Exhibit 99.2
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AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
BETWEEN
THE DAI-ICHI KANGYO BANK, LTD.
AND
TYCO ACQUISITION CORP. XIX (NV)
DATED AS OF MARCH 12, 2001
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TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS
Section 1.01. Definitions....................................................2
ARTICLE 2
PURCHASE AND SALE
Section 2.01. Purchase And Sale Of The Shares................................2
Section 2.02. Purchase Price.................................................3
Section 2.03. Closing........................................................3
Section 2.04. Closing Deliveries By Seller...................................3
Section 2.05. Closing Deliveries By Purchaser................................3
Section 2.06. Adjustment Upon Change In Capitalization Or Merger.............3
Section 2.07. Changes to Consideration Under Merger Agreement................4
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Section 3.01. Organization, Authority And Qualification of Seller............4
Section 3.02. No Conflict....................................................5
Section 3.03. Valid Issuance; Ownership Of The Shares........................5
Section 3.04. Absence of Litigation..........................................6
Section 3.05. Brokers........................................................6
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Section 4.01. Organization And Authority Of Purchaser and Guarantor..........6
Section 4.02. No Conflict; Required Filings And Consents.....................7
Section 4.03. Financial Ability..............................................7
Section 4.04. Brokers........................................................8
Section 4.05. Absence Of Litigation..........................................8
ARTICLE 5
ADDITIONAL AGREEMENTS
Section 5.01. Voting Agreement...............................................8
Section 5.02. No Disposition Or Encumbrance Of Seller's Shares...............8
Section 5.03. Company Board Representation...................................9
Section 5.04. Notification Of Certain Matters................................9
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Section 5.05. Further Action; Reasonable Efforts............................. 9
Section 5.06. Public Announcements...........................................10
Section 5.07. Japan Desk.....................................................10
ARTICLE 6
CONDITIONS TO CLOSING
Section 6.01. Conditions To The Closing......................................10
Section 6.02. Conditions To Obligations Of Seller............................11
Section 6.03. Conditions To Obligations Of Purchaser.........................11
Section 6.04. Merger.........................................................12
ARTICLE 7
TERMINATION AND WAIVER
Section 7.01. Termination....................................................12
Section 7.02. Effect Of Termination..........................................13
Section 7.03. Waiver.........................................................13
ARTICLE 8
GENERAL PROVISIONS
Section 8.01. No Survival Of Representations And Warranties..................13
Section 8.02. Expenses.......................................................13
Section 8.03. Notices........................................................13
Section 8.04. Headings.......................................................14
Section 8.05. Severability...................................................14
Section 8.06. Entire Agreement...............................................15
Section 8.07. Assignment.....................................................15
Section 8.08. Parties In Interest............................................15
Section 8.09. Governing Law..................................................15
Section 8.10. Waiver Of Jury Trial...........................................15
Section 8.11. Counterparts...................................................15
Section 8.12. Specific Performance...........................................16
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AMENDED AND RESTATED STOCK PURCHASE AGREEMENT, dated as of March 12, 2OO1
(this "AGREEMENT"), between TYCO ACQUISITION CORP. XIX (NV), a Nevada
corporation ("PURCHASER") and a direct wholly owned subsidiary of TYCO
INTERNATIONAL LTD., a Bermuda corporation ("GUARANTOR"), and THE DAI-ICHI KANGYO
BANK, LTD. ("SELLER") as stockholder of THE CIT GROUP, INC., a Delaware
corporation (the "COMPANY").
WHEREAS, Seller and Purchaser entered into a Stock Purchase Agreement,
dated as of March 12, 2001 (the "ORIGINAL STOCK PURCHASE AGREEMENT");
WHEREAS, Seller and Purchaser desire to amend and restate the Original
Stock Purchase Agreement as set forth in this Agreement to be effective as of
March 12, 2001;
WHEREAS, Seller is the record and beneficial owner of the number of shares
of common stock, par value $0.01 per share, of the Company ("COMMON STOCK") set
forth next to Seller's name on Schedule A hereto (Seller's "SHARES");
WHEREAS, Seller wishes to sell to Purchaser, and Purchaser wishes to
purchase from Seller, Seller's Shares, upon the terms and subject to the
conditions set forth herein;
WHEREAS, Purchaser and Guarantor have separately entered into an Agreement
and Plan of Merger dated as of the date hereof (as amended from time to time,
the "MERGER AGREEMENT") with the Company, pursuant to which the Company agrees
to merge with and into Purchaser (the "MERGER");
WHEREAS, in order to induce Seller to enter into this Agreement, Guarantor
is entering into simultaneously herewith an unconditional guarantee by the
Guarantor of Purchaser's obligation under this Agreement ("GUARANTEE"); and
WHEREAS, Guarantor and Purchaser acknowledge that Seller would not enter
into this Agreement without the Guarantee and that Seller is entering into this
Agreement in reliance of the execution of the Guarantee;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
and covenants hereinafter set forth, Purchaser and Seller hereby agree as
follows:
ARTICLE 1
DEFINITIONS
Section 1.01. DEFINITIONS. For purposes of this Agreement:
"ACQUISITION PROPOSAL" shall have the meaning ascribed to it in the Merger
Agreement.
