EXHIBIT 1
EXECUTION COPY
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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
THREE CITIES FUND II, L.P.,
THREE CITIES OFFSHORE II C. V.,
LF ACQUISITION CO.,
LF MERGER CO.
AND
THE XXXXXX XXX COMPANY, INC.
DATED AS OF MARCH 26, 2001
TABLE OF CONTENTS
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ARTICLE I THE MERGER ....................................................................................2
Section 1.1 The Merger.........................................................................2
Section 1.2 Closing............................................................................2
Section 1.3 Effective Time.....................................................................2
Section 1.4 Effects of the Merger..............................................................2
Section 1.5 Certificate of Incorporation and By-laws of the Surviving Corporation..............2
Section 1.6 Officers and Directors of the Surviving Corporation................................3
ARTICLE II EFFECT OF MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS.........................3
Section 2.1 Company Common Stock...............................................................3
Section 2.2 Merger Sub Shares..................................................................3
Section 2.3 Exchange of Certificates...........................................................4
Section 2.4 Dissenting Shares..................................................................5
Section 2.5 Stock Options......................................................................6
Section 2.6 Lost, Stolen or Destroyed Certificates.............................................6
Section 2.7 Adjustments to Prevent Dilution....................................................6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY................................................7
Section 3.1 Organization and Qualification; Subsidiaries.......................................7
Section 3.2 Certificate of Incorporation and By-Laws...........................................7
Section 3.3 Capitalization.....................................................................7
Section 3.4 Authority..........................................................................8
Section 3.5 No Conflict........................................................................8
Section 3.6 Required Filings and Consents......................................................9
Section 3.7 Permits; Compliance with Law.......................................................9
Section 3.8 SEC Filings; Financial Statements.................................................10
Section 3.9 Absence of Certain Changes or Events..............................................11
Section 3.10 Litigation........................................................................11
Section 3.11 Environmental Matters.............................................................11
Section 3.12 Contracts.........................................................................11
Section 3.13 Taxes. ..........................................................................11
Section 3.14 Brokers...........................................................................11
Section 3.15 Certain Statutes..................................................................12
Section 3.16 Information.......................................................................12
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYERS, PARENT AND MERGER SUB..............................12
Section 4.1 Organization......................................................................12
Section 4.2 Certificate of Incorporation and By-Laws..........................................12
Section 4.3 Capitalization of Merger Sub......................................................12
Section 4.4 Authority.........................................................................13
Section 4.5 No Conflict.......................................................................13
Section 4.6 Required Filings and Consents.....................................................13
Section 4.7 Brokers...........................................................................14
Section 4.8 Information.......................................................................14
Section 4.9 Interim Operations of Merger Sub..................................................14
Section 4.10 Financing.........................................................................14
ARTICLE V COVENANTS 14
Section 5.1 Conduct of Business of the Company................................................14
Section 5.2 Certain Interim Operations........................................................14
Section 5.3 Other Actions.....................................................................15
Section 5.4 Notification of Certain Matters...................................................15
Section 5.5 Proxy Statement...................................................................15
Section 5.6 Stockholders' Meeting.............................................................17
Section 5.7 Access to Information.............................................................17
Section 5.8 No Solicitation...................................................................17
Section 5.9 Directors' and Officers' Indemnification..........................................18
Section 5.10 Consents; Filings; Further Action.................................................19
Section 5.11 Public Announcements..............................................................20
Section 5.12 Expenses..........................................................................20
Section 5.13 Takeover Statutes.................................................................20
ARTICLE VI CONDITIONS 20
Section 6.1 Conditions to Each Party's Obligation to Effect the Merger........................20
Section 6.2 Conditions to Obligation of Buyers, Parent and the Merger Sub.....................21
Section 6.3 Conditions to Obligation of the Company...........................................21
ARTICLE VII TERMINATION.................................................................................21
Section 7.1 Termination.......................................................................21
Section 7.2 Effect of Termination.............................................................22
ARTICLE VIII MISCELLANEOUS..............................................................................23
Section 8.1 Defined Terms.....................................................................23
Section 8.2 Non-Survival of Representations and Warranties....................................25
Section 8.3 VENUE; WAIVER OF JURY TRIAL.......................................................25
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Section 8.4 Notices...........................................................................26
Section 8.5 Entire Agreement..................................................................28
Section 8.6 No Third-Party Beneficiaries......................................................28
Section 8.7 Obligations of Buyers and of the Company..........................................28
Section 8.8 Counterparts......................................................................28
Section 8.9 Interpretation....................................................................28
Section 8.10 Assignment........................................................................28
Section 8.11 Specific Performance..............................................................28
Section 8.12 Waivers and Amendments; Non-Contractual Remedies; Preservation of Remedies........29
Section 8.13 Usage.............................................................................29
Section 8.14 Headings..........................................................................29
Section 8.15 Further Assurances................................................................29
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INDEX OF DEFINED TERMS
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Agreement..................................................................1
Blue Sky Laws..............................................................9
Buyers.....................................................................1
Certificate of Merger......................................................2
Charter Documents..........................................................7
Closing....................................................................2
Closing Date...............................................................2
Code.......................................................................5
Common Shares..............................................................1
Company....................................................................1
Company Disclosure Letter..................................................8
Company Option Plans.......................................................6
Company Permits............................................................9
Company Preferred Stock....................................................7
Company SEC Reports.......................................................10
Company Stock Option.......................................................6
Company Stockholders Meeting..............................................15
Company Subsidiaries.......................................................7
Consideration Certificates.................................................4
D&O Insurance.............................................................19
Delaware State Secretary...................................................2
DGCL.......................................................................1
Dissenting Shares..........................................................5
Dissenting Stockholder.....................................................5
Effective Time.............................................................2
Exchange Agent.............................................................4
Financial Advisor.........................................................11
Form 10-K..................................................................7
Indemnified Parties.......................................................19
Merger.....................................................................1
Merger Consideration.......................................................1
Merger Convertible Shares..................................................3
Merger Sub.................................................................1
Merger Sub Charter Documents..............................................12
Merger Sub Common Stock....................................................3
Parent.....................................................................1
Parent Charter Documents..................................................12
Parent-Owned Shares........................................................3
Proxy Statement...........................................................15
Representatives...........................................................17
Requisite Company Vote.....................................................8
Securities Act.............................................................9
Special Committee..........................................................1
Surviving Corporation......................................................1
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Surviving Corporation Common Shares........................................1
Takeover Proposal.........................................................17
TCF II.....................................................................1
TCO........................................................................1
Treasury Shares............................................................3
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, is made and entered into as
of this 26th day of March, 2001 (the "Agreement"), by and among THREE CITIES
FUND II, L.P., a Delaware limited partnership ("TCF II"), THREE CITIES OFFSHORE
II C.V., a Netherlands Antilles limited partnership ("TCO" and, together with
TCF II, "BUYERS"), LF ACQUISITION CO., a Delaware corporation organized by
Buyers ("PARENT"), LF MERGER CO., a Delaware corporation owned by Parent
("MERGER SUB"), and THE XXXXXX XXX COMPANY, INC., a Delaware corporation (the
"COMPANY").
WHEREAS, Buyers, Parent and the Company desire that Merger Sub
merge with and into the Company (the "Merger"), upon the terms and conditions
set forth herein and in accordance with the General Corporation Law of the State
of Delaware (the "DGCL") with the result that the Company shall continue as the
surviving corporation (the "SURVIVING Corporation") and the separate existence
of Merger Sub shall cease;
WHEREAS, Buyers, Parent and the Company desire that upon the
Merger, at the Effective Time (as hereinafter defined), each issued and
outstanding share of common stock, par value $.01 per share, of the Company
(collectively, the "COMMON SHARES"), other than Parent-Owned Shares, Treasury
Shares and Dissenting Shares (each as hereinafter defined) be converted into the
right to receive $5.00 per Common Share in cash (the "MERGER CONSIDERATION"),
upon the terms and subject to the conditions provided for herein;
WHEREAS, Buyers, Parent and the Company desire that upon the
Merger, at the Effective Time, each issued and outstanding share of capital
stock of Merger Sub be converted into one (1) validly issued, fully paid and
non-assessable share of common stock, par value $.01 per share, of the Surviving
Corporation (collectively, the "SURVIVING CORPORATION COMMON Shares");
WHEREAS, a Special Committee (the "SPECIAL COMMITTEE") of the
Board of Directors of the Company (composed entirely of directors who have no
direct or indirect interest in the transactions contemplated hereby) and the
respective Boards of Directors of the Company, Parent and Merger Sub have each
approved this Agreement and declared it to be advisable; and
WHEREAS, Buyers own 3,269,966 Common Shares in the aggregate
which, together with an aggregate of 609,556 Common Shares owned by management
of the Company and 8,000 Common Shares owned by certain affiliates of Buyers,
will be exchanged for an equal number of shares of common stock, par value $.01
per share, of Parent immediately prior to the Effective Time.
NOW, THEREFORE, in consideration of the premises and
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, agree as follows:
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ARTICLE I
THE MERGER
Section 1.1 THE MERGER. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with the DGCL at the
Effective Time (as defined herein), Merger Sub shall be merged with and into the
Company, whereupon the separate existence of Merger Sub shall cease, and the
Company shall continue as the Surviving Corporation.
