Exhibit 1
AGREEMENT AND PLAN OF MERGER
by and among
ATALANTA ACQUISITION COMPANY,
XXXXXX X. XXXXXXX
and
ATALANTA/SOSNOFF CAPITAL CORPORATION
__________________________
Dated as of June 10, 2003
TABLE OF CONTENTS
Page
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ARTICLE 1 THE OFFER.............................................................................2
SECTION 1.01 The Offer.......................................................................2
SECTION 1.02 Company Action..................................................................4
SECTION 1.03 Stockholder Lists...............................................................5
ARTICLE 2 THE MERGER............................................................................5
SECTION 2.01 The Merger......................................................................6
SECTION 2.02 Effective Time; Closing.........................................................6
SECTION 2.03 Effect of the Merger............................................................6
SECTION 2.04 Certificate of Incorporation; Bylaws; Directors and Officers....................6
ARTICLE 3 CONVERSION OF COMMON STOCK;
EXCHANGE OF CERTIFICATES..............................................................7
SECTION 3.01 Conversion of Common Stock......................................................7
SECTION 3.02 Exchange of Certificates........................................................7
SECTION 3.03 Stock Transfer Books............................................................9
SECTION 3.04 Appraisal.......................................................................9
SECTION 3.05 Stock Options...................................................................9
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE COMPANY........................................10
SECTION 4.01 Authority Relative to This Merger Agreement....................................10
SECTION 4.02 Brokers........................................................................10
SECTION 4.03 Opinion of Financial Advisor...................................................10
SECTION 4.04 State Takeover Statutes........................................................11
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF THE OFFERORS.......................................11
SECTION 5.01 Organization and Qualification.................................................11
SECTION 5.02 Authority Relative to This Merger Agreement....................................11
SECTION 5.03 Financing......................................................................12
SECTION 5.04 Operations of Purchaser........................................................12
SECTION 5.05 Brokers........................................................................12
ARTICLE 6 COVENANTS............................................................................12
SECTION 6.01 Notification of Certain Matters................................................12
SECTION 6.02 Merger Without Stockholders' Meeting...........................................12
SECTION 6.03 Directors' and Officers' Indemnification and Insurance.........................12
SECTION 6.04 Further Action; Consents; Filings..............................................13
SECTION 6.05 Public Announcements...........................................................14
SECTION 6.06 Reasonable Best Efforts and Further Assurances.................................14
ARTICLE 7 CONDITIONS TO THE MERGER.............................................................14
SECTION 7.01 Conditions to the Obligations of Each Party....................................14
ARTICLE 8 TERMINATION, AMENDMENT AND WAIVER....................................................15
SECTION 8.01 Termination....................................................................15
SECTION 8.02 Effect of Termination..........................................................17
SECTION 8.03 Amendment......................................................................17
SECTION 8.04 Waiver.........................................................................17
SECTION 8.05 Expenses.......................................................................17
ARTICLE 9 GENERAL PROVISIONS...................................................................18
SECTION 9.01 Non-Survival of Representations, Warranties and Agreements.....................18
SECTION 9.02 Notices........................................................................18
SECTION 9.03 Certain Definitions............................................................19
SECTION 9.04 Severability...................................................................19
SECTION 9.05 Entire Agreement; Assignment...................................................20
SECTION 9.06 Parties in Interest............................................................20
SECTION 9.07 Governing Law..................................................................20
SECTION 9.08 Headings.......................................................................20
SECTION 9.09 Counterparts...................................................................20
SECTION 9.10 Consent to Jurisdiction........................................................20
SECTION 9.11 Waiver of Jury Trial...........................................................21
ANNEX A Conditions To The Offer.............................................................A-2
This AGREEMENT AND PLAN OF MERGER, dated as of June 10, 2003 (this
"Merger Agreement"), is by and among Atalanta Acquisition Company, a Delaware
corporation ("Purchaser" and together with Xxxxxx X. Xxxxxxx ("Xx. Xxxxxxx"),
the "Offerors"), Xx. Xxxxxxx and Atalanta/Sosnoff Capital Corporation, a
Delaware corporation (the "Company").
WITNESSETH
WHEREAS, as of the date hereof, the Company has authority to issue
(i) 30,000,000 shares of Common Stock, par value $0.01 per share (the "Common
Stock" or the "Shares"), 8,664,715 of which were outstanding on a
fully-diluted basis, and (ii) 5,000,000 shares of Preferred Stock, par value
$0.01 per share, none of which are outstanding;
WHEREAS, Xx. Xxxxxxx has proposed to the Board of Directors of the
Company (the "Board") that Purchaser, a corporation wholly owned by him,
acquire the remaining Common Stock not owned by the Offerors (the "Proposal");
WHEREAS, the Board has established a special committee of the Board
(the "Special Committee") to, among other things, consider the Proposal and
make a recommendation to the Board with respect thereto;
WHEREAS, it is proposed that the Offerors shall commence a tender
offer (the "Offer") to acquire any and all of the outstanding Shares not owned
by Xx. Xxxxxxx for an amount equal to $13.95 per Share (such amount, or any
greater amount per Share paid pursuant to the Offer, being hereinafter
referred to as the "Offer Price"), net to the seller in cash, without interest
and less any required withholding taxes, upon the terms and subject to the
conditions provided herein;
WHEREAS, the Special Committee (i) has determined that it is fair to
and in the best interests of the Company and its stockholders (other than the
Offerors and their affiliates) to consummate the Offer and the merger of
Purchaser with and into the Company, with the Company being the surviving
corporation (the "Merger"), upon the terms and subject to the conditions of
this Merger Agreement and in accordance with the General Corporation Law of
the State of Delaware ("Delaware Law"), (ii) has determined that the Offer,
the Merger and this Merger Agreement should be approved and declared advisable
by the Board and (iii) has resolved to recommend that the Company's
stockholders accept the Offer and tender their Shares pursuant thereto;
WHEREAS, based on the recommendation of the Special Committee, the
Board (i) has determined that it is fair to and in the best interests of the
Company and its stockholders (other than the Offerors and their affiliates) to
consummate the Offer and the Merger upon the terms and subject to the
conditions of this Merger Agreement and in accordance with Delaware Law, (ii)
has approved and declared advisable the Offer, the Merger and this Merger
Agreement and (iii) has resolved to recommend that the Company's stockholders
accept the Offer and tender their Shares pursuant thereto;
WHEREAS, the Board of Directors of Purchaser (i) has determined that
the Offer and the Merger are fair to and in the best interests of Purchaser
and its stockholder and (ii) has approved and declared advisable the Offer,
the Merger and this Merger Agreement; and
WHEREAS, simultaneously with the execution and delivery of this
Merger Agreement and as a condition of the Offerors' willingness to enter into
this Merger Agreement, certain directors and officers of the Company have
entered into Shareholder Tender Agreements, pursuant to which Xxxxx X.
Xxxxxxxxx and Xxxxxxx X. Xxxxxxx, each a director and/or officer, have agreed
to tender their Shares in the Offer upon the terms and subject to the
conditions set forth therein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Purchaser, Xx. Xxxxxxx and the Company hereby agree as follows:
ARTICLE 1
THE OFFER
SECTION 1.01 The Offer. (a)
(i) Provided that this Merger Agreement shall not have been
terminated in accordance with Section 8.01 and none of the events set
forth in Annex A hereto shall have occurred or be existing, as soon as
practicable (but in no event later than five business days from the
public announcement of the terms of this Merger Agreement) the Offerors
shall commence the Offer. The initial expiration date of the Offer shall
be the twentieth business day from and after the date the Offer is
commenced (the "Initial Expiration Date").
