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EXHIBIT 99.5
AGREEMENT AND PLAN OF MERGER
AMONG
VORNADO REALTY TRUST,
PORTLAND PARENT, INC.
PORTLAND STORAGE ACQUISITION CO.,
AND
AMERICOLD CORPORATION
Dated as of September 26, 1997
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS......................................................1
ARTICLE II
THE MERGER.......................................................7
2.1 The Merger..............................................7
2.2 Articles of Incorporation...............................8
2.3 By-Laws.................................................8
2.4 Directors and Officers..................................8
2.5 Shareholders' Meeting...................................9
2.6 Effective Time..........................................9
ARTICLE III
CONVERSION OF SHARES.............................................9
3.1 Americold Stock.........................................9
3.2 Options................................................11
3.3 Dissenting Shares......................................11
3.4 Acquisition Co. Common Stock...........................11
3.5 Payment for Shares. ..................................12
3.6 Adjustment to Prevent Dilution.........................15
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF AMERICOLD.....................15
4.1 Organization, etc......................................15
4.2 Authorization and Binding Obligation...................17
4.3 Capitalization.........................................18
4.4 Consents and Approvals; No Conflicts...................19
4.5 Financial Statements; SEC Reports......................20
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4.6 Undisclosed Liabilities................................21
4.7 Governmental Approvals and Authorizations..............22
4.8 Compliance with Laws...................................22
4.9 Absence of Certain Payments............................22
4.10 Real Property..........................................23
4.11 Property...............................................24
4.12 Intellectual Property..................................25
4.13 Absence of Conflicts of Interest.......................26
4.14 Contracts..............................................26
4.15 Labor Matters..........................................27
4.16 Employee Benefit Plans.................................27
4.17 Actions Pending........................................30
4.18 Affiliate Transactions.................................30
4.19 Absence of Certain Changes. ..........................30
4.20 Insurance..............................................30
4.21 Taxes..................................................31
4.22 Environmental Matters..................................32
4.23 Brokers, Finders, etc..................................34
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF VORNADO, THE PARENT AND ACQUISITION CO.......................34
5.1 Organization and Standing..............................34
5.2 Authorization and Binding Obligation...................35
5.3 Consents and Approvals; No Conflicts...................35
5.4 Litigation.............................................36
5.5 Finders and Investment Bankers.........................36
5.6 Financing, etc.........................................37
ARTICLE VI
COVENANTS.......................................................37
6.1 Conduct of Business....................................37
6.2 Third-Party Consents...................................40
6.3 Compliance with OBCA; Filings; Information
Statement..............................................40
6.4 Additional Agreements..................................42
6.5 Acquisition Proposals..................................42
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6.6 Public Announcements...................................43
6.7 Consent of the Parent..................................43
6.8 Transfer Taxes.........................................44
6.9 Officers' and Directors' Insurance;
Indemnification of Officers and Directors..............44
6.10 Americold Indebtedness.................................44
6.11 Access.................................................45
6.12 Management Arrangements................................45
ARTICLE VII
CLOSING CONDITIONS..............................................45
7.1 Conditions Precedent to the Obligations of
All Parties............................................45
7.2 Additional Conditions to the Obligation of
Americold..............................................46
7.3 Conditions Precedent to Obligations of
Vornado, the Parent and Acquisition Co.................47
ARTICLE VIII
CLOSING.........................................................49
8.1 Time and Place.........................................49
8.2 Filings at the Closing; Other Actions..................49
ARTICLE IX
NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
COVENANTS.......................................................49
ARTICLE X
TERMINATION RIGHTS..............................................49
10.1 Termination............................................49
10.2 Procedure and Effect of Termination....................50
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ARTICLE XI
OTHER PROVISIONS................................................51
11.1 Amendment and Modification.............................51
11.2 Benefit and Assignment.................................51
11.3 No Third-Party Beneficiaries...........................51
11.4 Entire Agreement.......................................51
11.5 Expenses...............................................52
11.6 Headings...............................................52
11.7 Choice of Law..........................................52
11.8 Notices................................................52
11.9 Counterparts...........................................54
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SCHEDULES
Schedule 1.5 Americold Indebtedness
Schedule 1.38 Knowledge
Schedule 1.48 Options
Schedule 2.4 Officers of Surviving Corporation
Schedule 4.1(a) Americold Qualification
Schedule 4.1(b) Americold Subsidiaries;
Qualification
Schedule 4.1(c) Third Party Interests
Schedule 4.3 Capitalization
Schedule 4.4 Consents and Approvals; No
Conflicts
Schedule 4.5 Financial Statements
Schedule 4.6 Undisclosed Liabilities
Schedule 4.7 Governmental Approvals and
Authorizations
Schedule 4.8 Compliance with Laws
Schedule 4.10 Real Property
Schedule 4.11 Property
Schedule 4.12 Intellectual Property
Schedule 4.13 Contracts
Schedule 4.14 Conflicts of Interest
Schedule 4.15 Labor Matters
Schedule 4.16 Plans
Schedule 4.17 Litigation
Schedule 4.18 Affiliate Transactions
Schedule 4.19 Adverse Changes
Schedule 4.20 Insurance
Schedule 4.21 Taxes
Schedule 4.22 Environmental Matters
Schedule 4.23 Americold Finders
Schedule 6.1 Conduct of Business
Schedule 6.1(d) Certain Agreements
Schedule 6.1(g) Financing Matters
Schedule 6.1(h) Employee Matters
Schedule 6.2 Third Party Consents
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EXHIBITS
Exhibit A Americold Principal Shareholders
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of September 26, 1997 (the
"Agreement"), among VORNADO REALTY TRUST, a Maryland real estate investment
trust ("Vornado"), PORTLAND PARENT, INC., a Delaware corporation (the "Parent"),
PORTLAND STORAGE ACQUISITION CO., a Delaware corporation and a wholly-owned
subsidiary of the Parent ("Acquisition Co."), and AMERICOLD CORPORATION, an
Oregon corporation ("Americold").
ARTICLE I
DEFINITIONS
Unless otherwise stated, the following terms when used herein have
the meanings assigned to them below.
1.1 "Acquisition Co." has the meaning set forth in the preamble to
this Agreement.
1.2 "Affiliate" means a Person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, the Person specified.
1.3 "Americold" has the meaning set forth in the preamble to this
Agreement.
1.4 "Americold Common Stock" means the common stock, par value $.01
per share, of Americold.
1.5 "Americold Indebtedness" means the indebtedness of Americold
under the agreements and instruments listed in Schedule 1.5 hereto.
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1.6 "Americold Preferred Stock" means the Series A Variable Rate
Cumulative Preferred Stock, par value $100 per share, of Americold.
1.7 "Americold Principal Shareholder" means each of the Persons set
forth on Exhibit A to this Agreement.
1.8 "Americold Representatives" has the meaning set forth in Section
6.5 hereof.
1.9 "Americold Shareholders' Meeting" has the meaning set forth in
Section 2.5 hereof.
1.10 "Americold Subsidiary" means any corporation, partnership,
limited liability company, joint venture or other entity of which Americold
owns, directly or indirectly, at least a majority of the securities or other
ownership interests having by the terms thereof ordinary voting power or
otherwise has the right or power to elect a majority of the board of directors
or other Persons performing similar functions of such corporation, partnership,
limited liability company, joint venture or other entity.
1.11 "Applicable Law" means all applicable provisions of all (i)
constitutions, treaties, statutes, laws (including, but not limited to, the
common law), rules, regulations, ordinances, codes or orders of any Governmental
Authority and (ii) orders, decisions, rulings, injunctions, judgments, awards
and decrees or consents of or agreements with any Governmental Authority.
1.12 "Articles of Merger" has the meaning set forth in Section 2.6
hereof.
1.13 "Board" has the meaning set forth in Section 4.2(b) hereof.
1.14 "Business Day," whether or not initially capitalized, means
every day of the week excluding Saturdays, Sundays and federal holidays.
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1.15 "Certificates" has the meaning set forth in Section 3.5(a)
hereof.
1.16 "Closing" means the closing of the Merger.
1.17 "Closing Date" means the date on which the Closing occurs.
1.18 "Code" means the Internal Revenue Code of 1986, as amended,
together with all regulations and rulings issued thereunder by any Governmental
Authority.
1.19 "Common Stock Consideration" means $20.70.
1.20 "Contracts" has the meaning set forth in Section 4.14 hereof.
1.21 "DGCL" means the Delaware General Corporation Law.
1.22 "Dissenting Shares" has the meaning set forth in Section 3.3
hereof.
1.23 "Effective Time" has the meaning set forth in Section 2.6
hereof.
1.24 "Environmental Laws" means all Applicable Laws relating to the
protection of human health or the environment.
1.25 "ERISA" means the Employee Retirement Income Security Act of
1974, as amended, together with the regulations and rulings issued thereunder
by any Governmental Authority.
1.26 "Exchange Act" means the U.S. Securities Exchange Act of 1934,
as amended.
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1.27 "Exercise Price" means, with respect to any Option, the price
at which the holder of such Option is entitled to purchase one share of
Americold Common Stock upon exercise of such Option.
1.28 "Filings" has the meaning set forth in Section 6.3(b) hereof.
1.29 "Financial Statements" has the meaning set forth in Section 4.5
hereof.
1.30 "GAAP" means United States generally accepted accounting
principles.
1.31 "Governmental Approvals" has the meaning set forth in Section
4.7 hereof.
1.32 "Governmental Authority" means any nation or government, any
state or other political subdivision thereof or any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, in each case to the extent the same has jurisdiction over the
Person or property in question.
1.33 "HSRA" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1976, as amended, and the regulations adopted thereunder.
1.34 "Information Statement" has the meaning set forth in Section
2.5 hereof.
1.35 "IRS" means the Internal Revenue Service of the United States.
1.36 "Xxxxx" means Xxxxx & Company.
1.37 "Xxxxx Fee" has the meaning set forth in Section 7.2(f).
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1.38 "Knowledge" means, with respect to Americold or any Americold
Subsidiary, the actual knowledge of any of the individuals set forth on Schedule
1.38 hereto.
1.39 "Leased Property" has the meaning set forth in Section 4.10
hereof.
1.40 "Liens" means all debts, liens, security interests, mortgages,
pledges, judgments, trusts, adverse claims, liabilities, encumbrances, material
rights of way, charges which are liens and other impairments of title of any
kind other than Permitted Liens.
1.41 "Material Adverse Effect" means a material adverse effect on
the business, assets, properties, liabilities or financial condition of
Americold and the Americold Subsidiaries, taken as a whole, or on the ability of
Americold timely to consummate the transactions contemplated hereby.
1.42 "Merger" has the meaning set forth in Section 2.1 hereof.
