Exhibit 10.1
VOTING AND TENDER AGREEMENT
VOTING AND TENDER AGREEMENT, dated as of September 25, 2000
(this "Agreement"), between INTERNATIONAL PAPER COMPANY, a New York corporation
(the "Principal Shareholder"), XXXX XXXXX XXXXX INC., a Virginia corporation
(the "Company"), INTERNATIONAL FLAVORS & FRAGRANCES INC., a New York corporation
("Parent"), and B ACQUISITION CORP., a Virginia corporation and wholly-owned
subsidiary of Parent ("Merger Subsidiary").
WHEREAS, the Company, Parent and Merger Subsidiary propose to
enter into an Agreement and Plan of Merger, dated as of the date hereof (as
amended from time to time in accordance with the terms thereof, the "Merger
Agreement"), which provides for, among other things, an offer to purchase by
Merger Subsidiary all of the outstanding shares of common stock, par value $1.00
per share, of the Company ("Company Common Stock") followed by the merger of
Merger Subsidiary with and into the Company (the "Merger");
WHEREAS, as of the date hereof, the Principal Shareholder owns
13,150,000 shares of Company Common Stock; and
WHEREAS, as a condition to the willingness of Parent and
Merger Subsidiary to enter into the Merger Agreement, each of Parent and Merger
Subsidiary has required that the Principal Shareholder agree, and in order to
induce Parent and Merger Subsidiary to enter into the Merger Agreement, the
Principal Shareholder has agreed, to enter into this Agreement with respect to
(a) all the shares of Company Common Stock now owned and all the Shares of
Company Common Stock which may hereafter be acquired by, or on behalf of, the
Principal Shareholder (the "Shares") and (b) certain other matters as set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
ARTICLE 1
Section 1.1 TENDER AGREEMENT. (a) The Principal Shareholder
hereby agrees that it shall promptly (and in any event within ten business days)
following the commencement of the Offer, tender pursuant to the letter of
transmittal included in the Offer Documents, the certificates representing all
of the Shares. The Principal Shareholder shall also deliver in connection
therewith all other customary documents or instruments required to be delivered
pursuant to the terms of the Offer Documents.
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The Principal Shareholder shall not, subject to applicable law, withdraw the
tender of Shares effected in accordance with this Section 1.1 except if there is
any amendment that adversely affects the Principal Shareholder.
(b) Except as provided in clause (a) above, during
the time this Agreement is in effect, the Principal Shareholder hereby agrees
that it shall not sell, give, assign, hypothecate, pledge, encumber, grant a
security interest in or otherwise dispose of or transfer (whether by operation
of law or by agreement or otherwise), any Shares, or any right, title or
interest therein or thereto or enter into any contract, option or other
agreement or understanding with respect to any of the foregoing.
Section 1.2 VOTING AGREEMENT. (a) The Principal Shareholder
hereby agrees that during the time this Agreement is in effect, at any meeting
of the shareholders of the Company, however called, and in any action by consent
of the shareholders of the Company, the Principal Shareholder shall vote the
Shares: (x) in favor of the Merger, the Merger Agreement and the transactions
contemplated by the Merger Agreement and (y) against any (i) Acquisition
Proposal, (ii) action or agreement that would reasonably be expected to result
in a breach of any covenant or any other obligation or agreement of the Company
under the Merger Agreement or which would reasonably be expected to result in
any of the conditions to the Company's obligations under the Merger Agreement
not being fulfilled or (iii) any other action which is intended, or would
reasonably be expected, to impede or materially delay, the consummation of the
transactions contemplated hereby or by the Merger Agreement or materially
adversely affect the contemplated economic benefits to Parent of the
transactions contemplated hereby or by the Merger Agreement.
(b) Except as otherwise provided herein, the Principal
Shareholder hereby agrees that it will not (i) grant any proxy,
power-of-attorney or other authorization in or with respect to any or all of the
Shares to any person other than Parent or Merger Subsidiary or (ii) deposit such
Shares into a voting trust or enter into a voting agreement or similar
arrangement with respect to such Shares.
