-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, AN5+l+BVZzG465ozeDKoqUYYKrPmVMQmf5HDcr49WHjZHTKLfv+j7qolKnyQVDML rJuisdLR082JwqDcG1PdGQ== 0000950123-01-509079.txt : 20020412 0000950123-01-509079.hdr.sgml : 20020412 ACCESSION NUMBER: 0000950123-01-509079 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20011207 GROUP MEMBERS: BAUMASCHINEN AG GROUP MEMBERS: PIN PRIVATSTIFTUNG FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: NEUSON AG CENTRAL INDEX KEY: 0001138880 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: HAIDFELDSTRASSE 37 STREET 2: LEODING CITY: AUSTRIA 4060 STATE: C4 ZIP: 00000 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GEHL CO CENTRAL INDEX KEY: 0000856386 STANDARD INDUSTRIAL CLASSIFICATION: FARM MACHINERY & EQUIPMENT [3523] IRS NUMBER: 390300430 STATE OF INCORPORATION: WI FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-40747 FILM NUMBER: 1809255 BUSINESS ADDRESS: STREET 1: 143 WATER STREET CITY: WEST BEND STATE: WI ZIP: 53095 BUSINESS PHONE: 2623349461 MAIL ADDRESS: STREET 1: 143 WATER STREET CITY: WEST BEND STATE: WI ZIP: 53095 SC 13D/A 1 y55629a1sc13da.txt AMENDMENT NO. 1 TO SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 1)* GEHL Company ------------------------------------------------------------------------------- (Name of Issuer) Common Stock - -------------------------------------------------------------------------------- (Title of Class of Securities) 368483103 - -------------------------------------------------------------------------------- (CUSIP Number) Freshfields Bruckhaus Deringer LLP 520 Madison Avenue - 34th Floor New York, New York 10022 212 - 277-4000 Attention: Jonathan R. Rod, Esq. - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 6, 2001 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: / / NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section l8 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP No. 368483103 Schedule 13D - -------------------------------------------------------------------------------- 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). Neuson AG - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group* (a) /_/ (b) /x/ - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds* WC - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) /_/ - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization Austria - -------------------------------------------------------------------------------- Number of 7. Sole Voting Power Shares Bene- ficially Owned 689,749 shares of Common Stock by Each ------------------------------------------------------------- Reporting 8. Shared Voting Power Person With ------------------------------------------------------------- 9. Sole Dispositive Power 689,749 shares of Common Stock ------------------------------------------------------------- 10. Shared Dispositive Power - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 689,749 shares of Common Stock - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares* /_/ - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) 12.9% - -------------------------------------------------------------------------------- 14. Type of Reporting Person* CO - -------------------------------------------------------------------------------- *See Instructions. CUSIP No. 368483103 Schedule 13D - -------------------------------------------------------------------------------- 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). Baumaschinen AG - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group* (a) /_/ (b) /x/ - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds* WC - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) /_/ - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization Austria - -------------------------------------------------------------------------------- Number of 7. Sole Voting Power Shares Bene- ficially Owned ------------------------------------------------------------- by Each 8. Shared Voting Power Reporting Person With 689,749 shares of Common Stock ------------------------------------------------------------- 9. Sole Dispositive Power ------------------------------------------------------------- 10. Shared Dispositive Power 689,749 shares of Common Stock - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 689,749 shares of Common Stock - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares* /_/ - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) 12.9% - -------------------------------------------------------------------------------- 14. Type of Reporting Person* CO - -------------------------------------------------------------------------------- *See Instructions. CUSIP No. 368483103 Schedule 13D - -------------------------------------------------------------------------------- 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). PIN Privatstiftung - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group* (a) /_/ (b) /x/ - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds* WC - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) /_/ - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization Austria - -------------------------------------------------------------------------------- Number of 7. Sole Voting Power Shares Bene- ficially Owned ------------------------------------------------------------- by Each 8. Shared Voting Power Reporting Person With 689,749 shares of Common Stock ------------------------------------------------------------- 9. Sole Dispositive Power ------------------------------------------------------------- 10. Shared Dispositive Power 689,749 shares of Common Stock - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 689,749 shares of Common Stock - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares* /_/ - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) 12.9% - -------------------------------------------------------------------------------- 14. Type of Reporting Person* OO - -------------------------------------------------------------------------------- *See Instructions. The following constitutes Amendment No. 1 (AMENDMENT NO. 1) to the Schedule 13D filed by the undersigned. This Amendment No. 1 amends the Schedule 13D as specifically set forth. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION Item 3 is amended to read as follows: Prior to April 24, 2001, Neuson held 303,650 Shares of the Issuer's common stock. On April 24, 2001, Neuson purchased 300 Shares in the open market at a total price of $4,391.50. On April 25, 2001, Neuson purchased 10,000 Shares in the open market at a total price of $145,319.04. On April 27, 2001, Neuson purchased 7,000 Shares in the open market at a total price of $104,178.71. On June 29, 2001, Neuson sold 1000 Shares in the open market at a total price of $17,832.71. On July 2, Neuson sold 1,500 Shares in the open market at a total price of $26,749.07. On July 5, 2001, Neuson sold 22,000 Shares in the open market at a total price of $392,319.65. On July 6, 2001, Neuson sold 500 Shares in the open market at a total price of $8,916.36. On July 11, 2001, Neuson sold 1,700 Shares in the open market at a total price of $30,315.61. On July 12, 2001, Neuson sold 2,300 Shares in the open market at a total price of $41,118.03. On July 13, 2001, Neuson sold 5,500 Shares in the open market at a total price of $98,079.91. On August 2, 2001, Neuson sold 100,000 Shares in the open market at a total price of $1,683,356.32. On October 9, 2001, Neuson purchased 65,000 Shares in the open market at a total price of $781,099.18. On October 10, 2001, Neuson purchased 1,000 Shares in the open market at a total price of $11,840.53. On October 11, 2001, Neuson purchased 1,000 Shares in the open market at a total price of $12,032.40. On October 12, 2001, Neuson purchased 6,500 Shares in the open market at a total price of $78,140.19. On October 15, 2001, Neuson purchased 1000 Shares in the open market at a total price of $12,032.40. On October 18, 2001, Neuson purchased 5,700 Shares in the open market at a total price of $69,056.19. On October 23, 2001, Neuson purchased 5,500 Shares at a total price of $66,003.05. On October 29, 2001, Neuson purchased 5,400 Shares in the open market at a total price of $66,029.83. On, October 31, 2001, purchased 15,200 Shares in the open market at a total price of $195,286.24. On November 7, 2001, Neuson purchased 4,100 Shares in the open market at a total price of $55,047.36. On November 8, 2001, Neuson purchased 5,000 Shares in the open market at a total price of $67,682.49. On November 13, Neuson purchased 9,500 Shares in the open market at a total price of $129,302.37. Including the Shares mentioned above, prior to December 6, 2001 Neuson owned an aggregate of 311,350 Shares, which were purchased for cash in the aggregate amount of $3,773,491.68. Working capital of Neuson was used to purchase such Shares, and no part of the purchase price was represented by borrowed funds. On December 6, 2001, pursuant to a Stock Purchase Agreement between Neuson and Newcastle Partners, L.P., Newcastle Focus Fund II, L.P. and CIC Equity Partners, Ltd., Neuson purchased an aggregate of 378,399 Shares at $20.00 a Share, at a total purchase price of $7,567,980. Taking into account the purchase of these Shares, Neuson now owns 689,749 Shares. ITEM 4. PURPOSE OF TRANSACTION Item 4 is amended to add the following: The Reporting Persons acquired and disposed of the Shares during the period beginning on April 24, 2001 and ending on December 6, 2001 for investment purposes. Depending on market conditions and other factors, the Reporting Persons may acquire additional Shares as they deem appropriate, whether in open market sales, privately negotiated transactions or otherwise. The