Exhibit 99.1 Agreement and Plan of Merger
AGREEMENT AND PLAN OF MERGER
Among
BALTEK CORPORATION,
ALCAN INC.
and
ALCAN BALCORP, INC.
Dated as of 5 March, 2003
TABLE OF CONTENTS
Page No.
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1. Definitions and Exhibits........................................................................1
1.1 Definitions............................................................................1
1.2 Exhibits...............................................................................5
1.3 Currency...............................................................................5
2. The Merger......................................................................................5
2.1 The Merger.............................................................................5
2.2 Closing................................................................................5
2.3 Merger Effective Time..................................................................5
3. The Surviving Company...........................................................................6
3.1 Certificate of Incorporation of the Surviving Company..................................6
3.2 Bylaws of the Surviving Company........................................................6
3.3 Directors of the Surviving Company.....................................................6
3.4 Officers of the Surviving Company......................................................6
4. Effect of the Merger on Capital Stock; Exchange of Certificates.................................6
4.1 Effect of the Merger...................................................................6
(a) Merger Consideration..........................................................6
(b) Merger Sub....................................................................7
4.2 Exchange of, and Payment for, Shares...................................................7
(a) Paying Agent..................................................................7
(b) Exchange Procedures...........................................................7
(c) Transfers.....................................................................8
(d) Termination of Exchange Fund..................................................8
(e) Lost, Stolen or Destroyed Certificates........................................9
4.3 Dissenters' Rights.....................................................................9
5. Representations and Warranties..................................................................9
5.1 Representations and Warranties of the Company..........................................9
(a) Organization, Good Standing and Qualification.................................9
(b) Capital Structure............................................................10
(c) Corporate Authority; Approval and Fairness...................................10
(d) Governmental Filings; No Violations..........................................11
(e) Company Contracts............................................................12
(f) Company Reports; Financial Statements........................................13
(g) Absence of Certain Changes...................................................14
(h) (Litigation and Liabilities..................................................14
(i) Employee Benefits............................................................15
(j) Compliance with Laws; Permits................................................17
(k) Takeover Statutes............................................................17
(l) Environmental Matters........................................................17
(m) Taxes........................................................................18
(n) Labor Matters................................................................18
(o) Insurance....................................................................18
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(p) Intellectual Property........................................................19
(q) Brokers and Finders..........................................................20
(r) Vote Required................................................................20
5.2 Representations and Warranties of Parent and Merger Sub...............................20
(a) Organization, Good Standing and Qualification................................20
(b) Corporate Authority..........................................................21
(c) Governmental Filings; No Violations..........................................21
(d) Ownership of Shares..........................................................22
(e) Funds........................................................................22
6. Covenants......................................................................................22
6.1 Interim Operations....................................................................22
6.2 Acquisition Proposals.................................................................24
6.3 Stockholder Approvals.................................................................25
6.4 Stockholder Meeting and Proxy Statement...............................................25
6.5 Filings; Other Actions; Notification..................................................26
6.6 Access................................................................................28
6.7 Stock Exchange De-listing.............................................................28
6.8 Publicity.............................................................................28
6.9 Expenses..............................................................................28
6.10 Indemnification.......................................................................29
6.11 Takeover Statute......................................................................29
7. Conditions.....................................................................................29
7.1 Conditions to Each Party's Obligation to Effect the Merger............................29
(a) Stockholder Approvals........................................................29
(b) Regulatory Consents..........................................................30
(c) No Orders....................................................................30
7.2 Conditions to Obligations of Parent and Merger Sub....................................30
(a) Representations and Warranties...............................................30
(b) Confirmatory Due Diligence...................................................30
(c) Dissents.....................................................................31
(d) Resignations.................................................................31
(e) Performance of Obligations of the Company....................................31
(f) Divestiture of Shrimp Business...............................................31
(g) Additional Agreements........................................................31
7.3 Conditions to Obligation of the Company...............................................32
(a) Representations and Warranties...............................................32
(b) Performance of Obligations of Parent and Merger Sub..........................32
8. Termination....................................................................................32
8.1 Termination by Mutual Consent.........................................................32
8.2 Termination by Either Parent or the Company...........................................32
8.3 Termination by the Company............................................................33
8.4 Termination by Parent.................................................................33
8.5 Effect of Termination and Abandonment.................................................34
9. Miscellaneous and General......................................................................34
9.1 Survival..............................................................................34
9.2 Modification or Amendment.............................................................34
9.3 Waiver of Conditions..................................................................35
9.4 Counterparts..........................................................................35
9.5 Governing Law and Venue; Waiver of Jury Trial.........................................35
9.6 Notices...............................................................................36
9.7 Entire Agreement......................................................................37
9.8 No Third Party Beneficiaries..........................................................37
9.9 Obligations of Parent and of the Company..............................................37
9.10 Severability..........................................................................37
9.11 Interpretation........................................................................37
9.12 Assignment............................................................................38
AGREEMENT AND PLAN OF MERGER
----------------------------
AGREEMENT AND PLAN OF MERGER (hereinafter called this "Agreement"), dated as of
5 March 2003, among BALTEK CORPORATION, a Delaware corporation (the "Company"),
ALCAN INC., a Canadian company ("Parent") and ALCAN BALCORP, INC., a Delaware
corporation and a wholly owned subsidiary of Parent ("Merger Sub").
RECITALS
WHEREAS, the Boards of Directors of each of the Company, Parent and Merger Sub
have approved this Agreement, and the Boards of Directors of each of the
Company, Parent and Merger Sub have approved the merger of the Company with and
into the Merger Sub upon the terms and subject to the conditions set forth in
this Agreement (the "Merger"); and
WHEREAS, the Company, Parent and Merger Sub desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger and the other transactions contemplated by this Agreement;
NOW, THEREFORE, in consideration of the premises, and the representations,
warranties, covenants and agreements contained herein, the parties hereto agree
as follows:
1. Definitions and Exhibits
1.1 Definitions
As used in this Agreement, the following terms shall have the meanings set forth
below:
"Acquisition Proposal" shall have the meaning set forth in Section 6.2;
"Agreement" shall mean this Agreement and Plan of Merger, including any exhibits
hereto;
"Audit Date" shall mean December 31, 2001;
"Bankruptcy and Equity Exception" shall have the meaning set forth in Section
5.1(c)(i);
"Closing" shall have the meaning set forth in Section 2.2;
"Closing Date" shall mean the time and date at which the Closing takes place
pursuant to Section 2.2;
"Code" shall mean the Internal Revenue Code of 1986, as amended;
"Company" shall mean Baltek Corporation;
"Company Certificates" shall have the meaning set forth in Section 4.1(a);
"Company Closing Documents" shall have the meaning set forth in Section
5.1(c)(i);
"Company Common Share" shall have the meaning set forth in Section 4.1(a);
"Company Contracts" shall have the meaning set forth in Section 5.1(e);
"Company Disclosure Letter" shall have the meaning set forth in Section 5.1;
"Company Intellectual Property Rights" shall have the meaning set forth in
Section 5.1(p);
"Company Material Adverse Effect" means an effect, change, development or
circumstance that, individually or in the aggregate is or is reasonably likely
to be material and adverse with respect to the financial condition, results of
operations, assets, business or prospects of the Company and its Subsidiaries
taken as a whole;
"Company Reports" shall have the meaning set forth in Section 5.1(f);
"Company Requisite Vote" shall have the meaning set forth in Section 5.1(c);
"Company Voting Debt" shall have the meaning set forth in Section 5.1(b);
"Compensation and Benefit Plans" shall have the meaning set forth in Section
5.1(i);
"Consulting Agreements" shall have the meaning set forth in Section 7.2(g)(ii);
"Contract" shall have the meaning set forth in Section 5.1(d);
"Costs" shall have the meaning set forth in Section 6.10(a);
"DGCL" shall mean the Delaware General Corporation Law, as amended;
"Dissenting Stockholders" shall mean stockholders exercising appraisal rights
pursuant to Section 262 of the DGCL;
"Employees" shall have the meaning set forth in Section 5.1(i);
"Encumbrance" shall have the meaning set forth in Section 6.1(a);
"Environmental Law" means any applicable law, regulation, code, license, permit,
order, decree or injunction from any Governmental Entity governing (A) the
protection of the environment, (including air, water, soil and natural
