Exhibit 2.1
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AGREEMENT AND PLAN OF MERGER
AMONG
OPTA FOOD INGREDIENTS, INC.,
STAKE TECHNOLOGY LTD.
AND
STAKE ACQUISITION CORP.
Dated as of October 25, 2002
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TABLE OF CONTENTS
Page
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ARTICLE I THE OFFER............................................................2
1.1. The Offer............................................................2
1.2. Action by OPTA.......................................................4
1.3. OPTA Purchase Plan...................................................5
1.4. Directors............................................................5
ARTICLE II THE MERGER..........................................................7
2.1. The Merger...........................................................7
2.2. The Closing..........................................................7
2.3. Effective Time.......................................................7
2.4. Effect of the Merger.................................................7
2.5. Effect on Capital Stock..............................................7
2.6. Surrender of Securities; Funding of Payments; Stock Transfer Books...9
2.7. Certificate of Incorporation of Surviving Corporation...............10
2.8. Bylaws of the Surviving Corporation.................................11
2.9. Directors and Officers of the Surviving Corporation.................11
ARTICLE III REPRESENTATIONS AND WARRANTIES OF OPTA............................11
3.1. Corporate Organization and Authorization............................11
3.2. OPTA Capital Stock..................................................12
3.3. OPTA Subsidiaries...................................................12
3.4. Organization, Existence and Good Standing of OPTA Subsidiaries......12
3.5. Noncontravention; Consents..........................................12
3.6. OPTA Public Information.............................................13
3.7. No Material Adverse Change..........................................14
3.8. Legal Proceedings...................................................14
3.9. Material Contracts..................................................14
3.10. Subsequent Events...................................................14
3.11. Inventories.........................................................15
3.12. Tax Returns.........................................................15
3.13. Commissions and Fees................................................15
3.14. Employee Benefit Plans; Employment Matters..........................15
3.15. Compliance with Laws in General.....................................16
3.16. Intellectual Property...............................................16
3.17. Insurance...........................................................17
3.18. Properties..........................................................17
3.19. Environmental Matters...............................................18
3.20. Opinion of Financial Advisor........................................19
3.21. Offer Documents; Schedule 14D-9; Proxy Statement....................19
3.22. Management Letters..................................................19
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF ACQUISITION SUBSIDIARY AND
ACQUIROR...................................................................19
4.1. Organization, Existence and Capital Stock...........................19
4.2. Authorization of Agreement..........................................20
4.3. Non-Contravention; Consents.........................................20
4.4. Commissions and Fees................................................21
4.5. No Subsidiaries.....................................................21
4.6. No Prior Activities.................................................21
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4.7. Offer Documents; Proxy Statement....................................21
4.8. Financing Arrangements..............................................21
4.9. Legal Proceedings...................................................22
ARTICLE V COVENANTS...........................................................22
5.1. Preservation of Business............................................22
5.2. Acquisition Proposals; No Solicitation..............................23
5.3. Meetings of Stockholders; Proxy Statement...........................24
5.4. Access to Information; Confidentiality..............................25
5.5. Foreign Competition Laws............................................25
5.6. Accounting Methods..................................................25
5.7. Standstill..........................................................25
5.8. Public Disclosures..................................................26
5.9. Indemnification and Insurance.......................................26
5.10. Reasonable Best Efforts.............................................28
5.11. Notice of Subsequent Events.........................................28
5.12. Employment; Employee Welfare........................................29
5.13. Guarantee of Acquisition Subsidiary's Obligations...................30
ARTICLE VI CONDITIONS TO MERGER...............................................30
6.1. Mutual Conditions...................................................30
ARTICLE VII TERMINATION.......................................................30
7.1. Termination.........................................................30
7.2. Effect of Termination...............................................32
7.3. Procedure for Termination...........................................32
ARTICLE VIII MISCELLANEOUS....................................................33
8.1. Expenses............................................................33
8.2. Amendment...........................................................33
8.3. Extension; Waiver...................................................33
8.4. Nonsurvival of Representations and Warranties.......................33
8.5. Notices.............................................................33
8.6. Governing Law/Consent to Jurisdiction...............................34
8.7. Waiver of Jury Trial................................................35
8.8. Certain Definitions.................................................35
8.9. Captions............................................................35
8.10. Integration of Schedules............................................36
8.11. Entire Agreement; Assignment........................................36
8.12. Enforcement of the Agreement........................................36
8.13. Validity............................................................36
8.14. Counterparts........................................................36
8.15. No Rule of Construction.............................................36
8.16. Performance By Acquisition Subsidiary...............................36
Annex A Conditions to the Offer
Annex B Index of Defined Terms
Exhibit A Certificate of Incorporation of Surviving Corporation
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (the "Agreement"), made and entered into as
of the 25th day of October, 2002, by and among Stake Technology Ltd., a Canada
corporation ("ACQUIROR"), Stake Acquisition Corp., a Delaware corporation (the
"Acquisition Subsidiary"), and Opta Food Ingredients, Inc., a Delaware
corporation ("OPTA").
W I T N E S S E T H:
WHEREAS, the board of directors of each of ACQUIROR and Acquisition
Subsidiary have approved, and declared it to be advisable and in the best
interests of their respective stockholders, for Acquisition Subsidiary to
consummate the Offer (as defined below) and the Merger (as defined below), upon
the terms and subject to the conditions provided herein;
WHEREAS, the board of directors of OPTA has determined that it is in the
best interests of OPTA and its stockholders to approve Acquisition Subsidiary's
proposed acquisition and has resolved (i) to recommend that the stockholders of
OPTA accept the Offer (as defined below) and tender their shares (the "OPTA
Shares") of common stock, par value $.01 per share (the "OPTA Common Stock"),
pursuant to the Offer and (ii) to approve and declare advisable the merger (the
"Merger") of Acquisition Subsidiary with and into OPTA, with OPTA being the
surviving corporation (the "Surviving Corporation"), in accordance with the
General Corporation Law of the State of Delaware ("DGCL") following consummation
of the Offer;
WHEREAS, in furtherance of the foregoing, Acquisition Subsidiary will make
a cash tender offer (the "Offer") in compliance with Section 14(d)(1) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations promulgated thereunder, to acquire all of the issued and
outstanding OPTA Shares for $2.50 per OPTA Share (such amount, or any greater
amount per OPTA Share paid pursuant to the Offer, being hereinafter referred to
as the "Per Share Amount"), net to the seller in cash, upon the terms and
subject to the conditions of this Agreement; and that the Offer will be followed
by the Merger, pursuant to which each issued and outstanding OPTA Share not
owned by Acquisition Subsidiary or ACQUIROR (other than Dissenting Shares (as
defined below)) will be converted into the right to receive the Per Share
Amount, upon the terms and subject to the conditions provided herein;
WHEREAS, as an inducement and a condition to ACQUIROR and Acquisition
Subsidiary entering into this Agreement, contemporaneously with the execution
and delivery of this Agreement certain stockholders of OPTA have entered into a
Stockholders' Agreement with ACQUIROR and Acquisition Subsidiary (the
"Stockholders' Agreement") pursuant to which each such stockholder has, among
other things, agreed to tender its OPTA Shares in the Offer, in each case upon
the terms and subject to the conditions set forth in the Stockholders'
Agreement, and
WHEREAS, the board of directors of OPTA has received the opinion of Xxxxx,
Xxxxxxxx & Xxxx, Inc. ("AH&H") that the consideration to be received by the
holders of OPTA Shares pursuant to the Offer and the Merger is fair to such
holders from a financial point of view;
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NOW, THEREFORE, in consideration of the premises, and the mutual covenants
and agreements contained herein, the parties hereto do hereby agree as follows:
ARTICLE I
THE OFFER
1.1. The Offer.
(a) Not later than the first business day after the date of this
Agreement, ACQUIROR, Acquisition Subsidiary and OPTA will make a public
announcement of the Offer.
(b) Provided that this Agreement shall not have been terminated in
accordance with Section 7.1 and none of the events set forth in Annex A hereto
shall have occurred or be existing, Acquisition Subsidiary shall commence, and
ACQUIROR shall cause Acquisition Subsidiary to commence, within the meaning of
Rule 14d-2 under the Exchange Act, the Offer as promptly as practicable after
the date hereof, but in no event later than five (5) business days after the
initial public announcement of Acquisition Subsidiary's intention to commence
the Offer. The obligation of Acquisition Subsidiary to accept for payment and
pay for OPTA Shares tendered pursuant to the Offer shall be subject only to the
satisfaction of the conditions set forth in Annex A hereto (unless the failure
of any such condition was caused by any breach by ACQUIROR or Acquisition
Subsidiary of this Agreement in which case Acquisition Subsidiary shall be
obligated to accept for payment and pay for OPTA Shares tendered pursuant to the
Offer provided that such failure has been waived by OPTA), including the
condition that a number of OPTA Shares representing that number of OPTA Shares
which would equal more than fifty percent (50%) of the OPTA Shares then issued
and outstanding on a fully-diluted basis shall have been validly tendered and
not withdrawn prior to the expiration date of the Offer (the "Minimum
Condition"). Acquisition Subsidiary expressly reserves the right to waive any
such condition, to increase the Per Share Amount and to make any other changes
in the terms and conditions of the Offer; provided, however, that, without the
prior written consent of OPTA, Acquisition Subsidiary will not (i) decrease the
Per Share Amount, (ii) reduce the maximum number of OPTA Shares to be purchased
in the Offer, (iii) change the form of the consideration payable in the Offer,
(iv) add to, modify or supplement the conditions to the Offer set forth in Annex
A hereto, (v) extend the expiration date of the Offer beyond the twenty (20)
business days following the commencement thereof, except as expressly provided
herein, or (vi) make any other change in the terms or conditions of the Offer
which is adverse to the holders of OPTA Shares. The Per Share Amount shall,
subject to any applicable withholding of taxes, be net to each seller in cash,
upon the terms and subject to the conditions of the Offer. Subject to the terms
and conditions of the Offer, Acquisition Subsidiary shall, and ACQUIROR shall
cause Acquisition Subsidiary to, accept for payment and pay, as promptly as
practicable after expiration of the Offer, for all OPTA Shares validly tendered
and not withdrawn.
(c) On the date of commencement of the Offer, ACQUIROR and Acquisition
Subsidiary shall file with the Securities and Exchange Commission (the "SEC") a
Tender Offer Statement on Schedule TO, including all exhibits thereto (together
with all amendments and
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supplements thereto, the "Schedule TO"), with respect to the Offer. The Schedule
TO shall contain or shall incorporate by reference an offer to purchase (the
"Offer to Purchase") and the forms of related letters of transmittal (the
Schedule TO, the Offer to Purchase and such other documents, together with all
supplements and amendments thereto, being referred to herein collectively as the
"Offer Documents"). The Offer Documents will comply in all material respects
with the provisions of applicable federal securities laws and, on the date filed
with the SEC and on the date first published, sent or given to OPTA's
stockholders, shall not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading. ACQUIROR and Acquisition Subsidiary shall correct
promptly any information provided by any of them for use in the Offer Documents
which shall become false or misleading, and ACQUIROR and Acquisition Subsidiary
shall take all steps necessary to cause the Schedule TO, as so corrected, to be
filed with the SEC and the other Offer Documents, as so corrected, to be
disseminated to holders of OPTA Shares, in each case as and to the extent
required by applicable law. OPTA and its counsel shall be given the reasonable
opportunity to review and comment on the Offer Documents prior to the filing
thereof with the SEC. ACQUIROR and Acquisition Subsidiary shall provide OPTA and
its counsel with a copy of any written comments or telephonic notification of
any oral comments ACQUIROR or Acquisition Subsidiary may receive from the SEC or
its staff with respect to the Offer Documents promptly after the receipt
thereof. ACQUIROR and its counsel shall provide OPTA and its counsel with a
reasonable opportunity to participate in all communications with the SEC and its
staff, including any meetings and telephone conferences, relating to the Offer
Documents or this Agreement. In the event that ACQUIROR or Acquisition
Subsidiary receives any comments from the SEC or its staff with respect to the
Offer Documents, each shall use its reasonable best efforts to respond promptly
to such comments and take all other actions necessary to resolve the issues
raised therein.
(d) Subject to the terms and conditions hereof, the Offer shall remain
open until midnight, Eastern Time, on the date that is twenty (20) business days
after the Offer is commenced (within the meaning of Rule 14d-2 under the
Exchange Act); provided, however, that without the prior written consent of
OPTA, Acquisition Subsidiary may (i) extend the Offer, if at the scheduled
expiration date of the Offer any of the conditions set forth in Annex A shall
not have been satisfied or waived, for one (1) or more periods (none of which
shall exceed ten (10) business days) not to exceed thirty (30) business days in
the aggregate or, if earlier, until such time as such conditions are satisfied
or waived, (ii) extend the Offer for one (1) or more periods, not to exceed
thirty (30) business days in the aggregate, if required by any rule, regulation,
interpretation or position of the SEC or the staff thereof applicable to the
Offer, or (iii) extend the Offer on one (1) occasion for an aggregate period of
not more than ten (10) business days beyond the latest expiration date that
would otherwise be permitted under clause (i) or (ii) of this sentence if, on
such expiration date, there shall not have been tendered that number of OPTA
Shares which would equal more than ninety percent (90%) of the issued and
outstanding OPTA Shares; provided, however, that if Acquisition Subsidiary shall
extend the Offer pursuant to this clause (iii), Acquisition Subsidiary shall
waive during such extension all conditions set forth in Annex A other than the
Minimum Condition and the conditions set forth in paragraphs (a) or (d) in Annex
A. If on the initial scheduled expiration date of the Offer or
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any extension thereof, any applicable waiting period under any applicable
foreign laws regulating competition, antitrust, investment or exchange controls
has not expired or terminated prior to the expiration of the Offer (the "Foreign
Antitrust Condition"), Acquisition Subsidiary shall, if requested to do so by
OPTA, extend the expiration date of the Offer until a date not later than
January 15, 2003 and ACQUIROR shall use its best efforts to obtain all permits,
authorizations, consents, expiration or termination of waiting periods, and
approvals as may be required by any Governmental Entity. In addition, ACQUIROR
and Acquisition Subsidiary each agree that if all of the conditions set forth in
Annex A are not satisfied, including the satisfaction of the Minimum Condition,
on any expiration date of the Offer, then Acquisition Subsidiary shall, and
ACQUIROR shall cause Acquisition Subsidiary to, extend the Offer for one (1) or
more periods of not less than ten (10) business days if requested to do so by
OPTA, provided that OPTA shall be entitled to make only three (3) such requests.
