EXHIBIT 1
AGREEMENT TO TENDER
THIS AGREEMENT TO TENDER (this "Agreement"), dated as of May 18, 2001,
between Bidder Corporation, a Florida corporation ("Bidder"), Comercial e
Inversiones Portfolio Limitada, a limited liability company organized under the
laws of Chile ("SH1") and Inversiones Portfolio S.A., a sociedad anonima cerrada
organized under the laws of Chile ("SH2" and together with SH1, the "Principal
Shareholders").
W I T N E S S E T H
WHEREAS, as of the date hereof SH1 owns 68,569,591 shares of the
common stock of Laboratorios Chile, S.A., a sociedad anonima organized under the
laws of Chile (the "Company") and SH2 owns 18,003,708 shares of the common stock
of the Company and 70,400 ADS (representing 1,408,000 shares of the common stock
of the Company) (together with any Shares acquired by the Principal Shareholders
after the date hereof, the "PS Shares");
WHEREAS, Bidder is interested in acquiring one hundred percent of the
Company's outstanding shares of common stock (the "Shares"), including any
Shares represented by American Depository Shares, pursuant to one or more
concurrent tender offers in Chile and the United States (collectively, the
"Offer");
WHEREAS, in order to induce Bidder to commence the offer, Bidder has
requested and the Principal Shareholders have agreed to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the premises and
the mutual representations, warranties, covenants and agreements contained
herein, and on the terms and subject to the conditions set forth herein, and
intending to be legally bound the parties agree as follows:
ARTICLE I
Definitions
Section 1.1 Specific Definitions. As used in this Agreement, the
following terms shall have the meanings set forth or referred to below:
"ADS" or "American Depository Shares" means each American Depositary
Share issued pursuant to the Amended and Restated Deposit Agreement dated as of
January 20, 2000 between the Company and the Bank of New York, N.A., as
Depositary, each of which in turn represents twenty (20) Shares.
"Affiliate" of a specified Person means a Person who (at the time when
the determination is to be made) directly or indirectly through one or more
intermediaries, Controls, or is Controlled by, or is under common Control with
the specified Person.
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"Alternative Transaction" has the meaning set forth in Section 3.6.
"Bylaw Amendments" has the meaning set forth in Section 3.3(a).
"Competing Offer" has the meaning set forth in Section 3.5.
"Control" (including, with correlative meaning, the terms
"Controlling," "Controlled by" and "under common Control with") means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Equal Competing Offer" has the meaning set forth in Section 3.5.
"Exchange Act" means the Securities and Exchange Act of 1934, as
amended.
"Expiration Date" means the date that the Offer expires.
"Higher Competing Offer" has the meaning set forth in Section 3.5.
"Law" means any law, rule, regulation or order of any competent
governmental or regulatory authority, court or securities exchange, including
the Ley de Valores, and any other regulations or rules or applicable decrees
issued thereunder, as amended from time to time.
"Legal Requirements" has the meaning set forth in Section 4.3.
"Ley de Valores" means Chilean Law No. 18,045, as amended.
"Material Adverse Change" shall mean any material adverse effect on
the condition (financial or otherwise), business, properties, assets,
liabilities or results of operation of the Company and its Subsidiaries, taken
as a whole.
"Minimum Condition" means the minimum number of Shares that must be
tendered in the Offer as set forth in paragraph 7 of Exhibit A hereto, or as
subsequently reduced or waived in writing by Bidder.
"Offer Price" has the meaning set forth in Section 2.1.
"Orders" has the meaning set forth in Section 4.3.
"Person" means any individual, corporation (including any non-profit
corporation), association, general or limited partnership, organization,
business, limited liability company, firm, governmental entity, joint venture,
estate, trust, unincorporated organization or any other entity, association or
organization.
"PS Shares" has the meaning set forth in the recitals.
"Release Amount" has the meaning set forth in Section 3.5.
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"Santa Elisa Contracts" means the Stock Option Agreement dated July 1,
1996, as amended and restated on February 22, 2000, between Comercial e
Inversiones Portfolio Limitada and Inversiones Santa Elisa Limitada and the
Stock Option Agreement dated September 4, 1996, as amended and restated on
February 22, 2000, between Comercial e Inversiones Portfolio Limitada and
Inversiones Santa Elisa Limitada.
"SEC" means the United States Securities and Exchange Commission.
"SEC Filings" means filings made by the Company with the SEC pursuant
to the periodic reporting requirements contained in Sections 13(a), 13(c) or
15(d) of the Exchange Act and the rules and regulations promulgated thereunder.
"Securities Authorities" shall mean all relevant federal, provincial
and state securities commissions and stock exchange authorities and similar
entities and authorities in the United States and Chile, including the SEC and
SVS.
"Securities Laws" shall mean, collectively, the Ley de Valores, SVS
regulations, Chilean Corporations Law, U.S. federal securities laws and
regulations, "blue sky" and other securities laws and regulations of the states
of the United States, rules of the Xxxxxxxx Stock Exchange, rules of the New
York Stock Exchange, rules of the American Stock Exchange and any other
applicable securities laws, regulations or rules or stock exchange rules, in
each case as amended from time to time.
"Shareholders Meeting" has the meaning set forth in Section 3.3(a).
"Subsidiary" means any corporation or entity with respect to which a
specified Person (or a Subsidiary thereof) owns a majority of the common stock
(or equity securities) or has the power to vote or direct the voting of
sufficient securities to elect a majority of the directors (or similar Persons)
or any other corporation or entity which consolidates with such Person.
"SVS" means the Superintendencia de Valores y Seguros of the Republic
of Chile.
"Tender Offer Documents" shall mean, collectively, (i) any and all
tender offer announcements required by Ley de Valores, the tender offer
prospectus required to be filed under Ley de Valores and all other documents
required to be filed by Bidder under Chilean Law in connection with the Offer
(and in each case, together with all amendments and supplements thereto), (ii)
any pre-commencement filing made by Bidder with respect to the Offer, and (iii)
the Tender Offer Statement on Schedule TO (together with all amendments and
supplements thereto) with respect to the Offer, which shall be filed by Bidder
on the date of commencement of the Offer, and which shall contain (as an exhibit
or otherwise) or incorporate by reference the offer to purchase and forms of the
related letter of transmittal and other ancillary offer documents and
instruments pursuant to which the Offer will be made.
"Tendering Shareholder" means any record or beneficial holder of
Shares who tenders Shares into the Offer.
"Third Party" has the meaning set forth in Section 3.6.
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Section 1.2 Other Definitional Provisions.
(a) The words "hereof", "herein", and "hereunder" and words of similar
import, when used in this Agreement, refer to this Agreement as a whole and not
to any particular provision of this Agreement.
(b) Terms defined in the singular have a comparable meaning when used
in the plural, and vice versa.
(c) The terms "dollars" and "$" mean United States dollars.
ARTICLE II
Tender Offer
Section 2.1 Agreement to Commence Offer. Subject to the provisions of
Section 2.2, Bidder shall commence, within twenty-one (21) days from the date of
this Agreement, an offer to acquire up to 100% of the Shares at a price equal to
$1.25 per Share (or $25.00 per ADS) in cash to each Tendering Shareholder;
provided, however, that the Bidder may, in its sole discretion, increase the per
Share price. The price per Share, or any higher amount per Share as may be paid
in the Offer, is hereinafter referred to as the "Offer Price." If the Offer is
consummated, the Bidder agrees to pay the Offer Price within three (3) business
days of the date the Offer is consummated.