"BUSINESS DAY" means any day on which the principal offices of the
Securities and Exchange Commission in Washington, D.C. are open to accept
filings, or, in the case of determining a date when any payment is due, any day
on which banks are not required or authorized to close in The City of New York
or Tokyo, Japan.
"LIEN" means any lien, mortgage, deed of trust, pledge, hypothecation,
security interest, encumbrance, claim or charge of any kind, or any conditional
sale agreement or other agreement to create any of the foregoing.
"MATERIAL ADVERSE EFFECT" means, with respect to a person, an effect,
change, event or occurrence that, individually or in the aggregate with other
such effects, changes, events or occurrences, is or would reasonably be expected
to be materially adverse to the financial condition, business, assets or results
of operations of such person and its subsidiaries taken as a whole, other than
any change, effect, event or occurrence relating to (i) the United States, Asian
or global economy or United States, Asian or global securities markets in
general, (ii) the Merger Agreement or the transactions contemplated thereby or
the announcement thereof, (iii) changes in legal or regulatory conditions that
affect in general the businesses in which such person and its subsidiaries are
engaged or (iv) the financial services industry in general, and not specifically
relating to such person or its subsidiaries.
"PERSON" means an individual, corporation, partnership, limited
partnership, limited liability company, syndicate, person (including, without
limitation, a "person" as defined in Section 13(d)(3) of the Securities Exchange
Act of 1934, as amended), trust, association or entity or government, political
subdivision, agency or instrumentality of a government.
"PURCHASE PRICE BANK ACCOUNT" means a bank account to be designated by
Seller in a written notice to Purchaser at least five Business Days before the
Closing.
ARTICLE 2
PURCHASE AND SALE
Section 2.01. PURCHASE AND SALE OF THE SHARES. Upon the terms and subject
to the conditions contained in this Agreement, at the Closing, Seller agrees
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to sell to Purchaser, and Purchaser agrees to purchase from Seller, the number
of Shares set forth next to Seller's name on Schedule A hereto.
Section 2.02. PURCHASE PRICE. The purchase price for Seller's Shares shall
consist of the amount of immediately available United States dollars (Seller's
"CASH PURCHASE PRICE") set forth next to Seller's name on Schedule A hereto.
Section 2.03. CLOSING. Subject to the terms and conditions of this
Agreement, the sale and purchase of Seller's Shares contemplated by this
Agreement shall take place at a closing (the "CLOSING") to be held at the
offices of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX
00000 as soon as practicable following satisfaction or waiver of all conditions
to the obligations of the parties set forth in Article 6, or at such other place
or at such other time or on such other date as Seller and Purchaser may mutually
agree upon in writing (the date on which the Closing takes place being the
"CLOSING DATE"); PROVIDED, HOWEVER, if the conditions to the consummation of the
Merger shall be satisfied or waived, the Closing shall in all events occur prior
to the consummation of the Merger.
Section 2.04. CLOSING DELIVERIES BY SELLER. At the Closing, Seller shall
deliver or cause to be delivered to Purchaser:
(a) stock certificates evidencing Seller's Shares duly endorsed in blank,
or accompanied by stock powers duly executed in blank, in form reasonably
satisfactory to Purchaser and with all required stock transfer tax stamps
affixed, including in any case a signature guarantee of a member in good
standing of a recognized medallion program;
(b) a receipt for an amount equal to Seller's Cash Purchase Price; and
(c) the certificates and other documents required to be delivered
pursuant to Section 6.03.
Section 2.05. CLOSING DELIVERIES BY PURCHASER. At the Closing, Purchaser
shall deliver to Seller:
(a) an amount equal to Seller's Cash Purchase Price by wire transfer in
immediately available funds to Seller's Purchase Price Bank Account; and
(b) the certificates and other documents required to be delivered pursuant
to Section 6.02.
Section 2.06. ADJUSTMENT UPON CHANGE IN CAPITALIZATION OR MERGER. In the
event of any change in the Company's capital stock by reason of stock dividends,
stock splits, mergers, consolidations, recapitalizations, combinations,
conversions, exchanges of shares, extraordinary or liquidating dividends, or
other
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changes in the corporate or capital structure of the Company which would have
the effect of diluting or changing Seller's or Purchaser's rights hereunder, the
number and kind of shares or other securities or property subject to this
Agreement and the purchase price per Seller's Share (but not the total purchase
price payable hereunder in full consideration of the purchase of all shares or
securities of the Company owned beneficially or of record by Seller) shall be
appropriately and equitably adjusted so that Purchaser shall receive at the
Closing the number of shares or other securities or property that Purchaser
would have received in respect of Seller's Shares purchasable immediately prior
to such event. At the Closing, Seller shall receive the total Cash Purchase
Price it would have received immediately prior to such event.