(ii) The obligation of the Offerors to accept for payment and
pay for Shares tendered pursuant to the Offer shall be subject only to
the satisfaction of the following conditions: (A) that there be validly
tendered and not withdrawn prior to the expiration of the Offer that
number of Shares which, when taken together with all Shares owned by the
Offerors, represents at least ninety percent of the then outstanding
Shares on a fully-diluted basis (the "Minimum Condition"), and (B) the
conditions set forth in Annex A hereto (collectively, the "Additional
Offer Conditions," and together with the Minimum Condition, the "Offer
Conditions"), any of which Additional Offer Conditions may be waived by
the Offerors in their sole discretion.
(iii) The Offerors expressly reserve the right to amend or make
changes to the terms and conditions of the Offer; provided, however,
that, without the prior written consent of the Company (expressed in a
resolution adopted by both the Special Committee and the Board), the
Offerors shall not (v) decrease the Offer Price or change the form of
consideration to be paid in the Offer, (w) waive or modify the Minimum
Condition, (x) decrease the number of Shares sought in the Offer, (y)
impose any additional conditions to the Offer from the Offer Conditions,
or (z) otherwise amend the Offer in a manner that would adversely affect
the holders of Shares. The Company agrees that no Shares owned by the
Company for its account will be tendered pursuant to the Offer.
Notwithstanding anything in this Merger Agreement to the contrary,
without the consent of the Company, the Offerors shall have the right to
extend the Offer beyond the Initial Expiration Date in the following
events: (1) from time to time if, at the Initial Expiration Date (or
extended expiration date of the Offer, if applicable), any of the
conditions to the Offer have not been satisfied or waived; (2) for any
period required by any rule, regulation, interpretation or position of
the Securities and Exchange Commission (the "SEC") or the staff thereof
applicable to the Offer or any period required by applicable Law (as
hereinafter defined); or (3) pursuant to an amendment to the Offer
providing for a "subsequent offering period" to the extent permitted
under, and in compliance with, Rule 14d-11 under the Exchange; provided,
that notwithstanding anything to the contrary, if any of the conditions
to the Offer are not satisfied or, if applicable, waived on any scheduled
expiration date of the Offer, the Offerors shall be required to extend
the Offer for a period of 10 business days and, if at the end of such 10
business day period all of the conditions to the Offer are still not
satisfied or, if applicable, waived, an additional period of 10 business
days; provided further, that, without the consent of the Company
(expressed in a resolution adopted by both the Special Committee and the
Board), the Offerors shall not extend the Offer beyond the date that is
50 business days from the date on which the Offer was commenced.
(iv) Following the satisfaction or waiver of the Offer
Conditions, Purchaser shall accept for payment, in accordance with the
terms of the Offer, all Shares validly tendered pursuant to the Offer and
not withdrawn as soon as it is permitted to do so pursuant to applicable
Law. On or prior to the dates that Purchaser (or, in the case of the
Merger, the Surviving Corporation) becomes obligated to accept for
payment and pay for Shares pursuant to the Offer and Merger, Xx. Xxxxxxx
shall provide, or cause to be provided, to Purchaser (or, in the case of
the Merger, the Surviving Corporation) the funds necessary to pay for all
Shares that Purchaser (or, in the case of the Merger, the Surviving
Corporation) becomes so obligated to accept for payment and pay for
pursuant to the Offer and Merger, as the case may be. The Offer Price
shall, subject to any required withholding of Taxes (as defined below),
be net to the stockholder in cash without interest and less any required
withholding taxes, upon the terms and subject to the conditions of the
Offer.
(b) The Offerors shall file with the SEC on the date that the Offer
is commenced a Offer Statement on Schedule TO (together with any supplements
or amendments thereto, the "Schedule TO") which will contain, among other
things, the offer to purchase, form of the related letter of transmittal and
summary advertisement (together with any supplements or amendments thereto,
the "Offer Documents"), and a Rule 13e-3 Transaction Statement on Schedule
13E-3 with respect to the Offer which shall be filed as a part of the Schedule
TO (the "Offeror Schedule 13E-3"). The Offer Documents and Offeror Schedule
13E-3 shall comply in all material respects with the provisions of applicable
federal securities laws and, on the date filed with the SEC and, if
applicable, on the date first published, sent or given to the Company's
stockholders, shall not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading, except that no representation is made by
the Offerors with respect to information supplied by the Special Committee in
writing for inclusion in the Offer Documents. The Offerors further agree to
take all steps necessary to cause the Offer Documents and Offeror Schedule
13E-3 to be filed with the SEC and to be disseminated to holders of Shares, in
each case as and to the extent required by applicable federal securities laws.
The Offerors agree promptly to correct any information provided by them or it
for use in the Offer Documents or Offeror Schedule 13E-3 if and to the extent
that it shall have become false and misleading in any material respect and the
Offerors further agree to take all steps necessary to cause the Offer
Documents or Offeror Schedule 13E-3 as so corrected to be filed with the SEC
and to be disseminated to holders of Shares, in each case as and to the extent
required by applicable federal securities laws. The Special Committee and its
counsel shall be given the opportunity to review the Schedule TO and Offeror
Schedule 13E-3 before it is filed with the SEC. In addition, the Offerors
agree to provide the Special Committee and its counsel with any comments or
other communications that they or their counsel may receive from time to time
from the SEC or its staff with respect to the Schedule TO or Offeror Schedule
13E-3 promptly after the receipt of such comments or other communications.
(c) The Offerors agree to provide the Special Committee and its
counsel with any comments or other communications that either of them or its
counsel may receive from time to time from the SEC or its staff with respect
to the Offer Documents promptly or Offeror Schedule 13E-3 after the receipt of
such comments or other communications.
SECTION 1.02 Company Action. The Company hereby approves of and
consents to the Offer. Concurrently with the filing of the Schedule TO, the
Company will (i) file with the SEC and mail to the holders of Shares a
Solicitation/ Recommendation Statement on Schedule 14D-9 (together with any
supplements or amendments thereto, the "Schedule 14D-9") and (ii) file on the
date the Offer is commenced a Rule 13e-3 Transaction Statement on Schedule
13E-3 with respect to the Offer (the "Company Schedule 13E-3"). The Schedule
14D-9 will set forth, and the Company hereby represents to Purchaser, that (a)
each of the Special Committee and the Board, at meetings duly called and held,
has (i) determined that each of the Offer and the Merger is fair to and in the
best interests of the Company's stockholders (other than the Offerors and
their affiliates); (ii) approved this Merger Agreement and the transactions
contemplated hereby, including, without limitation the Offer and the Merger;
and (iii) resolved to recommend that the Company's stockholders accept the
Offer and tender their Shares pursuant thereto; provided, however, that such
recommendation may be withdrawn or modified to the extent that the Board,
based on the recommendation of the Special Committee, determines in good
faith, after receiving advice of outside counsel, that such recommendation
would be inconsistent with its fiduciary duties to the Company's stockholders
under applicable Law; and (b) The Blackstone Group, L.P., the financial
advisor to the Special Committee (the "Financial Advisor"), has delivered to
the Special Committee its written opinion that, subject to the assumptions and
qualifications set forth therein, as of the date of such opinion, the
consideration to be received by the stockholders of the Company (other than
the Offerors and their affiliates) in exchange for each of their Shares
pursuant to each of the Offer and the Merger is fair to such stockholders from
a financial point of view. Each of the Schedule 14D-9 and Company Schedule
13E-3 will comply in all material respects with the provisions of applicable
federal securities laws and, on the date filed with the SEC and on the date
first published, sent or given to the Company's stockholders, shall not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except that no representation is made by the Company with
respect to information supplied by the Offerors in writing for inclusion in
the Schedule 14D-9 or Company Schedule 13E-3. The Company further agrees to
take all steps necessary to cause the Schedule 14D-9 and Company Schedule
13E-3 to be filed with the SEC and to be disseminated to holders of Shares, in
each case as and to the extent required by applicable federal securities laws.
