part3
There may be duplication here or something missing.
Edgar-online is having problems this morning.
I would give the URL but You would need a password
If anyone wants more I will try to accomodate them later....Whew
(ii) The Subsidiary does not have any material Liability
under any Environmental Law.
(z) Target Operations. The Target has no material business or
operations, except for its ownership of the stock of the Subsidiary and
maintenance of a stock option plan for the benefit of officers, directors and
employees of the Subsidiary.
(aa) Disclosure. The representations and warranties contained in this
Section 4 do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Section 4 not misleading.
5. Pre-Closing Covenants. The Parties agree as follows with respect to
the period between the execution of this Agreement and the Closing.
(a) General. Each of the Parties will use its best efforts to take all
action and to do all things necessary, proper, or advisable in order to
consummate and make effective the transactions contemplated by this Agreement
(including satisfaction, but not waiver, of the closing conditions set forth in
Section 7 below).
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(b) Notices and Consents. The Seller will cause the Subsidiary to give
any notices to third parties, and will cause the Subsidiary to use its best
efforts to obtain any third party consents, that the Buyer reasonably may
request in connection with the matters referred to in Section 4(c) above. Each
of the Parties will (and the Seller will cause the Subsidiary to) give any
notices to, make any filings with, and use its best efforts to obtain any
authorizations, consents, and approvals of governments and governmental agencies
in connection with the matters referred to in Sections 3(a)(ii), 3(b)(ii), and
4(c) above. Without limiting the generality of the foregoing, each of the
Parties will file any Notification and Report Forms and related material that he
or it may be required to file with the Federal Trade Commission and the
Antitrust Division of the United States Department of Justice under the
Hart-Scott-Rodino Act no later than five business days after the date hereof,
will use its best efforts to obtain an early termination of the applicable
waiting period, and will make any further filings pursuant thereto that may be
necessary, proper, or advisable in connection therewith.
(c) Operation of Business. The Seller will not cause or permit the
Subsidiary to engage in any practice or take any action outside the Ordinary
Course of Business of the Subsidiary or which results in a material adverse
change in the business, financial condition, operations or results of operations
of the Subsidiary, except for actions to which Buyer has given its prior
consent.
(d) Preservation of Business. The Seller will cause the Subsidiary to
keep its business and properties substantially intact, including its present
operations, physical facilities, working conditions, and relationships with
lessors, licensors, suppliers, customers, and employees.
(e) Full Access. The Seller will permit, and the Seller will cause the
Subsidiary to permit, representatives of the Buyer to have full access at all
reasonable times, and in a manner so as not to interfere with the normal
business operations of the Subsidiary, to all premises, properties, personnel,
books, records (including Tax records), contracts, and documents of or
pertaining to the Subsidiary; provided, however, that the Seller and the
Subsidiary shall not be required to allow Buyer access to competitively
sensitive information, such as that relating to prices or customers.
(f) Notice of Developments. The Seller will give prompt written notice
to the Buyer of any material adverse development causing a breach of any of the
representations and warranties in Section 4 above. Each Party will give prompt
written notice to the others of any material adverse development causing a
breach of any of its own representations and warranties in Section 3 above.
(g) Exclusivity. Seller will not (and Seller will not cause or permit
the Subsidiary or the Target to) solicit, initiate, or encourage the submission
of any proposal or offer from any other Person relating to the acquisition of
any capital stock or other voting securities, or any substantial portion of the
assets, of the Subsidiary (including any acquisition structured as a merger,
consolidation or share exchange).
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6. Post-Closing Covenants. The Parties agree as follows with respect to
the period following the Closing.
(a) General. In case at any time after the Closing any further action
is necessary or desirable to carry out the purposes of this Agreement, each of
the Parties will take such further action (including the execution and delivery
of such further instruments and documents) as any other Party reasonably may
request, all at the sole cost and expense of the requesting Party (unless the
requesting Party is entitled to indemnification therefor under Section 8 below).
