1
Exhibit (c)(1)
TENDER OFFER AGREEMENT
DATED
NOVEMBER 15, 1999
by and among
AMWAY JAPAN LIMITED,
XXXX HOLD CO., LTD.
AND
N.A.J. CO., LTD.
2
TABLE OF CONTENTS
ARTICLE PAGE
------- ----
ARTICLE I THE OFFER..........................................................2
1.1 The Offer.................................................2
1.2 Company Actions...........................................4
ARTICLE II INTENTION TO MERGE.................................................4
2.1 Intention to Merge........................................4
2.2 Principal Terms of Merger.................................5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY......................5
3.1 Organization..............................................5
3.2 Capitalization of the Company.............................5
3.3 Power and Authority.......................................5
3.4 Board Recommendations.....................................5
3.5 Consents and Approvals; No Violation......................6
3.6 Information Supplied......................................6
3.7 Brokers and Finders.......................................6
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER........................6
4.1 Organization..............................................6
4.2 Power and Authority.......................................6
4.3 Consent and Approvals; No Violation.......................7
4.4 Information Supplied......................................7
4.5 Purchaser's Operations....................................7
4.6 Capitalization............................................7
4.7 Financing.................................................7
ARTICLE V REPRESENTATIONS AND WARRANTIES OF XXXX.............................7
5.1 Organization..............................................8
5.2 Authority Relative to this Agreement......................8
5.3 Consent and Approvals; No Violation.......................8
5.4 ALAP's Operations.........................................8
5.5 Capitalization............................................8
5.6 Financing.................................................8
ARTICLE VI COVENANTS..........................................................8
6.1 Consents and Approvals....................................8
6.2 Additional Actions........................................8
6.3 Insurance.................................................9
ARTICLE VII TERMINATION.......................................................9
7.1 Termination...............................................9
7.2 Effect of Termination....................................10
-i-
3
ARTICLE VIII GENERAL PROVISIONS..............................................10
8.1 Amendment and Modification...................................10
8.2 Nonsurvival of Representations and Warranties................10
8.3 Notices......................................................10
8.4 Definitions; Interpretation..................................11
8.5 Specific Performance.........................................11
8.6 Counterparts.................................................11
8.7 Entire Agreement; No Third Party Beneficiaries...............11
8.8 Severability.................................................12
8.9 Governing Law................................................12
8.10 Assignment...................................................12
8.11 Extension; Waiver............................................12
8.12 Procedure For Termination, Amendment, Extension Or Waiver....12
8.13 Announcements................................................12
-ii-
4
TENDER OFFER AGREEMENT
This Tender Offer Agreement (this "Agreement") is entered into as of
November 15, 1999, by and among Amway Japan Limited, a joint stock corporation
organized under the laws of Japan (the "Company"), XXXX Hold Co., Ltd., a Nevada
limited partnership ("XXXX"), and N.A.J. Co., Ltd., a joint stock corporation
organized under the laws of Japan ("Purchaser").
RECITALS
WHEREAS, the Board of Directors of the Company consisting of all
members other than those who are disqualified by Japanese law from participating
in any proceedings of the Board of Directors with respect to the transactions
contemplated by this Agreement, who currently are Messrs. XxXxx, Xxx Xxxxx and
Sumihiro (the "Disinterested Directors") has considered and acted upon a
proposal received from Purchaser, which is a wholly owned subsidiary of XXXX and
an entity controlled and beneficially owned, directly and indirectly, by the
principal shareholders of the Company (the "Principal Shareholders"), to acquire
from all shareholders of the Company (the "Shareholders") all the outstanding
shares of Common Stock, no par value of the Company (the "Company Common
Stock"), and all the outstanding American Depositary Shares, each representing
one-half of one share of Company Common Stock (the "ADSs" and, together with the
Company Common Stock, the "Shares");
WHEREAS, the Principal Shareholders have advised the Board of Directors
that, in connection with the acquisition of the Shares, Purchaser proposes first
to conduct a tender offer (the "Offer") for all of the Shares as described
herein and, after consummation of the Offer, to take all steps necessary to
effect a merger (the "Merger") of the Company with and into Purchaser, with
Purchaser as the surviving entity (the "Surviving Corporation"), subject to the
negotiation of a definitive agreement providing for the Merger and approval of
the Merger by the Shareholders and the shareholders of Purchaser;
WHEREAS, the Principal Shareholders have informed Purchaser that they
will not tender their Shares in response to the Offer (other than a portion of
the Shares owned by one of the charitable foundations established by certain of
the Principal Shareholders ("Foundation Tendered Shares")) but such Principal
Shareholders will transfer substantially all of their Shares, including any
Shares not tendered by such charitable foundation in response to the Offer
("Offer Non-Tendered Shares"), to XXXX contemporaneously with the consummation
of the Offer and, no later than immediately prior to the effectiveness of the
Merger, the Principal Shareholders will transfer to XXXX the Shares that were
not transferred to XXXX contemporaneously with the consummation of the Offer
(the "Merger Non-Tendered Shares" and, together with the Offer Non-Tendered
Shares, the "Non-Tendered Shares");
WHEREAS, having received the advice of financial and legal advisors,
and following negotiation of the terms of the Offer and this Agreement, the
Board of Directors consisting of the Disinterested Directors has unanimously
determined that the Offer is fair to, and in the best interests of, the holders
of the Shares, other than holders of Non-Tendered Shares and Foundation Tendered
Shares (the "Public Shareholders");
WHEREAS, the Board of Directors consisting of the Disinterested
Directors has approved this Agreement and the Offer, and has adopted resolutions
approving this Agreement and
5
recommending that the Public Shareholders accept the Offer and tender their
Shares in response to the Offer;
WHEREAS, the Board of Directors of Purchaser has approved the Offer,
upon the terms and subject to the conditions set forth in this Agreement and has
adopted resolutions approving this Agreement;
WHEREAS, the general partner of XXXX, the sole shareholder of
Purchaser, has approved this Agreement and the Offer; and
WHEREAS, except as otherwise contemplated by this Agreement, the
Principal Shareholders have agreed, and XXXX has agreed that after transfer to
it of any Non-Tendered Shares by the Principal Shareholders, not to dispose of
or otherwise transfer any Non-Tendered Shares, and Purchaser has agreed not to
dispose of or otherwise transfer any Shares purchased by it in the Offer
("Purchased Shares"), in either case prior to consummation of the Merger, and
the Principal Shareholders have agreed, and the Principal Shareholders have
agreed to cause XXXX and Purchaser, as the case may be, to vote, and the
Principal Shareholders, XXXX and Purchaser have agreed to vote the Merger
Non-Tendered Shares, the Offer Non-Tendered Shares and the Purchased Shares,
respectively, in favor of the Merger on the terms and subject to the conditions
set forth in the Shareholder and Voting Agreement (the "Shareholder Agreement")
in the form of Exhibit A attached hereto, which Shareholder Agreement is being
executed and delivered simultaneously with the execution and delivery of this
Agreement;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, the parties hereto
agree as follows:
