EXECUTION COPY
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AGREEMENT AND PLAN OF MERGER
dated as of June 18, 2001
between
INDUS ACQUISITION COMPANY
and
AMTRAN, INC.
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TABLE OF CONTENTS
Page
ARTICLE I
The Merger
SECTION 1.01. The Merger.................................................2
SECTION 1.02. Closing....................................................2
SECTION 1.03. Effective Time.............................................2
SECTION 1.04. Effects....................................................3
SECTION 1.05. Articles of Incorporation and Bylaws.......................3
SECTION 1.06. Directors..................................................3
SECTION 1.07. Officers...................................................3
ARTICLE II
Effect on the Capital Stock of the
Constituent Corporations; Exchange of Certificates
SECTION 2.01. Effect on Capital Stock....................................3
SECTION 2.02. Exchange of Certificates...................................4
ARTICLE III
Representations and Warranties of the Company
SECTION 3.01. Organization, Standing and Power............................7
SECTION 3.02. Capital Structure...........................................7
SECTION 3.03. Authority; Execution and Delivery; Enforceability...........9
SECTION 3.04. No Conflicts; Consents.....................................10
SECTION 3.05. SEC Documents; Undisclosed Liabilities.....................11
SECTION 3.06. Brokers; Schedule of Fees and Expenses.....................12
SECTION 3.07. Opinion of Financial Advisor...............................12
ARTICLE IV
Representations and Warranties of Sub
SECTION 4.01. Organization, Standing and Power...........................13
SECTION 4.02. Sub........................................................13
SECTION 4.03. Authority; Execution and Delivery Enforceability...........13
SECTION 4.04. No Conflicts; Consents.....................................13
SECTION 4.05. Brokers....................................................14
SECTION 4.06. Financing..................................................14
ARTICLE V
Covenants Relating to Conduct of Business
SECTION 5.01. Conduct of Business........................................15
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ARTICLE VI
Additional Agreements
SECTION 6.01. Preparation of Proxy Statement; Shareholders Meeting......17
SECTION 6.02. Access to Information; Confidentiality....................18
SECTION 6.03. Reasonable Best Efforts; Notification.....................18
SECTION 6.04. Stock Options.............................................20
SECTION 6.05. Indemnification...........................................22
SECTION 6.06. Fees and Expenses.........................................22
SECTION 6.07. Public Announcements......................................23
SECTION 6.08. Transfer Taxes............................................23
SECTION 6.09. Shareholder Litigation....................................23
SECTION 6.10. Information Supplied......................................23
ARTICLE VII
Conditions Precedent
SECTION 7.01. Conditions to Each Party's Obligation to Effect
the Merger...............................................24
SECTION 7.02. Conditions to Obligations of Sub.........................25
SECTION 7.03. Conditions to Obligations of the Company.................26
ARTICLE VIII
Termination, Amendment and Waiver
SECTION 8.01. Termination..............................................27
SECTION 8.02. Effect of Termination....................................29
SECTION 8.03. Amendment................................................29
SECTION 8.04. Extension; Waiver........................................29
SECTION 8.05. Procedure for Termination, Amendment, Extension
or Waiver................................................29
ARTICLE IX
General Provisions
SECTION 9.01. Nonsurvival of Representations and Warranties............30
SECTION 9.02. Notices..................................................30
SECTION 9.03. Definitions..............................................31
SECTION 9.04. Interpretation...........................................31
SECTION 9.05. Severability.............................................32
SECTION 9.06. Counterparts.............................................32
SECTION 9.07. Entire Agreement; No Third-Party
Beneficiaries............................................32
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SECTION 9.08. Governing Law............................................32
SECTION 9.09. Assignment...............................................32
SECTION 9.10. Enforcement..............................................33
SECTION 9.11. Obligations of JGM.......................................33
Exhibit A -- Plan of Merger
AGREEMENT AND PLAN OF MERGER dated as of June 18,
2001, between INDUS ACQUISITION COMPANY, an Indiana
corporation ("Sub"), and AMTRAN, INC., an Indiana
corporation (the "Company").
WHEREAS, as of the date hereof, J. Xxxxxx Xxxxxxxxx ("JGM") owns
8,271,200 shares of the common stock, without par value, of the Company
(the "Company Common Stock");
WHEREAS the respective Boards of Directors of Sub and the Company
have approved the merger (the "Merger") of Sub into the Company, on the
terms and subject to the conditions set forth in this Agreement, whereby
(a) each issued share of Company Common Stock not owned by JGM, Sub or the
Company, shall be converted into the right to receive from the Surviving
Corporation $23.00 in cash, without interest, and (b) each issued share of
Series A1 Preferred Stock, without par value, of the Company (the "Series
A1 Preferred Stock") and Series B Preferred Stock, without par value, of
the Company (the "Series B Preferred Stock" and, together with the Series
A1 Preferred Stock, the "Company Preferred Stock", and the Company
Preferred Stock, together with the Company Common Stock, the "Company
Capital Stock"), shall remain outstanding;
WHEREAS the Company has entered into a Purchase and Voting
Agreement dated as of May 16, 2001 (the "ILFC Agreement" and, together with
this Agreement, the "Transaction Agreements"), with International Lease
Finance Corporation, a California corporation ("ILFC"), and which was
approved by the Board of Directors of the Company (the "Company Board") on
the date hereof pursuant to which (i) the Company will amend Article XII
(the "ILFC Amendment") of the Company Charter (as defined in Section 3.02),
subject to receipt of the requisite shareholder approval, immediately prior
to the Effective Time (as defined in Section 1.03) to modify certain terms
of the Series B Preferred Stock to reflect the fact that following the
Merger the Company will be private, (ii) ILFC has agreed to vote its shares
of Series B Preferred Stock in favor of the ILFC Amendment and (iii) the
Company has agreed to repurchase between 5 and 10% of ILFC's shares of
Series B Preferred Stock, with the amount to be repurchased to be
determined by the Company; and
WHEREAS Sub and the Company desire to make certain
representations, warranties, covenants and agreements in
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connection with the Merger and also to prescribe various conditions to the
Merger.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
The Merger
SECTION 1.01. The Merger. On the terms and subject to the
conditions set forth in this Agreement, and in accordance with the Indiana
Business Corporation Law (the "IBCL"), Sub shall be merged with and into
the Company at the Effective Time (as defined in Section 1.03). At the
Effective Time, the separate corporate existence of Sub shall cease and the
Company shall continue as the surviving corporation (the "Surviving
Corporation").
SECTION 1.02. Closing. The closing (the "Closing") of the Merger
shall take place at the offices of Cravath, Swaine & Xxxxx, 000 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m. on the second business day
following the satisfaction (or, to the extent permitted by Law (as defined
in Section 3.04(a)), waiver by all parties) of the conditions set forth in
Section 7.01, or, if on such day any condition set forth in Section 7.02 or
7.03 has not been satisfied (or, to the extent permitted by Law, waived by
the party or parties entitled to the benefits thereof), as soon as
practicable after all the conditions set forth in Article VII have been
satisfied (or, to the extent permitted by Law, waived by the parties
entitled to the benefits thereof), or at such other place, time and date as
shall be agreed in writing between Sub and the Company. The date on which
the Closing occurs is referred to in this Agreement as the "Closing Date".
SECTION 1.03. Effective Time. Prior to the Closing, the Company
shall prepare, and on the Closing Date or as soon as practicable thereafter
the Company shall file with the office of the Secretary of State of the
State of Indiana, articles of merger, including the plan of merger
contained in Exhibit A (the "Plan of Merger"), or other appropriate
documents (in any such case, the "Articles of Merger") executed in
accordance with the relevant provisions of the IBCL and shall make all
other filings or recordings required under the IBCL. The Merger shall
become effective at such time as the Articles of Merger are duly filed with
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such Secretary of State, or at such other time as Sub and the Company shall
agree and specify in the Articles of Merger (the time the Merger becomes
effective being the "Effective Time").
SECTION 1.04. Effects. The Merger shall have the effects set
forth in Section 40-6 of the IBCL.
SECTION 1.05. Articles of Incorporation and Bylaws. (a) The
Articles of Incorporation of the Company as in effect immediately prior to
Effective Time, as amended by the ILFC Amendment, shall be the Articles of
Incorporation of the Surviving Corporation until thereafter changed or
amended as provided therein or by applicable Law.
(b) The Bylaws of the Company as in effect immediately prior to
the Effective Time shall be the Bylaws of the Surviving Corporation until
thereafter changed or amended as provided therein or by applicable Law.
SECTION 1.06. Directors. The directors of the Company immediately
prior to the Effective Time shall be the directors of the Surviving
Corporation, until the earlier of their resignation or removal or until
their respective successors are duly elected and qualified, as the case may
be.
SECTION 1.07. Officers. The officers of the Company immediately
prior to the Effective Time shall be the officers of the Surviving
Corporation, until the earlier of their resignation or removal or until
their respective successors are duly elected or appointed and qualified, as
the case may be.
ARTICLE II
Effect on the Capital Stock of the
Constituent Corporations; Exchange of Certificates
SECTION 2.01. Effect on Capital Stock. At the Effective Time, by
virtue of the Merger and without any action on the part of the holder of
any shares of Company Capital Stock or any shares of capital stock of Sub:
(a) Capital Stock of Sub. Each issued and outstanding share of
capital stock of Sub shall be converted into and become one fully paid and
nonassessable share of common stock, without par value, of the Surviving
Corporation.