The Seller acknowledges and agrees that from and after the Closing the Buyer
will be entitled to possession of all documents, books, records (including Tax
records), agreements, and financial data of any sort relating to the Subsidiary.
(b) Litigation Support. In the event and for so long as any Party
actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection with
(i) any transaction contemplated under this Agreement or (ii) any fact,
situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or transaction on or prior
to the Closing Date involving the Subsidiary, each of the other Parties will
cooperate with him or it and its counsel in the contest or defense, make
available their personnel, and provide such testimony and access to their books
and records as shall be necessary in connection with the contest or defense, all
at the sole cost and expense of the contesting or defending Party (unless the
contesting or defending Party is entitled to indemnification therefor under
Section 8 below).
(c) Transition. The Seller will not take any action that is designed or
intended to have the effect of discouraging any lessor, licensor, customer,
supplier, or other business associate of the Subsidiary from maintaining the
same business relationships with the Subsidiary after the Closing as it
maintained with the Subsidiary prior to the Closing. the Seller will refer all
customer inquiries relating to the business of the Subsidiary to the Buyer from
and after the Closing.
(d) Confidentiality. The Seller will treat and hold as such all of the
Confidential Information, refrain from using any of the Confidential Information
except in connection with this Agreement, and deliver promptly to the Buyer or
destroy, at the request and option of the Buyer, all tangible embodiments (and
all copies) of the Confidential Information which are in its possession. In the
event that any of the Seller is requested or required (by oral question or
request for information or documents in any legal proceeding, interrogatory,
subpoena, civil investigative demand, or similar process) to disclose any
Confidential Information, that Seller will notify the Buyer promptly of the
request or requirement so that the Buyer may seek an appropriate protective
order or waive compliance with the provisions of this Section 6(d). If, in the
absence of a protective order or the receipt of a waiver hereunder, the Seller
is, on the advice of counsel, compelled to disclose any Confidential Information
to any tribunal or else stand liable for contempt, that Seller may disclose the
Confidential Information to the tribunal; provided, however, that the Seller
shall use its best efforts to obtain, at the reasonable request of the Buyer, an
order or other assurance that confidential treatment will be accorded to such
portion of the Confidential Information required to be disclosed as the Buyer
shall designate. The foregoing provisions shall
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not apply to any Confidential Information which is generally available to the
public immediately prior to the time of disclosure (other than as a result of a
disclosure directly or indirectly by Seller or its agents or representatives in
violation of this Section 6(d)).
(e) Covenant Not to Compete. For a period of three years from and after
the Closing Date, the Seller will not engage directly or indirectly in any
business that the Subsidiary conducts as of the Closing Date in any geographic
area in which the Subsidiary conducts that business as of the Closing Date;
provided, however, that no owner of less than 10% of the outstanding stock of
any publicly-traded corporation shall be deemed to engage in such business by
virtue of such stock ownership. If the final judgment of a court of competent
jurisdiction declares that any term or provision of this Section 6(e) is invalid
or unenforceable, the Parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provisions, and this Agreement
shall be enforceable as so modified after the expiration of the time within
which the judgment may be appealed.
(f) Name Change. Seller will, within 30 days after the Closing Date,
change the name of the Target to a name which does not include the word
"Whittaker."
(g) Delivery of Audited Financial Statements. As soon as reasonably
practical following the Closing and in any event within 60 days thereafter,
Seller shall deliver to Buyer the balance sheets and statements of operations,
changes in stockholders' equity, and cash flow covering the periods either (i)
(A) for the fiscal year ended October 31, 1997, (B) for the period from April
10, 1996 to October 31, 1996, (C) for the period from January 1, 1996 through
April 9, 1996, and (D) from January 1, 1995 through December 31, 1995, or (ii)
(A) for the period from April 1, 1996 to December 31, 1996, and (B) for the
period from January 1, 1997 to December 31, 1997, in either case prepared in
accordance with Regulation S-X promulgated by the Securities and Exchange
Commission ("S-X"), audited by a nationally recognized accounting firm, and
together with a manually signed accountant's report thereon that complies with
Rule 2-02 of S-X. If Seller delivers such audited financial statements to Buyer
within 60 days of the Closing Date, Buyer shall deliver to Seller a warrant to
purchase 78,598 shares of the Buyer's common stock exercisable from the date of
delivery of such financial statements to the third anniversary of the Closing
Date, pursuant to the Warrant Agreement attached as Exhibit A hereto.