Section 1.2 CLOSING. Upon the terms and subject to the
conditions of this Agreement, the closing of the Merger (the "CLOSING") shall
take place as soon as practicable, but in no event later than the second
business day (the "CLOSING DATE") following satisfaction or waiver of all of the
conditions set forth in Article VI, at the offices of Xxxx, Weiss, Rifkind,
Xxxxxxx & Xxxxxxxx, 1285 Avenue of the Americas, New York, New York or at such
other place and time and/or other date as agreed to in writing by the parties
hereto.
Section 1.3 EFFECTIVE TIME. At the Closing Date (or on such other
date as the parties hereto agree may agree), the Company will cause a
Certificate of Merger (the "CERTIFICATE OF MERGER") and all other filings
required by Delaware law in connection with the Merger to be executed in
accordance with the relevant provisions of the DGCL, and delivered for filing
with the Secretary of State of the State of Delaware (the "DELAWARE STATE
SECRETARY"). The Merger shall become effective upon the filing of the
Certificate of Merger with the Delaware State Secretary or at such later time as
Buyers and the Company shall agree and as is specified in the Certificate of
Merger (the "EFFECTIVE TIME").
Section 1.4 EFFECTS OF THE MERGER. The Merger shall have the
effects set forth in the applicable provisions of the DGCL. Without limiting the
generality of the foregoing, and subject thereto, at the Effective Time, all
property of the Company and Merger Sub shall vest in the Surviving Corporation,
and all liabilities and obligations of the Company and Merger Sub shall become
liabilities and obligations of the Surviving Corporation.
Section 1.5 CERTIFICATE OF INCORPORATION AND BY-LAWS OF THE
SURVIVING CORPORATION. Pursuant to the Merger, the Certificate of Incorporation
of the Surviving Corporation shall be the Certificate of Incorporation of Merger
Sub in effect immediately prior to the Effective Time, until thereafter changed
or amended as provided therein or by applicable law, except that as of the
Effective Time, Article I of such Certificate of Incorporation shall be amended
to read as follows: "The name of the Corporation is The Xxxxxx Xxx Company,
Inc." The By-laws of the Surviving Corporation shall be the By-laws of Merger
Sub in effect immediately prior to the Effective Time, until thereafter changed
or amended as provided therein or by applicable law.
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Section 1.6 OFFICERS AND DIRECTORS OF THE SURVIVING CORPORATION.
(a) The directors of the Merger Sub immediately prior to
the Effective Time will be the directors of the Surviving Corporation, and they
shall hold office until their respective successors are duly elected or
appointed or qualified or until their earlier death, resignation or removal in
accordance with the Certificate of Incorporation and By-laws as in effect from
time to time of the Surviving Corporation.
(b) The officers of the Company immediately prior to the
Effective Time will be the officers of the Surviving Corporation, and they shall
hold office until their respective successors are duly elected or appointed or
qualified or until their earlier death, resignation or removal in accordance
with the Certificate of Incorporation and By-laws as in effect from time to time
of the Surviving Corporation.
ARTICLE II
EFFECT OF MERGER ON THE CAPITAL
STOCK OF THE CONSTITUENT CORPORATIONS
Section 2.1 COMPANY COMMON STOCK. Except as otherwise provided in
Section 2.4 with respect to Common Shares as to which appraisal rights have been
exercised, at the Effective Time, each Common Share issued and outstanding
immediately prior to the Effective Time:
(a) in the case of Common Shares owned by the Company as
treasury shares ("TREASURY SHARES") or by the Parent or Merger Sub
("PARENT-OWNED SHARES") immediately prior to the Effective Time, each shall, by
virtue of the Merger and without any action on the part of the holder of any
such Common Shares, no longer be outstanding, shall be cancelled and retired
without payment of any consideration therefor and shall cease to exist; and
(b) in the case of Common Shares other than Treasury
Shares, Parent-Owned Shares and Dissenting Shares (as defined below), each
shall, by virtue of the Merger and without any action on the part of the holder
of any such Common Shares, be converted into and become a right to receive the
Merger Consideration in cash, without interest, and when so converted, shall
automatically be canceled and retired and shall cease to exist, and each holder
of a certificate representing any such Common Shares (the "MERGER CONVERTIBLE
SHARES") shall cease to have any rights with respect thereto, except the right
to receive the Merger Consideration allocable to the shares formerly represented
by such certificate upon surrender of such certificate in accordance with
Section 2.3.
Section 2.2 MERGER SUB SHARES. At the Effective Time, each of the
shares of common stock, par value $0.01 per share, of Merger Sub ("MERGER SUB
COMMON STOCK") issued and outstanding immediately prior to the Effective Time
shall, by virtue of the Merger and without any action on the part of the holder
thereof, automatically be converted into one (1) Surviving Corporation Common
Share.
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Section 2.3 EXCHANGE OF CERTIFICATES.
(a) EXCHANGE AGENT. Prior to the Effective Time, the
Company shall authorize an exchange agent satisfactory to Buyers to act as
Exchange Agent hereunder (the "EXCHANGE AGENT") for the purpose of exchanging
certificates representing Common Shares for the Merger Consideration. Prior to
the Effective Time, Parent shall deposit the aggregate Merger Consideration into
an interest-bearing account under the control of the Exchange Agent, and shall
cause disbursements to be made from such account from time to time in respect of
payments of the Merger Consideration. For purposes of determining the Merger
Consideration to be so deposited, Parent shall assume that no holder of Common
Shares will perfect its right to appraisal of its Common Shares.
(b) EXCHANGE PROCEDURES. Promptly after the Effective
Time, the Exchange Agent shall mail to each holder of record of Merger
Convertible Shares (i) a letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the certificates
representing such Merger Convertible Shares (the "CONSIDERATION CERTIFICATES")
shall pass, only upon delivery of the Consideration Certificates to the Exchange
Agent and shall be in such form and have such other provisions as the Exchange
Agent may reasonably specify), and (ii) instructions for use in effecting the
surrender of the Consideration Certificates in exchange for the Merger
Consideration. Upon surrender to the Exchange Agent of one or more Consideration
Certificates, together with a properly completed and duly executed letter of
transmittal, and acceptance thereof by the Exchange Agent, the holder thereof
shall be entitled to the amount of cash into which the number of Merger
Convertible Shares represented by such Consideration Certificates surrendered
shall have been converted pursuant to this Agreement. The Exchange Agent shall
accept such Consideration Certificates upon compliance with such reasonable
terms and conditions as the Exchange Agent may impose to effect an orderly
exchange thereof in accordance with normal exchange practices. After the
Effective Time, there shall be no further transfer on the records of the Company
or its transfer agent of certificates representing Common Shares and if such
certificates are presented to the Company for transfer, they shall be canceled
against delivery of the Merger Consideration allocable to the Common Shares
represented by such certificate or certificates. If any Merger Consideration is
to be remitted to a name other than that in which the Consideration Certificate
surrendered for exchange is registered, it shall be a condition of such exchange
that the Consideration Certificate so surrendered shall be properly endorsed,
with signature guaranteed, or otherwise be in proper form for transfer and that
the person requesting such exchange shall pay to the Company, or its transfer
agent, any transfer or other taxes required by reason of the payment of the
Merger Consideration to a name other than that of the registered holder of the
Consideration Certificate surrendered, or establish to the satisfaction of the
Company or its transfer agent that such tax has been paid or is not applicable.
Until surrendered as contemplated by this Section 2.3, each certificate for
Common Shares (with the exception of Dissenting Shares, Parent-Owned Shares and
Treasury Shares) shall be deemed at any time after the Effective Time to
represent only the right to receive upon such surrender the Merger Consideration
allocable to the shares represented by such certificate as
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contemplated by Section 2.1(b). No interest will be paid or will accrue on any
amount payable as Merger Consideration.
(c) NO FURTHER OWNERSHIP RIGHTS IN THE COMPANY STOCK. The
Merger Consideration paid upon the surrender for exchange of Consideration
Certificates in accordance with the terms of this Section 2.3 shall be deemed to
have been paid in full satisfaction of all rights pertaining to the Common
Shares formerly represented by such certificates.
(d) UNDISTRIBUTED MERGER CONSIDERATION. Any portion of
the Merger Consideration (including any interest and other income received in
respect of all such funds) which remains undistributed to the holders of the
certificates formerly representing Common Shares for six months after the
Effective Time shall be delivered to the Surviving Corporation, upon demand and
to the extent demand has been made, and any holders of Common Shares prior to
the Merger who have not theretofore complied with this Section 2.3 shall
thereafter look only to the Surviving Corporation, and only as general creditors
thereof, for payment of their claim for Merger Consideration to which such
holders may be entitled.
(e) NO LIABILITY. No party to this Agreement shall be
liable to any Person in respect of any amount from the funds deposited pursuant
to this Article II delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law.
(f) WITHHOLDING RIGHTS. The Company shall be entitled to
deduct and withhold from the Merger Consideration otherwise payable pursuant to
this Agreement to any holder of Common Shares such amounts as the Company is
required to deduct and withhold with respect to the making of such payment under
the Internal Revenue Code of 1986, as amended (the "CODE"), or any provision of
state, local or foreign tax law. To the extent that amounts are so withheld by
the Company, such withheld amounts shall be treated for all purposes of this
Agreement as having been paid to the holder of the Common Shares in respect of
which such deduction and withholding was made by the Company.
