EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
AMONG
3333 HOLDING CORPORATION,
CENTEX CORPORATION,
AND
3333 ACQUISITION CORP.
DATED AS OF NOVEMBER 17, 2003
TABLE OF CONTENTS
Page
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ARTICLE I The Merger................................................................................ 2
SECTION 1.1 The Merger...................................................................... 2
SECTION 1.2 Closing......................................................................... 2
SECTION 1.3 Effective Time.................................................................. 2
SECTION 1.4 Effects of the Merger........................................................... 2
SECTION 1.5 Articles of Incorporation; By-laws.............................................. 3
SECTION 1.6 Directors....................................................................... 3
SECTION 1.7 Officers........................................................................ 3
SECTION 1.8 Effect on Capital Stock......................................................... 3
SECTION 1.9 Cancellation of Centex Warrants................................................. 4
SECTION 1.10 Further Assistance.............................................................. 4
SECTION 1.11 Approval and Recommendation of the Board........................................ 5
ARTICLE II Proxy Statement; Stockholders' Meeting................................................... 5
SECTION 2.1 Proxy Statement................................................................. 5
SECTION 2.2 Stockholders' Meeting........................................................... 6
ARTICLE III No Dissenters' Rights; Payment for Common Stock; Related Matters........................ 7
SECTION 3.1 No Dissenters' Rights........................................................... 7
SECTION 3.2 Payment for Shares.............................................................. 7
ARTICLE IV Representations and Warranties of the Company............................................ 7
SECTION 4.1 Corporate Existence and Power................................................... 7
SECTION 4.2 Corporate Authorization; Approvals.............................................. 8
SECTION 4.3 Governmental Authorization...................................................... 8
SECTION 4.4 Non-Contravention............................................................... 8
SECTION 4.5 Capitalization.................................................................. 9
SECTION 4.6 Subsidiaries.................................................................... 10
SECTION 4.7 Past SEC Documents; Undisclosed Liabilities..................................... 11
SECTION 4.8 Disclosure Statements........................................................... 11
SECTION 4.9 Absence of Certain Changes...................................................... 11
SECTION 4.10 Litigation...................................................................... 12
SECTION 4.11 [reserved]...................................................................... 12
SECTION 4.12 Compliance with Laws; Licenses, Permits and Registrations....................... 12
SECTION 4.13 Contracts....................................................................... 12
SECTION 4.14 Properties...................................................................... 13
SECTION 4.15 Required Vote; Board Approval................................................... 13
SECTION 4.16 [reserved]...................................................................... 13
SECTION 4.17 Finders' Fees................................................................... 13
SECTION 4.18 Opinion of the Company Financial Advisor........................................ 13
SECTION 4.19 [reserved]...................................................................... 14
ARTICLE V Representations and Warranties of Centex and Acquirer..................................... 14
SECTION 5.1 Corporate Existence and Power................................................... 14
SECTION 5.2 Corporate Authorization; Approvals.............................................. 14
SECTION 5.3 Governmental Authorization...................................................... 14
SECTION 5.4 Non-Contravention............................................................... 15
SECTION 5.5 Information in Securities Filings............................................... 15
SECTION 5.6 Finders' Fees................................................................... 15
ARTICLE VI Covenants................................................................................ 15
SECTION 6.1 Conduct of Business of the Company.............................................. 15
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SECTION 6.2 Indemnification and Insurance................................................... 16
SECTION 6.3 Other Proposals................................................................. 17
SECTION 6.4 Public Announcements............................................................ 19
ARTICLE VII Conditions to Consummation of the Merger................................................ 20
SECTION 7.1 Conditions to Each Party's Obligation........................................... 20
SECTION 7.2 Conditions to Acquirer's and Centex's Obligation................................ 20
SECTION 7.3 Conditions to the Company's Obligation.......................................... 21
ARTICLE VIII Termination; Amendment; Waiver......................................................... 21
SECTION 8.1 Termination..................................................................... 21
SECTION 8.2 Effect of Termination........................................................... 22
SECTION 8.3 Amendment....................................................................... 23
SECTION 8.4 Extension; Waiver............................................................... 23
ARTICLE IX Miscellaneous............................................................................ 23
SECTION 9.1 Nonsurvival of Representations, Warranties and Agreements....................... 23
SECTION 9.2 Entire Agreement; Assignment.................................................... 23
SECTION 9.3 Validity........................................................................ 24
SECTION 9.4 Notices......................................................................... 24
SECTION 9.5 Defined Terms................................................................... 25
SECTION 9.6 Governing Law................................................................... 26
SECTION 9.7 Descriptive Headings............................................................ 26
SECTION 9.8 Parties in Interest............................................................. 26
SECTION 9.9 Counterparts.................................................................... 27
SECTION 9.10 Expenses........................................................................ 27
SECTION 9.11 Specific Performance............................................................ 27
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER, dated as of November 17, 2003 (this
"AGREEMENT"), is entered into by and among 3333 HOLDING CORPORATION, a Nevada
corporation (the "COMPANY"), CENTEX CORPORATION, a Nevada corporation
("CENTEX"), and 3333 ACQUISITION CORP., a Nevada corporation and a wholly-owned
subsidiary of Centex ("ACQUIRER").
R E C I T A L S
A. The holders of Centex common stock, par value $.25 per share
(the "CENTEX COMMON STOCK"), collectively (i) through their ownership of Centex
Common Stock, beneficially own all of the issued and outstanding shares of
common stock, par value $.01 per share, of Acquirer, and (ii) through a nominee
arrangement with Mellon Investor Services LLC ("NOMINEE"), beneficially own all
of the shares of common stock, par value $.01 per share ("COMMON STOCK"), of the
Company.
B. Centex and the Company desire that Acquirer be merged with and
into the Company (the "MERGER"), upon the terms and subject to the conditions
set forth in this Agreement and in accordance with the applicable provisions of
the Nevada Revised Statutes, as amended (the "NRS"), pursuant to which the
Common Stock will be canceled and the beneficial interest in the Common Stock
will be converted into the right to receive the Merger Consideration (as defined
in Section 1.8(d) below).
C. A special committee of the Board of Directors of the Company
(the "SPECIAL COMMITTEE") and the Board of Directors of the Company have
received the opinion of Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Financial Advisors, Inc.
(the "COMPANY FINANCIAL ADVISOR"), dated as of November 17, 2003 (the "FAIRNESS
OPINION") to the effect that, based on, and subject to, the various assumptions
and qualifications set forth therein, as of the date of such opinion, the
Transaction (as defined in Schedule 1), including the Merger Consideration (as
defined in Section 1.8(d) below) to be received by the Company's stockholders
pursuant to the Merger, is fair from a financial point of view to such holders.
D. The Special Committee has, based in part on the determination
of the Company Financial Advisor, approved this Agreement, determined and
declared that this Agreement, the Merger and the transactions contemplated
hereby are fair to, advisable, and in the best interests of, the Company's
stockholders and has recommended approval of the Merger and adoption of the
Agreement by the Board of Directors and the stockholders of the Company.
E. The Board of Directors of the Company has, based in part on
the determination of the Special Committee, (i) determined and declared that
this Agreement, the Merger and the transactions contemplated hereby are fair to,
advisable and in the best interests of, the Company and its stockholders, (ii)
approved this Agreement and, subject to obtaining the approval of the
stockholders of the Company as required under applicable law, the Merger, and
(iii) has determined to submit this Agreement to the stockholders of the Company
for approval.
F. The affirmative vote of the holders of a majority of the
beneficial interest in the shares of Common Stock outstanding and entitled to
vote at the Stockholders' Meeting (as defined in Section 2.2 below) is required
to adopt this Agreement for the Merger.
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G. The Board of Directors of the Company has directed that this
Agreement be submitted to the stockholders of the Company at the Stockholders'
Meeting (as defined in Section 2.2 below).
H. The Board of Directors of Acquirer has (i) determined that
this Agreement and the Merger are fair to and in the best interests of Acquirer
and its sole stockholder, and (ii) approved this Agreement and adopted the
Merger as set forth herein.
I. The sole stockholder of Acquirer has approved this Agreement
and the Merger by written consent of such sole stockholder.
J. Centex, Acquirer and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger and also to prescribe various conditions to the Merger.
NOW, THEREFORE, in consideration of the respective covenants and
promises contained herein and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
ARTICLE I
THE MERGER
SECTION 1.1 The Merger. Upon the terms and subject to the conditions
hereof, and in accordance with the applicable provisions of the NRS, Acquirer
shall be merged with and into the Company. The Company shall continue as the
surviving corporation (the "SURVIVING CORPORATION") in the Merger and the
separate corporate existence of Acquirer shall cease (Acquirer and the Company
are sometimes referred to herein as the "CONSTITUENT CORPORATIONS").
SECTION 1.2 Closing. Unless this Agreement has been terminated and the
transactions herein contemplated have been abandoned pursuant to Article VIII,
and subject to the satisfaction or waiver of the conditions set forth in Article
VII, the closing of the Merger (the "CLOSING") will take place at 12:00 p.m. on
the first business day after satisfaction or waiver of the conditions set forth
in Article VII (the "CLOSING DATE"), at the offices of Xxxxxxxx & Knight LLP,
0000 Xxxxxxx Xxx., Xxxxx 0000, Xxxxxx, Xxxxx, unless another date, time or place
is agreed to by the parties hereto, but in no event later than March 31, 2004.
SECTION 1.3 Effective Time. On the Closing Date, the Surviving
Corporation shall file articles of merger (the "ARTICLES OF MERGER") executed in
accordance with the NRS, with the Secretary of State of the State of Nevada (the
"SECRETARY"), and the Merger shall become effective at 8:59 p.m. Pacific Time
on the date the Articles of Merger are accepted for filing by the Secretary or
at such other time as is specified in the Articles of Merger to which Acquirer
and the Company shall have agreed (the time the Merger becomes effective being
the "EFFECTIVE TIME").