1.2. Action by OPTA.
(a) OPTA hereby approves of and consents to the Offer and represents and
warrants that the board of directors of OPTA, at a meeting duly called and held,
has, subject to the terms and conditions set forth herein, unanimously (i)
determined that this Agreement and the transactions contemplated hereby,
including the Offer and the Merger, are fair to, and in the best interests of,
the stockholders of OPTA, (ii) approved the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby,
including, without limitation, the Offer and the Merger, in all respects, and
that such approval constitutes approval of the Offer, this Agreement and the
Merger for purposes of Section 203 of the DGCL, and (iii) resolved to recommend
that the stockholders of OPTA accept the Offer, tender their OPTA Shares to
Acquisition Subsidiary and approve and adopt this Agreement and the Merger;
provided, however, such approval and recommendation by the board of directors
may be withdrawn, modified, or amended if OPTA shall have received a Superior
Proposal (as defined in Section 5.2 hereof) or if the board of directors of OPTA
otherwise determines in good faith, after consultation with its financial and
legal advisors, that such action is necessary to comply with its fiduciary
duties. OPTA consents to the inclusion of such approval and recommendation in
the Offer Documents, subject to the foregoing proviso. OPTA further represents
and warrants that AH&H has delivered to the board of directors of OPTA its
written opinion dated October 16, 2002, that the cash consideration to be
received by the stockholders of OPTA pursuant to the Offer and the Merger is
fair from a financial point of view to such stockholders. OPTA has been
authorized by AH&H to permit the inclusion of the fairness opinion or a
reference thereto in the Offer Documents and the Schedule 14D-9 (as defined in
Section 1.2(b)), subject to the foregoing proviso.
(b) Contemporaneously with the commencement of the Offer as provided in
Section 1.1, OPTA hereby agrees to file with the SEC a
Solicitation/Recommendation Statement on Schedule 14D-9 pertaining to the Offer
(together with any amendments or supplements thereto, the "Schedule 14D-9")
containing the recommendations described in Section 1.2(a), and to mail promptly
the Schedule 14D-9 to the stockholders of OPTA. The Schedule 14D-9 will comply
in all material respects with the provisions of applicable federal securities
laws and, on the date filed with the SEC and on the date first published, sent
or given to OPTA's stockholders,
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shall not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except that no representation is made by OPTA with respect to
information supplied by ACQUIROR or Acquisition Subsidiary for inclusion in the
Schedule 14D-9. OPTA, ACQUIROR and Acquisition Subsidiary each agrees to correct
promptly any information provided by it for use in the Schedule 14D-9 if and to
the extent that it shall have become false or misleading in any material respect
and OPTA further agrees to take all steps necessary to cause the Schedule 14D-9
as so corrected to be filed with the SEC and disseminated to the holders of OPTA
Shares, in each case as and to the extent required by applicable federal
securities laws. ACQUIROR and its counsel shall be given a reasonable
opportunity to review the Schedule 14D-9 prior to filing with the SEC. In
addition, OPTA agrees to provide ACQUIROR and its counsel with any comments,
whether written or oral, that OPTA or its counsel receives from time to time
from the SEC or its staff with respect to the Schedule 14D-9 promptly after the
receipt of such comments or other communications.
(c) In connection with the Offer, OPTA will promptly furnish (or cause to
be furnished) to ACQUIROR and Acquisition Subsidiary mailing labels, security
position listings and any available listing or computer files containing the
names and addresses of the record holders of OPTA Shares as of a recent date and
shall furnish Acquisition Subsidiary with such additional information and
assistance (including, without limitation, updated lists of stockholders,
mailing labels and lists of securities positions) as Acquisition Subsidiary or
its agents may reasonably request in communicating the Offer to the record and
beneficial holders of OPTA Shares. Subject to the requirements of applicable
law, and except for such steps as are necessary to disseminate the Offer
Documents and any other documents necessary to consummate the Offer and the
Merger, ACQUIROR, Acquisition Subsidiary and their affiliates, associates,
agents, representatives and advisors shall use the information contained in any
such labels, listings and files only in connection with the Offer and the Merger
and, if this Agreement shall be terminated, will deliver to OPTA all copies of
such information, in whatever media, then in their possession.
1.3. OPTA Purchase Plan. Contingent upon the purchase of OPTA Shares by
Acquisition Subsidiary pursuant to the Offer, OPTA shall amend its Amended and
Restated Employee Stock Purchase Plan (the "OPTA Purchase Plan") so that as of
the Effective Time (i) the OPTA Purchase Plan will terminate and (ii) there will
be no outstanding rights of participants under the OPTA Purchase Plan. Prior to
the Effective Time, OPTA shall take all actions (including, if appropriate,
amending the terms of the OPTA Purchase Plan) that are necessary to give effect
to this Section 1.3.
1.4. Directors. Promptly upon the satisfaction of the Minimum Condition
and the purchase by Acquisition Subsidiary of such Shares tendered in
satisfaction of the Minimum Condition pursuant to the Offer, and from time to
time thereafter as Shares are acquired by Acquisition Subsidiary, ACQUIROR shall
be entitled to designate such number of directors of good repute, rounded down
to the nearest whole number, on the board of directors as will give ACQUIROR,
subject to compliance with Section 14(f) of the Exchange Act, representation on
the board of directors equal to at least that number of directors which equals
the product of the
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total number of the currently serving directors on the board of directors
(giving effect to the directors appointed or elected pursuant to this sentence
and including current directors serving as officers of OPTA) multiplied by the
percentage that the aggregate number of the OPTA Shares beneficially owned by
ACQUIROR or any affiliate of ACQUIROR (including for purposes of this Section
1.4 such of the OPTA Shares as are accepted for payment pursuant to the Offer,
but excluding OPTA Shares held by OPTA or any of its Subsidiaries) bears to the
number of OPTA Shares outstanding; provided, that ACQUIROR shall not be entitled
to designate a majority of the directors on the board of directors unless it and
its affiliates beneficially own a majority of the shares of OPTA Common Stock
outstanding. OPTA shall, upon request by ACQUIROR, promptly increase the size of
the board of directors or exercise its best efforts to secure the resignations
of such number of directors as is necessary to enable ACQUIROR's designees to be
elected to the board of directors in accordance with the terms of this Section
1.4 and shall use its best efforts to cause ACQUIROR's designees to be so
elected; provided, however, that, in the event that ACQUIROR's designees are
appointed or elected to the board of directors, until the Effective Time (as
defined in Section 2.3 hereof) (x) Xxxxxxx X. Xxxxxxxxxx and Xxxxx X. Xxxxxx
shall each continue to serve as a director of OPTA and (y) the board of
directors shall have at least two directors who are directors on the date hereof
and who are neither officers of OPTA nor designees, stockholders, affiliates or
associates (within the meaning of the Federal securities laws) of ACQUIROR (such
directors, the "Independent Directors"); provided, further, that if at any time
or from time to time fewer than two Independent Directors remain, the other
directors shall elect to the board of directors such number of persons who shall
be neither officers of OPTA nor designees, stockholders, affiliates or
associates of ACQUIROR so that the total of such persons and remaining
Independent Directors serving on the board of directors is at least two. Any
such person elected to the board of directors pursuant to the second proviso of
the preceding sentence shall be deemed to be an Independent Director for
purposes of this Agreement. Subject to applicable law, OPTA shall promptly take
all action necessary pursuant to Section 14(f) of the Exchange Act and Rule
14f-1 promulgated thereunder in order to fulfill its obligations under this
Section 1.4 and shall include in the Schedule 14D-9 mailed to stockholders
promptly after the commencement of the Offer (or an amendment thereof or an
information statement pursuant to Rule 14f-1 if ACQUIROR has not theretofore
designated directors) such information with respect to OPTA and its officers and
directors as is required under Section 14(f) and Rule 14f-1 in order to fulfill
its obligations under this Section 1.4. ACQUIROR will supply OPTA any
information with respect to itself and its nominees, officers, directors and
affiliates required by Section 14(f) and Rule 14f-1. Notwithstanding anything in
this Agreement to the contrary, following the time directors designated by
ACQUIROR constitute a majority of the board of directors and prior to the
Effective Time, the affirmative vote of a majority of the Independent Directors
shall be required to (i) amend or terminate on behalf of OPTA this Agreement,
(ii) exercise or waive any of OPTA's rights or remedies hereunder, (iii) extend
the time for performance of ACQUIROR's or Acquisition Subsidiary's obligations
hereunder or (iv) take any other action required to be taken by the board of
directors hereunder.
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ARTICLE II
THE MERGER
2.1. The Merger. Upon the terms and conditions set forth in this
Agreement, and in accordance with the DGCL, Acquisition Subsidiary shall be
merged with and into OPTA at the Effective Time (as defined in Section 2.3).
From and after the Effective Time, the separate corporate existence of
Acquisition Subsidiary shall cease and OPTA shall continue as the Surviving
Corporation under the name "Opta Food Ingredients, Inc." and shall succeed to
and assume all the rights and obligations of Acquisition Subsidiary and OPTA in
accordance with the DGCL.
2.2. The Closing. The closing of the Merger (the "Closing") will take
place at 10:00 a.m. Eastern Time at the offices of Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C. on the first business day after all of the conditions to
the obligations of the parties to consummate the Merger as set forth in Article
VI shall have been satisfied or waived, or on such other mutually agreeable
later date as soon as practicable after the satisfaction or waiver of all
conditions to the obligations of the parties to consummate the transactions
contemplated hereby as set forth in Article VI (the "Closing Date").
2.3. Effective Time. As promptly as practicable after the satisfaction or
waiver of the conditions set forth in Article VI, the parties hereto shall cause
the Merger to be consummated by filing a certificate of merger, or if
applicable, a certificate of ownership and 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 time of such filing,
or at such later time as ACQUIROR, Acquisition Subsidiary and OPTA shall agree
should be specified in the merger document filed, being the "Effective Time").
2.4. Effect of the Merger. From and after the Effective Time, the
Surviving Corporation shall possess all the property, rights, privileges, powers
and franchises and be subject to all of the restrictions, debts, liabilities,
disabilities, obligations and duties of OPTA and Acquisition Subsidiary, and the
Merger shall otherwise have the effects set forth in Section 259 of the DGCL.
2.5. Effect on Capital Stock. At the Effective Time, by virtue of the
Merger and without any further action on the part of the ACQUIROR, Acquisition
Subsidiary, OPTA, the Surviving Corporation or any holder of OPTA Shares or any
shares of capital stock of Acquisition Subsidiary:
(a) Acquisition Subsidiary Common Stock. Each share of capital stock of
Acquisition Subsidiary issued and outstanding immediately prior to the Effective
Time shall be converted into one fully paid and nonassessable share of common
stock of the Surviving Corporation.
(b) Cancellation of Stock. Each OPTA Share that is held by OPTA (as
treasury stock or otherwise) or held by ACQUIROR or Acquisition Subsidiary or by
any direct or indirect
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wholly-owned subsidiary of OPTA, ACQUIROR or Acquisition Subsidiary, shall
automatically be canceled and retired and shall cease to exist, and no cash or
other consideration shall be delivered in exchange therefor.
(c) Conversion of OPTA Shares. Each OPTA Share issued and outstanding
immediately prior to the Effective Time (other than OPTA Shares to be canceled
in accordance with Section 2.5(b) and Dissenting Shares) (as defined below)
shall be canceled, extinguished and converted into and become a right to receive
an amount equal to the Per Share Amount in cash, without interest (the "Merger
Consideration").
(d) Dissenting Shares. Notwithstanding anything in this Agreement to the
contrary, OPTA Shares outstanding immediately prior to the Effective Time held
by a holder (if any) who is entitled to demand, and who properly demands,
appraisal for such OPTA Shares in accordance with Section 262 of the DGCL
("Dissenting Shares") shall not be converted into a right to receive the Merger
Consideration unless such holder fails to perfect or otherwise loses such
holder's right to appraisal, if any. Such stockholders shall be entitled to
receive payment of the appraised value of such OPTA Shares held by them in
accordance with the provisions of such Section 262. If, after the Effective
Time, such holder fails to perfect or loses any such right to appraisal, such
OPTA Shares shall be treated as if they had been converted as of the Effective
Time into the right to receive the Merger Consideration pursuant to Section
2.5(c).
OPTA shall give ACQUIROR (i) prompt notice of any written demands for
appraisal or payment of the fair value of any OPTA Shares, withdrawals of such
demands, and any other instruments served pursuant to the DGCL received by OPTA
and (ii) the opportunity to direct all negotiations and proceedings with respect
to demands for appraisal under the DGCL. OPTA shall not voluntarily make any
payment with respect to any demands for appraisal and shall not, except with the
prior written consent of ACQUIROR, settle or offer to settle any such demands at
a price per OPTA Share greater than the Per Share Amount.