Section 2.2 Conditions to Commence Offer. Bidder's obligation to
commence the Offer is contingent upon the following conditions:
(a) As of the date of the commencement of the Offer, (A) the Company
shall have timely filed all reports required to be filed by it pursuant to the
Exchange Act, (B) each such report complied as to form in all material respects
to the rules and regulations promulgated under the Exchange Act and (C) the
Company's SEC Filings shall not have contained at the time of their respective
filing untrue statements of material facts and shall not have omitted to state
material facts required to be stated therein in order to make the statements
therein, in light of the circumstances in which they were made, not misleading;
(b) No change, event or development shall have occurred which would
reasonably be expected to cause a Material Adverse Change;
(c) All the representations and warranties of the Principal
Shareholders are true and correct in all material respects as of the date Bidder
commences the Offer (other than the representations and warranties set forth in
Section 4.4, which representations and warranties, shall be true and correct in
all respects); and
(d) Neither the Company nor its Subsidiaries shall have caused or
permitted any of the events set forth in Exhibit B to have occurred after the
date of this Agreement.
Section 2.3 Conditions to the Offer. Except as provided below, Bidder
agrees that the Tender Offer Documents shall contain only those conditions
identified on Exhibit A
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hereto as conditions to Bidder's obligation to consummate the Offer. Bidder
reserves the right to waive any such conditions. Bidder will not, without the
prior written consent of the Principal Shareholders (which consent may not be
unreasonably delayed), impose additional conditions to the Offer, change any
conditions to the Offer, or otherwise amend the Offer in any respect; provided,
however, that Bidder need not obtain the prior consent of the Principal
Shareholders to impose additional conditions or change any condition if such
addition or change (i) is imposed by any Securities Authorities, or (ii) does
not adversely affect the stockholders of the Company.
Section 2.4 Extensions of the Offer. Bidder reserves the right, in its
sole discretion, to extend the Offer beyond the Expiration Date as permitted by
Law.
Section 2.5 Opportunity to Review and Comment. Bidder agrees to provide
the Principal Shareholders with the opportunity to review and comment on (i) the
Tender Offer Documents (including any amendments or supplements thereto) and
(ii) any correspondence to Securities Authorities relating to such Tender Offer
Documents prior to filing such Tender Offer Documents. Bidder shall provide the
Principal Shareholders with copies of any correspondence from Securities
Authorities relating to the Tender Offer Documents (including any amendments or
supplements thereto) and keep the Principal Shareholders informed of the status
and details (including amendments or proposed amendments) of the Tender Offer
Documents on a current basis.
Section 2.6 Information. Bidder agrees to advise the Principal
Shareholders, within one business day, orally and in writing, of any request for
information or comments from any governmental agency which could impact Bidder's
ability to consummate the Offer.
Section 2.7 Due Diligence.
(a) For a consecutive five business day period commencing no later than
the tenth business day prior to the Shareholders' Meeting, the Company, as
approved by the Board of Directors, shall have:
(i) provided, or cause to have been provided to Bidder and its
counsel, financial advisors, auditors or other representatives,
full access, during normal business hours, to the offices,
properties and books and records of the Company and its
Subsidiaries and to any previously identified officers, directors,
employees, consultants, financial advisors or other personnel of
the Company or its Subsidiaries;
(ii) furnished, or cause to be furnished, to Bidder, its counsel,
financial advisors, auditors or other representatives, such
information or data relating to the Company and its Subsidiaries as
Bidder, its counsel, financial advisors, auditors or other
representatives shall reasonably request in advance of or during
such five business day period; and
(iii) provided, or cause to have been provided, copies of all
documents, records and information (other than those which cannot
be provided by Law or contract) relating to the business or
operations of the Company and its Subsidiaries as Bidder, its
counsel, financial advisors, auditors or other
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representatives may reasonably request in advance of or during such
five business day period.
Such five business day period will only commence when substantially all of the
information requested pursuant to subsections (a)(ii) above is ready for review
in a data room in Chile and Argentina; provided, however, that the Bidder shall
have delivered in writing to the Principal Shareholders a list of the requested
information within seven business days of the date hereof.
(b) Not later than the tenth business day after commencement of due
diligence and, in any event not later than the day prior to the Shareholders
Meeting, the Bidder shall notify the Principal Shareholder and the Company as to
whether it elects to waive the condition set forth in paragraph 4 of Exhibit A.
If Bidder elects not to waive such condition, the Principal Shareholders shall
have no further obligations hereunder including with respect to the tender or
withdrawal of their Shares hereunder.
(c) From the date of this Agreement until the second anniversary of the
Expiration Date, Bidder shall hold, and shall cause its officers, directors,
employees, counsel, financial advisors, auditors and other representatives to
hold, in confidence, unless compelled to disclose by judicial or administrative
process or other requirements of law, all confidential documents and information
concerning the Company and its Subsidiaries provided to Bidder, its counsel,
financial advisors, auditors or other representatives not previously made
publicly available by parties other than Bidder. If Bidder is compelled to
disclose confidential information by judicial or administrative process or other
requirements of Law, Bidder agrees to disclose only that portion of the
confidential information which Bidder believes it is legally required to
disclose. Bidder agrees to execute a confidentiality agreement with the Company
on customary terms prior to commencing due diligence.
ARTICLE III
Obligations of the Principal Shareholders
Section 3.1 Agreement to Tender. In order to induce Bidder to commence
the Offer, each of the Principal Shareholders agrees to tender (or cause the
record owner to tender) all the PS Shares and all shares beneficially and of
record owned by them in the Offer on the later of (a) three business days after
the commencement of the Offer, and (b) the business day after the Bidder waives
the condition set forth in paragraph 4 of Exhibit A, and with respect to any
Shares subsequently acquired, one business day after the acquisition of
beneficial ownership of such Shares. With respect to any PS Shares that are
subject to liens, such Shares will be tendered on the later of the time set
forth above or at such time that the liens, including those liens identified on
Schedule 4.4 shall have been removed; provided, however, that in no case shall
Principal Shareholders tender any such shares later than the business day prior
to the Shareholders Meeting. Except as permitted by Section 3.5, the Principal
Shareholders agree not to withdraw any such tendered Shares, until termination
of this Agreement pursuant to Section 6.1 hereof.
Section 3.2 Transfer Restrictions. Except for liens identified in
Schedule 4.4, each of the Principal Shareholders agrees not to, directly or
indirectly, sell, transfer, pledge or
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otherwise encumber any of the PS Shares, other than to Affiliates of the
Principal Shareholders who have agreed in writing to be bound by the terms of
this Agreement.
Section 3.3 Shareholders Meeting.
(a) Once the Offer is commenced, the Principal Shareholders shall, in
coordination with Bidder, request that the Company's Board of Directors convene
an extraordinary meeting of the shareholders of the Company (the "Shareholders
Meeting") to be held on the earliest date consistent with applicable notice
periods or at such other date as the parties may agree, but in no event earlier
than nine calendar days prior to the Expiration Date and no later than five
business days prior to the Expiration Date. Except as required by Law, the sole
purpose of such meeting shall be the deletion of Article 6 bis, 18 bis, 20 bis,
34 bis, 35 bis, 53 and 56 and the modification of Articles 1, 6, 20 and 39 of
the Company's Estatutos as set forth in Exhibit C hereto (the "Bylaw
Amendments").
