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AGREEMENT AND PLAN OF MERGER
Among
XXXXXXX'X, INC.
WMI ACQUISITION, INC.
and
WOODBANK XXXXX, INC.
Dated as of May 16, 1998
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TABLE OF CONTENTS
ARTICLE I
THE MERGER ........................... 2
SECTION 1.1 The Merger ................................................. 2
SECTION 1.2 Closing; Effective Time .................................... 2
SECTION 1.3 Effects of the Merger ...................................... 2
SECTION 1.4 Certificate of Incorporation; By-Laws ...................... 2
SECTION 1.5 Directors and Officers ..................................... 3
SECTION 1.6 Conversion of Securities ................................... 3
SECTION 1.7 Dissenting Shares and Section 262 Shares ................... 4
SECTION 1.8 Surrender of Shares; Stock Transfer Books .................. 5
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY ................... 6
SECTION 2.1 Corporate Organization; Subsidiaries and Employees ......... 6
SECTION 2.2 Certificate of Incorporation and By-Laws ................... 6
SECTION 2.3 Capitalization ............................................. 7
SECTION 2.4 Authority Relative to This Agreement ....................... 7
SECTION 2.5 No Conflict; Required Filings and Consents ................. 7
SECTION 2.6 Compliance ................................................. 8
SECTION 2.7 Limited Operations; Financial Statements; No Undisclosed
Liabilities .............................................. 8
SECTION 2.8 Absence of Litigation ...................................... 9
SECTION 2.9 Tax Matters ................................................ 9
SECTION 2.10 Investment Company ......................................... 10
SECTION 2.11 Brokers .................................................... 10
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
PARENT AND PURCHASER ................................. 10
SECTION 3.1 Corporate Organization ..................................... 10
SECTION 3.2 Authority Relative to This Agreement ....................... 10
SECTION 3.3 No Conflict; Required Filings and Consents ................. 10
SECTION 3.4 Brokers .................................................... 11
SECTION 3.5 Funds ...................................................... 11
ARTICLE IV
CONDUCT PENDING THE CLOSING; ADDITIONAL AGREEMENTS .................... 11
SECTION 4.1 Conduct of Business of the Company Pending the Merger ...... 11
SECTION 4.2 Stockholders Meeting ....................................... 13
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SECTION 4.3 No Solicitation; Affirmation of Covenants in Stockholders'
Agreement .................................................. 13
SECTION 4.4 Access to Information; Confidentiality ..................... 13
SECTION 4.5 Notification of Certain Matters ............................ 14
SECTION 4.6 Further Action; Reasonable Best Efforts .................... 14
SECTION 4.7 Public Announcements ....................................... 14
ARTICLE V
CONDITIONS OF MERGER .................................. 15
SECTION 5.1 Conditions to Obligation of Each Party to Effect the Merger 15
SECTION 5.2 Additional Conditions to Obligation of Parent and Purchaser
to Effect the Merger ....................................... 15
SECTION 5.3 Additional Conditions to Obligation of the Company to Effect
the Merger ................................................. 16
ARTICLE VI
TERMINATION, AMENDMENT AND WAIVER .......................... 16
SECTION 6.1 Termination ................................................ 16
SECTION 6.2 Effect of Termination ...................................... 17
SECTION 6.3 Amendment .................................................. 17
SECTION 6.4 Waiver ..................................................... 17
ARTICLE VII
GENERAL PROVISIONS .................................. 17
SECTION 7.1 Survival of Representations, Warranties and Agreements ..... 17
SECTION 7.2 Notices .................................................... 17
SECTION 7.3 Certain Definitions ........................................ 19
SECTION 7.4 Severability ............................................... 19
SECTION 7.5 Entire Agreement; Assignment ............................... 19
SECTION 7.6 Parties in Interest ........................................ 19
SECTION 7.7 Fees and Expenses .......................................... 20
SECTION 7.8 Governing Law .............................................. 20
SECTION 7.9 Headings ................................................... 20
SECTION 7.10 Counterparts ............................................... 20
Schedule 1.6(d) - Schedule of Cash Equivalents
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AGREEMENT AND PLAN OF MERGER, dated as of May 16, 1998 (this
"Agreement"), among XXXXXXX'X, INC., a Delaware corporation ("Parent"), WMI
ACQUISITION, INC., a Delaware corporation and a wholly owned subsidiary of
Parent ("Purchaser"), and WOODBANK XXXXX, INC., a Delaware corporation (the
"Company").
W I T N E S S E T H :
WHEREAS, the Board of Directors of the Company has determined
that it is in the best interests of the Company and the stockholders of the
Company to enter into this Agreement with Parent and Purchaser, providing for
the merger (the "Merger") of Purchaser with the Company in accordance with the
General Corporation Law of the State of Delaware ("DGCL"), upon the terms and
subject to the conditions set forth herein;
WHEREAS, the Board of Directors of Parent and Purchaser have
each approved the Merger of Purchaser with the Company in accordance with the
DGCL upon the terms and subject to the conditions set forth herein;
WHEREAS, concurrently with the execution and delivery of this
Agreement, Parent, MSC Acquisition, Inc., a Delaware corporation and a wholly
owned subsidiary of Parent ("MSC MergerSub"), and Mercantile Stores Company,
Inc., a Delaware corporation ("MSC"), have entered into a merger agreement,
dated as of the date hereof (the "MSC Merger Agreement"), pursuant to which MSC
MergerSub has agreed to make a tender offer (the "Offer") for all outstanding
shares of common stock, $.14 2/3 par value per share (the "MSC Common Stock"),
of MSC, at $80.00 per share, or any higher price that may be paid pursuant to
the Offer (the "Offer Price"), net to the seller in cash, subject to the offer
condition contained therein (the "Offer Conditions"), to be followed by a merger
(the "MSC Merger") of MSC MergerSub with and into MSC, with MSC as the surviving
corporation;
WHEREAS, concurrently with the execution and delivery of this
Agreement, Parent, MMC Acquisition, Inc., a Delaware corporation and a wholly
owned subsidiary of Parent ("MMC MergerSub"), and Minot Mercantile Corporation,
a Delaware corporation ("MMC"), have entered into a merger agreement, dated as
of the date hereof (the "MMC Merger Agreement"), pursuant to which MMC MergerSub
will be merged with and into MMC (the "MMC Merger"), and MMC shall be the
surviving corporation;
WHEREAS, concurrently with the execution and delivery of this
Agreement, holders of not less than 70% of all of the holders (the "WMI
Stockholders") of the Company's common stock, par value $1.00 per share
(referred to herein as the "Shares" or "Company Common Stock"), have executed
and delivered an agreement (the "Proxy and Indemnification Agreement"), pursuant
to which (i) the WMI Stockholders have granted Parent an irrevocable proxy to
vote their Shares in favor of the adoption of this Agreement and the Merger at
the Stockholders Meeting (as defined herein), and (ii) the WMI Stockholders have
agreed to indemnify Parent and Purchaser in respect of any and all claims
resulting from the Merger, in each case, subject to the terms and conditions
contained therein; and
WHEREAS, concurrently with the execution and delivery of this
Agreement, Parent and each of the Company, MMC and certain affiliated
stockholders of MSC (collectively,
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the "Related Sellers") have entered into a stockholders' agreement, each dated
as of the date hereof (each, a "Stockholders' Agreement"), pursuant to which,
among other things, each Related Seller has granted an option in favor of Parent
with respect to the shares of Company Common Stock respectively held by such
person, subject to the terms and conditions contained therein;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained, and intending to be legally
bound hereby, Parent, Purchaser and the Company hereby agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1 The Merger. Upon the terms and subject to the
conditions of this Agreement and in accordance with the DGCL, at the Effective
Time (as defined in Section 1.2), Purchaser shall be merged with and into the
Company. As a result of the Merger, the separate corporate existence of
Purchaser shall cease and the Company shall continue as the surviving
corporation of the Merger (the "Surviving Corporation"). At Parent's election,
any direct or indirect subsidiary of Parent other than Purchaser may be merged
with and into the Company instead of the Purchaser. In the event of such an
election, the parties agree to execute an appropriate amendment to this
Agreement in order to reflect such election.