ARTICLE I
THE OFFER
1.1 THE OFFER.
(a) Provided that this Agreement shall not have been terminated in
accordance with Article VII, then (i) on or after the date of execution of this
Agreement, but in any event not later than November 15, 1999, Purchaser and the
Company shall publicly announce the Offer and (ii) Purchaser shall, as promptly
as possible, but in no event later than five Business Days (for purposes of this
Agreement, such term having the meaning given the Rule 14d-1 under the
Securities Exchange Act of 1934 (the "Exchange Act")) after the date of such
public announcement, commence (within the meaning of Rule 14d-2 under the
Exchange Act) the Offer to purchase (a) all of the issued and outstanding shares
of the Company Common Stock at a price per share of (Y)1490, in cash (the
"Company Common Stock Offer Price") and (b) all of the issued and outstanding
ADSs, at a yen price per ADS equal to one-half of the Company Common Stock Offer
Price (the "ADS Offer Price" and, together with the Company Common Stock Offer
Price, the "Offer Price"). Payments of the ADS Offer Price will be made in U.S.
dollars by converting the yen price per ADS into U.S. dollars using the noon
buying rate in New York City for cable transfers of yen announced for customs
purposes by the Federal Reserve Bank of New York on the date of settlement of
the Offer in Japan. Purchaser may withhold and deduct amounts from such payments
in accordance with Section 1.1(c). The Offer in Japan shall be made pursuant to
the Registration Statement (as defined below), the Public Notice (as defined
below), the Explanatory Statement (as defined
2
6
below) and the Application Form (as defined below) containing the terms and
conditions set forth in this Agreement. The Offer in the United States shall be
made pursuant to an Offer to Purchase (the "Offer to Purchase") and related
Letter of Transmittal (the "Letter of Transmittal") containing terms and
conditions consistent with this Agreement. The obligation of Purchaser to
commence the Offer, conduct and consummate the Offer and accept for payment, and
pay for, any Shares properly tendered and not withdrawn pursuant to the Offer
shall not be subject to any conditions other than changes in or interpretations
of, applicable laws or any court order or injunction that have the effect of
making the Offer unlawful. Purchaser expressly reserves the right, subject to
compliance with the Exchange Act, the Securities and Exchange Law of Japan, as
amended (the "SEL"), the Securities and Exchange Law Enforcement Order, as
amended (the "Enforcement Order"), the Ministerial Ordinance (the "Ministerial
Ordinance") issued by the Japanese Ministry of Finance (the "MOF"), and the
Commercial Code of Japan relating to joint stock corporations and certain
related legislation (the "Commercial Code" and collectively with the SEL, the
Enforcement Order, and the Ministerial Ordinance, the "Applicable Japanese
Laws"), to modify the terms of the Offer. In no event shall Purchaser amend or
modify the terms of the Offer to (i) reduce the number of Shares subject to the
Offer, (ii) reduce the Offer Price, (iii) change the form of consideration
payable in the Offer or (iv) amend, alter, add or waive any term of the Offer in
any manner adverse to the holders of the Shares. Purchaser shall as soon as
practicable after the expiration date of the Offer, which is expected to be no
later than six trading days after the expiration date in Japan, accept for
payment, and pay for, all Shares validly tendered and not withdrawn pursuant to
the Offer.
(b) On the date of commencement of the Offer in Japan, Purchaser shall
make Public Notice in the Nihon Keizai Shimbun and Asahi Shimbun (the "Public
Notice"), shall file the Tender Offer Registration Statement (the "Registration
Statement") with the Director of the Kanto Local Finance Bureau ("DKLFB") and
shall make available in Japan the Tender Offer Application Form (the
"Application Form") and the Explanatory Statement (the "Explanatory Statement"
and, together with the Public Notice, the Registration Statement and the
Application Form, the "Domestic Offer Documents"). On the date of commencement
of the Offer in the United States, Purchaser shall file with the Securities and
Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1, as
supplemented or amended from time to time (the "Schedule 14D-1"), and Schedule
13E-3, as supplemented or amended from time to time (the "Schedule 13E-3"), with
respect to the Offer, which shall contain the Offer to Purchase and the Letter
of Transmittal, summary advertisement and any other ancillary documents and
instruments pursuant to which the Offer will be made (the Schedule 14D-1, the
Schedule 13E-3 and the documents included therein pursuant to which the Offer
will be made, together with any supplements or amendments thereto, the "Foreign
Offer Documents"). The "Domestic Offer Documents" and the "Foreign Offer
Documents" are collectively referred to herein as the "Offer Documents."
Purchaser agrees to take all necessary steps to cause the Domestic Offer
Documents and any related documents to be filed with the appropriate agencies or
authorities as required by the Applicable Japanese Laws or any other applicable
laws of Japan. Purchaser agrees to take all steps necessary to cause the
Schedule 14D-1 and Schedule 13E-3 to be filed with the SEC and the Foreign Offer
Documents to be disseminated to holders of Shares, in each case, as and to the
extent required by applicable U.S. Federal securities laws. The Company and its
counsel, as well as the Board of Directors consisting of the Disinterested
Directors and their counsel, shall be given reasonable opportunity to review and
comment upon the Offer Documents prior to their filing with the DKLFB and the
SEC and prior to dissemination to the Shareholders. Purchaser shall consider all
comments in good faith. Purchaser agrees to provide the Company, the Board of
Directors consisting of the Disinterested Directors and
3
7
their counsel any comments Purchaser may receive from the DKLFB and the SEC or
its staff with respect to the Offer Documents promptly after the receipt of such
comments.
(c) Purchaser shall be entitled to deduct and withhold from the
consideration otherwise payable pursuant to the Offer such amounts as may be
required to be deducted and withheld with respect to the payment of such
consideration under the Income Tax Law and the Law Concerning the Special
Measures Relating to Taxes of Japan, the Internal Revenue Code of 1986, as
amended, or any other tax under any provision of domestic, state, local or
foreign tax law; provided, however, that Purchaser shall promptly pay any
amounts deducted and withheld hereunder to the applicable governmental
authority, shall promptly file all tax returns and reports required to be filed
in respect of such deductions and withholding, and shall promptly provide to the
Company proof of such payment and a copy of all such tax returns and reports.
1.2 COMPANY ACTIONS.
(a) The Company hereby consents to the Offer.
(b) On the date the Domestic Offer Documents are filed with the DKLFB,
the Company shall file the Tender Offer Opinion Statement with the DKLFB. On the
date the Foreign Offer Documents are filed with the SEC, the Company shall file
with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with
respect to the Offer, as supplemented or amended from time to time (the
"Schedule 14D-9"), containing the recommendation of the Board of Directors
consisting of the Disinterested Directors described in Section 3.4 and shall
mail the Schedule 14D-9 to the Shareholders located in the United States. The
Company agrees to take all steps necessary to cause the Schedule 14D-9 to be
filed with the SEC and disseminated to the Shareholders, simultaneously with the
Offer Documents, in each case, as and to the extent required by applicable U.S.