(e) Stock Options. Prior to the Effective Time, OPTA shall use its
commercially reasonable efforts to provide that each outstanding option to
purchase OPTA Shares (in each case, a "OPTA Option") granted under OPTA's 1992
Employee, Director and Consultant Stock Option Plan and its 1991 Non-Employee
Stock Option Plan (together, the "Stock Option Plans"), whether or not then
vested or exercisable, shall be exercisable for and entitle each holder thereof
to, a payment in cash from the Surviving Corporation, upon exercise, equal to
the product of (i) the number of OPTA Shares previously subject to such OPTA
Option and (ii) the excess, if any, of the Merger Consideration over the
exercise price per OPTA Share previously subject to such OPTA Option (such
product, the "Net Gains"). All applicable withholding taxes attributable to the
payments made hereunder shall be deducted from the amounts payable hereunder;
provided, however, that with respect to any person subject to Section 16 of the
Exchange Act, any such amount shall be paid as soon as practicable after the
first date payment can be made without liability to such person under Section
16(b) of the Exchange Act. Immediately prior to the Effective Time, ACQUIROR
shall provide or cause to be provided to OPTA the funds necessary to pay the
aggregate amount of Net Gains attributable to all OPTA Options that OPTA becomes
obligated to pay pursuant to this Section 2.5(e). OPTA shall make all payments
of Net Gains
8
required by this Section 2.5(e) immediately prior to the Effective Time,
although it shall deduct and withhold from the amounts otherwise payable
pursuant to this Section 2.5(e) such amounts as it is required to deduct and
withhold with respect to the making of such payments under the Internal Revenue
Code of 1986 (the "Code") or any other applicable state, local or federal tax
law or tax laws of foreign jurisdictions. To the extent that amounts are so
withheld by OPTA, the withheld amounts shall be treated for all purposes of this
Agreement as having been paid to the holder of the OPTA Option in respect of
which such withholding was made by OPTA. The Surviving Corporation will promptly
comply with all tax laws requiring it to forward such withheld taxes and/or pay
its own taxes to the responsible Governmental Entity, as well as reporting the
amount of income resulting from the payments made pursuant to this Section
2.5(e).
2.6. Surrender of Securities; Funding of Payments; Stock Transfer Books.
(a) Exchange Agent. Pursuant to an agreement reasonably satisfactory to
OPTA and ACQUIROR entered into prior to the Effective Time (the "Exchange Agent
Agreement"), ACQUIROR shall designate a bank or trust company reasonably
acceptable to OPTA to act as agent (the "Exchange Agent") for the purpose of
exchanging Certificates (as defined below) for the Merger Consideration. The
fees and expenses of the Exchange Agent shall be paid by ACQUIROR and ACQUIROR
shall indemnify the Exchange Agent and OPTA against actions taken by the
Exchange Agent pursuant hereto and pursuant to the Exchange Agent Agreement
other than for acts or omissions which constitute willful misconduct or gross
negligence, pursuant to the Exchange Agent Agreement.
(b) Payment Fund. Prior to the Effective Time, the ACQUIROR shall remit to
the Exchange Agent an amount equal to the aggregate Merger Consideration
(including the aggregate Merger Consideration for all Dissenting Shares)
necessary to pay the holders of the Certificates representing OPTA Shares
(collectively, the "Payment Fund"). ACQUIROR shall be entitled to receive from
the Exchange Agent any interest accrued on the Payment Fund.
(c) Letter of Transmittal; Procedure for Exchange. ACQUIROR agrees that,
as soon as practicable after the Effective Time and in no event later than five
(5) business days thereafter, the Surviving Corporation shall cause the
distribution to holders of record of OPTA Shares (as of the Effective Time) of a
form of letter of transmittal and other appropriate materials and instructions
for use in effecting the surrender of a certificate or certificates which
immediately prior to the Effective Time represented issued and outstanding OPTA
Shares (each, a "Certificate") for payment of the Merger Consideration therefor.
Upon surrender to the Exchange Agent of a Certificate, together with such letter
of transmittal, duly completed and validly executed in accordance with the
instructions thereto, the holder of such Certificate shall be entitled to
receive, and the Exchange Agent shall promptly pay to the holders out of the
Payment Fund, the Merger Consideration multiplied by the number of OPTA Shares
represented by such Certificate immediately prior to the Effective Time, less
any amounts required to be held pursuant to applicable tax laws. No interest
shall accrue or be paid on the Merger Consideration payable upon the surrender
of a Certificate for the benefit of the holder thereof. In the event any
Certificate shall have been lost or destroyed, the Exchange Agent, subject to
such other
9
conditions as the Surviving Corporation may reasonably impose (including the
posting of an indemnity bond or other surety in favor of the Surviving
Corporation with respect to the Certificate alleged to be lost or destroyed),
shall be authorized to accept an affidavit from the record holder of such
Certificate in a form reasonably satisfactory to the Surviving Corporation, and
upon surrender to the Exchange Agent of such affidavit, together with a letter
of transmittal duly completed and validly executed in accordance with the
instructions thereto, the Exchange Agent shall promptly pay to the record holder
of such Certificate out of the Payment Fund the Merger Consideration multiplied
by the number of OPTA Shares represented by such Certificates immediately prior
to the Effective Time, less any amounts required to be held pursuant to
applicable tax laws.
(d) Payment to Registered Holders. If any portion of the Merger
Consideration is to be paid to a person other than the person in whose name a
Certificate is registered, it shall be a condition to such payment that such
Certificate shall be surrendered and 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 such
payment in a name other than that of the registered holder of the certificate or
instrument surrendered or shall have established to the satisfaction of the
Surviving Corporation and the Exchange Agent that such tax either has been paid
or is not payable.
(e) Stock Transfer Books Closed. At the Effective Time, the stock transfer
books of OPTA shall be closed and there shall not be any further registration of
transfers of OPTA Shares thereafter on the records of OPTA.
(f) No Dividends. After the Effective Time, no dividends, interest or
other distributions shall be paid to the holder of any OPTA Shares.
(g) No Further Rights. After the Effective Time, holders of Certificates
shall cease to have any rights as stockholders of OPTA, except as provided
herein or under the DGCL. No interest shall be paid on any Merger Consideration
payable to former holders of OPTA Shares.
(h) Termination of Payment Fund. Promptly following the two-year
anniversary date of the Effective Date, the Exchange Agent shall return to the
Surviving Corporation all of the remaining Payment Fund, and the Exchange
Agent's duties shall terminate. Thereafter, each holder of a Certificate may
surrender the same to the Surviving Corporation and upon such surrender (subject
to applicable abandoned property, escheat or similar laws) shall receive the
applicable aggregate Merger Consideration. Notwithstanding the foregoing,
neither the Exchange Agent nor any party hereto shall be liable to any former
holder of OPTA Shares for any amount delivered to a public official pursuant to
applicable abandoned property, escheat or similar law.
2.7. Certificate of Incorporation of Surviving Corporation. At the
Effective Time, the restated certificate of incorporation of OPTA shall be
amended to read in its entirety as set forth in Exhibit A hereto. The restated
certificate of incorporation of OPTA, as so amended, shall be the certificate of
incorporation of the Surviving Corporation from and after the Effective Time
and, subject to the limitations set forth in Section 5.9, until thereafter
amended as provided
10
by law.
2.8. Bylaws of the Surviving Corporation. Subject to Section 5.9, the
bylaws of Acquisition Subsidiary shall be the bylaws of the Surviving
Corporation from and after the Effective Time of the Merger and until thereafter
altered, amended or repealed as provided by law.
2.9. Directors and Officers of the Surviving Corporation. The directors of
Acquisition Subsidiary immediately prior to the Effective Time shall be the
directors of the Surviving Corporation, each to hold office in accordance with
the certificate of incorporation and bylaws of the Surviving Corporation. The
officers of OPTA immediately prior to the Effective Time shall be the officers
of the Surviving Corporation, each to hold office in accordance with the laws of
the State of Delaware, the certificate of incorporation and bylaws of the
Surviving Corporation.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF OPTA
Except as set forth in the corresponding sections or subsections of the
OPTA Disclosure Schedule, dated this date, delivered by OPTA to ACQUIROR and
Acquisition Subsidiary (the "OPTA Disclosure Schedule"), OPTA represents and
warrants, as of the date hereof, as follows:
3.1. Corporate Organization and Authorization.
(a) OPTA is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. OPTA has all necessary
corporate power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the Offer, the Merger and the other
transactions contemplated hereby. The execution and delivery of this Agreement
by OPTA and the consummation by OPTA 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 OPTA are necessary to authorize this
Agreement or to consummate the Offer, the Merger and the other transactions
contemplated hereby (other than, with respect to the Merger, the approval and
adoption of this Agreement by the affirmative vote of a majority of the then
outstanding OPTA Shares, if and to the extent required by applicable law, and
the filing and recordation of appropriate merger documents as required by the
DGCL). This Agreement has been duly and validly executed and delivered by OPTA
and, assuming the due authorization, execution and delivery by ACQUIROR and
Acquisition Subsidiary, constitutes a legal, valid and binding obligation of
OPTA enforceable against OPTA in accordance with its terms.
(b) (i) OPTA has all requisite governmental authorizations, certificates,
licenses, consents and approvals required to carry on its business as presently
conducted, except where the failure to possess such authorizations,
certificates, licenses, consents and approvals would not reasonably be expected
to have a Material Adverse Effect (as defined below). OPTA is duly qualified to
do business as a foreign corporation and is in good standing in each
jurisdiction
11
where the character of the property owned or leased by it or the nature of the
activities conducted by it makes such qualification necessary, except where the
failure to be so qualified and in good standing would not reasonably be expected
to have a Material Adverse Effect (as defined below).
(ii) For purposes of this Agreement, "Material Adverse Effect" shall
mean with respect to OPTA, any fact, event, change, circumstance or effect that
is materially adverse to the business, financial condition or results of
operations of OPTA and the OPTA Subsidiaries, taken as a whole, other than any
fact, event, change, circumstance or effect (i) relating to the industries for
OPTA's products, the general economy, domestic or foreign securities markets or
political or regulatory events or changes, (ii) arising out of or resulting from
entering into this Agreement or the consummation of the transactions
contemplated hereby or the announcement thereof, (iii) arising out of or
resulting from the continuation of any existing unfavorable business or
financial trend or (iv) arising out of or resulting from any fact, event,
change, circumstance or effect that has been disclosed to ACQUIROR.
3.2. OPTA Capital Stock. The authorized capital stock of OPTA consists of
(i) 15,000,000 shares of OPTA Common Stock, of which 10,887,577 shares were
issued and outstanding as of the date of this Agreement, and of which 416,160
shares are issued and held as treasury shares as of the date of this Agreement
and (ii) 3,000,000 shares of preferred stock, par value $.01 per share, none of
which are issued and outstanding. All of the issued and outstanding OPTA Shares
are duly and validly issued, fully paid and nonassessable. Except as set forth
in Section 3.2 of the OPTA Disclosure Schedule or otherwise disclosed in OPTA's
public filings, there are no options, warrants, or similar rights granted by
OPTA or any other agreements to which OPTA is a party providing for the issuance
or sale by it of any additional securities which would remain in effect after
the Effective Time.
3.3. OPTA Subsidiaries. Section 3.3 of the OPTA Disclosure Schedule sets
forth a list of all subsidiaries of OPTA (individually, an "OPTA Subsidiary,"
and collectively, the "OPTA Subsidiaries") and their respective jurisdictions of
incorporation.
3.4. Organization, Existence and Good Standing of OPTA Subsidiaries.
Except as set forth in Section 3.4 of the OPTA Disclosure Schedule, each OPTA
Subsidiary is a corporation duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of incorporation and has
all necessary corporate power to own its properties and assets and to carry on
its business as presently conducted, except where the failure to be so
organized, existing or in good standing, or to have such power, would not
reasonably be expected to have a Material Adverse Effect.
3.5. Noncontravention; Consents.
(a) Neither the execution nor delivery of this Agreement nor the
consummation of the transactions contemplated hereby does or will:
(i) violate, conflict with, or constitute a default under, the
restated certificate of incorporation, as amended, or bylaws, as amended, of
OPTA; or
12
(ii) assuming that all consents, approvals, orders or authorizations
contemplated by subsection (b) below have been obtained and all filings
described therein have been made, (A) violate any statute or law or any rule,
regulation, order, injunction, judgment or decree of any court or Governmental
Entity to which OPTA or any of its assets or properties is subject, which
violation has or would reasonably be expected to have a Material Adverse Effect
or (B) except as set forth in Section 3.5(a) of the OPTA Disclosure Schedule,
result in a violation or breach of, or constitute a default under, or give rise
to any right of termination, acceleration or modification of, any note, bond,
mortgage, indenture, deed of trust, license, lease or other agreement,
instrument or obligation to which OPTA is a party or by which it or any of its
assets or properties is bound, which default, breach or other action has or
would reasonably be expected to have a Material Adverse Effect.
(b) Except for the expiration or termination of the applicable waiting
period under any applicable foreign competition laws, and except for such
filings, permits, authorizations, consents and approvals as may be required
under, and other applicable requirements of, the Securities Act, the Exchange
Act, state securities or "Blue Sky" laws or regulations (the "Blue Sky laws") or
any exchange upon which OPTA Shares are listed, and except for the filing and
recordation of a certificate of merger, or if applicable, a certificate of
ownership and merger, as required by the DGCL, there is no other consent,
approval, order or authorization of, or filing with, or any permit from, or any
notice to, any court or Governmental Entity required to be obtained by OPTA in
connection with the execution of this Agreement and the consummation of the
transactions contemplated hereby, the failure of which to obtain would
reasonably be expected to have a Material Adverse Effect.
3.6. OPTA Public Information.
(a) OPTA has filed all forms, reports, schedules, statements and other
documents required to be filed by it since January 1, 2001 under the Securities
Act of 1933, as amended (the "Securities Act"), or the Exchange Act (together
with all subsequent forms, reports, schedules, statements and other documents
filed by OPTA with the SEC prior to the Effective Time, collectively, the "OPTA
Public Reports"). As of their respective dates, the OPTA Public Reports (x) did
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading and (y)
complied as to form in all material respects with the applicable laws and rules
and regulations of the SEC.
(b) The consolidated financial statements of OPTA (including any footnotes
thereto) contained in the OPTA Public Reports have been prepared from, and are
in accordance with, the books and records of OPTA and have been prepared in
accordance with the published rules and regulations of the SEC and generally
accepted accounting principles applied on a consistent basis during the periods
involved (except as may be otherwise indicated therein) and fairly present in
all material respects the consolidated financial position of OPTA and OPTA
Subsidiaries as of the dates thereof and the consolidated results of operations,
changes in stockholders' equity and cash flows of OPTA and OPTA Subsidiaries for
the periods then ended, except that any unaudited financial statements contained
therein are subject to normal and recurring year-end
13
adjustments. The consolidated balance sheet of OPTA at June 30, 2002 included in
the OPTA Public Reports is herein sometimes referred to as the "OPTA Balance
Sheet."
3.7. No Material Adverse Change. Since June 30, 2002 and on or prior
to the date hereof, there has been no change, event, loss or occurrence
affecting OPTA or any of the OPTA Subsidiaries that has had or would reasonably
be expected to have a Material Adverse Effect.
