EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
Dated as of May 29, 2001
Among
CHRISTIAN XXXXXX,
XXXXXX U. S. SUB, INC.
and
BACOU USA, INC.
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TABLE OF CONTENTS
Page
ARTICLE I
The Merger
SECTION 1.01. The Merger..................................................2
SECTION 1.02. Closing.....................................................2
SECTION 1.03. Effective Time..............................................2
SECTION 1.04. Effects ....................................................3
SECTION 1.05. Certificate of Incorporation
and By-Laws...............................................3
SECTION 1.06. Directors...................................................3
SECTION 1.07. Officers ...................................................3
ARTICLE II
Effect on the Capital Stock of the
Constituent Corporations; Exchange of Certificates
SECTION 2.01. Effect on Capital Stock.....................................3
SECTION 2.02. Exchange of Certificates................................... 5
ARTICLE III
Representations and Warranties of the Company
SECTION 3.01. Organization, Standing and Power........................... 8
SECTION 3.02. Authority; Execution and Delivery;
Enforceability............................................8
SECTION 3.03. Consents....................................................9
SECTION 3.04 SEC Documents............................................. 10
SECTION 3.05. Absence of Certain Changes or Events...................... 11
ARTICLE IV
Representations and Warranties of Parent and Sub
SECTION 4.01. Organization, Standing and Power ..........................12
SECTION 4.02. Authority; Execution and Delivery;
Enforceability.......................................... 12
SECTION 4.03. Consents ................................................. 13
SECTION 4.04. Broker's or Finder's Fee.................................. 13
SECTION 4.05. Financing................................................. 13
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ARTICLE V
Covenants Relating to Conduct of Business
SECTION 5.01. Conduct of Business........................................14
SECTION 5.02. No Solicitation............................................18
ARTICLE VI
Additional Agreements
SECTION 6.01. Preparation of Proxy Statement;
Stockholder Meeting......................................20
SECTION 6.02. Access to Information; Confidentiality.....................21
SECTION 6.03. Reasonable Best Efforts; Notification......................21
SECTION 6.04. Stock Options..............................................22
SECTION 6.05. Benefit Plans..............................................24
SECTION 6.06. Indemnification, Exculpation
and Insurance............................................24
SECTION 6.07. Fees and Expenses..........................................25
SECTION 6.08. Public Announcements.......................................26
SECTION 6.09. Transfer Taxes.............................................26
ARTICLE VII
Conditions Precedent
SECTION 7.01. Conditions to Each Party's Obligations
To Effect the Merger.....................................26
SECTION 7.02. Conditions to Obligations of Parent
and Sub..................................................27
SECTION 7.03. Condition to Obligations of the Company....................28
ARTICLE VIII
Termination, Amendment and Waiver
SECTION 8.01. Termination................................................28
SECTION 8.02 Effect of Termination......................................29
SECTION 8.03. Amendment..................................................29
SECTION 8.04. Extension; Waiver..........................................30
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ARTICLE IX
General Provisions
SECTION 9.01. Nonsurvival of Representations and
Warranties...............................................30
SECTION 9.02. Notices....................................................30
SECTION 9.03. Definitions................................................31
SECTION 9.04. Interpretation.............................................32
SECTION 9.05. Severability...............................................32
SECTION 9.06. Counterparts...............................................32
SECTION 9.07. Entire Agreement; No Third-Party
Beneficiaries............................................32
SECTION 9.08. Governing Law..............................................32
SECTION 9.09. Assignment.................................................32
SECTION 9.10. Enforcement............................................... 33
AGREEMENT AND PLAN OF MERGER dated as of May 29, 2001, among
CHRISTIAN DALLOZ, a societe anonyme duly incorporated and legally
existing under the laws of the Republic of France ("Parent"),
XXXXXX U. S. SUB, INC., a Delaware corporation ("Sub"), and a
wholly owned subsidiary of Parent, and BACOU USA, INC., a
Delaware corporation (the "Company"), and a majority-owned
subsidiary of BACOU SA, a societe anonyme duly incorporated and
legally existing under the laws of the Republic France (the
"Principal Company Stockholder").
WHEREAS the Board of Directors of Sub has approved and declared
advisable, and the Board of Directors of Parent has approved, this Agreement and
the merger of Sub with and into the Company, upon the terms and subject to the
conditions set forth in this Agreement (the "Merger"), whereby each issued and
outstanding share of Common Stock, par value $.001 per share, of the Company
(the "Company Common Stock") not owned by Parent, Sub, the Company or the
Principal Company Stockholder, shall be converted into the right to receive
$28.50 in cash;
WHEREAS an oversight committee (the "Oversight Committee") of
independent members of the Board of Directors of the Company (the "Company
Board") has (i) approved this Agreement and the Merger, (ii) recommended the
approval of this Agreement and the Merger by the Company Board and (iii)
determined that this Agreement and the Merger are advisable and in the best
interests of the Company and each of the holders of the Company Common Stock
other than the Principal Company Stockholder;
WHEREAS the Company Board, subsequent to the recommendation of the
Oversight Committee, has (i) approved the Merger and this Agreement, (ii)
determined that this Agreement and the Merger are advisable and in the best
interests of the Company and each of the holders of the Company Common Stock
other than the Principal Company Stockholder and (iii) recommended the adoption
of this Agreement by each of the holders of the Company Common Stock other than
the Principal Company Stockholder;
WHEREAS simultaneously with the execution and delivery of this
Agreement, Parent and the Principal Company Stockholder are entering into an
agreement (the "Company Stockholder Agreement") pursuant to which the Principal
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Company Stockholder will agree to take specified actions in furtherance of the
Merger; and
WHEREAS Parent, Sub and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger and also to prescribe various conditions to the Merger.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
The Merger
SECTION 1.01. The Merger. On the terms and subject to the conditions
set forth in this Agreement, and in accordance with the General Corporation Law
of the State of Delaware (the "DGCL"), Sub shall be merged with and into the
Company at the Effective Time (as defined in Section 1.03). At the Effective
Time, the separate corporate existence of Sub shall cease and the Company shall
continue as the surviving corporation (the "Surviving Corporation"). At the
election of Parent, any direct or indirect subsidiary of Parent may be
substituted for Sub as a constituent corporation in the Merger. In such event,
the parties shall execute an appropriate amendment to this Agreement in order to
reflect the foregoing.
SECTION 1.02. Closing. The closing (the "Closing") of the Merger shall
take place at the location of, and immediately prior to, the closing of the
Contribution Agreement (as defined in the Master Agreement dated as of the date
hereof relating to the combination of Parent and the Company Principal
Stockholder (the "Master Agreement")), as soon as practicable after (a) all the
conditions set forth in Article VII shall have been satisfied (or, to the extent
permitted by law, waived by the parties entitled to the benefits thereof) and
(b) all the conditions precedent to the consummation of the Contribution
Agreement, other than the Merger, shall have been satisfied or waived, or at
such other place, time and date as shall be agreed in writing between Parent and
the Company. The date on which the Closing occurs is referred to in this
Agreement as the "Closing Date".
SECTION 1.03. Effective Time. Prior to the Closing, the parties shall
prepare, and on the Closing Date or as soon as practicable thereafter shall file
with the
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Secretary of State of the State of Delaware, a certificate of merger or other
appropriate documents (in any such case, the "Certificate of Merger") executed
in accordance with the relevant provisions of the DGCL and shall make all other
filings or recordings required under the DGCL. The Merger shall become effective
at such time as the Certificate of Merger is duly filed with such Secretary of
State, or at such later time as Parent and the Company shall agree and specify
in the Certificate of Merger (the time the Merger becomes effective being the
"Effective Time").
SECTION 1.04. Effects. The Merger shall have the effects set forth in
this Agreement and Section 259 of the DGCL.
SECTION 1.05. Certificate of Incorporation and By-laws. (a) The
Certificate of Incorporation of the Company shall be amended at the Effective
Time to read in the form of Exhibit A, and, as so amended, such Certificate of
Incorporation shall be the Certificate of Incorporation of the Surviving
Corporation until thereafter changed or amended as provided therein or by
applicable law.
(b) The By-laws of Sub as in effect immediately prior to the Effective
Time shall be the By-laws of the Surviving Corporation until thereafter changed
or amended as provided therein or by applicable law.
