EXHIBIT 99.2
CONFORMED COPY
AGREEMENT AND PLAN OF MERGER
among
TYSON FOODS, INC.,
HFI ACQUISITION SUB INC.
and
XXXXXX FOODS, INC.
Dated as of September 4, 1997
TABLE OF CONTENTS
PAGE
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ARTICLE I
THE MERGER................................................................. 2
Section 1.1 The Merger.................................................... 2
Section 1.2 Closing....................................................... 2
Section 1.3 Effective Time................................................ 3
Section 1.4 Certificate of Incorporation and By-Laws...................... 3
Section 1.5 Directors and Officers........................................ 3
ARTICLE II CONVERSION OF SHARES.......................................... 4
Section 2.1 Conversion of Shares.......................................... 4
Section 2.2 Exchange Procedures........................................... 5
Section 2.3 Dividends; Transfer Taxes; Withholding........................ 6
Section 2.4 Fractional Shares............................................. 7
Section 2.5 Return of Exchange Fund....................................... 8
Section 2.6 Dissenting Shares............................................. 8
Section 2.7 Options....................................................... 9
Section 2.8 Closing of Transfer Books..................................... 10
Section 2.9 Further Assurances............................................ 10
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY................. 10
Section 3.1 Organization and Good Standing................................ 11
Section 3.2 Certificate of Incorporation and By-Laws...................... 11
Section 3.3 Capitalization................................................ 11
Section 3.4 Company Subsidiaries.......................................... 13
Section 3.5 Corporate Authority........................................... 13
Section 3.6 Compliance with Applicable Law................................ 14
Section 3.7 Non-Contravention............................................. 15
Section 3.8 Government Approvals; Required Consents....................... 16
Section 3.9 SEC Documents and Other Reports............................... 16
Section 3.10 Absence of Certain Changes or Events.......................... 17
Section 3.11 Actions and Proceedings....................................... 18
Section 3.12 Absence of Undisclosed Liabilities............................ 18
Section 3.13 Contracts..................................................... 18
Section 3.14 Taxes......................................................... 19
Section 3.15 Intellectual Property......................................... 20
Section 3.16 Information in Disclosure Documents and Registration
Statement..................................................... 20
Section 3.17 Employee Benefit Plans; ERISA................................. 21
Section 3.18 Environmental Matters......................................... 23
Section 3.19 Labor Matters................................................. 23
Section 3.20 Affiliate Transactions........................................ 24
Section 3.21 Opinion of Financial Advisor.................................. 24
Section 3.22 Brokers....................................................... 24
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF
PARENT AND PURCHASER.......................................... 25
Section 4.1 Organization and Good Standing................................ 25
Section 4.2 Certificate of Incorporation and By-Laws...................... 25
Section 4.3 Capitalization................................................ 25
Section 4.4 Parent Subsidiaries........................................... 27
Section 4.5 Corporate Authority........................................... 27
Section 4.6 Compliance with Applicable Law................................ 28
Section 4.7 Non-contravention............................................. 29
Section 4.8 Government Approvals; Required Consents....................... 29
Section 4.9 SEC Documents and Other Reports............................... 30
Section 4.10 Absence of Certain Changes or Events.......................... 31
Section 4.11 Actions and Proceedings....................................... 31
Section 4.12 Absence of Undisclosed Liabilities............................ 31
Section 4.13 Information in Disclosure Documents and Registration
Statement..................................................... 32
Section 4.14 Affiliate Transactions........................................ 32
Section 4.15 Taxes......................................................... 33
Section 4.16 Operations of Purchaser....................................... 34
Section 4.17 Brokers....................................................... 34
ARTICLE V CONDUCT OF BUSINESS PENDING THE MERGER........................ 34
Section 5.1 Conduct of Business by the Company Pending the Merger......... 34
ARTICLE VI ADDITIONAL AGREEMENTS......................................... 37
Section 6.1 Access and Information........................................ 37
Section 6.2 No Solicitation............................................... 37
Section 6.3 Third-Party Standstill Agreements............................. 39
Section 6.4 Registration Statement........................................ 39
Section 6.5 Proxy Statements; Stockholder Approval........................ 39
Section 6.6 Compliance with the Securities Act............................ 40
Section 6.7 Reasonable Best Efforts....................................... 40
Section 6.8 Employee Benefits............................................. 42
Section 6.9 Public Announcements.......................................... 42
Section 6.10 Directors' and Officers' Indemnification and Insurance........ 43
Section 6.11 Expenses...................................................... 43
Section 6.12 Listing Application........................................... 44
Section 6.13 Supplemental Disclosure....................................... 44
Section 6.14 Affiliate Transactions........................................ 44
Section 6.15 Purchase Plan................................................. 45
ARTICLE VII CONDITIONS TO CONSUMMATION OF THE MERGER...................... 45
Section 7.1 Conditions to Each Party's Obligation to Effect the Merger.... 45
Section 7.2 Conditions to Obligation of Parent and the Purchaser to
Effect the Merger............................................. 46
Section 7.3 Conditions to Obligation of the Company to Effect the
Merger........................................................ 48
ARTICLE VIII TERMINATION................................................... 49
Section 8.1 Termination................................................... 49
Section 8.2 Effect of Termination......................................... 51
ARTICLE IX GENERAL PROVISIONS............................................ 52
Section 9.1 Amendment and Modification.................................... 52
Section 9.2 Waiver........................................................ 52
Section 9.3 Survivability; Investigations................................. 52
Section 9.4 Notices....................................................... 53
Section 9.5 Descriptive Headings; Interpretation.......................... 54
Section 9.6 Entire Agreement.............................................. 54
Section 9.7 Governing Law................................................. 54
Section 9.8 Enforcement................................................... 54
Section 9.9 Counterparts.................................................. 55
Section 9.10 Assignment; Third-Party Beneficiaries......................... 55
Exhibit A Form of Stock Voting Agreement..................................A-1
Exhibit B Form of Affiliate Letter........................................B-1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of September 4, 1997 (this
"Agreement"), by and among Tyson Foods, Inc., a Delaware corporation
("Parent"), HFI Acquisition Sub Inc., a Delaware corporation and newly formed,
wholly owned subsidiary of Parent (the "Purchaser"), and Xxxxxx Foods, Inc.,
a Delaware corporation (the "Company").
WHEREAS, the Boards of Directors of the Parent and the Company have
each approved and deem it advisable and in the best interests of their
respective stockholders for Parent to acquire the Company upon the terms and
subject to the conditions of this Agreement; and
WHEREAS, it is intended that the transaction be accomplished by a
merger of the Company with and into the Purchaser, with the Purchaser
continuing as the surviving corporation, (the "Merger"); and
WHEREAS, as a condition and an inducement to Parent and the Purchaser
entering into this Agreement and incurring the obligations set forth herein,
concurrently with the execution and delivery of this Agreement, Parent is
entering into a Stock Voting Agreement with a stock holder of the Company,
who has an aggregate of approximately 65% of the voting power of the
outstanding shares of Company Common Stock (as hereinafter defined), in the
form of Exhibit A hereto (the "Stock Voting Agreement"); and
WHEREAS, the Board of Directors of the Company has approved the
transactions contemplated by this Agreement and the Stock Voting Agreement in
accordance with the provisions of Sections 203 and 251 of the General
Corporation Law of the State of Delaware (the "DGCL"), and has resolved,
subject to the terms of this Agreement, to recommend the approval of the
Merger by its stockholders; and
WHEREAS, the Board of Directors of the Purchaser has unanimously
approved the transactions contemplated by this Agreement and has
unanimously resolved, subject to the terms of this Agreement, to recommend
the approval of the Merger by Parent, its sole stockholder; and
WHEREAS, the Board of Directors of Parent has approved the transactions
contemplated hereby as sole stockholder of the Purchaser; and
WHEREAS, the parties hereto intend that the Merger will qualify as a
reorganization within the meaning of Section 368(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), and that this Agreement shall be,
and is hereby, adopted as a plan of reorganization for purposes of Section
368 of the Code; and
WHEREAS, this Agreement shall be submitted to the stockholders of the
Company for their approval.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to the conditions
contained in this Agreement, and in accordance with the DGCL, at the Effective
Time (as hereinafter defined), the Company shall be merged with and into the
Purchaser, the separate corporate existence of the Company shall thereupon
cease, and the Purchaser shall continue as the surviving corporation
(sometimes hereinafter referred to as the "Surviving Corporation") and
shall continue its corporate existence under the laws of the State of
Delaware. In accordance with Section 259 of the DGCL, all of the rights,
privileges, powers, immunities, purposes and franchises of the Purchaser
and the Company shall vest in the Surviving Corporation and all of the
debts, liabilities, obligations and duties of the Purchaser and the
Company shall become the debts, liabilities, obligations and duties of the
Surviving Corporation.
Section 1.2 Closing. Subject to the terms and conditions of this
Agreement, the closing of the transactions contemplated by this Agreement
(the "Closing") shall take place at the offices of Skadden, Arps, Slate,
Xxxxxxx & Xxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 a.m., local
time, as promptly as practicable after all of the conditions set forth in
Article VII are satisfied or waived or on such other date and at such other
time and place as Parent and the Company shall agree (the date on which the
Closing actually occurs being referred to herein as the "Closing Date").
Section 1.3 Effective Time. The Merger shall become effective at the
time of filing of, or at such later time specified in, a properly executed
certificate of merger (the "Certificate of Merger"), in the form required
by and executed in accordance with the DGCL, filed with the Secretary of
State of the State of Delaware, in accordance with the provisions of
Section 251 of the DGCL. Such filing shall be made contemporaneously with,
or immediately after, the Closing. When used in this Agreement, the term
"Effective Time" shall mean the date and time at which the Merger shall
become effective.
Section 1.4 Certificate of Incorporation and By-Laws. From and
after the Effective Time, the Certificate of Incorporation of the Purchaser
as in effect immediately prior to the Effective Time shall be the
Certificate of Incorporation of the Surviving Corporation until thereafter
amended in accordance with Applicable Law (as hereinafter defined);
provided that Article I of such Certificate of Amendment shall be amended
to change the name of the Surviving Corporation to "Xxxxxx Foods, Inc."
From and after the Effective Time, the By-Laws of the Purchaser in effect
immediately prior to the Effective Time shall be the By-Laws of the
Surviving Corporation until thereafter amended in accordance with
Applicable Law.
Section 1.5 Directors and Officers. From and after the Effective Time,
the directors of the Purchaser immediately prior to the Effective Time shall
become the directors of the Surviving Corporation and shall hold office from
the Effective Time until their respective successors are duly elected or
appointed and qualified in the manner provided in the Certificate of
Incorporation or By-Laws of the Surviving Corporation or as otherwise provided
by law. The officers of the Purchaser at the Effective Time shall become the
officers of the Surviving Corporation and shall hold office from the Effective
Time until their respective successors are duly elected or appointed and
qualified in the manner provided in the Certificate of Incorporation or
By-Laws of the Surviving Corporation or as otherwise provided by law.
ARTICLE II
CONVERSION OF SHARES
Section 2.1 Conversion of Shares. At the Effective Time, by virtue of
the Merger and without any action on the part of any holder of any shares of
Company Common Stock (as defined herein) or any shares of capital stock of the
Purchaser:
(a) Each share of Class A Common Stock, par value $.01 per share ("Class
A Common Stock"), and each share of Class B Common Stock, par value $.01 per
share ("Class B Common Stock"), in each case, of the Company (together, Class
A Common Stock and Class B Common Stock, "Company Common Stock" or
"Shares") issued and outstanding immediately prior to the Effective Time
(other than Shares to be cancelled pursuant to Section 2.1(c) hereof and
Shares which are held by stockholders exercising appraisal rights under
Section 262 of the DGCL) shall be converted into the right to receive (i)
$8.40 in cash, without interest thereon, and (ii) six-tenths (0.6) of a
validly issued, fully paid and nonassessable share of Class A Common
Stock, par value $.10 per share ("Parent Common Stock"), of Parent
(collectively, the "Per Share Merger Consideration").
(b) Each share of common stock, par value $.01, of the Purchaser
("Purchaser Common Stock") issued and outstanding immediately prior to the
Effective Time shall be converted into one duly issued, validly authorized,
fully paid and nonassessable share of common stock, par value $.01 per
share, of the Surviving Corporation.
(c) All Shares that are owned by the Company as treasury stock shall
automatically be cancelled and retired and shall cease to exist and no
consideration shall be delivered or deliverable in exchange therefor.
(d) All Shares converted pursuant to Section 2.1(a) shall no longer be
outstanding and shall automatically be cancelled and retired and shall cease
to exist and each holder of a certificate which immediately prior to the
Effective Time represented such outstanding Shares (the "Certificates") shall
cease to have any rights as stockholders of the Company, except the right to
receive the consideration set forth in Section 2.1(a) for each such Share.
