---

Exhibit 2.1

 

AGREEMENT AND PLAN OF MERGER

dated as of

August 5, 2015

among

TECUMSEH PRODUCTS COMPANY,

MA INDUSTRIAL JV LLC

and

MA INDUSTRIAL SUB INC.

 

TABLE OF CONTENTS

 

		Page
	ARTICLE I.
THE OFFER		2
Section 1.01	The Offer.	2
Section 1.02	Company Action.	4
Section 1.03	Directors.	5
Section 1.04	Top-Up Option	7
	ARTICLE II.
THE MERGER		8
Section 2.01	The Merger.	8
Section 2.02	Conversion of Shares.	9
Section 2.03	Surrender and Payment.	10
Section 2.04	Treatment of Equity Awards.	11
Section 2.05	Compensation Arrangements.	13
Section 2.06	Adjustments.	13
Section 2.07	Withholding Rights.	13
Section 2.08	Lost Certificates.	13
	ARTICLE III.
THE SURVIVING CORPORATION		14
Section 3.01	Articles of Incorporation.	14
Section 3.02	Bylaws.	14
Section 3.03	Directors and Officers.	14
	ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY		14
Section 4.01	Corporate Existence and Power.	14
Section 4.02	Corporate Authorization.	15
Section 4.03	Governmental Authorization.	15
Section 4.04	Non-contravention.	16
Section 4.05	Capitalization.	16
Section 4.06	Subsidiaries.	17
Section 4.07	Absence of Certain Changes.	18
Section 4.08	SEC Filings; Financial Statements.	18
Section 4.09	No Undisclosed Liabilities.	20
Section 4.10	Litigation.	20
Section 4.11	Compliance with Law.	21
Section 4.12	Contracts.	23
Section 4.13	Property.	25
Section 4.14	Title to Assets.	26

 

Section 4.15	Taxes.	26
Section 4.16	Intellectual Property.	27
Section 4.17	Environmental Matters.	28
Section 4.18	Labor Matters.	29
Section 4.19	Employee Benefits.	30
Section 4.20	Finders’ Fees.	32
Section 4.21	Opinion of Financial Advisor.	32
Section 4.22	Anti-takeover Statutes.	32
Section 4.23	Disclosure Documents.	32
Section 4.24	Interested Party Transactions.	33
Section 4.25	Insurance.	33
Section 4.26	Customers and Suppliers.	33
Section 4.27	No Other Representations.	34
	ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF PARENT		34
Section 5.01	Existence and Power; Shares.	34
Section 5.02	Authorization.	35
Section 5.03	Governmental Authorization.	35
Section 5.04	Non-contravention.	35
Section 5.05	Disclosure Documents.	36
Section 5.06	Finders’ Fees.	36
Section 5.07	Available Funds.	36
Section 5.08	Operations of Sub.	37
Section 5.09	Ownership of Shares.	37
Section 5.10	Litigation.	37
Section 5.11	Organizational Documents.	38
Section 5.12	Guarantees.	38
Section 5.13	No Additional Representations.	38
	ARTICLE VI.
COVENANTS OF THE COMPANY		38
Section 6.01	Conduct of the Company.	38
Section 6.02	Shareholder Meeting; Proxy Material.	41
Section 6.03	Access to Information.	42
Section 6.04	Go Shop; No Solicitation; Change of Recommendation.	43
	ARTICLE VII.
COVENANTS OF PARENT		48
Section 7.01	Obligations of Sub.	48
Section 7.02	Voting of Shares.	49
Section 7.03	Director and Officer Liability.	49
Section 7.04	Employee Matters.	51

 

	ARTICLE VIII.
COVENANTS OF PARENT AND THE COMPANY		52
Section 8.01	Commercially Reasonable Efforts.	52
Section 8.02	Cooperation.	53
Section 8.03	Public Announcements.	53
Section 8.04	Further Assurances.	54
Section 8.05	Merger Without Meeting of Shareholders.	54
Section 8.06	Section 16 Matters.	54
Section 8.07	Notices of Certain Events.	54
Section 8.08	Takeover Statutes.	55
Section 8.09	Litigation.	55
Section 8.10	Transfer Taxes.	55
Section 8.11	Nasdaq; Post-Closing SEC Reports.	55
Section 8.12	Financing.	56
Section 8.13	Financing Cooperation.	56
	ARTICLE IX.
CONDITIONS TO THE MERGER		57
Section 9.01	Conditions to the Obligations of Each Party.	57
Section 9.02	Frustration of Conditions.	57
	ARTICLE X.
TERMINATION		57
Section 10.01	Termination.	57
Section 10.02	Effect of Termination.	59
	ARTICLE XI.
MISCELLANEOUS		60
Section 11.01	Notices.	60
Section 11.02	No Survival of Representations and Warranties.	61
Section 11.03	Amendments and Waivers.	62
Section 11.04	Expenses.	62
Section 11.05	Binding Effect; Benefit; Assignment.	64
Section 11.06	Governing Law.	64
Section 11.07	Jurisdiction.	65
Section 11.08	WAIVER OF JURY TRIAL.	65
Section 11.09	Counterparts; Effectiveness.	65
Section 11.10	Entire Agreement.	66
Section 11.11	Severability.	66
Section 11.12	Joint and Several Liability.	66

 

	ARTICLE XII.
DEFINITIONS		66
Section 12.01	Definitions.	66
Section 12.02	Other Definitional and Interpretative Provisions.	75
Annex I		A-1

 

AGREEMENT AND PLAN OF MERGER

AGREEMENT AND PLAN OF MERGER (this “Agreement”) dated as of August 5, 2015, among Tecumseh Products Company, a Michigan corporation (the “Company”), MA Industrial JV LLC, a Delaware limited liability company (“Parent”), and MA Industrial Sub Inc., a Michigan corporation and a wholly-owned subsidiary of Parent (“Sub”).

WITNESSETH:

 

NOW, THEREFORE, the parties hereto agree as follows:

 

ARTICLE I.

THE OFFER

 

 

As promptly as practicable after the Offer Documents are filed with the SEC pursuant to the first sentence of Section 1.01(d) (but in no event later than the following Business Day after the Offer Documents are filed with the SEC), the Company shall file with the SEC and, to the extent required by applicable U.S. securities Laws, disseminate to holders of Shares a Solicitation/Recommendation Statement on Schedule 14D-9 (together with all exhibits, amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 6.04(d), shall reflect the Company Board Recommendation.  To the extent requested by the Company, Parent and Sub shall cause the Schedule 14D-9 to be mailed or otherwise disseminated to the holders of Shares together with the Offer Documents disseminated to the holders of Shares.  Each of the Company, Parent and Sub agrees promptly to correct or supplement any information provided by it or any of its Affiliates for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect.  The Company shall cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. securities Laws.  Parent, Sub and their counsel shall be given a reasonable opportunity to review and comment (i) on the Schedule 14D-9 each time before it is filed with the SEC after the date hereof, and the Company shall give reasonable and good faith consideration to all additions, deletions or changes thereto suggested by Parent and its legal counsel that the Company reasonably determines to be appropriate and (ii) on any correspondence with the SEC (including comment response letters) concerning the Schedule 14D-9, and the Company shall give reasonable good faith consideration in each response to those views and comments made by Parent, Sub and their counsel related thereto that the Company reasonably determines to be appropriate.  The Company shall provide Parent and Sub and their counsel with any written or oral comments the Company or its counsel may receive from the SEC with respect to the Schedule 14D-9 promptly after the receipt of such comments.  Parent and Sub shall promptly furnish to the Company all information concerning Parent, Sub and the Offer that may be required or reasonably requested in connection with any action contemplated by this Section 1.02.   The Company hereby consents to the inclusion in the Offer Documents of the Company Board Recommendation and the other approvals set forth in Section 4.02(b) of this Agreement.

