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EXHIBIT 2
CONFORMED COPY
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT dated as of May 12, 1999 between Xxxxxx
Industries, Inc., a Delaware corporation (the "COMPANY"), and Xxxxxxx Electric
Co., a Missouri corporation (the "PURCHASER").
W I T N E S S E T H :
WHEREAS, the Company, EMERSUB LXXIV, Inc., a Delaware corporation and
a wholly owned subsidiary of the Purchaser ("SUB"), and the Purchaser are
simultaneously with the execution and delivery of this Agreement entering into
a Merger Agreement (the "MERGER AGREEMENT") pursuant to which (i) the Purchaser
has agreed, upon the terms and subject to the conditions stated therein, to
make a tender offer (the "OFFER") for shares of the common stock of the Company
at a price per share in cash of $21.25 and (ii) the Company will, upon the
terms and subject to the conditions stated therein, merge with Sub; and
WHEREAS, in order to induce the Purchaser and Sub to enter into the
Merger Agreement, the Company has agreed to grant to the Purchaser the Company
Stock Option (as hereinafter defined), upon the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and in the Merger Agreement, and for other good and
valuable consideration, the adequacy of which is hereby acknowledged, the
parties hereto agree as follows:
1. Grant of Company Stock Option. The Company hereby grants to the
Purchaser an irrevocable option (the "COMPANY STOCK OPTION") to purchase for
$21.25 per share in cash (the "OPTION PRICE") up to 3,877,035 shares (the
shares purchased hereunder being referred to herein as the "SHARES") of its
Common Stock, $1.25 par value per share (the "COMMON STOCK"); provided,
however, that in no event shall the number of shares of Common Stock for which
this Company Stock Option is exercisable exceed 19.9% of the Company's issued
and outstanding shares of Common Stock without giving effect to any shares
subject to or issued pursuant to the Company Stock Option. The number of shares
of Common Stock that may be received upon the exercise of the Company Stock
Option and the Option Price are subject to adjustment as herein set forth.
2. Exercise of Stock Option. (a) The Purchaser may exercise the
Company Stock Option, in whole or in part, at any time or from time to time,
following (but not prior to) the occurrence of one of the events set forth in
Section
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3(c) hereof, and prior to the termination of the Company Stock Option in
accordance with the terms of this Agreement.
(b) In the event the Purchaser wishes to exercise the Company Stock
Option, the Purchaser shall send a written notice to the Company (the "STOCK
EXERCISE NOTICE") specifying a date, which shall not be later than 10 business
days and not earlier than three business days following the date such notice is
given, for the closing of such purchase. Such notice shall specify the number
of Shares to be purchased and a place for the closing of the purchase.
(c) At any time the Company Stock Option is then exercisable pursuant
to the terms of Section 2(a) hereof, the Purchaser may elect, in lieu of
exercising the Company Stock Option to purchase Shares as provided in Section
2(a) hereof, to send a written notice to the Company (the "CASH EXERCISE
NOTICE") specifying a date, not later than 10 business days and not earlier
than 3 business days following the date such notice is given, on which date the
Company shall pay to the Purchaser an amount in cash equal to the Spread (as
hereinafter defined) multiplied by all or such portion of the Shares subject to
the Company Stock Option as Purchaser shall specify. As used herein "SPREAD"
shall mean the excess, if any, over the Option Price of the higher of (x) if
applicable, the highest price per share of Common Stock (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid or
proposed to be paid by any person pursuant to any takeover proposal (as defined
in the Merger Agreement) (the "ALTERNATIVE PURCHASE PRICE") or (y) the closing
price of the shares of Common Stock on the NYSE Composite Tape on the last
trading day immediately prior to the date of the Cash Exercise Notice (the
"CLOSING PRICE"). If the Alternative Purchase Price includes any property other
than cash, the Alternative Purchase Price shall be the sum of (i) the fixed
cash amount, if any, included in the Alternative Purchase Price plus (ii) the
fair market value of such other property. If such other property consists of
securities with an existing public trading market, the average of the closing
prices (or the average of the closing bid and asked prices if closing prices
are unavailable) for such securities in their principal public trading market
on the five trading days ending five days prior to the date of the Cash
Exercise Notice shall be deemed to equal the fair market value of such
property. If such other property consists of something other than cash or
securities with an existing public trading market and, as of the payment date
for the Spread, agreement on the value of such other property has not been
reached, the Alternative Purchase Price shall be deemed to equal the Closing
Price. Upon exercise of its right to receive cash pursuant to this Section
2(c), the obligations of the Company to deliver Shares pursuant to Section 3
shall be terminated with respect to such number of Shares for which the
Purchaser shall have elected to be paid the Spread.
