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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
XXXXX CORPORATION,
IMTC ACQUISITION CORP.
AND
IMTEC INC.
DATED AS OF FEBRUARY 11, 2000
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TABLE OF CONTENTS
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RECITALS.................................................... 1
ARTICLE I
DEFINITIONS............................................... 1
1.1 Acquisition and Acquisition Proposal.......... 1
1.2 Affiliate..................................... 1
1.3 Agreement..................................... 1
1.4 Buildings..................................... 1
1.5 CERCLA........................................ 1
1.6 Certificate of Merger......................... 1
1.7 Closing Date.................................. 1
1.8 Code.......................................... 1
1.9 Company....................................... 1
1.10 Company Certificates.......................... 1
1.11 Company Common Stock.......................... 2
1.12 Company SEC Reports........................... 2
1.13 Company Stockholders.......................... 2
1.14 Company Special Meeting....................... 2
1.15 Confidentiality Agreement..................... 2
1.16 Continuing Directors.......................... 2
1.17 Contracts..................................... 2
1.18 DGCL.......................................... 2
1.19 Disclosure Schedule........................... 2
1.20 Dissenting Shares............................. 2
1.21 Effective Time of Merger...................... 2
1.22 Employee Benefit Plans........................ 2
1.23 Environmental Claim, Environmental Hazardous
Materials, Environmental Laws, Environmental
Permits and Environmental Release............. 2
1.24 ERISA......................................... 2
1.25 Exchange Act.................................. 2
1.26 Exchange Agent................................ 2
1.27 Exchange Fund................................. 2
1.28 Existing Contracts............................ 2
1.29 Existing Liens................................ 3
1.30 Existing Litigation........................... 3
1.31 Existing Permits.............................. 3
1.32 Existing Stock Options........................ 3
1.33 Existing Plans................................ 3
1.34 HSR Act....................................... 3
1.35 Indebtedness.................................. 3
1.36 Indemnified Parties........................... 3
1.37 Insurance Policies............................ 3
1.38 Knowledge..................................... 3
1.39 Knowledge of the Company...................... 3
1.40 Law........................................... 3
1.41 Lien.......................................... 3
1.42 Material Adverse Effect....................... 3
1.43 Merger........................................ 3
1.44 Merger Consideration.......................... 3
1.45 Minimum Condition............................. 3
1.46 Newco......................................... 3
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1.47 Offer......................................... 3
1.48 Offer Documents............................... 4
1.49 Option Consideration.......................... 4
1.50 Parent........................................ 4
1.51 Person........................................ 4
1.52 Product Liability Matters..................... 4
1.53 Proxy Statement............................... 4
1.54 Real Estate................................... 4
1.55 Representatives............................... 4
1.56 Schedule 14D-9................................ 4
1.57 SEC........................................... 4
1.58 Securities Act................................ 4
1.59 Shareholder Option Agreements................. 4
1.60 Special Event................................. 4
1.61 Stock Award................................... 4
1.62 Stock Option Plans............................ 4
1.63 Subsidiary.................................... 4
1.64 Superior Proposal............................. 4
1.65 Surviving Corporation......................... 4
1.66 Takeover Laws................................. 4
1.67 Termination Fee............................... 4
1.68 WBCL.......................................... 4
1.69 Year 2000 Compliant........................... 4
ARTICLE II
THE OFFER................................................. 5
2.1 The Offer...................................... 5
2.2 Company Actions................................ 6
ARTICLE III
THE MERGER................................................ 6
3.1 The Merger.................................... 6
3.2 Effect of the Merger.......................... 7
3.3 Effective Time of Merger...................... 7
3.4 Conversion of Company Common Stock............ 7
3.5 Newco Stock................................... 7
3.6 Exchange of Company Certificates.............. 7
3.7 Stock Transfer Books.......................... 8
3.8 Stockholder's Meeting......................... 9
3.9 Dissenting Shares............................. 9
3.10 Takeover Laws................................. 9
3.11 Stock Options................................. 9
ARTICLE IV
OTHER AGREEMENTS.......................................... 10
4.1 Access........................................ 10
4.2 Disclosure Schedule........................... 10
4.3 Duties Concerning Representations and
Covenants........................................... 11
4.4 Deliveries of Information; Consultation....... 11
4.5 Acquisition Proposals......................... 11
4.6 Legal Conditions to Merger.................... 13
4.7 Public Announcements.......................... 13
4.8 Indemnification of Company Directors and
Officers............................................ 13
4.9 Company Board................................. 14
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY............. 14
5.1 Organization; Business........................ 14
5.2 Capitalization................................ 14
5.3 Authorization; Enforceability................. 15
5.4 No Violation or Conflict...................... 15
5.5 Title to Assets............................... 15
5.6 Litigation.................................... 15
5.7 Company SEC Reports and Books and Records..... 15
5.8 Absence of Certain Changes.................... 16
5.9 Contingent and Undisclosed Liabilities........ 16
5.10 Existing Contracts............................ 16
5.11 Insurance Policies............................ 17
5.12 Compliance with Law; No Default............... 17
5.13 Brokers....................................... 18
5.14 Patents, Trademarks and Like Assets........... 18
5.15 Permits....................................... 18
5.16 Employee Benefit Plans........................ 18
5.17 Labor Matters................................. 19
5.18 Real Estate................................... 19
5.19 No Pending Acquisitions....................... 20
5.20 Taxes......................................... 20
5.21 Information Supplied.......................... 21
5.22 Takeover Statutes............................. 21
5.23 Environmental Protection...................... 21
5.24 Certain Transactions.......................... 23
5.25 Product Matters............................... 23
5.26 Year 2000..................................... 23
5.27 Required Vote of the Company Stockholders..... 23
5.28 Representations Complete...................... 23
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PARENT AND NEWCO........ 23
6.1 Organization.................................. 23
6.2 Authorization; Enforceability................. 24
6.3 No Violation or Conflict...................... 24
6.4 Litigation.................................... 24
6.5 Financing..................................... 24
6.6 Brokers....................................... 24
6.7 Governmental Approvals........................ 24
6.8 Offer Documents; Proxy Statement.............. 24
6.9 Representations Complete...................... 24
ARTICLE VII
CONDUCT OF BUSINESS BY THE COMPANY PENDING THE MERGER..... 25
7.1 Carry on in Regular Course.................... 25
7.2 Use of Assets................................. 25
7.3 Contracts..................................... 25
7.4 Insurance Policies............................ 25
7.5 Employment Matters............................ 25
7.6 Contracts and Commitments..................... 25
7.7 Indebtedness.................................. 25
7.8 Preservation of Relationships................. 25
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7.9 Compliance with Laws.......................... 25
7.10 Taxes......................................... 25
7.11 Amendments.................................... 25
7.12 Dividends; Redemptions; Issuance of Stock..... 25
7.13 No Dispositions............................... 25
7.14 Dissolution; Reorganization................... 25
7.15 Litigation.................................... 25
ARTICLE VIII
CONDITIONS TO CONSUMMATION OF THE MERGER.................. 26
8.1 Injunction.................................... 26
8.2 Governmental Approvals........................ 26
8.3 The Offer..................................... 26
8.4 Approval of Company Stockholders; Certificate
of Merger........................................... 26
ARTICLE IX
TERMINATION; MISCELLANEOUS................................ 26
9.1 Termination................................... 26
9.2 Rights on Termination; Waiver................. 27
9.3 Survival of Representations, Warranties and
Covenants........................................... 27
9.4 Entire Agreement; Amendment................... 27
9.5 Expenses...................................... 27
9.6 Governing Law................................. 27
9.7 Assignment.................................... 27
9.8 Notices....................................... 27
9.9 Counterparts; Headings........................ 28
9.10 Interpretation................................ 28
9.11 Severability.................................. 28
9.12 Specific Performance.......................... 28
9.13 No Reliance................................... 28
SIGNATURES PAGE............................................. 29
ANNEX A..................................................... A-1
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is made as of the 11th day of February,
2000 by and among XXXXX CORPORATION, a Wisconsin corporation ("Parent"), IMTC
ACQUISITION CORP., a Delaware corporation ("Newco"), and IMTEC INC., a Delaware
corporation (the "Company").
RECITALS
WHEREAS, the respective Boards of Directors of Parent, Newco and the
Company have each determined that it is advisable and in the best interests of
each such respective entity and their stockholders for Newco to commence a cash
tender offer to purchase all outstanding shares of Company Common Stock (as
defined below) at a price of $12.00 per share (the "Offer") and, following the
consummation of the Offer, to merge Newco with and into the Company (the
"Merger"); and
WHEREAS, the Board of Directors of the Company has unanimously (i) approved
the Offer and the Merger, (ii) determined that the Offer and the Merger are in
the best interests of the Company Stockholders, and (iii) approved and adopted
this Agreement and the transactions contemplated hereby.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
When used in this Agreement, the following terms shall have the meanings
specified:
1.1 "ACQUISITION" AND "ACQUISITION PROPOSAL" shall have the meanings
specified in Section 4.5(a) of this Agreement.
1.2 "AFFILIATE" shall have the meaning given to such term in Rule 12b-2
under the Exchange Act.
1.3 "AGREEMENT" shall mean this Agreement and Plan of Merger, together with
the Exhibits and the Disclosure Schedule attached hereto, as the same may be
amended from time to time in accordance with the terms hereof.
1.4 "BUILDINGS" shall mean all buildings, fixtures, structures and
improvements used by the Company and located on the Real Estate.
1.5 "CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C.A. sec. 9601, et
seq., and the rules, regulations and orders promulgated thereunder.
1.6 "CERTIFICATE OF MERGER" shall mean the appropriate Certificate of
Merger to be filed with the Delaware Secretary of State in connection with the
Merger.
1.7 "CLOSING DATE" shall mean:
(a) That date following consummation of the Offer which is the first
business day after satisfaction (or waiver) of all of the conditions set
forth in Article VIII; or
(b) Such other date as the parties may mutually agree to in writing.
1.8 "CODE" shall mean the Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder, as the same may be in effect from time
to time.
1.9 "COMPANY" shall mean Imtec Inc., a Delaware corporation.
1.10 "COMPANY CERTIFICATES" shall have the meaning specified in Section
3.6(b)(i).
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1.11 "COMPANY COMMON STOCK" shall mean all of the issued and outstanding
shares of common stock, $.01 par value per share, of the Company.
1.12 "COMPANY SEC REPORTS" shall mean the Company's: (a) Annual Reports on
Form 10-K for the years ended June 30, 1996, 1997, 1998 and 1999 (including any
amendments thereto) and related Annual Reports to Stockholders; (b) Quarterly
Reports on Form 10-Q for the quarters ended September 30, 1996, December 31,
1996, March 31, 1997, September 30, 1997, December 31, 1997, March 31, 1998,
September 30, 1998, December 31, 1998, March 31, 1999 and September 30, 1999;
(c) Proxy Statements dated October 15, 1996, September 15, 1997 and 1998 and
September 24, 1999; (d) Current Reports on Form 8-K dated February 21, 1997 (as
amended) and August 26, 1997; (e) registration statements on Form S-8, filed on
September 6, 1995 and October 2, 1998; and (f) all documents filed by the
Company with the SEC after the date of this Agreement and prior to the Effective
Time of Merger.
1.13 "COMPANY STOCKHOLDERS" shall mean all Persons owning shares of Company
Common Stock on the relevant date.
1.14 "COMPANY SPECIAL MEETING" shall mean a special meeting of the Company
Stockholders for the purpose of considering the Merger, this Agreement and the
transactions contemplated hereby and for such other purposes as may be necessary
or desirable.
1.15 "CONFIDENTIALITY AGREEMENT" shall mean the non-disclosure agreement
between Parent and the Company dated as of November 2, 1999.
1.16 "CONTINUING DIRECTORS" shall have the meaning specified in Section
4.9(b) of this Agreement.
1.17 "CONTRACTS" shall mean all of the material contracts, agreements,
leases, relationships and commitments, written or oral, to which the Company is
a party or by which the Company is bound.
1.18 "DGCL" shall mean the Delaware General Corporation Law, as the same
may be in effect from time to time.
1.19 "DISCLOSURE SCHEDULE" shall mean the Disclosure Schedule, dated the
date of this Agreement, delivered by the Company to Parent contemporaneously
with the execution and delivery of this Agreement.
1.20 "DISSENTING SHARES" shall have the meaning specified in Section 3.9.
1.21 "EFFECTIVE TIME OF MERGER" shall have the meaning specified in Section
3.3 of this Agreement.
1.22 "EMPLOYEE BENEFIT PLANS" shall mean any pension plan, profit sharing
plan, bonus plan, incentive compensation plan, stock ownership plan, stock
purchase plan, stock option plan, stock appreciation plan, employee benefit or
welfare plan, employee benefit policy, retirement plan, deferred compensation
plan, fringe benefit program, insurance plan, severance plan, disability plan,
health care plan, sick leave plan, death benefit plan, defined contribution plan
or any other plan or program to provide retirement income, fringe benefits or
other benefits to former or current employees of the Company.
1.23 "ENVIRONMENTAL CLAIM," "ENVIRONMENTAL HAZARDOUS MATERIALS,"
"ENVIRONMENTAL LAWS," "ENVIRONMENTAL PERMITS" AND "ENVIRONMENTAL RELEASE" shall
have the meanings specified in Section 5.23 of this Agreement.
1.24 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be in effect from time to time.
1.25 "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as the
same may be in effect from time to time.
1.26 "EXCHANGE AGENT" shall have the meaning specified in Section 3.6(a).
1.27 "EXCHANGE FUND" shall have the meaning specified in Section 3.6(a).
1.28 "EXISTING CONTRACTS" shall mean those Contracts which are listed and
briefly described on the Disclosure Schedule.
