Exhibit 2.1
-----------
AGREEMENT AND PLAN OF MERGER
----------------------------
AGREEMENT AND PLAN OF MERGER (hereinafter called
this "Agreement"), dated as of November 2, 1995, among SCOR
U.S. Corporation, a Delaware corporation (the "Company"),
SCOR S.A., a societe anonyme organized under the laws of the
Republic of France ("Purchaser"), and SCOR Merger Sub
Corporation, a Delaware corporation and a wholly-owned
subsidiary of Purchaser ("Merger Sub"), the Company and
Merger Sub sometimes being hereinafter collectively referred
to as the "Constituent Corporations."
RECITALS
WHEREAS, the Boards of Directors of Purchaser and
the Company each have determined that it is in the best
interests of their respective shareholders for Purchaser to
acquire the shares of Common Stock, par value $0.30 per
Share, that it does not currently directly or indirectly own
upon the terms and subject to the conditions set forth
herein; and
WHEREAS, the Company, Purchaser and Merger Sub
desire to make certain representations, warranties, cove-
nants and agreements in connection with this Agreement.
NOW, THEREFORE, in consideration of the premises,
and of the representations, warranties, covenants and
agreements contained herein the parties hereto hereby agree
as follows:
ARTICLE I
The Tender Offer
1.1. Tender Offer. (a) Provided that this Agree-
------------
ment shall not have been terminated in accordance with
Article IX hereof and none of the events set forth in
Annex A hereto shall have occurred or be existing, within
five business days of the date hereof, Merger Sub will com-
mence a tender offer (the "Offer") for all of the
outstanding Shares that neither it nor Purchaser currently
directly or indirectly owns at a price of $15.25 per Share
in cash, net to the seller, subject to the conditions set
forth in Annex A hereto. Subject to the terms and
conditions of the Offer, Merger Sub will promptly pay for
all Shares duly tendered that it is obligated to purchase
thereunder. The Company's Board of Directors and a majority
of the Company's Independent Directors (as defined below)
shall recommend acceptance of the Offer to its stockholders
in a Solicitation/Recommendation Statement on Schedule 14D-9
(as such statement may be amended or supplemented from time
to time, the "Schedule 14D-9") to be filed with the
Securities and Exchange Commission (the "SEC") upon
commencement of the Offer; provided, however, that if the
-------- -------
Company's Board of Directors determines that its fiduciary
duties require it to amend or withdraw its recommendation,
such amendment or withdrawal shall not constitute a breach
of this Agreement. Merger Sub will not without the prior
written consent of the Company decrease the price per Share
or change the form of consideration payable in the Offer,
decrease the number of Shares sought or change the
conditions to the Offer. Merger Sub shall not terminate or
withdraw the Offer or extend the expiration date of the
Offer unless at the expiration date of the Offer the
conditions to the Offer set forth on Annex A hereto shall
not have been satisfied or waived.
(b) Purchaser and Merger Sub agree, as to the
Offer to Purchase and related Letter of Transmittal (which
together, as either of them may be amended or supplemented
from time to time, constitute the "Offer Documents"), and
the Company agrees, as to the Schedule 14D-9, that such
documents shall, in all material respects, comply with the
requirements of the Securities and Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations
thereunder and other applicable laws. The Company and its
counsel, as to the Offer Documents, and Purchaser or Merger
Sub and its counsel, as to the Schedule 14D-9, shall be
given an opportunity to review such documents prior to their
being filed with the SEC.
(c) In connection with the Offer, the Company
will cause its Transfer Agent to furnish promptly to Merger
Sub a list, as of a recent date, of the record holders of
Shares and their addresses, as well as mailing labels con-
taining the names and addresses of all record holders of
Shares and lists of security positions of Shares held in
stock depositories. The Company will furnish Merger Sub
with such additional information (including, but not limited
to, updated lists of holders of Shares and their addresses,
mailing labels and lists of security positions) and such
other assistance as Purchaser or Merger Sub or their agents
may reasonably request in communicating the Offer to the
record and beneficial holders of Shares.
ARTICLE II
The Merger; Closing; Effective Time
2.1. The Merger. Subject to the terms and condi-
----------
tions of this Agreement, at the Effective Time (as defined
in Section 2.3) Merger Sub shall be merged with and into the
Company and the separate corporate existence of Merger Sub
shall thereupon cease (the "Merger"). The Company shall be
the surviving corporation in the Merger (sometimes
hereinafter referred to as the "Surviving Corporation") and
shall continue to be governed by the laws of the State of
Delaware, and the separate corporate existence of the
Company with all its rights, privileges, immunities, powers
and franchises shall continue unaffected by the Merger,
except as set forth in Section 3.1. The Merger shall have
the effects specified in the Delaware General Corporation
Law (the "DGCL").
2.2. Closing. The closing of the Merger (the
-------
"Closing") shall take place (i) at the offices of Xxxxxxxx &
Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 A.M.
on the first business day on which the last to be fulfilled
or waived of the conditions set forth in Article VIII (other
than those conditions that by their nature are to be
satisfied at the Closing, but subject to the fulfillment or
waiver of those conditions) shall be fulfilled or waived in
accordance with this Agreement or (ii) at such other place
and time and/or on such other date as the Company and
Purchaser may agree.
2.3. Effective Time. As soon as practicable
--------------
following the Closing, and provided that this Agreement has
not been terminated or abandoned pursuant to Article IX
hereof, the Company and Purchaser will cause a Certificate
of Merger (the "Delaware Certificate of Merger") to be
executed and filed with the Secretary of State of Delaware
as provided in Section 251 of the DGCL. The Merger shall
become effective on the date on which the Delaware Certifi-
cate of Merger has been duly filed with the Secretary of
State of Delaware, and such time is hereinafter referred to
as the "Effective Time."
2.4 Merger Without Meeting of Stockholders.
--------------------------------------
Notwithstanding Section 2.3 hereof, in the event that
Purchaser, Merger Sub or any other subsidiary of Purchaser
shall acquire at least 90% of the outstanding Shares
pursuant to the Offer or otherwise, the parties hereto
agree, at the request of Purchaser or Merger Sub, to take
all necessary and appropriate action to cause the Merger to
become effective as soon as practicable after the acceptance
for payment and purchase of Shares by the Merger Sub
pursuant to the Offer without a meeting of stockholders of
the Company in accordance with Section 253 of the DGCL.
ARTICLE III
Certificate of Incorporation and By-Laws
of the Surviving Corporation
3.1. The Certificate of Incorporation. The
--------------------------------
Restated Certificate of Incorporation of the Company (the
"Certificate") in effect at the Effective Time shall be the
Certificate of Incorporation of the Surviving Corporation,
until duly amended in accordance with the terms thereof and
the DGCL, except that Article 4A of the Company's
Certificate shall be amended to read in its entirety as
follows:
"The aggregate number of shares of stock
which the Corporation shall have the
authority to issue is 1,000 shares of Common
Stock, par value $0.01 per share."
3.2. The By-Laws. The By-Laws of the Company in
-----------
effect at the Effective Time shall be the By-Laws of the
Surviving Corporation, until duly amended in accordance with
the terms thereof and the DGCL.