SECTION 1.4 Effects of the Merger. The Merger shall have the effects
set forth in the Section 92A.250 of the NRS and all other effects specified in
the applicable provisions of the NRS, including, without limitation, that at the
Effective Time, all the properties, rights, privileges, powers and franchises of
the Company and Acquirer shall vest in the Surviving
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Corporation, and all debts, liabilities and duties of the Company and Acquirer
shall become the debts, liabilities and duties of the Surviving Corporation.
SECTION 1.5 Articles of Incorporation; By-laws.
(a) The articles of incorporation of Acquirer, as in effect immediately
prior to the Effective Time, shall become the articles of incorporation of the
Surviving Corporation, except that the name of the Surviving Corporation shall
remain the name of the Company and, as so amended, until thereafter further
amended as provided therein and under the NRS, it shall be the articles of
incorporation of the Surviving Corporation following the Merger.
(b) The by-laws of Acquirer as in effect at the Effective Time shall be
the by-laws of Surviving Corporation following the Merger until thereafter
changed or amended as provided therein and under the NRS.
SECTION 1.6 Directors. At the Effective Time, each of the directors of
the Company shall resign from their respective positions on the Boards of
Directors of the Company and any of its Subsidiaries. The directors of Acquirer
immediately prior to the Effective Time shall be the directors of the Surviving
Corporation, until the earlier of their resignation or removal or until their
respective successors are duly elected and qualified as the case may be.
A "SUBSIDIARY" of any person means another person if the first person
or a subsidiary thereof owns an amount of the voting securities, other voting
ownership or voting partnership interests which is sufficient to elect at least
a majority of its Board of Directors (or other governing body) of such person
or, if there are no such voting interests, if the first person or a subsidiary
thereof owns 50% or more of the equity interests of such person. Notwithstanding
anything in this Agreement to the contrary, any representation or warranty of
the Company with respect to Centex Development Company UK Limited and its
Subsidiaries (which Centex acknowledges are managed by Centex Homes, an
affiliate of Centex, pursuant to a Management Agreement dated as of April 1,
2001 between CDC (as defined in Section 1.8(b)) and Centex Homes) is limited to
the Knowledge of the Company.
As used in this Agreement, the term "KNOWLEDGE" when referring to the
Company or any Subsidiary of the Company means the actual knowledge of the
Company's current officers and directors without the conduct by any such person
of any independent investigation.
SECTION 1.7 Officers. The officers of the Company immediately prior to
the Effective Time shall be the officers of the Surviving Corporation, all such
officers to hold office from the Effective Time until the earlier of their
resignation or removal or until their respective successors are duly elected and
qualified as the case may be.
SECTION 1.8 Effect on Capital Stock. As of the Effective Time, by
virtue of the Merger and without any action on the part of Acquirer, the
Company, the Surviving Corporation or the holder of any shares of the Common
Stock or any shares of capital stock of Acquirer:
(a) Capital Stock of Acquirer. Each share of common stock of Acquirer
issued and outstanding immediately prior to the Effective Time shall be
converted into one fully paid and nonassessable share of the common stock, par
value $.01 per share, of the Surviving Corporation.
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(b) Termination of Nominee Agreement. Pursuant to Section 8.3 of the
Nominee Agreement dated November 30, 1987 by and between Centex, the Company,
Centex Development Company, L.P. ("CDC") and First RepublicBank Dallas, National
Association, as initial Nominee, as amended by the contemplated amendment (the
"NOMINEE AGREEMENT"), subject to and upon the approval by the stockholders of
Centex, which approval will be sought at the Stockholders' Meeting (as defined
in Section 2.2 below), and the consummation of the Merger and the CDC Merger (as
defined in Section 7.1(c) below), the Nominee Agreement will be terminated and
canceled in all respects without effectuation of the Detachment (as defined in
the Nominee Agreement) of the Deposited Securities (as defined in the Nominee
Agreement).
(c) Cancellation of Company Treasury Stock. Each share of the Common
Stock that is owned by the Company or by any Subsidiary of the Company, if any,
shall automatically be canceled and retired and shall cease to exist, and no
consideration shall be delivered or deliverable in exchange therefor.
(d) Conversion of Common Stock. Each share of Common Stock issued and
outstanding immediately prior to the Effective Time, other than shares to be
canceled in accordance with Section 1.8(c), shall, by virtue of the Merger and
without any action on the part of the Nominee or the beneficial holders thereof,
be converted into the right to receive from the Surviving Corporation, and
Centex shall cause the Surviving Corporation to pay pursuant to this Agreement,
without interest, consideration equal to an amount that provides to each holder
of a beneficial interest in the Common Stock $.01 in cash per share of Centex
Common Stock held by such holder at the Effective Time (the "MERGER
CONSIDERATION"), less any required tax withholding. At the Effective Time, all
such shares of the Common Stock shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to exist, and each
beneficial owner of a certificate representing any such shares of the Common
Stock, held by the Nominee on behalf of such beneficial owners, shall, to the
extent such certificate represents such shares, cease to have any rights with
respect thereto, except the right to receive the Merger Consideration applicable
thereto, without interest, in accordance with Section 3.2.
As used in this Agreement the term "MERGER CONSIDERATION" shall mean
the per share amount in reference to the consideration designated on a per share
basis and, as the context otherwise requires, shall refer to the aggregate
consideration represented by the per share amount multiplied by the total number
of shares of Centex Common Stock then outstanding.
SECTION 1.9 Cancellation of Centex Warrants. At the Effective Time,
the outstanding warrants to purchase 100 shares of Common Stock owned by Centex
(subject to adjustment) at an exercise price of $800 per share (subject to
adjustment) ("CENTEX WARRANTS"), shall automatically be canceled and retired and
shall cease to exist, and no consideration shall be delivered or deliverable in
exchange therefor.
SECTION 1.10 Further Assistance. If at any time after the Effective
Time, the Surviving Corporation shall consider or be advised that any deeds,
bills of sale, assignments or assurances or any other acts or things are
necessary, desirable or proper (i) to vest, perfect or confirm, of record or
otherwise, in the Surviving Corporation its right, title or interest in, to or
under any of the rights, properties or assets of the Constituent Corporations
acquired or to be acquired as a result of the Merger or (ii) otherwise to carry
out the purposes of this Agreement, the Surviving Corporation and its proper
officers and directors or their designees are authorized to execute and deliver,
in the name and on behalf of the Constituent Corporations, all such deeds,
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bills of sale, assignments and assurances and do, in the name and on behalf of
the Constituent Corporations, all such other acts and things necessary,
desirable or proper to vest, perfect or confirm its right, title or interest in,
to or under any of the rights, properties or assets of the Constituent
Corporations acquired or to be acquired as a result of the Merger and otherwise
to carry out the purpose of this Agreement.
SECTION 1.11 Approval and Recommendation of the Board. The Company
hereby approves of and consents to the Merger and represents that the Board of
Directors of the Company (hereafter, the "COMPANY BOARD"), at a meeting duly
called and held on November 17, 2003, with Xxxxxxx X. Xxxxxxxx abstaining
because of his joint current employment relationship with Centex Service
Company, a wholly owned subsidiary of Centex, adopted resolutions, in accordance
with the recommendation of the Special Committee, (i) determining that this
Agreement and the transactions contemplated hereby, including the Merger, are
fair to, and in the best interests of, the Company and its stockholders, (ii)
approving, adopting and declaring advisable this Agreement and the transactions
contemplated hereby and (iii) recommending that the stockholders of the Company
vote in favor of the Merger, subject to the Company Board's right to withdraw,
modify or amend such recommendation if the Company Board or Special Committee
determines in good faith, after receipt of the advice of its outside counsel,
that such action is necessary for the Company Board to comply with its fiduciary
duties under applicable law. The Company agrees to execute an amendment to the
Nominee Agreement, in the form previously provided, that will allow, subject to
the affirmative vote of the stockholders of Centex, which approval will be
sought at the Stockholders' Meeting (as defined in Section 2.2 below), for the
termination of the Nominee Agreement in all respects without effectuation of a
Detachment (as defined in the Nominee Agreement) or distribution of the
Deposited Securities (as defined in the Nominee Agreement). The Company
Financial Advisor has delivered to the Special Committee its Fairness Opinion to
the effect that, as of the date of such opinion, the Transaction, including the
Merger Consideration, is fair to the Company's stockholders from a financial
point of view.
ARTICLE II
PROXY STATEMENT; STOCKHOLDERS' MEETING
SECTION 2.1 Proxy Statement.
(a) As promptly as practicable after the execution of this Agreement,
the Company and Centex shall cooperate (with the cooperation of the Acquirer as
needed) and promptly prepare and file with the Securities and Exchange
Commission ("SEC") a joint proxy statement relating to the meetings of the
Company's and Centex's stockholders to be jointly held where (a) the Centex
Stockholders will be asked to (1) approve an amendment to the Restated Articles
of Incorporation of Centex to increase the authorized shares of Centex Common
Stock, and (2) approve the termination of the Nominee Agreement in order to
facilitate the Transaction, and (b) the Company Stockholders will be asked to
approve the Transaction, including the Merger and this Agreement (collectively,
together with any amendments thereof or supplements thereto, the "PROXY
STATEMENT"), with respect to the Merger and any other filings made by or
required to be made by the Company or Centex with the SEC other than the Proxy
Statement (the "OTHER FILINGS"), if any. The respective parties shall cause the
Proxy Statement and any Other Filings to comply as to form in all material
respects with the applicable provisions of the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder (the "EXCHANGE
ACT"), including Regulation 14A, and any other applicable laws. The respective
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parties, after consultation with the other, will use all reasonable efforts to
respond to any comments made by the SEC with respect to the Proxy Statement and
any Other Filings. Each of Centex, Acquirer and the Company shall furnish to
each other all information concerning it and the holders of its capital stock as
the other may reasonably request in connection with such actions and the
preparation of the Proxy Statement and any Other Filings.