The Company agree(s) promptly to correct any information provided by it for
use in the Schedule 14D-9 or Company Schedule 13E-3 if and to the extent that
it shall have become false and misleading in any material respect and the
Company further agrees to take all steps necessary to cause the Schedule 14D-9
or Company Schedule 13E-3 as so corrected to be filed with the SEC and to be
disseminated to holders of the Shares, in each case as and to the extent
required by applicable federal securities laws. The Offerors and their counsel
shall be given the opportunity to review the initial Schedule 14D-9 and
Company Schedule 13E-3 before it is filed with the SEC. In addition, the
Company agrees to provide the Offerors and their counsel with any comments or
other communications that the Company or its counsel may receive from time to
time from the SEC or its staff with respect to the Schedule 14D-9 or Company
Schedule 13E-3 promptly after the receipt of such comments or other
communications.
SECTION 1.03 Stockholder Lists. In connection with the Offer, the
Company shall promptly furnish the Offerors or their agents or representatives
with mailing labels, security position listings of Shares held in stock
depositories and any available listing or computer file containing the names
and addresses of the record holders of Shares, each as of the most recent
practicable date, and shall promptly furnish the Offerors or their agents or
representatives with such additional information, including updated lists of
stockholders, mailing labels and lists of securities positions and such other
information and assistance as the Offerors or their agents or representatives
may reasonably request in connection with communicating to the record and
beneficial holders of Shares with respect to the Offer and the Merger.
ARTICLE 2
THE MERGER
SECTION 2.01 The Merger. Upon the terms and subject to the
conditions set forth in Article 7, and in accordance with Delaware Law, at the
Effective Time (as defined below), Purchaser shall be merged with and into the
Company. As a result of the Merger, the separate corporate existence of
Purchaser shall cease and the Company shall continue as the surviving
corporation of the Merger (the "Surviving Corporation").
SECTION 2.02 Effective Time; Closing. As promptly as practicable
following the satisfaction or, if permissible, waiver of the conditions set
forth in Article 7 (or such other date as may be agreed in writing by the
parties hereto), the parties hereto shall cause the Merger to be consummated
by filing a certificate of ownership and merger (the "Certificate of Merger")
with the Secretary of State of the State of Delaware, in such form as is
required by, and executed in accordance with, the relevant provisions of
Delaware Law. The term "Effective Time" means the date and time of the filing
with the Secretary of State of the State of Delaware of the Certificate of
Merger (or such later time as may be agreed upon in writing by the parties
hereto and specified in the Certificate of Merger). Immediately prior to the
filing of the Certificate of Merger, a closing (the "Closing") will be held at
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Four Times Square, New York, New
York 10036-6522 (or such other place as the parties hereto may agree).
SECTION 2.03 Effect of the Merger. At the Effective Time, the
effect of the Merger shall be as provided in the applicable provisions of
Delaware Law. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time, all the property, rights, privileges, powers
and franchises of Purchaser and the Company shall vest in the Surviving
Corporation, and all debts, liabilities, obligations, restrictions,
disabilities and duties of Purchaser and the Company shall become the debts,
liabilities, obligations, restrictions, disabilities and duties of the
Surviving Corporation.
SECTION 2.04 Certificate of Incorporation; Bylaws; Directors and
Officers. (a) At the Effective Time, the Certificate of Incorporation of the
Company, as in effect immediately prior to the Effective Time, shall be the
Certificate of Incorporation of the Surviving Corporation until thereafter
amended in accordance with Delaware Law and such Certificate of Incorporation.
(b) At the Effective Time, the Bylaws of the Company, as in effect
immediately prior to the Effective Time, shall be the Bylaws of the Surviving
Corporation until thereafter amended in accordance with Delaware Law, the
Certificate of Incorporation of the Surviving Corporation and such Bylaws.
(c) From and after the Effective Time, until successors are duly
elected or appointed and qualified in accordance with applicable Law, the
officers of the Company at the Effective Time shall be the officers of the
Surviving Corporation.
(d) At the Effective Time, Xxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxxx,
Xxxxxxxx Xxxxx-Xxxxx and Xxxxx X. Xxxxxxxxx will resign from the Board
pursuant to the Letters of Resignation, dated as of the date hereof, addressed
by each of them to the Company.
ARTICLE 3
CONVERSION OF COMMON STOCK; EXCHANGE OF CERTIFICATES
SECTION 3.01 Conversion of Common Stock. At the Effective Time, by
virtue of the Merger and without any action on the part of any party hereto or
the holders of Common Stock:
(a) each share of Common Stock issued and outstanding immediately
prior to the Effective Time (other than any Dissenting Shares, as defined in
Section 3.04, and any shares to be canceled pursuant to Section 3.01(b)) will
be converted into the right to receive the Offer Price in cash (the "Merger
Consideration");
(b) each share of Common Stock held in the treasury of the Company or
owned by the Offerors or any direct or indirect wholly-owned subsidiary of the
Company immediately prior to the Effective Time will be canceled and
extinguished without any conversion thereof and no payment or distribution
shall be made with respect thereto; and
(c) each share of common stock, par value $0.01 per share, of
Purchaser issued and outstanding immediately prior to the Effective Time will
be converted into one share of common stock of the Surviving Corporation.
SECTION 3.02 Exchange of Certificates. (a) Paying Agent. Prior to
the Effective Time, the Offerors shall designate a bank or trust company to
act as paying agent in the Merger (the "Paying Agent") and Purchaser shall
deposit (or shall cause to be deposited) with the Paying Agent immediately
available funds in an amount sufficient for the payment of the aggregate
Merger Consideration upon surrender of Certificates (as hereinafter defined)
representing shares of Common Stock converted pursuant to Section 3.01(a)
(such funds being hereinafter referred to as the "Exchange Fund").
(b) Exchange Procedures. Promptly after the Effective Time, the
Offerors shall cause the Paying Agent to mail to each holder of record (other
than the Offerors) of a certificate or certificates that immediately prior to
the Effective Time represented shares of Common Stock (the "Certificates"),
(i) a letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only
upon delivery of the Certificates to the Paying Agent and shall be in a form
and have such other provisions as the Offerors may reasonably specify) and
(ii) instructions for use in effecting the surrender of the Certificates in
exchange for the Merger Consideration. Upon surrender of a Certificate for
cancellation to the Paying Agent or to such other agent or agents as may be
appointed by the Offerors, together with such letter of transmittal, duly
executed, and such other documents as may reasonably be required by the
Paying Agent, the holder of such Certificate shall be entitled to receive in
exchange therefor, and the Paying Agent shall pay, the Merger Consideration
for each share of Common Stock formerly evidenced by such Certificate, and
such Certificate shall thereupon be canceled. If payment of the Merger
Consideration is to be made to a person other than the person in whose name
the surrendered Certificate is registered on the stock transfer books of the
Company, it shall be a condition of payment to the holder of a Certificate
that it be endorsed properly or otherwise be in proper form for transfer and
that the person requesting such payment shall have paid all transfer and
other taxes required by reason of the payment of the Merger Consideration to
a person other than the registered holder thereof or shall have established
to the satisfaction of the Surviving Corporation that such taxes are not
applicable. Until surrendered as contemplated by this Section 3.02, each
Certificate shall be deemed at any time after the Effective Time to represent
only the right to receive upon such surrender the Merger Consideration into
which the shares theretofore represented by such Certificate shall have been
converted pursuant to Section 3.01(a). No interest will be paid or will
accrue on the cash payable upon the surrender of any Certificate.