(e) If between the date of this Agreement and the Effective Time, the
outstanding shares of Parent Common Stock shall have been changed into a
different number of shares or a different class, by reason of any stock
dividend, subdivision, reclassification, recapitalization, split,
combination or exchange of shares (other than as a result of conversions of
capital stock of Parent permitted by Parent's Certificate of Incorporation,
as in effect on the date hereof), the number of shares of Parent Common
Stock to be issued in the Merger shall be correspondingly adjusted to
reflect such stock dividend, subdivision, reclassification,
recapitalization, split, combination or exchange of shares, upon surrender
of the certificate formerly representing Shares in the manner provided
in Section 2.2 hereof.
Section 2.2 Exchange Procedures.
(a) Parent shall designate a bank or trust company to act as Exchange
Agent hereunder (the "Exchange Agent") reasonably satisfactory to the Company.
Immediately following the Effective Time, Parent shall deliver, in trust, to
the Exchange Agent, for the benefit of the holders of Shares, for exchange in
accordance with this Article II through the Exchange Agent, (i) cash in an
amount sufficient to make any cash payment due under Sections 2.1(a) and 2.4
hereof (the "Exchange Fund") and (ii) certificates evidencing the shares of
Parent Common Stock issuable pursuant to Section 2.1(a) in exchange for
outstanding Shares.
(b) As soon as practicable after the Effective Time, Parent shall cause
the Exchange Agent to mail to each holder of record of Certificates (i) a form
of letter of transmittal specifying that delivery shall be effected, and risk
of loss and title to the Certificates shall pass, only upon proper delivery
of the Certificates to the Exchange Agent and (ii) instructions for use in
surrendering such Certificates in exchange for the Merger Consideration (as
hereinafter defined). Upon surrender of a Certificate for cancellation to
the Exchange Agent, together with such letter of transmittal, duly
executed, the holder of such Certificate shall be entitled to receive in
exchange therefor (A) the product of the Per Share Merger Consideration
multiplied by the number of Shares represented by the surrendered
Certificate; provided however, that each holder shall receive cash in lieu
of any fractional share of Parent Common Stock to which such holder is
entitled pursuant to Section 2.4 hereof, and (B) any amounts to which the
holder is entitled pursuant to Section 2.3 hereof after giving effect to
any required tax withholdings and the Certificate so surrendered shall
forthwith be cancelled. Until surrendered as contemplated by this Section
2.2(b), each Certificate shall be deemed from and after the Effective Time
to represent only the right to receive upon such surrender the Per Share
Merger Consideration. In no event shall the holder of any such surrendered
Certificate be entitled to receive interest on any cash to be received in
the Merger. Neither the Exchange Agent nor any party hereto shall be
liable to a holder of Shares for any amount paid to a public official
pursuant to any applicable abandoned property, escheat or similar law.
(c) If any Certificate shall have been lost, stolen or destroyed, upon
the making of an affidavit of that fact by the person claiming such
Certificate to be lost, stolen or destroyed and, if required by Parent, the
posting by such person of a bond, in such reasonable and customary amount
as Parent may direct, as indemnity against any claim that may be made
against it with respect to such Certificate, the Exchange Agent will issue
in exchange for such lost, stolen or destroyed Certificate the Per Share
Merger Consideration.
Section 2.3 Dividends; Transfer Taxes; With holding. No dividends or
other distributions that are declared on or after the Effective Time on
Parent Common Stock, or are payable to the holders of record thereof who
became such on or after the Effective Time, shall be paid to any person
entitled by reason of the Merger to receive certificates representing
shares of Parent Common Stock, and no cash payment in lieu of any
fractional share of Parent Common Stock shall be paid to any person
pursuant to Section 2.4 hereof, until such person shall have surrendered
its Certificate(s) as provided in Section 2.2 hereof. Subject to
applicable law, there shall be paid to each person receiving a certificate
representing such shares of Parent Common Stock, at the time of such
surrender or as promptly as practicable thereafter, the amount of any
dividends or other distributions theretofore paid with respect to the
shares of Parent Common Stock represented by such certificate and having a
record date on or after the Effective Time but prior to such surrender and
a payment date on or subsequent to such surrender. In no event shall the
person entitled to receive such dividends or other distributions be
entitled to receive interest on such dividends or other distributions. If
any cash or certificate representing shares of Parent Common Stock is to be
paid to or issued in a name other than that in which the Certificate
surrendered in exchange therefor is registered, it shall be a condition of
such exchange that the Certificate so surrendered shall be properly
endorsed and otherwise in proper form for transfer and that the person
requesting such exchange shall pay to the Exchange Agent any transfer or
other taxes required by reason of the issuance of such certificate
representing shares of Parent Common Stock and the distribution of such
cash payment in a name other than that of the registered holder of the
Certificate so surrendered, or shall establish to the satisfaction of the
Exchange Agent that such tax has been paid or is not applicable. Parent or
the Exchange Agent shall be entitled to deduct and withhold from the
consideration other wise payable pursuant to this Agreement to any holder
of Company Common Stock such amounts as Parent or the Exchange Agent are
required to deduct and withhold under the Code or any provision of state,
local or foreign tax law, with respect to the making of such payment. To
the extent that amounts are so withheld by Parent or the Ex change Agent,
such withheld amounts shall be treated for all purposes of this Agreement
as having been paid to the holder of the Company Common Stock in respect of
whom such deduction and withholding were made by Parent or the Exchange
Agent.
Section 2.4 Fractional Shares. No certificates or scrip representing
fractional shares of Parent Common Stock shall be issued upon the surrender
for exchange of Certificates, no dividend or distribution with respect to
shares shall be payable on or with respect to any fractional share and such
fractional share interests shall not entitle the owner thereof to vote or
to any other rights of a stockholder of Parent. In lieu of any such
fractional share of Parent Common Stock, Parent shall pay to each former
stockholder of the Company who otherwise would be entitled to receive a
fractional share of Parent Common Stock an amount in cash (with out
interest) rounded to the nearest whole cent, determined by multiplying (i)
the per share closing price on the NASDAQ National Market of Parent Common
Stock on the date on which the Effective Time shall occur (or, if Parent
Common Stock shall not trade on the NASDAQ National Market on such date,
the first day of trading in Parent Common Stock thereafter) by (ii) the
fractional interest in a share of Parent Common Stock to which such holder
would otherwise be entitled.
Section 2.5 Return of Exchange Fund. Any portion of the Exchange Fund
and certificates representing shares of Parent Common Stock issuable upon
conversion of Company Common Stock pursuant to Section 2.1(a) hereof,
together with any dividends or distributions payable in respect thereof
pursuant to Section 2.3 hereof, which remains undistributed to the former
holders of Company Common Stock for six months after the Effective Time
shall be delivered to Parent, upon its request, and any such former holders
who have not theretofore surrendered to the Exchange Agent their
Certificate(s) in compliance with this Article II shall thereafter look
only to Parent for payment of their claim for such cash and shares of
Parent Common Stock, any cash in lieu of fractional shares of Parent Common
Stock and any dividends or distributions with respect to such shares of
Purchaser Common Stock (in each case, without interest thereon). The
Exchange Agent shall invest any cash included in the Exchange Fund, as
directed by Parent, on a daily basis. Any interest and other income
resulting from such investments shall be paid to Parent.
Section 2.6 Dissenting Shares. Each outstanding share of Company
Common Stock as to which a written demand for appraisal is filed in
accordance with Section 262 of the DGCL at or prior to the Company
Stockholder Meeting and not withdrawn at or prior to the Company
Stockholder Meeting and which is not voted in favor of the Merger shall not
be converted into or represent a right to receive the Per Share Merger
Consideration unless and until the holder thereof shall have failed to
perfect, or shall have effectively withdrawn or lost the right to appraisal
of and payment for each such share of Company Common Stock under said
Section 262, at which time each such share shall be converted into the
right to receive the Merger Consideration. All such shares of Company
Common Stock as to which such a written demand for appraisal is so filed
and not withdrawn at or prior to the Company Stockholder Meeting and which
are not voted in favor of the Merger, except any such shares of Company
Common Stock the holder of which, prior to the Effective Time, shall have
effectively withdrawn or lost such right to appraisal and payment for such
shares of Company Common Stock under said Section 262, are herein referred
to as "Dissenting Shares." The Company shall give Parent prompt notice upon
receipt by the Company of any written demands for appraisal rights,
withdrawal of such demands, and any other written communications delivered
to the Company pursuant to said Section 262, and the Company shall give
Parent the opportunity, to the extent permitted by law, to participate in
all negotiations and proceedings with respect to such demands. Except with
the prior written consent of Parent, the Company shall not voluntarily make
any payment with respect to any demands for appraisal rights and shall not,
settle or offer to settle any such demands. Each holder of Dissenting
Shares who becomes entitled, pursuant to the provisions of said Section
262, to payment for such shares of Dissenting Shares under the provisions
of said Section 262 shall receive payment therefor from the Surviving
Corporation and such shares of Company Common Stock shall be cancelled.
Section 2.7 Options. At the Effective Time, each holder of a then
outstanding option to purchase Shares (collectively "Options") granted by
the Company under the Company's 1985 Stock Option Plan or 1996 Stock Option
Plan (collectively, the "Option Plans"), whether or not then exercisable,
shall in settlement thereof, become entitled to receive for each such Share
subject to any such Option, upon payment of the exercise price under such
Option for such Share, the Per Share Merger Consideration multiplied by the
number of Shares for which such Option is exercisable; provided that, prior
to the Effective Time, Parent and the Company shall use their respective
reasonable best efforts to establish procedures for the cashless exercise
of such Options. Prior to the Effective Time, the Company shall use its
best efforts to obtain all necessary consents or releases from holders of
Options, to the extent required by the terms of the Option Plans, or
pursuant to the terms of any Option granted thereunder, and take all such
other lawful action as may be necessary to give effect to the transactions
contemplated by this Section 2.7 (except for such action that may require
the approval of the Company's shareholders). Parent shall register under
the Securities Act on a Registration Statement on Form S-8 or another
appropriate form all shares of Parent Common Stock issuable pursuant to all
Options.
Section 2.8 Closing of Transfer Books. At the Effective Time, the
stock transfer books of the Company shall be closed and no transfer of
shares of Company Common Stock shall thereafter be made. If, after the
Effective Time, Certificates are presented to Parent, they shall be
cancelled and exchanged as provided in this Article II.
Section 2.9 Further Assurances. If, at any time after the Effective
Time, Parent shall consider or be advised that any deeds, bills of sale,
assignments, assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm of record or otherwise in the Surviving
Corporation its right, title or interest in, to or under any of the rights,
properties or assets of the Company acquired or to be acquired by the
Surviving Corporation as a result of, or in connection with, the Merger or
otherwise to carry out this Agreement, the officers of the Surviving
Corporation shall be authorized to execute and deliver, in the name and on
behalf of the Company or otherwise, all such deeds, bills of sale,
assignments and assurances and to take and do all such other actions and
things as may be necessary or desirable to vest, perfect or confirm any and
all right, title and interest in, to or under such rights, properties or
assets in the Surviving Corporation or otherwise to carry out the purposes
of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the disclosure schedule (each section of which
qualifies the correspondingly numbered representation and warranty only) of
the Company attached hereto (the "Company Disclosure Schedule"), the Company
represents and warrants to Parent and Purchaser as follows:
Section 3.1 Organization and Good Standing. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has the corporate power and authority to
carry on its business as it is now being conducted. The Company is duly
qualified as a foreign corporation to do business, and is in good standing,
in each jurisdiction where the character of its properties owned or held
under lease or the nature of its activities makes such qualification
necessary, except where the failure to be so qualified or in good standing
would not have a material adverse effect, individually or in the aggregate,
on the business, properties, assets, liabilities, condition (financial or
otherwise), or results of operations of the Company and its Subsidiaries
taken as a whole, or the ability of the Company to consummate the Merger
and the other transactions contemplated by this Agreement (a "Company
Material Adverse Effect"). As used in this Agreement, a "Subsidiary" of
any person means another person, an amount of the voting securities, other
voting ownership or voting partnership interests of which, sufficient to
elect at least a majority of its Board of Directors or other governing body
(or, if there are no such voting interests, 50% or more of the equity
interests of which) is owned directly or indirectly by such person.
Section 3.2 Certificate of Incorporation and By-Laws. True, correct
and complete copies of the Certificates of Incorporation and By-laws or
equivalent organizational documents, each as amended to date, of the
Company and each of its Subsidiaries have been made available to Parent.
The Certificates of Incorporation, By-laws and equivalent organizational
documents of the Company and each of its Subsidiaries are in full force and
effect. Neither the Company nor any of its Subsidiaries is in violation of
any provision of its Certificate of Incorporation, By-laws or equivalent
organizational documents.
