1
================================================================================
AGREEMENT AND PLAN OF MERGER
by and among
CERTAINTEED CORPORATION,
BI EXPANSION CORP.
and
BIRD CORPORATION
Dated as of March 14, 1996
================================================================================
2
TABLE OF CONTENTS
Page
----
ARTICLE I
The Merger
SECTION 1.01. Surviving Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Articles of Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.03. By-Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.04. Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.05. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.06. Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.07. Additional Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.08. Company Common Stock, Preferred Stock and Preference Stock . . . . . . . . . . . 2
SECTION 1.09. Conversion of Acquisition Sub Common Stock . . . . . . . . . . . . . . . . . . . 3
SECTION 1.10. Dissenting Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.11. Surrender of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 1.12. Certain Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE II
Representations and Warranties of the Company
SECTION 2.01. Corporate Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.02. Capitalization of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.03. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.04. Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.05. Absence of Conflicts; Consents . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.06. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.07. Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.08. Absence of Material Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.09. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.10. Patents and Trademarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.11. Material Contracts; Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.12. Title to Properties and Related Matters . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.13. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.14. Labor Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.15. Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.16. Labor Disputes; Unfair Labor Practices . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.17. Product Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.18. Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3
Contents, p. 2
Page
----
SECTION 2.19. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.20. SEC Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.21. Brokers and Finders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.22. Rights Agreement; Antitakeover . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.23. Opinion of Financial Advisor . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.24. Asbestos Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE III
Representations and Warranties of Parent
SECTION 3.01. Corporate Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.02. Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.03. Absence of Conflicts; Consents . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.04. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.05. Brokers and Finders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE IV
Representations and Warranties of Acquisition Sub
SECTION 4.01. Corporate Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.02. Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.03. Absence of Conflicts; Consents . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.04. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.05. Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.06. Brokers and Finders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE V
Covenants
SECTION 5.01. Access and Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 5.02. Proxy Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.03. Shareholders' Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.04. Supplemental Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.05. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.06. Conduct of Company Business Prior to the Effective Date . . . . . . . . . . . . . 34
SECTION 5.07. Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.08. Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
4
Contents, p. 3
Page
----
SECTION 5.09. Filing of Articles of Merger . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.10. Interim Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.11. Public Announcements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.12. No Solicitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.13. Validity of Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.14. Employees; Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.15. Indemnification and Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.16. Redemption of 5% Stock and Preference Stock . . . . . . . . . . . . . . . . . . . 42
SECTION 5.17. Material Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 5.18. Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 5.19. Dividend Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 5.20. Satisfaction of Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE VI
Conditions to the Obligations of Parent
and Acquisition Sub
SECTION 6.01. Representations and Warranties True . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.02. Company's Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.03. Authorization of Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.04. Absence of Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.05. Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 6.06. Dissenting Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 6.07. Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 6.08. Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 6.09. Reported Financials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE VII
Conditions to the Obligations of the Company
SECTION 7.01. Representations and Warranties True . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.02. Parent's and Acquisition Sub's Performance . . . . . . . . . . . . . . . . . . . 46
SECTION 7.03. Authorization of Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.04. Absence of Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.05. Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5
Contents, p. 4
Page
----
ARTICLE VIII
Closing
SECTION 8.01. Time and Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.02. Deliveries at the Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE IX
Termination and Abandonment of the Merger
SECTION 9.01. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 9.02. Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE X
Miscellaneous
SECTION 10.01. Expenses; Alternate Transaction Fee . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 10.02. Non-Survival of Representations and Warranties . . . . . . . . . . . . . . . . . 51
SECTION 10.03. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 10.04. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 10.05. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 10.06. Complete Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 10.07. Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 10.08. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10.09. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10.10. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10.11. Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Exhibits
EXHIBIT A Articles of Merger
6
Contents, p. 5
Schedules
SCHEDULE 2.01 Foreign Jurisdictions
SCHEDULE 2.02 Capitalization
SCHEDULE 2.03 Subsidiaries
SCHEDULE 2.05 Conflicts, Consents, Approvals and Authorizations
SCHEDULE 2.07 Company Financial Statements
SCHEDULE 2.08 Absence of Material Changes
SCHEDULE 2.09 Litigation
SCHEDULE 2.10 Patents and Trademarks
SCHEDULE 2.11 Material Contracts
SCHEDULE 2.12 Real Property
SCHEDULE 2.13 Taxes
SCHEDULE 2.14 Labor Agreements
SCHEDULE 2.15 Benefit Plans
SCHEDULE 2.17 Product Warranties
SCHEDULE 2.18 Environmental Matters
SCHEDULE 2.19 Insurance
SCHEDULE 2.20 SEC Filings
SCHEDULE 5.06 Conduct of Business
7
INDEX OF DEFINITIONS
Definition Section
---------- -------
"Acquisition Sub" . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction
"Acquisition Sub Common Stock" . . . . . . . . . . . . . . . . . . . . Section 1.09
"Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction
"Alternate Transaction Fee" . . . . . . . . . . . . . . . . . . . . . . Section 10.01(b)
"Antitrust Division" . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.05(e)
"Applicable Laws" . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.05(d)
"Articles of Merger" . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.06
"Balance Sheet" . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.07(a)
"Balance Sheet Date" . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.07(a)
"Benefit Plans" . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.15(i)
"CERCLA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.18
"Certificates" . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.11(b)
"Closing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 8.01
"Closing Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 8.01
"Code" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.13
"Commonly Controlled Entity" . . . . . . . . . . . . . . . . . . . . . Section 2.15(i)
"Company" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction
"Company Common Stock" . . . . . . . . . . . . . . . . . . . . . . . . Section 1.08(a)(i)
"Company Estimates" . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.18(g)
"Company Financial Statements" . . . . . . . . . . . . . . . . . . . . Section 2.07(a)
"Company Pension Plan" . . . . . . . . . . . . . . . . . . . . . . . . Section 2.15(iii)
"Company Property" . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.12(a)
"Company Willful Misrepresentation" . . . . . . . . . . . . . . . . . . Section 9.02(b)
"Confidentiality Agreement" . . . . . . . . . . . . . . . . . . . . . . Section 5.01(b)
"Conversion Rights" . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.02(c)
"Covered Taxes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.13(c)
"Defined Benefit Plan" . . . . . . . . . . . . . . . . . . . . . . . . Section 2.15(vi)
"Defined Benefit Pension Plan" . . . . . . . . . . . . . . . . . . . . Section 2.15(vi)
"Director Option Plan" . . . . . . . . . . . . . . . . . . . . . . . . Section 1.12(a)(i)
"Dissenting Consideration" . . . . . . . . . . . . . . . . . . . . . . Section 1.10
"Dissenting Shares" . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.10
"D&O Insurance" . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 5.15(a)
"Effective Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.06
"Effective Time" . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.06
"Eligible Option" . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.12(a)(i)
"Environmental Laws" . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.18
"ERISA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.15(i)
"Exchange Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.05(e)
"Exchange Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.11(a)
"Expenses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 10.01(b)
8
Definition Section
---------- -------
"5% Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.08(b)
"5% Stock Consideration" . . . . . . . . . . . . . . . . . . . . . . . Section 1.08(b)
"French parcel" . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.04(d)
"FTC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.05(e)
"GAAP" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.07(a)
"Governmental Authority" . . . . . . . . . . . . . . . . . . . . . . . Section 2.05(d)
"Hazardous Materials" . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.18
"HSR Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.05(e)
"Inactive Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.03(a)
"Indemnified Parties" . . . . . . . . . . . . . . . . . . . . . . . . . Section 5.15(a)
"Ineligible Option" . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.12(a)(ii)
"Interim Financial Statements" . . . . . . . . . . . . . . . . . . . . Section 2.07(b)
"Judgment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.05(d)
"Leased Real Property" . . . . . . . . . . . . . . . . . . . . . . . . Section 2.12(a)
"Legal Action" . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.09
"Lien" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.05(b)
"LTIP" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.12(b)
"Material Adverse Effect" . . . . . . . . . . . . . . . . . . . . . . . Section 2.01
"Material Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.11
"Maximum Premium" . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 5.15(a)
"MBCL" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.01
"Merger" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction
"1982 Stock Option Plan" . . . . . . . . . . . . . . . . . . . . . . . Section 1.12(a)(i)
"1992 Stock Option Plan" . . . . . . . . . . . . . . . . . . . . . . . Section 1.12(a)(i)
"Notice of Qualified Takeover Proposal" . . . . . . . . . . . . . . . . Section 5.12(b)
"Options" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.12(a)(i)
"Owned Real Property" . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.12(a)
"Parent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction
"Parent Willful Misrepresentation" . . . . . . . . . . . . . . . . . . Section 9.02(c)
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.11
"PBGC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.15(i)
"Pension Plan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.15(i)
"Permits" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.06
"Permitted Liens" . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.12(b)
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.05(c)
"Preference Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.08(c)
"Preference Stock Consideration" . . . . . . . . . . . . . . . . . . . Section 1.08(c)
"Proxy Statement" . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 5.02(a)
"Qualified Takeover Proposal" . . . . . . . . . . . . . . . . . . . . . Section 5.12(a)
"Release" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.18
"Reported Financials" . . . . . . . . . . . . . . . . . . . . . . . . . Section 6.09
"Rights" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.02(a)
"Rights Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.02(a)
"Rights Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.02(a)
9
Definition Section
---------- -------
"Return" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.13(a)
"Savings Plan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.12(c)
"SEC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.20
"SEC Documents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.20
"Securities Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.20
"Special Meeting" . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 5.03(a)
"Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.01
"Surviving Corporation" . . . . . . . . . . . . . . . . . . . . . . . . Section 1.01
"Surviving Corporation Common Stock" . . . . . . . . . . . . . . . . . Section 1.09
"Takeover Proposal" . . . . . . . . . . . . . . . . . . . . . . . . . . Section 5.12(a)
"Tax" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.13(a)
"Taxing Authority" . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.13(a)
"Total Merger Consideration" . . . . . . . . . . . . . . . . . . . . . Section 1.08(a)(i)
"Transmittal Letter" . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.11(b)
10
EXECUTION COPY
This AGREEMENT AND PLAN OF MERGER dated as of
March 14, 1996, is entered into by and among
CERTAINTEED CORPORATION, a Delaware corporation
("Parent"), BI EXPANSION CORP., a Massachusetts
corporation ("Acquisition Sub"), and BIRD
CORPORATION, a Massachusetts corporation (the
"Company").
WHEREAS the respective Boards of Directors of Parent,
Acquisition Sub and the Company have approved the merger of Acquisition Sub
with and into the Company (the "Merger"), upon the terms and subject to the
conditions set forth herein, as a result of which the Company will become a
wholly owned subsidiary of Parent and the shareholders of the Company (other
than shareholders who perfect appraisal rights) will be entitled to receive the
consideration provided in this Agreement.
NOW, THEREFORE, in consideration of the mutual benefits to be
derived from this Agreement and of the representations, warranties, covenants
and agreements hereinafter contained, Parent, Acquisition Sub and the Company
agree as follows:
ARTICLE I
The Merger
SECTION 1.01. Surviving Corporation. In accordance with the
provisions of this Agreement and the Massachusetts Business Corporation Law, as
amended (the "MBCL"), at the Effective Date (as defined in Section 1.06),
Acquisition Sub shall be merged with and into the Company, and the Company
shall be the surviving corporation in the Merger (hereinafter sometimes called
the "Surviving Corporation"). At the Effective Date, the separate existence of
Acquisition Sub shall cease.
SECTION 1.02. Articles of Organization. (a) The Articles of
Organization of the Company as amended pursuant to the Articles of Merger (as
defined in Section 1.06), shall be the Articles of Organization of the
Surviving Corporation.
(b) The purposes of the Surviving Corporation shall be as set
forth in the Articles of Organization of Acquisition Sub as in effect on the
date hereof until such time as such purposes may be amended as provided in the
Articles of Organization of the Surviving Corporation and by applicable law.
11
2
SECTION 1.03. By-Laws. The By-Laws of Acquisition Sub as in
effect at the Effective Date shall be the By-Laws of the Surviving Corporation,
until thereafter amended or repealed as provided by law.
SECTION 1.04. Directors. The directors of Acquisition Sub at
the Effective Date shall, from and after the Effective Date, be the directors
of the Surviving Corporation and shall hold office from the Effective Date
until their respective successors are duly elected or appointed and qualified
in the manner provided in the Articles of Organization and By-Laws of the
Surviving Corporation, or as otherwise provided by law.
SECTION 1.05. Officers. The officers of Acquisition Sub at
the Effective Date shall, from and after the Effective Date, be the officers of
the Surviving Corporation and shall hold office from the Effective Date until
their respective successors are duly elected or appointed and qualified in the
manner provided in the Articles of Organization and By-Laws of the Surviving
Corporation, or as otherwise provided by law.
SECTION 1.06. Effective Date. The Merger shall become
effective at the time of filing of articles of merger (substantially in the
form set forth in Exhibit A annexed hereto) with the Secretary of State of the
Commonwealth of Massachusetts in accordance with the provisions of Section 78
of the MBCL (the "Articles of Merger"). The Articles of Merger shall be filed
with the Secretary of State of the Commonwealth of Massachusetts on the Closing
Date. The date and time when the Merger becomes effective shall be herein
referred to as the "Effective Date" and the "Effective Time", respectively.
SECTION 1.07. Additional Actions. If, at any time after the
Effective Date, the Surviving Corporation determines that any deeds, bills of
sale, assignments, assurances or any other acts or things are necessary or
desirable (a) 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 or its Subsidiaries acquired or to
be acquired by reason of, or as a result of, the Merger, or (b) otherwise to
carry out the purposes of this Agreement, the Surviving Corporation and its
proper officers and directors shall be authorized to execute and deliver, in
the name and on behalf of the Company and its Subsidiaries, all such deeds,
bills of sale, assignments and assurances and to do, in the name and on behalf
of the Company and its Subsidiaries, all such other acts and things necessary
or desirable to vest, perfect or confirm any and all right, title or interest
in, to or under such rights, properties or assets in the Surviving Corporation
or otherwise to carry out the purposes of this Agreement.
SECTION 1.08. Company Common Stock, Preferred Stock and
Preference Stock. (a) Company Common Stock. (i) Each share of Common Stock
12
3
of the Company, par value $1 per share (including Rights as defined in Section
2.02(a)) (the "Company Common Stock") actually issued and outstanding at the
Effective Date (except for Dissenting Shares, as defined in Section 1.10)
shall, by virtue of the Merger and without any action on the part of the holder
thereof, be converted into the right to receive $7.50 (the "Total Merger
Consideration").
(ii) Each share of Company Common Stock held by Parent or in
the Company's treasury at the Effective Date shall, by virtue of the Merger, be
canceled without payment of any consideration therefor and without any
conversion thereof.
(b) 5% Cumulative Preferred Stock. Each share of the
Company's 5% Cumulative Preferred Stock, par value $100 per share (the "5%
Stock"), actually issued and outstanding at the Effective Date, shall remain
issued and outstanding after the Merger and shall be called for redemption and
retirement as soon as practicable following the Merger (except for Dissenting
Shares, as defined in Section 1.10), in accordance with the terms of Section
5.16(a), at a price equal to $110, plus all accrued and unpaid dividends
thereon as of the date of redemption and retirement (the "5% Stock
Consideration"), in accordance with the terms of the 5% Stock.
(c) $1.85 Cumulative Convertible Preference Stock. Unless
called for redemption prior to the Closing pursuant to Section 5.16, each share
of the Company's $1.85 Cumulative Convertible Preference Stock, par value $1
per share (the "Preference Stock"), actually issued and outstanding at the
Effective Date (except for Dissenting Shares, as defined in Section 1.10)
shall, by virtue of the Merger and without any action on the part of the holder
thereof, be converted into the right to receive $20 plus all accrued and unpaid
dividends thereon as of the Effective Date (whether redeemed or converted, the
"Preference Stock Consideration").
SECTION 1.09. Conversion of Acquisition Sub Common Stock.
Each share of Common Stock, par value $1 per share, of Acquisition Sub (the
"Acquisition Sub Common Stock") issued and outstanding at the Effective Date
shall, by virtue of the Merger and without any action on the part of the holder
thereof, be converted into and exchangeable for one fully paid and
nonassessable share of Common Stock, par value $1 per share, of the Surviving
Corporation (the "Surviving Corporation Common Stock"). From and after the
Effective Date, each outstanding certificate theretofore representing shares of
Acquisition Sub Common Stock shall be deemed for all purposes to evidence
ownership of, and to represent the number of shares of, Surviving Corporation
Common Stock into which such shares of Acquisition Sub Common Stock shall have
been converted.