resources) or (B) the use, storage, handling, release or disposal of Hazardous
Substances, in each case as presently in effect;
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended;
"ERISA Affiliate" shall have the meaning set forth in Section 5.1(i);
"GAAP" shall mean U.S. generally accepted accounting principles consistently
applied;
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"Governmental Consents" shall have the meaning set forth in Section 7.1(b);
"Governmental Entity" shall mean any governmental or regulatory authority,
agency, commission or other entity, domestic or foreign;
"Government Antitrust Entity" shall have the meaning set forth in Section
6.5(e);
"Hazardous Substance" means any substance presently listed, defined, designated
or classified as hazardous, toxic or radioactive under any applicable
Environmental Law including petroleum and any derivative or by-products thereof;
"Indemnified Parties" shall have the meaning set forth in Section 6.10(a);
"IRS" shall mean the Internal Revenue Service;
"Knowledge of the Company" shall mean the actual knowledge of (i) an officer of
the Company or (ii) any individual party to a Voting Agreement, in each case
after reasonable inquiry;
"Laws" shall have the meaning set forth in Section 5.1(j);
"Merger" shall mean the merger of Merger Sub with and into the Company such that
the separate existence of Merger Sub shall thereupon cease;
"Merger Certificate" shall have the meaning set forth in Section 2.3;
"Merger Consideration" shall have the meaning set forth in Section 4.1(a);
"Merger Effective Time" shall have the meaning set forth in Section 2.3;
"Merger Sub" shall have the meaning set forth in the recitals hereto;
"Merger Sub Common Share" shall have the meaning set forth in Section 4.1(b);
"Order" shall have the meaning set forth in Section 7.1(c);
"Parent" shall mean Alcan Inc.;
"Parent Companies" shall mean Parent, Merger Sub and any direct or indirect
subsidiaries of Parent;
"Paying Agent" shall have the meaning set forth in Section 4.2(a);
"Pension Plan" shall mean an "employee pension benefit plan" within the meaning
of Section 3(2) of ERISA and that is intended to be qualified under Section
401(a) of the Code;
"Person" shall mean any individual, corporation (including not-for-profit),
general or limited partnership, limited liability company, joint venture,
estate, trust, association, organization, Government Entity or other entity of
any kind or nature;
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"Plans" shall have the meaning set forth in Section 5.1(i);
"Proxy Statement" shall have the meaning set forth in Section 6.4;
"Representatives" shall have the meaning set forth in Section 6.6;
"SEC" shall mean the U.S. Securities and Exchange Commission;
"Shrimp Business" shall mean all aspects of the Company's shrimp business,
including but not limited to all the assets, liabilities, obligations,
interests, employees and interest in its subsidiaries Marines C.A. and
Recorcholis S.A.;
"Shrimp Business Divestiture" shall mean the transfer of all of the shares of
Marines C.A. and Recorcholis S.A. pursuant to an and in accordance with the
terms of the agreement dated 11 December 2002, as amended thereafter;
"Stockholder Approval" shall have the meaning set forth in Section 6.3;
"Subsidiary" shall mean a "subsidiary" as defined in Rule 1-02 of Regulation S-X
of the SEC;
"Superior Proposal" shall have the meaning set forth in Section 6.2;
"Surviving Company" shall have the meaning set forth in Section 2.1;
"Surviving Company Bylaws" shall have the meaning set forth in Section 3.2;
"Surviving Company Charter" shall have the meaning set forth in Section 3.1;
"Takeover Statute" shall have the meaning set forth in Section 5.1(k);
"Tax" (including, with correlative meaning, the terms "Taxes", and Taxable")
includes all federal, state, local and foreign income, profits, franchise, gross
receipts, environmental, customs duty, capital stock, severances, stamp,
payroll, sales, employment, unemployment, disability, use, property,
withholding, excise, production, value added, occupancy and other taxes, duties
or assessments of any nature whatsoever, together with all interest, penalties
and additions imposed with respect to such amounts and any interest in respect
of such penalties and additions;
"Tax Return" includes all returns and reports (including elections,
declarations, disclosures, schedules, estimates and information returns)
required to be supplied to a Tax authority relating to Taxes;
"Termination and Non-Compete Agreements" shall have the meaning set forth in
Section 7.2(g)(i);
"Termination Date" shall have the meaning set forth in Section 8.2;
"Third-Party Intellectual Property Rights" shall have the meaning set forth in
Section 5.1(p).
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1.2 Exhibits
The following are the exhibits annexed to and incorporated into this Agreement
by this reference and deemed to be a part hereof:
Exhibit 5.1: Company Disclosure Letter
Exhibit 6.10(a) Indemnified Parties
Exhibit 7.2(g)(i): Termination of Employment
Exhibit 7.2(g)(ii): Consulting Agreements
Exhibit 7.2(g)(iii) Voting Agreements
1.3 Currency
Unless otherwise specified, any reference to dollars or other currency in this
Agreement denotes a reference to lawful currency of the United States of
America.
2. The Merger
2.1 The Merger
Upon the terms and subject to the conditions set forth in this Agreement, at the
Merger Effective Time, Merger Sub shall be merged with and into the Company and
the separate corporate existence of Merger Sub shall thereupon cease. The
Company shall be the surviving corporation in the Merger (sometimes hereinafter
referred to as the "Surviving Company"), and the separate corporate existence of
Merger Sub with all its rights, privileges, immunities, powers and franchises
shall continue unaffected by the Merger, except as set forth in Section 3. The
Merger shall have the effects specified in the Delaware General Corporation Law,
as amended ("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 9:00 A.M. on the
second business day following the day on which the last to be satisfied or
waived of the conditions set forth in Section 7 (other than those conditions
that by their nature are to be satisfied at the Closing, but subject to the
satisfaction or waiver of those conditions) shall be satisfied 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 Parent may agree in writing.
2.3 Merger Effective Time
As soon as practicable following the Closing, the Company will cause a
certificate of merger (the "Merger Certificate") to be executed, acknowledged
and filed with the Secretary of State of the State of Delaware as provided in
Section 251 of the DGCL. The Merger shall become effective at the time when the
Merger Certificate has been duly filed with the Secretary of State of the State
of Delaware (the "Merger Effective Time") or at such other time (not later than
90 days after the date of filing) as may be set forth in the Merger Certificate.
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3. The Surviving Company
3.1 Certificate of Incorporation of the Surviving Company
At the Merger Effective Time the certificate of incorporation of the Surviving
Company (the "Surviving Company Charter") shall be amended in its entirety to
read as the certificate of incorporation of Merger Sub as in effect immediately
prior to the Merger Effective Time until duly amended as provided therein or by
applicable law; provided that the certificate of incorporation shall provide
that the Surviving Corporation shall be named "Baltek Corporation".
3.2 Bylaws of the Surviving Company
The bylaws of Merger Sub in effect at the Merger Effective Time shall be the
bylaws of the Surviving Company (the "Surviving Company Bylaws"), until
thereafter amended as provided therein or by applicable law.
3.3 Directors of the Surviving Company
The directors of Merger Sub at the Merger Effective Time shall, from and after
the Merger Effective Time, be the directors of the Surviving Company until their
successors have been duly elected or appointed and qualified or until their
earlier death, resignation or removal in accordance with the Surviving Company
Charter and the Surviving Company Bylaws.
3.4 Officers of the Surviving Company
The officers of the Merger Sub at the Merger Effective Time shall, from and
after the Merger Effective Time, be the officers of the Surviving Company until
their successors have been duly elected or appointed and qualified or until
their earlier death, resignation or removal in accordance with the Surviving
Company Charter and the Surviving Company Bylaws.
4. Effect of the Merger on Capital Stock; Exchange of Certificates
4.1 Effect of the Merger
At the Merger Effective Time, as a result of the Merger and without any
action on the part of the holder of any capital stock of the Company:
(a) Merger Consideration
Each share of Common Stock, par value $1.00 per share, of the
Company (each, a "Company Common Share") issued and outstanding
immediately prior to the Merger Effective Time (other than
Company Shares owned by Dissenting Stockholders) shall be
converted into the right to receive, without interest, an amount
in cash (the "Merger Consideration") equal to $15.17 per Company
Common Share. All such Company Common Shares, by virtue of the
Merger and without any action on the part of the
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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 Company Common Shares (the
"Company Certificates") shall thereafter cease to have any rights
with respect to such Company Common Shares, except the right to
receive the Merger Consideration for such Company Common Shares
upon the surrender of such Company Certificate in accordance with
Section 4.2 or the right, if any, to receive payment from the
Surviving Company of the "fair value" of such Company Common
Shares as determined in accordance with Section 262 of the DGCL.
(b) Merger Sub
Each share of Common Stock, par value $0.001 per share, of Merger
Sub (each, a "Merger Sub Common Share") issued and outstanding
immediately prior to the Merger 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 and become one
validly issued, fully-paid and outstanding share of common stock
of the Surviving Corporation.
4.2 Exchange of, and Payment for, Shares
(a) Paying Agent
Prior to the Merger Effective Time, Parent shall deposit or cause
to be deposited with a paying agent selected prior thereto by
Parent (the "Paying Agent"), amounts sufficient in the aggregate
to provide all funds necessary for the Paying Agent to make
payments pursuant to Section 4.1(a) to holders of Company Common
Shares issued and outstanding immediately prior to the Merger
Effective Time (it being understood that any and all interest or
other income earned on funds held by the Paying Agent shall be
for the account of Parent).
(b) Exchange Procedures
(i) As soon as reasonably practicable after the Merger Effective
Time, the Surviving Company shall cause to be mailed to each
Person who was, at the Merger Effective Time, a holder of
record of issued and outstanding Company Common Shares (i) a
letter of transmittal specifying that delivery shall be
effected, and the risk of loss and title to each Company
Certificate shall pass, only upon delivery of such Company
Certificate (or affidavits of loss in lieu thereof) to the
Paying Agent, such letter of transmittal to be in such form
and have such other provisions as Parent and the Company may
reasonably agree, and (ii) instructions for use in effecting
the surrender
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of Company Certificates. Upon surrender to the Paying Agent
of any Company Certificate, together with such letter of
transmittal, duly executed and completed in accordance with
the instructions thereto, the Surviving Company shall
promptly cause to be paid to the Person(s) entitled thereto
a check in the amount to which such Person(s) are entitled
pursuant to Section 4.2(a), after giving effect to any
required tax withholdings. No interest will be paid or will
accrue on the amount payable upon the surrender of any
Company Certificate.
(ii) 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 Company, or to the
satisfaction of the Paying Agent, that such tax has been
paid or is not applicable.
(c) Transfers
After the Merger Effective Time, there shall be no transfers on
the stock transfer books of the Company of the Company Common
Shares that were outstanding immediately prior to the Merger
Effective Time.