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(b) Cancelation of Treasury, JGM-Owned and Sub-Owned Stock. Each
share of Company Common Stock that is owned by the Company, JGM, Sub or any
other affiliate of JGM (other than any person who is deemed to be an
affiliate of JGM by reason of such person's position as an officer or
director of the Company (collectively, the "Excluded Affiliates")) shall no
longer be outstanding and shall automatically be canceled and retired and
shall cease to exist, and no consideration shall be delivered or
deliverable in exchange therefor. Each share of Company Common Stock that
is owned by any subsidiary of the Company shall automatically be converted
into one fully paid and nonassessable share of common stock, without par
value, of the Surviving Corporation.
(c) Conversion of Company Capital Stock. (1) Subject to
Section 2.01(b), each issued share of Company Common Stock shall be
converted into the right to receive from the Surviving Corporation $23.00
in cash, without interest.
(2) Each issued share of Company Preferred Stock shall remain
outstanding.
(3) The cash payable upon the conversion of shares of Company
Common Stock pursuant to this Section 2.01(c) is referred to collectively
as the "Merger Consideration". At the Effective Time, all such shares of
Company Common Stock shall no longer be outstanding and shall automatically
be canceled and retired and shall cease to exist, and each holder of a
certificate that immediately prior to the Effective Time represented any
such shares of Company Common Stock (each, a "Certificate") shall cease to
have any rights with respect thereto, except the right to receive Merger
Consideration upon surrender of a Certificate in accordance with
Section 2.02, without interest.
SECTION 2.02. Exchange of Certificates. (a) Paying Agent. Prior
to the Effective Time, Sub shall designate a bank or trust company to act
as paying agent (the "Paying Agent") for the payment of the Merger
Consideration upon surrender of Certificates. Promptly following the
Effective Time, the Surviving Corporation shall provide to the Paying Agent
cash in an amount sufficient to pay for the shares of Company Common Stock
converted into the right to receive cash pursuant to Section 2.01(c) (such
cash being hereinafter referred to as the "Exchange Fund"). All of the fees
and expenses of the Paying Agent shall be borne by the Surviving
Corporation.
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(b) Exchange Procedure. The Surviving Corporation shall cause
the Paying Agent to mail promptly after the Effective Time (but, in any
event, within five days after the Effective Time) to each holder of record
of Certificates, (i) a form of letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to Certificates
shall pass, only upon delivery of Certificates to the Paying Agent and
shall be in such form and have such other provisions as the Surviving
Corporation may reasonably specify) and (ii) instructions for use in
effecting the surrender of Certificates in exchange for Merger
Consideration. Upon surrender of a Certificate for cancelation to the
Paying Agent, together with such letter of transmittal, duly completed and
validly 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 the amount of cash into which the shares of
Company Common Stock theretofore represented by such Certificate shall have
been converted pursuant to Section 2.01(c), and the Certificate so
surrendered shall forthwith be canceled; the Surviving Corporation shall
enter into a paying agency agreement with the Paying Agent which provides
that the Paying Agent shall promptly following any such surrender of
Certificates (but, in any event, within three business days after the
Paying Agent receives such Certificates) dispatch by mail payment of such
amount to such holder. In the event of a transfer of ownership of Company
Common Stock that is not registered in the transfer records of the Company,
payment may be made to a person other than the person in whose name the
Certificate so surrendered is registered, if such Certificate shall be
properly endorsed or otherwise be in proper form for transfer and the
person requesting such payment shall pay any transfer or other taxes
required by reason of the payment to a person other than the registered
holder of such Certificate or establish to the satisfaction of the
Surviving Corporation that such tax has been paid or is not applicable.
Until surrendered as contemplated by this Section 2.02, each Certificate
shall be deemed at any time after the Effective Time to represent only the
right to receive upon such surrender the amount of cash, without interest,
into which the shares of Company Common Stock theretofore represented by
such Certificate have been converted pursuant to Section 2.01(c). No
interest shall be paid or shall accrue on the cash payable upon surrender
of any Certificate.
(c) No Further Ownership Rights in Company Common Stock. The
Merger Consideration paid upon surrender of a Certificate in accordance
with the terms of this Article II shall be deemed to have been paid in full
satisfaction of
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all rights pertaining to the shares of Company Common Stock formerly
represented by such Certificate, and after the Effective Time there shall
be no further registration of transfers on the stock transfer books of the
Surviving Corporation of shares of Company Common Stock that were
outstanding immediately prior to the Effective Time. If, after the
Effective Time, any Certificates are presented to the Surviving Corporation
or the Paying Agent for any reason, they shall be canceled and exchanged
for the amount of cash into which the shares of Company Common Stock
theretofore represented by such Certificates shall have been converted as
provided in this Article II.
(d) No Liability. None of Sub, the Company or the Paying Agent
shall be liable to any person in respect of any cash from the Exchange Fund
that is required under applicable Law to be delivered to a public official
pursuant to any applicable abandoned property, escheat or similar Law.
(e) Investment of Exchange Fund. The Surviving Corporation shall
direct the Paying Agent to invest any cash included in the Exchange Fund,
as directed by the Surviving Corporation, on a daily basis. Any interest
and other income resulting from such investments shall be paid to the
Surviving Corporation.
(f) Withholding Rights. The Surviving Corporation shall be
entitled to deduct and withhold, as required by applicable Law, any
applicable taxes from the consideration otherwise payable to any holder of
Company Common Stock pursuant to this Agreement.
(g) Lost, Stolen or Destroyed Certificates. In the event any
Certificate shall have been lost, stolen or destroyed, the holder of such
lost, stolen or destroyed Certificate shall execute an affidavit of that
fact upon request. The holder of any such lost, stolen or destroyed
Certificate shall also deliver a reasonable indemnity against any claim
that may be made against the Surviving Corporation or the Paying Agent with
respect to the Certificate alleged to have been lost, stolen or destroyed.
The affidavit and any indemnity which may be required hereunder shall be
delivered to the Paying Agent, who shall be responsible for making payment
for such lost, stolen or destroyed Certificate pursuant to the terms
hereof.
(h) Adjustment to Prevent Dilution. In the event that following
the date hereof and prior to the Effective Time the Company changes the
number of shares of Company Common Stock or securities convertible or
exchangeable into
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or exercisable for shares of Company Common Stock, as the case may be,
issued and outstanding by way of a reclassification, stock split (including
a reverse stock split), stock dividend or distribution, recapitalization,
subdivision or other similar transaction, the amount of Merger
Consideration payable with respect to a share of Company Common Stock shall
be adjusted appropriately to provide to holders of shares of Company Common
Stock the same economic effect contemplated by this Agreement prior to such
change.
ARTICLE III
Representations and Warranties of the Company
The Company represents and warrants to Sub as follows:
SECTION 3.01. Organization, Standing and Power. Each of the
Company and each of its subsidiaries (the "Company Subsidiaries") is duly
organized and validly existing under the laws of the jurisdiction in which
it is organized and has full corporate power and authority and possesses
all governmental franchises, licenses, permits, authorizations and
approvals necessary to enable it to own, lease or otherwise hold its
properties and assets and to conduct its businesses as presently conducted,
other than such franchises, licenses, permits, authorizations and approvals
the lack of which, individually or in the aggregate, has not had and could
not reasonably be expected to have (i) a material adverse effect on the
business, assets, financial condition or results of operations of the
Company and the Company Subsidiaries, taken as a whole; provided, however,
that any such effect resulting from (x) changes in United States or global
economic or financial market conditions or (y) changes in United States
generally accepted accounting principles, shall not be considered a Company
Material Adverse Effect or (ii) a material adverse effect on the ability of
the Company to perform its obligations under this Agreement, including the
consummation of Merger and the other Transactions (a "Company Material
Adverse Effect"). The Company and each Company Subsidiary is duly qualified
to do business in each jurisdiction where the nature of its business or
their ownership or leasing of its properties make such qualification
necessary or the failure so to qualify has had or could reasonably be
expected to have a Company Material Adverse Effect.
SECTION 3.02. Capital Structure. The authorized capital stock of
the Company consists of 30,000,000 shares of Company Common Stock,
10,000,000 shares of preferred
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stock, without par value, of which 500 shares have been designated as
Series A1 Preferred Stock and 300 shares have been designated as Series B
Preferred Stock. At the close of business on June 14, 2001,
(i) 11,438,059 shares of Company Common Stock (including 2,500 shares of
Company Common Stock issued as shares of restricted stock under the Company
Stock Plans (as defined in Section 6.04)), 500 shares of Series A1
Preferred Stock and 300 shares of Series B Preferred Stock were issued and
outstanding, (ii) 1,710,658 shares of Company Common Stock were held by the
Company in its treasury and (iii) 2,880,251 shares of Company Common Stock
were subject to outstanding Company Employee Stock Options (as defined in
Section 6.04) and 6,950,000 shares of Company Common Stock were originally
reserved for issuance pursuant to the Company Stock Plans. Except as set
forth above and except for 1,914,486 shares of Company Common Stock
reserved for issuance upon conversion of the outstanding shares of Series B
Preferred Stock, at the close of business on June 14, 2001, no shares of
capital stock or other voting securities of the Company were issued,
reserved for issuance or outstanding. All outstanding shares of Company
Capital Stock are, and all such shares that may be issued prior to the
Effective Time will be when issued, duly authorized, validly issued, fully
paid and nonassessable and not subject to or issued in violation of any
purchase option, call option, right of first refusal, preemptive right,
subscription right or any similar right under any provision of the IBCL,
the Articles of Incorporation of the Company, as amended to the date of
this Agreement (the "Company Charter"), the bylaws of the Company, as
amended to the date of this Agreement (the "Company Bylaws"), or any
Contract (as defined in Section 3.04) to which the Company is a party or
otherwise bound. There are not any bonds, debentures, notes or other
indebtedness of the Company having the right to vote (or convertible into,
or exchangeable for, securities having the right to vote) on any matters on
which holders of Company Capital Stock may vote ("Voting Company Debt").