(b) If Shares representing at least the Minimum Condition have been
tendered immediately prior to the Shareholders Meeting, then:
(i) Bidder shall waive those conditions set forth in paragraphs 3,
4, 7 and 8 on Exhibit A; provided, however, that Bidder's
obligation to waive these conditions shall be conditioned upon
Bidder receiving from a representative of each of the Principal
Shareholders, reasonably acceptable to the Bidder, a certificate
that to such person's knowledge after due inquiry, no event or
incident has occurred that would cause a default in one of the
conditions; and
(ii) Bidder shall waive any possible default of a condition or
failure to meet a condition set forth in Exhibit A that may have
occurred or be deemed to have occurred, other than those waived
pursuant to clause (i) above, as a result of or with respect to any
circumstance, event or incident occurring or existing prior to the
Shareholders Meeting that Bidder knew or should have known at such
time; provided, however, that Bidder's obligation to partially
waive these conditions shall be conditioned upon Bidder receiving
from a representative of each of the Principal Shareholders,
reasonably acceptable to the Bidder, a certificate that to such
person's knowledge after due inquiry, no event or incident has
occurred that would cause a default in one of the conditions;
and then, provided that Bidder shall not have revoked, terminated or amended,
other than as permitted by Sections 2.1 and 2.3, the Offer, the Principal
Shareholders agree to vote at the Shareholders Meeting, and at any adjournment
or continuation thereof, all of the PS Shares and all other Shares for which a
proxy has been granted to any of the Principal Shareholders in favor of the
Bylaw Amendments.
Section 3.4 Proxy. The Principal Shareholders shall not grant any
proxy, enter into any voting trust or take any other action that would restrict
their ability to vote the PS Shares
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or other Shares for which they have received a proxy at the Shareholders
Meeting, or at any adjournment or continuation thereof, other than in the manner
agreed to herein.
Section 3.5 Competing Offers.
(a) In the event that a bona fide third party tender offer to acquire
at least 15% of the Shares or any other Alternative Transaction (as herein
defined) is commenced by any party that is not an Affiliate of either of the
Principal Shareholders or the Company (a "Competing Offer"), and if the
aggregate consideration per Share set forth in the Competing Offer exceeds the
Offer Price (a "Higher Competing Offer"), then the Principal Shareholders may
request, no earlier than three business days prior to the expiration of the
Higher Competing Offer, that they be relieved of the obligation to tender their
Shares to Bidder hereunder, and that they be permitted to withdraw the PS Shares
from the Offer and tender the PS Shares into the Higher Competing Offer. Bidder
shall grant or deny such request within 24 hours of the time the Principal
Shareholders make such request. To the extent Bidder grants such consent, then
the Principal Shareholders shall be permitted to withdraw the PS Shares from the
Offer and tender the PS Shares into the Higher Competing Offer, and shall
jointly and severally become irrevocably obligated to pay Bidder the Release
Amount not later than three business days after receipt of the consideration
paid in the Higher Competing Offer. For purposes of this Agreement, "Release
Amount" shall be the difference between (i) the price per Share paid to the
Principal Shareholders in any Higher Competing Offer and (ii) the Offer Price,
multiplied by the total number of Shares sold by the Principal Shareholders in
the Higher Competing Offer.
(b) If Bidder does not grant its consent to permit the Principal
Shareholders to tender the PS Shares into the Higher Competing Offer, then
Bidder shall be irrevocably obligated to purchase the PS Shares at a price equal
to the Offer Price (i) if the Bylaw Amendment is approved and effective,
pursuant to the Offer or, if permitted by Law, in a private transaction or (ii)
if the Bylaw Amendment is not approved but a Third Party has control of the
Company pursuant to Chilean Law, in a private transaction. In the event that
Bidder purchases the PS Shares as provided in this Section 3.5(b) pursuant to
the Offer, Bidder will waive all conditions to close the Offer set forth on
Exhibit A hereto, except for paragraph 1 of Exhibit A. In the event Bidder
purchases the PS Shares as provided in this Section 3.5(b) pursuant to a private
transaction, Bidder will so purchase the PS Shares not later than five business
days after the expiration or termination of the Offer.
(c) In the event that a Competing Offer is commenced and if the
aggregate consideration offered per Share is equal to or less than the
consideration offered by Bidder (an "Equal Competing Offer") and the Principal
Shareholders have a reasonable basis for believing that Bidder's Offer will not
close due to an existing default of the conditions set forth on Exhibit A, then
the Principal Shareholders may request no earlier than two business days prior
to the expiration of the Equal Competing Offer that they be relieved of the
obligation to tender the PS Shares to Bidder hereunder or to withdraw the PS
Shares from the Offer in order to tender the PS Shares into the Equal Competing
Offer. Bidder shall grant or deny such request within 24 hours of the time the
Principal Shareholders make such request. To the extent Bidder grants such
consent, then the Principal Shareholders shall jointly and severally become
irrevocably obligated to pay Bidder the Release Amount, if any, immediately upon
the closing of the Equal Competing Offer.
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Section 3.6 No Solicitation; Ordinary Course.
(a) Each of the Principal Shareholders shall not and shall not permit
any of its respective Subsidiaries to, nor shall it authorize or permit any of
its shareholders, members, owners, officers, directors, Affiliates or employees,
or any investment banker, financial advisor, attorney, accountant or other
representative retained by or acting on behalf of any Principal Shareholder or
any of its Subsidiaries, excluding, however, any Person who is a director or
officer of the Company, to directly or indirectly through another Person: (i)
solicit, initiate or encourage (including by way of furnishing information), or
take any other action to facilitate, any inquiries or the making of any proposal
relating to an Alternative Transaction (as defined below); (ii) participate in
any discussions or negotiations regarding any Alternative Transaction; (iii)
assist any Person regarding an Alternative Transaction; (iv) call or assist any
Person (other than Bidder) in calling a meeting of the shareholders of the
Company regarding an Alternative Transaction; or (v) take any action,
individually or with any Person that would be inconsistent with the consummation
of the transactions contemplated by this Agreement. Each of the Principal
Shareholders shall immediately cease and terminate all existing discussions and
negotiations, if any, with any other persons conducted heretofore with respect
to any Alternative Transaction. For purposes of this Agreement, "Alternative
Transaction" means either (i) a transaction or series of transactions pursuant
to which any Person (or group of Persons), including either of the Principal
Shareholders, their Subsidiaries and Affiliates (excluding any transfers between
the Persons Controlling, under common Control by, or Controlled by the Principal
Shareholders), other than the Company and its wholly-owned Subsidiaries, Bidder
and its Subsidiaries (a "Third Party") acquires or would acquire, directly or
indirectly, beneficial ownership (as defined in Rule l3d-3 under the Exchange
Act) of more than fifteen percent of the Shares, whether from the Principal
Shareholders, the Company or otherwise; or (ii) any other transaction pursuant
to which any Third Party acquires or would acquire, directly or indirectly,
assets of the Company (other than in the ordinary course of business) or,
control of assets of the Company or its Subsidiaries in any case having a book
value of ten percent or more of the Company's total consolidated assets, or for
consideration equal to ten percent or more of the fair market value of all
Shares on the date of this Agreement. Notwithstanding the foregoing, this
Section 3.6 shall not create any obligation for the Principal Shareholders to
take any action or refrain from taking any action in a manner inconsistent with
Chilean law.