Section 3.3 Capitalization.
(a) The authorized capital stock of the Company consists of 40,000,000
shares of Class A Common Stock, and 40,000,000 shares of Class B Common Stock.
As of June 28, 1997, (i) 20,657,331 shares of Company Class A Common Stock
were issued and outstanding and 846,644 shares were held in the treasury of
the Company, (ii) 9,602,372 shares of Company Class B Common Stock were issued
and outstanding and no shares are held in the treasury of the Company, and
(iii) 388,373 shares of Class A Common Stock were reserved for issuance upon
the exercise of outstanding Options. Since June 28, 1997, the Company has not
issued any shares of capital stock, or any security convertible into or
exchangeable for shares of such capital stock, including any Option, other
than the issuance of shares of Class A Common Stock upon the exercise of
Options. All of the issued and outstanding Shares have been validly issued,
and are fully paid and nonassessable, and are not subject to preemptive
rights.
(b) Except as described in Section 3.3(a) hereof: (i) no shares of
capital stock or other equity securities of the Company are authorized, issued
or outstanding, or reserved for issuance, and there are no options, warrants
or other rights (including registration rights), agreements, arrangements or
commitments of any character to which the Company or any of its Subsidiaries
is a party relating to the issued or unissued capital stock or other equity
interests of the Company or any of its Subsidiaries, requiring the Company or
any of its Subsidiaries to grant, issue or sell any shares of the capital
stock or other equity interests of the Company or any of its Subsidiaries by
sale, lease, license or otherwise; (ii) neither the Company nor its
Subsidiaries have any obligations, contingent or otherwise, to repurchase,
redeem or otherwise acquire any shares of the capital stock or other equity
interests of the Company or its Subsidiaries; (iii) neither the Company
nor any of its Subsidiaries, directly or indirectly, owns, or has agreed to
purchase or otherwise acquire, the capital stock or other equity interests
of, or any interest convertible into or exchangeable or exercisable for
such capital stock or such equity interests, of any corporation,
partnership, joint venture or other entity which would be material in value
to the Company; and (iv) there are no voting trusts, proxies or other
agreements or understandings to or by which the Company or any of its
Subsidiaries is a party or is bound with respect to the voting of any
shares of capital stock or other equity interests of the Company or any of
its Subsidiaries.
Section 3.4 Company Subsidiaries. The Company Disclosure Schedule sets
forth a list of each material Subsidiary of the Company. Each Subsidiary of
the Company is a corporation, partnership or other entity duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation or organization. Each Subsidiary of the Company has all
requisite corporate power and authority to carry on its business as it is
now being conducted. Each Subsidiary of the Company is duly qualified as a
foreign corporation or organization authorized to do business, and is in
good standing, in each jurisdiction where the character of its properties
owned or held under lease or the nature of its activities makes such
qualification necessary, except where the failure to be so qualified or in
good standing would not, individually or in the aggregate, have a Company
Material Adverse Effect. All of the outstanding shares of capital stock or
other ownership interests in each of the Company's Subsidiaries have been
validly issued, and are fully paid, nonassessable and are owned by the
Company or another Subsidiary of the Company free and clear of all pledges,
claims, options, liens, charges, encumbrances and security interests of any
kind or nature whatsoever (collectively, "Liens"), and are not subject to
preemptive rights.
Section 3.5 Corporate Authority.
(a) The Company has the requisite corporate power and authority to
execute and deliver this Agreement and, subject to the approval of the
Merger by the Company's stockholders, to consummate the transactions
contemplated hereby. The execution and delivery by the Company of this
Agreement, and the consummation by the Company of the transactions
contemplated hereby, have been duly authorized by its Board of Directors
and, except for the approval of the Merger by the Company's stockholders,
no other corporate action on the part of the Company is necessary to
authorize the execution and delivery by the Company of this Agreement and
the con summation by it of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by the Company and
constitutes a valid and binding agreement of the Company and is enforceable
against the Company in accordance with its terms, except that (i) such
enforcement may be subject to any bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other laws, now or hereafter in effect,
relating to or limiting creditors' rights generally and (ii) the remedy of
specific performance and injunctive and other forms of equitable relief may
be subject to equitable defense, and to the discretion of the court before
which any proceeding therefor may be brought. The preparation of the Proxy
Statement (as hereinafter defined) to be filed with the SEC has been duly
authorized by the Board of Directors of the Company.
(b) Prior to execution and delivery of this Agreement, the Board of
Directors of the Company (at a meeting duly called and held) has (i) approved
this Agreement, the Stock Voting Agreement and the Merger and the other
transactions contemplated hereby or thereby, and such approval is sufficient
to render inapplicable to the Merger and all other transactions contemplated
hereby or thereby the provisions of Section 203 of the DGCL, (ii) determined
that the transactions contemplated hereby are fair to and in the best
interests of the holders of Company Common Stock and (iii) except as may be
required to comply with its fiduciary duties under Applicable Law (as
hereinafter defined) as advised by counsel, determined to recommend this
Agreement, the Merger and the other transactions contemplated hereby to the
Company's stockholders for approval and adoption at the stockholders
meeting contemplated by Section 6.5(a) hereof. The affirmative vote of the
holders of a majority of the outstanding shares of Company Common Stock,
voting together as a single class, is the only vote of the holders of any
class or series of the Company's capital stock necessary to approve the
Merger or the transactions contemplated hereby. The Company has taken all
steps necessary to approve and irrevocably exempt the transactions
contemplated by this Agreement and the Stock Voting Agreement from any
applicable takeover statute of any jurisdiction and from any applicable
charter, organizational document or other agreement, arrangement or under
standing to which the Company is a party containing any change of control,
"antitakeover" or similar provision.
Section 3.6 Compliance with Applicable Law. (i) Each of the
Company and its Subsidiaries holds, and is in compliance with the terms of,
all permits, licenses, exemptions, orders and approvals of all Governmental
Entities (as hereinafter defined) necessary for the conduct of their
respective businesses ("Company Permits"), except for failures to hold or
to comply with such permits, licenses, exemptions, orders and approvals
which would not, individually or in the aggregate, reasonably be expected
to have a Company Material Adverse Effect; (ii) with respect to the
Company Permits, no action or proceeding is pending or, to the knowledge of
the Company, threatened, and, to the knowledge of the Company, no fact
exists or event has occurred that would, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect; (iii)
the business of the Company and its Subsidiaries is being conducted in
compliance with all applicable laws, ordinances, regulations, judgments,
decrees or orders ("Applicable Law") of any federal, state, local, foreign
or multinational court, arbitral tribunal, administrative agency or
commission or other governmental or regulatory authority or administrative
agency or commission (a "Governmental Entity"), except for violations or
failures to so comply that would not, individually, or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect; and (iv)
to the knowledge of the Company, no investigation or review by any
Governmental Entity with respect to the Company or its Subsidiaries is
pending or threatened, other than, in each case, those which would not,
individually, or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect.
Section 3.7 Non-Contravention. The execution and delivery by the
Company of this Agreement do not, and the consummation of the transactions
contemplated hereby and compliance with the provisions hereof will not, (i)
result in any violation of, or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination, cancellation
or acceleration of any obligation or to the loss of a material benefit
under any loan, guarantee of indebtedness or credit agreement, note, bond,
mortgage, indenture, lease, agreement, contract, instrument, permit,
concession, franchise, right or license (any of the foregoing, a
"Contract") binding upon the Company or any of its Subsidiaries, or result
in the creation of any Lien upon any of the properties or assets of the
Company or any of its Subsidiaries, (ii) conflict with or result in any
violation of any provision of the Certificate of Incorporation or By-Laws
or other equivalent organizational document, in each case as amended, of
the Company or any of its Subsidiaries, or (iii) conflict with or violate
any judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to the Company or any of its Subsidiaries or any of their
respective properties or assets, other than, in the case of clauses (i) and
(iii), any such violation, conflict, default, right, loss or Lien that,
individually or in the aggregate, would not reasonably be expected to have
a Company Material Adverse Effect.
Section 3.8 Government Approvals; Required Consents. No filing or
registration with, or authorization, consent or approval of, any Governmental
Entity is required by or with respect to the Company or any of its
Subsidiaries in connection with the execution and delivery of this
Agreement by the Company or is necessary for the consummation of the
transactions contemplated hereby (including, without limitation, the
Merger) except: (i) in connection, or in compliance, with the provisions
of the Securities Act of 1933, as amended (the "Securities Act"), the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any
applicable state securities or "blue sky" law, (ii) the filing of a
notification under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended (the "HSR Act"), (iii) the filing of a Certificate of
Merger with the Secretary of State of the State of Delaware, (iv) such
consents, approvals, authorizations, permits, filings and notifications
listed in the Company Disclosure Schedule and (v) such other consents,
orders, authorizations, registrations, declarations and filings the failure
of which to obtain or make would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect.
Section 3.9 SEC Documents and Other Reports.
(a) The Company has filed all documents required to be filed prior
to the date hereof by it and its Subsidiaries with the Securities and
Exchange Commission (the "SEC") since September 30, 1995 (the "Company SEC
Documents"). As of their respective dates, or if amended, as of the date
of the last such amendment, the Company SEC Documents complied, and all
documents required to be filed by the Company with the SEC after the date
hereof and prior to the Effective Time (the "Subsequent Company SEC
Documents") will comply, in all material respects with the requirements of
the Securities Act or the Exchange Act, as the case may be, and the
applicable rules and regulations promulgated thereunder and none of the
Company SEC Documents contained, and the Subsequent Company SEC Documents
will not contain, any untrue statement of a material fact or omitted, or
will omit, to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, or are to be made, not misleading. The
consolidated financial statements of the Company included in the Company
SEC Documents fairly present, and included in the Subsequent Company SEC
Documents will fairly present, the consolidated financial position of the
Company and its consolidated Subsidiaries, as at the respective dates
thereof and the consolidated results of their operations and their
consolidated cash flows for the respective periods then ended (subject, in
the case of the unaudited statements, to normal year-end audit adjustments
and to any other adjustments described therein) in conformity with United
States generally accepted accounting principles ("GAAP") (except, in the
case of the unaudited statements, as permitted by Form 10-Q of the SEC)
applied on a consistent basis during the periods involved (except as may be
indicated therein or in the notes thereto). Since September 30, 1995, the
Company has not made any change in the accounting practices or policies
applied in the preparation of its financial statements, except as may be
required by GAAP.
Section 3.10 Absence of Certain Changes or Events. Except as set
forth in the Company SEC Documents, since September 28, 1996, the Company
and its Subsidiaries have conducted their respective businesses and
operations only in the ordinary and usual course consistent with past
practice and, except as set forth in Section 3.10 of the Company Disclosure
Schedule, there has not occurred (i) any event, condition or occurrence
having or that would reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect; (ii) any damage, destruction
or loss (whet her or not covered by insurance) having or which would
reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect; (iii) any declaration, setting aside or payment
of any dividend or distribution of any kind by the Company on any class of
its capital stock (other than regular quarterly dividends of not more than
$.02 per share of Class A Common Stock and $.0167 per share of Class B
Common Stock); or (iv) any event during the period from September 28, 1996
through the date of this Agreement that, if taken during the period from
the date of this Agreement through the Effective Time, would constitute a
breach of Section 5.1 hereof.
Section 3.11 Actions and Proceedings. Except as set forth in the
Company SEC Documents, there are no outstanding orders, judgments,
injunctions, awards or decrees of any Governmental Entity against the
Company or any of its Subsidiaries, any of their properties, assets or
business, or, to the knowledge of the Company, any of the Company's or its
Subsidiaries' current or former directors or officers or any other person
whom the Company or any of its Subsidiaries has agreed to indemnify, as
such, that would reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect. Except as set forth in the
Company SEC Documents, there are no actions, suits or legal, administrative,
regulatory or arbitration proceedings pending or, to the knowledge of
the Company, threatened against the Company or any of its Subsidiaries, any
of their properties, assets or business, or, to the knowledge of the
Company, any of the Company's or its Subsidiaries' current or former
directors or officers or any other person whom the Company or any of its
Subsidiaries has agreed to indemnify, as such, that relates to the
transactions contemplated by this Agreement or would reasonably be expected
to have, individually or in the aggregate, a Company Material Adverse
Effect.
Section 3.12 Absence of Undisclosed Liabilities. Except as set
forth in the Company SEC Documents and for liabilities or obligations which
are accrued or reserved against on the balance sheet (or reflected in the
notes thereto) included in the Company's Annual Report on Form 10-K for the
year ended September 28, 1996 (the "Company 10-K"), neither the Company nor
any of its Subsidiaries has any material liabilities or obligations
(including, without limitation, Tax (as hereinafter defined) liabilities)
(whether absolute, accrued, contingent or otherwise), other than
liabilities or obligations incurred in the ordinary course of business
since September 28, 1996 or liabilities under this Agreement.