SECTION 1.2 Closing; Effective Time. Subject to the provisions
of Article V, the closing of the Merger (the "Closing") shall take place in New
York City at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, as soon as practicable but in no event later than the first
business day after the satisfaction or waiver of the conditions set forth in
Article V, or at such other place or at such other date as Parent and the
Company may mutually agree. The date on which the Closing actually occurs is
hereinafter referred to as the "Closing Date". At the Closing, the parties
hereto shall cause the Merger to be consummated by filing this Agreement or a
certificate of merger or a certificate of ownership and merger (the "Certificate
of Merger") with the Secretary of State of the State of Delaware, in such form
as required by and executed in accordance with the relevant provisions of the
DGCL (the date and time of the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware (or such later time as is specified
in the Certificate of Merger) being the "Effective Time").
SECTION 1.3 Effects of the Merger. The Merger shall have the
effects set forth in the applicable provisions of the DGCL. Without limiting the
generality of the foregoing and subject thereto, at the Effective Time all the
property, rights, privileges, immunities, powers and franchises of the Company
and Purchaser shall vest in the Surviving Corporation, and all debts,
liabilities and duties of the Company and Purchaser shall become the debts,
liabilities and duties of the Surviving Corporation.
SECTION 1.4 Certificate of Incorporation; By-Laws. (a) At the
Effective Time and without any further action on the part of the Company and
Purchaser, the Certificate of Incorporation of the Company, as in effect
immediately prior to the Effective Time, shall be
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amended and restated so as to read in its entirety in the form set forth in
Exhibit A hereto and, as so amended, until thereafter and further amended as
provided therein and under the DGCL, it shall be the Certificate of
Incorporation of the Surviving Corporation following the Merger.
(b) At the Effective Time and without any further action on
the part of the Company and Purchaser, the By-Laws of Purchaser, as in effect
immediately prior to the Effective Time, shall be the By-Laws of the Surviving
Corporation and thereafter may be amended or repealed in accordance with their
terms or the Certificate of Incorporation of the Purchaser and as provided by
law.
SECTION 1.5 Directors and Officers. The directors and officers
of Purchaser immediately prior to the Effective Time shall be the initial
directors and officers of the Surviving Corporation, each to hold office in
accordance with the Certificate of Incorporation and By-Laws of the Surviving
Corporation.
SECTION 1.6 Conversion of Securities. At the Effective Time,
by virtue of the Merger and without any action on the part of Purchaser, the
Company or the holders of any of the following securities:
(a) Each share of the Company Common Stock, issued and
outstanding immediately prior to the Effective Time (other than any
Shares to be cancelled pursuant to Section 1.6(b) and any Dissenting
Shares (as defined in Section 1.7(a)) shall be cancelled, extinguished
and converted into the right to receive an amount (the "Merger
Consideration") calculated as follows: (i) the Aggregate Value of
Company Assets (as defined in Section 1.6(d) below) immediately prior
to the Effective Time divided by (ii) the aggregate number of shares of
Company Common Stock issued and outstanding immediately prior to the
Effective Time. The Merger Consideration shall be payable to the holder
of each Share, without interest, upon surrender of the certificate
formerly representing such Share in the manner provided in Section 1.8,
less any required withholding taxes.
(b) Each share of Company Common Stock held in the treasury of
the Company and each Share owned by the Company, Parent, Purchaser or
any other direct or indirect subsidiary of such persons, in each case
immediately prior to the Effective Time, shall be cancelled and retired
without any conversion thereof and no payment or distribution shall be
made with respect thereto.
(c) Each share of common stock of Purchaser issued and
outstanding immediately prior to the Effective Time shall be converted
into and become one validly issued, fully paid and nonassessable share
of identical common stock of the Surviving Corporation.
(d) "Aggregate Value of Company Assets" means an amount equal
to (i) the product of (A) the aggregate number of outstanding shares of
MSC Common Stock directly owned by MMC immediately prior to the
"Effective Time" (under and as defined in the MMC Merger Agreement),
(B) the Offer Price and (C) a fraction, the numerator
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of which is the aggregate number of outstanding shares of MMC common
stock directly owned by the Company and the denominator of which is all
of the outstanding shares of MMC common stock, in each case,
immediately prior to the "Effective Time" (under and as defined in the
MMC Merger Agreement), plus (ii) the product of (A) the aggregate
number of outstanding shares of MSC Common Stock directly owned by the
Company immediately prior to the Effective Time and (B) the Offer
Price, plus (iii) the aggregate amount of Net Assets (as defined
below). "Net Assets" means the amount by which the Company's assets
exceeds its liabilities, each of which will be calculated from the
Closing Balance Sheet (as defined below). Attached hereto as Schedule
1.6(d) is a list of all of assets and liabilities of the Company as of
the date hereof.