Section 1.3 OPTION. (a) The Principal Shareholder hereby
irrevocably grants Parent an option (the "Option") to purchase all of the Shares
at a purchase price per share equal to $48.50 (as adjusted pursuant to Section
1.3(e), the "Option Price") on the terms and subject to the conditions set forth
in this Section 1.3.
(b) Subject to the conditions set forth in Section 1.3(d),
Parent may exercise the Option, at any time prior to the date 40 days after the
expiration or termination of the Merger Agreement (such 40th day being herein
called the "Option Expiration Date") if the Merger Agreement is terminated
pursuant to a "Triggering Termination." For purposes of this Agreement, a
"Triggering Termination" means a termination of the Merger Agreement (x)
pursuant to Section 8.01(g) or (y) as a result
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of a breach by the Principal Shareholder of its obligations under Section 1.1 or
Section 3.4 hereof in any material respect. Parent shall exercise the Option by
delivering written notice thereof to the Principal Shareholder (the "Notice"),
specifying the date, time and place for the closing of such purchase which date
shall not be less than three business days nor more than five business days from
the date Parent provides the Notice (the "Option Closing"). The Option Closing
shall take place on the date and at the time and place specified in such notice;
PROVIDED, that if at such time any of the conditions specified in Section 1.3(d)
shall not have been satisfied (or waived), Parent may postpone the Option
Closing (but in no event for more than 90 days) until a date within five
business days after such conditions are satisfied. Upon the exercise of the
Option (and subject to the satisfaction of the conditions set forth in Section
1.3(d)), Parent shall be entitled to purchase the Shares under the Option (the
"Option Shares") and the Principal Shareholder shall sell the Option Shares to
Parent.
(c) At the Option Closing, the Principal Shareholder will
deliver to Parent (in accordance with Parent's instructions) the certificates
representing the Option Shares being purchased pursuant to this Section 1.3,
duly endorsed or accompanied by stock powers duly executed in blank. At such
Option Closing, Parent shall deliver to the Principal Shareholder, by bank wire
transfer of immediately available funds, an amount equal to the number of Option
Shares being purchased from the Principal Shareholder as specified in the Notice
multiplied by the Option Price.
(d) The obligation of Parent to purchase the Option Shares at
the Option Closing is subject to the following conditions: (i) the waiting
period under the HSR Act and all other foreign antitrust laws covered by Section
7.01(d) of the Merger Agreement with respect to the acquisition of such Shares
shall have expired or been terminated and (ii) there shall be no preliminary or
permanent injunction or other order, decree or ruling issued by any Governmental
Entity, nor any statute, rule, regulation or order promulgated or enacted by any
Governmental Entity prohibiting, or otherwise restraining, such purchase.
(e) In the event of any change in the Company's capital stock
by reason of any stock dividend, stock split, merger, consolidation,
recapitalization, combination, conversion, exchange of shares, extraordinary or
liquidating dividend or other change in the corporate or capital structure of
the Company which would have the effect of diluting or changing Parent's rights
hereunder, the number and kind of Option Shares or other securities subject to
this Agreement and the Option Price shall be appropriately and equitably
adjusted so that Parent shall receive pursuant to the exercise of the Option
that number and class of shares or other securities or property that Parent or
Merger Subsidiary, as the case may be, would have received in respect of the
Option Shares purchasable pursuant to the exercise of the Option if such
purchase had occurred immediately prior to such event.
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(f) If the Option is exercised and the Option Shares are
acquired by Parent (or its permitted assigns), Parent shall offer to purchase
all outstanding shares of the Company's Common Stock or effect a merger or
similar business combination at a price per share not less than the price per
share paid for the Option Shares.
Section 1.4 ACKNOWLEDGMENT. The Principal Shareholder
acknowledges receipt and review of a copy of the Merger Agreement.