Section 3.13 Contracts. All of the material contracts of the
Company and its Subsidiaries that are required to be described in the
Company SEC Documents or to be filed as exhibits thereto have been
described or filed as required. Neither the Company or any of its
Subsidiaries nor, to the knowledge of the Company, any other party is in
breach of or default under any such contract which is currently in effect,
except for such breaches and defaults which are described in the Company
Disclosure Schedule or which would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse Effect.
Except as set forth in the Company SEC Documents, neither the Company nor
any of its Subsidiaries is a party to or bound by any non-competition
agreement or any other agreement or obligation which purports to limit in
any material respect the manner in which, or the localities in which, the
Company or any such Subsidiary is entitled to conduct all or any material
portion of the business of the Company and its Subsidiaries taken as a
whole.
Section 3.14 Taxes. (i) The Company and each of its Subsidiaries
has filed all federal, and all material state, local, foreign and
provincial, tax returns, declarations, statements, reports, schedules,
bonus and information returns and any amendments to any of the preceding
("Tax Returns") required to have been filed on or prior to the date hereof,
or appropriate extensions therefor have been properly obtained, and such
Tax Returns are true, correct and complete, except to the extent that any
failure to be true, correct and complete would not, individually or in the
aggregate, reasonably be expected to have a Company Material Adverse
Effect; (ii) all federal, state, local and foreign taxes, and other
assessments of a similar nature (whether imposed directly or through
withholding) including any interest, additions to tax or penalties
applicable thereto ("Taxes") shown to be due on such Tax Returns have been
timely paid or extensions for payment have been properly obtained, or such
Taxes are being timely and properly contested; (iii) the Company and each
of its Subsidiaries have complied in all material respects with all rules
and regulations relating to the withholding of Taxes, except to the extent
any failure to comply with such rules and regulations would not,
individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect; (iv) neither the Company nor any of its
Subsidiaries has waived any statute of limitations in respect of its Taxes
or Tax Returns; (v) any Tax Returns of the Company and its Subsidiaries
relating to federal and Material State (as hereinafter defined) income
Taxes have been examined by the Internal Revenue Service ("IRS") or the
appropriate taxing authority or the period for assessment of the Taxes in
respect of which such Tax Re turns were required to be filed has expired;
(vi) no issues that have been raised in writing by a taxing authority in
connection with the examination of any federal or Material State Tax
Returns of the Company and its Subsidiaries are currently pending except
those which would not, individually or in the aggregate, reasonably be
expected to have a Company Material Adverse Effect; (vii) all deficiencies
asserted or assessments made as a result of any examination of such Tax
Returns by any taxing authority have been paid in full or are being timely
and properly contested; (viii) neither the Company nor any of its
Subsidiaries have any liability for Taxes of any person other than the
Company and its Subsidiaries under (a) Treasury Regulations Section
1.1502-6 (or any similar provision of state, local or foreign law) or (b)
any express or implied agreement; and (ix) neither the Company nor any of
its Subsidiaries have been a member of any affiliated group within the
meaning of Section 1504(a) of the Code other than the affiliated group of
which the Company is the common parent corporation. For purposes of this
Section 3.14, "Material State" means any state for which the average
allocation percentage for the Company and its Subsidiaries for the past
three years exceeds ten percent (10%).
Section 3.15 Intellectual Property. The Company and its Subsidiaries
own or have a valid license to use all inventories, patents, trademarks,
service marks, trade names, copyrights, trade secrets, software, mailing
lists and other intellectual property rights (collectively, the "Company
Intellectual Property") necessary to carry on their respective businesses
as currently conducted; and neither the Company nor any such Subsidiary has
received any notice of infringement of or conflict with, and, to the
Company's knowledge, there are no infringements of or conflicts with, the
rights of others with respect to the use of any of the Company Intellectual
Property that, in either such case, has had or would reasonable be expected
to have, individually or in the aggregate, a Company Material Adverse
Effect or result in material adverse publicity for the Company.
Section 3.16 Information in Disclosure Documents and Registration
Statement. None of the information supplied or to be supplied by the
Company for inclusion in (i) the Registration Statement on Form S-4 to be
filed with the SEC under the Securities Act for the purpose of registering
the shares of Parent Common Stock to be issued in connection with the
Merger (the "Registration Statement") or (ii) the joint proxy
statement/prospectus to be distributed in connection with the Company's
meeting of stockholders to vote upon this Agreement (the "Proxy Statement")
will, in the case of the Registration Statement, at the time it becomes
effective or, in the case of the Proxy Statement or any amendments thereof
or supplements thereto, at the time of the initial mailing of the Proxy
Statement and any amendments or supplements thereto, and at the time of the
Company Stockholder Meeting (as defined herein) to be held in connection
with the Merger, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they are made, not misleading. The Registration Statement, as of its
effective date, will comply (with respect to information relating to the
Company) as to form in all material respects with the requirements of the
Securities Act, and the rules and regulations promulgated thereunder, and
as of the date of its initial mailing and as of the date of the Company's
stockholders' meeting, the Proxy Statement will comply (with respect to
information relating to the Company) as to form in all material respects
with the applicable requirements of the Exchange Act, and the rules and
regulations promulgated thereunder. Notwithstanding the foregoing, the
Company makes no representation with respect to any statement in the
foregoing documents based upon information supplied by Parent or the
Purchaser for inclusion therein.
Section 3.17 Employee Benefit Plans; ERISA.
(a) The Company Disclosure Schedule sets forth the name of each
Company Plan (as defined below) and of each bonus, deferred compensation
(together with a list of participants therein), incentive compensation,
salary continuation (together with a list of participants therein), stock
purchase, stock option, employment, severance, termination, consulting or
supplemental retirement plan or agreement, true copies of which have
heretofore been made available or will be made available to Parent. Each
Company Plan complies in all material respects with the Employee Retirement
Securities Act of 1974, as amended ("ERISA"), the Code and all other
applicable laws and administrative or governmental rules and regulations.
No "reportable event" (within the meaning of Section 4043 of ERISA) has
occurred with respect to any Company Plan for which the 30-day notice
requirement has not been waived (other than with respect to the
transactions contemplated by this Agreement); neither the Company nor any
of its ERISA Affiliates has withdrawn from any Company Plan under Section
4063 of ERISA or Company Multiemployer Plan (as hereinafter defined) under
Section 4203 or 4205 of ERISA or has taken, or is currently considering
taking, any action to do so; and no action has been taken, or is currently
being considered, to terminate any Company Plan subject to Title IV of
ERISA. No Company Plan, nor any trust created thereunder, has incurred any
"accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived. There are no actions, suits or claims pending or,
to the knowledge of the Company, threatened (other than routine claims for
benefits) with respect to any Company Plan which would reasonably be
expected to have, individually or in the aggregate, a Company Material
Adverse Effect. Neither the Company nor any of its ERISA Affiliates has
incurred or would reasonably be expected to incur any material liability
under or pursuant to Title IV of ERISA that has not been satisfied in full.
To the knowledge of the Company, no non-exempt prohibited transactions
described in Section 406 of ERISA or Section 4975 of the Code have
occurred. All Company Plans that are intended to be qualified under
Section 401(a) of the Code have received a favorable determination letter
as to such qualification from the Internal Revenue Service, and no event
has occurred, either by reason of any action or failure to act, which could
be expected to cause the loss of any such qualification, and the Company is
not aware of any reason why any Company Plan is not so qualified in
operation. Neither the Company nor any of its ERISA Affiliates knows or
has been notified by any Company Multiemployer Plan that such Company
Multiemployer Plan is currently in reorganization or insolvency under and
within the meaning of Section 4241 or 4245 of ERISA or that such Company
Multiemployer Plan intends to terminate or has been terminated under
Section 4041A of ERISA. As used herein: (i) "Company Plan" means a
"pension plan" (as defined in Section 3(2) of ERISA, other than a Company
Multiemployer Plan) or a "welfare plan" (as defined in Section 3(1) of
ERISA) established or maintained by the Company or any of its ERISA
Affiliates or to which the Company or any of its ERISA Affiliates has
contributed in the last six years or otherwise may have any liability; and
(ii) "Company Multiemployer Plan" means a "multiemployer plan" (as defined
in Section 4001(a)(3) of ERISA) to which the Company or any of its ERISA
Affiliates is or has been obligated to contribute or otherwise may have any
liability.
(b)(i) No amount payable under any Company Plan will fail to be
deductible for federal income tax purposes by virtue of Section 280G of the
Code; and (ii) the consummation of the transactions contemplated by this
Agreement will not, either alone or in combination with any other event
that is reasonably likely to occur, (A) entitle any current or former
director, officer or employee of the Company or any of its ERISA Affiliates
to severance pay, unemployment compensation or any other payment, except as
expressly provided in this Agreement, or (B) accelerate the time of payment
or vesting, or increase the amount of compensation due any such director,
officer or employee.
Section 3.18 Environmental Matters. Except as set forth in the Company
SEC Documents, neither the Company nor any of the Company Subsidiaries is the
subject of any federal, state, local, foreign or provincial investigation, and
neither the Company nor any of the Company Subsidiaries has received any
notice or claim, or entered into any negotiations or agreements with any
person, relating to any material liability or material remedial action or
potential material liability or material remedial action under any
environmental laws; and there are no pending, or, to the knowledge of the
Company, threatened actions, suits or proceedings against the Company, any
of the Company Subsidiaries or any of their respective properties, assets
or operations asserting any such material liability or seeking any material
remedial action in connection with any environmental laws.
Section 3.19 Labor Matters. Neither the Company nor any of its
Subsidiaries has any labor contracts, collective bargaining agreements or
material employment or consulting agreements with any persons employed by
the Company or any persons otherwise performing services primarily for the
Company or any of its Subsidiaries (the "Company Business Personnel").
There is no unfair labor practice complaint pending or, to the knowledge of
the Company, threatened, against the Company or any of its Subsidiaries
with respect to the Company Business Personnel which, in either such case,
would reasonably be expected to have, individually or in the aggregate, a
Company Material Adverse Effect. Since September 29, 1996, there has not
been any labor strike, dispute, slowdown or stoppage pending or, to the
knowledge of the Company, threatened against the Company or any of its
Subsidiaries, and neither the Company nor any of its Subsidiaries has
experienced any primary work stoppage or other labor difficulty involving
its employees, in either such case, which has had or would reasonably be
expected to have, individually or in the aggregate, a Company Material
Adverse Effect.
Section 3.20 Affiliate Transactions. Except as set forth in the
Company SEC Documents, there are no material Contracts or other material
transactions between the Company or any of its Subsidiaries, on the one
hand, and any (i) officer or director of the Company or of any of its
Subsidiaries, (ii) record or beneficial owner of five percent or more of
any class of the voting securities of the Company or (iii) affiliate (as
such term is defined in Rule 12b-2 promulgated under the Exchange Act) of
any such officer, director or beneficial owner, on the other hand.
Section 3.21 Opinion of Financial Advisor. The Company has received the
written opinion of Xxxxxxxxx Xxxxxx & Xxxxxxxx Securities Corporation ("DLJ")
to the effect that the consideration to be received in the Merger by the
holders of Company Common Stock is fair to such holders from a financial point
of view. A true, correct and complete copy of the written opinion
delivered by DLJ, which opinion shall be included in the Proxy Statement,
has been delivered to Parent by the Company.
Section 3.22 Brokers. Other than DLJ, no broker, finder or
financial advisor retained by the Company is entitled to any brokerage,
finder's or other fee or commission from the Company in connection with the
transactions contemplated by this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Except as set forth in the disclosure schedule of Parent and the
Purchaser attached hereto (the "Parent Disclosure Schedule") (each section of
which qualifies the correspondingly numbered representation and warranty
only), Parent and the Purchaser, jointly and severally, represent and warrant
to the Company as follows:
Section 4.1 Organization and Good Standing. Each of Parent and the
Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, and has the corporate power
and authority to carry on its business as it is now being conducted. Parent
is duly qualified as a foreign corporation to do business, and is in good
standing, in each jurisdiction where the character of its properties owned or
held under lease or the nature of its activities makes such qualification
necessary, except where the failure to be so qualified or in good standing
would not have a material adverse effect, individually or in the aggregate, on
the business, properties, assets, liabilities, condition (financial or
otherwise), or results of operations of Parent and its Subsidiaries taken
as a whole, or the ability of Parent or the Purchaser to consummate the
Merger and the other transactions contemplated by this Agreement (a "Parent
Material Adverse Effect").
Section 4.2 Certificate of Incorporation and By-Laws. True, correct
and complete copies of the Certificates of Incorporation and By-laws or
equivalent organizational documents, each as amended to date, of Parent and
the Purchaser have been made available to the Company. The Certificates of
Incorporation and By-laws, or equivalent organizational documents, of
Parent and each of its Subsidiaries are in full force and effect. Neither
Parent nor any of its Subsidiaries is in violation of any provision of its
Certificate of Incorporation, By-laws or equivalent organizational
documents.