SECTION 1.10. Dissenting Shares. Notwithstanding anything in
this Agreement to the contrary, shares of Company Common Stock, 5% Stock and
Preference Stock issued and outstanding on the Effective Date (other than any
called for redemption pursuant to Section 5.16) which are held of record by
shareholders
13
4
who shall not have voted such shares in favor of the Merger, if applicable, and
who shall have properly exercised rights to demand payment of the fair value of
such shares in accordance with Sections 86 through 98, inclusive, of the MBCL
("Dissenting Shares") shall not be converted into the right to receive the
consideration specified in Section 1.08(a), 1.08(b), or 1.08(c), respectively,
but the holders thereof instead shall be entitled to payment of the fair value
of such shares in accordance with the provisions of Sections 86 to 92,
inclusive, of the MBCL (the "Dissenting Consideration"); provided, however,
that (i) if such a holder fails to file a notice of election to dissent in
accordance with Section 86 of the MBCL or, after filing such notice of
election, subsequently delivers an effective written withdrawal of such notice
or fails to establish his entitlement to appraisal rights as provided in
Sections 87 through 98, inclusive, of the MBCL, if he or she be so required, or
(ii) if a court shall determine that such holder is not entitled to receive
payment for his shares or such holder shall otherwise lose his or her appraisal
rights, then in either of such cases, each share of Company Common Stock, 5%
Stock or Preference Stock, respectively, held of record by such holder or
holders shall automatically be converted into and represent only the right to
receive the Total Merger Consideration, the 5% Stock Consideration or the
Preference Stock Consideration, respectively, upon the surrender of the
certificate or certificates representing such Dissenting Shares. The Company
shall give Parent prompt notice of any demands received by the Company for
payment of the fair value of such shares, and Parent shall have the right to
participate in all the negotiations and proceedings with respect to such
demands. The Company shall not, except with the prior written consent of
Parent, make any payment (except to the extent that any such payment is made
pursuant to a court order) with respect to, or settle or offer to settle, any
such demands.
SECTION 1.11. Surrender of Shares. (a) At and after the
Effective Date, Parent shall make available on a timely basis, by transferring
to Chemical Bank (the "Paying Agent") for the benefit of former shareholders of
the Company, such funds as and when necessary to make the payments provided for
in Section 1.08 herein with respect to the outstanding shares of Company Common
Stock and Preference Stock (other than any called for redemption pursuant to
Section 5.16). The Paying Agent shall agree to hold such funds in trust for
the benefit of the former shareholders of the Company and deliver such funds in
accordance with the terms hereof and the terms of a Paying Agency Agreement to
be entered into by and between the Paying Agent and Parent.
(b) Prior to or at the Effective Date, the Paying Agent shall
mail or cause to be mailed to each record holder of an outstanding certificate
or certificates which, immediately prior to the Effective Date, represented
shares of Company Common Stock or Preference Stock (other than any called for
redemption pursuant to Section 5.16) (the "Certificates"), a form letter of
transmittal (which shall specify 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 Paying Agent) (the "Transmittal
14
5
Letter") and instructions for use in effecting the surrender of the
Certificates for payment therefor. Upon surrender to the Paying Agent of a
Certificate, together with such Transmittal Letter duly executed, the holder of
such Certificate shall be entitled to receive in exchange for each share of
Company Common Stock or Preference Stock (other than any called for redemption
pursuant to Section 5.16) represented by such Certificate, the Total Merger
Consideration or Preference Stock Consideration, respectively, and such
Certificate shall forthwith be canceled upon receipt by the holder of such
Certificate of the Total Merger Consideration or Preference Stock
Consideration, respectively. No interest will be paid or accrued on the Total
Merger Consideration or Preference Stock Consideration payable upon the
surrender of such Certificates.
(c) If payment is to be made to a person other than the
person in whose name the Certificate surrendered in exchange therefor is
registered, it shall be a condition of payment of the Total Merger
Consideration or Preference Stock Consideration, as the case may be, that the
Certificate so surrendered be properly endorsed or accompanied by appropriate
stock powers, in either case signed exactly as the name of the record holder
appears on such Certificate, and is otherwise in proper form for transfer, and
that the Person requesting such payment shall pay any transfer or other taxes
required by law as a result of such payment to a Person other than the record
holder of the Certificate surrendered, or shall establish to Parent's
satisfaction that such tax has been paid or is not applicable.
(d) After the Effective Date, there shall be no further
transfers on the stock transfer books of the Surviving Corporation of the
shares of Company Common Stock or Preference Stock which are outstanding at the
Effective Date. If, after the Effective Date, Certificates are presented to
the Surviving Corporation or the Paying Agent for transfer, they shall be
canceled and there shall be issued to the transferee in exchange for each share
of Company Common Stock the Total Merger Consideration and in exchange for each
share of Preference Stock the Preference Stock Consideration in accordance with
Section 1.08 hereof.
(e) The consideration payable upon the surrender for exchange
of Certificates in accordance with the terms of this Article I shall be deemed
to have been paid in full satisfaction of all rights pertaining to the shares
of Company Common Stock or Preference Stock theretofore represented by such
Certificates, and there shall be no further registration of transfers on the
stock transfer books of the Surviving Corporation of the shares of Company
Common Stock or Preference Stock which were outstanding immediately prior to
the Effective Date.
(f) None of Parent, Acquisition Sub, the Company or the
Paying Agent shall be liable to any person in respect of any cash delivered to
a public official pursuant to any applicable abandoned property, escheat or
similar law. If any Certificates shall not have been surrendered prior to
seven years after the Effective
15
6
Date (or immediately prior to such earlier date on which any payment pursuant
to this Article I would otherwise escheat to or become the property of any
Governmental Authority), the payment in respect of such Certificate shall, to
the extent permitted by applicable law, become the property of the Surviving
Corporation, free and clear of all claims or interest of any person previously
entitled thereto.
SECTION 1.12. Certain Benefit Plans. (a) (i) With respect
to unexpired options ("Options"), whether or not exercisable at the Effective
Date, including stock appreciation rights relating thereto, outstanding on the
Effective Date which have been issued pursuant to the Company's 1982 Stock
Option Plan, as amended (the "1982 Stock Option Plan"), the Company's 1992
Stock Option Plan, as amended (the "1992 Stock Option Plan"), or the Company's
1992 Non-Employee Directors Stock Option Plan, as amended (the "Director Option
Plan"), each such Option with an exercise price less than the Total Merger
Consideration (an "Eligible Option") shall, by virtue of the Merger and without
any action on the part of the holder thereof, be converted into the right to
receive, for each share of Company Common Stock subject thereto, a cash payment
without interest equal to the Total Merger Consideration, less the per share
exercise price of each such Option. Such Options shall be canceled upon such
cash payment following the Merger.
(ii) Any Option with an exercise price equal to or greater
than the Total Merger Consideration (an "Ineligible Option") shall be canceled
upon the Effective Date without payment of any consideration.
(iii) The Company shall use its best efforts to amend each
outstanding Option issued under the 1982 Stock Option Plan, the 1992 Stock
Option Plan and the Director Option Plan to effect the transactions
contemplated by this Agreement, including the cancellation of the Options in
connection with the Merger in accordance with this Section 1.12.
(b) There are no shares of Company Common Stock held in
escrow pursuant to the Company's Long Term Incentive Compensation Plan (the
"LTIP").
(c) Each share of Company Common Stock issued by the Company
but not yet vested pursuant to the Company's Employees' Savings and Profit
Sharing Plan (the "Savings Plan") shall, in connection with the Merger, become
vested in the Person to whose account such share of Company Common Stock was
issued and converted into the right to receive the Total Merger Consideration
as provided in Section 1.08(a).
(d) Immediately following the Effective Date, the Company's
1982 Stock Option Plan, 1992 Stock Option Plan, Director Option Plan, LTIP and
Savings Plan shall be terminated and no further stock awards or stock options
shall be granted thereunder from and after the date of this Agreement.
16
7
ARTICLE II
Representations and Warranties of the Company
The Company hereby represents and warrants to Parent and
Acquisition Sub as follows with respect to the Company and its Subsidiaries:
SECTION 2.01. Corporate Organization. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the Commonwealth of Massachusetts with all requisite corporate power
and authority to own, operate and lease its properties and to carry on its
business as now being conducted. The Company is qualified to do business and
is in good standing in each jurisdiction set forth in Schedule 2.01, which are
the only jurisdictions in which such qualification is necessary except where
failure to be qualified could not reasonably be expected to have a Material
Adverse Effect. For purposes of this Agreement, a "Material Adverse Effect" is
(a) a material adverse effect on the business, assets, properties, condition
(financial or other) or results of operations of the Company and its
Subsidiaries taken as a whole or the Surviving Corporation and its Subsidiaries
taken as a whole or (b) a material adverse effect on the ability of the Company
to carry out the transactions contemplated by this Agreement without
significant unanticipated delay or expense. For purposes of this Agreement, a
"Subsidiary" of any Person is any corporation of which a majority of all
outstanding shares of capital stock (the holders of which are ordinarily and
generally entitled to vote in the election of a majority of the members of the
board of directors thereof) is owned, directly or indirectly, by such Person
and/or other Subsidiaries of such Person. The Company has delivered to Parent
complete and correct copies of its Articles of Organization and By-Laws, as
amended to the date hereof.
SECTION 2.02. Capitalization of the Company. (a) The
authorized capital stock of the Company consists of 15,000,000 shares of
Company Common Stock, 15,000 shares of 5% Stock and 1,500,000 shares of
Preference Stock. As of February 29, 1996, 4,123,178 shares of Company Common
Stock, 5,820 shares of 5% Stock and 814,300 shares of Preference Stock were
issued and are outstanding, 275,100 shares of Company Common Stock were held in
the Company's treasury and 687,197 shares of Company Common Stock were reserved
for issuance in connection with the rights (the "Rights") to purchase shares of
Company Common Stock issued pursuant to the Rights Agreement dated as of
November 25, 1986 (as amended from time to time, the "Rights Agreement")
between the Company and The First National Bank of Boston (the "Rights Agent").
The Company has delivered to Parent a complete and correct copy of the Rights
Agreement as amended and supplemented to the date hereof. All issued and
outstanding shares of Company Common Stock, 5% Stock and Preference Stock are
duly and validly issued and outstanding, fully paid and
17
8
nonassessable. The aggregate amount of accrued and unpaid dividends on the 5%
Stock is zero and on the Preference Stock is $1,506,455.
(b) As of the date hereof, there are outstanding unexercised,
unexpired Options to purchase 288,100 shares of Company Common Stock, in each
case with the exercise or "strike" price and other terms as set forth on
Schedule 2.02 hereto.
(c) Except as set forth in this Section 2.02 or on Schedule
2.02 hereto, there are no other shares of capital stock of the Company, or
securities convertible into or exchangeable or exercisable for shares of
capital stock of the Company or any of its Subsidiaries, outstanding, and there
are no outstanding options, warrants, rights, contracts, commitments,
understandings, arrangements or claims of any character by which the Company or
any Subsidiary is or may become bound to issue, transfer, sell, repurchase or
otherwise acquire or retire any shares of capital stock or other ownership
interest of the Company or any Subsidiary, or any securities convertible into
or exchangeable or exercisable for any such shares or other ownership interest
(all of the foregoing being called "Conversion Rights") and, except as set
forth in Section 2.02(a) and as reserved for issuance upon exercise of the
Options described in Section 2.02(b) or the other Conversion Rights described
in Schedule 2.02, no shares of capital stock of the Company are reserved for
issuance. There are no voting trusts or other agreements or understandings to
which the Company is a party with respect to the voting of the capital stock of
the Company or any Subsidiary. Following consummation of the Merger no holder
or beneficiary of any Conversion Rights shall be entitled to receive any
securities of the Surviving Corporation or any other consideration not
expressly contemplated by this Agreement.
SECTION 2.03. Subsidiaries. (a) Schedule 2.03 hereto sets
forth each Subsidiary and the jurisdiction of incorporation of such Subsidiary.
Schedule 2.03 also sets forth each inactive Subsidiary (an "Inactive
Subsidiary") of the Company. No Inactive Subsidiary has any assets or
liabilities valued in excess of $5,000 or any business operations or real
property nor has any Inactive Subsidiary conducted any business during the
two-year period prior to the date of this Agreement. Except as disclosed on
Schedule 2.03 hereto, all of the outstanding shares of capital stock and other
ownership interest of the Company's Subsidiaries are owned, directly or
indirectly, by the Company. Except as disclosed on Schedule 2.03, none of the
shares or other ownership interests of the Subsidiaries owned or held by the
Company, directly or indirectly, is subject to any pledge, Lien (as defined
below) or claim of any kind.
(b) Each Subsidiary (excluding each Inactive Subsidiary) is
duly incorporated, validly existing and in good standing under the laws of the
jurisdiction of incorporation of each such Subsidiary, with all requisite
corporate power and authority to own, operate and lease its properties and to
carry on its business as now being conducted. Each Subsidiary (excluding each
Inactive Subsidiary) is also
18
9
qualified to do business and is in good standing in each jurisdiction in which
such qualification is necessary, except where failure to be so qualified would
not have a Material Adverse Effect. The Company has delivered to Parent
complete and correct copies of the respective articles or certificates of
incorporation or organization or By-Laws, as amended to the date hereof, of
each of its Subsidiaries.
(c) Except for its Subsidiaries, the Company does not
directly or indirectly own any capital stock of or other equity interest in any
corporation, partnership or other person and neither the Company nor any of its
Subsidiaries is a member of or participant in any partnership, joint venture or
similar person.
SECTION 2.04. Authorization. (a) The Company has requisite
corporate power and authority to execute and deliver this Agreement, and
subject to the approval by the shareholders of the Company, to execute, deliver
and file the Articles of Merger and, subject to the satisfaction of the
conditions set forth herein and therein, to consummate the transactions
contemplated hereby and thereby.
(b) This Agreement has been approved by the Board of
Directors of the Company and, except for the approval of the shareholders of
the Company, no other corporate proceeding on the part of the Company is
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. The affirmative vote of the holders of (i) two-thirds of
the outstanding shares of Company Common Stock and (ii) unless called for
redemption pursuant to Section 5.16, two-thirds of the outstanding shares of
the Preference Stock, approving this Agreement are the only votes of the
holders of any class or series of the Company's capital stock necessary to
approve this Agreement and the transactions contemplated by this Agreement.
(c) This Agreement has been duly and validly executed and
delivered by the Company and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, and the Plan of
Merger when executed and delivered pursuant hereto will be a valid and binding
agreement of the Company enforceable against the Company in accordance with its
terms, except in each case as such enforceability may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or similar laws
in effect now or hereafter in effect relating to creditors' rights generally,
and by equitable principles (whether considered in a proceeding at law or in
equity).
(d) The transfer of the Company's granule crushing equipment
to the Company's Wrentham and Franklin, MA quarry (at least with respect to the
"French parcel" of such quarry) and its operation at such location will not
conflict with, constitute a default under, result in the termination or in a
right of termination of, or violate or be in conflict with, provide a basis for
increased rights under, or result in a breach of any term or provision of, any
term or provision of any Material Contract.
19
10
SECTION 2.05. Absence of Conflicts; Consents. Except as set
forth in Schedule 2.05, neither the execution and delivery by Company of this
Agreement and the Articles of Merger nor the consummation by the Company of
the transactions contemplated hereby and thereby will:
(a) assuming the approvals set forth in Section 2.04(b) have
been obtained, conflict with or result in a breach of any provision of
the respective articles or certificate of incorporation or
organization or By-Laws of the Company or any Subsidiary;
(b) to the knowledge of the Company, result in the creation of
any lien, mortgage, agreement, right of way, charge, option, security
interest, claim, restriction, easement, covenant, lease or encumbrance
("Lien") upon any of the properties of the Company or any of its
Subsidiaries;
(c) with or without giving of notice or the passage of time,
or both, violate, or conflict with, or constitute a default under, or
result in the termination or in a right of termination of, violate or
be in conflict with, result in a breach of any term or provision of,
or constitute a default under, or accelerate or permit the
acceleration of the performance required by, or give any other natural
person, corporation, trust, association, company, partnership, joint
venture or other entity or any government, governmental agency,
instrumentality or political subdivision ("Person") a basis for
increased rights or termination or nonperformance under, or require
any consent, authorization or approval under, any term or provision of
any material Lien or any Material Contract to which the Company or any
Subsidiary is a party or by which any of them are or their respective
properties are subject or bound;
(d) subject to the approval of the Merger by the Company's
shareholders, to the knowledge of the Company, violate any provision
of, or, except as set forth in Section 2.05(e), require any consent,
authorization or approval under, any statute, law, ordinance, or
administrative rule or regulation, Permit, order or license
(collectively, but excluding Environmental Laws, "Applicable Laws") of
any governmental agency, body or instrumentality (whether Federal,
state, local or foreign) ("Governmental Authority"), or any judicial,
administrative or arbitration order, award, judgment, writ, injunction
or decree (collectively, "Judgment") in each case applicable to the
Company or any Subsidiary; or
(e) require any consent, approval or authorization of, or
declaration, filing or registration with, any Governmental Authority,
to be made or obtained by or on behalf of the Company except (i) as
required by the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder (the "Exchange Act"),
(ii) the filing of the Articles of
20
11
Merger and other appropriate merger documents, if any, as required by
the MBCL, or in connection with the maintenance of qualification to do
business in other jurisdictions, such other jurisdictions, and (iii)
filings with the Federal Trade Commission ("FTC") and with the
Antitrust Division of the U.S. Department of Justice (the "Antitrust
Division") pursuant to Title II of the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, and the rules and regulations thereunder
(the "HSR Act").
