer and
transfer gain Taxes, imposed in connection with the
deemed transfer of the Company Real Property, shall have
been paid or tendered in compliance with applicable
Laws.
Company Required Consents. All Company
Required Consents shall have been obtained except for
those approvals, authorizations and consents which the
failure to obtain would not, individually or in the
aggregate, have a material adverse effect upon the
Condition of the Business or the consummation of the
Contemplated Transactions.
(g) Documentation. There shall have
been delivered to Buyer the following:
(i) the stock certificates of
each Seller representing the number of Purchased Shares
set forth opposite such Seller's name on Exhibit A, duly
endorsed in blank or accompanied by stock powers duly
executed in blank, in proper form for transfer.
(ii) A certificate dated the
Closing Date, of each Seller confirming the matters set
forth in Sections 6.3(a), (b) and (c) and 3.19(a)(xvi)
hereof, to the extent applicable to such Seller.
(iii) A certificate, dated the
Closing Date, of the Secretary or Assistant Secretary of
Triumph certifying, among other things, that attached or
appended to such certificate (A) is a true and correct copy of its
Certificate of Incorporation and By-laws (or comparable
instruments) and all amendment if any thereto as of the
date thereof; (B) is a true copy of all corporate
actions taken by it, including resolutions of its board
of directors (or comparable governing body) authorizing
the execution, delivery and performance of this
Agreement, and each other document to be delivered by
Triumph pursuant hereto; and (C) are the names and
signatures of its duly elected or appointed officers who
are authorized to execute and deliver this Agreement and
any certificate, document or other instrument in
connection herewith.
(iv) A certificate, dated the
Closing Date, of the Secretary or Assistant Secretary of
the Company or applicable Company Subsidiary certifying,
among other things, that attached or appended to such
certificate (A) is a true and correct copy of the
Certificate of Incorporation and By-laws (or comparable
instruments) of the Company and each of its
Subsidiaries, and all amendments if any thereto as of
the date thereof; (B) are the names of the directors and
officers of the Company and each of the Company
Subsidiaries; and (C) is a true copy of all corporate
actions taken by the Board of Directors of the Company
(which actions shall have been taken prior to the date
of entering into this Agreement) to authorize the
Contemplated Transactions in accordance with Section 203
of the Delaware General Corporation Law.
The resignations, dated on or before the
Closing Date, of such directors and officers of the
Company and each Subsidiary and such trustees of Benefit
Plans as previously may have been requested by Buyer.
(vi) A signed opinion(s) of Sellers'
counsel, dated the Closing Date, addressed to Buyer,
substantially in the form of opinion annexed as Exhibit
C hereto.
(vii) Copies of all Company
Required Consents, material Permits and, to the extent
not previously delivered, appraisal reports, title
insurance policies and deeds to Company Owned Real
Property.
(viii) The written acceptance of the
Authorized Agent of its appointment pursuant to Section
9.5 hereof.
INDEMNIFICATION
Survival of Representations and Warranties. (a)
Notwithstanding any right of Buyer fully to investigate
the affairs of the Company and its Subsidiaries and
notwithstanding any knowledge of facts determined or
determinable by Buyer pursuant to such investigation or
right of investigation, Buyer has the right to rely
fully upon the representations, warranties, covenants
and agreements of Seller contained in this Agreement, or
listed or disclosed on any Schedule hereto or in any
instrument delivered in connection with or pursuant to
any of the foregoing. All such representations,
warranties, covenants and agreements shall survive the
execution and delivery of this Agreement and the Closing
hereunder. Notwithstanding the foregoing, all
representations and warranties of Sellers contained in
this Agreement, on any Schedule hereto or in
any instrument delivered in connection with or pursuant
to this Agreement (other than the representations and
warranties relating to: (i) title matters, ERISA
matters, Tax matters and the matters contained in
Sections 3.3 and 3.8, all of which shall survive the
Closing until the expiration of any applicable statutes
of limitation; and (ii) Environmental Matters, which
shall survive the Closing for a period of three years
after the Closing Date), shall terminate and expire 18
months after the Closing Date; provided, however, that
the liability of Sellers shall not terminate as to any
specific claim or claims of the type referred to in
Section 7.2 hereof, whether or not fixed as to Liability
or liquidated as to amount, with respect to which
Sellers have been given specific notice on or prior to
the date on which such liabilities would otherwise
terminate pursuant to the express terms of this Section
7.1(a).
Notwithstanding any right of the Sellers
fully to investigate the affairs of Buyer and its
Subsidiaries and notwithstanding any knowledge of facts
determined or determinable by the Sellers pursuant to such
investigation or right of investigation, the Sellers
have the right to rely fully upon the representations,
warranties, covenants and agreements of Buyer contained
in this Agreement, or listed or disclosed on any
Schedule hereto or in any instrument delivered in
connection with or pursuant to any of the foregoing.
All representations, warranties, covenants and
agreements of Buyer shall survive the execution and
delivery of this Agreement and the Closing hereunder.
Notwithstanding the foregoing, all such representations,
warranties, covenants and agreements of Buyer (other
than the representations and warranties relating to:
(i) title matters, ERISA matters, Tax matters and the
matters contained in Sections 4.3 and 4.8, all of which
shall survive the Closing until the expiration of any
applicable statutes of limitation; and (ii)
Environmental Matters, which shall survive the Closing
for a period of three years after the Closing Date),
shall terminate and expire 18 months after the Closing
Date; provided, however, that the liability of Buyer
shall not terminate as to any specific claim or claims
of the type referred to in Section 7.3 hereof, whether
or not fixed as to Liability or liquidated as to amount,
with respect to which Buyer has been given specific
notice on or prior to the date on which such Liability
would otherwise terminate pursuant to the express terms
of this Section 7.1(b).