(b) As long as permitted by Chilean law, each of the Principal
Shareholders agrees to advise and to cause each of its shareholders, members,
owners, officers, directors, Affiliates (excluding the Company) or employees
(excluding, however, any Person who is a director or officer of the Company) to
advise Bidder orally and in writing of any request for information concerning
the Shares, the Company or of any proposal or request for information in
connection with or relating to an Alternative Transaction, the material terms
and conditions of such request, proposal or Alternative Transaction and the
identity of the Person making such request or proposal within one business day
of the receipt of such request, and shall within such period deliver to Bidder a
copy of any such request, proposal or Alternative Transaction. The Principal
Shareholders will keep Bidder informed of the status and details (including
amendments or proposed amendments) of any such request or proposal on a current
basis.
(c) Until the fifth anniversary of the consummation of the Offer, each
of the Principal Shareholders and its respective shareholders, members or
owners, shall not, and shall
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not permit any of their respective employees, agents or others under their
control to, directly or indirectly, hire, recruit or otherwise solicit or induce
any of those Persons identified on Exhibit D to terminate his employment or
other relationship with the Company, the Company Subsidiaries or such successor.
Section 3.7 Information. As long as permitted by Chilean law, the
Principal Shareholders agree to advise and to cause each of its shareholders,
members, owners, officers, directors, Affiliates or employees (excluding,
however, any Person who is a director or officer of the Company) to advise
Bidder, within one business day, orally and in writing of any request for
information or comments from any governmental agency which could impact Bidder's
ability to consummate the Offer. The Principal Shareholders agree to provide
Bidder with the opportunity to review and comment on any filings with or
correspondence to the Securities Authorities relating to the Offer or this
Agreement.
ARTICLE IV
Representations and Warranties of the Principal Shareholder
Each of the Principal Shareholders, jointly and severally, hereby
represents and warrants to Bidder as of the date of this Agreement:
Section 4.1 Organization and Qualification. SH1 is a sociedad de
responsabilidad limitada duly organized and validly existing under the Laws of
the Republic of Chile. SH2 is a sociedad anonima duly organized and validly
existing under the Laws of the Republic of Chile. Attached as Exhibit E hereto
is a true and complete copy of the Company's restated Estatutos.
Section 4.2 Authority. Each of the Principal Shareholders has all
requisite power and authority to enter into, execute and deliver this Agreement
and to perform fully its obligations hereunder. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized. No other action on the part of
either of the Principal Shareholders or either of its respective shareholders or
partners is necessary to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by the Principal Shareholders and
constitutes the valid and binding obligation of each of the Principal
Shareholders, enforceable against each of the Principal Shareholders in
accordance with its terms.
Section 4.3 No Conflict. Neither the execution, delivery or performance
of this Agreement nor the consummation by the Principal Shareholders of the
transactions contemplated hereby, subject to compliance with filing and other
requirements under applicable law, will, directly or indirectly (with or without
notice or lapse of time): (i) contravene, conflict with, or result in a
violation of (A) any provision of the organizational documents of either of the
Principal Shareholders or (B) any resolution adopted by the relevant management
body or members or shareholders, as the case may be, of the Principal
Shareholders; (ii) contravene, conflict with, or result in a violation of any
federal, state, local, municipal, foreign, international, multinational or other
administrative order, constitution, Law, ordinance, principle of common or civil
law, regulation, statute or treaty ("Legal Requirements") applicable to the
Principal
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Shareholders or the PS Shares, or any award, decision, injunction, judgment,
order, ruling, subpoena or verdict entered, made or rendered by any court,
administrative agency or other governmental authority or by any arbitrator
("Orders") applicable to the Principal Shareholders or the PS Shares; or (iii)
contravene, conflict with, or result in a violation or breach of any provision
of, or give any person the right to declare a default or exercise any remedy
under, or to accelerate the maturity or performance of, or to cancel, terminate
or modify any agreement, contract, obligation, promise or understanding (whether
written or oral and whether express or implied) applicable to the PS Shares, the
Principal Shareholders or any of its Subsidiaries or by which any of their
properties or other assets are legally bound, except for any contravention,
conflict, violation, breach or right which would not materially impair the
ability of the Principal Shareholders to consummate the transactions
contemplated hereby. No governmental authority has or threatened in writing to
commence any proceeding or action with respect to the Offer, this Agreement or
the transactions contemplated hereby and no other Person has commenced any
action, proceeding, application or claim before any court, governmental,
regulatory or administrative agency or commission, authority or tribunal,
domestic, foreign or supranational which would materially impair or delay the
performance by the Principal Shareholders of their obligations under this
Agreement.
Section 4.4 Title to the PS Shares. Each of the Principal Shareholders
is the respective legal and beneficial owner of the PS Shares. The PS Shares
have been duly issued, are fully paid and nonassessable and are free and clear
of any lien, claim, charge, restriction on transfer, other encumbrance or rights
of third parties, other than those liens identified on Schedule 4.4. Except for
the Santa Elisa Contracts and the agreements contemplated herein, there are no
shareholder agreements, voting trusts, proxies or other agreements or
understandings with respect to the PS Shares or the share capital of the Company
of which either of the Principal Shareholders is aware, without additional
investigation. Upon the purchase of the PS Shares pursuant to the Offer, the
Bidder will own the PS Shares free and clear of any lien, claim, charge,
restriction on transfer, other encumbrance or rights of third parties, including
without limitation any lien, claim, charge, restriction on transfer, other
encumbrance or rights pursuant to the Santa Elisa Contracts, other than as the
result of any action by the Bidder.
Section 4.5 Brokers. The Principal Shareholders have not entered into
any agreement or understanding with any broker, investment banker, financial
advisor or other Person with respect to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated by this Agreement, which are payable by Bidder.
ARTICLE V
Representations and Warranties of Bidder
Bidder hereby represents and warrants to the Principal Shareholders as
of the date of this Agreement as follows:
Section 5.1 Organization and Qualification. Bidder is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Florida with full corporate power and authority to own, lease and
operate its assets and to carry on its business as
14
now being and as heretofore conducted. Bidder is not in default in the
performance, observation or fulfillment of its articles of incorporation or
by-laws.
Section 5.2 Authority. The Board of Directors of -Bidder has approved
this Agreement and the transactions contemplated hereby and Bidder has all
requisite power and authority to enter into, execute and deliver this Agreement,
to perform fully its obligations hereunder and to consummate the transactions
contemplated hereby and no shareholder approvals are required under Florida Law
or otherwise. The execution and delivery of this Agreement has been duly
authorized. This Agreement has been duly executed and delivered by Bidder and
constitutes the valid and binding obligation of Bidder, enforceable against
Bidder in accordance with its terms.