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1.29 "EXISTING LIENS" shall mean all Liens affecting any of the assets or
properties of the Company on the date of this Agreement, all of which are listed
and briefly described on the Disclosure Schedule.
1.30 "EXISTING LITIGATION" shall mean all pending or, to the Knowledge of
the Company, threatened suits, audit inquiries, charges, workers compensation
claims, product warranty claims, litigation, arbitrations, proceedings,
governmental investigations, labor grievances, citations and actions of any kind
against the Company, all of which are listed and briefly described on the
Disclosure Schedule.
1.31 "EXISTING PERMITS" shall mean all licenses, permits, approvals,
franchises, qualifications, certificates, permissions, agreements and other
orders and governmental or regulatory authorizations required for the conduct of
the business of the Company. All Existing Permits which are material to the
Company are listed and briefly described on the Disclosure Schedule.
1.32 "EXISTING STOCK OPTIONS" shall have the meaning specified in Section
3.11(a) of this Agreement.
1.33 "EXISTING PLANS" shall mean all Employee Benefit Plans of the Company,
all of which are listed and briefly described on the Disclosure Schedule.
1.34 "HSR ACT" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1976, as the same may be in effect from time to time.
1.35 "INDEBTEDNESS" shall mean all liabilities or obligations of the
Company, whether primary or secondary or absolute or contingent: (a) for
borrowed money; (b) evidenced by notes, bonds, debentures or similar
instruments; or (c) secured by Liens on any assets of the Company. All
Indebtedness is listed and briefly described on the Disclosure Schedule.
1.36 "INDEMNIFIED PARTIES" shall have the meaning specified in Section
4.8(b).
1.37 "INSURANCE POLICIES" shall mean all of the insurance policies
currently in effect and owned by the Company, all of which are listed and
briefly described on the Disclosure Schedule.
1.38 "KNOWLEDGE" An individual shall be deemed to have "Knowledge" of a
particular fact or other matter if such individual is actually aware of such
fact or if such individual should be aware of such fact after a reasonable
investigation concerning the existence of such fact or other matter.
1.39 "KNOWLEDGE OF THE COMPANY," "the Company's Knowledge" or similar terms
shall mean the Knowledge of Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxxxxx III, Xxxxx
Xxxxxx, Xxxxxxx XxxXxxxxxx and/or Xxxx Xxxxxxx.
1.40 "LAW" shall mean any foreign, federal, state, local or other law,
rule, regulation or governmental requirement or restriction of any kind, and the
rules, regulations and orders promulgated thereunder by any regulatory agency,
court or other Person.
1.41 "LIEN" shall mean, with respect to any asset: (a) any mortgage,
pledge, lien, charge, claim, restriction, reservation, condition, easement,
covenant, lease, encroachment, title defect, imposition, security interest or
other encumbrance of any kind; and (b) the interest of a vendor or lessor under
any conditional sale agreement, financing lease or other title retention
agreement relating to such assets.
1.42 "MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on the
condition, business, assets, results of operations or prospects of the entity to
which it refers, taken as a whole.
1.43 "MERGER" shall mean the merger of Newco with and into the Company
pursuant to this Agreement and the Certificate of Merger.
1.44 "MERGER CONSIDERATION" shall have the meaning specified in Section
2.1(a) of this Agreement.
1.45 "MINIMUM CONDITION" shall have the meaning specified in Section 2.1(a)
of this Agreement.
1.46 "NEWCO" shall mean IMTC Acquisition Corp., a Delaware corporation and
an indirect, wholly owned Subsidiary of Parent.
1.47 "OFFER" shall have the meaning specified in Section 2.1(a) of this
Agreement.
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1.48 "OFFER DOCUMENTS" shall have the meaning specified in Section 2.1(c)
of this Agreement.
1.49 "OPTION CONSIDERATION" shall have the meaning specified in Section
3.11(a) of this Agreement.
1.50 "PARENT" shall mean Xxxxx Corporation, a Wisconsin corporation.
1.51 "PERSON" shall mean a natural person, corporation, trust, partnership,
limited liability company, association, unincorporated organization,
governmental entity, agency or branch or a department thereof, or any other
legal entity.
1.52 "PRODUCT LIABILITY MATTERS" shall mean any and all product recalls,
and liabilities or obligations or damages of any kind for death, disease, or
injury to Persons, businesses or property relating to the products designed,
produced, distributed, sold or shipped by the Company.
1.53 "PROXY STATEMENT" shall have the meaning specified in Section 5.21 of
this Agreement.
1.54 "REAL ESTATE" shall mean the parcels of real property owned or leased
by the Company, all of which are identified in the Disclosure Schedule.
1.55 "REPRESENTATIVES" shall have the meaning specified in Section 4.1(a)
of this Agreement.
1.56 "SCHEDULE 14D-9" shall have the meaning specified in Section 2.2(b) of
this Agreement.
1.57 "SEC" shall mean the Securities and Exchange Commission.
1.58 "SECURITIES ACT" shall mean the Securities Act of 1933, as the same
may be in effect from time to time.
1.59 "SHAREHOLDER OPTION AGREEMENTS" shall mean the agreement dated as of
December 9, 1999 between Parent and each director and all but one holder of
greater than five percent (5%) of Company Common Stock obligating each such
Person to tender all shares of Company Common Stock beneficially owned by such
Person, and any amendments thereto, and an agreement dated as of December 9,
1999 between Parent and a holder of greater than five percent (5%) of Company
Common Stock obligating such Person to tender a portion of its Company Common
Stock beneficially owned by such Person pursuant to the Offer, and any
amendments thereto.
1.60 "SPECIAL EVENT" shall have the meaning specified in Section
4.5(a)(iii) of this Agreement.
1.61 "STOCK AWARD" shall have the meaning specified in Section 3.11(b) of
this Agreement.
1.62 "STOCK OPTION PLANS" shall have the meaning specified in Section
3.11(a) of this Agreement.
1.63 "SUBSIDIARY" shall mean, when used with reference to an entity, any
other entity of which securities or other ownerships interests having ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions, or a majority of the outstanding voting securities
of which, are owned directly or indirectly by such entity.
1.64 "SUPERIOR PROPOSAL" shall have the meaning specified in Section 4.5(a)
of this Agreement.
1.65 "SURVIVING CORPORATION" shall have the meaning specified in Section
3.1 of this Agreement.
1.66 "TAKEOVER LAWS" shall have the meaning specified in Section 3.10 of
this Agreement.
1.67 "TERMINATION FEE" shall have the meaning specified in Section
4.5(a)(iv) of this Agreement.
1.68 "WBCL" shall mean the Wisconsin Business Corporation Law, as the same
may be in effect from time to time.
1.69 "YEAR 2000 COMPLIANT" shall have the meaning specified in Section 5.26
of this Agreement.
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ARTICLE II
THE OFFER
2.1 THE OFFER.
(a) Provided that this Agreement shall not have been terminated in
accordance with Section 9.1 hereof and none of the conditions set forth in
paragraphs (a) through (i) of Annex A hereto shall have occurred or be
existing, as promptly as reasonably practicable (but in any event within
five (5) business days from the initial public announcement of the
execution of this Agreement), Parent shall cause Newco to commence an offer
to purchase all outstanding shares of Company Common Stock, at a price of
$12.00 per share net to the seller in cash (the "Merger Consideration"),
which shall remain open for at least twenty (20) business days (the
"Offer") and, subject to the conditions of the Offer, shall use its
reasonable best efforts to consummate the Offer. Newco shall accept for
payment shares of Company Common Stock which have been validly tendered and
not withdrawn pursuant to the Offer at the earliest time following
expiration of the Offer as provided in Section 2.1(b) hereof. The
obligations of Newco to consummate the Offer, to accept for payment and to
pay for any shares of Company Common Stock tendered shall be subject only
to those conditions set forth in Annex A hereto, in addition to the
condition that there be validly tendered and not properly withdrawn prior
to the expiration of the Offer a number of shares of Company Common Stock
which constitutes at least seventy-five percent (75%) of the then
outstanding shares of Company Common Stock entitled to vote, measured on a
fully diluted basis (the "Minimum Condition").
(b) Parent and Newco expressly reserve the right to waive any
condition set forth in Annex A hereto (including the Minimum Condition)
without the consent of the Company, and to make any other changes in the
terms and conditions of the Offer; provided, however, that neither Parent
nor Newco will, without the prior written consent of the Board of Directors
of the Company, decrease the amount or change the form of the consideration
payable in the Offer, decrease the number of shares of Company Common Stock
sought pursuant to the Offer, impose additional conditions to the Offer or
amend any term of the Offer in any manner adverse to the Company
Stockholders. Assuming the prior satisfaction or waiver of the conditions
to the Offer, Parent and Newco covenant and agree to accept for payment and
pay for, in accordance with the terms of the Offer, shares of Company
Common Stock tendered pursuant to the Offer as soon as permitted to do so
under applicable Law. Notwithstanding the foregoing, but subject to the
provisions of Section 9.1(e) of this Agreement, Parent and Newco shall have
the right to (i) extend the Offer, if at the then scheduled expiration date
of the Offer any of the conditions to Newco's obligation to accept for
payment and pay for the shares of Company Common Stock shall not be
satisfied or waived, until such time as such conditions are satisfied or
waived, (ii) extend the Offer for any period required by any rule,
regulation, interpretation or position of the SEC, United States Department
of Justice or United States Federal Trade Commission or the staff of any
such Governmental Entities applicable to the Offer, and (iii) extend the
Offer for any reason on one or more occasions for an aggregate period of
not more than 30 business days (for all such extensions) beyond the latest
expiration date that would otherwise be permitted under clause (i) or (ii)
of this sentence.
(c) As soon as reasonably practicable on the date of commencement of
the Offer, Parent and Newco shall file with the SEC a Tender Offer
Statement on Schedule TO with respect to the Offer which will contain the
offer to purchase and form of the related letter of transmittal (together
with any supplements or amendments thereto, the "Offer Documents"). The
Offer Documents will comply in all material respects with the provisions of
applicable federal securities Laws. Each of Parent, Newco and the Company
agrees promptly to correct any information provided by it for use in the
Offer Documents if and to the extent that it shall have become false or
misleading in any material respect, and Parent and Newco each further agree
to take all steps necessary to cause the Offer Documents as so corrected to
be filed with the SEC and disseminated to the Company Stockholders, in each
case as and to the extent required by applicable federal securities Laws.
The Company and its counsel shall be given a reasonable opportunity to
review and comment on the Offer Documents and any amendments thereto prior
to the filing thereof with the SEC.
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2.2 COMPANY ACTIONS.
(a) The Company hereby approves of and consents to the Offer and
represents that the Board of Directors of the Company, at a meeting duly
called and held, has unanimously (i) determined that the Offer and the
Merger, taken together, are fair to and in the best interests of the
Company Stockholders, (ii) approved and adopted this Agreement and the
transactions contemplated hereby, including the Offer and the Merger, and
that such approval constitutes the requisite approval of the Offer, this
Agreement and the Merger for purposes of Section 203(a)(1) of the DGCL, and
(iii) resolved to recommend that the Company Stockholders accept the Offer,
tender their shares of Company Common Stock thereunder to Newco and approve
and adopt this Agreement and the Merger; provided that such recommendation
may be withdrawn, modified or amended if the Board of Directors reasonably
determines in good faith, based on the written advice of outside legal
counsel to the Company, that such action is necessary in order for the
Board of Directors of the Company to comply with its fiduciary duties under
applicable Law. The Company consents to the inclusion of such
recommendation and approval in the Offer Documents. The Company has been
advised of the execution of the Shareholder Option Agreements and that
prior to such execution the Company's Board of Directors unanimously
approved such agreements for purposes of Section 203(a) of the DGCL.
(b) The Company hereby agrees to file with the SEC as soon as
reasonably practicable on the date of commencement of the Offer a
Solicitation/Recommendation Statement on Schedule 14D-9 (together with any
amendments or supplements thereto, the "Schedule 14D-9") containing the
recommendations described in Section 2.2(a). The Schedule 14D-9 will comply
in all material respects with the provisions of applicable federal
securities Laws. The Company, Parent and Newco each agree promptly to
correct any information provided by it for use in the Schedule 14D-9 if and
to the extent that it shall have become false or misleading in any material
respect, and the Company further agrees to take all steps necessary to
cause the Schedule 14D-9 as so corrected to be filed with the SEC and
disseminated to the Company Stockholders, in each case as and to the extent
required by applicable federal securities Laws. Parent and its counsel
shall be given a reasonable opportunity to review and comment on the
Schedule 14D-9 and any amendments thereto prior to the filing thereof with
the SEC. The Company hereby consents to the inclusion in the Offer of the
recommendations described in Section 2.2(a).
(c) In connection with the Offer, the Company will promptly furnish
Parent and Newco with mailing labels, security position listings and any
available listing or computer file containing the names and addresses of
the record holders of Company Common Stock as of a recent date and will
furnish Parent and Newco with such information and assistance (including
without limitation updated lists of the Company Stockholders, mailing
labels and lists of securities positions) as Parent, Newco or their agents
may reasonably request in communicating the Offer to the Company
Stockholders. Subject to the requirements of applicable Law, and except for
such steps as are necessary to disseminate the documents constituting the
Offer and any other documents necessary to consummate the Merger, Parent
and Newco and each of their Affiliates, associates and advisers shall use
such information only in connection with the Offer and the Merger and, if
this Agreement is terminated, will keep such information confidential with
such care as is equivalent to the care exercised by such parties with
respect to their respective proprietary or confidential information, and
will deliver to the Company all such information (and copies thereof) then
in their possession.