 

 

 

At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Sub, the Company or the holders of securities of Parent, Sub or the Company:

 

 

 

 

Prior to the Acceptance Date, to the extent necessary, the Company (acting through the Compensation Committee of the Board of Directors) at a meeting held prior to the Acceptance Date will take all steps that may be necessary or reasonably advisable, including adopting resolutions, to cause any employee agreement, plan or arrangement within the meaning of Rule 14d-10(d)(1) pursuant to which consideration is payable to any officer, director or employee, the treatment of the Stock Options, SARs, Phantom Shares, RSUs or DSUs, as applicable, in accordance with the terms set forth in this Agreement, and the terms of Section 7.03 and 7.04, to be approved by the Compensation Committee of the Board of Directors (comprised solely of “independent directors” determined in accordance with the requirements of Rule 14d-10(d)(2) under the 1934 Act and the instructions thereto) as an “employment compensation, severance or other employee benefit arrangement” within the meaning of Rule 14d-10(d)(2) and to satisfy the requirements of the non-exclusive safe harbor set forth in Rule 14d-10(d).

If, during the period between the date of this Agreement and the Effective Time, the outstanding Shares shall be changed into a different number of shares or a different class (including by reason of any reclassification, recapitalization, stock split or combination, exchange or readjustment of Shares, or stock dividend thereon with a record date during such period), the cash payable pursuant to the Offer, the Merger Consideration and any other amounts payable pursuant to this Agreement shall be adjusted to provide holders of Shares the same economic effect as contemplated by this Agreement prior to such action.

Notwithstanding anything else contained herein to the contrary, each of the Surviving Corporation and Parent shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to Article I and Article II such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of Tax Law.  If the Surviving Corporation or Parent, as the case may be, so withholds amounts, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which the Surviving Corporation or Parent, as the case may be, made such deduction and withholding.

If any Certificate shall have been mutilated, lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be mutilated, lost, stolen or destroyed, the completion of the letter of transmittal by such Person and, if required by the Surviving Corporation, the posting by such Person of a bond, in such reasonable amount as the Surviving Corporation may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent shall pay, in exchange for such mutilated, lost, stolen or destroyed Certificate, the Merger Consideration to be paid in respect of the Shares represented by such Certificate as contemplated by this Article II.

 

ARTICLE III.

THE SURVIVING CORPORATION

At the Effective Time, the articles of incorporation of the Surviving Corporation shall, subject to the provisions of Section 7.03 hereof, be amended and restated to read in its entirety as the articles of incorporation of Sub immediately prior to the Effective Time except that the name of the Surviving Corporation shall be Tecumseh Products Company and the provision in the articles of incorporation of Sub naming its incorporator shall be omitted until amended in accordance with Michigan Law.

The bylaws of Sub in effect immediately before the Effective Time shall, subject to the provisions of Section 7.03 hereof, be the bylaws of the Surviving Corporation until amended in accordance with applicable Law.

From and after the Effective Time, until successors are duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with Michigan Law, (a) the directors of Sub immediately before the Effective Time shall be the directors of the Surviving Corporation and (b) the officers of the Company immediately before the Effective Time shall be the officers of the Surviving Corporation.

ARTICLE IV.

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except as disclosed in (a) any publicly available form, report or document filed by the Company with the SEC from and after January 1, 2014 to two (2) Business Days prior to the date hereof (other than disclosures contained or referenced therein under the captions “Risk Factors” and any other disclosures contained or referenced therein of information, factors or risks that are predictive, cautionary or forward-looking in nature) or (b) the disclosure schedule delivered by the Company to Parent and Sub prior to the execution of this Agreement (the “Company Disclosure Schedule”), the Company represents and warrants to Parent and Sub as of the date of this Agreement and as of the Acceptance Date that:

 

The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Transactions contemplated hereby require no consent or approval of, order or authorization of, notification, or filing or registration with, any Governmental Authority, other than (a) the filing of a certificate of merger with respect to the Merger with the Michigan Department of Licensing and Regulatory Affairs, (b) compliance with any applicable Antitrust Laws, (c) compliance with any applicable requirements of the 1933 Act and the 1934 Act and any other applicable U.S. securities Laws, (d) compliance with any applicable rules and regulations of the Nasdaq Global Market, and (e) any actions or filings the absence of which would not and would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.

 

The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Transactions contemplated hereby do not and will not (a) violate or conflict with any provision of the articles of incorporation or bylaws of the Company or any of its Subsidiaries, (b) subject to the exceptions referred to in Section 4.03, violate any Law applicable to the Company or any existing obligation of the Company under any judgment, injunction, order or decree of any Governmental Authority with competent jurisdiction that names and binds the Company, (c) require any consent or other action by any Person under, constitute a default, or an event that, with or without notice or lapse of time or both, would become a default, under, or cause or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which the Company or any of its Subsidiaries is entitled under any provision of any Material Contract or (d) result in the creation or imposition of any Lien on any asset of the Company or any of its Subsidiaries, except, in the case of clauses (b) through (d), for such matters as would not and would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.

 

 

Except as set forth in Section 4.07(a) of the Company Disclosure Schedule, since December 31, 2014, except for the Transactions contemplated hereby, (i) the business of the Company and its Subsidiaries, taken as a whole, has been conducted in the ordinary course of business consistent with past practices, (ii) there has not been any event, occurrence, development or state of circumstances or facts that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and (iii) neither the Company nor any of its Subsidiaries has taken any action that would be prohibited by clauses (a), (b), (e), (f), (h), (k), (l), (m), (n), (o) and (p) (solely with respect to the foregoing clauses) of Section 6.01 if proposed to be taken after the date hereof.

 

 

Except for (a) liabilities and obligations incurred in the ordinary course of business consistent with past practices since December 31, 2014, (b) liabilities and obligations disclosed in the Company SEC Documents, (c) liabilities and obligations incurred in connection with the Transactions contemplated by this Agreement and (d) liabilities set forth in Section 4.09 of the Company Disclosure Schedule, since December 31, 2014, the Company has not incurred any material liabilities or obligations that would be required to be reflected or reserved against in a balance sheet of the Company prepared in accordance with GAAP as applied in preparing the balance sheet of the Company included in the Company SEC  Documents.

There is (i) no action, claim, suit, proceeding or governmental investigation (x) pending or (y) to the knowledge of the Company, threatened, against the Company or any Subsidiary of the Company or any executive officer or directors of the Company or a Subsidiary of the Company arising out of or as a result of such executive officer’s or director’s position with the Company and (ii) neither the Company nor any Subsidiary of the Company is subject to any outstanding judgment, writ, order, injunction or decree of any Governmental Authority, whether temporary, preliminary or permanent, in either case of clauses (i) and (ii), which would be material to the Company and its Subsidiaries as a whole or otherwise prevent or materially delay the consummation by the Company of the Transactions or the performance by the Company of its covenants and obligations hereunder.  Except as set forth in Section 4.10 of the Company Disclosure Schedule, neither the Company nor any Subsidiary of the Company is subject to any outstanding judgment, writ, order, injunction or decree of any Governmental Authority, whether temporary, preliminary or permanent, which would be material to the Company and its Subsidiaries as a whole or otherwise prevent or materially delay the consummation by the Company of the Transactions or the performance by the Company of its covenants and obligations hereunder.  As of the date of this Agreement, to the knowledge of the Company, there are no SEC inquiries or investigations, other governmental inquiries or investigations or internal investigations pending or, to the knowledge of the Company, threatened, in each case regarding any accounting practices of the Company or any Subsidiary of the Company or any malfeasance by any executive officer of the Company.

 

 

 

 

 

 

 

To the knowledge of the Company, the Company and its Subsidiaries have good and valid title to all assets owned by them as of the date of this Agreement, including all assets (other than capitalized or operating leases) reflected on the Balance Sheet (except for assets sold or otherwise disposed of in the ordinary course of business since the date of such Balance Sheet).  To the knowledge of the Company, all of said assets are owned by the Company and its Subsidiaries free and clear of any Liens (other than Permitted Liens).

Except as set forth on Section 4.15 of the Company Disclosure Schedule and as would not be, individually or in the aggregate, material to the Company and its Subsidiaries taken as a whole:

 

 

 

 

 

 

Except for Citigroup Global Markets Inc. (“Citi”) (for which a complete and accurate copy of the relevant engagement letter has been provided to Parent prior to the date hereof), there is no investment banker, broker, finder or similar intermediary that has been retained by or is authorized to act on behalf of the Company or any of its Subsidiaries who is entitled to any fee or commission from the Company or any of its Affiliates in connection with the Transactions.