ARTICLE IV
Officers and Directors
of the Surviving Corporation
4.1. Officers and Directors. The directors and
----------------------
officers of the Company at the Effective Time shall, from
and after the Effective Time, be the directors and officers,
respectively, of the Surviving Corporation until their
successors have been duly elected or appointed and qualified
or until their earlier death, resignation or removal in
accordance with the Surviving Corporation's Certificate of
Incorporation and By-Laws.
4.2. Actions by Directors. For purposes of
--------------------
Section 1.1(a), Article IX and Sections 10.3 and 10.4, no
action taken by the Board of Directors of the Company prior
to the Merger shall be effective unless such action is
approved by the affirmative vote of at least a majority of
the directors of the Company who are not officers of
Purchaser or the Company or any affiliate of either of them
(the "Independent Directors").
ARTICLE V
Conversion or Cancellation of Shares in the Merger
5.1. Conversion or Cancellation of Shares. The
------------------------------------
manner of converting or canceling shares of the Company and
Merger Sub in the Merger shall be as follows:
(a) At the Effective Time, each share of the
Common Stock, par value $.30 per share (the "Shares"), of
the Company issued and outstanding immediately prior to the
Effective Time (other than Shares owned by Purchaser, Merger
Sub or any other direct or indirect subsidiary of Purchaser
(collectively, the "Purchaser Companies") or Shares that are
owned by the Company or any direct or indirect subsidiary of
the Company or Shares ("Dissenting Shares") which are held
by stockholders ("Dissenting Stockholders") properly
exercising appraisal rights pursuant to Section 262 of the
DGCL (collectively, "Excluded Shares")) shall, by virtue of
the Merger and without any action on the part of the holder
thereof, be converted into the right to receive, without
interest, an amount in cash (the "Merger Consideration")
equal to $15.25 or such greater amount which may be paid
pursuant to the Offer. At the Effective Time, all Shares,
by virtue of the Merger and without any action on the part
of the holders thereof, shall no longer be outstanding and
shall be canceled and retired and shall cease to exist, and
each holder of a certificate representing any such Shares
(other than Excluded Shares) shall thereafter cease to have
any rights with respect to such Shares, except the right to
receive the Merger Consideration for such Shares upon the
surrender of such certificate in accordance with Section 5.2
or the right, if any, to receive payment from the Surviving
Corporation of the "fair value" of such Shares as determined
in accordance with Section 262 of the DGCL.
(b) At the Effective Time, each Share issued and
outstanding at the Effective Time and owned by any of
Purchaser Companies or held in the Company's treasury or
owned by the Company or any direct or indirect subsidiary of
the Company shall, by virtue of the Merger and without any
action on the part of the holder thereof, cease to be
outstanding, shall be canceled and retired without payment
of any consideration therefor and shall cease to exist.
(c) At the Effective Time, each share of common
stock, par value $1.00 per share, of Merger Sub issued and
outstanding immediately prior to the Effective Time shall,
by virtue of the Merger and without any action on the part
of Merger Sub or the holders of such shares, be converted
into one share of common stock of the Surviving Corporation.
5.2. Payment for Shares. Purchaser shall make
------------------
available or cause to be made available to the paying agent
appointed by Purchaser with the Company's prior approval
(the "Paying Agent") amounts sufficient in the aggregate to
provide all funds necessary for the Paying Agent to make
payments pursuant to Section 5.1(a) hereof to holders of
Shares issued and outstanding immediately prior to the
Effective Time. Promptly after the Effective Time, the
Surviving Corporation shall cause to be mailed to each
person who was, at the Effective Time, a holder of record
(other than holders of Excluded Shares) of issued and
outstanding Shares a form (mutually agreed to by Purchaser
and the Company) of letter of transmittal and instructions
for use in effecting the surrender of the certificates
which, immediately prior to the Effective Time, represented
any of such Shares in exchange for payment therefor. Upon
surrender to the Paying Agent of such certificates, together
with such letter of transmittal, duly executed and completed
in accordance with the instructions thereto, the Surviving
Corporation shall promptly cause to be paid to the persons
entitled thereto a check in the amount to which such persons
are entitled, after giving effect to any required tax with-
holdings. No interest will be paid or will accrue on the
amount payable upon the surrender of any such certificate.
If payment is to be made to a person other than the
registered holder of the certificate surrendered, it shall
be a condition of such payment that the certificate so
surrendered shall be properly endorsed or otherwise in
proper form for transfer and that the person requesting such
payment shall pay any transfer or other taxes required by
reason of the payment to a person other than the registered
holder of the certificate surrendered or establish to the
satisfaction of the Surviving Corporation or the Paying
Agent that such tax has been paid or is not applicable. One
hundred and eighty days following the Effective Time, the
Surviving Corporation shall be entitled to cause the Paying
Agent to deliver to it any funds (including any interest
received with respect thereto) made available to the Paying
Agent which have not been disbursed to holders of certifi-
xxxxx formerly representing Shares outstanding on the
Effective Time, and thereafter such holders shall be
entitled to look to the Surviving Corporation only as
general creditors thereof with respect to the cash payable
upon due surrender of their certificates. Notwithstanding
the foregoing, neither the Paying Agent nor any party hereto
shall be liable to any holder of certificates formerly
representing Shares for any amount paid to a public official
pursuant to any applicable abandoned property, escheat or
similar law. The Surviving Corporation shall pay all
charges and expenses, including those of the Paying Agent,
in connection with the exchange of cash for Shares and
Purchaser shall reimburse the Surviving Corporation for such
charges and expenses.
5.3. Dissenters' Rights. If any Dissenting
------------------
Stockholder shall be entitled to be paid the "fair value" of
such Dissenting Stockholder's Shares, as provided in
Section 262 of the DGCL, the Company shall give Purchaser
notice thereof and Purchaser shall have the right to
participate in all negotiations and proceedings with respect
to any such demands. Neither the Company nor the Surviving
Corporation shall, except with the prior written consent of
Purchaser, voluntarily make any payment with respect to, or
settle or offer to settle, any such demand for payment. If
any person who otherwise would have been a Dissenting
Stockholder shall have failed to perfect or shall have
effectively withdrawn or lost the right to dissent, the
Shares held by such person shall thereupon be treated as
though such Shares had been converted into the Merger
Consideration pursuant to Section 5.1.
5.4. Transfer of Shares After the Effective Time.
-------------------------------------------
No transfers of Shares shall be made on the stock transfer
books of the Surviving Corporation at or after the Effective
Time.
ARTICLE VI
Representations and Warranties
6.1. Representations and Warranties of the
-------------------------------------
Company. The Company hereby represents and warrants to
-------
Purchaser and Merger Sub that:
(a) Corporate Organization and Qualification.
----------------------------------------
Each of the Company and its subsidiaries is a corporation
duly organized, validly existing and in good standing under
the laws of its respective jurisdiction of incorporation and
is in good standing as a foreign corporation in each juris-
diction where the properties owned, leased or operated, or
the business conducted, by it require such qualification,
except for such failure to so qualify or be in such good
standing, which, when taken together with all other such
failures, could reasonably be expected to have a Material
Adverse Effect (as defined below). Each of the Company and
its subsidiaries has the corporate requisite power and
authority to carry on its respective businesses as they are
now being conducted except where the failure to have such
power or authority could not reasonably be expected to have
a Material Adverse Effect. As used in this Agreement, the
term "Material Adverse Effect" means a material adverse
effect on the condition (financial or otherwise),
properties, assets, liabilities, business or results of
operations of the Company and its subsidiaries taken as a
whole.