Section 5.3 No Conflict. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will,
directly or indirectly (with or without notice or lapse of time): (i)
contravene, conflict with, or result in a violation of (A) any provision of the
articles of incorporation or by-laws of Bidder or (B) any resolution adopted by
the Board of Directors or the shareholders of Bidder; (ii) contravene, conflict
with, or result in a violation of, or give any governmental authority or other
person the right to challenge any of the transactions contemplated by this
Agreement or to exercise any remedy or obtain any relief under, any Legal
Requirements or any Orders; or (iii) contravene, conflict with, or result in a
violation or breach of any provision of, or give any person the right to declare
a default or exercise any remedy under, or to accelerate the maturity or
performanceof, or to cancel, terminate or modify any agreement, contract,
obligation, promise or understanding (whether written or oral and whether
express or implied) applicable to Bidder or any of its Subsidiaries or by which
any of their properties or other assets are legally bound. No governmental
authority has commenced or threatened in writing to commence any proceeding or
action with respect to the Offer, this Agreement or the transactions
contemplated hereby and no other Person has commenced any action, proceeding,
application or claim before any court, governmental, regulatory or
administrative agency or commission, authority or tribunal, domestic, foreign or
supranational which would materially impair or delay the performance by Bidder
of its obligations under this Agreement.
Section 5.4 SEC Documents. Bidder has timely filed all reports required
to be filed by it with the SEC pursuant to the federal securities laws and the
SEC rules and regulations thereunder. Each of such reports complied in all
material respects with applicable requirements of the Securities Exchange Act.
None of such reports, as of their respective dates, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
Section 5.5 Brokers. Bidder has not entered into any agreement or
understanding with any broker, investment banker, financial advisor or other
Person with respect to any broker's, finder's, financial advisor's or other
similar fee or commission in connection with the transactions contemplated by
this Agreement, which are payable by the Principal Shareholders or the Company.
15
Section 5.6 Tender Offer Documents. (a) None of the Tender Offer
Documents will, at the times such Tender Offer Documents are filed with any
Securities Authority, are mailed to the shareholders of the Company or at the
time of the consummation of the Offer, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances
under which they are made, not. misleading, except that no representation or
warranty is made by Bidder with respect to information supplied in writing by
the Principal Shareholders or any Affiliate of the Principal Shareholders
expressly for inclusion therein. The Tender Offer Documents will comply as to
form in all material respects with the provisions of the Securities Laws.
Section 5.7 No Filings or Consents. Other than the filings of the
Tender Offer Documents, no consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency,
regulatory body or commission or other governmental authority or
instrumentality, whether federal, state, or local and whether domestic or
foreign, or any stock exchange in any jurisdiction, is required to be obtained
by Bidder or any of its Subsidiaries in connection with the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby, except for any regulatory approvals or consents that may be required
pursuant to Argentine law and such other consents, approvals, orders,
authorizations, registrations, declarations and filings that if not obtained or
made, individually or in the aggregate, would not materially impair or delay the
performance by Bidder of its obligations under this Agreement.
ARTICLE VI
Termination
Section 6.1 Termination. This Agreement may be terminated at any time:
(a) by mutual written consent of the Principal Shareholders and Bidder;
(b) by the Principal Shareholders, if Bidder has not commenced the
Offer within twenty-one (21) days following the execution of this Agreement,
unless Bidder has not commenced the Offer within the above time-period as a
result of a breach by the Principal Shareholders of any of their material
obligations or agreements under this Agreement;
(c) by Bidder, by giving written notice to the Principal Shareholders,
upon the breach of the Principal Shareholders of their obligation under Section
3.3;
(d) by Bidder, by giving written notice of such termination to the
Principal Shareholders, if the Principal Shareholders shall have breached any of
their material obligations or agreements under this Agreement, other than
Section 3.3, and such breach shall be incapable of cure or has not been cured
within ten (10) days following the giving of written notice of such breach to
the Principal Shareholders;
(e) by either the Principal Shareholders, on the one hand, or Bidder,
by giving written notice of such termination to the other party, if there shall
be in effect any Law that prohibits the consummation of the Offer or any
transactions contemplated hereby or if
16
consummation of Offer or any the transactions contemplated hereby would violate
any non-appealable final order, decree or judgment of any court or governmental
entity having competent jurisdiction;
(f) by the Principal Shareholders, by giving written notice of such
termination to Bidder, if Bidder shall have breached any of its material
obligations or agreements under this Agreement and such breach shall be
incapable of cure or has not been cured within 10 days following the giving of
written notice of such breach to Bidder;
(g) by the Principal Shareholders, on the one hand, or the Bidder, if
the Bylaw Amendment fails to be approved at the Shareholders' Meeting or at any
adjournment or continuation thereof;
(h) by the Principal Shareholders, on the one hand, or the Bidder, if
the Offer expires or terminates in accordance with its terms without the
purchase of Shares; or
(i) upon the purchase of the PS Shares by the Bidder.
Section 6.2 Effect of Termination. In the event of the termination of
this Agreement in accordance with Section 6.1 hereof, this Agreement shall
thereafter become void and have no effect, and neither party shall have any
liability to the other or its respective Affiliates, directors, officers or
employees, provided that nothing herein will relieve either party from liability
for any breach of this Agreement prior to such termination.
ARTICLE VII
Miscellaneous
Section 7.1 Survival. Except for (a) the representations of the
Principal Shareholders set forth in Section 4.4 with respect to title to the
Shares which shall survive indefinitely in the event the Offer is consummated;
(b) the provisions of this Article 7; (c) the payment of the Release Amount as
provided in Section 3.5(a) herein or requirement to purchase PS Shares as
provided in Section 3.5(b), which each shall survive indefinitely whether or not
the Offer is consummated; and (d) any covenant or agreement of the parties
contained in this Agreement which, by its terms, shall survive the consummation
of the Offer, the representations, warranties and covenants in this Agreement
shall not survive the consummation of the Offer or the termination of this
Agreement, except in the case of willful breach by either party thereof.
Section 7.2 Public Announcements. During the term of this Agreement and
thereafter neither party shall issue any press release or public announcement or
make any statement to the news media or otherwise make or cause to be made any
public statement regarding the existence of this Agreement or the intended
cooperation between the parties or the fact that negotiations or discussions are
taking place without the prior written consent of the other party (which shall
not be unreasonably withheld), except as may be required by law, by order of any
court or governmental or regulatory authority or body. The parties shall
cooperate on, and seek to agree on the content of, all public announcements.
Bidder acknowledges and agrees that the Principal Shareholders will disclose the
existence and contents of this Agreement promptly after execution by the
parties.
17
Section 7.3 Confidentiality. Bidder and the Principal Shareholders will
maintain in confidence, and will cause their respective Subsidiaries,
Affiliates, directors, officers, employees, advisors, agents and representatives
to maintain in confidence, any written, oral or other information obtained in
confidence from the other party in connection with this Agreement or the
transactions contemplated hereby (including any proposed offers by Bidder to
acquire capital stock of the Company), unless (a) such information is already
known to such party or to others not bound by a duty of confidentiality or such
information becomes publicly available through no fault of such party, (b) the
use of such information is necessary or appropriate in making any filing or
obtaining any consent or approval required for the consummation of the
transactions contemplated by this Agreement or (c) the furnishing or use of such
information is required by legal proceedings or applicable law. Whether or not
the transactions contemplated by this Agreement are consummated, each party will
return or destroy as much of such written information as the other party may
reasonably request.