As promptly as practicable after the clearance of the Proxy Statement
by the SEC, the Company and Centex shall mail the Proxy Statement to their
stockholders (or, if the SEC chooses not to review the Proxy Statement, within
20 days after the date that the SEC notifies the Company and Centex that it will
not review the Proxy Statement, unless otherwise agreed by the Company and
Centex). The Proxy Statement shall include the recommendation of the Company
Board that adoption of the Merger Agreement by the Company's stockholders is
advisable and that the Company Board has determined that the Merger is fair to,
and in the best interests of, the Company's stockholders, subject to the Company
Board's right to withdraw, modify or amend such recommendation if the Company
Board or Special Committee determines in good faith, after receipt of the advice
of its outside counsel and the Company Financial Advisor, that such action is
necessary for the Company Board to comply with its fiduciary duties under
applicable law.
No amendment or supplement to the Proxy Statement or any Other Filings
will be made by the Company without the prior approval of Centex, which approval
shall not be unreasonably withheld, delayed or conditioned. The Company will
advise Centex or Acquirer, promptly after it receives notice thereof, of any
request by the SEC for amendment of the Proxy Statement or any Other Filings or
comments thereon and responses thereto or requests by the SEC for additional
information.
(b) Each of the parties agrees to use its reasonable best efforts to
cooperate and to provide each other with such information as any of such parties
may reasonably request in connection with the preparation of the Proxy Statement
and the Other Filings. Each party agrees promptly to supplement, update and
correct any information provided by it for use in the Proxy Statement and the
Other Filings to the extent that it is or shall have become incomplete, false or
misleading. If at any time prior to the Effective Time, any event or
circumstance relating to Centex or Acquirer or their respective officers and
directors, should be discovered by Centex which should be set forth in an
amendment to the Proxy Statement or Other Filings, Centex shall promptly inform
the Company. If at any time prior to the Effective Time, any event or
circumstance relating to the Company, or its officers or directors, should be
discovered by the Company which should be set forth in an amendment or a
supplement to the Proxy Statement or any Other Filing, the Company shall
promptly inform Centex.
SECTION 2.2 Stockholders' Meeting. Subject to Section 6.3 of this
Agreement, and in accordance with the Company's and Centex's respective articles
of incorporation and by-laws, the Company and Centex shall call and hold a joint
meeting of their stockholders (the "STOCKHOLDERS' MEETING") as promptly as
practicable for the purpose of (a) the Centex Stockholders voting to approve (1)
an amendment to the Restated Articles of Incorporation of Centex to increase the
authorized shares of Centex Common Stock, and (2) the termination of the Nominee
Agreement in order to facilitate the series of transactions that includes the
Merger, and (b) the Company Stockholders voting to approve the Merger and this
Agreement. Subject to Section 6.3 of this Agreement, the Company and Centex
shall use their reasonable best efforts to
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hold the Stockholders' Meeting as promptly as practicable after the date on
which the Proxy Statement is cleared by the SEC.
ARTICLE III
NO DISSENTERS' RIGHTS; PAYMENT FOR COMMON STOCK; RELATED MATTERS
SECTION 3.1 No Dissenters' Rights. Pursuant to the provisions of NRS
Section 92A.390, the holders of Common Stock shall not have any dissenters'
rights or rights of appraisal as a result of the Merger and shall be entitled to
receive only the Merger Consideration.
SECTION 3.2 Payment for Shares.
(a) Prior to the Effective Time, Centex will engage a paying agent (the
"PAYING AGENT") for the payment of the Merger Consideration upon consummation of
the Merger. Promptly following the Effective Time, Centex shall cause the
Surviving Corporation to provide to the Paying Agent cash in an amount
sufficient to pay the Merger Consideration pursuant to Section 1.8. All of the
fees and expenses of the Paying Agent shall be borne by the Surviving
Corporation.
(b) As soon as practicable after the Effective Time, the Paying Agent
shall cause to be delivered to each beneficial holder of Common Stock (as
determined by such holder's status as a record holder of Centex Common Stock)
immediately prior to the Effective Time a check in the amount to which such
holder is entitled, after giving effect to any required tax withholdings.
(c) No payment of Merger Consideration can be paid to an owner of
Common Stock which is not registered in the transfer records of the Company,
unless such holder notifies Centex in writing as specified in the Proxy
Statement prior to the Effective Time and such notice is accompanied by all
documents required by the Company and the transfer agent, as the case may be, to
evidence and effect a transfer of ownership in the transfer records of the
Company prior to the Effective Time.
(d) From and after the Effective Time there shall be no transfers on
the stock transfer books of the Surviving Corporation of the shares of Common
Stock that were outstanding immediately prior to the Effective Time.
(e) The Merger Consideration paid in accordance with the terms of this
Article III shall be deemed to have been paid and issued in full satisfaction of
all rights pertaining to the shares of Common Stock.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Centex and Acquirer as follows:
SECTION 4.1 Corporate Existence and Power. The Company is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Nevada, and has corporate power to carry on its business as presently
conducted. The Company is duly qualified to do business as a foreign corporation
and is in good standing in each jurisdiction where the character of the property
owned or leased by it or the nature of its activities makes
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such qualification necessary, except where the failure to be so qualified or in
good standing, individually or in the aggregate, would not have a Company
Material Adverse Effect.
As used herein, the term "COMPANY MATERIAL ADVERSE EFFECT" shall mean
any adverse change, effect, event, occurrence or state of facts (a) affecting
the financial condition, business, assets, properties, operations or results of
operations of the Company or any of its Subsidiaries which is material to the
Company and its Subsidiaries, taken as a whole, or (b) which would prevent or
materially impair the Company from consummating the Merger, which has occurred
or would reasonably be expected to occur as a result of any such change, effect,
event, occurrence or state of facts.
SECTION 4.2 Corporate Authorization; Approvals. The Company has the
requisite corporate power and authority to execute and deliver this Agreement
and, subject to the Company Stockholder Approval (as defined in Section 4.15
below) of this Agreement, as required by applicable law, to consummate the
Merger. The execution, delivery and performance of this Agreement by the Company
and the consummation by the Company of the Merger have been duly authorized by
all necessary corporate action on the part of the Company, and, except for the
Company Stockholder Approval, no other corporate action on the part of the
Company is necessary to authorize the consummation of the Merger. This Agreement
has been duly executed and delivered by the Company and, assuming that this
Agreement constitutes a valid and binding obligation of Centex and Acquirer,
this Agreement constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except to the
extent that its enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the enforcement
of creditors' rights generally or by general equitable or fiduciary principles.
SECTION 4.3 Governmental Authorization. To the Knowledge of the
Company, the execution, delivery and performance by the Company of this
Agreement and the consummation by the Company of the Merger require no action by
or in respect of, or filing with, any federal, state or local governmental
authority, or any court, administrative or regulatory agency or commission or
other governmental authority or agency, (each, a "GOVERNMENTAL ENTITY"), other
than, if any, (a) the filing of (i) the Articles of Merger in accordance with
the NRS and (ii) appropriate documents with the relevant authorities of other
states or jurisdictions in which the Company or any of its Subsidiaries is
qualified to do business; (b) compliance with any applicable requirements of the
New York Stock Exchange ("NYSE"); (c) compliance with any applicable
requirements of the London Stock Exchange ("LSE"); (d) compliance with any
applicable requirements of the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder (the "SECURITIES ACT"), and the Exchange
Act; (e) such as may be required under any applicable state securities or blue
sky laws or state takeover laws; and (f) such other consents, approvals,
actions, orders, authorizations, registrations, declarations and filings which,
if not obtained or made, would not, individually or in the aggregate, have a
Company Material Adverse Effect (the filings and authorizations referred to in
clauses (a) through (f) being referred to collectively as the "COMPANY REQUIRED
GOVERNMENTAL CONSENTS").
SECTION 4.4 Non-Contravention. The execution, delivery and performance
by the Company of this Agreement and the consummation by the Company of the
Merger do not and will not (a) contravene or conflict with the Company's
articles of incorporation, by-laws, (b) assuming that all of the Company
Required Governmental Consents are obtained, contravene
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or conflict with or constitute a violation of any provision of any law,
regulation, judgment, injunction, order or decree binding upon or applicable to
the Company, (c) to the Knowledge of the Company, constitute a default under or
give rise to a right of termination, cancellation or acceleration (with or
without due notice or lapse of time or both) of any right or obligation of the
Company or to a loss of any benefit or status to which the Company is entitled
under any provision of any contract or other instrument binding upon the Company
(other than any note, mortgage, indenture or loan agreement or similar
instrument made or given by the Company or its Subsidiaries) or any license,
franchise, permit or other similar authorization held by the Company or (d) to
the Knowledge of the Company, result in the creation or imposition of any Lien
(as defined below) on any asset of the Company, other than, in the case of each
of (b), (c) and (d), any such items that would not, individually or in the
aggregate, have a Company Material Adverse Effect.
As used in this Agreement, "LIEN" means any mortgage, lien, pledge,
charge, claim, security interest or encumbrance of any kind; provided, however,
that the term "LIEN" shall not include (i) liens for water and sewer charges and
current taxes, assessments and other governmental levies, fees or charges not
yet due and payable or being contested in good faith, (ii) landlords',
mechanics', carriers', workers', repairers', materialmen's, warehousemen's and
similar liens, (iii) purchase money liens and liens securing rental payments
under capital lease arrangements and (iv) liens or imperfections on property
which do not materially detract from the value or the existing use of the
property affected by such lien or imperfection.
SECTION 4.5 Capitalization.
(a) The authorized capital stock of the Company consists of 50,000,000
shares of Common Stock, par value $.01 per share, and no shares of preferred
stock. There were, as of the close of business on the date hereof, (i) 1,000
shares of Common Stock issued and outstanding and held by the Nominee for the
benefit of the Company's stockholders, and (ii) no shares of Common Stock held
in the treasury of the Company. As of the date hereof, there were 100 shares of
Common Stock reserved for issuance upon exercise of outstanding Centex Warrants.