Section 2.07. CHANGES TO CONSIDERATION UNDER MERGER AGREEMENT. If the
merger consideration in the Merger Agreement is changed from 0.6907 shares of
Guarantor's common shares in respect of each share of the Company's Common Stock
and the resulting value of the Guarantor's common shares issuable in respect of
each share of the Company's Common Stock pursuant to the Merger based upon the
last closing price of Guarantor's common shares prior to such change (the "NEW
MERGER CONSIDERATION") is higher than $35.02, then the Cash Purchase Price will
be increased by the product of (a) the difference between the New Merger
Consideration and $35.02 and (b) the number of Seller's Shares.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
As an inducement to Purchaser to enter into this Agreement, Seller hereby
represents and warrants to Purchaser as of the date hereof and as of the Closing
Date as follows:
Section 3.01. ORGANIZATION, AUTHORITY AND QUALIFICATION OF SELLER. Seller
is a bank duly organized, validly existing and in good standing under the laws
of Japan and has all necessary corporate power and authority to enter into this
Agreement, to carry out its obligations hereunder and to consummate the
transactions contemplated hereby. Seller is duly licensed or qualified to do
business and is in good standing in each jurisdiction in which the properties
owned or leased by it or the operation of its business makes such licensing or
qualification necessary, except to the extent that the failure to be so licensed
or qualified would not adversely affect or materially delay the ability of
Seller to carry out its obligations under, and to consummate the transactions
contemplated by, this Agreement. The execution and delivery of this Agreement by
Seller, the performance by Seller of its obligations hereunder and the
consummation by Seller of the transactions contemplated hereby have been duly
authorized by all requisite action on the part of Seller. This Agreement has
been duly executed and delivered by Seller, and (assuming due authorization,
execution and delivery by
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Purchaser) this Agreement constitutes a legal, valid and binding obligation of
Seller enforceable against it in accordance with its terms.
Section 3.02. NO CONFLICT. (a) The execution, delivery and performance of
this Agreement by Seller do not and will not, (i) contravene, conflict with or
violate the certificate of incorporation, by-laws or equivalent organizational
documents of Seller, (ii) assuming satisfaction of the requirements set forth
in Section 3.02(b) below and the accuracy of Purchaser's representations and
warranties set forth in Section 4.02, contravene, conflict with or violate any
United States or non-United States statute, law, ordinance, regulation, rule,
code, executive order, injunction, judgment, decree or other order ("LAW")
applicable to Seller or by which any property or asset of Seller is bound or
affected or (iii) result in any breach of, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation of,
or result in the creation of a Lien on any property or asset of Seller pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation, except for any such
conflicts, violations, breaches, defaults or other occurrences that would not
adversely affect or materially delay the ability of any of Seller to carry out
its obligations under, and to consummate the transactions contemplated by, this
Agreement.
(b) Assuming the accuracy of Purchaser's representations and warranties
set forth in Section 4.02, the execution, delivery and performance of this
Agreement by Seller do not and will not require any consent, approval,
authorization or permit of, or filing with or notification to, any United States
federal, state, county or local or non-United States government, governmental,
regulatory or administrative authority, agency, instrumentality or commission or
any court, tribunal, or judicial or arbitral body (a "GOVERNMENTAL AUTHORITY"),
except (i) for applicable requirements, if any, of state takeover laws, the HSR
Act, the banking laws of the State of New York, and the rules and regulations of
any other federal or state regulatory authorities governing banking, consumer or
commercial finance, mortgage lending and insurance to which the Company is
subject (collectively, "REQUIRED REGULATORY APPROVALS"), (ii) notification to
the Financial Supervisory Agency of Japan of the terms of this Agreement and
(iii) where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filing or notifications would not adversely affect or
materially delay the ability of Seller to carry out its obligations under, and
to consummate the transactions contemplated by, this Agreement.
Section 3.03. VALID ISSUANCE; OWNERSHIP OF THE SHARES. (a) Seller is the
sole record and beneficial owner of, and has good title to, the number of Shares
set forth next to Seller's name on Schedule A hereto. The Shares owned by Seller
are owned free and clear of all Liens, other than any Liens created by this
Agreement.
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(b) The Shares owned by Seller are validly issued, fully paid and
nonassessable. Such Shares are all the equity securities of the Company owned,
either of record or beneficially, by Seller and Seller does not have any option
or other right to acquire any other securities of the Company. Seller has not
appointed or granted any proxy, which appointment or grant is still effective,
with respect to the Shares owned by Seller. At the Closing, Seller shall
deliver, and upon such delivery and payment of the Cash Purchase Price therefor,
good, valid and marketable title to Seller's Shares free and clear of any Liens,
other than pursuant to this Agreement.