ARTICLE III
THE MERGER
3.1 THE MERGER. Subject to the terms and conditions of this Agreement, as
of the Effective Time of Merger, Newco and the Company shall consummate the
Merger in which (a) Newco will be merged with and into the Company and the
separate corporate existence of Newco shall thereupon cease; (b) the Company
shall be the successor or surviving corporation in the Merger and shall continue
to be governed by the Laws of the State of Delaware; and (c) the separate
corporate existence of the Company with all its rights, privileges, immunities,
powers and franchises shall continue unaffected and unimpaired by the Merger.
The corporation
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surviving the Merger is sometimes hereinafter referred to as the "Surviving
Corporation." The Merger shall be pursuant to the provisions of, and shall be
with the effect provided in, the applicable provisions of the DGCL.
3.2 EFFECT OF THE MERGER.
(a) The Certificate of Incorporation of Newco, as in effect
immediately prior to the Effective Time of Merger, shall be the Certificate
of Incorporation of the Surviving Corporation until amended in accordance
with Law.
(b) The Bylaws of Newco, as in effect immediately prior to the
Effective Time of Merger, shall be the Bylaws of the Surviving Corporation
until amended in accordance with Law.
(c) The directors of Newco at the Effective Time of Merger shall, from
and after the Effective Time of Merger, be the initial directors of the
Surviving Corporation until their successors have been duly elected or
appointed and qualified or until their earlier death, resignation or
removal in accordance with the Surviving Corporation's Certificate of
Incorporation and Bylaws then in effect.
(d) The officers of Newco at the Effective Time of Merger shall, from
and after the Effective Time of Merger, be the initial officers of the
Surviving Corporation until their successors have been duly elected or
appointed and qualified or until their earlier death, resignation or
removal in accordance with the Surviving Corporation's Certificate of
Incorporation and Bylaws.
3.3 EFFECTIVE TIME OF MERGER. The parties hereto will cause the Certificate
of Merger to be executed and filed on the Closing Date as provided in the DGCL.
The Merger shall become effective on the date and time of the filing of the
Certificate of Merger with the Delaware Secretary of State, or such other date
as is agreed upon by the parties and specified in the Certificate of Merger. The
date and time upon which the Merger shall become effective is referred to in
this Agreement as the "Effective Time of Merger."
3.4 CONVERSION OF COMPANY COMMON STOCK.
(a) At the Effective Time of Merger, and without any action on the
part of the holders thereof:
(i) Each share of Company Common Stock issued and outstanding at
the Effective Time of Merger (other than shares owned by Parent, Newco
or any Affiliate thereof or held in the treasury of the Company or
Dissenting Shares), shall be converted into the right to receive the
Merger Consideration, payable to the holder thereof, without interest
thereon, less any required withholding of taxes, upon surrender of the
certificate formerly representing such share, and thereupon such share
of Company Common Stock shall be canceled and retired and cease to
exist.
(ii) Any shares of capital stock of the Company that are held by
the Company as treasury stock and any shares of Company Common Stock
owned by Parent, Newco or any Affiliate thereof at the Effective Time of
Merger shall be canceled and retired and cease to exist.
3.5 NEWCO STOCK. Each outstanding share of capital stock of Newco issued
and outstanding at the Effective Time of Merger shall, by virtue of the Merger
and without any action on the part of the holders thereof, be converted into one
validly issued, fully paid and nonassessable share of common stock of the
Surviving Corporation.
3.6 EXCHANGE OF COMPANY CERTIFICATES.
(a) EXCHANGE AGENT. As of the Effective Time of Merger, Parent shall
deposit, or shall cause to be deposited, with such bank or trust company as
may be designated by Parent (the "Exchange Agent") for the benefit of the
holders of shares of Company Common Stock, the funds necessary to make the
payments pursuant to Section 3.4 hereof (the "Exchange Fund"), and to make
the appropriate payments, if any, to holders of Dissenting Shares. The
Exchange Agent shall, pursuant to irrevocable instructions, make the
payments provided for in the preceding sentence out of the Exchange Fund.
The Exchange Agent shall invest portions of the Exchange Fund as the Parent
directs, provided that all such investments shall be in obligations of or
guaranteed by the United States of America, in commercial paper obligations
receiving the highest rating from either Moody's Investor's Service Inc. or
Standard & Poor's, or in
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certificates of deposit, bank repurchase agreements or banker's acceptances
of commercial banks with capital exceeding $100 million (or in a money
market mutual fund comprised of the foregoing). The Exchange Fund shall not
be used for any other purpose, except as provided in this Agreement.
(b) EXCHANGE PROCEDURES.
(i) As soon as reasonably practicable after the Effective Time of
Merger, the Exchange Agent shall mail to each holder of record of a
certificate or certificates which immediately prior to the Effective
Time of Merger represented outstanding shares of Company Common Stock
(the "Company Certificates"): (A) a letter of transmittal which shall
specify that delivery shall be effected, and risk of loss and title to
the Company Certificates shall pass, only upon delivery of the Company
Certificates to the Exchange Agent and which shall be in such form and
have such other provisions as Parent may reasonably specify; and (B)
instructions to effect the surrender of the Company Certificates for
payment therefor.
(ii) Upon surrender of a Company Certificate for cancellation to
the Exchange Agent together with such letter of transmittal, duly
executed, and with such other documents as the Exchange Agent may
reasonably require, the holder of such Company Certificate shall be
entitled to receive in exchange therefor cash in an amount equal to the
Merger Consideration multiplied by the number of shares of Company
Common Stock formerly represented by such Company Certificate, and such
Company Certificate shall forthwith be canceled. No interest will be
paid or accrued on the cash payable upon the surrender of the Company
Certificates. If payment is to be made to a Person other than the Person
in whose name the Company Certificate surrendered is registered, it
shall be a condition of payment that the Company 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 Company Certificate surrendered
(or establish to the satisfaction of Parent that such tax has been paid
or is not applicable), and the Company Certificate so surrendered shall
forthwith be canceled.
(iii) Until surrendered as contemplated by this Section 3.6, each
Company Certificate shall be deemed at all times after the Effective
Time of Merger to represent only the right to receive the Merger
Consideration in cash multiplied by the number of shares of Company
Common Stock evidenced by the Company Certificate, without any interest
thereon.
(c) TERMINATION OF EXCHANGE FUND. Any portion of the Exchange Fund
which remains undistributed to the Company Stockholders as of a date which
is six (6) months after the Effective Time of Merger shall be delivered to
Parent, upon demand, and any Company Stockholders who have not theretofore
complied with this Article III shall thereafter look only to Parent for
payment of their claim for the Merger Consideration.
(d) NO LIABILITY. Neither the Exchange Agent nor any party to this
Agreement shall be liable to any Company Stockholder for any shares of
Company Common Stock or cash delivered to a public official pursuant to any
abandoned property, escheat or similar Law.
(e) WITHHOLDING RIGHTS. Parent shall be entitled to deduct and
withhold from the consideration otherwise payable pursuant to this
Agreement to any Company Stockholder such amounts as Parent is required to
deduct and withhold with respect to the making of such payment under the
Code, or any provision of state, local or foreign tax Law. To the extent
that amounts are so withheld by Parent, (i) such withheld amounts shall be
treated for all purposes of this Agreement as having been paid to the
Company Stockholder in respect of which such deduction and withholding is
made by Parent and (ii) Parent shall pay, when due, any such amounts so
withheld to the appropriate taxing authority.
3.7 STOCK TRANSFER BOOKS. At the Effective Time of Merger, the stock
transfer books of the Company shall be closed and there shall be no further
registration of transfers of shares of Company Common Stock thereafter on the
records of the Company. From and after the Effective Time of Merger, the holders
of Company Certificates representing shares outstanding immediately prior to the
Effective Time of Merger shall
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cease to have any rights with respect to the shares of Company Common Stock
represented thereby except as otherwise provided in this Agreement or by Law.
3.8 STOCKHOLDER'S MEETING. If approval by the Company Stockholders is
required by applicable Law in order to consummate the Merger, the Company,
acting through its Board of Directors, shall, in accordance with applicable Law:
(a) Duly call, give notice of, convene and hold the Company Special
Meeting as soon as reasonably practicable following the consummation of the
Offer for the purpose of considering and taking action on this Agreement;
(b) Include in the Proxy Statement the recommendation of the Board of
Directors that the Company Stockholders vote in favor of the approval and
adoption of this Agreement and the transactions contemplated hereby; and
(c) Use its reasonable best efforts to (i) obtain and furnish the
information required to be included by it in the Proxy Statement, and,
after consultation with Parent, respond promptly to any comments made by
the SEC with respect to the Proxy Statement and any preliminary version
thereof and cause the Proxy Statement to be mailed to the Company Stock
holders at the earliest practicable time following the consummation of the
Offer, and (ii) obtain the necessary approvals of the Merger and this
Agreement by the Company Stockholders. Parent agrees that, at the Company
Special Meeting, all of the shares of Company Common Stock acquired
pursuant to the Offer or otherwise by Parent, Newco or any other
majority-owned Subsidiary of Parent will be voted in favor of the Merger
and this Agreement.
(d) Notwithstanding the foregoing, if, following the completion of the
Offer, the Merger may be consummated under the DGCL without a vote of the
Company Stockholders by virtue of the fact that Newco shall have acquired
at least 90% of the then outstanding shares of Company Common Stock and if
requested by Parent, the parties hereto agree to take all necessary and
appropriate action to cause the Merger to become effective as soon as
reasonably practicable after the acquisition of shares of Company Common
Stock pursuant to the Offer without the holding of the Company Special
Meeting.
3.9 DISSENTING SHARES. Notwithstanding anything in this Agreement to the
contrary, in the event that appraisal rights are available in connection with
the Merger pursuant to the DGCL, shares of Company Common Stock which are issued
and outstanding immediately prior to the Effective Time of Merger and which are
held by Company Stockholders who did not vote in favor of the Merger and who
comply with all of the relevant provisions of Section 262 of the DGCL (the
"Dissenting Shares") shall not be converted into the right to receive the Merger
Consideration, unless and until such holders shall have failed to perfect or
shall have effectively withdrawn or lost their rights to appraisal under the
DGCL. If any such holder shall have failed to perfect or shall have effectively
withdrawn or lost such right, such holder's shares of Company Common Stock shall
thereupon be deemed to have been converted into the right to receive as of the
Effective Time of Merger the Merger Consideration without any interest thereon.
3.10 TAKEOVER LAWS. The Company also has taken and will continue to take
all necessary action to ensure that Section 203 of the DGCL and any other
provision of any "moratorium," "control share acquisition," "business
combination," "fair price," or other form of anti-takeover Laws (collectively,
"Takeover Laws") of any jurisdiction that may purport to be applicable to this
Agreement or the Shareholder Option Agreements are inapplicable to this
Agreement, the Offer, the Shareholder Option Agreements and the Merger. The
Company shall provide evidence satisfactory to Parent that it has taken all such
actions.
3.11 STOCK OPTIONS.
(a) Prior to the consummation of the Offer, the Company shall take all
actions necessary or desirable (including obtaining all required consents
from optionees) to provide for the cancellation, effective at the Effective
Time of Merger, of all of the outstanding stock options (the "Existing
Stock Options") heretofore granted under any stock option, employment or
similar plan or arrangement of the Company or any such similar plan or
agreement which benefits any person providing services to the Company (the
"Stock Option Plans"), without any payment therefor except as otherwise
provided in this
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Section 3.11. At the Effective Time of Merger (or at such earlier time as
Parent shall designate), each holder of any Existing Stock Option shall, in
settlement thereof, be entitled to receive from the Surviving Corporation,
an amount (subject to any applicable withholding tax) in cash equal to the
product of (i) the excess of the Merger Consideration over the per share
exercise or purchase price of such Existing Stock Option and (ii) the
number of Shares subject to such Existing Stock Option (such amount being
hereinafter referred to as the "Option Consideration"). Except as otherwise
agreed to by the parties, as of the Effective Time of Merger, the Stock
Option Plans shall terminate and any and all rights under any provisions in
any other plan, program or arrangement providing for the issuance or grant
of any other interest in respect of the capital stock of the Company shall
be canceled. Notwithstanding the foregoing, no holder of an Existing Stock
Option shall be entitled to any payment hereunder unless he or she delivers
to Newco a consent to the cancellation of such Existing Stock Option in a
form to be prescribed by Newco.
(b) Prior to the Effective Time of Merger, the Company shall take all
necessary and appropriate actions (including obtaining all applicable
consents) to provide that, upon the Effective Time of Merger, each then
outstanding restricted stock award in respect of shares of Company Common
Stock and any other stock based awards (collectively, the "Stock Awards")
which is subject to any vesting requirement and which was issued pursuant
to a Stock Option Plan or any other plan or arrangement shall, whether or
not then exercisable or vested, become 100% vested. At the Effective Time
of Merger, a holder of shares of Company Common Stock underlying such Stock
Award shall be entitled to receive the Merger Consideration (subject to any
applicable withholding tax), upon the surrender of the Company Certificate
representing such shares of Company Common Stock as provided in Section
3.6. Notwithstanding the foregoing, no holder of a Stock Award shall be
entitled to any payment hereunder unless he or she delivers to Newco a
consent to the cancellation of such Stock Award in a form to be prescribed
by Newco.
(c) From and after the date of this Agreement, the Company shall not
grant any options or other rights to acquire shares of Company Common
Stock.
ARTICLE IV
OTHER AGREEMENTS
4.1 ACCESS.
(a) Upon reasonable prior notice, the Company shall (i) afford to the
officers, employees, accountants, legal counsel and other representatives
of Parent ("Representatives") full access, during normal business hours, to
all of its properties, personnel, books, contracts, commitments and records
and (ii) cooperate with Parent or its Representatives for the purpose of
obtaining any consents of third parties or Governmental Entities necessary
or desired by Parent or Newco for the consummation of the Offer and the
Merger. Access granted to Parent or its Representatives shall also include
permitting Parent and its environmental consultants to conduct Phase I
environmental assessments at the Real Estate and Buildings and, if deemed
appropriate by Parent based on the advice of its environmental consultants,
Phase II environmental investigations and other follow-up work on the Real
Estate and Buildings. All costs and expenses of such environmental
assessments or investigations and other follow-up work shall be borne by
Parent. Parent shall reimburse the Company for, and indemnify the Company
from, any costs or expenses resulting from any damage to the Real Estate
occurring in the course of such environmental assessments, investigations
or follow-up work.