Obligation of Sellers to Indemnify. Each of
Spiesshofer and Magrone, severally, as to the matters
relating to himself or the Purchased Shares owned by him
referred to in Section 3.1, 3.2, 3.3, 3.4 and 3.31 and
as to covenants relating to themselves contained in
Article V (it being understood and agreed that neither
Spiesshofer nor Magrone shall be liable under the
provisions of this Section 7.2 as to any other sections
of this Agreement) and Triumph as to all matters, agree
to indemnify, defend and hold harmless Buyer (and its
directors, officers, employees, Affiliates, successors
and assigns) from and against all uninsured Claims,
losses, liabilities, damages, deficiencies, judgments,
settlements, costs of investigation or other expenses
(including interest, penalties and reasonable attorneys'
fees and disbursements but excluding indirect or
consequential damages or claims for lost profits)
(collectively, the "Losses") suffered or incurred by
Buyer or any of the foregoing persons by reason of any
inaccuracy in or any breach of any representation,
warranty, covenant or agreement of Sellers contained in
this Agreement or in any Schedules or documents
delivered by a Seller pursuant to this Agreement.
Obligation of Buyer to Indemnify. (a) Buyer
agrees to indemnify, defend and hold harmless each
Seller from and against any uninsured Losses suffered by
such Seller by reason of:
VII.3
(i) any inaccuracy in or breach
of any representation, warranty, covenant or agreement
of Buyer contained in this Agreement, the Brawer Stock
Sale Agreement or in any document or other papers
delivered pursuant to either of such Agreements; and
(ii) Any Claim brought by any
stockholder of the Company (other than Sellers) as a
result of the consummation of the Contemplated
Transactions or the Company Merger.
(b) For purposes of this Section 7.3,
the term "Losses" shall include any Losses suffered by
Triumph under the Brawer Stock Sale Agreement.
Notice and Opportunity to Defend Third Party
Claims. (a) Promptly after receipt by any party hereto
(the "Indemnitee") of notice of any demand, claim,
circumstance or Tax audit which would or might give rise
to a claim or the commencement (or threatened
commencement) of any action, proceeding or investigation
(an "Asserted Liability") that may result in a Loss, the
Indemnitee shall give prompt notice thereof (the "Claims
Notice") to the party obligated to provide
indemnification pursuant to Section 7.2 or 7.3 (the
"Indemnifying Party"). The Claims Notice shall describe
the Asserted Liability in reasonable detail and shall
indicate the amount (estimated, if necessary, and to the
extent feasible) of the Loss that has been or may be
suffered by the Indemnitee.
The Indemnifying Party may elect to
compromise or defend, at its own expense and by its own
counsel, any Asserted Liability. If the Indemnifying
Party elects to compromise or defend such Asserted
Liability, it shall within thirty days (or sooner, if
the nature of the Asserted Liability so requires) notify
the Indemnitee of its intent to do so, and the
Indemnitee shall cooperate, at the expense of the
Indemnifying Party, in the compromise of, or defense
against, such Asserted Liability. If the Indemnifying
Party elects not to compromise or defend the Asserted
Liability, fails to notify the Indemnitee of its
election as herein provided or contests its obligation
to indemnify under this Agreement, the Indemnitee may
pay, compromise or defend such Asserted Liability.
Notwithstanding the foregoing, neither the Indemnifying
Party nor the Indemnitee may settle or compromise any
claim over the objection of the other; provided,
however, that (i) except as set forth in the immediately
succeeding clause (ii), consent to settlement or
compromise shall not be unreasonably withheld and (ii)
the Indemnifying Party may settle any Asserted Liability
by paying a money payment only without the consent of
the Indemnitee. In any event, the Indemnitee and the
Indemnifying Party may participate, at their own
expense, in the defense of such Asserted Liability. If
the Indemnifying Party chooses to defend any claim, the Indemnitee shall
make available to the Indemnifying Party any books,
records or other documents within its control that are
necessary or appropriate for such defense.
(b) Anything in Section 7.4(b) to the
contrary notwithstanding, in the case of any Asserted
Liability by any supplier, distributor, sales agent or
customer of the Company or any of its Subsidiaries prior
to the Closing in connection with which Buyer may make a
claim against Sellers for indemnification pursuant to
Section 7.2, Buyer promptly shall give a Claims Notice
with respect thereto but, unless Buyer and the
Indemnifying Party otherwise agree, Buyer shall have the
exclusive right at its option to defend, at its own
expense, any such matter, subject to the duty of Buyer
to consult with the Indemnifying Party and its attorneys
in connection with such defense and provided that no
such matter shall be compromised or settled by Buyer
without the prior consent of the Indemnifying Party,
which consent shall not be unreasonably withheld. The
Indemnifying Party shall have the right to recommend in good faith to
Buyer proposals to compromise or settle claims brought
by a supplier, distributor, sales agent or customer, and
Buyer agrees to present such proposed compromises or
settlements to such supplier, distributor or customer.
All amounts required to be paid in connection with any
such Asserted Liability and all amounts required to be
paid in connection with any such compromise or
settlement consented to by the Indemnifying Party, shall be borne
and paid by the Indemnifying Party. The parties agree to
cooperate fully with one another in the defense,
compromise or settlement of any such Asserted Liability.
Limits on Indemnification. Notwithstanding
anything contained in this Article VII or elsewhere in
this Agreement to the contrary:
(a) Sellers shall not have any
obligation to indemnify Buyer pursuant to Section 7.2
hereof with respect to any Claim unless and until Buyer
shall have incurred Losses in an aggregate amount in
excess of $1,000,000 (the "Stipulated Amount") in which
event Buyer shall be entitled to be indemnified for all
of its Losses commencing at $1; provided that the
foregoing limitation shall not apply to the obligations
of Triumph under Section 5.11; and provided, further,
that if any Claim is based upon a breach by Triumph of a
representation, warranty, covenant or agreement
contained in this Agreement in which the dollar
thresholds thereof are less than the dollar thresholds
in the corresponding representation, warranty, covenant
or agreement of Buyer ("Buyer's Dollar Thresholds") then
the liability of Triumph for such breach shall be
determined as if Buyer's Dollar Thresholds had applied
to Triumph.