(d) Termination of Exchange Fund
(i) One hundred and eighty days following the Merger Effective
Time, the Surviving Company 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 in respect of the payments to be made
pursuant to Section 4.2(a) which have not been disbursed to
holders of Company Certificates on the Merger Effective
Time, and thereafter such holders shall be entitled to look
to the Surviving Company or Parent only as general creditors
thereof with respect to the cash payable upon due surrender
of their Company Certificates.
(ii) Notwithstanding the foregoing, to the fullest extent
permitted by law, neither the Paying Agent nor any party
hereto shall be liable to any holder of Certificates for any
amount paid to a public official pursuant to any applicable
abandoned property, escheat or similar law. The Surviving
Company shall pay all charges and expenses, including
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those of the Paying Agent, in connection with the exchange
of cash for Company Common Shares and if necessary Parent
shall reimburse the Surviving Company for such charges and
expenses.
(e) Lost, Stolen or Destroyed Certificates
In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the
Person claiming such Certificate to be lost, stolen or destroyed
and, if required by Parent, the posting by such Person of a bond
in customary amount as indemnity against any claim that may be
made against it with respect to such Certificate, the Paying
Agent will pay in exchange for such lost, stolen or destroyed
Certificate the consideration due such holder pursuant to Section
4.1(a) upon due surrender of the Company Common Shares
represented by such Certificate.
4.3 Dissenters' Rights
Any Company Common Shares that have not been voted for adoption of the Merger
and this Agreement and with respect to which appraisal rights shall have been
properly demanded in accordance with Section 262 of the DGCL shall not be
converted into the right to receive the Merger Consideration unless and until
the holder of such Company Common Shares withdraws his, her or its demand for
such appraisal in accordance with the DGCL. The Company shall give Parent notice
of any written demands for appraisals, and withdrawals for demands for
appraisal, of Company Common Shares. Parent shall have the right to participate
in all negotiations and proceedings with respect to any such demands. Neither
the Company nor the Surviving Company shall, except with the prior written
consent of Parent, voluntarily make any payment with respect to, or settle or
offer to settle, any such demand for payment. If any Dissenting Stockholder
shall fail to perfect or shall have effectively withdrawn or lost the right to
dissent, Company Common Shares held by such Dissenting Stockholder shall
thereupon be treated as though such Company Common Shares had been converted
into the Merger Consideration pursuant to Section 4.1(a).
5. Representations and Warranties
5.1 Representations and Warranties of the Company
Except as set forth in the numbered section of the disclosure letter attached
hereto as Exhibit 5.1 (the "Company Disclosure Letter") corresponding to the
relevant paragraph below or the Company Reports filed on or prior to the date
hereof, the Company hereby represents and warrants to Parent and Merger Sub
that:
(a) Organization, Good Standing and Qualification
Each of the Company and each of its Subsidiaries is a corporation
duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization and has all requisite
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corporate or similar power and authority to own and operate its
properties and assets and to carry on its business as presently
conducted and is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction where the
ownership or operation of its properties or conduct of its
business requires such qualification except where the lack of
such qualification would not have a Company Material Adverse
Effect. The Company has made available to Parent a complete and
correct copy of the Company's and each of its Subsidiaries'
certificates of incorporation and bylaws, each as amended to
date. The Company's and its Subsidiaries' certificates of
incorporation and bylaws so delivered are in full force and
effect.
(b) Capital Structure
The authorized capital stock of the Company consists of
10,000,000 Company Common Shares and 5,000,000 preferred shares,
of which 2,323,944 Company Common Shares and no preferred shares
are outstanding on the date hereof. All of the outstanding
Company Common Shares have been duly authorized and are validly
issued, fully paid and nonassessable. As of the date of this
Agreement, the Company has no Company Common Shares reserved for
issuance or subject to issuance. Each of the outstanding shares
of capital stock or other equity interests of each of the
Company's Subsidiaries is duly authorized, validly issued, fully
paid and nonassessable and, except for directors' qualifying and
nominee shares, owned by a direct or indirect wholly owned
subsidiary of the Company, free and clear of any lien, pledge,
security interest, claim or similar encumbrance. Except as set
forth above, or in the Company Disclosure Letter or in the
certificate of incorporation of the Company, there are no
preemptive or other outstanding rights, options, warrants,
conversion rights, stock appreciation rights, redemption rights,
repurchase rights, agreements, arrangements or commitments to
issue or sell any shares of capital stock or other securities of
the Company or any of its Subsidiaries or any securities or
obligations convertible or exchangeable into or exercisable for,
or giving any Person a right to subscribe for or acquire, any
securities of the Company or any of its Subsidiaries, and no
securities or obligations evidencing such rights are authorized,
issued or outstanding. The Company does not have outstanding any
bonds, debentures, notes or other obligations the holders of
which have the right to vote (or convertible into or exercisable
for securities having the right to vote) with the stockholders of
the Company on any matter ("Company Voting Debt").
(c) Corporate Authority; Approval and Fairness
(i) The Company has all requisite power and authority and has
taken all corporate action necessary in order to
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execute, deliver and perform its obligations under this
Agreement and to consummate, subject only to approval of
this Agreement by a majority of the votes entitled to be
cast by holders of the Company Common Shares (the "Company
Requisite Vote") and the filing of the Merger Certificate
with the Delaware Secretary of State, the Merger. This
Agreement is a valid and binding agreement of the Company
enforceable against the Company in accordance with its
terms, except that such enforcement may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting or relating to enforcement of
creditors' rights generally and (ii) general equitable
principles (the "Bankruptcy and Equity Exception"). Upon the
execution and delivery by the Company and certain holders of
Company Common Shares, as further set out in this Agreement,
of the Employment Agreements, Consulting Agreements and
Voting Agreements and each other agreement to be executed or
delivered by any or all of the Company and certain holders
of Company Common Shares at the Closing (collectively, the
"Company Closing Documents"), each of the Company Closing
Documents will constitute a valid and binding agreement of
the Company and the relevant holders of Company Common
Shares, enforceable against them in accordance with its
terms, and subject only to the Bankruptcy and Equity
Exception.
(ii) The Board of Directors of the Company (A) has approved this
Agreement and the Merger and the other transactions
contemplated hereby and (B) has received the opinion of its
financial advisor, Phoenix Capital Corp., a subsidiary of
Xxxxxxx Global Services, Inc., to the effect that the Merger
Consideration to be received by the holders of the Company
Common Shares in the Merger is fair to such holders from a
financial point of view. It is agreed and understood that
such opinion is for the benefit of the Company's Board of
Directors and may not be relied on by Parent or Merger Sub.
(d) Governmental Filings; No Violations
(i) Other than the filings and/or notices (A) pursuant to
Section 2.3, (B) pursuant to the Exchange Act or (C)
required to be made with any Governmental Entity in any
jurisdiction outside the United States, including Ecuador
and listed in Section 5.1(d) of the Company Disclosure
Letter, no notices, reports or other filings are required to
be made by the Company with, nor are any consents,
registrations, approvals, permits or authorizations required
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to be obtained by the Company from, any Governmental Entity
in connection with the execution and delivery of this
Agreement by the Company, the consummation by the Company of
the Merger and the other transactions contemplated hereby,
except those that the failure to make or obtain are not,
individually or in the aggregate, reasonably likely to have
a Company Material Adverse Effect or prevent, materially
delay or materially impair the ability of the Company to
consummate the Merger or the other transactions contemplated
by this Agreement.
(ii) The execution, delivery and performance of this Agreement
and the other Company Closing Documents by the Company and
certain holders of Company Common Shares do not, and the
consummation by the Company of the Merger and the other
transactions contemplated hereby will not, constitute or
result in (A) a breach or violation of, or a default under,
the certificate of incorporation or bylaws of the Company or
the comparable governing instruments of any of its
Subsidiaries, or (B) a breach or violation of, a default
under, the acceleration or alteration of any obligations of
or the creation of a lien, pledge, security interest, claim
or similar encumbrance on the assets of the Company or any
of its Subsidiaries (with or without notice, lapse of time
or both) pursuant to, any agreement, lease, sublease,
contract, note, mortgage, indenture, arrangement or other
obligation not otherwise terminable by the other party
thereto on 90 days' or less notice ("Contract") binding upon
the Company or any of its Subsidiaries or any Law or
governmental or non-governmental permit or license to which
the Company or any of its Subsidiaries is subject, except,
in the case of clause (B) above, for any breach, violation,
default, acceleration, creation or change that, individually
or in the aggregate, is not reasonably likely to have a
Company Material Adverse Effect or that would prevent,
materially delay or materially impair the ability of the
Company to consummate the Merger or the other transactions
contemplated by this Agreement.
(e) Company Contracts
Section 5.1(e) of the Company Disclosure Letter lists any
Contracts the performance of which involves consideration in
excess of $100,000, other than distribution, purchase or supply
agreements entered into in the ordinary course of business,
consistent with past practice (collectively, "Company
Contracts"). The Company has made available to Parent a correct
and complete copy of each written Contract listed in Section
5.1(e) of
-12-
the Company Disclosure Letter. To the Knowledge of the Company,
each Contract listed in Section 5.1(e) of the Company Disclosure
Letter is a valid and binding agreement and is in full force and
effect. For greater certainty, Company Contracts with Marubeni
Canada Ltd. and Lantor BV (the "Marubeni and Lantor Contracts")
are valid and binding agreements and in full force and effect.