Section 7.4 Further Assurances. The parties agree (a) to furnish upon
request to each other such further information, (b) to execute and deliver to
each other such other documents and (c) to do such other acts and things, all as
the other party may reasonably request for the purpose of carrying out the
intent of this Agreement. Bidder covenants to use its best efforts to obtain any
consents or approvals to consummate the Offer required by Law, including the
consents referenced in paragraphs 8 and 12 of Exhibit A. Each of the Principal
Shareholders covenants to and covenants to cause its shareholders, members,
owners, officers, directors, Affiliates or employees (excluding, however, any
person who owes a fiduciary duty to the Company) to use its best efforts,
consistent with Chilean law, to cause duly authorized senior representatives of,
or owners, members or shareholders of, each Principal Shareholder to appear with
Bidder at any meeting (whether ordinary or extraordinary, and as may be
adjourned or postponed) of the shareholders of the Company and to solicit
holders of Shares or ADSs to (i) vote in favor of the Bylaw Amendments and (ii)
tender their Shares or ADSs in the Offer. At Bidder's request, each Principal
Shareholder will use its best effort, consistent with Chilean law, to provide
Bidder with the Company's shareholders' list as provided by the Company to the
SVS, and with the list of the holders of ADS, in both physical and electronic
format. Each of the Principal Shareholders covenants to and covenants to cause
its shareholders, members, owners, officers, directors, Affiliates or employees
(excluding, however, any person who owes a fiduciary duty to the Company) to use
its best efforts, consistent with Chilean law, to support and facilitate all
Bidders' road shows and shareholders' presentations aimed at obtaining approval
of the Bylaw Amendments and the tendering of the highest amount of Shares or
ADSs in the Offer.
Section 7.5 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, and the rights to the parties shall
be governed by, the laws of the State of New York, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
Section 7.6 Forum. This Agreement shall be subject to the exclusive
jurisdiction of the Federal Courts for the Southern District of New York and
State courts of New York County in the State of New York. The parties
irrevocably waive, to the fullest extent permitted by law, any objection or
immunities to jurisdiction which they may now or hereafter have (including
sovereign immunity, immunity to pre-judgment attachment, post-judgment
attachment and execution) to the laying of venue of any suit, action or
proceeding arising out of
18
or relating to this Agreement or the transactions contemplated hereby, or any
judgment entered by any court in respect hereof brought in the State of New
York, and further irrevocably waive any claim that any suit, action or
proceeding in the Borough of Manhattan, New York has been brought in an
inconvenient forum.
Section 7.7 Remedies Cumulative; No Third Party Beneficiaries. The
rights and remedies of the parties to this Agreement are cumulative and not
alternative. Neither any failure nor any delay by either party in exercising any
right, power or privilege under this Agreement will operate as a waiver of such
right, power or privilege, and no single or partial exercise of any such night,
power or privilege will preclude any other or further exercise of such right,
power or privilege or the exercise of any other right, power or privilege.
Nothing in this Agreement shall convey any rights upon any person or entity
which is not a party to this Agreement.
Section 7.8 Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof. This Agreement supersedes all prior agreements and
understandings, written or oral, between the parties with respect to such
subject matter.
Section 7.9 Severability. If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any provision
of this Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable.
Section 7.10 Amendment. This Agreement may not be amended except by a
written instrument signed by each party hereto.
Section 7.11 Waiver. At any time either party hereto may (a) extend the
time for the performance of any of the obligations or other acts of the other
party hereto or (b) waive compliance with any of the agreements of the other
party or any conditions to its own obligations, in each case, only to the extent
such obligations, agreements and conditions are intended for its benefit;
provided, however, that any such extension or waiver is set forth in a writing
executed by such party.
Section 7.12 Binding Effect; No Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns. This Agreement and either party's rights
hereunder may not be assigned without the prior written consent of the other
party hereto, except that Bidder may assign in whole or in part, the right to
purchase the Shares to one or more wholly-owned Subsidiaries, provided that no
such assignment shall relieve Bidder of its obligations pursuant to this
Agreement.
Section 7.13 Expenses. Whether or not the purchase and sale of the
Shares is consummated, each party shall pay all costs and expenses that it
incurs with respect to the negotiation, execution, delivery and performance of
the Agreement and consummation of the transactions contemplated hereby.
19
Section 7.14 Counterparts; Headings. This Agreement may be executed in
two counterparts, each of which shall be an original, but which together shall
constitute one and the same instrument. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
Section 7.15 Notices. All notices hereunder shall be given in writing
and delivered personally or sent by reputable rapid courier (e.g., Federal
Express, DHL or Airborne), by electronic mail (confirmed by facsimile), by
facsimile, or by registered or certified mail (return receipt requested) to the
parties at the following addresses (or at such other addresses as shall be
specified by like notice).
If to the Principal Shareholders, to:
Comercial e Inversiones Portfolio Limitada
Xxxxxxx Xxxxxxx Xxxxxxxxxx X(xxxxxx) 0000, piso 00,
Xxxxxx xx Xxx Xxxxxx
Xxxxxxxx, Xxxxx
Attn: Xxxxx Xxxxxxxxx Xxxxx xx Xxxxxx
Phone: 000-000-000-0000
Fax: 000-000-000-0000
With a copy to:
Xxxxx y Cia. Ltda
Xxxxxxxxxx 000, 00xx Xxxxx
Xxxxxxxx, Xxxxx
Attn: Xxxx Xxxxxxx Xxxxx, Esq.
Phone: 000-000-000-0000
Fax: 000-000-000-0000
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
Phone: 000-000-0000
Fax: 000-000-0000
If to Bidder, to:
IVAX Corporation
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Attn: Xxxx Xxxxxxxxxx, President
Phone: 000-000-0000
Fax: 000-000-0000
20
With a copy to:
IVAX Corporation
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Attn: General Counsel
Phone: 000-000-0000
Fax: 000-000-0000
Akerman, Senterfitt & Xxxxxx
SunTrust International Center, 00xx Xxxxx
Xxx X.X. Xxxxx Xxxxxx
Xxxxx, XX 00000-0000
Attn: Xxxx X. XxxXxxxxxxx, Esq.
Phone: 000-000-0000
Fax: 000-000-0000
Claro y Cia.
Apoquindo 3721 - 13th Floor
X.X. Xxx 0000
Xxxxxx Xxxx 0000000
Santiago, Chile
Attn: Xxxxxx xx Xxxxxxxx, Esq.
Phone: 000-000-000-0000
Fax: 000-000-000-0000
Any notice given by mail shall be effective seven days after posting,
and any notice given by other means shall be effective when received.
Section 7.16 Specific Performance. Without limiting the rights of each
party hereto to pursue other legal and equitable rights available to such party
for any other party's failure to perform its obligations under this Agreement,
the parties hereto acknowledge and agree that the remedy at law for any failure
to perform their obligations hereunder would be inadequate and that each of them
shall be entitled to specific performance, injunctive relief or other equitable
remedies in the event of any such failure. To the extent any party may be
entitled to the benefit of any provision of law requiring any party in any suit,
action or proceeding arising out of or in connection with this Agreement or any
of the transactions contemplated hereby to post security for litigation costs or
otherwise post a performance bond or guaranty or to take any similar action,
each party hereby irrevocably waives such benefit in each case to the fullest
extent now or hereafter permitted under the laws of any such other jurisdiction.