SECTION 1.06. Directors. The directors of Sub immediately prior to the
Effective Time shall be the directors of the Surviving Corporation, until the
earlier of their resignation or removal or until their respective successors are
duly elected and qualified, as the case may be.
SECTION 1.07. Officers. The officers of the Company immediately prior
to the Effective Time shall be the officers of the Surviving Corporation, until
the earlier of their resignation or removal or until their respective successors
are duly elected or appointed and qualified, as the case may be.
ARTICLE II
Effect on the Capital Stock of the
Constituent Corporations; Exchange of Certificates
SECTION 2.01. Effect on Capital Stock. At the Effective Time, by
virtue of the Merger and without any
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action on the part of the holder of any shares of Company Common Stock or any
shares of capital stock of Sub:
(a) Capital Stock of Sub. Each issued and outstanding share of capital
stock of Sub shall be converted into and become one fully paid and nonassessable
share of common stock of the Surviving Corporation.
(b) Cancelation of Certain Stock. Each share of Company Common Stock
that is owned by the Company, Parent or Sub shall no longer be outstanding and
shall automatically be canceled and shall cease to exist and no consideration
shall be delivered or deliverable in exchange therefor. Each share of Company
Common Stock that is owned by any subsidiary of the Company or Parent (other
than Sub) shall automatically be converted into one fully paid and nonassessable
share of common stock of the Surviving Corporation. Each share of the Company
Common Stock that is owned by the Principal Company Stockholder shall remain
outstanding as a share of common stock of the Surviving Corporation.
(c) Conversion of Company Common Stock. (i) Except as otherwise
provided in Sections 2.01(b) and 2.01(d), each issued share of Company Common
Stock shall be converted into the right to receive $28.50 in cash.
(ii) The cash payable upon the conversion of shares of Company Common
Stock pursuant to this Section 2.01(c) is referred to collectively as the
"Merger Consideration". As of the Effective Time, all such shares of Company
Common Stock shall no longer be outstanding and shall automatically be canceled
and shall cease to exist, and each holder of a certificate representing any such
shares of Company Common Stock shall cease to have any rights with respect
thereto, except the right to receive Merger Consideration upon surrender of such
certificate in accordance with Section 2.02, without interest.
(d) Appraisal Rights. Notwithstanding anything in this Agreement to
the contrary, but only to the extent required by DGCL, shares of Company Common
Stock that are outstanding immediately prior to the Effective Time and that are
held by any person who is entitled to demand and properly demands appraisal of
such shares ("Appraisal Shares") in connection with the Merger pursuant to, and
who complies in all respects with, Section 262 of the DGCL ("Section 262") shall
not be converted into the right to receive the Merger Consideration as provided
in Section 2.01(c), but rather the holders of Appraisal Shares shall be entitled
to such consideration as may be determined
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to be due to such dissenting stockholders pursuant to Section 262; provided,
however, that if any such holder shall fail to perfect or otherwise shall waive,
withdraw or lose the right to appraisal under Section 262, then the right of
such holder to be paid the fair value of such holder's Appraisal Shares shall
cease and such Appraisal Shares shall be deemed to have been converted as of the
Effective Time into, and to have become exchangeable solely for the right to
receive, the Merger Consideration as provided in Section 2.01(c). The Company
shall serve prompt notice to Parent of any demands received by the Company for
appraisal of any shares of Company Common Stock, and Parent shall have the right
to participate in and direct all negotiations and proceedings with respect to
such demands. Prior to the Effective Time, the Company shall not, without the
prior written consent of Parent, make any payment with respect to, or settle or
offer to settle, any such demands, or agree to do any of the foregoing.
SECTION 2.02. Exchange of Certificates. (a) Paying Agent. Prior to the
Effective Time, Parent shall select a bank or trust company, reasonably
acceptable to the Company, to act as paying agent (the "Paying Agent") for the
payment of the Merger Consideration upon surrender of certificates representing
Company Common Stock converted pursuant to Section 2.01(c). Immediately after
the Effective Time, Parent shall provide to the Paying Agent cash necessary to
pay for the shares of Company Common Stock converted into the right to receive
cash pursuant to Section 2.01(c) (such cash being hereinafter referred to as the
"Exchange Fund").
(b) Exchange Procedure. As soon as reasonably practicable after the
Effective Time, the Paying Agent shall mail to each holder of record of a
certificate or certificates (the "Certificates") that immediately prior to the
Effective Time represented outstanding shares of Company Common Stock whose
shares were converted into the right to receive Merger Consideration pursuant to
Section 2.01, (i) a letter of transmittal (which shall specify that delivery
shall be effected, and risk of loss and title to the Certificates shall pass,
only upon delivery of the Certificates to the Paying Agent and shall be in such
form and have such other provisions as Parent may reasonably specify) and (ii)
instructions for use in effecting the surrender of the Certificates in exchange
for Merger Consideration. Upon surrender of a Certificate for cancelation to the
Paying Agent or to such other agent or agents as may be appointed by Parent,
together with such letter of transmittal, duly executed, and such other docu
ments as may reasonably be required by the Paying Agent, the
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holder of such Certificate shall be entitled to receive in exchange therefor the
amount of cash payable pursuant to Section 2.01, and the Certificate so
surrendered shall forthwith be canceled. In the event of a transfer of ownership
of Company Common Stock that is not registered in the transfer records of the
Company, payment may be made to a person other than the person in whose name the
Certificate so surrendered is registered, if such Certificate shall be properly
endorsed or otherwise be in proper form for transfer and the person requesting
such payment shall pay any transfer or other taxes required by reason of the
payment to a person other than the registered holder of such Certificate or
establish to the satisfaction of Parent that such tax has been paid or is not
applicable. Until surrendered as contemplated by this Section 2.02, each
Certificate shall be deemed at any time after the Effective Time to represent
only the right to receive upon such surrender the amount of cash, without
interest, payable pursuant to Section 2.01. No interest shall be paid or accrue
on the cash payable upon surrender of any Certificate.
(c) No Further Ownership Rights in Company Common Stock. The Merger
Consideration paid in accordance with the terms of this Article II upon
conversion of any shares of Company Common Stock shall be deemed to have been
paid in full satisfaction of all rights pertaining to such shares of Company
Common Stock, subject, however, to the Surviving Corporation's obligation to pay
any dividends or make any other distributions with a record date prior to the
Effective Time that may have been declared or made by the Company on such shares
of Company Common Stock in accordance with the terms of this Agreement or prior
to the date of this Agreement and which remain unpaid at the Effective Time, and
after the Effective Time there shall be no further registration of transfers on
the stock transfer books of the Surviving Corporation of shares of Company
Common Stock that were outstanding immediately prior to the Effective Time and
converted into the right to receive the Merger Consideration pursuant to Section
2.01(c). If, after the Effective Time, any certificates formerly representing
shares of Company Common Stock are presented to the Surviving Corporation or the
Paying Agent for any reason, they shall be canceled and exchanged or otherwise
treated as provided in this Article II.
(d) Termination of Exchange Fund. Any portion of the Exchange Fund
that remains undistributed to the holders of Company Common Stock for nine
months after the Effective Time shall be delivered to Parent, upon demand, and
any holder of Company Common Stock who has not theretofore
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complied with this Article II shall thereafter look only to Parent for payment
of its claim for Merger Consideration.
(e) No Liability. None of Parent, Sub, the Company or the Paying Agent
shall be liable to any person in respect of any cash from the Exchange Fund
delivered to a public official pursuant to any applicable abandoned property,
escheat or similar applicable law.
(f) Investment of Exchange Fund. The Paying Agent shall invest any
cash included in the Exchange Fund, as directed by Parent, on a daily basis in
direct obligations of the United States, obligations for which the full faith
and credit of the United States is pledged to provide for the payment of
principal and interest, commercial paper rated of the highest quality by Xxxxx'x
Investors Services, Inc. or Standard & Poor's Ratings Group or certificates of
deposit, bank repurchase agreements or bankers' acceptances of a commercial bank
having at least $1,000,000,000 in assets (collectively, "Permitted Investments")
or in money market funds which are invested in Permitted Investments. Any
interest and other income resulting from such investments shall be paid to
Parent.
