AGREEMENT AND PLAN OF MERGER
BY AND AMONG
ATALANTA ACQUISITION COMPANY,
XXXXXX X. XXXXXXX
AND
ATALANTA/SOSNOFF CAPITAL CORPORATION
--------------------------
DATED AS OF JUNE 10, 2003
TABLE OF CONTENTS
Page
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ARTICLE 1 THE OFFER.............................................................................2
SECTION 1.01 The Offer.......................................................................2
SECTION 1.02 Company Action..................................................................4
SECTION 1.03 Stockholder Lists...............................................................5
ARTICLE 2 THE MERGER............................................................................5
SECTION 2.01 The Merger......................................................................6
SECTION 2.02 Effective Time; Closing.........................................................6
SECTION 2.03 Effect of the Merger............................................................6
SECTION 2.04 Certificate of Incorporation; Bylaws; Directors and Officers....................6
ARTICLE 3 CONVERSION OF COMMON STOCK;
EXCHANGE OF CERTIFICATES..............................................................7
SECTION 3.01 Conversion of Common Stock......................................................7
SECTION 3.02 Exchange of Certificates........................................................7
SECTION 3.03 Stock Transfer Books............................................................9
SECTION 3.04 Appraisal.......................................................................9
SECTION 3.05 Stock Options...................................................................9
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE COMPANY........................................10
SECTION 4.01 Authority Relative to This Merger Agreement....................................10
SECTION 4.02 Brokers........................................................................10
SECTION 4.03 Opinion of Financial Advisor...................................................10
SECTION 4.04 State Takeover Statutes........................................................11
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF THE OFFERORS.......................................11
SECTION 5.01 Organization and Qualification.................................................11
SECTION 5.02 Authority Relative to This Merger Agreement....................................11
SECTION 5.03 Financing......................................................................12
SECTION 5.04 Operations of Purchaser........................................................12
SECTION 5.05 Brokers........................................................................12
ARTICLE 6 COVENANTS............................................................................12
SECTION 6.01 Notification of Certain Matters................................................12
SECTION 6.02 Merger Without Stockholders' Meeting...........................................12
SECTION 6.03 Directors' and Officers' Indemnification and Insurance.........................12
SECTION 6.04 Further Action; Consents; Filings..............................................13
SECTION 6.05 Public Announcements...........................................................14
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SECTION 6.06 Reasonable Best Efforts and Further Assurances.................................14
ARTICLE 7 CONDITIONS TO THE MERGER.............................................................14
SECTION 7.01 Conditions to the Obligations of Each Party....................................14
ARTICLE 8 TERMINATION, AMENDMENT AND WAIVER....................................................15
SECTION 8.01 Termination....................................................................15
SECTION 8.02 Effect of Termination..........................................................17
SECTION 8.03 Amendment......................................................................17
SECTION 8.04 Waiver.........................................................................17
SECTION 8.05 Expenses.......................................................................17
ARTICLE 9 GENERAL PROVISIONS...................................................................18
SECTION 9.01 Non-Survival of Representations, Warranties and Agreements.....................18
SECTION 9.02 Notices........................................................................18
SECTION 9.03 Certain Definitions............................................................19
SECTION 9.04 Severability...................................................................19
SECTION 9.05 Entire Agreement; Assignment...................................................20
SECTION 9.06 Parties in Interest............................................................20
SECTION 9.07 Governing Law..................................................................20
SECTION 9.08 Headings.......................................................................20
SECTION 9.09 Counterparts...................................................................20
SECTION 9.10 Consent to Jurisdiction........................................................20
SECTION 9.11 Waiver of Jury Trial...........................................................21
ANNEX A Conditions To The Offer.............................................................A-2
ii
This AGREEMENT AND PLAN OF MERGER, dated as of June 10, 2003 (this
"Merger Agreement"), is by and among Atalanta Acquisition Company, a Delaware
corporation ("Purchaser" and together with Xxxxxx X. Xxxxxxx ("Xx. Xxxxxxx"),
the "Offerors"), Xx. Xxxxxxx and Atalanta/Sosnoff Capital Corporation, a
Delaware corporation (the "Company").
WITNESSETH
WHEREAS, as of the date hereof, the Company has authority to issue (i)
30,000,000 shares of Common Stock, par value $0.01 per share (the "Common Stock"
or the "Shares"), 8,664,715 of which were outstanding on a fully-diluted basis,
and (ii) 5,000,000 shares of Preferred Stock, par value $0.01 per share, none of
which are outstanding;
WHEREAS, Xx. Xxxxxxx has proposed to the Board of Directors of the
Company (the "Board") that Purchaser, a corporation wholly owned by him, acquire
the remaining Common Stock not owned by the Offerors (the "Proposal");
WHEREAS, the Board has established a special committee of the Board
(the "Special Committee") to, among other things, consider the Proposal and make
a recommendation to the Board with respect thereto;
WHEREAS, it is proposed that the Offerors shall commence a tender offer
(the "Offer") to acquire any and all of the outstanding Shares not owned by Xx.
Xxxxxxx for an amount equal to $13.95 per Share (such amount, or any greater
amount per Share paid pursuant to the Offer, being hereinafter referred to as
the "Offer Price"), net to the seller in cash, without interest and less any
required withholding taxes, upon the terms and subject to the conditions
provided herein;
WHEREAS, the Special Committee (i) has determined that it is fair to
and in the best interests of the Company and its stockholders (other than the
Offerors and their affiliates) to consummate the Offer and the merger of
Purchaser with and into the Company, with the Company being the surviving
corporation (the "Merger"), upon the terms and subject to the conditions of this
Merger Agreement and in accordance with the General Corporation Law of the State
of Delaware ("Delaware Law"), (ii) has determined that the Offer, the Merger and
this Merger Agreement should be approved and declared advisable by the Board and
(iii) has resolved to recommend that the Company's stockholders accept the Offer
and tender their Shares pursuant thereto;
WHEREAS, based on the recommendation of the Special Committee, the
Board (i) has determined that it is fair to and in the best interests of the
Company and its stockholders (other than the Offerors and their affiliates) to
consummate the Offer and the Merger upon the terms and subject to the conditions
of this Merger Agreement and in accordance with Delaware Law, (ii) has approved
and declared advisable the Offer, the Merger and this Merger Agreement and (iii)
has resolved to recommend that the Company's stockholders accept the Offer and
tender their Shares pursuant thereto;
WHEREAS, the Board of Directors of Purchaser (i) has determined that
the Offer and the Merger are fair to and in the best interests of Purchaser and
its stockholder and (ii) has approved and declared advisable the Offer, the
Merger and this Merger Agreement; and
WHEREAS, simultaneously with the execution and delivery of this Merger
Agreement and as a condition of the Offerors' willingness to enter into this
Merger Agreement, certain directors and officers of the Company have entered
into Shareholder Tender Agreements, pursuant to which Xxxxx X. Xxxxxxxxx and
Xxxxxxx X. Xxxxxxx, each a director and/or officer, have agreed to tender their
Shares in the Offer upon the terms and subject to the conditions set forth
therein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Purchaser, Xx. Xxxxxxx and the Company hereby agree as follows:
ARTICLE 1
THE OFFER
SECTION 1.01 The Offer. (a)
(i) Provided that this Merger Agreement shall not have been
terminated in accordance with Section 8.01 and none of the events set
forth in Annex A hereto shall have occurred or be existing, as soon as
practicable (but in no event later than five business days from the
public announcement of the terms of this Merger Agreement) the Offerors
shall commence the Offer. The initial expiration date of the Offer
shall be the twentieth business day from and after the date the Offer
is commenced (the "Initial Expiration Date").