(e) "Closing Balance Sheet" means a balance sheet of the
Company reflecting its assets and liabilities as of Closing, as
prepared by the Company and delivered to Parent, for its review and
consent, no later than 15 days prior to Closing. Parent shall, within
five days of its receipt of the Closing Balance Sheet, complete its
review thereof and identify to the Company any items with which Parent
does not agree. Parent and the Company will promptly attempt to resolve
in good faith any disagreement as to items contained on the Closing
Balance Sheet. The Company will, as promptly as practicable after the
date hereof, undertake to liquidate and/or sell all of its investments
and other assets (other than its shares of MSC Common Stock and MMC
common stock) so that the Company's assets, as reflected on the Closing
Balance Sheet, will consist solely of cash and short-term, highly
liquid cash equivalents (with maturities of seven days or less). The
Closing Balance Sheet will set forth, in reasonable detail and
specificity (with notes where appropriate), all of the Company's assets
and liabilities as of the Closing, including without limitation all tax
liabilities incurred on account of any liquidations or sales of the
Company's investments or other assets and all liabilities, fees and
expenses owing to the Company's advisors. The amount of cash and cash
equivalents that are held back to cover the Company's liabilities, as
identified on the Closing Balance Sheet, is referred to as the
"Holdback Amount". The Holdback Amount will be applied by Parent and
Purchaser to pay, upon presentment of proper invoices, to any
post-Closing fees, expenses, liabilities and other obligations of the
Company.
(f) Promptly following the date on which all of the Company's
liabilities that were identified on the Closing Balance Sheet, together
with all outstanding "Losses" under and as defined in the Proxy and
Indemnification Agreement, have been paid in full, any remaining
Holdback Amount shall be released to the Paying Agent (as hereinafter
defined) for distribution to the former holders of the Shares.
SECTION 1.7 Dissenting Shares and Section 262 Shares. (a)
Notwithstanding anything in this Agreement to the contrary, shares of Company
Common Stock that are issued and outstanding immediately prior to the Effective
Time and which are held by stockholders who have not voted in favor of or
consented to the Merger and shall have delivered a written demand for appraisal
of such shares of Company Common Stock in the time and manner provided in
Section 262 of the DGCL and shall not have failed to perfect or shall not have
effectively withdrawn or lost their rights to appraisal and payment under the
DGCL (the "Dissenting Shares") shall not be converted into the right to receive
the Merger Consideration, but shall be
5
entitled to receive the consideration as shall be determined pursuant to Section
262 of the DGCL; provided, however, that if such holder shall have failed to
perfect or shall have effectively withdrawn or lost his, her or its right to
appraisal and payment under the DGCL, such holder's shares of Company Common
Stock shall thereupon be deemed to have been converted, at the Effective Time,
into the right to receive the Merger Consideration set forth in Section 1.6(a)
of this Agreement, without any interest thereon.
(b) The Company shall give Parent (i) prompt notice of any
demands for appraisal pursuant to Section 262 received by the Company,
withdrawals of such demands, and any other instruments served pursuant to the
DGCL and received by the Company and (ii) the opportunity to direct all
negotiations and proceedings with respect to demands for appraisal under the
DGCL. The Company shall not, except with the prior written consent of Parent or
as otherwise required by applicable law, make any payment with respect to any
such demands for appraisal or offer to settle or settle any such demands.
Pursuant to the Proxy and Indemnification Agreement, the WMI Stockholders shall
indemnify, defend and hold harmless Parent and Purchaser against any and all
liabilities, damages, expenses, losses or other claims that are paid in respect
of any Dissenting Shares (including reasonable attorneys' fees and expenses) in
excess of the aggregate Merger Consideration that would otherwise have been
payable in respect of such Dissenting Shares pursuant to Section 1.6(a).
SECTION 1.8 Surrender of Shares; Stock Transfer Books. (a)
Prior to the Effective Time, Purchaser shall designate a bank or trust company
to act as agent for the holders of Shares in connection with the Merger (the
"Paying Agent") to receive the Merger Consideration to which holders of Shares
shall become entitled pursuant to Section 1.6(a). When and as needed, Parent or
Purchaser will make available to the Paying Agent sufficient funds to make all
payments pursuant to Section 1.8(b). Such funds shall be invested by the Paying
Agent as directed by Purchaser or, after the Effective Time, the Surviving
Corporation, provided that such investments shall be in obligations of or
guaranteed by the United States of America, in commercial paper obligations
rated A-1 or P-1 or better by Xxxxx'x Investors Service, Inc. or Standard &
Poor's Corporation, respectively, or in certificates of deposit, bank repurchase
agreements or banker's acceptances of commercial banks with capital exceeding
$500 million. Any net profit resulting from, or interest or income produced by,
such investments will be payable to the Surviving Corporation or Parent, as
Parent directs.
(b) Promptly after the Effective Time, the Surviving
Corporation shall cause to be mailed to each record holder, as of the Effective
Time, of an outstanding certificate or certificates which immediately prior to
the Effective Time represented Shares (the "Certificates"), a form of 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) and instructions for use in effecting the
surrender of the Certificates for payment of the Merger Consideration therefor.
Upon surrender to the Paying Agent of a Certificate, together with such letter
of transmittal, duly completed and validly executed in accordance with the
instructions thereto, and such other documents as may be required pursuant to
such instructions, the holder of such Certificate shall be entitled to receive
in exchange therefor the Merger Consideration for each Share formerly
represented by such Certificate, and such Certificate shall then be cancelled.
No interest shall be paid or accrued for the benefit of holders of the
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Certificates on the Merger Consideration payable upon the surrender of the
Certificates. If payment of the Merger Consideration is to be made to a person
other than the person in whose name the surrendered Certificate is registered,
it shall be a condition of payment that the Certificate so surrendered shall be
properly endorsed or shall be otherwise in proper form for transfer and that the
person requesting such payment shall have paid any transfer and other taxes
required by reason of the payment of the Merger Consideration to a person other
than the registered holder of the Certificate surrendered or shall have
established to the satisfaction of the Surviving Corporation that such tax
either has been paid or is not applicable.