Except for the Centex Warrants and as described in the preceding sentence, all
outstanding shares of the capital stock of the Company are duly authorized,
validly issued, fully paid and non-assessable and not subject to or issued in
violation of any purchase option, call option, right of first refusal,
preemptive right, subscription right or any similar right under any provision of
the NRS, the Company's articles of incorporation, the Company's by-laws or any
contract to which the Company is a party or otherwise bound.
(b) As of the date hereof, except for the Centex Warrants and as
described in Section 4.5(a) herein, there are no outstanding (i) shares of
capital stock or other voting securities of the Company, (ii) securities of the
Company convertible into or exchangeable for shares of capital stock or voting
securities of the Company or (iii) options or other rights to acquire from the
Company, or obligations of the Company to issue, any capital stock, voting
securities or securities convertible into or exchangeable for capital stock or
voting securities of the Company. There are no outstanding obligations of the
Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire
any Common Stock or other capital stock of the Company or any of its
Subsidiaries or to provide funds to make any investment (in the form of a loan,
capital contribution or otherwise) in any Subsidiary of the Company or other
entity, other than loans to Subsidiaries in the ordinary course of business.
9
SECTION 4.6 Subsidiaries.
(a) Each Subsidiary of the Company is an entity duly organized, validly
existing and in good standing under the laws of its state or country of
organization, and has all powers required to carry on its business as now
conducted, except where the failure to be so organized or in such existence or
standing or have such powers, individually or in the aggregate, would not have a
Company Material Adverse Effect. Each Subsidiary of the Company is duly
qualified to do business as a foreign entity and is in good standing in each
jurisdiction where the character of the property owned or leased by it or the
nature of its activities makes such qualification necessary, except where the
failure to be so qualified, individually or in the aggregate, would not have a
Company Material Adverse Effect.
(b) All of the outstanding shares of capital stock of, or other
ownership interest in, each Subsidiary of the Company, have been duly authorized
and validly issued and all of the outstanding shares of capital stock of each
Subsidiary that is a corporation are fully paid and nonassessable. All of the
outstanding capital stock or other ownership interest which is owned, directly
or indirectly, by the Company in each of its Subsidiaries is owned free and
clear of any Lien and, with respect to corporate Subsidiaries, free of any other
limitation or restriction, including any limitation or restriction on the right
to vote, sell or otherwise dispose of such capital stock or other ownership
interest (other than any of such under the Securities Act or any state or
foreign securities laws) (provided that restrictions on these rights with
respect to non-corporate subsidiaries would not have a Company Material Adverse
Effect). Except for the Centex Warrants and as described in Section 4.5(a)
herein, there are no outstanding (i) securities of the Company or any of its
Subsidiaries convertible into or exchangeable or exercisable for shares of
capital stock or other voting securities or ownership interests in any
Subsidiary of the Company, (ii) options, warrants or other rights to acquire
from the Company or any of its Subsidiaries, or obligations of the Company or
any of its Subsidiaries to issue, any capital stock, voting securities or other
ownership interests in, or any securities convertible into or exchangeable or
exercisable for any capital stock, voting securities or ownership interests in,
any Subsidiary of the Company, or (iii) obligations of the Company or any of its
Subsidiaries to repurchase, redeem or otherwise acquire any outstanding
securities of any Subsidiary of the Company or any capital stock of, or other
ownership interests in, any Subsidiary of the Company. There are no other
persons in which the Company owns, of record or beneficially, any direct or
indirect equity or similar interest or any right (contingent or otherwise) to
acquire the same.
(c) The execution, delivery and performance by the Company of this
Agreement and the consummation by the Company of the Merger do not and will not
(a) contravene or conflict with any Subsidiary of the Company's articles of
incorporation, by-laws or similar governing document, (b) assuming that all of
the Company Required Governmental Consents are obtained, contravene or conflict
with or constitute a violation of any provision of any law, regulation,
judgment, injunction, order or decree binding upon or applicable to any
Subsidiary of the Company, (c) to the Knowledge of the Company, constitute a
default under or give rise to a right of termination, cancellation or
acceleration (with or without due notice or lapse of time or both) of any right
or obligation of any Subsidiary of the Company or to a loss of any benefit or
status to which any Subsidiary of the Company is entitled under any provision of
any contract or other instrument binding upon any Subsidiary of the Company
(other than any note, mortgage, indenture or loan agreement or similar
instrument given by the Company or its Subsidiaries) or
10
any license, franchise, permit or other similar authorization held by any
Subsidiary of the Company or (d) to the Knowledge of the Company, result in the
creation or imposition of any Lien on any asset of any Subsidiary of the
Company, other than, in the case of each of (b), (c) and (d), any such items
that would not, individually or in the aggregate, have a Company Material
Adverse Effect.
SECTION 4.7 Past SEC Documents; Undisclosed Liabilities. The Company
has filed, in a timely manner, all reports, filings, registration statements and
other documents required to be filed by it with the SEC after January 1, 2000
and prior to the date of this Agreement (collectively, the "PAST SEC
DOCUMENTS"). As of its respective filing date or as amended or supplemented
prior to the date hereof, each Past SEC Document, to the Knowledge of the
Company, complied as to form in all material respects with the applicable
requirements of the Securities Act and/or the Exchange Act, as the case may be
and did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading. The consolidated financial statements of the Company
included in the Past SEC Documents, to the Knowledge of the Company, comply as
to form in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with generally accepted accounting principles ("GAAP")
(except, in the case of unaudited statements, as permitted by Form 10-Q of the
SEC) applied on a consistent basis during the periods involved (except as may be
indicated in the notes thereto) and fairly present the consolidated financial
position of the Company and its consolidated Subsidiaries as of the dates
thereof and the consolidated results of their operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments). Except as set forth in the Past SEC Documents filed
and publicly available prior to the date hereof, to the Knowledge of the
Company, neither the Company nor any of its Subsidiaries has any liabilities or
obligations of any nature (whether accrued, absolute, contingent or otherwise)
required by GAAP to be set forth on a consolidated balance sheet of the Company
and its consolidated Subsidiaries or in the notes thereto and that, individually
or in the aggregate, could reasonably be expected to have a Company Material
Adverse Effect.
SECTION 4.8 Disclosure Statements. (a) None of the information provided
by the Company for inclusion in the Proxy Statement, as supplemented or amended,
if applicable, at the time such Proxy Statement or any amendment or supplement
thereto is first mailed to stockholders of the Company, at the time such
stockholders vote on adoption of this Agreement and approval of the Merger and
at the Effective Time and (b) none of the information provided by the Company
for inclusion in any Other Filings or any supplement or amendment thereto, at
the time of the filing thereof and at the time of any distribution or
dissemination thereof, in each case, will, to the Knowledge of the Company,
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in the light of the
circumstances under which they are made, not misleading.
SECTION 4.9 Absence of Certain Changes. Since June 30, 2003, except as
otherwise expressly contemplated by this Agreement as disclosed or provided for
in the Past SEC Documents, to the Knowledge of the Company, the Company and its
Subsidiaries have conducted their business in the ordinary course consistent
with past practice and there has not been any damage, destruction or other
casualty loss (whether or not covered by insurance) or any
11
action, event, occurrence, development or state of circumstances or facts that,
individually or in the aggregate, would have a Company Material Adverse Effect.
Since June 30, 2003, to the Company's Knowledge, neither the Company nor any of
its Subsidiaries has taken any action other than in the ordinary course of
business which, if taken after the date hereof, would constitute a breach of any
provision set forth in Section 6.1 hereof, except as disclosed or provided for
in the Past SEC Documents.
SECTION 4.10 Litigation. As of the date of this Agreement except as
disclosed or provided for in the Past SEC Documents, (a) to the Knowledge of the
Company, there are no pending or threatened actions, suits, claims, litigation
or other governmental or judicial proceedings or investigations or arbitrations
("PROCEEDINGS") against the Company, its Subsidiaries or any of their respective
properties, assets or businesses, or, to the Knowledge of the Company, any of
the Company's or any of its Subsidiary's current or former directors or officers
(in their capacity as such) or any other person whom the Company or any
Subsidiary has agreed to indemnify (that would give rise to the obligation of
the Company to indemnify such person); and (b) to the Knowledge of the Company,
there are no outstanding orders, judgments, injunctions, awards or decrees of
any Governmental Entity ("ORDERS") against the Company, its Subsidiaries, any of
their respective properties, assets or businesses, or, to the Knowledge of the
Company, any of the Company's or its Subsidiaries' current or former directors
(in their capacity as such) or officers or any other person whom the Company or
any Subsidiary has agreed to indemnify (that would give rise to the obligation
of the Company to indemnify such person), except where such Proceedings or
Orders, individually or in the aggregate, would not have a Company Material
Adverse Effect.
SECTION 4.11 [reserved].
SECTION 4.12 Compliance with Laws; Licenses, Permits and Registrations.
(a) To the Knowledge of the Company, neither the Company nor any of its
Subsidiaries is in violation of, or has violated, any applicable provisions of
any laws, statutes, ordinances, regulations, judgments, injunctions, orders or
consent decrees (including, without limitation, any laws, statutes, ordinances,
regulations, judgments, injunctions, orders or consent decrees relating to
pollution, protection of human health, safety or the environment (collectively,
"ENVIRONMENTAL LAWS")), except for any such violations which, individually or in
the aggregate, would not have a Company Material Adverse Effect.
(b) To the Knowledge of the Company, each of the Company and its
Subsidiaries has all permits, licenses, approvals, authorizations of and
registrations with and under all federal, state, local and foreign laws
(including, without limitation, under any Environmental Law), and from all
Governmental Entities required by the Company and its Subsidiaries to carry on
their respective businesses as currently conducted, except where the failure to
have any such permits, licenses, approvals, authorizations or registrations,
individually or in the aggregate, would not have a Company Material Adverse
Effect.