Except as set forth above and as provided in this Agreement, as of the date
of this Agreement, there are not any options, warrants, rights, convertible
or exchangeable securities, "phantom" stock rights, stock appreciation
rights, stock-based performance units, commitments, Contracts, arrangements
or undertakings of any kind to which the Company or any Company Subsidiary
is a party or by which any of them is bound (i) obligating the Company or
any Company Subsidiary to issue, deliver or sell, or cause to be issued,
delivered or sold, additional shares of capital stock or other equity
interests in, or any security convertible or exercisable for or
exchangeable into any capital stock of or other equity interest in, the
Company or of any Company Subsidiary or any
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Voting Company Debt, (ii) obligating the Company or any Company Subsidiary
to issue, grant, extend or enter into any such option, warrant, call,
right, security, commitment, Contract, arrangement or undertaking or
(iii) that give any person the right to receive any economic benefit or
right similar to or derived from the economic benefits and rights accruing
to holders of Company Capital Stock. As of the date of this Agreement,
there are not any outstanding contractual obligations of the Company or any
Company Subsidiary to repurchase, redeem or otherwise acquire any shares of
capital stock of the Company or any Company Subsidiary (other than the ILFC
Agreement and this Agreement).
SECTION 3.03. Authority; Execution and Delivery; Enforceability.
(a) The Company has all requisite corporate power and authority to execute
and deliver this Agreement and to consummate the Merger and the other
transactions contemplated by the Transaction Agreements (the
"Transactions"). The execution and delivery by the Company of the
Transaction Agreements and the consummation by the Company of the
Transactions have been duly authorized by all necessary corporate action on
the part of the Company, subject to the approval of the Plan of Merger,
this Agreement, the Merger and the ILFC Amendment by the holders of the
requisite number of outstanding shares of Company Common Stock and the
approval of the ILFC Amendment by the holders of a majority of the
outstanding shares of Series B Preferred Stock. The Company has duly
executed and delivered each Transaction Agreement, and each Transaction
Agreement constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms.
(b) The Company Board, at a meeting duly called and held, acting on
the recommendation of a special committee of the Company Board (the "Special
Committee"), duly and unanimously adopted resolutions (i) approving this
Agreement, the Merger, the ILFC Agreement, the ILFC Amendment and the other
Transactions, (ii) determining that the terms of the Merger and the other
Transactions are fair to and in the best interests of the Company and the
holders of shares of the Company Common Stock (other than Sub and JGM), (iii)
recommending that the Company's shareholders approve the Plan of Merger, this
Agreement, the Merger and the ILFC Amendment and (iv) adopting the Plan of
Merger. On June 15, 2001, the Company Board unanimously adopted a resolution
approving the acquisition by Sub of beneficial ownership of 8,271,200 shares
of Company Common Stock. Such resolutions are sufficient to render
inapplicable to JGM,
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Sub, this Agreement, the Merger and the other Transactions the
restrictions on business combinations contained in Section 43-18 of the
IBCL. To the Company's knowledge, no other state takeover statute or
similar statute or regulation applies or purports to apply to the Company
with respect to this Agreement, the Merger or any other Transaction.
(c) The only class or series of Company Capital Stock that is
entitled to vote to approve the Plan of Merger, this Agreement and the
Merger is the Company Common Stock. The affirmative vote of a majority of
the outstanding shares of the Company Common Stock and a majority of the
outstanding shares of Series B Preferred Stock, voting as separate classes,
is necessary to approve the ILFC Amendment.
SECTION 3.04. No Conflicts; Consents. (a) Except as set forth in
the letter, dated as of the date of this Agreement, from the Company to Sub
(the "Company Disclosure Letter"), the execution and delivery by the
Company of each Transaction Agreement do not, and the consummation of the
Merger and the other Transactions and compliance with the terms hereof and
thereof will not, conflict with, or result in any violation of or default
(with or without notice or lapse of time, or both) under, or give rise to a
right of termination, cancelation or acceleration of any obligation or to
loss of a material benefit under, or result in the creation of any pledges,
liens, charges, mortgages, encumbrances and security interests of any kind
or nature whatsoever (collectively, "Liens") upon any of the properties or
assets of the Company or any Company Subsidiary under, any provision of (i)
the Company Charter, the Company Bylaws or the comparable charter or
organizational documents of any Company Subsidiary, (ii) any contract,
lease, license, indenture, note, bond, agreement, permit, concession,
franchise or other instrument (a "Contract") to which the Company or any
Company Subsidiary is a party or by which any of their respective
properties or assets is bound or (iii) subject to the filings and other
matters referred to in Section 3.04(b), any judgment, order or decree
("Judgment") or statute, law (including common law), ordinance, rule or
regulation ("Law") applicable to the Company or any Company Subsidiary or
their respective properties or assets, other than, in the case of clauses
(ii) and (iii) above, any such items that, individually or in the
aggregate, have not had and could not reasonably be expected to have a
Company Material Adverse Effect.
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(b) No consent, approval, license, permit, order, authorization
or waiver ("Consent") of, or registration, declaration or filing with, or
permit from, any Federal, state, local or foreign government or any court
of competent jurisdiction, administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign (a
"Governmental Entity") is required to be obtained or made by or with
respect to the Company or any Company Subsidiary in connection with the
execution, delivery and performance of any Transaction Agreement or the
consummation of the Merger and the other Transactions, other than (i) the
filing with the Securities and Exchange Commission (the "SEC") of a
Transaction Statement on Schedule 13E-3 (as amended from time to time, the
"Schedule 13E-3"), (B) a proxy statement relating to the approval of the
Plan of Merger, this Agreement, the Merger and the ILFC Amendment by the
holders of shares of Company Common Stock (as amended from time to time,
the "Proxy Statement") and (C) such reports under Sections 13 and 16 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as may be
required in connection with any Transaction Agreement, the Merger and the
other Transactions, (ii) the filing of the Articles of Merger and the ILFC
Amendment with the office of the Secretary of State of the State of Indiana
and appropriate documents with the relevant authorities of the other
jurisdictions in which the Company is qualified to do business, (iii) any
filings required under the rules and regulations of the Department of
Transportation (the "DOT"), (iv) compliance with and such filings as may be
required under applicable environmental Laws, (v) such filings as may be
required in connection with the taxes described in Section 6.08,
(vi) filings under any applicable state takeover Law and (vii) such other
items that, individually or in the aggregate, have not had and could not
reasonably be expected to have a Company Material Adverse Effect.
SECTION 3.05. SEC Documents; Undisclosed Liabilities. The Company
has filed all reports, schedules, forms, statements and other documents
required to be filed by the Company with the SEC since January 1, 1999 (the
"Company SEC Documents"). As of its respective date, each Company SEC
Document complied as to form in all material respects with the requirements
of the Exchange Act or the Securities Act of 1933, as amended (the
"Securities Act"), as the case may be, and the rules and regulations of the
SEC promulgated thereunder applicable to such Company SEC Document, and did
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. The consolidated
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financial statements of the Company included in the Company SEC Documents
comply as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect
thereto, have been prepared in accordance with generally accepted accounting
principles ("GAAP") (except, in the case of unaudited statements, as permitted
by Form 10-Q of the SEC) applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto) and fairly present
the consolidated financial position of the Company and its consolidated
subsidiaries as of the dates thereof and the consolidated results of their
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end audit adjustments). Except as set
forth in the Company SEC Documents filed and publicly available prior to the
date hereof (the "Filed Company SEC Documents"), neither the Company nor any
Company Subsidiary has any liabilities or obligations of any nature (whether
accrued, absolute, contingent or otherwise) required by GAAP to be set forth on
a consolidated balance sheet of the Company and its consolidated subsidiaries
or in the notes thereto and that, individually or in the aggregate, could
reasonably be expected to have a Company Material Adverse Effect.
SECTION 3.06. Brokers; Schedule of Fees and Expenses. No broker,
investment banker, financial advisor or other person, other than Dresdner
Kleinwort Xxxxxxxxxxx, Inc., the fees of which will be paid by the Company,
is entitled, prior to the Effective Time, to any broker's, finder's,
financial advisor's or other similar fee or commission in connection with
the Merger and the other Transactions based upon arrangements made by or on
behalf of the Company. At the Effective Time, Xxxxxxx Xxxxx Barney Inc.
will become entitled to receive fees and expense reimbursement in
connection with the Merger in consideration of its activities on behalf of
JGM and Sub. The Company has furnished to Sub a true and complete copy of
all agreements between the Company and Dresdner Kleinwort Xxxxxxxxxxx,
Inc., relating to the Merger and the other Transactions.
SECTION 3.07. Opinion of Financial Advisor. The Special Committee
has received the opinion of Dresdner Kleinwort Xxxxxxxxxxx, Inc., dated the
date of this Agreement, to the effect that, as of such date, the
consideration to be received in the Merger by the holders of Company Common
Stock (other than Sub and JGM) is fair from a financial point of view, a
signed copy of which opinion has been delivered to Sub.