Federal securities laws. Purchaser shall be given reasonable opportunity to
review and comment upon the Tender Offer Opinion Statement and the Schedule
14D-9 prior to its filing with the DKLFB or the SEC or dissemination to the
Shareholders, and the Company shall consider such comments in good faith. The
Company agrees to provide Purchaser and its counsel any comments the Company or
its counsel may receive from the DKLFB or the SEC or its staff with respect to
the Tender Offer Opinion Statement or the Schedule 14D-9 promptly after the
receipt of such comments.
(c) In connection with the Offer, the Company shall cause its transfer
agent to furnish Purchaser promptly with mailing labels containing the names and
addresses of the record holders of Shares as of August 31, 1999, together with
copies of all lists of Shareholders and computer files and all other information
in the Company's possession or control regarding the beneficial owners of
Shares, and shall furnish to Purchaser such information and assistance, as
Purchaser may reasonably request in communicating the Offer to the Shareholders.
ARTICLE II
INTENTION TO MERGE
2.1 INTENTION TO MERGE. Promptly following consummation of the Offer,
Purchaser and the Company agree to take all steps required by law or as may be
otherwise necessary or advisable to effect the Merger, including without
limitation preparing and submitting for approval by their
4
8
respective boards of directors of a definitive merger agreement to be entered
into between the Company and Purchaser (the "Merger Agreement") and convening of
their respective extraordinary general meetings of shareholders for the purpose
of considering the Merger. The obligations of Purchaser and the Company to
effect the Merger will be subject to Applicable Japanese Laws and the approval
of the Merger by the requisite vote of the Shareholders and the shareholders of
Purchaser. The parties acknowledge that, in the Shareholder Agreement,
Purchaser, XXXX and the Principal Shareholders have evidenced their intention to
effect the Merger and have agreed to certain voting and Share transfer
provisions designed to ensure that the Merger will occur.
2.2 PRINCIPAL TERMS OF MERGER. In the Merger, Purchaser will be the
Surviving Corporation and will assume all of the rights and obligations of the
Company in accordance with the laws of Japan. The Merger Agreement shall contain
those provisions which are set forth in the Memorandum Regarding Merger attached
hereto as Exhibit B, as well as provisions dealing with, among other things,
conversion or exchange of shares, issuance of capital stock of Purchaser,
cancellation of capital stock of Purchaser, share exchange ratios, articles of
association, capitalization, directors, officers, employees, insurance and
indemnification coverage for officers and directors, exchange of certificates,
rights of dissenting holders and the like as the parties shall negotiate in good
faith and as shall not be inconsistent with Exhibit B or violate Applicable
Japanese Laws.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Purchaser and XXXX as follows:
3.1 ORGANIZATION. The Company has been duly incorporated and is validly
existing as a corporation under the laws of Japan.
3.2 CAPITALIZATION OF THE COMPANY. As of the date hereof, the
authorized capital stock of the Company consists of 250,400,800 shares of
Company Common Stock. All outstanding shares of capital stock of the Company
have been validly issued, and are fully paid and nonassessable (meaning that no
further sums are payable to the Company on such shares).
3.3 POWER AND AUTHORITY. The Company has full corporate power and
authority to execute and deliver this Agreement and to fulfill its obligations
hereunder. This Agreement has been duly and validly executed and delivered by
the Company.
3.4 BOARD RECOMMENDATIONS. On November 15, 1999, the Board of Directors
consisting of the Disinterested Directors received an opinion of their financial
advisor, Xxxxxxx, Sachs & Co. ("Goldman"), that the Offer Price to be offered to
the Public Shareholders in the Offer is fair from a financial point of view to
such holders. A complete and correct signed copy of such opinion will be
delivered by the Board of Directors to Purchaser for purposes of inclusion in
Offer Documents. At a meeting of the Board of Directors duly called and held on
November 15, 1999, the Board of Directors consisting of the Disinterested
Directors duly, validly and unanimously (i) determined that the Offer is fair
to, and in the best interests of, the Public Shareholders, (ii) approved,
authorized and adopted this Agreement and (iii) resolved to recommend that the
Public Shareholders accept the Offer and tender their Shares in response to the
Offer.
5
9
3.5 CONSENTS AND APPROVALS; NO VIOLATION. The execution and delivery of
this Agreement do not, and the consummation of the transactions contemplated
hereby and the performance by the Company of its obligations hereunder will not:
(a) conflict with or violate any provision of the Company's Articles of
Association, board of directors' regulations or share handling regulations; or
(b) require on the part of the Company any consent, approval, order,
authorization or permit of, or registration, filing or notification to, any
Governmental Authority (as hereinafter defined), except for (i) filing of the
Tender Offer Opinion Statement with the DKLFB, (ii) the exemptive relief and
no-action position obtained from the SEC in that certain letter dated November
4, 1999, from the SEC, (iii) the filing with the SEC of such reports under the
Exchange Act as may be required in connection with this Agreement (including,
without limitation, the Schedule 14D-9), and the transactions contemplated
hereby, (iv) the filing of a current report on the execution of this Agreement
and an amendment thereto on the execution of the Merger Agreement with the
DKLFB, (v) such additional actions, registrations or filings as would be
required in connection with the Merger and (vi) such additional actions,
registrations or filings which, if not taken or made, would not, singly or in
the aggregate, have a material adverse effect on the condition, financial or
otherwise, the earnings, business affairs or business prospects of the Company
or the consummation of the transactions contemplated by this Agreement.
3.6 INFORMATION SUPPLIED. None of the information supplied or to be
supplied by the Company specifically for use in the Offer Documents will, at the
time filed with the DKLFB or the SEC or as of the respective date mailed to the
Shareholders, 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 the light of the circumstances under which they are
made, not misleading.
3.7 BROKERS AND FINDERS. Except for payments required to be made to
Goldman, the Company will not or has not, directly or indirectly, become
obligated to pay any person or entity any brokerage fee, finder's fee,
investment banking fee or agent's fee as a result of the entering into of this
Agreement or any of the transactions contemplated hereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to the Company and XXXX as follows:
4.1 ORGANIZATION. Purchaser is a company duly incorporated and is
validly existing as a corporation under the laws of Japan. Purchaser is a wholly
owned subsidiary of XXXX.
4.2 POWER AND AUTHORITY. Purchaser has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby on the part of
Purchaser have been duly and validly authorized by its board of directors and
its sole shareholder and no other corporate proceedings on the part of Purchaser
are necessary to authorize
6
10
this Agreement or to consummate the transactions contemplated hereby, subject,
in the case of the Merger, to the authorization, approval, execution and
delivery of the Merger Agreement and the approval of the Merger Agreement and
the Merger by the requisite vote of Purchaser's shareholders. This Agreement has
been duly and validly executed and delivered by Purchaser.