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(d) In the event of any change in the number of issued and outstanding
shares of Common Stock by reason of any stock dividend, stock split,
recapitalization, merger or other change in the corporate or capital structure
of the Company, the number of Shares subject to the Company Stock Option and
the Option Price shall be appropriately adjusted to restore the Purchaser to
its rights hereunder, including its right to purchase Shares representing 19.9%
of the capital stock of the Company entitled to vote generally for the election
of the directors of the Company which are issued and outstanding immediately
prior to the exercise of the Company Stock Option.
(e) If the Company shall merge or consolidate with or into any other
entity, thereafter upon the exercise of the Company Stock Option, for each
Share in respect of which the Company Stock Option is thereafter exercised, the
Purchaser shall be entitled to receive the kind and amount of consideration per
share it would have received in such merger or consolidation had the Company
Stock Option been exercised immediately prior to such merger or consolidation.
3. Conditions to Delivery of Shares. The Company's obligation to
deliver Shares upon exercise of the Company Stock Option is subject only to the
conditions that:
(a) No preliminary or permanent injunction or other order, decree or
ruling issued by any federal or state court of competent jurisdiction in the
United States prohibiting the sale or delivery of the Shares shall be in
effect;
(b) Any applicable waiting periods under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 0000 (xxx "XXX XXX") shall have expired or been
terminated and any applicable filings or approvals under foreign antitrust laws
shall have been made or obtained and any related waiting periods shall have
expired; and
(c) (i) any person (other than Purchaser or any of its subsidiaries)
shall have acquired beneficial ownership (as such term is defined in Rule 13d-3
under the Exchange Act) or the right to acquire beneficial ownership of, or any
"GROUP" (as such term is defined under the Exchange Act) shall have been formed
which beneficially owns or has the right to acquire beneficial ownership of,
shares of Common Stock aggregating 25 percent or more of the then outstanding
Common Stock; (ii) in the event (A) at any time during the pendency of the
Offer, a takeover proposal (as defined in the Merger Agreement) shall have been
made to the Company or any of its subsidiaries or any of its stockholders or
any person shall have publicly announced an intention to make a takeover
proposal with respect to the Company or any of its subsidiaries, (B) the Offer
shall have terminated or expired without the Minimum Tender Condition (as
defined in the
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Merger Agreement) being satisfied and (C) within one year after the Offer shall
have terminated or expired, either (x) the Company enters into an agreement
(which is subsequently consummated, whether before or after the expiration of
such one-year period) with any person, other than Purchaser or Sub, with
respect to a takeover proposal which provides for (1) transfer or issuance of
securities representing more than 50% of the equity or voting interests in the
Company, or (2) transfer of assets, securities or ownership interests
representing more than 50% of the consolidated assets or earning power of the
Company, or (y) any person acquires a majority of the Shares; (iii) the
Purchaser or the Company shall have terminated (or shall have the right to
terminate) the Merger Agreement pursuant to Section 7.1(c) or (d) or Section
8.2(f) or (g) of the Merger Agreement; or (iv) the Company shall have delivered
to Purchaser the written notification pursuant to Section 8.2(e)(i) of the
Merger Agreement and Purchaser shall have notified the Company in writing that
Purchaser does not intend to match the superior proposal (as defined in the
Merger Agreement) referred to in such notification. As used in this Agreement,
"PERSON" shall have the meaning specified in Sections 3(a)(9) and 13(d)(3) of
the Exchange Act.