1.43 "Merger Consideration" means the sum of the aggregate Common
Stock Consideration and the aggregate Preferred Stock Consideration.
1.44 "Merger Filings" has the meaning set forth in Section 2.6
hereof.
1.45 "Notice" has the meaning set forth in Section 6.3(a) hereof.
1.46 "OBCA" means the Oregon Business Corporation Act.
1.47 "Option Consideration" has the meaning set forth in Section 3.2
hereof.
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1.48 "Options" means the outstanding options to purchase Americold
Common Stock issued prior to the date hereof pursuant to the option plans listed
on Schedule 1.48 hereto.
1.49 "Owned Property" has the meaning set forth in Section 4.10
hereof.
1.50 "O.R.S." means the Oregon Revised Statutes, as amended.
1.51 "Parent" has the meaning set forth in the preamble to this
Agreement.
1.52 "Permitted Liens" has the meaning set forth in Section 4.10
hereof.
1.53 "Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
any Governmental Authority or any other government or political subdivision or
an agency or instrumentality thereof.
1.54 "Plans" has the meaning set forth in Section 4.16 hereof.
1.55 "Preferred Stock Consideration" means $100.00, plus the amount
per share of all accrued and unpaid dividends on the Preferred Stock to the
Closing Date.
1.56 "Real Property" has the meaning set forth in Section 4.10
hereof.
1.57 "Real Estate Laws" means any applicable building, zoning,
subdivision and other land use and similar laws, codes, ordinances, rules,
regulations and orders of Governmental Authorities.
1.58 "Returns" has the meaning set forth in Section 4.21 hereof.
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1.59 "SEC" means the United States Securities and Exchange
Commission.
1.60 "SEC Reports" has the meaning set forth in Section 4.5(b)
hereof.
1.61 "Surviving Corporation" has the meaning set forth in Section
2.1 hereof.
1.62 "Surviving Corporation Common Stock" has the meaning set forth
in Section 3.4 hereof.
1.63 "Tax" has the meaning set forth in Section 4.21 hereof.
1.64 "Takeover Statute" has the meaning set forth in Section 4.2(d)
hereof.
1.65 "Transfer Taxes" means all sales (including, without
limitation, bulk sales), use, value added, documentary, stamp, gross receipts,
registration, transfer, conveyance, excise, recording, license and other
similar Taxes and fees imposed by any Governmental Authority in connection with
a merger.
1.66 "Vornado" has the meaning set forth in the preamble of this
Agreement.
ARTICLE II
THE MERGER
2.1 The Merger. In accordance with the provisions of this Agreement
and the OBCA and the DGCL, at the Effective Time (i) Acquisition Co. shall be
merged with and into Americold (the "Merger"), and Americold shall be the
surviving corporation of the Merger (hereinafter sometimes called the "Surviving
Corporation") and shall continue its corporate existence under the laws of the
State of Oregon;
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(ii) the name, identity, existence, rights, privileges, powers, franchises,
properties and assets of Americold shall continue unaffected and unimpaired; and
(iii) the separate existence of Acquisition Co. shall cease, and all of the
rights, privileges, powers, franchises, properties and assets of Acquisition Co.
shall be vested in Americold. The name of the surviving corporation shall be
"Americold Corporation."
2.2 Articles of Incorporation. The Articles of Incorporation of
Americold in effect immediately prior to the Effective Time shall be the
Articles of Incorporation of the Surviving Corporation until thereafter amended
as provided therein or by law, except that Article III thereof shall be amended
and restated in its entirety as follows:
"The aggregate number of
shares which the
Corporation shall have
authority to issue is 1,000
shares of Common Stock, par
value $.01 per share."
2.3 By-Laws. The By-Laws of Americold in effect immediately prior to
the Effective Time shall be the By-Laws of the Surviving Corporation until
thereafter amended, altered or repealed as provided therein.
2.4 Directors and Officers. The directors of Acquisition Co.
immediately prior to the Effective Time shall be the directors of the Surviving
Corporation, each to hold office in accordance with the Articles of
Incorporation and By-Laws of the Surviving Corporation until his or her
successor is appointed and qualified or until his or her earlier death,
resignation or removal. The individuals set forth on Schedule 2.4 shall be the
officers of the Surviving Corporation, each to hold office in accordance with
the Articles of Incorporation and By-Laws of the Surviving Corporation until his
or her successor is appointed and
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qualified or until his or her earlier death, resignation or removal.
2.5 Shareholders' Meeting. Americold shall, as soon as practicable
following the date of this Agreement, duly call, convene and hold a meeting of
its shareholders (the "Americold Shareholders' Meeting") for the purpose of
obtaining the approval of this Agreement by the shareholders of Americold
entitled to vote thereon.
2.6 Effective Time. The Merger shall become effective upon the later
to occur of the filing of articles of merger with the Secretary of State of the
State of Oregon in accordance with O.R.S. 60.494 and 60.501 (the "Articles of
Merger") and the filing with the Secretary of State of the State of Delaware of
a certificate of merger in accordance with Sections 252 and 103 of the DGCL
(together with the Articles of Merger, the "Merger Filings"). The Merger Filings
shall be filed simultaneously with the Closing. The date and time when the
Merger shall become effective is hereinafter referred to as the "Effective
Time."
ARTICLE III
CONVERSION OF SHARES
3.1 Americold Stock. (a) At the Effective Time, by virtue of the
Merger and without any action on the part of the holder thereof, each share of
Americold Common Stock (except for (i) any shares of Americold Common Stock then
owned beneficially or of record by Vornado, the Parent or Acquisition Co. or any
other subsidiary of Vornado, (ii) shares of Americold Common Stock then held in
the treasury of Americold or any Americold Subsidiary, and (iii) Dissenting
Shares) issued and outstanding immediately prior to the Effective Time shall be
converted into the right to receive cash from the Parent in an amount per share
equal to the Common Stock Consideration.
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(b) At the Effective Time, by virtue of the Merger and without any
action on the part of the holder thereof, each share of Americold Preferred
Stock (except for (i) any shares of Americold Preferred Stock then owned
beneficially or of record by Vornado, the Parent or Acquisition Co. or any
other subsidiary of Vornado and (ii) shares of Americold Preferred Stock then
held in the treasury of Americold or any Americold Subsidiary) issued and
outstanding immediately prior to the Effective Time shall be converted into the
right to receive cash from the Parent in an amount per share equal to the
Preferred Stock Consideration.
(c) Each share of Americold Common Stock or Americold Preferred
Stock which is then owned beneficially or of record by Vornado, the Parent or
Acquisition Co. or any other direct or indirect subsidiary of Vornado shall, by
virtue of the Merger and without any action on the part of the holder thereof,
be canceled and retired and cease to exist, without any conversion thereof.
(d) Each share of Americold Common Stock or Americold Preferred
Stock held in the treasury of Americold or any Americold Subsidiary immediately
prior to the Effective Time shall, by virtue of the Merger, be canceled and
retired and cease to exist, without any conversion thereof.
(e) The holders of certificates representing shares of Americold
Common Stock or Americold Preferred Stock shall, as of the Effective Time, cease
to have any rights as shareholders of Americold, except such rights, if any, as
they may have pursuant to the OBCA, and, except as aforesaid, their sole right
shall be the right to receive their pro rata share of the Common Stock
Consideration or the Preferred Stock Consideration, as the case may be, as
determined and paid in the manner set forth in this Agreement.
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3.2 Options. Prior to the Effective Time, Americold shall take such
actions as may be necessary such that immediately prior to the Effective Time,
each Option outstanding immediately prior to the Effective Time, whether or not
then exercisable, shall be canceled and only entitle the holder thereof to
receive, as soon as reasonably practicable after the surrender thereof, cash in
an amount (the "Option Consideration") equal to the product of (i) the number of
shares of Americold Common Stock into which such Option is exercisable times
(ii) the excess of the Common Stock Consideration over the Exercise Price for
such Option.
3.3 Dissenting Shares. Notwithstanding anything in this Agreement to
the contrary, shares of Americold Common Stock which are held by shareholders
who shall have effectively dissented from the Merger and perfected their
dissenters' rights in accordance with the provisions of O.R.S. 60.564 and 60.571
(the "Dissenting Shares") shall not be converted into or be exchangeable for the
right to receive any Common Stock Consideration, but the holders thereof shall
be entitled to payment from the Surviving Corporation of the fair value of such
shares in accordance with the provisions of O.R.S. 60.577; provided, however,
that if any such holder shall have failed to perfect such appraisal rights or
shall have effectively withdrawn or lost such rights, pursuant to O.R.S. 60.687
or otherwise, his or her shares of Americold Common Stock shall thereupon be
converted into and exchangeable for, at the Effective Time, their pro rata share
of the aggregate Common Stock Consideration as determined and paid in the
manner set forth in this Agreement.
3.4 Acquisition Co. Common Stock. Each share of common stock, par
value $.01 per share, of Acquisition Co. (the "Acquisition Co. Common Stock"),
issued and outstanding immediately prior to the Effective Time shall, by virtue
of the Merger and without any action on the part of the holder thereof, be
converted into and exchangeable for one fully paid and non-assessable share of
common stock, par value $.01 per share, of the Surviving Corporation ("Surviving
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Corporation Common Stock"). From and after the Effective Time, each outstanding
certificate theretofore representing shares of Acquisition Co. Common Stock
shall be deemed for all purposes to evidence ownership of and to represent the
number of shares of Surviving Corporation Common Stock into which such shares of
Acquisition Co. Common Stock shall have been converted. Promptly after the
Effective Time, the Surviving Corporation shall issue to the Parent a stock
certificate or certificates representing 1,000 shares of Surviving Corporation
Common Stock in exchange for the certificate or certificates which formerly
represented shares of Acquisition Co. Common Stock, which shall be canceled.