3.8. Legal Proceedings. Except as set forth in Section 3.8 of the
OPTA Disclosure Schedule or described in the OPTA Public Reports, as of the date
of this Agreement, OPTA has no knowledge of any material pending or material
threatened litigation, governmental investigation or other proceeding against
OPTA or relating directly to the transactions contemplated by this Agreement
which, if resolved adversely to OPTA, would reasonably be expected to have a
Material Adverse Effect.
3.9. Material Contracts. OPTA has made available to ACQUIROR true
copies of all written contracts of OPTA and the OPTA Subsidiaries that are
material to OPTA and the OPTA Subsidiaries, taken as a whole, entered into in
connection with and related to the business and operations of OPTA and the OPTA
Subsidiaries or has otherwise disclosed such material written contracts in
Section 3.9 of the OPTA Disclosure Schedule or in the OPTA Public Reports. To
the knowledge of OPTA, all of such written contracts are valid, binding and
enforceable in accordance with their terms (assuming the other parties thereto
are bound) and are in full force and effect, except where such invalidity or
unenforceability would not reasonably be expected to have a Material Adverse
Effect. To the knowledge of OPTA, no default or alleged default by OPTA or the
OPTA Subsidiaries exists under such material written contracts, except for
defaults or alleged defaults which would not reasonably be expected to have a
Material Adverse Effect.
3.10. Subsequent Events. Except as set forth in Section 3.10 of the
OPTA Disclosure Schedule or disclosed in the OPTA Public Reports, OPTA has not,
since June 30, 2002:
(a) Discharged or satisfied any material lien or encumbrance, or
paid or satisfied any material obligation or liability other than any lien,
encumbrance, obligation or liability (i) discharged, paid or satisfied in the
ordinary course of business, (ii) shown or reflected on the OPTA Balance Sheet,
(iii) incurred since the date of the OPTA Balance Sheet in the ordinary course
of business or (iv) the discharge or satisfaction of which would not reasonably
be expected to have a Material Adverse Effect.
(b) Increased or established any reserve for Taxes (as defined in
Section 3.12) or any other liability on its books or otherwise provided therefor
which would reasonably be expected to have a Material Adverse Effect, except as
may have been required due to income or operations of OPTA since the date of the
OPTA Balance Sheet.
(c) Mortgaged, pledged or subjected to any lien, charge or other
encumbrance any of the assets, tangible or intangible, which assets are material
to the consolidated business or financial condition of OPTA.
14
(d) Sold or transferred any of the assets material to the consolidated
business of OPTA, canceled any material debts or claims or waived any material
rights, except in the ordinary course of business.
(e) Except for this Agreement and any other agreement executed and
delivered pursuant to this Agreement, entered into any material transaction
other than in the ordinary course of business or permitted under this Agreement.
(f) Issued any stock, bonds or other securities, other than stock options
granted to employees, directors or consultants of OPTA or warrants granted to
third parties or shares of common stock issuable pursuant thereto or pursuant to
any other contract or agreement outstanding as of the date hereof, all of which
are disclosed in Section 3.2 of the OPTA Disclosure Schedule.
3.11. Inventories. All inventories reflected on the OPTA Balance Sheet
were as of the date thereof carried at amounts which reflect valuations pursuant
to OPTA's normal inventory valuation policy of stating inventory as the lower of
cost or market on a first-in-first-out basis, all in accordance with GAAP.
Except as set forth in Section 3.11 of the OPTA Disclosure Schedule, since the
date of the OPTA Balance Sheet, no inventory items have been sold or disposed of
except in the ordinary course of business.
3.12. Tax Returns. OPTA has filed all tax returns required to be filed by
it or requests for extensions to file such returns or reports have been timely
filed and granted and have not expired, except to the extent that such failures
to file would not reasonably be expected to have a Material Adverse Effect.
Except as disclosed in Section 3.12 of the OPTA Disclosure Schedule, OPTA has
made all payments shown as due on such returns. Except as disclosed in Section
3.12 of the OPTA Disclosure Schedule, OPTA has not been notified that any tax
returns of OPTA are currently under audit by the Internal Revenue Service or any
state or local tax agency. Except as set forth in Section 3.12 of the OPTA
Disclosure Schedule, no agreements have been made by OPTA for the extension of
time or the waiver of the statute of limitations for the assessment or payment
of any Taxes. As used herein, the term "Taxes" means all federal, state, local
and foreign taxes, including, without limitation, income, profits, franchise,
employment, transfer, withholding, property, excise, sales and use taxes
(including interest and penalties thereon and additions thereto).
3.13. Commissions and Fees. Except for fees payable to AH&H, there are no
valid claims for brokerage commissions or finder's or similar fees in connection
with the transactions contemplated by this Agreement.
3.14. Employee Benefit Plans; Employment Matters.
(a) Except as set forth in Section 3.14(a) of the OPTA Disclosure Schedule
or in the OPTA Public Reports, OPTA has not established and does not maintain
and is not obligated to make contributions to or under or otherwise participate
in (i) any bonus or other type of incentive compensation plan or program, (ii)
any pension, profit-sharing or other retirement plan or program, or (iii) any
other employee benefit plan, fund or program described in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"). Except as
set forth in Section
15
3.14(a) of the OPTA Disclosure Schedule, all such plans listed in Section
3.14(a) of the OPTA Disclosure Schedule (individually, a "Plan" and
collectively, the "Plans") have been operated and administered in accordance
with ERISA and the Code, except where such failure to operate and administer
would not reasonably be expected to have a Material Adverse Effect. To the
knowledge of OPTA, there have been no prohibited transactions (as defined in
Section 4975 of the Code) with respect to any Plan and no transaction which
could be reasonably expected to give rise to any tax or penalty under Section
4975 of the Code or Section 502 of ERISA, except as would not reasonably be
expected to have a Material Adverse Effect. No "reportable event" (as defined in
ERISA) which requires the filing of a report thereof with the Pension Benefit
Guaranty Corporation has occurred with respect to any of the Plans which is
subject to Title IV of ERISA, except as would not reasonably be expected to have
a Material Adverse Effect. OPTA is not obligated in any way to make any
contributions to any multi-employer plan within the meaning of the
Multi-Employer Pension Plan Amendments Act of 1980, as amended.
(b) There are no liens on the assets of any Plan.
(c) There are no withdrawal liabilities of OPTA or any OPTA Subsidiary for
any multiemployer pension plan.
(d) Except as set forth in Section 3.14(d) of the OPTA Disclosure
Schedule, OPTA is not a party to any oral or written union, guild or collective
bargaining agreement which agreement covers employees in the United States, and,
to the knowledge of OPTA, no union organizing activity is currently being
conducted with respect to any of its employees.
(e) Section 3.14(e) of the OPTA Disclosure Schedule contains a list of
current employees of OPTA, which, as to the number of employees, dates of their
hire and salary information, is true and complete in all material respects.
3.15. Compliance with Laws in General. OPTA and the OPTA Subsidiaries hold
all permits, licenses, variances, exemptions, orders, registrations and
approvals of all Governmental Entities which are required for the operation of
the business of OPTA and the OPTA Subsidiaries and that are material to OPTA and
the OPTA Subsidiaries, taken as a whole (collectively, the "OPTA Permits"),
except where the failure to have any such OPTA Permits would not reasonably be
expected to have a Material Adverse Effect. OPTA and the OPTA Subsidiaries are
in material compliance with the terms of the OPTA Permits and all applicable
statutes, laws, ordinances, rules and regulations, except where the failure to
be in compliance would not reasonably be expected to have a Material Adverse
Effect.
3.16. Intellectual Property.
(a) Except as set forth in Section 3.16(a) of the OPTA Disclosure
Schedule, to the knowledge of OPTA, OPTA owns, or is licensed or otherwise
entitled to exercise all rights under or with respect to all patents,
trademarks, trade names, service marks, copyrights, and any applications
therefor, and trade secrets employed in the operation of OPTA's business as
currently conducted (the "Intellectual Property Rights"), except where the
failure to so own, or be licensed or otherwise entitled to exercise all rights
under or with respect to such Intellectual
16
Property Rights would not reasonably be expected to have a Material Adverse
Effect. To the knowledge of OPTA, Section 3.16(a) of the OPTA Disclosure
Schedule lists all material OPTA patents, registered copyrights, registered
trademarks, trade names and registered service marks, and any applications
therefor (the "OPTA Intellectual Property Rights"). Section 3.16(a) of the OPTA
Disclosure Schedule lists all third party patents, registered copyrights,
registered trademarks, trade names and registered service marks which are
incorporated in or form a part of OPTA products. To the knowledge of OPTA,
Section 3.16(a) of the OPTA Disclosure Schedule lists all material licenses,
sublicenses and other agreements as to which OPTA is a party and pursuant to
which OPTA is authorized to use third party patents, registered copyrights,
registered trademarks, trade names and registered service marks (the "Material
IP Agreements").
(b) Except as set forth in Section 3.16(b) of the OPTA Disclosure
Schedule, OPTA has not received written notice of any claims with respect to the
OPTA Intellectual Property Rights, and, to the knowledge of OPTA, there are no
claims (i) to the effect that any business of OPTA as currently conducted
infringes on or misappropriates any patents, copyrights, trademarks, trade names
or service marks in which a third party has any rights or (ii) challenging the
ownership, validity or effectiveness of any of the OPTA Intellectual Property
Rights, in either case, which claims would reasonably be expected to have a
Material Adverse Effect. To the knowledge of OPTA, except as set forth in
Section 3.16(c) of the OPTA Disclosure Schedule, no OPTA Intellectual Property
Right is subject to any material lien, encumbrance or other secured interest.
(c) OPTA is not, and as a result of the execution and delivery of this
Agreement or the performance of its obligations hereunder will not be, in
violation of any Material IP Agreement, except such violations as would not
reasonably be expected to have a Material Adverse Effect. Except as set forth in
Section 3.16(c) of the OPTA Disclosure Schedule and except for those OPTA
Intellectual Property Rights which are in the public domain, OPTA is the owner
or licensee of, with all right, title and interest in and to (free and clear of
any liens or encumbrances), the OPTA Intellectual Property Rights, and rights in
respect thereof, and is not contractually obligated to pay any compensation with
respect to those rights to any third party.
3.17. Insurance. Section 3.17 of the OPTA Disclosure Schedule sets forth a
complete and correct list of all material insurance policies and programs (other
than welfare benefit insurance policies and programs), including self-insurance
programs, maintained by OPTA. 3.18. Properties. Section 3.18 of the OPTA
Disclosure Schedule sets forth a list of all material real property owned by
OPTA. Section 3.18 of the OPTA Disclosure Schedule sets forth by location all
material real property used or occupied by OPTA that is held under lease or
sub-lease by OPTA (the "Leases"). Except for the properties subject to the
Leases and as set forth in Section 3.18 of the OPTA Disclosure Schedule, OPTA
has good title, free and clear of all liens, mortgages, claims, restrictions,
pledges, or other claims or encumbrances to all of its material tangible
properties, except for (i) liens for current Taxes not yet due and payable, (ii)
assets disposed of since the date of the OPTA Balance Sheet in the ordinary
course of business, (iii) liens imposed by law and incurred in the ordinary
course of business for obligations not yet due to carriers, warehousemen,
laborers and materialmen, (iv) liens in respect of pledges or
17
deposits under workers' compensation laws, and (v) liens and encumbrances which
do not affect marketability of title or the use being made of such properties or
immaterial title defects, all of which would not reasonably be expected to have
a Material Adverse Effect. The Leases are in full force and effect, and OPTA
holds a valid existing leasehold interest under each of the Leases on the terms
set forth in such Leases, except to the extent that the failure to be in full
force and effect or the failure to hold a valid leasehold interest would not
reasonably be expected to have a Material Adverse Effect. OPTA has made
available to ACQUIROR copies of each of the Leases, and none of the Leases has
been modified, except to the extent such modifications would not reasonably be
expected to have a Material Adverse Effect.
3.19. Environmental Matters.
(a) Neither OPTA nor any OPTA Subsidiary has received written notice from
any Governmental Entity alleging that (i) OPTA or any OPTA Subsidiary is in
material violation of any applicable Environmental Law (as defined below), which
violation is unresolved and would, if established, reasonably be expected to
have a Material Adverse Effect; or (ii) OPTA or any OPTA Subsidiary is obligated
to undertake, or to bear all or any portion of the cost of, any Cleanup (as
defined below), which would reasonably be expected to have a Material Adverse
Effect. OPTA and all OPTA Subsidiaries are and have been in material compliance
with all applicable Environmental Laws, except for such noncompliance that would
not reasonably be expected to have a Material Adverse Effect.
(b) To the knowledge of OPTA, there have been no releases, spills or
discharges of Regulated Materials (as hereinafter defined) on or underneath any
location which is owned, leased or otherwise operated by OPTA (the
"Properties"), which release, spills or discharges would reasonably be expected
to have a Material Adverse Effect. There are no pending or, to the knowledge of
OPTA, threatened claims, liens or encumbrances resulting from Environmental Laws
with respect to any of the OPTA Properties, which claims, liens or encumbrances
would reasonably be expected to have a Material Adverse Effect.
(c) Section 3.19(c) of the OPTA Disclosure Schedule sets forth a complete
list of all environmental reports and studies prepared for OPTA with respect to
any of its Properties.
(d) For purposes of this Agreement the following terms shall have the
following meanings:
"Cleanup" means all actions required by any Environmental Law to clean up,
remove, treat or remediate Regulated Materials.
"Environmental Laws" shall mean all federal, state, local laws, statutes,
ordinances, codes, rules and regulations related to the protection of the
environment or the handling, use, recycling, generation, treatment, storage,
transportation or disposal of Regulated Materials.
"Regulated Materials" shall mean any pollutants; or toxic, hazardous or
extremely hazardous substances, materials or wastes, regulated by any
Environmental Laws.
18
3.20. Opinion of Financial Advisor. OPTA has received the opinion of AH&H
dated October 16, 2002 to the effect that, as of the date hereof, the Per Share
Amount to be received by the stockholders of OPTA is fair to the holders of OPTA
Shares from a financial point of view and such opinion has not been withdrawn. A
written copy of such opinion has been delivered by OPTA to ACQUIROR.