(f) Company Reports; Financial Statements
(i) The Company has delivered to Parent each registration
statement, report, proxy statement or information statement
prepared by it since December 31, 2001, including (A) the
Company's Annual Report on Form 10?K for the year ended
December 31, 2001, and (B) the Company's Quarterly Reports
on Form 10?Q for the periods ended March 31, June 30 and
September 30, 2002, each in the form (including exhibits,
annexes and any amendments thereto) filed with the SEC
(collectively, including any such reports filed subsequent
to the date hereof and as amended, the "Company Reports").
As of their respective dates, (or, if amended, as of the
date of such amendment) 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. Each of the consolidated balance sheets included
in or incorporated by reference into the Company Reports
(including the related notes and schedules) fairly presents,
or will fairly present, in all material respects the
consolidated financial position of the Company and its
subsidiaries as of its date and each of the consolidated
statements of operations and consolidated statements of
stockholder's equity and cash flows included in or
incorporated by reference into the Company Reports
(including any related notes and schedules) fairly presents,
or will fairly present, in all material respects the
financial position, the results of operations and cash
flows, 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 notes and normal
year-end audit adjustments that will not be material in
amount or effect), in each case in accordance with GAAP
consistently applied during the periods involved, except as
may be noted therein.
-13-
(ii) Section 5.1(f) of the Company Disclosure Letter sets forth
(i) the outstanding amount of long term indebtedness of the
Company as of September 30, 2002, and (ii) a list of the
Contracts containing the terms of such indebtedness.
(g) Absence of Certain Changes
Except as set forth in Section 5.1(g) of the Company Disclosure
letter and actions contemplated by this Agreement (including the
Shrimp Business Divestiture) and except as reflected, reserved or
otherwise disclosed in the financial statements included in or
incorporated by reference in the Company Reports, 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
change in the financial condition, business or results of
operations of the Company and its Subsidiaries that, individually
or in the aggregate, has had or is reasonably likely to have a
Company Material Adverse Effect; (ii) any declaration, setting
aside or payment of any dividend or other distribution (whether
in cash, stock or property) with respect to any of the Company's
capital stock, (iii) any split, dividend, combination,
recapitalization or similar transaction with respect to any of
the Company's capital stock or any issuance or the authorization
of any issuance of any other securities in respect of, in lieu of
or in substitution for shares of the Company's capital stock,
except for issuances of Company Shares upon the exercise of
Options awarded prior to the date hereof in accordance with their
terms, (iv) any granting by the Company or any of its
Subsidiaries to any Employee of any increase in compensation,
bonus or other benefits (including the right to accelerated
vesting with respect to any option or restricted share award or
any other change in control related benefit or compensation),
except for normal increases in the ordinary course of business
and in accordance with past practice or as was required under any
employment agreements in effect as of December 31, 2001, (v) any
granting by the Company or any of its Subsidiaries to any
Employee of any increase in severance or termination pay, except
in the ordinary course of business and consistent with past
practice, (vi) any entry by the Company or any of its
Subsidiaries into, or any amendments of, any Company Compensation
and Benefit Plan, (vii) any tax election made or changed that
would be material to the Company or any of its tax attributes or
any settlement or compromise of any material tax audit or (viii)
any change by the Company in any of its material accounting
principles, practices or methods, other than any such changes
made as a result of any change in GAAP.
(h) (Litigation and Liabilities
-14-
Except as reflected, reserved or otherwise disclosed in the
financial statements included in or incorporated by reference in
the Company Reports, there are no (i) claims of any nature by any
Person, including any Governmental Entity, pending or, to the
Knowledge of the Company, threatened against the Company or any
of its Subsidiaries or (ii) Obligations relating to the Company
and its Subsidiaries which would be required to be reflected,
reserved or otherwise disclosed in the consolidated financial
statements of the Company under applicable accounting principles
if occurring on a date covered by such financial statements,
including those relating to matters involving any Environmental
Law, of the Company or any of its Subsidiaries, except for such
claims or obligations that could have been incurred in accordance
with Section 6.1(b) had the provisions of such Section been
applicable at such time or as are not, individually or in the
aggregate, reasonably likely to have a Company Material Adverse
Effect.
(i) Employee Benefits
(i) A copy of each bonus, deferred compensation, pension,
retirement, profit-sharing, thrift, savings, employee stock
ownership, stock bonus, stock purchase, restricted stock,
deferred stock, stock option, employment, termination,
severance, compensation, medical, health or other plan,
agreement, policy or arrangement that covers current or
former employees of the Company and its Subsidiaries (the
"Employees") and current or former directors of the Company
(the "Compensation and Benefit Plans") and any trust
agreement or insurance contract forming a part of such
material Compensation and Benefit Plans has been made
available to Parent prior to the date hereof other than
Compensation and Benefit Plans that are not material. The
material Compensation and Benefit Plans are listed in
Section 5.1(i) of the Company Disclosure Letter.
(ii) (All Compensation and Benefit Plans covering Employees
("Plans") to the extent subject to ERISA, are in substantial
compliance with ERISA. Each Plan that is a Pension Plan has
received a favorable determination letter from the IRS or
the Company has taken other appropriate action to ensure
that such Plan will not lose its qualification under Section
401(a) of the Code, and the Company is not aware of any
circumstances likely to result in revocation of any such
favorable determination letter or the loss of such
qualification. As of the date hereof, there is no pending
or, to the Knowledge of the Company, threatened material
litigation relating to the Compensation and Benefit Plans.
-15-
Neither the Company nor any of its Subsidiaries has engaged
in a transaction with respect to any Compensation and
Benefit Plan that, assuming the taxable period of such
transaction expired as of the date hereof, would subject the
Company or any of its Subsidiaries to a material tax or
penalty imposed by either Section 4975 of the Code or
Section 502 of ERISA.
(iii) As of the date hereof, no liability under Subtitle C or D
of Title IV of ERISA has been or is expected to be incurred
by the Company or any Subsidiary with respect to any
ongoing, frozen or terminated "single-employer plan", within
the meaning of Section 4001(a)(15) of ERISA, currently or
formerly maintained by any of them, or the single-employer
plan of any entity which is considered one employer with the
Company under Section 4001 of ERISA or Section 414 of the
Code (an "ERISA Affiliate"). The Company and its
Subsidiaries have not incurred and do not expect to incur
any withdrawal liability with respect to a multiemployer
plan under Subtitle E to Title IV of ERISA. No notice of a
"reportable event", within the meaning of Section 4043 of
ERISA for which the 30-day reporting requirement has not
been waived, has been required to be filed for any Pension
Plan or by any ERISA Affiliate within the 12-month period
ending on the date hereof.
(iv) All contributions required to be made under the terms of any
Compensation and Benefit Plan as of the date hereof have
been timely made or have been reflected on the most recent
consolidated balance sheet filed or incorporated by
reference in the Company Reports prior to the date hereof.
Neither any Pension Plan nor any single-employer plan of an
ERISA Affiliate has an "accumulated funding deficiency"
(whether or not waived) within the meaning of Section 412 of
the Code or Section 302 of ERISA.
(v) Neither the Company nor its Subsidiaries have (a) any
defined benefit plans or (b) any obligations for retiree
health and life benefits under any Compensation and Benefit
Plan.
(vi) The consummation of the Merger and the other transactions
contemplated by this Agreement will not (x) entitle any
employees of the Company or its Subsidiaries to severance
pay, (y) accelerate the time of payment or vesting or
trigger any payment of compensation or benefits under,
increase the amount payable or trigger any other material
obligation pursuant to, any of the Compensation and Benefit
Plans or (z) result in any breach or violation of,
-16-
or a default under, any of the Compensation and Benefit
Plans.
(vii) All employee benefit plans maintained outside of the United
States comply in all respects with applicable local law
except for such failures to comply as would not,
individually or in the aggregate, result in a Company
Material Adverse Effect.
(j) Compliance with Laws; Permits
The businesses of each of the Company and its Subsidiaries have
not been, and are not being, conducted in violation of any
federal, state, local or foreign law, statute, ordinance, rule,
regulation, judgment, order, injunction, decree, arbitration
award, agency requirement, license or permit of any Governmental
Entity (collectively, "Laws"), except for violations that,
individually or in the aggregate, are not reasonably likely to
have a Company Material Adverse Effect.
(k) Takeover Statutes
No "fair price", "moratorium", "control share acquisition" or
other similar antitakeover statute or regulation (including,
without limitation, Section 203 of the DGCL) (each, a "Takeover
Statute") is, or at the Merger Effective Time will be, applicable
to the Company, the Company Common Shares, the Merger or the
other transactions contemplated by this Agreement. Assuming the
accuracy of Parent's representations and warranties contained in
Section 5.2(d) (Ownership of Shares), the Board of Directors of
the Company has taken all action so that Parent will not be
prohibited from entering into a "business combination" with the
Company as an "interested stockholder" (in each case as such term
is used in Section 203 of the DGCL) as a result of the execution
of this Agreement or the consummation of the Merger.