The Board of Directors of the Company has received an opinion of Citi, as financial advisor to the Company, (and if it is in writing, has provided a copy of such opinion to Parent) to the effect that, as of the date of such opinion, subject to the assumptions and qualifications set forth therein, the consideration to be received in the Offer and the Merger, taken together, by the holders of the Shares is fair, from a financial point of view, to the holders of the Shares (other than Parent, Sub and their respective Affiliates).  As of the date of this Agreement, such opinion has not been withdrawn, revoked or modified.

Assuming that neither Parent nor Sub is as of the date hereof or ever has been an “interested shareholder” (as defined in Section 778 of the MBCA), the Board of Directors of the Company has taken all action necessary under applicable Law to ensure that no restrictions under Chapter 7A (including Section 780) of the MBCA or any other Takeover Law will apply to the execution, delivery and performance of this Agreement or the Offer, the Merger or the other Transactions, each as of the date hereof and as of the Effective Time.

 

Since January 1, 2013, neither the Company nor any of the Company Subsidiaries is a party to any transaction, agreement, arrangement or understandings between the Company or any Subsidiary of the Company, on the one hand, and any director or executive officer of the Company or any person owning 5% or more of the Shares (or any such person’s immediate family members or Affiliates of associates), on the other hand, that would be required to be disclosed under Item 404 of Regulation S-K under the 1933 Act other than ordinary course of business employment agreements and similar employment arrangements.

Section 4.25 of the Company Disclosure Schedule contains a complete and accurate list of all material insurance policies maintained by the Company as of the date of this Agreement.  Neither the Company nor any Subsidiary of the Company has taken any action or failed to take any action which, with or without notice or the lapse of time or both, would constitute a material breach or default, or permit termination or modification of, any such material insurance policies.  Except as set forth in Section 4.25 of the Company Disclosure Schedule or for exceptions that individually or in the aggregate would not reasonably be expected to have a Company Material Adverse Effect, all material insurance policies maintained by the Company are in full force and effect, all premiums due and payable thereon have been paid, and no written notice of cancellation or termination has been received with respect thereto.

 

Except for the representations and warranties contained in this Article IV (as modified as set forth in the first paragraph of this Article IV or any certificate or other instrument delivered by the Company pursuant to this Agreement), neither the Company nor any other Person acting on behalf of the Company, makes any representation or warranty, express or implied with respect to the Company, its Subsidiaries or their respective businesses or with respect to any other information provided to Parent, Sub or their Representatives or Affiliates in connection with the Transactions contemplated hereby.  Except in the case of Fraud, neither the Company nor any other Person will have or be subject to any liability to Parent, Sub or any other Person resulting from the distribution to Parent, Sub or its or their respective Representatives or Affiliates, or Parent’s, Sub’s or their Representatives’ or Affiliates’ use of, any such information, including any information, documents, projections, forecasts or any other material made available to Parent, Sub or their Representatives or Affiliates in certain “data rooms” or management presentation in connection with Parent’s and Sub’s consideration and review of the Transactions contemplated hereby, unless any such information is expressly included in a representation or warranty contained in this Article IV.

ARTICLE V.

REPRESENTATIONS AND WARRANTIES OF PARENT

Parent and Sub, jointly and severally, represent and warrant to the Company that:

Each of Parent, Sub, and Guarantor is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization and has all entity powers, as applicable, and all governmental licenses, authorizations, permits, consents and approvals required to carry on its business as presently conducted, except for those licenses, authorizations, permits, consents and approvals the absence of which would not and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.

 

The execution, delivery and performance by Parent, Sub, and Guarantors of this Agreement, the Guarantee and the consummation by Parent, Sub, and Guarantors of the Transactions are within the entity powers of Parent, Sub, and Guarantors and have been duly authorized by all necessary entity action on the part of Parent, Sub, and Guarantors.  This Agreement and the Guarantee have been duly executed and delivered by Parent, Sub, and Guarantors, respectively, and constitute valid and binding agreements of each of Parent, Sub, and Guarantors, except that such enforcement is subject to (a) applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting the enforcement of creditors’ rights and remedies generally and (b) the effect of general equitable principles and the discretion of the court before which any proceeding therefor may be brought.

The execution, delivery and performance by Parent, Sub, and Guarantors of this Agreement, the Guarantee and the consummation by Parent and Sub of the Transactions require no consent or approval of, order or authorization of, notification, or filing or registration with, any Governmental Authority, other than (a) the filing of a certificate of merger with respect to the Merger with the Michigan Department Licensing and Regulatory Affairs, (b) compliance with any applicable Antitrust Laws, (c) compliance with any applicable requirements of the 1933 Act or the 1934 Act or any other U.S. securities Laws and (d) any actions or filings the absence of which would not and would not be reasonably expected to, individually or in the aggregate, have a Parent Material Adverse Effect.

The execution, delivery and performance by Parent, Sub, and Guarantors of this Agreement and the Guarantee and the consummation by Parent, Sub, and Guarantors of the Transactions do not and will not (a) violate or conflict with any provision of the Parent Organizational Documents, (b) subject to the exceptions  referred to in Section 5.03, violate any Law applicable to Parent, Sub, or Guarantors any existing obligation of Parent, Sub, or Guarantors under any judgment, injunction, order or decree of any Governmental Authority with competent jurisdiction that names and binds Parent, Sub, or Guarantors, (c) require any consent or other action by any Person under, constitute a default, or an event that, with or without notice or lapse of time or both, could become a default, under, or cause or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which Parent, Sub, or Guarantors is entitled under any provision of any agreement or other instrument binding upon Parent, Sub or Guarantors, or any license, franchise, permit, certificate, approval or other similar authorization affecting, or relating in any way to, the assets or business of Parent, Sub, or Guarantors, or (d) result in the creation or imposition of any Lien on any asset of Parent, Sub, or Guarantors except, in the case of clauses (b) through (d), for such matters as do not constitute a Parent Material Adverse Effect.

 

There is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of Parent or Sub who is entitled to any fee or commission from the Company, any of its Subsidiaries, Parent, Sub or any of their Affiliates in connection with the Transactions.

 

Sub is a wholly owned Subsidiary of Parent that was formed solely for the purpose of engaging in the Offer, the Merger and the Transactions, and Sub has engaged in no business activity, has conducted no operations and has incurred no liability, other than in connection with the Offer, the Merger and the Transactions contemplated by this Agreement.

On the date hereof, Parent and Sub own no Shares, and (other than as provided herein) own no additional rights to purchase Shares through any option from any other person.  Prior to the Acceptance Date, none of Parent, Sub or their respective Affiliates is or ever has been an “interested shareholder” (as defined in Section 778 of the MBCA) with respect to the Company.

As of the date of this Agreement, there are no actions, suits or claims or legal, administrative or arbitration proceedings pending or, to the knowledge of Parent, threatened against Parent or Sub, or any of their officers or directors (in their capacity as such) that individually or in the aggregate would reasonably be expected to prevent, enjoin, alter or delay the Offer or the Merger.

 

Parent has made available to the Company a complete and correct copy of the limited liability company agreement, the certificate of formation, the certificate of incorporation and the bylaws, as applicable, each as amended to date, of each of Parent and Sub (collectively, “Parent Organizational Documents”).  The Parent Organizational Documents are in full force and effect.  Neither Parent nor Sub is in violation of any provision of the Parent Organizational Documents, as applicable, except as would not reasonably be expected to prevent or materially delay the consummation of the Transactions contemplated hereby.

Concurrently with the execution of this Agreement, the Guarantors shall have delivered to the Company the duly and validly executed Guarantee.  The Guarantee is in full force and effect and are the legal, valid and binding obligation of the Guarantors, enforceable against the Guarantors in accordance with its terms.  No event has occurred which, with or without notice, lapse of time or both, would constitute a default under the Guarantee.

Parent and Sub acknowledge and agree that except as expressly set forth in this Agreement or any certificate or other instrument delivered by the Company pursuant to this Agreement, neither the Company nor any of the Company’s Subsidiaries has made any representation or warranty, express or implied, to Parent, Sub or any of their Representatives in connection with this Agreement, the Offer, the Merger, the Guarantee or any of the other Transactions contemplated thereby.  Parent and Sub further acknowledge that the Company’s and the Company’s Subsidiaries and their Representatives have not made any representations or warranties of any nature, express or implied, to Parent, Sub or their Representatives in connection with this Agreement, the Offer, the Merger, the Guarantee or any of the other Transactions contemplated thereby, except as expressly set forth in this Agreement or any certificate or other instrument delivered by the Company pursuant to this Agreement.