4.3 CONSENT AND APPROVALS; NO VIOLATION. The execution and delivery by
Purchaser of this Agreement does not, and the consummation of the transactions
contemplated hereby and the performance by Purchaser of its obligations
hereunder will not:
(a) conflict with or violate any provision of Purchaser's Articles of
Association, board of directors' regulations or share handling regulations; or
(b) require on the part of Purchaser any consent, approval, order,
authorization or permit of, or registration, filing or notification to, any
Governmental Authority (as hereinafter defined), except for (i) the exemptive
relief and no-action position obtained from the SEC in that certain letter dated
November 4, 1999, from the SEC, (ii) the filing by Purchaser with the SEC of
such reports under the Exchange Act as may be required in connection with this
Agreement (including, without limitation, the Schedule 14D-1 and the Schedule
13E-3), and the transactions contemplated hereby, (iii) the filing by Purchaser
of the Registration Statement with the DKLFB, (iv) the filing of a securities
notification on the approval of the Merger Agreement by the requisite vote of
Purchaser's shareholders with the DKLFB, (v) such additional actions,
registrations or filings as would be required in connection with the Merger and
(vi) such additional actions, registrations or filings which, if not taken or
made, would not, singly or in the aggregate, have a material adverse effect on
the condition, financial or otherwise, the earnings, business affairs or
business prospects of Purchaser or the transactions contemplated by this
Agreement.
4.4 INFORMATION SUPPLIED. None of the information supplied or to be
supplied by Purchaser or the Principal Shareholders specifically for use in the
Offer Documents will, at the time filed with the DKLFB or the SEC or as of the
respective date mailed to the Shareholders, contain any untrue statement of a
material fact or will omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances in which they are made, not misleading.
4.5 PURCHASER'S OPERATIONS. Purchaser was incorporated solely for the
purpose of engaging in the transactions contemplated hereby and has not engaged
in any business activities or conducted any operations other than to facilitate
the transactions contemplated hereby.
4.6 CAPITALIZATION. All of the capital stock of Purchaser has been duly
and validly issued and is held of record and owned beneficially solely by XXXX.
4.7 FINANCING. Purchaser has, or will have as of the date of
consummation of the Offer, all funds necessary to purchase all Shares accepted
for payment in the Offer.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF XXXX
XXXX represents and warrants to the Company and Purchaser as
follows:
7
11
5.1 ORGANIZATION. XXXX is a U.S. limited partnership duly organized,
validly existing and in good standing under the laws of Nevada.
5.2 AUTHORITY RELATIVE TO THIS AGREEMENT. XXXX has all requisite
limited partnership power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby on the part of XXXX have been duly and validly authorized by the general
partner of XXXX and no other limited partnership proceedings on the part of XXXX
are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by XXXX.
5.3 CONSENT AND APPROVALS; NO VIOLATION. The execution and delivery of
this Agreement does not, and the consummation of the transactions contemplated
hereby and the performance by XXXX of its obligations hereunder will not:
(a) conflict with any provision of the certificate of formation of
XXXX; or
(b) require on the part of XXXX any consent, approval, order,
authorization or permit of, or registration, filing or notification to, any
Governmental Authority or any third party.
5.4 ALAP'S OPERATIONS. XXXX was formed solely for the purpose of
engaging in the transactions contemplated hereby and has not engaged in any
business activities or conducted any operations other than to facilitate the
transactions contemplated hereby.
5.5 CAPITALIZATION. All of the partnership interests of XXXX have been
duly and validly issued and are held of record and owned beneficially solely by
the Principal Shareholders.
5.6 FINANCING. Purchaser has, or will have as of the date of
consummation of the Offer, all funds necessary to purchase all Shares accepted
for payment in the Offer.
ARTICLE VI
COVENANTS
The parties hereto agree as follows:
6.1 CONSENTS AND APPROVALS. The parties hereto shall cooperate with
each other and use commercially reasonable efforts to promptly prepare and file
all necessary documentation, to effect all applications, notices, petitions and
filings, to obtain as promptly as practicable all permits, consents, approvals
and authorizations of all third parties ("Third Party Approvals") and Japanese,
U.S. Federal, state and local governmental agencies and authorities
("Governmental Authority") which are necessary or advisable to consummate the
transactions contemplated by this Agreement ("Governmental Approvals" and,
together with Third Party Approvals, "Approvals"), and to comply with the terms
and conditions of all such Approvals.
6.2 ADDITIONAL ACTIONS. Subject to the terms and conditions of this
Agreement, the parties hereto agree to use all commercially reasonable efforts
to take, or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and
8
12
regulations, or to remove any injunctions or other impediments or delays, to
consummate and make effective the transactions contemplated by this Agreement.
6.3 INSURANCE.
(a) The Company shall (i) maintain, without amendment or modification,
for a period of not less than six years from consummation of the Offer the
Company's current directors' and officers' insurance and indemnification policy
to the extent that it provides coverage for events occurring prior to
consummation of the Offer (the "D&O Insurance"), for all persons who are
directors or officers of the Company on the date of this Agreement (the "Insured
Parties") or (ii) cause to be provided coverage no less advantageous to the
Insured Parties than the D&O Insurance, in each case so long as the annual
premium therefor would not be in excess of 150% of the last annual premium paid
for the D&O Insurance prior to the date of this Agreement (such 150% amount, the
"Maximum Premium"). If the existing D&O Insurance expires, is terminated or
canceled during such six-year period, the Company will use all reasonable
efforts to cause to be obtained as much D&O Insurance as can be obtained for the
remainder of such period for an annualized premium not in excess of the Maximum
Premium.
(b) The provisions of this Section 6.3 shall survive the consummation
of the Offer and are intended to be for the benefit of, and will be enforceable
by, each Insured Party, his or her heirs and his or her representatives and are
in addition to, and not in substitution for any other rights which any such
person may have by contract or otherwise. The Company shall pay the reasonable
expenses, including reasonable attorneys' fees, that may be incurred by any
Insured Parties in enforcing rights to which such Insured Parties are entitled
under the provisions of this Section 6.3.
ARTICLE VII
TERMINATION
7.1 TERMINATION. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement and the Offer may be terminated:
(a) By Mutual Consent. By mutual consent of Purchaser or XXXX on the
one hand and the Board of Directors consisting of the Disinterested Directors on
the other.
(b) By Purchaser or the Company. By Purchaser or the Company, if any
governmental entity enacts, issues, promulgates, enforces or enters any statute,
rule, obligation, injunction or other order which is in effect and has the
effect of making the Offer illegal or prohibits Purchaser from buying Shares in
the Offer or otherwise prohibits, directly or indirectly, consummation of the
Offer or if the conditions to consummation of the Offer cannot be satisfied;
provided, however, that the right to terminate this Agreement under this Section
7.1(b) shall not be available to any party whose failure to fulfill any
obligation under this Agreement has been the cause of, or resulted directly or
indirectly in, the failure of such condition to occur.