(ii) The obligation of the Offerors to accept for payment and
pay for Shares tendered pursuant to the Offer shall be subject only to
the satisfaction of the following conditions: (A) that there be validly
tendered and not withdrawn prior to the expiration of the Offer that
number of Shares which, when taken together with all Shares owned by
the Offerors, represents at least ninety percent of the then
outstanding Shares on a fully-diluted basis (the "Minimum Condition"),
and (B) the conditions set forth in Annex A hereto (collectively, the
"Additional Offer Conditions," and together with the Minimum Condition,
the "Offer Conditions"), any of which Additional Offer Conditions may
be waived by the Offerors in their sole discretion.
(iii) The Offerors expressly reserve the right to amend or
make changes to the terms and conditions of the Offer; provided,
however, that, without the prior written consent of the Company
(expressed in a resolution adopted by both the Special Committee and
the Board), the Offerors shall not (v) decrease the Offer Price or
change the form of consideration to be paid in the Offer, (w) waive or
modify the Minimum Condition, (x) decrease the number of
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Shares sought in the Offer, (y) impose any additional conditions to the
Offer from the Offer Conditions, or (z) otherwise amend the Offer in a
manner that would adversely affect the holders of Shares. The Company
agrees that no Shares owned by the Company for its account will be
tendered pursuant to the Offer. Notwithstanding anything in this Merger
Agreement to the contrary, without the consent of the Company, the
Offerors shall have the right to extend the Offer beyond the Initial
Expiration Date in the following events: (1) from time to time if, at
the Initial Expiration Date (or extended expiration date of the Offer,
if applicable), any of the conditions to the Offer have not been
satisfied or waived; (2) for any period required by any rule,
regulation, interpretation or position of the Securities and Exchange
Commission (the "SEC") or the staff thereof applicable to the Offer or
any period required by applicable Law (as hereinafter defined); or (3)
pursuant to an amendment to the Offer providing for a "subsequent
offering period" to the extent permitted under, and in compliance with,
Rule 14d-11 under the Exchange; provided, that notwithstanding anything
to the contrary, if any of the conditions to the Offer are not
satisfied or, if applicable, waived on any scheduled expiration date of
the Offer, the Offerors shall be required to extend the Offer for a
period of 10 business days and, if at the end of such 10 business day
period all of the conditions to the Offer are still not satisfied or,
if applicable, waived, an additional period of 10 business days;
provided further, that, without the consent of the Company (expressed
in a resolution adopted by both the Special Committee and the Board),
the Offerors shall not extend the Offer beyond the date that is 50
business days from the date on which the Offer was commenced.
(iv) Following the satisfaction or waiver of the Offer
Conditions, Purchaser shall accept for payment, in accordance with the
terms of the Offer, all Shares validly tendered pursuant to the Offer
and not withdrawn as soon as it is permitted to do so pursuant to
applicable Law. On or prior to the dates that Purchaser (or, in the
case of the Merger, the Surviving Corporation) becomes obligated to
accept for payment and pay for Shares pursuant to the Offer and Merger,
Xx. Xxxxxxx shall provide, or cause to be provided, to Purchaser (or,
in the case of the Merger, the Surviving Corporation) the funds
necessary to pay for all Shares that Purchaser (or, in the case of the
Merger, the Surviving Corporation) becomes so obligated to accept for
payment and pay for pursuant to the Offer and Merger, as the case may
be. The Offer Price shall, subject to any required withholding of Taxes
(as defined below), be net to the stockholder in cash without interest
and less any required withholding taxes, upon the terms and subject to
the conditions of the Offer.
(b) The Offerors shall file with the SEC on the date that the Offer is
commenced a Offer Statement on Schedule TO (together with any supplements or
amendments thereto, the "Schedule TO") which will contain, among other things,
the offer to purchase, form of the related letter of transmittal and summary
advertisement (together with any supplements or amendments thereto, the "Offer
Documents"), and a Rule 13e-3 Transaction Statement on Schedule 13E-3 with
respect to the Offer which shall be filed as a part of the Schedule TO (the
"Offeror Schedule 13E-3"). The Offer Documents and Offeror Schedule 13E-3 shall
comply in all material respects with the provisions of appli-
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cable federal securities laws and, on the date filed with the SEC and, if
applicable, on the date first published, sent or given to the Company's
stockholders, shall not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, except that no representation is made by the Offerors
with respect to information supplied by the Special Committee in writing for
inclusion in the Offer Documents. The Offerors further agree to take all steps
necessary to cause the Offer Documents and Offeror Schedule 13E-3 to be filed
with the SEC and to be disseminated to holders of Shares, in each case as and to
the extent required by applicable federal securities laws. The Offerors agree
promptly to correct any information provided by them or it for use in the Offer
Documents or Offeror Schedule 13E-3 if and to the extent that it shall have
become false and misleading in any material respect and the Offerors further
agree to take all steps necessary to cause the Offer Documents or Offeror
Schedule 13E-3 as so corrected to be filed with the SEC and to be disseminated
to holders of Shares, in each case as and to the extent required by applicable
federal securities laws. The Special Committee and its counsel shall be given
the opportunity to review the Schedule TO and Offeror Schedule 13E-3 before it
is filed with the SEC. In addition, the Offerors agree to provide the Special
Committee and its counsel with any comments or other communications that they or
their counsel may receive from time to time from the SEC or its staff with
respect to the Schedule TO or Offeror Schedule 13E-3 promptly after the receipt
of such comments or other communications.
(c) The Offerors agree to provide the Special Committee and its counsel
with any comments or other communications that either of them or its counsel may
receive from time to time from the SEC or its staff with respect to the Offer
Documents promptly or Offeror Schedule 13E-3 after the receipt of such comments
or other communications.
SECTION 1.02 Company Action. The Company hereby approves of and
consents to the Offer. Concurrently with the filing of the Schedule TO, the
Company will (i) file with the SEC and mail to the holders of Shares a
Solicitation/ Recommendation Statement on Schedule 14D-9 (together with any
supplements or amendments thereto, the "Schedule 14D-9") and (ii) file on the
date the Offer is commenced a Rule 13e-3 Transaction Statement on Schedule 13E-3
with respect to the Offer (the "Company Schedule 13E-3"). The Schedule 14D-9
will set forth, and the Company hereby represents to Purchaser, that (a) each of
the Special Committee and the Board, at meetings duly called and held, has (i)
determined that each of the Offer and the Merger is fair to and in the best
interests of the Company's stockholders (other than the Offerors and their
affiliates); (ii) approved this Merger Agreement and the transactions
contemplated hereby, including, without limitation the Offer and the Merger; and
(iii) resolved to recommend that the Company's stockholders accept the Offer and
tender their Shares pursuant thereto; provided, however, that such
recommendation may be withdrawn or modified to the extent that the Board, based
on the recommendation of the Special Committee, determines in good faith, after
receiving advice of outside counsel, that such recommendation would be
inconsistent with its fiduciary duties to the Company's stockholders under
applicable Law; and (b) The Blackstone Group, L.P., the financial advisor to the
Special Committee (the "Financial Advisor"), has delivered to the Special
Committee its written opinion that, subject to the assumptions and
qualifications set forth therein, as of the date
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of such opinion, the consideration to be received by the stockholders of the
Company (other than the Offerors and their affiliates) in exchange for each of
their Shares pursuant to each of the Offer and the Merger is fair to such
stockholders from a financial point of view. Each of the Schedule 14D-9 and
Company Schedule 13E-3 will comply in all material respects with the provisions
of applicable federal securities laws and, on the date filed with the SEC and on
the date first published, sent or given to the Company's stockholders, shall not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except that no representation is made by the Company with respect to
information supplied by the Offerors in writing for inclusion in the Schedule
14D-9 or Company Schedule 13E-3. The Company further agrees to take all steps
necessary to cause the Schedule 14D-9 and Company Schedule 13E-3 to be filed
with the SEC and to be disseminated to holders of Shares, in each case as and to
the extent required by applicable federal securities laws. The Company agree(s)
promptly to correct any information provided by it for use in the Schedule 14D-9
or Company Schedule 13E-3 if and to the extent that it shall have become false
and misleading in any material respect and the Company further agrees to take
all steps necessary to cause the Schedule 14D-9 or Company Schedule 13E-3 as so
corrected to be filed with the SEC and to be disseminated to holders of the
Shares, in each case as and to the extent required by applicable federal
securities laws. The Offerors and their counsel shall be given the opportunity
to review the initial Schedule 14D-9 and Company Schedule 13E-3 before it is
filed with the SEC. In addition, the Company agrees to provide the Offerors and
their counsel with any comments or other communications that the Company or its
counsel may receive from time to time from the SEC or its staff with respect to
the Schedule 14D-9 or Company Schedule 13E-3 promptly after the receipt of such
comments or other communications.