4. Closing. (a) Any closing hereunder shall take place on the date and
at the place specified by the Purchaser in its Stock Exercise Notice or Cash
Exercise Notice, as the case may be, or if the conditions set forth in Section
3(a) or (b) have not then been satisfied, on the second business day following
the satisfaction of such conditions, or at such other time and place as the
parties hereto may agree (the "CLOSING DATE"). On the Closing Date, (i) in the
event of a closing pursuant to Section 2(b) hereof, the Company shall deliver
to the Purchaser a certificate or certificates, representing the Shares in the
denominations designated by the Purchaser in its Stock Exercise Notice and the
Purchaser will purchase such Shares from the Company at the price per Share
equal to the Option Price or (ii) in the event of a closing pursuant to Section
2(c) hereof, the Company will deliver to the Purchaser cash in an amount
determined pursuant to Section 2(c) hereof. Any payment made by the Purchaser
to the Company, or by the Company to the Purchaser, pursuant to this Agreement
shall be made by certified, cashier's or bank check or, if mutually agreed, by
wire transfer of funds to an account designated by the party receiving such
funds.
(b) The certificates representing the Shares shall bear an appropriate
legend relating to the fact that such Shares have not been registered under the
Securities Act of 1933, as amended (the "SECURITIES ACT").
5. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Purchaser as follows:
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(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware. The execution,
delivery and performance by the Company of this Agreement and the consummation
of the transactions contemplated hereby (i) are within the Company's corporate
powers, (ii) have been duly authorized by all necessary corporate action, (iii)
require no action by or in respect of, or filing with, any governmental body,
agency or official, except for any filings required to be made under the HSR
Act and applicable foreign antitrust laws, (iv) do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the certificate of incorporation or by-laws of the Company or of any judgment,
injunction, order or decree binding upon the Company or any of its subsidiaries
and (v) will not require any consent, approval or notice under and will not
conflict with, or result in the breach or termination of any provision of or
constitute a default (with or without the giving of notice or the lapse of time
or both) under, or allow the acceleration of the performance of, any material
obligation of the Company or any of its subsidiaries under, or result in the
creation of a lien, charge or encumbrance upon, any of the properties, assets
or business of the Company or any of its subsidiaries under any indenture,
mortgage, deed of trust, lease, licensing agreement, contract, instrument or
other agreement to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries or any of their respective
assets or properties is subject or bound. This Agreement has been duly executed
and delivered by the Company and constitutes a valid and binding agreement of
the Company.
(b) Except for any filings required to be made under the HSR Act, the
Company has taken all necessary corporate and other action to authorize and
reserve and to permit it to issue, and at all times from the date hereof until
such time as the obligation to deliver Shares upon the exercise of the Company
Stock Option terminates, will have reserved for issuance, upon any exercise of
the Company Stock Option, the number of Shares subject to the Company Stock
Option (less the number of Shares previously issued upon any partial exercise
of the Company Stock Option or as to which the Company Stock Option may no
longer be exercised). All of the Shares to be issued pursuant to the Company
Stock Option are duly authorized and, upon issuance and delivery thereof
pursuant to this Agreement, will be duly authorized, validly issued, fully paid
and nonassessable, and free and clear of all claims, liens, charges,
encumbrances and security interests, and not subject to any preemptive rights.
(c) The Company has taken all action so that the entering into of this
Agreement, the acquisition of shares of Common Stock hereunder and the other
transactions contemplated hereby do not and will not result in the grant of any
rights to any person under the Company Rights Agreement (as defined in the
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Merger Agreement) or enable or require the Rights (as defined in the Merger
Agreement) to be exercised, distributed or triggered.