SECTION 4.13 Contracts. Each material lease, license, contract,
agreement or other similar obligation to which the Company or any of its
Subsidiaries is a party or by which any of them or any of their properties may
be bound, to the Knowledge of the Company, is valid, binding and enforceable and
in full force and effect with respect to the Company or its Subsidiaries and, to
the Knowledge of the Company, with respect to the other parties thereto,
12
except where the failure thereof would not have a Company Material Adverse
Effect, and there are no existing defaults thereunder with respect to the
Company or any of its Subsidiaries or, to the Company's Knowledge, the other
parties thereto, except for those defaults that would not have a Company
Material Adverse Effect. Other than any agreement among only the Company and one
or more of its wholly-owned Subsidiaries, neither the Company nor any of its
Subsidiaries is a party to any agreement that materially limits the ability of
the Company or any of its Subsidiaries to compete in or conduct any material
line of its business or compete with any person or in any geographic area or
during any period of time.
SECTION 4.14 Properties. To the Knowledge of the Company, the Company
and its Subsidiaries own fee simple title to or have a valid leasehold interest
in each of their real properties (the "COMPANY PROPERTIES"), free and clear of
liens, mortgages or deeds of trust, claims against title, charges which are
liens, security interests or other encumbrances on title, and the Company
Properties are not subject to any rights of way, written agreements, laws,
ordinances and regulations affecting building use or occupancy, or reservations
of an interest in title (collectively, "PROPERTY RESTRICTIONS"), except for, if
any, (i) real estate taxes and special assessments, (ii) inchoate liens imposed
for construction work in progress incurred in the ordinary course of business,
(iii) real property liens and other encumbrances of record recorded in the
appropriate county or counties where the property is located; or (iv) Property
Restrictions imposed or promulgated by law or any governmental body or authority
with respect to real property, including zoning regulations, that do not (a)
materially adversely affect the current use of the property, (b) materially
detract from the value of or materially interfere with the current use of the
property, or (c) materially detract from the value of or materially interfere
with the planned use of any land held for development or properties being
developed or expanded.
SECTION 4.15 Required Vote; Board Approval. The affirmative vote of the
holders of a majority of the beneficial interest in the shares of Common Stock
outstanding and entitled to vote at the Stockholders' Meeting (the "COMPANY
STOCKHOLDER APPROVAL") is the only vote of any class or series of capital stock
of the Company required by law, rule or regulation or the articles of
incorporation or the by-laws of the Company to approve this Agreement and the
Merger.
SECTION 4.16 [reserved].
SECTION 4.17 Finders' Fees. Except for the Company Financial Advisor,
the fees of which will be paid by the Company, in connection with this
Agreement, the Merger and the transactions contemplated hereby based upon
arrangements made by or on behalf of the Company, no investment banker, broker,
finder or other such intermediary has been retained by, or is authorized to act
on behalf of, the Company or is entitled to any fee or commission from the
Company.
SECTION 4.18 Opinion of the Company Financial Advisor. The Special
Committee and the Company Board have received the Fairness Opinion from the
Company Financial Advisor, to the effect that, as of the date of such opinion,
the Transaction, including the Merger Consideration, is fair to the Company's
stockholders from a financial point of view. A signed copy of the Fairness
Opinion has been delivered to Acquirer. The Company hereby represents and
warrants that it has been authorized by the Company Financial Advisor to permit
the inclusion of the Fairness Opinion and references thereto in the Proxy
Statement. Other than the fee payable to the Company Financial Advisor in
connection with the Fairness Opinion, the
13
Closing of the Merger and the reimbursement and indemnification obligations of
the Company to the Company Financial Advisor related to the Fairness Opinion,
neither the Company nor the Company's directors has any continuing obligation to
the Company Financial Advisor with respect to the transactions contemplated
hereby.
SECTION 4.19 [reserved].
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF CENTEX AND ACQUIRER
Centex and Acquirer represent and warrant to the Company as follows:
SECTION 5.1 Corporate Existence and Power. Each of Centex and Acquirer
is a corporation duly incorporated, validly existing and in good standing under
the laws of the State of Nevada and has all full corporate power required to
conduct its business as presently conducted. Since the date of its
incorporation, Acquirer has not engaged in any activities other than in
connection with or as contemplated by this Agreement.
SECTION 5.2 Corporate Authorization; Approvals. Centex and Acquirer
each have the requisite corporate power and authority to execute and deliver
this Agreement and consummate the Merger. The execution, delivery and
performance by Centex and Acquirer of this Agreement and the consummation by
Centex and Acquirer of the Merger have been duly authorized by all necessary
corporate action and no other corporate action on the part of Centex or Acquirer
is necessary to authorize the consummation of the Merger other than approval by
the stockholders of Centex of the termination of the Nominee Agreement, which
approval will be sought at the Stockholders' Meeting. This Agreement has been
duly and validly executed and delivered by Centex and Acquirer and, assuming
that this Agreement constitutes the valid and binding obligation of the Company,
this Agreement constitutes a valid and binding agreement of each of Centex and
Acquirer, enforceable in accordance with its terms, except to the extent that
its enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of creditors'
rights generally or by general equitable or fiduciary principles.
SECTION 5.3 Governmental Authorization. The execution, delivery and
performance by Centex and Acquirer of this Agreement and the consummation by
Centex and Acquirer of the Merger requires no action by or in respect of, or
filing with, any Governmental Entity, other than (a) those set forth in clauses
(a) through (f) of Section 4.3 and (b) such other consents, approvals, actions,
orders, authorizations, registrations, declarations and filings which, if not
obtained or made, would not, individually or in the aggregate, have a Centex
Material Adverse Effect (the filings and authorizations referred to in clauses
(a) and (b) being referred to collectively as the "CENTEX REQUIRED GOVERNMENTAL
CONSENTS").
As used herein, the term "CENTEX MATERIAL ADVERSE EFFECT" shall mean
any adverse change, effect, event, occurrence or state of facts resulting in a
material adverse change in the ability of Centex to consummate the Merger and
other transactions contemplated by this Agreement, which has occurred or would
reasonably be expected to occur as a result of any such change, effect, event,
occurrence or state of facts.
14
SECTION 5.4 Non-Contravention. The execution, delivery and performance
by Centex and Acquirer of this Agreement and the consummation by Centex and
Acquirer of the Merger do not and will not (a) contravene or conflict with the
articles of incorporation or by-laws of Centex or the Acquirer, (b) assuming
that all of the Centex Required Governmental Consents are obtained, contravene
or conflict with or constitute a violation of any provision of any law,
regulation, judgment, injunction, order or decree binding upon or applicable to
Centex or Acquirer, (c) constitute a default under or give rise to a right of
termination, cancellation or acceleration (with or without due notice or lapse
of time or both) of any right or obligation of Centex or Acquirer or to a loss
of any benefit or status to which Centex or Acquirer is entitled under any
provision of any agreement, contract or other instrument binding upon Centex or
Acquirer or any license, franchise, permit or other similar authorization held
by Centex or Acquirer or (d) result in the creation or imposition of any Lien on
any asset of the Centex or Acquirer other than, in the case of each of (b), (c)
and (d), any such items that would not, individually or in the aggregate, have a
Centex Material Adverse Effect.
SECTION 5.5 Information in Securities Filings. All documents required
to be filed by Centex or Acquirer with the SEC in connection with the Merger,
and any information supplied by Centex or Acquirer for inclusion or
incorporation by reference in the Proxy Statement and any Other Filings, or any
supplement or amendment to any such filings, will not, at the respective times
when such are filed with the SEC and/or are first published, given or mailed to
the Company's stockholders, as the case may be, and at the Effective Time, in
each case, contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made therein, in light
of the circumstances under which they are made, not misleading. The
representations and warranties contained in this Section 5.5 will not apply to
statements or omissions included in any such filings based upon information
furnished in writing by or on behalf of the Company.
SECTION 5.6 Finders' Fees. There is no investment banker, broker,
finder or other intermediary who is entitled to any fee or commission from
Centex or any of its affiliates in connection with the Merger and the
transactions contemplated hereby based upon arrangements made by or on behalf of
Centex or Acquirer.
ARTICLE VI
COVENANTS
SECTION 6.1 Conduct of Business of the Company. Except as expressly
provided in this Agreement or except with the prior consent of Centex from the
date of this Agreement to the Effective Time or the earlier termination of this
Agreement, the Company shall, and shall cause each of its Subsidiaries to,
conduct its business in the usual, regular and ordinary course in substantially
the same manner as previously conducted or proposed to be conducted and use all
reasonable efforts to preserve intact its current business organization, and
keep its relationships with customers, suppliers, licensors, licensees,
distributors and others having business dealings with them to the end that its
goodwill and ongoing business shall be unimpaired at the Effective Time. In
addition, and without limiting the generality of the foregoing, until the
Effective Time or the earlier termination of this Agreement the Company will
not, and will not permit any of its Subsidiaries to, without the prior consent
of Centex:
(a) declare, set aside or pay any dividends on, or make any other
distributions in respect of, any of its capital stock or other securities;
15
(b) split, combine, recapitalize or reclassify any of its capital stock
or issue or authorize the issuance of any other securities in respect of, in
lieu of or in substitution for, shares of its capital stock;
(c) purchase, redeem or otherwise acquire any shares of capital stock
of the Company or any of its Subsidiaries or any other securities thereof or any
rights, warrants or options to acquire any such shares or other securities;
(d) authorize for issuance, issue, deliver, sell, pledge or otherwise
encumber any shares of its capital stock or the capital stock or other
securities of any of its Subsidiaries, any other voting securities or any
securities convertible into, or any rights, warrants or options to acquire, any
such shares, voting securities or convertible securities or any other securities
or equity equivalents (including without limitation stock appreciation rights);
(e) amend its certificate or articles of incorporation, by-laws or
other comparable organizational documents;
(f) adopt resolutions providing for or authorizing a liquidation or a
dissolution, except as part of a Transaction Proposal (as defined in Section 6.3
below); or
(g) authorize any of, or commit or agree to take any of, the foregoing
actions.