Reporting Persons also reserve the right to dispose of Shares in the open market, in privately negotiated transactions with third parties or otherwise. Except as set forth herein, the Reporting Persons do not have any plans or proposals which would relate to or result in any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER Item 5 is amended to read as follows: (a) Neuson currently owns 689,749 Shares, representing approximately 12.9% of the issued and outstanding shares of the common stock of GEHL, based on the Issuer having issued and outstanding 5,348,775 Shares of common stock issued and outstanding on September 29, 2001 (according to the Issuer's most recent Quarterly Report on Form 10-Q). Baumaschinen and PIN may each be deemed to be the beneficial owners of the Shares owned by Neuson. (b) Neuson has sole voting and dispositive power with respect to the 689,749 Shares. Baumaschinen and PIN may be deemed to have shared voting and dispositive power with respect to the 689,749 Shares. (c) Other than as reported herein, the Reporting Persons have not conducted any transactions in the Shares in the past 60 days. (d) None. (e) The Reporting Persons ceased to be the beneficial owners of more than five percent of the Shares on August 2, 2001. The Reporting Persons became beneficial owners of more than five percent of the Shares on October 23, 2001. SIGNATURE After reasonable inquiry and to the best of their knowledge and belief the undersigned certify that the information set forth in this statement is true, complete and correct. Dated: December 7, 2001 NEUSON AG By:___________________________ Name: Title: By:___________________________ Name: Title: BAUMASCHINEN AG By:___________________________ Name: Title: PIN PRIVATSTIFTUNG By:___________________________ Name: Title: By:___________________________ Name: Title: EXHIBIT INDEX EXHIBIT 1. Joint Filing Agreement among Neuson AG, Baumaschinen AG and PIN Privatstiftung (previously filed). 2. Stock Purchase Agreement dated December 6, 2001, between Neuson AG as purchaser and Newcastle Partners, L.P., Newcastle Focus Fund II, L.P. and CIC Equity Partners, Ltd. as sellers. EX-99.2 3 y55629a1ex99-2.txt STOCK PURCHASE AGREEMENT STOCK PURCHASE AGREEMENT STOCK PURCHASE AGREEMENT, made and entered into this 6th day of December, 2001 (the "Agreement"), by and among the entities named on Schedule A hereto (individually, a "Seller" and, collectively, the "Sellers"), and Neuson AG (the "Purchaser"). WITNESSETH: WHEREAS, the Sellers are the beneficial owners of an aggregate of 378,399 shares of the common stock, $.10 par value per share (the "Shares"), of Gehl Company (the "Company"), WHEREAS, the Sellers desire to sell privately to the Purchaser, and the Purchaser desires to purchase privately from the Sellers, all upon the terms and subject to the conditions set forth in this Agreement, the Shares, WHEREAS, the Purchaser is purchasing the Shares privately from the Sellers for its own account as principal for investment purposes only and not with a view to, or for, resale or distribution thereof, and WHEREAS, the State of Wisconsin has an anti-greenmail statute and the Purchaser hereby acknowledges that it is not in discussions with the Company regarding any agreement, understanding or arrangement for the Company to purchase any or all of the Shares from the Purchaser and the Purchaser hereby represents and confirms that the purchase by the Purchaser of the Shares is not in any way an attempt by the Purchaser to pay "Greenmail" to the Sellers. NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements of the parties herein contained, each of the Sellers and the Purchaser hereby agree as follows: 1. Sale and Purchase of Shares. (a) Each Seller hereby privately sells, and the Purchaser hereby privately purchases from each Seller, the number of Shares set forth opposite each Seller's name on Schedule A hereto. (b) The purchase price for the Shares is $20.00 per Share, payable by wire transfer of immediately available funds (to bank accounts designated by each Seller on Schedule A hereto) concurrently with the execution of this Agreement. (c) Concurrently with the execution of this Agreement, each Seller shall deliver to the Purchaser (or the Purchaser's agent) (i) an irrevocable letter of instruction addressed to such Seller's brokerage firm instructing such brokerage firm to deliver the Shares held in street name and purchased from such Seller pursuant hereto through the Depository Trust Company by "DWAC" delivery to DTC 997 for State Street Bank, Boston, Account Number 5K68, Creditanstalt for credit to Neuson AG, Vienna, Account Number 09566362100 and (ii) with respect to Shares held of record and beneficially, a certificate or certificates representing such Shares duly endorsed for transfer or accompanied by appropriate stock powers duly executed. (d) This transaction shall close simultaneously with the execution of this Agreement by all the parties hereto at the offices of Olshan Grundman Frome Rosenzweig & Wolosky LLP, 505 Park Avenue, New York, New York 10022, or at such other place as the Sellers and the Purchaser shall agree. 