Section 2.4 DISSENTING SHARES. Notwithstanding anything in this
Agreement to the contrary, Common Shares issued and outstanding immediately
prior to the Effective Time held by any Person who has the right to demand, and
who properly demands (a "DISSENTING STOCKHOLDER"), an appraisal of such shares
("DISSENTING SHARES"), in accordance with Section 262 of the DGCL (or any
successor provision) shall not be converted into a right to receive the Merger
Consideration, unless such holder fails to perfect, withdraws or otherwise loses
such holder's right to such appraisal, if any. If, upon or after the Effective
Time, such holder fails to perfect, withdraws or otherwise loses any such right
to appraisal and payment under the DGCL, then, as of the Effective Time or the
occurrence of such event, whichever last occurs, each such share of such holder
shall cease to be Dissenting Shares and shall be converted into and represent
the right to receive Merger Consideration, in accordance with Section 2.1(b).
The Company shall provide Merger Sub (i) prompt notice of any written demand for
appraisal or
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payment of the fair value of any Common Shares, withdrawals of such demands, and
any other instruments served pursuant to the DGCL received by or on behalf of
the Company and (ii) the opportunity to direct all negotiations and proceedings
with respect to demands for appraisal under the DGCL. The Company shall not,
except with the prior written consent of Merger Sub, make any payment with
respect to, or settle or offer to settle, any such demands.
Section 2.5 STOCK OPTIONS.
(a) Pursuant to the Merger, at the Effective Time, the
Company shall assign to, and Parent shall assume: (i) the 1997 Management Stock
Option Plan and (ii) the 1997 Non-Employee Director Stock Option and Stock
Incentive Plan (collectively, the "COMPANY OPTION PLANS").
(b) Each outstanding option to purchase Common Shares (a
"COMPANY STOCK OPTION"), whether or not vested, will be assumed by Parent and
shall be deemed to constitute an option to acquire, on substantially the same
terms and conditions as were applicable under such Company Stock Option
(including, without limitation, as to vesting and expiration), the same number
of shares of Parent common stock as the number of Common Shares such Company
Stock Option entitled the holder thereof to purchase as set forth in Schedule
3.3(c) of the Company Disclosure Letter (as defined below).
(c) Prior to the Effective Time, the Company shall use
its best efforts to (i) obtain any consents from holders of the Company Stock
Options and (ii) make any amendments to the terms of the Company Stock Option
Plans and any options granted thereunder that are necessary or appropriate to
give effect to the transactions contemplated by this Section 2.5. Section 2.6
LOST, STOLEN OR DESTROYED CERTIFICATES. In the event any certificate shall have
been lost, stolen or destroyed, upon the making of an affidavit of that fact by
the Person claiming such certificate to be lost, stolen or destroyed and the
posting by such Person of a bond in the form customarily required by the Company
as indemnity against any claim that may be made against it with respect to such
certificate, the Exchange Agent will issue in exchange for such lost, stolen or
destroyed certificate the Merger Consideration in respect of that certificate
payable under this Article II, without interest.
Section 2.7 ADJUSTMENTS TO PREVENT DILUTION. In the event that
prior to the Effective Time there is a change in the number of Common Shares or
securities convertible or exchangeable into or exercisable for Common Shares
issued and outstanding as a result of a distribution, reclassification, stock
split (including a reverse stock split), stock dividend or distribution or other
similar transaction, the numbers of Common Shares set forth herein, and the
Merger Consideration, shall be equitably adjusted to eliminate the effects of
that event.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Buyers, Parent and
Merger Sub that, except as set forth in the Company SEC Reports (as defined in
Section 3.8) that are publicly available prior to the date of this Agreement:
Section 3.1 ORGANIZATION AND QUALIFICATION; SUBSIDIARIES.
(a) Each of the Company and each subsidiary of the
Company (collectively, the "COMPANY SUBSIDIARIES") has been duly organized and
is validly existing and in good standing under the laws of the jurisdiction of
its incorporation or organization, as the case may be, and has the requisite
power and authority and all necessary governmental approvals to own, lease and
operate its properties and to carry on its business as it is now being
conducted.
Section 3.2 CERTIFICATE OF INCORPORATION AND BY-LAWS. Copies of
the Company's Amended and Restated Certificate of Incorporation and By-laws,
each as amended through the date of this Agreement (collectively, the "CHARTER
DOCUMENTS") that are listed as exhibits in the Company's Annual Report on Form
10-K for the fiscal year ended January 1, 2000 ("FORM 10-K") are complete and
correct copies of those documents. The Company Charter Documents and all
comparable corporate organizational documents of the Company Subsidiaries are in
full force and effect. The Company is not in violation of any of the provisions
of the Company Charter Documents.
Section 3.3 CAPITALIZATION.
(a) The authorized capital stock of the Company consists
of (i) 20,000,000 Common Shares and (ii) 500,000 shares of preferred stock, par
value $0.01 per share, of the Company ("COMPANY PREFERRED STOCK"). As of the
date hereof, (i) 5,680,694 Common Shares are issued and outstanding, all of
which were duly authorized and validly issued and are fully paid, nonassessable
and not subject to preemptive rights, (ii) 1,817,100 Common Shares are held in
the treasury of the Company and (iii) no shares of Company Preferred Stock are
issued and outstanding.
(b) Other than in connection with this Agreement, there
are no outstanding contractual obligations of the Company or any Company
Subsidiary to repurchase, redeem or otherwise acquire any Common Shares or any
capital stock of any Company Subsidiary.
(c) As of the date hereof, an aggregate of 854,318
Company Stock Options are outstanding under the Company Option Plans. Except (i)
for such Company Stock Options and (ii) under agreements or arrangements set
forth in Schedule 3.3(c) of the Company Disclosure Letter, there are no options,
warrants, conversion rights, stock appreciation rights, redemption rights,
repurchase rights or other rights, agreements, arrangements or commitments of
any character to which the
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Company is a party or by which the Company is bound relating to the issued or
unissued capital stock of the Company or any Company Subsidiary or obligating
the Company or any Company Subsidiary to issue or sell any shares of capital
stock of, or other equity interests in, the Company or any Company Subsidiary.
Schedule 3.3(c) of the letter from the Company, dated the date hereof, addressed
to Buyers and Merger Sub (the "COMPANY DISCLOSURE LETTER") sets forth, as of the
date of this Agreement, (x) the Persons to whom Company Stock Options have been
granted, (y) the exercise price for the Company Stock Options held by each such
Person and (z) whether such Company Stock Options are subject to vesting and, if
subject to vesting, the dates on which each of those Company Stock Options vest.
Section 3.4 AUTHORITY.
(a) The Company has all necessary corporate power and
authority to execute and deliver this Agreement, to perform its obligations
under this Agreement and to consummate the Merger and the other transactions
contemplated by this Agreement to be consummated by the Company. The execution
and delivery of this Agreement by the Company and the consummation by the
Company of such transactions have been duly and validly authorized by all
necessary corporate action and no other corporate proceedings on the part of the
Company are necessary to authorize this Agreement or to consummate such
transactions, other than the adoption of this Agreement by a vote of (i) at
least 66 2/3% of the outstanding Common Shares, and (ii) at least 50% of the
outstanding Common Shares voting on the matter not owned directly or indirectly
by Buyers or any affiliate of Buyers (the "REQUISITE COMPANY VOTE"). This
Agreement (assuming receipt of the Requisite Company Vote) has been duly
authorized and validly executed and delivered by the Company and constitutes a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms.
(b) The Board of Directors (i) has unanimously adopted
the plan of merger set forth in this Agreement and approved this Agreement and
the other transactions contemplated by this Agreement, and (ii) has declared
that the Merger is advisable and subject to Section 5.8(b), will recommend that
the stockholders vote in favor of this Agreement.
Section 3.5 NO CONFLICT.
(a) Assuming that the Requisite Company Vote is obtained,
the execution and delivery of this Agreement by the Company do not, and the
performance of this Agreement by the Company will not:
(i) conflict with or violate any provision of any
Company Charter Document or any equivalent organizational documents of
any Company Subsidiary;
(ii) assuming that all consents, approvals,
authorizations and other actions described in Section 3.5(b) have been
obtained
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and all filings described in Section 3.6 have been made, conflict with
or violate any Law applicable to the Company or any Company Subsidiary
or by which any property or asset of the Company or any Company
Subsidiary is or may be bound or affected except for lack of consents,
approvals, authorizations and other actions which, individually or in
the aggregate, have not resulted and could not reasonably be expected
to result in a Company Material Adverse Effect; or
(b) result in any breach of or constitute a default (or
an event which with or without notice or lapse of time or both would become a
default) under, or give to others any right of termination, amendment,
acceleration or cancellation of, or result in the creation of a Lien on any
property or asset of the Company or any Company Subsidiary under any Contract to
which the Company or any Company Subsidiary is a party or by which any of them
or their assets or properties is or may be bound or affected, except for such
breaches, defaults or other occurrences which, individually or in the aggregate,
have not resulted and could not reasonably be expected to result in a Company
Material Adverse Effect.
Section 3.6 REQUIRED FILINGS AND CONSENTS. The execution and
delivery of this Agreement by the Company do not, and the performance of this
Agreement by the Company will not, require any consent, approval, authorization
or permit of, or filing with or notification to, any Governmental Entity, except
for (i) applicable filings required pursuant to the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), Securities Act of 1933, as amended (the
"SECURITIES ACT"), and applicable state securities or "blue sky" laws ("BLUE SKY
LAWS"), if any, (ii) the filing of the Certificate of Merger as required by the
DGCL and (iii) where failure to obtain such consents, approvals, authorizations
or permits, or to make such filings or notifications, individually or in the
aggregate, have not resulted and could not reasonably be expected to result in a
Company Material Adverse Effect.