ARTICLE VI.

COVENANTS OF THE COMPANY

The Company agrees that:

From the date hereof until the earlier of the Effective Time or termination of this Agreement in accordance with its terms, except (i) as required by applicable Law, (ii) as expressly contemplated by this Agreement, (iii) as set forth in Section 6.01 of the Company Disclosure Schedule, (iv) to the extent Parent shall otherwise consent in writing, which consent shall not unreasonably be withheld, delayed or conditioned, or (v) after the Acceptance Date and the appointment of directors pursuant to Section 1.03(a), as approved by or completed with the actual knowledge of a majority of the Board of Directors of the Company, the Company shall, and shall cause each of its Subsidiaries to, use their respective commercially reasonable efforts to conduct their businesses in the ordinary course of business consistent with past practices and that the Company and its Subsidiaries shall use their respective commercially reasonable efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Authorities, customers, suppliers, employees and business associates in each case, consistent with past practice.  Furthermore, except as set forth in clauses (i) through (v) in the prior sentence, the Company shall not, nor shall it permit any of its Subsidiaries to:

 

 

 

 

 

From the date hereof until the Effective Time, the Company shall, and shall cause its Subsidiaries to, (a) provide Parent, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the properties, offices and books and records of the Company and its Subsidiaries and such financial and operating data and other information as such Persons may reasonably request in connection with Parent’s investigation of the Company with respect to the Transactions contemplated hereby, including with respect to the items disclosed or required to be disclosed in respect of the representations and warranties of the Company contained in Sections 4.10, 4.11 and 4.15 and (b) instruct the employees, counsel, financial advisors, auditors and other authorized representatives of the Company and its Subsidiaries to cooperate with Parent in its investigation of the Company and its Subsidiaries; provided, however, any investigation pursuant to this Section 6.03 shall comply with applicable Law and be conducted at Parent’s expense, at reasonable times during business hours upon reasonable advance notice and in such manner so as not to interfere unreasonably with the conduct of the business of the Company and its Subsidiaries and to minimize such interference.  Nothing in this Section 6.03 shall require the Company (i) to permit any inspection or access, or to disclose any information, that in the reasonable judgment of the Company would result in the disclosure of any trade secrets of third Persons or in violation of any Law or breach of any agreement of the Company or any of its Subsidiaries entered into before the date of this Agreement, (ii) to disclose any privileged information of the Company or any of its Subsidiaries, or (iii) to permit invasive testing of any of the Company’s or its Subsidiaries’ real property; provided that with respect to clauses (i) or (ii), it being understood that the Company shall, and shall cause its Subsidiaries to, use its commercially reasonable efforts in cooperating with Parent to establish an appropriate confidentiality procedure or other work-around to provide Parent with sufficient access to information which is practicable under the circumstances (including with respect to the items disclosed or required to be disclosed in respect of the representations and warranties of the Company contained in Sections 4.10, 4.11 and 4.15), including, but not limited to, using commercially reasonable efforts, if requested by Parent, at no expense to the Company, to obtain any and all consents of such third parties as shall be necessary to permit such information to be disclosed to Parent and its representatives.  In no event shall the Company be required to supply pursuant to this Section 6.03 to Parent, or Parent’s representatives, any information relating to indications of interest from, or discussions with, any other potential acquirers of the Company, with respect to which Section 6.04 shall apply.  All requests for access to the offices or books and records of the Company or its Subsidiaries shall be made to such Representatives of the Company as the Company shall designate, who shall be solely responsible for coordinating all such requests and all access permitted hereunder.  All information disclosed by the Company to Parent and its representatives pursuant hereto shall be kept confidential consistent with the confidentiality provisions set forth in the Confidentiality Agreement (the “Confidentiality Agreement”) dated March 5, 2015 between the Company and Parent.

 

 

 

unless, in either case of (i) or (ii), (x) the Company has provided notice to Parent in writing at least three (3) Business Days in advance of taking such action(s) that the Board of Directors intends to make an Adverse Recommendation Change with respect to a Superior Proposal or the Board of Directors has determined that the Acquisition Proposal is or could reasonably be expected to lead to a Superior Proposal and intends to enter into a definitive agreement with respect to such Superior Proposal and to terminate this Agreement (such notice to Parent shall describe the material terms and conditions of the Superior Proposal, including the identity of the Persons making such Superior Proposal, and shall be accompanied by a copy of a draft of the definitive agreement proposed to be entered into with respect to such Superior Proposal); (y) Parent does not make, prior to the expiration of such three (3) Business Day period, an offer that the Board of Directors shall have concluded in good faith (after considering the advice of its outside legal and financial advisors) causes such Acquisition Proposal to cease to be a Superior Proposal (it being understood that the Company shall not enter into any agreement with respect to the Superior Proposal during such three (3) Business Day period and, during such period, shall negotiate any counterproposal with Parent in good faith to make such adjustments to the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal); and (z) the Board of Directors has confirmed (after taking into account any adjustments to the terms and conditions of this Agreement) that the Acquisition Proposal continues to constitute a Superior Proposal and determined in good faith (after consultation with its outside legal and financial advisors) that failing to take such action would breach its fiduciary duties to the Company’s shareholders under applicable Law), it being understood that during the notice period, if any material revisions are made to the Superior Proposal, the Company will be required to provide a new notice hereunder to comply with this Section 6.04(d);

 

“Acquisition Proposal” means any inquiry, proposal or offer from any Person or Persons (other than Parent and its Affiliates) relating to any (i) acquisition of assets of the Company and/or its Subsidiaries (including outstanding securities of Subsidiaries) representing 20% or more of the Company’s consolidated assets, (ii) acquisition of 20% or more of the outstanding equity interests of the Company, (iii) tender offer or exchange offer that if consummated would result in any Person beneficially owning 20% or more of the outstanding equity interests of the Company (whether in one transaction or in a series of transactions and whether directly or indirectly) or (iv) merger, consolidation, share exchange, business combination, recapitalization, joint venture, reorganization, liquidation, dissolution or similar transaction involving the Company, in each case, other than the Transactions contemplated by this Agreement.

 

“Superior Proposal” means any bona fide written Acquisition Proposal (with all percentages in subparagraphs in the definition of “Acquisition Proposal” increased to 50%) that does not arise out of or result from any violation of this Section 6.04 and that is on terms that the Board of Directors determines in good faith (after consultation with its outside legal and financial advisors and taking into account all the terms and conditions of the Acquisition Proposal) is reasonably likely to be capable of consummation in accordance with its terms, is more favorable to the Company’s shareholders than the Offer and the Merger (after giving effect to any subsequent offer made by Parent in response to such Superior Proposal and taking into account all financial, regulatory, legal and other aspects of such proposal) and the financing of which is fully committed or in the good faith judgment of the Board of Directors is reasonably capable of being fully financed.

 

ARTICLE VII.

COVENANTS OF PARENT

 

Parent agrees that:

Parent shall take all action necessary (a) to cause Sub to perform and comply with its representations, warranties, covenants, agreements, undertakings and obligations under this Agreement and to consummate the Offer and the Merger on the terms and conditions set forth in this Agreement and (b) to ensure that, prior to the Effective Time, Sub shall not conduct any business or make any investments other than as specifically contemplated by this Agreement.  As a material inducement to the Company’s willingness to enter into this Agreement and perform its obligations hereunder, Parent hereby unconditionally guarantees full performance and payment by Sub and the Surviving Corporation of each of its covenants, obligations and undertakings pursuant to or otherwise in connection with this Agreement, the Offer, the Merger and the other Transactions contemplated by this Agreement and hereby represents, acknowledges and agrees that any breach of, or other failure to perform, any such representation, warranty, covenant, obligation, agreement or undertaking of Sub or the Surviving Corporation shall also be deemed to be a breach or failure to perform by Parent, and the Company and any Indemnified Person shall have the right, exercisable in its sole discretion, to pursue any and all available remedies it may have arising out of any such breach or nonperformance directly against any or all of Parent, Sub and the Surviving Corporation in the first instance.