Section 3.04. ABSENCE OF LITIGATION. AS of the date of this Agreement,
there is no litigation, suit, claim, action, proceeding or investigation (an
"ACTION") pending or, to the knowledge of Seller, threatened against Seller, or
any property or asset of Seller, before any Governmental Authority that seeks to
delay or prevent the consummation of the transactions contemplated by this
Agreement.
Section 3.05. BROKERS. Except for X.X. Xxxxxx Securities Inc., 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 or on behalf of Seller. Seller is solely
responsible for the fees and expenses of X.X. Xxxxxx Securities Inc.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to Seller to enter into this Agreement, Purchaser hereby
represents and warrants to Seller as of the date hereof and as of the Closing
Date as follows:
Section 4.01. ORGANIZATION AND AUTHORITY OF PURCHASER AND GUARANTOR. (a)
Purchaser is corporation duly organized, validly existing and in good standing
under the laws of Nevada and has all necessary corporate power and authority to
enter into this Agreement, to carry out its obligations hereunder and to
consummate the transactions contemplated hereby. Each of Purchaser and Guarantor
is duly licensed or qualified to do business and is in good standing in each
jurisdiction in which the properties owned or leased by it or the operation of
its business makes such licensing or qualification necessary, except to the
extent that the failure to be so licensed or qualified would not adversely
affect or materially delay the ability of Purchaser or Guarantor to carry out
its obligations under, and to consummate the transactions contemplated by, this
Agreement or the Guarantee. The execution and delivery of this Agreement by
Purchaser, the performance by Purchaser of its obligations hereunder and the
consummation by Purchaser of the transactions contemplated hereby have been duly
authorized by all requisite action on the part of Purchaser. This Agreement has
been duly executed and delivered by Purchaser, and (assuming due authorization,
execution
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and delivery by Seller) this Agreement constitutes a legal, valid and binding
obligation of Purchaser enforceable against Purchaser in accordance with its
terms.
(b) Guarantor is a company incorporated with limited liability, duly
organized and validly existing under the laws of Bermuda and has all necessary
corporate power and authority to enter into the Guarantee, to carry out its
obligations hereunder and to consummate the transactions contemplated thereby.
The execution and delivery of the Guarantee by Guarantor, the performance by
Guarantor of its obligations thereunder and the consummation by Guarantor of the
transactions contemplated hereby and thereby have been duly authorized by all
requisite action on the part of Guarantor. The Guarantee has been duly executed
and delivered by Guarantor, and (assuming due authorization, execution and
delivery by Seller) the Guarantee constitutes a legal, valid and binding
obligation of Guarantor enforceable against Guarantor in accordance with its
terms.
Section 4.02. NO CONFLICT; REQUIRED FILINGS AND CONSENTS. (a) The
execution, delivery and performance of this Agreement by Purchaser do not and
will not (i) contravene, conflict with or violate the articles of incorporation
of Purchaser, by-laws or equivalent organizational documents of Purchaser, (ii)
assuming satisfaction of the requirements set forth in 4.02(b) below,
contravene, conflict with or violate any Law applicable to Purchaser or by which
any property or asset of Purchaser is bound or affected or (iii) result in any
breach of, or constitute a default (or event that with notice or lapse of time
or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a Lien on any property or asset of Purchaser pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation, except for any such conflicts,
violations, breaches, defaults or other occurrences that would not adversely
affect or materially delay the ability of Purchaser to carry out its obligations
under, and to consummate the transactions contemplated by, this Agreement.
(b) The execution, delivery and performance of this Agreement by Purchaser
do not and will not, require any consent, approval, authorization or permit of,
or filing with, or notification to, any Governmental Authority, except (i) the
Required Regulatory Approvals and (ii) where the failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or
notifications, would not adversely affect or materially delay the ability of
Purchaser to carry out its obligations under, and to consummate the transactions
contemplated by, this Agreement.
Section 4.03. FINANCIAL ABILITY. Purchaser has or will have at the Closing
sufficient funds to permit Purchaser to consummate the transactions contemplated
hereby.
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Section 4.04. BROKERS. No broker, finder or investment banker other than
Xxxxxx Brothers Inc. 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 or on behalf of Purchaser. Purchaser is solely
responsible for the fees and expenses of Xxxxxx Brothers Inc.
Section 4.05. ABSENCE OF LITIGATION. As of the date of this Agreement,
there is no Action pending or, to the knowledge of Purchaser, threatened against
Purchaser or any of its subsidiaries, or any property or asset of Purchaser or
any of its subsidiaries, before any Governmental Authority that seeks to
materially delay or prevent the consummation of the transactions contemplated by
this Agreement.