(g) Withholding Rights. Parent, the Surviving Corporation or the
Exchange Agent shall be entitled to deduct and withhold from the consideration
otherwise payable to any holder of Company Common Stock pursuant to this
Agreement such amounts as may be required to be deducted and withheld with
respect to the making of such payment under the Internal Revenue Code of 1986,
as amended (the "Code"), or under any provision of state, local or foreign tax
law.
(h) Lost, Stolen or Destroyed Certificates. In the event any
Certificate shall have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person claiming such Certificate to be lost,
stolen or destroyed, the Paying Agent shall issue in exchange for such lost,
stolen or destroyed Certificate the Merger Consideration deliverable in respect
thereof as determined in accordance with this Article II; provided, however,
that the person to whom the Merger Consideration is paid shall, as a condition
precedent to the payment thereof, give the Surviving Corporation a bond in such
sum as it may direct or otherwise indemnify the Surviving Corporation in a
manner reasonably satisfactory to it against any claim that may be made against
the Surviving Corporation with respect to the Certificate claimed to have been
lost, stolen or destroyed.
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ARTICLE III
Representations and Warranties of the Company
The Company represents and warrants to Parent and Sub that, except as
set forth in the Schedules to this Agreement and as disclosed in Company SEC
Documents:
SECTION 3.01. Organization, Standing and Power. Each of the Company
and each of its subsidiaries (the "Company Subsidiaries") is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized and has full corporate or other power and authority and
possesses all governmental franchises, licenses, permits, authorizations and
approvals necessary to enable it to own, lease or otherwise hold its properties
and assets and to conduct its businesses as presently conducted, other than such
franchises, licenses, permits, authorizations and approvals the lack of which,
individually or in the aggregate, has not had and would not reasonably be
expected to have a material adverse effect on the ability of the Company to
perform its obligations under this Agreement, a material adverse effect on the
ability of the Company to consummate the Merger and the other transactions
contemplated hereby or a material adverse effect on the business, financial
condition or results of operations of the Company and the Company Subsidiaries,
taken as a whole, other than any such effect arising out of or resulting from
(i) changes in general economic conditions, (ii) general changes or developments
in the industries in which the Company and the Company Subsidiaries operate and
(iii) facts or events that are primarily and directly attributable to the
announcement of this Agreement and the transactions contemplated hereby (a
"Company Material Adverse Effect"). The Company has made available to Parent
true and complete copies of the certificate of incorporation of the Company, as
amended to the date of this Agreement (as so amended, the "Company Charter"),
and the By-laws of the Company, as amended to the date of this Agreement (as so
amended, the "Company By-laws"), and the comparable charter and organizational
documents of each Company Subsidiary, in each case as amended through the date
of this Agreement.
SECTION 3.02. Authority; Execution and Delivery; Enforceability. (a)
The Company has all requisite corporate power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and, subject to
obtaining the Company Stockholder Approval, to consummate the transactions
contemplated hereby. The execution and delivery by the Company of this Agreement
and the consummation by the Company of the transactions contemplated
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hereby have been duly authorized by all necessary corporate action on the part
of the Company, subject, in the case of the Merger, to receipt of the Company
Stockholder Approval (as defined in Section 6.01(b)). Except for the Company
Stockholder Approval, no other corporate action on the part of the Company is
necessary to authorize the execution, delivery and performance of this Agreement
and the consummation by it of the transactions contemplated hereby. The Company
has duly executed and delivered this Agreement, and, assuming its due execution
and delivery by the other parties hereto, this Agreement constitutes its legal,
valid and binding obligation, enforceable against it in accordance with its
terms, except to the extent that its enforceability may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
the enforcement of creditors' rights generally and by general equitable
principles.
(b) The Oversight Committee has (i) approved this Agreement and the
Merger, (ii) recommended the adoption of this Agreement and the Merger by the
Company Board and (iii) determined that this Agreement and the Merger are
advisable and in the best interests of the Company and each of the holders of
the Company Common Stock other than the Principal Company Stockholder. The
Company Board, after a unanimous recommendation of the Oversight Committee, at a
meeting duly called and held, has (i) determined that this Agreement and the
Merger are advisable and in the best interests of the Company and each of the
holders of the Company Common Stock other than the Principal Company
Stockholder, (ii) approved this Agreement and the Merger in accordance with the
requirements of the DGCL, (iii) resolved to recommend the adoption of this
Agreement and the Merger by its stockholders other than the Principal Company
Stockholder and (iv) adopted resolutions and taken all necessary actions to
terminate the Letter Agreement dated July 13, 2000, among Xxxxxxxxxx Xxxxx
Bacou, Xxxxxxxxxx Bacou, Philippe Bacou, Xxxxxxxxx Xxxxxxx and the Company. UBS
Warburg has delivered to the Oversight Committee its opinion that the
consideration to be paid in the Merger to each of the holders of the Company
Common Stock other than the Principal Company Stockholder is fair to such holder
from a financial point of view ("UBS Warburg Fairness Opinion").
SECTION 3.03. Consents. No consent, approval, license, permit, order
or authorization of, or registration, declaration or filing with, or permit
from, any Federal, state, local or foreign government or any court of
competent jurisdiction, administrative agency or commission or other
governmental authority or instrumentality, domestic or
10
foreign (a "Governmental Entity") is required to be obtained or made by or with
respect to the Company or any Company Subsidiary in connection with the
execution, delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby, other than (i) compliance with and filings
under (A) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended
(the "HSR Act") and (B) the merger regulations of the Republic of Ireland (the
"Irish Merger Regulation"), (ii) the filing with the SEC of (A) a proxy
statement or an information statement, as the case may be, relating to the
adoption of this Agreement by the Company's stockholders (the "SEC Statement")
and (B) such reports under Section 13 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as may be required in connection with this
Agreement, the Merger and the other transactions contemplated hereby, (iii) the
filing of the Certificate of Merger with the Secretary of State of the State of
Delaware and appropriate documents with the relevant authorities of the other
jurisdictions in which the Company is qualified to do business, (iv) such
filings as may be required in connection with the taxes described in Section
6.09, (v) filings under any applicable state takeover law and (vi) such other
items (A) that may be required under the applicable law of any foreign country,
(B) required solely by reason of the participation of Parent (as opposed to any
third party) in the transactions contemplated hereby or (C) that, individually
or in the aggregate, have not had and would not reasonably be expected to have a
Company Material Adverse Effect.
SECTION 3.04. SEC Documents. The Company has filed all reports,
schedules, forms, statements and other documents required to be filed by the
Company with the Securities and Exchange Commission (the "SEC") since December
31, 1997 (the "Company SEC Documents"). As of its respective date, each Company
SEC Document complied in all material respects with the requirements of the
Exchange Act, or the Securities Act of 1933, as amended (the "Securities Act"),
as the case may be, and the rules and regulations of the SEC promulgated
thereunder applicable to such Company SEC Document, and did not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading. Except to the
extent that information contained in any Company SEC Document has been revised
or superseded by a later filed Company SEC Document, none of the Company SEC
Documents contains any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary in
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order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
SECTION 3.05. Absence of Certain Changes or Events. Except as
disclosed in the Company SEC Documents filed and publicly available prior to the
date of this Agreement (the "Filed Company SEC Documents") or in connection with
the transactions contemplated by this Agreement, from the date of the most
recent audited financial statements included in the Filed Company SEC Documents
to the date of this Agreement, the Company has conducted its business only in
the ordinary course, and during such period there has not been:
(i) any event, change, effect or development that, individually or in
the aggregate, has had or would reasonably be expected to have a Company
Material Adverse Effect;
(ii) any declaration, setting aside or payment of any dividend or
other distribution (whether in cash, stock or property) with respect to any
Company Common Stock or any repurchase for value by the Company of any
Company Common Stock;
(iii) any split, combination or reclassification of any Company Common
Stock or any issuance or the authorization of any issuance of any other
securities in respect of, in lieu of or in substitution for shares of
Company Common Stock;
(iv) except as set forth in Schedule 5.01(a)(v), (A) any granting by
the Company or any Company Subsidiary to any director, officer or employee
of the Company or any Company Subsidiary of any material increase in
compensation, except in the ordinary course of business consistent with
prior practice or as was required under employment agreements or benefit
plans in effect as of the date of the most recent audited financial
statements included in or described in the Filed Company SEC Documents, (B)
any granting by the Company or any Company Subsidiary to any such director,
officer or employee of any material increase in severance or termination
pay, except in the ordinary course of business consistent with past
practice or as was required under any employment, severance or termination
agreements or benefit plans in effect as of the date of the most recent
audited financial statements included in or described in the Filed Company
SEC Documents, or (C) any entry by the Company or any Company Subsidiary
into, or any material
12
amendment of, any employment, severance or termination agreement with
any such director, officer or employee, except in the ordinary course of
business, consistent with past practice; or
(v) any change in accounting methods, principles or practices by the
Company or any Company Subsidiary materially affecting the consolidated
assets, liabilities or results of operations of the Company, except insofar
as may have been required by GAAP.