 

Parent shall vote (or cause to be voted) all Shares beneficially owned by it or any of its Affiliates in favor of adoption and approval of this Agreement and approval of the Merger at the Company Stockholder Meeting.

 

 

 

ARTICLE VIII.

COVENANTS OF PARENT AND THE COMPANY

The parties hereto agree that:

 

The Company, Sub and Parent shall cooperate with one another (a) in connection with the preparation of the Company Disclosure Documents and the Offer Documents, (b) in determining whether any action by or in respect of, or filing with, any Governmental Authority is required, or any actions, consents, approvals or waivers are required to be obtained from parties to any material contracts, in connection with the consummation of the Transactions contemplated by this Agreement and (c) in taking such actions or making any such filings, furnishing information required in connection therewith or with the Company Disclosure Documents or the Offer Documents and seeking timely to obtain any such actions, consents, approvals or waivers. Prior to the Closing and at no expense to the Company or its Subsidiaries, the Company shall, and shall cause its Subsidiaries to use their reasonable commercial efforts to cooperate as reasonably requested by the Parent in connection with obtaining an insurance policy with respect to the representations and warranties of the Company hereunder; provided that, Parent shall be responsible for all fees, expenses and premiums relating to such policy; provided, further that, in no event shall Parent’s efforts to obtain such an insurance policy delay or hinder the Transactions contemplated by this Agreement.

The initial press release with respect to the execution of this Agreement shall be a joint press release to be reasonably agreed upon by Parent and the Company.  Parent and its Affiliates, on the one hand, and the Company and its Subsidiaries, on the other hand, shall consult with each other, and use commercially reasonable efforts to accommodate the comments (including as to timing) of the other, before issuing any other press release or making any other public statement, or scheduling any press conference or conference call with investors or analysts, with respect to this Agreement or the Transactions contemplated hereby and, except as may be required by Law or any listing agreement with or rule of any national securities exchange, shall not issue any such press release or make any such other public statement or schedule any such press conference or conference call before such consultation. Notwithstanding anything in this Agreement to the contrary, neither Parent, Sub nor any of their Affiliates or representatives shall, without the prior consent of the Company (which consent shall not be unreasonably withheld or delayed), contact any employees in their capacity as employees (except for the named executive officers of the Company), customers or suppliers of the Company or its Subsidiaries other than in the ordinary course of business consistent with past practices, whether in person or by telephone, mail or other means of communication, prior to the Acceptance Date in connection with the Transactions contemplated hereby; and, for the avoidance of doubt, in the event Parent, Sub or any of their Affiliates or representatives contacts any such Person in the ordinary course of business consistent with past practices, they may discuss the Transaction with such Persons for so long as such discussion is limited to information consistent with information publicly disclosed with respect to the Transaction.

 

At and after the Effective Time, the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of the Company or Sub, any deeds, bills of sale, assignments or assurances and to take and do, in the name and on behalf of the Company or Sub, any other actions and things to vest, perfect or confirm of record or otherwise in the Surviving Corporation any and all right, title and interest in, to and under any of the rights, properties or assets of the Company acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger.

If at any time after the Acceptance Date, Parent and its Affiliates shall own at least 90% of the outstanding Shares, the parties shall take all necessary and appropriate action to cause the Merger to be effected as soon as practicable without a meeting of shareholders of the Company in accordance with the MBCA.

Prior to the Effective Time, the Company shall take all such steps as may be required to cause any disposition of Shares in the Merger (including derivative securities with respect to such Shares) by each individual who is subject to the reporting requirements of Section 16(a) of the 1934 Act with respect to the Company to be exempt under Rule 16b-3 promulgated under the 1934 Act.

Subject to applicable Law, each of the Company, Sub and Parent shall promptly notify the others of:

 

If any “fair price,” “moratorium,” “control share acquisition” or other similar anti-takeover statute or regulation shall become applicable to the Transactions contemplated hereby, each of the Company, Parent and Sub and the respective members of their boards of directors shall, to the extent permitted by applicable Law, use commercially reasonable efforts to grant such approvals and take such actions as are necessary so that the Transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated herein and otherwise act to eliminate or minimize the effects of such statute or regulation on the Transactions contemplated hereby.

The Company shall promptly advise Parent of any Legal Proceeding commenced after the date hereof against the Company or any of its directors (in their capacity as such) by any Company Shareholders (on their own behalf or on behalf of the Company) relating to this Agreement or the Transactions contemplated hereby, and shall keep Parent reasonably informed regarding any such litigation.  The Company shall give Parent, at its sole expense, the opportunity to participate in the defense or settlement of any shareholder litigation that currently exists or arises after the date of this Agreement against the Company or its directors or officers relating to any of the Transactions and no such settlement shall be agreed to without Parent’s prior written consent to such settlement, which consent shall not be unreasonably withheld, conditioned or delayed.

Subject to Section 2.03(c), all stock transfer, real estate transfer, documentary, stamp, recording and other similar Taxes (including interest, penalties and additions to any such Taxes) (“Transfer Taxes”) incurred in connection with the Transactions contemplated hereby shall be paid by either Sub or the Surviving Corporation, and the Company shall cooperate with Sub and Parent in preparing, executing and filing any Tax returns with respect to such Transfer Taxes.

Prior to the Effective Time, the Company shall cooperate with Parent and use commercially reasonable efforts to take, or cause to be taken, all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part under applicable Laws and rules and policies of the Nasdaq Global Market to enable the delisting by the Surviving Corporation of the Shares from the Nasdaq Global Market and the deregistration of the Shares under the 1934 Act promptly after the Effective Time.  Parent will use all commercially reasonable efforts to cause the Surviving Corporation to file with the SEC (a) a Form 25 on the Closing Date (if not filed by the Nasdaq Global Market on behalf of the Company) and (b) a Form 15 on the first Business Day that is at least ten (10) days after the date the Form 25 is filed (such period between the Form 25 filing date and the Form 15 filing date, the “Delisting Period”).  If the Surviving Corporation is reasonably likely to be required to file any reports pursuant to the 1934 Act during the Delisting Period, the Company will deliver to Parent at least five (5) business days prior to the Closing Date a substantially final draft of any such reports reasonably likely to be required to be filed during the Delisting Period.

 

Prior to the Closing, the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to provide cooperation reasonably requested by Parent and Sub, at Parent’s sole expense, in connection with Parent’s obtaining any debt financing for the purposes of financing the Transactions, including executing and delivering customary definitive financing, security and collateral documents and certificates as may be reasonably requested by Parent (including, without limitation, customary lien releases and solvency certificates provided by any officer of the Company).  Parent and Sub acknowledge and agree that the Company and its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Equity Financing Commitments, any debt financing referenced in this Section 8.13 or the Equity Financing, and that Parent and Sub shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs, attorneys’ fees or other expenses suffered or incurred by any of them in connection with the Equity Financing, including any debt financing referenced in this Section 8.13, and any information utilized in connection therewith.  Parent shall promptly, pay for all out-of-pocket third-party costs incurred by the Company or any of its Subsidiaries in connection with cooperation pursuant to this Section 8.13.  Notwithstanding anything in this Section 8.13 to the contrary, the condition set forth in clause (b)(iii) of Annex I, as it applies to the Company’s obligations under this Section 8.13, shall be deemed to be satisfied unless there has occurred a knowing and intentional breach of the Company’s obligations under this Section 8.13.

 

ARTICLE IX.

CONDITIONS TO THE MERGER

The obligations of the Company, Parent and Sub to consummate the Merger are subject to the satisfaction or written waiver at or prior to the Effective Time of the following conditions:

None of the Company, Parent or Sub may rely on the failure of any condition set forth in Section 9.01 or in Annex I to be satisfied if such failure was caused by such party’s failure to act in good faith or use its commercially reasonable efforts to consummate the Offer and the Merger and the other Transactions contemplated by this Agreement.

ARTICLE X.

TERMINATION

This Agreement may be terminated and the Offer and/or the Merger may be abandoned at any time prior to the Effective Time (notwithstanding receipt of the Company Stockholder Approval):

 

 

The party desiring to terminate this Agreement pursuant to this Section 10.01 (other than pursuant to Section 10.01(a)) shall give notice of such termination to the other party and such termination shall be effective immediately upon delivery of such notice.