(d) The representations and warranties of the Company contained in the
Merger Agreement are true and correct.
6. Representations and Warranties of the Purchaser. The Purchaser
hereby represents and warrants to the Company as follows:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Missouri. The execution,
delivery and performance by the Purchaser of this Agreement are within the
Purchaser's corporate powers, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or filing with, any
governmental body, agency or official, except for any filings required to be
made under the HSR Act and applicable foreign antitrust laws, and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the certificate of incorporation or by-laws of the Purchaser
or of any agreement, judgment, injunction, order, decree or other instrument
binding upon the Purchaser. This Agreement has been duly executed and delivered
by the Purchaser and constitutes a valid and binding agreement of the
Purchaser.
(b) The Purchaser will acquire the Shares for investment purposes only
and not with a view to any distribution thereof, and will not sell any Shares
purchased pursuant to the Company Stock Option except in compliance with the
Securities Act.
(c) The representations and warranties of the Purchaser contained in
the Merger Agreement are true and correct.
7. Further Assurances; Remedies. (a) The Company agrees to execute and
deliver such other documents and instruments and take such further actions as
may be necessary or appropriate or as the Purchaser may reasonably request in
order to ensure that the Purchaser receives the full benefits of this
Agreement. Prior to the termination of the Company Stock Option, the Company
will refrain from taking any action which would have the effect of preventing
or disabling the Company from delivering the Shares to the Purchaser upon any
exercise of the Company Stock Option or from otherwise performing its
obligations under this Agreement.
(b) The parties agree that the Purchaser would be irreparably damaged
if for any reason the Company failed to issue any of the Shares upon exercise
of the Company Stock Option or to perform any of its other obligations under
this
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Agreement, and that the Purchaser would not have an adequate remedy at law for
money damages in such event. Accordingly, the Purchaser shall be entitled to
specific performance and injunctive and other equitable relief to enforce the
performance of this Agreement by the Company. This provision is without
prejudice to any other rights that the Purchaser may have against the Company
for any failure to perform its obligations under this Agreement.
8. HSR Filing; Listing of Shares; Notification of Record Dates. (a)
Promptly after the date hereof, and from time to time thereafter if necessary,
the Purchaser and the Company shall each file with the Federal Trade Commission
and the Antitrust Division of the United States Department of Justice all
required pre-merger notification and report forms and other documents and
exhibits required to be filed under the HSR Act and applicable foreign
antitrust laws, to permit the purchase of the Shares pursuant hereto.
(b) Subject to the rules and regulations of the New York Stock
Exchange, Inc. (the "NYSE"), after the Company Stock Option becomes exercisable
hereunder, the Company will promptly file an application to list the Shares on
the NYSE and will use its reasonable best efforts to obtain approval of such
listing; provided, however, that if the Company is unable to effect such
listing on the NYSE by the Closing Date, the Company will nevertheless be
obligated to deliver the Shares upon the Closing Date.
(c) The Company shall give the Purchaser at least ten days' prior
written notice before setting the record date for determining the holders of
record of shares of Common Stock entitled to notice of, or to vote on, any
matter, to receive any dividend or distribution or to participate in any rights
offering or other matter, or to receive any other benefit or right, with
respect to shares of Common Stock. Further, if the Company Stock Option is
exercisable and during such notice period Purchaser elects to exercise the
Company Stock Option, in whole or in part, the Company shall defer setting such
record date until after the Closing Date in respect of such exercise.
9. Sales of Shares. (a) At any time prior to the first anniversary of
the Closing Date with respect to the first Stock Exercise Notice, the Purchaser
shall have the right to sell (the "SALE RIGHT") to the Company all or any, of
the Shares acquired upon exercise of the Company Stock Option at the greater of
(i) the Option Price, or (ii) the average of the last sales prices for shares
of Common Stock on the five trading days ending five days prior to the date the
Purchaser gives written notice of its intention to exercise the Sale Right. If
the Purchaser does not exercise the Sale Right prior to such first anniversary,
the Sale Right terminates. In the event the Purchaser wishes to exercise the
Sale Right, the Purchaser shall send a written notice to the Company specifying
a date, not later
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than 10 business days and not earlier than 3 business days following the date
such notice is given, for the closing of such sale.
