EXHIBIT 2
AGREEMENT AND PLAN OF MERGER
among
SUNBEAM CORPORATION
CAMPER ACQUISITION CORP.
and
THE XXXXXXX COMPANY, INC.
Dated as of
February 27, 1998
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
THE COMPANY MERGER
Section 2.1 The Company . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.2 Closing . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.3 Company Effective Time of the Company Merger . . . . . . . 10
Section 2.4 Certificate of Incorporation . . . . . . . . . . . . . . . 10
Section 2.5 By-Laws . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.6 Directors . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.7 Officers . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE III
CONVERSION OF SHARES
Section 3.1 Effect on Capital Stock . . . . . . . . . . . . . . . . . 11
Section 3.2 Exchange of Certificates Representing Shares . . . . . . . 13
Section 3.3 Dividends; Transfer Taxes . . . . . . . . . . . . . . . . 14
Section 3.4 No Fractional Shares . . . . . . . . . . . . . . . . . . . 14
Section 3.5 Termination of Exchange Fund . . . . . . . . . . . . . . . 15
Section 3.6 Investment of Exchange Fund . . . . . . . . . . . . . . . 15
Section 3.7 Closing of Company Transfer Books . . . . . . . . . . . . 15
Section 3.8 Dissenting Shares . . . . . . . . . . . . . . . . . . . . 15
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 4.1 Organization. . . . . . . . . . . . . . . . . . . . . . . 16
Section 4.2 Capitalization . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.3 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.4 Authority Relative to this Agreement . . . . . . . . . . . 18
Section 4.5 Consents and Approvals; No Violations . . . . . . . . . . 18
Section 4.6 Reports and Financial Statements . . . . . . . . . . . . . 19
Section 4.7 Absence of Certain Changes or Events . . . . . . . . . . . 20
Section 4.8 Litigation . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 4.9 Information in Disclosure Documents
and Registration Statement. . . . . . . . . . . . . . . 22
Section 4.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 4.11 Compliance with Applicable Law . . . . . . . . . . . . . 24
Section 4.12 Labor Matters . . . . . . . . . . . . . . . . . . . . . . 24
Section 4.13 ERISA Compliance . . . . . . . . . . . . . . . . . . . . 25
Section 4.14 Environmental Matters . . . . . . . . . . . . . . . . . . 26
Section 4.15 Intellectual Property . . . . . . . . . . . . . . . . . . 27
Section 4.16 Contracts . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 4.17 Opinion of Financial Advisor . . . . . . . . . . . . . . 28
Section 4.18 Takeover Statute . . . . . . . . . . . . . . . . . . . . 28
Section 4.19 Brokers . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF LASER
AND MERGER SUB
Section 5.1 Organization. . . . . . . . . . . . . . . . . . . . . . . 28
Section 5.2 Capitalization . . . . . . . . . . . . . . . . . . . . . . 29
Section 5.3 Merger Sub . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 5.4 Authority Relative to this Agreement . . . . . . . . . . . 30
Section 5.5 Consents and Approvals; No Violations . . . . . . . . . . 30
Section 5.6 Reports and Financial Statements . . . . . . . . . . . . . 31
Section 5.8 Litigation . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 5.9 Information in Disclosure Documents
and Registration Statement . . . . . . . . . . . . . . . 32
Section 5.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 5.11 Compliance with Applicable Law . . . . . . . . . . . . . 33
Section 5.12 Brokers . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE VI
COVENANTS RELATING TO CONDUCT OF BUSINESS
Section 6.1 Conduct of Business by the Company . . . . . . . . . . . 34
Section 6.2 Other Actions . . . . . . . . . . . . . . . . . . . . . . 37
Section 6.3 Advice of Changes . . . . . . . . . . . . . . . . . . . . 37
Section 6.4 Conduct of Business of Merger Sub . . . . . . . . . . . . 38
Section 6.5 Section 14(f) Notice . . . . . . . . . . . . . . . . . . . 38
ARTICLE VII
ADDITIONAL AGREEMENTS
Section 7.1 Preparation of the Registration Statement, the
Information Statement, the Schedule 13E-3
and the Section 14(f) Notice . . . . . . . . . . . . . 38
Section 7.2 Access and Information; Confidentiality . . . . . . . . . 39
Section 7.3 Comfort Letters . . . . . . . . . . . . . . . . . . . . . 39
Section 7.4 Listing Application . . . . . . . . . . . . . . . . . . . 40
Section 7.5 Affiliates . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 7.6 HSR Act; Competition Laws . . . . . . . . . . . . . . . . 40
Section 7.7 Employee Matters . . . . . . . . . . . . . . . . . . . . . 41
Section 7.8 Continuance of Existing Indemnification Rights . . . . . . 43
Section 7.9 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 7.10 Public Announcements . . . . . . . . . . . . . . . . . . 45
Section 7.11 Reasonable Best Efforts . . . . . . . . . . . . . . . . . 45
ARTICLE VIII
CONDITIONS TO CONSUMMATION OF THE MERGER
Section 8.1 Conditions to Each Party's Obligation to Effect the
Company Merger . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
Section 9.1 Termination . . . . . . . . . . . . . . . . . . . . . . . 47
Section 9.2 Effect of Termination . . . . . . . . . . . . . . . . . . 47
Section 9.3 Amendment . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 9.4 Extension; Waiver . . . . . . . . . . . . . . . . . . . . 47
ARTICLE X
GENERAL PROVISIONS
Section 10.1 No Survival of Representations and Warranties . . . . . 47
Section 10.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 10.3 Descriptive Headings . . . . . . . . . . . . . . . . . . 49
Section 10.4 Entire Agreement; No Third-Party Beneficiary . . . . . . 49
Section 10.5 Interpretation . . . . . . . . . . . . . . . . . . . . . 49
Section 10.6 Severability . . . . . . . . . . . . . . . . . . . . . . 50
Section 10.7 Assignment . . . . . . . . . . . . . . . . . . . . . . . 50
Section 10.8 Disclosure Schedules . . . . . . . . . . . . . . . . . . 50
Section 10.9 Governing Law . . . . . . . . . . . . . . . . . . . . . . 50
Section 10.10 Specific Performance . . . . . . . . . . . . . . . . . . 51
Section 10.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . 51
Section 10.12 Certain Terms . . . . . . . . . . . . . . . . . . . . . 51
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
February 27, 1998, among SUNBEAM CORPORATION, a Delaware corporation
("Laser"), CAMPER ACQUISITION CORP. ("Merger Sub"), a Delaware corporation
and a wholly owned subsidiary of Laser, and THE XXXXXXX COMPANY, INC., a
Delaware corporation (the "Company").
WHEREAS, the Boards of Directors of Laser, Merger Sub and the
Company deem it advisable and in the best interests of their respective
stockholders that Merger Sub merge with and into the Company (the "Company
Merger"), and such Boards of Directors have approved the Company Merger,
upon the terms and subject to the conditions set forth herein; and
WHEREAS, as a condition to the Company Merger, a newly formed,
wholly owned subsidiary of Laser will merge with and into CLN Holdings Inc.
("Holdings") with Holdings continuing as the surviving corporation and a
wholly owned subsidiary of Laser (the "Holdings Merger") pursuant to an
Agreement and Plan of Merger (the "Holdings Merger Agreement"), dated as of
the date hereof, among Laser, Laser Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Laser, Coleman (Parent)
Holdings Inc., a Delaware corporation ("Parent Holdings"), and Holdings;
and
WHEREAS, the Board of Directors of the Company has approved the
Holdings Merger solely for purposes of rendering Section 203 of the DGCL
inapplicable to the transactions contemplated hereby; and
WHEREAS, Laser, Merger Sub and the Company desire to make certain
representations, warranties, covenants and agreements in connection with
the Company Merger and also to prescribe certain conditions to the Company
Merger.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following
terms shall have the following meanings, the definitions to be applicable
to both the singular and plural forms of each term defined to the extent
that such forms of such terms are used in this Agreement.
"Affiliate" shall mean, as to any Person (as hereinafter
defined), any other Person which, directly or indirectly, is in control of,
is controlled by, or is under common control with, such Person. The term
"control" (including, with correlative meanings, the terms "controlled by"
and "under common control with"), as applied to any Person, means the
possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of voting securities or other ownership interest, by contract
or otherwise.
"Affiliate Agreements" shall mean any Contract, agreement or
understanding between the Company and any of its subsidiaries, on the one
hand, and Worldwide and any of its Affiliates (other than the Company and
its subsidiaries), on the other hand.
"Certificate of Incorporation" shall have the meaning ascribed to
it in Section 2.4.
"Certificate of Merger" shall have the meaning ascribed to it in
Section 2.3.
"Claim" shall have the meaning ascribed to it in Section 7.8(a).
"Closing" shall have the meaning ascribed to it in Section 2.2.
"Closing Date" shall have the meaning ascribed to it in Section
2.2.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commonly Controlled Entity" shall have the meaning ascribed to
it in Section 4.13(a).
"Company Balance Sheet Date" shall have the meaning ascribed to
it in Section 4.6(c).
"Company Business Personnel" shall have the meaning ascribed to
it in Section 4.12.
"Company Common Stock" shall mean the common stock, par value
$.01 per share, of the Company.
"Company Disclosure Schedule" shall have the meaning ascribed to
it in the Introduction to Article IV.
"Company Effective Time" shall have the meaning ascribed to it in
Section 2.3.
"Company Licenses" shall have the meaning ascribed to it in
Section 4.11.
"Company Material Adverse Effect" shall have the meaning ascribed
to it in Section 4.1.
"Company Merger" shall have the meaning ascribed to it in the
Recitals.
"Company Plans" shall have the meaning ascribed to it in Section
4.13(a).
"Company Preferred Stock" shall mean the preferred stock, par
value $.01 per share, of the Company.
"Company Rule 145 Affiliates" shall have the meaning ascribed to
it in Section 7.5.
"Company SEC Reports" shall have the meaning ascribed to it in
Section 4.6(a).
"Company Stock Option Plans" shall mean The Xxxxxxx Company, Inc.
1996 Stock Option Plan, The Xxxxxxx Company, Inc. 1993 Stock Option Plan
and The Xxxxxxx Company, Inc. 1992 Stock Option Plan.
"Competition Laws" shall mean foreign statutes, rules,
regulations, orders, decrees, administrative and judicial doctrines, and
other foreign Laws that are designed or intended to prohibit, restrict or
regulate actions having the purpose or effect of monopolization, lessening
of competition or restraint of trade.
"Contract" shall mean any note, bond, mortgage, indenture,
license, contract, agreement or other instrument or obligation.
"Conversion Number" shall have the meaning ascribed to it in
Section 3.1(a)(i).
"Credit Suisse First Boston" shall mean Credit Suisse First
Boston Corporation, the Company's financial advisor.
"DGCL" shall mean the General Corporation Law of the State of
Delaware.
"D&O Insurance" shall have the meaning ascribed to it in Section
7.8(c).
"Dissenting Shares" shall have the meaning ascribed to it in
Section 3.8.
"Employee Stock Options" shall mean all employee and non-employee
director stock options issued pursuant to the Company Stock Option Plans.
"Environmental Claim" shall mean any claim, action, investigation
or written notice to the Company or any of its subsidiaries by any person
or entity alleging potential liability (including, without limitation,
potential liability for investigatory costs, cleanup costs, governmental
response costs, natural resource damages, personal injuries, or penalties)
arising out of, based on, or resulting from, (a) the presence, or release
into the environment, of any Hazardous Substance at any location, whether
or not owned or operated by the Company or any of its subsidiaries or (b)
circumstances forming the basis of any violation, or alleged violation of
any applicable Environmental Law.
"Environmental Laws" shall mean all federal, state, local and
foreign Laws and regulations, as in effect and as interpreted as of the
date of this Agreement, relating to pollution or protection of the
environment, including, without limitation, Laws and regulations relating
to emissions, discharges, releases or threatened releases of Hazardous
Substances, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Substances.
"Environmental Permits" shall have the meaning ascribed to it in
Section 4.14(a).
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Agent" shall have the meaning ascribed to it in Section
3.2(a).
"Exchange Fund" shall have the meaning ascribed to it in Section
3.2(a).
"Filed Company SEC Reports" shall have the meaning ascribed to it
in Section 4.6(a).
"Filed Laser SEC Reports" shall have the meaning ascribed to it
in Section 5.6(a).
"GAAP" shall mean United States generally accepted accounting
principles and practices in effect from time to time, consistently applied.