(c) Termination of Exchange Fund. Any portion of the Exchange Fund
which remains undistributed for six months after the Effective Time shall be
delivered to the Surviving Corporation, upon demand, and any holders of shares
of Common Stock who have not theretofore complied with this Article 3 shall
thereafter look only to the Surviving Corporation for payment of the Merger
Consideration to which they are entitled, without any interest thereon. Any
portion of the Exchange Fund remaining unclaimed as of a date which is
immediately prior to such time as such amounts would otherwise escheat to or
become property of any government entity shall, to the extent permitted by
applicable Law, become the property of the Surviving Corporation free and
clear of any claims or interest of any person previously entitled thereto.
(d) No Liability. Neither the Offerors nor the Surviving Corporation
shall be liable to any holder of shares of Common Stock for any amounts
delivered to a public official pursuant to any abandoned property, escheat or
similar Law.
(e) Withholding Rights. Each of the Surviving Corporation, Purchaser
and the Paying Agent shall be entitled to deduct and withhold from the
consideration otherwise payable pursuant to this Merger Agreement to any
holder of shares of Common Stock such amounts as it is required to deduct and
withhold with respect to the making of any payment under the Internal Revenue
Code of 1986, as amended (the "Code"), or any provision of state or local tax
Law. To the extent that amounts are so withheld by the Surviving Corporation,
Purchaser or the Paying Agent, as the case may be, such withheld amounts shall
be treated for all purposes of this Merger Agreement as having been paid to
the holder of the shares of Common Stock in respect of which such deduction
and withholding was made by the Surviving Corporation, Purchaser or the Paying
Agent, as the case may be.
(f) Lost Certificates. If any Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming such Certificate to be lost, stolen or destroyed and, if
required by the Offerors or the Surviving Corporation, the posting by such
person of a bond, in such reasonable amount as the Offerors or the Surviving
Corporation may direct, as indemnity against any claim that may be made
against it with respect to such Certificate, the Paying Agent will issue in
exchange for such lost, stolen or destroyed Certificate, the Merger
Consideration, without any interest thereon.
(g) Investment of Funds. The Paying Agent shall invest the funds
constituting the Exchange Fund as directed by the Offerors. Any interest or
other income resulting from such investment shall be paid to the Surviving
Corporation.
(h) Further Action. At and after the Effective Time, the officers
and directors of the Surviving Corporation will be authorized to execute and
deliver, in the name and on behalf of the Company, any deeds, bills of sale,
assignments or assurances and to take and do, in the name and on behalf of
the Company, any other actions and things to vest, perfect or confirm of
record or otherwise in the Surviving Corporation any and all right, title and
interest in, to and under any of the rights, properties or assets acquired or
to be acquired by the Surviving Corporation as a result of, or in connection
with, the Merger.
SECTION 3.03 Stock Transfer Books. At the Effective Time, the
stock transfer books of the Company shall be closed with respect to Shares
outstanding immediately prior to the Effective Time and there shall be no
further registration of transfers of such Shares thereafter on the records of
the Company. From and after the Effective Time, the holders of Shares
outstanding immediately prior to the Effective Time shall cease to have any
rights with respect to such Shares, except as otherwise provided in this
Merger Agreement or by applicable Law.
SECTION 3.04 Appraisal. Notwithstanding anything in this Merger
Agreement to the contrary, each Share issued and outstanding immediately prior
to the Effective Time (a "Dissenting Stockholder") who complies with all the
requirements of Delaware Law concerning the right of stockholders to seek
appraisal of their shares ("Dissenting Shares") shall not be converted as
described in this Article 3 but shall instead become the right to receive such
consideration as may be determined to be due to such Dissenting Stockholder
pursuant to Section 262 of the Delaware Law. If, after the Effective Time,
such Dissenting Stockholder withdraws his or her demand for appraisal or fails
to perfect or otherwise loses his or her right of appraisal, in any case
pursuant to Delaware Law, each Share of such Dissenting Stockholder shall be
deemed to be converted as of the Effective Time into the right to receive the
Merger Consideration (without any interest thereon). The Company shall give
the Offerors prompt notice of any demands received by the Company for
appraisal of any Shares, and the Offerors shall have the right to participate
in and direct all negotiations and proceedings with respect to such demands.
The Company shall not, except with the prior written consent of the Offerors,
make any payment with respect to, or settle, offer to settle or reject any
settlement of, any such demands, or agree to do any of the foregoing.
SECTION 3.05 Stock Options. All outstanding options to purchase
shares of Common Stock (the "Company Options") granted under any of the
Company's Long-Term Incentive Plan and any other option plan, agreement or
commitment made or maintained by the Company (collectively, the "Company
Option Plans") which are outstanding immediately prior to the Effective Time
will, effective as of the Effective Time, be cancelled in exchange for a
single lump sum cash payment, to be paid by the Surviving Corporation as soon
as practicable following the Closing upon its receipt of a release or other
documentation by the holder of such Company Option reasonably satisfactory to
the Offerors and the Surviving Corporation, equal to the product of (i) the
number of Shares subject to such Company Option and (ii) the excess, if any,
of the Merger Consideration for a Share at the Effective Time over the
exercise price per Share of such Company Option.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Offerors that:
SECTION 4.01 Authority Relative to This Merger Agreement. (a) The
Company has all necessary corporate power and authority to execute and deliver
this Merger Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery of this
Merger Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby 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 Merger Agreement or to consummate
the transactions contemplated hereby (other than, with respect to the Merger
and to the extent required by Delaware Law, the recordation of appropriate
merger documents as required by Delaware Law). This Merger Agreement has been
duly and validly executed and delivered by the Company and, assuming the due
authorization, execution and delivery by the Offerors, constitutes a legal,
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms.
(b) (i) The Special Committee has been duly authorized and
constituted, (ii) the Special Committee, at a meeting thereof duly called and
held on June 10, 2003, (A) determined that this Merger Agreement, the Offer
and the Merger are fair to and in the best interests of the Company and its
stockholders (other than the Offerors and their affiliates), (B) determined
that this Merger Agreement, the Offer and the Merger should be approved and
declared advisable by the Board and (C) resolved to recommend that the
Company's stockholders accept the Offer and tender their Shares pursuant
thereto and (iii) the Board, at a meeting thereof duly called and held on June
10, 2003, (A) determined that this Merger Agreement and the Merger are fair to
and in the best interests of the Company and its stockholders (other than the
Offerors and their affiliates), (B) approved and declared advisable this
Merger Agreement, the Offer and the Merger and (C) resolved to recommend that
the Company's stockholders accept the Offer and tender their Shares pursuant
thereto.