(c) At any time following six months after the Effective Time,
the Surviving Corporation shall be entitled to require the Paying Agent to
deliver to it any funds (including any interest received with respect thereto)
which had been made available to the Paying Agent and which have not been
disbursed to holders of Certificates, and thereafter such holders shall be
entitled to look to the Surviving Corporation (subject to abandoned property,
escheat or other similar laws) only as general creditors thereof with respect to
the Merger Consideration payable upon due surrender of their Certificates.
Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying
Agent shall be liable to any holder of a Certificate for Merger Consideration
delivered to a public official pursuant to any applicable abandoned property,
escheat or similar law.
(d) At the Effective Time, the stock transfer books of the
Company shall be closed and thereafter there shall be no further registration of
transfers of shares of Company Common Stock on the records of the Company. From
and after the Effective Time, the holders of Certificates evidencing ownership
of Shares outstanding immediately prior to the Effective Time shall cease to
have any rights with respect to such Shares except as otherwise provided for
herein or by applicable law.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Parent and
Purchaser that:
SECTION 2.1 Corporate Organization; Subsidiaries and
Employees. (a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has the requisite
corporate power and authority and any necessary governmental approvals to own,
lease and operate its properties and to carry on its business as it is now being
conducted. The Company is not qualified or licensed as a foreign corporation to
do business in any jurisdiction. When used in connection with the Company, the
term "Material Adverse Effect" means any change or effect that would be
materially adverse to the assets, liabilities, results of operations, financial
condition or business of the Company.
(b) The Company has no subsidiaries and no employees.
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SECTION 2.2 Certificate of Incorporation and By-Laws. The
Company has heretofore furnished to Parent a complete and correct copy of the
Certificate of Incorporation and the By-Laws of the Company as currently in
effect. Such Certificate of Incorporation and ByLaws are in full force and
effect and no other organizational documents are applicable to or binding upon
the Company. The Company is not in violation of any of the provisions of its
Certificate of Incorporation or By-Laws.
SECTION 2.3 Capitalization. The authorized capital stock of
the Company consists of 188,200 shares of Company Common Stock, of which (a)
188,200 shares of Company Common Stock are issued and outstanding, all of which
are validly issued, fully paid and nonassessable and have been issued free of
preemptive (or similar) rights, and (b) no shares of Company Common Stock are
held in the treasury of the Company. Except as set forth above, there are
outstanding (i) no shares of capital stock or other voting securities of the
Company, (ii) no securities of the Company convertible into or exchangeable for
shares of capital stock or voting securities of the Company, (iii) no options or
other rights to acquire from the Company, and no obligation of the Company to
issue, any capital stock, voting securities or securities convertible into or
exchangeable for capital stock or voting securities of the Company and (iv) no
equity equivalents, interests in the ownership or earnings of the Company or
other similar rights (collectively, "Company Securities"). There are no
outstanding obligations of the Company or any of its subsidiaries to repurchase,
redeem or otherwise acquire any Company Securities. There are no other options,
calls, warrants or other rights, agreements, arrangements or commitments of any
character relating to the issued or unissued capital stock of the Company to
which the Company is a party. There are no outstanding contractual obligations
of the Company to provide funds to or make any investment (in the form of a
loan, capital contribution or otherwise) in any other entity and, except for the
shares of MSC Common Stock, the Company has no other direct or indirect equity
interests in any other person.
SECTION 2.4 Authority Relative to This Agreement. The Company
has all necessary corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action and no other corporate proceedings on the part of the
Company are necessary to authorize this Agreement or to consummate the
transactions so contemplated (other than, with respect to the Merger, the
adoption of this Agreement by the holders of a majority of the outstanding
shares of Company Common Stock and the filing of appropriate merger documents as
required by the DGCL). This Agreement has been duly and validly executed and
delivered by the Company and, assuming the due authorization, execution and
delivery hereof by Parent and Purchaser, constitutes a legal, valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms. As a result of the foregoing actions, the only vote required to authorize
the Merger is the affirmative vote of a majority of the outstanding Shares.
SECTION 2.5 No Conflict; Required Filings and Consents. (a)
The execution, delivery and performance of this Agreement by the Company do not
and will not: (i) conflict with or violate the Certificate of Incorporation or
By-Laws of the Company or the equivalent
8
organizational documents of any of its subsidiaries; (ii) assuming that all
consents, approvals and authorizations contemplated by clauses (i), (ii) and
(iii) of subsection (b) below have been obtained and all filings described in
such clauses have been made, conflict with or violate any law, rule, regulation,
order, judgment or decree applicable to the Company or any of its subsidiaries
or by which its or any of their respective properties are bound or affected; or
(iii) result in any breach or violation of or constitute a default (or an event
which with notice or lapse of time or both could become a default) or result in
the loss of a material benefit under, or give rise to any right of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of the properties or assets of the Company or any of its
subsidiaries pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or its or any of their respective properties
are bound or affected, except, in the case of clauses (ii) and (iii), for any
such conflicts, violations, breaches, defaults or other occurrences which are
not, individually or in the aggregate, reasonably likely to have a Material
Adverse Effect.
(b) The execution, delivery and performance of this Agreement
by the Company and the consummation of the Merger by the Company do not and will
not require any consent, approval, authorization or permit of, action by, filing
with or notification to, any governmental or regulatory authority, except for
(i) applicable requirements, if any, of the Xxxx- Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), state securities, takeover
and "blue sky" laws, (ii) the filing and recordation of appropriate merger or
other documents as required by the DGCL and (iii) such consents, approvals,
authorizations, permits, actions, filings or notifications the failure of which
to make or obtain are not, individually or in the aggregate, reasonably likely
to (x) prevent or materially delay the Company from performing its obligations
under this Agreement or (y) have a Material Adverse Effect.
SECTION 2.6 Compliance. The Company is not in conflict with,
or in default or violation of, (i) any law, rule, regulation, order, judgment or
decree applicable to the Company or by which its properties are bound or
affected, or (ii) any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which the
Company is a party or by which the Company or its properties are bound or
affected, except for any such conflicts, defaults or violations which are not,
individually or in the aggregate, reasonably likely to have a Material Adverse
Effect.