ARTICLE 5
ADDITIONAL AGREEMENTS
Section 5.01. VOTING AGREEMENT. Until the earliest to occur of the
registration of Seller's Shares of record in the name of Purchaser following the
Closing, the termination of this Agreement and the termination of the Merger
Agreement and so long as the Merger Agreement has not been amended or modified
in a manner that is adverse to Seller, Seller shall vote, at any meeting of the
stockholders of the Company, however called, and in any action by consent of the
stockholders of the Company, (i) against any action, proposal, agreement or
transaction that would result in a breach of any covenant, obligation,
agreement, representation or warranty of the Company under the Merger Agreement
(so long as it has not been theretofore terminated) or of Seller contained in
this Agreement, (ii) against any action, agreement, transaction (other than the
Merger Agreement or the transactions contemplated thereby) or proposal
(including any Acquisition Proposal) that could result in any of the conditions
to the Company's obligations under the Merger Agreement (so long as it has not
been theretofore terminated) not being fulfilled or that is intended, or could
reasonably be expected, to impede, interfere, delay, discourage or adversely
affect the Merger Agreement (so long as it has not been theretofore terminated),
the Merger or this Agreement and (iii) in favor of the adoption of the Merger
Agreement and the approval of the transactions contemplated thereby.
Section 5.02. NO DISPOSITION OR ENCUMBRANCE OF SELLER'S SHARES. (a) Seller
agrees that until the earliest to occur of the Closing, the termination of this
Agreement and the termination of the Merger Agreement, except as contemplated by
this Agreement, Seller shall not (i) sell, transfer, tender, pledge, assign,
contribute to the capital of any entity, hypothecate, give or otherwise dispose
of, grant a proxy or power of attorney with respect to, deposit into any voting
trust, enter into any voting agreement with respect to, or create or permit to
exist any Liens of any nature whatsoever with respect to, any of Seller's Shares
(or agree or consent to, or offer to do, any of the foregoing), (ii) take any
action that would
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make any representation or warranty of Seller herein untrue or incorrect in any
material respect or have the effect of preventing or disabling Seller from
performing Seller's obligations hereunder or (iii) directly or indirectly,
initiate, solicit or encourage any person to take actions that could reasonably
be expected to lead to the occurrence of any of the foregoing.
(b) Until the earliest to occur of the Closing, the termination of this
Agreement and the termination of the Merger Agreement, Seller shall promptly
advise Purchaser of its receipt of any Acquisition Proposal and any request for
information that may reasonably be expected to lead to or is otherwise related
to any Acquisition Proposal, the identity of the person making such Acquisition
Proposal or request for information, and the terms and conditions of such
Acquisition Proposal.
Section 5.03. COMPANY BOARD REPRESENTATION. Promptly upon the Closing,
Seller shall cause the directors nominated by Seller or who are otherwise
affiliated with Seller after the Closing to resign from the Board of Directors
of the Company and the boards of directors of the Company's subsidiaries.
Section 5.04. NOTIFICATION OF CERTAIN MATTERS. Seller shall give prompt
notice to Purchaser, and Purchaser shall give prompt notice to Seller, of (a)
the occurrence, or non-occurrence, of any event the occurrence, or
non-occurrence, of which reasonably could be expected to cause any
representation or warranty contained in this Agreement to be untrue or
inaccurate in any material respect and (b) any failure of Seller or Purchaser,
as the case may be, to comply with or satisfy any covenant or agreement to be
complied with or satisfied by it hereunder; PROVIDED, however, that the delivery
of any notice pursuant to this Section 5.04 shall not limit or otherwise affect
the remedies available hereunder to the party receiving such notice.
Section 5.05. FURTHER ACTION; REASONABLE EFFORTS. (a) Upon the terms and
subject to the conditions hereof, each of the parties hereto shall (i) make
promptly its respective filings, and thereafter make any other required
submissions, under the HSR Act with respect to the transactions contemplated by
this Agreement and (ii) use its reasonable 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,
including, without limitation, using its reasonable efforts to obtain all
permits, consents, approvals, authorizations, qualifications and orders of
Governmental Authorities as are necessary for the consummation of the
transactions contemplated by this Agreement; PROVIDED that Purchaser will be not
required by this Section 5.05 to take any action that will have a Material
Adverse Effect on the Company or Guarantor, including, without limitation,
entering into any consent decree, hold separate orders or other arrangements
that would have a Material Adverse Effect on the Company or Guarantor. In case,
at any time after the Closing Date, any further action is necessary or desirable
to carry out the purposes of this Agreement, the proper
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officers and directors of each party to this Agreement shall use their
reasonable efforts to take all such action.