(b) Authorized Capital. The authorized capital
------------------
stock of the Company consists of 50,000,000 Shares, of which
18,170,971 Shares are outstanding on the date hereof, and
5,000,000 shares of Preferred Stock, no par value per share
(the "Preferred Shares"), of which no shares are
outstanding. All of the outstanding Shares have been duly
authorized and are validly issued, fully paid and nonassess-
able. The Company has no Shares or Preferred Shares
reserved for issuance, except that, as of the date hereof,
there were 1,446,734 Shares subject to issuance pursuant to
the Company's Stock Incentive Plan for Key Executives, the
Company's Stock Option Plan for Directors and the Company's
Stock Option Plan for Key Employees (collectively, the
"Company Stock and Option Plans") and 2,993,103 Shares
subject to issuance pursuant to the Company's 5-1/4%
Convertible Subordinated Debentures due April 2000 (the
"Debentures"). Each of the outstanding shares of capital
stock of each of the Company's subsidiaries is duly
authorized, validly issued, fully paid and nonassessable and
owned, either directly or indirectly, by the Company free
and clear of all liens, pledges, security interests, claims
or other encumbrances. Except as set forth above, there are
no shares of capital stock of the Company authorized, issued
or outstanding and there are no preemptive rights nor any
outstanding subscriptions, options, warrants, rights,
convertible securities or other agreements or commitments of
any character relating to the issued or unissued capital
stock or other securities of the Company or any of its
subsidiaries. After the Effective Time, the Surviving
Corporation will have no obligation to issue, transfer or
sell any Shares or shares of common stock of the Surviving
Corporation pursuant to any Company Stock and Option Plans
or any other employee benefit plan of the Company.
(c) Corporate Authority. Subject only to
-------------------
approval of this Agreement by the holders of a majority of
the outstanding Shares, the Company has the requisite
corporate power and authority and has taken all corporate
action necessary in order to execute and deliver this
Agreement and to consummate the transactions contemplated
hereby. This Agreement is a valid and binding agreement of
the Company enforceable against the Company in accordance
with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(d) Governmental Filings; No Violations.
-----------------------------------
(i) Other than the filing of a certificate of merger under
the DGCL and filings required to be made pursuant to the
Exchange Act (together, the "Regulatory Filings"), no
notices, reports or other filings are required to be made by
the Company or any of its subsidiaries with, nor are any
consents, registrations, approvals, permits or
authorizations required to be obtained by the Company or any
of its subsidiaries from, any governmental, regulatory or
administrative authority, agency, tribunal, commission or
other entity, domestic, international or foreign, including
any state insurance governmental or regulatory body and non-
governmental self-regulatory organization (collectively,
"Governmental Entities" or each a "Governmental Entity"), in
connection with the execution and delivery of this Agreement
by the Company and the consummation by the Company of the
transactions contemplated hereby, the failure to make or
obtain any or all of which could reasonably be expected to
have a Material Adverse Effect or could prevent or
materially delay the transactions contemplated by this
Agreement.
(ii) The execution and delivery of this Agreement
by the Company do not, and the consummation by the Company
of the transactions contemplated by this Agreement will not,
constitute or result in (A) a breach or violation of, or a
default under, the Certificate or By-Laws of the Company or
the comparable governing instruments of any of its
subsidiaries, (B) except as disclosed in the Company Reports
(as hereinafter defined) filed with the SEC prior to the
date hereof, a breach or violation of, a default under or
the triggering of any payment or other material obligations
pursuant to, any of the Company's existing employee benefit
plans or any grant or award made under any of the foregoing,
(C) a breach or violation of, or a default under, the
acceleration of or the creation of a lien, pledge, security
interest or other encumbrance on assets (with or without the
giving of notice or the lapse of time) pursuant to, any
provision of any agreement, lease, contract, note, mortgage,
indenture, arrangement or other obligation ("Contracts") of
the Company or any of its subsidiaries or any law, rule,
ordinance or regulation or judgment, decree, order, award or
governmental or non-governmental permit or license to which
the Company or any of its subsidiaries is subject or (D) any
change in the rights or obligations of any party under any
of the Contracts, except, in the case of clause (C) or
(D) above, for such breaches, violations, defaults,
accelerations or changes that, alone or in the aggregate,
could not reasonably be expected to have a Material Adverse
Effect or that could not prevent, materially delay or
materially burden the transactions contemplated by this
Agreement. Schedule 6.1(d) sets forth, to the best
knowledge of the officers of the Company, a list of any
consents required under any Contracts to be obtained prior
to consummation of the transactions contemplated by this
Agreement (whether or not subject to the exception set forth
with respect to clause (C) above). The Company will use its
best efforts to obtain the consents referred to on such
Schedule 6.1(d).
(e) Company Reports; Financial Statements. The
-------------------------------------
Company has made available to Purchaser each registration
statement, schedule, report, proxy statement or information
statement prepared by it since December 31, 1994 ("Audit
Date"), including, without limitation, (i) the Company's
Annual Report on Form 10-K for the year ended December 31,
1994 and (ii) the Company's Quarterly Reports on Form 10-Q
for the periods ended March 31, 1995 and June 30, 1995, each
in the form (including exhibits and any amendments thereto)
filed with the SEC (collectively, the "Company Reports").
To the best knowledge of the Company, as of their respective
dates, the Company Reports did not, and any Company Reports
filed with the SEC subsequent to the date hereof will not,
contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements made therein, in light of
the circumstances in which they were made, not misleading.
To the best knowledge of the Company, each of the
consolidated balance sheets included in or incorporated by
reference into the Company Reports (including the related
notes and schedules) fairly presents the consolidated
financial position of the Company and its subsidiaries as of
its date and each of the consolidated statements of income
and of changes in financial position included in or
incorporated by reference into the Company Reports
(including any related notes and schedules) fairly presents
the results of operations, retained earnings and changes in
financial position, as the case may be, of the Company and
its subsidiaries for the periods set forth therein (subject,
in the case of unaudited statements, to normal year-end
audit adjustments which will not be material in amount or
effect), in each case in accordance with generally accepted
accounting principles consistently applied during the
periods involved, except as may be noted therein. Other
than the Company Reports, the Company has not filed any
other definitive reports or statements with the SEC since
the Audit Date.
(f) Absence of Certain Changes. Except as dis-
--------------------------
closed in the Company Reports filed with the SEC prior to
the date hereof, since the Audit Date, the Company and its
subsidiaries have conducted their respective businesses only
in, and have not engaged in any material transaction other
than according to, the ordinary and usual course of such
businesses and there has not been: (i) any material adverse
change (including, without limitation, any change arising
out of or related to any natural disaster (including
hurricanes and earthquakes)) in the condition (financial or
otherwise), properties, assets, liabilities, business or
results of operations of the Company or any of its
subsidiaries or any development or combination of
developments of which the Company or any of its subsidiaries
has knowledge which is reasonably likely to result in any
such change; (ii) any declaration, setting aside or payment
of any dividend or other distribution with respect to the
capital stock of the Company, other than regular quarterly
cash dividends not in excess of $.05 per Share; or (iii) any
change by the Company in accounting principles, practices or
methods.