(b) The Company, Parent and Newco agree that the provisions of the
Confidentiality Agreement shall remain in full force and effect; provided
that, at the Effective Time of Merger, the Confidentiality Agreement shall
be deemed to have terminated without further action by the parties.
4.2 DISCLOSURE SCHEDULE.
(a) DISCLOSURE SCHEDULE. Contemporaneously with the execution and
delivery of this Agreement, the Company is delivering to Parent the
Disclosure Schedule. The Disclosure Schedule is deemed to
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constitute an integral part of this Agreement and to modify the
representations, warranties, covenants or agreements of the Company
contained in this Agreement to the extent that such representations,
warranties, covenants or agreements expressly refer to the Disclosure
Schedule.
(b) UPDATES. Prior to the Closing Date, the Company shall update the
Disclosure Schedule promptly by written notice to Parent to reflect any
matters which have occurred from and after the date of this Agreement
which, if existing on the date of this Agreement, would have been required
to be described in the Disclosure Schedule. If requested by Parent, the
Company shall meet and discuss with Parent any change in the Disclosure
Schedule made by the Company which is, in the reasonable judgment of
Parent, materially adverse to the Merger, Parent or the Company. No update
of the Disclosure Schedule shall have the effect of curing any prior breach
of a representation or warranty made by the Company pursuant to this
Agreement unless accepted or waived by Parent.
4.3 DUTIES CONCERNING REPRESENTATIONS AND COVENANTS. Each party to this
Agreement shall: (a) to the extent within its control, use its reasonable best
efforts to cause all of its representations and warranties contained in this
Agreement to be true and correct in all respects at the Effective Time of Merger
with the same force and effect as if such representations and warranties had
been made on and as of the Effective Time of Merger; (b) use its reasonable best
efforts to obtain any governmental or third party consents or approvals required
by this Agreement, to prevent any preliminary or permanent injunction or other
order by a court of competent jurisdiction or governmental entity relating to
the transactions contemplated by this Agreement and to cause all of the
conditions precedent set forth in Article VIII of this Agreement to be
satisfied; and (c) use its reasonable best efforts to take, or cause to be
taken, all action, and to do, or cause to be done, all other things necessary,
proper or advisable under applicable Laws and regulations to consummate and make
effective the transactions contemplated by this Agreement, including without
limitation, the Offer and the Merger. Each party shall promptly inform the other
parties after it becomes aware that any condition precedent set forth in Article
VIII hereof or any condition in Annex A hereto will not, or is not reasonably
likely to, be satisfied.
4.4 DELIVERIES OF INFORMATION; CONSULTATION.
(a) DELIVERIES. Prior to the Effective Time of Merger, the Company
shall furnish promptly to Parent: (i) a copy of each report, schedule and
other document filed by it or received by it pursuant to the requirements
of federal or state securities Laws or any other applicable Laws promptly
after such documents are available; (ii) the monthly financial statements
of the Company and financial statements by unit or business segment (as
prepared in accordance with its normal accounting procedures) promptly
after such financial statements are available; (iii) a summary of any
action taken by the Company's Board of Directors, or any committee thereof;
and (iv) all other information concerning the business, properties and
personnel of the Company as Parent may reasonably request.
(b) CONSULTATION. Prior to the Effective Time of Merger, the Company
shall advise Representatives of Parent on a regular and frequent basis with
respect to operational matters and the general status of ongoing business
operations of the Company.
(c) PERMITS. Prior to the Effective Time of Merger, the Company shall
use all reasonable efforts to maintain in effect all Existing Permits. The
Company shall notify Parent promptly in the event that it becomes aware of
any complaint or proceeding which could result in the termination or
non-renewal of any material Existing Permit.
4.5 ACQUISITION PROPOSALS.
(a) DEFINITIONS. As used in this Agreement, the following terms shall
have the meanings specified:
(i) "Acquisition" shall mean any or all of the following, other
than the Offer and the Merger: (A) a merger, share exchange,
consolidation, reorganization, combination or similar transaction
involving the Company; (B) a purchase, exchange or tender offer for 20%
or more of the outstanding shares of Company Common Stock; (C) a
purchase, lease or other acquisition of all or any significant portion
of the assets or any equity interest (or any option (other than Existing
Stock
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Options), warrant or security convertible into any equity interest), of
the Company; or (D) any other transaction the consummation of which
could reasonably be expected to impede, interfere with, prevent or delay
the Offer or the Merger.
(ii) "Acquisition Proposal" shall mean any inquiry, request for
information, expression of interest, indication of a desire to have
discussions, or the making of any proposal, by any Person concerning an
Acquisition.
(iii) "Special Event" shall mean any of the following to occur on
or prior to December 9, 2000; (A) a Person unrelated to Parent shall
have consummated, or shall have publicly announced or proposed and
subsequently consummated, a tender or exchange offer for shares of
Company Common Stock representing, on a fully diluted basis, 20% or more
of the outstanding shares of Company Common Stock; (B) a Person
unrelated to Parent shall have consummated an Acquisition or the Company
shall have entered into an agreement with respect to an Acquisition; (C)
the Company shall have terminated this Agreement as provided in Section
9.1(c) (i) of this Agreement or otherwise for the purpose of pursuing an
Acquisition Proposal; (D) Parent shall have terminated this Agreement as
provided in Section 9.1(b)(i) or 9.1(b)(ii) of this Agreement; (E) the
Board of Directors of the Company shall have withdrawn or materially
modified or changed its favorable recommendation of the Offer, the
Merger or this Agreement, or shall have approved or recommended any
Acquisition Proposal or Acquisition; (F) Parent and Newco shall have
terminated this Agreement pursuant to Section 9.1(b)(iii) (but only if
Parent and Newco terminated the Offer pursuant to paragraphs (b), (e),
(g) or (h) of Annex A); or (G) the Company shall have terminated this
Agreement pursuant to Section 9.1(c)(ii)(y) when the Offer is terminated
by Parent and Newco under the circumstances contemplated by Section
9.1(b)(iii) of this Agreement (but only if Parent and Newco terminated
the Offer pursuant to paragraphs (b), (e), (g) or (h) of Annex A).
(iv) "Termination Fee" shall mean $25,000.00
(v) "Superior Proposal" shall mean a written bona fide, unsolicited
Acquisition Proposal by any Person (other than Parent) which the Board
of Directors determines in good faith, and in the exercise of reasonable
judgment, to be more favorable to the Company and the Company
Stockholders than the Offer and the Merger from a financial point of
view, which proposal is capable of being consummated without undue delay
and has the requisite financing committed to it or, as determined in
good faith, and in the exercise of reasonable judgment, is reasonably
capable of being financed by such Person.
(b) ACQUISITION PROPOSALS. The Company shall not, and shall cause all
of its officers, directors, employees, agents, Affiliates or
Representatives (including, without limitation, any investment banker,
financial adviser, attorney or accountant retained or engaged by the
Company) to not, directly or indirectly: (i) initiate, solicit or encourage
any inquiries concerning an Acquisition or an Acquisition Proposal; (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 or an Acquisition Proposal; (iii) facilitate any effort
or attempt to make or implement an Acquisition Proposal; or (iv)
consummate, agree or commit to consummate any Acquisition or Acquisition
Proposal. The Company shall immediately cease or cause to be terminated any
existing activities, discussions or negotiations with any Person with
respect to any of the foregoing activities. Notwithstanding the foregoing,
the Board of Directors of the Company may furnish information about the
Company to the Person making a Superior Proposal pursuant to a
confidentiality agreement in customary form and participate in discussions
and negotiations regarding such Superior Proposal if the Board of Directors
of the Company determines in good faith, upon the written advice of outside
legal counsel, that the failure to take such action would violate its
fiduciary duties to the Company Stockholders under applicable Law. In
addition, the Company will be permitted to take and disclose to the Company
Stockholders a position contemplated by Rules 14d-9 and 14e-2(a) under the
Exchange Act with respect to an Acquisition Proposal by means of a tender
offer. The Company shall notify Parent orally and in writing of any
Acquisition Proposal, within 24 hours from
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the receipt thereof, specifying all of the material terms and conditions of
such Acquisition Proposal and identifying the Person making such
Acquisition Proposal, shall keep Parent informed of the status and all
material developments and information regarding the Acquisition Proposal,
and shall give Parent five (5) business days' prior notice and an
opportunity to negotiate with the Company before entering into, executing
or agreeing to any Acquisition or Acquisition Proposal.
(c) TERMINATION FEE. In order to induce Parent to enter into this
Agreement and to compensate Parent for the time and expenses incurred in
connection with this Agreement and the transactions contemplated by this
Agreement and the losses suffered by Parent from foregone opportunities,
upon the occurrence of a Special Event, the Company shall pay the
Termination Fee to Parent and shall reimburse Parent for all documented
out-of-pocket fees and expenses incurred by Parent and Newco in connection
with the preparation and negotiation of this Agreement and the consummation
of the transactions contemplated hereby. Such amount shall be paid in
immediately available funds within three (3) business days following the
occurrence of the Special Event. If the Company fails to pay the
Termination Fee and make such reimbursement when due, the unpaid portion of
the Termination Fee (including interest thereon) and such reimbursement
shall accrue interest at the lesser of the rate of fifteen percent (15%)
per annum or the maximum amount allowed by law until paid.
4.6 LEGAL CONDITIONS TO MERGER. Each of the Company and Parent will: (a)
take all reasonable actions necessary to comply promptly with all legal
requirements which may be imposed on it with respect to the Offer and the Merger
(including furnishing all information required in connection with approvals of
or filings with any governmental entity as described in Section 8.2 of this
Agreement); (b) promptly cooperate with and furnish information to each other in
connection with any such requirements imposed upon any of them in connection
with the Offer and the Merger; and (c) take all reasonable actions necessary to
obtain (and cooperate with each other in obtaining) any consent, authorization,
order or approval of, or any exemption by, any governmental entity or other
Person, required to be obtained or made by the Company and Parent in connection
with the Offer, the Merger or the taking of any action contemplated thereby or
by this Agreement.
4.7 PUBLIC ANNOUNCEMENTS. The Company and Parent will not, without the
prior written consent of the other party, develop or distribute any news release
and other public information disclosure with respect to this Agreement or any of
the transactions contemplated hereby, except that a party may make such
disclosure if in the written opinion of a party's outside legal counsel, such
disclosure is necessary to avoid committing a violation of Law, court order or
applicable stock exchange regulation. In such event, the disclosing party shall
use its reasonable efforts to give advance notice to the other party.
4.8 INDEMNIFICATION OF COMPANY DIRECTORS AND OFFICERS.
(a) The Certificate of Incorporation and Bylaws of the Surviving
Corporation shall contain provisions with respect to indemnification
substantially as set forth in the Certificate of Incorporation and Bylaws
of the Company on the date of this Agreement, which provisions shall not be
amended, repealed or otherwise modified for a period of three (3) years
after the Effective Time of Merger in any manner that would adversely
affect the rights thereunder of individuals who at any time prior to the
Effective Time of Merger were directors or officers of the Company in
respect of actions or omissions occurring at or prior to the Effective Time
of Merger, unless such modification is required by Law; provided, that in
the event any claim or claims are asserted or made within such three-year
period, all rights to indemnification in respect of any such claim or
claims shall continue until disposition of any and all such claims.
(b) Parent shall cause to be maintained in effect for the Indemnified
Parties (as defined below) for not less than three (3) years the current
policies of directors and officers liability insurance and fiduciary
liability insurance maintained by the Company with respect to matters
occurring at or prior to the Effective Time of Merger; provided, that
Parent may substitute therefor policies of substantially the same coverage
containing terms and conditions which are no less advantageous to the
Company's present or former directors or officers or other employees
covered by such insurance policies prior to the Effective Time of Merger
(the "Indemnified Parties"). Notwithstanding the foregoing, in no case
shall Parent or the Surviving Corporation be required to pay an annual
premium for such insurance greater than 125% of
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the last annual premium paid prior to the date hereof. Should payment of
the maximum amount of premium provided for in the previous sentence not
allow the purchase of an amount of such insurance equal to the amount
provided under the current policies, Parent shall purchase the maximum
amount of insurance available for 125% of the last annual premium.
4.9 COMPANY BOARD.
(a) Promptly upon the purchase by Newco pursuant to the Offer or
otherwise of such number of shares of Company Common Stock as represents at
least a majority of the outstanding shares thereof, and from time to time
thereafter, Newco shall be entitled to designate such number of directors,
rounded up to the next whole number, on the Board of Directors of the
Company as will give Newco representation on the Board of Directors of the
Company equal to the product of the number of directors on the Board of
Directors of the Company and the percentage that such number of shares of
Company Common Stock so purchased bears to the number of shares of Company
Common Stock outstanding, and the Company shall, upon request by Newco,
promptly increase the size of the Board of Directors of the Company or use
its best efforts to secure the resignations of such number of directors as
is necessary to provide Newco with such level of representation and shall
cause Newco designees to be so elected. The Company will also use its best
efforts to cause persons designated by Newco to constitute the same
percentage as is on the entire Board of Directors of the Company to be on
each committee of the Board of Directors of the Company. The Company's
obligations to appoint designees to its Board of Directors shall be subject
to Section 14(f) of the Exchange Act. At the request of Newco, the Company
shall take all actions necessary to effect any such election or appointment
of Newco's designees, including mailing to its stockholders the information
required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated
thereunder which, unless Parent otherwise elects, shall be so mailed
together with the Schedule 14D-9. Parent and Newco will promptly supply to
the Company all information with respect to themselves and their respective
officers, directors and Affiliates required by such Section and Rule.