SECTION 6.2 Indemnification and Insurance.
(a) From and after the Effective Time for six (6) years, Centex and the
Surviving Corporation shall indemnify each present and former director and
officer of the Company, including without limitation members of the Special
Committee ("INDEMNIFIED PARTIES"), against any costs or expenses (including
reasonable attorneys' fees), judgments, fines, losses, claims, damages,
penalties or liabilities (collectively, "COSTS") incurred in connection with any
claim, action, suit, proceeding or investigation, whether civil, criminal,
administrative or investigative, arising out of or pertaining to matters
existing or occurring at or prior to the Effective Time, whether asserted or
claimed prior to, at or after the Effective Time, to the fullest extent
permitted by law, and shall, in connection with defending against any action for
which indemnification is available hereunder, either advance expenses to, or
promptly reimburse such Indemnified Parties from time to time upon receipt of
sufficient supporting documentation, for any reasonable costs and expenses
reasonably incurred by such Indemnified Parties; provided that such advancement
or reimbursement shall be conditioned upon such Indemnified Parties' agreement
promptly to return such amounts if (i) a court of competent jurisdiction through
a final nonappealable order shall ultimately determine that indemnification of
such Indemnified Parties is prohibited by applicable law, and (ii) Centex and
the Surviving Corporation have made commercially reasonable good faith efforts
to collect such expenses under the officers' and directors' liability insurance
required by Section 6.2(c), and such efforts are not successful. The foregoing
rights shall be in addition to any rights to which any Indemnified Party may be
entitled by reason of the by-laws or articles of incorporation of the Company or
any of its Subsidiaries, any contract and/or any applicable law.
(b) All rights to indemnification and all limitations on liability
existing in favor of any Indemnified Parties as provided in the Company's and
3333 Development Corporation's articles of incorporation and bylaws, as in
effect as of the date hereof, to the extent relating to acts or
16
omissions occurring prior to the Effective Time, shall continue in full force
and effect in accordance with their terms from and after the Effective Time. The
articles of incorporation and bylaws of the Surviving Corporation following the
Effective Time shall contain the provisions with respect to indemnification and
limitations on liability set forth in the Company's articles of incorporation
and bylaws on the date hereof, which provisions, to the extent relating to acts
or omissions occurring on or prior to the Effective time, shall not be amended,
repealed or otherwise modified in any manner that would adversely affect the
rights thereunder of the Indemnified Parties, unless, and only to the extent,
such modification is required by applicable law.
(c) For six (6) years after the Effective Time, Centex shall provide
officers' and directors' liability insurance in respect of acts or omissions
occurring prior to the Effective Time covering each person currently covered by
the Company's officers' and directors' liability insurance policy on terms and
with respect to coverage and amount not less favorable than those of such policy
in effect on the date hereof (whether through existing policies (and extensions
thereof) or other policies obtained for Centex generally). For the period after
the date that is six (6) years after the Effective Time, Centex shall provide to
each person currently covered by the Company's officers' and directors'
liability insurance policy not less than the same officers' and directors'
liability insurance coverage in respect of acts or omissions occurring prior to
the Effective Time as Centex provides with respect to former directors and
officers of Centex generally.
(d) The obligations of Centex and the Surviving Corporation under this
Section 6.2 shall not be terminated or modified in such a manner as to adversely
affect any Indemnified Party to whom this Section applies without the written
consent of such affected Indemnified Party, it is being expressly agreed that
this Section 6.2 shall survive the termination of this Agreement. The rights of
each Indemnified Party under this Section 6.2 shall be in addition to any rights
such Person may have under the Company's or 3333 Development Corporation's
articles of incorporation and bylaws, or under the NRS or any other applicable
law or under any agreement of any Indemnified Party with the Company or 3333
Development Corporation. All rights to indemnification and all limitations on
liability existing in favor of any Indemnified Party as provided in an agreement
between any Indemnified Party and the Company or 3333 Development Corporation as
in effect as of the date hereof shall continue in full force and effect in
accordance with their terms after the Effective Time.
(e) If the Surviving Corporation (i) consolidates with or merges into
any other Person and shall not be the continuing or the surviving corporation or
entity of such consolidation or merger, or (ii) transfers or conveys all or
substantially all of its assets or capital stock to any Person, then, and in
each such case, proper provision shall be made with respect to the obligations
set forth in this Section 6.2 so that such obligations of the Surviving
Corporation are performed in accordance with their terms in such event.
SECTION 6.3 Other Proposals.
(a) From and after the date of this Agreement until the termination of
this Agreement, neither the Company, any of its Subsidiaries, nor any of their
respective officers, directors, employees, representatives, agents or affiliates
(including, without limitation, any investment banker, attorney or accountant
retained by the Company or any of its Subsidiaries or affiliates) (collectively,
"RESPONSIBLE PARTIES") will directly or indirectly initiate, solicit or
knowingly
17
encourage (including by way of furnishing non-public information or assistance),
or take any other action to facilitate knowingly, any inquiries or the making of
any proposal that constitutes, or may reasonably be expected to lead to any
Transaction Proposal, or enter into or maintain or continue discussions or
negotiate with any individual, corporation, partnership, joint venture,
association, trust, unincorporated organization or other entity ("PERSON") in
furtherance of such inquiries or to obtain a Transaction Proposal or agree to or
endorse any Transaction Proposal or authorize or permit any Responsible Party to
take any such action; provided, however, that nothing contained in this
Agreement shall prohibit the Company Board or the Special Committee from, prior
to the Stockholders' Meeting, but subject to compliance with the remaining
provisions of this Section 6.3: (i) furnishing information (other than any
non-public information relating to the terms or structure of the transactions
contemplated hereby) to or entering into discussions or negotiations with any
Person that makes a bona fide Transaction Proposal which was not directly or
indirectly solicited in violation of this Section 6.3 only to the extent that:
(1) the Company Board or Special Committee, after consultation with its
financial advisors and after receipt of advice from outside legal counsel,
determines in good faith that such action is necessary for the Board to comply
with its fiduciary duties to stockholders under applicable law and (2) prior to
taking such action the Company provides prompt notice to Acquirer to the effect
that it is furnishing such information to or entering into discussions or
negotiations with such Person and receives from such Person an executed
confidentiality agreement; (ii) failing to make or withdrawing or modifying its
recommendation referred to in Section 1.11 if there exists a Transaction
Proposal and the Company Board or Special Committee, after consultation with its
financial advisors and after receipt of advice from outside legal counsel,
determines in good faith that such action is necessary for the Company Board to
comply with its fiduciary duties to stockholders under applicable law in
connection with such Transaction Proposal; or (iii) making to the Company's
stockholders any recommendation and related filing with the SEC as required by
Rule 14e-2 and 14d-9 under the Exchange Act, with respect to any Transaction
Proposal, or taking any other legally required action with respect to such
Transaction Proposal (including, without limitation, the making of public
disclosures as may be necessary or reasonably advisable under applicable
securities laws) if the Company Board or the Special Committee, after
consultation with their financial advisors and receipt of advice from
independent outside legal counsel, determines in good faith that such action is
necessary for the Company Board to comply with its fiduciary duties to
stockholders under applicable law. Consistent with the foregoing provisions of
this Section 6.3, the Company shall immediately cease and terminate any
currently existing solicitation, initiation, encouragement, activity, discussion
or negotiation with any Person conducted heretofore by the Company or any
Responsible Parties with respect to the foregoing. The Company agrees not to
release any third party from, or waive any provisions of, any standstill
agreement to which it is a party or any confidentiality agreement between it and
another Person who has made, or who may reasonably be considered likely to make,
a Transaction Proposal. In the event of an exercise of the Company's or the
Board of Director's rights under clauses (i), (ii) or (iii) above and subject to
compliance with this Section 6.3, notwithstanding anything contained in this
Agreement to the contrary, such exercise of rights shall not constitute a breach
of this Agreement by the Company.
For purposes of this Agreement "TRANSACTION PROPOSAL" shall mean any of
the following (other than the transactions between the Company, Acquirer and
Centex contemplated by this Agreement) involving the Company or any of its
Subsidiaries: (i) any merger, consolidation, share exchange, recapitalization,
business combination or other similar transaction; (ii) except in the ordinary
course of business, any sale, lease, exchange, mortgage, pledge, transfer or
other
18
disposition of 20% or more of the assets of the Company and its Subsidiaries,
taken as a whole, in a single transaction or series of related transactions;
(iii) any tender offer or exchange offer for, or the acquisition of (or right to
acquire) "beneficial ownership" by any person, "group" or entity (as such terms
are defined under Section 13(d) of the Exchange Act), of 20% or more of the
outstanding shares of capital stock of the Company or the filing of a
registration statement under the Securities Act in connection therewith; or (iv)
any public announcement of a proposal, plan or intention to do any of the
foregoing or any agreement to engage in any of the foregoing or
recapitalization, liquidation, dissolution or similar transaction involving the
Company or any of its Subsidiaries.
(b) Prior to the Company Board or Special Committee withdrawing or
modifying its approval or recommendation of this Agreement or the Merger, or
approving or recommending a Transaction Proposal, or entering into an agreement
with respect to a Transaction Proposal, the Company shall provide Acquirer with
a written notice (a "NOTICE OF TRANSACTION PROPOSAL") advising Acquirer of the
Transaction Proposal, specifying the material terms and conditions of such
Transaction Proposal, identifying the person making such Transaction Proposal,
and specifying that the Company Board or Special Committee has reasonably
determined that such Transaction Proposal, if consummated, would constitute a
Superior Transaction; provided, however, that neither the Company nor any
Subsidiary shall enter into an agreement with respect to a Superior Transaction
until 72 hours after the Notice of Transaction Proposal with respect to a given
Transaction Proposal was received by Acquirer.