(g) Brokers and Finders. Neither the Company nor
-------------------
any of its officers, directors or employees has employed any
broker or finder or incurred any liability for any brokerage
fees, commissions or finders, fees in connection with the
transactions contemplated herein, except that Xxxxxx, Read &
Co. (the "Financial Advisor") has been employed as financial
advisor to the Independent Directors, the arrangements with
which have been disclosed in writing to Purchaser prior to
the date hereof.
(h) Takeover Statutes. No "fair price",
-----------------
"moratorium", "control share acquisition" or other similar
antitakeover statute or regulation (each a "Takeover
Statute") is, or at the Effective Time will be, applicable
to the Company, the Shares, the Offer, the Merger or the
transactions contemplated by the Offer or hereby.
(i) Permits. The Company and its subsidiaries
-------
have such certificates, permits, licenses, franchises,
consents, approvals, orders, authorizations, registrations,
qualifications and clearances from appropriate insurance and
other Governmental Entities ("Permits") as are necessary to
-------
own, lease or operate their properties and to conduct their
businesses in the manner described in the Company Reports
and as currently owned or leased and conducted and all such
Permits are valid and in full force and effect except such
licenses that the failure to have or to be in full force and
effect, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
Neither the Company nor any of its subsidiaries has received
any written notice that any violations are being or have
been alleged in respect of any such Permit and no proceeding
is pending or, to the best of the Company's knowledge, after
due inquiry, threatened, to suspend, revoke or limit any
such Permit. To the best of the Company's knowledge, after
due inquiry, the Company and its subsidiaries are in
compliance in all material respects with their respective
obligations under such Permits, with such exceptions as
individually or in the aggregate could not reasonably be
expected to have a Material Adverse Effect, and no event has
occurred that allows, or after notice or lapse of time would
allow, revocation, suspension, limitation or termination of
such Licenses, except such events as could not reasonably be
expected to have a Material Adverse Effect.
(j) Fairness Opinion. The Board of Directors of
----------------
the Company has received an opinion of Xxxxxx, Read & Co.
Inc., dated the date hereof, to the effect that the Offer
and the Merger are fair, from a financial point of view, to
the holders of Shares (other than Purchaser).
(k) Schedule 14D-9; Offer Documents. The
-------------------------------
Schedule 14D-9 distributed to the Company's stockholders in
connection with the Merger will not, at the date of filing
with the SEC, contain any untrue statement of a material
fact or omit to state any 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, except that no representation is
made by the Company with respect to information supplied by
Purchaser or Merger Sub for inclusion in the Schedule 14D-9.
None of the information supplied by the Company for
inclusion in the Offer Documents or the Rule 13e-3
Transaction Statement on Schedule 13E-3 (together with any
supplements or amendments thereto, the "Schedule 13E-3"), at
the respective times such Offer Documents or the Schedule
13E-3 or any amendments or supplements thereto are filed
with the SEC, will contain any untrue statement of a
material fact or omit to state any 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. With respect to
information contained in the Company Reports that is
supplied by the Company for inclusion or incorporation in
the Offer Documents or the Schedule 13E-3, the
representations and warranties made in the preceding two
sentences shall be limited to the best of the Company's
knowledge. The Company agrees to correct promptly any
information in the Schedule 14D-9 or any information
provided by it for use in the Offer Documents or the
Schedule 13E-3 if and to the extent that it shall have
become false or misleading in any material respect and the
Company further agrees to take all steps necessary to cause
the Schedule 14D-9 as so corrected to be filed with the SEC
and disseminated to the holders of Shares, in each case as
and to the extent required by applicable federal securities
laws.
6.2. Representations and Warranties of Purchaser
-------------------------------------------
and Merger Sub. Purchaser and Merger Sub represent and
--------------
warrant to the Company that:
(a) Corporate Organization and Qualification.
----------------------------------------
Each of Purchaser and Merger Sub is a corporation duly or-
ganized, validly existing and in good standing under the
laws of its respective jurisdiction of incorporation and is
in good standing as a foreign corporation in each juris-
diction where the properties owned, leased or operated, or
the business conducted, by it require such qualification
except for such failure to so qualify or to be in such good
standing, which, when taken together with all other such
failures, could not reasonably be expected to have a
material adverse effect on the condition (financial or
otherwise), properties, assets, liabilities, business or
results of operations of Purchaser and its subsidiaries,
taken as a whole.
(b) Corporate Authority. Each of Purchaser and
-------------------
Merger Sub has the requisite corporate power and authority
and has taken all corporate action necessary in order to
execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement is a valid
and binding agreement of Purchaser and Merger Sub
enforceable against Purchaser and Merger Sub in accordance
with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(c) Governmental Filings; No Violations.
-----------------------------------
(i) Other than Regulatory Filings by Purchaser (the
"Purchaser Regulatory Filings"), no notices, reports or
other filings are required to be made by Purchaser and
Merger Sub with, nor are any consents, registrations,
approvals, permits or authorizations required to be obtained
by Purchaser and Merger Sub from, any Governmental Entity in
connection with the execution and delivery of this Agreement
by Purchaser and Merger Sub and the consummation of the
transactions contemplated hereby by Purchaser and Merger
Sub, the failure to make or obtain any or all of which could
prevent or materially delay the transactions contemplated by
this Agreement.
(ii) The execution and delivery of this Agreement
by Purchaser and Merger Sub do not, and the consummation of
the transactions contemplated hereby by Purchaser and Merger
Sub will not, constitute or result in a breach or violation
of, or a default under, the Certificate of Incorporation or
By-Laws (or similar organizational documents) of Purchaser
or Merger Sub.
(d) Funds. Purchaser has or will have at the
-----
time of acceptance for payment of Shares pursuant to the
Offer and at the Effective Time the funds necessary to
consummate the Offer and the Merger.
(e) Offer Documents; Schedule 14D-9. The Offer
-------------------------------
Documents will not, at the date of filing with the SEC,
contain any untrue statement of a material fact or omit to
state any 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, except that no representation is made by
Purchaser or Merger Sub with respect to information supplied
by the Company for inclusion in the Offer Documents. None
of the information supplied by Purchaser or Merger Sub for
inclusion in the Schedule 14D-9 or related materials or the
Schedule 13E-3 at the respective times such Schedules or any
amendments or supplements thereto are filed with the SEC,
will 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 were made, not misleading. Purchaser and Merger
Sub agree to correct promptly any information in the Offer
Documents or any information provided by them for use in the
Schedule 14D-9 or related materials or the Schedule 13E-3 if
and to the extent that it shall have become false or
misleading in any material respect and Purchaser and Merger
Sub further agree to take all steps necessary to cause the
Offer Documents as so corrected to be filed with the SEC and
to be disseminated to holders of Shares, in each case as and
to the extent required by applicable federal securities
laws.
ARTICLE VII
Covenants
7.1. Interim Operations of the Company. The
---------------------------------
Company covenants and agrees that, prior to the Effective
Time (unless Purchaser shall otherwise agree in writing and
except as otherwise expressly contemplated by this
Agreement), the business of the Company and its subsidiaries
shall be conducted only in the ordinary and usual course
consistent with past practice and, to the extent consistent
therewith, each of the Company and its subsidiaries shall
use its best efforts to preserve its business organization
intact (including maintaining all of its Permits) and
maintain its existing relations with customers, suppliers,
employees and business associates and it will take no action
that would adversely affect the ability of the parties to
promptly consummate the transactions contemplated by this
Agreement.