SECTION 2.7 Limited Operations; Financial Statements; No
Undisclosed Liabilities. (a) The Company operates solely as a "personal holding
corporation" within the meaning of Section 542 of the Internal Revenue Code of
1986, as amended (the "Code"). Except for (i) this Agreement and the
transactions contemplated hereby, (ii) activities related to maintaining its
corporate existence and (iii) activities related to the Company's ownership of
the shares of MSC Common Stock and other investments (including, without
limitation, the investment and reinvestment of proceeds received on account of
such investments and distributions to the Company's stockholders), the Company
has not engaged in any business activities of any type or kind whatsoever or
entered into any agreements or arrangements with any person. The legal name of
the Company is as set forth in this Agreement. The Company has no trade names,
fictitious names, assumed names or "doing business as" names.
9
(b) The Company has not incurred, directly or indirectly, any
liabilities, commitments, or obligations of any kind whatsoever, whether or not
accrued and whether or not contingent or absolute, other than liabilities
disclosed in Schedule 2.7(b) of the Company Disclosure Letter.
(c) The Company has delivered to Parent true and correct
copies of the Company's audited balance sheets for the prior three fiscal years
and the related statements of consolidated income and retained earnings, and
statements of consolidated cash flows for each of the last three fiscal years,
including any related notes thereto (collectively, the "Company Financial
Statements"). The Company Financial Statements have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as may be indicated in the notes
thereto) and fairly present in all material respects the financial position of
the Company at the respective date thereof and the results of its operations and
changes in cash flows for the periods indicated.
SECTION 2.8 Absence of Litigation. There are no suits, claims,
actions, proceedings or investigations pending or, to the best knowledge of the
Company, threatened against the Company or any of its subsidiaries, or any
properties or rights of the Company or any of its subsidiaries, before any
court, arbitrator or administrative, governmental or regulatory authority or
body. As of the date hereof, neither the Company nor any of its subsidiaries nor
any of their respective properties is or are subject to any order, writ,
judgment, injunction, decree, determination or award.
SECTION 2.9 Tax Matters. The Company has, or will have, (i)
filed all Tax Returns and reports required to be filed by it prior to the
Closing Date (taking into account extensions), (ii) paid or accrued all Taxes
due and payable for all taxable years or periods ending on or prior to the
Closing Date, and (iii) paid or accrued all Taxes for which a notice of
assessment or collection has been received (other than amounts being contested
in good faith by appropriate proceedings). All such Tax Returns are complete and
correct in all material respects. Neither the Internal Revenue Service (the
"IRS") nor any other Taxing authority has asserted any claim for Taxes, or is
threatening to assert any claims for Taxes, against the Company. The Company has
withheld or collected and paid over to the appropriate Taxing authorities all
Taxes required by law to be withheld or collected and paid over to such Taxing
authorities. The Company has not made an election under Section 341(f) of the
Code. There are no liens for Taxes upon any of the assets of the Company (other
than liens for Taxes that are not yet due or that are being contested in good
faith by appropriate proceedings). No extension of the statute of limitations on
the assessment of any Taxes has been granted by the Company and is currently in
effect. As used herein, "Taxes" shall mean any taxes of any kind, including but
not limited to those on or measured by or referred to as income, gross receipts,
capital, sales, use, ad valorem, franchise, profits, license, withholding,
payroll, employment, excise, severance, stamp, occupation, premium, value added,
property or windfall profits taxes, customs, duties or similar fees, assessments
or charges of any kind whatsoever, together with any interest and any penalties,
additions to tax or additional amounts imposed by any governmental authority. As
used herein, "Tax Return" shall mean any return, report or statement required to
be filed with any governmental authority with respect to Taxes.
10
SECTION 2.10 Investment Company. The Company is not an
"investment company" or a company controlled by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or is exempt from
all provisions of such act.
SECTION 2.11 Brokers. No broker, finder or investment banker
is entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by and on behalf of the Company (other than Xxxxxxx, Xxxxx & Co.'s
engagement as financial advisor on behalf of MSC).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
PARENT AND PURCHASER
Parent and Purchaser hereby, jointly and severally, represent
and warrant to the Company that:
SECTION 3.1 Corporate Organization. Each of Parent and
Purchaser is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has the requisite corporate power
and authority and any necessary governmental authority to own, operate or lease
its properties and to carry on its business as it is now being conducted, except
where the failure to be so organized, existing and in good standing or to have
such power, authority and governmental approvals is not, individually or in the
aggregate, reasonably likely to prevent the consummation of the Merger.
SECTION 3.2 Authority Relative to This Agreement. Each of
Parent and Purchaser has all necessary corporate power and authority to enter
into this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by each of Parent and Purchaser and the consummation by each of
Parent and Purchaser of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Parent and Purchaser
other than filing and recordation of appropriate merger documents as required by
the DGCL. This Agreement has been duly executed and delivered by Parent and
Purchaser and, assuming due authorization, execution and delivery by the
Company, constitutes a legal, valid and binding obligation of each such
corporation enforceable against such corporation in accordance with its terms.
SECTION 3.3 No Conflict; Required Filings and Consents. (a)
The execution, delivery and performance of this Agreement by Parent and
Purchaser do not and will not: (i) conflict with or violate the respective
certificates of incorporation or by-laws of Parent or Purchaser; (ii) assuming
that all consents, approvals and authorizations contemplated by clauses (i),
(ii) and (iii) of subsection (b) below have been obtained and all filings
described in such clauses have been made, conflict with or violate any law,
rule, regulation, order, judgment or decree applicable to Parent or Purchaser or
by which either of them or their respective properties are bound or affected; or
(iii) result in any breach or violation of or constitute a default (or an
11
event which with notice or lapse of time or both could become a default) or
result in the loss of a material benefit under, or give rise to any right of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the property or assets of Parent or
Purchaser pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which
Parent or Purchaser is a party or by which Parent or Purchaser or any of their
respective properties are bound or affected, except, in the case of clauses (ii)
and (iii), for any such conflicts, violations, breaches, defaults or other
occurrences which are not, individually or in the aggregate, reasonably likely
to prevent or materially delay the consummation of the Merger.