Section 1.5 BOARD DUTIES. Notwithstanding the foregoing,
nothing in this Agreement shall prohibit any person affiliated with the
Principal Shareholder from fulfilling his or her fiduciary duties as a member of
the Board of Directors of the Company.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
OF THE PRINCIPAL SHAREHOLDER
The Principal Shareholder hereby represents and warrants to
Parent, as of the date hereof and any Option Closing, as follows:
Section 2.1 AUTHORITY RELATIVE TO THIS AGREEMENT. The
Principal Shareholder has all necessary power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement by the Principal Shareholder and the consummation by the Principal
Shareholder of the transactions contemplated hereby have been duly and validly
authorized by the Principal Shareholder, and no other proceedings on the part of
the Principal Shareholder are necessary to authorize this Agreement, to perform
such obligations or to consummate such transactions. This Agreement has been
duly and validly executed and delivered by the Principal Shareholder and,
assuming the due authorization, execution and delivery by Parent and Merger
Subsidiary, constitutes a legal, valid and binding obligation of the Principal
Shareholder, enforceable against the Principal Shareholder in accordance with
its terms.
Section 2.2 NO CONFLICT. (a)The execution and delivery of this
Agreement by the Principal Shareholder do not, and the performance of its
obligations under this Agreement by the Principal Shareholder and the
consummation of the transactions contemplated hereby shall not, (i) conflict
with or violate the certificate of incorporation, by-laws or other
organizational documents of the Principal Shareholder, (ii) conflict with or
violate any law, rule, regulation, order, judgment or decree applicable to the
Principal Shareholder or by which the Shares are bound or affected or (iii)
result in any breach of or constitute a default (or an event that with notice or
lapse
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or time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the Shares pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which the Principal Shareholder
is a party or by which the Principal Shareholder or the Shares are bound or
affected, except, in the case of clauses (ii) and (iii), for any such conflicts,
violations, breaches, defaults or other occurrences which would not prevent or
delay the performance by the Principal Shareholder of its obligations under this
Agreement.
(b) The execution and delivery of this Agreement by the
Principal Shareholder do not, and the performance of its obligations under this
Agreement by the Principal Shareholder shall not, require any consent, approval,
authorization or permit of, or filing with or notification to, any court or
arbitrator or any Governmental Entity, agency or official except for applicable
requirements, if any, of the Securities Exchange Act and except where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or delay the performance
by the Principal Shareholder of its obligations under this Agreement.
Section 2.3 TITLE TO THE SHARES. As of the date hereof, the
Principal Shareholder is the sole record and beneficial owner of 13,150,000
shares of Company Common Stock. Such Shares are all the securities of the
Company owned, either of record or beneficially, by the Principal Shareholder
and the Principal Shareholder owns no other rights or interests exercisable for
or convertible into any securities of the Company. The Principal Shareholder has
sole voting power and sole power to issue instructions with respect to the
matters set forth herein, sole power of disposition, sole power (if any) to
demand dissenters' rights and sole power to agree to all of the matters set
forth in this Agreement, in each case with respect to all of the Shares with no
limitations, qualifications or restrictions on such rights, subject to
applicable law. The Shares are owned free and clear of all Liens. The transfer
of the Shares to Parent or Merger Subsidiary upon consummation of the Offer, or
upon exercise of the Option, will constitute a transfer of valid title to Parent
or Merger Subsidiary, as the case may be, free and clear of all Liens, other
than Liens which may be created by Parent or Merger Subsidiary. The Principal
Shareholder has not appointed or granted any proxy, which appointment or grant
is still effective, with respect to the Shares.
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ARTICLE 3
COVENANTS OF THE PRINCIPAL SHAREHOLDER
Section 3.1 NO INCONSISTENT AGREEMENT. The Principal
Shareholder hereby covenants and agrees that the Principal Shareholder shall not
enter into any agreement or take any other action that would restrict, limit or
interfere with the performance of the Principal Shareholder's obligations
hereunder, under the Merger Agreement or the consummation of the transactions
contemplated hereby or thereby.
Section 3.2 NO ENCUMBRANCES. The Principal Shareholder hereby
covenants and agrees that the Principal Shareholder shall not by any action or
omission cause any Liens to attach to the Shares.