(b) Buyer shall have no obligation to
indemnify Sellers pursuant to Section 7.3 hereof with
respect to any Claim unless and until the Sellers shall
have incurred Losses in an aggregate amount in excess of
the Stipulated Amount in which event Sellers shall be
entitled to be indemnified for all of their Losses
commencing at $1; provided that the foregoing limitation
shall not apply to the obligations of Buyer under
Sections 5.11 and 7.3(a)(ii).
(c) The liability hereunder of
Triumph, Spiesshofer and Magrone shall in no event
exceed, respectively, $64,422,171.45, $377,325 and
$6,146,010. Sellers may satisfy their indemnification
obligations by transferring to Buyer shares of Buyer
Common Stock valued, for this purpose, at $454.94 per
share, as adjusted for any subdivision, combination or
reclassification of Buyer Common Stock or the payment of
a dividend on Buyer Common Stock in shares of Buyer
Common Stock.
(d) The liability of Buyer hereunder
shall in no event exceed $61,194,000.
Tax Impact. It is the intent of the parties that
any amounts paid under Sections 7.2 or 7.3 shall
represent an adjustment of the Purchase Price and the
parties will report such payments consistent therewith.
Nevertheless, if the payment of any Loss which Sellers
are obligated to make to Buyer pursuant to Section 7.2
of this Agreement or which Buyer is obligated to make to
Sellers pursuant to Section 7.3 of this Agreement, is
required to be reported in income by Buyer or any of its
Affiliates or Sellers or any of their Affiliates, as applicable,
then the amount of the Loss which Sellers are obligated to pay to Buyer
or which Buyer is obligated to pay to Sellers, as
applicable, shall be adjusted so that the indemnitee is
fully and completely Indemnified on an after-tax basis.
Indemnity Sole Remedy. With respect to any money
claim, in the absence of fraud or a suit seeking
specific performance as contemplated by this Agreement,
the remedies provided by the foregoing provisions of
this Article 7, after the Closing Date, shall be in lieu
of any other remedies to which the respective party is
entitled at law or in equity for any breach or
noncompliance by a party with the provisions of this
Agreement.
TERMINATION
Termination. If the Brawer Stock Purchase
Agreement is terminated, this Agreement shall be
terminated concurrently therewith. In addition, this
Agreement may be terminated and the Contemplated
Transactions may be abandoned at any time prior to the
Closing:
(a) By mutual written consent of
Sellers and Buyer;
(b) By Sellers if (i) there has been a
material misrepresentation or breach of warranty on the
part of Buyer in the representations and warranties
contained herein and such material misrepresentation or
breach of warranty, if curable, is not cured within 15
days of written notice thereof from Sellers (ii) Buyer
has committed a material breach of any covenant imposed
upon it hereunder and fails to cure such breach within
15 days of written notice thereof from Sellers; or (iii)
any condition to a Seller's obligations hereunder
becomes incapable of fulfillment through no fault of
such parties and is not waived by such parties;
(c) By Buyer, if (i) there has been a
material misrepresentation or breach of warranty on the
part of a Seller in the representations and warranties
contained herein and such material misrepresentation or breach of
warranty, if curable, is not cured within 15 days of
written notice thereof from Buyer; (ii) a Seller has
committed a material breach of any covenant imposed upon
it hereunder and fails to cure such breach within 15
days of written notice thereof from Buyer; or (iii) any
condition to Buyer's obligations hereunder becomes
incapable of fulfillment through no fault of Buyer and
is not waived by Buyer.
By Sellers' Agent on behalf of Sellers, or
Buyer, if the Closing shall not have occurred on or
before June 30, 1995; provided that no party may
terminate this Agreement pursuant to this clause if such
party's failure (or in the case of termination by
Sellers, the failure of a Seller) to fulfill any of its
obligations under this Agreement shall have been the
reason that the Closing shall not have occurred on or
before said date; and
(e) By Sellers or by Buyer, if there
shall be any Law that makes consummation of the Contemplated
Transactions illegal or otherwise prohibited or if any
Order enjoining Buyer, or any Seller from consummating
the Contemplated Transactions is entered and such Order
shall become final and nonappealable.
Effect of Termination; Right to Proceed. In the
event that this Agreement shall be terminated pursuant
to Section 8.1, all further obligations of the parties
under the Agreement shall terminate without further
liability of any party hereunder except (i) to the
extent that a party has made a material
misrepresentation hereunder or committed a breach of the
material covenants and agreements imposed upon it
hereunder; (ii) to the extent that any condition to a
party's obligations hereunder became incapable of
fulfillment because of the breach by a party of its
obligations hereunder and (iii) that the agreements
contained in Sections 5.9, 5.10 and 5.11 shall survive
the termination hereof. In the event that a condition
precedent to its obligation is not met, nothing
contained herein shall be deemed to require any party to
terminate this Agreement, rather than to waive such
condition precedent and proceed with the Contemplated
Transactions. Notwithstanding anything to the contrary
contained herein, no party shall have any obligation to
the other hereunder arising out of the occurrence of an
event or circumstance not within the control of such
party which event or circumstance resulted in a
representation or warranty of such party ceasing to be
true.
MISCELLANEOUS
Notices. (a) Any notice or other communication
required or permitted hereunder shall be in writing and
shall be delivered personally by hand or by recognized
overnight courier, telecopied or mailed (by registered
or certified mail, postage prepaid) as follows:
IX.1
(i) if to Buyer, one copy to:
Maidenform Worldwide, Inc.