SECTION 4.02 Brokers. No broker, finder or investment banker
(other than the Financial Advisor) is entitled to any brokerage, finder's or
other fee or commission in connection with the Offer or the Merger based upon
arrangements made by or on behalf of the Company.
SECTION 4.03 Opinion of Financial Advisor. The Special Committee
has received the written opinion of Financial Advisor dated the date of this
Merger Agreement to the effect that, subject to the assumptions and
qualifications set forth therein, as of the date of this Merger Agreement, the
consideration to be received by the stockholders of the Company (other than
the Offerors and their affiliates) in exchange for each of their Shares
pursuant to each of the Offer and the Merger is fair to the stockholders of
the Company (other than the Offerors and their affiliates) from a financial
point of view and such opinion has not been withdrawn. A true and complete
copy of such opinion has been delivered to the Offerors.
SECTION 4.04 State Takeover Statutes. Neither the restrictions on
business combinations contained in Section 203 of the Delaware Law, nor any
other state takeover statute or similar statute or regulations, applicable (or
that purport to be applicable) to the Offer, the Merger, this Merger Agreement
or any of the transactions contemplated hereby or thereby, or to any of the
parties hereto or their affiliates as a result of such transactions, is
reasonably expected to prevent or materially delay the consummation of the
Offer or the Merger.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE OFFERORS
Each of the Offerors hereby jointly and severally represents and
warrants to the Company that:
SECTION 5.01 Organization and Qualification. Purchaser is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has the requisite corporate power and
authority to own, lease and operate its properties and to carry on its
business as it is now being conducted. Purchaser is duly qualified and in good
standing to do business in each jurisdiction in which the nature of the
business conducted by it or the ownership or leasing of its properties makes
such qualification necessary, other than where the failure to be so duly
qualified and in good standing could not, individually or in the aggregate,
reasonably be expected to prevent or materially delay the consummation of the
Offer or the Merger.
SECTION 5.02 Authority Relative to This Merger Agreement. (a)
Purchaser has all necessary corporate power and authority to execute and
deliver this Merger Agreement, to perform its obligations hereunder and to
consummate the Offer, the Merger and the other transactions contemplated
hereby. Xx. Xxxxxxx has full capacity to execute and deliver this Merger
Agreement, to perform his obligations hereunder and to consummate the Offer,
the Merger and other transactions contemplated hereby. The execution and
delivery of this Merger Agreement by Purchaser and the consummation by
Purchaser of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action, and no other corporate
proceedings on the part of Purchaser are necessary to authorize this Merger
Agreement or to consummate the transactions contemplated hereby (other than,
with respect to the Merger, the execution of a stockholder written consent by
Purchaser, to the extent required by Delaware Law, and the filing and
recordation of appropriate merger documents as required by Delaware Law). This
Merger Agreement has been duly and validly executed and delivered by the
Offerors and, assuming the due authorization, execution and delivery by the
Company, constitutes a legal, valid and binding obligation of the Offerors
enforceable against each of them in accordance with its terms.
(b) Purchaser, by written consent of its Board of Directors
adopted on June 10, 2003, (i) determined that this Merger Agreement, the Offer
and the Merger are fair to and in the best interests of Purchaser and its
stockholder and (ii) approved and declared advisable this Merger Agreement,
the Offer and the Merger.
SECTION 5.03 Financing. Purchaser has sufficient funds available
to pay the aggregate consideration payable as a result of the consummation of
the Offer, the Merger and other transactions contemplated hereby and to pay
all Expenses (as hereinafter defined) incurred by it related to the
transactions contemplated by this Merger Agreement.
SECTION 5.04 Operations of Purchaser. Purchaser has been formed
solely for the purpose of engaging in the transactions contemplated by this
Merger Agreement and the Offer Documents and prior to the Effective Time will
have engaged in no other business activities and will have incurred no
liabilities or obligations other than as contemplated herein.
SECTION 5.05 Brokers. No broker, finder or investment banker is
entitled to any brokerage, finders or other fee or commission in connection
with the Offer or the Merger based upon arrangements made by or on behalf of
the Offerors.
ARTICLE 6
COVENANTS
SECTION 6.01 Notification of Certain Matters. (a) The Company and
the Offerors shall give prompt notice to the other party of (i) the occurrence
or nonoccurrence of any event the occurrence or nonoccurrence of which would
be likely to cause (A) any representation or warranty contained in this Merger
Agreement to be untrue or inaccurate or (B) any covenant, condition or
agreement contained in this Merger Agreement not to be complied with or
satisfied and (ii) any failure of the Company or the Offerors, as the case may
be, to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder; provided, however, that the
delivery of any notice pursuant to this Section 6.02 shall not limit or
otherwise affect the remedies available hereunder to the Offerors or the
Company.
SECTION 6.02 Merger Without Stockholders' Meeting. If, as a result
of the purchase of Shares pursuant to the Offer and compliance with the terms
of this Section 6.03, Purchaser owns in the aggregate at least 90% of the
Shares outstanding upon completion of the Offer, the parties hereto agree to
take all necessary and appropriate action to cause the Merger to become
effective as soon as practicable after the satisfaction or waiver of the
conditions to the Merger set forth in Article 7 without a meeting of
stockholders of the Company, in accordance with Section 253 of the Delaware Law.
SECTION 6.03 Directors' and Officers' Indemnification and
Insurance. (a) Indemnity. From and after the Effective Time, the Offerors
will, and will cause the Surviving Corporation to, subject to applicable Law,
fulfill and honor in all respects the obligations of the Company pursuant to
any indemnification agreements between the Company and its directors and
officers immediately prior to the Effective Time (the "Indemnified Parties")
and any provisions of the Company's Certificate of Incorporation or Bylaws and
any provisions of applicable Law relating to indemnification of directors and
officers of the Company. The Certificate of Incorporation and Bylaws of the
Surviving Corporation will contain provisions with respect to exculpation and
indemnification that are comparable to the provisions contained in the
Certificate of Incorporation and Bylaws of the Company as in effect on the
date hereof, which provisions will not be amended, repealed or otherwise
modified for a period of six years from the Effective Time in any manner that
would adversely affect the rights thereunder of individuals who, immediately
prior to the Effective Time, were directors, officers, employees or agents of
the Company, unless such modification is required by applicable Law.
(b) Insurance. For a period of three years after the Effective Time,
the Offerors shall cause, and shall cause the Surviving Corporation, to be
maintained in effect for the benefit of the Company's current directors and
officers liability insurance covering those persons who are covered by the
Company's directors' and officers' liability insurance policy as of the date
hereof on terms comparable to such policy for a period of three years;
provided, however, that the Surviving Corporation has no obligation to provide
or maintain levels of coverage in excess of those to which directors and
officers of the Company are entitled on the date hereof.
(c) Obligation. For six years after the Effective Time, the Surviving
Corporation shall, and the Offerors shall cause the Surviving Corporation to,
indemnify and hold harmless the Indemnified Parties to the fullest extent
permitted under applicable Law, with respect to all actions or omissions by
them prior to the Effective Time in their capacities as officers or directors
of the Company or any of its subsidiaries (including with respect to all acts
or omissions by them in their capacities as officers or directors of the
Company or any of its subsidiaries in connection with the adoption and
approval of this Merger Agreement and the transactions contemplated hereby).
In the event any claim in respect of which indemnification is available
pursuant to the foregoing provisions is asserted or made within such six-year
period, all rights to indemnification shall continue until such claim is
disposed of or all judgments, orders, decrees or other rulings in connection
with such claim are duly satisfied.