If this Agreement is terminated pursuant to Section 10.01, except as provided in this Article X and in Article XI, this Agreement shall become void and of no effect with no liability on the part of any party (or any shareholder, Affiliate, director, officer, employee, agent, Representative or advisor of such party) to the other party hereto; provided, notwithstanding anything  to the contrary, that (i) no termination of this Agreement shall in any way affect the parties’ rights or obligations with respect to any Shares accepted for payment pursuant to the Offer prior to such termination and (ii) no such termination shall relieve (A) Parent, Sub or Guarantors from any liability for damages to the Company and its Subsidiaries resulting from Fraud or knowing and intentional breach, (B) the Company from any liability for damages to Parent, Sub or Guarantors resulting from Fraud or knowing and intentional breach, or (C) Parent, Sub or Guarantors of any liability or damages to the Company resulting from the failure by Parent or Sub to obtain the Equity Financing by the time at which the conditions to Closing set forth in Article IX (other than those conditions that by their nature cannot be satisfied until the Closing Date) are satisfied (including breaches of Section 5.12 or Section 8.12); provided, however, except in the case of Fraud, in no event or circumstance shall any Representative of any party or of any Affiliate or Subsidiary of any party have any liability under, or relating to, this Agreement, any related document or with respect to the Transactions contemplated by this Agreement or otherwise.  Notwithstanding the foregoing, the provisions of the Confidentiality Agreement, the Guarantee, Section 6.03, Article X and Article XI shall survive any termination hereof pursuant to Section 10.01.

 

ARTICLE XI.

MISCELLANEOUS

All notices, requests and other communications hereunder shall be in writing (including facsimile or e-mail transmission) and shall be deemed given when delivered in person, by overnight courier, by facsimile transmission (with receipt confirmed by telephone or by automatic transmission report) or by electronic mail, or two (2) business days after being sent by registered or certified mail (postage prepaid, return receipt requested), as follows:

MA Industrial JV LLC

c/o Atlas Holdings LLC

100 Northfield Street

Greenwich, CT 06830

Attn: Tim Fazio, Managing Partner

Telephone:  (203) 622-9138

Facsimile:  (203) 622-0151

Email:   tfazio@atlasholdingsllc.com

c/o Mueller Industries, Inc.

8285 Tournament Dr., Suite 150

Memphis, TN 38125

Attn: Greg Christopher, Chief Executive Officer

Telephone:  (901) 751-3200

Facsimile:  (901) 753-3255

Email:  gchristopher@muellerindsutries.com

 

with a copy (which shall not by itself constitute notice hereunder) to:

Willkie Farr & Gallagher LLP

787 Seventh Avenue

New York, New York, 10019

Attn:  Steven A. Seidman, Serge Benchetrit, Mark A. Cognetti and Sean M. Ewen

Telephone:  (212) 728-8000

Facsimile:  (212) 728-8111

 

Email:  sseidman@willkie.com, sbenchetrit@willkie.com,

mcognetti@willkie.com  sewen@willkie.com

If to the Company, to:

Tecumseh Products Company

5683 Hines Dr.

Ann Arbor, MI  48108

Attn:  Harold M. Karp,

President and Chief Executive Officer

Telephone:  (734) 585-9487

Email:  Harold.karp@tecumseh.com

with a copy (which shall not by itself constitute notice hereunder) to:

Honigman Miller Schwartz and Cohn LLP

660 Woodward Avenue

Suite 2290 First National Building

Detroit, MI  48226

Attn:  Patrick T. Duerr, Esq.

Telephone:  (313) 465-7362

Facsimile:  (313) 465-7363

Email:  pduerr@honigman.com

Any party may by notice given in accordance with this Section 11.01 to the other parties designate updated information for notices hereunder.

 

 

(x)            $3,828,088.57 for such termination  pursuant to Section 10.01(c)(i) (the “Section 6.04 Breach Fee”); or

 

 

Notwithstanding anything to the contrary in this Agreement, in no event shall the Company be required to pay the Parent Termination Fee on more than one occasion.

 

This Agreement and all actions arising under or in connection therewith shall be governed by and construed in accordance with the law of the State of Delaware, without regard to the conflicts of law rules of such state except to the extent the Laws of the State of Michigan are mandatorily applicable to the Merger, provided that any operative provisions regarding the Merger shall be governed by Michigan Law (including, for the avoidance of doubt, any provisions related to appraisal or dissenters’ rights).

 

The parties hereto irrevocably agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of, with respect to, or in connection with, this Agreement or the Transactions contemplated hereby or for recognition and enforcement of any judgment in respect hereof brought by another party hereto or its successors or assigns shall be brought in the circuit court in the County of Washtenaw, Michigan or other state court within the State of Michigan, or if such court shall not have jurisdiction, in any federal court located within the State of Michigan, and each of the parties hereby irrevocably consents and submits with regard to any action or proceeding for itself and in respect to its property, generally and unconditionally, to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement (a) any claim that it is not personally subject to the jurisdiction of the above-named courts for any reason other than the failure to lawfully serve process, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and (c) to the fullest extent permitted by applicable Law, that (i) any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or (ii) that any such suit, action or proceeding brought in any such court has been brought in an inconvenient or improper forum, or (iii) this Agreement, or the subject matter thereof, may not be enforced in or by such courts. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 11.01 shall be deemed effective service of process on such party.

EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING, ACTION OR COUNTERCLAIM (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, UNDER, IN CONNECTION WITH, OR RELATED TO THIS AGREEMENT, ANY RELATED DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT OR ACTION RELATED HERETO OR THERETO.

This Agreement may be signed in any number of counterparts, and by facsimile or PDF, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by all of the other parties hereto. Until and unless each party has received a counterpart hereof signed by the other party hereto, this Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication). The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or PDF shall be sufficient to bind the parties to the terms and conditions of this Agreement.

 

This Agreement (including the Schedules, Exhibits and Annexes to this Agreement) constitutes the entire agreement between the parties with respect to the subject matter of hereof and thereof, including, without limitation, the Transactions, and supersede all prior agreements and understandings, both oral and written, among the parties with respect to the subject matter hereof and thereof, other than the Confidentiality Agreement.

If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other Governmental Authority 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 so long as the economic or legal substance of the Transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the Transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.  Any provision of this Agreement held invalid or unenforceable only in part or degree shall remain in full force and effect to the extent not held invalid or unenforceable.

For all representations, warranties and covenants hereunder made by Parent or Sub, or made by a Person comprising Parent and Sub, the Persons making such representations and warranties or obligated to perform such covenants shall be jointly and severally liable for any breach of, or the performance of, the foregoing.

ARTICLE XII.

DEFINITIONS

“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person, it being understood that Parent and Sub shall be deemed to be Affiliates of one another for purposes of this Agreement.

“Antitrust Laws” means applicable Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade, including, but not limited to the HSR Act.

 

“Business” means the business of the Company and its Subsidiaries, as conducted immediately prior to the date hereof.

“Business Day” means a day other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by Law to close.

“Code” means the Internal Revenue Code of 1986, as amended.

“Company Contract” means any Contract: (a) to which the Company or any of its Subsidiaries is a party; or (b) by which the assets of the Company or any of its Subsidiaries is bound or under which the Company or any of its Subsidiaries has any obligation.

“Company Disclosure Documents” means each document required to be filed by the Company with the SEC or required to be distributed or otherwise disseminated to the Company’s shareholders in connection with the Transactions contemplated by this Agreement, including the Schedule 14D-9, and any amendments or supplements thereto.