SECTION 2.06. Compliance with Laws. Neither the Company nor
any Subsidiary has been or is presently in violation of any provision of their
respective certificates or articles of organization or incorporation or
By-Laws, or of any Applicable Law or Judgment that would have a Material
Adverse Effect. Except where the failure thereof would not cause a Material
Adverse Effect, the Company and its Subsidiaries possess, and are in compliance
in all material respects with the terms and provisions of all licenses,
permits, certificates, authorizations, rights and other approvals of
Governmental Authorities ("Permits") necessary for the operation of the
business of the Company and its Subsidiaries. Except as set forth in Schedule
2.09 or 2.18, neither the Company nor any Subsidiary has been given written
notice by any Governmental Authority of, or to the knowledge of Company, is
under investigation by any Governmental Authority with respect to, any
violation of any Applicable Law, Judgment or Permit. This Section 2.06 does
not relate to environmental representations and warranties, which matters are
exclusively the subject of Section 2.18.
SECTION 2.07. Financial Statements. (a) Set forth on
Schedule 2.07 are drafts of the consolidated balance sheets of Company and its
Subsidiaries as at December 31, 1994, and December 31, 1995, and the related
consolidated statements of income, stockholders' equity and cash flows for the
respective years then ended, including the notes thereto, and the draft report
thereon of Price Waterhouse, independent certified public accountants (the
"Company Financial Statements"). The Company Financial Statements present
fairly in all material respects the consolidated financial position and the
results of operations of the Company and its Subsidiaries as of the dates and
for the periods indicated on the Company Financial Statements, in each case in
conformity with generally accepted accounting principles ("GAAP"), consistently
applied during such periods. Except as expressly contemplated or permitted by
this Agreement or disclosed in the Schedules hereto, to the knowledge of the
Company, the Company and its Subsidiaries do not have any material liabilities
of any nature (whether accrued, absolute, contingent, unasserted or otherwise)
except (1) as disclosed, reflected or reserved against in the balance sheet
(the "Balance Sheet") dated December 31, 1995 (the "Balance Sheet Date"),
included in the Company Financial Statements and the notes thereto, and (2) as
incurred in the ordinary course of business consistent with past practice and
not in violation of this Agreement.
21
12
(b) The inventory of the Company and its Subsidiaries,
whether reflected on the Balance Sheet or subsequently acquired, is, and will
be as of the Effective Date, generally of a quality and quantity usable and
saleable consistent in all material respects with past practice, in the
ordinary course of business. The inventory of the Company and its Subsidiaries
is reflected on the Balance Sheet and in their respective books and records in
accordance with GAAP applied on a basis consistent with past practice.
(c) All accounts receivable of the Company and its
Subsidiaries, whether reflected on the Balance Sheet or subsequently created,
have arisen from bona fide transactions in the ordinary course of business. To
the knowledge of the Company, all accounts receivable reflected on the Balance
Sheet are good and collectible at the aggregate recorded amounts thereof, net
of any applicable reserves for doubtful accounts reflected on the Balance Sheet
and all customer accounts receivable created since the Balance Sheet Date are
and will be as of the Effective Date good and collectible at the aggregate
recorded amounts thereof, net of any applicable reserves for doubtful accounts
reflected on the Balance Sheet or subsequently created consistent with past
practice and experience.
SECTION 2.08. Absence of Material Changes. Except as set
forth in Schedule 2.08 or as permitted by Section 5.06 or set forth in Schedule
5.06 or as expressly contemplated or permitted by this Agreement, since the
Balance Sheet Date, each of the Company and its Subsidiaries has conducted its
business in the ordinary course, and there has not been (and it is not
reasonably expected there will be) (i) any event, change or circumstance
causing, or reasonably anticipated to cause in the future, any Material Adverse
Effect, except as otherwise disclosed to Parent in writing prior to the date of
this Agreement, (ii) any declaration, setting aside or payment of any dividend
(whether in cash, stock or property) with respect to any of the Company's
capital stock, other than the minimum required dividends declared on the 5%
Stock or the Preference Stock, (iii) (x) any granting by the Company or any of
its Subsidiaries to any executive officer or director of the Company or any of
its Subsidiaries of any increase in compensation, except as was required under
employment agreements in effect as of the Balance Sheet Date, (y) any granting
by the Company or any of its Subsidiaries to any such executive officer or
director of any increase in severance or termination pay, except as was
required under employment, severance or termination agreements in effect as of
the Balance Sheet Date or (z) any entry by the Company or any of its
Subsidiaries into any employment, severance or termination agreement with any
such executive officer or director, (iv) any damage, destruction or loss,
whether or not covered by insurance, that has or could have a Material Adverse
Effect, (v) any change in accounting methods, principles or practices by the
Company materially affecting its assets, liabilities or business, except
insofar as may have been required by a change in GAAP or (vi) any other action
that would be prohibited by Section 5.06 on and after the date of this
Agreement.
22
13
SECTION 2.09. Litigation. Except as set forth in Schedule
2.09 and other than routine warranty claims against the Company that do not in
the aggregate exceed in any material respect the level of such claims
experienced historically by the Company in the ordinary course, neither the
Company nor any Subsidiary is engaged in, and there is not to the knowledge of
the Company pending, nor has the Company or any Subsidiary received written
notice of, any legal action, suit, investigation, inquiry or proceeding by any
Governmental Authority or other Person ("Legal Action").
SECTION 2.10. Patents and Trademarks. To the knowledge of
the Company, the Company and its Subsidiaries own all patents, trademarks,
service marks, trade names, copyrights, trade secrets, information, proprietary
rights and processes necessary for their business as now conducted without any
conflict with or infringement of the rights of others. Except as set forth in
Schedule 2.10, there are no outstanding options, licenses or agreements of any
kind relating to the foregoing, nor is the Company nor any Subsidiary bound by
or a party to any material options, licenses or agreements of any kind with
respect to the patents, trademarks, service marks, trade names, copyrights,
trade secrets, information, proprietary rights and processes of any other
Person. Except as set forth in Schedule 2.10 or relating to any matter that
has been resolved or that the Company reasonably believes has been abandoned,
none of the Company nor any Subsidiary has received any written communications
alleging that the Company or any Subsidiary has violated any of the patents,
trademarks, service marks, trade names, copyrights or trade secrets or other
proprietary rights of any other Person.
SECTION 2.11. Material Contracts; Permits. Schedule 2.11(a)
sets forth a complete and accurate list of any of the following to which the
Company or any Subsidiary is a party or by which Company or any Subsidiary is
bound (collectively, "Material Contracts"):
(a) all deeds, indentures, leases, subleases or other
instruments by which an ownership, leasehold or other interest in real
property is held by the Company or any Subsidiary;
(b) all contracts, commitments or agreements, including
contracts or licenses pertaining to the payment of royalties (but
excluding customer purchase orders, purchase orders for raw materials
and warranties), to the extent such agreements include provisions that
do or could involve payments or commitments (whether fixed or
contingent) to or from the Company or any Subsidiary (i) for an amount
(or potential amount) in excess of $200,000 or (ii) have a term longer
than twelve (12) months in duration (except for such contracts,
commitments or agreements terminable by the Company or the appropriate
Subsidiary of the Company without penalty upon notice of 90 days or
less);
23
14
(c) all written management, compensation or employment
contracts or contracts entered into with any executive officer or
director of the Company or any Subsidiary;
(d) all contracts or agreements under which the Company or any
Subsidiary has any outstanding indebtedness, obligation or liability
for borrowed money or the deferred purchase price of property or has
the right or obligation to incur any such indebtedness, obligation or
liability, in each case in an amount greater than $200,000;
(e) all bonds or agreements of guarantee or indemnification in
which the Company or any Subsidiary acts as surety, guarantor or
indemnitor with respect to any obligation (fixed or contingent) in an
amount or potential amount greater than $200,000;
(f) all secrecy, noncompete or other agreements which (i)
restrict the right of the Company or any Subsidiary to engage in any
business reasonably related to its present activities or (ii) would
restrict the right of Parent to engage in any business after the
consummation of the transactions contemplated by this Agreement;
(g) all current bank accounts that contain balances and safe
deposit arrangements;
(h) all agreements relating to preemptive or other
preferential rights relating to capital stock, restrictions on the
disposition of capital stock and registration rights;
(i) all partnership and joint venture agreements;
(j) all agreements relating to material business acquisitions
or dispositions during the last five years, including any separate tax
or indemnification agreements; and
(k) all material customer and supply agreements and all
material sales representative, marketing, agency or distributorship
agreements, to the extent such agreements include provisions that do
or could involve payments or commitments (whether fixed or contingent)
to or from the Company or any Subsidiary (i) for an amount in excess
of $200,000 or (ii) have a term (including renewals that do not
require the Company's or a Subsidiary's consent) longer than twelve
months in duration (except for such contracts, commitments or
agreements terminable by the Company or the appropriate Subsidiary of
the Company without penalty upon notice of 90 days or less).
24
15
Except as set forth on Schedule 2.11(a), (i) neither the
Company nor any Subsidiary is in default under the terms of any Material
Contract, which default permits the other party to adversely alter or terminate
any rights of the Company or any Subsidiary or accelerate the obligations of
the Company or any Subsidiary under such Material Contract or to collect
damages, (ii) to the knowledge of the Company, no other party thereto is in
default under the terms of any Material Contract and (iii) each Material
Contract is in full force and effect.
In order for the Company or any Subsidiary to perform its
payment obligations noted under each of the Material Contracts set forth on
Schedule 2.11(b), the only required payment will be the payment of the
outstanding principal amount (and accrued interest thereon) owed by the Company
under each such Material Contract which as of the date of this Agreement is set
forth on Schedule 2.11(b) for each such Material Contract, without the payment
of any premium or penalty, other than accrued interest or default interest.
Upon the making of such payment under each such Material Contract, the Company
will have no further obligation or liability under any such Material Contract,
except for immaterial expenses relating to the termination of such Material
Contracts.
SECTION 2.12. Title to Properties and Related Matters. (a)
Schedule 2.12(a) sets forth all of the real property owned by the Company and
each Subsidiary (the "Owned Real Property"). Schedule 2.12(b) sets forth all
of the real property and interests in real property leased by the Company and
each Subsidiary (the "Leased Real Property", and together with the Owned Real
Property, the "Company Property"). Each of the Company or its Subsidiaries, as
the case may be, has good and marketable fee title to the Owned Real Property,
subject only to Permitted Liens (as defined in Section 2.12(b) below). Each of
the Company or its Subsidiaries, as the case may be, has a valid and existing
leasehold interest in all Leased Real Property, subject only to Permitted Liens
(as defined in Section 2.12(b) below).
(b) All Company Property and personal properties owned by the
Company or any Subsidiary are owned free and clear of all Liens (other than
mortgages securing the Company's existing credit facility described in Schedule
2.11(b)) or leased free and clear of all Liens, except for (A) Liens for taxes
and assessments or governmental charges or levies which are not at the time of
Closing due or payable, (B) Liens in respect of pledges or deposits under
workers' compensation laws or similar legislation, carriers', warehousemen's,
mechanics', laborers' and materialmen's and similar Liens, which have been
incurred in the ordinary course of business, so long as the obligations secured
by such Liens are not then delinquent, (C) Liens incidental to the conduct of
the business of the Company and its Subsidiaries (other than arising out of
claims of infringement) which were not incurred in connection with the
borrowing of money or the obtaining of advances or credits and which do not
individually or in the aggregate materially detract from the
25
16
value or materially impair the use and operation of the Company Property to
which it relates or the value and operation of the business of the Company as
presently conducted, (D) covenants, conditions, restrictions, easements and
other similar matters of record existing as of the Effective Date which do not,
individually or in the aggregate, impair the use and operation of the Company
Property to which it relates in the business of the Company as presently
conducted and (E) Liens set forth on Schedule 2.18 arising pursuant to
Environmental Laws (the liens described in the foregoing clauses (A), (B), (C),
(D) and (E) being "Permitted Liens") and (ii) the Owned Real Property and
personal properties owned by the Company or any Subsidiary are not subject to
any Liens, building or use restrictions, exceptions, variances, reservations or
limitations of any nature whatsoever which interfere with or are violated by
the existence of the improvements thereon or the current use and operation of
each such Owned Real Property or personal properties, respectively, to which it
relates in the business of the Company as currently conducted.
SECTION 2.13. Taxes. (a) For purposes of this Agreement,
(A) "Tax" or "Taxes" shall mean all Federal, state, provincial, county, local,
municipal, foreign and other taxes, assessments, duties or similar charges of
any kind whatsoever, including all corporate franchise, income, sales
(including bulk sales), use, ad valorem, intangibles, receipts, value added,
profits, license, withholding, payroll, employment, excise, premium, real
property, personal property, customs, net worth, estimated, capital, gains,
transfer, stamp, documentary, social security, alternative minimum, accumulated
earnings, goods and services, recapture, recording, severance, environmental
(including but not limited to, taxes under Section 59A of the Code), occupation
and other taxes, and including any interest, penalties and additions imposed
with respect to such amounts; (B) "Code" shall mean the Internal Revenue Code
of 1986, as amended, and reference to any Section of the Code shall refer to
that Section in effect at the date hereof; (C) "Taxing Authority" shall mean
any domestic, foreign, federal, national, state, provincial, county or
municipal or other local government, any subdivision, agency, commission or
authority thereof, or any quasi-governmental body exercising any taxing
authority or any other authority exercising Tax regulatory authority; and (D)
"Return" or "Returns" shall mean all returns, declarations of estimated tax
payments, reports, estimates, information returns and statements, including any
related or supporting information filed with respect to any of the foregoing,
maintained, filed or to be filed with any Taxing Authority in connection with
the determination, assessment, collection or administration of any Taxes.
(b) Except as set forth on Schedule 2.13, the Company and
each of the Subsidiaries has timely filed or will timely file, as the case may
be, with the appropriate Taxing Authority all Returns required to be filed on
or prior to the date hereof or the Closing Date, as the case may be, and each
such Return was or will be, as the case may be, complete and correct in all
material respects at the time of filing.
26
17
(c) Except as set forth on Schedule 2.13, all Taxes
(including Taxes for which no Returns are required to be filed and including
payroll and wage withholding Taxes) of the Company and any of the Subsidiaries
or for which the Company or any of the Subsidiaries is or could otherwise be
held liable, or which are or could otherwise become chargeable as an
encumbrance upon any property or assets of the Company or any of the
Subsidiaries ("Covered Taxes"), have been duly and timely paid. The amount of
"accrued Taxes" shown on the Balance Sheet adequately reflects the liability
for unpaid Taxes (including deferred Taxes) of Company and the Subsidiaries as
of the Balance Sheet Date.
(d) Except as set forth on Schedule 2.13, the Company has
made available for inspection by Parent (A) complete and correct copies of all
Returns of the Company and each of the Subsidiaries, with respect to Federal,
state, provincial, county, local, municipal, foreign and other income, profits,
corporate franchise, receipts, sales, excise, property, net worth and all other
material Taxes, that are or have been required to be filed (except as noted in
(b) above) for taxable periods ending with or within the last five calendar
years and for such longer period as Parent has requested not to exceed the
period of the relevant statute of limitations and (B) complete and correct
copies of all ruling requests, private letter rulings, revenue agent reports,
information document requests and responses thereto, notices of proposed
deficiencies, deficiency notices, applications for changes in method of
accounting, protests, petitions, closing agreements, settlement agreements, and
any similar documents submitted by, received by or agreed to by or on behalf of
the Company or any of the Subsidiaries and relating to material Covered Taxes.