SECTION 1.03 Stockholder Lists. In connection with the Offer, the
Company shall promptly furnish the Offerors or their agents or representatives
with mailing labels, security position listings of Shares held in stock
depositories and any available listing or computer file containing the names and
addresses of the record holders of Shares, each as of the most recent
practicable date, and shall promptly furnish the Offerors or their agents or
representatives with such additional information, including updated lists of
stockholders, mailing labels and lists of securities positions and such other
information and assistance as the Offerors or their agents or representatives
may reasonably request in connection with communicating to the record and
beneficial holders of Shares with respect to the Offer and the Merger.
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ARTICLE 2
THE MERGER
SECTION 2.01 The Merger. Upon the terms and subject to the conditions
set forth in Article 7, and in accordance with Delaware Law, at the Effective
Time (as defined below), Purchaser shall be merged with and into the Company. As
a result of the Merger, the separate corporate existence of Purchaser shall
cease and the Company shall continue as the surviving corporation of the Merger
(the "Surviving Corporation").
SECTION 2.02 Effective Time; Closing. As promptly as practicable
following the satisfaction or, if permissible, waiver of the conditions set
forth in Article 7 (or such other date as may be agreed in writing by the
parties hereto), the parties hereto shall cause the Merger to be consummated by
filing a certificate of ownership and merger (the "Certificate of Merger") with
the Secretary of State of the State of Delaware, in such form as is required by,
and executed in accordance with, the relevant provisions of Delaware Law. The
term "Effective Time" means the date and time of the filing with the Secretary
of State of the State of Delaware of the Certificate of Merger (or such later
time as may be agreed upon in writing by the parties hereto and specified in the
Certificate of Merger). Immediately prior to the filing of the Certificate of
Merger, a closing (the "Closing") will be held at Skadden, Arps, Slate, Xxxxxxx
& Xxxx LLP, Four Times Square, New York, New York 10036-6522 (or such other
place as the parties hereto may agree).
SECTION 2.03 Effect of the Merger. At the Effective Time, the effect of
the Merger shall be as provided in the applicable provisions of Delaware Law.
Without limiting the generality of the foregoing, and subject thereto, at the
Effective Time, all the property, rights, privileges, powers and franchises of
Purchaser and the Company shall vest in the Surviving Corporation, and all
debts, liabilities, obligations, restrictions, disabilities and duties of
Purchaser and the Company shall become the debts, liabilities, obligations,
restrictions, disabilities and duties of the Surviving Corporation.
SECTION 2.04 Certificate of Incorporation; Bylaws; Directors and
Officers. (a) At the Effective Time, the Certificate of Incorporation of the
Company, as in effect immediately prior to the Effective Time, shall be the
Certificate of Incorporation of the Surviving Corporation until thereafter
amended in accordance with Delaware Law and such Certificate of Incorporation.
(b) At the Effective Time, the Bylaws of the Company, as in effect
immediately prior to the Effective Time, shall be the Bylaws of the Surviving
Corporation until thereafter amended in accordance with Delaware Law, the
Certificate of Incorporation of the Surviving Corporation and such Bylaws.
(c) From and after the Effective Time, until successors are duly
elected or appointed and qualified in accordance with applicable Law, the
officers of the Company at the Effective Time shall be the officers of the
Surviving Corporation.
(d) At the Effective Time, Xxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxxx,
Xxxxxxxx Xxxxx-Xxxxx and Xxxxx X. Xxxxxxxxx will resign from the Board pursuant
to the Letters of Resignation, dated as of the date hereof, addressed by each of
them to the Company.
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ARTICLE 3
CONVERSION OF COMMON STOCK; EXCHANGE OF CERTIFICATES
SECTION 3.01 Conversion of Common Stock. At the Effective Time, by
virtue of the Merger and without any action on the part of any party hereto or
the holders of Common Stock:
(a) each share of Common Stock issued and outstanding immediately prior
to the Effective Time (other than any Dissenting Shares, as defined in Section
3.04, and any shares to be canceled pursuant to Section 3.01(b)) will be
converted into the right to receive the Offer Price in cash (the "Merger
Consideration" );
(b) each share of Common Stock held in the treasury of the Company or
owned by the Offerors or any direct or indirect wholly-owned subsidiary of the
Company immediately prior to the Effective Time will be canceled and
extinguished without any conversion thereof and no payment or distribution shall
be made with respect thereto; and
(c) each share of common stock, par value $0.01 per share, of Purchaser
issued and outstanding immediately prior to the Effective Time will be converted
into one share of common stock of the Surviving Corporation.
SECTION 3.02 Exchange of Certificates. (a) Paying Agent. Prior to the
Effective Time, the Offerors shall designate a bank or trust company to act as
paying agent in the Merger (the "Paying Agent") and Purchaser shall deposit (or
shall cause to be deposited) with the Paying Agent immediately available funds
in an amount sufficient for the payment of the aggregate Merger Consideration
upon surrender of Certificates (as hereinafter defined) representing shares of
Common Stock converted pursuant to Section 3.01(a) (such funds being hereinafter
referred to as the "Exchange Fund").
(b) Exchange Procedures. Promptly after the Effective Time, the
Offerors shall cause the Paying Agent to mail to each holder of record (other
than the Offerors) of a certificate or certificates that immediately prior to
the Effective Time represented shares of Common Stock (the "Certificates"), (i)
a letter of transmittal (which shall specify that delivery shall be effected,
and risk of loss and title to the Certificates shall pass, only upon delivery of
the Certificates to the Paying Agent and shall be in a form and have such other
provisions as the Offerors may reasonably specify) and (ii) instructions for use
in effecting the surrender of the Certificates in exchange for the Merger
Consideration. Upon surrender of a Certificate for cancellation to the Paying
Agent or to such other agent or agents as may be appointed by the Offerors,
together with such letter of transmittal, duly executed, and such other
documents as may reasonably be required by the Paying Agent, the holder of such
Certificate shall be entitled to receive in exchange therefor, and the Paying
Agent shall pay, the Merger Consideration for each share of Common Stock
formerly evidenced by such Certificate, and such Certificate shall thereupon be
canceled. If payment of the Merger Consideration is to be made to a person other
than the person in whose name the surrendered Certificate is registered on the
stock transfer books of the Company, it shall be a condition of payment to the
holder of a Certificate
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that it be endorsed properly or otherwise be in proper form for transfer and
that the person requesting such payment shall have paid all transfer and other
taxes required by reason of the payment of the Merger Consideration to a person
other than the registered holder thereof or shall have established to the
satisfaction of the Surviving Corporation that such taxes are not applicable.