(b) The execution, delivery and performance of this Agreement
by Parent and Purchaser do not and will not require any consent, approval,
authorization or permit of, action by, filing with or notification to, any
governmental or regulatory authority, except (i) for applicable requirements, if
any, of the Exchange Act and the rules and regulations promulgated thereunder,
the HSR Act, state securities, takeover and "blue sky" laws, (ii) the filing and
recordation of appropriate merger or other documents as required by the DGCL,
and (iii) such consents, approvals, authorizations, permits, actions, filings or
notifications the failure of which to make or obtain are not, individually or in
the aggregate, reasonably likely to prevent the consummation of the Merger.
SECTION 3.4 Brokers. No broker, finder or investment banker
(other than Xxxxxx Xxxxxxx & Co. Incorporated) is entitled to any brokerage,
finder's or other fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by and on behalf of
Parent or Purchaser.
SECTION 3.5 Funds. Parent or Purchaser, at the expiration date
of the Offer and at the Effective Time, will have the funds necessary to
consummate the Merger.
ARTICLE IV
CONDUCT PENDING THE CLOSING; ADDITIONAL AGREEMENTS
SECTION 4.1 Conduct of Business of the Company Pending the
Merger. The Company covenants and agrees that, during the period from the date
hereof to the Effective Time, unless Parent shall otherwise agree in writing and
except as otherwise expressly contemplated by this Agreement, the Company shall
not (i) engage in any business activities of any type or kind whatsoever or
enter into any agreements or arrangements with any person, except as otherwise
contemplated pursuant to this Agreement and (ii) incur, directly or indirectly,
any liabilities, commitments, or obligations of any kind whatsoever, whether or
not accrued and whether or not contingent or absolute. By way of amplification
and not limitation, the Company shall not, between the date of this Agreement
and the Effective Time, directly or indirectly do, or commit to do, any of the
following without the prior written consent of Parent:
(a) Amend or otherwise change its certificate of incorporation
or by-laws;
12
(b) Issue, deliver, sell, pledge, dispose of or encumber, or
authorize or commit to the issuance, sale, pledge, disposition or
encumbrance of, (i) any shares of capital stock of any class, or any
options, warrants, convertible securities or other rights of any kind
to acquire any shares of capital stock, or any other ownership interest
(including but not limited to stock appreciation rights or phantom
stock), of the Company or (ii) any assets of the Company;
(c) Declare, set aside, make or pay any dividend or other
distribution, payable in cash, stock, property or otherwise, with
respect to any of its capital stock;
(d) Reclassify, combine, split, subdivide or redeem, purchase
or otherwise acquire, directly or indirectly, any of its capital stock;
(e) (i) Acquire (by merger, consolidation, or acquisition of
stock or assets) any corporation, partnership or other business
organization or division thereof, or otherwise form or commit to form
any subsidiary; (ii) incur any indebtedness for borrowed money or issue
any debt securities or assume, guarantee or endorse, or otherwise as an
accommodation become responsible for, the obligations of any person, or
make any loans, advances or capital contributions to, or investments
in, any other person; (iii) enter into any contract or agreement other
than in the ordinary course of business consistent with past practice;
or (iv) authorize any capital expenditures of any nature whatsoever;
(f) Hire, appoint or engage, or commit to hire, appoint or
engage, any director, officer, employee, consultant or other advisor,
or otherwise pay or commit to pay any compensation, fringe benefits or
severance or other termination benefits to any such persons, other than
the engagement of any agent by the Company in connection with the
liquidation and/or sale of the Company's assets and investments in the
manner contemplated herein;
(g) Make any Tax election, change any method of Tax accounting
or settle or compromise any federal, state, local or foreign Tax
liability;
(h) Settle or compromise any pending or threatened suit,
action or claim;
(i) Adopt a plan of complete or partial liquidation,
dissolution, merger, consolidation, restructuring, recapitalization or
other reorganization of the Company (other than the Merger); or
(j) Take, or offer or propose to take, or agree to take in
writing or otherwise, any of the actions described in Sections 4.1(a)
through 4.1(i) or any action which would make any of the
representations or warranties of the Company contained in this
Agreement untrue and incorrect as of the date when made if such action
had then been taken.
Notwithstanding anything contained in this Section 4.1, the
Company shall be entitled to liquidate and/or sell all or any of its investments
and other assets (other than its MSC
13
Common Stock and MMC common stock) and/or declare and pay dividends to its
stockholders (other than of its MSC Common Stock or MMC common stock), so long
as the Closing Balance Sheet accurately reflects the results of any such
liquidation, sale and/or dividend.
SECTION 4.2 Stockholders Meeting. Promptly following the date
hereof, the Company, acting through its Board of Directors, shall in accordance
with and subject to applicable law and the Company's Certificate of
Incorporation and By-Laws, duly call, give notice of, convene and hold a meeting
of its stockholders for the purpose of adopting this Agreement and the
transactions contemplated hereby (the "Stockholders Meeting"). The Company's
Board of Directors shall include, in any notice to stockholders of the
Stockholders Meeting, the unanimous recommendation of the Board of Directors
that the stockholders of the Company vote in favor of the adoption of this
Agreement and use its reasonable best efforts to obtain the necessary adoption
of this Agreement. At the Stockholders Meeting, Parent and Purchaser shall cause
all Shares subject to the WMI Stockholders' proxy under the Proxy and
Indemnification Agreement to be voted in favor of adoption of this Agreement.
SECTION 4.3 No Solicitation; Affirmation of Covenants in
Stockholders' Agreement. (a) The Company shall not, and the Company shall cause
all of its directors, agents, affiliates and associates to not, directly or
indirectly, solicit, encourage, participate in or initiate any inquiries or the
making of any proposal by any person or entity (other than Parent or any
affiliate of Parent) which constitutes, or may reasonably be expected to lead
to, (i) any sale of the Shares or (ii) any acquisition or purchase of any of the
Company's assets or any equity interest in, or any merger, consolidation or
business combination with, the Company. If the Company receives an inquiry or
proposal with respect to the sale of Shares, then the Company shall promptly
inform Parent of the terms and conditions, if any, of such inquiry or proposal
and the identity of the person making it. The Company and its directors, agents,
affiliates and associates will immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing.
(b) The Company affirms and agrees that it shall comply in all
respects with the covenants set forth in its Stockholders' Agreement, including
without limitation the covenants set forth in Section 5 thereof.