7.2. Meetings of the Company's Stockholders. If
--------------------------------------
required following termination of the Offer, the Company
will take all action necessary to convene a meeting of
holders of Shares as promptly as practicable to consider and
vote upon the approval of this Agreement and the Merger.
Subject to fiduciary requirements of applicable law, the
Board of Directors of the Company shall recommend such
approval and the Company shall take all lawful action to
solicit such approval. At any such meeting of the Company
all of the Shares then owned by Purchaser Companies
(including all Shares currently owned by the Purchaser
Companies) will be voted in favor of this Agreement. The
Company's proxy or information statement with respect to
such meeting of shareholders (the "Proxy Statement"), at the
date thereof and at the date of such meeting, will not
include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided, however, that the foregoing shall not apply to the
-------- -------
extent that any such untrue statement of a material fact or
omission to state a material fact was made by the Company in
reliance upon and in conformity with written information
concerning Purchaser Companies furnished to the Company by
Purchaser specifically for use in the Proxy Statement.
Purchaser understands that for purposes of this Section 7.2
that while the Company's projections and forward-looking
information furnished by the Company to Purchaser were
prepared in good faith and represent the Company's best
estimate as to the subject matter thereof, the Company makes
no representation or warranty as to the truth, completeness
or accuracy of any projections or forward-looking
information furnished by the Company to Purchaser. The
Proxy Statement shall not be filed, and no amendment or
supplement to the Proxy Statement will be made by the Com-
pany, without consultation with Purchaser and its counsel.
7.3. Filings; Other Action. Subject to the terms
---------------------
and conditions herein provided, the Company and Purchaser
shall: (a) promptly make their respective Regulatory
Filings and Purchaser Regulatory Filings and thereafter make
any other required submissions with respect to the Offer and
the Merger; and (b) use their respective best efforts to
take promptly, or cause to be taken promptly, all other
action and do, or cause to be done, all other things neces-
sary, proper or appropriate under applicable laws and regu-
lations to consummate and make effective the transactions
contemplated by this Agreement as soon as practicable.
7.4. Access. Upon reasonable notice, the Company
------
shall (and shall cause each of its subsidiaries to) afford
Purchaser's officers, employees, counsel, accountants and
other authorized representatives ("Representatives") access,
during normal business hours throughout the period prior to
the Effective Time, to its properties, books, Contracts and
records and, during such period, the Company shall (and
shall cause each of its subsidiaries to) furnish promptly to
Purchaser all information concerning its business, proper-
ties and personnel as Purchaser or its Representatives may
reasonably request, provided that no investigation pursuant
--------
to this Section 7.4 shall affect or be deemed to modify any
representation or warranty made by the Company.
7.5. Notification of Certain Matters. The Com-
-------------------------------
pany shall give prompt notice to Purchaser of: (a) any
notice of, or other communication relating to, any default
or event that, with notice or lapse of time or both, would
become a default, received by the Company or any of its
subsidiaries subsequent to the date of this Agreement and
prior to the Effective Time, under any Contract to which the
Company or any of its subsidiaries is a party or is subject
where such default could reasonably be expected to have a
Material Adverse Effect; and (b) any material adverse change
(including, without limitation, any change arising out of or
related to any natural disaster (including hurricanes and
earthquakes)) in the condition (financial or otherwise),
properties, assets, liabilities, business or results of
operations of the Company or any of its subsidiaries or any
development or combination of developments of which the
Company or any of its subsidiaries has knowledge which could
reasonably be expected to result in any such change. Each
of the Company and Purchaser shall give prompt notice to the
other party of any notice or other communication from any
third party alleging that the consent of such third party is
or may be required in connection with the transactions con-
templated by this Agreement.
7.6. Publicity. The initial press release issued
---------
in connection with the execution of this Agreement shall be
a joint press release and thereafter the Company and
Purchaser shall consult with each other prior to issuing any
press releases or otherwise making public statements with
respect to the transactions contemplated hereby and prior to
making any filings with any Governmental Entity or with any
national securities exchange with respect thereto.
7.7. Stock Options. Prior to the Effective Time,
-------------
the Company shall take such actions as may be necessary such
that at the Effective Time each stock option outstanding
pursuant to the Company Stock and Option Plans ("Option"),
whether or not then vested, shall be canceled and only
entitle the holder thereof, upon surrender thereof, to
receive an amount in cash equal to the difference between
the Merger Consideration and the exercise price per Share of
such Option, multiplied by the number of Shares previously
subject to such Option.
7.8. Indemnification; Directors' and Officers'
-----------------------------------------
Insurance. (a) From and after the Effective Time, the
---------
Surviving Corporation and Purchaser each agrees that it will
indemnify and hold harmless each present and former director
and/or officer of the Company, determined as of the
Effective Time (the "Indemnified Parties"), that is made a
party or threatened to be made a party to any threatened,
pending or completed, action, suit, proceeding or claim,
whether civil, criminal, administrative or investigative, by
reason of the fact that he or she was a director or officer
of the Company or any subsidiary of the Company prior to the
Effective Time and arising out of actions or omissions of
the Indemnified Party in any such capacity occurring at or
prior to the Effective Time (a "Claim") against any costs or
expenses (including reasonable attorneys' fees), judgments,
fines, amounts paid in settlement pursuant to Section
7.8(b), losses, claims, damages or liabilities
(collectively, "Costs") reasonably incurred in connection
with any Claim, whether asserted or claimed prior to, at or
after the Effective Time, to the fullest extent that the
Company would have been permitted under Delaware law. The
Surviving Corporation and Purchaser shall also advance
expenses (including attorneys' fees), as incurred by the
Indemnified Party to the fullest extent permitted under
applicable law provided such Indemnified Party provides an
undertaking to repay such advances if it is ultimately
determined that such Indemnified Party is not entitled to
indemnification.
(b) Any Indemnified Party wishing to claim
indemnification under paragraph (a) of this Section 7.8,
upon learning of any such Claim, shall promptly notify the
Surviving Corporation and Purchaser thereof, but the failure
to so notify shall not relieve the Surviving Corporation or
Purchaser of any liability it may have to such Indemnified
Party if such failure does not materially prejudice the
indemnifying party. In the event of any such claim, action,
suit, proceeding or investigation (whether arising before or
after the Effective Time), (i) Purchaser or the Surviving
Corporation shall have the right to assume the defense
thereof and Purchaser shall not be liable to such
Indemnified Parties for any legal expenses of other counsel
or any other expenses subsequently incurred by such
Indemnified Parties in connection with the defense thereof,
except that if Purchaser or the Surviving Corporation elects
not to assume such defense or counsel for the Indemnified
Parties advises that there are issues which raise conflicts
of interest between Purchaser or the Surviving Corporation
and the Indemnified Parties, the Indemnified Parties may
retain counsel satisfactory to them, and Purchaser or the
Surviving Corporation shall pay all reasonable fees and
expenses of such counsel for the Indemnified Parties
promptly as statements therefor are received; provided,
--------
however, that the Surviving Corporation and Purchaser shall
-------
be obligated pursuant to this paragraph (b) to pay for only
one firm of counsel for all Indemnified Parties in any
jurisdiction unless the use of one counsel for such
Indemnified Parties would present such counsel with a
conflict of interest, (ii) the Indemnified Parties will
cooperate in the defense of any such matter and (iii) Pur-
chaser shall not be liable for any settlement effected
without its prior written consent; and provided further that
the Surviving Corporation and Purchaser, respectively, shall
not have any obligation hereunder to any Indemnified Party
when and if a court of competent jurisdiction shall
ultimately determine, and such determination shall have
become final and non-appealable, that the indemnification of
such Indemnified Party in the manner contemplated hereby is
prohibited by applicable law. If such indemnity is not
available with respect to any Indemnified Party, then the
Surviving Corporation and the Indemnified Party shall
contribute to the amount payable in such proportion as is
appropriate to reflect relative faults and benefits.