3.5 Payment for Shares. (a) Prior to the Effective Time, the Parent
shall designate a business entity regularly engaged in such work and which is
reasonably satisfactory to Americold to act as Paying Agent with respect to the
Merger (the "Paying Agent"). Each record holder (other than Vornado, Parent,
Acquisition Co. or any other subsidiary of Vornado) of Americold Common Stock or
Americold Preferred Stock immediately prior to the Effective Time will be
entitled to receive, upon surrender to the Paying Agent of the certificates
representing such shares of Americold Common Stock or Americold Preferred Stock,
as the case may be (collectively, the "Certificates") for cancellation, cash in
an amount equal to the product of the number of shares of Americold Common Stock
or Americold Preferred Stock previously represented by the Certificates
multiplied by the Common Stock Consideration or Preferred Stock Consideration,
as the case may be, subject to any required withholding of taxes. At or prior to
the Effective Time, the Parent shall make available to the Paying Agent
sufficient funds to make all payments in amounts determined pursuant to the
preceding sentence. No interest shall accrue or be paid on the cash payable upon
the surrender of the Certificates. Any funds delivered or made available to the
Paying Agent pursuant to this Section 3.5(a) and not exchanged for Certificates
within six months after the Effective Time will be returned by the Paying Agent
to the
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Surviving Corporation, which thereafter will act as Paying Agent, subject to the
rights of holders of unsurrendered Certificates under this Section 3.5(a), and
any former shareholders of the Company who have not previously exchanged their
Certificates will thereafter be entitled to look only to the Surviving
Corporation for payment of their claim for the consideration set forth in
Section 3.1, without any interest, but will have no greater rights against the
Surviving Corporation than may be accorded to general creditors thereof under
applicable law. Notwithstanding the foregoing, neither the Paying Agent nor any
party hereto shall be liable to a holder of shares of Americold Common Stock or
Americold Preferred Stock for any cash or interest delivered to a public
official pursuant to applicable abandoned property, escheat or similar laws. As
soon as practicable after the Effective Time, the Surviving Corporation will
cause the Paying Agent to mail to each record holder of shares of Americold
Common Stock and Americold Preferred Stock (other than the Americold Principal
Shareholders) (i) a form of letter of transmittal (which will specify that
delivery will be effected, and risk of loss and title to the Certificates will
pass, only upon proper delivery of the Certificates to the Paying Agent), which
letter shall be in customary form, and (ii) instructions for use in effecting
the surrender of the Certificates for payment.
(b) With respect to any Certificate alleged to have been lost,
stolen or destroyed, the owner or owners of such Certificate shall be entitled
to the consideration set forth above upon delivery to the Surviving Corporation
of an affidavit of such owner or owners setting forth such allegation and an
indemnity agreement to indemnify Vornado, the Parent and the Surviving
Corporation, on terms reasonably satisfactory to Vornado, against any claim that
may be made against any of them on account of the alleged loss, theft or
destruction of any such Certificate or the delivery of the payment set forth
above.
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(c) Notwithstanding Section 3.5(a), immediately following the
Effective Time, each Americold Principal Shareholder, upon surrender of the
Certificate or Certificates representing all of the shares of Americold Common
Stock and Americold Preferred Stock owned by such Americold Principal
Shareholder together with the related letter of transmittal, shall be entitled
to receive, in immediately available funds, the amount of cash into which the
aggregate number of shares of Americold Common Stock and Americold Preferred
Stock represented by such Certificate or Certificates surrendered shall have
been converted pursuant to this Agreement.
(d) If consideration is to be delivered to a Person other than the
Person in whose name the Certificate surrendered in exchange therefor is
registered, it shall be a condition to delivery of the consideration that the
Certificate so surrendered shall be properly endorsed or otherwise in proper
form for transfer and that the Person requesting such consideration shall pay
any transfer or other Taxes required by reason of the payment to a Person other
than the registered holder of the Certificate surrendered or establish to the
satisfaction of the Surviving Corporation that such Tax has been paid or is not
applicable.
(e) Until surrendered in accordance with the provisions of this
Section 3.5, from and after the Effective Time, each Certificate (other than (i)
Certificates representing shares of Americold Common Stock or Americold
Preferred Stock owned beneficially or of record by Vornado, the Parent,
Acquisition Co. or any other subsidiary of Vornado, (ii) Certificates
representing shares of Americold Common Stock or Americold Preferred Stock held
in the treasury Americold or any Americold Subsidiary and (iii) Dissenting
Shares in respect of which appraisal rights are perfected) shall represent for
all purposes the right to receive the cash pursuant to Section 3.1(a) or (b), as
applicable, as determined and paid in the manner set forth in this Agreement.
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(f) After the Effective Time there shall be no transfers on the
stock transfer books of the Surviving Corporation of the shares of Americold
Common Stock, shares of Americold Preferred Stock or Options that were
outstanding immediately prior to the Effective Time. If, after the Effective
Time, Certificates are presented to the Surviving Corporation, they shall be
canceled and exchanged for the applicable consideration referred to in this
Section 3.5.
3.6 Adjustment to Prevent Dilution. In the event that Americold
changes the number of shares of Americold Common Stock or Americold Preferred
Stock or securities convertible or exchangeable into or exercisable for shares
of Americold Common Stock or Americold Preferred Stock issued and outstanding
prior to the Effective Time as a result of a reclassification, stock split
(including a reverse split), stock dividend or distribution, recapitalization,
merger, subdivision, issuer tender or exchange offer, or other similar
transaction, the Common Stock Consideration and Preferred Stock Consideration
shall be equitably adjusted.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF AMERICOLD
Americold hereby represents and warrants to the Parent and
Acquisition Co. as follows:
4.1 Organization, etc. (a) Americold is a corporation duly organized
and validly existing under the laws of the State of Oregon and has all requisite
corporate power and authority to own, lease and operate its properties and to
carry on its business as now being conducted. Americold is duly qualified or
licensed and in good standing to do business in each jurisdiction in which the
property owned, leased or operated by it or the nature of the business
conducted by it makes such qualification necessary, except where the failure to
be so qualified or licensed
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would not individually or in the aggregate have a Material Adverse Effect or
materially restrict the ability of Americold to conduct business as presently
conducted by it in such jurisdiction. Each jurisdiction where Americold is so
qualified is listed on Schedule 4.1(a) hereto. Except as set forth on Schedule
4.1(b) hereto, there are no Americold Subsidiaries and, except as set forth on
Schedule 4.1(b) hereto, Americold does not own, directly or indirectly, any
capital stock of or equity interests in any Person. Americold has heretofore
delivered or made available to the Parent accurate and complete copies of the
Articles of Incorporation and By-Laws of Americold, as amended and in effect on
the date hereof. The stock certificate books and ledgers of Americold, which
have been made available to the Parent, accurately reflect, at the date hereof,
the ownership of the issued and outstanding capital stock of Americold.
(b) Each Americold Subsidiary is listed on Schedule 4.1(b) hereto,
is a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has all requisite corporate
power and authority to own, lease and operate its properties and to carry out
its business as now being conducted. Each Americold Subsidiary is duly
qualified or licensed and in good standing to do business in each jurisdiction
in which the property owned, leased or operated by it or the nature of the
business conducted by it makes such qualification necessary, except where the
failure to be so qualified or licensed would not individually or in the
aggregate have a Material Adverse Effect or materially restrict the ability of
such Americold Subsidiary to conduct business as presently conducted by it in
such jurisdiction. Each jurisdiction where each Americold Subsidiary is so
qualified is listed on Schedule 4.1(b) hereto. Americold has heretofore
delivered to the Parent accurate and complete copies of the Articles of
Incorporation and By-Laws or other organizational documents of each Americold
Subsidiary, as amended and in effect on the date hereof.
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(c) Except as set forth on Schedule 4.1(c) hereto, Americold owns of
record and beneficially 100% of the issued and outstanding capital stock and all
other equity interests in each Americold Subsidiary, free and clear of any
Liens.
4.2 Authorization and Binding Obligation. (a) Americold has all
necessary corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. Subject to the approvals
referred to in Section 2.5, Americold's execution, delivery and performance of
this Agreement has been duly and validly authorized by all necessary corporate
action on the part of Americold and this Agreement has been duly executed and
delivered by Americold. Except for the actions referred to in Sections 2.5,
4.2(b) and 4.2(d) hereof, which actions are in full force and effect, and the
giving of notice in accordance with O.R.S. 60.214, 60.561 and 60.567, no other
corporate action or proceedings on the part of Americold are necessary to
authorize this Agreement or the consummation of the transactions contemplated
hereby. Subject to the approvals referred to in Section 2.5, this Agreement
constitutes the valid and binding obligation of Americold, enforceable against
Americold in accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar rights of
creditors generally and by general principles of equity.
(b) The Board of Directors of Americold (the "Board") has authorized
the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby and has not withdrawn such authorization. A
true and complete copy of such approvals by the Board has been delivered to the
Parent. The Board of Directors of Americold has received the opinion of its
financial advisors, Houlihan, Lokey, Xxxxxx & Xxxxx, to the effect that the
consideration to be paid by Parent to the holders of the shares of Americold
Common Stock and Americold Preferred Stock in the Merger is fair to such holders
from a financial point of view.
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(c) Subsequent to the giving of the authorization referred to in the
preceding paragraph, each Americold Principal Shareholder has executed and
delivered to the Parent an irrevocable proxy authorizing the Parent to vote, at
the Americold Shareholders' Meeting, the shares of Americold Common Stock set
forth opposite such Americold Principal Shareholder's name on Exhibit A hereto,
which shares represent all shares of Americold Common Stock owned beneficially
or of record by such Americold Principal Shareholder, in favor of adopting this
Agreement. Each Americold Principal Shareholder acknowledges, and the proxy
recites, that such proxy is coupled with an interest.
(d) The Board has taken all appropriate action so that the entry
into this Agreement, the granting of the proxies provided for under Section
4.2(c) hereof and the consummation of the transactions contemplated by this
Agreement shall be exempted from the provisions of O.R.S. 60.801-60.816 and
60.825. No other "fair price," "moratorium," "control share acquisition" or
other similar anti-takeover statute or regulation, including, without
limitation, O.R.S. 60.801-60.816 and 60.825 (each, a "Takeover Statute") or any
applicable anti-takeover provision in the Articles of Incorporation and By-laws
of Americold is, or at the Effective Time will be, applicable to Americold, the
shares of Americold Common Stock and Americold Preferred Stock, the Merger or
the other transactions contemplated by this Agreement.
4.3 Capitalization. (a) The authorized Americold Common Stock and
other authorized capital stock of Americold and each of the Americold
Subsidiaries is as set forth on Schedule 4.3 hereto. All issued and outstanding
shares of Americold Common Stock and other equity interests of Americold and
each of the Americold Subsidiaries are duly authorized, validly issued, fully
paid, non-assessable and free of preemptive rights. Schedule 4.3 hereto sets
forth the name of each Person who owns beneficially or of record any shares of
capital stock and other equity interests of
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any Americold Subsidiary and, in the case of each Americold Subsidiary, the
number of shares owned by each such Person.
(b) Except as set forth on Schedule 4.3 hereto, there are not now,
and at the Effective Time there will not be, any options, warrants, calls,
subscriptions, or other rights or other agreements or commitments of any nature
whatsoever obligating Americold or any of the Americold Subsidiaries to issue,
transfer, deliver or sell, or cause to be issued, transferred, delivered or
sold, any additional shares of Americold Common Stock or other equity interest
of Americold or any of the Americold Subsidiaries, or any securities or
obligations convertible into or exchangeable for any such Americold Common Stock
or other equity interests, or obligating Americold or any of the Americold
Subsidiaries to grant, extend or enter into any such agreement or commitment and
no authorization therefor has been given or made by Americold or any Americold
Subsidiary. Except for the arrangements described in Schedule 4.3 hereto, there
are no contractual arrangements that obligate Americold or any Americold
Subsidiary to (i) repurchase, redeem or otherwise acquire any of its capital
stock or its other equity interests or (ii) pay any Person any consideration
that is calculated with reference to the consideration to be paid to the
Americold Shareholders under this Agreement.