13
ARTICLE IV
Representations and Warranties of Sub
Sub represents and warrants to the Company as follows:
SECTION 4.01. Organization, Standing and Power. Sub is duly
organized and validly existing under the laws of the jurisdiction in which
it is organized and has full corporate power and authority to conduct its
businesses as presently conducted.
SECTION 4.02. Sub. (a) Since the date of its incorporation, Sub
has not carried on any business or conducted any operations other than the
execution of this Agreement, the performance of its obligations hereunder
and matters ancillary thereto.
(b) The authorized capital stock of Sub consists of
30,000,000 shares of common stock, without par value ("Sub Common Stock").
JGM, pursuant to a Subscription Agreement dated the date hereof, subscribed
for 100 shares of Sub Common Stock. On the date hereof, JGM and Sub entered
into an additional Subscription Agreement dated the date hereof, pursuant
to which JGM will contribute his 8,271,200 shares of Company Common Stock
to Sub in exchange for 8,271,200 shares of Sub Common Stock upon the
satisfaction of the condition set forth in Section 7.01(a).
SECTION 4.03. Authority; Execution and Delivery; Enforceability.
Sub has all requisite corporate power and authority to execute and deliver
each Transaction Agreement to which it is a party and to consummate the
Merger and the other Transactions. The execution and delivery by Sub of
each Transaction Agreement to which it is a party and the consummation by
it of the Transactions to which it is a party have been duly authorized by
all necessary corporate action on the part of Sub. JGM, as the sole
shareholder of Sub, has approved the Plan of Merger and the Merger. Sub has
duly executed and delivered each Transaction Agreement to which it is a
party, and each such Transaction Agreement constitutes a legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 4.04. No Conflicts; Consents. (a) The execution and
delivery by Sub of each Transaction Agreement to which it is a party do
not, and consummation of the Merger and the other Transactions to which it
is a party and compliance with the terms hereof and thereof will not,
14
conflict with, or result in any violation of or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancelation or acceleration of any obligation or to loss of a material benefit
under, or result in the creation of any Liens upon any of the properties or
assets of Sub under, any provision of (i) its articles of incorporation or
bylaws, (ii) any Contract to which Sub is a party or by which any of its
properties or assets is bound or (iii) subject to the filings and other matters
referred to in Section 4.04(b), any Judgment or Law applicable to Sub or its
properties or assets, other than, in the case of clauses (ii) and (iii) above,
any such items that, individually or in the aggregate, have not had and could
not reasonably be expected to have (i) a material adverse effect on the
business, assets, financial condition or results of operations of Sub or (ii) a
material adverse effect on the ability of Sub to perform its obligations under
this Agreement, including the consummation of the Merger and the other
Transactions to which it is a party (a "Sub Material Adverse Effect").
(b) No Consent of, or registration, declaration or filing with,
any Governmental Entity is required to be obtained or made by or with
respect to JGM or Sub in connection with the execution, delivery and
performance of any Transaction Agreement to which it is a party or the
consummation of the Transactions, other than (i) the filing with the SEC of
(A) the Schedule 13E-3 and (B) such reports under Sections 13 and 16 of the
Exchange Act, as may be required in connection with this Agreement, the
Merger and the other Transactions, (ii) the filing of the Articles of
Merger with the office of the Secretary of State of the State of Indiana,
(iii) any filings required under the rules and regulations of the DOT,
(iv) compliance with and such filings as may be required under applicable
environmental Laws, (v) such filings as may be required in connection with
the taxes described in Section 6.08 and (vi) filings under any applicable
state takeover Law.
SECTION 4.05. Brokers. Other than as set forth in Section 3.06,
no broker, investment banker, financial advisor or other person is entitled
to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the Merger and the other Transactions based
upon arrangements made by or on behalf of Sub.
SECTION 4.06. Financing. American Trans Air, Inc., an Indiana
corporation ("ATA"), has received a commitment letter dated June 18, 2001
(the "Commitment Letter"), from Xxxxxxx Xxxxx Xxxxxx Inc. and Citicorp USA,
15
Inc. (the "Lenders") relating to the commitment of the Lenders to provide
the financing required to consummate the Merger and the other Transactions
and to pay related fees and expenses. The financing required to consummate
the Merger and the other Transactions and to pay related fees and expenses
is collectively referred to in this Agreement as the "Financing". A
complete and correct copy of the Commitment Letter has been provided to the
Special Committee. As of the date of this Agreement, Sub has no reason to
believe that (i) any of the conditions to the financing contemplated by the
Commitment Letter will not be satisfied, (ii) the funds for the financing
contemplated by the Commitment Letter will not be available on a timely
basis for the Merger and the other Transactions or (iii) the financing
contemplated by the Commitment Letter will not be sufficient to consummate
the Merger and the other Transactions and to pay related fees and expenses.
ARTICLE V
Covenants Relating to Conduct of Business
SECTION 5.01. Conduct of Business. (a) Conduct of Business by
the Company. Except for matters set forth in the Company Disclosure Letter
or otherwise expressly permitted by this Agreement or the ILFC Agreement,
from the date of this Agreement to the Effective Time the Company shall,
and shall cause each Company Subsidiary to, conduct its business in the
usual, regular and ordinary course in substantially the same manner as
previously conducted or proposed to be conducted and use all reasonable
efforts to preserve intact its current business organization, keep
available the services of its current officers and employees and keep its
relationships with customers, suppliers, licensors, licensees, distributors
and others having business dealings with them to the end that its goodwill
and ongoing business shall be unimpaired at the Effective Time. In
addition, and without limiting the generality of the foregoing, except for
matters set forth in the Company Disclosure Letter or otherwise expressly
permitted or contemplated by this Agreement or the ILFC Agreement, from the
date of this Agreement to the Effective Time, the Company shall not, and
shall not permit any Company Subsidiary to, do any of the following without
the prior written consent of Sub and the Special Committee:
(i) (A) declare, set aside or pay any dividends on, or make any
other distributions in respect of, any of its capital stock, other
than dividends and distributions by a direct or indirect wholly owned
subsidiary
16
of the Company to its parent and regular dividends on the shares of
Series A1 Preferred Stock and Series B Preferred Stock, (B) split,
combine or reclassify any of its capital stock or issue or authorize
the issuance of any other securities in respect of, in lieu of or in
substitution for shares of its capital stock, or (C) purchase, redeem
or otherwise acquire any shares of capital stock of the Company or any
Company Subsidiary or any other securities thereof or any rights,
warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell or grant (A) any shares of its capital
stock, (B) any Voting Company Debt or other voting securities, (C) any
securities convertible into or exchangeable for, or any options,
warrants or rights to acquire, any such shares, Voting Company Debt,
voting securities or convertible or exchangeable securities or (D) any
"phantom" stock, "phantom" stock rights, stock appreciation rights or
stock-based performance units, other than (1) the issuance of Company
Common Stock upon the exercise of Company Employee Stock Options
outstanding on the date of this Agreement and in accordance with their
present terms and (2) the issuance of up to an additional 100,000
Company Employee Stock Options pursuant to the Company Stock Plans in
accordance with their present terms and the issuance of Company Common
Stock upon the exercise of such Company Employee Stock Options;
(iii) amend its articles of incorporation, bylaws or other
comparable charter or organizational documents; or
(iv) authorize any of, or commit or agree to take any of, the
foregoing actions.
(b) Other Actions. Neither the Company (without the direction of
Special Committee) nor Sub shall, or shall permit any of their respective
subsidiaries to, take any action that would, or that could reasonably be
expected to, result in (i) any of the representations and warranties of
such party set forth in this Agreement that is qualified as to materiality
becoming untrue, (ii) any of such representations and warranties that is
not so qualified becoming untrue in any material respect or (iii) any
condition to the Merger set forth in Article VII, not being satisfied. Sub
shall not take any action that could reasonably be expected to result in
any condition to the financing contemplated by the Commitment Letter not
being satisfied. Sub shall promptly notify the Company if at any
17
time there is a reasonable likelihood that the financing contemplated by
the Commitment Letter will not be available.
ARTICLE VI
Additional Agreements
SECTION 6.01. Preparation of Proxy Statement; Shareholders
Meeting. (a) Each of the Company, Sub and JGM shall as soon as practicable
following the date hereof prepare and file with the SEC the Schedule 13E-3
and the Company shall as soon as practicable following the date hereof
prepare and file with the SEC the Proxy Statement in preliminary form, and
each of the Company and Sub shall use its reasonable efforts to respond as
promptly as practicable to any comments of the SEC with respect thereto.
Each of the Company, Sub and JGM shall notify the others promptly of the
receipt of any comments from the SEC or its staff and of any request by the
SEC or its staff for amendments or supplements to the Schedule 13E-3 and
the Proxy Statement or for additional information and shall supply the
others with copies of all correspondence between it or him, as the case may
be, or any of its or his, as the case may be, representatives, on the one
hand, and the SEC or its staff, on the other hand, with respect to the
Schedule 13E-3 and the Proxy Statement, as applicable. If at any time prior
to receipt of the Company Shareholder Approval there shall occur any event
that should be set forth in an amendment or supplement to the Proxy
Statement, the Company shall promptly prepare and mail to its shareholders
such an amendment or supplement. The Company shall not mail any Proxy
Statement, or any amendment or supplement thereto, to which Sub reasonably
objects. The Company shall use its reasonable best efforts to cause the
Proxy Statement to be mailed to the Company's shareholders as promptly as
practicable after filing with the SEC.