2. Representations and Warranties of the Sellers. Each Seller hereby represents and warrants to the Purchaser severally, for itself only, as follows: 2.1 Ownership of Shares. The Shares set forth opposite the Seller's name on Schedule A hereto are solely owned by such Seller, validly issued, fully paid and non-assessable and are free and clear of any and all liens, encumbrances, claims, charges and assessments and subject to no options, agreements, or restrictions with respect to transferability. 2.2 Authorization. The Seller has all requisite power, legal capacity and authority to enter into this Agreement and to assume and perform its obligations hereunder. This Agreement when duly executed and delivered by the Seller will constitute a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally or by the principles governing the availability of equitable remedies. 2.3 Available Information. The Seller acknowledges that it is familiar with the business, financial condition and affairs of the Company and is therefore able to determine fair value for the sale of the Shares and is not relying on any information provided by the Purchaser. 3. Representations and Warranties of the Purchaser. The Purchaser represents and warrants to each of the Sellers as follows: 3.1 Authorization. The Purchaser has all requisite power, legal capacity and authority to enter into this Agreement and to assume and perform its obligations hereunder. This Agreement when duly executed and delivered by the Purchaser will constitute a legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally or by the principles governing the availability of equitable remedies. 2 3.2 Investment. The Purchaser is acquiring the Shares for Purchaser's own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person or entity has a direct or indirect beneficial interest in the Shares. The Purchaser does not have any contract, undertaking, agreement or arrangement with any person or entity to sell, transfer or grant participations to such person or entity or to any third person or entity with respect to any of the Shares including, but not limited to, the Company. 3.3 Available Information. The Purchaser acknowledges that it is familiar with the business, financial condition and affairs of the Company and is therefore able to evaluate the merits and risks of a purchase of the Shares and is not relying on any information provided by the Sellers. 4. Indemnification. 4.1 Indemnification by the Sellers. The Sellers shall, severally and not jointly, indemnify and hold harmless the Purchaser from and against any and all losses, liabilities, damages, demands, claims, suits, actions, judgments or causes of action, assessments, costs and expenses including, without limitation, interest, penalties, reasonable attorneys' fees, any and all reasonable expenses incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation (collectively, "Damages"), asserted against, resulting to, imposed upon, or incurred or suffered by the Purchaser, directly or indirectly, as a result of or arising from any inaccuracy in or breach of any of the representations, warranties or agreements made in this Agreement of the Sellers, or the non-performance of any covenant or obligation to be performed by the Sellers under this Agreement (individually an "Indemnifiable Claim" and collectively "Indemnifiable Claims" when used in the context of the Purchaser as the Indemnified Party (as defined below)). 4.2 Indemnification by the Purchaser. The Purchaser shall indemnify and hold each Seller harmless from and against any and all Damages asserted against, resulting to, imposed upon, or incurred or suffered by such Seller, directly or indirectly, as a result of or arising from any inaccuracy in or breach of any of the representations, warranties or agreements made in this Agreement of the Purchaser or the non-performance of any covenant or obligation to be performed by the Purchaser under this Agreement (individually an "Indemnifiable Claim" and collectively "Indemnifiable Claims" when used in the context of any Seller as the Indemnified Party). 4.3 Indemnification of Affiliates. Without duplication of Damages, the Purchaser and the Sellers, as the case may be, shall be deemed to have suffered Damages arising out of or resulting from the matters referred to in subsection 4.1 or 4.2 above if the same shall be suffered by any parent, subsidiary or Affiliate of the Purchaser or Sellers, as the case may be. "Affiliate" means, with respect to any entity, a second entity that is controlled by, controls or is under common control with, such first entity 3 and shall include the officers and directors of such first entity. For purposes of the foregoing, "control" of any entity means the power to direct the management and policies of such entity, whether by the ownership of voting securities or other beneficial interest, by contract or otherwise. 