(b) Each of the parties hereto agrees to cooperate and use its reasonable
best efforts to vigorously contest and resist any Action, including
administrative or judicial Action, and to have vacated, lifted, reversed or
overturned any decree, judgment, injunction or other order (whether temporary,
preliminary or permanent) that is in effect and that restricts, prevents or
prohibits consummation of the transactions contemplated by this Agreement,
including, without limitation, by vigorously pursuing all available avenues of
administrative and judicial appeal.
(c) Seller agrees to use its reasonable best efforts to cause the Company
to comply with its obligations under the Merger Agreement, and Purchaser agrees
to comply with its obligations under the Merger Agreement.
Section 5.06. PUBLIC ANNOUNCEMENTS. The parties hereto agree that no
public release or announcement concerning the transactions contemplated by this
Agreement or the Merger Agreement shall be issued by any party without the prior
consent (which consent shall not be unreasonably withheld) of Purchaser, in the
case of a release or announcement by Seller or any of its affiliates (other than
the Company and the Company's subsidiaries), or Seller, in the case of a release
or announcement by Purchaser or any of its affiliates, except as such release or
announcement may be required by Law or the rules or regulations of any United
States or non-United States securities exchange or banking authority, in which
case the party required to make the release or announcement shall use its
reasonable best efforts to allow the other party reasonable time to comment on
such release or announcement in advance of such issuance. Notwithstanding the
foregoing, Seller agrees to permit Purchaser to publish and disclose in the
proxy statement/prospectus to be sent to the Company's stockholders pursuant to
the Merger Agreement and related filings under the securities laws Seller's
identity and ownership of Seller's Shares and the nature of its commitments,
arrangements and understandings under this Agreement.
Section 5.07. JAPAN DESK. The parties acknowledge that Seller currently
refers business to the "Japan Desk" of the Company. The parties agree to conduct
good faith negotiations to allow the Company and Seller to continue such
arrangements for a three year term upon mutually agreed financial and other
terms.
ARTICLE 6
CONDITIONS TO CLOSING
Section 6.01. CONDITIONS TO THE CLOSING. The obligations of each party to
consummate the transactions contemplated by this Agreement shall be subject to
the satisfaction, at or prior to the Closing, of the following conditions:
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(a) HSR ACT, ETC. Any waiting period (and any extension thereof) under the
HSR Act applicable to the purchase of Seller's Shares contemplated hereby shall
have expired or been terminated and all other Required Regulatory Approvals
shall have been obtained, except where the failure to have obtained any such
Required Regulatory Approvals would not reasonably be expected to have a
Material Adverse Effect on the Company or Guarantor;
(b) NO ORDER; COMPLIANCE WITH LAW. (i) No Governmental Authority in the
United States or Japan shall have enacted, issued, promulgated, enforced or
entered any Law (whether temporary, preliminary or permanent) which is then in
effect and has the effect of making the acquisition of shares by Purchaser or
any affiliate of Purchaser illegal or otherwise restricting or prohibiting
consummation of the transactions contemplated by this Agreement and (ii)
consummation of the transactions contemplated by this Agreement shall not
conflict with or violate any provision of United States Law; and
(c) MERGER. All conditions to the consummation of the Merger have been
satisfied or waived and the Merger shall be expected to be consummated
immediately after the Closing.
Section 6.02. CONDITIONS TO OBLIGATIONS OF SELLER. The obligations of
Seller to consummate the transactions contemplated by this Agreement shall be
subject to the fulfillment, at or prior to the Closing, of each of the following
conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Purchaser contained in Article IV in this Agreement (A) that are qualified by
materiality or Material Adverse Effect shall be true and correct as of the
Closing with the same force and effect as if made as of the Closing, other than
such representations and warranties as are made as of another date, which shall
be true and correct as of such date, and (B) that are not qualified by
materiality or Material Adverse Effect shall be true and correct in all material
respects as of the Closing with the same force and effect as if made as of the
Closing, other than such representations and warranties as are made as of
another date, which shall be true and correct in all material respects as of
such date and Seller shall have received a certificate to such effect signed by
a duly authorized officer of Purchaser; and
(b) COVENANTS. The covenants and agreements contained in this Agreement to
be complied with by Purchaser on or before the Closing shall have been complied
with in all material respects, and Seller shall have received a certificate to
such effect signed by a duly authorized officer of Purchaser.
Section 6.03. CONDITIONS TO OBLIGATIONS OF PURCHASER. The obligations of
Purchaser to consummate the transactions contemplated by this Agreement shall be
subject to the fulfillment, at or prior to the Closing, of each of the following
conditions:
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(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Seller contained in Article III of this Agreement (A) that are qualified by
materiality or Material Adverse Effect shall be true and correct as of the
Closing with the same force and effect as if made as of the Closing, other than
such representations and warranties as are made as of another date, which shall
be true and correct as of such date, (B) that are not qualified by materiality
or Material Adverse Effect shall be true and correct in all material respects as
of the Closing with the same force and effect as if made as of the Closing,
other than such representations and warranties as are made as of another date,
which shall be true and correct in all material respects as of such date and (C)
the representation contained in Section 3.03(a) shall be true and correct as of
the Closing with the same force and effect as if made as of the Closing, and
Purchaser shall have received a certificate to such effect signed by a duly
authorized officer of Seller; and
(b) COVENANTS. The covenants and agreements contained in this Agreement to
be complied with by Seller on or before the Closing shall have been complied
with in all material respects, and Purchaser shall have received a certificate
to such effect signed by a duly authorized officer of Seller.