3.21. Offer Documents; Schedule 14D-9; Proxy Statement. The information
supplied by OPTA for inclusion in the Schedule 14D-9 and the Offer Documents
shall not, at the respective times the Schedule 14D-9 or the Offer Documents are
filed with the SEC or are first published, sent or given to stockholders of
OPTA, as the case may be, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements made therein, in light of the circumstances under
which they are made, not misleading. The information supplied by OPTA for
inclusion in the proxy statement to be sent to the stockholders of OPTA in
connection with the Stockholders' Meeting or the information statement to be
sent to such stockholders, as appropriate (such proxy statement or information
statement, as amended or supplemented, being referred to herein as the "Proxy
Statement"), shall not, at the date the Proxy Statement (or any amendment or
supplement thereto) is first mailed to stockholders of OPTA, at the time of the
Stockholders' Meeting and at the Effective Time, be false or misleading with
respect to any material fact, or omit to state any material fact required to be
stated therein or necessary in order to make the statements made therein, in the
light of the circumstances under which they are made, not misleading.
3.22. Management Letters. Since January 1, 2000, OPTA has received no
management letters from its independent public accountants.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ACQUISITION SUBSIDIARY
AND ACQUIROR
Each of Acquisition Subsidiary and ACQUIROR, jointly and severally,
represent and warrant to OPTA, as of the date hereof, as follows:
4.1. Organization, Existence and Capital Stock.
(a) ACQUIROR is a corporation duly organized, validly existing and in good
standing under the laws of Canada. ACQUIROR has all necessary corporate power to
own its properties and assets and to carry on its business as presently
conducted. ACQUIROR is duly qualified to do business and is in good standing in
all jurisdictions in which the character of the property owned, leased or
operated or the nature of the business transacted by it makes qualification
necessary.
(b) Acquisition Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all necessary corporate power to own its properties and assets and to carry on
its business as presently conducted. Acquisition Subsidiary's authorized capital
consists of 1,000 shares of common stock, par value $1.00 per share, all of
which
19
shares have been duly authorized and validly issued and registered in the name
of ACQUIROR and are fully paid and nonassessable. As of the date hereof, there
are not any outstanding or authorized subscriptions, options, warrants, calls,
rights, commitments or any other agreements of any character obligating
Acquisition Subsidiary to issue any additional shares of capital stock of
Acquisition Subsidiary or any other securities convertible into or evidencing
the right to subscribe for any such shares.
4.2. Authorization of Agreement. Each of ACQUIROR and Acquisition
Subsidiary has all necessary corporate power and authority to execute and
deliver this Agreement and each other document, agreement, certificate and
instrument required hereby to be executed and delivered by it at the Closing, to
perform its obligations hereunder and thereunder and to consummate the Offer,
the Merger and the other transactions contemplated hereby and thereby. The
execution and delivery by each of ACQUIROR and Acquisition Subsidiary of this
Agreement and each other document, agreement, certificate and instrument
required hereby to be executed and delivered by ACQUIROR and Acquisition
Subsidiary at the Closing and the performance of their respective obligations
hereunder and thereunder have been duly and validly authorized by the board of
directors of each of ACQUIROR and Acquisition Subsidiary and by ACQUIROR as the
sole stockholder of Acquisition Subsidiary. Except for filing of the certificate
of merger, or, if applicable, a certificate of ownership and merger, no other
corporate proceedings on the part of ACQUIROR or Acquisition Subsidiary are
necessary to authorize the consummation of the transactions contemplated hereby.
This Agreement has been duly executed and delivered by each of ACQUIROR and
Acquisition Subsidiary and, assuming due authorization, execution and delivery
hereof by OPTA, constitutes a legal, valid and binding obligation of each of
ACQUIROR and Acquisition Subsidiary, enforceable against each of ACQUIROR and
Acquisition Subsidiary in accordance with its terms.
4.3. Non-Contravention; Consents.
(a) Neither the execution or delivery of this Agreement or any other
document, agreement, certificate or instrument nor the consummation of the
transactions contemplated hereby or thereby does or will:
(i) violate, conflict with, or constitute a default under, the
certificate of incorporation or other charter document, as amended, or bylaws,
as amended, of ACQUIROR or Acquisition Subsidiary; or
(ii) assuming that all consents, approvals, orders or authorizations
contemplated by subsection (b) below have been obtained and all filings
described therein have been made, (A) violate any statute or law or any rule,
regulation, order, writ, injunction, judgment or decree of any court or
Governmental Entity to which ACQUIROR or Acquisition Subsidiary or any of their
assets or properties are subject or (B) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default under, or
give rise to any right of termination, acceleration or modification of, any
note, bond, mortgage, indenture, deed of trust, license, lease or other
agreement, instrument or obligation to which ACQUIROR or
20
Acquisition Subsidiary is a party or by which their or any of their assets or
properties may be bound.
(b) Except for the expiration or termination of the applicable waiting
period under any applicable foreign competition laws, and except for such
filings, permits, authorizations, consents and approvals as may be required
under, and other applicable requirements of, the Securities Act, the Exchange
Act and the Blue Sky laws, and except for the filing and recordation of a
certificate of merger, or, if applicable, a certificate of ownership and merger,
as required by the DGCL, there is no other consent, approval, order or
authorization of, or filing with, or any permit from, or any notice to, any
court or Governmental Entity required to be obtained by ACQUIROR or Acquisition
Subsidiary in connection with the execution of this Agreement and the
consummation of the transactions contemplated hereby.
4.4. Commissions and Fees. There are no claims for brokerage commissions,
investment bankers' fees or finder's fees owed by ACQUIROR or Acquisition
Subsidiary in connection with the transaction contemplated by this Agreement.
4.5. No Subsidiaries. Acquisition Subsidiary does not own stock in, and
does not control directly or indirectly, any other corporation, association or
business organization. Acquisition Subsidiary is not a party to any joint
venture or partnership.
4.6. No Prior Activities. Other than the obligations created under this
Agreement, Acquisition Subsidiary has neither incurred any obligation or
liability nor engaged in any business activities of any type or kind whatsoever,
and is not obligated under any contracts, claims, leases, liabilities, loans or
otherwise.
4.7. Offer Documents; Proxy Statement. The information supplied by
ACQUIROR and Acquisition Subsidiary for inclusion in the Offer Documents will
not, at the time the Offer Documents are filed with the SEC or are first
published, sent or given to stockholders of OPTA, as the case may be, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements made
therein, in light of the circumstances under which they are made, not
misleading. The information supplied by ACQUIROR and Acquisition Subsidiary for
inclusion in the Proxy Statement will not, on the date the Proxy Statement (or
any amendment or supplement thereto) is first mailed to stockholders of OPTA, at
the time of the Stockholders' Meeting or at the Effective Time, contain any
statement which, at such time and in light of the circumstances under which it
is made, is false or misleading with respect to any material fact, or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not false or misleading.
4.8. Financing Arrangements. ACQUIROR has or will have, through its own
resources and through its wholly-owned Subsidiary, SunRich Food Group, Inc.
("SunRich"), sufficient funds available to irrevocably provide the amount of
cash necessary to accept for payment and pay for all OPTA Shares eligible to be
tendered pursuant to the Offer, to pay for the aggregate amount of the Net Gains
pursuant to Section 2.5(e), to permit the Surviving Corporation to pay the
aggregate Merger Consideration, and to pay all related fees and expenses.
ACQUIROR has received and furnished a copy to OPTA of a commitment letter from
Bank of
21
Montreal and Xxxxxx Trust and Savings Bank (collectively, the "Lenders") dated
October 24, 2002 pursuant to which the Lenders have committed, subject to the
terms and conditions thereof, to enter into a tender facility (the "Tender
Facility") with SunRich and/or Acquisition Subsidiary to provide financing in
the amount of up to $17,000,000, and ACQUIROR intends to furnish the balance of
the necessary funds itself. As of the date hereof, ACQUIROR knows of no facts or
circumstances that are reasonably likely to result in any of the conditions set
forth in the Tender Facility not being satisfied. Upon consummation of the Offer
in accordance with the terms hereof and at the Effective Time, ACQUIROR will
make such funds available, and will cause SunRich to make such funds available,
to Acquisition Subsidiary as are necessary to enable Acquisition Subsidiary to
fulfill its obligations hereunder.
4.9. Legal Proceedings. As of the date of this Agreement, there is no
litigation, governmental investigation or other proceeding against either
ACQUIROR or Acquisition Subsidiary, or to the knowledge of either ACQUIROR nor
Acquisition Subsidiary, pending or threatened, relating to this Agreement or the
transactions contemplated hereby.
ARTICLE V
COVENANTS
5.1. Preservation of Business. Except as contemplated by this Agreement or
as set forth in Section 5.1 of the OPTA Disclosure Schedule, during the period
from the date of this Agreement to the Effective Time, OPTA and the OPTA
Subsidiaries shall in all material respects conduct their operations according
to their ordinary and usual course of business and consistent in all material
respects with past practice, and OPTA shall use commercially reasonable efforts
to preserve intact in all material respects the business organization of OPTA,
keep available the services of its current officers, and preserve in all
material respects the goodwill of those having advantageous business
relationships with it and the OPTA Subsidiaries. Without limiting the generality
of the foregoing, and except as contemplated by this Agreement, as set forth in
the OPTA Disclosure Schedule or as disclosed in writing to ACQUIROR, prior to
the Effective Time, neither OPTA nor any of the OPTA Subsidiaries, as the case
may be, will, without the prior written consent of ACQUIROR:
(a) issue, sell or pledge, or authorize or propose the issuance, sale or
pledge of, additional shares of its capital stock or securities convertible into
any such shares, or any rights, warrants or options to acquire any such shares
or other convertible securities, other than OPTA Shares, OPTA Options, preferred
stock, treasury shares, rights, warrants or options, each as may be issuable
pursuant to the OPTA Options;
(b) split, combine, subdivide, reclassify or redeem, or purchase or
otherwise acquire, or propose to do any of the foregoing with respect to, any of
its outstanding securities;
(c) declare or pay any dividend or distribution on the OPTA Shares;
(d) subject to the fiduciary duties of the board of directors of OPTA and
except pursuant to agreements or arrangements in effect on the date hereof,
purchase or otherwise acquire, sell or otherwise dispose of or encumber (or
enter into any agreement to so purchase or otherwise
22
acquire, sell or otherwise dispose of or encumber) material properties or
material assets except in the ordinary course of business;
(e) subject to the rights of the stockholders of OPTA under applicable
law, adopt any amendments to the restated certificate of incorporation or bylaws
of OPTA;
(f) (i) increase the compensation of any of its directors or officers,
except pursuant to the terms of agreements or plans currently in effect, in
amounts material to OPTA and the OPTA Subsidiaries, taken as a whole, (ii) pay
or agree to pay any pension, retirement allowance or other employee benefit not
required or permitted by any existing plan, agreement or arrangement to any
directors or officers in amounts material to OPTA and the OPTA Subsidiaries,
taken as a whole, (iii) commit itself (other than pursuant to any collective
bargaining agreement) to any additional pension, profit-sharing, bonus, extra
compensation, incentive, deferred compensation, stock option, stock appreciation
right, group insurance, severance pay, retirement or other employee benefit
plan, agreement or arrangement, or to any employment or consulting agreement
with or for the benefit of any director or officer, whether past or present in
amounts material to OPTA and the OPTA Subsidiaries, taken as a whole, or (iv)
except as required by applicable law or as reported in Section 5.1(f) of the
OPTA Disclosure Schedule, amend in any material respect any such material plan,
agreement or arrangement; or
(g) except in the ordinary course of business (i) incur any material
amount of long-term indebtedness for borrowed money or issue any material amount
of debt securities or assume, guarantee or endorse the obligations of any other
person except for obligations of wholly-owned OPTA Subsidiaries, (ii) make any
material loans, advances or capital contributions to, or investments in, any
other person (other than to wholly-owned OPTA Subsidiaries or customary loans or
advances to employees in amounts not material to the maker of such loan or
advance), (iii) pledge or otherwise encumber shares of capital stock of OPTA or
a material portion of the capital stock of any OPTA Subsidiaries, or (iv)
mortgage or pledge any of its material assets, tangible or intangible, or create
or suffer to exist any material lien thereupon.
5.2. Acquisition Proposals; No Solicitation. From the date hereof until
the earlier of the termination of this Agreement or the Effective Time, OPTA
shall not, and will direct each officer, director, representative and agent of
OPTA and each OPTA Subsidiary not to, (a) directly or indirectly, encourage,
solicit, or initiate any inquiries regarding or the submission from any
corporation, partnership, person or other entity or group (other than ACQUIROR
or an affiliate or an associate of ACQUIROR) concerning any offers or proposals
for any merger, sale of all or substantially all of the assets of, or a tender
offer for all or substantially all of the OPTA Shares, or similar transactions
involving OPTA or any OPTA Subsidiary (an "Acquisition Proposal"); (b) except as
permitted below, participate in any discussions or negotiations regarding, or
furnish to any Person any information or data with respect to, or take any other
action to knowingly facilitate the making of any proposal that constitutes any
Acquisition Proposal; or (c) enter into any agreement with respect to any
Acquisition Proposal or approve or resolve to approve any Acquisition Proposal.
Notwithstanding the foregoing, OPTA may, (i) refer any party to this Section
5.2, (ii) directly or indirectly, furnish information and access, in
23
response to unsolicited requests therefor to any corporation, partnership,
person or other entity or group, and to any investment banker, financial
advisor, attorney, accountant or other representative retained by such party,
pursuant to appropriate confidentiality agreements, and may participate in
discussions and negotiations concerning any Acquisition Proposal if the board of
directors determines in its good faith judgment, after consultation with its
financial advisors and legal counsel, that the Acquisition Proposal is, or
reasonably could result in, a Superior Proposal (as defined below), and (iii) to
the extent applicable, comply with Rule 14e-2 or 14d-9 promulgated under the
Exchange Act with regard to an Acquisition Proposal. OPTA shall promptly notify
ACQUIROR if it shall, on or after the date hereof, have entered into a
confidentiality agreement with any third party in response to any unsolicited
request for information and access in connection with a possible Acquisition
Proposal involving such party. "Superior Proposal" means any Acquisition
Proposal having terms that the board of directors determines in its good faith
judgment, after having consulted with its financial advisor and legal counsel,
to be more favorable to OPTA's stockholders than the Offer and the Merger.