(c) If a claim for indemnification or advancement
under this Section 7.8 is not paid in full by the Surviving
Corporation or Purchaser within thirty days after a written
claim therefor has been received by the Surviving
Corporation or Purchaser, the Indemnified Party may any time
thereafter bring suit against the Surviving Corporation or
Purchaser to recover the unpaid amount of the claim and, if
successful in whole or in part, the Indemnified Party shall
be entitled to be paid also the expense of prosecuting such
claims.
Neither the failure of the Surviving Corporation
or Purchaser (including their Boards of Directors,
independent legal counsel or shareholders) to have made a
determination prior to the commencement of such suit that
indemnification of the Indemnified Party is proper in the
circumstances because he or she has met the applicable
standard of conduct, nor an actual determination by the
Surviving Corporation or Purchaser (including their Boards
of Directors, independent legal counsel, or shareholders)
that the Indemnified Party has not met such applicable
standard of conduct, shall be a defense to the suit or
create a presumption that the Indemnified Party has not met
the applicable standard of conduct.
(d) The Surviving Corporation shall maintain the
Company's existing officers' and directors' liability
insurance or equivalent liability insurance ("D&O
Insurance") for a period of six years after the Effective
Time so long as the annual premium therefor is not in excess
of the last annual premium paid prior to the date hereof
(the "Current Premium"); provided, however, if the existing
-------- -------
D&O Insurance expires, is terminated or canceled during such
six-year period, the Surviving Corporation will use its best
efforts to obtain as much D&O Insurance as can be obtained
for the remainder of such period for a premium not in excess
(on an annualized basis) of 200 percent of the Current
Premium.
(e) In lieu of the insurance arrangement referred
to in clause (d) of this Section 7.8, the Surviving
Corporation may, on or before the expiration of the Offer,
enter into alternative insurance arrangements provided that
such arrangements are approved by the Independent Directors
and Purchaser.
7.9. Debentures. If Merger Sub or any other
----------
Purchaser Company shall have purchased Shares pursuant to
the Offer, the Company shall take all necessary action to
enter into a supplemental indenture prior to the Effective
Time with the Trustee (as defined in the Debentures)
pursuant to the indenture under which the Debentures were
issued, to provide, among other things, that on and after
the Effective Time the Debentures will be convertible only
into the Merger Consideration.
7.10. Other Agreements. (a) Takeover Statute.
---------------- ----------------
If any Takeover Statute shall become applicable to the
Merger, the Offer or the other transactions contemplated
hereby, the Company and the members of the Board of
Directors of the Company shall grant such approvals and take
such actions as are necessary so that the transactions
contemplated hereby may be consummated as promptly as
practicable on the terms contemplated hereby and otherwise
act to eliminate or minimize the effects of such statute or
regulation on the transactions contemplated hereby.
(b) Best Efforts and Cooperation. The Company
----------------------------
and Purchaser each shall use (and shall cause its
subsidiaries to use) its best efforts to cause the condi-
tions set forth in Article VIII to be satisfied and to
consummate the Merger and the other transactions
contemplated by this Agreement. Without limiting the
generality of the foregoing, the Company shall use (and
shall cause its subsidiaries to use) its best efforts
(including providing information and communication) to
obtain each of the consents or waivers identified pursuant
to Section 6.1(d)(ii) and to obtain as promptly as
practicable all necessary approvals, authorizations and
consents of Governmental Entities (including applicable
insurance regulators) required to be obtained in order to
consummate the transactions contemplated hereby, and each of
the parties hereto shall cooperate with the others in
obtaining all such consents, waivers, approvals and
authorizations.
(c) Purchaser Vote. Purchaser shall vote (or
--------------
consent with respect to) or cause to be voted (or a consent
to be given with respect to) any Shares (including all
Shares currently owned) and any shares of common stock of
Merger Sub beneficially owned by it or any of its
subsidiaries or with respect to which it or any of its
subsidiaries has the power (by agreement, proxy or
otherwise) to cause to be voted (or to provide a consent),
in favor of the adoption and approval of this Agreement at
any meeting of stockholders of the Company or Merger Sub,
respectively, at which this Agreement shall be submitted for
adoption and approval and at all adjournments or
postponements thereof (or, if applicable, by any action of
stockholders of either the Company or Merger Sub by consent
in lieu of a meeting).
7.11 Certain Amendments to the Certificate of
----------------------------------------
Incorporation and By-laws of the Surviving Corporation. No
------------------------------------------------------
amendment to the Certificate of Incorporation or By-laws of
the Surviving Corporation shall reduce in any way the
elimination of personal liability of the directors of the
Company contained therein or adversely affect any then
existing right of any director or officer (or former
director or officer) to be indemnified with respect to acts,
omissions or events occurring prior to the Effective Time.
ARTICLE VIII
Conditions
8.1. Conditions to Obligations of Parties. The
------------------------------------
respective obligations of the parties to consummate the
Merger are subject to the fulfillment of each of the
following conditions:
(a) Stockholder Approval. In the event of a
--------------------
Company stockholder meeting pursuant to Section 7.2, this
Agreement shall have been duly approved by the holders of a
majority of the Shares, in accordance with applicable law
and the Certificate and By-Laws of the Company;
(b) Purchase of Shares. Merger Sub (or one of
------------------
Purchaser Companies) shall have purchased Shares pursuant to
the Offer; and
(c) Litigation. No court or other Governmental
----------
Entity of competent jurisdiction shall have enacted, issued,
promulgated, enforced or entered any statute, rule,
regulation, judgment, decree, injunction or other order
(whether temporary, preliminary or permanent) which is in
effect and prohibits consummation of the Merger.
ARTICLE IX
Termination
9.1. Termination by Mutual Consent. This Agree-
-----------------------------
ment may be terminated and the Merger may be abandoned at
any time prior to the Effective Time, before or after the
approval by holders of Shares, by the mutual consent of
Purchaser and the Company, by action of their respective
Boards of Directors.
9.2. Termination by Either Purchaser or the
--------------------------------------
Company. This Agreement may be terminated and the Merger
-------
may be abandoned by action of the Board of Directors of
either Purchaser or the Company if: (i) Merger Sub, or any
Purchaser Company, shall have terminated the Offer without
purchasing any Shares pursuant thereto, provided, in the
--------
case of termination of this Agreement by Purchaser, such
termination of the Offer is not in violation of the terms of
the Offer; or (ii) without fault of the terminating party,
the Merger shall not have been consummated by March 31,
1996, whether or not such date is before or after the
approval by holders of Shares.