ARTICLE IV
Representations and Warranties of Parent and Sub
Parent and Sub, jointly and severally, represent and warrant to the
Company as follows:
SECTION 4.01. Organization, Standing and Power. Each of Parent and Sub
is duly organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized and has full corporate power and authority
to conduct its businesses as presently conducted.
SECTION 4.02. Authority; Execution and Delivery; Enforceability. Each
of Parent and Sub has all requisite corporate power and authority to execute and
deliver this Agreement, to perform their respective obligations hereunder and,
subject to receiving approval of the Parent stockholders (the "Parent
Stockholder Approval") in connection with the consummation of the French
Transactions (as defined in the Master Agreement), to consummate the
transactions contemplated hereby. The execution and delivery by each of Parent
and Sub of this Agreement and the consummation by each of them of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Parent and Sub, subject to receipt of the Parent
Stockholder Approval. Except for the Parent Stockholder Approval, no other
corporate action on the part of either Parent or Sub is necessary to authorize
the execution, delivery and performance of this Agreement by each of Parent and
Sub and the consummation by each of them of the transactions contemplated
hereby. Parent, as sole stockholder of Sub, has, simultaneously with the
execution and delivery of this Agreement, adopted this Agreement. Each of Parent
and Sub has duly executed and delivered this Agreement, and, assuming its due
execution and delivery by the Company, this Agreement constitutes its legal,
valid and binding obligation, enforceable against it in accordance with its
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terms, except to the extent that its enforceability may be subject to
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles.
SECTION 4.03. Consents. No consent, approval, license, permit, order
or authorization of, or registration, declaration or filing with, or permit
from, any Governmental Entity is required to be obtained or made by or with
respect to the Parent or Sub or any Subsidiary of Parent or Sub in connection
with the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby, other than (i) compliance
with and filings under (A) the HSR Act and (B) the Irish Merger Regulation, (ii)
the filing of the Certificate of Merger with the Secretary of State of the State
of Delaware and appropriate documents with the relevant authorities of the other
jurisdictions in which Sub is qualified to do business, (iii) such filings as
may be required in connection with the taxes described in Section 6.09, (iv)
filings under applicable state takeover law and (v) such other items (A) that
may be required under the applicable law of any foreign country, (B) required
solely by reason of the participation of Parent (as opposed to any third party)
in the transactions contemplated hereby or (C) that, individually or in the
aggregate, have not had and would not reasonably be expected to have a material
adverse effect on the ability of Parent to consummate the Merger and the other
transactions contemplated hereby.
SECTION 4.04. Broker's or Finder's Fee. Except for Rotschild & Cie
(whose fees and expenses as financial advisor to Parent and Sub shall be paid by
Parent or Sub), no agent, broker, Person or firm acting on behalf of Parent or
Sub is, or shall be, entitled to any fee, commission or broker's or finder's
fees from any of the parties hereto, or from any Person controlling, controlled
by, or under common control with any of the parties hereto, in connection with
this Agreement or any of the transactions contemplated hereby.
SECTION 4.05. Financing. Parent has or shall have, or shall have
financing commitments in place, at such time or times as such funds may be
required, sufficient financing (i) to pay any fees and expenses in connection
with the transactions contemplated hereby, (ii) to satisfy the obligations to
pay any existing indebtedness that is required to be repaid by the Company or
any Company Subsidiary as a result of the transactions contemplated
14
hereby and (iii) to provide to Sub sufficient funds in full to consummate the
Merger in accordance with this Agreement.
ARTICLE V
Covenants Relating to Conduct of Business
SECTION 5.01. Conduct of Business. (a) Conduct of Business by the
Company. Except as otherwise expressly permitted by this Agreement, from the
date of this Agreement to the Effective Time the Company shall, and shall cause
each Company Subsidiary to, conduct its business in the usual, regular and
ordinary course in substantially the same manner as previously conducted and use
all reasonable efforts to preserve intact its current business organization,
keep available the services of its current officers and employees and keep its
relationships with customers, suppliers, licensors, licensees, distributors and
others having business dealings with them to the end that its goodwill and
ongoing business shall be unimpaired at the Effective Time. In addition, and
without limiting the generality of the foregoing, except for matters expressly
permitted by this Agreement, from the date of this Agreement to the Effective
Time, the Company shall not, and shall not permit any Company Subsidiary to, do
any of the following without the prior written consent of Parent:
(i) (A) declare, set aside or pay any dividends on, or make any other
distributions in respect of, any of its capital stock, other than dividends
and distri butions by a direct or indirect wholly owned subsidiary of the
Company to its parent, (B) split, combine or reclassify any of its capital
stock or issue or author ize the issuance of any other securities in
respect of, in lieu of or in substitution for shares of its capital stock,
or (C) purchase, redeem or otherwise acquire any shares of capital stock of
the Company or any Company Subsidiary or any other securities thereof or
any rights, warrants or options to acquire any such shares or other
securities;
(ii) except for the financings contemplated in connection with this
Agreement and the French Transactions, issue, deliver, sell, pledge or
otherwise encumber any shares of its capital stock, any other equity or
voting interests or any securities convertible into, or exchangeable for,
or any options, warrants, calls or rights to acquire, any such shares,
voting securities or convertible securities or any stock appreciation
rights or other rights that are
15
linked to the price of Company Common Stock (other than the issuance of
shares of Company Common Stock upon the exercise of Company stock options
in accordance with the terms of such options as in effect on the date of
this Agreement);
(iii) amend its certificate of incorporation, by- laws or other
comparable charter or organizational documents;
(iv) acquire or agree to acquire (A) by merging or consolidating with,
or by purchasing a substantial equity interest in or portion of the assets
of, or by any other manner, any business or any corporation, partnership,
joint venture, association or other business organization or division
thereof or (B) any assets other than immaterial assets in the ordinary
course of business consistent with past practice;
(v) except as set forth in Schedule 5.01(a)(v), (A) grant to any
employee, officer or director of the Company or any Company Subsidiary any
increase in compensation, except to the extent required under employment
agreements or benefit plans in effect as of the date of the most recent
audited financial statements included in or described in the Filed Company
SEC Documents and except in the ordinary course of business consistent with
past practice, (B) grant to any employee, officer or director of the
Company or any Company Subsidiary any increase in severance or termination
pay, except to the extent required under any agreement or benefit plans in
effect as of the date of the most recent audited financial statements
included in or described in the Filed Company SEC Documents and except in
the ordinary course of business consistent with past practice, (C) enter
into any employment, consulting, indemnification, severance or termination
agreement with any such employee, officer or director, except in the
ordinary course of business consistent with past practice, (D) establish,
adopt, enter into or amend in any material respect any collective
bargaining agreement or Company benefit plan, except in the ordinary course
of business consistent with past practice or (E) take any action to
accelerate any rights or benefits, or make any material determinations not
in the ordinary course of business consistent with past practice, under any
collective bargaining agreement or Company benefit plan;
(vi) make any change in accounting methods, principles or practices
materially affecting the
16
reported consolidated assets, liabilities or results of operations of the
Company, except insofar as may have been required by GAAP;
(vii) directly or indirectly sell, lease, license, sell and leaseback,
or subject to any pledge, lien, charge, mortgage, encumbrance or security
interest of any kind or nature whatsoever (collectively, "Liens") or
otherwise dispose of any of its properties or assets or any interest
therein, except sales of immaterial assets in the ordinary course of
business consistent with past practice and except in connection with the
financings relating to this Agreement and the French Transactions;
(viii) (A) repurchase, prepay or incur any indebtedness or guarantee
any indebtedness of another person or issue or sell any debt securities or
options, warrants, calls or other rights to acquire any debt securities of
the Company or any of its subsidiaries, guarantee any debt securities of
another person, enter into any "keep well" or other agreement to maintain
any financial statement condition of another person or enter into any
arrangement having the economic effect of any of the foregoing, except for
short-term borrowings and repayments incurred in the ordinary course of
business consistent with past practice or (B) make any loans, advances or
capital contributions to, or investments in, any other person, other than
the Company or any Company Subsidiary, and other than in connection with
the financings relating to this Agreement and the French Transactions;
(ix) (A) pay, discharge or satisfy any claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise), other than the payment, discharge or satisfaction, in the
ordinary course of business consistent with past practice or in accordance
with their terms, of liabilities reflected or reserved against in, or
contemplated by, the most recent consolidated financial statements (or the
notes thereto) of the Company included in the Filed Company SEC Documents
or incurred in the ordinary course of business consistent with past
practice, (B) cancel any material indebtedness (individually or in the
aggregate) or waive any claims or rights of substantial value or (C) waive
the benefits of, or agree to modify in any manner, any confidentiality,
standstill or similar agreement to which the Company or any Company
Subsidiary is a party, except in connection with the
17
financings relating to this Agreement and the French Transactions; or
(x) authorize any of, or commit or agree to take any of, the foregoing
actions, except in connection with the financings relating to this
Agreement and the French Transactions.