5.3. Meetings of Stockholders; Proxy Statement.
(a) If required by applicable law in order to consummate the Merger,
except as set forth below, OPTA shall take all necessary action to duly call,
give notice of, convene and hold an annual or special meeting of its
stockholders as soon as practicable for the purpose of considering and taking
action on this Agreement and the transactions contemplated hereby (the
"Stockholders' Meeting"). At the Stockholders' Meeting, ACQUIROR and Acquisition
Subsidiary shall cause all OPTA Shares then owned by them and their subsidiaries
to be voted in favor of the approval and adoption of this Agreement and the
transactions contemplated hereby. Notwithstanding the above, in the event that
prior to the giving of notice of the Stockholders' Meeting the board of
directors of OPTA receives a Superior Proposal, the board of directors may
determine not to call the Stockholders' Meeting.
(b) In the event a Stockholders' Meeting is called, OPTA will prepare and
file with the SEC a Proxy Statement for the solicitation of a vote of holders of
OPTA Shares approving the Merger, which Proxy Statement shall include the
recommendation of the board of directors of OPTA that stockholders of OPTA vote
in favor of the approval and adoption of this Agreement. Notwithstanding the
above, the board of directors may withdraw, modify or amend its approval and
recommendation of the Offer, the Merger and this Agreement and the transactions
contemplated hereby prior to the Stockholders' Meeting and may determine not to
include its recommendation of the Merger and this Agreement and the transactions
contemplated hereby in the Proxy Statement, if the board of directors
determines, after having received the advice of its legal counsel, that its
fiduciary duties require it to do so or if the board of directors shall have
received a Superior Proposal.
(c) Subject to Section 5.3(a) and Section 5.3(b), if required by
applicable law, as soon as practicable following consummation of the Offer, OPTA
shall file the Proxy Statement with the SEC under the Exchange Act, and shall
use its reasonable best efforts to have the Proxy Statement cleared by the SEC.
ACQUIROR, Acquisition Subsidiary and OPTA shall cooperate with each other in the
preparation of the Proxy Statement, and OPTA shall notify ACQUIROR
24
of the receipt of any comments from the SEC with respect to the Proxy Statement
and of any requests by the SEC for any amendment or supplement thereto or for
additional information and shall provide to ACQUIROR promptly copies of all
correspondence between OPTA or any representative of OPTA and the SEC. OPTA
shall give ACQUIROR and its counsel the opportunity to review the Proxy
Statement prior to its being filed with the SEC and shall give ACQUIROR and its
counsel the opportunity to review all amendments and supplements to the Proxy
Statement and all responses to requests for additional information and replies
to comments prior to their being filed with, or sent to, the SEC. Each of OPTA,
ACQUIROR and Acquisition Subsidiary agrees to use its reasonable efforts, after
consultation with the other parties hereto, to respond promptly to all such
comments of and requests by the SEC and to cause the Proxy Statement and all
required amendments and supplements thereto to be mailed to the holders of OPTA
Shares entitled to vote at the Stockholders' Meeting at the earliest practicable
time.
5.4. Access to Information; Confidentiality.
(a) Subject to applicable law and the agreements set forth in Section
5.4(b), between the date of this Agreement and the Effective Time, OPTA will (i)
give ACQUIROR and its authorized representatives reasonable access, during
regular business hours upon reasonable written notice, to all of its material
facilities, books and records and officers, (ii) permit ACQUIROR to make such
reasonable inspections of such material facilities, books and records, and (iii)
cause its officers and those of the OPTA Subsidiaries to furnish ACQUIROR with
access to such material financial and operating data and other information with
respect to the business and assets of OPTA and the OPTA Subsidiaries as ACQUIROR
may from time to time reasonably request.
(b) Any and all information obtained by ACQUIROR or Acquisition Subsidiary
shall be subject to the provisions of the confidentiality agreement between a
wholly-owned subsidiary of ACQUIROR and AH&H (on behalf of and as agent for
OPTA) dated May 8, 2002 (the "Confidentiality Agreement"), which agreement
remains in full force and effect and is hereby ratified and affirmed by the
parties hereto.
5.5. Foreign Competition Laws. ACQUIROR and OPTA shall promptly make all
filings required by each of them under any applicable foreign competition laws
with respect to the Offer, the Merger and the transactions contemplated hereby,
and shall cooperate with each other in connection with the making of all such
filings. ACQUIROR shall use its best efforts to obtain all permits,
authorizations, consents, expiration or termination of waiting periods, and
approvals from third parties and any Governmental Entity necessary to consummate
the Offer, the Merger and the transactions contemplated hereby.
5.6. Accounting Methods. OPTA shall not change its methods of accounting
in effect at its most recent fiscal year end, except as required by changes in
generally accepted accounting principles as concurred by its independent
accountants.
5.7. Standstill. In the event of the termination of this Agreement by any
party, neither ACQUIROR nor its subsidiaries, employees, officers or affiliates
shall, for a period of one year from the date of this Agreement, directly or
indirectly (unless and until ACQUIROR shall have
25
received the prior written invitation or approval of a majority of the board of
directors of OPTA) (i) solicit, seek or offer to effect, or effect, (ii)
negotiate with or provide any information to the board of directors of OPTA, any
director or officer of OPTA, any stockholder of OPTA, any employee or union or
other labor organization representing employees of OPTA or any other person with
respect to, (iii) make any statement or proposal, whether written or oral,
either alone or in concert with others, to the board of directors of OPTA, any
director or officer of OPTA or any stockholder of OPTA, any union or other labor
organization representing employees of OPTA or any other person with respect to,
or (iv) make any public announcement (except as required by law) or proposal or
offer whatsoever (including, but not limited to, any "solicitation" of "proxies"
as such terms are defined or used in Regulation 14A under the Exchange Act) with
respect to:
(a) any form of business combination or transaction involving OPTA or any
affiliate thereof, including, without limitation, a merger, tender or exchange
offer or liquidation of OPTA's assets;
(b) any form of restructuring, recapitalization or similar transaction
with respect to OPTA or any affiliate thereof;
(c) any purchase of any securities or assets, or rights or options to
acquire any securities or assets (through purchase, exchange, conversion or
otherwise), of OPTA or any affiliate thereof;
(d) any proposal to seek representation on the board of directors of OPTA
or otherwise to seek to control or influence the management, board of directors
or policies of OPTA or any affiliate thereof;
(e) any request or proposal to waive, terminate or amend the provisions of
this Section 5.7; or
(f) any proposal or other statement inconsistent with the terms of this
Section 5.7 or instigate, encourage, join, act in concert with or assist
(including, but not limited to, providing or assisting in any way in the
obtaining of financing for or acting as a joint bidder or co-bidder for OPTA)
any third party to do any of the foregoing.
5.8. Public Disclosures. ACQUIROR and OPTA will consult with each other
before issuing any press release or otherwise making any public statement with
respect to the Offer, the Merger and other transactions contemplated by this
Agreement, and shall not issue any such press release or make any such public
statement prior to such consultation except as may be required by applicable law
or requirements of any exchange upon which the OPTA Shares are traded. The
parties shall issue a joint press release, mutually acceptable to ACQUIROR and
OPTA, promptly upon execution and delivery of this Agreement.
26
5.9. Indemnification and Insurance.
(a) (i) From and after the Effective Time, ACQUIROR shall indemnify,
defend and hold harmless each director, officer, present and former employee
(including any employee who serves or served in a fiduciary capacity of any
Plans) and agents of OPTA and OPTA Subsidiaries (the "Indemnified Parties")
against all losses, expenses, claims, damages, liabilities or amounts that are
paid in settlement of, with the approval of the ACQUIROR (which approval shall
not unreasonably be withheld), or otherwise in connection with any claim,
action, suit, proceeding or investigation, including liabilities in connection
with any claim, action, suit, proceeding or investigation with respect to which
ACQUIROR has withheld settlement approval (a "Claim"), based in whole or in part
on the fact that such person is or was a director or officer of OPTA and arising
out of actions or omissions occurring at or prior to the Effective Time
(including, without limitation, the transactions contemplated by this Agreement)
to the fullest extent permitted by applicable law and shall pay expenses in
advance of the final disposition of any such action or proceeding to each
Indemnified Party upon receipt from the Indemnified Party to whom expenses are
advanced of an undertaking to repay such advances if it shall ultimately be
determined in a final adjudication from which there is no right to appeal that
the Indemnified Party is not entitled to indemnification under this Section
5.9(a).
(ii) Without limiting the foregoing, in the event any Claim (whether
arising before or after the Effective Time) is brought against any Indemnified
Party after the Effective Time (i) the Indemnified Parties may retain OPTA's
regularly engaged independent legal counsel, or other independent legal counsel
satisfactory to them, provided that such other counsel shall be reasonably
acceptable to ACQUIROR, (ii) ACQUIROR shall pay all reasonable fees and expenses
of such counsel for the Indemnified Parties promptly as statements therefor are
received and (iii) ACQUIROR will use its reasonable best efforts to assist in
the vigorous defense of any such matter. Any Indemnified Party wishing to claim
indemnification under this Section 5.9(a) upon learning of any such Claim, shall
notify ACQUIROR (although the failure so to notify ACQUIROR shall not relieve
ACQUIROR from any liability which ACQUIROR may have under this Section 5.9(a)
except to the extent such failure materially prejudices ACQUIROR), and shall
deliver to ACQUIROR the undertaking contemplated by subsection (a)(i) hereof.
The Indemnified Parties as a group may retain one law firm (in addition to local
counsel) to represent them with respect to each such matter unless there is,
under applicable standards of professional conduct (as determined by counsel to
the Indemnified Parties), a conflict on any significant issue between the
positions of any two or more Indemnified Parties, in which event, such
additional counsel as may be required may be retained by the Indemnified
Parties.
(b) Subject to the occurrence of the Effective Date, until the six year
anniversary date of the Effective Time, the ACQUIROR and the Surviving
Corporation agree that all rights to indemnification or exculpation now existing
in favor of the Indemnified Parties as provided in the respective charters or
by-laws or otherwise in effect as of the date hereof shall survive the Merger
and shall continue in full force and effect, and ACQUIROR shall cause the
Surviving Corporation to keep in effect all such indemnification and exculpation
provisions to the fullest extent permitted under applicable law, which
provisions shall not be amended, repealed or otherwise modified for such
six-year period after the Effective Time, except as required by applicable law
or except to make changes permitted by applicable law that would enlarge the
exculpation or rights of indemnification thereunder. To the maximum extent
permitted by the
27
DGCL, such indemnification shall be mandatory rather than permissive and the
Surviving Corporation shall advance expenses as incurred to the fullest extent
permitted under applicable law in connection with such indemnification.
(c) For a period of six years after the Effective Time, the ACQUIROR shall
cause the Surviving Corporation and the Surviving Corporation shall cause to be
maintained in effect the current policies of directors' and officers' liability
insurance maintained by OPTA (or policies of at least the same coverage and
amounts containing terms and conditions which are no less advantageous) with
respect to claims arising from facts or events which occurred before the
Effective Time.
(d) ACQUIROR agrees to be jointly and severally liable with the Surviving
Corporation for its indemnification obligations to the Indemnified Parties.
(e) This Section 5.9 is intended to be for the benefit of, and shall be
enforceable by, the Indemnified Parties, their heirs and personal
representatives and shall be binding on ACQUIROR and Acquisition Subsidiary and
the Surviving Corporation and their respective successors and assigns.
(f) In the event ACQUIROR or the Surviving Corporation or any of their
successors or assigns (i) consolidates with or merges into any other person and
shall not be the continuing or surviving corporation or entity of such
consolidation or merger, or (ii) transfers or conveys all or substantially all
of its properties and assets to any person, then, and in each such case, proper
provision shall be made so that the successors and assigns of ACQUIROR or the
Surviving Corporation, as the case may be, or at ACQUIROR's option, ACQUIROR,
shall assume the obligations set forth in this Section 5.9.
(g) ACQUIROR shall pay all reasonable expenses incurred by any Indemnified
Parties in connection with the enforcement of the provisions of this Section
5.9.
5.10. Reasonable Best Efforts. Subject to the fiduciary duties of the
board of directors of OPTA as determined by the board of directors of OPTA after
consultation with its legal counsel, each of the parties hereto agrees to use
its reasonable best efforts to take, or cause to be taken, all necessary or
appropriate action, and to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations or otherwise to consummate
and make effective the Offer, the Merger and all other transactions contemplated
by this Agreement including, without limitation, the execution of any additional
instruments necessary to consummate the transactions contemplated hereby and
seeking to lift, rescind or reverse any legal restraint imposed on the
consummation of the transactions contemplated by this Agreement. 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 hereto shall take all such necessary action.
5.11. Notice of Subsequent Events. OPTA shall give prompt notice to
ACQUIROR or Acquisition Subsidiary, and ACQUIROR or Acquisition Subsidiary shall
give prompt notice to OPTA, as the case may be, of (i) the occurrence, or
non-occurrence, of any event the respective
28
occurrence, or non-occurrence, of which would be likely to cause any condition
contained in this Agreement to be unsatisfied and (ii) any failure of OPTA,
ACQUIROR or Acquisition Subsidiary, as the case may be, to comply with or
satisfy any covenant or agreement to be complied with under this Agreement;
provided, however, that the delivery of any notice pursuant to this Section 5.11
shall not relieve any party giving such notice of its obligation hereunder.
5.12. Employment; Employee Welfare.
(a) ACQUIROR agrees to offer employment to all those persons employed by
OPTA or OPTA Subsidiaries (including both full-time and part-time employees and
employees on leave) at the time of the Closing, at levels of salary and benefits
which are substantially comparable to the salary and benefits paid or provided
to such persons by OPTA or OPTA Subsidiaries immediately prior to the Closing;
provided that it is understood by OPTA that ACQUIROR does not currently have, or
intend to adopt, an employee stock purchase plan.