(b) The Company shall as soon as practicable following the date
hereof, duly call, give notice of, convene and hold a meeting of its
shareholders (the "Company Shareholders Meeting") for the purpose of
seeking the approval by the holders of Company Common Stock of the Plan of
Merger, this Agreement, the Merger and the ILFC Amendment. For the
avoidance of doubt, (i) the Company may satisfy its obligations under this
Section 6.01(b) by presenting the Plan of Merger, this Agreement, the
Merger and the ILFC Amendment to the requisite holders of shares of Company
Capital Stock at an annual meeting which was previously adjourned and (ii)
the Company may present such matters as a single proposal or as proposals
which are
18
conditioned on each other. The Proxy Statement shall include a description
of the recommendations referred to in Section 3.03(b), and neither the
Company Board nor any committee thereof shall withdraw or modify, or
propose to withdraw or modify such recommendations or related approval;
provided, however, that the Company Board or the Special Committee may
determine not to make such recommendations or to withdraw or modify such
recommendations if the Special Committee determines in good faith, after
consulting with and based on the advice of outside legal counsel, that such
recommendations would be inconsistent with its fiduciary duties to the
holders of shares of Company Common Stock (other than Sub and JGM) under
applicable law. Without limiting the generality of the foregoing, the
Company agrees that its obligations pursuant to the first sentence of this
Section 6.01(b) shall not be affected by the withdrawal or modification by
either the Company Board or the Special Committee of its approval or
recommendation of the Plan of Merger, this Agreement, the Merger or the
ILFC Amendment.
(c) Sub shall cause all shares of Company Common Stock owned by
it and all of its affiliates (other than the Company, the Company
Subsidiaries and the Excluded Affiliates) to be voted in favor of the
approval of the Plan of Merger, this Agreement, the Merger and the ILFC
Amendment.
SECTION 6.02. Access to Information; Confidentiality. The Company
shall, and shall cause each of its subsidiaries to, afford to Sub, and to
Sub's officers, employees, accountants, counsel, financial advisors and
other representatives, reasonable access during normal business hours
during the period prior to the Effective Time to all their respective
properties, books, contracts, commitments, personnel and records and,
during such period, the Company shall, and shall cause each of its
subsidiaries to, furnish promptly to Sub (a) a copy of each report,
schedule, registration statement and other document filed by it during such
period pursuant to the requirements of Federal or state securities laws and
(b) all other information concerning its business, properties and personnel
as Sub may reasonably request.
SECTION 6.03. Reasonable Best Efforts; Notification. (a) Upon
the terms and subject to the conditions set forth in this Agreement, each
of the parties shall use its reasonable best efforts to take, or cause to
be taken, all actions, and to do, or cause to be done, and to assist and
cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditious manner
practicable, the
19
Merger and the other Transactions, including (i) the obtaining of all
necessary actions or nonactions, waivers, consents and approvals from
Governmental Entities and the making of all necessary registrations and
filings (including filings with Governmental Entities, if any) and the
taking of all reasonable steps as may be necessary to obtain an approval or
waiver from, or to avoid an action or proceeding by, any Governmental
Entity, (ii) the obtaining of all necessary consents, approvals or waivers
from third parties, (iii) the defending of any lawsuits or other legal
proceedings, whether judicial or administrative, challenging this
Agreement, the Merger or the consummation of the Transactions, including
seeking to have any stay or temporary restraining order entered by any
court or other Governmental Entity vacated or reversed, (iv) the execution
and delivery of any additional instruments necessary to consummate the
Transactions and to fully carry out the purposes of each Transaction
Agreement and (v) to arrange for the financing contemplated by the
Commitment Letter to be provided on substantially the terms and conditions
specified in the Commitment Letter. In connection with and without limiting
the foregoing, the Company and the Company Board shall (i) take all action
necessary to ensure that no state takeover statute or similar statute or
regulation is or becomes applicable to the Merger or any other Transaction
or any Transaction Agreement, (ii) if any state takeover statute or similar
statute or regulation becomes applicable to any Transaction Agreement, take
all action necessary to ensure that the Merger and the other Transactions
may be consummated as promptly as practicable on the terms contemplated by
each Transaction Agreement and otherwise to minimize the effect of such
statute or regulation on the Merger and the other Transactions and (iii)
cooperate with the arrangements for obtaining the Financing. Nothing in
this Agreement shall be deemed to require any party to waive any
substantial rights or agree to any substantial limitation on its operations
or to dispose of any significant asset or collection of assets.
(b) The Company shall give prompt notice to Sub, and Sub shall
give prompt notice to the Company, of (i) any representation or warranty
made by it contained in any Transaction Agreement to which it is a party
that is qualified as to materiality becoming untrue or inaccurate in any
respect or any such representation or warranty that is not so qualified
becoming untrue or inaccurate in any material respect or (ii) the failure
by it to comply with or satisfy in any material respect any covenant,
condition or agreement to be complied with or satisfied by it under any
20
Transaction Agreement; provided, however, that no such notification shall
affect the representations, warranties, covenants or agreements of the
parties or the conditions to the obligations of the parties under each
Transaction Agreement.
SECTION 6.04. Stock Options. (a) As soon as practicable
following the date of this Agreement, the Company Board (or, if
appropriate, any committee thereof with responsibility for the
administration of the Company Stock Plans) shall adopt such resolutions or
take such other actions as are required (with respect to the adjustment of
the terms of all outstanding Company Employee Stock Options heretofore
granted under any Company Stock Plan) to provide that each Company Employee
Stock Option, other than Company Employee Stock options held by the persons
listed on Schedule 6.04(a) of the Company Disclosure Letter (the "Rollover
Individuals"), whether vested or unvested, outstanding at the Effective
Time shall be converted into the right to receive from the Surviving
Corporation an amount equal to (i) the excess, if any, of (x) the Merger
Consideration over (y) the exercise price per share of Company Common Stock
subject to such Company Employee Stock Option, multiplied by (ii) the
number of shares of Company Common Stock for which such Company Employee
Stock Option shall not theretofore have been exercised.
(b) As soon as practicable following the date of this Agreement,
the Company Board (or, if appropriate, any committee thereof with
responsibility for the administration of the Company Stock Plans) shall
adopt such resolutions or take such other actions as are required (with
respect to the adjustment of the terms of all outstanding Company
Restricted Shares heretofore granted under any Company Stock Plan) to
provide that the Restriction Period with respect to each Company Restricted
Share, whether vested or unvested, shall be deemed to expire immediately
prior to the Effective Time, unless any such Restriction Period would
otherwise expire sooner in accordance with the terms of the applicable
Company Stock Plan, in which case, such Restriction Period shall expire in
accordance with the terms of the applicable Company Stock Plan.
(c) All amounts payable pursuant to this Section 6.04 shall be
subject to any required withholding of taxes required by applicable Law and
shall be paid without interest. The Company shall use its reasonable best
efforts to obtain the consent of all holders of Company Employee Stock
Options as shall be necessary to effectuate the foregoing. Notwithstanding
anything to the contrary contained in this Agreement, payment as to a
particular
21
holder shall, at Sub's request, be withheld in respect of any Company
Employee Stock Option until all necessary consents are obtained from such
holder.
(d) The Company Stock Plans shall terminate as of the Effective
Time, and the provisions in any other benefit plan providing for the
issuance, transfer or grant of any capital stock of the Company or any
interest in respect of any capital stock of the Company shall be deleted as
of the Effective Time, and the Company shall ensure that following the
Effective Time, except for the Rollover Individuals, no holder of a Company
Employee Stock Option or any participant in any Company Stock Plan shall
have any right thereunder to acquire any capital stock of the Company or
the Surviving Corporation.
(e) The Company shall enter into option modification agreements
as of the Effective Time with each of the Rollover Individuals in the form
attached hereto as Exhibit B. As soon as practicable after the date of this
Agreement, the Company Board (or, if appropriate, a committee thereof with
responsibility for the administration of the Company Stock Plans) shall
adopt resolutions or take such other actions as are necessary in connection
with such option modification agreements.
(f) The Company shall ensure that (i) as of the date of this
Agreement, all payroll deductions under the Company's Employee Stock
Purchase Plan (the "ESPP") shall cease; and (ii) all payroll deductions
under the ESPP which related to any offering periods which have not
terminated prior to the date of this Agreement shall be returned to the
employees who made such deductions, without interest or other benefit, as
soon as practicable after the date of this Agreement.
(g) In this Agreement:
"Company Employee Stock Option" means any option to purchase
Company Common Stock granted under any Company Stock Plan.
"Company Restricted Share" means any share of restricted Company
Common Stock granted under any Company Stock Plan.
"Company Stock Plans" means the 1993 Incentive Stock Plan for Key
Employees of the Company and its Subsidiaries, the 1996 Incentive
Stock Plan for Key Employees of the Company and its Subsidiaries, the
2000 Incentive Stock Plan for Key Employees of the Company
22
and its Subsidiaries, the Stock Option Plan for Non-Employee
Directors and the ESPP.
"Restriction Period" means the period during which restrictions
are in effect under the applicable Company Stock Plan with respect to
a Company Restricted Share.
SECTION 6.05. Indemnification. (a) The Surviving Corporation
shall, to the fullest extent permitted by Law, honor all the Company's
obligations to indemnify (including any obligations to advance funds for
expenses) the current or former directors or officers of the Company for
acts or omissions by such directors and officers occurring prior to the
Effective Time to the extent that such obligations of the Company exist on
the date of this Agreement, whether pursuant to the Company Charter, the
Company Bylaws, individual indemnity agreements or otherwise, and such
obligations shall survive the Merger and shall continue in full force and
effect in accordance with the terms of the Company Charter, the Company
Bylaws and such individual indemnity agreements from the Effective Time
until the expiration of the applicable statute of limitations with respect
to any claims against such directors or officers arising out of such acts
or omissions.