For purposes of this Agreement, "SUPERIOR TRANSACTION" means a
Transaction Proposal made in writing by a Third Party (a) that provides for (i)
a Transaction Proposal that would substitute for the Merger and the CDC Merger,
and (ii) (1) the repayment (as a condition to the closing of such transaction)
by the Company or its designee of all sums owed by the Company and its
subsidiaries (including CDC) to Centex and its subsidiaries (other than CDC),
including debt, unpaid distributions and capital, (2) the release of Centex and
its subsidiaries (other than CDC) from guarantees and other credit enhancements
for the Company and its subsidiaries, and (3) the termination of the Nominee
Agreement on terms acceptable to Centex in its sole and absolute discretion, and
(b) the terms and conditions of which (including the amount and value of the
consideration to be received) are reasonably determined by the Company Board or
the Special Committee to be, when taken in their entirety, more favorable to the
Company for the holders of the beneficial interest in the Common Stock than the
terms and conditions set forth in this Agreement (or the terms of an offer of
Acquirer, if any, made to the Company in response to a Notice of Transaction
Proposal).
For purposes of this Agreement, "THIRD PARTY" means a Person who is not
Centex or its subsidiaries.
SECTION 6.4 Public Announcements. Neither Acquirer nor Centex, on the
one hand, nor the Company, on the other hand, will issue any press release or
public statement with respect to the Merger, without the other party's prior
consent, except as may be required by applicable law, court process or by
obligations pursuant to any listing agreement with, or rule of, NYSE or LSE and,
in any event, to the extent practicable, Centex, Acquirer and the Company will
consult with each other before issuing, and provide each other with the
opportunity to review and comment upon, any such press release or other public
statements with respect to the Merger. The parties agree that the initial press
release or releases to be issued with respect to the Merger shall be mutually
agreed upon prior to the issuance thereof.
19
ARTICLE VII
CONDITIONS TO CONSUMMATION OF THE MERGER
SECTION 7.1 Conditions to Each Party's Obligation. The respective
obligations of each party to effect the Merger are subject to the satisfaction
or waiver, at or prior to the Effective Time, of the following conditions:
(a) A proposal to adopt this Agreement and thereby approve the Merger
shall have been approved by the holders of a majority of the beneficial interest
in the shares of Common Stock outstanding and entitled to vote thereon at the
Stockholders' Meeting.
(b) A proposal to terminate the Nominee Agreement shall have been
approved by the holders of a majority of the shares of Centex Common Stock
present in person or by proxy and entitled to vote thereon at a meeting of the
Centex stockholders.
(c) All conditions to the merger (the "CDC MERGER") set forth in the
Agreement and Plan of Merger among CDC, Centex and Centex Development
Acquisition, L.P. dated of even date herewith shall have been satisfied or
waived;
(d) All actions by or in respect of or filings with any Governmental
Entity required to permit the consummation of the Merger shall have been
obtained, except those that would not reasonably be expected to have a material
adverse effect on any party's ability to consummate the transactions
contemplated by this Agreement; and
(e) No preliminary or permanent injunction or other order issued by any
federal or state court of competent jurisdiction in the United States
prohibiting the consummation of the Merger shall be in effect.
SECTION 7.2 Conditions to Acquirer's and Centex's Obligation. The
obligation of Acquirer and Centex to effect the Merger is subject to the
satisfaction or waiver, at or prior to the Effective Time, of the following
conditions:
(a) The representations and warranties of the Company contained in this
Agreement (i) shall be true and correct in all material respects at and as of
the Closing Date, as if made at and as of the Closing Date, in each case except
as contemplated or permitted by this Agreement and (ii) with respect to any
representations or warranties not qualified by "Company Material Adverse
Effect," unless the inaccuracies under such representations and warranties not
so qualified, taken together in their entirety, do not in the aggregate result
in a Company Material Adverse Effect;
(b) The Company shall have performed in all material respects the
obligations required to be performed by it under the Agreement at or prior to
the Closing Date;
(c) There shall have occurred or taken place no adverse change, effect,
event, occurrence or state of facts (i) affecting the financial condition,
business, assets, properties, operations or results of operations of the Company
or any of its Subsidiaries which is material to the Company and its
Subsidiaries, taken as a whole, or (ii) which would prevent or materially impair
the Company from consummating the Merger, which has occurred or would reasonably
be expected to occur as a result of any such change, effect, event, occurrence
or state of facts, excluding in
20
each case (1) changes resulting from the announcement of the transactions
described in this Agreement or the identity of Centex or Acquirer or from the
performance of this Agreement and compliance with the covenants set forth herein
and (2) any actions required under this Agreement to obtain any approval or
authorization under applicable antitrust or competition laws for the
consummation of the Merger;
(d) The holders of the Common Stock shall not have any dissenters'
rights or rights of appraisal as a result of the Merger and shall be entitled to
receive only the Merger Consideration; and
(e) All actions necessary to render inapplicable any "fair price,"
"moratorium," "control share," "business combination," "shareholder protection"
or similar or other anti-takeover statute or regulation (including, without
limitation, Sections 78.378 through 78.3793 and Sections 78.411 through 78.444
of the NRS) to Acquirer's acquisition of beneficial ownership of Common Stock
pursuant to the Merger or to the execution, delivery or performance of this
Agreement shall have been taken. No other state takeover or similar statute or
regulation in any jurisdiction in which the Company or any of its Subsidiaries
do business applies or purports to apply to the Merger or this Agreement.
SECTION 7.3 Conditions to the Company's Obligation. The obligation of
the Company to effect the Merger is subject to the satisfaction or waiver, at or
prior to the Effective Time, of the following conditions:
(a) The representations and warranties of Centex and Acquirer contained
in this Agreement (i) shall be true and correct in all material respects at and
as of the Closing Date, as if made at and as of the Closing Date, in each case
except as contemplated or permitted by this Agreement and (ii) with respect to
any representations or warranties not qualified by "Centex Material Adverse
Effect," unless the inaccuracies under such representations and warranties not
so qualified, taken together in their entirety, do not in the aggregate result
in a Centex Material Adverse Effect;
(b) Centex and Acquirer shall have each performed in all material
respects the obligations required to be performed by it under the Agreement at
or prior to the Closing Date;
(c) Centex shall provide to the directors of the Company
indemnification contracts executed by Centex containing indemnification
provisions substantially the same as those set forth in Section 6.2(a); and
(d) The Fairness Opinion shall not have been withdrawn or adversely
modified by the Company Financial Advisor.
ARTICLE VIII
TERMINATION; AMENDMENT; WAIVER
SECTION 8.1 Termination. This Agreement may be terminated and the
Merger contemplated hereby may be abandoned at any time notwithstanding approval
thereof by the stockholders of the Company, but prior to the Effective Time:
21
(a) by mutual written consent of each of Acquirer and the Company; or
(b) by either Acquirer or the Company,
(i) if any court of competent jurisdiction in the United
States or other United States or State governmental body shall have
issued an order, decree or ruling or taken any other action
restraining, or otherwise prohibiting the Merger and such order,
decree, ruling or other action shall have become final and
non-appealable; or
(ii) if the Merger shall not have occurred by March 31,
2004, unless the failure to consummate the Merger is the result of a
material breach or failure to perform in any material respect of any
covenant or other agreement contained in this Agreement by the party
purporting to terminate this Agreement; or
(c) by the Company,
(i) substantially concurrently with its approval of a
Transaction Proposal; provided that the Company has complied with all
provisions of this Agreement, including the notice provisions herein,
and that it pays the Expenses as provided by and defined in Section
9.10 hereof; or
(ii) in the event of a material breach or failure to
perform in any material respect by Centex or Acquirer of any covenant
or other agreement contained in this Agreement or in the event of a
material breach of any representation or warranty of Centex or Acquirer
in each case which cannot be or has not been cured within 15 days after
the giving of written notice to Centex or Acquirer, and, with respect
to any representations or warranties not qualified by "Centex Material
Adverse Effect," unless the inaccuracies under such representations and
warranties not so qualified, taken as a whole in their entirety, do not
in the aggregate result in a Centex Material Adverse Effect; or
(d) by Acquirer,
(i) if the Company (1) enters into a definitive agreement
or agreement in principle with any Person with respect to a Transaction
Proposal or (2) withdraws or adversely modifies its approval of or
recommendation of the Merger following the public announcement of a
Transaction Proposal; or
(ii) in the event of a material breach or failure to
perform in any material respect by the Company of any covenant or other
agreement contained in this Agreement or in the event of a material
breach of any representation or warranty of the Company in each case
which cannot be or has not been cured within 15 days after the giving
of written notice to the Company, and, with respect to any
representations or warranties not qualified by "Company Material
Adverse Effect," unless the inaccuracies under such representations and
warranties not so qualified, taken as a whole in their entirety, do not
in the aggregate result in a Company Material Adverse Effect.
SECTION 8.2 Effect of Termination. In the event of the termination and
abandonment of this Agreement pursuant to Section 8.1, this Agreement shall be
void and have no effect
22
(except pursuant to Section 6.3, which shall survive such termination), with no
liability on the part of any party hereto or its affiliates, directors, officers
or stockholders.
SECTION 8.3 Amendment. Any provision of this Agreement may be amended
or waived prior to the Effective Time (whether before or after approval of
matters presented in connection with the Merger by the stockholders of the
Company) if, and only if, such amendment or waiver is in writing and signed, in
the case of an amendment, by the Company, Centex and Acquirer or, in the case of
a waiver, by the party against whom such waiver is to be effective; provided
that after the adoption of this Agreement by the stockholders of the Company, no
amendment shall become effective without a vote of the stockholders approving
such amendment if such stockholder vote is required by applicable law in order
to effect the proposed amendment.