90 Park Avenue
New York, New York 10016
Telecopier: (212) 983-5834
Attention: Steven N. Masket
Senior Vice President and
General Counsel
with a simultaneous copy to:
Baer Marks & Upham
805 Third Avenue
New York, New York 10022
Telecopier: (212) 702-
5941 Attn: Stanley E.
Bloch, Esq.
(ii) if to Spiesshofer or
Triumph, one copy to:
Triumph International Overseas Limited
133 Hoi Bun Road
7th Floor Piazza
Building Kwun Tong,
Kowloon
Hong Kong
Attention: Mr. W.
Engelman/Mr. K. Haertkorn
Facsimile No.: 011-852 23419847
-and-
Triumph International
Spiesshofer & Braun
Promenadenstrasse 26
CH8437 Zurzach
Switzerland Attention:
Mr. Wolfgang Spiesshofer
Facsimile No.: 011-4156 499219
with a simultaneous copy to:
Rubin Baum Levin Constant & Friedman
30 Rockefeller Plaza
New York, New York 10112
Telecopier: (212) 698-7825
Attn: Barry A. Adelman, Esq.
(iii) if to Magrone, one copy to:
Frank Magrone
Cosmos Heights, R.D. 4
Cortland, New York
13045
with a simultaneous copy to:
Rubin Baum Levin Constant & Friedman
30 Rockefeller Plaza
New York, New York
10012 Telecopier: (212) 698-7825
Attn: Barry A. Adelman, Esq.
(a) Each such notice or other
communication
shall be effective (i) if given by telecopier, when such
telecopy is transmitted to the telecopier number
specified in Section 9.1(a) (with confirmation of
transmission) or (ii) if given by any other means, when
delivered at the address specified in Section 9.1(a).
Any party by notice given in accordance with this
Section 9.1 to the other party may designate another
address (or telecopier number) or person for receipt of
notices hereunder. Notices by a party may be given by
counsel to such party.
Entire Agreement. This Agreement (including the
Stockholders' Agreement, the Schedules and Exhibits
hereto) and the collateral agreements executed in
connection with the consummation of the Contemplated
Transactions contain the entire agreement between the
parties with respect to the subject matter hereof and
related transactions and supersede all prior agreements,
written or oral, with respect thereto.
Waivers and Amendments; Non-Contractual Remedies;
Preservation of Remedies. This Agreement may be
amended, superseded, cancelled, renewed or extended, and
the terms hereof may be waived, only by a written
instrument signed by the parties hereto or, in the case
of a waiver, by the party waiving compliance. No delay
on the part of any party in exercising any right, power
or privilege hereunder shall operate as a waiver
thereof. Nor shall any waiver on the part of any party
of any such right, power or privilege, nor any single or
partial exercise of any such right, power or privilege,
preclude any further
exercise thereof or the exercise of any other such
right, power or privilege. Except as otherwise provided
herein, the rights and remedies herein provided are
cumulative and are not exclusive of any rights or
remedies that any party may otherwise have at law or in
equity. The rights and remedies of any party based
upon, arising out of or otherwise in respect of any
inaccuracy in or breach of any representation, warranty,
covenant or agreement contained in this Agreement shall
in no way be limited by the fact that the act, omission,
occurrence or other state of facts upon which any claim
of any such inaccuracy or breach is based may also be
the subject matter of any other representation,
warranty, covenant or agreement contained in this
Agreement (or in any other agreement between the
parties) as to which there is no inaccuracy or breach.
Governing Law. This Agreement shall be governed
and construed in accordance with the laws of the State
of New York applicable to agreements made and to be
performed entirely within such State, without regard to
the conflict of laws rules thereof.
Consent to Jurisdiction and Service of Process.
The parties hereto irrevocably: (a) agree that any
suit, action or other legal proceeding arising out of
this Agreement may be brought in the courts of the State
of New York or the courts of the United States located
in New York County, New York, (b) consent to the
jurisdiction of each court in any such suit, action or
proceeding, (c) waive any objection which they, or any
of them, may have to the laying of venue of any such
suit, action or proceeding in any of such courts, and
(d) waives the right to a trial by jury in any such
suit, action or other legal proceeding. Each Seller
hereby designates and appoints Rubin Baum Levin Constant
& Friedman, 30 Rockefeller Plaza, New York, New York
10112 (the "Authorized Agent"), as its agent to accept and
acknowledge on its behalf, service of any and all
process which may be served in any such suit, action or
other proceeding, and agrees that service upon such
Authorized Agent shall be deemed in every respect
service of process on a Seller or its successors or
assigns and, to the extent permitted by applicable law,
shall be taken and held to be valid personal service.
Each Seller represents and warrants that the Authorized
Agent has agreed to act as such agent for service of
process.
Designated Buyer. It is understood and agreed
between the parties that Buyer may cause one or more
Affiliates, direct or indirect Subsidiaries or other
entities designated by it (the "Designated Buyer" or
Designated Buyer") to carry out all or part of the
Contemplated Transactions to be carried out by Buyer;
provided, however, that Buyer nevertheless shall remain
liable (as principal and not as guarantor) for all of
its obligations and those of any Designated Buyer
hereunder.
Binding Effect; No Assignment. This Agreement
and all of its provisions, rights and obligations shall
be binding upon and shall inure to the benefit of the
parties hereto and their respective successors, heirs
and legal representatives. Except as otherwise provided
in Section 9.6, this Agreement may not be assigned by a
party without the express written consent of the others
and any purported assignment, unless so consented to,
shall be void and without effect. Nothing herein
express or implied is intended or shall be construed to confer upon
or to give anyone other than the parties hereto and
their respective heirs, legal representatives and
successors any rights or benefits under or by reason of
this Agreement and no other party shall have any right
to enforce any of the provisions of this Agreement.
Exhibits. All Exhibits and Schedules attached
hereto are hereby incorporated by reference into, and
made a part of, this Agreement. The disclosure
contained in any one Schedule to this Agreement, if by its
description in such Schedule is clearly applicable to
other Sections of this Agreement, will also be deemed to
have been made with respect to such other Sections even
if such disclosure is not repeated in any other
Schedules.