(b) For a period of six years after the Effective Time, the
Surviving Corporation shall maintain in effect the current policies of
directors' and officers' liability insurance maintained by the Company
(provided that the Surviving Corporation may substitute therefor policies
with reputable and financially sound carriers of at least the same coverage
and amounts containing terms and conditions which are no less advantageous)
with respect to claims arising from or related to facts or events which
occurred at or before the Effective Time; provided, however, that the
Surviving Corporation shall not be obligated to make annual premium
payments for such insurance to the extent such premiums exceed 150% of the
annual premiums paid as of the date hereof by the Company for such
insurance (such 150% amount, the "Maximum Premium"). If such insurance
coverage cannot be obtained at all, or can only be obtained at an annual
premium in excess of the Maximum Premium, the Surviving Corporation shall
maintain the most advantageous policies of directors' and officers'
insurance obtainable for an annual premium equal to the Maximum Premium.
SECTION 6.06. Fees and Expenses. All fees and expenses incurred
in connection with the Merger and the other Transactions shall be paid by
the Company other than any such fees or expenses incurred as a result of a
material breach of this Agreement by Sub.
23
SECTION 6.07. Public Announcements. Sub and the Company shall
consult with each other before issuing, and provide each other the
opportunity to review and comment upon, any press release or other public
statements with respect to the Merger and the other Transactions and shall
not issue any such press release or make any such public statement prior to
such consultation, except as may be required by applicable Law, court
process or by obligations pursuant to any listing agreement with any
national securities exchange.
SECTION 6.08. Transfer Taxes. All stock transfer, real estate
transfer, documentary, stamp, recording and other similar taxes (including
interest, penalties and additions to any such taxes) ("Transfer Taxes")
incurred in connection with the Transactions shall be paid by the Surviving
Corporation, and the Company shall cooperate with Sub in preparing,
executing and filing any tax returns with respect to such Transfer Taxes.
SECTION 6.09. Shareholder Litigation. The Company shall give Sub
the opportunity to participate in the defense or settlement of any
shareholder litigation against the Company and its directors relating to
any Transaction; provided, however, that no such settlement shall be agreed
to without Sub's consent, which consent shall not unreasonably be withheld.
SECTION 6.10. Information Supplied. The Company, the Special
Committee and Sub will cause each of (i) the Proxy Statement and any
amendment or supplement thereto and (ii) the Schedule 13E-3 and any
amendment or supplement thereto, when filed, to comply as to form in all
material respects with the applicable requirements of the Exchange Act.
Each of the Company, the Special Committee and Sub agrees that none of the
information supplied by it for inclusion in the Proxy Statement or any
amendment or supplement thereto or in the Schedule 13E-3 or any amendment
or supplement thereto will, at the time the Proxy Statement or any
amendment or supplement thereto is first mailed to Company's shareholders
and at the time of the Company Shareholders Meeting, contain any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading. If at any time
prior to the date of the Company Shareholders Meeting any information
relating to the Company, the Special Committee or Sub or their respective
officers or directors is discovered by the Company, the Special Committee
or Sub which should be set forth in an amendment or supplement to the Proxy
Statement or the
24
Schedule 13E-3, as the case may be, so that such document would not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading, the party
discovering such information shall promptly notify each other party and, to
the extent required by applicable Law, an appropriate amendment or
supplement describing such information shall be filed promptly with the SEC
and, to the extent required by applicable Law, disseminated to the
Company's shareholders.
ARTICLE VII
Conditions Precedent
SECTION 7.01. 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 on or prior to the Closing Date of
the following conditions:
(a) Company Shareholder Approval. A majority of the outstanding
shares of Company Common Stock shall have voted to approve the Plan of
Merger, this Agreement, the Merger and the ILFC Amendment and a majority of
the shares of Company Common Stock voted at the Company Shareholder Meeting
(other than shares owned by JGM, Sub or any other affiliate of JGM (other
than the Excluded Affiliates)) shall have been voted in favor of the
approval of the Plan of Merger, this Agreement and the Merger. Holders of a
majority of the outstanding shares of Series B Preferred Stock shall have
voted in favor of the approval of the ILFC Amendment.
(b) No Injunctions or Restraints. No temporary restraining
order, preliminary or permanent injunction or other order issued by any
court of competent jurisdiction or other legal restraint or prohibition
preventing the consummation of the Merger shall be in effect; provided,
however, that prior to asserting this condition each of the parties shall
have used all reasonable best efforts to prevent the entry of any such
injunction or other order and to appeal as promptly as possible any such
injunction or other order that may be entered.
(c) No Governmental Litigation. There shall not be pending any
suit, action or proceeding by any Governmental Entity, in each case that
has a substantial
25
likelihood of success, (i) challenging the acquisition by Sub or JGM of any
Company Common Stock, seeking to restrain or prohibit the consummation of
the Merger or any other Transaction or seeking to obtain from the Company,
Sub or JGM any damages that are material in relation to the Company and its
subsidiaries taken as a whole, (ii) seeking to prohibit or limit the
ownership or operation by the Company or any Company Subsidiaries of any
material portion of the business or assets of the Company or to compel the
Company or any Company Subsidiaries to dispose of or hold separate any
material portion of the business or assets of the Company as a result of
the Merger or any other Transaction, (iii) seeking to impose material
limitations on the ability of Sub or JGM to acquire or hold, or exercise
full rights of ownership of, any shares of Company Common Stock, including
the right to vote the Company Common Stock purchased by it on all matters
properly presented to the shareholders of the Company or (iv) seeking to
prohibit JGM from effectively controlling in any material respect the
business or operations of the Company and the Company Subsidiaries.
SECTION 7.02. Conditions to Obligations of Sub. The obligations
of Sub to effect the Merger are further subject to the following
conditions:
(a) Representations and Warranties. The representations and
warranties of the Company in this Agreement that are qualified as to
materiality shall be true and correct and those not so qualified shall be
true and correct in all material respects, as of the date of this Agreement
and as of the Closing Date as though made on the Closing Date, except to
the extent such representations and warranties expressly relate to an
earlier date (in which case such representations and warranties qualified
as to materiality shall be true and correct, and those not so qualified
shall be true and correct in all material respects, on and as of such
earlier date). Sub shall have received a certificate signed on behalf of
the Company by a duly authorized officer of the Company to such effect.
(b) Performance of Obligations of the Company. The Company shall
have performed in all material respects all obligations required to be
performed by it under this Agreement at or prior to the Closing Date, and
Sub shall have received a certificate signed on behalf of the Company by a
duly authorized officer of the Company to such effect.
(c) ILFC Agreement. The ILFC Agreement shall be in full force and
effect and ILFC shall have performed in all material respects all
obligations required to be
26
performed by it under the ILFC Agreement prior to the Effective Time.
(d) Material Adverse Effect. There shall have been no event since
the date of this Agreement which has had a Company Material Adverse Effect;
excluding, however, any such event which is the direct result of (i) any
action or negligent or willful failure to take an action on the part of
Sub, (ii) any action or negligent or willful failure to take an action on
the part of the Company which is contrary to, or materially inconsistent
with, the recommendation or direction, as case may be, of the Special
Committee, (iii) any action with respect to which the recommendation or
direction, as the case may be, of the Special Committee is required
hereunder which is taken by the Company without such recommendation or
direction, as the case may be, or (iv) any action or failure to take an
action on the part of the Company taken at the direction of JGM or any of
his affiliates (other than the Company Subsidiaries and the Excluded
Affiliates).
(e) Financing. The financing contemplated by the Commitment
Letter shall have been provided on substantially the terms and conditions
specified in the Commitment Letter or on such other terms and conditions or
involving such other financing sources, as are acceptable to ATA and are
not materially more onerous in the aggregate to ATA than those specified in
the Commitment Letter; provided, however, that this condition shall be
deemed satisfied if the failure of this condition is due to any action or
failure to take an action on the part of the Company or ATA taken at the
direction of JGM or any of his affiliates (other than the Company
Subsidiaries (other than ATA) and the Excluded Affiliates).
SECTION 7.03. Conditions to Obligations of the Company. The
obligation of the Company to effect the Merger is further subject to the
following conditions:
(a) Representations and Warranties. The representations and
warranties of Sub in this Agreement that are qualified as to materiality
shall be true and correct and those not so qualified shall be true and
correct in all material respects, as of the date of this Agreement and as
of the Closing Date as though made on the Closing Date, except to the
extent such representations and warranties expressly relate to an earlier
date (in which case such representations and warranties qualified as to
materiality shall be true and correct, and those not so qualified shall be
true and correct in all material respects, on and as of such earlier date).
The Company shall have received a
27
certificate signed on behalf of Sub by the President of Sub to such effect.
(b) Performance of Obligations of Sub. Sub shall have performed
in all material respects all obligations required to be performed by it
under this Agreement at or prior to the Closing Date, and the Company shall
have received a certificate signed on behalf of the Company by the
President of Sub to such effect.
(c) Solvency Letter. If ATA is required pursuant to the Financing
to engage an appraiser (the "Appraiser") to deliver to the Lenders a
solvency letter or certificate (the "Solvency Letter"), ATA shall have
delivered or caused the Appraiser to deliver a copy of the Solvency Letter
to the Company's Board of Directors.