Section 3.7 PERMITS; COMPLIANCE WITH LAW. Each of the Company and
the Company Subsidiaries is in possession of all franchises, grants,
authorizations, licenses, permits, easements, variances, exceptions, consents,
certificates, approvals and orders of any Governmental Entity necessary for the
Company or any Company Subsidiary to own, lease and operate its properties or to
carry on its business as it is now being conducted (collectively, the "COMPANY
PERMITS") (but not including, however, Company Permits relating to compliance
with Safety and Environmental Laws (as defined herein), which are addressed in
Section 3.11), except where the failure to have, or the suspension or
cancellation of, any of the Company Permits, individually or in the aggregate,
has not resulted and could not reasonably be expected to result in a Company
Material Adverse Effect, and, as of the date of this Agreement, no suspension or
cancellation of any of the Company Permits is pending or, to the knowledge of
the Company, threatened, except where the failure to have, or the suspension or
cancellation of, any of the Company Permits, individually or in the aggregate,
has not resulted and could not reasonably be expected to result in a Company
Material Adverse Effect. Neither the Company nor any Company Subsidiary is in
conflict with, or in default or violation of, (i) any Law (but not including,
however, any Safety and Environmental Laws, which is addressed in Section 3.11)
applicable to the Company or any Company
10
Subsidiary or by which any property or asset of the Company or any Company
Subsidiary is or may be bound or affected or (ii) any Company Permits, except
for any such conflicts, defaults or violations that, individually or in the
aggregate, have not resulted and could not reasonably be expected to result in a
Company Material Adverse Effect.
Section 3.8 SEC FILINGS; FINANCIAL STATEMENTS.
(a) The Company has filed all forms, reports, statements
and other documents (including all exhibits, annexes, supplements and amendments
to such documents) required to be filed by it under the Exchange Act and the
Securities Act since June 4, 1997 (collectively, including any such documents
filed subsequent to the date of this Agreement, the "COMPANY SEC REPORTS") and
the Company has made available to Buyers, Parent and Merger Sub all of the
Company SEC Reports filed with the SEC. The Company SEC Reports, including any
financial statements or schedules included or incorporated by reference, (i)
comply in all material respects with the requirements of the Exchange Act or the
Securities Act or both, as the case may be, applicable to those Company SEC
Reports and (ii) did not at the time they were filed contain any untrue
statement of a material fact or omit to state a material fact required to be
stated or necessary in order to make the statements made in those Company SEC
Reports, in the light of the circumstances under which they were made, not
misleading. No Company Subsidiary is subject to the periodic reporting
requirements of the Exchange Act or is otherwise required to file any documents
with the SEC or any national securities exchange or quotation service or
comparable Governmental Entity.
(b) Each of the consolidated balance sheets included in
or incorporated by reference into the Company SEC Reports (including the related
notes and schedules) fairly presented, in all material respects, the
consolidated financial position of the Company as of the dates set forth in
those consolidated balance sheets. Each of the consolidated statements of income
and of cash flows included in or incorporated by reference into the Company SEC
Reports (including any related notes and schedules), fairly presented, in all
material respects, the consolidated results of operations and cash flows, as the
case may be, of the Company and the consolidated Company Subsidiaries for the
periods set forth in those consolidated statements of income and of cash flows
(subject, in the case of unaudited quarterly statements, to notes and normal
year-end audit adjustments that will not be material in amount or effect), in
each case in conformity with GAAP (except, in the case of unaudited quarterly or
other interim statements, as permitted by Form 10-Q of the SEC) consistently
applied throughout the periods indicated.
Section 3.9 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December
30, 2000, the Company and the Company Subsidiaries have conducted their
businesses only in the ordinary course and in a manner consistent with past
practice and, since February 28, 2001, there has not been any Company Material
Adverse Effect.
Section 3.10 LITIGATION. There are no claims pending or, to the
knowledge of the Company, threatened against the Company or any Company
Subsidiary
11
before any Governmental Entity, which if adversely determined, individually or
in the aggregate, could reasonably be expected to result in a Company Material
Adverse Effect. Neither the Company nor any Company Subsidiary is subject to any
outstanding order, writ, injunction or decree, which, individually or in the
aggregate, has resulted or could reasonably be expected to result in a Company
Material Adverse Effect. The foregoing representation shall not apply to any
claims disclosed in the Company SEC Reports filed prior to the date of this
Agreement.
Section 3.11 ENVIRONMENTAL MATTERS. Except as has not had or could
not reasonably be expected to have a Company Material Adverse Effect, (i) each
of the Company and Company Subsidiaries is and has been in material compliance
with all applicable Safety and Environmental Laws and (ii) there is no
Environmental Claim (as defined herein) pending or threatened against either of
the Company or Company Subsidiaries and there is no civil, criminal or
administrative judgment or notice of violation against either of the Company and
Company Subsidiaries pursuant to Safety and Environmental Laws or principles of
common law relating to pollution, protection of the Environment (as defined
herein) or health and safety.
Section 3.12 CONTRACTS. Neither the Company nor any Company
Subsidiary is, or, as a result of the execution and delivery of this Agreement
or the performance of its obligations under this Agreement, will be, in
violation of any Contract, except for violations that, individually or in the
aggregate, have not resulted and could not reasonably be expected to result in a
Company Material Adverse Effect.
Section 3.13 TAXES. Except to the extent that failure to do so,
individually or in the aggregate, has not resulted and could not reasonably be
expected to result in a Company Material Adverse Effect, the Company and the
Company Subsidiaries have filed all Tax returns and reports to be filed by them
and have paid, or established adequate reserves for, all Taxes required to be
paid by them. Except for deficiencies which, individually or in the aggregate,
have not resulted and could not reasonably be expected to result in a Company
Material Adverse Effect, no deficiencies for any Taxes have been proposed,
asserted or assessed against the Company or any Company Subsidiaries, and no
requests for waivers of the time to assess any such Taxes are pending.
Section 3.14 BROKERS. Except for Xxxxxx, Del Genio Xxxxx & Co. LLC
(the "FINANCIAL ADVISOR"), no broker, finder or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with the Merger
or the other transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Company. Prior to the date of this Agreement, the
Company has made available to Buyers, Parent and Merger Sub a complete and
correct copy of all agreements between the Company and the Financial Advisor
under which the Financial Advisor would be entitled to any payment relating to
the Merger and any other transactions contemplated hereby.
Section 3.15 CERTAIN STATUTES. The Board of Directors of the
Company has taken all appropriate and necessary actions to ensure that the
restrictions on "business
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combinations" in Section 203 of the DGCL will not apply to this Agreement, the
Merger or the other transactions contemplated by this Agreement.
Section 3.16 INFORMATION. None of the information to be supplied
by the Company for inclusion or incorporation by reference in the Proxy
Statement will, at the time of the mailing of the Proxy Statement and any
amendments thereof or supplements thereto and at the time of the Company
Stockholders Meeting (as defined in Section 5.5), contain any untrue statement
of a material fact or omit to state any material fact required to be stated in
that Proxy Statement, amendment thereof or supplement thereto, or necessary in
order to make the statements in that Proxy Statement, amendment thereof or
supplement thereto, in light of the circumstances under which they are made, not
misleading. The Proxy Statement and amendments thereof or supplements thereto,
if any, will comply as to form in all material respects with all applicable
provisions of the Securities Act and the Exchange Act.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF BUYERS, PARENT AND MERGER SUB
Each of Buyers, Parent and Merger Sub, as the case may be,
represents and warrants to the Company that:
Section 4.1 ORGANIZATION. Each of Buyers, Parent and Merger Sub
has been duly organized and is validly existing and in good standing under the
laws of its jurisdiction of organization, and has the requisite power and
authority and all necessary governmental approvals to own, lease and operate its
properties and to carry on its business as it is now being conducted.
Section 4.2 CERTIFICATE OF INCORPORATION AND BY-LAWS. Complete
copies of the certificate of incorporation and by-laws of Merger Sub
(collectively, the "MERGER SUB CHARTER DOCUMENTS") and of Parent (collectively,
the "PARENT CHARTER DOCUMENTS") have been made available to the Company. The
Merger Sub is not in violation of any of the provisions of Merger Sub Charter
Documents. The Parent is not in violation of any of the provisions of Parent
Charter Documents.
Section 4.3 CAPITALIZATION OF MERGER SUB. Parent owns, directly
or indirectly, all of the outstanding capital stock of Merger Sub. Other than
the shares of Merger Sub Common Stock outstanding on the date hereof, Merger Sub
has no capital stock, options, warrants or other securities of any type
outstanding on the date hereof.
Section 4.4 AUTHORITY. Each of Buyers, Parent and Merger Sub has
all necessary partnership and corporate power, as the case may be, and authority
to execute and deliver this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby to be consummated by it. The
execution and delivery of this Agreement by each of Buyers, Parent and Merger
Sub and the consummation by each of Buyers, Parent and Merger Sub of such
transactions have been duly and validly
13
authorized by all necessary partnership and corporate action, as the case may
be, and no other company proceedings on the part of Buyers, Parent or Merger Sub
are necessary to authorize this Agreement or to consummate such transactions.