"Governmental Entity" shall mean any court, arbitral tribunal,
administrative agency or commission or other governmental or regulatory
authority or agency.
"Hazardous Substance" shall mean all substances defined as Oils,
Pollutants or Contaminants in the National Oil and Hazardous Substances
Pollution Contingency Plan, 40 C.F.R. Section 300.5, or defined as such by,
or regulated as such under, any Environmental Law, including any radon,
asbestos and oil and petroleum products, by-products and fractions.
"Holdings" shall have the meaning ascribed to it in the Recitals.
"Holdings Disclosure Schedule" shall mean the Disclosure Schedule
being delivered by Holdings concurrently with the execution of the
Agreement and Plan of Merger relating to the Holdings Merger.
"Holdings Effective Time" shall mean the date and time on which
the Holdings Merger is effected.
"Holdings Merger" shall have the meaning ascribed to it in the
Recitals.
"HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976.
"Information Statement" shall have the meaning ascribed to it in
Section 4.9.
"Indemnified Person" shall have the meaning ascribed to it in
Section 7.8(a).
"Intellectual Property" shall mean all domestic and foreign
patents, patent applications, written invention disclosures to be filed or
awaiting filing determinations, trademark and service xxxx applications,
registered trademarks, registered service marks, registered copyrights,
trademarks, service marks and trade names.
"Laser Balance Sheet Date" shall have the meaning ascribed to it
in Section 5.6(c).
"Laser Common Stock" shall mean the common stock, par value $.01
per share, of Laser.
"Laser Licenses" shall have the meaning ascribed to it in Section
5.11.
"Laser Material Adverse Effect" shall have the meaning ascribed
to it in Section 5.1.
"Laser Preferred Stock" shall mean the preferred stock, par value
$.01 per share, of Laser.
"Laser SEC Reports" shall have the meaning ascribed to it in
Section 5.6(a).
"Laser Shares" shall mean the shares of Laser Common Stock to be
issued in the Company Merger.
"Laser Stock Option Plans" shall have the meaning ascribed to it
in Section 5.2.
"Laser Stock Options" shall have the meaning ascribed to it in
Section 5.2.
"Laws" shall mean any federal, state, local or foreign law,
statute, ordinance, rule, regulation, order, judgment or decree,
administrative order or decree, administrative or judicial decision, and
any other executive or legislative proclamation.
"Liens" shall mean all pledges, claims, liens, charges,
encumbrances and security interests of any kind or nature whatsoever.
"XXXXx" shall mean the Liquid Yield Option Notes due 2013 of
Worldwide.
"Merger Sub Common Stock" shall mean the common stock, par value
$.01 per share, of Merger Sub.
"Xxxxxx Xxxxxxx" shall mean Xxxxxx Xxxxxxx & Co. Incorporated,
Laser's financial advisor.
"NYSE" shall mean the New York Stock Exchange, Inc.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
"Pension Plan" shall have the meaning ascribed to it in Section
4.13(a).
"Per Share Merger Consideration" shall have the meaning ascribed
to it in Section 3.1(a)(i).
"Person" shall mean an individual, a corporation, a partnership,
an association, a trust or other entity or organization.
"Plans" shall have the meaning ascribed to it in Section 7.7(e).
"Properties" shall have the meaning ascribed to it in Section
4.14(c).
"Registration Statement" shall have the meaning ascribed to it in
Section 4.9.
"Release" shall mean any release, spill, emission, discharge,
leaking, pumping, injection, deposit, disposal, dispersal, leaching or
migration into the indoor or outdoor environment (including, without
limitation, ambient air, surface water, groundwater and surface or
subsurface strata) or into or out of any property, including the movement
of Hazardous Materials through or in the air, soil, surface water,
groundwater or property.
"Schedule 13E-3" shall have the meaning ascribed to it in Section
4.9.
"Section 14(f) Notice" shall have the meaning ascribed to it in
Section 4.9.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"subsidiary" shall mean, with respect to any party, any
corporation or other organization, whether incorporated or unincorporated,
of which (i) such party or any other subsidiary of such party is a general
partner or (ii) at least 50% of the securities or other interests having by
their terms ordinary voting power to elect a majority of the Board of
Directors or others performing similar functions with respect to such
corporation or other organization or at least 50% of the value of the
outstanding equity is directly or indirectly owned or controlled by such
party or by any one or more of its subsidiaries, or by such party and one
or more of its subsidiaries.
"Surviving Corporation" shall have the meaning ascribed to it in
Section 2.1.
"Tax" (and, with correlative meaning, "Taxes" and "Taxable")
shall mean (i) any federal, state, local or foreign net income, gross
income, receipts, windfall profit, severance, property, production, sales,
use, license, excise, franchise, employment, payroll, withholding,
alternative or add-on minimum, ad valorem, transfer, stamp, or
environmental tax, or any other tax, custom, duty, governmental fee or
other like assessment or charge of any kind whatsoever, together with any
interest or penalty, addition to tax or additional amount imposed by any
governmental authority; and (ii) any liability of Laser or any Laser
subsidiary or the Company or any of its subsidiaries, as applicable, for
the payment of amounts with respect to payments of a type described in
clause (i) as a result of being a member of an affiliated, consolidated,
combined or unitary group, or as a result of any obligation of Laser or any
Laser subsidiary or the Company or any of its subsidiaries, as the case may
be, under any arrangement to share liability for taxes or indemnify any
other entity or person for taxes.
"Tax Return" shall mean any return, report or statement required
to be filed with respect to any Tax (including any attachments thereto),
including, without limitation, any information return, claim for refund,
amended return or declaration of estimated Tax.
"Welfare Plan" shall have the meaning ascribed to it in Section
4.13(a).
"Worldwide" shall mean Xxxxxxx Worldwide Corporation, a Delaware
corporation and a wholly owned subsidiary of Holdings.
ARTICLE II
THE COMPANY MERGER
Section 2.1 The Company. Upon the terms and subject to the
conditions set forth herein, and in accordance with the DGCL, at the
Company Effective Time, Merger Sub shall be merged with and into the
Company. Following the Company Effective Time, the Company shall continue
as the surviving corporation (the "Surviving Corporation"), and the
separate corporate existence of Merger Sub shall cease. The Company Merger
shall have the effects set forth in Section 259 of the DGCL.
Section 2.2 Closing. The closing of the Company Merger (the
"Closing") will take place at 10:00 a.m. on a date to be specified by the
parties (the "Closing Date"), which shall be no later than the third NYSE
trading day after satisfaction or waiver of the conditions set forth in
Section 8.1, at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, unless another time, date or
place is agreed to in writing by the parties hereto.
Section 2.3 Company Effective Time of the Company Merger. The
Company Merger shall become effective on the date and at the time at which
a properly executed certificate of merger (the "Certificate of Merger") is
duly filed with the Secretary of State of the State of Delaware. The
Certificate of Merger shall be filed as soon as practicable on or after the
Closing Date. When used in this Agreement, the term "Company Effective
Time" shall mean the date and time on which the Certificate of Merger is so
filed.
Section 2.4 Certificate of Incorporation. From and after the
Company Effective Time, the certificate of incorporation of the Company as
in effect at the Company Effective Time (the "Certificate of
Incorporation") shall be the certificate of incorporation of the Surviving
Corporation until amended as provided by Law and the Certificate of
Incorporation.
Section 2.5 By-Laws. From and after the Company Effective Time,
the by-laws of Merger Sub as in effect at the Company Effective Time shall
be the by-laws of the Surviving Corporation until amended as provided by
the DGCL, the Certificate of Incorporation and the terms thereof.
Section 2.6 Directors. The directors of Merger Sub at the Company
Effective Time shall be the initial directors of the Surviving Corporation
and shall hold office from the Company Effective Time until their
respective successors are duly elected or appointed and qualify in the
manner provided in the Certificate of Incorporation and by-laws of the
Surviving Corporation or as otherwise provided by the DGCL (it being
understood that the directors of the Company shall resign upon the later of
(i) the Holdings Effective Time and (ii) the eleventh (11th) day following
the date on which the Section 14(f) Notice shall have been filed with the
SEC and mailed to all stockholders of record of the Company in accordance
herewith).
Section 2.7 Officers. The officers of the Company at the Company
Effective Time shall be the initial officers of the Surviving Corporation
and shall hold office from the Company Effective Time until their
respective successors are duly elected or appointed and qualifies in the
manner provided in the Certificate of Incorporation and by-laws of the
Surviving Corporation, or as otherwise provided by Law.
ARTICLE III
CONVERSION OF SHARES
Section 3.1 Effect on Capital Stock. At the Company Effective
Time, by virtue of the Company Merger and without any action on the part of
any holder thereof:
(a) Conversion of Company Common Stock.
(i) Subject to Section 3.1(b) hereof, each share of Company
Common Stock issued and outstanding immediately prior to the Company
Effective Time (other than Dissenting Shares and Company Common Stock
to be cancelled in accordance with Section 3.1(c) hereof) shall be
converted into the right to receive (A) 0.5677 (the "Conversion
Number") of a fully paid and nonassessable share of Laser Common Stock
and (B) $6.44 in cash, without interest thereon (the consideration
referred to in this Section 3.1(a) being sometimes referred to herein
as the "Per Share Merger Consideration").
(ii) If, prior to the Company Effective Time, Laser shall
(A) pay a dividend in, subdivide, combine into a smaller number of
shares or issue by reclassification of its shares, any shares of Laser
Common Stock, the Conversion Number shall be adjusted appropriately or
(B) pay a dividend (other than regular quarterly dividend payments,
consistent with past practice), whether in cash or property, the
amount of the cash portion of the Per Share Merger Consideration shall
be appropriately adjusted such that the amount of cash to be received
with respect to each share of Company Common Stock, or if a dividend
shall have been paid in other property, cash and other property to be
received with respect to each share of Company Common Stock, shall be
equal to that which would have been received in the aggregate with
respect to each share of Company Common Stock (on a per share
equivalent basis) had the dividend been paid following the Company
Effective Time at a time when the Laser Shares to be issued pursuant
hereto had been issued to the holders of the shares of Company Common
Stock.
(iii) Each of the shares of Company Common Stock converted
in accordance with paragraph (i) of this Section 3.1(a) shall no
longer be outstanding and shall automatically be cancelled and retired
and shall cease to exist, and each holder of a certificate
representing any such shares of Company Common Stock shall cease to
have any rights with respect thereto, except the right to receive the
Per Share Merger Consideration and cash in lieu of any fractional
share of Laser Common Stock (determined in accordance with Section 3.4
hereof), to be issued or paid in consideration therefor upon the
surrender of such certificate in accordance with Section 3.2 hereof,
without interest.
(b) Company Common Stock Held by Worldwide or Holdings to Remain
Outstanding. Notwithstanding Section 3.1(a) hereof, at the Company
Effective Time all shares of Company Common Stock held by Worldwide or
Holdings shall remain outstanding and unchanged as a result of the Company
Merger.
(c) Cancellation of Treasury Stock and Company Common Stock Held
by Laser and Company Subsidiaries. Each share of Company Common Stock, if
any, held in the treasury of the Company, by any subsidiary of the Company,
by Laser or by any subsidiary of Laser (other than Worldwide or Holdings)
immediately prior to the Company Effective Time shall be cancelled and
retired and cease to exist.
(d) Cancellation of Merger Sub Common Stock. Each share of Merger
Sub Common Stock issued and outstanding immediately prior to the Company
Effective Time shall be cancelled and retired and cease to exist.
Section 3.2 Exchange of Certificates Representing Shares.
(a) As of the Company Effective Time, Laser shall deposit, or
shall cause to be deposited, with an exchange agent selected by Laser and
reasonably satisfactory to the Company (the "Exchange Agent"), for the
benefit of the holders of shares of Company Common Stock, for exchange in
accordance with this Article III: (i) certificates representing the number
of Laser Shares issuable in the Company Merger to be issued in respect of
all shares of Company Common Stock outstanding immediately prior to the
Company Effective Time and which are to be exchanged pursuant to the
Company Merger (exclusive of shares to remain outstanding pursuant to
Section 3.1(b) hereof or to be canceled pursuant to Section 3.1(c) hereof);
and (ii) cash in an amount sufficient to make any cash payment due under
Sections 3.1(a)(i)(B) and 3.4 hereof (such cash and certificates for Laser
Shares being hereinafter referred to collectively as the "Exchange Fund").