Section 6.04. MERGER. If the Closing shall not have occurred and Purchaser
desires to consummate the Merger and intends to proceed to do so, Purchaser
shall be deemed to have waived all of the conditions set forth in this Article
VI (other than that the representations and warranties contained in Section
3.03(a) be true and correct as required by Section 6.03(a)) and the Closing
hereunder shall occur immediately prior to the Merger. Seller and Purchaser
shall take such actions required at the Closing to consummate this Agreement
prior to the consummation of the Merger.
ARTICLE 7
TERMINATION AND WAIVER
Section 7.01. TERMINATION. This Agreement may be terminated at any time
prior to the Closing:
(a) by mutual written consent of each of Seller and Purchaser duly
authorized by the Boards of Directors of Seller and Purchaser; or
(b) by either Seller or Purchaser if:
(i) the Closing shall not have occurred by September 30, 2001;
PROVIDED, HOWEVER, that the right to terminate this Agreement under this
Section 7.01(b) shall not be available to any party whose failure to
fulfill any obligation under this Agreement has been the cause of, or
resulted in, the failure of the Closing to occur on or before such date;
12
(ii) any Governmental Authority in the United States or Japan shall
have enacted, issued, promulgated, enforced or entered any injunction,
order, decree or ruling (whether temporary, preliminary or permanent)
which has become final and nonappealable and has the effect of making the
transactions contemplated by this Agreement illegal or otherwise
preventing or prohibiting consummation of the transactions contemplated by
this Agreement; or
(iii) the Merger Agreement shall have been terminated.
Section 7.02. EFFECT OF TERMINATION. In the event of termination of this
Agreement as provided in Section 7.01, this Agreement shall forthwith become
void and there shall be no liability on the part of either party hereto except
(a) as set forth in Section 8.02 and (b) that nothing herein shall relieve any
party from liability for any breach of this Agreement.
Section 7.03. WAIVER. At any time prior to the Closing, either of the
parties hereto may (a) extend the time for the performance of any obligation or
other act of the other party hereto, (b) waive any inaccuracies in the
representations and warranties of the other party contained herein or in any
document delivered pursuant hereto and (c) waive compliance with any agreement
of the other party or any condition to its own obligations 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 8
GENERAL PROVISIONS
Section 8.01. NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The covenants
(other than covenants to be performed after the Closing), representations and
warranties of Seller and of Purchaser (other than the representations and
warranties contained in Section 3.03(a)) shall not survive the Closing.
Section 8.02. EXPENSES. Except as otherwise specified in this Agreement,
all costs and expenses, including, without limitation, fees and disbursements of
counsel, financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses, whether or not the Closing shall have
occurred.
Section 8.03. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by telecopy,
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 in a notice given in accordance with this
Section 8.03):
13
if to Seller:
The Dai-Ichi Kangyo Bank, Ltd.
Xxx Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Keiji Torii
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Xx., Esq.
if to Purchaser:
Tyco Acquisition Corp. XIX (NV)
c/o Tyco International (US) Inc.
Xxx Xxxx Xxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: President
with a copy to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
Section 8.04. HEADINGS. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
Section 8.05. 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
materially 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 a mutually acceptable
manner in order that
14
the transactions contemplated hereby are consummated as originally contemplated
to the fullest extent possible.
Section 8.06. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto 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.
Section 8.07. ASSIGNMENT. This Agreement shall not be assigned (whether
pursuant to a merger, operation of law or otherwise), except that Purchaser may
assign all or any of its rights and obligations under this Agreement to any
affiliate, PROVIDED that no such assignment shall relieve Purchaser of its
obligations hereunder.
Section 8.08. 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 right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
Section 8.09. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with, the laws of the State of New York. The parties
hereto hereby (a) submit to the exclusive jurisdiction of any state or federal
court sitting in the Borough of Manhattan of The City of New York in respect of
the interpretation and enforcement of the provisions of this Agreement brought
by any party hereto, and (b) irrevocably waive, and agree not to assert by way
of motion, defense, or otherwise, in any such Action, any claim that it is not
subject personally to the jurisdiction of the above-named courts, that its
property is exempt or immune from attachment or execution, that the Action is
brought in an inconvenient forum, that the venue of the Action is improper, or
that this Agreement may not be enforced in or by any of the above-named courts.