4.4 Consents and Approvals; No Conflicts. Except for applicable
requirements of the HSRA and as set forth on Schedule 4.4 hereto and the
approvals referred to in Sections 2.5 and 4.2(b) hereof, the giving of notice
in accordance with O.R.S. 60.214 and the filing and recordation of the Merger
Filings as required by the OBCA and the DGCL, no filing with, and no permit,
authorization, consent or approval of, any Governmental Authority or other third
party is necessary for the consummation by Americold of the transactions
contemplated by this Agreement, except where the failure to make such filing or
obtain such authorization, consent or approval would not individually or in the
aggregate have a Material Adverse Effect. Subject to
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obtaining such approvals and making such filings, neither the execution and
delivery of this Agreement by Americold nor the consummation by Americold of the
transactions contemplated hereby, nor compliance by Americold with any of the
provisions hereof, will (i) result in any violation of any provision of the
Articles of Incorporation or By-Laws or other organizational documents of
Americold or any Americold Subsidiary, (ii) violate any Applicable Law or (iii)
except as set forth on Schedule 4.4 hereto, result in a violation or breach of,
or constitute (with or without due notice or lapse of time or both) a default or
give rise to a right of any Person to terminate, cancel or accelerate the
payment or performance of any liability, obligation or commitment under any
contract (including any Contract listed in Schedule 4.13 hereto) to which
Americold or any of the Americold Subsidiaries is a party, or by which any of
their respective properties are bound, except, in the case of clauses (ii) and
(iii) above, where such violation, breach, default or right of termination,
cancellation or acceleration would not individually or in the aggregate have a
Material Adverse Effect.
4.5 Financial Statements; SEC Reports. (a) Americold has furnished
the Parent with (i) a consolidated balance sheet of Americold as at February
28, 1997 and consolidated statements of operations, changes in shareholders'
equity (deficit) and cash flows of Americold for such year, together with the
related audit report of KPMG Peat Marwick LLP and (ii) an unaudited consolidated
balance sheet of Americold as of August 31, 1997 and an unaudited consolidated
statement of operations of Americold for the six-month period ended August 31,
1997. All such financial statements are referred to herein collectively as the
"Financial Statements." Other than as set forth in Schedule 4.5 hereto, the
Financial Statements (including any related schedules and/or notes) have been
prepared in accordance with GAAP consistently applied throughout the periods
presented, except that the unaudited financial statements are subject to
year-end adjustments and do not contain footnotes. The balance sheets included
in the
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Financial Statements fairly present, in all material respects, the financial
position of Americold and the Americold Subsidiaries as at the dates thereof,
and the statements of operations, changes in shareholders' equity (deficit) and
cash flows included in the Financial Statements fairly present, in all material
respects, the results of the operations, changes in shareholders' equity
(deficit) and cash flows, respectively, of Americold and the Americold
Subsidiaries for the periods indicated.
(b) The Company has filed all forms, reports, statements and
schedules with the SEC required to be filed pursuant to the Exchange Act, and
the regulations of the SEC thereunder, since January 1, 1996. As of their
respective dates, all reports (including the financial statements included or
incorporated therein) filed by Americold with the SEC (collectively, the "SEC
Reports") complied in all material respects with all applicable requirements of
the Exchange Act and the regulations of the SEC thereunder applicable to such
SEC Reports, 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 made therein, in light of the circumstances under which they
were made, not misleading.
4.6 Undisclosed Liabilities. Except (i) to the extent reflected or
reserved against in the August 31, 1997 balance sheet of Americold included in
the Financial Statements, (ii) to the extent specifically set forth on Schedule
4.6 hereto, and/or (iii) for obligations of Americold arising in the ordinary
course of the performance of its responsibilities under any Contracts (as
defined in Section 4.14 hereof) listed on Schedule 4.14 or any agreement which
is not required to be listed on Schedule 4.14 because of the limitations set
forth in Section 4.14, neither Americold nor any Americold Subsidiary has any
liabilities or obligations of any nature, whether liquidated, unliquidated,
accrued, absolute, contingent or otherwise which would individually or in the
aggregate have a Material Adverse Effect.
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4.7 Governmental Approvals and Authorizations. Except as set forth
in Schedule 4.7 hereto, all approvals, permits, qualifications, authorizations,
licenses, franchises, consents, orders, registrations or other approvals
(collectively, the "Governmental Approvals") of all Governmental Authorities
which are necessary in order to permit Americold and the Americold Subsidiaries
to carry on their respective businesses have been obtained and are in full force
and effect, except where the failure to obtain such approval, permit,
qualification, authorization, license, franchise, consent, order, registration
or other approval, or the failure to be in full force and effect, would not
individually or in the aggregate have a Material Adverse Effect. There has been
no violation, cancellation, suspension or revocation of any such Governmental
Approval. This Section 4.7 does not relate to environmental matters, which are
the subject of Section 4.22.
4.8 Compliance with Laws. Except as set forth on Schedule 4.8
hereto, neither Americold nor any Americold Subsidiary is in conflict with or in
violation or breach of or default under (a) any Applicable Law or (b) any
provision of its organizational documents, and since February 28, 1997, neither
Americold nor any Americold Subsidiary has received any written notice alleging
any such conflict, violation, breach or default, except for any such violations,
breaches or defaults which would not individually or in the aggregate have a
Material Adverse Effect. This Section 4.8 does not relate to environmental
matters, which are the subject of Section 4.22.
4.9 Absence of Certain Payments. Neither Americold, any Americold
Subsidiary, or any director, officer, employee or agent of, or consultant or
other representative of, Americold or any Americold Subsidiary, or any other
Person authorized to act on behalf thereof, has unlawfully offered, paid or
agreed to pay, directly or indirectly, any money or anything of value to or for
the benefit of any individual who is or was an official or employee or candidate
for office of any Governmental Author-
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ity, or any employee or agent of any customer or supplier of Americold or any
Americold Subsidiary, except for any such offer, payment or agreement to pay
which would not individually or in the aggregate have a Material Adverse Effect
and would not reasonably be expected to subject Americold or any Americold
Subsidiary to any damage or penalty in any civil, criminal or governmental
litigation or proceeding.
4.10 Real Property. Schedule 4.10 hereto sets forth a complete list
of (i) all real property and all interests in real property owned in fee by
Americold or the Americold Subsidiaries (individually, an "Owned Property") and
(ii) all real property and all interests in real property leased by Americold
or the Americold Subsidiaries (individually, a "Leased Property"; together with
the Owned Property, the "Real Property"). Except as set forth on Schedule 4.10
hereto, Americold and the Americold Subsidiaries have (i) good, marketable and
insurable fee title to all Owned Property, and (ii) good and valid leasehold
interests in all Leased Property, and in the case of all of the Owned Properties
and those leasehold estates covered by the title insurance policies and update
letters or endorsements (as the case may be) set forth on Schedule 4.10 hereto,
such title is free and clear of any Liens, except (a) those created or permitted
under the Americold Indebtedness, (b) as disclosed in those certain owner's
title insurance policies and update letters or endorsements, as the case may be,
set forth on Schedule 4.10 hereto, and (c) other easements, rights of way and
minor and immaterial liens, charges or encumbrances that do not interfere with
the use of the Real Property in the normal conduct of the business of Americold
and the Americold Subsidiaries and that do not materially impair the value of
the Real Property (collectively, the "Permitted Liens"). Complete and correct
copies of each deed or lease relating to the Real Property described on Schedule
4.10 hereto have been furnished or made available to the Parent. The current use
and operation of the Real Property does not violate in any material respect any
instrument of record affecting the Real Property.
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Except as disclosed on Schedule 4.10 hereto, since February 28, 1997, no damage
or destruction has occurred and, to the Knowledge of Americold, no condemnation
or rezoning proceeding has been threatened or commenced with respect to any of
the Real Property that would individually or in the aggregate materially impair
the continued use or operation of the Owned Property or the Leased Property. To
the Knowledge of Americold, the Owned Property is in compliance with all Real
Estate Laws, and neither Americold nor any Americold Subsidiary has any
Knowledge of any written notice of violation or claimed violation of any Real
Estate Law, in either case except where such violation or lack of compliance
would not individually or in the aggregate materially restrict the ability of
Americold or any Americold Subsidiary to conduct its business as presently
conducted by it at any location. Except as disclosed on Schedule 4.10 hereto,
neither Americold nor any Americold Subsidiary is obligated under or a party to
any option, right of first refusal or other contractual right to purchase,
acquire, sell or dispose of any Real Property. Neither Americold nor any
Americold Subsidiary is a lessor, sublessor or grantor under any lease, sublease
or other instrument granting to another Person any right to the possession,
lease, occupancy or enjoyment of the Real Property, other than pursuant to any
agreements listed on Schedule 4.14 hereto. This Section 4.10 does not relate to
environmental matters, which are the subject of Section 4.22.
4.11 Property. Schedule 4.11 hereto sets forth a complete list as of
August 31, 1997 of each item of property, plant and equipment owned or leased by
Americold or any Americold Subsidiary. Except as set forth on Schedule 4.11
hereto, Americold and each of the Americold Subsidiaries has good and valid
title to all tangible personal property and assets which it owns, including the
material tangible personal property reflected in the balance sheets included in
the Financial Statements as being owned by Americold or such Americold
Subsidiary, as the case may be, except for such tangible personal property and
assets
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disposed of in the ordinary course of business, consistent with past practice,
since August 31, 1997 having a value not in excess of $250,000. Americold and
each of the Americold Subsidiaries has a valid legal right to use all assets
which it does not own but uses in the conduct of its business, except where the
failure to have such valid legal right would not individually or in the
aggregate have a Material Adverse Effect.
4.12 Intellectual Property. (a) Americold and each Americold
Subsidiary possesses all patents, trademarks, service marks, trade names,
copyrights and licenses that are necessary for the use or ownership of its
respective properties and assets, and the maintenance and operation of its
respective businesses as currently conducted. Neither Americold nor any
Americold Subsidiary uses any registered trademarks, trade names, copyrights or
patents (or have applications therefor pending) in connection with their
respective businesses, except for those set forth on Schedule 4.12 hereto
(collectively referred to as the "Intellectual Property"). Except as set forth
on Schedule 4.12 hereto, the Intellectual Property is owned by Americold or a
Americold Subsidiary, as indicated on Schedule 4.12 hereto, and is not subject
to any license, royalty arrangement or dispute. To the Knowledge of Americold,
except as set forth on Schedule 4.12 hereto, no registered trademark or trade
name used by Americold or any Americold Subsidiary infringes on any trademark or
trade name in any state or country in which such trademark or trade name is used
by Americold or such Americold Subsidiary. Neither Americold nor any Americold
Subsidiary has received written notification of infringement of any patent,
copyright, trademark or trade name, or any application therefor, from any
Person.