(e) Except as set forth on Schedule 2.13, no liens for Taxes
exist with respect to any of the assets or properties of any of the
Subsidiaries or Company. The Returns of the Company and each of the
Subsidiaries with respect to Federal income Taxes have been examined by the
Internal Revenue Service, or the statute of limitations with respect to the
relevant Tax liability has expired, for all taxable periods through and
including the year ended December 31, 1982. All Returns with respect to state,
county, local, municipal, provincial, foreign and other income, profits,
corporate franchise, receipts, sales, excise, property, net worth, and capital
Taxes, and with respect to all other material Taxes, have been examined by the
appropriate Taxing Authority, or the statute of limitations with respect to the
relevant Tax liability has expired, for all taxable periods through and
including the taxable period listed with respect to each such jurisdiction.
Except as set forth on Schedule 2.13, each deficiency resulting from any audit
or examination
27
18
relating to Covered Taxes by any Taxing Authority has been paid and no material
issues were raised in writing by the relevant Taxing Authority during any such
audit or examination that might apply to taxable periods other than the taxable
period to which such audit or examination related. Except as set forth on
Schedule 2.13, (A) no Returns with respect to Federal income Taxes are
currently under audit or examination by the Internal Revenue Service and any
other Taxing Authority, (B) no audit or examination relating to Covered Taxes
is currently being conducted by the Internal Revenue Service or any other
Taxing Authority and (C) neither the Internal Revenue Service nor any other
Taxing Authority has given notice in writing that it will commence any such
audit or examination.
(f) Except as set forth in Schedule 2.13, no Taxing Authority
is now asserting (in writing), or, to the knowledge of the Company or any of
the Subsidiaries, threatening to assert (in writing), any deficiency or claim
for Covered Taxes or any adjustment to any item of income, gain, deduction,
loss, credit, or tax basis entering into the computation of Covered Taxes and
there is no reasonable basis for any such assertion.
(g) Except as set forth in Schedule 2.13, (A) no person has
made with respect to the Company or any of the Subsidiaries, or with respect to
any property held by the Company or any of the Subsidiaries, any consent under
Section 341 of the Code, (B) no property of Company or any of the Subsidiaries
constitutes "tax-exempt use property" (as defined in Section 168(h) of the
Code), (C) neither the Company nor any of the Subsidiaries is a party to any
lease made pursuant to Section 168(f)(8) of the Internal Revenue Code of 1954,
as amended and in effect prior to the date of enactment of the Tax Equity and
Fiscal Responsibility Act of 1982 and (D) none of the assets of Company or any
of the Subsidiaries is subject to a lease under Section 7701(h) of the Code or
under any predecessor.
(h) There is no agreement or other document extending, or
having the effect of extending, the period of assessment or collection of any
Covered Taxes and no unrevoked power of attorney with respect to any Covered
Taxes has been executed or filed with the Internal Revenue Service or any other
Taxing Authority.
(i) The Company has never been a member of any affiliated,
consolidated, combined, unitary or aggregate group for purposes of filing
Returns or paying Taxes at any time.
(j) Except as set forth in Schedule 2.13, none of the Company
or any of the Subsidiaries is a party to or is bound by any Tax sharing
agreements (whether formal or informal) with any of its affiliates, or with any
Taxing Authority.
(k) None of the Company or any of the Subsidiaries will be
required to include in a taxable period on or after the Closing Date taxable
income attributable to income that economically accrued in a taxable period
ending on or before the Closing Date, including, without limitation, as a
result of the installment method of accounting, the completed contract method
of accounting or the cash method of accounting.
28
19
(l) Except as set forth on Schedule 2.13, none of the Company
or any of the Subsidiaries will be required in a taxable period beginning on or
after the Closing Date to include any amount in income pursuant to Section 481
of the Code (or any comparable provisions of state, local or foreign law), by
reason of a change in accounting methods or otherwise, as a result of actions
taken prior to the Closing Date.
(m) Schedule 2.13 lists each state, county, local, municipal
or foreign jurisdiction in which Company or any of the Subsidiaries files, has
filed, is required to file or has been required to file a Return or is or has
been liable for Tax on a "nexus" basis for the current and preceding five
years.
(n) The Company is not, and has not been during the five-year
period ending on the date hereof or the Closing Date, as the case may be, a
"United States real property holding corporation" within the meaning of Section
897 of the Code.
(o) Schedule 2.13 provides true and correct descriptions of
the following: items for which amounts for taxes have been reserved on the
Balance Sheet in excess of reserves necessary to currently pay its operating
tax liabilities. The Company has a consolidated net operating loss carryover
for regular Federal income tax purposes as of December 31, 1995, of
approximately $44 million. The Company has no material net operating loss
carryovers in states other than New York (in which it has a net operating loss
carryover of $198,000 as of December 31, 1995). The Company has tax credit
carryforwards as of December 31, 1995, of approximately $1.2 million for
regular Federal income tax purposes, and no tax credit carryforwards for state
tax purposes. In addition, the Company had approximately $1.1 million of
minimum tax carryovers.
(p) Schedule 2.13 sets forth the Company's best estimates,
made in good faith, of the excess loss accounts for the Company and its
Subsidiaries as of December 31, 1995. The Company estimates in good faith that
neither it nor its Subsidiaries had positive balances in any deferred
intercompany gain accounts as of December 31, 1995.
(q) The schedules of the Company's best estimates, made in
good faith, of the temporary and permanent differences as of December 31, 1995,
previously submitted to the Company are true, correct and complete in all
materials respects.
(r) None of the Company, any of the Subsidiaries or any other
affiliate of the Company has made any election under Section 13261(g)(2) or
Section 13261(g)(3) of the Revenue Reconciliation Act of 1993.
29
20
(s) None of the Company, any of the Subsidiaries or any other
affiliate of the Company has available any foreign tax credits.
SECTION 2.14. Labor Agreements. Except as identified on
Schedule 2.14, neither the Company nor any Subsidiary is a party to any union,
collective bargaining, works council or similar agreement or arrangement.
SECTION 2.15. Benefit Plans. (i) Schedule 2.15 is a list of
each "employee pension benefit plan" (as defined in Section 3(2) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"))
(hereinafter a "Pension Plan"), "employee welfare benefit plan" (as defined in
Section 3(1) of ERISA, hereinafter a "Welfare Plan"), and each other plan,
arrangement or policy relating to stock options, stock purchases, compensation,
deferred compensation, severance, fringe benefits or other employee benefits,
in each case maintained or contributed to, or required to be maintained or
contributed to, by the Company and its Subsidiaries or any other person or
entity that, together with the Company, is treated as a single employer under
Section 414(b), (c), (m) or (o) of the Code (each a "Commonly Controlled
Entity") for the benefit of any present or former employees of the Company or
any of its Subsidiaries (all the foregoing being herein called "Benefit
Plans"). The Company has made available to Parent true, complete and correct
copies of (1) each Benefit Plan, (2) the most recent annual report on Form 5500
as filed with the Internal Revenue Service with respect to each applicable
Benefit Plan, (3) the most recent summary plan description (or similar
document) with respect to each applicable Benefit Plan and (4) each trust
agreement and insurance or annuity contract relating to any Benefit Plan.
(ii) Except as disclosed in Schedule 2.15, to the knowledge
of the Company, each Benefit Plan has been administered in all material
respects in accordance with its terms. Except as disclosed in Schedule 2.15,
to the knowledge of the Company, the Company, its Subsidiaries and all the
Benefit Plans are in compliance in all material respects with the applicable
provisions of ERISA, the Code, and all other Applicable Laws. Except as
disclosed in Schedule 2.15, to the knowledge of the Company, there are no
investigations by any governmental agency, termination proceedings or other
claims (except claims for benefits payable in the normal operation of the
Benefit Plans), suits or proceedings against or involving any Benefit Plan or
asserting any rights to or claims for benefits under any Benefit Plan that
could give rise to a Material Adverse Effect, and to the knowledge of the
Company, there are not any facts that could give rise to a Material Adverse
Effect in the event of any such investigation, claim, suit or proceeding.
(iii) Except as disclosed on Schedule 2.15, to the knowledge
of the Company: (1) all contributions to the Benefit Plans required to be made
by the Company or any of its Subsidiaries in accordance with the terms of the
Benefit Plans, any applicable collective bargaining agreement and, when
applicable, Section 302 of
30
21
ERISA or Section 412 of the Code, have been timely made, (2) there has been no
application for or waiver of the minimum funding standards imposed by Section
412 of the Code with respect to any Benefit Plan that is a Pension Plan,
excluding any Pension Plan which is a multiemployer pension plan as defined in
Section 4001(a)(3) of ERISA (hereinafter a "Company Pension Plan") and (3) no
Company Pension Plan had an "accumulated funding deficiency" within the meaning
of Section 412(a) of the Code as of the end of the most recently completed plan
year. All such contributions to the Benefit Plans for any period ending before
the Balance Sheet Date are properly accrued and reflected in the Balance Sheet
and such contributions since such Balance Sheet Date will be reflected on
subsequent balance sheets.
(iv) Except as disclosed on Schedule 2.15, to the knowledge
of the Company, (1) each Company Pension Plan that is intended to be a
tax-qualified plan has been the subject of a determination letter from the
Internal Revenue Service to the effect that such Company Pension Plan and each
related trust is qualified and exempt from Federal income taxes under Sections
401(a) and 501(a), respectively, of the Code, (2) no such determination letter
has been revoked, and revocation has not been threatened, (3) no event has
occurred and no circumstances exist that would adversely affect the
tax-qualification of such Company Pension Plan and (4) such Company Pension
Plan has not been amended since the effective date of its most recent
determination letter in any respect that might adversely affect its
qualification, materially increase its cost or require security under Section
307 of ERISA. The Company has made available to Parent a copy of the most
recent determination letter received with respect to each Company Pension Plan
for which such a letter has been issued, as well as a copy of any pending
application for a determination letter. The Company has also provided to
Parent a list of all Company Pension Plan amendments as to which a favorable
determination letter has not yet been received.
(v) Schedule 2.15 discloses whether: (1) to the knowledge of
the Company, any non-exempt "prohibited transaction" (as defined in Section
4975 of the Code or Section 406 of ERISA) has occurred that involves the assets
of any Benefit Plan; (2) to the knowledge of the Company, any Company Pension
Plan has been terminated or has been the subject of a "reportable event" (as
defined in Section 4043 of ERISA and the regulations thereunder) for which the
30-day notice requirement has not been waived by the Pension Benefit Guaranty
Corporation ("PBGC"); and (3) to the knowledge of the Company, the Company, any
of its Subsidiaries or any trustee, administrator or other fiduciary of any
Benefit Plan has engaged in any transaction or acted in a manner that could, or
has failed to act so as to, subject the Company, any such Subsidiary or any
trustee, administrator or other fiduciary to any material liability for breach
of fiduciary duty under ERISA or any other applicable law.
(vi) Except as disclosed on Schedule 2.15, to the knowledge
of the Company, as of the most recent valuation date for each Company Pension
Plan that is a "defined benefit pension plan" (as defined in Section 3(35) of
ERISA (hereinafter a
31
22
"Defined Benefit Plan")), there was not any amount of "unfunded benefit
liabilities" (as defined in Section 4001(a)(18) of ERISA) under such Defined
Benefit Plan, and the Company is not aware of any facts or circumstances that
would materially change the funded status of any such Defined Benefit Plan.
The Company has made available to Parent the most recent actuarial report or
valuation with respect to each Defined Benefit Plan.
(vii) Except as disclosed on Schedule 2.15, to the knowledge
of the Company, no Commonly Controlled Entity has incurred any liability to a
Pension Plan (other than for contributions not yet due) or to the PBGC (other
than for the payment of premiums not yet due) that, when aggregated with other
such liabilities, would result in a Material Adverse Effect to the Company,
which liability has not been fully paid as of the date hereof if due and
payable.
(viii) No Commonly Controlled Entity has (a) engaged in a
transaction described in Section 4069 of ERISA that could subject the Company
to a material liability at any time after the date hereof or (b) acted in a
manner that could, or failed to act so as to, result in material fines,
penalties, taxes or related charges under (x) Section 502(c), (i) or (l) of
ERISA, (y) Section 4071 of ERISA or (z) Chapter 43 of the Code.
(ix) Except as disclosed in Schedule 2.15, to the knowledge
of the Company, no Commonly Controlled Entity has announced an intention to
withdraw, but has not yet completed withdrawal, from a "multiemployer pension
plan" (as defined in Section 4001(a)(3) of ERISA). Except as disclosed on
Schedule 2.15, to the knowledge of the Company, no action has been taken, and
no circumstances exist, that could result in either a partial or complete
withdrawal from such a multiemployer pension plan by any Commonly Controlled
Entity. Schedule 2.15 also lists for each Benefit Plan that is a multiemployer
pension plan (excluding the multiemployer pension plan in respect of the
Company's former New York Building Products, Inc. operations) the Company's
best estimate, based upon the information supplied to it by each multiemployer
pension plan, of the amount of withdrawal liability that would be incurred if
each Commonly Controlled Entity were to make a complete withdrawal from each
such plan as of the dates specified in Schedule 2.15. Schedule 2.15 also lists
for each Benefit Plan that is a multiemployer pension plan (excluding the
multiemployer pension plans in respect of the Company's former New York
Building Products, Inc., and Bardstown operations) the Company's best estimate,
based upon the information supplied to it by each multiemployer pension plan,
of the amount of "unfunded vested benefits" (within the meaning of Section 4211
of ERISA) as of the dates specified in Schedule 2.15. As of the most recent
valuation date for the multiemployer pension plan in respect of the Company's
former New York Building Products Inc. operations, to the knowledge of the
Company, based upon the information supplied to it by such multiemployer
pension plan, there was not any amount of "unfunded vested benefits" under such
plan.
32
23
(x) The list of Welfare Plans in Schedule 2.15 discloses
whether each Welfare Plan is (i) unfunded, (ii) funded through a "welfare
benefit fund", as such term is defined in Section 419(e) of the Code, or other
funding mechanism or (iii) insured. Except as disclosed on Schedule 2.15, to
the knowledge of the Company, apart from the written provisions of the Welfare
Plans disclosed to Parent, there are no understandings, agreements or
undertakings, written or oral, that would prevent any such Welfare Plan from
being amended or terminated at any time after the Closing Date. The Company
and its Subsidiaries comply with the applicable requirements of Section
4980B(f) of the Code with respect to each Benefit Plan that is a group health
plan, as such term is defined in Section 5000(b)(1) of the Code.
(xi) Except as provided in Section 1.12 with respect to the
1982 Stock Option Plan, the 1992 Stock Option Plan, the Director Option Plan,
the LTIP and the Savings Plan, and as provided in the employment and severance
agreements listed in Schedules 2.11(a) and 2.15, no employee of the Company or
any of its Subsidiaries will be entitled to any additional material benefits or
any acceleration of the time of payment or vesting of any material benefits
under any Benefit Plan as a result of the transactions contemplated by this
Agreement.
(xii) During the period beginning on January 1, 1995, and
ending on the date of this Agreement, there has been no change (a) in any
actuarial or other assumption used to calculate funding obligations with
respect to any Company Pension Plan or (b) in the manner in which contributions
to any Company Pension Plan are made or the basis on which such contributions
are determined.
(xiii) Except as disclosed on Schedule 2.15, to the knowledge
of the Company and based upon its best estimate, any amount that could be
received (whether in cash or property or the vesting of property) as a result
of any of the transactions contemplated by this Agreement by any employee,
officer or director of the Company or any of its affiliates who is a
"disqualified individual" (as such term is defined in proposed Treasury
Regulation Section 1.280G-1) under any employment, severance or termination
agreement, other compensation arrangement or Benefit Plan currently in effect
would not be characterized as an "excess parachute payment" (as such term is
defined in Section 280G(B)(1) of the Code). Schedule 2.15 sets forth (i) the
Company's best estimate of the maximum amount that could be paid to each
executive officer of Company as a result of the transactions contemplated by
this Agreement under all employment, severance and termination agreements,
other compensation arrangements and Benefit Plans currently in effect and (ii)
the Company's best estimate of the "base amount" (as such term is defined in
Section 280(b)(3) of the Code) for each such executive officer calculated as of
the date of this Agreement.