(b) ACQUIROR will cause the Surviving Corporation to maintain following
the Closing Date employee compensation and benefit plans (including bonus
plans), programs, policies and fringe benefits (including any post-employment
benefits) that are substantially equivalent to those provided to such employees
of OPTA and OPTA Subsidiaries, as applicable, under the Plans as in effect
immediately prior to the Closing (the "Existing Plans"), subject to the right to
amend or terminate such Existing Plans in accordance with their terms, provided
that after any such amendment or termination such programs, policies and fringe
benefits continue to be, in the aggregate, substantially equivalent to the
Existing Plans.
(c) ACQUIROR will cause the Surviving Corporation to provide to all
employees of OPTA and OPTA Subsidiaries severance pay and benefits which are
equivalent to the applicable severance plans, programs, agreements and policies
of OPTA and the OPTA Subsidiaries, as applicable, as in effect immediately prior
to the Closing (the "Existing Severance Benefits"), subject to the right to
amend or terminate such Existing Severance Benefits in accordance with their
terms, provided that after any such amendment or termination such severance pay
and benefits continue to be substantially equivalent to the Existing Severance
Benefits. Further, ACQUIROR shall credit the prior service of all employees of
OPTA and OPTA Subsidiaries to OPTA and the OPTA Subsidiaries, as applicable, for
purposes of determining the eligibility, vesting or qualification of such
employees of OPTA and OPTA Subsidiaries under Existing Plans, Existing Severance
Benefits and any successor plans and benefit programs.
(d) From and after the Effective Time, ACQUIROR and the Surviving
Corporation shall assume and honor in accordance with their terms all existing
employment, severance, bonus and similar agreements and arrangements set forth
in Section 5.12(d) of the OPTA Disclosure Schedule. In addition, Acquiror and
the Surviving Corporation shall provide severance benefits to employees of OPTA
(other than those employees provided greater benefits pursuant to the Change in
Control Agreements identified in Section 5.12(d) of the Disclosure Schedule) in
a manner and in amounts consistent with OPTA's past practice.
(e) ACQUIROR shall reimburse (or cause the Surviving Corporation to
reimburse) any director, officer or employee (or former director, officer or
director) of OPTA or any OPTA
29
Subsidiaries for all costs and expenses, including attorneys' fees, incurred by
such person in successfully enforcing the provisions of this Section 5.12.
5.13. Guarantee of Acquisition Subsidiary's Obligations. ACQUIROR hereby
unconditionally and irrevocably guarantees to OPTA the due and timely
performance and observance by Acquisition Subsidiary of all of its
representations, warranties, covenants, agreements and obligations under this
Agreement.
ARTICLE VI
CONDITIONS TO MERGER
6.1. Mutual Conditions. The respective obligations of each party to effect
the Merger shall be subject to the satisfaction, at or prior to the Closing
Date, of the following conditions (any of which may be waived in writing by
ACQUIROR, Acquisition Subsidiary and OPTA):
(a) there shall not be any statute, rule or regulation, or any decree,
order or injunction, promulgated, enacted, entered or enforced by any
Governmental Entity which would prohibit or restrict consummation of the Merger;
provided, however, that in order to invoke this condition, ACQUIROR and
Acquisition Subsidiary shall have used their best efforts to lift, rescind,
cause to expire, terminate or ameliorate the effects of any such statute, rule,
regulation, decree, order or injunction;
(b) if required by applicable law, this Agreement and the Merger shall
have been approved and adopted by the requisite vote of the holders of OPTA
Shares; and
(c) Acquisition Subsidiary or its permitted assignee shall have purchased
all OPTA Shares validly tendered and not withdrawn pursuant to the Offer and
shall have paid for the aggregate amount of Net Gains pursuant to Section
2.5(e); provided, however, that this condition shall not be applicable to the
obligations of ACQUIROR or Acquisition Subsidiary if, in breach of this
Agreement or the terms of the Offer, Acquisition Subsidiary fails to purchase
any OPTA Shares validly tendered and not withdrawn pursuant to the Offer.
ARTICLE VII
TERMINATION
7.1. Termination. This Agreement may be terminated and the Merger may be
abandoned at any time notwithstanding approval thereof by the holders of OPTA
Shares (except as otherwise set forth in this Section 7.1), but prior to the
Effective Time:
(a) by mutual written consent of the parties duly authorized by the Boards
of Directors of OPTA and ACQUIROR;
(b) by either ACQUIROR or OPTA if (i) any Governmental Entity or court
shall have issued a final and non-appealable order, decree, ruling or
injunction, or taken any other
30
action, in each case having the effect of permanently restraining, enjoining or
otherwise prohibiting the acceptance for payment of, or payment for, OPTA Shares
pursuant to the Offer or the Merger (which the party seeking to terminate this
Agreement shall have used its best efforts to have lifted, rescinded, mitigated
or reversed) or (ii) any action is taken or any statute, rule, regulation or
order is enacted, entered, enforced or deemed applicable to the Offer or the
Merger which makes the consummation of the Offer or the Merger illegal;
(c) by either ACQUIROR or OPTA if the Effective Time shall not have
occurred on or before January 15, 2003; provided that the right to terminate
this Agreement under this Section 7.1(c) shall not be available to any party
whose failure to fulfill any covenant, agreement or obligation under this
Agreement has been the cause of or resulted in the failure of the Effective Time
to occur on or before such date; and provided, further, that if the Offer or the
Merger shall not have been consummated solely due to the waiting period (or any
extension thereof) or approvals under any applicable foreign competition laws
not having expired or been terminated or received, then such date shall be
extended to January 31, 2003;
(d) by ACQUIROR if, due to an occurrence or circumstance that would result
in a failure to satisfy any condition set forth in Annex A hereto (it being
understood that if such occurrence or circumstance is curable by OPTA through
the exercise of its reasonable best efforts prior to the next scheduled
expiration date of the Offer, and for so long as OPTA continues to exercise such
reasonable best efforts prior to such expiration date, then Acquisition
Subsidiary may not terminate the Offer prior to such expiration date),
Acquisition Subsidiary shall have (i) failed to commence the Offer as set forth
in Section 1.1 of this Agreement, (ii) terminated the Offer without having
accepted any OPTA Shares for payment thereunder, or (iii) failed to pay for the
OPTA Shares validly tendered pursuant to the Offer in accordance with the terms
thereof, unless such termination or failure to pay for OPTA Shares shall have
been caused by or resulted from the failure of ACQUIROR or Acquisition
Subsidiary to perform in any material respect any covenant or agreement of
either of them contained in this Agreement or the material breach by ACQUIROR or
Acquisition Subsidiary of any representation or warranty of either of them
contained in this Agreement;
(e) by ACQUIROR if, prior to the purchase of any OPTA Shares validly
tendered pursuant to the Offer, the board of directors of OPTA shall have
withdrawn, modified or amended in a manner that is materially adverse to
ACQUIROR or Acquisition Subsidiary its approval or recommendation of this
Agreement, the Offer or the Merger or shall have recommended another merger,
consolidation or business combination involving, or acquisition of, OPTA or its
assets or another tender offer for OPTA Shares;
(f) by OPTA if, prior to the purchase of OPTA Shares pursuant to the
Offer, the board of directors of OPTA determines that an Acquisition Proposal is
or reasonably could result in a Superior Proposal;
(g) by OPTA if, due to an occurrence or circumstance that would result in
a failure to satisfy any condition set forth in Annex A hereto, Acquisition
Subsidiary shall have (i) failed to commence the Offer as set forth in Section
1.1 of this Agreement, (ii) terminated the Offer
31
without having accepted any OPTA Shares for payment thereunder, or (iii) failed
to pay for the OPTA Shares validly tendered pursuant to the Offer in accordance
with the terms thereof, or for the Net Gains pursuant to Section 2.5(e), unless
such termination or failure to pay shall have been caused by or resulted from
the failure of OPTA to perform in any material respect any covenant or agreement
of it contained in this Agreement or the failure of the condition set forth in
paragraph (d) of Annex A hereto; or
(h) by OPTA if any representation or warranty of ACQUIROR or Acquisition
Subsidiary in this Agreement shall not be true and correct on the date of this
Agreement, or ACQUIROR or Acquisition Subsidiary shall have failed to perform in
any material respect any obligation or to comply in any material respect with
any agreement or covenant of ACQUIROR or Acquisition Subsidiary to be performed
or complied with by it under this Agreement; provided that such breach or
failure to perform (if curable) has not been cured within thirty (30) calendar
days after notice to ACQUIROR.
7.2. Effect of Termination.
(a) In the event of termination of this Agreement pursuant to this Article
VII, this Agreement, except for the provisions of Section 5.4, Section 5.7, this
Section 7.2 and Article VIII, shall forthwith become void and have no effect,
without any liability on the part of any party or its affiliates, directors,
officers or stockholders. Nothing in this Section 7.2 or in Section 8.4 shall
relieve any party to this Agreement of liability for breach of this Agreement on
or prior to the date of termination.
(b) If (x) ACQUIROR or Acquisition Subsidiary terminates this Agreement
pursuant to Section 7.1(d) (but solely on the basis of a failure to satisfy a
condition set forth in paragraphs (b), (d) or (e) of Annex A) or 7.1(e), or (y)
OPTA terminates this Agreement pursuant to Section 7.1(f), then in each case,
OPTA shall pay, or cause to be paid to ACQUIROR at the time of termination by
wire transfer of immediately available funds to an account specified by ACQUIROR
an amount equal to $1.0 million (the "Termination Fee") plus an amount of up to
$250,000 (the "Expense Fee") for out-of-pocket fees and expenses incurred or
paid by or on behalf of ACQUIROR or Acquisition Subsidiary in connection with
the transactions contemplated by this Agreement, including, but not limited to,
fees and expenses of counsel, investment bankers, commercial banks, accountants,
experts and consultants to ACQUIROR and Acquisition Subsidiary upon receipt by
OPTA of an invoice for such expenses up to $250,000. Payment of the Termination
Fee and Expense Fee pursuant to this Section 7.2(b) shall be made by wire
transfer of immediately available funds no later than five (5) business days
after delivery to OPTA of written notice of demand for payment and delivery of
such invoice.
(c) Payment of the Termination Fee and Expense Fee, if any, as the case
may be, shall be ACQUIROR's and Acquisition Subsidiary's exclusive remedy for
any termination of this Agreement and neither ACQUIROR nor Acquisition
Subsidiary shall have any further recourse against OPTA for, or as a result of,
such termination.
7.3. Procedure for Termination. In the event of termination and
abandonment of the Offer and the Merger by the ACQUIROR or OPTA pursuant to this
Article VII, written notice
32
thereof shall forthwith be given to the other.
ARTICLE VIII
MISCELLANEOUS
8.1. Expenses. Subject to Section 7.2, all costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such expense, except that expenses incurred in
connection with printing and mailing the Proxy Statement shall be shared equally
by OPTA and ACQUIROR. ACQUIROR acknowledges and agrees that OPTA is obligated
and will become further obligated for fees and expenses (including fees and
expenses of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., its counsel,
PricewaterhouseCoopers LLP, its independent accountants, and AH&H, its financial
advisor) incurred by it in connection with the Merger and the transactions
contemplated hereby. It is understood and agreed that certain of such fees and
expenses may be paid by OPTA prior to the execution of this Agreement, and
ACQUIROR agrees to refrain from taking any action which would prevent or delay
the payment of reasonable fees and expenses by OPTA. Further, ACQUIROR agrees to
take, and cause Acquisition Subsidiary to take, all actions necessary to cause
the Surviving Corporation to pay promptly any of the foregoing reasonable fees
and expenses incurred, but not paid, by OPTA prior to the Effective Time.
8.2. Amendment. This Agreement may be amended by the parties at any time
before or after any required approval of matters presented in connection with
the Merger by the holders of OPTA Shares; provided, however, that after any such
approval, if required, there shall be made no amendment that pursuant to Section
251(d) of the DGCL requires further approval by such stockholders without the
further approval of such stockholders. This Agreement may not be amended except
by an instrument in writing signed on behalf of each of the parties.
8.3. Extension; Waiver. At any time prior to the Effective Time, the
parties may (a) extend the time for the performance of any of the obligations or
other acts of the other parties, (b) waive any inaccuracies in the
representations and warranties contained in this Agreement or in any document
delivered pursuant to this Agreement, or (c) waive compliance with any of the
agreements or conditions contained in this Agreement. Any agreement on the part
of a party to any such extension or waiver shall be valid only if set forth in
an instrument in writing signed on behalf of such party. The failure of any
party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of such rights.
8.4. Nonsurvival of Representations and Warranties. None of the
representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive the Effective Time or the termination
of this Agreement.
8.5. Notices. Any communications required or desired to be given hereunder
shall be deemed to have been properly given if sent by hand delivery or by
facsimile and overnight courier to the parties hereto at the following
addresses, or at such other address as either party may advise the other in
writing from time to time:
33
If to ACQUIROR:
Stake Technology Ltd.
0000 Xxxxxxx 0
Xxxxxx, Xxxxxxx X0X 0X0, Xxxxxx
Attn: Chairman
Facsimile: (000) 000-0000
with copies to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxxxxx, Xxxxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
If to OPTA:
Opta Food Ingredients, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxx, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
All such communications shall be deemed to have been delivered on the date of
hand delivery or on the next business day following the deposit of such
communications with the overnight courier.
8.6. Governing Law/Consent to Jurisdiction. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAWS RULES OF THE STATE OF
DELAWARE OR ANY OTHER JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE
LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE. EACH PARTY HERETO
HEREBY IRREVOCABLY CONSENTS, FOR ITSELF AND ITS LEGAL REPRESENTATIVES,
SUCCESSORS AND ASSIGNS, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF DELAWARE AND OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
FOR ALL PURPOSES IN CONNECTION WITH ANY ACTION OR PROCEEDING WHICH ARISES FROM
OR RELATES TO THIS AGREEMENT, AND HEREBY WAIVES ANY RIGHTS IT MAY HAVE TO
PERSONAL
34
SERVICE OF SUMMONS, COMPLAINT, OR OTHER PROCESS IN CONNECTION THEREWITH, AND
AGREES THAT SERVICE MAY BE MADE ON SUCH PARTY AND SENT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 8.5 HEREOF.