This Agreement has been duly authorized and validly executed and delivered by
each of Buyers, Parent and Merger Sub and constitutes a legal, valid and binding
obligation of each of Buyers, Parent and Merger Sub, enforceable against each of
Buyers, Parent and Merger Sub in accordance with its terms.
Section 4.5 NO CONFLICT. The execution and delivery of this
Agreement by Buyers, Parent and Merger Sub do not, and the performance of this
Agreement by each of Buyers, Parent and Merger Sub will not:
(a) conflict with or violate any provision of any Merger
Sub Charter Document, Parent Charter Document or the partnership agreements of
Buyers;
(b) assuming that all consents, approvals, authorizations
and other actions described in Section 4.6 have been obtained and all filings
and obligations described in Section 4.6 have been made, conflict with or
violate any Law applicable to Buyers, Parent or Merger Sub or by which any
property or asset of Buyers, Parent or Merger Sub is or may be bound or
affected; or
(c) result in any breach of or constitute a default (or
an event which with or without notice or lapse of time or both would become a
default) under, or give to others any right of termination, amendment,
acceleration or cancellation of, or result in the creation of a Lien on any
property or asset of Buyers, Parent or Merger Sub under any Contract to which
Buyers, Parent or Merger Sub is a party or by which any of them or their assets
or properties is or may be bound or affected except for such breaches, defaults
or other occurrences which, individually or in the aggregate, have not resulted
and could not reasonably be expected to result in a Buyer Material Adverse
Effect.
Section 4.6 REQUIRED FILINGS AND CONSENTS. The execution and
delivery of this Agreement by Buyers, Parent and Merger Sub do not, and the
performance of this Agreement by Buyers, Parent and Merger Sub will not, require
any consent, approval, authorization or permit of, or filing with or
notification to, any Government Entity except (i) for applicable filings
required pursuant to the Exchange Act, Securities Act, and applicable state
securities or Blue Sky Laws, if any, (ii) the filing of the Certificate of
Merger as required by the DGCL and (iii) where failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
individually or in the aggregate, have not resulted and could not reasonably be
expected to result in a Buyer Material Adverse Effect.
Section 4.7 BROKERS. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the Merger and the other transactions contemplated hereby based upon
arrangements made by or on behalf of Buyers, Parent or Merger Sub.
14
Section 4.8 INFORMATION. None of the information to be supplied
by Buyers, Parent or Merger Sub for inclusion or incorporation by reference in
the Proxy Statement will, at the time of the mailing of the Proxy Statement and
any amendments thereof or supplements thereto and at the time of the Company
Stockholders Meeting, contain any untrue statement of a material fact or omit to
state any material fact required to be stated in that Proxy Statement, amendment
thereof or supplement thereto, or necessary in order to make the statements in
that Proxy Statement, amendment thereof or supplement thereto, in light of the
circumstances under which they are made, not misleading.
Section 4.9 INTERIM OPERATIONS OF MERGER SUB. Merger Sub was
formed solely for the purpose of engaging in the transactions contemplated by
this Agreement, has not engaged in any business activities or conducted any
operations, and Merger Sub does not have any liabilities, other than in
connection with the transactions contemplated by this Agreement.
Section 4.10 FINANCING. Buyers have, or will have as of the
Closing Date, funded Parent, and Parent will have funded Merger Sub with cash in
the form of a contribution to capital in an amount equal to the product of (a)
the Merger Consideration and (b) the number of issued and outstanding Common
Shares other than Treasury Shares and Parent-Owned Shares.
ARTICLE V
COVENANTS
Section 5.1 CONDUCT OF BUSINESS OF THE COMPANY. Except as
contemplated by this Agreement or with the prior written consent of Buyers,
during the period from the date of this Agreement to the Effective Time, the
Company will, and will cause each of the Company Subsidiaries to, conduct its
operations only in the ordinary course of business consistent with past practice
and will use its reasonable best efforts to, and to cause each Company
Subsidiary to, preserve intact the business organization of the Company and each
of the Company Subsidiaries, to keep available the services of the present
officers and key employees of the Company and the Company Subsidiaries, and to
preserve the goodwill of customers, suppliers and all other Persons having
business relationships with the Company and the Company Subsidiaries.
Section 5.2 CERTAIN INTERIM OPERATIONS. Buyers, Parent and Merger
Sub covenant and agree that, except as contemplated by this Agreement, prior to
the Effective Time, without the prior written consent of the Company, Buyers
will cause Merger Sub not to do any business other than with respect to, or in
connection with, this Agreement and the transactions contemplated hereby. The
Parent, Merger Sub and Buyers shall not purchase or contract to purchase any
Common Shares other than as contemplated in the fifth Whereas clause to this
Agreement without the consent of the Special Committee and the Company.
15
Section 5.3 OTHER ACTIONS. During the period from the date hereof
to the Effective Time, the Company and Buyers shall not, and Buyers shall not
permit Parent or the Merger Sub to, take any action that would, or that could
reasonably be expected to, result in any of the conditions to the Merger set
forth in Article 6 hereof not being satisfied.
Section 5.4 NOTIFICATION OF CERTAIN MATTERS. Buyers, Parent and
Merger Sub and the Company shall promptly notify each other of (a) the
occurrence or non-occurrence of any fact or event which could reasonably be
expected (i) to cause any representation or warranty contained in this Agreement
to be untrue or inaccurate in any material respect at any time from the date
hereof to the Effective Time, (ii) to cause any material covenant, condition or
agreement hereunder not to be complied with or satisfied in all material
respects or (iii) to result in, in the case of Buyers, Parent or Merger Sub, a
Buyer Material Adverse Effect; and, in the case of the Company, a Company
Material Adverse Effect, (b) any failure of the Company, Buyers, Parent or
Merger Sub, as the case may be, to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it hereunder in any
material respect, (c) any notice or other material communications from any
Governmental Entity in connection with the transactions contemplated by this
Agreement and (d) the commencement of any suit, action or proceeding that seeks
to prevent or seek damages in respect of, or otherwise relates to, the
consummation of the transactions contemplated by this Agreement; provided,
however, that in the case of (a) or (b), no such notification shall affect the
representations or warranties of any party or the conditions to the obligations
of any party hereunder.
Section 5.5 PROXY STATEMENT.
(a) As promptly as practicable after the execution of
this Agreement, the Company shall prepare a proxy statement or information
statement, as appropriate, of the Company relating to the meeting of the
Company's stockholders (the "COMPANY STOCKHOLDERS MEETING") to be held to
consider adoption of this Agreement (together with any amendments thereto, the
"PROXY STATEMENT"). Such meeting may be a special meeting or combined with the
Company's annual meeting with respect to the Company's fiscal year ended
December 30, 2000. The Company shall cause the Proxy Statement to comply as to
form and substance in all material respects with the applicable requirements of
(i) the Exchange Act, (ii) the Securities Act, (iii) the rules and regulations
of NASDAQ and (iv) the DGCL. Substantially contemporaneously with the filing of
the Proxy Statement with the SEC, copies of the Proxy Statement shall be
provided to NASDAQ. Buyers shall furnish all information concerning Parent,
Merger Sub and Buyers as the Company may reasonably request in connection with
such actions and the preparation of the Proxy Statement. The Company shall
prepare and file the Proxy Statement. The Company shall use its reasonable best
efforts to have the Proxy Statement declared effective by the SEC as promptly as
practicable. As promptly as practicable after the date hereof, the Proxy
Statement will be mailed to the stockholders of the Company; PROVIDED, HOWEVER,
that the Proxy Statement shall not be distributed, and no amendment or
supplement thereto shall be made by the Company, without the prior consent of
Buyers and their counsel.
16
(b) The Proxy Statement shall include the unanimous and
unconditional recommendation of the Board of Directors of the Company and of the
Special Committee to the stockholders of the Company that they vote in favor of
the adoption of this Agreement; PROVIDED, HOWEVER, that the Special Committee
may, at any time prior to the Closing Date, to the extent permitted by Section
5.8, withdraw, modify or change any such recommendation if the Special Committee
determines in good faith that failure to so withdraw, modify or change its
recommendation would be inconsistent with the Special Committee's fiduciary
duties to the Company's stockholders under applicable Laws after receipt of
advice to such effect from independent legal counsel.
(c) No amendment of or supplement to the Proxy Statement
will be made without the approval of Buyers and the Company, which approval
shall not be unreasonably withheld or delayed. Each of Buyers and the Company
will advise the other, promptly after it receives notice thereof, of the
issuance of any stop order or of any request by the SEC or NASDAQ for amendment
of the Proxy Statement or comments thereon and responses thereto or requests by
the SEC for additional information.
(d) The information supplied by the Company for inclusion
in the Proxy Statement shall not, at (i) the time the Proxy Statement (or any
amendment thereof or supplement thereto) are first mailed to the stockholders of
the Company, (ii) the time of the Company Stockholders Meeting, and (iii) the
Effective Time, contain any untrue statement of a material fact or fails to
state any material fact required to be stated in the Proxy Statement or
necessary in order to make the statements in the Proxy Statement not misleading.
If at any time prior to the Effective Time any event or circumstance relating to
the Company or any Company Subsidiary, or their respective officers or
directors, should be discovered by the Company that should be set forth in an
amendment of or a supplement to the Proxy Statement, the Company shall promptly
inform Buyers.