9.3. Termination by Purchaser. This Agreement
------------------------
may be terminated and the Merger may be abandoned at any
time prior to the Effective Time, before or after the ap-
proval by holders of Shares, by action of the Board of Di-
rectors of Purchaser, if: (i) the Company shall have failed
to comply in any material respect with any of the covenants
or agreements contained in this Agreement to be complied
with or performed by the Company at or prior to such date of
termination; or (ii) the Board of Directors of the Company
or the Independent Directors shall have withdrawn or
modified in a manner adverse to Purchaser or Merger Sub its
approval or recommendation of the Offer, this Agreement or
the Merger or the Board of Directors of the Company or the
Independent Directors, upon request by Purchaser, shall fail
to reaffirm such approval or recommendation, or shall have
resolved to do any of the foregoing.
9.4. Termination by the Company. This Agreement
--------------------------
may be terminated and the Merger may be abandoned at any
time prior to the Effective Time, before or after the
approval by holders of Shares by action of the Board of
Directors of the Company, if Purchaser or Merger Sub (i)
shall have failed to comply in any material respect with any
of the covenants or agreements contained in this Agreement
to be complied with or performed by Purchaser or Merger Sub
at or prior to such date of termination or (ii) shall have
failed to commence the Offer within the time required in
Section 1.1.
9.5. Effect of Termination and Abandonment.
-------------------------------------
In the event of termination of this Agreement and
abandonment of the Merger pursuant to this Article IX, no
party hereto (or any of its directors or officers) shall
have any liability or further obligation to any other party
to this Agreement, except as provided in Section 10.2 below
and except that nothing herein will relieve any party from
any liability or damages for any breach of this Agreement.
ARTICLE X
Miscellaneous and General
10.1. Payment of Expenses. Whether or not the
-------------------
Merger shall be consummated, each party hereto shall pay its
own expenses incident to preparing for, entering into and
carrying out this Agreement and the consummation of the
Merger.
10.2. Survival. The agreements of the Company,
--------
Purchaser and Merger Sub contained in Sections 5.2 (but only
to the extent that such Section expressly relates to actions
to be taken after the Effective Time), 5.3, 5.4, 7.8, 7.11,
and 10.1 shall survive the consummation of the Merger. The
agreements of the Company, Purchaser and Merger Sub
contained in Section 9.5 and this Article X shall survive
the termination of this Agreement. All other
representations, warranties, agreements and covenants in
this Agreement shall not survive the consummation of the
Merger or the termination of this Agreement.
10.3. Modification or Amendment. Subject to the
-------------------------
applicable provisions of the DGCL, at any time prior to the
Effective Time, the parties hereto may modify or amend this
Agreement, by written agreement executed and delivered by
duly authorized officers of the respective parties.
10.4. Waiver of Conditions. The conditions to
--------------------
each of the parties' obligations to consummate the Merger
are for the sole benefit of such party and may be waived by
such party in whole or in part to the extent permitted by
applicable law.
10.5. Counterparts. For the convenience of the
------------
parties hereto, this Agreement may be executed in any number
of counterparts, each such counterpart being deemed to be an
original instrument, and all such counterparts shall
together constitute the same agreement.
10.6. GOVERNING LAW AND VENUE; WAIVER OF JURY
---------------------------------------
TRIAL. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN
-----
ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY
AND IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE
WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
The parties hereby irrevocably submit to the jurisdiction of
the courts of the State of Delaware and the Federal courts
of the United States of America located in the State of
Delaware solely in respect of the interpretation and
enforcement of the provisions of this Agreement and of the
documents referred to in this Agreement, and in respect of
the transactions contemplated hereby, and hereby waive, and
agree not to assert, as a defense in any action, suit or
proceeding for the interpretation or enforcement hereof or
of any such document, that it is not subject thereto or that
such action, suit or proceeding may not be brought or is not
maintainable in said courts or that the venue thereof may
not be appropriate or that this Agreement or any such
document may not be enforced in or by such courts, and the
parties hereto irrevocably agree that all claims with
respect to such action or proceeding shall be heard and
determined in such a Delaware State or Federal court. The
parties hereby consent to and grant any such court
jurisdiction over the Person of such parties and over the
subject matter of such dispute and agree that mailing of
process or other papers in connection with any such action
or proceeding in the manner provided in Section 10.7 or in
such other manner as may be permitted by law, shall be valid
and sufficient service thereof.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY
TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS
WAIVER, (iii) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY,
AND (iv) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 10.6.
10.7. Notices. Any notice, request, instruction
-------
or other document to be given hereunder by any party to the
others shall be in writing and delivered personally or sent
by registered or certified mail, postage prepaid:
if to Purchaser or Merger Sub
-----------------------------
SCOR S.A.
0 Xxxxxx xx Xxxxxxxxx Xxxxxx
00000 Xxxxx La Defense Cedex
FRANCE
Attention: Xxxx Xxxxxx, Esq.
with a copy to:
Xxxxx X. Xxxxxx, Esq.
Xxxxxxxx & Xxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
if to the Company
-----------------
SCOR U.S. Corporation
Xxx Xxxxx Xxxxx Xxxxxx,
Xxx Xxxx, XX 00000-0000.
Attention: Xx. Xxxx X. Xxxxxxx, Xx., Esq.
with a copy to:
Xxxxxxx X. Xxxxx, Esq.
Xxxxx Xxxx & Xxxxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other persons or addresses as may be
designated in writing by the party to receive such notice.
10.8. Entire Agreement. This Agreement (includ-
----------------
ing any annexes exhibits or Schedules hereto) constitutes
the entire agreement, and supersede all other prior
agreements, understandings, representations and warranties
both written and oral, among the parties, with respect to
the subject matter hereof.
10.9. No Third Party Beneficiaries. Except as
----------------------------
provided in Sections 7.8 (Indemnification; Directors' and
Officers' Insurance) and 7.11 (Certain Amendments to the
Certificate of Incorporation and By-laws of the Surviving
Corporation), this Agreement is not intended to confer upon
any Person other than the parties hereto any rights or
remedies hereunder.
10.10. Obligations of Purchaser and of the
-----------------------------------
Company. Whenever this Agreement requires Merger Sub or,
-------
after the Effective Time, the Surviving Corporation, to take
any action, such requirement shall be deemed to include an
undertaking on the part of Purchaser to cause Merger Sub or
the Surviving Corporation, respectively, to take such
action, including providing the requisite funds to purchase
Shares or make any other payment obligation. Whenever this
Agreement requires a subsidiary of the Company to take any
action, such requirement shall be deemed to include an
undertaking on the part of the Company to cause such
subsidiary to take such action and, after the Effective
Time, on the part of the Surviving Corporation to cause such
subsidiary to take such action.
10.11. Severability. The provisions of this
------------
Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the
validity or enforceability or the other provisions hereof.
If any provision of this Agreement, or the application
thereof to any person or any circumstance, is invalid or
unenforceable, (a) a suitable and equitable provision shall
be substituted therefor in order to carry out, so far as may
be valid and enforceable, the intent and purpose of such
invalid or unenforceable provision and (b) the remainder of
this Agreement and the application of such provision to
other persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of
such provision, or the application thereof, in any other
jurisdiction.