SECTION 2.16. Labor Disputes; Unfair Labor Practices. (a)
There is neither pending nor, to the knowledge of the Company, threatened any
labor
33
24
dispute which could materially adversely affect the facility that is the
subject of such dispute, or any strike or work stoppage involving the Company
or any Subsidiary.
(b) There is not now pending or, to the knowledge of the
Company, threatened any charge or complaint against the Company or any
Subsidiary by the National Labor Relations Board, any state or local labor or
employment agency or any representative thereof.
SECTION 2.17. Product Warranties. (a) The standard forms of
product warranties and guarantees used by the Company and each Subsidiary
during the past five (5) years are attached as Schedule 2.17 hereto. Neither
the Company nor any Subsidiary has authorized any product warranty or guaranty
during such period of time other than pursuant to such forms.
(b) Other than as set forth on Schedule 2.17 or relating to
any matter that has been resolved or that the Company reasonably believes has
been abandoned, as of date of this Agreement, the Company has not received
written notice of any product warranty or similar claims with an actual or
alleged liability to the Company or any Subsidiary other than routine warranty
claims against the Company that do not in the aggregate exceed in any material
respect the level of such claims historically experienced by the Company in the
ordinary course. The Company does not believe that the Assurance of
Discontinuance dated November 1995 between the Commonwealth of Massachusetts
and Bird, Inc. will result in an increase in liability for claims under product
warranties over the level historically experienced by the Company in the
ordinary course.
SECTION 2.18. Environmental Matters. Except as disclosed in
Schedule 2.18, with respect to the business and operations of the Company and
its Subsidiaries and to the Owned Real Property and Leased Real Property:
(a) No Hazardous Material has been used, possessed, Released,
generated, manufactured or treated, on or under such Owned Real Property or
Leased Real Property, as the case may be, by the Company or any Subsidiary in
material violation of any Environmental Law.
(b) The Company and each Subsidiary, as the case may be, has
through the date hereof (i) secured and maintained compliance with all permits,
certificates, licenses, approvals, registrations or authorizations required for
the conduct of their respective businesses under Environmental Laws and (ii)
maintained such Owned Real Property or Leased Real Property and conducted their
respective business thereon in accordance in all material respects with all
Environmental Laws.
(c) No written notice, written request for information
pursuant to common law, law or regulation, citation, summons, complaint or
order has been
34
25
received by the Company or any Subsidiary, and no penalty has been assessed
and, to the knowledge of the Company, no investigation or review is pending or
threatened by any Governmental Authority or other Person, with respect to the
business and operations of the Company and its Subsidiaries or to such Owned
Real Property or Leased Real Property, as the case may be, other than relating
to any matter that has been resolved or that the Company reasonably believes
has been abandoned, regarding (i) any alleged violation by the Company or any
Subsidiary of any Environmental Laws, (ii) any alleged failure by the Company
or any Subsidiary to have any environmental permit, certificate, license,
approval, registration or authorization required under any Environmental Law,
or (iii) any use, possession, spill, Release, threatened Release, storage,
generation, manufacture, treatment, deposit, discharge, transportation or
disposal by or on behalf of the Company or any Subsidiary of any Hazardous
Material.
(d) Neither the Company nor any Subsidiary has entered into
or agreed to any court decree or order nor are any of them subject to any
judgment, decree or order relating to compliance with any Environmental Law or
to investigation or cleanup under any Environmental Law.
(e) There are no aboveground or underground storage tanks on
any such Owned Real Property or Leased Real Property.
(f) Neither the Company nor any Subsidiary has received any
written notice of non-compliance with any applicable statutes, laws,
ordinances, rules, orders and regulations of any Governmental Authority that
relate to occupational health and safety, other than relating to any matter
that has been resolved or that the Company reasonably believes has been
abandoned.
(g) The investigation, remediation, cleanup and other costs
of the Company relating to compliance with any Environmental Law will not
exceed an amount equal to 205% of the Company's estimates of such amounts (the
"Company Estimates") provided to Parent by the Company in a letter dated
January 30, 1996. The Company has used its best efforts in preparing the
Company Estimates consistent with all recognized best engineering practices.
As used in this Agreement, the term "Environmental Laws" means
any and all applicable treaties, laws, regulations, enforceable requirements,
binding determinations, orders, decrees, judgments, injunctions, permits,
approvals, authorizations, licenses or variances, promulgated or entered into
by any Governmental Authority, relating to the environment, conservation,
preservation or reclamation of natural resources, or to the management, Release
or threatened Release of Hazardous Materials, including without limitation the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended by the Superfund Amendments and Reauthorization Act of 1986, 42
U.S.C. Sections 9601 et
35
26
seq. ("CERCLA"), the Federal Water Pollution Control Act, as amended by the
Clean Water Act of 1977, 33 U.S.C. Sections 1251 et seq., Clean Air Act of 1970,
as amended, 42 U.S.C. Sections 7401 et seq., the Toxic Substances Control Act of
1976, 15 U.S.C. Sections 2601 et seq., the Occupational Safety and Health Act of
1970, as amended, 29 U.S.C. Sections 651 et seq., the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. Sections 11001 et seq., the Safe
Drinking Water Act of 1974, as amended, 42 U.S.C. Sections 300(f) et seq., the
Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801 et seq., and any
similar or implementing state or local law, and all amendments or regulations
promulgated thereunder.
As used in this Agreement, the term "Hazardous Materials"
means all explosive or regulated radioactive materials or substances, hazardous
or toxic substances, wastes or chemicals, petroleum (including crude oil or any
faction thereof) or petroleum distillates, asbestos or asbestos containing
materials, including materials listed in 49 C.F.R. Section 172.101 and
materials defined as hazardous substances pursuant to Section 101(14) of the
CERCLA.
As used in this Agreement, the term "Release" means any
spilling, emitting, leaking, pumping, pouring, emptying, injecting, depositing,
disposing, discharging, dispersing, leaching, emanating or migrating of any
Hazardous Materials in, into, onto, or though the environment (including
ambient air, surface water, groundwater, soils, land surface, subsurface
strata, workplace or structure).
SECTION 2.19. Insurance. The Company and each Subsidiary has
been and is insured by financially sound and reputable insurers unaffiliated
with the Company with respect to its and their properties and the conduct of
its and their business in such amounts and against such risks as are consistent
with industry practice. The insurance coverage provided by such policies of
insurance will be continued through the Effective Date and will not terminate
or lapse by reason of the transactions contemplated by this Agreement. The
Company has provided to Parent copies of such policies of insurance. Except as
set forth in Schedule 2.19, neither the Company nor any Subsidiary has been
denied insurance coverage by any carrier in the last three years.
SECTION 2.20. SEC Filings. Schedule 2.20 sets forth all of
the documents filed since January 1, 1994 through the date of this Agreement by
the Company with the Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder (the "Securities Act"), or the Exchange Act. The documents listed
in Schedule 2.20 (the "SEC Documents") are all the documents the Company was
required to file under the Securities Act or the Exchange Act since January 1,
1994, and at the time they were filed and when supplemented or amended, the SEC
Documents complied with the requirements of the Securities Act and the Exchange
Act, as applicable, and at such time, none of the SEC Documents contained any
36
27
untrue statement of a material fact or omitted to state a material fact
required to be stated therein, in light of the circumstances under which they
were made, not misleading. The financial statements of the Company included in
the SEC Documents, at the time they were filed and when supplemented or
amended, complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with
respect thereto, have been prepared in accordance with GAAP (except, in the
case of unaudited statements, as permitted by Form 10-Q of the SEC) applied on
a consistent basis during the periods involved (except as may be indicated in
the notes thereto) and fairly present in all material respects the consolidated
financial position of the Company and its consolidated subsidiaries as of the
dates thereof and the consolidated results of their operations and cash flows
for the periods therein indicated (subject, in the case of unaudited
statements, to normal year-end audit adjustments).
SECTION 2.21. Brokers and Finders. The Company has not
employed any broker or finder or incurred any liability for any brokerage fees,
commissions, finders' fees or similar fees or expenses in connection with this
Agreement or the Merger contemplated herein except for Xxxxxx, Read & Co. Inc.
The Company has delivered to Parent a copy of its engagement letter with
Xxxxxx, Read & Co. Inc. The estimated investment banking and legal fees and
expenses incurred and to be incurred by the Company in connection with this
Agreement and the Merger contemplated by this Agreement have been disclosed to
Parent in writing on the date hereof.
SECTION 2.22. Rights Agreement; Antitakeover. (a) The
Company has taken all necessary action to (i) amend the Rights Agreement to
render the Rights inapplicable to the Merger and the other transactions
contemplated by this Agreement and (ii) ensure that (y) neither Parent nor any
of its affiliates is an Acquiring Person (as defined in the Rights Agreement)
and (z) a Stock Acquisition Date, a Distribution Date or a Triggering Event (as
such terms are defined in the Rights Agreement) does not occur by reason of the
announcement or consummation of the Merger or any of the other transactions
contemplated by this Agreement.
(b) The Company has taken or will take prior to Closing all
action necessary to approve the Merger such that the approval (along with the
stockholder approval required pursuant to Section 6.03) is sufficient to render
entirely inapplicable to the Merger or Parent or Acquisition Sub the provisions
of Chapter 110C, 110D and 110F of the Massachusetts General Laws. No other
antitakeover or similar statute or regulation applies or purports to apply to
the transactions contemplated by this Agreement.
SECTION 2.23. Opinion of Financial Advisor. The Company has
received the opinion of Xxxxxx, Read & Co. Inc., dated the date of this
Agreement, to the effect that, as of such date, the consideration to be
received in the Merger by the
37
28
Company's stockholders is fair to the Company's stockholders from a financial
point of view, a copy of which opinion has been delivered to Parent.
SECTION 2.24. Asbestos Claims. The Agreement of Settlement
dated March 8, 1993, between Employers Insurance of Wausau and the Company with
respect to insurance coverage for the Company's exposure for future asbestos
expenses and liabilities is in full force and effect.
ARTICLE III
Representations and Warranties of Parent
Parent hereby represents and warrants to the Company as
follows:
SECTION 3.01. Corporate Organization. Parent is a
corporation duly incorporated, validly existing and in good standing under the
laws of Delaware with all requisite power and authority to own, operate and
lease its properties and to carry on its business as now being conducted.
Parent is qualified to do business and is in good standing in each jurisdiction
in which such qualification is necessary, except where failure to be qualified
would not reasonably be expected to have a material adverse effect on the
ability of Parent to carry out the transactions contemplated hereby without
significant unanticipated delay.
SECTION 3.02. Authorization. (a) Parent has requisite
corporate power and authority to execute and deliver this Agreement and,
subject to the satisfaction of the conditions set forth herein and therein, to
consummate the transactions contemplated hereby and thereby.
(b) This Agreement has been approved by the Board of
Directors of Parent and upon such approval no other corporate proceeding on the
part of Parent is necessary to authorize this Agreement or to consummate the
transactions contemplated hereby.
(c) This Agreement has been duly and validly executed and
delivered by Parent and is a valid and binding agreement of Parent, enforceable
against Parent in accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws in effect now or hereafter in effect relating to
creditors' rights generally and by equitable principles (whether considered in
a proceeding at law or in equity).
38
29
SECTION 3.03. Absence of Conflicts; Consents. Neither the
execution and delivery by Parent of this Agreement nor the consummation by
Parent of the transactions contemplated hereby will:
(a) conflict with or result in a breach of any provision of
the certificate of incorporation or By-Laws of Parent which would have
a material adverse effect on the ability of Parent to carry out the
transactions contemplated hereby without significant unanticipated
delay;
(b) result in the creation of any Lien upon any of the
properties of Parent which would have a material adverse effect on the
ability of Parent to carry out the transactions contemplated hereby
without significant unanticipated delay;
(c) with or without giving of notice or the passage of time,
or both, violate, or conflict with, or constitute a default under, or
result in the termination or in a right of termination of, violate or
be in conflict with, result in a breach of any term or provision of,
or constitute a default under, or accelerate or permit the
acceleration of the performance required by, or give any other Person
a basis for accelerated or increased rights or termination or
nonperformance under, or require any consent, authorization or
approval under, any term or provision of any Lien, lease, license or
other agreement or instrument to which Parent or any of its
Subsidiaries is a party or by which it or they are bound, except to
the extent that such circumstance would not have a material adverse
effect on the ability of Parent to carry out the transactions
contemplated hereby without significant unanticipated delay;
(d) subject to the approval of the Merger by the Company's
shareholders, to the knowledge of Parent, violate any provision of, or
require any consent, authorization or approval under, any Applicable
Laws of any Governmental Authority, or any Judgment applicable to
Parent or any of its Subsidiaries, except to the extent that such
circumstance would not have a material adverse effect on the ability
of Parent to carry out the transactions contemplated hereby without
significant unanticipated delay; or
(e) require any consent, approval or authorization of, or
declaration, filing or registration with, any Governmental Authority,
to be made or obtained by or on behalf of Parent except (i) as
required by the Exchange Act, (ii) the filing of the Articles of
Merger and other appropriate merger documents, if any, as required by
the laws of the Commonwealth of Massachusetts or, in connection with
the maintenance of qualification to do business in other
jurisdictions, such other jurisdictions and (iii) filings with the FTC
and with the Antitrust Division under the HSR Act.
39
30
SECTION 3.04. Litigation. Neither Parent nor any of its
Subsidiaries is engaged in, and there is not, to the knowledge of Parent,
pending, nor has Parent or any of its Subsidiaries received any written notice
of, any Legal Action which would prevent Parent from consummating the
transactions contemplated hereby.
SECTION 3.05. Brokers and Finders. Parent has not employed
any broker or finder or incurred any liability for any brokerage fees,
commissions, finders' fees or similar fees or expenses in connection with this
Agreement or the transactions contemplated hereby except for XxXxxxxxx Xxxxx &
Co. In the event that the Company shall be obligated to pay Parent's Expenses
pursuant to Article X, Parent will deliver to the Company a copy of its
engagement letter with XxXxxxxxx Xxxxx & Co.
ARTICLE IV
Representations and Warranties of Acquisition Sub
Acquisition Sub hereby represents and warrants to the Company
as follows:
SECTION 4.01. Corporate Organization. Acquisition Sub is a
corporation duly incorporated, validly existing and in good standing under the
laws of the Commonwealth of Massachusetts and has not engaged in any operations
or incurred any obligations other than incident to its organization and the
performance of this Agreement.
SECTION 4.02. Authorization. (a) Acquisition Sub has all
requisite corporate power and authority, if necessary, to execute, deliver and
file the Articles of Merger and to execute and deliver this Agreement and,
subject to the satisfaction of the conditions set forth herein, to consummate
the transactions contemplated hereby. This Agreement has been approved by the
Board of Directors of Acquisition Sub, and no other corporate proceeding on the
part of Acquisition Sub is necessary to authorize this Agreement or to
consummate the transactions contemplated hereby without significant
unanticipated delay.
(b) The Agreement has been duly and validly executed and
delivered by Acquisition Sub and is a valid and binding agreement of
Acquisition Sub, enforceable against Acquisition Sub in accordance with its
terms, enforceable against Acquisition Sub in accordance with its terms, except
in each case as such enforceability may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws in effect now
or hereafter in effect relating to creditors' rights generally and by equitable
principles (whether considered in a proceeding at law or in equity).
40
31
SECTION 4.03. Absence of Conflicts; Consents. Neither the
execution and delivery by Acquisition Sub of this Agreement nor the
consummation by Acquisition Sub of the transactions contemplated hereby will:
(a) conflict with or result in a breach of any provision of
the Articles of Organization or By-Laws of Acquisition Sub which would
have a material adverse effect on the ability of Acquisition Sub to
carry out the transactions contemplated hereby without significant
unanticipated delay;
(b) result in the creation of any Lien upon any of the
properties of Acquisition Sub which would have a material adverse
effect on the ability of Acquisition Sub to carry out the transactions
contemplated hereby without significant unanticipated delay;
(c) with or without giving of notice or the passage of time,
or both, violate, or conflict with, or constitute a default under, or
result in the termination or in a right of termination of, violate or
be in conflict with, result in a breach of any term or provision of,
or constitute a default under, or accelerate or permit the
acceleration of the performance required by, or give any other Person
a basis for accelerated or increased rights or termination or
nonperformance under, or require any consent, authorization or
approval under, any term or provision of any Lien, lease, license or
other agreement or instrument to which Acquisition Sub or any of its
Subsidiaries is a party or by which it or they are bound, unless such
circumstance would not have a material adverse effect on the ability
of Acquisition Sub to carry out the transactions contemplated hereby
without significant unanticipated delay;
(d) subject to the approval of the Merger by the Company's
shareholders, to the knowledge of Acquisition Sub, violate any
provision of, or require any consent, authorization or approval under,
any Applicable Laws of any Governmental Authority, or any Judgment
applicable to Acquisition Sub or any of its Subsidiaries, except to
the extent that such circumstance would not have a material adverse
effect on the ability of Acquisition Sub to carry out the transactions
contemplated hereby without significant unanticipated delay; or
(e) require any consent, approval or authorization of, or
declaration, filing or registration with, any Governmental Authority,
to be made or obtained by or on behalf of Acquisition Sub except (i)
as required by the Exchange Act, (ii) the filing of the Articles of
Merger and other appropriate merger documents, if any, as required by
the laws of the Commonwealth of Massachusetts or, in connection with
the maintenance of qualification to do business in other
jurisdictions, such other jurisdictions and (iii) filings with the FTC
and with the Antitrust Division under the HSR Act.