Until surrendered as contemplated by this Section 3.02, each Certificate shall
be deemed at any time after the Effective Time to represent only the right to
receive upon such surrender the Merger Consideration into which the shares
theretofore represented by such Certificate shall have been converted pursuant
to Section 3.01(a). No interest will be paid or will accrue on the cash payable
upon the surrender of any Certificate.
(c) Termination of Exchange Fund. Any portion of the Exchange Fund
which remains undistributed for six months after the Effective Time shall be
delivered to the Surviving Corporation, upon demand, and any holders of shares
of Common Stock who have not theretofore complied with this Article 3 shall
thereafter look only to the Surviving Corporation for payment of the Merger
Consideration to which they are entitled, without any interest thereon. Any
portion of the Exchange Fund remaining unclaimed as of a date which is
immediately prior to such time as such amounts would otherwise escheat to or
become property of any government entity shall, to the extent permitted by
applicable Law, become the property of the Surviving Corporation free and clear
of any claims or interest of any person previously entitled thereto.
(d) No Liability. Neither the Offerors nor the Surviving Corporation
shall be liable to any holder of shares of Common Stock for any amounts
delivered to a public official pursuant to any abandoned property, escheat or
similar Law.
(e) Withholding Rights. Each of the Surviving Corporation, Purchaser
and the Paying Agent shall be entitled to deduct and withhold from the
consideration otherwise payable pursuant to this Merger Agreement to any holder
of shares of Common Stock such amounts as it is required to deduct and withhold
with respect to the making of any payment under the Internal Revenue Code of
1986, as amended (the "Code"), or any provision of state or local tax Law. To
the extent that amounts are so withheld by the Surviving Corporation, Purchaser
or the Paying Agent, as the case may be, such withheld amounts shall be treated
for all purposes of this Merger Agreement as having been paid to the holder of
the shares of Common Stock in respect of which such deduction and withholding
was made by the Surviving Corporation, Purchaser or the Paying Agent, as the
case may be.
(f) Lost Certificates. If any Certificate shall have been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the person
claiming such Certificate to be lost, stolen or destroyed and, if required by
the Offerors or the Surviving Corporation, the posting by such person of a bond,
in such reasonable amount as the Offerors or the Surviving Corporation may
direct, as indemnity against any claim that may be made against it with respect
to such Certificate, the Paying Agent will issue in exchange for such lost,
stolen or destroyed Certificate, the Merger Consideration, without any interest
thereon.
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(g) Investment of Funds. The Paying Agent shall invest the funds
constituting the Exchange Fund as directed by the Offerors. Any interest or
other income resulting from such investment shall be paid to the Surviving
Corporation.
(h) Further Action. At and after the Effective Time, the officers and
directors of the Surviving Corporation will be authorized to execute and
deliver, in the name and on behalf of the Company, any deeds, bills of sale,
assignments or assurances and to take and do, in the name and on behalf of the
Company, any other actions and things to vest, perfect or confirm of record or
otherwise in the Surviving Corporation any and all right, title and interest in,
to and under any of the rights, properties or assets acquired or to be acquired
by the Surviving Corporation as a result of, or in connection with, the Merger.
SECTION 3.03 Stock Transfer Books. At the Effective Time, the stock
transfer books of the Company shall be closed with respect to Shares outstanding
immediately prior to the Effective Time and there shall be no further
registration of transfers of such Shares thereafter on the records of the
Company. From and after the Effective Time, the holders of Shares outstanding
immediately prior to the Effective Time shall cease to have any rights with
respect to such Shares, except as otherwise provided in this Merger Agreement or
by applicable Law.
SECTION 3.04 Appraisal. Notwithstanding anything in this Merger
Agreement to the contrary, each Share issued and outstanding immediately prior
to the Effective Time (a "Dissenting Stockholder") who complies with all the
requirements of Delaware Law concerning the right of stockholders to seek
appraisal of their shares ("Dissenting Shares") shall not be converted as
described in this Article 3 but shall instead become the right to receive such
consideration as may be determined to be due to such Dissenting Stockholder
pursuant to Section 262 of the Delaware Law. If, after the Effective Time, such
Dissenting Stockholder withdraws his or her demand for appraisal or fails to
perfect or otherwise loses his or her right of appraisal, in any case pursuant
to Delaware Law, each Share of such Dissenting Stockholder shall be deemed to be
converted as of the Effective Time into the right to receive the Merger
Consideration (without any interest thereon). The Company shall give the
Offerors prompt notice of any demands received by the Company for appraisal of
any Shares, and the Offerors shall have the right to participate in and direct
all negotiations and proceedings with respect to such demands. The Company shall
not, except with the prior written consent of the Offerors, make any payment
with respect to, or settle, offer to settle or reject any settlement of, any
such demands, or agree to do any of the foregoing.
SECTION 3.05 Stock Options. All outstanding options to purchase shares
of Common Stock (the "Company Options") granted under any of the Company's
Long-Term Incentive Plan and any other option plan, agreement or commitment made
or maintained by the Company (collectively, the "Company Option Plans") which
are outstanding immediately prior to the Effective Time will, effective as of
the Effective Time, be cancelled in exchange for a single lump sum cash payment,
to be paid by the Surviving Corporation as soon as practicable following the
Closing upon its receipt of a release or other documentation by the holder of
such Company Option reasonably satisfactory to the Offerors and the Surviving
Corporation, equal to the product of (i) the number of
9
Shares subject to such Company Option and (ii) the excess, if any, of the Merger
Consideration for a Share at the Effective Time over the exercise price per
Share of such Company Option.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Offerors that:
SECTION 4.01 Authority Relative to This Merger Agreement. (a) The
Company has all necessary corporate power and authority to execute and deliver
this Merger Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery of this Merger
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action, and no other corporate proceedings on the part of the Company
are necessary to authorize this Merger Agreement or to consummate the
transactions contemplated hereby (other than, with respect to the Merger and to
the extent required by Delaware Law, the recordation of appropriate merger
documents as required by Delaware Law). This Merger Agreement has been duly and
validly executed and delivered by the Company and, assuming the due
authorization, execution and delivery by the Offerors, constitutes a legal,
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms.
(b) (i) The Special Committee has been duly authorized and constituted,
(ii) the Special Committee, at a meeting thereof duly called and held on June
10, 2003, (A) determined that this Merger Agreement, the Offer and the Merger
are fair to and in the best interests of the Company and its stockholders (other
than the Offerors and their affiliates), (B) determined that this Merger
Agreement, the Offer and the Merger should be approved and declared advisable by
the Board and (C) resolved to recommend that the Company's stockholders accept
the Offer and tender their Shares pursuant thereto and (iii) the Board, at a
meeting thereof duly called and held on June 10, 2003, (A) determined that this
Merger Agreement and the Merger are fair to and in the best interests of the
Company and its stockholders (other than the Offerors and their affiliates), (B)
approved and declared advisable this Merger Agreement, the Offer and the Merger
and (C) resolved to recommend that the Company's stockholders accept the Offer
and tender their Shares pursuant thereto.