(b) As soon as reasonably practicable after the Company Effective
Time, Laser shall cause the Exchange Agent to mail (or deliver to its
principal office) to each holder of record of a certificate or certificates
representing shares of Company Common Stock (i) a letter of transmittal
which shall specify that delivery shall be effected, and risk of loss and
title to the certificates for shares of Company Common Stock shall pass,
only upon delivery of the certificates for such shares of Company Common
Stock to the Exchange Agent and which shall be in such form and have such
other provisions, including appropriate provisions with respect to back-up
withholding, as Laser may reasonably specify, and (ii) instructions for use
in effecting the surrender of the certificates for shares of Company Common
Stock. Upon surrender of a certificate for shares of Company Common Stock
for cancellation to the Exchange Agent, together with such letter of
transmittal, duly executed and completed in accordance with the
instructions thereto, the holder thereof shall be entitled to receive in
exchange therefor that portion of the Exchange Fund which such holder has
the right to receive pursuant to the provisions of this Article III, after
giving effect to any required withholding Tax, and the certificate for
shares of Company Common Stock so surrendered shall forthwith be cancelled.
No interest will be paid or accrued on the cash portion of the Exchange
Fund. In the event of any transfer of ownership of shares of Company
Common Stock which has not been registered in the transfer records of the
Company, certificates representing the proper number of shares of Laser
Common Stock, if any, and a check in an amount equal to the proper amount
of the cash component, if any, of the Exchange Fund, will be issued to the
transferee of the certificate representing the transferred shares of
Company Common Stock, only upon presentation to the Exchange Agent of a
certificate or certificates representing such shares of Company Common
Stock, accompanied by all documents required to evidence and effect the
prior transfer thereof and to evidence that any applicable stock transfer
Taxes associated with such transfer were paid.
Section 3.3 Dividends; Transfer Taxes. No dividends that are
declared on Laser Common Stock will be paid to persons entitled to receive
certificates representing shares of Laser Common Stock until such persons
surrender their certificates representing shares of Company Common Stock.
Upon such surrender, there shall be paid to the person in whose name the
certificates representing such shares of Laser Common Stock shall be
issued, any dividends which shall have become payable with respect to such
shares of Laser Common Stock between the Company Effective Time and the
time of such surrender. In no event shall the person entitled to receive
such dividends be entitled to receive interest on such dividends. If any
certificates for any shares of Laser Common Stock are to be issued in a
name other than that in which the certificate representing shares of
Company Common Stock surrendered in exchange therefor is registered, it
shall be a condition of such exchange that the person requesting such
exchange shall pay to the Exchange Agent any transfer or other Taxes
required by reason of the issuance of certificates for such shares of Laser
Common Stock in a name other than that of the registered holder of the
certificate surrendered or shall establish to the satisfaction of the
Exchange Agent that such Tax has been paid or is not applicable.
Notwithstanding the foregoing, (i) neither the Exchange Agent nor any party
hereto shall be liable to a holder of shares of Company Common Stock for
any shares of Laser Common Stock or dividends thereon, any cash payments to
be made pursuant to Section 3.1(a)(i)(B) hereof or, in accordance with
Section 3.4 hereof, any cash in lieu of fractional share interests, in each
case, delivered to a public official pursuant to applicable escheat Laws
and (ii) any shares of Laser Common Stock held by the Exchange Agent prior
to surrender of certificates representing shares of Company Common Stock
shall not be deemed issued.
Section 3.4 No Fractional Shares. No certificates or scrip
representing fractional shares of Laser Common Stock shall be issued upon
the surrender for exchange of certificates representing shares of Company
Common Stock pursuant to this Article III, and no dividend, stock split or
other change in the capital structure of Laser shall relate to any
fractional security, and such fractional interests shall not entitle the
owner thereof to vote or to any rights of a security holder. In lieu of
any such fractional shares of Laser Common Stock, each holder of shares of
Company Common Stock who would otherwise have been entitled to a fraction
of a share of Laser Common Stock upon surrender of stock certificates for
exchange pursuant to this Article III will be paid cash upon such surrender
in an amount equal to the product of such fraction multiplied by the
closing sale price of one share of Laser Common Stock on the NYSE on the
day of the Company Effective Time, or, if shares of Laser Common Stock are
not so traded on such day, the closing sale price of one such share on the
next preceding day on which such share was traded on the NYSE. For
purposes of this Section 3.4, shares of Company Common Stock of any holder
represented by two or more certificates shall be aggregated, and in no
event shall any holder be paid an amount of cash pursuant to this Section
3.4 in respect of more than one share of Laser Common Stock.
Section 3.5 Termination of Exchange Fund. Any portion of the
Exchange Fund which remains undistributed to the holders of the Company
Common Stock for six (6) months after the Company Effective Time shall be
delivered to Laser, upon demand, and any holders of the Company Common
Stock who have not theretofore complied with this Article III shall
thereafter look only to Laser for payment of their claim for the shares of
Laser Common Stock and cash and dividends or other distributions, if any,
pursuant to this Article III.
Section 3.6 Investment of Exchange Fund. Without prejudice to the
rights of any holder of Company Common Stock to receive the Per Share
Merger Consideration, the Exchange Agent shall invest any cash included in
the Exchange Fund, as directed by Laser, on a daily basis. Any interest
and other income resulting from such investments shall be paid to Laser.
Section 3.7 Closing of Company Transfer Books. At the Company
Effective Time, the stock transfer books of the Company shall be closed and
no transfer of shares of Company Common Stock shall thereafter be made.
If, after the Company Effective Time, certificates representing shares of
Company Common Stock are presented to the Surviving Corporation, they shall
be cancelled and exchanged for the Per Share Merger Consideration
applicable thereto.
Section 3.8 Dissenting Shares. Each outstanding share of Company
Common Stock as to which a written demand for appraisal is filed in
accordance with Section 262 of the DGCL and not withdrawn, and with respect
to which a consent is not given in favor of the Company Merger shall not be
converted into or represent a right to receive the Per Share Merger
Consideration unless and until the holder thereof shall have failed to
perfect, or shall have effectively withdrawn or lost, the right to
appraisal of and payment for each such share of Company Common Stock under
Section 262, at which time each such share shall be converted into the
right to receive the Per Share Merger Consideration. All such shares of
Company Common Stock as to which such a written demand for appraisal is so
filed and not withdrawn and with respect to which a consent is not given in
favor of the Company Merger, except any such shares of Company Common Stock
the holder of which, prior to the Company Effective Time, shall have
effectively withdrawn or lost such right to appraisal and payment for such
shares of Company Common Stock under Section 262, are herein referred to as
"Dissenting Shares." The Company shall give Laser prompt notice upon
receipt by the Company of any written demands for appraisal rights,
withdrawal of such demands, and any other written communications delivered
to the Company pursuant to Section 262, and the Company shall give Laser
the opportunity, to the extent permitted by Law, to participate in all
negotiations and proceedings with respect to such demands. Except with the
prior written consent of Laser, the Company shall not voluntarily make any
payment with respect to any demands for appraisal rights and shall not
settle or offer to settle any such demands. Each holder of Dissenting
Shares who becomes entitled, pursuant to the provisions of Section 262, to
payment for such shares of Dissenting Shares under the provisions of
Section 262 shall receive payment therefor from the Surviving Corporation
and such shares of Company Common Stock shall be cancelled thereafter.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as otherwise disclosed to Laser in a schedule delivered to
Laser prior to the execution hereof (which schedule shall contain
appropriate references to identify the representations and warranties
herein to which the information in such schedule relates) (the "Company
Disclosure Schedule"), the Company represents and warrants to Laser and
Merger Sub as follows:
Section 4.1 Organization. The Company is a corporation duly
organized, validly existing and in good standing under the Laws of the
State of Delaware and has the corporate power to carry on its business as
it is now being conducted. The Company is duly qualified as a foreign
corporation to do business, and is in good standing, in each jurisdiction
where the character of its properties owned or held under lease or the
nature of its activities makes such qualification necessary, except where
the failure to be so qualified would not individually or in the aggregate
have a material adverse effect on the business, results of operations or
financial condition of the Company and its subsidiaries, taken as a whole
(a "Company Material Adverse Effect").
Section 4.2 Capitalization. The authorized capital stock of the
Company consists of 80,000,000 shares of Company Common Stock and
20,000,000 shares of Company Preferred Stock. As of February 23, 1998, (i)
53,488,170 shares of Company Common Stock were issued and outstanding; (ii)
3,282,930 shares of Company Common Stock were issuable upon exercise of
Employee Stock Options to acquire 3,282,930 shares of Company Common Stock
outstanding under the Company Stock Option Plans (of which options to
acquire 2,399,380 were vested); and (iii) no shares of Company Preferred
Stock were issued or outstanding. As of such date, no shares of Company
Common Stock were held as treasury shares. All of the issued and
outstanding shares of Company Common Stock are validly issued, fully paid
and nonassessable and free of preemptive rights. As of the date hereof,
except as set forth above, there are no shares of capital stock of the
Company issued or outstanding or any options, warrants, subscriptions,
calls, rights, convertible securities or other agreements or commitments
obligating the Company to issue, transfer, sell, redeem, repurchase or
otherwise acquire any shares of its capital stock or securities. There are
no notes, bonds, debentures or other indebtedness of the Company having the
right to vote (or convertible into or exchangeable for securities having
the right to vote) on any matters upon which stockholders of the Company
may vote.
Section 4.3 Subsidiaries. All the outstanding shares of capital
stock of, or other ownership interests in, each of the Company's
subsidiaries have been validly issued and are fully paid and nonassessable
and such shares (other than directors' qualifying shares and similar
interests) are owned directly or indirectly by the Company, free and clear
of all Liens. Except for the capital stock of the Company's subsidiaries
and except as set forth in Section 4.3 of the Company Disclosure Schedule,
the Company does not own, directly or indirectly, any capital stock or
other ownership interest in any corporation, partnership, limited liability
company, joint venture or other entity. Each of the Company's subsidiaries
that is a corporation is a corporation duly organized, validly existing and
in good standing under the Laws of its jurisdiction of incorporation. Each
of the Company's subsidiaries that is a partnership or a limited liability
company is duly formed and validly existing under the Laws of its
jurisdiction of formation. Each of the Company's subsidiaries has the
corporate power or the partnership power, as the case may be, to carry on
its business as it is now being conducted or presently proposed to be
conducted. Each the Company's subsidiaries that is a corporation is duly
qualified as a foreign corporation to do business, and is in good standing,
in each jurisdiction where the character of its properties owned or held
under lease or the nature of its activities makes such qualification
necessary, except where the failure to be so qualified would not
individually or in the aggregate have a Company Material Adverse Effect.
Each of the Company's subsidiaries that is a partnership is duly qualified
as a foreign partnership authorized to do business, and is in good
standing, in each jurisdiction where the character of its properties owned
or held under lease or the nature of its activities makes such
qualification necessary, except where the failure to be so qualified would
not individually or in the aggregate have a Company Material Adverse
Effect. Except as set forth in Section 4.2 hereof, there are no
outstanding options, warrants, subscriptions, calls, rights, convertible
securities or other agreements or commitments obligating the Company or any
of its subsidiaries to issue, transfer or sell any securities of any
Company subsidiary. There are no voting, stockholder or other agreements
or understandings to which the Company or any of the Company's subsidiaries
is a party or is bound with respect to the voting of the capital stock of
the Company or any of the Company's subsidiaries.
Section 4.4 Authority Relative to this Agreement. The Company has
the corporate power and authority to enter into this Agreement and to
perform its obligations hereunder 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 the Board of Directors of
the Company, and no other corporate actions or proceedings on the part of
the Company (including any action on the part of its stockholders) are
necessary to authorize this Agreement or the transactions contemplated
hereby. This Agreement has been duly executed and delivered by the Company
and, assuming the due authorization and valid execution and delivery by
Laser and Merger Sub, constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium or similar
Laws now or hereafter in effect relating to creditors' rights generally and
to general principles of equity.