41
32
SECTION 4.04. Litigation. Neither Acquisition Sub nor any of
its Subsidiaries is engaged in, and there is not, to the knowledge of
Acquisition Sub, pending, nor has Acquisition Sub received any written notice
of, any Legal Action which would prevent Acquisition Sub from consummating the
transactions contemplated hereby.
SECTION 4.05. Capitalization. The authorized capital stock
of Acquisition Sub consists of 200,000 shares of Common Stock, $1 par value, of
which 100 shares are issued and outstanding. All issued and outstanding shares
of Acquisition Sub Common Stock have been validly issued and are fully paid,
nonassessable and free of preemptive rights and all of such shares are owned,
beneficially and of record, by Parent. There are no outstanding securities
convertible into or exchangeable or exercisable for shares of capital stock of
Acquisition Sub.
SECTION 4.06. Brokers and Finders. Acquisition Sub has not
employed any broker or finder or incurred any liability for any brokerage fees,
commissions, finders' fees or similar fees or expenses in connection with this
Agreement or the transactions contemplated hereby.
ARTICLE V
Covenants
SECTION 5.01. Access and Information. (a) From the date
hereof until the Effective Date or, if earlier, the date of termination of this
Agreement pursuant to Section 9.01, the Company shall, and shall cause its
Subsidiaries to, afford to Parent and to Parent's officers, employees,
accountants, counsel and other authorized representatives full access, upon
reasonable notice to the Company, to their plants, properties, books and
records during normal business hours for the purpose of making such
investigations as Parent shall reasonably desire in connection with the
transactions contemplated hereby, at its expense (except as otherwise
contemplated by Section 10.01), and the Company shall use its reasonable
efforts to cause its and its Subsidiaries' representatives to furnish promptly
to Parent such additional financial and operating data and other information
regarding the business and properties of the Company and its Subsidiaries as
Parent may from time to time reasonably request for such purpose. In addition,
the Company shall afford to Parent and to Parent's officers, employees,
accountants, counsel and other authorized representatives the right to speak
directly with the lenders of the Company and its Subsidiaries in the presence
of representatives of the Company selected by the Chief Executive Officer of
the Company, including without limitation, Fleet Capital Corporation.
(b) The provisions of the confidentiality agreement dated
April 13, 1994 (the "Confidentiality Agreement"), between the Company and
Saint-Gobain
42
33
Corporation in connection with the transactions contemplated hereby shall be
incorporated herein and made a part hereof except that the termination of such
Agreement shall be extended to December 31, 1996.
SECTION 5.02. Proxy Statement. (a) The Company shall
prepare and file with the SEC, as soon as reasonably practicable, the proxy
statement to be distributed to the Company's shareholders in connection with
the Special Meeting referred to in Section 5.03 (the "Proxy Statement"), and
the Company shall use all reasonable efforts to have such Proxy Statement
cleared by the SEC. The Proxy Statement will comply as to form in all material
respects with the requirements of the Exchange Act and the rules and
regulations thereunder, except that no representation is made by the Company
with respect to statements made or incorporated by reference therein based on
information supplied or required to be supplied by Parent or Acquisition Sub
for inclusion or incorporation by reference in the Proxy Statement.
(b) Parent shall cooperate with the Company in preparing the
Proxy Statement and making any filings required to be made pursuant to this
Section 5.02, and the Company shall consult with Parent in that regard and keep
Parent fully informed of its progress with respect thereto and provide to
Parent copies of the Proxy Statement and all such filings for review and
approval prior to the finalization thereof.
(c) Parent and the Company shall furnish to each other, and
each other's counsel, all such information as may be required and requested in
connection with the preparation of the Proxy Statement and the filing of the
Proxy Statement with the SEC, and each represents and warrants to the other
that no written information furnished as provided for in this Section 5.02(c)
which has been prepared by the responsible party will contain any untrue
statement of a material fact or omit to state a material fact required to be
stated in order to make any information so furnished, in light of the
circumstances under which it is so furnished, not misleading.
(d) Parent and the Company shall each promptly notify the
other if at any time before the Effective Date it becomes aware that the Proxy
Statement contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
contained therein, in light of the circumstances under which they were made,
not misleading. In such event, the Company shall prepare a supplement or
amendment to the Proxy Statement which corrects such misstatements or omissions
and shall cause the same to be filed with the SEC and distributed to the
shareholders of the Company in accordance with the Exchange Act.
SECTION 5.03. Shareholders' Meeting. (a) The Company shall
call a special meeting of its shareholders ("Special Meeting") to consider and
vote upon the matters necessary for the consummation of the transactions
contemplated by this
43
34
Agreement and shall recommend to its shareholders a vote "FOR" the Merger;
provided, however, that nothing contained in this Section 5.03(a) or any other
provision of this Agreement shall prohibit the Company or its Board of
Directors, or the representatives of either of them, from recommending to the
shareholders of the Company against, or withdrawing, modifying or changing its
recommendation to the shareholders with respect to, the Merger, if permitted by
Section 5.12 hereof.
(b) The date of the Special Meeting shall be determined
jointly by Parent and the Company, but shall occur as soon as practicable
following the SEC's approval of the Proxy Statement and related proxy
materials.
SECTION 5.04. Supplemental Information. From time to time
prior to the Effective Date, the Company will promptly advise Parent of any
inaccuracy of which it has knowledge in any Schedules which it has delivered
pursuant to this Agreement if any matter arises hereafter which, if existing or
occurring at the date of this Agreement, would have been required to be set
forth or described in any such Schedule. Such updating shall not cure any
breach or misrepresentation or failure of any closing condition that may exist
based on the Schedules originally delivered with this Agreement.
SECTION 5.05. Further Assurances. Consistent with the terms
and conditions hereof, each party hereto will execute and deliver such
instruments and take such other action as the other parties hereto may
reasonably require in order to carry out this Agreement and the transactions
contemplated hereby.
SECTION 5.06. Conduct of Company Business Prior to the
Effective Date. (a) Except as set forth on Schedule 5.06 or any other
Schedule hereto with reference to this Section 5.06 or otherwise consented to
or approved by an authorized officer of Parent or as expressly contemplated or
permitted by this Agreement, the Company agrees that prior to the Effective
Date the business of the Company and its Subsidiaries shall be conducted in the
ordinary course consistent with past practice and:
(i) no change shall be made in the respective articles or
certificate of organization or incorporation or By-Laws of the Company
or any of its Subsidiaries;
(ii) no change shall be made in the number of shares of the
Company's authorized, issued or outstanding capital stock; nor shall
any Conversion Rights be granted, made, redeemed or amended; nor shall
the Company or any Subsidiary issue, deliver, pledge or sell any such
shares, securities or obligations (except deliveries or pledges in
favor of the Company's senior lenders); provided, however, that the
Company shall be permitted to issue shares or other securities as
contemplated by the Savings Plan as in effect on
44
35
the date hereof and shall be permitted to issue shares of Common Stock
in connection with the due exercise of Options under the 1982 Stock
Option Plan, the 1992 Stock Option Plan, the Director Option Plan or
any other right or convertible security outstanding as of the date of
this Agreement in accordance with the existing terms thereof;
(iii) except as required with respect to the 5% Stock or the
Preference Stock (including the obligations set forth in Section
5.19), (x) no dividend shall be declared or paid or other distribution
(whether in cash, stock, property or any combination thereof) or
payment declared or made in respect of the Company Common Stock or any
other outstanding capital stock of the Company, nor shall the Company
or any Subsidiary (y) purchase, acquire or redeem any shares of
Company Common Stock, 5% Stock or Preference Stock or (z) split,
combine or reclassify any of its capital stock or issue or authorize
the issuance of any other securities in respect of, in lieu of or in
substitution for shares of its capital stock;
(iv) neither the Company nor any Subsidiary shall enter into
any Material Contract, or except in the ordinary course of business
consistent with past practice any other agreement, commitment or
instrument;
(v) the Company shall use and shall cause each Subsidiary to
use its and their respective reasonable efforts to preserve its and
their business organization intact, to keep available the services of
its and their officers and present key employees and to preserve its
and their properties and the goodwill of its and their suppliers,
customers and others with whom business relationships exist;
(vi) the Company shall not take, agree to take or permit any
Subsidiary to take any action or do or permit to be done anything in
the conduct of its business or that of any Subsidiary which would be
contrary to or in breach of any of the terms or provisions of this
Agreement or which would cause any of the representations of the
Company contained herein to be or become untrue in any material
respect;
(vii) neither the Company nor any of its Subsidiaries shall
adopt or amend in any material respect or terminate any Benefit Plan,
except as required by law, or change any actuarial or other assumption
used to calculate funding obligations with respect to any Company
Pension Plan (except to the extent that failure to make such change
would result in noncompliance with GAAP, ERISA or the Code), or change
the manner in which contributions to any Company Pension Plan are made
or the basis on which such contributions are determined, except as
required by Applicable Law;
45
36
(viii) the Company shall not acquire or agree to acquire (x)
by merging or consolidating with, or by purchasing a substantial
portion of the assets of, or by any other manner, any business or any
corporation, partnership, joint venture, association or other business
organization or division thereof or (y) any assets that are material,
individually or in the aggregate, to the Company and its Subsidiaries
taken as a whole, except purchases of inventory, raw materials,
supplies and similar materials in the ordinary course of business
consistent with past practice and capital expenditures complying with
clause (xi);
(ix) the Company shall not sell, lease, license, mortgage or
otherwise encumber or subject to any Lien (except in favor of the
Company's senior lenders or Permitted Liens) or otherwise dispose of
any of its material properties or assets, except bona fide sales of
inventory in the ordinary course of business consistent with past
practice;
(x) the Company shall not (x) incur any indebtedness for
borrowed money or guarantee any such indebtedness of another person,
issue or sell any debt securities or warrants or other rights to
acquire any debt securities of the Company or any of its Subsidiaries,
guarantee any debt securities of another person, enter into any "keep
well" or other agreement to maintain any financial statement condition
of another person or enter into any arrangement having the economic
effect of any of the foregoing, except for short-term borrowings
incurred in the ordinary course of business consistent with past
practice and routine endorsements in the process of collection, or (y)
make any loans, advances or capital contributions to, or investments
in, any other person, other than to the Company or any direct or
indirect wholly owned Subsidiary of the Company or routine travel and
similar advances to employees;
(xi) the Company shall not make or agree to make any new
capital expenditure or expenditures which, individually, is in excess
of $100,000 or, in the aggregate, are in excess of $250,000;
(xii) the Company shall not make any tax election or settle or
compromise any income tax liability; provided that Parent shall not
unreasonably withhold any consent or approval of any such tax
election, settlement or compromise; and provided further that the
filing of the Company's 1995 Federal income tax return and 1995 state
and local income tax returns shall not constitute the settling or
compromising of any income tax liability for purposes of this
paragraph;
(xiii) the Company shall not pay, discharge or satisfy any
material claims, liabilities or obligations (absolute, accrued,
asserted or unasserted, contingent
46
37
or otherwise), other than the payment, discharge or satisfaction, in
the ordinary course of business consistent with past practice or in
accordance with their terms, of liabilities that are reflected or
reserved against in, the Balance Sheet or incurred since the date of
the Balance Sheet in the ordinary course of business consistent with
past practice, or waive the benefits of, or agree to modify in any
manner, any confidentiality, standstill or similar agreement to which
the Company or any of its Subsidiaries is a party, except as permitted
by Section 5.12; and
(xiv) the Company shall not authorize any of, or commit or
agree to take any of, the foregoing actions.
(b) Parent shall respond within a reasonable period of time
to any request for consent or approval required under Section 5.06.
(c) Advice of Changes. The Company shall promptly advise
Parent orally and in writing of any change or event of which the Company has
knowledge having, or which, insofar as can reasonably be foreseen, would have,
a Material Adverse Effect.
SECTION 5.07. Consents. Each of the Company, Parent and
Acquisition Sub shall, and shall cause each of their Subsidiaries to, use its
and their reasonable efforts to obtain prior to the Effective Date all
approvals, authorizations and consents of all third Persons identified on
Schedule 2.05 and all Permits which are necessary for (i) the consummation of
the Merger and the other transactions contemplated hereby, (ii) the ownership
or leasing and operation by the Surviving Corporation and each of its
Subsidiaries of all the properties and assets of the Company and its
Subsidiaries and (iii) the conduct by the Surviving Corporation and each of its
Subsidiaries of the business of the Company and its Subsidiaries as conducted
by such entities on the date hereof.
SECTION 5.08. Filings. The Company, Parent and Acquisition
Sub shall use their reasonable efforts to respond as promptly as practicable to
all inquiries received from the FTC or the Antitrust Division for additional
information or documentation in connection with all notices, reports or other
documentation filed by Parent and the Company under the HSR Act. The Company,
Parent and Acquisition Sub shall take such reasonable action as may be
necessary under state and Federal securities laws applicable to or necessary
for, and will file all documents and notifications with the SEC and other
Governmental Authorities reasonably necessary for, the consummation of the
Merger and the transactions contemplated hereby. Each party shall furnish the
other and the other's counsel with all information reasonably requested by such
other party pertaining to it and its subsidiaries and affiliates as may be
required in order to enable such other party to take all such actions as
required by this Section 5.08. Nothing in this Agreement shall require Parent
to dispose of, or
47
38
make any change in, any portion of its or the Company's assets or business or
to pay any material amount or incur any other material burden in order to
obtain any consent, approval or authorization or satisfy any condition in
connection with the Closing.
SECTION 5.09. Filing of Articles of Merger. Subject to the
terms and conditions of this Agreement, as soon as practicable following the
approval of the Merger by the shareholders of the Company contemplated by
Section 5.03 hereof, the Company, Parent and Acquisition Sub will cause the
Articles of Merger to be filed with the Secretary of State of the Commonwealth
of Massachusetts.
SECTION 5.10. Interim Financial Statements. Until the
Effective Date or, if earlier, the date of termination of this Agreement
pursuant to Section 9.01, as soon as practicable but in no event later than 30
days after the end of each month beginning with February 1996, the Company
shall deliver to Parent unaudited consolidated financial information for such
month and the corresponding month of the preceding year as prepared by the
Company's management for its own internal purposes, such information to be held
in confidence in accordance with Section 5.01(b) hereof. Until the Effective
Date or, if earlier, the date of termination of this Agreement pursuant to
Section 9.01, the Company shall deliver to Parent its Form 10-Q for each
quarter within 45 days after the end of such quarter after the date of this
Agreement (but not later than the business day prior to the date of filing of
such Form 10-Q with the SEC). The financial statements contained therein shall
present fairly in all material respects the Company's consolidated financial
condition, results of operations and changes in financial position (on a
consolidated basis) as at the date or for the periods indicated in accordance
with GAAP consistently applied, except as otherwise indicated in such
statements and except as to format and footnote disclosure shall be prepared in
conformity with the requirements of Rule 10-01 of Regulation S-X under the
Exchange Act and Item 303 of Regulation S-K.
SECTION 5.11. Public Announcements. (a) Unless required by
Applicable Law or by the rules of any applicable self-regulatory organizations,
the Company, Parent and Acquisition Sub shall not, and shall each cause their
respective officers, employees and other authorized representatives not to,
prior to the Effective Date, issue any press release or make any other public
disclosure or announcement or otherwise make any disclosure to any third Person
(other than by way of the Proxy Statement referred to in Section 5.02)
concerning the transactions contemplated by this Agreement or the terms and
provisions hereof.
(b) Should any press release or other public disclosure be
required to be made, then the party required to make such release or disclosure
shall not make such release or disclosure without first using its reasonable
efforts to obtain the prior written consent of the other parties hereto as to
both the timing and content of such press release or public disclosure, which
consent shall not be unreasonably withheld.