SECTION 4.02 Brokers. No broker, finder or investment banker (other
than the Financial Advisor) is entitled to any brokerage, finder's or other fee
or commission in connection with the Offer or the Merger based upon arrangements
made by or on behalf of the Company.
SECTION 4.03 Opinion of Financial Advisor. The Special Committee has
received the written opinion of Financial Advisor dated the date of this Merger
Agreement to the effect that, subject to the assumptions and qualifications set
forth
10
therein, as of the date of this Merger Agreement, the consideration to be
received by the stockholders of the Company (other than the Offerors and their
affiliates) in exchange for each of their Shares pursuant to each of the Offer
and the Merger is fair to the stockholders of the Company (other than the
Offerors and their affiliates) from a financial point of view and such opinion
has not been withdrawn. A true and complete copy of such opinion has been
delivered to the Offerors.
SECTION 4.04 State Takeover Statutes. Neither the restrictions on
business combinations contained in Section 203 of the Delaware Law, nor any
other state takeover statute or similar statute or regulations, applicable (or
that purport to be applicable) to the Offer, the Merger, this Merger Agreement
or any of the transactions contemplated hereby or thereby, or to any of the
parties hereto or their affiliates as a result of such transactions, is
reasonably expected to prevent or materially delay the consummation of the Offer
or the Merger.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE OFFERORS
Each of the Offerors hereby jointly and severally represents and
warrants to the Company that:
SECTION 5.01 Organization and Qualification. Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has the requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as it is now being
conducted. Purchaser is duly qualified and in good standing to do business in
each jurisdiction in which the nature of the business conducted by it or the
ownership or leasing of its properties makes such qualification necessary, other
than where the failure to be so duly qualified and in good standing could not,
individually or in the aggregate, reasonably be expected to prevent or
materially delay the consummation of the Offer or the Merger.
SECTION 5.02 Authority Relative to This Merger Agreement. (a) Purchaser
has all necessary corporate power and authority to execute and deliver this
Merger Agreement, to perform its obligations hereunder and to consummate the
Offer, the Merger and the other transactions contemplated hereby. Xx. Xxxxxxx
has full capacity to execute and deliver this Merger Agreement, to perform his
obligations hereunder and to consummate the Offer, the Merger and other
transactions contemplated hereby. The execution and delivery of this Merger
Agreement by Purchaser and the consummation by Purchaser of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action, and no other corporate proceedings on the part of Purchaser
are necessary to authorize this Merger Agreement or to consummate the
transactions contemplated hereby (other than, with respect to the Merger, the
execution of a stockholder written consent by Purchaser, to the extent required
by Delaware Law, and the filing and recordation of appropriate merger documents
as required by Delaware Law). This Merger Agreement has been duly and validly
executed and delivered by the Offerors and, assuming the due authorization,
execution and delivery by the Company,
11
constitutes a legal, valid and binding obligation of the Offerors enforceable
against each of them in accordance with its terms.
(b) Purchaser, by written consent of its Board of Directors adopted on
June 10, 2003, (i) determined that this Merger Agreement, the Offer and the
Merger are fair to and in the best interests of Purchaser and its stockholder
and (ii) approved and declared advisable this Merger Agreement, the Offer and
the Merger.
SECTION 5.03 Financing. Purchaser has sufficient funds available to pay
the aggregate consideration payable as a result of the consummation of the
Offer, the Merger and other transactions contemplated hereby and to pay all
Expenses (as hereinafter defined) incurred by it related to the transactions
contemplated by this Merger Agreement.
SECTION 5.04 Operations of Purchaser. Purchaser has been formed solely
for the purpose of engaging in the transactions contemplated by this Merger
Agreement and the Offer Documents and prior to the Effective Time will have
engaged in no other business activities and will have incurred no liabilities or
obligations other than as contemplated herein.
SECTION 5.05 Brokers. No broker, finder or investment banker is
entitled to any brokerage, finders or other fee or commission in connection with
the Offer or the Merger based upon arrangements made by or on behalf of the
Offerors.
ARTICLE 6
COVENANTS
SECTION 6.01 Notification of Certain Matters. (a) The Company and the
Offerors shall give prompt notice to the other party of (i) the occurrence or
nonoccurrence of any event the occurrence or nonoccurrence of which would be
likely to cause (A) any representation or warranty contained in this Merger
Agreement to be untrue or inaccurate or (B) any covenant, condition or agreement
contained in this Merger Agreement not to be complied with or satisfied and (ii)
any failure of the Company or the Offerors, as the case may be, to comply with
or satisfy any covenant, condition or agreement to be complied with or satisfied
by it hereunder; provided, however, that the delivery of any notice pursuant to
this Section 6.02 shall not limit or otherwise affect the remedies available
hereunder to the Offerors or the Company.
SECTION 6.02 Merger Without Stockholders' Meeting. If, as a result of
the purchase of Shares pursuant to the Offer and compliance with the terms of
this Section 6.03, Purchaser owns in the aggregate at least 90% of the Shares
outstanding upon completion of the Offer, the parties hereto agree to take all
necessary and appropriate action to cause the Merger to become effective as soon
as practicable after the satisfaction or waiver of the conditions to the Merger
set forth in Article 7 without a meeting of stockholders of the Company, in
accordance with Section 253 of the Delaware Law.
SECTION 6.03 Directors' and Officers' Indemnification and Insur-
12
ance. (a) Indemnity. From and after the Effective Time, the Offerors will, and
will cause the Surviving Corporation to, subject to applicable Law, fulfill and
honor in all respects the obligations of the Company pursuant to any
indemnification agreements between the Company and its directors and officers
immediately prior to the Effective Time (the "Indemnified Parties") and any
provisions of the Company's Certificate of Incorporation or Bylaws and any
provisions of applicable Law relating to indemnification of directors and
officers of the Company. The Certificate of Incorporation and Bylaws of the
Surviving Corporation will contain provisions with respect to exculpation and
indemnification that are comparable to the provisions contained in the
Certificate of Incorporation and Bylaws of the Company as in effect on the date
hereof, which provisions will not be amended, repealed or otherwise modified for
a period of six years from the Effective Time in any manner that would adversely
affect the rights thereunder of individuals who, immediately prior to the
Effective Time, were directors, officers, employees or agents of the Company,
unless such modification is required by applicable Law.
(b) Insurance. For a period of three years after the Effective Time,
the Offerors shall cause, and shall cause the Surviving Corporation, to be
maintained in effect for the benefit of the Company's current directors and
officers liability insurance covering those persons who are covered by the
Company's directors' and officers' liability insurance policy as of the date
hereof on terms comparable to such policy for a period of three years; provided,
however, that the Surviving Corporation has no obligation to provide or maintain
levels of coverage in excess of those to which directors and officers of the
Company are entitled on the date hereof.
(c) Obligation. For six years after the Effective Time, the Surviving
Corporation shall, and the Offerors shall cause the Surviving Corporation to,
indemnify and hold harmless the Indemnified Parties to the fullest extent
permitted under applicable Law, with respect to all actions or omissions by them
prior to the Effective Time in their capacities as officers or directors of the
Company or any of its subsidiaries (including with respect to all acts or
omissions by them in their capacities as officers or directors of the Company or
any of its subsidiaries in connection with the adoption and approval of this
Merger Agreement and the transactions contemplated hereby). In the event any
claim in respect of which indemnification is available pursuant to the foregoing
provisions is asserted or made within such six-year period, all rights to
indemnification shall continue until such claim is disposed of or all judgments,
orders, decrees or other rulings in connection with such claim are duly
satisfied.