(l) Environmental Matters
Except as disclosed in section 5.1(l) of the Company Disclosure
Letter or the Company Reports filed with the SEC prior to the
date hereof and except for such matters that, alone or in the
aggregate, are not reasonably likely to have a Company Material
Adverse Effect, (i) the Company and its subsidiaries have
complied with all applicable Environmental Laws; (ii) the
properties presently or formerly owned or operated by the Company
or its subsidiaries (including, without limitation, soil,
groundwater or surface water on, under or adjacent to the
properties, and buildings thereon) do not contain any Hazardous
Substance other than as permitted under applicable Environmental
Law, do not, and have not, contained any underground storage
tanks, do not have any
-17-
asbestos present (and have not had any asbestos removed
therefrom) and have not been used as a sanitary landfill or
hazardous waste disposal site (provided, however, that with
respect to such properties formerly owned or operated by the
Company, such representation is limited to the period prior to
the disposition of such Properties by the Company or one of its
subsidiaries); (iii) neither the Company nor any of its
subsidiaries has received any notices, demand letters or request
for information from any Governmental Entity or any third party
that the Company may be in violation of, or liable under, any
Environmental Law and none of the Company, its subsidiaries or
the Properties are subject to any court order, administrative
order or decree arising under any Environmental Law and (iv) no
Hazardous Substance has been disposed of, transferred, released
or transported from any of the Properties during the time such
Property was owned or operated by the Company or one of its
subsidiaries, other than as permitted under applicable
Environmental Law.
(m) Taxes
The Company and each of its Subsidiaries (i) have prepared in
good faith and duly and timely filed (taking into account any
extension of time within which to file) all Tax Returns required
to be filed by any of them; (ii) have paid all Taxes that are
shown as due on such filed Tax Returns, except with respect to
matters contested in good faith; and (iii) have not waived any
statute of limitations with respect to Taxes or agreed to any
extension of time with respect to a Tax assessment or deficiency.
As of the date hereof, there are not pending or, to the Knowledge
of the Company, threatened in writing, any audits, examinations,
investigations or other proceedings in respect of Taxes or Tax
matters.
(n) Labor Matters
Except as set forth in Section 5.1 (n) of the Company Disclosure
Letter, as of the date hereof, neither the Company nor any of its
Subsidiaries is the subject of any material proceeding asserting
that the Company or any of its Subsidiaries has committed an
unfair labor practice or is seeking to compel it to bargain with
any labor union or labor organization nor is there pending or, to
the knowledge of the Company, threatened, nor has there been for
the past five years, any labor strike, dispute, walk-out, work
stoppage, slow-down or lockout involving the Company or any of
its Subsidiaries.
(o) Insurance
-18-
All material fire and casualty, general liability, business
interruption, product liability, and sprinkler and water damage
insurance policies maintained by the Company or any of its
Subsidiaries are in full force and effect, except for any such
failures to maintain insurance policies that, individually or in
the aggregate, are not reasonably likely to have a Company
Material Adverse Effect.
(p) Intellectual Property
(i) The Company and/or each of its Subsidiaries owns, or is
licensed or otherwise possesses rights to use all patents,
trademarks, trade names, service marks, copyrights, and any
applications therefor, technology, know-how, computer
software programs or applications, and tangible or
intangible proprietary information or materials that are
used in the business of the Company and its Subsidiaries as
currently conducted, except for any such failures to own, be
licensed or possess as are not reasonably likely,
individually or in the aggregate, to have a Company Material
Adverse Effect, and to the Knowledge of the Company, all
material patents, trademarks, trade names, service marks and
copyrights used in the business of the Company and its
Subsidiaries as currently conducted are valid and
subsisting.
(ii) Except for such matters not reasonably likely to have a
Company Material Adverse Effect: (A) neither the Company nor
any of its Subsidiaries is, nor will it be as a result of
the execution and delivery of this Agreement or the
performance of its obligations hereunder, in violation of
any licenses, sublicenses and other agreements used in the
business of the Company and its Subsidiaries as currently
conducted as to which it is a party and pursuant to which it
is authorized to use any third-party patents, trademarks,
service marks, copyrights, trade secrets or computer
software (collectively, "Third-Party Intellectual Property
Rights"), and particularly, without limiting the generality
of the foregoing, in violation of any Third-Party
Intellectual Property Rights under the Marubeni and Lantor
Contracts; (B) no claims with respect to (I) the patents,
registered and material unregistered trademarks and service
marks, registered copyrights, trade names, and any
applications therefor, trade secrets or computer software
owned by the Company or any of its Subsidiaries and used in
the business of the Company and its Subsidiaries as
currently conducted (collectively, the "Company Intellectual
Property Rights"); or (II) Third-Party Intellectual Property
Rights used in the business of the
-19-
Company and its Subsidiaries as currently conducted are
currently pending or, to the Knowledge of the Company, are
threatened by any Person; and (C) to the Knowledge of the
Company, there is no unauthorized use, infringement or
misappropriation of any of the Company Intellectual Property
Rights used in the business of the Company and its
Subsidiaries as currently conducted by any third party.
(q) Brokers and Finders
Neither the Company nor any of its subsidiaries has employed any
broker or finder or incurred any liability for any brokerage
fees, commissions or finders fees in connection with Merger, or
the transactions contemplated by this Agreement, except that the
Company has employed Xxxxxx Xxxxx Xx. in relation to this
transaction, the arrangements with whom have been disclosed in
writing to Parent prior to the date hereof.
(r) Vote Required
The Company Requisite Vote is the only vote of the holders of any
class or series of the Company capital stock necessary to adopt
this Agreement and approve the transactions contemplated hereby.
5.2 Representations and Warranties of Parent and Merger Sub
Parent and Merger Sub hereby represent and warrant to the Company that:
(a) Organization, Good Standing and Qualification
(i) Each of Parent and Merger Sub is a corporation duly
organized, validly existing and in good standing under the
laws of its respective jurisdiction of organization and has
all requisite corporate or similar power and authority to
own and operate its properties and assets and to carry on
its business as presently conducted and is qualified to do
business and is in good standing as a foreign corporation in
each jurisdiction where the ownership or operation of its
properties or conduct of its business requires such
qualification, except where the failure to be so qualified
or in such good standing, when taken together with all other
such failures, is not reasonably likely to prevent or impair
the ability of Parent, or Merger Sub to consummate the
Merger or affect the validity of the Merger.
(ii) The Merger Sub was formed solely for the purpose of engaging
in the transactions contemplated hereby and has not carried
on any activities to date other than those
-20-
incident to its formation and the consummation of this
Agreement.
(b) Corporate Authority
No vote of the holders of the capital stock of Parent is
necessary to approve this Agreement, the Merger or the other
transactions contemplated hereby. Parent and Merger Sub each 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 Merger and the other transactions
contemplated hereby. This Agreement has been duly adopted by the
sole stockholder of Merger Sub, in accordance with applicable law
and the applicable certificate of incorporation and bylaws of
such corporation. This Agreement is a valid and binding agreement
of Parent and Merger Sub enforceable against each of them in
accordance with its terms, subject to the Bankruptcy and Equity
Exception.
(c) Governmental Filings; No Violations
(i) Other than the filings and/or notices (A) pursuant to
Section 2.3, (B) pursuant to the Exchange Act, (C) pursuant
to any Environmental Laws, and (D) required to be made with
any Governmental Entity in any jurisdiction outside the
United States, no notices, reports or other filings are
required to be made by Parent or Merger Sub with, nor are
any consents, registrations, approvals, permits or
authorizations required to be obtained by Parent or Merger
Sub from, any Governmental Entity, in connection with the
execution and delivery of this Agreement by Parent or Merger
Sub and the consummation by Parent and Merger Sub of the
Merger and the other transactions contemplated hereby,
except those that the failure to make or obtain are not,
individually or in the aggregate, reasonably likely to
prevent, materially delay or impair the ability of Parent or
Merger Sub to consummate the Merger or the other
transactions contemplated by this Agreement.
(ii) The execution, delivery and performance of this Agreement by
Parent and Merger Sub do not, and the consummation by Parent
and Merger Sub of the Merger and the other transactions
contemplated hereby will not, constitute or result in (A) a
breach or violation of, or a default under, the certificate
of incorporation or bylaws of Parent or the comparable
governing instruments of any of its Subsidiaries, or (B) a
breach or violation of, or a default under, the acceleration
of any obligations or the creation of a lien, pledge,
security interest or other encumbrance on
-21-
the assets of Parent or any of its Subsidiaries (with or
without notice, lapse of time or both) pursuant to, any
Contracts binding upon Parent or any of its Subsidiaries or
any Law or governmental or non-governmental permit or
license to which Parent or any of its Subsidiaries is
subject, except, in the case of clause (B) above, for
breach, violation, default, acceleration, creation or change
that, individually or in the aggregate, is not reasonably
likely to prevent, materially delay or impair the ability of
Parent or Merger Sub to consummate the Merger or the other
transactions contemplated by this Agreement.
(d) Ownership of Shares
Neither Parent nor any of its Subsidiaries beneficially owns or is the
beneficial Owner of any Company Common Shares.
(e) Funds
Parent has, as of the date of this Agreement, and will have, as of and following
the Closing, all funds necessary to consummate the Merger and the other
transactions contemplated by this Agreement.