Section 3.3 PUBLICITY. The Principal Shareholder hereby
covenants and agrees that from the date hereof until the Effective Time, the
Principal Shareholder, Parent, Merger Subsidiary and the Company shall use their
respective reasonable best efforts to consult with each other before issuing any
press release or making any public statement with respect to this Agreement and
the transactions contemplated hereby and by the Merger Agreement, and, except as
may be required by the applicable law or any listing agreement with the NYSE,
will not issue any such press release or make any such public statement prior to
such consultation.
Section 3.4 REGULATORY FILINGS. The Principal Shareholder
hereby covenants and agrees that it will, as soon as practicable, file a
Notification and Report Form under the HSR Act with the FTC and the Antitrust
Division in connection with the transactions contemplated hereby and by the
Merger Agreement as the "ultimate parent entity" of the Company, if required
under applicable law, and will make any filing or seek any consent, including
any filings under any applicable foreign antitrust laws, as may be required in
connection with this Agreement, the Merger Agreement or the transactions
contemplated thereby. The Principal Shareholder shall cooperate with the Company
and Parent and use its best efforts to respond as promptly as practicable to all
inquiries received from the FTC or the Antitrust Division or any regulatory
agencies for additional information or documentation concerning the Principal
Shareholder, the Company or the transactions contemplated hereby or by the
Merger Agreement. The Principal Shareholder shall use its best efforts to take
or cause to be taken all actions necessary, proper or advisable to obtain any
consent, waiver, approval or authorization relating to any antitrust law that is
required for the consummation of the transactions contemplated hereby and by the
Merger Agreement.
Section 3.5 WAIVER OF APPRAISAL RIGHTS. The Principal
Shareholder hereby acknowledges that no rights of appraisal are available to it
in connection with the Merger and hereby irrevocably and unconditionally waives,
and agrees to prevent the exercise of, any rights of appraisal, any dissenters'
rights and any similar rights
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relating to the Merger or any related transaction that the Principal Shareholder
may directly or indirectly have by virtue of the ownership of any Shares.
Section 3.6 REASONABLE BEST EFFORTS. The Principal Shareholder
hereby covenants and agrees, subject to the terms and conditions of this
Agreement, to use its reasonable best efforts to take, or cause to be taken, all
actions, and to do or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
the transactions contemplated hereby.
Section 3.7 FURTHER ASSURANCES. The Principal Shareholder
hereby covenants and agrees that, from time to time and without additional
consideration, the Principal Shareholder shall (at the Principal Shareholder's
sole expense) execute and deliver, or cause to be executed and delivered, such
additional transfers, assignments, endorsements, proxies, consents and other
instruments (which shall be reasonably satisfactory in form and substance to
Parent) and shall, at the Principal Shareholder's sole expense, take such
further actions, as Parent may reasonably request for the purpose of carrying
out and furthering the intent of this Agreement.
Section 3.8 NO SOLICITATION. The Principal Shareholder
acknowledges that it is aware of the covenants of the Company contained in
Section 6.03 of the Merger Agreement and hereby agrees to comply with the terms
of such section as if it were an "agent" of the Company for all purposes of said
section.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PARENT
Each of Parent and Merger Subsidiary has all necessary power
and authority to execute, deliver and perform its obligations under this
Agreement and this Agreement has been duly authorized, executed and delivered by
each of Parent and Merger Subsidiary and is a valid and binding agreement of
each of Parent and Merger Subsidiary enforceable against each of Parent and
Merger Subsidiary in accordance with its terms.
ARTICLE 5
MISCELLANEOUS
Section 5.1 TERMINATION. Except as set forth below, this
Agreement shall terminate upon the earliest of (i) the Effective Time, (ii) the
Option Closing and (iii) the termination of the Merger Agreement in accordance
with its terms; PROVIDED, HOWEVER, that this Agreement shall not terminate under
this clause (iii) if the Merger
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Agreement is terminated pursuant to a Triggering Termination unless and until
the Option expires in accordance with Section 1.3. Notwithstanding the
foregoing, the Principal Shareholder's representation contained in Section 2.3
and covenant set forth in Section 3.7 shall survive any termination occasioned
by clause (ii) of the preceding sentence.
Section 5.2 FEES AND EXPENSES. Except as otherwise provided
herein, all costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such costs
and expenses.