(c) By the Company. By the Company (acting through the Board of
Directors consisting of the Disinterested Directors), if Purchaser (A) fails to
commence the Offer within five Business Days of the public announcement by
Purchaser and the Company of the Offer or (B) fails to pay for Shares pursuant
to the Offer in accordance with Section 1.1(a) hereof.
9
13
7.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement as provided in Section 7.1 above, written notice thereof shall
forthwith be given to the other parties specifying the provision hereof pursuant
to which such termination is made, and this Agreement shall forthwith become
null and void and there shall be no liability or obligation on the part of the
parties hereto or their respective officers, directors or employees, except to
the extent arising under applicable law and for willful breach hereof.
ARTICLE VIII
GENERAL PROVISIONS
8.1 AMENDMENT AND MODIFICATION. Subject to applicable law and subject
to Section 8.11, this Agreement may be amended, modified and supplemented in any
and all respects by written agreement of the parties hereto.
8.2 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the
representations and warranties in this Agreement shall survive the date upon
which the Offer is consummated. This Section 8.2 shall not limit any covenant or
agreement of the parties hereto which by its terms contemplates performance
after the date of consummation of the Offer.
8.3 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given upon personal delivery, facsimile transmission
(which is confirmed), telex or delivery by an overnight express courier service
(delivery, postage or freight charges prepaid), or on the fourth day following
deposit in the mail (if sent by registered or certified mail, return receipt
requested, delivery, postage or freight charges prepaid), addressed to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) If to the Company or the Board of Directors
consisting of the Disinterested Directors:
Amway Japan Limited
0-0, Xxxxxxx-xxx
Xxxxxxx-xx, Xxxxx 000-0000, Xxxxx
Attention: Xxxxx X. Xxxxx
Telephone: (81) (0) 0000-0000
Facsimile: (81) (0) 0000-0000
E-mail: xxx_xxxxx@Xxxxx.xxx
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxxxxxx@xxxx.xxx
10
14
(b) If to XXXX or Purchaser:
XXXX Hold Co., Ltd.
0000 Xxxxxx Xxxxxx Xxxx
Xxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxx_xxxxxxx@xxxxx.xxx
with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxxxxx@xxxxxxxx.xxx
8.4 DEFINITIONS; INTERPRETATION. When a reference is made in this
Agreement to an Article, Section or Exhibit, such reference shall be to an
Article, Section or Exhibit to this Agreement unless otherwise indicated. The
words "include," "includes" and "including" when used herein shall be deemed in
each case to be followed by the words "without limitation." The table of
contents and headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
8.5 SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court in Japan having
jurisdiction, this being in addition to any other remedy to which they are
entitled at law or in equity.
8.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
8.7 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES. Except for that
certain Confidentiality Agreement, dated as of October 12, 1999, between the
Company and XXXX, and the Shareholder Agreement, this Agreement (including the
documents and the instruments referred to herein and therein) (a) constitutes
the entire agreement and supersedes all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof, and (b) with the exception of Section 6.3, is not intended to confer
upon any person other than the parties hereto any rights or remedies hereunder.
11
15
8.8 SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void, unenforceable or against its regulatory policy, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
8.9 GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of Japan and the parties hereby irrevocably submit to
the non-exclusive jurisdiction of the Tokyo District Court.
8.10 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any party hereto
(whether by operation of law or otherwise) without the prior written consent of
the other parties. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by, the parties and
their respective successors and assigns.
8.11 EXTENSION; WAIVER. Subject to Section 8.12, a party hereto, by
action taken or authorized by, in the case of the Company, the Board of
Directors consisting of the Disinterested Directors, in the case of Purchaser,
its board of directors or, in the case of XXXX, a partner, member or authorized
officer, may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of any other party hereto,
(ii) waive any inaccuracies in the representations and warranties of any other
party hereto contained herein or in any document delivered pursuant hereto or
(iii) subject to Section 8.1, waive compliance with any of the agreements or
conditions of any other party hereto contained herein. Any agreement on the part
of a party hereto to any such extension or waiver shall be valid only if set
forth in a written instrument signed on behalf of such party. The failure of a
party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of those rights.
8.12 PROCEDURE FOR TERMINATION, AMENDMENT, EXTENSION OR WAIVER. A
termination of this Agreement pursuant to Section 7.1, an amendment of this
Agreement pursuant to Section 8.1 or an extension or waiver pursuant to Section
8.11 or other action required or permitted to be taken pursuant to this
Agreement shall, in order to be effective, require in the case of Purchaser,
action by its board of directors or a duly authorized designee thereof, require
in the case of the Company, action by the Board of Directors consisting of the
Disinterested Directors or a duly authorized designee thereof, or require in the
case of XXXX, action by a partner, member or authorized officer; provided,
however, the affirmative vote of a majority of the Board of Directors consisting
of the Disinterested Directors shall be required in order for the Company or the
Board of Directors to act to (i) amend or terminate this Agreement, (ii)
exercise or waive any of the Company's rights or remedies under this Agreement,
(iii) extend the time for performance of Purchaser's or ALAP's respective
obligations under this Agreement or (iv) take any action to amend or otherwise
modify the Company's Articles of Association as in effect on the date hereof.
8.13 ANNOUNCEMENTS. None of the Company, Purchaser or XXXX shall make
any public announcement of the terms or existence of this Agreement without the
consent of the other parties hereto, unless required by law.
12
16
IN WITNESS WHEREOF, the Company, XXXX and Purchaser have caused this
Agreement to be signed by their respective officers thereunto duly authorized as
of the date first written above.
AMWAY JAPAN LIMITED: XXXX HOLD CO., LTD.:
By: AP New Co., LLC, as
general partner
By:/s/Xxxxxxx X. Xxxxxxx By:/s/Xxxxx X. Xxxxxxx
--------------------------- ---------------------------
Name:Xxxxxxx X. Xxxxxxx Name:Xxxxx X. Xxxxxxx
Title:President and Representative Title:Manager
Director
N.A.J. CO., LTD.