Severability. If any provision of this Agreement
for any reason shall be held to be illegal, invalid or
unenforceable, such illegality shall not affect any
other provision of this Agreement, but this Agreement
shall be construed as if such illegal, invalid or
unenforceable provision had never been included herein.
Counterparts. The Agreement may be executed in
any number of counterparts, each of which shall be
deemed to be an original as against any party whose
signature appears thereon, and all of which shall
together constitute one and the same instrument. This
Agreement shall become binding when one or more
counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties
reflected hereon as the signatories.
IN WITNESS WHEREOF, the undersigned have executed
this Stock Purchase Agreement as of the date set
forth above.
MAIDENFORM WORLDWIDE, INC.
By:
Steven N. Masket
Executive Vice
President
TRIUMPH INTERNATIONAL
OVERSEAS, LIMITED
By:
Name:
Title:
Guenther Spiesshofer
Frank Magrone
The undersigned is signing this
Agreement solely to agree to the
provisions of Section 5.13
TRIUMPH INTERNATIONAL SPIESSHOFER &
BRAUN
By:
_______________________________
Name:
Title:
EXHIBIT A
LIST OF SELLERS
Total Number of
Name Purchased Shares
Triumph International
Overseas Limited 3,670,779
Guenther Spiesshofer 21,500
Frank Magrone 350,200
4,042,479
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION Washington, D.C.
20549
SCHEDULE 13D
Under the Securities Exchange Act of
1934 (Amendment No. 5 )*
NCC Industries, Inc.
(Name of Issuer)
Common Stock, par value $1.00 per
share (Title of Class of
Securities)
628834 10 3
(CUSIP Number)
Barry A. Adelman, Esq. Dr. Herbert Batliner
Rubin Baum Levin Constant & Friedman Triumph International Overseas Ltd.
30 Rockefeller Plaza FL 9490 Vaduz
New York, NY 10112 (212) 698-7700 Aeulestrasse 74 Liechtenstein
(Name, Address and Telephone Number of Person Authorized to Receive Notices
an d Communications)
April 26, 1995
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject
of this Schedule 13D, and is filing this schedule because of
Rule 13d-1(b)(3) or (4), check the following box .
Check the following box if a fee is being paid with this
statement . (A fee is not required only if the reporting
person: (1) has a previous statement on file reporting
beneficial ownership of more than five percent of the class
of securities described in Item 1; and (2) has filed no
amendment subsequent thereto reporting beneficial
ownership of less than five percent of such class. See
Rule 13d-7.)
Note: Six copies of this statement, including all
exhibits, should be filed with the Commission. See Rule
13d-1(a) for other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for
a reporting person's initial filing on this form with
respect to the subject class of securities, and for any
subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover
page shall not be deemed to be "filed" for the purpose of
Section 18 of the Securities Exchange Act of 1934 ("Act")
or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of
the Act (however, see the Notes).
SCHEDULE 13D
CUSIP NO. 628834 10 3
<TABLE>
<S> <C>
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF
ABOVE PERSONS
Guenther Spiesshofer
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A
GROUP (See Instructions) (a)
x (b)
3 SEC USE ONLY
4 SOURCE OF FUNDS (See Instructions)
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Germany
NUMBER OF 7 SOLE VOTING POWER 0
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
8 SHARED VOTING POWER 0
9 SOLE DISPOSITIVE POWER 0
10 SHARED DISPOSITIVE POWER0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (See Instructions)
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
14 TYPE OF REPORTING PERSON (See Instructions)
IN
SCHEDULE 13D
CUSIP NO. 628834 10 3
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
Triumph
International Overseas
Ltd.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A
GROUP (See Instructions) (a)
x (b)
3 SEC USE ONLY
4 SOURCE OF FUNDS (See Instructions)
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Liechtenstein
NUMBER OF 7 SOLE VOTING POWER 0
SHARES
BENEFICIALLY
OWNED BY
EACH
PERSON
REPORTING
WITH
8 SHARED VOTING POWER 0
9 SOLE DISPOSITIVE POWER 0
10 SHARED DISPOSITIVE POWER 0
11 AGGREGATE AMOUNT
BENEFICIALLY OWNED BY EACH
REPORTING PERSON
0
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (See Instructions)
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
14 TYPE OF REPORTING PERSON (See Instructions)
CO
</TABLE>
Triumph International Overseas Ltd. and Guenther Spiesshofer hereby amend and
restate their statement on Schedule 13D, dated April 28, 1989, as amended by
Amendments dated May 9, 1989, April 13, 1990, August 21, 1991 and November
21, 1991 (as amended, the "Statement"), as follows:
Item 1. Security and Issuer.
The class of securities to which this Statement relates is the
Common Stock, par value $1.00 per share (the "Common Stock") of NCC
Industries, Inc. (the "Company"). The Company's principal executive
offices are located at 165 Main Street, Cortland, New York 13045-5428.
Item 2. Identity and Background.
This Statement is filed by Triumph International Overseas Ltd., a
company incorporated under the laws of the principality of Liechtenstein
("Triumph"), and by Guenther Spiesshofer, the President and a director of
Triumph. The principal business of Triumph and its affiliates is the
manufacture and distribution, in numerous countries outside Europe, of
corsetry, lingerie, swimwear, beachwear and terry products and the
manufacture of raw materials for such products. The principal business
address and principal office address of Triumph is FL-9490 Vaduz,
Aeulestrasse 74, Liechtenstein.
Triumph is a wholly-owned subsidiary of Triumph International
Spiesshofer & Braun ("TISB"), a
partnership organized under the laws of
Switzerland, with its principal business
address and principal office address at
Triumphweg 6, Zurzach, Switzerland. TISB, through its
affiliates and subsidiaries, is engaged
throughout the world in the same business as Triumph.