SECTION 8.4 Extension; Waiver. At any time prior to the Effective Time,
the parties may (i) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties contained herein or in any
document, certificate or writing delivered pursuant hereto or (iii) waive
compliance with any of the agreements or conditions contained herein, except as
otherwise provided by law and except that the provisions of Section 6.2 hereof
shall not be waived. Any agreement on the part of any party to any such
extension or waiver shall be valid only if set forth in an instrument in writing
on behalf of such party, and if such extension or waiver has been approved by a
majority of the members of the Special Committee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Nonsurvival of Representations, Warranties and Agreements.
(a) None of the representations, warranties and agreements made herein
shall survive beyond the Effective Time, except for the agreements set forth in
Sections 3.2 and 6.2, and all such representations, warranties and agreements
will be extinguished upon consummation of the Merger and none of the Company,
Centex and Acquirer, nor any officer, director or employee or stockholder
thereof shall be under any liability whatsoever with respect to any such
representation, warranty or agreement after such time.
(b) Each of the parties is a sophisticated person or legal entity that
was advised by knowledgeable counsel and, to the extent it deemed necessary,
other advisors in connection with this Agreement. Accordingly, each of the
parties hereby acknowledges that (i) no party has relied or will rely upon any
document or written or oral information previously furnished to or discovered by
it or its representatives, other than this Agreement and (ii) there are no
representations or warranties by or on behalf of any party hereto or any of its
respective affiliates or representatives other than those expressly set forth
herein, which representations and warranties shall not survive the Effective
Time.
SECTION 9.2 Entire Agreement; Assignment. This Agreement and the
agreements specifically contemplated hereby or referenced herein (a) constitute
the entire agreement between the parties with respect to the subject matter
hereof and thereof and supersede all other prior agreements and understandings,
both written and oral, between the parties or any of them with respect to the
subject matter hereof and (b) shall not be assigned by operation of law or
23
otherwise; provided that Acquirer may assign its rights and obligations to any
wholly owned, direct or indirect subsidiary of Centex, but no such assignment
shall relieve Acquirer of its obligations hereunder if such assignee does not
perform such obligations. Except as expressly provided in this Agreement,
nothing contained in this Agreement, express or implied, is intended to amend,
modify, revise, supplement, terminate, supersede, cancel, or waive any provision
of, any contract or agreement between or among any of the parties to this
Agreement, including, without limitation, the Nominee Agreement (as amended by
the contemplated amendment thereto).
SECTION 9.3 Validity. The validity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
SECTION 9.4 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person, by cable, telegram or telex, or by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses or at such other addresses as
shall be specified by the parties by like notice.
If to Centex or Acquirer:
c/o Centex Corporation
0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Attention: Chief Executive Officer
with a copy to (such copy not to constitute notice):
Xxxxxxxx & Knight LLP
0000 Xxxxxxx Xxx., Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx III
If to the Company:
3333 Holding Corporation
0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Attention: President
with a copy to:
The Special Committee of the Board of Directors
x/x Xxxxx Xxxx
0000 Holding Corporation
0000 Xxxxx Xxxxxxx
00
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
with a copy to (such copy not to constitute notice):
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, P.C.
SECTION 9.5 Defined Terms. The following terms have the meanings
assigned to them in the provisions of this Agreement referred to in the table
below:
Term Section
---- -------
Acquirer Preamble
Agreement Preamble
Articles of Merger Section 1.3
CDC Section 1.8(b)
CDC Merger Section 7.1(c)
Centex Preamble
Centex Common Stock Recitals
Centex Material Adverse Effect Section 5.3
Centex Required Governmental Consents Section 5.3
Centex Warrants Section 1.9
Closing Section 1.2
Closing Date Section 1.2
Common Stock Recitals
Company Preamble
Company Board Section 1.11
Company Financial Advisor Recitals
Company Material Adverse Effect Section 4.1
Company Properties Section 4.14(a)
Company Required Governmental Consents Section 4.3
Company Stockholder Approval Section 4.15
Constituent Corporations Section 1.1
Costs Section 6.2
Effective Time Section 1.3
Environmental Laws Section 4.12(a)
Exchange Act Section 2.1(a)
Expenses Section 9.10(a)
Fairness Opinion Recitals
GAAP Section 4.7
Governmental Entity Section 4.3
Indemnified Parties Section 6.2
Knowledge Section 1.6
25
Lien Section 4.4
LSE Section 4.3
Merger Recitals
Merger Consideration Section 1.8(d)
Nominee Recitals
Nominee Agreement Section 1.8(b)
Notice of Transaction Proposal Section 6.3(b)
NRS Recitals
NYSE Section 4.3
Orders Section 4.10
Other Filings Section 2.1(a)
Past SEC Documents Section 4.7
Paying Agent Section 3.2(a)
Person Section 6.3(a)
Proceedings Section 4.10
Property Restrictions Section 4.14(a)
Proxy Statement Section 2.1(a)
Responsible Parties Section 6.3(a)
SEC Section 2.1(a)
Secretary Section 1.3
Securities Act Section 4.3
Special Committee Recitals
Stockholders' Meeting Section 2.2
Subsidiary Section 1.6
Superior Transaction Section 6.3(b)
Surviving Corporation Section 1.1
Third Party Section 6.3(b)
Transaction Schedule 1
Transaction Proposal Section 6.3(a)
SECTION 9.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of Nevada, regardless of the
laws that might otherwise govern under applicable principles of conflict of laws
thereof.
SECTION 9.7 Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
SECTION 9.8 Parties in Interest. This Agreement shall be binding upon,
and inure solely to the benefit of, each party hereto, and nothing contained in
this Agreement, express or implied, is intended to create any duties or
obligations to any Person (other than a party hereto) not in existence on the
date hereof, or to confer upon any other Person (other than a party hereto) any
rights, benefits or remedies of any nature whatsoever under or by reason of this
Agreement, except as expressly provided in Sections 3.2 and 6.2 (which are
intended to be for the benefit of the persons referred to therein and may be
enforced by such persons). The Indemnified Parties, which include the Company's
officers and directors, are intended to be third party beneficiaries of the
provisions of Section 6.2 relating to Indemnification and Insurance.
26
SECTION 9.9 Counterparts. This Agreement may be executed by facsimile
in two or more counterparts, each of which shall be deemed to be an original,
but all of which shall constitute one and the same agreement.
SECTION 9.10 Expenses.
(a) If any person (other than Acquirer or any of its affiliates)
shall have made, proposed, communicated or disclosed a Transaction Proposal in a
manner which is or otherwise becomes public and this Agreement is terminated
pursuant to Section 8.1(c)(i), then the Company shall, simultaneously with such
termination of this Agreement, pay Purchaser in same day funds all reasonable
documented out-of-pocket costs, fees and expenses of Centex and Acquirer
incurred on or after April 1, 2003, related to the Merger, this Agreement, and
the transactions contemplated hereby and thereby (including, without limitation,
printing fees, filing fees and reasonable fees and expenses of legal and
financial advisors) (collectively the "EXPENSES"). Further, if this Agreement is
terminated pursuant to Section 8.1(d)(i) or (ii), then the Company shall,
simultaneously with such termination of this Agreement, pay Acquirer in same day
funds the Expenses. Notwithstanding the foregoing, in no event shall the
Expenses paid pursuant to this Section 9.10 exceed $50,000.
(b) The Company agrees that the agreements contained in Section
9.10(a) above are an integral part of the transactions contemplated by this
Agreement and constitute liquidated damages and not a penalty. If the Company
fails to promptly pay to Acquirer any of the amounts due under Section 9.10(a),
the Company shall pay the reasonable costs and expenses (including reasonable
legal fees and expenses) in connection with any action, including the filing of
any lawsuit or other legal action, taken to collect payment thereof, together
with interest on the amount of any unpaid Expenses at the annual rate of four
percent above the publicly announced prime rate of Bank of America, N.A. (or, if
lower, the maximum rate permitted by law) from the date such Expenses were
required to be paid by the Company to the date of payment.
(c) Except as provided otherwise in paragraphs (a) and (b) above,
all costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expenses, except that the Acquirer shall pay all costs and expenses (i) in
connection with printing and mailing the Proxy Statement and soliciting proxies,
(ii) in connection with printing and mailing any Other Filings and (iii) of
obtaining any consents of any third party.
SECTION 9.11 Specific Performance. The parties hereto agree that if for
any reason any party hereto shall have failed to perform its obligations under
this Agreement, then any other party hereto seeking to enforce this Agreement
against such non-performing party shall be entitled to specific performance and
injunctive and other equitable relief, and the parties hereto further agree to
waive any requirement for the securing or posting of any bond in connection with
the obtaining of any such injunctive or other equitable relief. This provision
is without prejudice to any other rights that any party hereto may have against
any other party hereto for any failure to perform its obligations under this
Agreement.
[signatures appear on following page]
27
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized, all as of the
day and year first above written.
3333 HOLDING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
CENTEX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President, Chief Legal
Officer and Secretary
3333 ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and Secretary
28
SCHEDULE 1
As used in this Agreement, the term "TRANSACTION" shall mean a series of
transactions that will result in the elimination of the arrangement by which the
beneficial interests in the Common Stock and in the warrants to purchase Class B
Units of limited partnership interest in CDC trade in tandem with the common
stock of Centex, including:
(a) the Merger;
(b) the CDC Merger, which is a merger of Centex Development
Acquisition, L.P., a new indirect partnership subsidiary of
Centex, with and into CDC with CDC being the surviving entity
and indirectly owned by Centex. Pursuant to the CDC Merger,
the warrants to purchase Class B Units of limited partnership
interest in CDC will be cancelled, with the payment to the
holders of the beneficial interest in the warrants (other than
warrants held by Centex) of an amount that is equal to $.01
per share of Centex common stock; and
(c) the amendment and termination of the Nominee Agreement between
Centex, Holding, CDC and Mellon Investor Services LLC, as
successor nominee and transfer agent.
29