By:/s/Xxxx X. Xxxxxxxx
---------------------------
Name:Xxxx X. Xxxxxxxx
Title:Director
17
EXHIBIT A
---------
SHAREHOLDER AND VOTING AGREEMENT
by and among
XXXX HOLD CO., LTD.,
N.A.J. CO., LTD.
and
CERTAIN SHAREHOLDERS OF AMWAY JAPAN LIMITED
dated as of
November 15, 1999
18
TABLE OF CONTENTS
PAGE
----
I. ACTIONS AGREED TO................................................................................-2-
1.1 Agreement to Take Action..................................................-2-
1.2 Negotiation of Merger Agreement...........................................-2-
II. REPRESENTATIONS AND WARRANTIES..................................................................-2-
2.1 Representations and Warranties of the Principal Shareholders..............-2-
2.2 Representations and Warranties of Parent..................................-3-
2.3 Representations and Warranties of Purchaser...............................-3-
III. CERTAIN COVENANTS OF PRINCIPAL SHAREHOLDERS....................................................-4-
3.1 Restriction on Transfer of Principal Shares;
Proxies and Noninterference...............................................-4-
IV. CERTAIN COVENANTS OF PARENT AND PURCHASER.......................................................-4-
4.1 Restriction on Transfer of Non-Tendered Shares,
Proxies and Noninterference...............................................-4-
4.2 Cooperation...............................................................-5-
V. MISCELLANEOUS....................................................................................-5-
5.1 Amendment; Termination....................................................-5-
5.2 Extension; Waiver.........................................................-5-
5.3 Governing Law.............................................................-5-
5.4 Notices...................................................................-5-
5.5 Assignment................................................................-6-
5.6 Further Assurances........................................................-6-
5.7 Enforcement...............................................................-6-
5.8 Severability..............................................................-6-
5.9 Counterparts..............................................................-6-
5.10 Headings..................................................................-7-
5.11 Third Party Beneficiary...................................................-7-
-i-
19
SHAREHOLDER AND VOTING AGREEMENT
This SHAREHOLDER AND VOTING AGREEMENT, dated as of November 15, 1999
(this "Agreement"), is made and entered into among XXXX Hold Co., Ltd., a Nevada
limited partnership ("Parent"), N.A.J. Co., Ltd., a joint stock corporation
organized under the laws of Japan and wholly owned subsidiary of Parent
("Purchaser"), and each of the shareholders whose name is set forth on Schedule
A hereto (each, a "Principal Shareholder" and, collectively, the "Principal
Shareholders"). Except as otherwise defined herein, terms used herein with
initial capital letters have the respective meanings ascribed thereto in the
Tender Offer Agreement (as defined below).
RECITALS:
WHEREAS, Parent, Purchaser and Amway Japan Limited, a joint stock
corporation organized under the laws of Japan (the "Company"), propose to enter
into a Tender Offer Agreement, dated as of November 15, 1999 (the "Tender Offer
Agreement"), pursuant to which Purchaser will conduct a tender offer (the
"Offer") for all of the Company's Common Stock and ADSs;
WHEREAS, the Tender Offer Agreement contemplates that, following
consummation of the Offer, the Company and Purchaser will enter into a merger
agreement (the "Merger Agreement") pursuant to which the Company will merge with
and into Purchaser (the "Merger");
WHEREAS, as of the date hereof, each Principal Shareholder beneficially
owns and is entitled to dispose of (or to direct the disposition of) and to vote
(or to direct the voting of) the number of shares, no par value, of the Company,
set forth opposite such Principal Shareholder's name on Schedule A hereto
(collectively, the "Principal Shares");
WHEREAS, the Principal Shareholders have informed Purchaser that they
will not tender their Principal Shares in response to the Offer (other than a
portion of the Principal Shares owned by one of the charitable foundations
established by certain of the Principal Shareholders ("Foundation Tendered
Shares")), but the Principal Shareholders will transfer that portion of their
Principal Shares, as indicated on Schedule A, including any Principal Shares not
tendered by the charitable foundation in response to the Offer ("Offer
Non-Tendered Shares"), to Parent or Purchaser contemporaneously with the
consummation of the Offer and, no later than immediately prior to the
effectiveness of the Merger, the Principal Shareholders will transfer to Parent
the Shares that were not transferred to Parent or Purchaser contemporaneously
with the consummation of the Offer (the "Merger Non-Tendered Shares" and,
together with the Offer Non-Tendered Shares, the "Non-Tendered Shares"). It
being understood that Parent may transfer any Non-Tendered Shares to Purchaser;
WHEREAS, following the Offer and the transfer of the Offer Non-Tendered
Shares to Parent, Parent will beneficially own and be entitled to dispose of (or
to direct the disposition of)
20
and to vote Shares representing in excess of two-thirds of the outstanding
Shares of the Company;
WHEREAS, all or a portion of the funds required to pay the Offer Price
will be borrowed by Purchaser pursuant to a Credit Agreement among Purchaser,
Parent, Apple Hold Co., L.P., New AAP Limited, the lenders parties thereto (the
"Lender Parties") and Xxxxxx Guaranty Trust Company of New York, Tokyo Branch,
as agent (the "Agent", and together with the Lender Parties, the "Banks");
WHEREAS, as a condition and inducement to their willingness to enter
into the Tender Offer Agreement, the Company and Purchaser have requested, and
as a condition to the agreement of the Banks to fund the Offer Price, the Banks
have requested, that Parent agree, and Parent has agreed, to enter into this
Agreement; and
WHEREAS, as a condition and inducement to their willingness to enter
into the Tender Offer Agreement, the Parent and Purchaser have requested, and as
a condition to the agreement of the Banks to fund the Offer Price, the Banks
have requested, that each Principal Shareholder agree, and each Principal
Shareholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and covenants contained in this Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
I. ACTIONS AGREED TO
1.1 AGREEMENT TO TAKE ACTION. Each Principal Shareholder agrees to take
all commercially reasonable efforts to cause the Company and Purchaser to enter
into the Merger Agreement and to effect the Merger. Purchaser agrees, as soon as
practicable following consummation of the Offer and following the execution and
delivery of the Merger Agreement, to take all steps necessary to duly call, give
notice of, convene and hold a meeting of its shareholders for approval or
adoption of the Merger Agreement and the Merger. In furtherance thereof, at any
meeting of the shareholders of the Company or Purchaser called to consider and
vote upon the adoption or approval of the Merger Agreement and the Merger (and
at any and all postponements and adjournments thereof), each Principal
Shareholder will vote, and the Principal Shareholders will cause Parent to vote,
Parent hereby agrees to vote, Parent will cause Purchaser to vote, and Purchaser
hereby agrees to vote, all of the Merger Non-Tendered Shares and the Offer
Non-Tendered Shares, as the case may be, and all shares of capital stock of
Purchaser, in favor of the adoption or approval of the Merger Agreement and the
Merger and in favor of any other matter necessary or appropriate for the
consummation of the transactions contemplated by the Merger Agreement that is
considered and voted upon at any such shareholders' meeting.
1.2 NEGOTIATION OF MERGER AGREEMENT. The parties agree to negotiate the
terms of the Merger Agreement in good faith.
21
II. REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL SHAREHOLDERS. Each
Principal Shareholder, severally and not jointly, represents and warrants to
Parent, Purchaser and the Banks as of the date hereof and as of the closing date
for the Merger (the "Closing Date"), as follows:
(a) EXECUTION AND DELIVERY. Such Principal Shareholder has all
requisite power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. In the case of each Principal Shareholder that
is not a natural person, the execution and delivery of this Agreement by such
Principal Shareholder and the consummation by such Principal Shareholder of the
transactions contemplated hereby have been duly authorized by all necessary
action, if any, on the part of such Principal Shareholder. This Agreement has
been duly and validly executed and delivered by such Principal Shareholder.