SECTION 4.4 Access to Information; Confidentiality. From the
date hereof to the Effective Time, the Company shall, and shall cause its
officers, directors and other agents to, afford the officers, employees,
auditors and other agents of Parent, and financing sources who shall agree to be
bound by the provisions of this Section 4.4 as though a party hereto, complete
access, consistent with applicable law, at all reasonable times to all books and
records of the Company, and shall furnish Parent and such financing sources with
all financial, operating and other data and information as Parent, through its
officers, employees or agents, or such financing sources may from time to time
reasonably request. All information obtained by Parent and Purchaser pursuant to
this Section 4.4 shall be kept confidential in accordance with the
Confidentiality Agreement, dated on or about May 7, 1998 (the "Parent
Confidentiality Agreement"), between Parent and MSC. No investigation pursuant
to this Section 4.4 shall affect any representations or warranties of the
parties herein or the conditions to the obligations of the parties hereto.
14
SECTION 4.5 Notification of Certain Matters. The Company shall
give prompt notice to Parent, and Parent shall give prompt notice to the
Company, of the occurrence or non-occurrence of (i) any event the occurrence or
non-occurrence of which would be likely to cause any representation or warranty
contained in this Agreement to be untrue or inaccurate in any material respect
and (ii) any failure of the Company, Parent or Purchaser, as the case may be, to
comply with or satisfy in any material respect any covenant, condition or
agreement to be complied with or satisfied by it hereunder; provided, however,
that the delivery of any notice pursuant to this Section 4.5 shall not limit or
otherwise affect the remedies available hereunder to the party receiving such
notice.
SECTION 4.6 Further Action; Reasonable Best Efforts. (a) Upon
the terms and subject to the conditions hereof, each of the parties hereto shall
use its reasonable best efforts to take, or cause to be taken, all appropriate
action, and to do or cause to be done, all things necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement as soon as practicable, including
but not limited to (i) cooperation in the preparation and filing of any required
filings under the HSR Act and any amendments to any thereof and (ii) using its
reasonable best efforts to promptly make all required regulatory filings and
applications including, without limitation, responding promptly to requests for
further information and to obtain all licenses, permits, consents, approvals,
authorizations, qualifications and orders of governmental authorities and any
other third parties as are necessary for the consummation of the transactions
contemplated by this Agreement and to fulfill the conditions to the Merger. In
case at any time after the Effective Time any further action is necessary or
desirable to carry out the purposes of this Agreement, the proper officers and
directors of each party to this Agreement shall use their reasonable best
efforts to take all such necessary action.
(b) The Company and Parent each shall keep the other apprised
of the status of matters relating to completion of the transactions contemplated
hereby, including promptly furnishing the other with copies of notices or other
communications received by Parent or the Company, as the case may be, or any of
their subsidiaries, from any governmental authority with respect to the Merger
or any of the other transactions contemplated by this Agreement. The parties
hereto will consult and cooperate with one another, and consider in good faith
the views of one another in connection with any analyses, appearances,
presentations, memoranda, briefs, arguments, opinions and proposals made or
submitted by or on behalf of any party hereto in connection with proceedings
under or relating to the HSR Act or any other antitrust law.
SECTION 4.7 Public Announcements. Parent and the Company shall
consult with each other before issuing any press release or otherwise making any
public statements with respect to the Merger and shall not issue any such press
release or make any such public statement prior to such consultation, except as
may be required by law or any listing agreement with its securities exchange.
15
ARTICLE V
CONDITIONS OF MERGER
SECTION 5.1 Conditions to Obligation of Each Party to Effect
the Merger. The respective obligations of each party to effect the Merger shall
be subject to the satisfaction (or, in the case of Section 5.1(d) below, the
waiver, to the extent available, by Parent) at or prior to the Effective Time of
the following conditions:
(a) This Agreement shall have been adopted by the affirmative
vote of the stockholders of the Company by the requisite vote in
accordance with the Company's Certificate of Incorporation and the DGCL
(which the Company has represented shall be solely the affirmative vote
of a majority of the outstanding Shares).
(b) No statute, rule, regulation, executive order, decree,
ruling, injunction or other order (whether temporary, preliminary or
permanent) shall have been enacted, entered, promulgated or enforced by
any United States, foreign, federal or state court or governmental
authority which prohibits, restrains, enjoins or restricts the
consummation of the Merger, the Offer or the MSC Merger.
(c) Any waiting period applicable to the Merger under the HSR
Act shall have terminated or expired.
(d) All of the Offer Conditions, other than the consummation
of the Merger, shall have been satisfied and MSC MergerSub shall have
determined to purchase the shares of MSC Common Stock pursuant to the
Offer; provided that, if the MSC Merger Agreement is terminated under
circumstances in which Parent is entitled to the payment of the fees
set forth in Section 8.3(a)(ii) of the MSC Merger Agreement, Parent (in
its sole and absolute discretion) shall be entitled to waive the
satisfaction of the conditions in this Section 5.1(d).
SECTION 5.2 Additional Conditions to Obligation of Parent and
Purchaser to Effect the Merger. The obligations of Parent and Purchaser to
effect the Merger shall be subject to the satisfaction (or waiver) at or prior
to the Effective Time of the following conditions:
(a) The Company shall have performed in all material respects
all covenants and agreements required to be performed by it under this
Agreement at or prior to the Closing Date.
(b) The representations and warranties made herein by the
Company shall have been true and correct in all material respects on
the date of this Agreement and as of the Effective Time, except to the
extent that any such representation or warranty is made as of a
specified date, in which case such representation or warranty shall
have been true and correct as of such date.
16
(c) Each of (i) the Stockholder's Agreement of the Company
(and the Stockholder's Agreements for each other Related Seller), and
(ii) the Proxy and Indemnification Agreement shall continue to be in
full force and effect, with no amendments or other changes thereto.
SECTION 5.3 Additional Conditions to Obligation of the Company
to Effect the Merger. The obligations of the Company to effect the Merger shall
be subject to the satisfaction (or waiver) at or prior to the Effective Time of
the following conditions:
(a) Parent and Purchaser shall have performed in all material
respects all of their respective covenants and agreements required to
be performed by them under this Agreement at or prior to the Closing
Date.
(b) The representations and warranties made herein by Parent
and Purchaser shall have been true and correct in all material respects
on the date of this Agreement and as of the Effective Time, except to
the extent that any such representation or warranty is made as of a
specified date, in which case such representation or warranty shall
have been true and correct as of such date.