(b) Following the election or appointment of Newco's designees
pursuant to Section 4.9(a) and prior to the Effective Time of Merger, and
so long as there shall be at least one Continuing Director (as defined
below), any amendment of this Agreement requiring action by the Board of
Directors of the Company, any extension of time for the performance of any
of the obligations or other acts of Parent or Newco under this Agreement
and any waiver of compliance with any of the agreements or conditions under
this Agreement for the benefit of the Company will require the concurrence
of a majority of the directors of the Company then in office who are
directors of the Company on the date hereof (the "Continuing Directors").
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the relevant section of the Disclosure Schedule, the
Company hereby represents and warrants to Parent and Newco that:
5.1 ORGANIZATION; BUSINESS. The Company is a corporation duly organized,
validly existing and in good standing under the Laws of the state of Delaware
and is qualified and in good standing as a foreign corporation in each
jurisdiction where the failure to qualify would have a Material Adverse Effect
on the Company. The Company has all requisite corporate power and authority to
own its properties and to carry on its business as it is now being conducted.
The Company has heretofore made available to Parent complete and correct copies
of its Certificate of Incorporation and Bylaws. The Company does not have and
has not ever had a Subsidiary.
5.2 CAPITALIZATION. The entire authorized capital stock of the Company
consists of 5,000,000 shares of common stock, $.01 par value per share, of which
1,635,313 shares are issued and outstanding. All of the issued and outstanding
shares of capital stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable. The Disclosure Schedule lists all
outstanding options and other rights to acquire shares of the Company's capital
stock, which lists include the holder's name, number of shares underlying the
options or other rights, the exercise xxxxx, xxxxx date and applicable vesting
provisions. Except
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as set forth on the Disclosure Schedule, there are no outstanding or authorized
options, warrants, calls, rights (including preemptive rights), commitments or
any other agreements of any character to which the Company is a party, or to
which it may be bound, requiring it to issue, transfer, sell, purchase, redeem
or acquire any shares of capital stock or any securities or rights convertible
into, exchangeable for, or evidencing the right to subscribe for, any shares of
capital stock of the Company. There are no outstanding obligations of the
Company to repurchase, redeem or otherwise acquire any shares of capital stock
or any securities or rights convertible into, exchangeable for, or evidencing
the right to subscribe for, any shares of capital stock of the Company. There
are no voting trusts of other agreements or understandings to which the Company
is a party with respect to the voting of capital stock of the Company.
5.3 AUTHORIZATION; ENFORCEABILITY. The Company has all requisite corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby have been duly authorized by unanimous vote of the Board of
Directors of the Company and no other corporate proceedings on the part of the
Company are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby (other than, with respect to the Merger, if
required, the approval and adoption of this Agreement by the Company
Stockholders). The Board of Directors has unanimously determined that the Offer
and the Merger are fair to and in the best interests of the Company Stockholders
and has unanimously determined to recommend that the Company Stockholders
approve the Merger and this Agreement. This Agreement is, and the other
documents and instruments required by this Agreement to be executed and
delivered by the Company will be, when executed and delivered by the Company,
the valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, except as the enforcement
thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar Laws generally affecting the rights of creditors and
subject to general equity principles.
5.4 NO VIOLATION OR CONFLICT. The execution, delivery and performance of
this Agreement by the Company do not and will not: (a) conflict with or violate
any Law or order, writ, injunction or decree applicable to the Company or any of
its assets; (b) conflict with or violate the Certificate of Incorporation or
Bylaws of the Company; or (c) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give rise to
any right of termination, cancellation or acceleration or Lien) under any
Contract. The execution, delivery and performance of this Agreement by the
Company do not and will not require any consent, approval, authorization or
permit of, or filing with or notification to, any governmental or regulatory
authority, except (i) in connection with the applicable requirements of the HSR
Act, (ii) pursuant to the applicable requirements of the Exchange Act, (iii) the
filing of the Certificate of Merger pursuant to the DGCL, (iv) as may be
required by any applicable state securities or "blue sky" Laws or state Takeover
Laws, (v) where the failure to obtain such consent, approval, authorization or
permit, or to make such filing or notification is not material and would not
prevent, materially delay or materially impair the ability of the Company to
consummate the transactions contemplated by this Agreement, or (vi) as set forth
in the Disclosure Schedule.
5.5 TITLE TO ASSETS. The Company owns good and valid title to the assets
and properties which it owns or purports to own, free and clear of any and all
Liens, except the Existing Liens.
5.6 LITIGATION. Except for the Existing Litigation: (a) there is no
litigation, arbitration, proceeding, governmental investigation, citation or
action of any kind pending or, to the Knowledge of the Company, threatened,
against or relating to the Company, and, to the Company's Knowledge, there is no
basis for any such action; and (b) there are no actions, suits or proceedings
pending or, to the Knowledge of the Company, threatened, against the Company by
any Person which question the legality, validity or propriety of the
transactions contemplated by this Agreement.
5.7 COMPANY SEC REPORTS AND BOOKS AND RECORDS.
(a) The Company SEC Reports: include all reports, registration
statements, definitive proxy statements, prospectuses and amendments
thereto filed or required to be filed by the Company with the
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SEC since June 30, 1996; did not or will not, as the case may be, contain
as of their respective dates 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 therein, in light of the circumstances under which they
were made, not misleading; and otherwise complied or will comply, as the
case may be, in all material respects with the then applicable requirements
of the Exchange Act and the Securities Act, as the case may be, and the
then applicable rules and regulations of the SEC thereunder.
(b) The audited financial statements and unaudited interim financial
statements of the Company included in the Company SEC Reports have been or
will be, as the case may be, prepared in accordance with generally accepted
accounting principles applied on a consistent basis (except as may be
indicated therein or in the notes thereto) and fairly present the financial
position of the Company as of the dates thereof and the results of its
operations and changes in financial position for the periods then ended,
subject, in the case of the unaudited interim financial statements, to
normal year-end and audit adjustments and any other adjustments described
therein.
5.8 ABSENCE OF CERTAIN CHANGES. Except as disclosed in the Company SEC
Reports and the Disclosure Schedule, since September 30, 1999:
(a) There has not been any change with respect to the Company which
has had or is reasonably likely to have a Material Adverse Effect;
(b) There has not been any damage, destruction or loss (whether or not
covered by insurance) to the properties or assets of the Company which has
had or is reasonably likely to have a Material Adverse Effect;
(c) There has not been any transaction or commitment by the Company
outside the ordinary course of business, except for the transactions
contemplated by this Agreement or as set forth in the Disclosure Schedule;
(d) The business of the Company has been carried on only in the
ordinary course and in the manner consistent with past practice;
(e) The Company has not incurred any material Liens or Indebtedness;
(f) There has not been any increase in the compensation (including
bonuses) payable or to become payable by the Company to any of its
officers, or any increase in the compensation payable to other employees or
agents of the Company other than in the ordinary course of business and in
such amounts and at such times as are consistent with the Company's past
practice or any adoption or amendment of any bonus, pension, retirement,
profit sharing or stock option plan, arrangement or agreement made to or
with any of such officers or employees;
(g) There has not been any declaration or payment or setting aside the
payment of any dividend or any distribution in respect of the capital stock
of the Company or any direct or indirect redemption, purchase or other
acquisition of any such stock by the Company;
(h) The Company has not made any change to its accounting practices or
methods, and has not made any tax elections; and
(i) There has not been any other transaction outside of the ordinary
course of business.
5.9 CONTINGENT AND UNDISCLOSED LIABILITIES. The Company has not guaranteed
or become a surety and it is not otherwise contingently liable for the
obligations of any other Person. The Company has no material liabilities or
obligations of any nature (whether accrued, absolute, contingent or otherwise)
except for those which: (a) are disclosed in the Company SEC Reports, the
Disclosure Schedule or this Agreement; or (b) arose in the ordinary course of
business since September 30, 1999.
5.10 EXISTING CONTRACTS. The Existing Contracts are the only Contracts
which constitute:
(a) A lease of, or agreement to purchase or sell, any capital assets,
Real Estate or Building, other than agreements in the ordinary course of
business;
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(b) Any collective bargaining or union labor contracts;
(c) Any Employee Benefit Plan; or any management, consulting,
employment, personal service, agency or other contractor contracts
providing for employment or rendition of services which: (i) create other
than an at will employment relationship or (ii) provide for any commission,
bonus, profit sharing, incentive, retirement, severance, termination,
consulting or additional compensation;
(d) Any agreements or notes evidencing any Indebtedness;
(e) Any agreement with a customer or supplier of the Company, other
than regular invoices, sales confirmations and purchase orders;
(f) An agreement for the storage, transportation, treatment or
disposal of any Environmental Hazardous Material;
(g) A power of attorney (revocable or irrevocable) given to any Person
by the Company that is in force;
(h) An agreement by the Company not to engage or compete in any
business or in any geographical area;
(i) An agreement restricting the right of the Company to use or
disclose any information in its possession;
(j) A partnership, joint venture or similar arrangement;
(k) A license, royalty agreement, distributor agreement,
manufacturer's or sales representative agreement or reseller agreement;
(l) A Contract with any officer, director, employee or Affiliate of
the Company; or
(m) Any other agreement which (i) involves an amount in excess of
$50,000 or (ii) is not in the ordinary course of business of the Company or
is not cancelable on 60 days or less notice to the other parties thereto.
True and complete copies of the Existing Contracts have been delivered to
Parent, and the Company has fully performed each material term, covenant and
condition of each Existing Contract which is to be performed by it at or before
the date hereof. Each of the Existing Contracts is in full force and effect and
constitutes a legal and binding obligation of the Company and, to the Knowledge
of the Company, constitutes the legal and binding obligation of the other
parties thereto.
5.11 INSURANCE POLICIES. All real and personal property owned or leased by
the Company has been and is being insured against in amounts adequate for the
assets insured, and the Company maintains liability insurance against, such
insurable risks and in such amounts as are set forth in the Insurance Policies.
The Insurance Policies constitute all insurance coverage owned by the Company
and are in full force and effect, and the Company has not received notice, and
has no Knowledge of any cancellation or threat of cancellation of such
insurance. All assets of the Company have been and are being used in all
material respects in a normal business-like manner. Except as described in the
Disclosure Schedule, no property damage, personal injury or liability claims are
pending or, to the Company's Knowledge, threatened, against the Company that are
not covered by insurance. Within the past three (3) years, no insurance company
has canceled any insurance (of any type) maintained by the Company. To the
Knowledge of the Company, the cost of any insurance currently maintained by the
Company will not increase upon renewal other than increases consistent with the
general upward trend in the cost of obtaining insurance.
5.12 COMPLIANCE WITH LAW; NO DEFAULT. The Company is not in conflict with,
in default with respect to or in violation of, (i) any Law applicable to the
Company or by which any property or asset of the Company is bound or affected or
(ii) any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which the Company is a
party or by which the Company, or any property or asset of the Company, is bound
or affected, in each case except for any such conflicts, defaults or
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violations that have not had and are not reasonably expected to have a Material
Adverse Effect or a material adverse effect on the ability of the parties to
consummate the Offer or the Merger.
5.13 BROKERS. The Company has not incurred any brokers', finders',
investment banking, advisory or any similar fee in connection with the
transactions contemplated by this Agreement.
5.14 PATENTS, TRADEMARKS AND LIKE ASSETS. All trademarks, trade names,
copyrights, service marks, domain names, Internet addresses, patents and
registrations and applications therefor owned by or used by the Company in its
business are listed and briefly described in the Disclosure Schedule. All of
such assets that have been registered have been properly registered, all pending
registrations and applications have been properly filed and all maintenance,
renewal and other fees relating to such registrations are current. No
proceedings have been instituted or are pending or, to the Knowledge of the
Company, threatened, which challenge the validity or the ownership of any of the
foregoing except as set forth in the Disclosure Schedule. The Company has no
Knowledge of the use or infringement of any such trademarks, trade names,
copyrights, service marks, domain names, Internet addresses, patents and
applications by any other Person except as set forth in the Disclosure Schedule.
The Company has not entered into any patent or trademark license, technology
transfer, non-disclosure or non-competition agreement relating to its business
except as set forth in the Disclosure Schedule. The Company owns (or possesses
adequate and enforceable licenses or other rights to use) all trademarks, trade
names, copyrights, patents, inventions, processes and other intellectual
property rights used in the conduct of its business. The Company does not
infringe on the intellectual property rights of others. The Company has taken
reasonable and necessary steps to protect its rights in all trademarks, trade
names, service marks, domain names, Internet addresses, copyrights, patents,
inventions and processes used in the conduct of its business and, to the
Knowledge of the Company, no such rights have been lost or are in jeopardy of
being lost through failure to act by the Company.
5.15 PERMITS. The Existing Permits listed on the Disclosure Schedule
constitute all material licenses, permits, approvals, franchises,
qualifications, permissions, agreements and other authorizations which the
Company currently has and needs for the conduct of its business. Each Existing
Permit is in full force and effect, the Company is in compliance with all
material obligations, restrictions or requirements thereof, and no facts or
circumstances exist which are reasonably likely to cause any of the material
Existing Permits to be terminated, suspended or further qualified or restricted.