Section 5.3 NOTICES. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person,
registered or certified mail (postage prepaid, return receipt requested) or
courier service, or by facsimile (and shall be deemed to have been given upon
proof of receipt), to the other party as follows:
(a) If to the Principal Shareholder, to:
International Paper Company
0 Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: General Counsel
with a copy to:
O'Melveny & Xxxxx LLP
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
(b) if to the Company, to:
Xxxx Xxxxx Xxxxx Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
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with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.;
(c) if to Parent or Merger Subsidiary, to:
International Flavors & Fragrances Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Block, Esq.
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Xxxxxxx X. Xxxxxx, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above.
Section 5.4 ASSIGNMENT. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned, delegated or
transferred, in whole or in part, by any of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the other
parties hereto (and which transfer shall not relieve the transferor of its
obligations hereunder in the event of a breach by the transferee) PROVIDED that
Parent or Merger Subsidiary may assign this Agreement to any wholly-owned
Subsidiary of Parent without the prior written consent of the other parties
hereto.
Section 5.5 NO THIRD-PARTY BENEFICIARIES. This Agreement shall
be binding upon and inure solely to the benefit of each party hereto and its
respective successors and permitted assigns, and nothing in this Agreement,
express or implied, is
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intended to or shall confer upon any other person any right, benefits or
remedies of any nature whatsoever.
Section 5.6 SPECIFIC PERFORMANCE. The parties hereto agree
that irreparable damage would occur in the event that the provisions of this
Agreement were not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or in equity.
Section 5.7 ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement among Parent, Merger Subsidiary, the Company and Principal
Shareholder with respect to the subject matter hereof (other than the Merger
Agreement) and supersedes all prior agreements and understandings, both written
and oral, among Parent, Merger Subsidiary, the Company and the Principal
Shareholder with respect to the subject matter hereof.
Section 5.8 AMENDMENT. This Agreement may not be modified,
amended, altered or supplemented except by an instrument in writing signed by
each of the parties hereto.
Section 5.9 SEVERABILITY. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule or
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of this Agreement is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereby shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in a mutually acceptable manner in order that the terms of this
Agreement remain as originally contemplated.
Section 5.10 GOVERNING LAW. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York
regardless of the laws that might otherwise govern under applicable principles
of conflicts of law.
Section 5.11 CONSENT TO JURISDICTION. Each party to this
Agreement hereby irrevocably agrees that any legal action or proceeding arising
out of or relating to this Agreement or any agreements or transactions
contemplated hereby shall be brought in the United States District Court for the
Southern District of New York or any appropriate state court in the State of New
York and hereby expressly submits to the personal jurisdiction and venue of such
courts for the purposes thereof and expressly waives any claim of improper venue
and any claim that such courts are an inconvenient forum. Each party hereby
irrevocably consents to the service of process of any of the aforementioned
courts in any such suit, action or proceeding by the
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mailing of copies thereof by registered or certified mail, post prepaid, to the
address set forth in Section 5.3, such service to become effective ten days
after such mailing.
SECTION 5.12 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF THE
PRINCIPAL SHAREHOLDER, THE COMPANY, PARENT OR MERGER SUBSIDIARY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF.
Section 5.13 DEFINED TERMS. Capitalized terms used herein but
not defined herein shall have the meanings ascribed to them in the Merger
Agreement.
Section 5.14 COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Principal Shareholder, the Company,
Parent and Merger Subsidiary have caused this Agreement to be duly executed on
the date hereof.
INTERNATIONAL PAPER COMPANY
By: /s/ C. Xxxxx Xxxxx
---------------------------------------
Name: C. Xxxxx Xxxxx
Title: Executive Vice Xxxxxxxxx
XXXX XXXXX XXXXX INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman, President & CEO
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INTERNATIONAL FLAVORS & FRAGRANCES INC.
By: /s/ Xxxxxxx X. Block
---------------------------------------
Name: Xxxxxxx X. Block
Title: Senior Vice President
B ACQUISITION CORP.
By: /s/ Xxxxxxx X. Block
---------------------------------------
Name: Xxxxxxx X. Block
Title: Vice President