The directors and executive
officers of Triumph and the partners of
TISB (including Mr. Spiesshofer), their
business addresses, their present
principal occupations or employment, and
the name, principal business and address
of the organization in which such
employment is conducted, and their
citizenship are as follows:
<TABLE>
<S> <C> <C> <C>
Present Principal
Business Occupation and
Name Address Organization Citizenship
Guenther ** President and Director German
Spiesshofer* of Triumph; director of
Triumph
International
Holding GmbH, a German
corporation and a
wholly-owned subsidiary
of TISB ("TIH")
Wolfgang ** Director of Triumph; German
Spiesshofer* director and Director
of Finance and Adminis-
tration of TIH
Dieter Braun* ** Director of Triumph; German
director and
Director of
International
Purchasing of TIH
Dr. Michael ** Director of Triumph; German
Braun* Director and Director
of Marketing and TIH
Wolfgang 133 Hoi Bun Director of Triumph German
Engelmann Road, Kowloon,
Hong Kong
Karl Haertkorn 133 Hoi Bun Director of Triumph German
Road, Kowloon,
Hong Kong
Dr. Herbert Aeulestrasse 74 Director of Triumph Liechtenstein
Batliner Postfach 86
FL-9490 Vaduz
Liechtenstein
</TABLE>
___________________________
* Partner of TISB
** Marstrasse 40, 80335 Munich, Germany
In addition, certain of the
individuals named above serve as officers and/or
directors of companies affiliated with TISB.
During the last five years, neither
Triumph, TISB, nor any of their respective
directors, executive officers or partners
(including Mr. Spiesshofer) have been convicted
in a criminal proceeding (excluding traffic
violations or similar misdemeanors), nor have
they or any of them been a party to
a civil proceeding of a judicial or
administrative body of competent jurisdiction
and, as a result of such proceeding, was or is
subject to a judgment, decree or final order
enjoining future violations of, or prohibiting
or mandating activities subject to, federal or
state securities laws or finding any violation
with respect to such laws.
Item 3. Source and Amount of Funds or Other
Consideration.
In connection with the reorganization
of Triumph International (Hong Kong) Ltd., a
former Hong Kong B.C.C. Corporation ("TIHK"),
(a) TIHK transferred to Triumph on April 20,
1989, 3,474,131 shares of Common Stock, and (b) Triumph
acquired from TIHK (i) that certain 9 1/2%
Unsubordinated Mortgage Note, dated April 24,
1978, issued by the Company and (ii) that certain
Mortgage, dated May 21, 1975, as amended, on the
Company's property at 163 Main Street, Cortland,
New York, which Mortgage secures such Mortgage
Note. There is presently no indebtedness
outstanding under the Mortgage Note. In
addition, Triumph replaced TIHK as guarantor of
the Company's bank loans and lines of credit in
the aggregate amount of $25,500,000, which
guaranties have been terminated.
(a) 5,289 shares of Common
Stock on October 1, 1989 at a price of
$3.00 per share for an aggregate price of
$15,867.00; (b) 12,897 shares of Common Stock on
January 18, 1990 at a price of $3.25 per share
for an aggregate price of $41,915.25; (c) 21,680
shares of Common Stock on April 9, 1990 at a
price of $3.50 per share for an aggregate price
of $75,880.00; (d) 4,000 shares of Common Stock
on May 8, 1990 at a price of $3.00 per share for
an aggregate price of $12,000.00; (e) 1,625
shares of Common Stock on May 23, 1990 at a price
of $3.00 per share for an aggregate price of
$4,875.00; (f) 900 shares of Common Stock on
October 6, 1990 at a price of $3.25 per share for
an aggregate price of $2,925.00; (g) 9,000 shares
of Common Stock on November 19, 1990 at a price
of $3.25 per share for an aggregate price of
$29,250.00; (h) 3,000 shares of Common Stock on
December 7, 1990 at a price of $3.125 per share
for an aggregate price of $9,375.00; (i) 2,550 shares
of Common Stock on May 28, 1991 at a price of $3.50 per share for an
aggregate price of $8,925.00; (j) 9,648 shares of
Common Stock on June 19, 1991 at a price of $3.50
per share for an aggregate price of $33,768.00;
(k) 51,900 shares of Common Stock on August 21,
1991 at a price of $6.50 per share for an
aggregate price of $337,350.00; (l) 100 shares of
Common Stock on October 10, 1991 at a price of
$5.00 per share for an aggregate price of
$500.00; (m) 300 shares of Common Stock on
November 5, 1991 at a price of $6.00
per share for an aggregate price of $1,800.00;
(n) 61,300 shares of Common Stock on November 15,
1991 at a price of $6.25 per share for an
aggregate price of $383,125.00; and (o) 12,459
shares of Common Stock on November 27, 1991 at a
price of $6.50 per share for an aggregate price
of $80,983.50.
Item 4. Purpose of Transaction.
The 3,474,131 shares of Common
Stock transferred by TIHK to Triumph on April 20,
1989 were transferred as part of a reorganization
of TIHK. The purpose of the subsequent purchases
of shares of Common Stock as set forth in Item 3
above was to increase Triumph's equity interest
in the Company.
On April 26, 1995, each of Triumph, Mr.
Spiesshofer and Frank Magrone (the beneficial
owner of 350,200 shares of the Common Stock),
pursuant to a Stock Purchase Agreement (the
"Stock Purchase Agreement") with Maidenform
Worldwide, Inc., a Delaware corporation
("Maidenform"), sold,
transferred and delivered to Maidenform all of
the 4,042,479 shares of the Common Stock owned by
Mr. Magrone, Triumph and Mr. Spiesshofer in
exchange for an aggregate of approximately $9.8
million in cash and approximately 28% of the
outstanding capital stock of Maidenform having a
value of approximately $71,000,000, subject to
adjustment upward, based upon the earnings before
interest and taxes of
Maidenform and the Company during the threeyear
period commencing on January 1, 1995 through
December 31, 1997, in an amount not to exceed
$5,500,000.