(e) The information supplied by Buyers for inclusion in
the Proxy Statement shall not, at (i) the time the Proxy Statement (or any
amendment of or supplement to the Proxy Statement) is first mailed to the
stockholders of the Company, (ii) the time of the Company Stockholders Meeting
and (iii) the Effective Time, contain any untrue statement of a material fact or
fail to state any material fact required to be stated in the Proxy Statement or
necessary in order to make the statements in the Proxy Statement not misleading.
If, at any time prior to the Effective Time, any event or circumstance relating
to Buyers, Parent or Merger Sub, or their respective officers or directors,
should be discovered by Buyers that should be set forth in an amendment of or a
supplement to the Proxy Statement, Buyers shall promptly inform the Company.
Section 5.6 STOCKHOLDERS' MEETING. The Company shall call and
hold the Company Stockholders Meeting as promptly as practicable after the date
hereof for the purpose of voting upon the adoption of this Agreement. The
Company shall use its reasonable best efforts (through its agents or otherwise)
to solicit from its stockholders, proxies in favor of the adoption of this
Agreement and shall take all other action necessary or advisable to secure the
Requisite Company Vote, except to the extent that the Board of Directors of the
Company determines in good faith that doing so would
17
cause the Board of Directors of the Company to breach its fiduciary duties to
the Company's stockholders under applicable Law after receipt of advice to such
effect from independent legal counsel (who may be the Company's regularly
engaged independent legal counsel).
Section 5.7 ACCESS TO INFORMATION. Except as required under and
subject to the provisions of any confidentiality agreement or similar agreement
or arrangement to which Buyers or the Company or any of their respective
subsidiaries is a party or under applicable Law or the regulations or
requirements of any securities exchange or quotation service or other
self-regulatory organization with whose rules the parties are required to
comply, from the date of this Agreement to the Effective Time, the Company and
Buyers shall (and shall cause their respective subsidiaries to): (i) provide to
the other (and its officers, directors, employees, accountants, consultants,
legal counsel, financial advisors, investment bankers, agents and other
representatives (collectively, "REPRESENTATIVES")) access at reasonable times
upon prior notice to the officers, employees, agents, properties, offices and
other facilities of the other and its subsidiaries and to the books and records
thereof and (ii) furnish promptly such information concerning the business,
properties, Contracts, assets, liabilities, personnel and other aspects of the
other party and its subsidiaries as the other party or its Representatives may
reasonably request. No investigation conducted under this Section 5.7 shall
affect or be deemed to modify any representation or warranty made in this
Agreement.
Section 5.8 NO SOLICITATION.
(a) The Company agrees that, prior to the Effective Time,
it shall not, and shall not authorize or permit any Company Subsidiaries or any
of their Representatives, directly or indirectly, to solicit, initiate or
encourage any discussions or inquiries or the making of any proposal with
respect to any merger, consolidation or other business combination involving the
Company or the Company Subsidiaries or acquisition of 10% or more of the assets
or capital stock of the Company and the Company Subsidiaries taken as a whole (a
"TAKEOVER PROPOSAL") or negotiate, explore or otherwise engage in substantive
discussions with any Person (other than Buyers) with respect to any Takeover
Proposal (it being understood that the passive receipt of communications from
third parties shall not be deemed participation in discussions or negotiations)
or enter into any agreement, arrangement or understanding requiring it to
abandon, terminate or fail to consummate the Merger; PROVIDED, HOWEVER, that if
the Board of Directors of the Company and the Special Committee determine in
good faith, after consultation with independent outside legal counsel, that
prior to obtaining the Requisite Company Vote, it is necessary to do so in order
to act in a manner consistent with its fiduciary duties to the Company's
stockholders under applicable law, the Company may, prior to obtaining the
Requisite Company Vote, in response to a Takeover Proposal, which proposal is
supported by fully committed financing, was not solicited by it and which did
not otherwise result from a breach of this Section 5.8, and subject to providing
prior written notice of its decision to take such action to Buyers and
compliance with the other requirements of this Section 5.8, (i) furnish
information with respect to the Company and the Company Subsidiaries to any
Person making such Takeover Proposal pursuant to a
18
customary confidentiality agreement (as determined in good faith by the Company
based on the advice of its independent outside legal counsel) and (ii)
participate in discussions or negotiations regarding such Takeover Proposal.
(b) Except in connection with a Superior Proposal,
provided that there has been no violation of this Section 5.8, neither the Board
of Directors of the Company nor any committee thereof shall (i) withdraw or
modify, or propose publicly to withdraw or modify, in a manner adverse to
Buyers, the approval or recommendation by the Board of Directors of the Company
or such committee of this Agreement, (ii) approve or recommend, or propose
publicly to approve or recommend, any Takeover Proposal, or (iii) cause the
Company to enter into any Acquisition Agreement.
(c) The Company shall promptly advise Buyers orally and
in writing of any request for information of the type referred to in Section
5.8(a) or of any Takeover Proposal, the material terms and conditions of such
request or Takeover Proposal and the identity of the Person making such request
or Takeover Proposal. The Company will keep Buyers informed of the status and
details (including amendments or proposed amendments) of any such request or
Takeover Proposal.
(d) Nothing contained in this Section 5.8 shall prohibit
the Company from taking and disclosing to its stockholders a position
contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making
any disclosure to the Company's stockholders if, in the good faith judgment of
the Board of Directors of the Company, after consultation with independent
outside legal counsel and based as to legal matters on the written advice of the
Company's independent outside legal consent, failure so to disclose would be
inconsistent with its obligations under applicable law; PROVIDED, HOWEVER, that,
except as contemplated by Section 5.8(b), neither the Company nor the Board of
Directors of the Company nor any committee thereof shall withdraw or modify, or
propose publicly to withdraw or modify, its position with respect to this
Agreement, the Offer or Merger, or approve or recommend, or propose publicly to
approve or recommend, a Takeover Proposal.
Section 5.9 DIRECTORS' AND OFFICERS' INDEMNIFICATION.
(a) The Surviving Corporation shall, to the fullest
extent permitted under applicable law or under the Surviving Corporation's
Certificate of Incorporation or Bylaws, indemnify and hold harmless, each
present and former director, officer or employee of the Company or any of its
subsidiaries (collectively, the "INDEMNIFIED PARTIES") against any costs or
expenses (including attorneys' fees), judgments, fines, losses, claims, damages,
liabilities and amounts paid in settlement in connection with any claim, action,
suit, proceeding or investigation, whether civil, criminal, administrative or
investigative, arising out of such individuals' services as directors, officers
or employees of the Company or any of its subsidiaries (x) arising out of or
pertaining to the transactions contemplated by this Agreement or (y) otherwise
with respect to any acts or omissions occurring at or prior to the Effective
Time, to the same extent as provided in the Company Charter Documents or any
applicable Contract as in effect on the date hereof.
19
(b) The Surviving Corporation will maintain, for a period
of not less than six years after the Effective Time, the current policies of
directors' and officers' liability insurance maintained by the Company for the
Company's directors and officers as of the date prior to the date of this
Agreement and as of the date hereof directors and officers for events occurring
at or prior to the Effective Time (the "D&O INSURANCE"); PROVIDED that the
Surviving Corporation may substitute therefor policies that are no less
favorable than the existing policy or, if substantially equivalent insurance
coverage is unavailable, the best available coverage; PROVIDED, HOWEVER, that
the Surviving Corporation shall not be required to pay an annual premium for the
D&O Insurance in excess of 150% of the annual premium currently paid by the
Company for such insurance, but in such case shall purchase as much such
coverage as possible for such amount.
(c) This Section shall survive the consummation of the
Merger at the Effective Time, is intended to benefit the Company, the Surviving
Corporation and the Indemnified Parties, shall be binding on all successors and
assigns of the Surviving Corporation and shall be enforceable by the Indemnified
Parties.
Section 5.10 CONSENTS; FILINGS; FURTHER ACTION. Upon the terms and
subject to the conditions hereof, each of the parties hereto shall use its
reasonable best efforts to (i) take, or cause to be taken, all appropriate
action, and do, or cause to be done, all things necessary, proper or advisable
under applicable Law or otherwise to consummate and make effective as promptly
as practicable the Merger and the other transactions contemplated hereby, (ii)
obtain from Governmental Entities any consents, licenses, permits, waivers,
approvals, authorizations or orders required to be obtained or made by the
Company or Buyers or any of their respective subsidiaries in connection with the
authorization, execution and delivery of this Agreement and the consummation of
the Merger and the other transactions contemplated hereby, (iii) obtain all
consents, amendments to or waivers under the terms of any Contracts required by
the transactions contemplated by this Agreement, and (iv) make all necessary
filings, and thereafter make any other submissions either required or deemed
appropriate by each of the parties, with respect to this Agreement and the
Merger and the other transactions contemplated hereby required under (A) the
Securities Act, the Exchange Act and any applicable state securities laws or
Blue Sky Laws, (B) the DGCL, (C) any other applicable Law and (D) the rules and
regulations of NASDAQ. The parties hereto shall cooperate and consult with each
other in connection with the making of all such filings, including by providing
copies of all such documents to the nonfiling party and its advisors prior to
filing, and none of the parties will file any such document if any of the other
parties shall have reasonably objected to the filing of such document. No party
to this Agreement shall consent to any voluntary extension of any statutory
deadline or waiting party or to any voluntary delay of the consummation of the
Merger and the other transactions contemplated hereby at the behest of any
Governmental Entity without the consent and agreement of the other parties to
this Agreement, which consent shall not be unreasonably withheld or delayed.