(b) If at any time after the first anniversary of the Closing Date
with respect to the first Stock Exercise Notice, neither the Purchaser nor any
other person or group shall have acquired more than 50% of the shares
(excluding any Shares owned by Purchaser and its affiliate) of outstanding
Common Stock, then the Company shall have the right to purchase all, but not
less than all, Shares then owned by the Purchaser and its subsidiaries for a
total cash price such that following such purchase the Purchaser's Total Profit
(as defined below) is the Maximum Total Profit.
10. Registration of the Shares. (a) If the Purchaser requests the
Company in writing to register under the Securities Act, any of the Shares
purchased by the Purchaser hereunder, the Company will use its best efforts to
cause the offering of the Shares so specified in such request to be registered
as soon as practicable so as to permit the sale or other distribution by the
Purchaser of the Shares specified in its request (and to keep such registration
in effect for a period of at least 90 days), and in connection therewith
prepare and file as promptly as reasonably possible (but in no event later than
60 days from receipt of the Purchaser's request) a registration statement under
the Securities Act to effect such registration on an appropriate form, which
would permit the sale of the Shares by the Purchaser in the manner specified by
the Purchaser in its request. The Company shall not be obligated to make
effective more than two registration statements pursuant to the foregoing
sentence.
(b) The Company shall notify the Purchaser in writing not less than
ten days prior to filing a registration statement under the Securities Act
(other than a filing on Form S-4 or S-8) with respect to any Common Stock of
the Company's intention so to file. If the Purchaser wishes to have any portion
of its Shares included in such registration statement, it shall advise the
Company in writing to that effect within five business days following receipt
of such notice, and the Company will thereupon include the number of Shares
indicated by the Purchaser under such Registration Statement.
(c) The Company shall pay all fees and expenses in connection with any
registration pursuant to this Section other than underwriting discounts and
commissions to brokers or dealers and shall indemnify the Purchaser, its
affiliates, its officers, directors, agents, other controlling persons and any
underwriters retained by the Purchaser in connection with such sale of such
Shares in the customary way, and agree to customary contribution provisions
with such persons, with respect to claims, damages, losses and liabilities (and
any expenses relating thereto) arising (or to which the Purchaser, its
affiliates, its officers, directors,
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agents, other controlling persons or underwriters may be subject) in connection
with any such offer or sale under the federal securities laws or otherwise,
except for information furnished in writing by the Purchaser or its
underwriters to the Company. The Purchaser and its underwriters, respectively,
shall indemnify the Company to the same extent with respect to information
furnished in writing to the Company by the Purchaser and such underwriters.
11. Termination. The right to exercise the Company Stock Option
granted pursuant to this Agreement shall terminate at the earliest of (i) the
Effective Time of the Merger (as defined in the Merger Agreement), (ii) if the
Company Stock Option is not exercised within one year after termination of the
Merger Agreement in accordance with its terms; provided that, if at the time
the Merger Agreement is terminated the conditions in Section 3(c)(ii)(A) and
(B) have been satisfied, the Company Stock Option shall not terminate until two
years after the termination of the Merger Agreement (the date referred to in
clause (ii) being hereinafter referred to as the "TERMINATION DATE"); provided
further that, if on the Termination Date the Company Stock Option cannot be
exercised or the Shares cannot be delivered to Purchaser upon such exercise
because the conditions set forth in Section 3(a) or (b) hereof have not yet
been satisfied, the date referred to in clause (ii) shall be extended until
thirty days after such impediment to exercise or delivery has been removed.