ARTICLE VIII
Termination, Amendment and Waiver
SECTION 8.01. Termination. This Agreement may be terminated at
any time prior to the Effective Time, whether before or after satisfaction
of the condition set forth in Section 7.01(a):
(a) by mutual written consent of Sub and the Company Board on
behalf of the Company (as agreed to by the Special Committee);
(b) by either Sub or the Company (acting at the direction of the
Special Committee):
(i) if the Merger is not consummated on or before October
31, 2001 (the "Outside Date"), unless the failure to consummate
the Merger is the result of a breach of this Agreement by the
party seeking to terminate this Agreement (it being understood
that any breach of this Agreement by the Company without the
consent of the Special Committee shall not constitute a breach
for purposes of this Section 8.01(b)(i)); provided, however, that
the passage of such period shall be tolled for any part thereof
during which any party shall be subject to a nonfinal order,
decree, ruling or action restraining, enjoining or otherwise
prohibiting the consummation of the Merger; or
28
(ii) if any Governmental Entity issues an order, decree or
ruling or takes any other action permanently enjoining,
restraining or otherwise prohibiting the Merger and such order,
decree, ruling or other action shall have become final and
nonappealable.
(c) by Sub, if the Company breaches or fails to perform in any
material respect any of its representations, warranties or covenants
contained in this Agreement, which breach or failure to perform
(i) would give rise to the failure of a condition set forth in
Section 7.02(a) or 7.02(b), and (ii) cannot be or has not been cured
within 30 days after the giving of written notice to the Company of
such breach (provided that Sub is not then in material breach of any
representation, warranty or covenant contained in this Agreement);
excluding, however, any such breach or failure to perform by the
Company that involves a matter for which the consent or
recommendation, as the case may be, of the Special Committee is
required hereunder for which (i) such breach or failure to perform by
the Company is contrary to, or materially inconsistent with, the
recommendation or direction, as the case may be, of the Special
Committee or (ii) such recommendation or direction, as the case may
be, has not been obtained.
(d) by the Company (acting at the direction of the Special
Committee), if Sub breaches or fails to perform in any material
respect any of its representations, warranties or covenants contained
in this Agreement, which breach or failure to perform (i) would give
rise to the failure of a condition set forth in Section 7.03(a) or
7.03(b), and (ii) cannot be or has not been cured within 30 days after
the giving of written notice to Sub of such breach (provided that the
Company is not then in material breach of any representation, warranty
or covenant contained in this Agreement).
(e) by Sub, if the Company Board or the Special Committee
withdraws or modifies, or publicly proposes to withdraw or modify, in
a manner adverse to Sub its approval or recommendation of the Plan of
Merger, this Agreement, the Merger or the ILFC Amendment or fails to
recommend to the Company's shareholders that they vote to approve the
Plan of Merger, this Agreement, the Merger and the ILFC Amendment.
29
(f) by either Sub or the Company (acting at the direction of the
Special Committee), if at the Company Shareholders Meeting a majority
of the outstanding shares of Company Common Stock shall not have voted
in favor of the Plan of Merger, this Agreement, the Merger and the
ILFC Amendment and a majority of the shares of Company Common Stock
voted at the Company Shareholder Meeting (other than shares owned by
JGM, Sub or any other affiliate of JGM (other than the Excluded
Affiliates)) shall not have voted in favor of approval of the Plan of
Merger, this Agreement and the Merger.
SECTION 8.02. Effect of Termination. In the event of termination
of this Agreement by either the Company or Sub as provided in Section 8.01,
this Agreement shall forthwith become void and have no effect, without any
liability or obligation on the part of Sub or the Company, other than
Section 3.06, Section 4.05, Section 6.07, this Section 8.02 and Article IX,
which provisions shall survive such termination, and except to the extent
that such termination results from the material breach by a party of any
representation, warranty or covenant set forth in this Agreement.
SECTION 8.03. Amendment. This Agreement may be amended by the
parties at any time before or after receipt of the approval of the
Company's shareholders at the Company Shareholder Meeting; provided,
however, that any amendment pursuant to this Section 8.03 shall require the
approval of the Special Committee; provided further, however, that after
receipt of such approval, there shall be made no amendment that by Law
requires further approval by the shareholders of the Company without the
further approval of such shareholders. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties.
SECTION 8.04. Extension; Waiver. At any time prior to the
Effective Time, the parties may (a) extend the time for the performance of
any of the obligations or other acts of the other parties, (b) waive any
inaccuracies in the representations and warranties contained in this
Agreement or in any document delivered pursuant to this Agreement or
(c) subject to the proviso of Section 8.03, waive compliance with any of
the agreements or conditions contained in this Agreement; provided,
however, that any extension or waiver by the Company pursuant to this
Section 8.04 shall require the approval of the Special Committee. Any
agreement on the part of a party to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of
such party. The failure of any party to this
30
Agreement to assert any of its rights under this Agreement or otherwise
shall not constitute a waiver of such rights.
SECTION 8.05. Procedure for Termination, Amendment, Extension or
Waiver. A termination of this Agreement pursuant to Section 8.01, an
amendment of this Agreement pursuant to Section 8.03 or an extension or
waiver pursuant to Section 8.04 shall, in order to be effective, require
(i) in the case of Sub, action by its Board of Directors, and (ii) in the
case of the Company, the direction or approval of the Special Committee, as
applicable, or, in either case, to the extent permitted by law, its duly
authorized designee.
ARTICLE IX
General Provisions
SECTION 9.01. Nonsurvival of Representations and Warranties. None
of the representations and warranties in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Effective
Time. This Section 9.01 shall not limit any covenant or agreement of the
parties which by its terms contemplates performance after the Effective
Time.
SECTION 9.02. Notices. All notices, requests, claims, demands and
other communications under this Agree ment shall be in writing and shall be
deemed given upon receipt by the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
(a) if to Sub, to
INDUS Acquisition Company
0000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: J. Xxxxxx Xxxxxxxxx
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Xx., Esq.
(b) if to the Company, to
31
Amtran, Inc.
0000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx
and
Blue and Co. LLC
00000 X. Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
Xxxx Xxxxxxxxxxx, Esq.
SECTION 9.03. Definitions. For purposes of this Agreement:
An "affiliate" of any person means another person that directly
or indirectly, through one or more intermediaries, controls, is controlled
by, or is under common control with, such first person.
A "person" means any individual, firm, corporation, partnership,
company, limited liability company, trust, joint venture, association,
Governmental Entity or other entity.
A "subsidiary" of any person means another person, an amount of
the voting securities, other voting ownership or voting partnership
interests of which is sufficient to elect at least a majority of its Board
of Directors or other governing body (or, if there are no such voting
interests, 50% or more of the equity interests of which) is owned directly
or indirectly by such first person.
SECTION 9.04. Interpretation. When a reference is made in this
Agreement to a Section or Schedule, such reference shall be to a Section
of, or a Schedule to, this Agreement unless otherwise indicated. The table
of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
32
interpretation of this Agreement. Whenever the words "include", "includes"
or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation". The words "hereof", "herein"
and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The term "or" is not exclusive. The
definitions contained in this Agreement are applicable to the singular as
well as the plural forms of such terms. Any agreement or instrument defined
or referred to herein or in any agreement or instrument that is referred to
herein means such agreement or instrument as from time to time amended,
modified or supplemented. References to a person are also to its permitted
successors and assigns.
SECTION 9.05. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any
rule or Law, or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby 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 Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the extent possible.
SECTION 9.06. Counterparts. This Agreement may be executed in one
or more separate counterparts, all of which shall be considered one and the
same agreement and shall become effective when one or more counterparts
have been signed by each of the parties and delivered to the other parties.
SECTION 9.07. Entire Agreement; No Third-Party Beneficiaries.
This Agreement, taken together with the Company Disclosure Letter,
(a) constitute the entire agreement, and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to
the Transactions and (b) except for the provisions of Article II and
Section 6.05, are not intended to confer upon any person other than the
parties any rights or remedies.
SECTION 9.08. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York,
regardless of the laws that might otherwise govern under applicable
principles of
33
conflicts of laws thereof, except to the extent the IBCL is mandatorily
applicable to the Merger.
SECTION 9.09. Assignment. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise by any of the parties
without the prior written consent of the other parties, except that Sub may
assign, in its sole discretion, any or all of its rights, interests and
obligations under this Agreement to any company directly or indirectly
wholly owned by JGM, but no such assignment shall relieve the assigning
party of any of its obligations under this Agreement. Any purported
assignment without such consent shall be void. Subject to the preceding
sentences, this Agreement will be binding upon, inure to the benefit of,
and be enforceable by, the parties and their respective successors and
assigns.
SECTION 9.10. Enforcement. The parties 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, this being in addition to any other remedy to which they are
entitled at law or in equity.
SECTION 9.11. Obligations of JGM. Sub agrees to cause JGM and any
of his affiliates (other than the Company, the Company Subsidiaries and the
Excluded Affiliates) to comply with their respective obligations under this
Agreement, including their respective obligations under Section 6.01.
34
IN WITNESS WHEREOF, Sub and the Company have duly executed this
Agreement, all as of the date first written above.