48
39
SECTION 5.12. No Solicitation. (a) The Company shall not,
nor shall it permit any of its Subsidiaries or affiliates to, nor shall it
authorize or permit any officer, director or employee of, or any investment
banker, attorney or other advisor or representative of, the Company or any of
its Subsidiaries to, (i) solicit or initiate, or knowingly encourage the
submission of, any takeover proposal, (ii) participate in any discussions or
negotiations regarding, or furnish to any person any information with respect
to any takeover proposal (except for (1) non-confidential information, or (2)
filings with the SEC); provided, however, that prior to the Special Meeting, to
the extent required by the fiduciary obligations of the Board of Directors of
the Company, as determined in good faith by the Board of Directors based on the
advice of counsel, the Company may, (A) in response to an unsolicited request
therefor, furnish information with respect to the Company (pursuant to a
confidentiality agreement at least as restrictive as the Confidentiality
Agreement (as determined by the Company's counsel)) to any person who has
indicated to the Company that it is interested in pursuing a qualified takeover
proposal and discuss such information (but not the terms of any possible
takeover proposal) with such person and (B) upon receipt by the Company of a
qualified takeover proposal, following the delivery to Parent of the notice
required pursuant to Section 5.12(c), participate in discussions or
negotiations regarding such qualified takeover proposal. Without limiting the
foregoing, it is understood that any violation of the restrictions set forth in
the preceding sentence by any officer of the Company or any of its Subsidiaries
or any investment banker, attorney or other advisor or representative of the
Company or any of its Subsidiaries, shall be deemed to be a breach of this
Section 5.12 by the Company. For purposes of this Agreement, "takeover
proposal" means any proposal for a merger or other business combination
(regardless of legal form) involving the Company or any Subsidiary or any
proposal or offer to acquire in any manner, directly or indirectly, a
substantial portion of the assets or business of the Company or a substantial
equity interest in, or any substantial amount of voting securities of, the
Company or any Subsidiary, or any other transaction outside the ordinary course
of business and not otherwise specifically permitted by the terms of this
Agreement the consummation of which would impede or prevent the consummation of
the Merger pursuant to the terms of this Agreement; and "qualified takeover
proposal" means a takeover proposal having terms which the Board of Directors
of the Company determines (based on, among other things, the advice of a
financial advisor of nationally recognized reputation) in its good faith
reasonable judgment to be more favorable to the Company's shareholders than the
Total Merger Consideration and likely to be fully financed and consummated.
(b) Neither the Board of Directors of the Company nor any
committee thereof shall (i) withdraw or modify, or propose to withdraw or
modify, in a manner adverse to Parent or Acquisition Sub, the approval or
recommendation by such Board of Directors or any such committee of this
Agreement or the Merger, (ii) approve or recommend, or propose to approve or
recommend, any takeover proposal or (iii) enter into any agreement with respect
to any takeover proposal. Notwithstanding
49
40
the foregoing, in the event the Board of Directors of the Company receives a
qualified takeover proposal, the Board of Directors or any committee thereof or
the Company may (subject to the limitations contained in this Section) withdraw
or modify its approval or recommendation of this Agreement or the Merger at any
time after 48 hours following Parent's receipt of written notice (a "Notice of
Qualified Takeover Proposal") advising Parent that the Board of Directors has
received a qualified takeover proposal, specifying the material terms and
conditions of such qualified takeover proposal and identifying the person
making such qualified takeover proposal. The Company may take any of the
foregoing actions pursuant to the preceding sentence only if the Merger shall
not yet have been approved at the Special Meeting. Nothing contained herein
shall prohibit the Company from taking and disclosing to its stockholders a
position contemplated by Rule 14e-2(a) following Parent's receipt of a Notice
of Qualified Takeover Proposal provided that the Company does not withdraw or
modify its position with respect to the Merger or approve or recommend a
takeover proposal.
(c) In addition to the obligations of the Company set forth
in paragraph (b) of this Section, the Company shall promptly advise Parent
orally and in writing of any request for information or of any takeover
proposal, or any inquiry with respect to any takeover proposal, the material
terms and conditions of such request, takeover proposal or inquiry, and the
identity of the person making any such takeover proposal or inquiry. The
Company shall keep Parent fully informed of the status and details of any such
request, takeover proposal or inquiry.
SECTION 5.13. Validity of Representations. Parent,
Acquisition Sub and the Company shall each take such action as is reasonably
necessary to render their respective representations and warranties accurate on
and as of the Effective Date. Without limiting the foregoing, the Company
shall take any action required by Parent to ensure the accuracy of Section 2.22
including redemption of the Rights if Parent determines that would be
desirable.
SECTION 5.14. Employees; Benefits. Parent and Acquisition
Sub shall honor (i) all employment, severance or similar contractual
arrangements in accordance with their terms in existence on the date of this
Agreement and disclosed prior to the date of this Agreement to Parent and (ii)
all legally imposed obligations relating to employment matters. After the
Closing Date, Parent and Acquisition Sub shall comply with enforceable
Applicable Law, including without limitation the Workers Adjustment Retraining
Notification Act, 29 U.S.C. Section 2101 et seq. It is the current intention
of Parent and Acquisition Sub to cause the Surviving Corporation to provide
benefits to employees of the Company and its Subsidiaries that are no less
favorable in the aggregate to such employees than those in effect on the date
of this Agreement; provided, however, that the foregoing shall not limit or
restrict the right of the Surviving Corporation or its Subsidiaries to
terminate the employment of such
50
41
employees or subsequently to modify the benefits or other terms of employment
of such employees, to the extent permitted by enforceable Applicable Law.
SECTION 5.15. Indemnification and Insurance. (a) Parent and
Acquisition Sub hereby agree that all rights to indemnification now existing in
favor of the directors or officers of the Company and its Subsidiaries (the
"Indemnified Parties") as currently provided in their respective certificates
or articles of incorporation or organization and By-Laws or in any agreements,
contracts or arrangements with the Company or any of its Subsidiaries in effect
on the date hereof and previously furnished to Parent and to the extent not in
violation of applicable state law, shall survive the Merger and shall continue
in full force and effect for a period of five (5) years from the Effective
Date; provided that, in the event any claim or claims are asserted or made
within such five (5) year period, all rights to indemnification in respect of
any such claim or claims shall continue until the disposition of any and all
such claims. Without limiting the foregoing, to the extent currently provided
in the certificates or articles of incorporation or organization and By-Laws of
the Company and its Subsidiaries and Massachusetts law, or agreements,
contracts or arrangements disclosed to Parent with the Company or any of the
Subsidiaries, in the event that any Indemnified Party becomes involved in any
capacity in any action, proceeding or investigation in connection with any
matter, including the transaction contemplated by this Agreement, occurring
prior to, and including, the Effective Date, or otherwise relating to or
arising out of such matters, Parent or the Surviving Corporation shall
periodically advance to such Indemnified Party his or her legal and other
expenses (including the costs of any investigation and preparation incurred in
connection therewith). Parent shall use all reasonable efforts to maintain in
effect, or shall cause the Surviving Corporation to use all reasonable efforts
to maintain in effect, for two (2) years after the Effective Date, directors'
and officers' liability insurance ("D&O Insurance") covering those persons
covered by the Company's directors' and officers' liability insurance on the
date of this Agreement or the Effective Date and which is substantially
equivalent in terms of coverage and amount as the Company has in effect on the
Effective Date so long as such insurance is available and the annual premium
therefor would not be in excess of 200% of the last annual premium paid prior
to the date of this Agreement (the "Maximum Premium"). If the existing D&O
Insurance expires, is terminated or cancelled during such two-year period,
Parent will use all reasonable efforts to cause to be obtained as much D&O
Insurance as can be obtained for the remainder of such period for an annualized
premium not in excess of the Maximum Premium, on terms and conditions no less
advantageous than the existing D&O Insurance. The Company represents to Parent
that the Maximum Premium is $179,000.
(b) Any Indemnified Party wishing to claim indemnification
hereunder, upon learning of any such Legal Action, shall promptly notify Parent
and the Surviving Corporation with respect thereto, but the failure to so
notify shall not relieve Parent or the Surviving Corporation of any liability
it may have to such
51
42
Indemnified Party hereunder except to the extent that Parent and the Surviving
Corporation are materially prejudiced thereby.
(c) Parent and the Surviving Corporation shall periodically,
as requested, advance to such Indemnified Party his, her or its legal and other
expenses (including the cost of investigation and preparation incurred in
connection therewith) to the extent such Indemnified Party is indemnified
pursuant to the terms of this Section 5.15, unless it is ultimately determined
by a court of competent jurisdiction that such Indemnified Party is not
entitled to indemnification hereunder.
(d) Parent and the Surviving Corporation shall be subrogated
to any rights any Indemnified Party may have with respect to any amounts paid
to or on behalf of such Indemnified Party by Parent and the Surviving
Corporation hereunder.
SECTION 5.16. Redemption of 5% Stock and Preference Stock.
(a) In connection with the Merger, the Company, Parent and Acquisition Sub
hereby agree that the 5% Stock shall be redeemed and retired, as soon as
practicable following the Effective Date for the 5% Stock Consideration in
accordance with the Surviving Corporation's Articles of Organization.
(b) Prior to the date specified in the call notice for the
redemption and retirement of the 5% Stock, the Surviving Corporation shall
cause to be deposited with an appropriate trust company or bank, for the credit
of the holders of the 5% Stock, sufficient funds to be paid to such holders for
redemption and retirement of all of such shares of 5% Stock as provided for
herein and in the Surviving Corporation's Articles of Organization.
(c) If requested by Parent or Acquisition Sub, the Company
shall immediately prior to the Closing deliver a notice of redemption and cause
to be deposited with an appropriate trust company or bank, for the credit of
the holders of the Preference Stock, sufficient funds to be paid to such
holders for redemption and retirement of all outstanding shares of Preference
Stock as provided for herein, in the Certificate of Vote of Directors that
established the Preference Stock and in the Company's Articles of Organization.
In such case Parent shall transfer to the Company immediately prior to such
deposit the amount thereof in exchange for the issuance to it by the Company of
that number of shares of Company Common Stock equal to the amount of such
deposit divided by the Total Merger Consideration. Parent may decide whether
to deliver any request under this Section 5.16(c) in its sole discretion, and,
notwithstanding any other provision of this Agreement (including Section 5.20)
shall not be obligated to do so even if redemption of the Preference Stock
would cause satisfaction of a condition set forth in Article VI or Article VII
that otherwise would not be satisfied.
52
43
SECTION 5.17. Material Contracts. The Company shall not
enter into any material modification or amendment concerning any Material
Contract listed on Schedule 2.11(a) or 2.11(b) without the consent of Parent,
which consent shall not be unreasonably withheld. Immediately after the
Closing, Parent shall cause the Surviving Corporation to pay the outstanding
principal amount (and accrued interest thereon) owed by the Company under each
Material Contract set forth on Schedule 2.11(b).
SECTION 5.18. Tax Matters. Promptly after the request of
Parent and in any event no later than three months from the date of such
request, the Company shall provide to Parent true, complete and correct (in all
material respects) copies of (a) a schedule setting forth the deferred
intercompany gain account, and the excess loss account of each of its
Subsidiaries, and (b) a schedule setting forth the Federal income tax basis for
the stock of each of the Subsidiaries except those Subsidiaries for which such
information cannot be obtained after due inquiry.
SECTION 5.19. Dividend Payments. The Company shall declare
and pay or set apart for payment accumulated dividends on the 5% Stock to the
extent required such that the holders of 5% Stock shall not at any time be
entitled to vote pursuant to paragraph (d) of Article IV of the Company's
Articles of Organization. In addition, the Company shall declare and pay or
set apart for payment all accumulated dividends on the Preference Stock to the
extent required such that the holders of Preference Stock shall not at any time
be entitled to vote pursuant to subparagraph (8) of the Company's Certificate
of Vote of Directors Establishing a Series of a Class of Stock with respect to
the Preference Stock.
SECTION 5.20. Satisfaction of Conditions. The Company,
Parent and Acquisition Sub shall each take all reasonable actions that may be
required to satisfy the conditions set forth in Article VI and Article VII
hereof, respectively.
ARTICLE VI
Conditions to the Obligations of Parent
and Acquisition Sub
Each and every obligation of Parent and Acquisition Sub under
this Agreement shall be subject to the satisfaction, on or prior to the Closing
Date, of each of the following conditions, each of which may be waived by
Parent and Acquisition Sub except as otherwise provided by law:
SECTION 6.01. Representations and Warranties True. The
representations and warranties of the Company contained in this Agreement
(without regard to any information provided under Section 5.04) that are
qualified as to
53
44
materiality shall be true and correct, and the representations that are not so
qualified shall be true and correct in all material respects, in each case on
and as of the date hereof and on and as of the Effective Date, and between the
date hereof and the Effective Date there shall not have been any event or
change in circumstance causing or reasonably anticipated to cause in the future
any Material Adverse Effect.
SECTION 6.02. Company's Performance. Each of the obligations
of the Company to be performed by it on or before the Closing Date pursuant to
the terms of this Agreement shall have been duly performed or complied with in
all material respects by the Closing.
SECTION 6.03. Authorization of Merger. (a) All corporate
action necessary by the Company to authorize the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby and thereby shall have been duly and validly taken, and the
Company and Acquisition Sub shall have full right and power to merge on the
terms provided herein. The holders of the Company Common Stock and of the
Preference Stock shall have duly approved the Merger at the Special Meeting
called for that purpose.
(b) All consents, approvals and authorizations from third
Persons and Governmental Authorities identified on Schedule 2.05 and Schedule
2.11(b) required to consummate the transactions contemplated by this Agreement
shall have been obtained.
(c) All applicable waiting periods under the HSR Act shall
have expired or been terminated.
SECTION 6.04. Absence of Litigation. There shall not be
pending or threatened any suit, action or proceeding by any Governmental
Authority (i) challenging the acquisition by Parent or Acquisition Sub of any
shares of Company Common Stock, seeking to restrain or prohibit the
consummation of the Merger or any of the other transactions contemplated by
this Agreement or seeking to obtain from the Company, Parent or Acquisition Sub
any damages related to the Merger or the other transactions contemplated hereby
that are material in relation to the Company and its Subsidiaries taken as a
whole, (ii) seeking to prohibit or limit the ownership or operation by the
Company, Parent or any of their respective Subsidiaries of any material portion
of the business or assets of the Company, Parent or any of their respective
Subsidiaries, or to compel the Company, Parent or any of their respective
Subsidiaries to dispose of or hold separate any material portion of the
business or assets of the Company, Parent or any of their respective
Subsidiaries, as a result of the Merger or any of the other transactions
contemplated by this Agreement, (iii) seeking to impose limitations on the
ability of Parent or Acquisition Sub to acquire or hold, or exercise full
rights of ownership of, any shares of Surviving Corporation Common Stock, (iv)
seeking to prohibit Parent or any of its Subsidiaries
54
45
from effectively controlling in any material respect the business or operations
of the Company or its Subsidiaries or of Parent and its Subsidiaries or (v)
which otherwise is reasonably likely to have a Material Adverse Effect.
SECTION 6.05. Directors. All directors of the Company whose
resignation is requested by Parent at least five (5) days before the Closing
Date will have submitted their resignations as directors effective as of the
Closing Date.
SECTION 6.06. Dissenting Shares. No more than ten percent
(10%) of the issued and outstanding shares of any class of equity securities of
the Company entitled to dissenters rights as of the Closing Date shall be
Dissenting Shares entitled to receive the Dissenting Consideration as provided
in Section 1.10 hereof.
SECTION 6.07. Options. Each outstanding Option issued under
the 1982 Stock Option Plan, the 1992 Stock Option Plan and the Director Option
Plan shall have been amended as contemplated by Section 1.12.
SECTION 6.08. Certificates. The Company shall have furnished
Parent with such certificates of its officers and others to evidence compliance
with the conditions set forth in this Article VI as may be reasonably requested
by Parent. The form and substance of all opinions, certificates and other
documents hereunder shall be satisfactory in all reasonable respects to Parent
and its counsel.
SECTION 6.09. Reported Financials. Price Waterhouse,
independent certified public accountants, shall have issued a report on the
consolidated balance sheets of the Company and its Subsidiaries as at December
31, 1994, and December 31, 1995, and the related consolidated statements of
income, stockholders' equity and cash flows for the respective years then
ended, including the notes thereto (the "Reported Financials"). The Reported
Financials and the report thereon shall be identical to the Company Financial
Statements and the report thereon, except for immaterial language differences
in the notes thereto.