(h) Auditors' Consents. Each of the parties shall use its best efforts
to obtain consents of the accounting firm performing such audits to the use of
the accountant's reports described in Section 6(g) above in any registration
statement of Buyer within three business days of any request for such a consent;
provided that Buyer shall have the sole responsibility for payment of any fees
in connection with such consents.
(i) Rights Against Raytheon. Seller and Buyer acknowledge that Seller
acquired the capital stock of Subsidiary from Raytheon Company ("Raytheon")
pursuant to that certain Stock
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Purchase Agreement, dated as of March 2, 1996 between Raytheon and Seller (the
"Acquisition Agreement") under which Raytheon made certain representations,
warranties and agreements (collectively the "Raytheon Obligations") to Seller
relative to Subsidiary and that the Raytheon Obligations may overlap or cover
matters in addition to the representations, warranties and agreements of Seller
to Buyer under this Agreement. Seller agrees to use its best efforts to obtain
the consent of Raytheon to its assignment of the Raytheon obligations to Buyer
and upon obtaining such consent, shall assign the Raytheon Obligations to Buyer.
In the event that Seller is unable to obtain Raytheon's consent to such
assignment and a matter or event occurs or a liability is discovered for which
Seller could pursue a claim or action under the Raytheon Obligations or for
indemnity, Seller agrees to cooperate with Buyer and at Buyer's request to
diligently prosecute such claim or action in Seller's name on behalf and for the
benefit of Buyer. Any such claim or action shall be prosecuted at Buyer's sole
cost and expense using counsel of Buyer's choice and any recovery obtained shall
be allocated between Buyer and Seller in accordance with each Party's claim.
Nothing herein shall preclude Seller from bringing an action against Raytheon on
its own behalf and at its own expense.
7. Conditions to Obligation to Close.
(a) Conditions to Obligation of the Buyer. The obligation of the Buyer
to consummate the transactions to be performed by it in connection with the
Closing is subject to satisfaction of the following conditions:
(i) (A) the representations and warranties set forth in
Sections 2(e), 3(a)(i), 3(a)(iii)(A), 3(a)(v), 4(b) and 5(c) (except
as the Disclosure Schedule sets forth exceptions to such Sections)
above shall be true and correct in all material respects as of the
Closing Date, (B) the Seller shall have full corporate power and
authority to execute and deliver this Agreement and perform its
obligations hereunder, (C) neither the execution and the delivery of
this Agreement nor the consummation of the transactions contemplated
hereby will violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge or other
restriction of any government, governmental agency or court to which
any of the Seller, the Target or the Subsidiary is a party or any
provision of their respective charters or bylaws, and (D) each of the
Target and the Subsidiary is a corporation duly organized, validly
existing, and in good standing under the laws of its jurisdiction of
incorporation;
(ii) all applicable waiting periods (and any extensions
thereof) under the Hart-Scott-Rodino Act shall have expired or
otherwise been terminated; and
(iii) the Buyer shall have received the resignations,
effective as of the Closing, of each director on the board of
directors of the Target.
The Buyer may waive any condition specified in this Section 7(a) if it executes
a writing so stating at or prior to the Closing.
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(b) Conditions to Obligation of the Seller. The obligation of the
Seller to consummate the transactions to be performed by them in connection with
the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section
3(b) above shall be true and correct in all material respects as of
the Closing Date; and
(ii) all applicable waiting periods (and any extensions
thereof) under the Hart-Scott-Rodino Act shall have expired or
otherwise been terminated.