Section 8.10. WAIVER OF JURY TRIAL. Each of the parties hereto hereby
waives to the fullest extent permitted by applicable law any right it may have
to a trial by jury with respect to any litigation directly or indirectly arising
out of, under or in connection with this Agreement. Each of the parties hereto
(a) certifies that no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce that foregoing waiver and (b) acknowledges
that it and the other parties hereto have been induced to enter into this
Agreement by, among other things, the mutual waivers and certifications in this
Section 8.10.
Section 8.11. COUNTERPARTS. This Agreement may be executed and delivered
(including by facsimile transmission) 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.
15
Section 8.12. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement were
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or equity.
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
TYCO ACQUISITION CORP. XIX (NV)
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ Keiji Torii
---------------------------
Name: Keiji Torii
Title: Managing Director
SCHEDULE A
Seller's Cash
Seller Number of Shares Purchase Price
-------------------------------- -------------------- ---------------------
The Dai-Ichi Kangyo Bank, Ltd. 71,000,000 $2,486,420,000
A-1
AMENDED AND RESTATED
GUARANTEE
Tyco International Ltd. ("Guarantor") irrevocably guarantees, as primary
obligor and not as surety merely, each and every representation, warranty,
covenant, agreement and other obligation of Purchaser and/or its permitted
assigns (and where any such representation or warranty is made to the knowledge
of Purchaser, such representation or warranty shall be deemed made to the
knowledge of Guarantor), and the full and timely performance of Purchaser's
obligations under the provisions of the Agreement. This is a guarantee of
payment and performance, and not of collection, and Guarantor acknowledges and
agrees that this guarantee is full and unconditional, and no release or
extinguishment of Purchaser's obligations or liabilities (other than in
accordance with the terms of the Agreement), whether by decree in any bankruptcy
proceeding or otherwise, and no modification or extension of the Agreement or
the obligations of the Purchaser thereunder or any other act or omission of any
Person shall affect the continuing validity and enforceability of this guarantee
or any provision requiring or contemplating performance by Guarantor.
Capitalized terms used herein but not defined shall have the meanings given to
them in the Amended and Restated Stock Purchase Agreement between The Dai-Ichi
Kangyo Bank, Ltd. and Tyco Acquisition Corp. XIX (NV), dated as of March 12,
2001 (the "Agreement").
Guarantor hereby waives, for the benefit of Seller (i) any right to
require Seller as a condition of payment or performance by Guarantor, to proceed
against Purchaser or pursue any other remedy whatsoever and (ii) to the fullest
extent permitted by law, any defenses or benefits that may be derived from or
afforded by law which limit the liability of or exonerate guarantors or
sureties, except that, with respect to any obligation covered by this guarantee,
the Guarantor may assert as a defense that, under the terms of the Agreement,
Purchaser is not required to perform such obligation because the conditions
precedent to the performance thereof set forth in the Agreement have not been
satisfied or waived, so long as such defense is available to Purchaser.
Without limiting in any way the foregoing guarantee, Guarantor covenants
and agrees to adhere to and to take all actions to enable Purchaser to adhere to
each provision of the Agreement and the Merger Agreement which requires an act
or omission on the part of Guarantor or any of its subsidiaries to enable
Purchaser to comply with its obligations under the Agreement and the Merger
Agreement.
The provisions of Article 8 of the Agreement are incorporated herein,
MUTATIS MUTANDIS, except that notices and other communications hereunder to
Guarantor shall be delivered to Tyco International Ltd., Zurich Centre, 2nd
Floor, 90 Xxxxx Bay Road, Pembroke HM 08, Bermuda, Attn: Executive Vice
President and Chief Corporate Counsel, Telecopy No. 000 000 0000, Confirm No.
000 000 0000 (with a copy as provided therefor in Section 8.03).
Guarantor understands that Seller is relying on this guarantee in entering
into the Agreement and may enforce this guarantee as if Guarantor were a party
thereto.
This Amended and Restated Guarantee shall be governed by and construed in
accordance with, the laws of the State of New York. The parties hereto hereby
(a) submit to the exclusive jurisdiction of any state or federal court sitting
in the Borough of Manhattan of the City of New York in respect of the
interpretation and enforcement of the provisions of this guarantee brought by
any party hereto, and (b) irrevocably waive, and agree not to assert by way of
motion, defense, or otherwise, in any such Action, any claim that it is not
subject personally to the jurisdiction of the above-named courts, that its
property is exempt or immune from attachment or execution, that the Action is
brought in an inconvenient forum, that the venue of the Action is improper, or
that this guarantee may not be enforced in or by any of the above-named courts.
2
TYCO INTERNATIONAL LTD.
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
Accepted:
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ Keiji Torii
----------------------------------
Name: Keiji Torii
Title: Managing Director