10.12. Interpretation. The table of contents and
--------------
headings herein are for convenience of reference only, do
not constitute part of this Agreement and shall not be
deemed to limit or otherwise affect any of the provisions
hereof. Where a reference in this Agreement is made to a
Section or Schedule, such reference shall be to a Section of
or Annex or Schedule to this Agreement unless otherwise
indicated. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed
to be followed by the words "without limitation."
10.13. Assignment. This Agreement shall not be
----------
assignable by operation of law or otherwise; provided,
--------
however, that Parent may designate, by written notice to the
-------
Company, another wholly-owned direct or indirect subsidiary
to be a Constituent Corporation in lieu of Merger Sub, in
the event of which, all references herein to Merger Sub
shall be deemed references to such other subsidiary except
that all representations and warranties made herein with
respect to Merger Sub as of the date of this Agreement shall
be deemed representations and warranties made with respect
to such other subsidiary as of the date of such designation.
10.14. Definition of "Subsidiary" and "Person".
---------------------------------------
When a reference is made in this Agreement to a subsidiary
of a party, the word "subsidiary" means any corporation or
other organization whether incorporated or unincorporated of
which at least a majority of the securities or interests
having by the terms thereof ordinary voting power to elect
at least a majority of the board of directors or others
performing similar functions with respect to such
corporation or other organization is directly or indirectly
owned or controlled by such party or by any one or more of
its subsidiaries, or by such party and one or more of its
subsidiaries. When a reference is made in this Agreement to
a person, the word "person" means and includes any natural
person, corporation, partnership, firm, joint venture,
association, joint-stock company, trust, unincorporated
organization, governmental or political subdivision,
regulatory body or other entity.
IN WITNESS WHEREOF, this Agreement has been duly
executed and delivered by the duly authorized officers of
the parties hereto on the date first hereinabove written.
SCOR S.A.
By/s/Serge Osouf
---------------------------
Name: Serge Osouf
Title: General Manager
SCOR U.S. CORPORATION
By/s/Xxxxxx Xxxxxx
--------------------------
Name: Xxxxxx Xxxxxx
Title: President and Chief
Executive Officer
SCOR MERGER SUB CORPORATION
By/s/Serge Osouf
--------------------------
Name: Serge Osouf
Title: Vice President
Annex A
Certain Conditions of the Offer. Notwithstanding
-------------------------------
any other provision of the Offer, the Merger Sub shall not
be obligated to accept for payment any Shares or, subject to
any applicable rules and regulations of the SEC, including
Rule 14e-1(c) (relating to Merger Sub's obligation to pay
for or return tendered Shares promptly after termination or
withdrawal of the Offer) or pay for, and may delay the
acceptance for payment of or payment for, any tendered
Shares unless there have been validly tendered and not
withdrawn prior to the expiration date of the Offer a number
of Shares that, together with any Shares currently
beneficially owned directly or indirectly by Purchaser,
constitutes at least 90% of the total Shares outstanding and
issuable pursuant to Company Stock and Option Plans, as of
the date the Shares are accepted for payment pursuant to the
Offer (the "Minimum Tender Condition"), or if on or after
November 2, 1995, and at or before the time of payment for
any of such Shares (whether or not any Shares have
theretofore been accepted for payment or paid for pursuant
to the Offer), any of the following events shall occur:
(a) there shall be any statute, rule,
regulation, judgment, injunction or other order,
enacted, promulgated, entered, enforced or deemed
applicable to the Offer or the Merger or any other
action shall have been taken by any government,
legislative body, court or governmental,
regulatory or administrative agency, authority,
tribunal or commission, domestic, supranational or
foreign (each, a "Governmental Entity"), or any
other person, domestic, supranational or foreign
(i) challenging the legality of the acquisition by
the Merger Sub of the Shares; (ii) restraining,
delaying or prohibiting the making or consummation
of the Offer or the Merger or obtaining from the
Company, Purchaser or the Merger Sub any damages
in connection therewith; (iii) relating to assets
of, or prohibiting or limiting the ownership or
operation by Purchaser or the Merger Sub of all or
any portion of the business or assets of, the
Company, Purchaser or the Merger Sub (including
the business or assets of their respective
affiliates and subsidiaries) or imposing any
limitation on the ability of Purchaser or the
Merger Sub to conduct such business or own such
assets; (iv) imposing limitations on the ability
of Purchaser or Merger Sub (or any affiliate of
Purchaser or the Merger Sub) to acquire or hold or
to exercise full rights of ownership of the
Shares, including, without limitation, the right
to vote the Shares purchased by them on all
matters properly presented to the stockholders of
the Company or (v) having a substantial likelihood
of any of the foregoing.
(b) there shall have occurred (i) any general
suspension of, or limitation on times or prices
for, trading in securities on any national
securities exchange or in the over-the-counter
market in the United States or France or (ii) a
declaration of a banking moratorium or any
suspension of payments in respect of banks in the
United States or France (whether or not
mandatory);
(c) The Company shall have breached or
failed to perform in any material respect any of
its covenants, obligations or agreements under the
Agreement or any representation or warranty of the
Company set forth in the Agreement shall have been
inaccurate or incomplete in any material respect
when made or thereafter shall become inaccurate or
incomplete in any material respect;
(d) any change, including, without
limitation, any change arising out of or related
to any natural disaster (including hurricanes and
earthquakes), shall have occurred or been
threatened or become known (or any condition,
event or development shall have occurred or been
threatened or become known involving a prospective
change) in the business, properties, assets,
liabilities, condition (financial or otherwise),
or results of operations of the Company or any of
its subsidiaries that could reasonably be expected
to be materially adverse to the Company and its
subsidiaries taken as a whole;
(e) all consents, registrations, approvals,
permits, authorizations, notices, reports or other
filings required to be made or obtained by the
Company, Purchaser, the Merger Sub or any
stockholder of Purchaser with or from any
Governmental Entity in connection with the Offer
and the Merger shall not have been made or
obtained except where the failure to make or to
obtain, as the case may be, such consents,
registrations, approvals, permits, authorizations,
notices, reports or other filings could not
reasonably be expected to have a Material Adverse
Effect;
(f) the Special Committee of the Board of
Directors shall have adversely amended or modified
or shall have withdrawn its recommendation of the
Offer or the Merger, or shall have failed to
publicly reconfirm such recommendation upon
request by Purchaser or Merger Sub, or shall have
resolved to do any of the foregoing; or
(g) The Agreement shall have been terminated
in accordance with its terms or the Merger Sub
shall have reached an agreement or understanding
with the Special Committee providing for
termination of the Offer
which, in the reasonable judgment of the Merger Sub with
respect to each and every matter referred to above, and
regardless of the circumstances (including any action or
inaction by the Merger Sub, Purchaser or any affiliate of
Purchaser) giving rise to any such condition, makes it
inadvisable to proceed with the Offer or with such accep-
tance for payment or payment.
The foregoing conditions are for the sole benefit
of the Merger Sub and may be asserted by the Merger Sub
regardless of the circumstances (including any action or
inaction by the Merger Sub, Purchaser or any affiliate of
Purchaser) giving rise to any such conditions or may be
waived by the Merger Sub in whole or in part at any time and
from time to time in its sole discretion. The failure by
the Merger Sub at any time to exercise any of the foregoing
rights shall not be deemed a waiver of any such right and
each such right shall be deemed an ongoing right which may
be asserted at any time and from time to time. Any
determination by the Merger Sub concerning the events
described above will be final and binding on all holders of
the Shares.