5.16 EMPLOYEE BENEFIT PLANS.
(a) Except for the Existing Plans, the Company does not maintain, and
is not bound by, any Employee Benefit Plan. Each Existing Plan that is an
"employee benefit plan" as defined in ERISA is in compliance in all
material respects with ERISA. All of the Existing Plans which are intended
to meet the requirements of Section 401(a) of the Code have been determined
by the Internal Revenue Service to be "qualified" within the meaning of the
Code, and there are no facts which would adversely affect the qualified
status of any of the Existing Plans. Each Existing Plan has been
administered in accordance with its terms and is in material compliance
with all applicable Laws. Any past Employee Benefit Plan that has been
terminated was done so in compliance in all material respects with all
applicable Laws, and there is no basis for further liability or obligation
of the Company pursuant to any past Employee Benefit Plan. There is no
litigation, action or proceeding pending or, to the knowledge of the
Company, threatened or proposed, relating to any Employee Benefit Plan.
(b) There is no accumulated funding deficiency, within the meaning of
ERISA or the Code, in connection with the Existing Plans, and all material
contributions required to be made by the Company to any Existing Plan have
been made on or before their due dates and the Company has accrued the
amount of contributions to each Existing Plan to be made for its current
plan year. No reportable event, as defined in ERISA, has occurred in
connection with the Existing Plans. The Existing Plans have not, and the
trustees or administrators of the Existing Plans have not, engaged in any
prohibited transaction as defined in ERISA or the Code. All reports and
information relating to each Existing Plan required to be disclosed or
provided to participants have been timely disclosed or provided.
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(c) Except as set forth on the Disclosure Schedule, neither the
Company nor any Existing Plan provides or has any obligation to provide (or
contribute to the cost of) post-retirement (or post-termination of service)
welfare benefits with respect to current or former employees of the
Company, including without limitation post-retirement medical, dental, life
insurance, severance or any similar benefit, whether provided on an insured
or self-insured basis.
(d) The Company is not required to contribute to any multi-employer
plan, as defined in ERISA. The Company has not withdrawn from a
multi-employer plan where such withdrawal has resulted or would result in
any "withdrawal liability" within the meaning of ERISA that has not been
fully paid.
(e) Each Existing Plan that is an "employee welfare benefit plan" as
defined in ERISA may be amended or terminated at any time after the
Effective Time of Merger without liability to the Company.
(f) With respect to each Existing Plan, the Company has complied with
the applicable health care continuation and notice provisions of the
Consolidation Omnibus Budget Reconciliation Act of 1985 and the proposed
regulations thereunder, and the applicable requirements of the Family Leave
Act of 1993 and the regulations thereunder.
(g) The Offer, the Merger and the consummation of the transactions
contemplated by this Agreement will not entitle any current or former
employee of the Company to severance benefits or any other payment, except
as set forth in the Disclosure Schedule, or accelerate the time of payment
or vesting, or increase the amount of compensation due any such employee.
(h) Correct and complete copies of all Existing Plans, together with
recent summary plan descriptions, IRS determination letters, Forms 5500,
and actuarial reports (if applicable), material employee communications
regarding Existing Plans, all trust agreements, insurance contracts,
accounts or other documents which establish funding vehicles for any
Existing Plan and the latest financial statements thereof have been
delivered to Parent.
5.17 LABOR MATTERS.
(a) The Company is not and has never been a party to any collective
bargaining or other labor union contract or agreement. There is no pending
or, to the Company's Knowledge, threatened labor dispute, strike or work
stoppage against the Company and since July 1, 1994, except as disclosed in
the Disclosure Schedule, the Company has not experienced any labor dispute,
strike or work stoppage.
(b) There is no pending or, to the Company's Knowledge, threatened
charge or complaint against the Company by or before the National Labor
Relations Board or any representative thereof, or any comparable state
agency or authorities. There is no present or former employee of the
Company who has any claim against the Company (whether under Law, any
employment agreement or otherwise) on account of or for: (i) overtime pay,
other than overtime pay for the current payroll period; (ii) wages or
salaries, other than wages or salaries for the current payroll period; or
(iii) vacations, sick leave, time off or pay in lieu of vacation, sick
leave or time off, other than vacation, sick leave or time off (or pay in
lieu thereof) earned in the 12-month period immediately preceding the date
of this Agreement or incurred in the ordinary course of business and
appearing as a liability on the most recent financial statements included
in the Company SEC Reports.
(c) There are no pending and unresolved claims by any Person against
the Company arising out of any statute, ordinance or regulation relating to
discrimination to employees or employee practices or occupational or safety
and health standards.
(d) No union organizing activities are in process or, to the Knowledge
of the Company, contemplated and no petitions have been filed for union
organization or representation of employees. The Company has not committed
any unfair labor practices which have not been remedied.
5.18 REAL ESTATE. The Real Estate: (a) constitutes all real property and
improvements leased or owned by the Company; (b) except as set forth on the
Disclosure Schedule, is not subject to any sub-leases or tenancies of any kind
(other than the Company); (c) is not in the possession of any adverse
possessors;
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(d) has direct access to and from a public road or street; (e) is used in a
manner which is consistent with applicable Law; (f) is, and has been since the
date of possession thereof by the Company, in the peaceful possession of the
Company; and (g) is served by all water, sewer, electrical, telephone, drainage
and other utilities required for the normal operations of the Buildings and Real
Estate. The Company has previously delivered to Parent correct and complete
copies of all title insurance policies or commitments maintained by the Company
with respect to the Real Estate.
5.19 NO PENDING ACQUISITIONS. Except for this Agreement, the Company is not
a party to or bound by any agreement, undertaking or commitment with respect to
an Acquisition.
5.20 TAXES.
(a) The Company has timely and properly filed all federal, state,
local and foreign tax returns which were required to be filed and such
returns are true, complete and accurate in all material respects. The
Company has paid or made adequate provision, in reserves reflected in its
financial statements included in the Company SEC Reports in accordance with
generally accepted accounting principles, for the payment of all taxes
(including interest and penalties) and withholding amounts shown to be due
on such returns. No tax deficiencies have been proposed or assessed against
the Company, and, to the Company's Knowledge, there is no basis in fact for
the assessment of any tax or penalty tax against the Company. No issue has
been raised in any prior tax audit which, by application of the same or
similar principles, could reasonably be expected upon a future tax audit to
result in a proposed deficiency for any period.
(b) No tax return of the Company is under audit or examination by any
taxing authority, and no written or, to the Company's Knowledge, unwritten
notice of such an audit or examination has been received by the Company.
Each deficiency (if any) resulting from any audit or examination relating
to taxes by any taxing authority has been paid, except for deficiencies
being contested in good faith and which are described in the Disclosure
Schedule. The income tax returns of the Company have been closed by audit
by the Internal Revenue Service or by operation of the applicable statute
of limitations for all fiscal years through and including June 30, 1996,
and the state income, sales and use or gross proceeds tax returns of the
Company have been closed by audit or by operation of the applicable statute
of limitations for all fiscal years, except as described on the Disclosure
Schedule. The Company has not consented to any extension of the statute of
limitations with respect to any open tax returns. The Company has not made
any elections under Section 341(f) of the Code.
(c) There are no tax Liens upon any property or assets of the Company
except for Liens for current taxes not yet due and payable.
(d) Except as set forth on the Disclosure Schedule, the Company is not
a party to and is not bound by any tax sharing agreement, tax indemnity
obligation or similar agreement, arrangement or practice with respect to
taxes. All elections with respect to taxes affecting the Company as of the
date hereof are set forth on the Disclosure Schedule.
(e) The disallowance of a deduction under Section 162(m) of the Code
for employee remuneration will not apply to any amount paid or payable by
the Company under any Contract, company stock or option plan, Employee
Benefit Plan, program, arrangement or understanding currently in effect.
(f) Any amount or any entitlement that could be received (whether in
cash or property or the vesting of property) as a result of any transaction
contemplated by this Agreement by any employee, officer or director of the
Company who is a "disqualified individual" (as such term is defined in
proposed Treasury Regulation Section 1.280G-1) under any employment,
severance or termination agreement, other compensation arrangement or
Employee Benefit Plan currently in effect would not be characterized as an
"excess parachute payment" (as such term is defined in Section 280G(b)(1)
of the Code).
(g) The Company has delivered to Parent correct and complete copies of
all tax returns and reports of the Company filed for all periods not barred
by the applicable statute of limitations.
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5.21 INFORMATION SUPPLIED.
(a) None of the information supplied or to be supplied by or on behalf
of the Company or any Affiliate of the Company for inclusion in the Offer
Documents will, at the times such documents are filed with the SEC and are
mailed to the Company Stockholders, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading, or to correct any
statement made in any communication with respect to the Offer previously
filed with the SEC or disseminated to the Company Stockholders. The
Schedule 14D-9 will not, at the time the Schedule 14D-9 is filed with the
SEC and at all times prior to the purchase of Company Common Stock by Newco
pursuant to the Offer, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they are made, not misleading, except that no representation or warranty is
made by the Company with respect to information supplied in writing by
Parent, Newco or any Affiliate of Parent or Newco expressly for inclusion
therein. The Schedule 14D-9 will comply as to form in all material respects
with the provisions of the Exchange Act and the rules and regulations of
the SEC thereunder.
(b) The Proxy Statement, and any other schedule or document required
to be filed by the Company in connection with the Merger, will not, at the
time the Proxy Statement is first mailed and at the time of the Special
Meeting, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are
made, not misleading, or to correct any statement made in any earlier
communications with respect to the solicitation of any proxy or approval
for the Merger in connection with which the Proxy Statement shall be
mailed, except that no representation or warranty is made by the Company
with respect to information supplied in writing by Parent, Newco or an
Affiliate of Parent or Newco expressly for inclusion therein. The Proxy
Statement will comply as to form in all material respects with the
provisions of the Exchange Act and the rules and regulations of the SEC
promulgated thereunder. The letter to the Company Stockholders, notice of
meeting, proxy statement and form of proxy, or the information statement,
as the case may be, that may be provided to the Company Stockholders in
connection with the Merger (including any amendments or supplements), and
any schedules required to be filed with the SEC in connection therewith, as
from time to time amended or supplemented, are collectively referred to as
the "Proxy Statement."
5.22 TAKEOVER STATUTES. The Board of Directors of the Company has taken all
actions required to render the provisions of Section 203 of the DGCL, and any
other provision of any Takeover Laws of any jurisdiction that may purport to be
applicable to this Agreement or the Shareholder Option Agreements, inapplicable
to this Agreement, the Offer, Shareholder Option Agreements and the Merger.
5.23 ENVIRONMENTAL PROTECTION.
(a) As used in this Section 5.23 of this Agreement:
(i) "Environmental Claim" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters,
directives, claims, Liens, investigations, proceedings or notices of
noncompliance or violation (written or oral) by any Person alleging
potential liability (including, without limitation, potential liability
for enforcement, investigatory costs, cleanup costs, governmental
response costs, removal costs, remedial costs, natural resources
damages, property damages, personal injuries, or penalties) arising out
of, based on or resulting from: (A) the presence, or release into the
environment, of any Environmental Hazardous Materials at any location,
whether or not owned by the Company; or (B) circumstances forming the
basis of any violation or alleged violation, of any Environmental Law;
or (C) any and all claims by any Person seeking damages, contribution,
indemnification, cost, recovery, compensation or injunctive relief
resulting from the presence or Environmental Release of any
Environmental Hazardous Materials.
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(ii) "Environmental Hazardous Materials" shall mean: (A) any
petroleum or petroleum products, radioactive materials, asbestos in any
form that is or could become friable, urea formaldehyde foam insulation,
and transformers or other equipment that contain dielectric fluid
containing levels of polychlorinated biphenyls (PCBs) and radon gas; and
(B) any chemicals, materials or substances which are now defined as or
included in the definition of "hazardous substances," "hazardous
wastes," "hazardous materials," "extremely hazardous wastes,"
"restricted hazardous wastes," "toxic substances," "toxic pollutants,"
or words of similar import, under any Environmental Law; and (C) any
other chemical, material, substance or waste, exposure to which is now
prohibited, limited or regulated by any governmental authority.
(iii) "Environmental Laws" shall mean all Laws relating to
pollution or protection of human health or the environment (including,
without limitation, ambient air, surface water, ground water, land
surface or subsurface strata), including, without limitation, Laws and
regulations relating to Environmental Releases or threatened
Environmental Releases of Environmental Hazardous Materials, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Environmental
Hazardous Materials.
(iv) "Environmental Release" shall mean any release, spill,
emission, leaking, injection, deposit, disposal, discharge, dispersal,
leaching or mitigation from or into the atmosphere, soil, surface water,
groundwater or property.
(b) Except as set forth in the Disclosure Schedule, the Company: (i)
is in compliance in all material respects with all applicable Environmental
Laws; and (ii) has not received any communication (written or oral), from a
governmental authority, that alleges that the Company is not in compliance
with applicable Environmental Laws.
(c) Except as set forth in the Disclosure Schedule, the Company has
obtained all material environmental, health and safety permits and
governmental authorizations (collectively, the "Environmental Permits")
necessary for its operations, and all such permits are in good standing and
the Company is in compliance in all material respects with all terms and
conditions of the Environmental Permits.
(d) Except as set forth in the Disclosure Schedule, there is no
Environmental Claim pending or, to the Knowledge of the Company, threatened
against the Company or against any Person whose liability for any
Environmental Claim the Company has or may have retained or assumed either
contractually or by operation of Law, or against any real or personal
property or operations which the Company owns, leases or manages and, to
the Knowledge of the Company, there is no basis for any Environmental
Claim.
(e) Except as set forth in the Disclosure Schedule, there have been no
Environmental Releases of any Environmental Hazardous Material by the
Company, by any Person on real property owned, used, leased or operated by
the Company or by a Person on real property owned, used, leased or operated
by such Person that constitutes an Environmental Release on the real
property owned, used, leased or operated by the Company in violation of any
Environmental Law.