(b) Other Actions. The Company and Parent shall not, and shall not
permit any of their respective subsidiaries to, take any action that would, or
that could reasonably be expected to, result in any condition to the Merger set
forth in Article VII, not being satisfied.
(c) Certain Tax Matters. During the period from the date of this
Agreement to the Effective Time, the Company shall, and shall cause each Company
Subsidiary to, (i) timely file all material tax returns ("Post-Signing Returns")
required to be filed by it; (ii) timely pay all material taxes due and payable
in respect of such Post- Signing Returns that are so filed; (iii) accrue a
reserve in its books and records and financial statements in accordance with
past practice for all material taxes payable by it for which no Post-Signing
Return is due prior to the Effective Time; (iv) promptly notify Parent of any
suit, claim, action, investigation, proceeding or audit (collectively,
"Actions") pending against or with respect to the Company or any Company
Subsidiary in respect of any material tax and not settle or compromise any such
Action without Parent's consent; (v) not make any material tax election without
Parent's consent; and (vi) cause any and all existing tax sharing agreements,
arrangements and practices with respect to taxes to which the Company or any
Company Subsidiary is a party or by which the Company or any Company Subsidiary
is otherwise bound to be terminated as of the Closing Date so that after such
date neither the Company nor any Company Subsidiary shall have any further
rights or liabilities thereunder.
(d) Advice of Changes; Filings. The Company shall (i) confer with
Parent on a regular and frequent basis to report on operational matters and
other matters requested by Parent and (ii) promptly advise Parent orally and in
writing of any change or event that would reasonably be expected to have a
Company Material Adverse Effect. The Company and Parent shall each promptly
provide the other copies of all filings made by such party with any Governmental
Entity in connection with this Agreement and the transactions contemplated
hereby, other than the portions of such filings that include confidential
18
information not directly related to the transactions contemplated by this
Agreement.
SECTION 5.02. No Solicitation. (a) Except as provided below, the
Company shall not, nor shall it authorize or permit any Company Subsidiary to,
nor shall it authorize or permit any officer, director or employee of, or any
investment banker, attorney or other advisor or representative (collectively,
"Representatives") of, the Company or any Company Subsidiary to, during the
period from the date of this Agreement to the Effective Time, (i) directly or
indirectly solicit, initiate or encourage the submission of, any Company
Takeover Proposal (as defined in Section 5.02(d)), (ii) enter into any agreement
with respect to any Company Takeover Proposal or (iii) directly or indirectly
participate in any discussions or negotiations regarding, or furnish to any
person any information with respect to, or take any other action to facilitate
any inquiries or the making of any proposal that constitutes, or may reasonably
be expected to lead to, any Company Takeover Proposal. Notwithstanding the
foregoing, if the Company, the Company Board or the Oversight Committee, without
being in violation of the terms of this Section 5.02(a), receives an unsolicited
bona fide proposal from any Person or group with respect to a Company Takeover
Proposal which could reasonably be expected to result in a Superior Proposal,
then the Company may, directly or indirectly, furnish information and access to
such Person or group pursuant to an appropriate confidentiality agreement, and
may participate in discussions and negotiations with such Person or group.
(b) Except as provided below, neither the Company Board nor any
committee thereof shall, from the date of this Agreement to the earlier to occur
of the termination of this Agreement and the Effective Time, (i) withdraw or
modify in a manner adverse to Parent or Sub, or propose to withdraw or modify,
in a manner adverse to Parent or Sub, the approval or recommendation by the
Company Board or any such committee of this Agreement or the Merger, (ii)
approve any letter of intent, agreement in principle, acquisition agreement or
similar agreement relating to any Company Takeover Proposal or (iii) approve or
recommend, or propose to approve or recommend, any Company Takeover Proposal.
Notwithstanding the foregoing, if, prior to receipt of the Company Stockholder
Approval, the Company Board receives a Superior Proposal and as a result thereof
the Oversight Committee determines in good faith, after receipt of advice of its
outside legal counsel, that failure to take such action would constitute a
breach of the Company Board's fiduciary duties to the Company's stockholders
under applicable law,
19
the Oversight Committee (and the Company Board acting on the recommendation of
the Oversight Committee) may withdraw or modify its approval or recommendation
of this Agreement and the Merger and disclose such withdrawal or modification to
the Company's stockholders.
(c) The Company shall promptly advise Parent of any Company Takeover
Proposal or any inquiry with respect to or that could reasonably be expected to
lead to any Company Takeover Proposal, occurring during the period from the date
of this Agreement to the earlier of the termination of this Agreement and the
Effective Time, and the identity of the person making any such Company Takeover
Proposal or inquiry, including any change to the material terms of any such
Company Takeover Proposal or inquiry. The Company shall (i) keep Parent fully
informed of the status (including any change to the details) of any such Company
Takeover Proposal or inquiry and (ii) provide to Parent as soon as practicable
after receipt or delivery thereof with copies of all correspondence and other
written material sent or provided to the Company from any third party in
connection with any Company Takeover Proposal or sent or provided by the Company
to any third party in connection with any Company Takeover Proposal.
(d) For purposes of this Agreement, "Company Takeover Proposal" means
(i) any proposal or offer for a merger, consolidation, dissolution,
recapitalization or other business combination involving the Company, (ii) any
proposal for the issuance by the Company of over 15% of its equity securities as
consideration for the assets or securities of another person or (iii) any
proposal or offer to acquire in any manner, directly or indirectly, over 15% of
the equity securities or consolidated total assets of the Company, in each case
other than the transactions contemplated by this Agreement and other than any
acquisition transaction permitted by Section 5.01. For the purposes of this
Agreement, "Superior Proposal" means any bona fide proposal to acquire, directly
or indirectly, for consideration consisting of cash, all of the shares of
Company Common Stock then outstanding or all or substantially all of the assets
of the Company to be followed by a pro rata distribution of the sale proceeds to
the stockholders of the Company, that (i) provides holders of the Company Common
Stock with per share consideration that the Oversight Committee determines in
good faith, after receipt of advice of its financial advisor, is more favorable
from a financial point of view than the consideration to be received by holders
of Company Common Stock in the Merger, (ii) is determined by the Oversight
Committee in its good faith judgment, after receipt of
20
advice of its financial advisor and outside legal counsel, to be likely of being
completed (taking into account all legal, financial, regulatory and other
aspects of the proposal, the person making the proposal and the expected timing
to complete the proposal), (iii) does not, in the definitive acquisition
agreement, contain any "due diligence" conditions, and (iv) has not been
obtained by or on behalf of the Company in violation of this Section 5.02.