21
IN WITNESS WHEREOF, the parties have executed or caused this Agreement
to be executed as of the date first written above.
IVAX CORPORATION
By:
--------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice Chairman and President
COMERCIAL E INVERSIONES PORTFOLIO LIMITADA
By:
--------------------------------------
Name: Xxxxx Xxxxxxxxx Xxxxx xx Xxxxxx
Title:
INVERSIONES PORTFOLIO S.A.
By:
--------------------------------------
Name: Xxxxx Xxxxxxxxx Xxxxx xx Xxxxxx
Title:
22
EXHIBIT A TO THE AGREEMENT TO TENDER
CONDITIONS OF THE BIDDER'S OFFER
1. The amendments to the Company's Bylaws shall have been approved and
shall have become legalized and effective under Chilean law.
2. There shall not have been pending any action, proceeding, or claim by
any person, domestic or foreign, which claim has a reasonable
likelihood of success, or by any government, governmental authority or
other regulatory or administrative agency or commission, domestic,
foreign or supranational, before any court, governmental, regulatory or
administrative agency or commission, authority or tribunal, domestic or
foreign or any statute, rule, regulation, order, judgment, decree or
injunction enacted, promulgated, entered, enforced or deemed or become
applicable to the Offer, or, any other action taken, which (i) impedes
the completion of the Offer, (ii) the acquisition of any significant
portion of or all of the Shares, (iii) materially modifies the terms
and conditions of the Offer, (including without limitation making it
more expensive or onerous) (iv) restricts the completion of the Offer,
or (v) makes the Offer illegal.
3. No change, event or development shall have occurred which has had or
would reasonably be expected to cause a material adverse effect on the
condition (financial or otherwise), business, properties, assets,
liabilities or results of operation of the Company and its
Subsidiaries, taken as a whole.
4. There shall not have been a breach of Section 2.7 of the Agreement and,
as a result of the information provided pursuant to Section 2.7 the
Bidder, shall not have become aware of any facts or circumstances that
indicate (i) that the Company's SEC Filings contained, at the time of
their respective filing, untrue statements of material facts or omitted
to state material facts necessary to make the statements made therein,
in light of the circumstances in which they were made, not misleading
and such untrue statements or omissions would reasonably be expected to
cause a material adverse effect on the condition (financial or
otherwise), business, properties, assets, liabilities or results of
operation of the Company and its Subsidiaries, taken as a whole, (ii)
that any event or development shall have occurred which would
reasonably be expected to cause a material adverse effect on the
condition (financial or otherwise), business, properties, assets,
liabilities or results of operation of the Company and its
Subsidiaries, taken as a whole from that reflected in the Company's SEC
Filings or (iii) that the Company shall have changed its business or
accounting practices from those in place on December 31, 1999 such that
the Company's publicly reported financial statements as of and for the
twelve month period ended December 31, 2000 or as of and for the three
month period ended March 31, 2001 were materially misleading.
5. There shall not have occurred:
a. any general suspension of trading in, or limitation on prices
for, securities on any United States national securities
exchange or Chilean securities exchange, other than the
imposition by the New York Stock Exchange, The NASDAQ Stock
Market, the Xxxxxxxx Stock Exchange, the Valparaiso Stock
Exchange, the Electronic Stock Exchange of Chile, or the
American Stock Exchange of daily suspensions per their
respective rules or policies;
b. a declaration of a banking moratorium or any suspension of
payment in respect of banks in the United States, Argentina or
Chile, whether mandatory or not mandatory;
c. commencement of a war, armed hostilities, military coup
d'etat, collapse of the government or other national or
international crisis involving Argentina, Chile or the United
States or acts of terrorism which materially disrupt the
normal operations of the Company or either Argentina or Chile;
d. a material adverse change or development involving a change in
exchange controls, currency exchange rates or any suspension
of, or limitation on, the markets for currency in Argentina,
Chile or the United States;
e. any devaluation of the Argentine peso in excess of 15% as
published by the Central Bank of Argentina or as reported on
any generally quoted market;
f. any devaluation of the Chilean peso in excess of 10% as
published by the Central Bank of Chile or as reported on any
generally quoted market;
g. any material change in taxation in Chile, including
withholding affecting the Shares; or
h. any change or development in foreign investment regulation in
Chile, the effect of which is to make it, in the Bidder's
reasonable judgment, impracticable to proceed with the Offer
on the terms and in the manner contemplated.
6. The Company or any of its Subsidiaries shall not have, at any time
after the commencement of the Offer:
a. issued, distributed, pledged, sold or authorized, proposed or
announced the issuance of or sale, distribution or pledge to
any person, other than to the Company or a subsidiary of:
i. any shares of its capital stock;
ii. the capital stock of any of its Subsidiaries;
iii. securities convertible into any such capital stock;
iv. any rights, warrants or options to acquire any such
securities or any other securities of the Company or
its Subsidiaries; or
v. any other securities in respect of, in lieu of, or in
substitution for, the Company shares outstanding on
March 31, 2001.
b. declared, paid or proposed to declare or pay any dividend or
distribution on the Shares after the date of commencement of
the Offer;
c. issued, authorized, recommended or proposed the issuance or
payment of any other distribution in respect of the Shares,
whether payable in cash, securities or other property;
d. altered any term of any outstanding security;
e. issued, sold or authorized or announced or proposed the
issuance of or sale to any person (other than pursuant to
existing credit arrangements) of:
i. any debt securities;
ii. any securities convertible into or exchangeable for
debt securities; or
iii. any rights, warrants or options entitling the holder
thereof to purchase or otherwise acquire any debt
securities.
f. split, combined or otherwise changed, or authorized or
proposed the split, combination or other change of the Shares
or the Company's or its Subsidiaries' capitalization;
g. authorized, recommended, proposed or entered into or publicly
announced its intent to enter into any merger, consolidation,
liquidation, dissolution, business combination, joint venture,
strategic alliance or similar arrangement involving any
material assets, acquisition or disposition of a material
amount of assets or securities, any material change in its
capitalization, or any agreement contemplating any of the
foregoing or any comparable event not in the ordinary course
of business;
h. amended or proposed or authorized any amendments to the
Company's Bylaws or any other organizational documents, other
than the Bylaw Amendments; or
i. agreed in writing or otherwise to take any of the foregoing
actions.
7. At least 67% of the Shares, including any Shares represented by ADS and
the PS Shares, shall have been tendered as of the time the votes are
cast at the Shareholders Meeting.
8. Bidder shall have been granted the necessary foreign investment
approvals to be granted under DL 600 of Chile.