As a result of the consummation of the
transactions contemplated by the Stock Purchase
Agreement, (i) Maidenform currently owns
approximately 92% of the outstanding shares of
Common Stock, and (ii) Triumph, Mr. Spiesshofer
and Mr. Magrone ceased to be beneficial owners of
any shares of the Common Stock.
Except as set forth above, neither
Triumph nor Mr. Spiesshofer have any plans or
intentions which would result in or relate to any
of the transactions described in subparagraphs
(a)(j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
Neither Triumph nor Mr. Spiesshofer is
the beneficial owner of any shares of the
outstanding Common Stock. On April 26, 1995,
each of Triumph, Mr. Spiesshofer and Mr. Magrone,
pursuant to the Stock Purchase Agreement with
Maidenform as described in Item 4 above, sold,
transferred and delivered to Maidenform all of
the shares of the Common Stock owned by Mr.
Magrone, Triumph and Mr. Spiesshofer in exchange
for an aggregate of approximately $9.8 million
in cash and approximately 28% of the outstanding
capital stock of Maidenform having a value of
approximately $71,000,000, subject to adjustment
upward, based upon the earnings before interest
and taxes of Maidenform and the Company during
the three-year period commencing on January 1,
1995 through December 31, 1997, in an amount not
to exceed $5,500,000.
Item 6. Contracts, Arrangements,
Understandings or Relationships with
Respect to Securities of the Issuer.
Reference is made to Item 4 above for a
discussion of the Stock Purchase Agreement with
Maidenform pursuant to which Triumph, Mr.
Spiesshofer and Mr. Magrone sold, transferred
and delivered to Maidenform on April 26, 1995
all of the shares of the Common Stock owned by
them. Except as described in Item 4 above, there
are no contracts, arrangements, understandings
or relationships (legal or otherwise) between or
among Triumph or Mr. Spiesshofer and any other
persons with respect to any securities of the
Company.
Inasmuch as Triumph and Mr. Spiesshofer
are no longer the beneficial owners of more than
five percent of the outstanding shares of Common
Stock, neither has any further reporting
obligation under Section 13(d) of the Securities
Exchange Act of 1934, as amended, or the rules
and regulations promulgated by the Securities
and Exchange Commission thereunder.
Item 7. Material to be filed as Exhibits. PAGE
A. Letter, dated
April 20, 1989, from TIHK to Triumph
with respect to the transfer by TIHK
to Triumph of certain shares of Common
Stock. *
B. 9 1/2% Unsubordinated Mortgage
Note Due April 24, 1995, dated April 24, 1978, issued
by the Company to Selreps Trading & Finance N.V. *
C. Mortgage, dated
May 21, 1975, from Crescent Corset
Company, Inc. (predecessor of the
Company) to Irving Trust Company, on
the Company's property at 163 Main
Street, Cortland, New York. *
D. Guaranty, dated
December 9, 1988, of Triumph in favor
of Chemical Bank. *
E. Limited
Guaranty, dated December 9, 1988, of
Triumph in favor of Bank feur
Gemeinwirtschaft AG. *
F. Limited
Guaranty, dated December 9, 1988, of
Triumph in favor of Bank feur
Gemeinwirtschaft AG. *
G. Limited
Guaranty, dated December 9, 1988, of
Triumph in favor of Deutsche Bank. *
H. Unlimited
Continuing Guaranty, dated December 9,
1988, of Triumph in favor of Marine
Midland Bank, N.A. *
I. Guaranty of
Payment, dated December 9, 1988, of
Triumph in favor of the Hongkong and
Shanghai Banking Corporation. *
J. Stock Purchase
Agreement, dated as of April 25, 1995,
between Maidenform Worldwide, Inc.,
and Triumph, Guenther Spiesshofer and
Frank Magrone. 1
Previously filed and incorporated herein by
reference.
Signature.
After reasonable inquiry and to the
best of my knowledge and belief, I certify
that the information set forth in this
statement is true, complete and correct.
Dated: April 26, 1995
BY RESOLUTION
OF THE DIRECTORS OF TRIUMPH INTERNATIONAL
OVERSEAS LTD. ("TRIUMPH") ADOPTED ON
JANUARY 11, 1989, A COPY OF WHICH IS
ATTACHED HERETO, THE UNDERSIGNED, BARRY A.
ADELMAN, WAS DULY AUTHORIZED TO SIGN FOR
FILING ON BEHALF OF TRIUMPH ALL DOCUMENTS
REQUIRED PURSUANT TO FEDERAL SECURITIES
LAWS.
TRIUMPH INTERNATIONAL OVERSEAS LTD.
By: /s/ BARRY A. ADELMAN
Barry A. Adelman,
Authorized Representative
BY POWER OF ATTORNEY,
DATED JANUARY 21, 1989, A COPY OF
WHICH IS ATTACHED HERETO, MR. GUENTHER
SPIESSHOFER DULY APPOINTED THE UNDERSIGNED,
BARRY A. ADELMAN, AS HIS ATTORNEY-IN-FACT
TO SIGN FOR FILING ALL DOCUMENTS REQUIRED
PURSUANT TO FEDERAL SECURITIES LAWS.