The Seller may waive any condition specified in this Section 7(b) if it executes
a writing so stating at or prior to the Closing.
8. Remedies for Breaches of This Agreement.
(a) Survival of Representations and Warranties. All of the
representations and warranties of the Seller contained in Section 4 above, other
than the representations contained in Sections 4(j) and 4(y), shall survive the
Closing hereunder (even if the Buyer knew or had reason to know of any
misrepresentation or breach of warranty at the time of Closing) and continue in
full force and effect for a period of two years thereafter; provided, however,
that the representations and warranties contained in Sections 4(j) and 4(y)
above relating to Tax Matters and Environmental, Health, and Safety Laws,
respectively, shall survive the Closing hereunder (even if the Buyer knew or had
reason to know of any misrepresentation or breach of warranty at the time of
Closing) and continue in full force and effect for the relevant statute of
limitations periods; provided further, that the representations and warranties
contained in Section 4(l)(v) shall not survive the Closing. All of the other
representations and warranties of the Parties contained in this Agreement
(including the representations and warranties of the Parties contained in
Section 3 above) shall survive the Closing (even if the damaged Party knew or
had reason to know of any misrepresentation or breach of warranty at the time of
Closing) and continue in full force and effect for two years thereafter (subject
to any applicable statutes of limitations).
(b) Indemnification Provisions for Benefit of the Buyer.
(i) In the event the Seller breaches any of its
representations, warranties, and covenants contained herein (other
than the covenants in Section 2(a) above and the representations and
warranties in Section 3(a) above), and, if there is an applicable
survival period pursuant to Section 8(a) above, provided that the
Buyer makes a written claim for indemnification against the Seller
pursuant to Section 11(g) below within such survival period, then the
Seller agrees to indemnify the Buyer from and against the entirety of
any Adverse Consequences the Buyer may suffer through and after the
date of the claim for indemnification (including any Adverse
Consequences the Buyer may suffer after the end of any applicable
survival period) resulting from, arising out of, relating to, in the
nature of, or caused by the breach; provided, however, that the Seller
shall not have any obligation to indemnify the Buyer from and against
any Adverse Consequences resulting from, arising out of, relating to,
in the nature of, or caused by the breach of any
26
representation or warranty of the Seller contained in Section 4 above
until the Buyer has suffered Adverse Consequences by reason of all
such breaches in excess of a $500,000 aggregate threshold (at which
point the Seller will be obligated to indemnify the Buyer from and
against all such Adverse Consequences relating back to the first
dollar).
(ii) In the event Seller breaches any of its covenants in
Section 2(a) above or any of its representations and warranties in
Section 3(a) above, and, if there is an applicable survival period
pursuant to Section 8(a) above, provided that the Buyer makes a
written claim for indemnification against the Seller pursuant to
Section 11(g) below within such survival period, then the Seller
agrees to indemnify the Buyer from and against the entirety of any
Adverse Consequences the Buyer may suffer through and after the date
of the claim for indemnification (including any Adverse Consequences
the Buyer may suffer after the end of any applicable survival period)
resulting from, arising out of, relating to, in the nature of, or
caused by the breach.
(c) Indemnification Provisions for Benefit of the Seller. In the event
the Buyer breaches any of its representations, warranties, and covenants
contained herein, and, if there is an applicable survival period pursuant to
Section 8(a) above, provided that any of the Seller makes a written claim for
indemnification against the Buyer pursuant to Section 11(g) below within such
survival period, then the Buyer agrees to indemnify the Seller from and against
the entirety of any Adverse Consequences the Seller may suffer through and after
the date of the claim for indemnification (including any Adverse Consequences
the Seller may suffer after the end of any applicable survival period) resulting
from, arising out of, relating to, in the nature of, or caused by the breach.
(d) Matters Involving Third Parties. |