8.7. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY OR DISPUTE THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY
CERTIFIES AND ACKNOWLEDGES THAT (i) 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 THE FOREGOING WAIVER, (ii) EACH
SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii)
EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS OF THIS SECTION 8.7.
8.8. Certain Definitions. As used in this Agreement:
(a) "Governmental Entity" shall mean any United States federal, state or
local or any non-United States governmental, administrative or regulatory
authority, commission, body, agency or other authority.
(b) "Including." The word "including," when following any general
statement, term or matter, shall not be construed to limit such statement, term
or matter to the specific terms or matters as provided immediately following the
word "including" or to similar items or matters, whether or not non-limiting
language (such as "without limitation," "but not limited to," or words of
similar import) is used with reference to the word "including" or the similar
items or matters, but rather shall be deemed to refer to all other items or
matters that could reasonably fall within the broadest possible scope of the
general statement, term or matter.
(c) "Knowledge." "To the knowledge," "to the best knowledge, information
and belief," or any similar phrase shall be deemed to refer to the actual
knowledge of the Chief Executive Officer and the Chief Financial Officer of OPTA
and the OPTA Subsidiaries who in the ordinary course of their duties and after
reasonable inquiry would have knowledge of the accuracy of such representation
and that nothing has come to the attention of such officers which would give
such officers reason to believe that the fact referred to is not accurate.
8.9. Captions. The captions or headings in this Agreement are made for
convenience and general reference only and shall not be construed to describe,
define or limit the scope or intent of the provisions of this Agreement.
35
8.10. Integration of Schedules. The Disclosure Schedule attached to this
Agreement is an integral part of this Agreement as if fully set forth herein,
and all statements or other information appearing in any section of the
Disclosure Schedule shall be deemed disclosed for all sections of the Disclosure
Schedule and not only in connection with the specific representation in which
they are explicitly referenced.
8.11. Entire Agreement; Assignment. This Agreement, together with the
Exhibits and Schedules hereto, (i) constitutes the entire agreement among the
parties with respect to the subject matter hereof and supersedes all other prior
agreements and understandings, both written and oral, other than the
Confidentiality Agreement (except with respect to the "standstill" provisions
therein, which shall be superceded by Section 5.7 hereof), among the parties or
any of them with respect to the subject matter hereof and (ii) shall not be
assigned by operation of law or otherwise.
8.12. Enforcement of the Agreement. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties and other persons
entitled to enforce this Agreement pursuant to this Agreement shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any federal or state
court located in Delaware (as to which the parties hereby irrevocably agree to
submit to jurisdiction for the purposes of such action), this being in addition
to any other remedy to which they are entitled at law or in equity.
8.13. Validity. If any provision of this Agreement, or the application
thereof to any person or circumstance, is held invalid or unenforceable, the
remainder of this Agreement, and the application of such provision to other
persons or circumstances, shall not be affected thereby, and to such end, the
provisions of this Agreement are agreed to be severable.
8.14. Counterparts. This Agreement may be executed in several
counterparts, each of which, when so executed, shall be deemed to be an
original, and such counterparts shall, together, constitute and be one and the
same instrument.
8.15. No Rule of Construction. The parties acknowledge that this Agreement
was initially prepared by OPTA, and that all parties have read and negotiated
the language used in this Agreement. The parties agree that, because all parties
participated in negotiating and drafting this Agreement, no rule of construction
shall apply to this Agreement which construes ambiguous language in favor of or
against any party by reason of that party's role in drafting this Agreement.
8.16. Performance By Acquisition Subsidiary. ACQUIROR hereby agrees to
cause Acquisition Subsidiary to comply with and perform its obligations
hereunder and to cause Acquisition Subsidiary to consummate the Offer, the
Merger and all other transactions as contemplated herein.
[Remainder of Page Intentionally Left Blank]
36
IN WITNESS WHEREOF, ACQUIROR, the Acquisition Subsidiary and OPTA have
caused this Agreement and Plan of Merger to be executed by their respective duly
authorized officers, and have caused their respective corporate seals to be
hereunto affixed, all as of the day and year first above written.
OPTA FOOD INGREDIENTS, INC.
By: "Xxxxxx X. XxXxxxx"
-----------------------------------
STAKE TECHNOLOGY LTD.
By: "Xxxxxx X. Xxxxxxx"
-----------------------------------
STAKE ACQUISITION CORP.
By: "Xxxxxx. X. Xxxxxxx"
-----------------------------------
ANNEX A
Conditions to the Offer
CAPITALIZED TERMS USED HEREIN HAVE THE MEANINGS SET FORTH IN THE AGREEMENT AND
PLAN OF MERGER TO WHICH THIS ANNEX A IS ATTACHED.
Notwithstanding any other provision of the Offer, Acquisition
Subsidiary shall not be required to accept for payment or, subject to the
applicable rules and regulations of the SEC, including Rule 14e-1(c) under the
Exchange Act, pay for any OPTA Shares tendered pursuant to the Offer, and may
terminate or amend the Offer in a manner consistent with the terms of the
Agreement and may postpone the acceptance for payment of or the payment for any
OPTA Shares tendered in a manner consistent with the terms of the Agreement
(and, if required pursuant to Section 1.1(d) of the Agreement, shall extend the
Offer for one or more periods of at least ten (10) business days and may
otherwise, subject to the terms of the Agreement, amend, extend, or terminate
the Offer), if (i) immediately prior to the expiration of the Offer (as extended
in accordance with the Offer), the Foreign Antitrust Condition shall not have
been satisfied, (ii) immediately prior to the expiration of the Offer (as
extended in accordance with the Offer), the Minimum Condition shall not have
been satisfied, or (iii) at any time prior to the acceptance for payment of OPTA
Shares, any of the following conditions exist:
(a) there shall be any statute, rule or regulation, or any decree, order
or injunction, issued, promulgated, enacted, entered or enforced by any
Governmental Entity which in any such case (i) restrains or prohibits the making
or consummation of the Offer or the consummation of the Merger or the
performance of the other transactions contemplated by this Agreement, (ii)
prohibits or restricts the ownership or operation by ACQUIROR (or any of its
affiliates or subsidiaries) of any portion of its or OPTA's business or assets
which is material to the business of all such entities taken as a whole, or
compels ACQUIROR (or any of its affiliates or subsidiaries) to dispose of or
hold separate any portion of its or OPTA'S business or assets which is material
to the business of all such entities taken as a whole, (iii) imposes limitations
on the ability of ACQUIROR effectively to acquire or to hold or to exercise full
rights of ownership of the OPTA Shares, including, without limitation, the right
to vote the OPTA Shares purchased by ACQUIROR on all matters properly presented
to the stockholders of OPTA which are material to the business of OPTA and the
OPTA Subsidiaries taken as a whole, or (iv) imposes any limitations on the
ability of ACQUIROR or any of its respective affiliates or subsidiaries
effectively to control in any material respect the business and operations of
OPTA and the OPTA Subsidiaries, the effect of which, in the case of clauses
(iii) and (iv) above, is material to the business of all such entities taken as
a whole; provided, however, that in order to invoke this condition, ACQUIROR and
Acquisition Subsidiary shall have used their best efforts to prevent such
Governmental Restriction or to lift, rescind, mitigate, reverse, cause to
expire, terminate or ameliorate the effects thereof; and provided further, that
if the Governmental Restriction is not a final and non-appealable order, decree,
ruling or injunction, neither ACQUIROR nor Acquisition Subsidiary may, while
exercising such best efforts, by virtue of this condition alone amend or
terminate the Offer, but may only extend (or agree to the extension of) the
Offer in accordance
A-1
with Section 1.1(d) and thereby postpone acceptance for payment or purchase of
OPTA Shares while exercising such best efforts;
(b) the board of directors (i) shall have withdrawn, or modified or
changed in a manner materially adverse to ACQUIROR or Acquisition Subsidiary
(whether or not included in an amendment of the Schedule 14D-9) its approval or
recommendation of this Agreement or the Stockholders' Agreement or the
transactions contemplated hereby or thereby, including the Offer or the Merger,
(ii) shall have recommended an Acquisition Proposal other than a Superior
Proposal or (iii) shall have adopted any resolution to effect any of the
foregoing; provided, that the foregoing shall not apply solely as a result of
OPTA or the board of directors making such disclosure to OPTA's stockholders as,
in the good faith judgment of the board of directors, after receiving advice
from outside counsel, is required under applicable law;
(c) there shall have occurred any event that, individually or when
considered together with any other matter, has or has had a Material Adverse
Effect upon OPTA or a OPTA subsidiary;
(d) OPTA shall have breached or failed to perform in any material respect
any of its material covenants or agreements under the Agreement;
(e) any of the representations and warranties of OPTA set forth in the
Agreement which are qualified as to Material Adverse Effect shall not be true
and correct when made and as of the expiration of the Offer, or any of the other
representations and warranties of OPTA set forth in the Agreement shall not be
true and correct when made and as of the expiration of the Offer, which failure
would have a Material Adverse Effect (except in each case in the case of
representations and warranties of OPTA which address matters only as of a
particular date, which need only be true and correct as aforesaid as of such
date);
(f) this Agreement shall have been terminated in accordance with its
terms;
(g) ACQUIROR, Acquisition Subsidiary and OPTA shall have agreed in writing
that Acquisition Subsidiary shall terminate the Offer or postpone the acceptance
for payment of or the payment for OPTA Shares thereunder; or
(h) there shall have occurred (i) any general suspension of, or limitation
on prices for trading in securities on the New York Stock Exchange, American
Stock Exchange, any national securities exchange or on the Nasdaq National
Market System for a period in excess of 24 hours (excluding any suspension or
limit resulting solely from physical damage or interference with such exchanges
not related to market conditions), (ii) a declaration of a banking moratorium or
any suspension of payments in respect of banks in the United States, or (iii) a
change in the general financial, bank or capital markets which materially and
adversely affects the ability of financial institutions in the United States to
extend credit or syndicate loans.
(i) the provisions of Section A of Article EIGHTH of OPTA's restated
certificate of incorporation shall be applicable to the Business Combination (as
defined in OPTA's restated certificate of incorporation) contemplated by the
Agreement.
A-2
The foregoing conditions are for the sole benefit of ACQUIROR and
Acquisition Subsidiary and may be asserted by ACQUIROR or Acquisition Subsidiary
regardless of the circumstances giving rise to any such condition or may be
waived by ACQUIROR or Acquisition Subsidiary in whole or in part at any time and
from time to time in their sole discretion. The failure by ACQUIROR or
Acquisition Subsidiary at any time to exercise any of the foregoing rights shall
not be deemed a waiver of any such right; the waiver of any such right with
respect to particular facts and circumstances shall not be deemed a waiver with
respect to any other facts and circumstances; and each such right shall be
deemed an ongoing right that may be asserted at any time and from time to time.
A-3
ANNEX B
Index of Defined Terms
Agreement................................................................Caption
Acquisition Proposal.........................................................5.2
Acquisition Subsidiary...................................................Caption
ACQUIROR.................................................................Caption
AH&H....................................................................Preamble
Blue Sky laws.............................................................3.5(b)
Certificate...............................................................2.6(c)
Claim..................................................................5.9(a)(i)
Cleanup..................................................................3.19(d)
Closing....................................................................2.2
Closing Date.................................................................2.2
Code......................................................................2.5(e)
Confidentiality Agreement.................................................5.4(b)
DGCL....................................................................Preamble
Dissenting Shares.........................................................2.5(d)
Effective Time 2.3
Environmental Laws.......................................................3.19(d)
ERISA....................................................................3.14(a)
Exchange Act............................................................Preamble
Exchange Agent............................................................2.6(a)
Exchange Agent Agreement..................................................2.6(a)
Existing Plans...........................................................5.12(b)
Existing Severance Benefits..............................................5.12(c)
Expense Fee...............................................................7.2(b)
Governmental Entity.......................................................8.8(a)
Foreign Antitrust Condition...............................................1.1(d)
Including.................................................................8.8(b)
Indemnified Parties.......................................................5.9(a)
Independent Directors........................................................1.4
Intellectual Property Rights.............................................3.16(a)
Knowledge.................................................................8.8(c)
Leases......................................................................3.18
Lenders......................................................................4.8
Material Adverse Effect...............................................3.1(b)(ii)
Material IP Agreements...................................................3.16(a)
Merger..................................................................Preamble
Merger Consideration......................................................2.5(c)
Minimum Condition.........................................................1.1(b)
Net Gains.................................................................2.5(e)
B-1
Offer...................................................................Preamble
Offer Documents...........................................................1.1(c)
Offer to Purchase.........................................................1.1(c)
OPTA.....................................................................Caption
OPTA Balance Sheet........................................................3.6(b)
OPTA Common Stock.......................................................Preamble
OPTA Disclosure Schedule.............................................Article III
OPTA Intellectual Property Rights........................................3.16(a)
OPTA Option...............................................................2.5(e)
OPTA Permits................................................................3.15
OPTA Public Reports.......................................................3.6(a)
OPTA Purchase Plan...........................................................1.3
OPTA Shares.............................................................Preamble
OPTA Subsidiary..............................................................3.3
OPTA Subsidiaries............................................................3.3
Payment Fund..............................................................2.6(b)
Per Share Amount........................................................Preamble
Plan.....................................................................3.14(a)
Plans....................................................................3.14(a)
Properties...............................................................3.19(b)
Proxy Statement.............................................................3.21
Regulated Materials......................................................3.19(d)
Schedule TO...............................................................1.1(c)
Schedule 14D-9............................................................1.2(b)
SEC.......................................................................1.1(c)
Securities Act............................................................3.6(a)
Stockholders' Meeting.....................................................5.3(a)
Stock Option Plans........................................................2.5(e)
Stockholders' Agreement.................................................Preamble
SunRich......................................................................4.8
Surviving Corporation...................................................Preamble
Superior Proposal............................................................5.2
Taxes.......................................................................3.12
Tender Facility..............................................................4.8
Termination Fee...........................................................7.2(b)
To the knowledge .........................................................8.8(c)
To the best knowledge, information and belief.............................8.8(c)
B-2