6. Covenants
6.1 Interim Operations
(a) The Company covenants and agrees as to itself and its
Subsidiaries that, after the date hereof and prior to the Merger
Effective Time (unless Parent shall otherwise approve in writing,
which approval shall not be unreasonably withheld or delayed),
and except as otherwise contemplated by this Agreement (including
the Shrimp Business Divestiture) or the Company Disclosure
Letter:
(i) it shall operate the business of it and its Subsidiaries
only in the ordinary course of business, consistent with
past practice, and, to the extent consistent with such
operation, use its best efforts to: (A) preserve the present
business organization intact; and (B) preserve all
beneficial business relationships with all customers,
suppliers, employees and others having business dealings
with the business of it and its Subsidiaries;
(ii) it shall maintain (A) the material assets of the Company in
such condition and repair consistent with past practice, and
(B) insurance upon all of the material assets of the Company
and with respect to the conduct of the business of the
Company in full force and effect, comparable in
-22-
amount, scope, and coverage to that in effect on the date of
this Agreement;
(iii) it shall not (A) issue, sell, pledge, dispose of or
encumber any capital stock owned by it in any of its
Subsidiaries; (B) amend its certificate of incorporation or
bylaws; (C) split, combine or reclassify its outstanding
shares of capital stock; (D) declare, set aside or pay any
dividend payable in cash, stock or property in respect of
any capital stock other than dividends from its direct or
indirect wholly owned Subsidiaries; or (E) repurchase,
redeem or otherwise acquire, or permit any of its
Subsidiaries to purchase or otherwise acquire, any shares of
its capital stock or any securities convertible into or
exchangeable or exercisable for any shares of its capital
stock;
(iv) neither it nor any of its Subsidiaries shall (A) issue,
sell, pledge, dispose of or encumber any shares of, or
securities convertible into or exchangeable or exercisable
for, or options, warrants, calls, commitments or rights of
any kind to acquire, any shares of its capital stock of any
class or any Company Voting Debt; (B) grant or sell any
option or right to purchase the assets of the Company,
except regarding non-material assets in the ordinary course
of business, consistent with past practice; or (C) subject
any of the assets of the Company to any further material
lien, charge, mortgage, pledge, security interest or similar
encumbrance (each, an "Encumbrance"), other than (i) as
reflected, reserved or otherwise disclosed in the financial
statements included in or incorporated by reference in the
Company Reports and (ii) in the ordinary course of business,
consistent with past practice;
(v) neither it nor any of its Subsidiaries shall terminate,
establish, adopt, enter into, make any new grants or awards
under, amend or otherwise modify, any Compensation and
Benefit Plans or pay or promise to pay, any bonus,
profit-sharing or special compensation to the Employees or
make any increase in the compensation payable or to become
payable to any of such employees, except (i) for changes
that are required by applicable law, (ii) to satisfy
obligations under the terms of any agreement or plan in
effect as of the date hereof, (iii) for increases in
compensation that are made in the ordinary course of
business consistent with past practice (which shall include
normal periodic performance reviews and related compensation
and benefit increases) and (iv) for employment arrangements
for or grants of awards to,
-23-
newly hired employees in the ordinary course of business
consistent with past practice;
(vi) except in the ordinary course of business consistent with
past practice, neither it nor any of its Subsidiaries shall
enter into or terminate any Company Contract, or make any
change in any of its Company Contracts;
(vii) neither it nor any of its Subsidiaries shall make any tax
election or permit any insurance policy naming it as a
beneficiary or loss-payable payee to be canceled or
terminated without prior notice to Parent, except in the
ordinary and usual course of business;
(viii) neither it nor any of its Subsidiaries shall settle or
compromise any material claims or litigation or, except in
the ordinary and usual course of business, waive, release or
assign any material rights or claims; and
(ix) neither it nor any of its Subsidiaries shall authorize or
enter into an agreement to do any of the foregoing.
(b) The provisions of this Section 6.1 notwithstanding, nothing in
this Agreement shall be construed or interpreted to prevent the
Company or any Subsidiary from (i) making, accepting or settling
intercompany advances to, from or with one another; (ii) causing
any Subsidiary to pay or distribute to the Company all cash,
money market instruments, bank deposits, certificates of deposit,
other cash equivalents, marketable securities and other
investment securities then owned or held by such Subsidiary; or
(iii) engaging in any other transaction incident to the normal
cash management procedures of the Company and its Subsidiaries,
including, without limitation, short-term investments in bank
deposits, money market instruments, time deposits, certificates
of deposit and bankers' acceptances and borrowings for working
capital purposes and purposes of providing additional funds to
Subsidiaries made, in each case, in the ordinary course of
business, consistent with past practice.
6.2 Acquisition Proposals
The Company agrees that neither it nor any Subsidiary of the Company nor any of
their respective officers or directors shall, and that it shall direct and use
its best efforts to cause its and such Subsidiaries' employees, agents and
representatives (including any investment banker, attorney or accountant
retained by them or any of the Company's Subsidiaries) not to, directly or
indirectly, (i) initiate, solicit, encourage or otherwise facilitate any
inquiries or the making of any proposal or offer with respect to a merger,
reorganization, share exchange, consolidation, purchase, or similar transaction
involving more than 5% of the consolidated assets or any outstanding equity
securities of the
-24-
Company (any such proposal or offer being hereinafter referred to as an
"Acquisition Proposal") or (ii) engage in any negotiations concerning, or
provide any confidential information or data to, or have any discussions with,
any Person relating to an Acquisition Proposal, or otherwise facilitate any
effort or attempt to make or implement an Acquisition Proposal; provided,
however, that nothing contained in this Agreement shall prevent the Company, its
directors, officers, agents or other representatives from (A) complying with its
disclosure obligations under federal or state law; (B) providing information in
response to a request therefor by a Person who has made an unsolicited bona fide
written Acquisition Proposal if the Board of Directors receives from the Person
so requesting such information an executed confidentiality agreement; (C)
engaging in any negotiations or discussions with any Person who has made an
unsolicited bona fide written Acquisition Proposal; or (D) recommending such an
Acquisition Proposal to the stockholders of the Company, if and only to the
extent that, (i) in each such case referred to in clause (C) or (D) above, the
Board of Directors of the Company determines in good faith (after consultation
with outside legal counsel) that failure to take such action would, in the
absence of the foregoing proscriptions, be inconsistent with the fiduciary
duties of the directors under applicable law and (ii) in the case referred to in
clause (D) above, the Board of Directors of the Company determines in good faith
(after consultation with its financial advisor) that such Acquisition Proposal,
if consummated, would result in a transaction more favorable to the Company's
stockholders from a financial point of view than the transaction contemplated by
this Agreement (being a cash offer superior to the transaction contemplated by
this Agreement by no less than 15% of the aggregate Merger Consideration) (such
more favorable Acquisition Proposal being referred to in this Agreement as a
"Superior Proposal"). The Company agrees that it will immediately cease and
cause to be terminated any existing activities, discussions or negotiations with
any parties conducted heretofore with respect to any Acquisition Proposals. The
Company agrees that it will notify Parent immediately if any such inquiries,
proposals or offers are received by, any such information is requested from, or
any such discussions or negotiations are sought to be initiated or continued
with, any of its representatives.
6.3 Stockholder Approvals
Subject to fiduciary obligations under applicable law, the Board of Directors of
the Company shall recommend approval of the transactions contemplated by this
Agreement to the holders of Company Common Shares and will take, in accordance
with applicable law and its certificate of incorporation and bylaws, all actions
necessary to obtain the Company Requisite Vote ("Stockholder Approval") as
promptly as practicable.
6.4 Stockholder Meeting and Proxy Statement
(a) The Company will take, consistent with applicable law and its
certificate of incorporation and by-Laws, all action necessary to
convene a meeting of holders of Company Common 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. The Company will cause its proxy
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or information statement with respect to such meeting of
shareholders (the "Proxy Statement") to comply with the
applicable requirements of the Exchange Act including, without
limitation, Sections 14(a) and 14(d) thereof and the regulations
of the Nasdaq Stock Market and, 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 Parent furnished to the Company by Parent specifically
for use in the Proxy Statement. The Proxy Statement shall not be
filed, and no amendment or supplement to the Proxy Statement will
be made by the Company, without prior consultation with Parent
and its counsel.
(b) Any information provided by Parent or Merger Sub in writing
expressly for use in any document to be filed with any
Governmental Entity in connection with the Merger and the
transactions contemplated hereby or supplied in writing by Parent
or Merger Sub specifically for inclusion in the Proxy will be
true and correct in all material respects.
6.5 Filings; Other Actions; Notification
(a) The Company and Parent shall cooperate with each other and shall
use (and shall cause their respective Subsidiaries to use) their
respective best efforts to take or cause to be taken all actions,
and do or cause to be done all things, necessary, proper or
advisable on its part under this Agreement and applicable Laws to
consummate and make effective the Merger as promptly as
practicable, including preparing and filing as promptly as
practicable all documentation to effect all necessary notices,
reports and other filings and to obtain as promptly as
practicable all consents, registrations, approvals, permits and
authorizations necessary or advisable to be obtained from any
third party and/or any Governmental Entity in order to consummate
the Merger. Subject to applicable Laws and the terms of any
relevant agreements with third parties relating to the exchange
of information, Parent and the Company shall have the right to
review in advance, and to the extent practicable each will
consult the other on, all the information relating to Parent or
the Company, as the case may be, and any of their respective
Subsidiaries, that appear in any filing made with, or written
materials submitted to, any third party and/or any Governmental
Entity in connection with the Merger. In exercising the foregoing
right, each of the
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Company and Parent shall act reasonably and as promptly as
practicable.
(b) The Company and Parent each shall, upon request by the other,
furnish the other with all information concerning itself, its
Subsidiaries, directors, officers and stockholders and such other
matters as may be reasonably necessary or advisable in connection
with the Proxy Statement, or any other statement, filing, notice
or application made by or on behalf of Parent, the Company or any
of their respective Subsidiaries to any third party and/or any
Governmental Entity in connection with the Merger.