SECTION 6.04 Further Action; Consents; Filings. Upon the terms and
subject to the conditions hereof, each of the parties hereto shall use its
reasonable best efforts to (a) take, or cause to be taken, all appropriate
action and do, or cause to be done, all things necessary, proper or advisable
under applicable Law or otherwise to consummate and make effective the Offer and
the Merger and the other transactions contemplated by this Merger Agreement, (b)
obtain from Governmental Entities or any other person any consents, licenses,
permits, waivers, approvals, authorizations or orders required to be obtained or
made by Purchaser or the Company or any of their subsidiaries in connection with
the authorization, execution and delivery of this Merger Agreement and the
consummation of the Offer and the Merger and (c) make all necessary filings, and
13
thereafter make any other required submissions, with respect to this Merger
Agreement, the Offer and the Merger and the other transactions contemplated by
this Merger Agreement that are required under the Exchange Act, the Securities
Act and any other applicable Law. The parties hereto shall cooperate with each
other in connection with the making of all such filings, including by providing
copies of all such documents to the non-filing party and its advisors prior to
filing and, if requested, by accepting all reasonable additions, deletions or
changes suggested in connection therewith.
SECTION 6.05 Public Announcements. The Offerors and the Company
(including, without limitation, the Special Committee) shall consult with each
other before issuing any press release or otherwise making any public statements
with respect to this Merger Agreement, the Offer or the Merger and shall not
issue any such press release or make any such public statement without the prior
consent of the other parties hereto (which consent shall not be unreasonably
withheld or delayed), except as may be required by Law or any listing agreement
with the NYSE to which the Company is a party. Notwithstanding anything herein
to the contrary, from the commencement of discussions with respect to the
transactions contemplated by this Agreement, the parties (and each employee,
representative or other agent of any of the parties) confirm they have been
permitted (and may continue) to disclose to any and all persons, without
limitation of any kind, the tax treatment, tax structure and any facts
(including opinions or other analysis) that may be relevant to the tax treatment
or tax structure of the transactions contemplated by this Agreement that have
been or will be provided to such parties; provided, however, that no party (nor
any employee, representative or other agent of any of the parties) may, pursuant
to the authority to disclose granted and/or confirmed in this sentence, disclose
any other information that is not relevant to understanding the tax treatment
and tax structure of the transaction (including the identity of any party and
any information that could lead another to determine the identity of any party),
or any other information to the extent that such disclosure could result in a
violation of any applicable Law.
SECTION 6.06 Reasonable Best Efforts and Further Assurances. Subject to
the terms and conditions hereof, each of the parties to this Merger Agreement
shall use its reasonable best efforts to effect the transactions contemplated
hereby and to fulfill and cause to be fulfilled the conditions to the Offer and
the Merger under this Merger Agreement. Subject to the terms and conditions
hereof, each party hereto (including, in the case of the Company, the Special
Committee), at the reasonable request of another party hereto, shall execute and
deliver such other instruments and do and perform such other acts and things as
may be necessary or desirable for effecting completely the consummation of this
Merger Agreement and the transactions contemplated hereby.
ARTICLE 7
CONDITIONS TO THE MERGER
SECTION 7.01 Conditions to the Obligations of Each Party. The
obligations of the Offerors and the Company to consummate the Merger are subject
to the satisfaction or waiver (where permissible) of the following conditions:
14
(a) No Order. No Governmental Entity (as defined herein) shall have
enacted, issued, promulgated, enforced or entered any Law, executive order or
award (whether temporary, preliminary or permanent) (an "Order") that is then in
effect and has the effect of making the Merger illegal or otherwise prohibiting
consummation of the Merger.
(b) Purchase of Shares. Purchaser shall have purchased Shares pursuant
to the Offer.
ARTICLE 8
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01 Termination. This Merger Agreement may be terminated and
the Offer and the Merger may be abandoned at any time prior to the Effective
Time as follows:
(a) By the Company (expressed in a resolution adopted by both the
Special Committee and the Board) and Xx. Xxxxxxx (on behalf of himself and
Purchaser);
(b) By either Xx. Xxxxxxx (on behalf of himself and Purchaser) or the
Company (expressed in a resolution adopted by both the Special Committee and the
Board), if any Governmental Entity shall have enacted, issued, promulgated,
enforced or entered any Order or taken any other action permanently restraining,
enjoining or otherwise prohibiting the consummation of the Offer or the Merger;
(c) By Xx. Xxxxxxx (on behalf of himself and Purchaser), if the Special
Committee fails to reaffirm (publicly, if so requested) its recommendation in
favor of the adoption and approval of the Merger Agreement and that the
shareholders of the Company accept the Offer and tender their Shares to
Purchaser pursuant to the Offer within three (3) calendar days after the
Offerors request in writing that such recommendation be reaffirmed;
(d) By either Xx. Xxxxxxx (on behalf of himself and Purchaser) or the
Company (expressed in a resolution adopted by the Special Committee), if as a
result of any of the Offer Conditions being incapable of being satisfied (i) the
Offerors shall have failed to commence the Offer within five business days
following the date of this Merger Agreement or (ii) the Offer shall have expired
without any Shares being purchased pursuant thereto; provided, however, that the
right to terminate this Merger Agreement pursuant to this Section 8.01(d) shall
not be available to any party whose failure to fulfill any obligation under this
Merger Agreement or the Offer has been the cause of, or resulted in, the failure
of the Shares to have been purchased pursuant to the Offer;
(e) By either Xx. Xxxxxxx (on behalf of himself and Purchaser) or the
Company (expressed in a resolution adopted by both the Special Committee and the
Board), if the Offer has not been consummated on or before September 30, 2003;
provided, how-
15
ever, that the right to terminate this Merger Agreement pursuant to this Section
8.01(e) shall not be available to any party whose failure to fulfill any
obligation under this Merger Agreement or the Offer has been the cause of, or
resulted in, the failure of the Offer to have been consummated by such date;
(f) by the Company (expressed in a resolution adopted by both the
Special Committee and the Board), (i) if the Offerors shall have materially
breached any of their covenants, obligations or other agreements under this
Merger Agreement, or (ii) if the representations and warranties of the Offerors
set forth in this Merger Agreement shall not be true and correct (without giving
effect to any limitation as to "materiality" or "Material Adverse Effect" set
forth therein) at and as of the date of the Agreement and as of the expiration
of the date of termination of this Merger Agreement (except to the extent
expressly made as of an earlier date, in which case as of such date) except
where the failure to be so true and correct, individually or in the aggregate
would not reasonably be expected to materially delay or prevent the commencement
of the Offer or otherwise materially impair the ability of the Offerors to
fulfill their obligations in respect of the Offer; provided, further that the
breach of the covenant, obligation, agreement, representation or warranty is
incapable of being or has not been cured by the Offerors prior to or on the date
which is ten business days immediately following written notice by the Company
to the Offerors of such breach or failure to perform; or
(g) by Xx. Xxxxxxx (on behalf of himself and Purchaser), (i) if the
Company shall have materially breached any of its respective covenants,
obligations or other agreements under this Merger Agreement, or (ii) if the
representations and warranties of the Company set forth in this Merger Agreement
shall not be true and correct (without giving effect to any limitation as to
"materiality" set forth therein) at and as of the date of the Agreement and as
of the expiration of the date of termination of this Merger Agreement (except to
the extent expressly made as of an earlier date, in which case as of such date),
except where the failure to be so true and correct, individually or in the
aggregate would not reasonably be expected to have, a Company Material Adverse
Effect; provided, further that the breach of the covenant, obligation,
agreement, representation or warranty is incapable of being or has not been
cured by the Company prior to or on the date which is ten business days
immediately following written notice by the Offerors to the Company of such
breach or failure to perform.