INDUS ACQUISITION COMPANY,
by /s/ J. Xxxxxx Xxxxxxxxx
______________________________
Name: J. Xxxxxx Xxxxxxxxx
Title: Chairman and President
AMTRAN, INC.,
by /s/ Xxxx X. Xxxxx
______________________________
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
EXHIBIT A
Plan of Merger
Amtran, Inc., an Indiana corporation (the "Company") or, as of
the Effective Time (as defined in Section 1 below), the "Surviving
Corporation"), and INDUS Acquisition Company, an Indiana corporation
("Sub"), hereby adopt the following Plan of Merger for purposes of Section
40-1 of the Indiana Business Corporation Law (the "IBCL"):
1. Articles of Merger. In accordance with the requirements of the
IBCL, Articles of Merger shall be prepared, executed and submitted for
filing with the office of the Secretary of State of the State of Indiana as
soon as practicable following the closing of the Merger (as defined in
Section 2 below). The date of such filing is referred to as the "Effective
Time".
2. Merger; Articles; Bylaws. At the Effective Time, (i) Sub shall
merge with and into the Company (the "Merger") and as a result thereof, the
separate existence of Sub shall cease, (ii) the Articles of Incorporation
of the Company, as in effect immediately prior to the Effective Time, shall
constitute the Articles of Incorporation of the Surviving Corporation (the
"Articles") and (iii) the Bylaws of the Company, as in effect immediately
prior to the Effective Time, shall be the Bylaws of the Surviving
Corporation (the "Bylaws").
3. Effects of the Merger. At the Effective Time: (a) title to all
real estate and other property owned by Sub and the Company shall be vested
in the Surviving Corporation without reversion or impairment; (b) the
Surviving Corporation shall have all liabilities of Sub and the Company;
(c) a proceeding pending against Sub or the Company may be continued as if
the Merger did not occur or the Surviving Corporation may be substituted in
the proceeding for Sub; and (d) the shares of capital stock of Sub and
shares of common stock, without par value, of the Company ("Company Common
Stock") shall be converted as provided in Section 6 hereof.
4. Directors. The directors of the Company immediately prior to
the Effective Time shall be the directors of the Surviving Corporation,
until the earlier of their resignation or removal or until their respective
successors are duly elected and qualified, as the case may be.
5. Officers. The officers of the Company immediately prior to the
Effective Time shall be the officers of the Surviving Corporation, until
the earlier of
2
their resignation or removal or until their respective successors are duly
elected or appointed and qualified, as the case may be.
6. Effect on the Capital Stock of the Constituent Corporations;
Exchange of Certificates. The following provisions of this Plan of Merger
shall govern the manner and basis of converting the shares of Company
Common Stock and shares of capital stock of Sub into shares, obligations,
or other securities of the Surviving Corporation.
6.1. Effect on Capital Stock. At the Effective Time, by virtue of
the Merger and without any action on the part of the holder of any shares
of capital stock of the Company or any shares of capital stock of Sub:
(a) Capital Stock of Sub. Each issued and outstanding share of
capital stock of Sub shall be converted into and become one fully paid and
nonassessable share of common stock, without par value, of the Surviving
Corporation.
(b) Cancelation of Treasury, JGM-Owned and Sub-Owned Stock. Each
share of Company Common Stock that is owned by the Company, J. Xxxxxx
Xxxxxxxxx ("JGM"), Sub or any other affiliate of JGM (other than any person
who is deemed to be an affiliate of JGM by reason of such person's position
as an officer or director of the Company) shall no longer be outstanding
and shall automatically be canceled and retired and shall cease to exist,
and no consideration shall be delivered or deliverable in exchange
therefor. Each share of Company Common Stock that is owned by any
subsidiary of the Company shall automatically be converted into one fully
paid and nonassessable share of common stock, without par value, of the
Surviving Corporation.
(c) Conversion of Company Capital Stock. (1) Subject to
Section 6.1(b), each issued share of Company Common Stock shall be
converted into the right to receive from the Surviving Corporation $23.00
in cash, without interest.
(2) Each issued share of Preferred Stock of the Company shall
remain outstanding.
(3) The cash payable upon the conversion of shares of Company
Common Stock pursuant to this Section 6.1(c) is referred to collectively as
the "Merger Consideration". At the Effective Time, all such shares of
Company Common Stock shall no longer be outstanding and shall automatically
be canceled and retired and shall cease to exist, and each holder of a
certificate that immediately
3
prior to the Effective Time represented any such shares of Company Common
Stock (each, a "Certificate") shall cease to have any rights with respect
thereto, except the right to receive Merger Consideration upon surrender of
a Certificate in accordance with Section 6.2, without interest.
SECTION 6.2. Exchange of Certificates. (a) Paying Agent. Prior
to the Effective Time, Sub shall designate a bank or trust company to act
as paying agent (the "Paying Agent") for the payment of the Merger
Consideration upon surrender of Certificates. Promptly following the
Effective Time, the Surviving Corporation shall provide to the Paying Agent
cash in an amount sufficient to pay for the shares of Company Common Stock
converted into the right to receive cash pursuant to Section 6.1(c) (such
cash being hereinafter referred to as the "Exchange Fund"). All of the fees
and expenses of the Paying Agent shall be borne by the Surviving
Corporation.
(b) Exchange Procedure. The Surviving Corporation shall cause
the Paying Agent to mail promptly after the Effective Time (but, in any
event, within five days after the Effective Time) to each holder of record
of Certificates, (i) a form of letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to Certificates
shall pass, only upon delivery of Certificates to the Paying Agent and
shall be in such form and have such other provisions as the Surviving
Corporation may reasonably specify) and (ii) instructions for use in
effecting the surrender of Certificates in exchange for Merger
Consideration. Upon surrender of a Certificate for cancelation to the
Paying Agent, together with such letter of transmittal, duly completed and
validly 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 the amount of cash into which the shares of
Company Common Stock theretofore represented by such Certificate shall have
been converted pursuant to Section 6.1(c) and the Certificate so
surrendered shall forthwith be canceled; the Surviving Corporation shall
enter into a paying agency agreement with the Paying Agent which provides
that the Paying Agent shall promptly following any such surrender of
Certificates (but, in any event, within three business days after the
Paying Agent receives such Certificates) dispatch by mail payment of such
amount to such holder. In the event of a transfer of ownership of Company
Common Stock that is not registered in the transfer records of the Company,
payment may be made to a person other than the person in whose name the
Certificate so surrendered is registered, if such Certificate shall be
properly endorsed or otherwise be in proper form for transfer and the
person requesting such payment shall pay any transfer or other taxes
required by
4
reason of the payment to a person other than the registered holder of such
Certificate or establish to the satisfaction of the Surviving Corporation
that such tax has been paid or is not applicable. Until surrendered as
contemplated by this Section 6.2, each Certificate shall be deemed at any
time after the Effective Time to represent only the right to receive upon
such surrender the amount of cash, without interest, into which the shares
of Company Common Stock theretofore represented by such Certificate have
been converted pursuant to Section 6.1(c). No interest shall be paid or
shall accrue on the cash payable upon surrender of any Certificate.
(c) No Further Ownership Rights in Company Common Stock. The
Merger Consideration paid upon surrender of a Certificate in accordance
with the terms of this Plan of Merger shall be deemed to have been paid in
full satisfaction of all rights pertaining to the shares of Company Common
Stock formerly represented by such Certificate, and after the Effective
Time there shall be no further registration of transfers on the stock
transfer books of the Surviving Corporation of shares of Company Common
Stock that were outstanding immediately prior to the Effective Time. If,
after the Effective Time, any Certificates are presented to the Surviving
Corporation or the Paying Agent for any reason, they shall be canceled and
exchanged for the amount of cash into which the shares of Company Common
Stock theretofore represented by such Certificates shall have been
converted as provided in this Plan of Merger.
(d) No Liability. None of Sub, the Company or the Paying Agent
shall be liable to any person in respect of any cash from the Exchange Fund
that is required under applicable Law to be delivered to a public official
pursuant to any applicable abandoned property, escheat or similar law.
(e) Investment of Exchange Fund. The Surviving Corporation shall
direct the Paying Agent to invest any cash included in the Exchange Fund,
as directed by the Surviving Corporation, on a daily basis. Any interest
and other income resulting from such investments shall be paid to the
Surviving Corporation.
(f) Withholding Rights. The Surviving Corporation shall be
entitled to deduct and withhold, as required by applicable Law, any
applicable taxes from the consideration otherwise payable to any holder of
Company Common Stock pursuant to this Agreement.
(g) Lost, Stolen or Destroyed Certificates. In the event any
Certificate shall have been lost, stolen or
5
destroyed, the holder of such lost, stolen or destroyed Certificate shall
execute an affidavit of that fact upon request. The holder of any such
lost, stolen or destroyed Certificate shall also deliver a reasonable
indemnity against any claim that may be made against the Surviving
Corporation or the Paying Agent with respect to the Certificate alleged to
have been lost, stolen or destroyed. The affidavit and any indemnity which
may be required hereunder shall be delivered to the Paying Agent, who shall
be responsible for making payment for such lost, stolen or destroyed
Certificate pursuant to the terms hereof.
(h) Adjustment to Prevent Dilution. In the event that following
the date hereof and prior to the Effective Time the Company changes the
number of shares of Company Common Stock or securities convertible or
exchangeable into or exercisable for shares of Company Common Stock, as the
case may be, issued and outstanding by way of a reclassification, stock
split (including a reverse stock split), stock dividend or distribution,
recapitalization, subdivision, or other similar transaction, the amount of
Merger Consideration payable with respect to a share of Company Common
Stock shall be adjusted appropriately to provide holders of shares of
Company Common Stock the same economic effect contemplated by this Plan of
Merger prior to such change.