(e) Notwithstanding any provision of this Agreement to the contrary,
the Company Board shall be permitted, to the extent applicable, to comply with
Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to
any Company Takeover Proposal, or make any other disclosure required by
applicable law, so long as any such disclosure rejects any Company Takeover
Proposal and reaffirms the Company Board's recommendation of the transactions
contemplated by this Agreement, subject to Section 5.02(b) hereof. For avoidance
of doubt, none of the Company, the Company Board or the Oversight Committee may
terminate this Agreement as a result of the existence of a Superior Proposal.
ARTICLE VI
Additional Agreements
SECTION 6.01. Preparation of SEC Statement; Stockholders Meeting. (a)
As promptly as practicable following the date of this Agreement, the Company and
Parent shall prepare and file with the SEC an information statement on Schedule
14C and an information statement on Schedule 13E-3 (collectively referred to
herein as the "Information Statement") in preliminary form, and each of the
Company and Parent shall use its reasonable efforts to respond as promptly as
practicable to any comments of the SEC with respect thereto. The Company shall
notify Parent promptly of the receipt of any comments from the SEC or its staff
and of any request by the SEC or its staff for amendments or supplements to the
SEC Statement or for additional information and shall supply Parent with copies
of all correspondence between the Company or any of its representatives, on the
one hand, and the SEC or its staff, on the other hand, with respect to the SEC
Statement. The Company shall not mail any SEC Statement, or any amendment or
supplement thereto, to which Parent reasonably objects.
(b) In the event that the Company and Parent are informed by the SEC
that the SEC plans to review the Information Statement, the Company and Parent
may, in Parent's sole discretion, elect to file the SEC Statement as
21
a proxy statement instead of an Information Statement and, as soon as
practicable thereafter, the Company shall duly call, give notice of, convene and
hold a meeting of its stockholders (the "Company Stockholders Meeting") for the
purpose of seeking the adoption of this Agreement by such stockholders (such
adoption, whether obtained at the Company Stockholders Meeting or by written
consent in lieu of the Company Stockholders Meeting, the "Company Stockholder
Approval"). Except as permitted by Section 5.02(b), the proxy statement shall
include (i) the recommendation of the Oversight Committee to the Company
stockholders in favor of the Company Stockholder Approval and (ii) the
recommendation of the Company Board to the Company stockholders in favor of the
Company Stockholder Approval. Without limiting the generality of the foregoing,
the Company agrees that its obligations pursuant to the first sentence of this
Section 6.01(b) shall not be affected by the commencement, public proposal,
public disclosure or communication to the Company of any Company Takeover
Proposal.
SECTION 6.02. Access to Information; Confidentiality. The Company
shall, and shall cause each Company Subsidiary to, afford to Parent, and to
Parent's officers, employees, accountants, counsel, financial advisors and other
representatives, reasonable access during normal business hours during the
period prior to the Effective Time to all their respective properties, books,
contracts, commitments, personnel and records and, during such period, the
Company shall, and shall cause each Company Subsidiary to, furnish promptly to
Parent (a) a copy of each report, schedule, registration statement and other
document filed by it during such period pursuant to the requirements of Federal
or state securities laws and (b) all other information concerning its business,
properties and personnel as Parent may reasonably request. All information
exchanged pursuant to this Section 6.02 shall be subject to the confidentiality
agreement dated August 11, 2000, between the Company and Parent (the
"Confidentiality Agreement").
SECTION 6.03. Reasonable Best Efforts; Notification. (a) Upon the
terms and subject to the conditions set forth in this Agreement, each of the
parties shall use its reasonable best efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and cooperate with the
other parties in doing, all things necessary, proper or advisable to consummate
and make effective, in the most expeditious manner practicable, the Merger and
the other transactions contemplated hereby, including (i) the obtaining of all
necessary actions or nonactions, waivers, consents and approvals from
Governmental Entities and the making of all necessary
22
registrations and filings (including filings with Governmental Entities, if any)
and the taking of all reasonable steps as may be necessary to obtain an approval
or waiver from, or to avoid an action or proceeding by, any Governmental Entity,
(ii) the obtaining of all necessary consents, approvals or waivers from third
parties, (iii) the defending of any lawsuits or other legal proceedings, whether
judicial or administrative, challenging this Agreement or the consummation of
the transactions contemplated hereby, including seeking to have any stay or
temporary restraining order entered by any court or other Governmental Entity
vacated or reversed and (iv) the execution and delivery of any additional
instruments necessary to consummate the transactions contemplated hereby and to
fully carry out the purposes of this Agreement. In connection with and without
limiting the foregoing, the Company and the Company Board shall (i) take all
action necessary to ensure that no state takeover statute or similar statute or
regulation is or becomes applicable to this Agreement or any transaction
contemplated hereby and (ii) if any state takeover statute or similar statute or
regulation becomes applicable to this Agreement, take all action necessary to
ensure that the Merger and the other transactions contemplated hereby may be
consummated as promptly as practicable on the terms contemplated by this
Agreement and otherwise to minimize the effect of such statute or regulation on
the Merger and the other transactions contemplated hereby. Nothing in this
Agreement shall be deemed to require any party to waive any substantial rights
or agree to any substantial limitation on its operations or to dispose of any
significant asset or collection of assets.
(b) The Company shall give prompt notice to Parent, and Parent or Sub
shall give prompt notice to the Company, of (i) any representation or warranty
made by it contained in this Agreement that is qualified as to materiality
becoming untrue or inaccurate in any respect or any such representation or
warranty that is not so qualified becoming untrue or inaccurate in any material
respect or (ii) the failure by it to comply with or satisfy in any material
respect any covenant, condition or agreement to be complied with or satisfied by
it under this Agreement; provided, however, that no such notification shall
affect the representations, warranties, covenants, conditions or agreements of
the parties or the conditions to the obligations of the parties under this
Agreement.
SECTION 6.04. Stock Options. (a) As soon as practicable following the
date of this Agreement, the Company Board (or, if appropriate, any committee
23
administering the Company Stock Plans) shall adopt such resolutions or take such
other actions as are required to adjust the terms of all Company Employee Stock
Options to provide that each Company Employee Stock Option outstanding at the
Effective Time shall become fully exercisable and vested and shall not give the
holder thereof the right to receive any capital stock of the Company or the
Surviving Corporation after the Effective Time or to receive from the Company or
the Surviving Corporation any consideration other than, in the case of the
exercise of any Company Employee Stock Option, cash equal to the product of (i)
the number of shares of Company Common Stock subject to such Company Employee
Stock Option immediately prior to the Effective Time and (ii) the excess, if
any, of the Merger Consideration over the per share exercise price of such
Company Employee Stock Option.
(b) All amounts payable pursuant to this Section 6.04 shall be subject
to any required withholding of taxes and shall be paid without interest. The
Company shall use its reasonable best efforts to obtain all consents of the
holders of the Company Employee Stock Options as shall be necessary to
effectuate the foregoing. Notwithstanding anything to the contrary contained in
this Agreement, payment shall, at Parent's request, be withheld in respect of
any Company Employee Stock Option until all necessary consents are obtained.
(c) The Company Stock Plans shall terminate as of the Effective Time,
and the provisions in any other benefit plan providing for the issuance,
transfer or grant of any capital stock of the Company or any interest in respect
of any capital stock of the Company shall be deleted as of the Effective Time,
and the Company shall ensure that following the Effective Time no holder of a
Company Employee Stock Option or any participant in any Company Stock Plan or
other Company benefit plan shall have any right thereunder to acquire any
capital stock of the Company or the Surviving Corporation.
(d) In this Agreement:
"Company Employee Stock Option" means any option, whether or not then
fully exercisable or vested, to purchase Company Common Stock granted under
any Company Stock Plan.
"Company Stock Plans" means the Company 1996 Stock Incentive Plan, the
Company 1996 Non-Employee Director Stock Option Plan, the 1998 Xxxxxx X.
Xxxxxx Stock
24
Option Plan and the Bonus and Option Plan for CEO, COO and CFO of the
Company for 2000.