Section 4.3 Capitalization.
(a) The authorized capital stock of Parent consists of (i) 900,000,000
shares of Class A Common Stock, par value $.10 per share, constituting Parent
Common Stock, and (ii) 900,000,000 shares of Class B Common Stock, par value
$.10 per share ("Parent Class B" and, together with Parent Common Stock,
"Parent Capital Stock"). As of June 28, 1997, (i) 112,807,465 shares of
Parent Common Stock were issued and outstanding, 6,735,000 shares were held
in the treasury of Parent and 102,670,113 shares were reserved for issuance
upon conversion of shares of Parent Class B, and (ii) 102,670,113 shares of
Parent Class B were issued and outstanding and no shares were held in the
treasury of Parent. Since June 28, 1997, Parent has not issued any shares
of its capital stock, or any security convertible into or exchangeable for
shares of such capital stock, other than (i) upon the exercise of stock
options or upon conversion of shares of Parent Class B as permitted under
Parent's Certificate of Incorporation and (ii) 1,058,524 shares of Parent
Common Stock in connection with the acquisition of Mallard's Food Products,
Inc. The authorized capital stock of the Purchaser consists of 1,000
shares of Common Stock, par value $.01 per share, constituting the
Purchaser Common Stock. As of the date hereof, 1,000 shares of Purchaser
Common Stock are issued and outstanding, all of which are owned by Parent,
and no shares of Purchaser Common Stock are held in the treasury of
Purchaser. All of the issued and outstanding shares of Parent Common Stock
and Purchaser Common Stock have been validly issued, and are fully paid and
nonassessable, and are not subject to preemptive rights. Each share of
Parent Common Stock to be issued in connection with the Merger has been
duly authorized and, when so issued, will be fully paid and nonassessable,
and will not be subject to preemptive rights.
(b) Except as described in Section 4.3(a) hereof: (i) no shares of
capital stock or other equity securities of Parent or Purchaser are
authorized, issued or outstanding, or reserved for issuance and there are no
options, warrants or other rights (including registration rights), agreements,
arrangements or commitments of any character to which Parent or Purchaser or
any of their respective Subsidiaries is a party relating to the issued or
unissued capital stock or other equity interests of Parent or Purchaser,
requiring Parent or Purchaser to grant, issue or sell any shares of the
capital stock or other equity interests of Parent or Purchaser or any of
their respective Subsidiaries by sale, lease, license or otherwise; (ii)
neither Parent nor any of its Subsidiaries have any obligation, contingent
or otherwise, to repurchase, redeem or otherwise acquire any shares of the
capital stock or other equity interests of Parent or Purchaser or any of
their respective Subsidiaries; (iii) none of Parent or Purchaser or any of
their respective Subsidiaries, directly or indirectly, owns, or has agreed
to purchase or otherwise acquire, the capital stock or other equity
interests of, or any interest convertible into or exchangeable or
exercisable for such capital stock or such equity interests, of any
corporation, partnership, joint venture or other entity which would be
material in value to Parent; and (iv) there are no voting trusts, proxies
or other agreements or understandings to or by which Parent or Purchaser or
any of their respective Subsidiaries is a party or is bound with respect to
the voting of any shares of capital stock or other equity interests of
Parent or Purchaser or any of their respective Subsidiaries.
Section 4.4 Parent Subsidiaries. Each Subsidiary of Parent is a
corporation, partnership or other entity duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation or
organization. Each Subsidiary of Parent has all requisite corporate power
and authority to carry on its business as it is now being conducted. Each
Subsidiary of Parent is duly qualified as a foreign corporation or
organization authorized to do business, and is in good standing, in each
jurisdiction where the character of its properties owned or held under
lease or the nature of its activities makes such qualification necessary,
except where the failure to be so qualified or in good standing would not,
individually or in the aggregate, have a Parent Material Adverse Effect.
All of the outstanding shares of capital stock or other ownership interests
in each of the Parent's Subsidiaries have been validly issued, and are
fully paid, nonassessable and are owned by Parent or another Subsidiary of
Parent free and clear of all Liens, and are not subject to preemptive
rights.
Section 4.5 Corporate Authority.
(a) Each of Parent and Purchaser has the requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement by Parent and Purchaser and the consummation by Parent and Purchaser
of the transactions contemplated hereby have been duly authorized by its
respective Board of Directors and no other corporate action on the part of
Parent or Purchaser is necessary to authorize the execution and delivery by
Parent and Purchaser of this Agreement and the consummation by it of the
transactions contemplated hereby. This Agreement has been duly executed
and delivered by Parent and Purchaser and constitutes a valid and binding
agreement of Parent and Purchaser and is enforceable against Parent and
Purchaser in accordance with its terms, except that (i) such enforcement
may be subject to any bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other laws, now or hereafter in effect, relating to
or limiting creditors' rights generally and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defense, and to the discretion of the court before
which any proceeding therefor may be brought. The preparation of the Proxy
Statement and the Registration Statement to be filed with the SEC has been
duly authorized by the Board of Directors of Parent.
(b) Prior to the execution and delivery of this Agreement, the Board of
Directors of each of Parent and Purchaser (at a meeting duly called and held)
has unanimously (i) approved this Agreement, the Stock Voting Agreement, the
Merger and the other transactions contemplated hereby, and (ii) determined
that the transactions contemplated hereby are fair to and in the best
interests of the holders of Parent Common Stock.
Section 4.6 Compliance with Applicable Law. (i) Each of Parent and its
Subsidiaries holds, and is in compliance with the terms of, all permits,
licenses, exemptions, orders and approvals of all Governmental Entities
necessary for the conduct of their respective businesses ("Parent Permits"),
except for failures to hold or to comply with such permits, licenses,
exemptions, orders and approvals which would not, individually or in the
aggregate, reasonably be expected to have a Parent Material Adverse Effect,
(ii) with respect to the Parent Permits, no action or proceeding is pending
or, to the knowledge of Parent, threatened and, to the knowledge of Parent,
no fact exists or event has occurred that would, individually or in the
aggregate, reasonably be expected to have a Parent Material Adverse Effect,
(iii) the business of Parent and its Subsidiaries is being conducted in
compliance with all Applicable Laws, except for violations or failures to
so comply that would not, individually or in the aggregate, reasonably be
expected to have a Parent Material Adverse Effect, and (iv) to the
knowledge of Parent, no investigation or review by any Governmental Entity
with respect to Parent or its Subsidiaries is pending or threatened, other
than, in each case, those which would not, individually or in the
aggregate, reasonably be expected to have a Parent Material Adverse Effect.
Section 4.7 Non-contravention. The execution and delivery by Parent and
the Purchaser of this Agreement do not, and the consummation of the
transactions contemplated hereby and compliance with the provisions hereof
will not, (i) result in any violation of, or default (with or without
notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to the loss
of a material benefit under any Contract binding upon Parent or any of its
Subsidiaries, or result in the creation of any Lien upon any of the
properties or assets of Parent or any of its Subsidiaries, (ii) conflict
with or result in any violation of any provision of the Certificate of
Incorporation or By-Laws or other equivalent organizational document, in
each case as amended, of Parent or any of its Subsidiaries, or (iii)
conflict with or violate any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to Parent or any of its
Subsidiaries or any of their respective properties or assets, other than,
in the case of clauses (i) and (iii), any such violation, conflict,
default, right, loss or Lien that, individually or in the aggregate, would
not reasonably be expected to have a Parent Material Adverse Effect.
Section 4.8 Government Approvals; Required Consents. No filing or
registration with, or authorization, consent or approval of, any
Governmental Entity is required by or with respect to Parent or any of its
Subsidiaries in connection with the execution and delivery of this
Agreement by Parent or is necessary for the consummation of the
transactions contemplated hereby (including, without limitation, the
Merger) except: (i) in connection, or in compliance, with the provisions
of the Securities Act, the Exchange Act, and any applicable state
securities or "blue sky" law, (ii) the filing of a notification under the
HSR Act, (iii) the filing of a Certificate of Merger with the Secretary of
State of the State of Delaware, (iv) such consents, approvals,
authorizations, permits, filings and notifications listed in the Parent
Disclosure Schedule and (v) such other consents, orders, authorizations,
registrations, declarations and filings the failure of which to obtain or
make would not, individually or in the aggregate, reasonably be expected to
have a Parent Material Adverse Effect.
Section 4.9 SEC Documents and Other Reports. Parent has filed all
documents required to be filed prior to the date hereof by it and its
Subsidiaries with the SEC since September 30, 1995 (the "Parent SEC
Documents"). As of their respective dates, or if amended as of the date of
the last such amendment, the Parent SEC Documents complied, and all
documents required to be filed by Parent with the SEC after the date hereof
and prior to the Effective Time ("Subsequent Parent SEC Documents") will
comply, in all material respects with the requirements of the Securities
Act or the Exchange Act, as the case may be, and the applicable rules and
regulations promulgated thereunder and none of the Parent SEC Documents
contained, and the Subsequent Parent SEC Documents will not contain, any
untrue statement of a material fact or omitted, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, or are to be made, not misleading. The consolidated financial
statements of Parent included in the Parent SEC Documents fairly present,
and included in the Subsequent Parent SEC Documents will fairly present,
the consolidated financial position of Parent and its consolidated
Subsidiaries, as at the respective dates thereof and the consolidated
results of their operations and their consolidated cash flows for the
respective periods then ended (subject, in the case of the unaudited
statements, to normal year-end audit adjustments and to any other
adjustments described therein) in conformity with GAAP (except, in the case
of the unaudited statements) applied on a consistent basis during the
periods involved (except as may be indicated therein or in the notes
thereto). Since September 30, 1995, Parent has not made any change in the
accounting practices or policies applied in the preparation of its
financial statements, except as may be required by GAAP.
Section 4.10 Absence of Certain Changes or Events. Except as set
forth in the Parent SEC Documents, since September 28, 1996, Parent and its
Subsidiaries have conducted their respective businesses and operations only
in the ordinary and usual course consistent with past practice and there
has not occurred (i) any event, condition or occurrence having or that
would reasonably be expected to have, individually or in the aggregate, a
Parent Material Adverse Effect; (ii) any damage, destruction or loss
(whether or not covered by insurance) having or which would reasonably be
expected to have, individually or in the aggregate, a Parent Material
Adverse Effect; or (iii) any declaration, setting aside or payment of any
dividend or distribution of any kind by Parent or the Purchaser on any
class of its capital stock.
Section 4.11 Actions and Proceedings. Except as set forth in the
Parent SEC Documents, there are no outstanding orders, judgments,
injunctions, awards or decrees of any Governmental Entity against Parent or
any of its Subsidiaries, any of their properties, assets or business, or,
to the knowledge of Parent, any of Parent's or its Subsidiaries' current or
former directors or officers or any other person whom Parent or any of its
Subsidiaries has agreed to indemnify, as such, that would reasonably be
expected to have, individually or in the aggregate, a Parent Material
Adverse Effect. Except as set forth in the Parent SEC Documents, there are
no actions, suits or legal, administrative, regulatory or arbitration
proceedings pending or, to the knowledge of Parent, threatened against
Parent or any of its Subsidiaries, any of their properties, assets or
business, or, to the knowledge of Parent, any of Parent's or its
Subsidiaries' current or former directors or officers or any other person
whom Parent or any of its Subsidiaries has agreed to indemnify, as such,
that relates to transactions contemplated by this Agreement or would
reasonably be expected to have, individually or in the aggregate, a Parent
Material Adverse Effect.
Section 4.12 Absence of Undisclosed Liabilities. Except as set forth
in the Parent SEC Documents and for liabilities or obligations which are
accrued or reserved against on the balance sheet (or reflected in the notes
thereto) included in Parent's Annual Report on Form 10-K for the year ended
September 28, 1996, neither Parent nor any of its Subsidiaries has any
material liabilities or obligations (including, without limitation, Tax
liabilities) (whether absolute, accrued, contingent or otherwise), other
than liabilities or obligations incurred in the ordinary course of business
since September 28, 1996 or liabilities under this Agreement.