Section 4.5 Consents and Approvals; No Violations. Except for
applicable requirements of the HSR Act, the Securities Act, the Exchange
Act, Competition Laws and state securities or blue sky Laws, and the filing
and recordation of the Certificate of Merger as required by the DGCL, no
filing with, and no permit, authorization, consent or approval of, any
governmental or regulatory authority is necessary for the consummation by
the Company of the transactions contemplated by this Agreement, except for
such filings, permits, authorizations, consents or approvals the failure of
which to be made or obtained would not individually or in the aggregate
have a Company Material Adverse Effect. Except as set forth in Section 4.5
of the Company Disclosure Schedule, neither the execution and delivery of
this Agreement by the Company, nor the consummation by the Company of the
transactions contemplated hereby, nor compliance by the Company with any of
the provisions hereof, will (a) conflict with or result in any breach of
any provisions of the certificate of incorporation or by-laws of the
Company or the certificate of incorporation or by-laws of any of the
Company's subsidiaries; (b) 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)
under, any of the terms, conditions or provisions of any material (as
defined for purposes of Form 10-K) Contract to which the Company or any of
the Company's subsidiaries is a party or by which any of them or any of
their properties or assets may be bound; or (c) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to the Company,
any of the Company's subsidiaries or any of their properties or assets,
except in the case of clauses (b) and (c) for violations, breaches or
defaults which would not individually or in the aggregate have a Company
Material Adverse Effect.
Section 4.6 Reports and Financial Statements.
(a) The Company has filed all reports, forms, registrations,
schedules, statements and other documents required to be filed by it with
the SEC since January 1, 1997 (the "Company SEC Reports"). As of their
respective dates, the Company SEC Reports complied in all material respects
with the requirements of the Securities Act or the Exchange Act, as the
case may be, and the applicable rules and regulations promulgated
thereunder. Except to the extent that information contained in any Company
SEC Report has been amended, revised or superseded by a later Company SEC
Report filed and publicly available prior to the date of this Agreement (as
amended, revised or superseded by a later Company SEC Report filed and
publicly available prior to the date of this Agreement, the "Filed Company
SEC Reports"), none of the Filed Company SEC Reports, when filed, contained
any untrue statement of a material fact or omitted 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 were made, not
misleading.
(b) The consolidated financial statements of the Company included
in the Filed Company SEC Reports complied as to form in all material
respects with the applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto have been prepared in
accordance with GAAP (except, in the case of the unaudited statements, as
permitted by Form 10-Q of the SEC) applied on a consistent basis during the
periods involved (except as may be indicated therein or in the notes
thereto) and fairly present the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates thereof and the
consolidated results of their operations and their consolidated cash flows
for the periods then ended (subject, in the case of the unaudited
statements, to normal year-end audit adjustments and to any other
adjustments described therein).
(c) Except as set forth in the Filed Company SEC Reports and
except for liabilities and obligations incurred in the ordinary course of
business consistent with past practice since the date of the most recent
consolidated balance sheet included in the Filed Company SEC Reports (the
"Company Balance Sheet Date"), neither the Company nor any of its
subsidiaries has any material liabilities or obligations of any nature
(whether accrued, absolute, contingent or otherwise) required by GAAP to be
recognized or disclosed on a consolidated balance sheet of the Company and
its consolidated subsidiaries or in the notes thereto.
Section 4.7 Absence of Certain Changes or Events. Except as set
forth in the Filed Company SEC Reports, since the Company Balance Sheet
Date, the business of the Company and its subsidiaries has been conducted
only in the ordinary course of business consistent with past practice, and
there has not been any event, change or development which individually or
in the aggregate has had or would reasonably be expected to have a Company
Material Adverse Effect or would impair or delay the ability of the Company
to consummate the transactions contemplated by, or to satisfy its
obligations under, this Agreement. Except as set forth in Section 4.7 of
the Company Disclosure Schedule, during the period from the Company Balance
Sheet Date through the date of this Agreement, neither the Company nor any
of its subsidiaries has:
(i) declared, set aside or paid any distributions (whether
in cash, stock or property) with respect to its capital stock or (y)
split, combined, or reclassified any of its capital stock or issued or
authorized the issuance of any other securities in respect of, in lieu
of or in substitution for shares of its capital stock (other than
dividends or stock issuances by a wholly owned subsidiary of the
Company to the Company or another wholly owned subsidiary of the
Company);
(ii) issued, delivered, sold, pledged or otherwise
encumbered any shares of its capital stock, any other voting
securities or any securities convertible into, or any options,
warrants or rights to acquire, any such shares, voting securities or
convertible securities (other than the issuance of Company Common
Stock upon the exercise of Employee Stock Options in accordance with
their terms and issuances by a wholly owned subsidiary of the Company
to the Company or another wholly owned subsidiary of the Company);
(iii) in the case of the Company, amended its certificate
of incorporation or by-laws;
(iv) acquired or agreed to acquire by merging or
consolidating with, or in purchasing a substantial portion of the
assets of, or in any other manner, any business or any corporation,
limited liability company, partnership, association or other business
organization or division thereof material to the Company;
(v) other than in the ordinary course of business, (x)
incurred any indebtedness or (y) made any loans, advances or capital
contributions to, or investments in, any other person (other than the
Company or a subsidiary of the Company), in any case in an amount
material to the Company;
(vi) other than in the ordinary course of business or
consistent with the Company's capital budgets heretofore disclosed to
Laser, made or agreed to make any capital expenditure or capital
expenditures;
(vii) other than in the ordinary course of business, made
any Tax election or settled or compromised any material income Tax
liability;
(viii) except in the ordinary course of business or except
as would not reasonably be expected to have a Company Material Adverse
Effect, entered into any Contracts or amended or terminated any
material Contract or agreement to which the Company or any of its
subsidiaries is a party or waived, released or assigned any material
rights or claims thereunder;
(ix) except as required by Law or contractual obligation or
in the ordinary course of business consistent with past practice, (a)
increased the compensation of any of its employees, (b) entered into
any Contract with any of its employees regarding his or her
employment, compensation or benefits, or (c) adopted any plan,
arrangement or policy which would become a Company Plan or amended any
Company Plan to the extent such adoption or amendment would create or
increase any material liability or obligation on the part of the
Company or its subsidiaries;
(x) entered into any transaction or Contract with, or
(except pursuant to the Affiliate Agreements) made any payment to, any
Affiliate of the Company (other than to the Company's subsidiaries or
its or their officers or directors in the ordinary course of business
consistent with past practice); or
(xi) agreed to do any of the foregoing.
Section 4.8 Litigation. Except as disclosed in the Filed Company
SEC Reports and as set forth in Section 4.8 of the Company Disclosure
Schedule, as of the date hereof, to the Company's knowledge there is no
suit, action, proceeding or investigation pending or, to the knowledge of
the Company, threatened against or affecting the Company or any of its
subsidiaries that individually or in the aggregate would reasonably be
expected to (i) have a Company Material Adverse Effect (taking into account
any reserve therefor as of the Company Balance Sheet Date), or (ii) delay
in any material respect or prevent the consummation of any of the
transactions contemplated by this Agreement, nor is there any judgment,
order, decree, statute, Law, ordinance, rule or regulation of any
Governmental Entity or arbitrator outstanding against the Company or any of
its subsidiaries having, or which would reasonably be expected to have, any
effect referred to in clause (i) or (ii) above.
Section 4.9 Information in Disclosure Documents and Registration
Statement. None of the information to be supplied by the Company for
inclusion or incorporation by reference in the information statement to be
distributed in connection with the Company Merger (as amended or
supplemented, the "Information Statement") or the related filing on
Schedule 13E-3 (as amended or supplemented, the "Schedule 13E-3") or the
notice to be provided to the Company's stockholders pursuant to Section
14(f) of the Exchange Act (as amended or supplemented, the "Section 14(f)
Notice") or the registration statement on Form S-4 under the Securities Act
for the purpose of registering the shares of Laser Common Stock to be
issued in the Company Merger (as amended or supplemented, the "Registration
Statement") will, in the case of the Registration Statement, at the time it
becomes effective and at the Company Effective Time, 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 not
misleading, or, in the case of the Information Statement, the Schedule 13E-
3, the Section 14(f) Notice, at the time of the mailing thereof and, in the
case of the Information Statement, the Schedule 13E-3 at the Company
Effective Time, 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 are made, not misleading. The Information Statement, the Schedule
13E-3 and the Section 14(f) Notice will comply as to form in all material
respects with the provisions of the Exchange Act, and the rules and
regulations promulgated thereunder.
Section 4.10 Taxes. Except as would not have a Company Material
Adverse Effect or as set forth in Section 4.10 of the Company Disclosure
Schedule:
(a) Each of the Company and each of its subsidiaries has (i) filed
(or there has been filed on its behalf) with the appropriate Governmental
Entities all Tax Returns required to be filed by it, and all such Tax
Returns are true, correct and complete and (ii) has paid all Taxes due by
it;
(b) there is no action, suit, investigation, audit, claim or
assessment pending or proposed in writing or threatened in writing with
respect to Taxes of the Company or any of its subsidiaries and, to the best
of the Company's knowledge, no basis exists therefor;
(c) there are no Liens for Taxes upon the assets of the Company or
any of its subsidiaries except Liens relating to current Taxes not yet due;
(d) the United States federal income Tax Returns which include the
Company and the Company's subsidiaries have been examined, and such
examinations have been completed, by the Internal Revenue Service (or the
applicable statutes of limitation for the assessment of federal income
Taxes for such periods have expired) for all periods through and including
1985.
Section 4.11 Compliance with Applicable Law. Except as disclosed
in the Filed Company SEC Reports, the Company and its subsidiaries have
received such certificates, permits, licenses, franchises, consents,
approvals, orders, authorizations and clearances from appropriate
Governmental Entities (the "Company Licenses") as are necessary to own or
lease and operate their respective properties and to conduct their
respective businesses substantially in the manner described in the Company
SEC Reports and as currently owned or leased and conducted, and all such
Company Licenses are valid and in full force and effect, except for any
such certificates, permits, licenses, franchises, consents, approvals,
orders, authorizations and clearances which the failure to have or to be in
full force and effect would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse Effect.
Except as disclosed in Filed Company SEC Reports, the Company and the
Company's subsidiaries are in compliance with their respective obligations
under the Company Licenses, with only such exceptions as, individually or
in the aggregate, would not reasonably be expected to have a Company
Material Adverse Effect. Except as disclosed in the Filed Company SEC
Reports, the Company and its subsidiaries are in compliance with all
judgments, orders, decrees, statutes, Laws, ordinances, rules and
regulations of any Governmental Entity applicable to them, except for such
noncompliance which individually or in the aggregate would not have a
Company Material Adverse Effect.
Section 4.12 Labor Matters. Except as disclosed in the Filed
Company SEC Reports, neither the Company nor any of the Company's
subsidiaries has any labor contracts, collective bargaining agreements or
material employment or consulting agreements with any persons employed by
or otherwise performing services primarily for the Company or any of the
Company's subsidiaries (the "Company Business Personnel") or any
representative of any Company Business Personnel. Except as set forth in
the Filed Company SEC Reports, neither the Company nor any of its
subsidiaries has engaged in any unfair labor practice with respect to
Company Business Personnel, and there is no unfair labor practice complaint
pending against the Company or any of its subsidiaries with respect to
Company Business Personnel which, in either such case, would reasonably be
expected to have, individually or in the aggregate, a Company Material
Adverse Effect. Except as set forth in the Filed Company SEC Reports,
there is no material labor strike, dispute, slowdown or stoppage pending
or, to the knowledge of the Company, threatened against the Company or any
of its subsidiaries, and neither the Company nor any of its subsidiaries
has experienced any material primary work stoppage or other material labor
difficulty involving its employees during the last three (3) years.
Section 4.13 ERISA Compliance.
(a) The Company has delivered to Laser or will deliver to Laser
prior to the Company Effective Time each "employee pension benefit plan"
(as defined in Section 3(2) of ERISA) (a "Pension Plan"), each "employee
welfare benefit plan" (as defined in Section 3(1) of ERISA) (a "Welfare
Plan"), each material bonus, stock option, stock purchase, stock ownership,
stock bonus, restricted stock, deferred compensation plan or arrangement
and each other material employee fringe benefit plan or arrangement
maintained, contributed to or required to be maintained or contributed to
by the Company or any of its subsidiaries or any other person or entity
that, together with the Company, is or was treated as a single employer
under Section 414(b), (c), (m) or (o) of the Code (each, a "Commonly
Controlled Entity") which is currently in effect for the benefit of any
current or former directors, officers, employees or independent contractors
of the Company or any of its subsidiaries (collectively, the "Company
Plans"). The Company has delivered to Laser or will deliver to Laser prior
to the Company Effective Time true, complete and correct copies of (x) the
two most recent annual reports on Form 5500 filed with the Internal Revenue
Service with respect to each Company Plan (if any such report was
required), (y) the most recent summary plan description for each Company
Plan for which such summary plan description is required and (z) each
currently effective trust agreement, insurance or group annuity contract
and each other material funding or financing arrangement relating to any
Company Plan.