(f) No real property at any time owned, operated, used or controlled
by the Company is currently listed on the National Priorities List or the
Comprehensive Environmental Response, Compensation and Liability
Information System, both promulgated under CERCLA, or on any comparable
state list, and the Company has not received any written notice from any
Person under or relating to CERCLA or any comparable state or local Law.
(g) To the Company's Knowledge, no off-site location at which the
Company has disposed or arranged for the disposal of any waste is listed on
the National Priorities List or on any comparable state list and the
Company has not received any written notice from any Person with respect to
any off-site location, of potential or actual liability or a written
request for information from any Person under or relating to CERCLA or any
comparable state or local Law.
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5.24 CERTAIN TRANSACTIONS. No director, officer, partner, employee,
Affiliate or associate of the Company (a) has borrowed any monies from or has
outstanding any indebtedness or other similar obligations to the Company, (b)
owns any direct or indirect interest of any kind (other than the ownership of
less than 5% of the stock of a publicly traded company) in, or is a director,
officer, employee, partner, Affiliate or associate of, or consultant or lender
to, or borrower from, or has the right to participate in the management,
operations or profits of, any Person or entity which is (i) a competitor,
supplier, customer, distributor, lessor, tenant, creditor or debtor of the
Company, (ii) engaged in a business related to the business of the Company or
(iii) participated in any transaction to which the Company is a party; or (c) is
otherwise a party to any contract, arrangement or understanding with the
Company.
5.25 PRODUCT MATTERS. All instances of Product Liability Matters that have
occurred and for which notice has been received by the Company within the past
three (3) years are listed on the Disclosure Schedule, including without
limitation any product recall, re-work or post-sale warning or similar action
conducted with respect to the Company's products.
5.26 YEAR 2000. All internal computer systems that are material to the
business, finances or operations of the Company are (a) able to receive, record,
store, process, calculate, manipulate and output dates from and after January 1,
2000, time periods that include January 1, 2000 and information that is
dependent on or relates to such dates or time periods, in the same manner and
with the same accuracy, functionality, data integrity and performance as when
dates or time periods prior to January 1, 2000 are involved and (b) able to
store and output date information in a manner that is unambiguous as to century
("Year 2000 Compliant"). To the knowledge of the Company and upon due inquiry,
the systems of the Company's material suppliers are Year 2000 Compliant.
5.27 REQUIRED VOTE OF THE COMPANY STOCKHOLDERS. Unless the Merger is
consummated in accordance with Section 253 of the DGCL as contemplated by
Section 3.8(d), the only vote of the Company Stockholders required to adopt the
plan of merger contained in this Agreement and approve the Merger is the
affirmative vote of the holders of not less than a majority of the outstanding
Company Common Stock. No other vote of the Company Stockholders is required by
Law, the Certificate of Incorporation or Bylaws of the Company as currently in
effect or otherwise to adopt the plan of merger contained in this Agreement and
approve the Merger. Newco will have full voting power with respect to any
Company Common Stock purchased pursuant to the Offer.
5.28 REPRESENTATIONS COMPLETE. None of the representations or warranties
made by the Company herein or in the Disclosure Schedule, in any certificate
furnished by the Company pursuant to this Agreement or in the Company SEC
Reports, when all such documents are read together in their entirety, contains
or will contain at the Effective Time of Merger any untrue statement of a
material fact, or omits or will omit at the Effective Time of Merger to state
any material fact necessary in order to make the statements contained herein or
therein, in light of the circumstances under which they are made, not
misleading.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PARENT AND NEWCO
Parent and Newco hereby represent and warrant to the Company that:
6.1 ORGANIZATION.
(a) Parent is a corporation duly and validly organized and existing
under the Laws of the State of Wisconsin. Newco is a corporation duly and
validly organized and existing under the Laws of the State of Delaware, and
is a wholly owned Subsidiary of Parent recently formed for the purpose of
engaging in the transactions described in the Agreement and has no
operating history.
(b) Each of Parent and Newco has full corporate power and authority
and all material franchises, permits, licenses, approvals, authorizations,
registrations, certificates, grants and orders necessary to carry on its
business as it is now conducted and to own, lease and operate its assets
and properties.
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6.2 AUTHORIZATION; ENFORCEABILITY. The execution, delivery and performance
of this Agreement by Parent and Newco and all of the documents and instruments
required by this Agreement to be executed and delivered by Parent and Newco are
within the corporate power of Parent and Newco and have been duly authorized by
all necessary corporate action by Parent and Newco. This Agreement is, and the
other documents and instruments required by this Agreement to be executed and
delivered by Parent and Newco will be, when executed and delivered by Parent and
Newco, the valid and binding obligations of Parent and Newco, enforceable
against Parent and Newco in accordance with their respective terms, except as
the enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar Laws generally affecting the rights of
creditors and subject to general equity principles.
6.3 NO VIOLATION OR CONFLICT. The execution, delivery and performance of
this Agreement by Parent and Newco do not and will not conflict with or violate
any Law, the Articles of Incorporation or Bylaws of Parent, the Certificate of
Incorporation or Bylaws of Newco or any material contract or agreement to which
Parent or Newco is a party or by which either of them is bound, except for
violations which would not, individually or in the aggregate, have a Material
Adverse Effect on the ability of Parent or Newco to consummate the transactions
contemplated hereby.
6.4 LITIGATION. There are no actions, suits or proceedings against Parent
or Newco, or both, pending or, to the Knowledge of Parent or Newco or both,
threatened by any Person which question the validity, legality or propriety of
the transactions contemplated by this Agreement.
6.5 FINANCING. Parent and Newco have or will have at the time required
sufficient funds available to consummate the Offer and the Merger and the other
transactions contemplated hereby, including the payment of related fees and
expenses.
6.6 BROKERS. Neither Parent nor Newco has incurred any brokers', finders',
investment banking, advisory or any similar fee in connection with the
transactions contemplated by this Agreement.
6.7 GOVERNMENTAL APPROVALS. No permission, approval, determination, consent
or waiver by, or any declaration, filing or registration with, any governmental
or regulatory authority is required in connection with the execution, delivery
and performance of this Agreement by Parent and Newco except (i) in connection
with the applicable requirements of the HSR Act; (ii) pursuant to the applicable
requirements of the Exchange Act; (iii) the filing of the Certificate of Merger
pursuant to the DGCL, (iv) as may be required by any applicable state securities
or "blue sky" Laws or state Takeover Laws, (v) where the failure to obtain such
consent, approval, permission, or waiver, or to make such declaration, filing or
registration is not material and would not affect their respective abilities to
consummate the transactions contemplated by this Agreement.
6.8 OFFER DOCUMENTS; PROXY STATEMENT. The Offer Documents will comply in
all material respects with applicable federal securities Laws, except that no
representation is made by Parent or Newco with respect to information supplied
by the Company in writing for inclusion in the Offer Documents or any amendments
or supplements thereto. None of the information supplied by Parent, Newco or
their Affiliates in writing for inclusion in the Proxy Statement or any
amendments or supplements thereto will, at the respective times the Proxy
Statement or any amendments or supplements thereto are filed with the SEC, at
the time the Proxy Statement or any amendments or supplements thereto are mailed
to the Company Stockholders, or at the time of the Company Special Meeting or at
the Effective Time of Merger, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
6.9 REPRESENTATIONS COMPLETE. None of the representations or warranties
made by Parent herein, in any certificate furnished by Parent pursuant to this
Agreement or in the Offer Documents, when all such documents are read together
in their entirety, contains or will contain at the Effective Time of Merger any
untrue statement of a material fact, or omits or will omit at the Effective Time
of Merger to state any material fact necessary in order to make the statements
contained herein or therein, in light of the circumstances under which they are
made, not misleading.
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ARTICLE VII
CONDUCT OF BUSINESS BY THE COMPANY PENDING THE MERGER
From and after the date of this Agreement and until the Effective Time of
Merger, the Company shall:
7.1 CARRY ON IN REGULAR COURSE. Diligently carry on its business in the
regular course and substantially in the same manner as heretofore and shall not
make or institute any unusual or novel methods of purchase, sale, lease,
management, accounting or operation.
7.2 USE OF ASSETS. Use, operate, maintain and repair all of its assets and
properties consistent with its normal business practices.
7.3 CONTRACTS. Not modify or amend any Existing Contract in any material
respect and not do any act or omit to do any act, or permit any act or omission
to act, which will cause a breach or termination of any of the Contracts.
7.4 INSURANCE POLICIES. Maintain all of the Insurance Policies in full
force and effect.
7.5 EMPLOYMENT MATTERS. Not: (a) except as described in the Disclosure
Schedule, grant any increase in the rate of pay of any of its employees,
directors or officers; (b) institute or amend any Employee Benefit Plan; or (c)
enter into or modify any written employment, severance, bonus, benefit,
termination or related arrangement with any Person.
7.6 CONTRACTS AND COMMITMENTS. Not enter into any contract or commitment or
engage in any transaction not in the usual and ordinary course of business and
consistent with its normal business practices, and not, without Parent's consent
which consent shall not be unreasonably withheld, purchase, lease, sell or
dispose of any capital assets.
7.7 INDEBTEDNESS. Not create, incur or assume any Indebtedness, Lien,
except in the ordinary course of business, or permit the imposition of any Lien.
7.8 PRESERVATION OF RELATIONSHIPS. Use its reasonable best efforts to
preserve its business organization intact, to retain the services of its present
officers and key employees and to preserve the goodwill of suppliers, customers,
creditors and others having business relationships with the Company.
7.9 COMPLIANCE WITH LAWS. Comply in all material respects with all
applicable Laws.
7.10 TAXES. Timely and properly file all federal, state, local and foreign
tax returns which are required to be filed, and pay or make provision for the
payment of all taxes owed by it.
7.11 AMENDMENTS. Not amend its Certificate of Incorporation or Bylaws.
7.12 DIVIDENDS; REDEMPTIONS; ISSUANCE OF STOCK. Not: (a) issue any
additional shares of stock of any class (except for the issuance of shares upon
exercise of options outstanding as of the date of this Agreement) or grant any
warrants, options or rights to subscribe for or acquire any additional shares of
stock of any class; (b) declare or pay any dividend or make any capital or
surplus distributions of any nature (including special dividends); or (c)
directly or indirectly redeem, purchase or otherwise acquire, split, combine,
recapitalize or reclassify any of its capital stock or liquidate in whole or in
part.
7.13 NO DISPOSITIONS. Not sell, lease, license, encumber or otherwise
dispose of, or agree to sell, lease, license, encumber or otherwise dispose of,
any of its assets, except in the ordinary course of business consistent with
past practice.
7.14 DISSOLUTION; REORGANIZATION. Not adopt a plan of complete or partial
liquidation, dissolution, merger, consolidation, restructuring, recapitalization
or other reorganization of the Company.
7.15 LITIGATION. Not settle or compromise any material claims, litigation
or governmental or administrative proceedings.
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ARTICLE VIII
CONDITIONS TO CONSUMMATION OF THE MERGER
The respective obligations of each party to effect the Merger are subject
to the satisfaction or waiver, where permissible, at or prior to the Effective
Time of Merger of the following conditions:
8.1 INJUNCTION. There shall not be in effect any statute, rule, regulation,
executive order, decree, ruling or injunction or other order of a court or
governmental or regulatory agency of competent jurisdiction directing that the
transactions contemplated herein not be consummated; provided, however, that
prior to invoking this condition each party shall use its reasonable best
efforts to have any such decree, ruling, injunction or order vacated.
8.2 GOVERNMENTAL APPROVALS.
(a) All governmental consents, orders and approvals legally required
for the consummation of the Merger and the transactions contemplated hereby
shall have been obtained and be in effect at the Effective Time of Merger.
(b) All necessary requirements of the HSR Act shall have been complied
with and any "waiting periods" applicable to the Merger and to the
transactions described in this Agreement, including any secondary
acquisitions, which are imposed by the HSR Act shall have expired prior to
the Closing Date or shall have been terminated by the appropriate agency.
8.3 THE OFFER. Newco shall have purchased in accordance with the terms of
the Offer all shares of Company Common Stock validly tendered and not withdrawn
pursuant to the Offer.
8.4 APPROVAL OF COMPANY STOCKHOLDERS; CERTIFICATE OF MERGER. To the extent
required by applicable Law, this Agreement, the Merger and the transactions
contemplated by this Agreement shall have received the requisite approval and
authorization of the Company Stock holders; provided that Parent, Newco and
their Affiliates shall vote all of their shares of Company Common Stock in favor
of the Merger.
ARTICLE IX
TERMINATION; MISCELLANEOUS
9.1 TERMINATION. This Agreement may be terminated and the Offer and the
Merger may be abandoned at any time prior to the Effective Time of Merger as
follows:
(a) By mutual written agreement duly authorized by the Boards of
Directors of Parent, Newco and the Company;
(b) By Parent and Newco if (i) the Board of Directors of the Company
shall have withdrawn or materially modified or changed its favorable
recommendation of the Offer, the Merger or this Agreement, or shall have
approved or recommended any Acquisition Proposal or Acquisition; (ii) the
Company shall have breached Section 4.5(b) of this Agreement or shall have
resolved to effect any of the actions referred to in Section 4.5(b); or
(iii) Newco shall have otherwise terminated the Offer in accordance with
the terms of this Agreement, including Annex A, without purchasing shares
of Company Common Stock pursuant to the Offer;
(c) By the Company if (i) the Board of Directors of the Company shall
have determined in good faith, upon the written advice of outside legal
counsel, that its fiduciary duties require the termination of this
Agreement in order to pursue a Superior Proposal; or (ii) Newco shall have
(x) failed to commence the Offer within five business days following the
date of this Agreement or (y) terminated the Offer without purchasing
shares of Company Common Stock pursuant to the Offer;
(d) By either Parent (including Newco) or the Company if the other
party shall have breached in any material respect any of its
representations, warranties, covenants or other agreements contained in
this Agreement (other than a breach by the Company of Section 4.5(b)
hereof, in which case Parent
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shall have the right to terminate this Agreement as provided in Section
9.1(b)(ii) above), which breach is incapable of being cured or shall not
have been cured within 30 days after the giving of written notice to the
breaching party; or
(e) By either Parent (including Newco) or the Company (i) if Newco
shall not have purchased shares of Company Common Stock pursuant to the
Offer on or before June 30, 2000 (provided, however, that the right to
terminate this Agreement under this Section 9.1(e) shall not be available
to any party whose action or failure to act has been the cause of or
resulted in such failure to purchase); or (ii) if any court of competent
jurisdiction or any other governmental body or regulatory authority shall
have issued an order, decree or ruling or taken any other action
permanently restraining, enjoining or otherwise prohibiting the Offer or
the Merger and such order, decree, ruling or other action shall have become
final and non-appealable.