(b) Americold and each Americold Subsidiary possesses the right to
use all of its logistics and RF software and related data bases for the conduct
of its respective operations as currently conducted. To the Knowledge of
Americold, no other Person has any material interest in any such software or
data bases (other than any
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licensor thereof which is not an officer, director or Affiliate of Americold,
any Americold Subsidiary or any Americold Principal Shareholder).
4.13 Absence of Conflicts of Interest. Except as set forth on
Schedule 4.13 hereto, none of the Americold Principal Shareholders nor any
officer, director or Affiliate of Americold or any Americold Subsidiary has any
material interest in any material contract or material property (real or
personal), tangible or intangible, used in the business of Americold or any
Americold Subsidiary.
4.14 Contracts. Schedule 4.14 hereto lists (or describes in the case
of oral contracts) each contract, note, debt instrument, lease, sublease,
warehouse services agreement, covenant not to compete, supply agreement,
guarantee, licensing agreement, partnership agreement, joint venture agreement,
employment agreement (other than employment agreements set forth on Schedule
4.16 hereto), collective bargaining agreement or other agreement or commitment
of any kind, whether written or oral, to which Americold or any Americold
Subsidiary is a party (other than agreements set forth on Schedule 4.16 hereto)
or by which either of them is bound (each, a "Contract"), provided that such
Schedule need not list (i) any written or oral Contract or related written
Contracts under which the aggregate payments required to be made by or to
Americold or any Americold Subsidiary over the life of the Contract or Contracts
are less than $300,000, (ii) any rate quote or (iii) any warehouse receipt.
Complete copies of every written Contract listed on Schedule 4.14 hereto have
been previously made available to the Parent. Each of Americold and the
Americold Subsidiaries has performed all material obligations required to be
performed by it to date under the Contracts (and every employment contract
listed on Schedule 4.16 hereto), and neither Americold nor any Americold
Subsidiary has received written (or, to the Knowledge of Americold, oral) notice
that it is in material default in the performance of any of its obligations
under any Contract.
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4.15 Labor Matters. Except as described on Schedule 4.15 hereto,
since February 28, 1997 there have been no work stoppages or labor difficulties
relating to employees of Americold or the Americold Subsidiaries. There are no
labor disputes currently subject to any unfair labor practice complaint,
grievance procedure, arbitration or litigation, nor is there any default or any
event which, with notice or the passage of time or both, would become a default,
under any agreement with any labor union or association representing employees
of Americold or any Americold Subsidiary, except for any such dispute,
procedure, arbitration, litigation or default which would not individually or
in the aggregate have a Material Adverse Effect. Except as described on Schedule
4.15 hereto, there are no strikes, picketing, work stoppages or representation
petitions pending or, to Americold's Knowledge, threatened with respect to any
employee of Americold or any Americold Subsidiary.
4.16 Employee Benefit Plans. (a) Schedule 4.16 hereto contains a
true and complete list of each "employee benefit plan," as such term is defined
in Section 3(3) of ERISA, and each bonus, medical, incentive or deferred
compensation, severance, retention, change in control, equity incentive or other
material employee benefit plan, program or policy maintained or contributed to
by Americold or any Americold Subsidiary for the benefit of its respective
employees or former employees or with respect to which Americold or a Americold
Subsidiary is obligated to contribute on behalf of its employees and current or
former Directors (collectively, the "Plans"). Americold has made available to
the Parent true and complete copies of all Plans; all related trust agreements
and insurance contracts forming a part of any Plans; the most recent actuarial
and trust reports prepared for any such Plan; the most recent Form 5500 filed in
respect of each such Plan and all schedules thereto; the most recent
determination letter issued in respect of each such Plan; the current summary
plan descriptions with respect to such Plans for which such
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a description has been distributed; and all amendments to any such document.
(b) Each Plan intended to be qualified under Section 401(a) of the
Code has received a favorable determination letter from the IRS with respect to
"TRA" (as defined in Section 1 of Rev. Proc. 93-39) as to the qualification
thereof under Section 401(a) of the Code and, to the Knowledge of Americold, no
amendment has been made to any such Plan since the date of such determination
letter that has or would result in the disqualification of such Plan under
Section 401(a) of the Code. Each of the Plans has been operated and administered
in all material respects in accordance with applicable laws, including but not
limited to ERISA and the Code. There are no material pending or, to the
Knowledge of Americold, threatened claims by or on behalf of any of the Plans or
by any employee participating therein (other than routine claims for benefits).
All contributions required to have been made by Americold and the Americold
Subsidiaries to any Plan pursuant to applicable law (including, without
limitation, ERISA and the Code) have been made on a timely basis. Neither
Americold nor any of the Americold Subsidiaries has engaged in a transaction
with respect to any Plan that, assuming the taxable period of such transaction
expired as of the date hereof, could subject Americold or any of the Americold
Subsidiaries to a tax or penalty imposed by either Section 4975 of the Code or
Section 502(i) of ERISA in an amount which could be material.
(c) As of the date hereof, no liability under Title IV of ERISA
(other than for the payment of premiums under Section 4007) has been or is
expected to be incurred by Americold or any Americold Subsidiary with respect to
any ongoing, frozen or terminated "single employee plan", within the meaning of
Section 4001(a)(15) of ERISA, currently or formerly maintained by any of them.
Americold and any Americold Subsidiary have not incurred and do not expect to
incur any withdrawal liability with respect to a multi-
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employer plan (within the meaning of Section 4063 or 4064 of ERISA).
(d) No Plan is a multiple employer plan within the meaning of
Section 4063 or 4064 of ERISA.
(e) Except for Americold and each Americold Subsidiary, no other
trade or business, whether or not incorporated, is currently or, within the
preceding six years, has been required to be treated as a "single employer"
with Americold pursuant to clause (b), (c) or (m) of Section 414 of the Code.
(f) Neither Americold nor any Americold Subsidiary has any
obligations for retiree health and life benefits under any Plan, except as set
forth on Schedule 4.16(f) hereto.
(g) Except as set forth in Schedule 4.16 hereto, the consummation of
the transactions contemplated by this Agreement will not (i) entitle any
employees of Americold or any Americold Subsidiary to severance pay, (ii)
accelerate the time of payments or vesting or trigger any payment of
compensation or benefits under, increase the amount payable or trigger any other
material obligation pursuant to, any Plan or (iii) result in any breach or
violation of, or a default under, any of the Plans.
4.17 Actions Pending. Except as set forth in Schedule 4.17 hereto,
there is no civil, criminal or administrative action, suit, hearing, claim,
litigation, proceeding or investigation pending or, to the Knowledge of
Americold, threatened, against or affecting Americold or any Americold
Subsidiary or the business or any of the assets of Americold or any Americold
Subsidiary, or which seeks to enjoin or prohibit, or otherwise questions the
validity of, any action taken or to be taken in connection with this Agreement,
and there is no order, decision, ruling, injunction, judgment, award or decree
or consent of or agreements with any Governmental Authority against or
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affecting Americold or any Americold Subsidiary or the business or assets of
Americold or any Americold Subsidiary, or which enjoins or prohibits, any action
taken or to be taken in connection with this Agreement.
4.18 Affiliate Transactions. Except as set forth on Schedule 4.18
hereto, there are no existing agreements, understandings or arrangements between
Americold or any Americold Subsidiary, on the one hand, and any Affiliate of
Americold or any Americold Subsidiary, on the other hand.
4.19 Absence of Certain Changes. Except as set forth on Schedule
4.19 hereto, since August 31, 1997, (a) Americold and the Americold Subsidiaries
have conducted their respective businesses only in the ordinary and usual course
of their respective businesses, and (b) there has not been any material adverse
change in the financial condition, assets, owned or leased properties, business
or results of operations of Americold or any Americold Subsidiary that,
individually or in the aggregate, has had a Material Adverse Effect and (c)
neither Americold nor any Americold Subsidiary has taken any action of the type
described in any clause of Section 6.1.
4.20 Insurance. Schedule 4.20 hereto lists all material insurance
policies maintained by, or for the benefit of, Americold or any Americold
Subsidiary, as an insured. All such insurance policies are in full force and
effect, all premiums due thereon have been paid and no notice of termination of
any such policy has been received by the insured thereunder.
4.21 Taxes. Except as set forth on Schedule 4.21 hereto, or as
reflected or reserved against in the February 28, 1997 balance sheet included in
the Financial Statements, (i) Americold and the Americold Subsidiaries have (or
by the Closing Date will have) duly and timely filed or caused to be filed all
Tax Returns that are required to be filed on or before the Closing Date or the
time for filing such returns shall have been validly
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extended to a date after the Closing Date (collectively, the "Returns"), except
to the extent that the failure to so file would not individually or in the
aggregate have a Material Adverse Effect; (ii) Americold and the Americold
Subsidiaries have paid all Taxes shown or required to be shown on such Returns,
and have (or by the Closing will have) withheld to the appropriate Taxing
Authority, all federal and state Taxes that are required to be withheld on or
before the Closing Date, except to the extent that the failure to so pay,
withhold or remit would not individually or in the aggregate have a Material
Adverse Effect; (iii) no claim in writing by the IRS or any other Taxing
Authority for assessment or collection of Taxes, that are or may become payable
by Americold or the Americold Subsidiaries or chargeable as a Lien upon the
assets thereof, has been received by Americold or any Americold Subsidiary; (iv)
taxable years of Americold and the Americold Subsidiaries through the taxable
year ended 1990 have been examined and closed (v) neither Americold nor any
Americold Subsidiary has granted any extension or waiver of the limitation
period applicable to any Returns, which period (after giving effect to such
extension or waiver) has not yet expired; (vi) neither Americold nor any
Americold Subsidiary has received any notice in writing of any claim, audit,
action, suit, proceeding or investigation now pending against or with respect to
Americold or any Americold Subsidiary in respect of any Tax; (vii) there are no
requests for rulings or determinations in respect of any Tax pending between
Americold or any Americold Subsidiary, on the one hand, and any Taxing Authority
on the other; and (viii) neither Americold nor any Americold Subsidiary has (A)
been a member of an affiliated group, or (B) filed or been included in a
combined, consolidated or unitary Return, in each case involving group members
other than Americold and the Americold Subsidiaries and (ix) neither Americold
nor any of its subsidiaries has (a) elected to be treated as a "real estate
investment trust" for federal income tax purposes for any taxable year ending
after December 31, 1993 or (b) acquired, since January 1, 1994, a substantial
portion of the assets of an entity whose election to be
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treated as a "real estate investment trust" has been terminated or revoked.