(b) No Commonly Controlled Entity has incurred any liability under
Title IV of ERISA, other than for contributions not yet due to a defined
benefit pension plan subject to Title IV of ERISA and other than for the
payment of premiums to the PBGC not yet due, and no condition exists that
presents a material risk of incurring any such liability, which liability,
to the extent currently due, has not been fully paid as of the date hereof
and would individually or in the aggregate be reasonably likely to result
in a Company Material Adverse Effect.
(c) Except as set forth in Company SEC reports or in Section 4.13
of the Company Disclosure Schedule, neither the Company nor any of its
subsidiaries has any obligation to provide any welfare benefits to
employees or former employees following termination of employment except
(i) for benefits the cost of which is borne entirely by the employee or
former employee, (ii) as required under Section 4980 of the Code or other
applicable law or (iii) obligations to provide such benefits to Company
employees employed in non-U.S. jurisdictions.
(d) No Commonly Controlled Entity has engaged in a transaction
described in Section 4069 of ERISA that could subject the Company or any of
its subsidiaries or Laser to liability at any time after the date hereof,
which liability would be reasonably likely to result in a Company Material
Adverse Effect.
(e) No Commonly Controlled Entity has withdrawn from any
multiemployer plan where such withdrawal has resulted in any actual or
potential "withdrawal liability" (as defined in Section 4201 of ERISA) that
has not been fully paid, which liability would be reasonably likely to
result in a Company Material Adverse Effect.
(f) Except as set forth in Section 4.13 of the Company Disclosure
Schedule or as specifically provided in this Agreement, the transactions
contemplated by this Agreement will not, either alone or in connection with
another event, cause there to be paid or become payable any additional
benefits or any acceleration of the time of payment or vesting of any
benefits under any Company Plan or under any employment, severance,
termination or compensation agreement to which the Company is a party as of
the Company Effective Time.
Section 4.14 Environmental Matters.
(a) Except as disclosed in the Filed Company SEC Reports, the
Company and its subsidiaries are in compliance with all applicable
Environmental Laws, which compliance includes the possession of permits and
governmental authorizations required under applicable Environmental Laws
("Environmental Permits") and compliance with the terms and conditions
thereof, except where such non-compliance would not result in a Company
Material Adverse Effect.
(b) Except as disclosed in the Filed Company SEC Reports, there
are no Environmental Claims pending or, to the knowledge of the Company,
threatened against the Company or any of its subsidiaries that would
reasonably be expected to result in a Company Material Adverse Effect.
(c) Except as disclosed in the Filed Company SEC Reports, the
properties presently or to the knowledge of the Company formerly owned,
leased or operated by the Company or its subsidiaries (including
groundwater under the properties) (the "Properties") do not contain any
Hazardous Substance other than as permitted under applicable Environmental
Law; provided, however, that with respect to Properties formerly owned,
leased or operated by the Company or its subsidiaries, such representation
is limited to the period prior to the disposition of such Properties by the
Company or its subsidiaries.
(d) Except as disclosed in the Filed Company SEC Reports, to the
knowledge of the Company, no Hazardous Substance has been disposed of or
transported from any of the Properties during the time any such Property
was owned, leased or operated by the Company or any of its subsidiaries,
other than as permitted under applicable Environmental Law and in effect at
the time of such disposal or transportation.
(e) Except as disclosed in the Filed Company SEC Reports, to the
knowledge of the Company, the Company and its subsidiaries have not become
obligated, whether by operation of Law or through contractual agreement, to
indemnify any other person or otherwise to assume liability for any claim
brought pursuant to any Environmental Law which could reasonably be
expected to have a Company Material Adverse Effect.
Section 4.15 Intellectual Property. The Company has previously
delivered to Laser a list, which, to the knowledge of the Company, is true
and correct as of the date hereof in all material respects, of all material
issued patents and registered trademarks of the Company. Except as set
forth in Section 4.15 of the Company Disclosure Schedule, the Company and
its subsidiaries own or have sufficient rights to use all material
Intellectual Property used in connection with the business of the Company
and its subsidiaries as currently conducted. As used in this Section 4.15,
the term "material," when applied to Intellectual Property, means that such
Intellectual Property is used in a significant manner to conduct the
business of the Company and its subsidiaries as it is currently conducted.
Section 4.16 Contracts. Except as set forth in Section 4.16 of
the Company Disclosure Schedule, neither the Company nor any of its
subsidiaries is a party to or bound by any material Contract, other than
(i) the Affiliate Agreements listed in Section 4.10 of the Holdings
Disclosure Schedule, (ii) any Contract filed or incorporated by reference
as an exhibit to any Filed Company SEC Report or (iii) any Contract (other
than the Affiliate Agreements listed in Section 4.10 of the Holdings
Disclosure Schedule) entered into in the ordinary course of business
consistent with past practice.
Section 4.17 Opinion of Financial Advisor. The Board of Directors
of the Company has received the opinion of Credit Suisse First Boston,
dated the date hereof to the effect that the Per Share Merger Consideration
is fair to the holders of shares of Company Common Stock (other than
Worldwide) from a financial point of view.
Section 4.18 Takeover Statute. The Board of Directors of the
Company has approved the Holdings Merger solely for the purpose of
rendering inapplicable, and such approval is sufficient to render
inapplicable, to the Company Merger and the other transactions contemplated
by this Agreement the provisions of Section 203 of the DGCL. To the best
of the Company's knowledge, no other state takeover statute or similar
statute or regulation applies or purports to apply to the Company Merger,
this Agreement or any of the transactions contemplated hereby, and no
provision of the certificate of incorporation or by-laws of the Company or
certificates of incorporation or by-laws (or comparable organizational
documents) of any subsidiary of the Company would, directly or indirectly,
restrict or impair the ability of Laser to vote, or otherwise to exercise
the rights of a stockholder with respect to, shares of capital stock of the
Company or any of its subsidiaries that may be acquired or controlled by
Laser.
Section 4.19 Brokers. No broker, investment banker or other
person, other than Credit Suisse First Boston, the fees and expenses of
which will be paid by the Company (as reflected in an agreement between
Credit Suisse First Boston and the Company, a copy of which has been
furnished to Laser), is entitled to any broker's, finder's or other similar
fee or commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of the Company.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF LASER
AND MERGER SUB
Laser and Merger Sub represent and warrant to the Company as
follows:
Section 5.1 Organization. Laser is a corporation duly organized,
validly existing and in good standing under the Laws of the State of
Delaware and has the corporate power to carry on its business as it is now
being conducted. Laser is duly qualified as a foreign corporation to do
business, and is in good standing, in each jurisdiction where the character
of its properties owned or held under lease or the nature of its activities
makes such qualification necessary, except where the failure to be so
qualified would not individually or in the aggregate have a material
adverse effect on the business, results of operations or financial
condition of Laser and its subsidiaries, taken as a whole (a "Laser
Material Adverse Effect").
Section 5.2 Capitalization. The authorized capital stock of Laser
consists of 200,000,000 shares of Laser Common Stock, and 2,000,000 shares
of Laser Preferred Stock. As of February 23, 1998, (i) 85,988,627 shares
of Laser Common Stock were issued and outstanding; (ii) 16,129,197 shares
of Laser Common Stock were issuable upon exercise of employee and non-
employee stock options (the "Laser Stock Options") outstanding under all
stock option plans of Laser (the "Laser Stock Option Plans") or granted
pursuant to employment agreements; and (iii) no shares of Laser Preferred
Stock were issued and outstanding. As of such date, 4,568,959 shares of
Laser Common Stock were held as treasury shares. All of the issued and
outstanding shares of Laser Common Stock are validly issued, fully paid and
nonassessable and free of preemptive rights. All of the shares of Laser
Common Stock issuable as consideration in the Company Merger at the Company
Effective Time in accordance with this Agreement will be, when so issued,
duly authorized, validly issued, fully paid and nonassessable and free of
preemptive rights. As of such date, except as set forth above, there are
no shares of capital stock of Laser issued or outstanding or, as of such
date or as of the date hereof, except as set forth above, any options,
warrants, subscriptions, calls, rights, convertible securities or other
agreements or commitments obligating Laser to issue, transfer, sell,
redeem, repurchase or otherwise acquire any shares of its capital stock or
securities, or the capital stock or securities of Laser. There are no
notes, bonds, debentures or other indebtedness of Laser having the right to
vote (or convertible into or exchangeable for securities having the right
to vote) on any matters upon which stockholders of Laser may vote.
Section 5.3 Merger Sub. Merger Sub is a corporation duly
organized, validly existing and in good standing under the Laws of the
State of Delaware. Merger Sub is a newly incorporated company formed
solely for purposes of consummating the transactions contemplated by this
Agreement and has engaged in no activity other than as provided in, or
contemplated by, this Agreement. The authorized capital stock of Merger
Sub consists of 1,000 shares of Merger Sub Common Stock, all of which are
validly issued, fully paid and nonassessable and are owned by Laser.
Except as set forth above there are no shares of capital stock of Merger
Sub issued or outstanding or any options, warrants, subscription, calls,
rights, convertible securities or other agreements or commitments
obligating Merger Sub to issue, transfer, sell, redeem, repurchase or
otherwise acquire any shares of its capital stock or securities.
Section 5.4 Authority Relative to this Agreement. Each of Laser
and Merger Sub has the corporate power and authority to enter into this
Agreement and to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement by Laser and Merger Sub and the consummation by Laser and Merger
Sub of the transactions contemplated hereby have been duly authorized by
the Boards of Directors of Laser and Merger Sub, and no other corporate
action or proceedings on the part of Laser or Merger Sub (including any
action on the part of its stockholders) is necessary to authorize this
Agreement or the transactions contemplated hereby. This Agreement has been
duly executed and delivered by Laser and Merger Sub and, assuming it is a
valid and binding obligation of the Company, constitutes a valid and
binding agreement of Laser and Merger Sub, enforceable against Laser and
Merger Sub in accordance with its terms, except that such enforcement may
be subject to any bankruptcy, insolvency, reorganization, moratorium or
similar Laws now or hereafter in effect relating to creditors' rights
generally and other forms of equitable relief may be subject to equitable
defenses and the discretion of the court before which any proceedings
therefor may be brought.
Section 5.5 Consents and Approvals; No Violations. Except for
applicable requirements of the HSR Act, the Securities Act, the Exchange
Act, Competition Laws, and state securities or blue sky Laws, and the
filing of the Certificate of Merger in such form as required by, and
executed in accordance with the relevant provisions of, the DGCL, no filing
with, and no permit, authorization, consent or approval of, any
governmental or regulatory authority is necessary for the consummation by
Laser or Merger Sub of the transactions contemplated by this Agreement,
except for such filings, permits, authorizations, consents or approvals the
failure of which to be made or obtained would not (i) individually or in
the aggregate have a Laser Material Adverse Effect or (ii) delay in any
material respect or prevent the consummation of any of the transactions
contemplated by this Agreement. Neither the execution and delivery of this
Agreement by Laser or Merger Sub nor the consummation by Laser or Merger
Sub of the transactions contemplated hereby, nor compliance by Laser with
any of the provisions hereof, will (a) conflict with or result in any
breach of any provisions of the certificate of incorporation or by-laws of
Laser or Merger Sub; (b) 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) under, any
of the terms, conditions or provisions of any material (as defined for
purposes of Form 10-K) Contract to which Laser, Merger Sub or any of their
subsidiaries is a party or by which any of them or any of their properties
or assets may be bound; or (c) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to Laser, Merger Sub, any of their
subsidiaries or any of their properties or assets, except, in the case of
clauses (b) and (c), for violations, breaches or defaults which would not
individually or in the aggregate have a Laser Material Adverse Effect.
Section 5.6 Reports and Financial Statements.
(a) Laser has filed all reports, forms, registrations, schedules,
statements and other documents required to be filed by it with the SEC
since January 1, 1997 (the "Laser SEC Reports"). As of their respective
dates, the Laser SEC Reports complied in all material respects with the
requirements of the Securities Act or the Exchange Act, as the case may be,
and the applicable rules and regulations promulgated thereunder. Except to
the extent that information contained in any Laser SEC Report has been
amended, revised or superseded by a later Laser SEC Report filed and
publicly available prior to the date of this Agreement (as amended, revised
or superseded by a later filed Laser SEC Report to the date of this
Agreement, the "Filed Laser SEC Reports"), none of the Filed Laser SEC
Reports, when filed, contained any untrue statement of a material fact or
omitted 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 were made, not misleading.