SECTION 6.04 Further Action; Consents; Filings. Upon the terms and
subject to the conditions hereof, each of the parties hereto shall use its
reasonable best efforts to (a) 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 the Offer
and the Merger and the other transactions contemplated by this Merger
Agreement, (b) obtain from Governmental Entities or any other person any
consents, licenses, permits, waivers, approvals, authorizations or orders
required to be obtained or made by Purchaser or the Company or any of their
subsidiaries in connection with the authorization, execution and delivery of
this Merger Agreement and the consummation of the Offer and the Merger and (c)
make all necessary filings, and thereafter make any other required
submissions, with respect to this Merger Agreement, the Offer and the Merger
and the other transactions contemplated by this Merger Agreement that are
required under the Exchange Act, the Securities Act and any other applicable
Law. The parties hereto shall cooperate with each other in connection with the
making of all such filings, including by providing copies of all such
documents to the non-filing party and its advisors prior to filing and, if
requested, by accepting all reasonable additions, deletions or changes
suggested in connection therewith.
SECTION 6.05 Public Announcements. The Offerors and the Company
(including, without limitation, the Special Committee) shall consult with each
other before issuing any press release or otherwise making any public
statements with respect to this Merger Agreement, the Offer or the Merger and
shall not issue any such press release or make any such public statement
without the prior consent of the other parties hereto (which consent shall not
be unreasonably withheld or delayed), except as may be required by Law or any
listing agreement with the NYSE to which the Company is a party.
Notwithstanding anything herein to the contrary, from the commencement of
discussions with respect to the transactions contemplated by this Agreement,
the parties (and each employee, representative or other agent of any of the
parties) confirm they have been permitted (and may continue) to disclose to
any and all persons, without limitation of any kind, the tax treatment, tax
structure and any facts (including opinions or other analysis) that may be
relevant to the tax treatment or tax structure of the transactions
contemplated by this Agreement that have been or will be provided to such
parties; provided, however, that no party (nor any employee, representative or
other agent of any of the parties) may, pursuant to the authority to disclose
granted and/or confirmed in this sentence, disclose any other information that
is not relevant to understanding the tax treatment and tax structure of the
transaction (including the identity of any party and any information that
could lead another to determine the identity of any party), or any other
information to the extent that such disclosure could result in a violation of
any applicable Law.
SECTION 6.06 Reasonable Best Efforts and Further Assurances.
Subject to the terms and conditions hereof, each of the parties to this Merger
Agreement shall use its reasonable best efforts to effect the transactions
contemplated hereby and to fulfill and cause to be fulfilled the conditions to
the Offer and the Merger under this Merger Agreement. Subject to the terms and
conditions hereof, each party hereto (including, in the case of the Company,
the Special Committee), at the reasonable request of another party hereto,
shall execute and deliver such other instruments and do and perform such other
acts and things as may be necessary or desirable for effecting completely the
consummation of this Merger Agreement and the transactions contemplated
hereby.
ARTICLE 7
CONDITIONS TO THE MERGER
SECTION 7.01 Conditions to the Obligations of Each Party. The
obligations of the Offerors and the Company to consummate the Merger are
subject to the satisfaction or waiver (where permissible) of the following
conditions:
(a) No Order. No Governmental Entity (as defined herein) shall have
enacted, issued, promulgated, enforced or entered any Law, executive order or
award (whether temporary, preliminary or permanent) (an "Order") that is then
in effect and has the effect of making the Merger illegal or otherwise
prohibiting consummation of the Merger.
(b) Purchase of Shares. Purchaser shall have purchased Shares
pursuant to the Offer.
ARTICLE 8
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01 Termination. This Merger Agreement may be terminated
and the Offer and the Merger may be abandoned at any time prior to the
Effective Time as follows:
(a) By the Company (expressed in a resolution adopted by both the
Special Committee and the Board) and Xx. Xxxxxxx (on behalf of himself and
Purchaser);
(b) By either Xx. Xxxxxxx (on behalf of himself and Purchaser) or the
Company (expressed in a resolution adopted by both the Special Committee and
the Board), if any Governmental Entity shall have enacted, issued,
promulgated, enforced or entered any Order or taken any other action
permanently restraining, enjoining or otherwise prohibiting the consummation
of the Offer or the Merger;
(c) By Xx. Xxxxxxx (on behalf of himself and Purchaser), if the
Special Committee fails to reaffirm (publicly, if so requested) its
recommendation in favor of the adoption and approval of the Merger Agreement
and that the shareholders of the Company accept the Offer and tender their
Shares to Purchaser pursuant to the Offer within three (3) calendar days after
the Offerors request in writing that such recommendation be reaffirmed;
(d) By either Xx. Xxxxxxx (on behalf of himself and Purchaser) or the
Company (expressed in a resolution adopted by the Special Committee), if as a
result of any of the Offer Conditions being incapable of being satisfied (i)
the Offerors shall have failed to commence the Offer within five business days
following the date of this Merger Agreement or (ii) the Offer shall have
expired without any Shares being purchased pursuant thereto; provided,
however, that the right to terminate this Merger Agreement pursuant to this
Section 8.01(d) shall not be available to any party whose failure to fulfill
any obligation under this Merger Agreement or the Offer has been the cause of,
or resulted in, the failure of the Shares to have been purchased pursuant to
the Offer;
(e) By either Xx. Xxxxxxx (on behalf of himself and Purchaser) or the
Company (expressed in a resolution adopted by both the Special Committee and
the Board), if the Offer has not been consummated on or before September 30,
2003; provided, however, that the right to terminate this Merger Agreement
pursuant to this Section 8.01(e) shall not be available to any party whose
failure to fulfill any obligation under this Merger Agreement or the Offer has
been the cause of, or resulted in, the failure of the Offer to have been
consummated by such date;
(f) by the Company (expressed in a resolution adopted by both the
Special Committee and the Board), (i) if the Offerors shall have materially
breached any of their covenants, obligations or other agreements under this
Merger Agreement, or (ii) if the representations and warranties of the
Offerors set forth in this Merger Agreement shall not be true and correct
(without giving effect to any limitation as to "materiality" or "Material
Adverse Effect" set forth therein) at and as of the date of the Agreement and
as of the expiration of the date of termination of this Merger Agreement
(except to the extent expressly made as of an earlier date, in which case as
of such date) except where the failure to be so true and correct, individually
or in the aggregate would not reasonably be expected to materially delay or
prevent the commencement of the Offer or otherwise materially impair the
ability of the Offerors to fulfill their obligations in respect of the Offer;
provided, further that the breach of the covenant, obligation, agreement,
representation or warranty is incapable of being or has not been cured by the
Offerors prior to or on the date which is ten business days immediately
following written notice by the Company to the Offerors of such breach or
failure to perform; or
(g) by Xx. Xxxxxxx (on behalf of himself and Purchaser), (i) if the
Company shall have materially breached any of its respective covenants,
obligations or other agreements under this Merger Agreement, or (ii) if the
representations and warranties of the Company set forth in this Merger
Agreement shall not be true and correct (without giving effect to any
limitation as to "materiality" set forth therein) at and as of the date of the
Agreement and as of the expiration of the date of termination of this Merger
Agreement (except to the extent expressly made as of an earlier date, in which
case as of such date), except where the failure to be so true and correct,
individually or in the aggregate would not reasonably be expected to have, a
Company Material Adverse Effect; provided, further that the breach of the
covenant, obligation, agreement, representation or warranty is incapable of
being or has not been cured by the Company prior to or on the date which is
ten business days immediately following written notice by the Offerors to the
Company of such breach or failure to perform.