SECTION 6.05. Benefit Plans. (a) From the Effective Time until
December 31, 2001, Parent shall either (i) maintain or cause the Surviving
Corporation (or in the case of a transfer of all or substantially all the assets
and business of the Surviving Corporation, its successors and assigns) to
maintain the Company benefit plans (other than plans providing for the issuance
of Company Common Stock or based on the value of Company Common Stock) at the
benefit levels in effect on the date of this Agreement or (ii) provide or cause
the Surviving Corporation (or, in such case, its successors or assigns) to
provide wages, salaries, bonuses and other benefits to employees of the Company
and the Company Subsidiaries that are at least equal to the current benefits
received by such employees.
(b) From and after the Effective Time, Parent shall, and shall cause
the Surviving Corporation to honor in accordance with their respective terms (as
in effect on the date of this Agreement), all the Company's employment, bonus,
commission, severance and termination agreements, plans and policies.
(c) With respect to any "employee benefit plan", as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended,
maintained by Parent or any of its subsidiaries (including any severance plan),
for all purposes, including determining eligibility to participate, level of
benefits and vesting, service with the Company or any Company Subsidiary shall
be treated as service with Parent or any of its subsidiaries; provided, however,
that such service need not be recognized to the extent that such recognition
would result in any duplication of benefits.
SECTION 6.06. Indemnification, Exculpation and Insurance. (a) Parent
and Sub agree that all rights to indemnification, advancement of expenses and
exculpation from liabilities for acts or omissions occurring at or prior to the
Effective Time now existing in favor of the current or former directors or
officers of the Company and each Company Subsidiary as provided in their
respective certificates of incorporation or by-laws (or similar organizational
documents) shall be assumed by the Surviving Corporation, without further
action, at the Effective Time and shall survive the Merger and shall continue in
full force and effect in accordance with their terms. Parent shall cause the
Surviving Corporation to perform in a timely manner all of its obligations with
respect to such
25
indemnification, advancement and rights, including, if necessary, providing to
the Surviving Corporation any funds necessary to ensure that such obligations of
the Surviving Corporation are satisfied.
(b) In the event that Parent or the Surviving Corporation or any of
their respective successors or assigns (i) consolidates with or merges into any
other person and is not the continuing or surviving corporation or entity of
such consolidation or merger or (ii) transfers or conveys all or substantially
all its properties and assets to any person, then, and in each such case, Parent
shall cause proper provision to be made so that the successor and assign of
Parent or the Surviving Corporation, as the case may be, assumes the obligations
set forth in this Section 6.06, and in such event all references to Parent or
the Surviving Corporation, as the case may be, in this Section 6.06 shall be
deemed a reference to such successor and assign.
(c) For six years after the Effective Time, Parent shall maintain in
effect the Company's current directors' and officers' liability insurance
covering each person currently covered by the Company's directors' and officers'
liability insurance policy for acts or omissions occurring prior to the
Effective Time on terms with respect to such coverage and amounts no less
favorable in any material respect to such directors and officers than those of
such policy as in effect on the date of this Agreement; provided, however, that
Parent may substitute therefor policies of a reputable insurance company the
material terms of which, including coverage and amount, are no less favorable in
any material respect to such directors and officers than the insurance coverage
otherwise required under this Section 6.06(c); provided, however, that in no
event shall Parent be required to pay aggregate premiums for insurance under
this Section 6.06(c) in excess of 200% of the amount of the aggregate premiums
payable by the Company for 2001 for such purpose (which 2001 premiums are hereby
represented and warranted by the Company to be $197,305); provided further,
however, that Parent shall nevertheless be obligated to provide as much coverage
as may be obtained for such 200% amount.
SECTION 6.07. Fees and Expenses. All fees and expenses incurred in
connection with this Agreement, the Merger and the other transactions
contemplated hereby shall be paid in accordance with the provisions of the
Master Agreement (as defined in Section 7.01(c)); provided, however, that the
Company shall be responsible for the reasonable costs and expenses of the
Oversight Committee
26
(including reasonable costs and expenses of its legal counsel and financial
advisors).
SECTION 6.08. Public Announcements. None of Parent, Sub or the Company
shall issue any press release or make any other public statements with respect
to the Merger or any other transaction contemplated hereby other than in
accordance with the Master Agreement, except as may be required by applicable
law, court process or by obligations pursuant to any listing agreement with any
national securities exchange.
SECTION 6.09. Transfer Taxes. All stock transfer, real estate
transfer, documentary, stamp, recording and other similar taxes (including
interest, penalties and additions to any such taxes) ("Transfer Taxes") incurred
in connection with the transactions contemplated hereby shall be paid by either
Sub or the Surviving Corporation, and the Company shall cooperate with Sub and
Parent in preparing, executing and filing any tax returns with respect to such
Transfer Taxes.
ARTICLE VII
Conditions Precedent
SECTION 7.01. Conditions to Each Party's Obligation To Effect The
Merger. The respective obligation of each party to effect the Merger is subject
to the satisfaction or waiver on or prior to the Closing Date of the following
conditions:
(a) Stockholder Approval. The Company shall have obtained the Company
Stockholder Approval.
(b) No Injunctions or Restraints. No order or injunction issued by any
court of competent jurisdiction or other law preventing the consummation of the
Merger shall be in effect; provided, however, that prior to asserting this
condition each of the parties shall have used its best efforts to prevent the
entry of any such injunction or other order and to appeal as promptly as
possible any such judgment that may be entered.
(c) French Transactions. All the conditions precedent to the
consummation of the Contribution Agreement, other than the Merger, shall have
been satisfied or waived in accordance with the terms and conditions of the
Master Agreement.
27
SECTION 7.02. Conditions to Obligations of Parent and Sub. The
obligations of Parent and Sub to effect the Merger are further subject to the
following conditions:
(a) Representations and Warranties. The representations and warranties
of the Company contained herein that are qualified as to materiality shall be
true and correct, and the representations and warranties of the Company
contained herein that are not so qualified shall be true and correct in all
material respects, in each case as of the date of this Agreement and as of the
Closing Date with the same effect as though made as of the Closing Date, except
that the accuracy of representations and warranties that by their terms speak as
of a specified date will be determined as of such date. Parent shall have
received a certificate signed on behalf of the Company by the chief executive
officer or chief financial officer of the Company to such effect.
(b) Performance of Obligations of the Company. The Company shall have
performed in all material respects all obligations required to be performed by
it under this Agreement at or prior to the Closing Date, and Parent shall have
received a certificate signed on behalf of the Company by the chief executive
officer or chief financial officer of the Company to such effect.
(c) No Litigation. There shall not be pending or threatened any suit,
action or proceeding by any Governmental Entity that has a reasonable likelihood
of success and which if successful would have a Company Material Adverse Effect,
(i) challenging the acquisition by Parent or Sub of any Company Common Stock,
seeking to restrain or prohibit the consummation of the Merger or any other
transaction contemplated hereby or seeking to obtain from the Company, Parent or
Sub any damages that are material in relation to Parent, Company and the Company
Subsidiaries taken as a whole, (ii) seeking to prohibit or limit the ownership
or operation by the Company, Parent or any of their respective subsidiaries of
any material portion of the business or assets of the Company, Parent or any of
their respective subsidiaries of any material portion of the business or assets
of the Company, Parent or any of their respective subsidiaries, or to compel the
Company, Parent or any of their respective subsidiaries to dispose of or hold
separate any material portion of the business or assets of the Company, Parent
or any of their respective subsidiaries, as a result of the Merger or any other
transaction contemplated hereby, (iii) seeking to impose limitations on the
ability of Parent to acquire or hold, or exercise full rights of ownership of,
any shares of Company Common Stock,
28
including the right to vote the Company Common Stock purchased by it on all
matters properly presented to the stockholders of the Company or (iv) seeking to
prohibit Parent or any of its subsidiaries from effectively controlling in any
material respect the business or operations of the Company and the Company
Subsidiaries, taken as a whole.
(d) Employment Agreements. The termination agreements specified in
Schedule 5.01(a)(v) shall have been satisfied.