The term "Company Material Adverse Effect" means any change, effect,
event or circumstance that, individually or when taken together with all other
such changes, effects, events or circumstances, is or is reasonably likely to be
materially adverse to the financial condition, assets, liabilities, business,
operations or earnings of the Company and its subsidiaries, taken as a whole,
other than (and these shall be disregarded in determining whether there has been
a Company Material Adverse Effect) any such change, effect, event or
circumstance arising out of or resulting from (a) general economic conditions,
(b) changes in or generally affecting the industry in which the Company
operates, (c) the transactions contemplated by this Merger Agreement or the
public announcement thereof, or (d) changes in the market value of the
investment portfolio of the Company.
16
The right of any party hereto to terminate this Merger Agreement
pursuant to this Section 8.01 shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any party hereto,
any person controlling any such party or any of their respective officers or
directors, whether prior to or after the execution of this Merger Agreement.
SECTION 8.02 Effect of Termination. Except as provided in Section 8.02,
in the event of termination of this Merger Agreement pursuant to Section 8.02,
this Merger Agreement shall forthwith become void, there shall be no liability
under this Merger Agreement on the part of the Offerors or the Company or any of
their respective officers or directors, and all rights and obligations of each
party hereto shall cease; provided, however, that nothing herein shall relieve
any party from liability for the willful breach of any of its representations,
warranties, covenants or agreements set forth in this Merger Agreement.
SECTION 8.03 Amendment. To the fullest extent permitted by Delaware
Law, this Merger Agreement may be amended by the parties hereto by action taken
by or on behalf of their respective boards of directors or sole shareholders at
any time prior to the Effective Time; provided, however, that any such amendment
on behalf of the Company must be approved by the Special Committee. This Merger
Agreement may not be amended except by an instrument in writing signed by the
parties hereto.
SECTION 8.04 Waiver. At any time prior to the Effective Time, any party
hereto may (a) extend the time for the performance of any obligation or other
act of another party hereto, (b) waive any inaccuracy in the representations and
warranties of another party contained herein or in any document delivered
pursuant hereto and (c) waive compliance with any agreement of another party or
condition to its own obligations contained herein; provided, however, that, if
the Company seeks to make such extension or waiver as provided in clause (a),
(b) or (c) above, it must first obtain the approval of the Special Committee.
Any such extension or waiver shall be valid if set forth in an instrument in
writing signed by the party or parties to be bound thereby.
SECTION 8.05 Expenses. Except as provided in the Schedule TO, all
Expenses (as defined below) incurred in connection with this Merger Agreement
and the transactions contemplated by this Merger Agreement shall be paid by the
party incurring such Expenses, whether or not the Offer, the Merger or any other
transaction is consummated. "Expenses" as used in this Merger Agreement shall
include all reasonable out-of-pocket expenses (including, without limitation,
all fees and expenses of counsel, accountants, investment bankers, experts and
consultants to a party hereto and its affiliates) incurred by a party or on its
behalf in connection with or related to the authorization, preparation,
negotiation, execution and performance of this Merger Agreement and the Offer
Documents and the transactions contemplated hereby and thereby.
17
ARTICLE 9
GENERAL PROVISIONS
SECTION 9.01 Non-Survival of Representations, Warranties and
Agreements. The representations, warranties and agreements in this Merger
Agreement and in any certificate delivered pursuant hereto shall terminate at
the Effective Time or upon the termination of this Merger Agreement pursuant to
Section 8.01, as the case may be, except that this Section 9.01 shall not limit
any covenant or agreement of the parties which by its terms contemplates
performance after the Effective Time or after termination of this Merger
Agreement.
SECTION 9.02 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by facsimile, by courier service or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be specified
in a notice given in accordance with this Section 9.02):
if to Purchaser:
Atalanta Acqusition Comapny
x/x Xxxxxx Xxxxxxx
Xxxxxxxx/Xxxxxxx Xxxxxxx Xxxxxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
if to the Company:
Atalanta/Sosnoff Capital Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Special Committee of the Board of Directors
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
and
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
00
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxx and Xxxx Xxxxxxxx
SECTION 9.03 Certain Definitions. For purposes of this Merger
Agreement, the term:
(a) "affiliate" of a specified person means a person who directly or
indirectly through one or more intermediaries controls, is controlled by, or is
under common control with such specified person;
(b) "business day" means any day on which the principal offices of the
SEC in Washington, D.C. are open to accept filings, or, in the case of
determining a date when any payment is due, any day on which banks are not
required or authorized to close in The City of New York;
(c) "control" (including the terms "controlled by" and "under common
control with") means the possession, directly or indirectly or as trustee or
executor, of the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting securities, as
trustee or executor, by contract or credit arrangement or otherwise;
(d) "Governmental Entity" means any supranational, national, state,
municipal, local or foreign government, any instrumentality, subdivision, court,
administrative agency or commission or other governmental authority or
instrumentality, or any quasi-governmental or private body exercising any
regulatory, taxing, importing or other governmental or quasi-governmental
authority;
(e) "person" means an individual, corporation, partnership, limited
partnership, syndicate, person (including, without limitation, a "person" as
defined in Section 13d(3) of the Exchange Act), trust, association or entity or
government, political subdivision, agency or instrumentality of a government;
and
(f) "subsidiary" or "subsidiaries" of any person means any corporation,
partnership, joint venture or other legal entity of which such person (either
alone or through or together with any other subsidiary) owns, directly or
indirectly, more than 50% of the stock or other equity interests, the holders of
which are generally entitled to vote for the election of the board of directors
or other governing body of such corporation or other legal entity; provided,
however, that for purposes of the representations and the warranties of
Purchaser in Article 5, and the covenants and other agreements of Purchaser in
Article 6, except as otherwise specifically provided therein, the "subsidiaries"
of Purchaser shall not include the Company or any subsidiaries of the Company.
SECTION 9.04 Severability. If any term or other provision of this
Merger Agreement is invalid, illegal or incapable of being enforced by any rule
of Law or
19
public policy, all other conditions and provisions of this Merger Agreement
shall nevertheless remain in full force and effect as long as the economic or
legal substance of the Merger is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Merger Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable
manner in order that the Merger be consummated as originally contemplated to the
fullest extent possible.
SECTION 9.05 Entire Agreement; Assignment. This Merger Agreement
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior agreements and undertakings, both written
and oral, between the parties, with respect to the subject matter hereof. This
Merger Agreement shall not be assigned by operation of Law or otherwise, except
that Purchaser may assign all or any of its rights and obligations hereunder to
any affiliate of Purchaser, provided that no such assignment shall relieve
Purchaser of its obligations hereunder if such assignee does not perform such
obligations.
SECTION 9.06 Parties in Interest. This Merger Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and nothing
in this Merger Agreement, express or implied, is intended to or shall confer
upon any other person any right, benefit or remedy of any nature whatsoever
under or by reason of this Merger Agreement; provided that the rights set forth
in Section 6.03 are intended to benefit each Indemnified Party.