(c) The Company and Parent each shall keep the other apprised of the
status of matters relating to completion of the transactions
contemplated hereby, including promptly furnishing the other with
copies of notice or other communications received by Parent or
the Company, as the case may be, or any of its Subsidiaries, from
any third party and/or any Governmental Entity with respect to
the Merger; provided, however, that in respect of any
communication to or from any Governmental Entities relating to
the Merger, each Party shall afford the other Party with advance
notice of, and a meaningful opportunity to participate in, any
such communications, including, without limitation, a right to
attend, with advisors present, any meetings (telephonic or in
person) with such Governmental Entities.
(d) The Company shall give prompt notice to Parent of: (i) any notice
of, or other communication relating to, any environmental matter,
a 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 Merger Effective Time, under any Company Contract; and
(ii) any Company Material Adverse Effect or the occurrence of any
event which, so far as reasonably can be foreseen at the time of
its occurrence, is reasonably likely to result in any such
change.
(e) Without limiting the generality of the undertakings pursuant to
this Section 6.5, the Company and Parent agree to take or cause
to be taken the following actions: (i) provide promptly to any
and all federal, state, local or foreign courts or Governmental
Entities with jurisdiction over enforcement of any applicable
antitrust laws (each, a "Government Antitrust Entity")
information and documents requested by any Government Antitrust
Entity or necessary, proper or advisable to permit consummation
of the Merger; and (ii) take promptly, in the event that any
permanent or preliminary injunction or other order is entered or
becomes reasonably foreseeable to be entered in any proceeding
that would make consummation of the Merger in accordance with the
terms of this Agreement unlawful or that would prevent or delay
consummation of the Merger, any and all commercially
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reasonable steps (including the appeal thereof or the posting of
a bond) necessary to vacate, modify or suspend such injunction or
order so as to permit such consummation on a schedule as close as
possible to that contemplated by this Agreement.
6.6 Access
Upon reasonable notice, and except as may otherwise be required by applicable
Law or the terms of any relevant agreements with third parties, the Company
shall (and the Company shall cause its Subsidiaries to) afford Parent's
officers, employees, counsel, accountants and other authorized representatives
("Representatives") reasonable access, during normal business hours throughout
the period prior to the Merger Effective Time, to its properties, books,
Contracts and records and, during such period, the Company shall (and shall
cause its Subsidiaries to) provide promptly to Parent all information concerning
its business, properties and personnel as Parent or its Representatives may
reasonably request, provided that no investigation pursuant to this Section
shall affect or be deemed to modify any representation or warranty made by the
Company. All requests for information made pursuant to this Section shall be
directed to an executive officer of the Company or such Person as may be
designated by any such officer.
6.7 Stock Exchange De-listing
The Surviving Company shall use its best efforts to cause the Company Common
Shares to be de-listed from the NASDAQ Stock Market and de-registered under the
Exchange Act as soon as practicable following the Merger Effective Time.
6.8 Publicity
The initial press releases concerning this Agreement and the Merger shall be
simultaneous press releases, approved in advance by the Company and Parent, and
thereafter the Company and Parent each shall consult with each other prior to
issuing any press releases or otherwise making public announcements with respect
to the Merger and the other transactions contemplated by this Agreement and
prior to making any filings with any third party and/or any Governmental Entity
(including any national securities exchange or interdealer quotation service)
with respect thereto, except as may be required by Laws or by obligations
pursuant to any listing agreement with or rules of any national securities
exchange or interdealer quotation service on which the securities of the Company
or Parent are listed or quoted.
6.9 Expenses
The Surviving Company shall pay all charges and expenses, including those of the
Paying Agent in connection with the transactions contemplated in Section 4 and
any transfer taxes, conveyance taxes and sales taxes, if any, payable in
connection with the consummation of the Merger. Except as provided in Section
8.5(b), all costs, fees and expenses incurred in connection with the Merger,
this Agreement and the transactions contemplated by this Agreement shall be paid
by the party incurring such expense.
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6.10 Indemnification
(a) Parent and Surviving Company shall indemnify and hold harmless,
to the fullest extent permitted under applicable law (and Parent
and Surviving Company shall also advance expenses as incurred to
the fullest extent permitted under applicable law provided the
Person to whom expenses are advanced provides any undertaking
required under applicable law to repay such advances if it is
ultimately determined that such Person is not entitled to
indemnification), each present and former director, officer, and
employee of the Company, the Company's current Subsidiaries and
those former Subsidiaries of the Company identified in Exhibit
6.10(a) (subject, in the case of such former Subsidiaries, to the
limitations set forth in such Exhibit) (collectively, the
"Indemnified Parties") against any reasonable costs or expenses
(including reasonable attorneys' fees), judgments, fines, losses,
claims, damages or liabilities (collectively, "Costs") incurred
in connection with any claim, action, suit, proceeding or
investigation, whether civil, criminal, administrative or
investigative, arising out of or pertaining to matters existing
or occurring at or prior to the Merger Effective Time, including
the Merger and the other transactions contemplated by this
Agreement.
(b) The provisions of this Section are intended to be for the benefit
of, and shall be enforceable by, each of the Indemnified Parties,
their heirs and their representatives.
6.11 Takeover Statute
If any Takeover Statute is or may become applicable to the Merger or the other
transactions contemplated by this Agreement, the Company and its Board of
Directors shall grant such approvals and take such actions as are necessary so
that such transactions may be consummated as promptly as practicable on the
terms contemplated by this Agreement or by the Merger and otherwise act to
eliminate or minimize the effects of such statute or regulation on such
transactions.
7. Conditions
7.1 Conditions to Each Party's Obligation to Effect the Merger
The respective obligation of each party to effect the Merger is subject to the
satisfaction or waiver at or prior to the Merger Effective Time of each of the
following conditions:
(a) Stockholder Approvals
This Agreement shall have been duly adopted by holders of Company
Common Shares constituting the Company Requisite Vote in
accordance with applicable law and the certificate of
incorporation and by-laws of the Company.
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(b) Regulatory Consents
Other than the filing of the Merger Certificate, all notices,
reports and other filings required to be made prior to the Merger
Effective Time by the Company or Parent or any of their
respective Subsidiaries with, and all consents, registrations,
approvals, permits and authorizations required to be obtained
prior to the Merger Effective Time by the Company or Parent or
any of their respective Subsidiaries from, any Governmental
Entity (collectively, "Governmental Consents") in connection with
the execution and delivery of this Agreement and the consummation
of the Merger and the other transactions contemplated hereby by
the Company, Parent and Merger Sub shall have been made or
obtained (as the case may be), except those that the failure to
make or to obtain are not, individually or in the aggregate,
reasonably likely to have a Company Material Adverse Effect.
(c) No Orders
No court or Governmental Entity of competent jurisdiction shall
have enacted, issued, promulgated, enforced or entered any
statute, law, ordinance, rule, regulation, judgment, decree,
injunction or other order (whether temporary, preliminary or
permanent) that is in effect and restrains, enjoins or otherwise
prohibits consummation of the Merger (collectively, an "Order").
7.2 Conditions to Obligations of Parent and Merger Sub
The obligations of Parent and Merger Sub to effect the Merger are also subject
to the satisfaction or waiver by Parent at or prior to the Merger Effective Time
of the following conditions:
(a) Representations and Warranties
The representations and warranties of the Company set forth in
this Agreement shall be true and correct as of the date of this
Agreement and as of the Closing Date as though made on and as of
such date and time (except to the extent any such representation
and warranty expressly speaks as of an earlier date), and Parent
shall have received a certificate signed on behalf of the Company
by the Chairman of the Board and Chief Executive Officer of the
Company to such effect.
(b) Confirmatory Due Diligence
Parent shall have been afforded sufficient access to the
business, personnel, assets, properties and documents of Company
and its Subsidiaries to enable it to undertake a due diligence
investigation of sufficient scope and duration to confirm the
representations and warranties of the Company herein contained,
and shall be satisfied with the results of such investigation.
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(c) Dissents
Dissenting Stockholders shall not have perfected their rights
under Section 262 of the DGCL with respect to 5% or more of the
aggregate outstanding shares of the Company Common Shares.
(d) Resignations
Each director of the Company shall have submitted his or her
unconditional and irrevocable resignation therefrom in a form
satisfactory to Parent.
(e) Performance of Obligations of the Company
The Company shall have performed in all material respects all
obligations required to be performed by it under this Agreement
at or prior to the Closing Date.
(f) Divestiture of Shrimp Business
The Company shall complete the Shrimp Business Divestiture on the
terms set forth in the Agreement therefor or otherwise on terms
fully satisfactory to Parent.
(g) Additional Agreements
(i) Termination and non-compete agreements between the Company
and those employees set out in Exhibit 7.2(g)(i) hereto (the
"Termination and Non-Compete Agreements") shall have been
executed on terms satisfactory to Parent.
(ii) Consulting agreements between the Company and those Persons
set out in Exhibit 7.2(g)(ii) (the "Consulting Agreements")
shall have been executed on terms satisfactory to Parent.
(iii) Voting agreements between Parent and those persons listed
on Exhibit 7.2(g)(iii) shall remain in full force and
effect.
(iv) Written consent of the other parties to change in control
under the contracts listed in section 7.2(g) (iv) of the
Company Disclosure Letter shall have been obtained on terms
satisfactory to Parent.
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7.3 Conditions to Obligation of the Company
The obligations of the Company to effect the Merger are also subject to the
satisfaction or waiver by the Company at or prior to the Merger Effective Time
of the following conditions:
(a) Representations and Warranties
The representations and warranties of Parent and Merger Sub set
forth in this Agreement shall be true and correct in all material
respects as of the date of this Agreement and as of the date and
time of delivery of the Closing Date as though made on and as of
such date and time (except to the extent any such representation
and warranty expressly speaks as of an earlier date), and the
Company shall have received certificates signed on behalf of
Parent by an officer of Parent, and by Merger Sub by Chief
Executive Officer of Merger Sub to such effect.