12. Profit Limitation. Notwithstanding any other provision of this
Agreement or the Merger Agreement, in no event shall the Purchaser's Total
Profit (as hereinafter defined) exceed $20,000,000 (the "MAXIMUM TOTAL PROFIT")
and, if it otherwise would exceed such amount, the Purchaser shall repay such
excess amount to the Company in cash (or the purchase price for purpose of
Section 9, as applicable, shall be reduced) so that Purchaser's Total Profit
shall not exceed the Maximum Total Profit after taking into account the
foregoing actions.
As used herein, the term "TOTAL PROFIT" shall mean the aggregate
amount (before taxes) of the following (i) (x) the amount of cash received by
Purchaser pursuant to Section 8.3(a) or (b) of the Merger Agreement and Section
2(c) hereof, less (y) any repayment of such cash to the Company, (ii)(x) the
amount received by Purchaser pursuant to the Company's repurchase of Shares
pursuant to Section 9 hereof, less (y) the Purchaser's purchase price for such
Shares, and (iii) (x) the net cash amounts received by Purchaser pursuant to
the sale of Shares (or any other securities into or for which such Shares are
converted or exchanged) to any unaffiliated party on arms-length terms, less
(y) the Purchaser's purchase price for such Shares.
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13. Expenses. Each party hereto shall pay its own expenses incurred in
connection with this Agreement, except as otherwise specifically provided
herein or in the Merger Agreement.
14. Entire Agreement. This Agreement, together with the Merger
Agreement and the other documents referred to therein, contains the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements and understandings,
oral or written, with respect to such transactions.
15. Miscellaneous. (a) Amendments. This Agreement may not be modified,
amended, altered or supplemented, except upon the execution and delivery of a
written agreement executed by the parties hereto.
(b) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by delivery in person or by
cable, telegram or telex (with copies by registered or certified mail, postage
prepaid, return receipt requested), to the respective parties as follows:
To the Company:
Xxxxxx Industries, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
Attention: X. X. Xxxxxxxx
Chairman, President and Chief Executive Officer
with a copy to:
Xxxxxx Industries, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
Attention: Xxxxx-Xxx Xxxxxx, Esq.
General Counsel
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with a copy to:
Fulbright & Xxxxxxxx L.L.P.
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
Attention: Xxxxxxx X. Still, Esq.
To the Purchaser:
Xxxxxxx Electric Co.
0000 Xxxx Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
Attention: Xxxxxx X. Xxx, Xx.
Senior Vice President - Acquisitions and Development
with a copy to:
Xxxxxxx Electric Co.
0000 Xxxx Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
Attention: W. Xxxxx Xxxxxxx
Senior Vice President, General Counsel and Secretary
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with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
(c) Severability. If any term, provision, covenant or restriction of
this Agreement is held to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated.
(d) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without regard to the
conflicts of law rules of such state.
(e) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
(f) Headings. The section headings herein are for convenience only and
shall not affect the construction hereof.
(g) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the parties named herein and their respective successors
and assigns; provided, however, that such successors in interest or assigns
shall agree to be bound by the provisions of this Agreement; provided further
that no such assignment shall relieve the assignor of its obligations
hereunder. Nothing in this Agreement, express or implied, is intended to confer
upon any person other than the Company or the Purchaser, or their successors or
assigns, any rights or remedies under or by reason of this Agreement.
(h) Survival. All representations, warranties and covenants contained
herein shall survive the execution and delivery of this Agreement and the
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consummation of the transactions contemplated hereby, except as otherwise
provided herein.
(i) Time of the Essence. The parties agree that time shall be of the
essence in the performance of obligations hereunder.
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IN WITNESS WHEREOF, the Company and the Purchaser have caused this
Agreement to be duly executed as of the day and year first above written.
XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
XXXXXXX ELECTRIC CO.
By: /s/ X. X. Xxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxx, Xx.
Title: Senior Vice President-
Acquisitions & Development
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