ARTICLE VI
TERMINATION, AMENDMENT AND WAIVER
SECTION 6.1 Termination. This Agreement may be terminated and
the Merger contemplated hereby may be abandoned at any time prior to the
Effective Time:
(a) By mutual written consent of Parent, Purchaser and the
Company;
(b) By Parent or the Company if any court of competent
jurisdiction or other governmental body located or having jurisdiction
within the United States shall have issued a final order, injunction,
decree, judgment or ruling or taken any other final action restraining,
enjoining or otherwise prohibiting the Merger, the Offer or the MSC
Merger and such order, injunction, decree, judgment, ruling or other
action is or shall have become final and nonappealable;
(c) By Parent if due to an occurrence or circumstance which
resulted in a failure to satisfy any of the Offer Conditions (other
than as a result of a breach by Parent or MSC MergerSub of its
obligations under the MSC Merger Agreement), MSC MergerSub shall have
(i) terminated the Offer or (ii) failed to pay for shares of MSC Common
Stock pursuant to the Offer on or prior to the Outside Date (as defined
in the MSC Merger Agreement);
(d) By the Company if (i) the MSC Merger Agreement is
terminated and (ii) Parent is no longer entitled to the payment of the
fees set forth in Section 8.3(a)(ii) of the MSC Merger Agreement; or
17
(e) By Parent prior to the purchase of shares of MSC Common
Stock pursuant to the Offer, if (i) there shall have been a breach of
any representation, warranty, covenant or agreement on the part of the
Company contained in this Agreement which is reasonably likely to have
a Material Adverse Effect, which shall not have been cured prior to the
earlier of (A) 10 business days following notice of such breach and (B)
two business days prior to the date on which the Offer expires, or (ii)
the MSC Merger Agreement is terminated.
SECTION 6.2 Effect of Termination. In the event of the
termination of this Agreement pursuant to Section 6.1, this Agreement shall
forthwith become void and there shall be no liability on the part of any party
hereto except as set forth in Section 7.1; provided, however, that nothing
herein shall relieve any party from liability for any wilful breach hereof.
SECTION 6.3 Amendment. This Agreement may be amended by the
parties hereto by action taken by or on behalf of their respective Boards of
Directors at any time prior to the Effective Time; provided, however, that no
amendment may be made which would reduce the amount or change the type of
consideration into which each Share shall be converted upon consummation of the
Merger without the redelivery by the Company's stockholders of a stockholders'
consent thereto. This Agreement may not be amended except by an instrument in
writing signed by the parties hereto.
SECTION 6.4 Waiver. At any time prior to the Effective Time,
any party hereto may (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto and (c) waive compliance with any of the
agreements or conditions contained herein. Any such extension or waiver shall be
valid if set forth in an instrument in writing signed by the party or parties to
be bound thereby.
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.1 Survival of Representations, Warranties and
Agreements. (a) Except as set forth in Section 7.1(b), all representations,
warranties and agreements contained in this Agreement shall terminate and be
extinguished at the Effective Time or the earlier date of termination of this
Agreement pursuant to Section 6.1.
(b) Notwithstanding Section 7.1(a), (i) the covenants and
agreements made by the parties in this Agreement which by their terms
contemplate performance after the Effective Time (or after termination) shall
survive the Effective Time (or such termination) until fully performed, and (ii)
the representations and warranties of the Company contained herein shall survive
the Effective Time indefinitely.
SECTION 7.2 Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given (and
shall be deemed to have
18
been duly given upon receipt) by delivery in person, by cable, telecopy,
telegram or telex or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
if to Parent or Purchaser:
Xxxxxxx'x, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
if to the Company:
c/o Ivins Xxxxxxxx & Xxxxxx
0000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx Xxxx, Esq.
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
with a further copy to:
Morris, Nichols, Arsht & Tunnel
0000 X. Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
19
SECTION 7.3 Certain Definitions. For purposes of this
Agreement, the term:
"affiliate" of a person means a person that directly or
indirectly, through one or more intermediaries, controls, is controlled
by, or is under common control with, the first mentioned person;
"control" (including the terms "controlled by" and "under
common control with") means the possession, directly or indirectly or
as trustee or executor, of the power to direct or cause the direction
of the management policies of a person, whether through the ownership
of stock, as trustee or executor, by contract or credit arrangement or
otherwise;
"person" means an individual, corporation, partnership,
association, trust, unincorporated organization, other entity or group
(as defined in Section 13(d)(3) of the Exchange Act); and
"subsidiary" or "subsidiaries" of any person means any
corporation, partnership, joint venture or other legal entity of which
such person (either alone or through or together with any other
subsidiary), owns, directly or indirectly, 50% or more of the stock or
other equity interests the holder of which is generally entitled to
vote for the election of the board of directors or other governing body
of such corporation or other legal entity.
SECTION 7.4 Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the fullest
extent possible.
SECTION 7.5 Entire Agreement; Assignment. This Agreement,
together with the Stockholders Agreements, Parent Confidentiality Agreement, the
MSC Merger Agreement, the MMC Merger Agreement and the Proxy and Indemnification
Agreement, constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all prior agreements and undertakings,
both written and oral, among the parties, or any of them, with respect to the
subject matter hereof. This Agreement shall not be assigned by operation of law
or otherwise, except that Parent and Purchaser may assign all or any of their
respective rights and obligations hereunder to any direct or indirect wholly
owned subsidiary or subsidiaries of Parent, provided that no such assignment
shall relieve the assigning party of its obligations hereunder if such assignee
does not perform such obligations.
SECTION 7.6 Parties in Interest. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and nothing
in this Agreement, express or implied, is intended to or shall confer upon any
other person any rights, benefits or remedies of any nature whatsoever under or
by reason of this Agreement.
20
SECTION 7.7 Fees and Expenses. Except as otherwise
specifically provided herein, in the MSC Merger Agreement and in the Proxy and
Indemnification Agreement, whether or not the transactions contemplated hereby
are consummated, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby will be paid by the party
incurring such costs and expenses.
SECTION 7.8 Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof.
SECTION 7.9 Headings. The descriptive headings contained in
this Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
SECTION 7.10 Counterparts. This Agreement may be executed in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
21
IN WITNESS WHEREOF, Parent, Purchaser and the Company have
caused this Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
XXXXXXX'X, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
WMI ACQUISITION, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title:
WOODBANK XXXXX, INC.
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chairman