(b) The consolidated financial statements of Laser included in the
Filed Laser SEC Reports complied as to form in all material respects with
the applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto, have been prepared in
accordance with GAAP (except, in the case of the unaudited statements, as
permitted by Form 10-Q of the SEC) applied on a consistent basis during the
periods involved (except as may be indicated therein or in the notes
thereto) and fairly present the consolidated financial position of Laser
and its consolidated subsidiaries as of the dates thereof and the
consolidated results of their operations and their consolidated cash flows
for the periods then ended (subject, in the case of the unaudited
statements, to normal year-end audit adjustments and to any other
adjustments described therein).
(c) Except as set forth in the Filed Laser SEC Reports and except
for liabilities and obligations incurred in the ordinary course of business
consistent with past practice since the date of the most recent
consolidated balance sheet included in the Filed Laser SEC Reports (the
"Laser Balance Sheet Date"), neither Laser nor any of the Laser
subsidiaries has any material liabilities or obligations of any nature
(whether accrued, absolute, contingent or otherwise) required by GAAP to be
recognized or disclosed on a consolidated balance sheet of Laser and its
consolidated subsidiaries or in the notes thereto.
Section 5.7 Absence of Certain Changes or Events. Except as set
forth in the Filed Laser SEC Reports, since the Laser Balance Sheet Date,
the business of Laser and its subsidiaries has been conducted only in the
ordinary course of business consistent with past practice, and there has
not been any event, change or development which individually or in the
aggregate has had or would reasonably be expected to have a Laser Material
Adverse Effect or would impair or delay the ability of Laser to consummate
the transactions contemplated by, or to satisfy its obligations under, this
Agreement.
Section 5.8 Litigation. Except as disclosed in the Filed Laser
SEC Reports, there is no suit, action, proceeding or investigation pending
or, to the knowledge of Laser, threatened against or affecting Laser or any
of its subsidiaries that individually or in the aggregate would reasonably
be expected to (i) have a Laser Material Adverse Effect (taking into
account any reserve therefor as of the most recent balance sheet included
in the Filed Laser SEC Reports) or (ii) delay in any material respect or
prevent the consummation of any of the transactions contemplated by this
Agreement, nor is there any judgment, order, decree, statute, Law,
ordinance, rule or regulation of any Governmental Entity or arbitrator
outstanding against Laser or any of its subsidiaries having, or which would
reasonably be expected to have, any effect referred to in clause (i) or
(ii) above.
Section 5.9 Information in Disclosure Documents and Registration
Statement. None of the information to be supplied by Laser for inclusion
or incorporation by reference in (a) the Registration Statement or (b) the
Information Statement, the Schedule 13E-3 or the Section 14(f) Notice will,
in the case of the Registration Statement, at the time it becomes effective
and at the Company Effective Time 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 not misleading, or, in
the case of the Information Statement, the Schedule 13E-3 and the Section
14(f) Notice, at the time of the mailing thereof and, in the case of the
Information Statement and the Schedule 13E-3, at the Company Effective
Time, 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 are
made, not misleading. The Registration Statement will comply as to form in
all material respects with the provisions of the Securities Act and the
rules and regulations promulgated thereunder. The Schedule 13E-3 will
comply as to form in all material respects with the provisions of the
Exchange Act and the rules and regulations promulgated thereunder.
Section 5.10 Taxes.
(a) Laser and its subsidiaries have filed (or there have been
filed on their behalf) with the appropriate governmental authorities all
material Tax Returns required to be filed by them and such Tax Returns are
true, correct and complete in all material respects and disclose all Taxes
required to be paid by them for the periods covered thereby; and
(b) all material Taxes (whether or not shown on any Tax Return)
owed by Laser and its subsidiaries and required to be paid on or before the
Closing Date have been (or will be) timely paid or, in the case of Taxes
which Laser or any of its subsidiaries is presently contesting in good
faith, an adequate reserve has been established for such Taxes in
accordance with GAAP.
Section 5.11 Compliance with Applicable Law. Except as disclosed
in the Filed Laser SEC Reports, Laser and its subsidiaries have received
such certificates, permits, licenses, franchises, consents, approvals,
orders, authorizations and clearances from appropriate Governmental
Entities (the "Laser Licenses") as are necessary to own or lease and
operate their respective properties and to conduct their respective
businesses substantially in the manner described in the Laser SEC Reports
and as currently owned or leased and conducted, and all such Laser Licenses
are valid and in full force and effect, except for any such certificates,
permits, licenses, franchises, consents, approvals, orders, authorizations
and clearances which the failure to have or to be in full force and effect
would not reasonably be expected to have, individually or in the aggregate,
a Laser Material Adverse Effect. Except as disclosed in the Filed Laser
SEC Reports, Laser and its subsidiaries are in compliance in all material
respects with their respective obligations under the Laser Licenses, with
only such exceptions as, individually or in the aggregate, would not
reasonably be expected to have a Laser Material Adverse Effect. Except as
disclosed in the Filed Laser SEC Reports, Laser and its subsidiaries are in
compliance with all judgments, orders, decrees, statutes, Laws, ordinances,
rules and regulations of any Governmental Entity applicable to them, except
for such noncompliance which individually or in the aggregate would not
have a Laser Material Adverse Effect.
Section 5.12 Brokers. No broker, investment banker or other
person, other than Xxxxxx Xxxxxxx, the fees and expenses of which will be
paid by Laser (as reflected in an agreement between Xxxxxx Xxxxxxx and
Laser) is entitled to any broker's, finder's or other similar fee or
commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of Laser.
ARTICLE VI
COVENANTS RELATING TO CONDUCT OF BUSINESS
Section 6.1 Conduct of Business by the Company. During the period
from the date of this Agreement to the Holdings Effective Time, except as
expressly permitted by this Agreement or with the prior written consent of
Laser or as set forth in Section 6.1 of the Company Disclosure Schedule,
the Company shall, and shall cause its subsidiaries to, carry on the
business of the Company and its subsidiaries in the usual, regular and
ordinary course in substantially the same manner as heretofore conducted
and in compliance in all material respects with all applicable Laws and
regulations and, to the extent consistent therewith, use all reasonable
efforts to preserve intact the current business organizations of the
Company and its subsidiaries, and to preserve its relationships with those
persons having business dealings with the Company and its subsidiaries to
the end that the goodwill and ongoing businesses of the Company and its
subsidiaries shall be unimpaired at the Holdings Effective Time. Without
limiting the generality of the foregoing, during the period from the date
of this Agreement to the Holdings Effective Time, the Company agrees as to
itself and its subsidiaries that, except as expressly permitted by this
Agreement or with the prior written consent of Laser or as set forth in
Section 6.1 of the Company Disclosure Schedule:
(i) Neither the Company nor any of its subsidiaries shall
(x) declare, set aside or pay any distributions (whether in cash,
stock or property) with respect to its capital stock or (y) split,
combine, or reclassify any of its capital stock or issue or authorize
the issuance of any other securities in respect of, in lieu of or in
substitution for shares of its capital stock (other than dividends or
stock issuances by a wholly owned subsidiary of the Company to the
Company or another wholly owned subsidiary of the Company);
(ii) Neither the Company nor any of its subsidiaries shall
issue, deliver, sell, pledge or otherwise encumber any shares of its
capital stock, any other voting securities or any securities
convertible into, or any options, warrants or rights to acquire, any
such shares, voting securities or convertible securities (other than
the issuance of Company Common Stock upon the exercise of Employee
Stock Options in accordance with their terms and issuances by a wholly
owned subsidiary of the Company to the Company or another wholly owned
subsidiary of the Company);
(iii) The Company shall not amend its certificate of
incorporation or by-laws;
(iv) Other than as would not be material to the Company,
the Company and its subsidiaries shall not acquire or agree to acquire
(x) by merging or consolidating with, or by purchasing a substantial
portion of the assets of, or in any other manner, any business or any
corporation, limited liability company, partnership, joint venture,
association or other business organization or division thereof or (y)
any assets that individually or in the aggregate are material to the
Company and its subsidiaries;
(v) Other than as would not be material to the Company, the
Company and its subsidiaries shall not sell, lease, license or
otherwise encumber or subject to any Lien or otherwise dispose of any
of the properties or assets of the Company and its subsidiaries, other
than in the ordinary course of business consistent with past practice
or pursuant to existing contractual obligations, if any, set forth in
Section 6.1 of the Company Disclosure Schedule;
(vi) Other than in the ordinary course of business or as
would not be material to the Company, the Company and its subsidiaries
shall not (x) incur any indebtedness or (y) make any loans, advances
or capital contributions to, or investments in, any other person
(other than the Company or a subsidiary of the Company), other than to
officers and employees of the Company and its subsidiaries for travel,
business or relocation expenses in the ordinary course of business;
(vii) Other than in the ordinary course of business or
consistent with the Company's 1998 capital budget;
(viii) Other than in the ordinary course of business, the
Company and its subsidiaries shall not make any material Tax election
or settle or compromise any material income Tax liability;
(ix) Except in the ordinary course of business or except as
would not reasonably be expected to have a Company Material Adverse
Effect, the Company and its subsidiaries (i) shall not enter into any
Contracts and (ii) shall not modify, amend or terminate any material
Contract or agreement to which the Company or any of its subsidiaries
is, or as of the Company Effective Time will be, a party or waive,
release or assign any material rights or claims thereunder;
(x) Except as required by Law or previously existing
contractual arrangements, in the ordinary course of business
consistent with past practice or as disclosed or otherwise provided
in this Agreement, the Company will not, nor will it permit any of its
subsidiaries to, (a) increase the compensation of any of its
employees, (b) enter into any Contract with any of its employees
regarding his or her employment, compensation or benefits, or (c)
adopt any plan, arrangement or policy which would become a Company
Plan or amend any Company Plan to the extent such adoption or
amendment would create or materially increase any material liability
or obligation on the part of the Company or its subsidiaries;
(xi) The Company and its subsidiaries shall not make any
change to their accounting methods, principles or practices, except as
may be required by GAAP or Regulation S-X promulgated by the SEC or by
Law;
(xii) The Company shall not, and shall not permit any of
its subsidiaries to, create, incur, suffer to exist or assume any
material Lien on any of their assets, except as would not have a
Company Material Adverse Effect or materially impair the Company's
conduct of the business and operations of the Company and its
subsidiaries, as presently conducted;
(xiii) The Company shall not, and shall not permit any of
its subsidiaries to enter into any transaction or contract with, or
(except pursuant to the Affiliate Agreements) make any payment to, any
Affiliate of the Company (other than the Company's subsidiaries or its
or their officers or directors in the ordinary course of business
consistent with past practice); and
(xiv) The Company and its subsidiaries shall not authorize,
or commit or agree to take, any of the foregoing actions.
Section 6.2 Other Actions. During the period from the date hereof
to the Holdings Effective Time, the Company and Laser shall not, and shall
not permit any of their respective subsidiaries to, take any action that
would, or that could reasonably be expected to, result in (i) any of the
representations and warranties of such party set forth in this Agreement
that are qualified as to materiality becoming untrue, (ii) any of such
representations and warranties that are not so qualified becoming untrue in
any material respect or (iii) any of the conditions to the Company Merger
set forth in Article VIII hereof not being satisfied.
Section 6.3 Advice of Changes. Upon obtaining knowledge of any
such occurrence, the Company and Laser shall promptly advise the other
party orally and in writing of (i) any representation or warranty made by
it contained in this Agreement that is qualified as to materiality becoming
untrue or inaccurate in any respect or any such representation or warranty
that is not so qualified becoming untrue or inaccurate in any material
respect, (ii) the failure by it to comply with or satisfy in any material
respect any covenant, condition or agreement to be complied with or
satisfied by it under this Agreement or (iii) any change or event (x)
having, or which, insofar as can reasonably be foreseen, would have, in the
case of Laser, a Laser Material Adverse Effect and, in the case of the
Company, a Company Material Adverse Effect, (y) having, or which, insofar
as can reasonably be foreseen, would have, the effect set forth in clause
(i) above or (z) which has resulted, or which, insofar as can reasonably be
foreseen, would result, in any of the conditions set forth in Article VIII
hereof not being satisfied; provided, however, that no such notification
shall affect the representations, warranties, covenants or agreements of
the parties or the conditions to the obligations of the parties under this
Agreement.