Section 4.13 Information in Disclosure Documents and Registration
Statement. None of the information supplied or to be supplied by Parent
or the Purchaser for inclusion in (i) the Registration Statement or (ii)
the Proxy Statement will, in the case of the Registration Statement, at the
time it becomes effective or, in the case of the Proxy Statement or any
amendments thereof or supplements thereto, at the time of the initial
mailing of the Proxy Statement and any amendments or supplements thereto,
and at the time of the meeting of stockholders of Parent and the Company to
be held in connection with the Merger, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading. The
Registration Statement, as of its effective date, will comply (with respect
to information relating to Parent and the Purchaser) as to form in all
material respects with the requirements of the Securities Act, and the
rules and regulations promulgated thereunder, and as of the date of its
initial mailing and as of the date of the Company Stockholders Meeting, the
Proxy Statement will comply (with respect to information relating to Parent
and the Purchaser) as to form in all material respects with the applicable
requirements of the Exchange Act, and the rules and regulations promulgated
thereunder. Notwithstanding the foregoing, neither Parent nor the
Purchaser makes any representation with respect to any statement in the
foregoing documents based upon information supplied by the Company for
inclusion therein.
Section 4.14 Affiliate Transactions. Except as set forth in the Parent
SEC Documents, there are no material Contracts or other material transactions
between Parent or any of its Subsidiaries, on the one hand, and any (i)
officer or director of Parent or of any of its Subsidiaries, (ii) record or
beneficial owner of five percent or more of any class of the voting securities
of Parent or (iii) affiliate (as such term is defined in Regulation 12b-2
promulgated under the Exchange Act) of any such officer, director or
beneficial owner, on the other hand.
Section 4.15 Taxes. (i) Parent and each of its Subsidiaries has filed
all Tax Returns required to have been filed on or prior to the date hereof, or
appropriate extensions therefor have been properly obtained, and such Tax
Returns are true, correct and complete, except to the extent that any
failure to be true, correct and complete would not, individually or in the
aggregate, reasonably be expected to have a Parent Material Adverse Effect;
(ii) all Taxes shown to be due on such Tax Returns have been timely paid or
extensions for payment have been properly obtained, or such Taxes are being
timely and properly contested; (iii) Parent and each of its Subsidiaries
have complied in all material respects with all rules and regulations
relating to the withholding of Taxes, except to the extent that any failure
to comply with such rules would not, individually or in the aggregate,
reasonably be expected to have a Parent Material Adverse Effect; (iv)
neither Parent nor any of its Subsidiaries has waived any statute of
limitations in respect of its Taxes or Tax Returns; (v) any Tax returns of
Parent and its Subsidiaries relating to federal and Material State (as
defined below) income Taxes have been examined by the IRS or the
appropriate state taxing authority or the period for assessment of the
Taxes in respect of which such Tax Returns were required to be filed has
expired; (vi) no issues that have been raised in writing by a taxing
authority in connection with the examination of any federal or Material
State income Tax Returns of Parent and its Subsidiaries are currently
pending except those which would not, individually or in the aggregate,
reasonably be expected to have a Parent Material Adverse Effect; (vii) all
deficiencies asserted or assessments made as a result of any examination of
such Tax Returns by any taxing authority have been paid in full or are
being timely and properly contested; (viii) neither Parent nor any of its
Subsidiaries have any liability for Taxes of any person other than Parent
and its Subsidiaries under (a) Treasury Regulations Section 1.1502-6 (or
any similar provision of state, local or foreign law) or (b) any express or
implied agreement; and (ix) neither Parent nor any of its Subsidiaries have
been a member of any affiliated group within the meaning of Section 1504(a)
of the Code other than the affiliated group of which Parent is the common
parent corporation. For purposes of this Section 4.15, "Material State"
means any state for which the average allocation percentage for Parent and
its Subsidiaries for the past three (3) years exceeds ten percent (10%).
Section 4.16 Operations of Purchaser. The Purchaser has been formed
solely for the purpose of engaging in the transactions contemplated hereby,
has engaged in no other business activities and has conducted its
operations only as contemplated hereby.
Section 4.17 Brokers. Other than Xxxxxxxx Inc., no broker, finder
or financial adviser retained by Parent and the Purchaser is entitled to
any brokerage, finder's or other fee or commission from Parent and the
Purchaser in connection with the transactions contemplated by this
Agreement.
ARTICLE V
CONDUCT OF BUSINESS PENDING THE MERGER
Section 5.1 Conduct of Business by the Company Pending the Merger.
Prior to the Effective Time, unless Parent shall otherwise agree in writing
(which agreement shall not be unreasonably withheld), or as set forth in
Section 5.1 of the Company Disclosure Schedule, the Company shall conduct,
and cause each of its Subsidiaries to conduct, its business only in the
ordinary and usual course consistent with past practice, and the Company
shall use, and cause each of its Subsidiaries to use, its reasonable best
efforts to preserve intact the present business organization, keep
available the services of its present officers and key employees, and
preserve their existing business relationships. Without limiting the
generality of the foregoing, unless Parent shall otherwise agree in writing
(which agreement shall not be unreasonably withheld), or as set forth in
Section 5.1 of the Company Disclosure Schedule, prior to the Effective Time
the Company shall not, nor shall it permit any of its Subsidiaries to:
(a) (i) amend its Certificate of Incorporation, as amended, By-Laws
or other organizational documents, (ii) split, combine or reclassify any
shares of its outstanding capital stock, (iii) declare, set aside or pay
any dividend or other distribution payable in cash, stock or property
(other than regular quarterly dividends with record dates and payment dates
substantially consistent with past practice of not more than $.02 per share
of Class A Common Stock and $.0167 per share of Class B Common Stock (it
being the express understanding of Parent and the Company that the share
holders of the Company shall be entitled to either a dividend on the Shares
or on the shares of Parent Common Stock, but not both, for the quarter in
which the Closing shall occur, and the Board of Directors of the Company
shall not declare any dividend or fix any record therefor which would have
such effect)), or (iv) directly or indirectly redeem or otherwise acquire
any shares of its capital stock or shares of the capital stock of any of
its Subsidiaries;
(b) authorize for issuance, issue (except upon the exercise of
outstanding stock options or warrants) or sell or agree to issue or sell any
shares of, or rights to acquire or convertible into any shares of, its
capital stock (other than pursuant to the terms of the Company's Employee
Stock Purchase Plan, as amended in accordance with Section 6.14 hereof) or
shares of the capital stock of any of its Subsidiaries (whether through the
issuance or granting of options, warrants, commitments, subscriptions,
rights to purchase or otherwise);
(c) (i) merge, combine or consolidate with another entity, (ii)
acquire or purchase an equity interest in or a substantial portion of the
assets of another corporation, partnership or other business organization
or otherwise acquire any assets outside the ordinary course of business and
consistent with past practice or otherwise enter into any material
contract, commitment or transaction outside the ordinary course of business
and consistent with past practice or (iii) sell, lease, license, waive,
release, transfer, encumber or otherwise dispose of any of its material
assets outside the ordinary course of business and consistent with past
practice;
(d) (i) incur, assume or prepay any indebtedness, obligations or
liabilities other than in each case in the ordinary course of business and
consistent with past practice, (ii) assume, guarantee, endorse or otherwise
become liable or responsible (whether directly, contingently or otherwise)
for the obligations of any other person other than a Subsidiary of the
Company, in each case other than in the ordinary course of business and
consistent with past practice or (iii) make any loans, advances or capital
contributions to, or investments in, any other person, other than to any
Subsidiary of the Company;
(e) pay, satisfy, discharge or settle any material claim, liabilities
or obligations (absolute, accrued, contingent or otherwise), other than in the
ordinary course of business and consistent with past practice or pursuant
to mandatory terms of any Company Contract in effect on the date hereof;
(f) modify or amend, or waive any benefit of, any non-competition
agreement to which the Company or any of its Subsidiaries is a party;
(g) authorize or make capital expenditures in excess of $200,000
individually, or in excess of $1,000,000 in the aggregate except for those
projects currently in progress as set forth in Section 5.1(g) of the
Company Disclosure Schedule;
(h) permit any insurance policy naming the Company or any Subsidiary
of the Company as a beneficiary or a loss payee to be cancelled or
terminated other than in the ordinary course of business;
(i) (i) adopt, enter into, terminate or amend (except as may be
required by Applicable Law) any employee plan, agreement, contract,
arrangement or other Company Plan, including the Company's Employee Stock
Purchase Plan, for the current or future benefit or welfare of any director,
officer or employee, (ii) except in the ordinary course of business
consistent with past practice, increase in any manner the compensation or
fringe benefits of, or pay any bonus to, any director, officer or employee;
provided, however, that no such increase or payment shall be made to or for
the benefit of any person listed in Section 5.1(i) of the Company
Disclosure Schedule, or (iii) other than pursuant to Section 2.7 hereof,
take any action to fund or in any other way secure, or to accelerate or
otherwise remove restrictions with respect to, the payment of compensation
or benefits under any employee plan, agreement, contract, arrangement or
other Company Plan;
(j) make any material change in its accounting or tax policies or
procedures, except as required by Applicable Law or to comply with GAAP; or
(k) enter into any contract, agreement, commitment or arrangement with
respect to any of the foregoing.
ARTICLE VI
ADDITIONAL AGREEMENTS
Section 6.1 Access and Information. Each party hereto shall (and shall
cause its Subsidiaries and its and their respective officers, directors,
employees, auditors and agents to) afford to the other party and to such other
party's officers, employees, financial advisors, legal counsel, accountants,
consultants and other representatives (except to the extent not permitted
under Applicable Law as advised by counsel) reasonable access during normal
business hours throughout the period prior to the Effective Time to all of
its books and records and its properties, plants and personnel and, during
such period, shall furnish promptly to the other party a copy of each
report, schedule and other document filed or received by it pursuant to the
requirements of federal securities laws. Unless otherwise required by
Applicable Law, each party hereto agrees that it shall, and it shall cause
its Subsidiaries and its and their respective officers, directors,
employees, auditors and agents to, hold in confidence all non-public
information so acquired and to use such information solely for purposes of
effecting the transactions contemplated by this Agreement.
Section 6.2 No Solicitation.
(a) Prior to the Effective Time, the Company agrees that it shall not,
and it shall use its reasonable best efforts to cause its Subsidiaries and
affiliates, and their respective directors, officers, employees, agents or
representatives not to, directly or indirectly, (i) solicit or initiate
(including by way of furnishing or disclosing non-public information) any
inquiries or the making of any proposal with respect to any merger,
consolidation or other business combination involving the Company or any
Subsidiary of the Company or the acquisition of all or any significant part
of the assets or capital stock of the Company or any Subsidiary of the
Company (other than the sale by the Company (y) of its Columbus, Nebraska
beef processing plant and (z) the Company's minority interest in Diversity
Foods LLC) (an "Acquisition Transaction") or (ii) negotiate, explore or
otherwise engage in discussions with any person (other than Parent and its
representatives) with respect to any Acquisition Transaction, or which may
reasonably be expected to lead to a proposal for an Acquisition Trans
action or enter into any agreement, arrangement or under standing with
respect to any such Acquisition Transaction or which would require it to
abandon, terminate or fail to consummate the Merger or any other
transaction contemplated by this Agreement; provided, however, that, the
Company may, in response to an unsolicited written proposal from a third
party regarding a Superior Proposal (as hereinafter defined), furnish
information to, negotiate or otherwise engage in discussions with such
third party, if the Board of Directors of the Company determines in good
faith, based upon the advice of outside counsel, that such action is
required for the Board of Directors to comply with its fiduciary duties
under Applicable Law.
(b) Except as may be required to comply with the fiduciary duties
of the Company's Board of Directors under Applicable Law (based on the
advice of outside counsel), the Company agrees that, as of the date hereof,
it, its Subsidiaries and affiliates, and the respective directors,
officers, employees, agents and representatives of the foregoing, shall
immediately cease and cause to be terminated any existing activities,
discussions and negotiations with any person (other than Parent and its
representatives) conducted heretofore with respect to any Acquisition
Transaction. The Company agrees to promptly advise Parent of any inquiries
or proposals received by, any such information requested from, and any
negotiations or discussions sought to be initiated or continued with, the
Company, its Subsidiaries or affiliates, or any of the respective
directors, officers, employees, agents or representatives of the foregoing,
in each case from a person (other than Parent and its representatives)
with respect to an Acquisition Transaction. As used herein, "Superior
Proposal" means a bona fide, written and unsolicited proposal or offer made
by any person or group (other than Parent or any of its Subsidiaries) with
respect to an Acquisition Transaction on terms which the Board of Directors
of the Company determines in good faith, and in the exercise of reasonable
judgment (based on the advice of independent financial advisors and legal
counsel), to be more favorable to the Company and its stockholders than the
transactions contemplated hereby (including taking into account the
financing thereof).
Section 6.3 Third-Party Standstill Agreements. During the period from
the date of this Agreement through the Effective Time, the Company shall not
terminate, amend, modify or waive any provision of any confidentiality or
standstill agreement to which it or any of its Subsidiaries is a party.