“Company Material Adverse Effect” means an effect, event, development, state of facts or change that (i) materially and adversely affects the ability of the Company to perform its obligations under this Agreement or to consummate the Transactions or (ii) is materially adverse to the business, results of operations or financial condition of the Company and its Subsidiaries, taken as a whole, excluding, any effect resulting from (A) changes in the financial or securities markets (including changes in interest or exchange rates) or in economic or political conditions in the United States, Europe, France, Brazil, India, China, Canada, Malaysia or Mexico and not having a materially disproportionate adverse effect on the Company and its Subsidiaries, taken as a whole, relative to other persons in such industry, (B) changes (including changes of Law, generally accepted accounting principles or regulation or the interpretation thereof) or conditions generally affecting the industry in which the Company and its Subsidiaries operate and not having a materially disproportionate adverse effect on the Company and its Subsidiaries taken as a whole, relative to other persons in such industry, (C) acts of war, sabotage or terrorism or natural disasters not having a materially disproportionate adverse effect on the Company and its Subsidiaries, taken as a whole, relative to other persons in their industry, (D) the announcement or consummation of the Offer or the Transactions contemplated by this Agreement, (E) any failure by the Company to meet any internal or published budgets, projections, forecasts or predictions of financial performance for any period (it being understood that this clause (E) shall not prevent a party from asserting that any underlying fact, change, event, occurrence or effect giving rise to such failure may independently be taken into account in determining whether a Company Material Adverse Effect has occurred if not otherwise excluded pursuant to clauses (A) through (G) of this definition), (F) the announcement of the execution of this Agreement or the pendency of the Transactions contemplated by this Agreement, including any reduction in revenue, any disruption in (or loss of) supplier, distributor, partner or similar relationship or any loss of employees or any claims made or any litigation filed or announced that challenges any of the Transactions contemplated by this Agreement, (G) any claims made under Company Contracts to the extent based on and arising out of statements or conduct of Parent or Sub or any Affiliates or Representatives of Parent or Sub, (H) any change in the market price or trading volume of the Shares, (I) any other action required by Law, this Agreement or taken at the request or with the consent of Parent, Sub or any of their Affiliates, (J) any breach by Parent or Sub of this Agreement, or (K) the taking of any action or the failure to take any action, each as expressly required pursuant to this Agreement or at Parent’s express written request.

 

“Company Registered Intellectual Property” means all (i) patents and patent applications, (ii) trademark, trade name and service mark registrations (including Internet domain name registrations) and applications therefor and (iii) copyright registrations and applications included in the Company Intellectual Property Rights.

“Company Representatives” has the meaning given to such term in Section 6.04(a).

“Continuing Employees” means all employees of the Company or any of its Subsidiaries as of the Effective Time who continue employment with the Surviving Corporation or any of its Affiliates.

“Contract” means any binding written contract, subcontract, note, bond, mortgage, indenture, lease, license, sublicense, understanding, arrangement, instrument or other legally binding written agreement.

“Environmental Claim” means any claim, action, cause of action, suit, proceeding, investigation, order, demand or notice by any Person alleging actual or potential liability (including, without limitation, actual or potential liability for investigatory costs, cleanup costs, governmental response costs, natural resources damages, property damages, personal injuries, attorneys’ fees,  or penalties) arising out of, based on or resulting from or relating to (a) the presence, Release or threatened Release of, or exposure to, any Hazardous Materials at any location, whether or not owned or operated by the Company, or (b) circumstances forming the basis of any violation or alleged violation of any Environmental Law.

“Environmental Laws” means all Laws and common law, relating to pollution or protection of human health or the environment, (including, without limitation, ambient air, vapor, surface water, ground water, land surface or subsurface strata, and natural resources), including, without limitation, Laws relating to (i) Releases or threatened Releases of, or exposure to, Hazardous Materials, (ii) the manufacture, processing, distribution, use, treatment, generation, storage, containment (whether above ground or underground), transport or handling of Hazardous Materials, (iii) recordkeeping, notification, disclosure, or reporting requirements regarding Hazardous Materials, (iv) endangered or threatened species of fish, wildlife and plants, and the management or use of natural resources, (v) the preservation of the environment or mitigation of adverse effects on or to human health or the environment, or (vi) emissions or control of greenhouse gases.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.

“ERISA Affiliate” means, with respect to any Person, each entity, trade or business that is, or was at the relevant time, a member of a group described in Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA that includes or included such Person, or that is, or was at the relevant time, a member of the same “controlled group” as such Person pursuant to Section 4001(a)(14) of ERISA.

 

“Excluded Party” means any Person from which the Company received during the Go Shop Period a written Acquisition Proposal that (a) remains pending as of, and shall not have been withdrawn on or prior to, the Go Shop Period End Date, and (b) the Company’s Board of Directors reasonably determines in good faith on or prior to the Go Shop Period End Date, after consultation with outside legal and financial advisors, constitutes or could reasonably be expected to lead to a Superior Proposal.

“Expense Reimbursement” means (i) in connection with a termination of this Agreement by the Company or by Parent pursuant to Section 10.01(b)(i) as a result of the failure to satisfy the Minimum Condition, $1,000,000 or (ii) in connection with a termination of this Agreement by Parent pursuant to Section 10.01(c)(ii), $2,000,000.

“Fraud” means the conscious, intentional omission or misrepresentation of a fact or circumstance under this Agreement or related documents by the Person being charged with Fraud which (i) is material to the claiming Person (or its decision to execute this Agreement and to consummate the transactions contemplated by this Agreement), (ii) is made or omitted by such Person for the purpose of deceiving the claiming Person in connection with the Transactions contemplated by this Agreement and (iii) which the claiming Person relied upon in making its decision to execute this Agreement and to consummate the transactions contemplated by this Agreement.

“Fully Diluted Basis” means all outstanding Shares, all Shares issuable in respect of outstanding securities convertible into or exchangeable for Shares and all Shares issuable in respect of all outstanding options (other than the Top-Up Option, if applicable), RSUs, and DSUs, except for any options, RSUs or DSUs or other rights to acquire Shares that vest after the End Date.

“Governmental Authority” means any government, court, governmental regulatory or administrative agency, regulatory entity or body, department, commission or authority or other governmental instrumentality, whether domestic or foreign, federal, state or local, multinational or supranational.

“Governmental Entity” means any nation or government, any supranational, foreign or domestic federal, state, county, municipal or other political instrumentality or subdivision thereof (including any agency, branch, department, commission, board, bureau, official, court, or other tribunal, public international organization, or other instrumentality or subdivision of the foregoing)  and any supranational, foreign or domestic entity or body exercising executive, legislative, judicial, regulatory, administrative or taxing functions of or pertaining to government, including any court.  Without limiting the foregoing, “Governmental Authority” includes government-owned or -controlled (in whole or in part) businesses of any country.

“Government Official” means any officer or employee of any Governmental Entity.  Without limiting the foregoing, “Government Official” includes any government officer or employee, any officer or employees of any government-controlled entity or public international organization, any employee of a government-owned or -controlled (in whole or in part) business, any Person acting in an official capacity for or on behalf of any Governmental Authority, or any political party, party official, or candidate for public office; in addition, “Government Official” includes any immediate relative of any Person described above.  Immediate relatives include any of the following relations, whether by blood or through marriage: spouse, parent, child, sibling, and grandparent/child.

 

“Grant Date” means, with respect to each Stock Option, the date on which the grant of such Stock Option was by its terms to be effective.

“Hazardous Materials” means any chemical, pollutant, contaminant, or material, waste or substance, whether hazardous, toxic, deleterious, radioactive, noxious, harmful, or otherwise, petroleum and petroleum products, by-products, derivatives or wastes, greenhouse gases, asbestos or asbestos-containing materials or products, polychlorinated biphenyls, lead or lead-based paints or materials, radon, fungus, mold, or other substances that may have an adverse effect on human health or the environment.

“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

“Intellectual Property” means all U.S. and foreign (i) patents and all goodwill associated therewith, (ii) trademarks, service marks, trade names, trade dress, domain names, together with all goodwill related to the foregoing, (iii) copyrights and designs and all goodwill associated therewith and the underlying works of authorship, (iv) all inventions, trade secrets, processes, formulae, methods, schematics, drawings, blue prints, technology, know-how, and software, and (v) all registrations of any of the foregoing and all applications therefor.

“International Trade Laws” means Laws applicable to international transactions, including, but not limited to, the Export Administration Act, the Export Administration Regulations, the Foreign Corrupt Practices Act, the Arms Export Control Act, the International Traffic in Arms Regulations, the International Emergency Economic Powers Act, the Trading with the Enemy Act, the United States Customs laws and regulations, the Foreign Asset Control Regulations, and any regulations or orders issued thereunder.

“knowledge” means, with respect to the Company, the actual conscious awareness of any of the persons listed in Section 12.01(a) of the Company Disclosure Schedule.

“Law” means all laws (including common law), statutes, ordinances, codes, rules and regulations of any Governmental Authorities.