Section 6.4 Conduct of Business of Merger Sub. From the date
hereof to the Company Effective Time, Merger Sub shall not (i) engage in
any activities of any nature, (ii) acquire any assets, or (iii) incur any
indebtedness or assume any liabilities or obligations, in each case, except
as provided in or contemplated by this Agreement.
Section 6.5 Section 14(f) Notice. Promptly after the date hereof,
Laser shall provide to the Company in writing the information with respect
to the Laser Designees (as defined in the Holdings Merger Agreement)
required by Section 14(f) of the Exchange Act and Rule 14f-1 of the SEC.
Promptly after its receipt of such information, the Company shall file with
the SEC and mail to all stockholders of record of the Company the Section
14(f) Notice.
ARTICLE VII
ADDITIONAL AGREEMENTS
Section 7.1 Preparation of the Registration Statement, the
Information Statement, the Schedule 13E-3 and the Section 14(f) Notice. As
soon as reasonably practicable following the date of this Agreement, Laser
and the Company shall prepare and file with the SEC the Information
Statement and Laser shall prepare and file with the SEC the Registration
Statement, in which the Information Statement will be included as a
prospectus (including the financial statements and pro forma financial
information required to be set forth therein), and the Schedule 13E-3 and
the Section 14(f) Notice. Laser shall use all reasonable best efforts to
have the Registration Statement declared effective under the Securities Act
and the Schedule 13E-3 and the Section 14(f) Notice cleared by the SEC and
mailed as promptly as practicable after such filing. The Company will use
all reasonable best efforts to cause the Information Statement and the
Schedule 13E-3 and the Section 14(f) Notice to be mailed to the Company's
stockholders as promptly as practicable after it has been cleared by the
SEC. Each of Laser and the Company shall also take any action (other than
qualifying to do business in any jurisdiction in which it is not now so
qualified or to file a general consent to service of process) required to
be taken under any applicable state securities Laws in connection with the
issuance of Laser Common Stock in connection with the Company Merger and
the Holdings Merger. The Company shall furnish all information concerning
the Company, its subsidiaries and the holders of the Company Common Stock
and Laser shall furnish all information concerning Laser and its
subsidiaries, in each case, as may be reasonably requested in connection
with any such action.
Section 7.2 Access and Information; Confidentiality. The Company
and Laser shall each afford to the other and to the other's financial
advisors, legal counsel, accountants, consultants and other representatives
full access at all reasonable times throughout the period prior to the
Company Effective Time to all of its books, records, properties, plants and
personnel (provided that all such access shall be on reasonable advance
notice and shall not disrupt normal business operations) and, during such
period, each shall furnish promptly to the other (a) a copy of each report,
schedule and other document filed or received by it pursuant to the
requirements of federal or state securities Laws, and (b) all other
information as such other party may reasonably request, provided that no
investigation pursuant to this Section 7.2 shall affect any representations
or warranties made herein or the conditions to the obligations of the
respective parties to consummate the Company Merger. Each party and their
respective affiliates, representatives and agents shall hold in confidence
all nonpublic information in accordance with the terms of the
Confidentiality Agreements between Laser and the Company dated February 4,
1998 and February 23, 1998.
Section 7.3 Comfort Letters.
(a) The Company shall use its reasonable best efforts to cause to
be delivered to Laser "comfort" letters of Ernst & Young, LLP, the
Company's independent public accountants, dated the date on which the
Registration Statement shall become effective and as of the date on which
the Information Statement is mailed to the Company's stockholders, and
addressed to Laser and the Company, in form and substance reasonably
satisfactory to Laser and as is reasonably customary in scope and substance
for letters delivered by independent public accountants in connection with
transactions such as those contemplated by this Agreement.
(b) Laser shall use its reasonable best efforts to cause to be
delivered to the Company "comfort" letters of Xxxxxx Xxxxxxxx, LLP, Laser's
independent public accountants, dated the date on which the Registration
Statement shall become effective and as of the date on which the
Information Statement is mailed to the Company's stockholders, and
addressed to the Company and Laser, in form and substance reasonably
satisfactory to the Company and as is reasonably customary in scope and
substance for letters delivered by independent public accountants in
connection with transactions such as those contemplated by this Agreement.
Section 7.4 Listing Application. Laser shall prepare and submit
to the NYSE a listing application covering the Laser Shares to be issued in
connection with the Company Merger, and shall use its reasonable best
efforts to obtain, prior to the Company Effective Time, approval for the
listing of such Laser Shares, subject to official notice of issuance.
Section 7.5 Affiliates. Prior to the Company Effective Time, the
Company shall cause to be prepared and delivered to Laser a list
(reasonably satisfactory to counsel for Laser) identifying each person who,
at the time the Information Statement is mailed to the Company's
stockholders, may be deemed to be an "affiliate" of the Company, as such
term is used in paragraphs (c) and (d) of Rule 145 under the Securities Act
(the "Company Rule 145 Affiliates"). The Company shall use its reasonable
best efforts to cause such person who is identified as a Company Rule 145
Affiliate in such list to deliver to Laser on or prior to the Company
Effective Time a written agreement, in customary form, that such Company
Rule 145 Affiliate will not (i) sell, pledge, transfer or otherwise dispose
of, or in any other way reduce such Company Rule 145 Affiliate's risk
relative to, any Laser Shares issued to such Company Rule 145 Affiliate in
connection with the Company Merger, except pursuant to an effective
registration statement or in compliance with such Rule 145 or another
exemption from the registration requirements of the Securities Act or (ii)
sell or in any other way reduce such Rule 145 Affiliate's risk relative to
any Laser Shares received in the Company Merger (within the meaning of
Section 201.01 of the SEC's Financial Reporting Release No. 1) during the
period commencing thirty (30) days prior to the Company Effective Time and
ending at such time as the financial results (including combined sales and
net income) covering at least thirty (30) days of post-Merger operations
have been published, except as permitted by Staff Accounting Bulletin No.
76 issued by the SEC.
Section 7.6 HSR Act; Competition Laws. As soon as reasonably
practicable, the Company, Laser and Merger Sub shall make or cause to be
made all filings and submissions under the HSR Act (if applicable) and any
other applicable Competition Laws as may be reasonably required to be made
in connection with this Agreement and the transactions contemplated hereby.
Subject to Section 7.2 hereof, the Company will furnish to Laser and Laser
will furnish to the Company, such information and assistance as the other
may reasonably request in connection with the preparation of any such
filings or submissions. Subject to Section 7.2 hereof, the Company will
provide Laser, and Laser will provide the Company, with copies of all
correspondence, filings or communications (or memoranda setting forth the
substance thereof) between such party or any of its representatives, on the
one hand, and any governmental agency or authority or members of their
respective staffs, on the other hand, with respect to this Agreement and
the transactions contemplated hereby. The Company and Laser shall consult
with one another with respect to any such correspondence, filings or
communications and shall engage in discussions with any Governmental Entity
on a joint basis.
Section 7.7 Employee Matters.
(a) From and after the Holdings Effective Time, Laser shall honor,
and shall cause the Company to honor, all employment, severance,
termination, consulting and retirement agreements to which the Company is a
party as of the Holdings Effective Time; provided, however, that (i)
neither Laser nor the Company shall have any responsibility for the
Company's obligations under that certain employment agreement entered into
as of October 1, 1997, between the Company and Xxxxx X. Xxxxx (except for
the incentive payment provided for in section 3.2(b) thereof (relating to
the divestiture of Xxxxxxx Safety & Security Products, Inc.), which shall
be the responsibility of the Company and paid in accordance with the terms
of section 3.2(b) thereof), and (ii) neither Laser nor the Company shall
have any responsibility for the Company's obligations under that certain
employment agreement entered into as of July 1, 1997, between the Company
and Xxxx X. Xxxxxxx. Except as provided in the first sentence of Section
7.7(b) or the proviso to this sentence, from and after the Holdings
Effective Time, Laser will cause the Company to allow Company employees to
participate in Laser employee benefit plans on substantially the same basis
as similarly situated Laser employees; provided, however, that Laser will
cause the Company to continue the Company Plans for at least six (6) months
following the Holdings Effective Time. Laser will or will cause the
Company to give Company employees full credit for purposes of eligibility
and vesting of benefits and benefit accrual for service with the Company
and its affiliates prior to the Holdings Effective Time under each Laser
employee benefit plan; provided, however, that no such crediting of service
results in duplication of benefits. With respect to any welfare benefit
plans maintained for the benefit of Company employees from and after the
Holdings Effective Time, Laser shall (i) cause there to be waived any pre-
existing condition limitations and (ii) give effect, in determining any
deductible and maximum out-of-pocket limitations, to claims incurred and
amounts paid by, and amounts reimbursed to, such employees with respect to
similar plans maintained by the Company for such employee's benefit
immediately prior to the Holdings Effective Time. Laser acknowledges that,
for the purposes of certain of such Company Plans and certain of such other
employment, severance, termination, consulting and retirement agreements to
which the Company is currently a party, the consummation of the Holdings
Merger will constitute a "change in control" of the Company (as such term
is defined in such plans and agreements). Laser agrees to cause the
Company, after the Holdings Effective Time, to pay all amounts provided
under such Company Plans and agreements as a result of a change in control
of the Company in accordance with their respective terms and to honor, and
to cause the Company to honor, all rights, privileges and modifications to
or with respect to any such Company Plans or agreements which become
effective as a result of such change in control.
(b) Laser shall cause the Company to continue the Company's
Executive Annual Incentive Policy for the remainder of 1998, and
participants therein shall not be eligible for participation in an
analogous Laser incentive plan in respect of 1998. Laser shall honor, and
shall cause the Company to honor, the Company's Executive Severance Policy
without any amendment adverse to participants. Laser shall provide
severance benefits for employees of the Company, who are not participants
in Company's Executive Severance Policy and who do not have employment
agreements with the Company, under the Laser severance policy on the same
basis as similarly situated Laser employees provided that severance
benefits shall be no less than those set forth on Schedule 7.7(b).
(c) Effective as of the ninety-first (91st) day following the
Holdings Effective Time, the participants in the Executive Severance Policy
set forth on Schedule 7.7(c) may voluntarily terminate their employment,
which termination will be deemed to be for "Good Reason" under the
Executive Severance Policy as a result of the consummation of the Holdings
Merger.
(d) Laser and the Company agree to take all necessary action to
provide that, effective as of the Holdings Effective Time, all outstanding
Employee Stock Options shall be vested and exercisable as of the Holdings
Effective Time, and between the Holdings Effective Time and the Company
Effective Time, Laser shall cause the Company to maintain a broker-dealer
cashless exercise procedure for the exercise of Employee Stock Options.
Laser and the Company agree to take all other actions necessary to provide
for the cancellation, effective at the Company Effective Time, of each
outstanding Employee Stock Option and, in settlement therefor, a payment to
the holder of the Employee Stock Option in cash by Laser or the Company at
the Company Effective Time equal to the product of (i) the total number of
shares of Company Common Stock subject to such Employee Stock Option, and
(ii) the excess of $27.50 over the exercise price per share of Company
Common Stock subject to such Employee Stock Option, less any applicable
withholding taxes.
(e) Laser agrees that, at or prior to the Holdings Effective Time,
Holdings may cause the Company to (i) assume sponsorship of the pension,
retirement, savings, retiree health care and life insurance and other plans
maintained by New Xxxxxxx Holdings, Inc. that are reflected in footnotes 7
and 12 to the 1996 financial statements included in the Company's 1996
Annual Report on SEC Form 10-K (as such plans may have been changed in the
ordinary course of business since December 31, 1996) (the "Plans"), and
(ii) assume the liabilities and obligations of New Xxxxxxx Holdings, Inc.
under the Plans to the extent reflected in such footnotes (as such
liabilities and obligations may have changed in the ordinary course of
business since December 31, 1996). The documents used to effect such
assumption shall be in form and substance reasonably satisfactory to Parent
Holdings and Laser.
Section 7.8 Continuance of Existing Indemnification Rights.