(b) OWNERSHIP OF SHARES. Such Principal Shareholder is the
sole holder of record and beneficial owner of such number of Principal Shares
set forth opposite its, his or her name on SCHEDULE A and holds good, valid and
marketable title to such Principal Shares and will hold such title at the date
or dates such Principal Shareholders transfer their Principal Shares to Parent.
2.2 REPRESENTATIONS AND WARRANTIES OF PARENT. Parent represents and
warrants to Purchaser and the Principal Shareholders, as of the date hereof and
as of the Closing Date, as follows:
(a) ORGANIZATION. Parent is a U.S. limited partnership duly
organized, validly existing and in good standing under the laws of Nevada.
(b) AUTHORITY RELATIVE TO THIS AGREEMENT. Parent has all
requisite limited partnership power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby on the part of Parent have been duly and validly authorized
by the general partner of Parent and no other limited partnership proceedings on
the part of Parent are necessary to authorize this Agreement or to consummate
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Parent.
(c) CONSENT AND APPROVALS; NO VIOLATION. The execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated hereby and the performance by Parent of its obligations hereunder
will not:
(i) conflict with any provision of the certificate
of formation of Parent; or
(ii) require on the part of Parent any consent,
approval, order, authorization or permit of, or registration, filing or
notification to, any Governmental Authority or any third party.
22
2.3 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents
and warrants to Parent and the Principal Shareholders, as of the date hereof and
as of the Closing Date, as follows:
(a) ORGANIZATION. Purchaser is a company duly incorporated and
is validly existing as a corporation under the laws of Japan.
(b) POWER AND AUTHORITY. Purchaser has full corporate power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby on the part of
Purchaser have been duly and validly authorized by its board of directors and
its sole shareholder and no other corporate proceedings on the part of Purchaser
are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby, subject, in the case of the Merger, to the authorization,
approval, execution and delivery of the Merger Agreement and the approval of the
Merger Agreement and the Merger by the requisite vote of Purchaser's
shareholders. This Agreement has been duly and validly executed and delivered by
Purchaser.
(c) CONSENT AND APPROVALS; NO VIOLATION. The execution and
delivery by Purchaser of this Agreement does not, and the consummation of the
transactions contemplated hereby and the performance by Purchaser of its
obligations hereunder will not:
(i) conflict with or violate any provision of
Purchaser's Articles of Incorporation; or
(ii) require on the part of Purchaser any consent,
approval, order, authorization or permit of, or registration, filing or
notification to, any Governmental Authority, except for (i) the exemptive relief
and no-action position obtained from the SEC in that certain letter dated
November 4, 1999, from the SEC in connection with the Offer, (ii) the filing by
Purchaser with the SEC of such reports under the Exchange Act as may be required
in connection with the Tender Offer Agreement (including, without limitation,
the Schedule 14D-1 and the Schedule 13E-3), and the transactions contemplated
thereby, (iii) the filing by Purchaser of the Registration Statement with the
DKLFB in connection with the Offer, (iv) the filing of a securities notification
on the approval of the Merger Agreement by the requisite vote of Purchaser's
shareholders with the DKLFB, (v) such additional actions, registrations or
filings as would be required in connection with the Merger and (vi) such
additional actions, registrations or filings which, if not taken or made, would
not, singly or in the aggregate, have a material adverse effect on the
condition, financial or otherwise, the earnings, business affairs or business
prospects of Purchaser or the transactions contemplated by this Agreement.
III. CERTAIN COVENANTS OF PRINCIPAL SHAREHOLDERS
3.1 RESTRICTION ON TRANSFER OF PRINCIPAL SHARES; PROXIES AND
NONINTERFERENCE. Each Principal Shareholder hereby agrees that it will not,
directly or indirectly: (A) except as otherwise contemplated by this Agreement
or the Tender Offer Agreement, offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of the
23
Principal Shares or any other Shares it may at anytime own (collectively,
"Company Shares"); (B) except pursuant to the terms of this Agreement, grant any
proxies or powers of attorney, deposit any Company Shares into a voting trust or
enter into a voting agreement with respect to any Company Shares; or (C) take
any action that would reasonably be expected to make any representation or
warranty contained herein untrue or incorrect or have the effect of impairing
the ability of such Principal Shareholder to perform its obligations under this
Agreement or preventing or delaying the consummation of any of the transactions
contemplated hereby.
IV. CERTAIN COVENANTS OF PARENT AND PURCHASER
4.1 RESTRICTION ON TRANSFER OF NON-TENDERED SHARES, PROXIES AND
NONINTERFERENCE. Each of Parent and Purchaser hereby agrees that it will not,
directly or indirectly: (A) except as otherwise contemplated by this Agreement
or the Tender Offer Agreement, offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of the Non-Tendered Shares or any other Shares it
may at anytime own (collectively, "Parent Shares" or "Purchaser Shares"); (B)
except pursuant to the terms of this Agreement, grant any proxies or powers of
attorney, deposit any Parent Shares or Purchaser Shares, as the case may be,
into a voting trust or enter into a voting agreement with respect to any Parent
Shares or Purchaser Shares, as the case may be; or (C) take any action that
would reasonably be expected to make any representation or warranty contained
herein untrue or incorrect or have the effect of impairing the ability of Parent
or Purchaser to perform its obligations under this Agreement or preventing or
delaying the consummation of any of the transactions contemplated hereby.
4.2 COOPERATION. Each of Parent and Purchaser will cooperate fully with
the parties hereto in connection with their respective reasonable best efforts
to fulfill the conditions to (a) the Offer set forth in Article I to the Tender
Offer Agreement and (b) the Merger set forth in Article II of the Tender Offer
Agreement.
V. MISCELLANEOUS
5.1 AMENDMENT; TERMINATION. This Agreement may not be amended except by
an instrument in writing signed on behalf of each of the parties hereto. This
Agreement will terminate upon the date the Tender Offer Agreement is terminated
in accordance with its terms or, if the Offer is consummated, upon the date the
Merger Agreement is terminated in accordance with its terms. In the event of
termination of this Agreement pursuant to this Section 5.1, this Agreement,
except as to these transactions already consummated, will become null and void
and of no effect with no liability on the part of any party hereto; provided,
however, that no such termination will relieve any party hereto from any
liability for any breach of this Agreement arising under applicable law.
5.2 EXTENSION; WAIVER. Any agreement on the part of a party to waive
any provision of this Agreement, or to extend the time for any performance
hereunder, will be valid only if set forth in an instrument in writing signed on
behalf of such party. The failure of any party to this Agreement to assert any
of its rights under this Agreement or otherwise will not constitute a waiver of
such rights.
24
5.3 GOVERNING LAW. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York and the parties hereby
irrevocably submit to the non-exclusive jurisdiction of such courts of competent
jurisdiction of the State of New York in New York County, the City of New York
or in the United States District Court for the Southern District of New York.