Section 6.4 Registration Statement. As promptly as practicable,
Parent and the Company shall in consultation with each other prepare and
file with the SEC the Proxy Statement and Registration Statement in
preliminary form. Each of the Company and Parent shall use its reasonable
best efforts to have the Proxy Statement cleared by the SEC and the
Registration Statement declared effective as soon as practicable. The
Company shall furnish Parent with all information concerning the Company
and the holders of its capital stock and shall take such other action
Parent may reasonably request in connection with the Registration Statement
and the issuance of shares of Parent Common Stock in connection with the
Merger. If, at any time prior to the Effective Time, any event or
circumstance relating to the Company, any Subsidiary of the Company, Parent
or any Subsidiary of Parent, or their respective officers or directors,
should be discovered by such party which should be set forth in an
amendment or a supplement to the Registration Statement or Proxy Statement,
such party shall promptly inform the other thereof and take appropriate
action in respect thereof.
Section 6.5 Proxy Statements; Stockholder Approval.
(a) The Company, acting through its Board of Directors, shall, subject
to and in accordance with Applicable Law, its Certificate of Incorporation and
its By-Laws, promptly and duly call, give notice of, convene and hold as soon
as practicable following the date upon which the Registration Statement
becomes effective a meeting of the holders of Company Common Stock for the
purpose of voting to approve and adopt this Agreement and the transactions
contemplated hereby (the "Company Stockholder Meeting"), and, (i) except as
required to comply with the fiduciary duties of the Board of Directors as
advised by outside counsel, recommend approval and adoption of this
Agreement and the transactions contemplated hereby by the stockholders of
the Company and include in the Proxy Statement such recommendation and (ii)
except as required to comply with the fiduciary duties of the Board of
Directors as advised by outside counsel, take all reasonable action to
solicit and obtain such approval.
(b) The Company, as promptly as practicable, shall cause the
definitive Proxy Statement to be mailed to its stockholders as soon as
practicable following the date on which it is cleared by the SEC and the
Registration Statement is declared effective.
Section 6.6 Compliance with the Securities Act. Prior to the Effective
Time, the Company shall cause to be prepared and delivered to Parent a list
(reasonably satisfactory to counsel for Parent) identifying each person who,
at the time of the Company Stock holder Meeting, may be deemed to be an
"affiliate" of the Company, as such term is used in paragraphs (c) and (d)
of Rule 145 under the Securities Act (the "Company Rule 145 Affiliates").
The Company shall use its reasonable best efforts to cause each person who
is identified as a Company Rule 145 Affiliate in such list to deliver to
Parent on or prior to the Effective Time a written agreement, substantially
in the form of Exhibit B hereto.
Section 6.7 Reasonable Best Efforts.
(a) Subject to the terms and conditions herein provided and applicable
legal requirements, each of the parties hereto agrees to use its reasonable
best efforts to take, or cause to be taken, all action, and to do, or cause to
be done, and to assist and cooperate with the other parties hereto in doing,
as promptly as practicable, all things necessary, proper or advisable under
applicable laws and regulations to ensure that the conditions set forth in
Article VII are satisfied and to consummate and make effective the
transactions contemplated by this Agreement; provided, however, that the
Company shall not, without Parent's prior written consent, and Parent shall
not be required to, divest or hold separate or otherwise take or commit to
take any other similar action with respect to any assets, businesses or
product lines of Parent, the Company or any of their respective
Subsidiaries.
(b) Each of the parties shall use its reasonable best efforts to
obtain as promptly as practicable all consents, waivers, approvals,
authorizations or permits of, or registration or filing with or
notification to (any of the foregoing being a "Consent"), of any
Governmental Entity or any other person required in connection with, and
waivers of any violations, defaults or breaches that may be caused by, the
consummation of the transactions contemplated by this Agreement.
(c) Each party hereto shall promptly inform the other of any
material communication from the SEC, the United States Federal Trade
Commission, the United States Department of Justice or any other
Governmental Entity regarding any of the transactions contemplated by this
Agreement. If any party hereto or any affiliate thereof receives a request
for additional information or documentary material from any such
Governmental Entity with respect to the transactions contemplated by this
Agreement, then such party shall use commercially reasonable efforts to
cause to be made, as soon as reasonably practicable and after consultation
with the other party, an appropriate response in compliance with such
request.
(c) Without limiting the generality of the foregoing and subject to
the proviso to Section 6.7(a) hereof, Parent and the Company will use their
respective reasonable best efforts to obtain all authorizations or waivers
required under the HSR Act to consummate the transactions contemplated
hereby, including, without limitation, making all filings with the
Antitrust Division of the Department of Justice ("DOJ") and the Federal
Trade Commission ("FTC") required in connection therewith (the initial
filing to occur no later than ten business days following the execution and
delivery of this Agreement) and responding as promptly as practicable to
all inquiries received from the DOJ or FTC for additional information or
documentation. Each of Parent and the Company shall furnish to the other
such necessary information and reasonable assistance as the other may
request in connection with its preparation of any filing or submission
which is necessary under the HSR Act. Parent and the Company shall keep
each other apprised of the status of any communications with, and any
communications with, and any inquiries or requests for additional
information from, the FTC and the DOJ.
(d) The parties hereto intend the Merger to qualify as a
reorganization under Sections 368(a)(1)(A) and 368(a)(2)(D) of the Code.
Each of the parties hereto shall, and shall cause its respective
Subsidiaries to, and shall use its reasonable best efforts to cause its
respective affiliates to, use its and their respective reasonable best
efforts to cause the Merger to so qualify. No party hereto nor any
affiliate thereof shall take any action that would cause the Merger not to
qualify under these Sections of the Code, and the parties hereto shall take
the position for all purposes that the Merger qualifies as a reorganization
under such Sections of the Code.
Section 6.8 Employee Benefits. Parent currently intends to cause the
Surviving Corporation and its Subsidiaries, after the Effective Time, to
provide employees of the Company such compensation, employee bene fit plans
and employee programs, arrangements and agreements which, in the aggregate,
are no less favorable than currently provided to similarly situated
employees of Parent. Nothing in this Agreement shall prohibit Parent, the
Surviving Corporation or any of their respective Subsidiaries from amending
or terminating any such plan, program, arrangement or agreement at any time
in accordance with Applicable Law (except as to benefits already vested
thereunder) and subject to the terms of such plans, programs or
arrangements or other agreements.
Section 6.9 Public Announcements. Parent and the Company shall
consult with each other before issuing any press releases or otherwise
making any public statement with respect to the transactions contemplated
by this Agreement and shall not issue any such press release or make any
such public statement prior to such consultation and without approval
(which shall not unreasonably be withheld and which shall be timely given)
of the other, except as may be required by applicable law or by existing
obligations pursuant to any listing agreement with any national securities
exchange.
Section 6.10 Directors' and Officers' Indemnification and Insurance.
(a) Parent and the Company agree that all rights to indemnification
now existing in favor of any employee, agent, director or officer of the
Company and its Subsidiaries (the "Indemnified Parties"), as provided in
their respective certificates of incorporation or by-laws, or in an
agreement between an Indemnified Party and the Company or one of its
Subsidiaries set forth in Section 6.10 of the Company Disclosure Schedule,
shall survive the Merger and shall continue in full force and effect for a
period of six years after the Effective Time; provided that in the event
any claim or claims are asserted or made within such six-year period, all
rights to indemnification in respect of any such claim shall continue until
final disposition of such claim.
(b) Parent agrees that from and after the Effective Time, the Surviving
Corporation shall cause to be maintained in effect for six years after the
Effective Time the policies of the directors' and officers' liability
insurance maintained by the Company on the date hereof and listed in
Section 6.10 of the Company Disclosure Schedule; provided that the
Surviving Corporation may substitute therefor policies of at least the same
coverage containing terms and conditions which are no less advantageous to
the Indemnified Parties and provided that such substitution shall not
result in any gaps or lapses in coverage with respect to matters occurring
prior to the Effective Time; and provided, further, that the Surviving
Corporation shall not be required to pay an annual premium in excess of
150% of the last annual premium paid by the Company prior to the date
hereof (the "Maximum Amount") (which premium is set forth in Section 6.10
of the Company Disclosure Schedule) and if the Surviving Corporation is
unable to obtain the insurance required by this Section 6.10, it shall
obtain as much comparable insurance as possible for an annual premium equal
to the Maximum Amount.
Section 6.11 Expenses. Except as otherwise set forth in Sections
8.2(b) and (c), each party hereto shall bear its own costs and expenses in
connection with this Agreement and the transactions contemplated hereby.
Section 6.12 Listing Application. Parent shall each use its reasonable
best efforts to cause the shares of Parent Common Stock to be issued pursuant
to this Agreement in the Merger to be listed for trading on the NASDAQ
National Market or on any securities exchange on which shares of Parent Common
Stock shall be listed at the Effective Time.
Section 6.13 Supplemental Disclosure. The Company shall give prompt
notice to Parent, and Parent shall give prompt notice to the Company, of (i)
the occurrence, or non-occurrence, of any event the occurrence, or non-
occurrence, of which would be likely to cause (x) any representation or
warranty contained in this Agreement to be untrue or inaccurate or (y) any
covenant, condition or agreement contained in this Agreement not to be
complied with or satisfied and (ii) any failure of the Company or Parent,
as the case may be, to comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by it hereunder; provided,
however, that the delivery of any notice pursuant to this Section 6.13
shall not have any effect for the purpose of determining the satisfaction
of the conditions set forth in Article VII of this Agreement or otherwise
limit or affect the remedies available hereunder to any party.
Section 6.14 Purchase Plan. Immediately hereafter the Company shall
amend its Employee Stock Purchase Plan to prohibit prior to the termination
of this Agreement the modification by any participant of any election
thereunder the effect of which is to increase such participant's
contributions to the plan above the level of such participant's
contributions as of the date hereof.
ARTICLE VII
CONDITIONS TO CONSUMMATION OF THE MERGER
Section 7.1 Conditions to Each Party's Obligation to Effect the
Merger. The respective obligations of each party to effect the Merger
shall be subject to the satisfaction or waiver at or prior to the Closing
Date of the following conditions:
(a) Stockholder Approval. This Agreement and the transactions
contemplated hereby shall have been approved and adopted by the requisite vote
(as described in Section 3.5(b)) of the Company in accordance with Applicable
Law.
(b) Governmental Approvals. All authorizations, consents, orders,
declarations or approvals of, or filings with, or terminations or
expirations of waiting periods imposed by, any Governmental Entity, which
the failure to obtain, make or occur would have the effect of making the
Merger or any of the transactions contemplated hereby illegal or would have
a Material Adverse Effect on Parent or the Company (as the Surviving
Corporation) or would materially impair the operations of the Surviving
Corporation, assuming the Merger had taken place, shall have been obtained,
shall have been made or shall have occurred.
(c) HSR Act. The waiting period under the HSR Act shall have expired
or been terminated.
(d) Registration Statement. The Registration Statement shall have
become effective in accordance with the provisions of the Securities Act.
No stop order suspending the effectiveness of the Registration Statement
shall have been issued by the SEC and no proceedings for that purpose shall
have been initiated by the SEC.
(e) No Injunction. No Governmental Entity having jurisdiction over
the Company or Parent, or any of their respective Subsidiaries, shall have
enacted, issued, promulgated, enforced or entered any law, rule,
regulation, executive order, decree, injunction or other order (whether
temporary, preliminary or permanent) which is then in effect and has the
effect of making the Merger or the Stock Voting Agreement illegal or
otherwise prohibiting consummation of the Merger.
Section 7.2 Conditions to Obligation of Parent and the Purchaser to
Effect the Merger. The obligation of Parent and the Purchaser to effect the
Merger shall be subject to the satisfaction at or prior to the Effective Time
of the following additional conditions, unless waived in writing by Parent:
(a) Representations and Warranties. The representations and
warranties of the Company that are qualified with reference to materiality
shall be true and correct, and the representations and warranties that are
not so qualified shall be true and correct in all material respects, in
each case as of the date hereof, and, except to the extent such
representations and warranties speak as of an earlier date, as of the
Effective Time as though made at and as of the Effective Time, and Parent
shall have received a certificate signed on behalf of the Company by the
Chief Executive Officer or the Chief Financial Officer of the Company to
such effect.
(b) Performance of Obligations of the Company. The Company shall have
performed in all material respects all obligations required to be performed
by it under this Agreement at or prior to the Effective Time, and Parent
shall have received a certificate signed on behalf of the Company by the
Chief Executive Officer or the Chief Financial Officer of the Company to
such effect.
(c) Material Adverse Change. Except as set forth in Section 7.2 of
the Company Disclosure Schedule, since the date of this Agreement, there
shall have been no event or occurrence which has had, or would reasonably
be expected to have, a Company Material Adverse Effect, and Parent shall
have received a certificate signed on behalf of the Company by the Chief
Executive Officer or the Chief Financial Officer of the Company to such
effect.
(d) Company Affiliate Agreements. Parent shall have received the
written agreements, substantially in the form of Exhibit B hereto, from the
Company Rule 145 Affiliates described in Section 6.6.