4.4 Procedure for Indemnification with Respect to Third Party Claims. The party seeking indemnification (the "Indemnified Party") shall give the party from whom indemnification is sought (the "Indemnifying Party") prompt written notice of any third party claim, demand, assessment, suit or proceeding to which the indemnity set forth in this Section 4 applies which notice shall describe said claim in reasonable detail (the "Indemnification Notice"). Notwithstanding the foregoing, the Indemnified Party shall not have any obligation to give any notice of any assertion of liability by a third party unless such assertion is in writing, and the rights of the Indemnified Party to be indemnified hereunder in respect of any third party claim shall not be adversely affected by its failure to give notice pursuant to the foregoing unless and, if so, only to the extent that, the Indemnifying Party is materially prejudiced procedurally or prejudiced in any way substantially thereby. The Indemnifying Party shall have the right to control the defense or settlement of any such action subject to the provisions set forth below in the event such claim solely involves an action for monetary damages and could not reasonably be expected to affect the Indemnified Party's business going forward, but the Indemnified Party may, at its election, participate in the defense of any action or proceeding at its sole cost and expense. Notwithstanding the foregoing, if there exists a conflict of interest in the reasonable judgment of counsel for the Indemnified Party that would make it inappropriate for the same counsel to represent both the Indemnified Party, on the one hand, and the Indemnifying Party, on the other hand, in connection with any Indemnifiable Claim, then the Indemnified Party shall be entitled to retain its own counsel (which shall be a single counsel and any required local counsel) as is reasonably satisfactory to the Indemnifying Party at the Indemnifying Party's expense, but such counsel shall be employed only to deal with matters directly affected by and involving the conflict of interest. In the event that such Indemnified Party shall seek indemnification as provided herein, such Indemnified Party shall make available to the Indemnifying Party, at its expense, all witnesses, pertinent records, materials and information in the Indemnified Party's possession or under the Indemnified Party's control relating thereto as is reasonably required by the Indemnifying Party. Should the Indemnifying Party fail to defend any such Indemnifiable Claim (except for failure resulting from the Indemnified Party's failure to timely give notice of such Indemnifiable Claim or failure to make the pertinent records, materials and information in the Indemnified Party's possession or under the Indemnified Party's control available to the Indemnifying Party, as reasonably required thereby), then, in addition to any other remedy, the Indemnified Party may settle or defend such action or proceeding through counsel of its own choosing and may recover from the Indemnifying Party the amount of such settlement, demand, or any judgment or decree and all of its costs and expenses, including reasonable fees and disbursements of counsel. Except as permitted in the preceding sentence, the Indemnifying Party shall not be liable for any settlement effected without its written consent, which consent shall not be unreasonably withheld; provided, however, if such approval is unreasonably withheld, the liability of the Indemnifying 4 Party shall be limited to the amount of the proposed compromise or settlement and the amount of the Indemnified Party's reasonable counsel fees incurred in defending such claim, as permitted by the preceding sentence, at the time such consent is unreasonably withheld. Notwithstanding the preceding sentence, the right of the Indemnified Party to compromise or settle any claim without the prior written consent of the Indemnifying Party shall only be available if a complete release of the Indemnifying Party is contemplated to be part of the proposed compromise or settlement of such third party claim. 5. General Provisions. 5.1 Entire Agreement; Amendment and Waiver. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter contained herein and supersedes all prior oral or written agreements, if any, between the parties hereto with respect to such subject matter and, except as otherwise expressly provided herein, is not intended to confer upon any other person any rights or remedies hereunder. Any amendments hereto or modifications hereof must be made in writing and executed by each of the parties hereto. Any failure by the Sellers or the Purchaser to enforce any rights hereunder shall not be deemed a waiver of such rights. 