Schedule 4.21 hereto contains a list of states, territories and jurisdictions
(whether foreign or domestic) with respect to which any income Tax Return has
been filed by Americold or any Americold Subsidiary within the last three
taxable years.
For purposes of this Agreement: (a) "Tax" means any net income,
alternative or add-on minimum tax, gross income, gross receipts, sales, use, ad
valorem, value added, transfer, franchise, profits, license, withholding on
amounts paid to or by Americold or any Americold Subsidiary, payroll,
employment, excise, severance, stamp, occupation, premium, property,
environmental or windfall profits tax, custom duty or other tax, governmental
fee or other like assessment or charge of any kind whatsoever, together with any
interest or penalty, addition to tax or additional amount imposed by any
Governmental Authority (domestic or foreign) (a "Taxing Authority"), (b) "Taxes"
shall have a correlative meaning and (c) "Tax Returns" shall mean reports,
returns, information statements relating to Taxes or other documents filed or
maintained or required to be filed or maintained, in connection with any Tax.
4.22 Environmental Matters. Except as set forth on Schedule 4.22
hereto and in the Environmental Reports listed thereon, Americold's and each
Americold Subsidiary's operation and use of its assets and the Real Property are
in compliance in all respects with all Environmental Laws, except to the extent
that any such noncompliance would not individually or in the aggregate have a
Material Adverse Effect. Except as set forth on Schedule 4.22 or in the
Environmental Reports listed thereon, Americold and the Americold Subsidiaries
have obtained all environmental, health and safety permits necessary for the
operation of the business of Americold and the Americold Subsidiaries as
presently conducted, and all such permits are in full force and effect and
Americold and each Americold Subsidiary are in compliance in all respects with
the terms and conditions of each such permit, except, in each case, to the
extent
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that any such failure to obtain or noncompliance would not individually or in
the aggregate have a Material Adverse Effect. Except as disclosed in Schedule
4.22 or in the Environmental Reports listed thereon and except as could not
reasonably be expected to have individually or in the aggregate a Material
Adverse Effect, (i) no property currently owned or operated by Americold or any
Americold Subsidiary, including the Owned and Leased Properties, has been
contaminated in any material respect with any substance regulated under any
Environmental Law such that any removal or remedial action is required under
Applicable Law; (ii) Americold and the Americold Subsidiaries are not subject to
any material liability for any off-site disposal or contamination; and (iii)
there are no other conditions or violations involving Americold or any Americold
Subsidiary (including the presence of asbestos, underground storage tanks,
chlorofluorocarbons, Freon and polychlorinated biphenyls) that are likely to
result in any material claims, liabilities or costs or any restrictions on the
ownership, use or transfer of any Owned or Leased Property in connection with
any Environmental Law. Except as disclosed in Schedule 4.22, to the Knowledge of
Americold, there are not other environmental reports, studies, assessments,
sampling results or other written environmental analyses relating to any Owned
Property ("Environmental Reports") and a copy of each of these Environmental
Reports has been made available to Parent at least five days prior to the date
hereof.
4.23 Brokers, Finders, etc. Except as described on Schedule 4.23,
neither Americold nor any Americold Subsidiary has employed, or is subject to
the valid claim of, any broker, finder or other financial intermediary in
connection with the transactions contemplated by this Agreement or the
transactions contemplated hereby, who might be entitled to a fee or commission
in connection herewith.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF VORNADO, THE PARENT AND ACQUISITION CO.
Vornado, the Parent and Acquisition Co., jointly and severally,
represent and warrant to Americold as follows:
5.1 Organization and Standing. Vornado is a real estate investment
trust duly organized and in good standing under the laws of the State of
Maryland and has the power and authority to carry on its business as presently
conducted, except where the failure to be so qualified would not individually
or in the aggregate have a material adverse effect on its ability to timely
perform its obligations hereunder or consummate the transactions contemplated
hereby. The Parent is a corporation duly organized and in good standing under
the laws of the State of Delaware and has the power and authority to carry on
its business as presently conducted, except where the failure to be so qualified
would not individually or in the aggregate have a material adverse effect on its
ability to timely perform its obligations hereunder or consummate the
transactions contemplated hereby. Acquisition Co. is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to carry on its
business as presently conducted, except where the failure to be so qualified
would not individually or in the aggregate have a material adverse effect on its
ability to timely perform its obligations hereunder or consummate the
transactions contemplated hereby.
5.2 Authorization and Binding Obligation. Each of Vornado, the
Parent and Acquisition Co. has all necessary partnership, corporate or other
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by the Vornado, Parent and Acqui-
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sition Co. and the consummation by Vornado, the Parent and Acquisition Co. of
the transactions contemplated hereby have been duly and validly authorized and
approved by all necessary partnership, corporate (or other) action on the part
of each of Vornado, the Parent and Acquisition Co. and no other corporate action
or other proceedings on the part of Vornado, the Parent or Acquisition Co. is
necessary to authorize this Agreement or the consummation of the transactions
contemplated hereby. This Agreement has been duly executed and delivered by each
of Vornado, the Parent and Acquisition Co. and constitutes a valid and binding
obligation of Vornado, the Parent and Acquisition Co., enforceable against
Vornado, the Parent and Acquisition Co. in accordance with its terms, except as
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar rights of creditors generally and by general principles of equity.
5.3 Consents and Approvals; No Conflicts. Except for applicable
requirements of the HSRA and filing and recordation of the Merger Filings as
required by the OBCA and the DGCL, no filing with, and no permit, authorization,
consent or approval of, any public body or authority is necessary for the
consummation by Vornado, the Parent or Acquisition Co. of the transactions
contemplated by this Agreement, except where the failure to make such filing or
obtain such permit, authorization, consent or approval, would not individually
or in the aggregate have a material adverse effect on such Person's ability to
timely perform its obligations hereunder or consummate the transactions
contemplated hereby. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby, nor compliance by
Vornado, the Parent or Acquisition Co. with any of the provisions hereof will
(a) result in any violation of any provision of the organizational documents of
Vornado, the Parent or Acquisition Co., (b) violate any Applicable Law, or (c)
result in a material violation or breach of, or constitute (with or without due
notice or lapse of time or both) a material default (or give rise to any right
of termination,
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cancellation or acceleration) under, any material contract, agreement, note,
bond, mortgage, indenture, license, lease, franchise, permit, Plan or other
instrument or obligation to which Vornado, the Parent or Acquisition Co. is a
party, or by which any of them or any of their respective properties is bound,
except in the case of clauses (b) and (c) above, where such violation, breach,
default or right of termination would not individually or in the aggregate have
a material adverse effect on such Person's ability to timely perform its
obligations hereunder or to consummate the transactions contemplated hereby.
5.4 Litigation. There is no claim, litigation, proceeding or
investigation pending or, to the best of Vornado's, the Parent's or Acquisition
Co.'s knowledge, threatened, which seeks to enjoin or prohibit, or otherwise
questions the validity of, any action taken or to be taken by Vornado, the
Parent or Acquisition Co. in connection with this Agreement or which would
individually or in the aggregate have a material adverse effect on such person's
ability timely to perform its respective obligations hereunder or to consummate
the transactions contemplated hereby.
5.5 Finders and Investment Bankers. None of Vornado, the Parent or
Acquisition Co. has employed, or is subject to the valid claim of, any broker,
finder or other financial intermediary in connection with the transactions
contemplated by this Agreement or the transactions contemplated hereby, who
might be entitled to a fee or commission in connection herewith or therewith
payable by Americold or any Americold Subsidiary.
5.6 Financing, etc. Vornado has available to it pursuant to existing
credit facilities sufficient cash on hand to allow it to pay the Merger
Consideration, consummate the transactions contemplated hereby and pay related
fees and expenses. Upon consummation of the Closing, Americold will be in
compliance with Section 9.1 of the Amended and Restated Indenture dated as of
March 9, 1993, and Section
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9.01 of the Indenture dated as of April 9, 1996, each of which Indentures is
referred to in the list of Americold Indebtedness set forth on Schedule 1.6
hereto of the Americold Indebtedness.
ARTICLE VI
COVENANTS
6.1 Conduct of Business. During the period from the date hereof to
the Closing Date, Americold covenants and agrees that it will and will cause the
Americold Subsidiaries to carry on their businesses in the ordinary course of
business, in substantially the same manner as heretofore conducted, and will use
its reasonable commercial efforts to preserve intact its and the Americold
Subsidiaries' present business organization, keep available the services of
their respective officers and Employees and preserve their relationships with
customers and suppliers and others having business dealings with them, to the
end that their goodwill and going business shall be maintained following the
Closing. Without limiting the generality of the foregoing, except as expressly
permitted by this Agreement or with the prior written consent of the Parent,
such consent not to be unreasonably withheld or delayed, or as set forth on
Schedule 6.1 hereto, Americold covenants and agrees that it will not, and it
will not permit any Americold Subsidiary to do, or agree to do, on or after the
date hereof, any of the following, on or before the Closing:
(a) amend their respective certificates of incorporation or by-laws
or other organizational documents;
(b) rescind, modify, amend or otherwise change or affect any of the
resolutions of the Board recommending adoption of this Agreement and
authorization of the Merger;
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(c) issue, sell, transfer, assign, pledge, convey or dispose of any
security or equity interest or any security convertible into or
exchangeable or exercisable for any security or equity interest,
including, without limitation, any subscriptions, options, warrants,
calls, conversions or other rights, agreements, commitments, arrangements
or understandings of any kind obligating Americold or any Americold
Subsidiary, contingently or otherwise, to issue or sell, or cause to be
issued or sold, any security or equity interest of Americold or any
Americold Subsidiary or any security convertible into or exchangeable or
exercisable for any security or equity interest;
(d) split, combine or reclassify any shares of any class of its
capital stock, declare, set aside or pay any dividend or other
distribution (whether in cash, stock or property or any combination
thereof) in respect of any class of its capital stock, or redeem or
otherwise acquire any shares of such capital stock, except as required
under the agreements listed on Schedule 6.1(d) hereto;
(e) write off any receivables, except in the ordinary course of
business consistent with past practice;
(f) sell, assign, lease or otherwise transfer or dispose of any
material assets except in the ordinary course of business consistent with
past practice in an aggregate amount in excess of $350,000 unless the same
shall be replaced with assets of equal or greater value and utility;
(g) (i) except as set forth on Schedule 6.1(g) hereto and except in
the ordinary course of business consistent with past practice under
existing lines of credit, create, incur or assume any liability, including
obligations in respect of capital leases, or make or commit to make
capital expenditures in excess of
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$250,000 each or $500,000 in the aggregate or create, incur, assume,
maintain or permit to exist any indebtedness in an aggregate amount
greater than $250,000 for Americold and the Americold Subsidiaries
combined; (ii) assume, guarantee, endorse or otherwise become liable or
responsible (whether directly, contingently or otherwise) for the
obligations of any other Person, except for assumptions, guarantees or
endorsements by Americold of the obligations of any Americold Subsidiary
in the ordinary course of business consistent with past practice; (iii)
make any loans, advances or capital contributions to, or investments in,
any other Person (other than customary loans or advances in the ordinary
course of business consistent with past practice to Employees not to
exceed $100,000 in the aggregate and extensions of credit made to
customers on a trade receivable basis in the ordinary course of business
consistent with past practice); or (iv) create, assume or permit to exist
any Lien upon their assets, except for those in existence on the date of
this Agreement and except for those additional Liens created in the
ordinary course of business consistent with past practice;
(h) except as set forth on Schedule 6.1(h) hereto (i) increase or
modify or agree to increase or modify the compensation, bonuses or other
benefits or perquisites of any Employee of Americold or any Americold
Subsidiary, except for salary increases granted in the ordinary course of
business consistent with past practice, or (ii) pay or commit to pay any
compensation, bonus, pension or other retirement benefit or allowance,
fringe benefit or other benefit not required by the terms of an existing
Plan, or collective bargaining agreement as in effect on the date hereof
or otherwise in the ordinary course of business consistent with past
practice;
(i) make any new elections, or make any changes to current
elections, with respect to Taxes;
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(j) change their auditors, fail to maintain their books and records
in accordance with GAAP or materially change their auditing or bookkeeping
practices;
(k) take or fail to take any action that would cause any of its
representations and warranties not to be true and correct on the Closing
Date in the manner required by Section 7.3(b) hereof;
(l) cancel or materially amend or modify any real or material
personal property leases;
(m) other than in the ordinary course of business, cancel or
materially amend or modify any agreements with customers; or
(n) enter into any new agreements with any customers with a duration
of more than one year.