/s/ BARRY A. ADELMAN
GUENTHER SPIESSHOFER
BY: Barry Adelman,
his Attorney-in-Fact
EXHIBIT INDEX
EXHIBIT DESCRIPTION PAGE
A. Letter, dated
April 20, 1989, from TIHK to Triumph with respect to
the transfer by TIHK to Triumph of certain shares of
Common Stock *
B. 9 1/2% Unsubordinated Mortgage Note Due April 24,
1995, dated April 24, 1978, issued by the Company to
Selreps Trading & Finance N.V. *
C. Mortgage, dated May 21, 1975, from Crescent Corset
Company, Inc. (predecessor of the Company) to Irving
Trust Company, on the Company's property at 163 Main
Street, Cortland, New York *
D. Guaranty, dated December 9, 1988, of Triumph in favor
of Chemical Bank *
E. Limited Guaranty, dated December 9, 1988, of Triumph
in favor of Bank feur Gemeinwirtschaft, AG *
F. Limited Guaranty, dated December 9, 1988, of Triumph
in favor of Bank feur Gemeinwirtschaft, AG *
G. Limited Guaranty, dated December 9, 1988, of Triumph
in favor of Deutsche Bank *
H. Unlimited Continuing Guaranty, dated December 9, 1988,
of Triumph in favor of Marine Midland Bank, N.A. *
I. Guaranty of Payment, dated December 9, 1988, of Triumph
in favor of the Hongkong and Shanghai Banking Corporation *
J. Stock Purchase Agreement, dated as of April 25, 1995,
between Maidenform Worldwide, Inc., and Triumph, Guenther
Spiesshofer and Frank Magrone 18 1
*Previously filed and incorporated herein by
reference.
TRIUMPH INTERNATIONAL OVERSEAS LTD.
MINUTES OF A MEETING OF DIRECTORS OF THE
COMPANY HELD AT Marsstrasse 40, 8000
Munich 2, West Germany ON THE 11th DAY OF
JANUARY, 1989.
Present: Mr. Guenther Spiesshofer
Mr. Wolfgang Spiesshofer
Mr. Dieter Braun
Mr. Dr. Michael Braun
Mr. Manfred Beck
1. Mr. Guenther Spiesshofer took the
chair for the Meeting.
2. The following resolution was
unanimously adopted:
RESOLVED, that Barry
A. Adelman, 30 Rockefeller
Plaza, 29th Floor, New York,
New York 10112, be and he
hereby is authorized for and on
behalf of TRIUMPH INTERNATIONAL
OVERSEAS LTD. (the
"Corporation"), to enter
into any bond, share and
commodity transactions
relating to NCC Industries,
Inc., and to do and perform
any and all necessary acts
relating to such
transactions, including the
filing of any and all
documents required pursuant
to Federal or
state securities laws
concerning the Corporation's
ownership of such
securities.
3. This concluded the business of the
Meeting.
/s/ GUENTHER SPIESSHOFER
Name: Guenther Spiesshofer
Title: President
/s/ MANFRED BECK
Name: Manfred Beck
Title: Director
Know All Men by These Agreements, which are
intended to constitute a GENERAL POWER OF
ATTORNEY pursuant to Article 5, Title 15 of the
New York General Obligations Law:
That I (insert name and address of the principal)
do hereby appoint BARRY A. ADELMAN, 30
Rockefeller Plaza - 29th Floor, New York, New
York 10112
(insert name and address of the agent, of each agent,
if more than one is designated) my attorney(s)-in-fact TO ACT
(a) If more than one agent is designated
and the principal wishes each agent alone to
be able to exercise the power conferred,
insert in this blank the word "severally".
Failure to make any insertion or the insertion
of the word "jointly" will require the agents to
act jointly.
In my name, place and stead in any way which
I myself could do, if I were personally
present, with respect to the following matters
as each of them is defined in Title 15 of
Article 5 of the New York General Obligations
Law to the extent that I am permitted by law to
act through an agent:
[Strike out and initial in the opposite box
any one or more of the subdivisions as to which
the principal does NOT desire to give the agent
authority. Such elimination of any one or more
of
subdivisions (A) to (L), inclusive, shall
automatically constitute as elimination also of
subdivision (M).
To strike out
any subdivision the principal must draw a line through the
text of that subdivision AND write his initials in the box opposite.
(A) real estate transactions; [ /s/GS ]
(B) chattel and goods transactions; [ /s/GS ]
(C) bond, share and commodity transactions
relating to NCC Industries, Inc. including
the filing of any documents required
pursuant to Federal or state securities
laws concerning my ownership of such
securities and the ownership of such
securities by Triumph International
Overseas Ltd., a company of which I am
President;[ ]
(D) banking transactions;
[ /s/GS ]
(E) business operating transactions;
[ /s/GS ]
(F) insurance transactions;
[ /s/GS ]
(G) estate transactions;
[ /s/GS ]
(H) claims and litigation;
[ /s/GS ]
(I) personal relationships and affairs;
[/s/GS ]
(J) benefits from military services;
[ /s/GS ]
(K) records, reports and statements;
[ /s/GS ]
(L) full and unqualified authority to my
attorney(s)-in-fact to delegate any or all
of the foregoing powers to any
person or persons whom my attorney(s)-
infact shall select;
[ /s/GS ]
(M) all other matters;
[/s/GS ]
This power of attorney shall not be affected
by the subsequent disability or incompetence of
the principal.
To induce any third party to act hereunder, I
hereby agree that any third party receiving a
duly executed copy or facsimile of this
instrument may act hereunder and that revocation
or termination hereof shall be ineffective as to
such third party unless and until actual notice
or knowledge of such revocation or termination
shall have been received by such third party,
and I for myself and for my heirs,
executors, legal representatives and assigns,
hereby agree to indemnify and hold harmless any
such third party from and against any and all
claims that may arise against such third party by
reason of such third party having relied on the
provisions of this instrument.
IN WITNESS WHEREOF, I have hereunto signed my
name and affixed my seal this ____ day of 1/21
, 1989.
/s/ GUENTHER SPIESSHOFER (Seal)
(Signature of Principal)
STATE OF COUNTY OF
ss:
On the day of 19
before me personally came
to me known, and known to me to be the individual
described in, and who executed the foregoing
instrument, and he acknowledged to me that he
executed the
same.