5.4 NOTICES. All notices and other communications hereunder shall
comply with the notice provisions of the Tender Offer Agreement. In addition,
all notices to the Principal Shareholders shall be sent to the following
parties:
Amway Corporation
0000 Xxxxxx Xxxxxx Xxxx
Xxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxx_xxxxxxx@xxxxx.xxx
with copies to (for those Principal Shareholders listed on
SCHEDULE A as the "XxXxx Family"):
Xxxxxxx Xxxxxx & Xxxxx
Worldwide Plaza
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxxx@xxxxxxx.xxx
with copies to (for those Principal Shareholders listed on
SCHEDULE A as the "Xxx Xxxxx Family" and "Other"):
Xxxxx & Xxxxxxx
Columbia Square
000 Xxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx-Xxx Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxxxxx@xxxxx.xxx
5.5 ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any party hereto (whether by
operation of law or otherwise) without the prior written consent of the other
parties. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by, the parties and their respective
successors and assigns.
25
5.6 FURTHER ASSURANCES. Each of the Principal Shareholders and Parent
will execute and deliver such other documents and instruments and take such
further actions as may be necessary or appropriate or as may be reasonably
requested by Purchaser, in order to ensure that Purchaser receives the full
benefit of this Agreement.
5.7 ENFORCEMENT. Irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, the parties will be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement, this
being in addition to any other remedy to which they are entitled at law or in
equity.
5.8 SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void, unenforceable or against its regulatory policy, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
5.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same instrument and
will become effective when one or more counterparts have been signed by any
party and delivered to the other parties.
5.10 HEADINGS. The descriptive headings contained herein are for
convenience and reference only and will not affect in any way the meaning or
interpretation of this Agreement.
5.11 THIRD PARTY BENEFICIARY. Except for the Banks, this Agreement is
not intended to confer upon any person other than the parties hereto any rights
or remedies hereunder. The Banks shall have the same rights and remedies
available to the parties to this Agreement as if the Banks were a party hereto.
[Remainder of page intentionally left blank]
26
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed as of the day and year first written above.
XXXX HOLD CO., LTD:
By: AP New Co., LLC, as general partner
By:
---------------------------
Name:
Title:
N.A.J. CO., LTD.
By:
---------------------------
Name:
Title:
PRINCIPAL SHAREHOLDERS:
XXX XXX XXXXX TRUST
By:
---------------------------
Name:
Title:
JAPAN HCI, INC.
By:
---------------------------
Name:
Title:
XXX AND XXXXX XXX XXXXX FOUNDATION
By:
---------------------------
Name:
Title:
27
Title:
XXXXXXX & XXXXX XXXXX FOUNDATION
By:
---------------------------
Name:
Title:
RDV (AJL) HOLDINGS, INC.
By:
---------------------------
Name:
Title:
HDV (AJL) HOLDINGS, INC.
By:
---------------------------
Name:
Title:
RDV GRIT HOLDINGS, INC.
By:
---------------------------
Name:
Title:
HDV GRIT HOLDINGS, INC.
By:
---------------------------
Name:
Title:
RDV CAPITAL MANAGEMENT, X.X. XX
By: RDV Corporation, as general partner
By:
---------------------------
Name:
Title:
28
XXX XXXXX INSTITUTE
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
XXX XXXXX RESEARCH INSTITUTE
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
XXX XXXXX EDUCATION INSTITUTE
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
29
SCHEDULE A
---------------------------------------------------------------------------------------
NUMBER OF MERGER NON- FOUNDATION
SHAREHOLDER PRINCIPAL TENDERED TENDERED
SHARES OWNED SHARES SHARES
---------------------------------------------------------------------------------------
X. XXX XXXXX FAMILY
Xxx Xxx Xxxxx Trust *27,614,311
Japan HCI, Inc. 25,787,300
Xxx and Xxxxx Xxx Xxxxx Foundation 1,987,000
II. XXXXX FAMILY
Xxxxxxx & Xxxxx XxXxx Foundation 2,070,300 550,000
RDV (AJL) Holdings, Inc. 24,868,000 4,500,000
HDV (AJL) Holdings, Inc. 20,510,000
RDV Grit Holdings, Inc. 2,396,800
HDV Grit Holdings, Inc. *1,550,011
RDV Capital Management, X.X. XX 2,296,000
III. OTHER
Xxx Xxxxx Institute 536,000
Xxx Xxxxx Research Institute 48,600
Xxx Xxxxx Education Institute 48,700
TOTAL 110,263,022 4,500,000 550,000
---------------------------------------------------------------------------------------
* Includes 11 shares that are held in ADS form at Michigan National Bank.
30
EXHIBIT B
(Translation)
November 15, 1999
MEMORANDUM REGARDING MERGER
---------------------------
This Memorandum is entered into between N.A.J. Co., Ltd. ("NAJ") and
Amway Japan Limited ("AJL") in connection with the merger between NAJ and AJL.
Article 1 (Surviving Company)
AJL shall merge with and into NAJ, and NAJ shall survive and AJL shall
be dissolved (the "Merger").
Article 2 (Corporate Name)
The corporate name of the surviving company after the Merger ("New
AJL") shall be Amway Japan Limited.
Article 3 (Location of Head Office)
The head office of New AJL shall be situated at the place of the head
office of AJL (namely, 0-0, Xxxxxxx-xxx, Xxxxxxx-xx, Xxxxx).
Article 4 (Merger Ratio)
NAJ and AJL shall consult with each other to determine the merger ratio
based on the fair value of a share of each of NAJ and AJL, taking into
consideration the evaluation made by professional advisors; provided that such
professional advisors submit a valuation on which a reasonable determination can
be made that NAJ has positive value.
Article 5 (Matters Not Specified in this Memorandum)
Matters necessary with respect to the Merger other than the matters set
forth in this Memorandum shall be decided upon discussion between NAJ and AJL
and shall be set forth in a definitive merger agreement to be entered into
between the AJL and NAJ (the "Merger Agreement").
Article 6 (Conditions to Merger)
The parties acknowledge that consummation of the Merger will be subject
to approval of the Merger Agreement and the Merger by the requisite vote of the
respective Shareholders Meetings of AJL and NAJ. NAJ and AJL agree to take all
steps necessary to effect the Merger, including without limitation, preparing
and submitting for approval by their respective board of
31
directors of the Merger Agreement and convening their respective extraordinary
general meetings of shareholders for considering the Merger.
IN WITNESS WHEREOF, the parties have prepared two copies of this
Memorandum and upon execution by the representatives of NAJ and AJL, they shall
each hold one copy of this Memorandum.
NAJ: N.A.J. Co., Ltd.
Xxxx X. Xxxxxxxx
Representative Director-President
AJL: Amway Japan Limited
Xxxxxxx X. Xxxxxxx
Representative Director-President