9.2 RIGHTS ON TERMINATION; WAIVER. If this Agreement is terminated pursuant
to Section 9.1 of this Agreement, all further obligations of the parties under
or pursuant to this Agreement shall terminate without further liability of any
party to the others, provided that: (a) the obligations of Parent and Newco
contained in Sections 4.1(b), 4.7, 9.2 and 9.5 of this Agreement shall survive
any such termination; (b) the obligations of the Company contained in Sections
4.1(b), 4.5(c), 4.7, 9.2 and 9.5 of this Agreement shall survive any such
termination; and (c) each party to this Agreement shall retain any and all
remedies which it may have for breach of contract provided by Law.
9.3 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. All
representations and warranties of the parties contained in this Agreement or
made pursuant to this Agreement shall terminate and be of no further force and
effect beyond the Effective Time of Merger. This Section 9.3 shall not limit any
covenant or agreement of the parties hereto which by its terms contemplates
performance after the Effective Time of Merger or the purchase of shares of
Company Common Stock by Newco pursuant to the Offer.
9.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the documents referred
to in this Agreement and required to be delivered pursuant to this Agreement
constitute the entire agreement among the parties pertaining to the subject
matter of this Agreement, and supersede all prior and contemporaneous
agreements, understandings, negotiations and discussions of the parties, whether
oral or written, and there are no warranties, representations or other
agreements between the parties in connection with the subject matter of this
Agreement, except as specifically set forth in this Agreement. This Agreement
may be amended by the parties at any time prior to the Effective Time of Merger,
but no amendment, supplement, modification, waiver or termination of this
Agreement shall be binding unless executed in writing by the parties to be bound
thereby. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision of this Agreement, whether or
not similar, nor shall such waiver constitute a continuing waiver unless
otherwise expressly provided.
9.5 EXPENSES. Except as provided in Section 4.5(c) hereof, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated by this Agreement shall be paid by the party incurring such
expenses, whether or not the Offer and the Merger are consummated.
9.6 GOVERNING LAW. This Agreement shall be construed and interpreted
according to the Laws of the State of Delaware without regard to applicable
conflicts of law.
9.7 ASSIGNMENT. Prior to the Effective Time of Merger, this Agreement shall
not be assigned by any party without the prior written consent of the other
parties, provided that Parent or Newco may assign any of their respective rights
and obligations to any direct or indirect subsidiary of Parent, but no such
assignment shall relieve Parent or Newco, as the case may be, of its obligations
hereunder.
9.8 NOTICES. All communications or notices required or permitted by this
Agreement shall be in writing and shall be deemed to have been given at the
earlier of the date when actually delivered to an officer of a party by personal
delivery or telephonic facsimile transmission or when deposited in the United
States mail,
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certified or registered mail, postage prepaid, return receipt requested, and
addressed as follows, unless and until any of such parties notifies the others
in accordance with this Section of a change of address:
If to Parent or Newco: Xxxxx Corporation or IMTC Acquisition
Corp. Attn: Xxxx X. Xxxxxxx
0000 X. Xxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Fax No.: 000-000-0000
with a copy to: Xxxxxxx & Xxxxx LLP
Attention: Xxxxxx X. Xxxxxxxx
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax No.: 000-000-0000
If to the Company: Imtec Inc.
Attention: Xxxxx Xxxxx
Xxx Xxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Fax No.: 000-000-0000
with a copy to: Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx &
Xxxxxx, P.C.
Attention: Xxx X. Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax No.: 000-000-0000
9.9 COUNTERPARTS; HEADINGS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but such counterparts
shall together constitute but one and the same Agreement. The Table of Contents
and Article and Section headings in this Agreement are inserted for convenience
of reference only and shall not constitute a part hereof.
9.10 INTERPRETATION. Unless the context requires otherwise, all words used
in this Agreement in the singular number shall extend to and include the plural,
all words in the plural number shall extend to and include the singular, and all
words in any gender shall extend to and include all genders.
9.11 SEVERABILITY. If any provision, clause, or part of this Agreement, or
the application thereof under certain circumstances, is held invalid, the
remainder of this Agreement, or the application of such provision, clause or
part under other circumstances, shall not be affected thereby unless such
invalidity materially impairs the ability of the parties to consummate the
transactions contemplated by this Agreement.
9.12 SPECIFIC PERFORMANCE. The parties agree that the assets and business
of the Company as a going concern constitute unique property. There is no
adequate remedy at Law for the damage which any party might sustain for failure
of the other parties to consummate the Offer and the Merger and the transactions
contemplated by this Agreement, and accordingly, each party shall be entitled,
at its option, to the remedy of specific performance to enforce the Offer and
the Merger pursuant to this Agreement.
9.13 NO RELIANCE. Except for the parties to this Agreement and any
permitted assignees, no Person is entitled to rely on any of the
representations, warranties and agreements of the parties contained in this
Agreement, and the parties assume no liability to any Person because of any
reliance on the representations, warranties and agreements of the parties
contained in this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement and Plan of
Merger to be duly executed as of the date first above written.
XXXXX CORPORATION
By: /s/ XXXXXXXXX X. XXXXXX
------------------------------------
Title: President and CEO
IMTC ACQUISITION CORP.
By: /s/ XXXXXXXXX X. XXXXXX
------------------------------------
Title: President
IMTEC INC.
By: /s/ XXXXX X. XXXXX
------------------------------------
Title: Chairman
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ANNEX A
Capitalized terms used in this Annex A and not otherwise defined herein
have the meanings assigned to them in the Agreement to which it is attached.
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provision of the
Offer or the Agreement and provided that Newco shall not be obligated to accept
for payment any shares of Company Common Stock until (i) expiration of all
applicable waiting periods under the HSR Act and (ii) satisfaction of the
Minimum Condition, Newco shall not be required to accept for payment or, subject
to any applicable rules and regulations of the SEC, including Rule 14e-1(c)
under the Exchange Act (relating to Newco's obligation to pay for or return
tendered shares after the termination or withdrawal of the Offer), pay for, or
may delay the acceptance for payment of or payment for, any shares of Company
Common Stock tendered pursuant to the Offer, or may, subject to the terms of the
Agreement, terminate or amend the Offer if at any time on or after the date of
the Agreement, and at or before the time of payment for any of such shares, any
of the following conditions exist:
(a) There shall have occurred and be continuing as of the then
scheduled expiration date of the Offer (i) any general suspension of, or
limitation on prices for, trading in securities on the New York Stock
Exchange or the Nasdaq National Market, (ii) a declaration of a banking
moratorium or any suspension of payments in respect of banks in the United
States, (iii) a commencement or escalation of a war, armed hostilities or
other international or national calamity directly involving the United
States, (iv) any material limitation (whether or not mandatory) by any
governmental or regulatory authority, agency or commission, domestic or
foreign ("Governmental Entity"), on the extension of credit by banks or
other lending institutions in the United States, (v) or in the case of any
of the foregoing existing at the time of the commencement of the Offer, a
material acceleration or worsening thereof;
(b) The Company shall have breached or failed to perform any of its
obligations, covenants or agreements under the Agreement or any
representation or warranty of the Company as set forth in the Agreement
(disregarding all qualifications and exceptions contained therein relating
to knowledge, materiality or Material Adverse Effect) shall not have been
true and correct as of the date of the Agreement and as of the then
scheduled expiration date of the Offer as though made on and as of the then
scheduled expiration date of the Offer, provided that all such breaches,
failures to perform and untrue representations or warranties, taken in the
aggregate, shall have or shall be reasonably likely to have a Material
Adverse Effect;
(c) Any court or Governmental Entity shall have enacted, issued,
promulgated, enforced or entered any statute, rule, regulation, executive
order, decree, injunction or other order which is in effect and which (i)
restricts (other than restrictions which in the aggregate do not have a
Material Adverse Effect on Parent, Newco or the Company or which do not
materially restrict the ability of Parent and Newco to consummate the Offer
and the Merger as originally contemplated by Parent and Newco), prevents,
prohibits or makes materially more costly the consummation of the Offer or
the Merger, (ii) makes the acceptance for payment of, or payment for or
purchase of some or all of Company Common Stock pursuant to the Offer
illegal, (iii) results in a significant delay in or restricts the ability
of Newco to accept for payment, pay for or purchase some or all of Company
Common Stock pursuant to the Offer or to effect the Merger, (iv) renders
Newco unable to accept for payment or pay for or purchase some or all of
Company Common Stock pursuant to the Offer, (v) prohibits or limits (other
than limits which in the aggregate do not have a Material Adverse Effect on
Parent, Newco or the Company or which do not materially limit the ability
of Parent to own and operate all of the business and assets of Parent and
the Company after the consummation of the transactions contemplated by the
Offer and the Agreement) the ownership or operation by the Company, Parent
or any of their Subsidiaries of all or any material portion of the business
or assets of the Company, or as a result of the Offer or Merger compels the
Company, Parent or any of their Subsidiaries to dispose of or hold separate
all or any material portion of their respective business or assets, (vi)
imposes limitations on the ability of Parent or any Subsidiary of Parent to
hold, transfer or dispose of or exercise effectively full rights of
ownership of any shares of Company Common Stock, including, without
limitation, the right to vote any shares of Company Common Stock
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acquired by Newco pursuant to the Offer or otherwise on all matters
properly presented to the Company Stockholders including, without
limitation, the approval and adoption of the Agreement and the transactions
contemplated thereby, (vii) requires divestiture by Parent or any Affiliate
of Parent of any shares of Company Common Stock, or (viii) otherwise
materially adversely affects the financial condition, business or results
of operations of Parent, Newco or the Company or otherwise makes
consummation of the Offer or the Merger unduly burdensome;
(d) There shall have been threatened, instituted or pending any
action, proceeding or counterclaim by or before any Governmental Entity,
challenging the making of the Offer or the acquisition by Newco of Company
Common Stock pursuant to the Offer or the consummation of the Merger, or
seeking to obtain any material damages, or seeking to, directly or
indirectly, result in any of the consequences referred to in clauses (i)
through (viii) of paragraph (c) above;
(e) Any person or "group" (as such term is used in Section 13(d)(3) of
the Exchange Act) other than Parent or Newco or any of their Affiliates
shall have become the beneficial owner (as that term is used in Rule 13d-3
under the Exchange Act) of more than 25% of the outstanding Company Common
Stock;
(f) All consents, registrations, approvals, permits, authorizations,
notices, reports or other filings required to be obtained or made by the
Company, Parent or Newco in connection with the execution and delivery of
the Agreement, the Offer and the consummation of the transactions
contemplated by this Agreement shall not have been made or obtained as of
the then scheduled expiration date of the Offer (other than the failure to
receive any consent, registration, approval, permit or authorization or to
make any notice, report or other filing that, in the aggregate, is not
reasonably likely to have a Material Adverse Effect on Parent, Newco or the
Company, or would not prevent the consummation of the Offer or the Merger);
(g) There shall have occurred any one or more changes or developments
in the financial condition, properties, business or results of operations
of the Company that, individually or in the aggregate, has had or is
reasonably likely to have a Material Adverse Effect;
(h) The Board of Directors of the Company (or any committee thereof)
shall have withdrawn or amended, or modified in a manner adverse to Parent
and Newco its recommendation of the Offer or the Merger, or shall have
endorsed, approved or recommended any other Acquisition Proposal, or the
Company shall have entered into any agreement with respect to an
Acquisition, or the Board of Directors of the Company (or any committee
thereof) shall have resolved to take any of the foregoing actions; or
(i) The Agreement shall have been terminated by the Company, or by
Parent or Newco, in accordance with its terms or Parent or Newco shall have
reached an agreement or understanding in writing with the Company providing
for termination or amendment of the Offer or delay in payment for the
shares of Company Common Stock;
which, in the reasonable judgment of Parent and Newco, in any such case, and
regardless of the circumstances (excluding any direct action or inaction by
Parent or Newco which to Parent's and Newco's knowledge is reasonably likely to
cause any of the above conditions to exist) giving rise to any such conditions,
make it inadvisable to proceed with the Offer and/or with such acceptance for
payment of or payment for shares of Company Common Stock.
The foregoing conditions are for the sole benefit of Parent and Newco and
may be asserted by Parent or Newco regardless of the circumstances (excluding
any direct action or inaction by Parent or Newco which to Parent's and Newco's
knowledge is reasonably likely to cause any of the above conditions to exist)
giving rise to such condition or may be waived by Parent or Newco, in whole or
in part at any time and from time to time in its sole discretion. The failure by
Parent or Newco at any time to exercise any of the foregoing rights shall not be
deemed a waiver of any such right, the waiver of any such right with respect to
particular facts and circumstances shall not be deemed a waiver with respect to
any other facts and circumstances and each such right shall be deemed an ongoing
right that may be asserted at any time and from time to time.
A-2