“Legal Proceeding” means any action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Authority or any arbitrator or arbitration panel.

“Liability” means any and all liabilities and obligations of any kind or nature, including those arising under common law, statute (or other Law), contract or otherwise, whether known or unknown, or liquidated or unliquidated.

 

“Lien” means, with respect to any property or asset, any mortgage, lien, pledge, security interest, encumbrance, easement, right of way, title defect, option, right of first refusal, preemptive right, restriction of any nature (including any restriction on the voting of any security, any restriction on the transfer of any security or any other asset, any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset) or other adverse claim of any kind in respect of such property or asset.  For purposes of this Agreement, a Person shall be deemed to own subject to a Lien, any property or asset that it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such property or asset.

“1933 Act” means the Securities Act of 1933, as amended.

“1934 Act” means the Securities Exchange Act of 1934, as amended.

“Occurrence” means any accident, happening or event which takes place at any time which is caused or allegedly caused by any alleged hazard or alleged defect in manufacture, design, materials or workmanship including, without limitation, any alleged failure to warn or any breach of express or implied warranties or representations with respect to, or any such accident, happening or event otherwise involving any Product that can reasonably be expected to result in a claim or loss.

“Parent Material Adverse Effect” means a material adverse effect on Parent’s ability to consummate the Transactions contemplated by this Agreement or to perform its obligations under this Agreement.

“Permitted Lien” means (i) any Lien for Taxes not yet due, payable without penalty, or being contested in good faith by appropriate proceedings, (ii) any lien securing debt reflected in the Company SEC Documents, (iii) purchase money liens arising in the ordinary course of business, (iv) pledges and deposits made in the ordinary course of the business in compliance with workers’ compensation, unemployment insurance and other social security Laws, (v) such imperfections of title, restrictions, encroachments, liens and easements that would be disclosed by a survey of leased or owned real property and do not materially (a) detract from or interfere with the use of the properties subject thereto or affected thereby, or (b) otherwise materially impair business operations involving such properties, and (vi) any lien that is released on or prior to the Acceptance Date.

“Person” means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a Governmental Authority.

“Plan” means each “employee benefit plan” within the meaning of Section 3(3) of ERISA and all other compensation and benefits plans, policies, programs, arrangements or payroll practices, including multiemployer plans within the meaning of Section 3(37) of ERISA, and each other welfare, stock purchase, stock option, restricted stock, severance, retention, employment, consulting, change-of-control, bonus, incentive, deferred compensation, employee loan, fringe benefit and other benefit plan, agreement, program, policy, commitment or other arrangement, whether or not subject to ERISA (including any related funding mechanism now in effect or required in the future), whether formal or informal, oral or written, in each case, that is sponsored, maintained, contributed or required to be contributed to by the Company or its Subsidiaries, or with respect to which the Company or any Subsidiary has any current or potential liability.

 

“Release” means any release, spill, emission, discharge, leaking, pumping, injection, deposit, disposal, dispersal, leaching or migration into the environment (including, without limitation, ambient air, surface water, groundwater and surface or subsurface strata) or into or out of any property, including the movement of Hazardous Materials through or in the air, soil, surface water, groundwater or property.

“Representative” means any current or future officer, director, member, manager, partner, employee, agent or representative of a Person.

“Stock Option” means an option to purchase equity securities of the Company.

“Subsidiary” means, with respect to any Person, 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 at any time directly or indirectly owned by such Person.

“Tax” (and, with correlative meaning, “Taxes”) means (i) all taxes, charges, fees, duties, levies, penalties or other assessments, including income, gross receipts, excise, real and personal property, sales, use, transfer, license, payroll, social security, medicare, franchise, gains, built-in gains, unemployment insurance, workers’ compensation, employer health tax or other taxes, imposed by any Governmental Authority (including withholding on amounts paid to or by any Person), together with any interest, penalty, addition to tax or additional amount imposed by any Governmental Authority (a “Taxing Authority”) responsible for the imposition of any such tax (domestic or foreign), and any liability for any of the foregoing as transferee, (ii) liability for the payment of any amount of the type described in clause (i) as a result of being or having been before the Effective Time a member of an affiliated, consolidated, combined or unitary group or similar arrangement required or permitted under applicable Law.

“Tax Returns” means any and all reports, returns, declarations, claims for refund, elections, disclosures, estimates, information reports or returns or statements supplied or required to be supplied to a taxing authority in connection with Taxes, including any schedule or attachment thereto or amendment thereof.

“Transactions” shall mean (a) the execution and delivery of this Agreement, and (b) all of the transactions contemplated by this Agreement, including the Offer, the Top-Up Option and the Merger.

 

 

 

 

The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions herein, the table of contents and the table of defined terms are included for reference purposes only and shall be ignored in the construction or interpretation hereof. References to Articles, Sections, Exhibit, Annexes and Schedules are to Articles, Sections, Exhibit, Annexes and Schedules of this Agreement unless otherwise specified. All Exhibit, Annexes and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. All terms defined in this Agreement and used but not otherwise defined in any Exhibit, Annex or Schedule or any other document made or delivered pursuant hereto shall have the meaning as defined in this Agreement. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”. “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any statute or Law shall be deemed to refer to such statute or Law as amended from time to time and to any rules or regulations promulgated thereunder. References to any agreement or contract shall be deemed to refer to such agreement or contract as amended, modified or supplemented from time to time in accordance with the terms thereof.  References to any Person include the successors and permitted assigns of that Person.  “Either” and “or” are not exclusive.  The “date hereof” or the “date of this Agreement” refers to the date set forth in the initial paragraph of this Agreement.  “Extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase does not mean simply “if.”  References to “$” or otherwise to dollar amounts refer to the lawful currency of the United States.  References to a communication by a regulatory agency include a communication by the staff of such regulatory agency.  “Made available” means that the Company shall be deemed to have made available a document or item of information if such document or item was made available to Parent or its Representatives for review in the electronic data room organized by the Company in connection with the due diligence investigation conducted by Parent at least two (2) Business Days prior to the date hereof, provided to Parent or its Representatives on or prior to two (2) Business Days prior to the date hereof or publicly filed with the SEC prior to the date of this Agreement.

The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against any party hereto.  No summary of this Agreement prepared by any party shall affect the meaning or interpretation of this Agreement.  The parties hereto agree that they have been represented by counsel during the negotiation and execution of this Agreement and, therefore, waive the application of any Law, regulation, holding or ruling of construction providing that ambiguities in an agreement or other document shall be construed against the party drafting such agreement or document.

[The remainder of this page has been intentionally left blank.]

 

IN WITNESS WHEREOF, the Company, Parent and Sub have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above.

 

	TECUMSEH PRODUCTS COMPANY
	By:	/s/ Harold Karp
	Name:	Harold Karp
	Title:	President and Chief Executive Officer

	MA INDUSTRIAL JV LLC
	By:	/s/ Timothy J. Fazio
	Name:	Timothy J. Fazio
	Title:	Co-President

	By:	/s/ Gregory L. Christopher
	Name:	Gregory L. Christopher
	Title:	Co-President

	MA INDUSTRIAL SUB INC.
	By:	/s/ Timothy J. Fazio
	Name:	Timothy J. Fazio
	Title:	Co-President

	By:	/s/ Gregory L. Christopher
	Name:	Gregory L. Christopher
	Title:	Co-President

 

ANNEX I

Notwithstanding any other provision of the Offer, but subject to compliance with the terms and conditions of the Agreement, Sub shall not be required to accept for payment, or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the 1934 Act (relating to Sub’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), pay for, any Shares validly tendered pursuant to the Offer and not properly withdrawn prior to the expiration of the Offer, if:

 

The foregoing conditions are for the sole benefit of Parent and Sub and may be asserted by Parent or Sub regardless of the circumstances giving rise to any such conditions (except for circumstances caused by Parent’s or Sub’s failure to comply with its obligations under this Agreement) and may (other than the Minimum Condition) be waived by Parent or Sub in whole or in part at any time and from time to time in the sole discretion of either of them, in each case, subject to the terms of the Agreement and the applicable rules and regulations of the SEC.

The capitalized terms used in this Annex I shall have the meanings set forth in the Agreement to which it is annexed.

 

---