6.2 Third-Party Consents. Americold covenants and agrees that it
will and will cause each Americold Subsidiary to use reasonable commercial
efforts to obtain, prior to the Closing, the consents of third parties and
Governmental Authorities set forth on Schedule 4.4 hereto.
6.3 Compliance with OBCA; Filings; Information Statement. (a) As
soon as practicable and in any event within ten (10) days after the date of this
Agreement, Americold will prepare and deliver to each shareholder of Americold a
notice (the "Notice"), in accordance with O.R.S. 60.214, 60.487 and 60.561,
regarding (i) the execution of this Agreement, (ii) the Board's authorization of
the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby and (iii) the availability of appraisal rights
under O.R.S. 60.551-60.594. As promptly as practicable, Americold will prepare,
and will provide to Vornado for its review and comment, an information statement
(together with the Notice, the "Information Statement"). As promptly as
practicable thereafter, Americold will deliver to each holder of
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Americold Common Stock a copy of the Information Statement, provided that
Americold will not circulate the Information Statement without Vornado's prior
written consent. Americold agrees that none of the information included or
incorporated by reference in the Information Statement will be false or
misleading with respect to any material fact or will omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading; provided, that the foregoing shall not apply to information supplied
by or on behalf of the Parent or Acquisition Co. specifically for inclusion or
incorporation by reference in the Information Statement. The Parent agrees that
none of the information supplied by or on behalf of the Parent or Acquisition
Co. specifically for inclusion or incorporation by reference in the Information
Statement will be false or misleading with respect to any material fact or will
omit to state any material fact required to be stated therein or necessary in
order to make the statements in such Information Statement, in light of the
circumstances under which they are made, not misleading.
(b) As promptly as practicable, each of Americold, the Parent and
Acquisition Co. shall properly prepare and file any filings required under any
Federal, state, county, local or municipal law relating to the Merger and the
transactions contemplated herein (such filings, together with the filings
required under the HSRA, are, collectively, the "Filings"). The Parent and
Acquisition Co., on the one hand, and Americold, on the other, shall promptly
notify the other of the receipt of any comments on, or any request for
amendments or supplements to, the Filings by any governmental official, and each
of Americold, the Parent and Acquisition Co. will supply the other with copies
of all correspondence between it and each of its subsidiaries and
representatives, on the one hand, and any appropriate governmental official, on
the other hand, with respect to the Filings.
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6.4 Additional Agreements. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use (and Americold shall
cause the Americold Subsidiaries to use) their commercially reasonable efforts
to take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable to consummate and make effective as
promptly as practicable the transactions contemplated by this Agreement and to
cooperate with one another in connection with the foregoing, including using its
commercially reasonable efforts to obtain all necessary consents, approvals and
authorizations as are required to be obtained under Applicable Law, to defend
all lawsuits or other legal proceedings challenging this Agreement or the
consummation of the transactions contemplated hereby, to cause to be lifted or
rescinded any injunction or restraining order or other order adversely affecting
the ability of the parties to consummate the transactions contemplated hereby,
and to effect all necessary registrations and Filings.
6.5 Acquisition Proposals. None of Americold or any of Americold's
employees, representatives or agents (collectively, the "Americold
Representatives") shall, directly or indirectly, solicit or initiate inquiries
or proposals from or enter into any agreement with respect to, or provide any
confidential information to or participate in any discussions or negotiations
with, any Persons or group (other than the Parent, Acquisition Co. and their
respective subsidiaries and their respective directors, officers, employees,
representatives and agents) concerning any sale of assets or shares of Americold
Common Stock, any assets or shares of capital stock of any Americold Subsidiary
or any merger, consolidation or similar transaction involving Americold or any
Americold Subsidiary (except, in all cases, for any sale of immaterial assets in
the ordinary course of business consistent with past practices). Americold will
promptly cease and Americold will cause to be terminated by the Americold
Subsidiaries any existing discussions or negotiations with any third parties
conducted heretofore with respect to any of the foregoing and will use its
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reasonable commercial efforts to retrieve and/or caused to be destroyed any and
all nonpublic information concerning Americold or any Americold Subsidiary that
has been furnished to third parties in connection therewith. Americold will not,
and will cause its controlled Affiliates not to, and will use its best efforts
to cause its noncontrolled affiliates not to, directly or indirectly, make, or
in any way participate, directly or indirectly, in any solicitation of proxies,
or become a participant in a solicitation to vote, or seek to advise or
influence any person to abstain from voting or to vote against the Merger, this
Agreement or any of the transactions contemplated herein, or enter into any
negotiations, discussions or arrangements, or otherwise facilitate, assist or
encourage the efforts of any third party with respect to the foregoing.
6.6 Public Announcements. The Parent and Americold will consult with
one another before issuing any press release or otherwise making any public
statement with respect to this Agreement or the Merger and shall not issue any
such press release or make any such public statement prior to such consultation
without the consent of the Parent and Americold, except based on the advice of
counsel for Americold or the Parent, as the case may be, as required by
Applicable Law.
6.7 Consent of the Parent. The Parent, as the sole shareholder of
Acquisition Co., by executing this Agreement hereby consents to the execution,
delivery and performance of this Agreement by Acquisition Co. and such consent
shall be treated for all purposes as a vote duly adopted at a meeting of the
shareholders of Acquisition Co. held for such purpose.
6.8 Transfer Taxes. The Parent shall be responsible for the payment
of all Transfer Taxes arising out of or in connection with or attributable to
the transactions effected pursuant to this Agreement.
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6.9 Officers' and Directors' Insurance; Indemnification of Officers
and Directors. The Parent agrees that for the entire period from the Effective
Time until at least six (6) years after the Effective Time (a) the Articles of
Incorporation and the By-Laws of the Surviving Corporation shall contain the
provisions with respect to indemnification and exculpation from liability set
forth in Americold's Articles of Incorporation and By-Laws as of the date of
this Agreement, which provisions shall not be amended, repealed or otherwise
modified during such period in any manner that would adversely affect the rights
thereunder of individuals who on or prior to the Effective Time were directors,
officers, employees or agents of Americold unless such modification is required
by Applicable Law and (b) the Surviving Corporation shall either (x) maintain in
effect Americold's current directors' and officers' liability insurance
covering those persons who are currently covered on the date of this Agreement
by Americold's directors' and officers' liability insurance policy or (y)
purchase a "tail" insurance policy having a policy limit equal to or greater
than the aggregate policy limit of such insurance and covering such persons
against claims made within six (6) years following the Effective Time; provided,
however, that this Section (b) shall not require Vornado or the Parent to pay
annual insurance premiums in excess of 125% of the current annual premium for
Americold's existing directors' and officers' liability insurance.
6.10 Americold Indebtedness. The Parent and Acquisition Co. shall
furnish such information and certificates as Americold shall reasonably request
in order for Americold and its counsel to be able to deliver the certificates,
opinions and other instruments required under the change of control provisions
of the Americold Indebtedness.
6.11 Access. Upon reasonable notice, and except as may otherwise be
required by Applicable Law, Americold shall (and shall cause the Americold
Subsidiaries to) afford the Parent's officers, agents and advisors reasonable
access, during normal business hours throughout the period
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prior to the Effective Time, to its properties, books, contracts and records
and, during such period, Americold shall (and shall cause the Americold
Subsidiaries to) furnish to the Parent and its agents and advisors all
information concerning its business, properties and personnel as they may
reasonably request, provided that no investigation pursuant to this Section
shall affect or be deemed to modify any representation or warranty made by
Americold. All such information shall be governed by the terms of the
Confidentiality Agreement referred to in Section 11.4.
6.12 Management Arrangements. Americold shall enter into bonus
arrangements with Americold management involving payments in the aggregate of
not less than $610,000, and the parties shall negotiate in good faith the
identities of the management recipients of such bonus arrangements, the
respective amounts to be received by each and the respective terms thereof.
ARTICLE VII
CLOSING CONDITIONS
7.1 Conditions Precedent to the Obligations of All Parties. The
respective obligations of each party to effect the Merger shall be subject to
the fulfillment at or prior to the Effective Time of each of the following
conditions:
(a) Any waiting period (and any extension thereof) applicable to
the consummation of the Merger under the HSRA shall have expired or been
terminated.
(b) No preliminary or permanent injunction or other order, decree or
ruling issued by a court of competent jurisdiction or by a governmental,
regulatory or administrative agency or commission nor any statute, rule,
regulation or executive order promulgated or
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enacted by any Governmental Authority shall be in effect which would be
reasonably likely to (i) make the consummation of the Merger by Vornado,
the Parent, Acquisition Co. or Americold illegal or (ii) otherwise prevent
the consummation of the Merger.