9. The Company shall not have:
a. entered into or invested in a line of business different from
those in which the Company or its Subsidiaries is engaged as
of the commencement of the Offer in an amount exceeding in the
aggregate 5% of the Company's consolidated assets at the time
of the action;
b. commenced operations in a country in which the Company or its
Subsidiaries is not operating on date of the commencement of
the Offer with a direct or indirect investment in cash or
other assets exceeding $10 million in the aggregate;
c. disposed of, or created liens on, other than pursuant to
existing credit facilities, assets of the Company or its
Subsidiaries with a book value of more than $20 million in the
aggregate;
d. acquired assets, excluding raw materials or inventory
purchased in the ordinary course, for consideration exceeding
$20 million in the aggregate;
e. increased the consolidated financial debt of the Company more
than $20 million in the aggregate, including indebtedness for
working capital;
f. voluntarily or involuntarily withdrew from the market any of
the Company's products that generated in excess of 5% of the
net revenues of the Company during the fiscal year ended
December 31, 2000;
g. voluntarily or involuntarily terminated or modified, in any
material adverse manner, an agreement or agreements that
generated revenues of more than $20 million in the aggregate
in the 12 months ended on March 31, 2001;
h. voluntarily or involuntarily terminated a relationship with a
supplier of any of the Company's products that generated in
excess of 5% of the net revenues of the Company during its
last fiscal year, which supplier is not promptly replaced;
i. except in the ordinary course consistent with past practice
materially increased the salary, paid any bonus or severance
of any employee or entered into severance, change of control
or long term employment agreements with any employee or any
employment agreements with any newly hired senior manager;
j. entered into an agreement with an affiliated party which is
not in the ordinary course of a business consistent with past
practice and is not terminable within 30 days without further
liability;
k. ceased to maintain insurance coverage substantially equivalent
to the coverage in place as of the commencement of the Offer;
l. taken any action to cause the Company to have a negative
working capital on the business day prior to the Shareholders
Meeting or on the business day prior to the Expiration Date;
m. ceased operation in Chile, Peru or Argentina;
n. made a material change in the Company's accounting practices
(other than as required by U.S. or Chilean GAAP) or
regulatory compliance procedures;
o. waived, released, assigned, settled or compromised any claims
or litigation involving amounts or other rights or assets in
excess over $5 million; or
p. agreed to do any of the foregoing.
10. Subsequent to the Shareholders Meeting, any event or incident has
occurred, or a claim made, which has a reasonable likelihood of
success, that (i) would reasonably be expected to reduce the Company's
revenues or net income by more than 10% in the 12 month period ending
on March 31, 2002 as compared to the 12 month period ending on Xxxxx
00, 0000, (xx) increased, or would reasonably be expected to increase,
the liabilities, contingent or otherwise, by $20 million in the
aggregate, or (iii) destroyed or otherwise impaired, or would
reasonably be expected to impair, tangible assets (other than as
covered by insurance) or intangible assets by 15%.
11. The Company shall not have directly or indirectly paid, expended or
accrued investment banking, legal, accounting, professional, or other
advisory fees and costs of any nature in excess of 1.1% of the
aggregate Offer Price (assuming purchase of all the Shares) reasonably
related to the Offer, or this Agreement or the transactions related
thereto, either on behalf of itself or any of the Principal
Shareholders or any Affiliate thereof, provided, however, that this
paragraph 11 shall be inapplicable in the case of any Competing Offer.
12. Any regulatory consents or approvals required to consummate the Offer
under Argentine antitrust law shall have been obtained.
EXHIBIT B TO THE AGREEMENT TO TENDER
1. The Company or any of its Subsidiaries shall not have, at any time
after the execution of the Agreement:
a. issued, distributed, pledged, sold or authorized, proposed or
announced the issuance of or sale, distribution or pledge to
any person, other than to the Company or a subsidiary, of:
i. any shares of its capital stock;
ii. the capital stock of any of its Subsidiaries;
iii. securities convertible into any such capital stock;
iv. any rights, warrants or options to acquire any such
securities or any other securities of the Company or
its Subsidiaries; or
v. any other securities in respect of, in lieu of, or in
substitution for, the Company shares outstanding on
March 31, 2001;
b. declared, paid or proposed to declare or pay any dividend or
distribution on the Shares after the date of commencement of
the Offer;
c. issued, authorized, recommended or proposed the issuance or
payment of any other distribution in respect of the Shares,
whether payable in cash, securities or other property;
d. altered or proposed to alter any term of any outstanding
security;
e. issued, sold or authorized or announced or proposed the
issuance of or sale to any person of:
i. any debt securities;
ii. any securities convertible into or exchangeable for
debt securities; or
iii. any rights, warrants or options entitling the holder
thereof to purchase or otherwise acquire any debt
securities.
f. split, combined or otherwise changed, or authorized or
proposed the split, combination or other change of the Shares
or the Company's or its Subsidiaries' capitalization;
g. authorized, recommended, proposed or entered into or publicly
announced its intent to enter into any merger, consolidation,
liquidation, dissolution, business combination, joint venture,
strategic alliance or similar arrangement, acquisition or
disposition of a material amount of assets or securities, any
material change in its capitalization, or any agreement
contemplating any of the foregoing or any comparable event not
in the ordinary course of business, or taken any action to
implement any such transaction previously authorized,
recommended, proposed or publicly announced;
h. amended or proposed or authorized any amendments to the
Company's Bylaws or any other organizational documents, other
than the Bylaw Amendments; or
i. agreed in writing or otherwise to take any of the foregoing
actions.
2. The Company shall not have since the execution of the Agreement:
a. entered into or invested in a line of business different from
those in which the Company or its Subsidiaries is engaged as
of the commencement of the Offer in an amount exceeding in the
aggregate 5% of the Company's consolidated assets at the time
of the action;
b. commenced operations in a country in which the Company or its
Subsidiaries is not operating on date of the commencement of
the Offer with a direct or indirect investment in cash or
other assets exceeding $10 million in the aggregate;
c. disposed of, or created liens on, other than pursuant to
existing credit facilities, assets of the Company or its
Subsidiaries with a book value of more than $20 million in the
aggregate;
d. acquired assets, excluding raw materials or inventory
purchased in the ordinary course, for consideration exceeding
$20 million in the aggregate;
e. increased the consolidated financial debt of the Company more
than $20 million in the aggregate, including indebtedness for
working capital;
f. voluntarily or involuntarily withdrew from the market any of
the Company's products that generated in excess of 5% of the
net revenues of the Company during the fiscal year ended
December 31, 2000;
g. voluntarily or involuntarily terminated or modified, in any
material adverse manner, an agreement or agreements that
generated revenues of more than $20 million in the aggregate
in the 12 months ended on March 31, 2001;
h. voluntarily or involuntarily terminated a relationship with a
supplier of any of the Company's products that generated in
excess of 5% of the net revenues of the Company during the
fiscal year ended December 31, 2000, which supplier is not
promptly replaced;
i. except in the ordinary course consistent with past practice
materially increased the salary, paid any bonus or severance
of any employee or entered into severance, change of control
or long term employment agreements with any employee or any
employment agreement with any newly hired senior manager;
j. entered into an agreement with an affiliated party which is
not in the ordinary course of business consistent with past
practice and is not terminable within 30 days without further
liability;
k. ceased to maintain insurance coverage substantially equivalent
to the coverage in place as of the commencement of the Offer;
l. taken any action to cause the Company to have a negative
working capital on the business day prior to the Shareholders
Meeting or on the business day prior to the Expiration Date;
m. ceased operation in Chile, Peru or Argentina;
n. made a material change in the Company's accounting practices
(other than as required by U.S. or Chilean GAAP) or regulatory
compliance procedures;
o. waived, released, assigned, settled or compromised any claims
or litigation involving amounts or other rights or assets in
excess over $5 million; or
p. agreed to do any of the foregoing.