(a) For six (6) years after the Company Effective Time (and during
the period following the Holdings Effective Time but prior to the Company
Effective Time), Laser shall, or shall cause the Surviving Corporation to,
indemnify, defend and hold harmless any person who is now, or has been at
any time prior to the date hereof, or who becomes prior to the Company
Effective Time, a director or officer of the Company (an "Indemnified
Person") against all losses, claims, damages, liabilities, costs and
expenses (including attorneys' fees and expenses), judgments, fines, losses
and amounts paid in settlement in connection with any actual or threatened
action, suit, claim, proceeding or investigation (each, a "Claim") to the
extent that any such Claim is based on, or arises out of: (i) the fact that
such Indemnified Person is or was a director or officer of the Company or
is or was serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise; or (ii) this Agreement or the Holdings Merger
Agreement or any of the transactions contemplated hereby or thereby, in
each case to the extent that any such Claim pertains to any matter or fact
arising, existing or occurring prior to or at the Company Effective Time,
regardless of whether such Claim is asserted or claimed prior to, at or
after the Company Effective Time, to the full extent permitted under the
DGCL, the Company's certificate of incorporation or by-laws or any
indemnification agreement in effect at the date hereof, including
provisions relating to advancement of expenses incurred in the defense of
any such Claim; provided, however, that neither Laser nor the Surviving
Corporation shall be required to indemnify any Indemnified Person in
connection with any proceeding (or portion thereof) involving any Claim
initiated by such Indemnified Person against the Company unless the
initiation of such proceeding (or portion thereof) was authorized by the
Board of Directors of the Company or unless such proceeding is brought by
an Indemnified Person to enforce rights under this Section 7.8; and
provided further that in the event any Claim is asserted or made within
such period, all such rights, liabilities and limitations in respect of any
such Claim shall continue until disposition thereof. Without limiting the
generality of the preceding sentence, in the event any Indemnified Person
becomes involved in any Claim after the Company Effective Time, Laser
shall, or shall cause the Surviving Corporation to, periodically advance to
such Indemnified Person its legal and other expenses (including the cost of
any investigation and preparation incurred in connection therewith),
subject to the providing by such Indemnified Person of an undertaking to
reimburse all amounts so advanced in the event of a final non-appealable
determination by a court of competent jurisdiction that such Indemnified
Person is not entitled thereto.
(b) Laser and the Company agree that all rights to
indemnification, and all limitations with respect thereto, existing in
favor of any Indemnified Person, as provided in the Company's certificate
of incorporation or by-laws and any indemnification agreement in effect at
the date hereof, shall survive the Holdings Merger and the Company Merger
and shall continue in full force and effect, without any amendment thereto,
for a period of six (6) years from the Company Effective Time (and during
the period following the Holdings Effective Time but prior to the Company
Effective Time) to the extent such rights and limitations are consistent
with the DGCL; provided, however, that in the event any Claim is asserted
or made within such period, all such rights, liabilities and limitations in
respect of any such Claim shall continue until disposition thereof;
provided further that any determination required to be made with respect to
whether an Indemnified Person's conduct complies with the standards set
forth under the DGCL, the Company's certificate of incorporation or by-laws
or any such agreement, as the case may be, shall be made by independent
legal counsel selected by such Indemnified Person and reasonably acceptable
to Laser; and provided further that nothing in this Section 7.8 shall
impair any rights or obligations of any current or former director or
officer of the Company.
(c) Laser or the Surviving Corporation shall use reasonable best
efforts to obtain a liability insurance policy ("D&O Insurance") for the
benefit of the Company's existing and former directors and officers
commencing at the Holdings Effective Time and for a period of not less than
six (6) years after the Company Effective Time providing substantially
similar coverage in amounts and on terms no less advantageous than that
currently provided to such existing and former directors and officers;
provided further that neither Laser nor the Surviving Corporation shall be
required to pay an annual premium for D&O Insurance in excess of 200% of
the last annual premium paid prior to the date hereof, but in such case
shall purchase as much coverage as possible for such amount.
(d) The provisions of this Section 7.8 are intended to be for the
benefit of, and shall be enforceable by, each Indemnified Person, his or
her heirs and his or her personal representatives.
Section 7.9 Expenses. Whether or not the Company Merger is
consummated, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expenses.
Section 7.10 Public Announcements. Laser and the Company shall
consult with each other before issuing their respective initial press
releases to be issued with respect to the transactions contemplated by this
Agreement and the Holdings Merger.
Section 7.11 Reasonable Best Efforts. Upon the terms and subject
to the conditions set forth in this Agreement, each of the parties hereto
agrees to use its reasonable best efforts to take, or cause to be taken,
all actions, and to do, or cause to be done, and to assist and cooperate
with the other parties in doing, all things necessary, proper or advisable,
to consummate and make effective, in the most expeditious manner
practicable, the Company Merger and the other transactions contemplated by
this Agreement, including, but not limited to: (i) the obtaining of all
necessary actions or nonactions, waivers, consents and approvals from all
Governmental Entities and the making of all necessary registrations and
filings with, and the taking of all other reasonable steps as may be
necessary to obtain an approval or waiver from, or to avoid an action or
proceeding by, any Governmental Entity (including those in connection with
the HSR Act, if applicable); (ii) the obtaining of all necessary consents,
approvals or waivers from persons other than Governmental Entities; (iii)
the defending of any lawsuits or other legal proceedings, whether judicial
or administrative, challenging this Agreement or the consummation of the
transactions contemplated hereby, including seeking to have any stay or
temporary restraining order entered by any court or other Governmental
Entity vacated or reversed; and (iv) the execution and delivery of any
additional instruments necessary to consummate the transactions
contemplated by this Agreement. Notwithstanding the foregoing, nothing in
this Agreement shall be deemed to require any party hereto to enter into
any agreement with any Governmental Entity or to consent to any order,
decree or judgment requiring such party to hold, separate or divest, or to
restrict the dominion or control of such party or any of its Affiliates
over, any of the assets, properties or businesses of such party or its
Affiliates in existence on the date hereof.
ARTICLE VIII
CONDITIONS TO CONSUMMATION OF THE MERGER
Section 8.1 Conditions to Each Party's Obligation to Effect the
Company Merger. The respective obligations of each party to effect the
Company Merger shall be subject to the satisfaction or waiver, to the
extent permitted by Law, at or prior to the Company Effective Time of the
following conditions:
(a) The Registration Statement shall have become effective in
accordance with the provisions of the Securities Act and no stop order
suspending the effectiveness of the Registration Statement shall be in
effect and no proceeding for such purpose shall be pending before or
threatened by the SEC; and all applicable time periods required under the
Securities Act and the Exchange Act following the mailing of the
Information Statement to the Company's stockholders shall have lapsed.
(b) The Laser Shares shall have been approved for listing on the
NYSE, subject to official notice of issuance.
(c) No preliminary or permanent injunction or other order by any
federal or state court in the United States of competent jurisdiction which
prohibits the consummation of the Company Merger shall have been issued and
remain in effect.
(d) The Holdings Merger shall have been consummated in accordance
with its terms and the applicable provisions of the DGCL.
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
Section 9.1 Termination. This Agreement shall terminate
automatically upon the termination of the Holdings Merger Agreement in
accordance with its terms.
Section 9.2 Effect of Termination. In the event of termination of
this Agreement as provided in Section 9.1 hereof, this Agreement shall
forthwith become void and there shall be no liability on the part of any of
the parties; provided that the provisions of Sections 7.2 and 7.9 and of
this Article IX shall continue and that nothing herein shall relieve any
party from liability for any willful breach hereof.
Section 9.3 Amendment. This Agreement may be amended by the
parties pursuant to a writing adopted by action taken by all of the parties
at any time prior to (but not following) the consummation of the Holdings
Merger. This Agreement may not be amended except by an instrument in
writing signed by all the parties hereto.
Section 9.4 Extension; Waiver. At any time prior to (but not
following) the consummation of the Holdings Merger any party hereto may (a)
extend the time for the performance of any of the obligations or other acts
of the other parties, (b) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto
and (c) waive compliance with any of the agreements or conditions contained
herein. Any agreement on the part of a party to any such extension or
waiver shall be valid only as against such party and only if set forth in
an instrument in writing signed by such party. The failure of any party to
this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of such rights.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 No Survival of Representations and Warranties. No
representations or warranties contained herein shall survive beyond the
Company Effective Time. This Section 10.1 shall not limit any covenant or
agreement of the parties which by its terms contemplates performance after
the Company Effective Time.
Section 10.2 Notices. All notices or other communications
hereunder shall be deemed to have been duly given and made if in writing
and if served by personal delivery upon the party for whom it is intended,
if delivered by registered or certified mail, return receipt requested, or
by a national courier service, or if sent by telecopier; provided that the
telecopy is promptly confirmed by telephone confirmation thereof, to the
person at the address set forth below, or such other address as may be
designated in writing hereafter, in the same manner, by such person:
(a) If to Laser, to:
Sunbeam Corporation
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
(b) If to the Company, to:
CLN Holdings Inc.
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx #000-X
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
Any such notification shall be deemed delivered (i) upon receipt, if
delivered personally, (ii) on the next business day, if sent by national
courier service for next business day delivery or (iii) the business day
received, if sent by telecopier.
Section 10.3 Descriptive Headings. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
Section 10.4 Entire Agreement; No Third-Party Beneficiary. This
Agreement (including the Exhibits, Disclosure Schedules and other documents
and instruments referred to herein) (a) constitutes the entire agreement
and supersedes all other prior agreements and understandings, both written
and oral, among the parties or any of them, with respect to the subject
matter hereof; (b) except for the provisions of Sections 7.7(c) and 7.8
hereof, is not intended to confer upon any other person any rights or
remedies hereunder.
Section 10.5 Interpretation. When a reference is made in this
Agreement to an Article, Section or Annex, such reference shall be to an
Article or Section of, or an Annex to, this Agreement unless otherwise
indicated. Whenever the words "include", "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation". The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
The phrase "made available" in this Agreement shall mean that the
information referred to has been made available if requested by the party
to whom such information is to be made available. All terms defined in
this Agreement shall have the defined meanings used in any certificate or
other document made or delivered pursuant hereto unless otherwise defined
therein. The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such term. Any agreement,
instrument or statute defined or referred to herein or in any agreement or
instrument that is referred to herein means such agreement, instrument or
statute as from time to time amended, modified or supplemented, including
(in the case of agreements or instruments) by waiver or consent and (in the
case of statutes) by succession of comparable successor statutes and
references to all attachments thereto and instruments incorporated therein.
References to a person are also to its permitted successors and assigns
and, in the case of an individual, to his heirs and estate, as applicable.
Section 10.6 Severability. If any provision of this Agreement or
the application thereof to any person or circumstance is determined by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions hereof, or the application of such provision to
persons or circumstances other than those as to which it has been held
invalid or unenforceable, shall remain in full force and effect and shall
in no way be affected, impaired or invalidated thereby. Upon any such
determination, the parties shall negotiate in good faith in an effort to
agree upon a suitable and equitable substitute provision to effect original
intent of the parties.
Section 10.7 Assignment. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of Law or otherwise by any of the parties
without the prior written consent of the other parties. Any assignment in
violation of the preceding sentence shall be void. 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.
Section 10.8 Disclosure Schedules. Matters reflected on the
Company Disclosure Schedule are not necessarily limited to matters required
by this Agreement to be reflected therein and the inclusion of such matters
shall not be deemed an admission that such matters were required to be
reflected on the Company Disclosure Schedule. Such additional matters are
set forth for informational purposes only and do not necessarily include
other matters of a similar nature. Capitalized terms used in the Company
Disclosure Schedule but not otherwise defined therein shall have the
respective meanings assigned to such terms in this Agreement.
Section 10.9 Governing Law. This Agreement shall be governed by
and construed in accordance with the Laws of the State of Delaware without
giving effect to the provisions thereof relating to conflicts of Law.
Section 10.10 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any of the provisions of this
Agreement were not performed in accordance with the terms hereof and that
the parties shall be entitled to specific performance of the terms hereof,
in addition to any other remedy at Law or equity.
Section 10.11 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed to be an original but
all of which shall constitute one and the same agreement.
Section 10.12 Certain Terms. As used herein, (i) the term
"material adverse effect" (including as used in any definition), with
respect to any Person, shall exclude any change, event, effect or
circumstance (a) arising in connection with the announcement or performance
of the transactions contemplated by this Agreement or the Holdings Merger
Agreement and (b) affecting the United States economy generally or such
Person's industries generally; and (ii) "to the knowledge of the Company"
shall mean to the actual knowledge of Xxxx X. Xxxxxxx, Xxxxx X. Xxxxx and
Xxxxxx X. Xxxx.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf by its officers thereunto duly
authorized, all as of the date first above written.
SUNBEAM CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
CAMPER ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title:
THE XXXXXXX COMPANY, INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