Section 5.11 PUBLIC ANNOUNCEMENTS. The initial press release
concerning the Merger shall be a joint press release and, thereafter, the
Company and
20
Buyers shall consult with each other before issuing any press release or
otherwise making any public statements with respect to this Agreement or any of
the transactions contemplated hereby and shall not issue any such press release
or make any such public statement prior to such consultation, except to the
extent required by applicable Law or the requirements of NASDAQ, in which case
the issuing party shall use its reasonable best efforts to consult with the
other parties before issuing any such release or making any such public
statement.
Section 5.12 EXPENSES. All expenses incurred by the parties hereto
in connection with this Agreement and the Merger and the other transactions
contemplated hereby, whether or not the Merger or any of such other transactions
are consummated, shall be paid by the party incurring such expense; provided,
however, that the Company shall pay all expenses of the Buyers if the Merger is
consummated.
Section 5.13 TAKEOVER STATUTES. If any Takeover Statute is or may
become applicable to the Merger or the other transactions contemplated hereby,
each of the Company and Buyers and its respective board of directors or similar
body shall grant such approvals and take such actions as are necessary so that
such transactions may be consummated as promptly as practicable on the terms
contemplated by this Agreement and otherwise act to eliminate or minimize the
effects of such statute or regulation on such transactions.
ARTICLE VI
CONDITIONS
Section 6.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE
MERGER. The respective obligation of each party to effect the Merger is subject
to the satisfaction or waiver at or prior to the Effective Time of each of the
following conditions:
(a) The Company shall have received the Requisite Company
Vote; and
(b) No court or Governmental Entity of competent
jurisdiction shall have enacted, issued, promulgated, enforced or entered any
Law, order, injunction or decree (whether temporary, preliminary or permanent)
that is in effect and restrains, enjoins or otherwise prohibits consummation of
the Merger.
Section 6.2 CONDITIONS TO OBLIGATION OF BUYERS, PARENT AND THE
MERGER SUB. The obligation of Buyers, Parent and the Merger Sub to effect the
Merger shall be subject to the fulfillment or waiver at the Effective Time of
the following additional conditions:
(a) The Company shall have performed in all material
respects the covenants and obligations required to be performed by it under this
Agreement on or prior to the Effective Time;
21
(b) The representations and warranties of the Company
contained in this Agreement shall be true and correct in all material respects
on and as of the Effective Time as if made on and as of such date (except to the
extent that any such representation or warranty had by its terms been made as of
a specific date in which case such representation or warranty shall have been
true and correct as of such specific date); and
(c) Buyers shall have received a certificate signed by an
executive officer of the Company to the effect of Sections 6.2(a) and (b).
Section 6.3 CONDITIONS TO OBLIGATION OF THE COMPANY. The
obligation of the Company to effect the Merger shall be subject to the
fulfillment or waiver at the Effective Time of the following additional
conditions:
(a) Buyers, Parent and the Merger Sub shall have
performed in all material respects the covenants and obligations required to be
performed by them under this Agreement on or prior to the Effective Time;
(b) The representations and warranties of Buyers, Parent
and the Merger Sub contained in this Agreement shall be true and correct in all
material respects on and as of the Effective Time as if made on and as of such
date (except to the extent that any such representation or warranty had by its
terms been made as of a specific date in which case such representation or
warranty shall have been true and correct as of such specific date); and
(c) The Company shall have received a certificate signed
by the general partner of each Buyer to the effect of Sections 6.3(a) and (b).
ARTICLE VII
TERMINATION
Section 7.1 TERMINATION. This Agreement may be terminated and
the Merger may be abandoned at any time prior to the
Effective Time, notwithstanding the Requisite Company Vote, as follows:
(a) by mutual written consent of Buyers and the Company;
(b) by either Buyers or the Company if:
(i) the Merger has not been consummated on or
before July 31, 2001; PROVIDED, HOWEVER, that the right to terminate
this Agreement pursuant to this Section 7.1(b)(i) shall not be
available to any party whose failure to fulfill any obligation under
this Agreement has been the cause of, or resulted in, the failure of
the Effective Time to occur on or before such date;
22
(ii) a statute, rule, regulation or executive order
shall have been enacted, entered or promulgated prohibiting the
consummation of the Merger substantially on the terms contemplated
hereby; or
(iii) an order, decree, ruling or injunction shall
have been entered permanently restraining, enjoining or otherwise
prohibiting the consummation of the Merger substantially on the terms
contemplated hereby and such order, decree, ruling or injunction shall
have become final and non-appealable;
(c) by Buyers, if the Board of Directors of the Company,
with the concurrence of the Special Committee, or the Special Committee shall
have (i) withdrawn or modified, or proposed publicly to withdraw or modify, in a
manner adverse to Buyers, its approval of this Agreement or recommendation to
the Company's stockholders, (ii) approved or recommended, or proposed publicly
to approve or recommend, any Takeover Proposal, (iii) caused the Company to
enter into any agreement with respect to any Superior Proposal, in each case in
accordance with Section 5.8 of this Agreement, or (iv) the Board, the Special
Committee or any other committee thereof shall have resolved to take any of the
foregoing actions;
(d) by the Company, if the Company receives a Superior
Proposal and the Board of Directors of the Company or the Special Committee,
based on the advice of independent outside legal counsel, determines in good
faith that such action is necessary for the Board of Directors or the Special
Committee to avoid breaching its fiduciary duties to the Company's stockholders
under applicable law; or
(e) by Buyers or the Company, if the Requisite Company
Vote has not been obtained at the relevant stockholders' meeting or completion
of the consent solicitation process, as applicable.
Section 7.2 EFFECT OF TERMINATION. In the event of termination of
this Agreement pursuant to Section 7.1, written notice thereof shall forthwith
be given to the other party or parties specifying the provision hereof pursuant
to which such termination is made, and this Agreement shall terminate and be of
no further force and effect (except for the provisions of Sections 5.11 and 5.12
and Article VIII), and there shall be no other liability on the part of Buyers,
Parent, Merger Sub or the Company, except liability, if any, for a breach of
this Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 DEFINED TERMS.
"ACQUISITION AGREEMENT" shall mean any letter of intent,
agreement in principle, acquisition agreement or other similar agreement,
contract or commitment related to any Takeover Proposal.
23
"AFFILIATE," as applied to any Person, shall mean any other
Person directly or indirectly, through one or more intermediaries, controlling,
controlled by, or under common control with, that Person. For the purposes of
this definition, "CONTROL" (including, with correlative meanings, the terms
"CONTROLLING," "CONTROLLED BY" and "UNDER COMMON CONTROL WITH"), as applied to
any Person, means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of that Person, whether
through the ownership of voting securities, by contract or otherwise.
"BUYER MATERIAL ADVERSE EFFECT" shall mean any change in or
effect on the business, assets, properties, results of operations or financial
condition, prospects or condition (financial or otherwise) of Buyers, Parent or
Merger Sub that is or could reasonably be expected to be materially adverse to
the Buyers, Parent and Merger Sub, taken as a whole, or that could reasonably be
expected to materially impair the ability of Buyers to perform their obligations
under this Agreement or consummate the Merger and the other transactions
contemplated hereby.
"CLAIMS" shall mean any suit, claim, action, proceeding or
investigation.
"COMPANY MATERIAL ADVERSE EFFECT" shall mean any change in or
effect on the business, assets, properties, results of operations or financial
condition or condition (financial or otherwise) of the Company or any Company
Subsidiaries that is or could reasonably be expected to be materially adverse to
the Company and the Company Subsidiaries, taken as a whole, or that could
reasonably be expected to materially impair the ability of the Company to
perform its obligations under this Agreement or consummate the Merger and the
other transactions contemplated hereby.
"CONTRACT" shall mean any note, bond, mortgage, indenture,
contract, agreement, commitment, lease, license, permit, franchise or other
instrument or obligation.
"ENVIRONMENT" means navigable waters, waters of the contiguous
zone, ocean waters, natural resources, surface waters, ground water, drinking
water supply, land surface, subsurface strata, ambient air, both inside and
outside of buildings and structures, man-made buildings and structures, and
plant and animal life on earth.
"ENVIRONMENTAL CLAIMS" means any notification, whether direct
or indirect, formal or informal, written or oral, pursuant to Safety and
Environmental Laws or principles of common law relating to pollution, protection
of the Environment or health and safety, that any of the current or past
operations of the Company or any Company Subsidiary, as the case may be, or any
by-product thereof, or any of the property currently or formerly owned, leased
or operated by the Company or any Company Subsidiary, or the operations or
property of any predecessor of the Company or any Company Subsidiary is or may
be implicated in or subject to any proceeding, action, investigation, claim,
lawsuit, order, agreement or evaluation by any Governmental Entity or any other
person.
24
"GAAP" shall mean United States generally accepted accounting
principles, as currently in effect.
"GOVERNMENTAL ENTITY" shall mean any domestic or foreign
national, federal, state, provincial or local governmental, regulatory or
administrative authority, agency, commission, court, tribunal or arbitral body
or self-regulated entity.
"INCLUDING" shall mean, unless the context clearly requires
otherwise, including but not limited to the things or matters named or listed
after that term.