The term "Company Material Adverse Effect" means any change, effect,
event or circumstance that, individually or when taken together with all other
such changes, effects, events or circumstances, is or is reasonably likely to
be materially adverse to the financial condition, assets, liabilities,
business, operations or earnings of the Company and its subsidiaries, taken as
a whole, other than (and these shall be disregarded in determining whether
there has been a Company Material Adverse Effect) any such change, effect,
event or circumstance arising out of or resulting from (a) general economic
conditions, (b) changes in or generally affecting the industry in which the
Company operates, (c) the transactions contemplated by this Merger Agreement
or the public announcement thereof, or (d) changes in the market value of the
investment portfolio of the Company.
The right of any party hereto to terminate this Merger Agreement
pursuant to this Section 8.01 shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any party
hereto, any person controlling any such party or any of their respective
officers or directors, whether prior to or after the execution of this Merger
Agreement.
SECTION 8.02 Effect of Termination. Except as provided in Section
8.02, in the event of termination of this Merger Agreement pursuant to Section
8.02, this Merger Agreement shall forthwith become void, there shall be no
liability under this Merger Agreement on the part of the Offerors or the
Company or any of their respective officers or directors, and all rights and
obligations of each party hereto shall cease; provided, however, that nothing
herein shall relieve any party from liability for the willful breach of any of
its representations, warranties, covenants or agreements set forth in this
Merger Agreement.
SECTION 8.03 Amendment. To the fullest extent permitted by
Delaware Law, this Merger Agreement may be amended by the parties hereto by
action taken by or on behalf of their respective boards of directors or sole
shareholders at any time prior to the Effective Time; provided, however, that
any such amendment on behalf of the Company must be approved by the Special
Committee. This Merger Agreement may not be amended except by an instrument in
writing signed by the parties hereto.
SECTION 8.04 Waiver. At any time prior to the Effective Time, any
party hereto may (a) extend the time for the performance of any obligation or
other act of another party hereto, (b) waive any inaccuracy in the
representations and warranties of another party contained herein or in any
document delivered pursuant hereto and (c) waive compliance with any agreement
of another party or condition to its own obligations contained herein;
provided, however, that, if the Company seeks to make such extension or waiver
as provided in clause (a), (b) or (c) above, it must first obtain the approval
of the Special Committee. Any such extension or waiver shall be valid if set
forth in an instrument in writing signed by the party or parties to be bound
thereby.
SECTION 8.05 Expenses. Except as provided in the Schedule TO, all
Expenses (as defined below) incurred in connection with this Merger Agreement
and the transactions contemplated by this Merger Agreement shall be paid by
the party incurring such Expenses, whether or not the Offer, the Merger or any
other transaction is consummated. "Expenses" as used in this Merger Agreement
shall include all reasonable out-of-pocket expenses (including, without
limitation, all fees and expenses of counsel, accountants, investment bankers,
experts and consultants to a party hereto and its affiliates) incurred by a
party or on its behalf in connection with or related to the authorization,
preparation, negotiation, execution and performance of this Merger Agreement
and the Offer Documents and the transactions contemplated hereby and thereby.
ARTICLE 9
GENERAL PROVISIONS
SECTION 9.01 Non-Survival of Representations, Warranties and
Agreements. The representations, warranties and agreements in this Merger
Agreement and in any certificate delivered pursuant hereto shall terminate at
the Effective Time or upon the termination of this Merger Agreement pursuant
to Section 8.01, as the case may be, except that this Section 9.01 shall not
limit any covenant or agreement of the parties which by its terms contemplates
performance after the Effective Time or after termination of this Merger
Agreement.
SECTION 9.02 Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given or made
(and shall be deemed to have been duly given or made upon receipt) by delivery
in person, by facsimile, by courier service or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be
specified in a notice given in accordance with this Section 9.02):
if to Purchaser:
Atalanta Acqusition Comapny
x/x Xxxxxx Xxxxxxx
Xxxxxxxx/Xxxxxxx Xxxxxxx Xxxxxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
if to the Company:
Atalanta/Sosnoff Capital Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Special Committee of the Board of Directors
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
and
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxx and Xxxx Xxxxxxxx
SECTION 9.03 Certain Definitions. For purposes of this Merger
Agreement, the term:
(a) "affiliate" of a specified person means a person who directly or
indirectly through one or more intermediaries controls, is controlled by, or
is under common control with such specified person;
(b) "business day" means any day on which the principal offices of
the SEC in Washington, D.C. are open to accept filings, or, in the case of
determining a date when any payment is due, any day on which banks are not
required or authorized to close in The City of New York;
(c) "control" (including the terms "controlled by" and "under common
control with") means the possession, directly or indirectly or as trustee or
executor, of the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting securities, as
trustee or executor, by contract or credit arrangement or otherwise;
(d) "Governmental Entity" means any supranational, national, state,
municipal, local or foreign government, any instrumentality, subdivision,
court, administrative agency or commission or other governmental authority or
instrumentality, or any quasi-governmental or private body exercising any
regulatory, taxing, importing or other governmental or quasi-governmental
authority;
(e) "person" means an individual, corporation, partnership, limited
partnership, syndicate, person (including, without limitation, a "person" as
defined in Section 13d(3) of the Exchange Act), trust, association or entity
or government, political subdivision, agency or instrumentality of a
government; and
(f) "subsidiary" or "subsidiaries" of any person means any
corporation, partnership, joint venture or other legal entity of which such
person (either alone or through or together with any other subsidiary) owns,
directly or indirectly, more than 50% of the stock or other equity interests,
the holders of which are generally entitled to vote for the election of the
board of directors or other governing body of such corporation or other legal
entity; provided, however, that for purposes of the representations and the
warranties of Purchaser in Article 5, and the covenants and other agreements
of Purchaser in Article 6, except as otherwise specifically provided therein,
the "subsidiaries" of Purchaser shall not include the Company or any
subsidiaries of the Company.
SECTION 9.04 Severability. If any term or other provision of this
Merger Agreement is invalid, illegal or incapable of being enforced by any
rule of Law or public policy, all other conditions and provisions of this
Merger Agreement shall nevertheless remain in full force and effect as long as
the economic or legal substance of the Merger is not affected in any manner
materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Merger Agreement
so as to effect the original intent of the parties as closely as possible in a
mutually acceptable manner in order that the Merger be consummated as
originally contemplated to the fullest extent possible.
SECTION 9.05 Entire Agreement; Assignment. This Merger Agreement
constitutes the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior agreements and undertakings,
both written and oral, between the parties, with respect to the subject matter
hereof. This Merger Agreement shall not be assigned by operation of Law or
otherwise, except that Purchaser may assign all or any of its rights and
obligations hereunder to any affiliate of Purchaser, provided that no such
assignment shall relieve Purchaser of its obligations hereunder if such
assignee does not perform such obligations.
SECTION 9.06 Parties in Interest. This Merger Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and nothing
in this Merger Agreement, express or implied, is intended to or shall confer
upon any other person any right, benefit or remedy of any nature whatsoever
under or by reason of this Merger Agreement; provided that the rights set
forth in Section 6.03 are intended to benefit each Indemnified Party.
SECTION 9.07 Governing Law. This Merger Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Delaware applicable to contracts executed in and to be performed in that
State.