SECTION 9.07 Governing Law. This Merger Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware applicable
to contracts executed in and to be performed in that State.
SECTION 9.08 Headings. The descriptive headings contained in this
Merger Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Merger Agreement.
SECTION 9.09 Counterparts. This Merger Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by each party hereto in separate counterparts, each of which when executed and
delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
SECTION 9.10 Consent to Jurisdiction. Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
exclusive jurisdiction of any Delaware State court, or Federal court of the
United States of America, sitting in Delaware, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this Merger
Agreement or the agreements delivered in connection herewith or the transactions
contemplated hereby or thereby or for recognition or enforcement of any judgment
relating thereto, and each of the parties hereby irrevocably and unconditionally
(a) agrees not to commence any such action or
20
proceeding except in such courts, (b) agrees that any claim in respect of any
such action or proceeding may be heard and determined in such Delaware State
court or, to the extent permitted by Law, in such Federal court, (c) waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any such action or
proceeding in any such Delaware State or Federal court, and (d) waives, to the
fullest extent permitted by Law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such Delaware State or Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by Law.
Each party to this Merger Agreement irrevocably consents to service of process
in the manner provided for notices in Section 9.02. Nothing in this Merger
Agreement shall affect the right of any party to this Merger Agreement to serve
process in any other manner permitted by Law.
SECTION 9.11 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES
THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS MERGER AGREEMENT IS LIKELY TO
INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
MERGER AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS
AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS
VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS MERGER AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
[Remainder of page intentionally left blank.]
21
IN WITNESS WHEREOF, each of the parties hereto has caused this Merger
Agreement to be executed as of the date first written above by its respective
officers thereunto duly authorized.
ATALANTA ACQUISITION COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
/s/ Xxxxxx X. Xxxxxxx
------------------------
Xxxxxx X. Xxxxxxx
ATALANTA/SOSNOFF CAPITAL
CORPORATION
By: /s/ Xxx X. Xxxxxxxxx
------------------------
Name: Xxx X. Xxxxxxxxx
Title: Director and Authorized Person
ANNEX A
Conditions To The Offer
-----------------------
Notwithstanding any other provisions of the Offer, and in addition to
(and not in limitation of) Purchaser's rights to extend and amend the Offer at
any time in its sole discretion in accordance with the terms (and subject to the
limitations) of the Merger Agreement, Purchaser will not be required to accept
for payment or, subject to any applicable rules and regulations of the SEC,
including Rule 14e-l(c) under the Exchange Act, pay for, and may delay the
acceptance for payment of, or, subject to the restriction referred to above, the
payment for, any validly tendered Shares (whether or not any Shares theretofore
have been accepted for payment or paid for pursuant to the Offer), and may
terminate the Offer as to any Shares not then paid for, if (i) immediately prior
to the Expiration Date, the Minimum Condition has not been satisfied or (ii) at
any time on or after the commencement of the Offer and immediately prior to the
Expiration Date, any of the following events occur (other than as a direct or
indirect result of any action or inaction by Purchaser or Xx. Xxxxxxx):
o There has been any statute, rule, regulation, judgment, order
or injunction promulgated, entered, enforced, enacted, issued
or rendered applicable to the Offer or the Merger by any
domestic or foreign federal or state governmental regulatory
or administrative agency or authority or court or legislative
body or commission which (i) prohibits or imposes any material
limitations on, Purchaser's ownership or operation of all or a
material portion of the Company's businesses or assets, (ii)
prohibits or makes illegal the acceptance for payment, payment
for or purchase of Shares or the consummation of the Offer or
the Merger, (iii) results in a material delay in or restricts
the ability of Purchaser, or renders Purchaser unable, to
accept for payment, pay for or purchase some or all of the
Shares, or (iv) imposes material limitations on the ability of
Purchaser effectively to exercise full rights of ownership of
the Shares, including, without limitation, the right to vote
the Shares purchased by it on all matters properly presented
to the Company's stockholders;
o The representations and warranties of the Company contained in
the Merger Agreement and in any document delivered in
connection with the Merger Agreement are not true and correct
(without giving effect to any qualification as to
"materiality" set forth in the Merger Agreement) both when
made and at and as of the Expiration Date, as if made at and
as of such time (except to the extent such representations and
warranties speak of a specified earlier date, in which case
such representations and warranties are not true and correct
as of such date), except where the failure of such
representations and warranties to be so true and correct
(without giving effect to any qualification as to
"materiality" set forth in the Merger Agreement) would not
reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect;
o The Board, based on the recommendation of the Special
Committee, has (including by amendment to the Schedule 14D-9)
withdrawn, amended or modified in a manner adverse to
Purchaser its approval or recommendation of the Offer, the
Merger or the Merger Agreement or has publicly announced or
resolved to do any of the foregoing;
o The Company, acting through the Board (as agreed to by the
Special Committee), and Purchaser and Xx. Xxxxxxx have agreed
that Purchaser and Xx. Xxxxxxx will terminate the Offer or
postpone the acceptance for payment of or payment for Shares
thereunder;
o Any of the following have occurred: (1) any general suspension
of trading in, or limitation on prices for, securities on the
NYSE, the American Stock Exchange or the NASDAQ for a period
in excess of 24 hours (excluding suspensions or limitations
resulting solely from physical damage or interference with
such exchanges not related to market conditions), (2) a
declaration of a banking moratorium or any suspension of
payments in respect of banks in the United States (whether or
not mandatory), (3) a commencement or material worsening of a
war, armed hostilities or other national or international
calamity directly or indirectly involving the United States or
any terrorist activities which would reasonably be expected to
have a Company Material Adverse Effect or materially and
adversely affect the ability of financial institutions in the
United States to extend credit or syndicate loans, other than
the current U.S. military operations in Iraq, (4) any material
limitation (whether or not mandatory) by any Governmental
Entity on the extension of credit generally by banks or other
financial institutions, or (5) a change in general financial,
bank or capital market conditions which materially and
adversely affects the ability of financial institutions in the
United States to extend credit or syndicate loans;
o The Company has not performed, in all material respects, all
of its covenants and agreements contained the Merger Agreement
that are required to be performed by the Company at or prior
to the Expiration Date;
o From the date of the Merger Agreement through the Expiration
Date, there has occurred any event that has had a Company
Material Adverse Effect;
o The death of Xx. Xxxxxxx; or
o The Merger Agreement has been terminated in accordance with
its terms.
The above conditions are for the sole benefit of Purchaser and Xx.
Xxxxxxx and may, subject to the terms (and limitations) of the Merger Agreement,
be asserted or, if applicable, waived by them, in whole or in part, at any time
and from time to time prior to the Expiration Date in the sole discretion of
Purchaser and Xx. Xxxxxxx. The failure by Purchaser or Xx. Xxxxxxx at any time
to exercise any of the foregoing rights will not be deemed a waiver of any such
right. The waiver of any such right with respect to particu-
lar facts and circumstances will not be deemed a waiver with respect to any
other facts and circumstances and each such right will be deemed an ongoing
right that may be asserted at any time and from time to time.
Notwithstanding the fact that Purchaser and Xx. Xxxxxxx reserve the
right to assert the occurrence of a condition following acceptance of properly
tendered Shares for payment but prior to payment for such Shares, Purchaser will
either promptly pay for such Shares or promptly return such Shares. A public
announcement will be made of a material change in, or waiver of, such
conditions, and the Offer may, in certain circumstances, be extended in
connection with any such change or waiver. All conditions must be satisfied or
waived prior to the commencement of any Subsequent Offering Period.