"INDEBTEDNESS" shall mean (i) indebtedness of or any
obligation of the Company and Company Subsidiaries for borrowed money, whether
current, short-term, or long-term, secured or unsecured, (ii) all lease
obligations of the Company and Company Subsidiaries, (iii) any payment
obligations of the Company or Company Subsidiaries in respect of banker's
acceptances or letters of credit and (iv) any present, future or contingent
obligations of the Company or Company Subsidiaries.
"KNOWLEDGE," shall mean, as applied to the Company, the actual
knowledge of the directors and executive officers of the Company.
"LAW" shall mean foreign or domestic law, statute, ordinance,
rule, regulation, order, judgment or decree.
"LIENS" shall mean any mortgage, security interest, lien,
encumbrance, claim, pledge, option, right of first refusal, agreement or
limitation of any kind on the Company's or Company Subsidiary's voting rights,
charges and other encumbrances or any nature whatsoever.
"NASDAQ" shall mean either the Nasdaq National Market System
or Nasdaq Small Cap Market.
"PERSON" means an individual, a corporation, a limited
liability company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or any agency or
instrumentality thereof.
"SAFETY AND ENVIRONMENTAL LAWS" means all federal, state and
local laws and orders relating to pollution, protection of the Environment,
public or worker health and safety, or the emission, discharge, release or
threatened release of pollutants, contaminants or industrial, toxic or hazardous
substances or wastes into the Environment or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants or industrial, toxic or
hazardous substances or wastes.
"SUBSIDIARY" or "SUBSIDIARIES" shall mean, with respect to
Buyers, the Company or any other Person, any entity of which any of Buyers, the
Company or such other Person, as the case may be (either alone or through or
together with any other
25
subsidiary), owns, directly or indirectly, stock or other equity interests
constituting more than 50% of the voting or economic interest in such entity.
"SUPERIOR PROPOSAL" shall mean any proposal made by a third
party to acquire, directly or indirectly, including pursuant to a tender offer,
exchange offer, merger, consolidation, business combination, recapitalization,
reorganization, liquidation, dissolution or similar transaction, for
consideration to the Company's stockholders consisting of cash and/or
securities, at least all of the shares of the Company's capital stock then
outstanding that are not owned by Buyers, Parent or their respective affiliates
or all or substantially all the assets of the Company, on terms which the Board
of Directors of the Company and the Special Committee determine in their good
faith judgment to be more favorable to the Company's stockholders than the
Merger and for which financing, to the extent required, is then committed.
"TAKEOVER STATUTE" shall mean a "fair price," "moratorium,"
"control share acquisition" or other similar state or federal anti-takeover
statute or regulation.
"TAXES" shall mean all federal, state, local and foreign
income, property, sales, excise and other taxes, tariffs, assessments, or
governmental charges of any nature whatsoever.
Section 8.2 NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties in this Agreement shall not survive the Closing.
Each party agrees that, except for the representations and warranties contained
in this Agreement and the Company Disclosure Letter, no party to this Agreement
has made any other representations and warranties, and each party disclaims any
other representations and warranties, made by itself or any of its
Representatives with respect to the execution and delivery of this Agreement or
the transactions contemplated by this Agreement, notwithstanding the delivery of
disclosure to any other party or any party's Representatives of any
documentation or other information with respect to any one or more of the
foregoing.
Section 8.3 VENUE; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN
ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW
PRINCIPLES, EXCEPT THAT DELAWARE LAW SHALL APPLY TO THE EXTENT REQUIRED IN
CONNECTION WITH THE EFFECTUATION OF THE MERGER. The parties irrevocably submit
to the jurisdiction of the federal courts of the United States of America
located in the State of New York solely in respect of the interpretation and
enforcement of the provisions of this Agreement and of the documents referred to
in this Agreement, and in respect of the transactions contemplated by this
Agreement and by those documents, and hereby waive, and agree not to assert, as
a defense in any action, suit or proceeding for the interpretation or
enforcement of this Agreement or of any such document, that it is not subject to
this Agreement or that such action, suit or proceeding
26
may not be brought or is not maintainable in said courts or that the venue
thereof may not be appropriate or that this Agreement or any such document may
not be enforced in or by such courts, and the parties hereto irrevocably agree
that all claims with respect to such action or proceeding shall be heard and
determined in such a federal court. The parties hereby consent to and grant any
such court jurisdiction over the Person of such parties and over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section
8.4 or in such other manner as may be permitted by Law, shall be valid and
sufficient service thereof.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, (ii) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF
THIS WAIVER, (iii) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH
SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.3.
Section 8.4 NOTICES. Any notice or other communication required
or permitted hereunder shall be in writing and shall be delivered personally,
sent by facsimile transmission or sent by certified, registered or express mail,
postage prepaid. Any such notice shall be deemed given when so delivered
personally or sent by facsimile transmission or, if mailed, five days after the
date of deposit in the United States mails, as follows:
If to Buyers, Parent or Merger Sub:
Three Cities Research, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Willem X. X. xx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
27
with copies to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company:
The Xxxxxx Xxx Company, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other persons or addresses as may be designated in writing by the
party to receive such notice as provided above.
Section 8.5 ENTIRE AGREEMENT. This Agreement (including any
exhibits and annexes to this Agreement) and the Company Disclosure Letter
constitute the entire agreement and supersede all other prior agreements,
understandings, representations and warranties, both written and oral, among the
parties, with respect to the subject matter of this Agreement.
28
Section 8.6 NO THIRD-PARTY BENEFICIARIES. Except as provided in
Section 5.9, this Agreement is not intended to confer upon any Person other than
the parties to this Agreement any rights or remedies under this Agreement.
Section 8.7 OBLIGATIONS OF BUYERS AND OF THE COMPANY. Whenever
this Agreement requires Parent or Merger Sub to take any action, that
requirement shall be deemed to include an undertaking on the part of Buyers to
cause Parent or Merger Sub to take that action. Whenever this Agreement requires
a Company Subsidiary to take any action, that requirement shall be deemed to
include an undertaking on the part of the Company to cause that Company
Subsidiary to take that action.
Section 8.8 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each such counterpart being deemed to be an original
instrument, and all such counterparts shall together constitute the same
agreement.
Section 8.9 INTERPRETATION. The table of contents and headings
in this Agreement are for convenience of reference only, do not constitute part
of this Agreement and shall not be deemed to limit or otherwise affect any of
the provisions of this Agreement. Where a reference in this Agreement is made to
a section, exhibit or annex, that reference shall be to a section of or exhibit
or annex to this Agreement unless otherwise indicated.
Section 8.10 ASSIGNMENT. This Agreement shall not be assignable by
operation of law or otherwise, except that Buyers, Parent or Merger Sub may
designate, by written notice to the Company, another subsidiary that is wholly
owned directly or indirectly either by Buyers or Parent or that is owned
directly or indirectly jointly by Buyers or Parent to be merged with and into
the Company in lieu of Merger Sub, in which event all references in this
Agreement to Merger Sub shall be deemed references to such other subsidiary, and
in that case, all representations and warranties made in this Agreement with
respect to Merger Sub as of the date of this Agreement shall be deemed
representations and warranties made with respect to such other subsidiary as of
the date of such designation.
Section 8.11 SPECIFIC PERFORMANCE. The parties to this Agreement
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any court of the United States or any state having jurisdiction,
this being in addition to any other remedy to which they are entitled at Law or
in equity.
Section 8.12 WAIVERS AND AMENDMENTS; NON-CONTRACTUAL REMEDIES;
PRESERVATION OF REMEDIES. At any time prior to the Effective Time and subject to
applicable Law, this Agreement may be amended, superseded, canceled, modified,
renewed or extended, and the terms hereof may be waived, only by a written
agreement signed by each of the parties, with the consent of the Special
Committee, or, in the case
29
of a waiver, by the party waiving compliance, with the consent of the Special
Committee, if applicable. No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any waiver on the part of any party of any such right, power or privilege, nor
any single or partial exercise of any such right, power or privilege, preclude
any further exercise thereof or the exercise of any other such right, power or
privilege. The rights and remedies herein provided are cumulative and are not
exclusive of any rights or remedies that any party may otherwise have at Law or
in equity.
Section 8.13 USAGE. All pronouns and any variations thereof refer
to the masculine, feminine or neuter, singular or plural, as the context may
require. All terms defined in this Agreement in their singular or plural forms
have correlative meanings when used herein in their plural or singular forms,
respectively.
Section 8.14 HEADINGS. The headings in this Agreement are for
reference only, and shall not affect the interpretation of this Agreement.
Section 8.15 FURTHER ASSURANCES. Each of the parties agree to
execute any and all documents and take any and actions as may be reasonably
required or necessary to carry out the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed as of the day and year first above written.
THE XXXXXX XXX COMPANY, INC.
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chairman of the Board
THREE CITIES FUND II, L.P.
By: TCR ASSOCIATES, L.P.,
its general partner
By: /s/ Xxxxxx X. Xxxx
----------------------------
Name: Xxxxxx X. Xxxx
Title: General Partner
THREE CITIES OFFSHORE II C.V.
By: THREE CITIES ASSOCIATES, N.V.,
its general partner
By: /s/ J. Xxxxxxx Xxxxx
----------------------------
Name: J. Xxxxxxx Xxxxx
Title: Managing Director
LF ACQUISITION CO.
By: /s/ Xxxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President & Secretary
LF MERGER CO.
By: /s/ Xxxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President & Secretary