(b) Performance of Obligations of Parent and Merger Sub
Each of Parent and Merger Sub shall have performed in all
material respects all material obligations required to be
performed by them under this Agreement at or prior to the date
and time of delivery of the Closing Date.
8. Termination
8.1 Termination by Mutual Consent
This Agreement may be terminated and the Merger may be abandoned at any time
prior to the Merger Effective Time, whether before or after the adoption of this
Agreement by holders of Company Common Shares referred to in Section 7.1(b), by
mutual written consent of the Company and Parent.
8.2 Termination by Either Parent or the Company
This Agreement may be terminated and the Merger may be abandoned at any time
prior to the Merger Effective Time by action of the Board of Directors of either
Parent or the Company if (i) the Merger shall not have been consummated by
August 30, 2003 (the "Termination Date"), whether such date is before or after
the adoption of this Agreement by holders of Company Common Shares, (ii) the
Company shall not have obtained the Company Requisite Vote, or (iii) any Order
permanently restraining, enjoining or otherwise prohibiting consummation of the
Merger shall become final and non-appealable (whether before or after the
adoption of this Agreement by holders of Company Common Shares); provided,
however, that the right to terminate this Agreement pursuant to clause (i) above
shall not be available to any party that has breached in any material respect
its material obligations under this Agreement in any manner that shall have
contributed to the occurrence of the failure of the Merger to be consummated.
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8.3 Termination by the Company
This Agreement may be terminated and the Merger may be abandoned at any time
prior to the Merger Effective Time, whether before or after the adoption of this
Agreement by holders of Company Common Shares referred to in Section 7.1(b), by
action of the Board of Directors of the Company:
(a) if (i) the Board of Directors of the Company authorizes the
Company, subject to complying with the terms of this Agreement,
to enter into a binding written agreement concerning a
transaction that constitutes a Superior Proposal and the Company
notifies Parent in writing that it intends to enter into such an
agreement, (ii) Parent does not make, within three business days
of receipt (not counting the day of receipt) of the Company's
written notification of its intention to enter into a binding
agreement for a Superior Proposal, an offer that the Board of
Directors of the Company determines, in good faith after
consultation with its financial advisors, is at least as
favorable, from a financial point of view, to the stockholders of
the Company as the Superior Proposal and (iii) the Company upon
such termination pays to Parent in immediately available funds
any fees required to be paid pursuant to Section 8.5; or
(b) if there has been a material breach by Parent or Merger Sub of
any representation, warranty, covenant or agreement contained in
this Agreement that is not curable or, if curable, is not cured
within 30 days after written notice of such breach is given by
the Company to the party committing such breach, and as a result
of any such breach or breaches either of the conditions set forth
in Section 7.3(a) or (b) would not be satisfied at the Closing.
8.4 Termination by Parent
This Agreement may be terminated and the Merger may be abandoned at any time
prior to the Merger Effective Time by Parent:
(a) if the Board of Directors of the Company shall have withdrawn or
adversely modified its approval or recommendation of this
Agreement or after an Acquisition Proposal has been made failed
to reconfirm its recommendation of this Agreement within fifteen
business days after a written request by Parent to do so.
(b) if there has been a breach by the Company of any representation,
warranty, covenant or agreement contained in this Agreement that
is not curable or, if curable, is not cured within 30 days after
written notice of such breach is given by Parent to the party
committing such breach, and as a result of any such breach or
breaches either of the conditions set forth in Section 7.2(a) or
(e) would not be satisfied at the Closing.
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8.5 Effect of Termination and Abandonment
(a) In the event of termination of this Agreement and the abandonment
of the Merger pursuant to this Section 8, this Agreement (other
than as set forth in Section 9.1) shall become void and of no
effect with no liability on the part of any party hereto (or of
any of its directors, officers, employees, agents, legal and
financial advisors or other representatives).
(b) In the event that this Agreement is terminated (i) by the Company
pursuant to Section 8.3(a) or (ii) by Parent pursuant to Section
8.4(a) or (iii) by either party pursuant to Section 8.2(ii), then
the Company shall promptly, but in no event later than two
business days after the date of such termination or, if
applicable, the event set forth in the proviso below, pay Parent
a termination fee of $1.2 million by wire transfer of same day
funds. The Company acknowledges that the agreements contained in
this Section 8.5(b) are an integral part of the transactions
contemplated by this Agreement, and that, without these
agreements, Parent and Merger Sub would not enter into this
Agreement; accordingly, if the Company fails to promptly pay the
amount due pursuant to this Section 8.5(b), and, in order to
obtain such payment, Parent or Merger Sub commences a suit which
results in a judgment against the Company for the fee set forth
in this paragraph (b), the Company shall pay to Parent or Merger
Sub its reasonable costs and expenses (including reasonable
attorneys' fees) in connection with such suit, together with
interest on the amount of the fee at the prime lending rate of
Citibank, N.A. in effect on the date such payment was required to
be made.
9. Miscellaneous and General
9.1 Survival
This Section 9 and the agreements of the Company, Parent and Merger Sub
contained in Sections 6.7 (Stock Exchange De-listing), 6.9 (Expenses) and 6.10
(Indemnification) shall survive the consummation of the Merger. This Section 9
and the agreements of the Company, Parent and Merger Sub contained in Section
6.9 (Expenses) and Section 8.5 (Effect of Termination and Abandonment) shall
survive the termination of this Agreement. All other representations,
warranties, covenants and agreements in this Agreement shall not survive the
consummation of the Merger or the termination of this Agreement.
9.2 Modification or Amendment
Subject to the provisions of the applicable law, at any time prior to the Merger
Effective Time, the parties hereto may modify or amend this Agreement, by
written agreement executed and delivered by duly authorized officers of Parent
and the Company.
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9.3 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.
9.4 Counterparts
This Agreement may be executed in any number of counterparts, each such
counter-part being deemed to be an original instrument, and all such
counterparts shall together constitute the same agreement.
9.5 Governing Law and Venue; Waiver of Jury Trial
(a) EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF THE DGCL, 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 NEW YORK WITHOUT REGARD TO THE CONFLICT
OF LAW PRINCIPLES THEREOF EXCEPT TO THE EXTENT THAT DELAWARE LAW
IS REQUIRED TO BE APPLICABLE UNDER APPLICABLE CHOICE OF LAW
PRINCIPLES. The parties hereby irrevocably submit to the
jurisdiction of the courts of the State of New York and the
Federal courts of the United States of America, in either case
located in the County of New York, New York 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 New York 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 9.6 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
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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 PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER,
(iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH
PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 9.5.
9.6 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 return receipt requested, postage prepaid, by
overnight courier, or by facsimile:
if to Parent, or Merger Sub:
Alcan Balcorp, Inc.
c/o Alcan Aluminum Corporation
0000 Xxxxxxxx Xxxx.
Xxxxxxxxx, Xxxx 00000-0000
U.S.A.
Attention: Xxxxxxx X. Xxxx
Fax: (000) 000-0000
with a copy to:
Alcan Inc.
0000 Xxxxxxxxxx Xx. Xxxx
Xxxxxxxx, Xxxxxx
Xxxxxx X0X 0X0
Attention: Corporate Secretary
Fax: (000) 000-0000
if to the Company:
Baltek Corporation
00 Xxxxxxx Xxxxx
X.X. Xxx 000
-00-
Xxxxxxxxx, Xxx Xxxxxx 00000
X.X.X.
Attention: Xxxxxxx Xxxx
fax: (000) 000-0000
or to such other persons or addresses as may be designated in writing by the
party to receive such notice as provided above.
9.7 Entire Agreement
This Agreement (including any exhibits hereto), the Company Disclosure Letter
and the Additional Agreements set out in Section 7.2(g) constitute 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.
9.8 No Third Party Beneficiaries
Except as provided in Section 6.10 (Indemnification), this Agreement is not
intended to confer upon any Person other than the parties hereto any rights or
remedies hereunder.
9.9 Obligations of Parent and of the Company
Whenever this Agreement requires a Subsidiary of Parent to take any action, such
requirement shall be deemed to include an undertaking on the part of Parent to
cause such Subsidiary to take such action. 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 Merger Effective Time, on the part of the
Surviving Company to cause such Subsidiary to take such action.
9.10 Severability
It is the intention of the parties that 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.
It is the intention of the parties that 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.
9.11 Interpretation
The words "hereof," "herein," and "hereunder" and words of similar import, when
used in this Agreement, shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. Terms defined in the singular shall have
correlative
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meanings when used in the plural, and vice versa. 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
Exhibit, such reference shall be to a Section of or Exhibit 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."
9.12 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 in lieu of Merger Sub, in
which event all references herein to Merger Sub, as the case may be, 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. Any purported
assignment made in contravention of this Section 9.12 shall be null and void.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
duly authorized officers of the parties hereto as of the date of this Agreement.
BALTEK CORPORATION
By: /s/ Xxxxxxx Xxxx
-----------------------------------------
Name: Xxxxxxx Xxxx
Title: President and Executive Officer
ALCAN INC.
By /s/ Xxxxx XxXxxxxxx
-----------------------------------------
Name: Xxxxx XxXxxxxxx
Title: Senior Vice President,Mergers and Acquisitions
and Chief Legal Officer
ALCAN BALCORP, INC.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Vice President
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