(e) Litigation. There shall not have been instituted or be pending, or
threatened, any suit, action or proceeding by any Governmental Entity as a
result of this Agreement or any of the transactions contemplated hereby which,
if such Governmental Entity were to prevail, would reasonably be expected to
have a Parent Material Adverse Effect or Company Material Adverse Effect
(as the Surviving Corporation).
(f) Consents Under Agreements. The Company shall have obtained the
consent or approval of each person (other than the Governmental Entities
referred to in Section 7.1(b)) whose consent or approval shall be required in
connection with the transactions contemplated hereby under any indenture,
mortgage, evidence of indebtedness, lease or other agreement or instrument,
except where the failure to obtain the same would not reasonably be
expected, individually or in the aggregate, to have a Parent Material
Adverse Effect or Company Material Adverse Effect (as the Surviving
Corporation).
(g) Tax Opinion. Parent shall have received an opinion of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to Parent, to the effect that
the Merger will qualify as a reorganization within the meaning of Section 368
of the Code. The issuance of such opinion shall be conditioned on the receipt
by such tax counsel of representation letters from each of Parent and the
Purchaser, the Company and certain stockholders of the Company, including, but
not limited to, Xxxxx X. Xxxxxx, in each case, in form and substance
reasonably satisfactory to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP. The
specific provisions of each such representation letter shall be in form and
substance reasonably satisfactory to such tax counsel, and each such
representation letter shall be dated on or before the date of such opinion
and shall not have been withdrawn or modified in any material respect.
Section 7.3 Conditions to Obligation of the Company to Effect the
Merger. The obligation of the Company to effect the Merger shall be
subject to the satisfaction at or prior to the Effective Time of the
following additional conditions, unless waived in writing by the Company:
(a) Representations and Warranties. The representations and
warranties of Parent and the Purchaser that are qualified with reference to
materiality shall be true and correct, and the representations and
warranties that are not so qualified shall be true and correct in all
material respects, in each case as of the date hereof, and, except to the
extent such representations and warranties speak as of an earlier date, as
of the Effective Time as though made on and as of the Effective Time, and
the Company shall have received a certificate signed on behalf of Parent by
the Chief Executive Officer or the Chief Financial Officers of Parent to
such effect.
(b) Performance of Obligations of Parent and Purchaser. Each of Parent
and the Purchaser shall have performed in all material respects all obligations
required to be performed by it under this Agreement at or prior to the
Effective Time, and the Company shall have received a certificate signed on
behalf of Parent and the Purchaser by the Chief Executive Officer or the Chief
Financial Officer of Parent and the Purchaser to such effect.
(c) Material Adverse Change. Since the date of this Agreement, there
shall have been no event or occurrence which has had, or would reasonably be
expected to have, a Parent Material Adverse Effect, and the Company shall
have received a certificate signed on behalf of Parent by the Chief
Executive Officer or the Chief Financial Officer of Parent to such effect.
(d) Tax Opinion. The Company shall have received an opinion of Xxxxx
Xxxx & Xxxxxxxx, special counsel to the Company, to the effect that the Merger
will qualify as a reorganization within the meaning of Section 368 of the
Code. The issuance of such opinion shall be conditioned on the receipt by
such tax counsel of representation letters from each of Parent and the
Purchaser, the Company and certain stockholders of the Company, including, but
not limited to, Xxxxx X. Xxxxxx, in each case, in form and substance
reasonably satisfactory to Xxxxx Xxxx & Xxxxxxxx. The specific provisions of
each such representation letter shall be in form and substance reasonably
satisfactory to such tax counsel, and each such representation letter shall
be dated on or before the date of such opinion and shall not have been
withdrawn or modified in any material respect.
ARTICLE VIII
TERMINATION
Section 8.1 Termination. This Agreement may be terminated, and the
Merger and the other transactions contemplated hereby may be abandoned, at any
time prior to the Effective Time, whether before or after approval by the
stockholders of the Company or Parent:
(a) by mutual written consent of Parent and the Company;
(b) by either Parent or the Company, if (i) the Merger shall not have
been consummated on or before February 28, 1998 or (ii) the stockholders of
the Company do not approve this Agreement by the requisite vote at a
meeting duly convened therefor or any adjournment thereof (unless, in the
case of any such termination pursuant to this Section 8.1(b), the failure
of such event to occur shall have been caused by the action or failure to
act of the party seeking to terminate this Agreement, which action or
failure to act constitutes a breach of such party's obligations under this
Agreement);
(c) by either Parent or the Company, if any permanent injunction,
order, decree or ruling by any Governmental Entity of competent jurisdiction
preventing the consummation of the Merger shall have become final and
nonappealable; provided, however, subject to the proviso to Section 6.7(a)
hereof, that the party seeking to terminate this Agreement pursuant to this
Section 8.1(c) shall have used reasonable best efforts to remove such
injunction or overturn such action;
(d) by Parent, if (i) there has been a breach of any of the
representations or warranties, covenants or agreements of the Company set
forth in this Agreement, the effect of which is a Company Material Adverse
Effect, which breach is not curable or, if curable, is not cured within 30
days after written notice of such breach is given by Parent to the Company,
or (ii) the Board of Directors of the Company (x) fails to recommend the
approval of this Agreement and the Merger to the Company's stockholders in
accordance with Section 6.5(a) hereof, or (y) withdraws or amends or
modifies in a manner adverse to Parent its recommendation or approval in
respect of this Agreement or the Merger or fails to reconfirm such
recommendation within two business days of a written request for such
confirmation by Parent;
(e) by the Company if the Board of Directors of the Company shall
reasonably determine that a proposal for an Acquisition Transaction
constitutes a Superior Proposal; provided, however, that the Company may
not terminate this Agreement pursuant to this subsection (e) unless (i)
five business days shall have elapsed after delivery to Parent of a written
notice of such determination by such Board of Directors and, during such
five business day period, the Company shall have fully cooperated with
Parent, including, without limitation, informing Parent of the terms and
conditions of such proposal for an Acquisition Transaction and the identity
of the person or group making such proposal for an Acquisition Transaction,
with the intent of enabling Parent to agree to a modification of the terms
and conditions of this Agreement so that the transactions contemplated
hereby may be effected, and (ii) at the end of such five business day
period, the Board of Directors of the Company shall continue reasonably to
believe that such proposal for an Acquisition Transaction constitutes a
Superior Proposal and promptly thereafter the Company shall enter into a
definitive acquisition, merger or similar agreement to effect such Superior
Proposal; and
(f) by the Company, if there has been a breach of any of the
representations or warranties, covenants or agreements of Parent or the
Purchaser set forth in this Agreement, the effect of which is a Parent
Material Adverse Effect, which breach is not curable or, if curable, is not
cured within 30 days after written notice of such breach is given by the
Company to Parent.
Section 8.2 Effect of Termination.
(a) In the event of termination of this Agreement pursuant to this
Article VIII, the Merger shall be deemed abandoned and this Agreement shall
forthwith become void, except that the provisions of the last sentence of
Section 6.1, Section 6.11 and this Section 8.2 shall survive any termination
of this Agreement; provided, however, that, except as set forth in
Subsection (c) below, nothing in this Agreement shall relieve any party
from liability for any breach of this Agreement.
(b) If (x) Parent shall have terminated this Agreement pursuant to
Section 8.1(d)(ii) or (y) the Company shall have terminated this Agreement
pursuant to Section 8.1(e), then, in any such case, the Company shall pay
Parent (A) a termination fee of $22.5 million plus (B) an amount equal to $5
million which the parties agree represents a good faith estimate of Parent's
expenses in connection with this Agreement (including, without limitation,
attorneys' fees and fees of financial advisors). Any fees or amounts payable
under this Section 8.2(b) shall be paid in same day funds contemporaneously
with a termination described in either clause (x) or (y) of this Section
8.2(b), and no notice of termination pursuant to such sections shall be
effective and this Agreement shall not terminate, until such termination
fee is received by Parent.
(c) If Parent or the Company shall have terminated this Agreement
pursuant to Section 8.1(b)(i) and at the time of such termination all other
conditions to the Merger have been satisfied or waived other than the
applicable waiting period under the HSR Act having expired or been terminated,
then Parent shall pay the Company $10 million; provided that Parent shall pay
the Company an additional $5 million if, in addition to the circumstances
described in this subsection, the circumstances set forth in Section 8.2(c)
of the Company Disclosure Schedule shall have occurred.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1 Amendment and Modification. At any time prior to the
Effective Time, this Agreement may be amended, modified or supplemented only
by written agreement (referring specifically to this Agreement) of Parent and
the Company with respect to any of the terms contained herein; provided,
however, that after any approval and adoption of this Agreement by the
stockholders of the Company, no such amendment, modification or
supplementation shall be made which under Applicable Law requires the
approval of such stockholders, without the further approval of such
stockholders.
Section 9.2 Waiver. At any time prior to the Effective Time, Parent,
on the one hand, and the Company, on the other hand, may (i) extend the
time for the performance of any of the obligations or other acts of the
other, (ii) waive any inaccuracies in the representations and warranties of
the other contained herein or in any documents delivered pursuant hereto
and (iii) waive compliance by the other with any of the agreements or
conditions contained herein which may legally be waived. Any such extension
or waiver shall be valid only if set forth in an instrument in writing
specifically referring to this Agreement and signed on behalf of
such party.
Section 9.3 Survivability; Investigations. The respective
representations and warranties of Parent and Purchaser, on the one hand, and
the Company, on the other hand, contained herein or in any certificates or
other documents delivered prior to or as of the Effective Time (i) shall not
be deemed waived or otherwise affected by any investigation made by any party
hereto and (ii) shall not survive beyond the Effective Time. The covenants
and agreements of the parties hereto (including the Surviving Corporation
after the Merger) shall survive the Effective Time, without limitation
(except for those which, by their terms, contemplate a shorter survival
period).
Section 9.4 Notices. All notices and other communications hereunder
shall be in writing and shall be delivered personally or by next-day courier
or telecopied with confirmation of receipt, to the parties at the ad
dresses specified below (or at such other address for a party as shall be
specified by like notice; provided that notices of a change of address shall
be effective only upon receipt thereof). Any such notice shall be effective
upon receipt, if personally delivered or telecopied, or one day after
delivery to a courier for next-day delivery.
If to Parent or the Purchaser, to:
Tyson Foods, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Executive Vice President
and Chief Financial Officer
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with copies to:
Skadden, Arps, Slate, Xxxxxxx
& Xxxx LLP
Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to the Company, to:
Xxxxxx Foods, Inc.
0000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Section 9.5 Descriptive Headings; Interpretation. The headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement.
References in this Agreement to Sections, Exhibits or Articles mean a
Section, Exhibit or Article of this Agreement unless otherwise indicated.
References to this Agreement shall be deemed to include the Exhibits
hereto, the Company Disclosure Schedule and the Parent Disclosure Schedule,
unless the context otherwise requires. The term "person" shall mean and
include an individual, a partnership, a joint venture, a corporation, a
trust, a Governmental Entity or an unincorporated organization.
Section 9.6 Entire Agreement. This Agreement (including the Exhibits,
the Company Disclosure Schedule and the Parent Disclosure Schedule)
constitutes the entire agreement and supersedes all other prior agreements
and understandings, both written and oral, among the parties or any of
them, with respect to the subject matter hereof.
Section 9.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to the provisions thereof relating to conflicts of law.
Section 9.8 Enforcement. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any
court of the United States located in the State of Delaware or in Delaware
state court, this being in addition to any other remedy to which they are
entitled at law or in equity. In addition, each of the parties hereto (a)
consents to submit itself to the personal jurisdiction of any federal court
located in the State of Delaware or any Delaware state court in the event
any dispute arises out of this Agreement or any of the transactions
contemplated by this Agreement, (b) agrees that it will not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave
from any such court and (c) agrees that it will not bring any action
relating to this Agreement or any of the transactions contemplated by this
Agreement in any court other than a federal or state court sitting in the
State of Delaware.
Section 9.9 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same agreement.
Section 9.10 Assignment; Third-Party Beneficiaries. This Agreement
and the rights, interests and obligations hereunder shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns; provided, however, that no party hereto may assign or otherwise
transfer its rights, interests or obligations hereunder without the prior
written consent of the other parties hereto. Nothing in this Agreement is
intended to confer upon any person other than the parties hereto any rights
or remedies hereunder.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREFORE, Parent, the Purchaser and the Company have caused
this Agreement and Plan of Merger to be executed on its behalf by their
respective officers thereunto duly authorized, all as of the date first above
written.
TYSON FOODS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
HFI ACQUISITION SUB INC.
By: /s/ Xxxxx Xxxxx
-----------------------------------
Xxxxx Xxxxx
President
XXXXXX FOODS, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx
Chairman
