AS IF
DRAFTED JOINTLY BY THE PARTIES AND NO PRESUMPTION OR BURDEN OF PROOF SHALL ARISE
FAVORING OR DISFAVORING ANY PARTY BY VIRTUE OF THE AUTHORSHIP OF ANY PROVISIONS
OF THIS AGREEMENT.
(H)
THE WORD "WILL" SHALL BE CONSTRUED TO HAVE
THE SAME MEANING AND EFFECT AS THE WORD "SHALL."
(I)
THE DISCLOSURE SCHEDULE, AND ALL OTHER
SCHEDULES AND EXHIBITS ATTACHED HERETO OR REFERRED TO HEREIN ARE HEREBY
INCORPORATED IN AND MADE A PART OF THIS AGREEMENT AS IF SET FORTH IN FULL
HEREIN.
ANY CAPITALIZED TERMS USED IN THE DISCLOSURE SCHEDULE OR ANY OTHER
SCHEDULE OR ANY EXHIBIT BUT NOT OTHERWISE DEFINED THEREIN SHALL HAVE THE MEANING
DEFINED IN THIS AGREEMENT.
ARTICLE 2
PURCHASE AND SALE OF STOCK
2.1
SALE.
UPON THE TERMS AND SUBJECT TO THE
CONDITIONS OF THIS AGREEMENT, ON THE CLOSING DATE, SELLER SHALL SELL, ASSIGN,
TRANSFER AND DELIVER TO BUYER, AND BUYER SHALL PURCHASE AND ACCEPT FROM SELLER,
ALL OF THE ISSUED AND OUTSTANDING CAPITAL STOCK OF COMPANY, CONSISTING OF 1000
SHARES OF COMMON STOCK, PAR VALUE $1 PER SHARE (THE "SHARES"), FREE AND CLEAR OF
ALL ENCUMBRANCES.
2.2
PURCHASE PRICE; INITIAL PAYMENT.
(A)
THE PURCHASE PRICE (THE "PURCHASE PRICE")
TO BE PAID BY BUYER TO SELLER FOR THE SHARES SHALL BE ONE HUNDRED NINETY MILLION
DOLLARS ($190,000,000.00) (THE "BASE CONSIDERATION") PLUS THE ADJUSTMENT AMOUNT.
(B)
THE "ADJUSTMENT AMOUNT" (WHICH MAY BE A
POSITIVE OR NEGATIVE NUMBER) WILL BE EQUAL TO THE WORKING CAPITAL OF COMPANY AND
THE COMPANY SUBSIDIARIES AS DETERMINED FROM THE CLOSING WORKING CAPITAL
STATEMENT PREPARED IN ACCORDANCE WITH SECTION 2.3, MINUS NINETY SIX MILLION NINE
HUNDRED THOUSAND DOLLARS ($96,900,000.00).
(C)
AT CLOSING, BUYER WILL DELIVER TO SELLER,
AS AN INITIAL PAYMENT (THE "INITIAL PAYMENT") OF THE PURCHASE PRICE, AN AMOUNT
EQUAL TO (I) SELLER'S ESTIMATE OF THE ADJUSTMENT AMOUNT, ESTIMATED ON THE BASIS
OF THE INTERIM UNAUDITED BALANCE SHEET OF COMPANY AND COMPANY SUBSIDIARIES AS AT
THE END OF THE MOST RECENTLY ENDED MONTH FOR WHICH SUCH BALANCE SHEET IS
AVAILABLE AT CLOSING, ESTIMATED AS THOUGH THE END OF SUCH MONTH WERE THE CLOSING
DATE, PLUS (II) THE BASE CONSIDERATION.
11
2.3
CLOSING WORKING CAPITAL STATEMENT.
(A)
AS PROMPTLY AS PRACTICABLE FOLLOWING THE
CLOSING, BUT NOT LATER THAN 60 DAYS THEREAFTER, SELLER SHALL
(1)
PREPARE AND DELIVER TO BUYER A STATEMENT OF
THE CONSOLIDATED CURRENT ASSETS AND CURRENT LIABILITIES OF COMPANY AND THE
COMPANY SUBSIDIARIES AS OF THE CLOSE OF BUSINESS ON THE LAST BUSINESS DAY
IMMEDIATELY PRECEDING THE CLOSING DATE, INCLUDING A CALCULATION OF THE
ADJUSTMENT AMOUNT (THE "CLOSING WORKING CAPITAL STATEMENT"), WHICH SHALL BE
PREPARED IN ACCORDANCE WITH SCHEDULE 2.3 ATTACHED HERETO; AND
(2)
DELIVER TO BUYER A REPORT OF
PRICEWATERHOUSECOOPERS LLP OR ANOTHER NATIONALLY-RECOGNIZED INDEPENDENT PUBLIC
ACCOUNTING FIRM SELECTED BY SELLER ("SELLER'S ACCOUNTANTS") STATING THAT THE
CLOSING WORKING CAPITAL STATEMENT HAS BEEN PREPARED IN ACCORDANCE WITH
SCHEDULE 2.3.
(B)
BUYER MAY CAUSE ANOTHER INDEPENDENT PUBLIC
ACCOUNTING FIRM SELECTED BY BUYER ("BUYER'S ACCOUNTANTS"), TO CONDUCT A REVIEW
OF THE CLOSING WORKING CAPITAL STATEMENT.
REPRESENTATIVES OF BUYER AND BUYER'S