7.2 Additional Conditions to the Obligation of Americold. The
obligation of Americold to effect the Merger is also subject to the fulfillment
at or prior to the Effective Time of the following additional conditions:
(a) Vornado, the Parent and Acquisition Co. shall each have
performed in all material respects each of its respective obligations
under this Agreement required to be performed by it on or prior to the
Effective Time pursuant to the terms hereof.
(b) The representations and warranties of Vornado, the Parent and
Acquisition Co. contained in this Agreement shall be true and correct in
all material respects, in each case when made and, unless such
representation or warranty is made as of a specific date (in which case it
shall be true and correct in all material respects as of such date), at
and as of the Effective Time as if made at and as of such time.
(c) Americold shall have received a certificate, dated the Closing
Date, of the President or any Vice President of Vornado, to the effect
that the conditions specified in paragraphs (a) and (b) of this Section
7.2 have been fulfilled.
(d) Americold shall have received the opinion of Xxxxxxxx &
Xxxxxxxx, special counsel to Vornado, the Parent and Acquisition Co., in
form and substance reasonably satisfactory to Americold, as to the due
authorization, execution and delivery of this Agreement by such parties.
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(e) Each of the Parent and Acquisition Co. shall have reaffirmed all
of Americold's obligations under each of the Employment Agreements listed
on Schedule 4.14 hereto.
(f) Americold shall have paid, or caused to be paid, a fee of
$2,000,000 to Xxxxx (the "Xxxxx Fee") in respect of Xxxxx'x services in
connection with the consummation of the transactions provided for hereby.
7.3 Conditions Precedent to Obligations of Vornado, the Parent and
Acquisition Co. The obligations of Vornado, the Parent and Acquisition Co. to
effect the Merger are also subject to the fulfillment at or prior to the
Effective Time of the following additional conditions:
(a) Americold shall have performed in all material respects each of
its obligations under this Agreement required to be performed by it on or
prior to the Effective Time pursuant to the terms hereof.
(b) The representations and warranties of Americold set forth in
this Agreement that are qualified by reference to a Material Adverse
Effect shall be true and correct, and all other representations and
warranties of Americold shall be true and correct, except for failures to
be true and correct as would not, individually or in the aggregate, have a
Material Adverse Effect, as of the date of this Agreement and as of the
Effective Time as though made as of the Effective Time (except to the
extent any such representation or warranty expressly speaks as of an
earlier date, in which case it shall have been true and correct in all
material respects as of such date).
(c) Vornado shall have received a certificate, dated the Closing
Date, of the Chief Executive Officer of Americold, to the effect that the
conditions specified in paragraphs (a) and (b) of this Section 7.3 have
been fulfilled.
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(d) Vornado, the Parent and Acquisition Co. shall each have received
the opinion of (i) Debevoise & Xxxxxxxx, special counsel to Americold, in
form and substance reasonably satisfactory to Vornado, as to the absence
of any agreements among the shareholders of Americold or with any
potential purchaser of Americold that conflict with the execution,
delivery and performance of this Agreement and (ii) Tonkon, Xxxx, Xxxxx,
Marmaduke & Booth, special counsel to Americold, in form and substance
reasonably satisfactory to Vornado, as to the due authorization, execution
and delivery of this Agreement and to the effect that the Merger has been
duly authorized under Oregon law.
(e) One or more Americold Principal Shareholders shall not have
revoked or attempted to revoke any of the proxies referred to in Section
4.2(c) with respect to a majority or more of the outstanding shares of
Americold Common Stock.
(f) Americold shall have furnished to Vornado evidence reasonably
satisfactory to Vornado that immediately prior to the Closing, Americold's
principal amount of long-term indebtedness does not exceed $471,200,000.
ARTICLE VIII
CLOSING
8.1 Time and Place. Subject to the satisfaction or waiver of all
applicable conditions in Article VII, the Closing shall take place at the
offices of Debevoise & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, at
10:00 a.m., local time, on the third business day following the satisfaction of
the condition set forth in Section 7.1(a), or on such other date as Americold
and the Parent may agree.
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8.2 Filings at the Closing; Other Actions. At the Closing, the
Parent and Americold shall cause the Merger Filings to be filed and recorded in
accordance with the applicable provisions of the OBCA and the DGCL, and shall
take any and all other lawful actions and do any and all other lawful things
necessary to cause the Merger to become effective.
ARTICLE IX
NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
All of the representations and warranties contained in this
Agreement or any representations and warranties contained in any certificate,
document or instrument delivered pursuant to this Agreement shall terminate as
of the Closing. The covenants set forth in Sections 3.3, 3.5, 6.6, 6.8 and 6.9
herein shall survive the Closing.
ARTICLE X
TERMINATION RIGHTS
10.1 Termination. This Agreement may be terminated at any time
prior to the Effective Time:
(a) by mutual consent of the Parent and Americold;
(b) by either the Parent or Americold if the Merger shall not have
been consummated on or before January 15, 1998; provided, however, that
the right to terminate this Agreement shall not be available to any party
whose failure to fulfill any obligation of this Agreement has been the
cause of, or resulted in, the failure of the Merger to have occurred on or
before the aforesaid date;
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(c) by the Parent, if Americold shall have materially breached any
of its covenants herein or if Americold shall have made a material
misrepresentation and not cured the same within 15 days of notice of such
breach or misrepresentation;
(d) by Americold, if either the Parent or Acquisition Co. shall
have materially breached any of its covenants herein or if either the
Parent or Acquisition Co. shall have made a material misrepresentation
herein and not cured the same within 15 days of notice of such breach or
misrepresentation; or
(e) by either the Parent or Americold, if any court of competent
jurisdiction or other governmental agency of competent jurisdiction shall
have issued an order, decree or ruling or taken any other action
restraining, enjoining or otherwise prohibiting the Merger, and such
order, decree, ruling or other action shall have become final and
non-appealable.
10.2 Procedure and Effect of Termination. In the event of
termination and abandonment of the Merger by the Parent or Americold pursuant to
Section 10.1 hereof, notice thereof shall forthwith be given to Americold or the
Parent, respectively, and this Agreement shall terminate and the Merger shall be
abandoned, without further action by any of the parties hereto. Each of the
Parent and Acquisition Co. agrees that any termination by Vornado shall be
conclusively binding upon it, whether given expressly on its behalf or not. If
this Agreement is terminated as provided herein, no party hereto shall have any
liability or further obligation to any other party to this Agreement except that
any termination shall be without prejudice to the rights of any party hereto
arising out of a breach by any other party of any covenant or agreement
contained in this Agreement, and except that the provisions of Sections 6.6,
11.4, 11.5 and 11.7 hereof shall survive such termination.
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ARTICLE XI
OTHER PROVISIONS
11.1 Amendment and Modification. Subject to Applicable Law, this
Agreement may be amended, modified or supplemented only by mutual written
agreement of the parties hereto.
11.2 Benefit and Assignment. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective heirs,
successors and assigns, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any party to this
Agreement without the prior written consent of the other parties hereto. Any
purported assignment made in contravention of the previous sentence shall be
null and void.
11.3 No Third-Party Beneficiaries. Nothing in this Agreement shall
confer any rights upon any Person other than the parties hereto and their
respective heirs, successors and permitted assigns, except for the provisions
of Section 6.10 hereof.
11.4 Entire Agreement. This Agreement and the Confidentiality
Agreement, dated as of July 29, 1997, between Americold and Vornado and the
exhibits and schedules hereto and thereto embody the entire agreement and
understanding of the parties hereto and supersede any and all prior agreements,
arrangements and understandings relating to the matters provided for herein and
therein. Acquisition Co. hereby agrees that any consent or waiver of compliance
given by the Parent hereunder shall be conclusively binding upon it, whether
given expressly on its behalf or not. No party is making any representation or
warranty whatsoever, express or implied, except the representations and
warranties contained in this Agreement and each party acknowledges and agrees
that it has not relied on or been induced to enter into this Agreement by any
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representation or warranty other than those expressly set forth herein.
11.5 Expenses. Except as otherwise provided in this Agreement, each
of Vornado, the Parent and Acquisition Co., on the one hand, and Americold, on
the other hand, shall be responsible for the payment of their respective
expenses, including legal and accounting fees, in connection with the
preparation, negotiation and closing of this Agreement and the transactions
contemplated hereby.
11.6 Headings. The headings set forth in this Agreement are for
convenience only and will not control or affect the meaning or construction of
the provisions of this Agreement.
11.7 Choice of Law. The construction and performance of this
Agreement shall be governed by the laws of the State of New York without regard
to its principles of conflict of laws, except insofar as the laws of the state
of Oregon are mandatorily applicable to the Merger, and the state and federal
courts of New York shall have exclusive jurisdiction over any controversy or
claim arising out of or relating to this Agreement.
11.8 Notices. All notices, requests, demands, letters, waivers and
other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed, certified or registered mail with postage prepaid, (c)
sent by next-day or overnight mail or delivery or (d) sent by fax, as follows:
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(a) If to Vornado, the Parent or Acquisition Co., to it at:
Vornado Realty Trust
Park 80 West, Plaza II
Xxxxxx Xxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxxxxxx
Telecopy #: (000) 000-0000
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxxxxxxxx
Telecopy #: (000) 000-0000
(b) If to Americold, to it at:
Americold Corporation
0000 X.X. Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Telecopy #: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
Chief Executive Officer
with copies to:
Xxxxx & Company
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy #: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, XX, Esq.
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and:
Tonkon, Xxxx, Xxxxx, Marmaduke & Booth
1600 Pioneer Tower
000 X.X. Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopy #: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
or to such other Person or address as any party shall specify by notice in
writing to the party entitled to notice. All such notices, requests, demands,
letters, waivers and other communications shall be deemed to have been received
(w) if by personal delivery on the day after such delivery, (x) if by certified
or registered mail, on the fifth Business Day after the mailing thereof, (y) if
by next-day or overnight mail or delivery, on the day delivered or (z) if by
fax, on the next day following the day on which such fax was sent, provided that
a copy is also sent by certified or registered mail.
11.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
VORNADO REALTY TRUST
By: /s/ Xxxxxxx X. Xxxxxxxxxx
___________________________
Name:
Title:
PORTLAND PARENT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
__________________________
Name:
Title:
PORTLAND STORAGE ACQUISITION CO.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
__________________________
Name:
Title:
AMERICOLD CORPORATION
By:/s/ Xxxxxx X. Xxxxxxxxx
__________________________
Name: Xxxxxx X. Xxxxxxxxx
Title: Chairman, CEO and President
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Exhibit A
Americold Principal Shareholders
Name Number of Shares
---- ----------------
KIA III-Americold, Inc. L.P. 2,000,000
Xxxxx Investment Associates II, L.P. 500,000
Xxxxx Equity Partners, L.P. 70,000
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