5.2 Notices. All notices, requests, demands and other communications given or made hereunder shall be in writing and shall be deemed to have been duly given when delivered personally or by facsimile transmission, in either case with receipt acknowledged, or one day after being sent by overnight courier to the Sellers at their respective addresses set forth on Schedule A hereto or the Purchaser at its address set forth on the signature page of this Agreement, and, in each case, to such other address as any party shall have given to the other party by similar notice. 5.3 GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE PERSONAL AND SUBJECT MATTER JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND THE SUPREME COURT OF THE STATE OF NEW YORK LOCATED IN THE BOROUGH OF MANHATTAN OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW, (A) THE RIGHT TO TRIAL BY JURY; (B) ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT; AND (C) ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. FINAL JUDGEMENT IN ANY SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON EACH PARTY DULY SERVED WITH PROCESS THEREIN AND MAY BE ENFORCED IN THE 5 COURTS OF THE JURISDICTION OF WHICH EITHER PARTY OR ANY OF THEIR PROPERTY IS SUBJECT, BY A SUIT UPON SUCH JUDGEMENT. 5.4 Binding Effect; Assignment. This Agreement and the various rights and obligations arising hereunder shall inure to the benefit of and be binding upon the Sellers and the Purchaser and their respective successors and assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be transferred or assigned (by operation of law or otherwise) by any of the parties hereto without the prior written consent of the other parties hereto, provided that nothing herein shall limit the Purchaser's ability to transfer the Shares without consent following the close of the transaction hereunder. Any transfer or assignment of any of the rights, interests or obligations hereunder in violation of the terms hereof shall be void and of no force or effect. 5.5 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by virtue of any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto 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 to the end that the transactions contemplated hereby are fulfilled to the maximum extent possible. 5.6 Survival of Representations and Warranties. All representations and warranties made by the parties to this Agreement shall survive the execution and delivery of this Agreement. 5.7 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. (Remainder of this page intentionally left blank.) 6 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day and year first above written. SELLERS: NEWCASTLE PARTNERS, L.P. By: /s/ Mark E. Schwarz ----------------------------------- Name: Mark E. Schwarz Title: General Partner NEWCASTLE FOCUS FUND II, L.P. By: Newcastle Capital Management, L.P. By: Newcastle Capital Group, L.L.C., Its General Partner By: /s/ Mark E. Schwarz ----------------------------------- Name: Mark E. Schwarz Title: General Partner CIC EQUITY PARTNERS, LTD. By: SLP Consultants, Inc., Its General Partner By: /s/ Paul DeRobbio ----------------------------------- Name: Paul DeRobbio Title: President PURCHASER: NEUSON AG By: /s/ Kurt Helletzgruber ----------------------------------- Name: Kurt Helletzgruber Title: Managing Director Address of Purchaser: A-4060 Linz-Leonding Austria, Haidfeldstrasse 37 7 Schedule A
Number of Shares Bank Account Information for Name and Address of Seller of Common Stock Purchase Price Wiring of Purchase Price -------------------------- --------------- -------------- ----------------- Newcastle Partners, L.P. 200 Crescent Court Suite 670 Dallas, Texas 75201 126,599 $2,531,980 See below Newcastle Focus Fund II, L.P. 200 Crescent Court Suite 670 Dallas, Texas 75201 154,000 $3,080,000 See below CIC Equity Partners, Ltd. Three Lincoln Centre 5430 LBJ Freeway Suite 1700 Dallas, Texas 75240 97,800 $1,956,000 See below --------- ---------- TOTAL 378,399 $7,567,980
Fed Funds Wire Instructions for: Newcastle Partners, L.P. and Newcastle Focus Fund II, L.P. Bank of America NA, Concord, CA 94520 ABA# 121 000 358 For Credit To: Banc of America Securities LLC 600 Montgomery Street, San Francisco, CA 94111 A/C# 406-15536 For Further Credit To: Newcastle Partners, L.P. A/C# 118-13527 Newcastle Focus Fund II, LP A/C# 118-14720 8 Wire Instructions for CIC Equity Partners, LTD.: First Union National Bank Roanoke, Virginia ABA #051400549 Account of First Clearing Corporation Account #5050000000631 For Further Credit to: CIC Equity Partners, Ltd. A/C# 1975-8566 -----END PRIVACY-ENHANCED MESSAGE-----