SECTION 9.08 Headings. The descriptive headings contained in this
Merger Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Merger Agreement.
SECTION 9.09 Counterparts. This Merger Agreement may be executed
and delivered (including by facsimile transmission) in one or more
counterparts, and by each party hereto in separate counterparts, each of which
when executed and delivered shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
SECTION 9.10 Consent to Jurisdiction. Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property,
to the exclusive jurisdiction of any Delaware State court, or Federal court of
the United States of America, sitting in Delaware, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to
this Merger Agreement or the agreements delivered in connection herewith or
the transactions contemplated hereby or thereby or for recognition or
enforcement of any judgment relating thereto, and each of the parties hereby
irrevocably and unconditionally (a) agrees not to commence any such action or
proceeding except in such courts, (b) agrees that any claim in respect of any
such action or proceeding may be heard and determined in such Delaware State
court or, to the extent permitted by Law, in such Federal court, (c) waives,
to the fullest extent it may legally and effectively do so, any objection
which it may now or hereafter have to the laying of venue of any such action
or proceeding in any such Delaware State or Federal court, and (d) waives, to
the fullest extent permitted by Law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such Delaware State or
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by Law.
Each party to this Merger Agreement irrevocably consents to service of process
in the manner provided for notices in Section 9.02. Nothing in this Merger
Agreement shall affect the right of any party to this Merger Agreement to
serve process in any other manner permitted by Law.
SECTION 9.11 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND
AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS MERGER AGREEMENT IS
LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS MERGER AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH
PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) 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 EITHER OF SUCH
WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH
WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO
ENTER INTO THIS MERGER AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 9.11.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, each of the parties hereto has caused this Merger
Agreement to be executed as of the date first written above by its respective
officers thereunto duly authorized.
ATALANTA ACQUISITION COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
/s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx
ATALANTA/SOSNOFF CAPITAL CORPORATION
By: /s/ Xxx X. Xxxxxxxxx
------------------------
Name: Xxx X. Xxxxxxxxx
Title: Director and Authorized Person
ANNEX A
Conditions To The Offer
Notwithstanding any other provisions of the Offer, and in addition to
(and not in limitation of) Purchaser's rights to extend and amend the Offer at
any time in its sole discretion in accordance with the terms (and subject to
the limitations) of the Merger Agreement, Purchaser will not be required to
accept for payment or, subject to any applicable rules and regulations of the
SEC, including Rule 14e-l(c) under the Exchange Act, pay for, and may delay
the acceptance for payment of, or, subject to the restriction referred to
above, the payment for, any validly tendered Shares (whether or not any Shares
theretofore have been accepted for payment or paid for pursuant to the Offer),
and may terminate the Offer as to any Shares not then paid for, if (i)
immediately prior to the Expiration Date, the Minimum Condition has not been
satisfied or (ii) at any time on or after the commencement of the Offer and
immediately prior to the Expiration Date, any of the following events occur
(other than as a direct or indirect result of any action or inaction by
Purchaser or Xx. Xxxxxxx):
o There has been any statute, rule, regulation, judgment, order or
injunction promulgated, entered, enforced, enacted, issued or
rendered applicable to the Offer or the Merger by any domestic or
foreign federal or state governmental regulatory or administrative
agency or authority or court or legislative body or commission which
(i) prohibits or imposes any material limitations on, Purchaser's
ownership or operation of all or a material portion of the Company's
businesses or assets, (ii) prohibits or makes illegal the acceptance
for payment, payment for or purchase of Shares or the consummation
of the Offer or the Merger, (iii) results in a material delay in or
restricts the ability of Purchaser, or renders Purchaser unable, to
accept for payment, pay for or purchase some or all of the Shares,
or (iv) imposes material limitations on the ability of Purchaser
effectively to exercise full rights of ownership of the Shares,
including, without limitation, the right to vote the Shares
purchased by it on all matters properly presented to the Company's
stockholders;
o The representations and warranties of the Company contained in the
Merger Agreement and in any document delivered in connection with
the Merger Agreement are not true and correct (without giving effect
to any qualification as to "materiality" set forth in the Merger
Agreement) both when made and at and as of the Expiration Date, as
if made at and as of such time (except to the extent such
representations and warranties speak of a specified earlier date, in
which case such representations and warranties are not true and
correct as of such date), except where the failure of such
representations and warranties to be so true and correct (without
giving effect to any qualification as to "materiality" set forth in
the Merger Agreement) would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse Effect;
o The Board, based on the recommendation of the Special Committee, has
(including by amendment to the Schedule 14D-9) withdrawn, amended or
modified in a manner adverse to Purchaser its approval or
recommendation of the Offer, the Merger or the Merger Agreement or
has publicly announced or resolved to do any of the foregoing;
o The Company, acting through the Board (as agreed to by the Special
Committee), and Purchaser and Xx. Xxxxxxx have agreed that Purchaser
and Xx. Xxxxxxx will terminate the Offer or postpone the acceptance
for payment of or payment for Shares thereunder;
o Any of the following have occurred: (1) any general suspension of
trading in, or limitation on prices for, securities on the NYSE, the
American Stock Exchange or the NASDAQ for a period in excess of 24
hours (excluding suspensions or limitations resulting solely from
physical damage or interference with such exchanges not related to
market conditions), (2) a declaration of a banking moratorium or any
suspension of payments in respect of banks in the United States
(whether or not mandatory), (3) a commencement or material worsening
of a war, armed hostilities or other national or international
calamity directly or indirectly involving the United States or any
terrorist activities which would reasonably be expected to have a
Company Material Adverse Effect or materially and adversely affect
the ability of financial institutions in the United States to extend
credit or syndicate loans, other than the current U.S. military
operations in Iraq, (4) any material limitation (whether or not
mandatory) by any Governmental Entity on the extension of credit
generally by banks or other financial institutions, or (5) a change
in general financial, bank or capital market conditions which
materially and adversely affects the ability of financial
institutions in the United States to extend credit or syndicate
loans;
o The Company has not performed, in all material respects, all of its
covenants and agreements contained the Merger Agreement that are
required to be performed by the Company at or prior to the
Expiration Date;
o From the date of the Merger Agreement through the Expiration Date,
there has occurred any event that has had a Company Material Adverse
Effect;
o The death of Xx. Xxxxxxx; or
o The Merger Agreement has been terminated in accordance with its terms.
The above conditions are for the sole benefit of Purchaser and Xx.
Xxxxxxx and may, subject to the terms (and limitations) of the Merger
Agreement, be asserted or, if applicable, waived by them, in whole or in part,
at any time and from time to time prior to the Expiration Date in the sole
discretion of Purchaser and Xx. Xxxxxxx. The failure by Purchaser or Xx.
Xxxxxxx at any time to exercise any of the foregoing rights will not be deemed
a waiver of any such right. The waiver of any such right with respect to
particular facts and circumstances will not be deemed a waiver with respect to
any other facts and circumstances and each such right will be deemed an
ongoing right that may be asserted at any time and from time to time.
Notwithstanding the fact that Purchaser and Xx. Xxxxxxx reserve the
right to assert the occurrence of a condition following acceptance of properly
tendered Shares for payment but prior to payment for such Shares, Purchaser
will either promptly pay for such Shares or promptly return such Shares. A
public announcement will be made of a material change in, or waiver of, such
conditions, and the Offer may, in certain circumstances, be extended in
connection with any such change or waiver. All conditions must be satisfied or
waived prior to the commencement of any Subsequent Offering Period.