ARTICLE VII
Conditions to the Obligations of the Company
Each and every obligation of Company under this Agreement
shall be subject to the satisfaction, on or prior to the Closing Date, of each
of the following conditions, each of which may be waived by the Company except
as otherwise provided by law:
SECTION 7.01. Representations and Warranties True. The
representations and warranties of Parent and Acquisition Sub contained in this
55
46
Agreement that are qualified as to materiality shall be true and correct, and
the representations that are not so qualified shall be true and correct in all
material respects, in each case on and as of the date hereof and on and as of
the Effective Date.
SECTION 7.02. Parent's and Acquisition Sub's Performance.
Each of the obligations of Parent and Acquisition Sub to be performed by them
on or before the Closing Date pursuant to the terms hereof shall have been duly
performed and complied with in all material respects by the Closing.
SECTION 7.03. Authorization of Merger. (a) All corporate
action necessary by Acquisition Sub and Parent to authorize the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby shall have been duly and validly taken, and
Acquisition Sub shall have full right and power to merge on the terms provided
herein. The Company's shareholders shall have approved the Merger at the
Special Meeting called for that purpose.
(b) All consents, approvals and authorizations from third
Persons and Governmental Authorities identified on Schedule 2.05 required to
consummate the transactions contemplated by this Agreement shall have been
obtained.
(c) All applicable waiting periods under the HSR Act shall
have expired or been terminated.
SECTION 7.04. Absence of Litigation. No Judgment shall have
been entered by a Governmental Authority with proper jurisdiction and not
revised prohibiting the Merger, and no Legal Action shall have been instituted
by any Governmental Authority challenging the Merger which if successful would
prohibit the consummation of the Merger.
SECTION 7.05. Certificates. Parent and Acquisition Sub shall
have furnished Company with such certificates of their respective officers and
others to evidence compliance with the conditions set forth in this Article VII
as may be reasonably requested by Company. The form and substance of all
certificates and other documents hereunder shall be satisfactory in all
reasonable respects to Company and its counsel.
56
47
ARTICLE VIII
Closing
SECTION 8.01. Time and Place. Subject to the provisions of
Articles VI, VII and IX hereof, the closing (the "Closing") of the transactions
contemplated hereby shall take place at the offices of Cravath, Swaine & Xxxxx,
000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 9:30 a.m., local time, on a date
(the "Closing Date") which is to be:
(a) as soon as practicable after the latest to occur of the
date by which the shareholders of the Company shall have approved the
Merger pursuant to Section 5.03, the date of expiration or termination
of any waiting period, including any extensions thereof, which may be
applicable to the Merger under the provisions of the HSR Act, or the
date of satisfaction of all other conditions to the Closing set forth
herein the satisfaction of which is not waived other than conditions
that, by their terms, are to be satisfied on the Closing Date; or
(b) such other place, at such other time, or on such other
date as Parent, Acquisition Sub and the Company may mutually agree
upon for the Closing to take place.
The Closing Date shall be the Effective Date.
SECTION 8.02. Deliveries at the Closing. Subject to the
provisions of Articles VI, VII and IX hereof, at the Closing:
(a) There shall be delivered to Parent, Acquisition Sub and
the Company the opinions, certificates and other documents and
instruments required to be delivered under Articles VI and VII hereof.
(b) Parent, Acquisition Sub and Company shall cause the
Articles of Merger to be filed in accordance with the provisions of
the MBCL and shall take any and all other lawful actions and do any
and all other lawful things necessary to effect the Merger and to
cause the Merger to become effective.
ARTICLE IX
Termination and Abandonment of the Merger
SECTION 9.01. Termination. (a) This Agreement shall be
terminated, and the Merger abandoned, if the shareholders of the Company fail
to approve the Merger as contemplated by Section 5.03 hereof.
57
48
(b) Notwithstanding approval of this Agreement and the
transactions contemplated hereby by the shareholders of the Company or by the
sole stockholder of Acquisition Sub, this Agreement may be terminated, and the
Merger abandoned, at any time prior to the Effective Date:
(i) by the mutual consent of Parent, Acquisition Sub and the
Company; or
(ii) by Parent, Acquisition Sub or the Company at any time
after September 30, 1996; or
(iii) by Parent or Acquisition Sub, (A) if any of the
conditions set forth in Article VI hereof shall become impossible to
fulfill and shall not have been waived in accordance with the terms of
this Agreement or (B) if the Board of Directors pursuant to Section
5.12(b) withdraws or modifies its approval or recommendation of this
Agreement or the Merger; or
(iv) by the Company, if any of the conditions set forth in
Article VII hereof shall become impossible to fulfill, and shall not
have been waived in accordance with the terms of this Agreement; or
(v) by Parent or Acquisition Sub if the Company fails to
perform in any material respect any of its obligations hereunder or
breaches in any material respect any provision hereof, and the Company
has failed to perform such obligation or cure such breach, within 10
days of its receipt of written notice thereof from Parent or
Acquisition Sub, and such failure to perform shall not have been
waived in accordance with the terms of this Agreement;
(vi) by the Company if Parent or Acquisition Sub fails to
perform in any material respect any of its obligations hereunder or
breaches in any material respect any provision hereof, and Parent and
Acquisition Sub have failed to perform such obligation or cure such
breach, within 10 days of its receipt of written notice thereof from
the Company, and such failure to perform shall not have been waived in
accordance with the terms of this Agreement; or
(vii) by the Company if (A) the Board of Directors pursuant to
Section 5.12(b) withdraws or modifies its approval or recommendation
of this Agreement or the Merger and (B) the Company pays Parent all
Expenses and the Alternate Transaction Fee in cash, in each case as
provided in Section 10.01(b).
58
49
SECTION 9.02. Effect of Termination. (a) In the event of
the termination and abandonment of this Agreement and the Merger:
(i) this Agreement shall become void and have no effect,
without any liability on the part of any party or its directors,
officers or shareholders, except Section 5.01(b) shall survive and
except as provided in Article X hereof; provided that, except as
provided in Sections 9.02(b) and 9.02(c), each party shall have the
right to bring suit against any other party for any breach of this
Agreement; and
(ii) each party will redeliver all documents, work papers and
other material and all copies thereof of any other party relating to
the transactions contemplated hereby, whether so obtained before or
after the execution hereof, to the party furnishing the same and, at
the request of any other party, will destroy any analyses,
compilations, studies or other documents prepared using such furnished
information.
(b) Notwithstanding any provisions to the contrary herein,
the sole remedy of Parent or Acquisition Sub for a breach by the Company of any
representation or warranty set forth in Article II of this Agreement shall be
the termination of this Agreement (if permitted by Section 9.01) unless such
breach was made with the actual knowledge of the President and Chief Executive
Officer of the Company, the Vice President of Finance and Administration of the
Company or the General Counsel of the Company, after due inquiry of other
managerial employees of the Company who would be reasonably expected to have
knowledge as to the matter represented (a "Company Willful Misrepresentation").
(c) Notwithstanding any provisions to the contrary herein,
the sole remedy of the Company for a breach by Parent or Acquisition Sub of any
representation or warranty set forth in Article III or IV, respectively, of
this Agreement shall be the termination of this Agreement (if permitted by
Section 9.01) unless such breach was made with the actual knowledge of the
President, Executive Vice President or Senior Vice President of Parent, after
due inquiry of other managerial employees of Parent who would be reasonably
expected to have knowledge as to the matter represented (a "Parent Willful
Misrepresentation").
ARTICLE X
Miscellaneous
SECTION 10.01. Expenses; Alternate Transaction Fee. (a)
Except as provided by Section 10.01(b), (c) or (d) each of the parties hereto
shall bear its own costs, fees and expenses in connection with the negotiation,
preparation, execution,
59
50
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby, including, without limitation, fees,
commissions and expenses (including, without limitation, all filing, printing,
copying, mailing, telephone, transportation and delivery charges) payable to
brokers, finders, investment bankers, consultants, exchange or transfer agents,
attorneys, accountants and other professionals, whether or not the Merger is
consummated.
(b) If the Board of Directors of the Company pursuant to
Section 5.12(b) wishes to withdraw or adversely modify its approval or
recommendation of this Agreement or the Merger, prior to exercising its rights
under Section 5.12(b), the Company shall pay in same day funds to Parent: (i)
its Expenses incurred to date and thereafter shall pay in same day funds to
Parent within one business day after demand therefor all subsequently incurred
Expenses, provided, that the Company shall not be obligated hereunder to pay
any such Expenses to the extent they exceed an aggregate of $1 million and (ii)
an alternative transaction fee of $1.5 million (the "Alternate Transaction
Fee"). For purposes of Sections 10.01(b) and (c), "Expenses" shall mean all
out-of-pocket fees and expenses (including without limitation all travel
expenses and all fees and expenses of counsel, investment banking firms,
accountants, experts and consultants to Parent or Acquisition Sub) incurred or
paid by or on behalf of Parent or Acquisition Sub during or after 1994 in
connection with or leading to this Agreement, the transactions contemplated
hereby, and performing or securing the performance of the obligations of the
parties hereunder, including, without limitation, such fees and expenses
related to preparation and negotiation of documentation and conducting due
diligence. Parent shall within 36 hours after request therefor advise the
Company of an estimate of its Expenses if the Company wishes to exercise its
rights under Section 5.12(b).
(c) In the event a takeover proposal from a party other than
Parent or one of its affiliates is received by the Company or publicly
disclosed prior to the Special Meeting (or, if earlier, termination of this
Agreement) and either at the Special Meeting the required approval of the
Merger by the Company's shareholders is not obtained, or this Agreement is
terminated (other than by the Company pursuant to Section 9.01(vi)) prior to a
vote on the Merger at the Special Meeting, the Company shall pay in same day
funds to Parent within two business days after the Special Meeting or such
termination of this Agreement (i) all Expenses incurred to date and thereafter
will pay in same day funds to Parent within one business day after demand
therefor all subsequently incurred Expenses, provided, that the Company shall
not be obligated hereunder to pay any such Expenses to the extent they exceed
an aggregate of $1 million, and (ii) the Alternate Transaction Fee.
(d) In the event this Agreement is terminated or the Merger
does not occur (i) solely due to a breach by Parent or Acquisition Sub of any
of its covenants or obligations hereunder or
60
51
due to a Willful Parent Misrepresentation or (ii) solely due to a breach by the
Company of any of its covenants or obligations hereunder or due to a Willful
Company Misrepresentation, then in the case of a termination pursuant to clause
(i) above, Parent and Acquisition Sub shall promptly pay to the Company, and in
the case of termination pursuant to clause (ii) above, the Company shall
promptly pay to Parent and Acquisition Sub, in same day funds all Expenses
incurred to date (after giving credit for any reimbursement already made under
Section 10.01(b) or (c)) and thereafter shall pay in same day funds within one
business day after demand therefor all subsequently incurred Expenses. For
purposes of this paragraph 10.01(d) "Expenses" shall mean all out-of-pocket
fees and expenses (including without limitation all travel expenses and all
fees and expenses of counsel, investment banking firms, accountants, experts
and consultants to Parent or the Company, as the case may be) incurred or paid
by or on behalf of Parent, Acquisition Sub or the Company, as the case may be,
during or after 1994 in connection with or leading to this Agreement, the
transactions contemplated hereby, and performing or securing performance of the
obligations of the parties hereunder, including, without limitation, such fees
and expenses related to preparation and negotiation of documentation and
conducting due diligence. This Section shall not limit damages that would
otherwise be recoverable for breaches hereunder.
SECTION 10.02. Non-Survival of Representations and
Warranties. The respective representations and warranties, obligations,
covenants and agreements of the Company, Parent and Acquisition Sub contained
herein or in any Schedule, certificate or letter delivered pursuant hereto
(other than those contained in Section 10.01 hereof and those which by their
terms extend beyond the Effective Date or termination of this Agreement) shall
expire with, and be terminated and extinguished by the effectiveness of the
Merger and shall not survive the Effective Date or, if earlier, the date of
termination of this Agreement pursuant to Article IX hereof.
SECTION 10.03. Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and do not constitute a part of this Agreement and shall not in any manner
affect the meaning or interpretation of the terms of this Agreement.
61
52
SECTION 10.04. Notices. (a) Any notices or other
communications required or permitted hereunder shall be addressed as follows:
If to Parent or Acquisition Sub to:
CertainTeed Corporation
000 X. Xxxxxxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Executive Vice President and
General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
If to the Company to:
Bird Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: President
Tel: (000) 000-0000
Fax: (000) 000-0000
Copy to:
Xxxx Xxxxxxxx, Esq.
Xxxxxx, Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
or such other address as shall be furnished in writing by either party in
accordance with this Section 10.04, and any such notice or communication shall
be deemed to have been given as of the date so mailed.
62
53
(b) Notices or other communications shall be deemed given (i)
if delivered personally, upon delivery, (ii) if delivered by registered or
certified mail (return receipt requested), upon the earlier of actual delivery
or three business days after being mailed, (iii) if delivered by overnight
courier or similar service, upon delivery, or (iv) if given by fax, upon
confirmation of transmission by fax; provided that if such notice or other
communications would be otherwise deemed given on a day which is not a business
day, the delivery shall be deemed given the first business day following such
day.
SECTION 10.05. Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but neither this
Agreement nor any of the rights, interests, or obligations hereunder shall be
assigned by any of the parties hereto, either in whole or in part, without the
prior written consent of the other parties hereto.
SECTION 10.06. Complete Agreement. This Agreement, including
the Schedules, exhibits and other writings referred to herein or delivered
pursuant hereto, contains the entire understanding among the parties with
respect to the Merger and the related transaction and supersedes all prior
arrangements or understandings with respect thereto, except for the
Confidentiality Agreement. There are no restrictions, agreements, promises,
warranties, covenants or undertakings other than those expressly set forth
herein.
SECTION 10.07. Amendments and Waivers. (a) Subject to the
provisions contained in Articles VI and VII hereof, at any time prior to the
Effective Date if authorized by their respective Boards of Directors and to the
extent permitted by law, the parties hereto may, by written agreement, modify,
amend, or supplement any term or provision of this Agreement. Any written
instrument or agreement referred to in this paragraph shall be validly and
sufficiently authorized for the purposes of this Agreement if signed on behalf
of the Company, Parent and Acquisition Sub by a person authorized to sign this
Agreement on their behalf.
(b) This Agreement may be amended at any time only by a
written instrument executed by the Company, Parent and Acquisition Sub. No
delay on the part of any party hereto in exercising any right hereunder shall
operate as a waiver of such right, nor shall any waiver, express or implied, by
any party hereto of any right hereunder or of any failure to provide and
perform hereunder or breach hereof by either party hereto constitute or be
deemed to constitute a waiver of any other failure to provide and perform
hereunder or breach hereof by any party hereto whether of a similar or
dissimilar nature thereto.
63
54
SECTION 10.08. Counterparts. This Agreement may be executed
in two or more counterparts, all of which shall be considered one and the same
agreement and each of which shall be deemed an original.
SECTION 10.09. Governing Law. EXCEPT AS TO THE PROVISIONS OF
ARTICLE I (WHICH SHALL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS), THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK (WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAWS RULES) AS TO ALL
MATTERS, INCLUDING, BUT NOT LIMITED TO, MATTERS OF VALIDITY, CONSTRUCTION,
EFFECT AND PERFORMANCE.
SECTION 10.10. Accounting Terms. All accounting terms used
herein that are not expressly defined in this Agreement shall have the meanings
given to them in accordance with GAAP.
SECTION 10.11. Parties. Nothing in this Agreement is
intended to confer any rights or remedies under or by reason of this Agreement
on any persons or entities other than the parties hereto and their respective
successors and permitted assigns in accordance with Section 10.05 hereof,
except for the provisions of Section 5.15. Without limiting the foregoing, no
third Person shall be a beneficiary of any provision of this Agreement, except
for the provisions of Section 5.15.
64
55
IN WITNESS WHEREOF, each of Parent, Acquisition Sub and the
Company has executed this Agreement, or has caused this Agreement to be
executed on its behalf by a representative duly authorized, all as of the day
and year first above written.
BIRD CORPORATION,
by /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
[Seal] Title: Chairman
by /s/ Xxxxx Xxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
by /s/ Xxxxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Treasurer
CERTAINTEED CORPORATION,
by /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
65
56
BI EXPANSION CORP.,
by
----------------------------------------
Name: Xxxxxx X. Xxxxxx
[Seal] Title: Vice President
by /s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