SECTION 7.03. Condition to Obligation of the Company. The obligation
of the Company to effect the Merger is further subject to the following
conditions:
(a) Representations and Warranties. The representations and warranties
of Parent and Sub contained herein that are qualified as to materiality shall be
true and correct, and the representations and warranties of Parent and Sub
contained herein that are not so qualified shall be true and correct in all
material respects, in each case as of the date of this Agreement and as of the
Closing Date with the same effect as though made as of the Closing Date, except
that the accuracy of representations and warranties that by their terms speak as
of a specified date will be determined as of such date. The Company shall have
received certificates signed on behalf of each of Parent and Sub by their
respective chief executive officer or chief financial officer to such effect.
(b) Performance of Obligations of Parent and Sub. Each of Parent and
Sub shall have performed in all material respects all obligations required to be
performed by each of them under this Agreement at or prior to the Closing Date,
and the Company shall have received certificates signed on behalf of each of
Parent and Sub by their respective chief executive officer or chief financial
officer to such effect.
ARTICLE VIII
Termination, Amendment and Waiver
SECTION 8.01. Termination. This Agreement may be terminated at any
time prior to the Effective Time, whether before or after receipt of Company
Stockholder Approval:
(a) by mutual written consent of Parent, Sub and the Company;
29
(b) by either Parent or the Company:
(i) if the Merger is not consummated on or before December 31,
2001 (the "Outside Date"); provided, however, that the right to
terminate this Agreement pursuant to this Section 8.01(b)(i) shall not
be available to any party whose breach of this Agreement has been a
principal reason the Merger has not been consummated by such date;
(ii) if any Governmental Entity issues an order, decree or ruling
or takes any other action permanently enjoining, restraining or
otherwise prohibiting the Merger and such order, decree, ruling or
other action shall have become final and nonappealable;
(iii) if, upon a vote at a duly held meeting to obtain the
Company Stockholder Approval, the Company Stockholder Approval is not
obtained; or
(iv) if the agreements, including the Master Agreement, forming
or governing the French Transactions are terminated in accordance with
their terms; or
(c) by Parent, if the Company breaches or fails to perform in any
material respect any of its representations, warranties or covenants
(including Section 5.02) contained in this Agreement, which breach or
failure to perform (other than a breach of Section 5.02) (i) would give
rise to the failure of a condition set forth in Section 7.02(a) or 7.02(b),
and (ii) cannot be or has not been cured within 30 days after the giving of
written notice to the Company of such breach.
SECTION 8.02. Effect of Termination. In the event of termination of
this Agreement by either the Company or Parent as provided in Section 8.01, this
Agreement shall forthwith become void and have no effect, without any liability
or obligation on the part of Parent, Sub or the Company, other than the last
sentence of Section 6.02, Section 6.07, this Section 8.02 and Article IX, which
provisions shall survive such termination, and except to the extent that such
termination results from the wilful breach by a party of any representation,
warranty or covenant set forth in this Agreement.
SECTION 8.03. Amendment. This Agreement may be amended by the parties
at any time before or after receipt
30
of the Company Stockholder Approval; provided, however, that after receipt of
the Company Stockholder Approval, there shall be made no amendment that by Law
requires further approval by the stockholders of the Company 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.
SECTION 8.04. 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) subject to the proviso of
Section 8.03, 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.
ARTICLE IX
General Provisions
SECTION 9.01. Nonsurvival of Representations and Warranties. None of
the representations and warranties in this Agreement or in any instrument
delivered pursuant to this Agreement and none of the covenants contained in
Section 5.01(c) shall survive the Effective Time. This Section 9.01 shall not
limit any covenant or agreement of the parties which by its terms contemplates
performance after the Effective Time.
SECTION 9.02. Notices. All notices, requests, claims, demands and
other communications under this Agree ment shall be in writing and shall be
deemed given upon receipt by the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
(a) if to Parent or Sub, to
Christian Dalloz
00 xxx, Xxxxxxxxx Xxxxxxxxx
00000 Xxxxx
FRANCE
31
Attention:
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Cami, Esq.
with an additional copy to:
Xxxxxx Prat
000 xxx xx Xxxxxxxx Xxxxx-Xxxxxx
00000 Xxxxx
XXXXXX
Attention: Xxxxx Xxxxxx
(b) if to the Company, to
Bacou USA, Inc.
00 Xxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
with a copy to:
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
SECTION 9.03. Definitions. For purposes of this Agreement:
An "affiliate" of any person means another person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such first person.
A "person" means any individual, firm, corporation, partnership,
company, limited liability company, trust, joint venture, association,
Governmental Entity or other entity.
A "subsidiary" of any person means another person, an amount of the
voting securities, other voting ownership
32
or voting partnership interests of which is sufficient to elect at least a
majority of its Board of Directors or other governing body (or, if there are no
such voting interests, 50% or more of the equity interests of which) is owned
directly or indirectly by such first person.
SECTION 9.04. Interpretation. When a reference is made in this
Agreement to a Section, such reference shall be to a Section of this Agreement
unless otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation".
SECTION 9.05. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule or law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the extent
possible.
SECTION 9.06. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
SECTION 9.07. Entire Agreement; No Third-Party Beneficiaries. This
Agreement, the Master Agreement and the Confidentiality Agreement (a) constitute
the entire agreement, and supersede all prior agreements and under standings,
both written and oral, among the parties with respect to the subject matter of
this Agreement and the Confidentiality Agreement and (b) except for the
provisions of Article II, Section 6.04 and Section 6.06 of this Agreement, are
not intended to confer upon any person other than the parties hereto and thereto
(and their respective successors and assigns) any rights or remedies.
SECTION 9.08. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the
33
laws of the State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
SECTION 9.09. Assignment. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by opera tion of law or otherwise by any of the parties
without the prior written consent of the other parties, except that Sub may
assign, in its sole discretion, any of or all its rights, interests and
obligations under this Agreement to Parent or to any direct or indirect wholly
owned subsidiary of Parent, but no such assignment shall relieve Sub of any of
its obligations under this Agreement. Any purported assignment without such
consent shall be void. Subject to the preceding sentences, this Agreement will
be binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns.
SECTION 9.10. Enforcement. The parties 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 shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any Delaware state court or any
Federal court located in the State of Delaware, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (a) consents to submit itself to the personal jurisdiction
of any Delaware state court or any Federal court located in the State of
Delaware in the event any dispute arises out of this Agreement or any
Transaction, (b) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court, (c)
agrees that it will not bring any action relating to this Agreement or any
Transaction in any court other than any Delaware state court or any Federal
court sitting in the State of Delaware and (d) waives any right to trial by jury
with respect to any action related to or arising out of this Agreement or any
Transaction.
34
IN WITNESS WHEREOF, Parent, Sub and the Company have duly executed
this Agreement, all as of the date first written above.
CHRISTIAN DALLOZ,
by
--------------------------
Name:
Title:
XXXXXX U. S. SUB, INC.,
by
--------------------------
Name:
Title:
BACOU USA, INC.,
by
-------------------------
Name:
Title:
EXHIBIT A
CERTIFICATE OF INCORPORATION
OF
SURVIVING CORPORATION
ARTICLE I
The name of the corporation (hereinafter called the "Corporation") is
BACOU USA, INC.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is CT Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000. The
name of the registered agent at such address is The Corporation Trust Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
ARTICLE IV
The total number of shares of all classes of stock that the
Corporation shall have authority to issue is 1,000 shares of Common Stock having
the par value of $0.01 per share.
2
ARTICLE V
The number of directors of the Corporation shall be fixed from time to
time by the Board of Directors of the Corporation.
ARTICLE VI
In furtherance and not in limitation of the powers conferred upon it
by law, the Board of Directors of the Corporation is expressly authorized to
adopt, amend or repeal the By-laws of the Corporation.
ARTICLE VII
Unless and except to the extent that the By-laws of the Corporation so
require, the election of directors of the Corporation need not be by written
ballot.
ARTICLE VIII
To the fullest extent from time to time permitted by law, no director
of the Corporation shall be personally liable to any extent to the Corporation
or its stockholders for monetary damages for breach of his fiduciary duty as a
director. Any repeal or modification of the foregoing provision of this Article
VIII by the stockholders of the Corporation shall not adversely affect any right
or protection of a director of the Corporation existing at the time of such
repeal or modification.
3
ARTICLE IX
Each person who is or was or had agreed to become a director, officer,
employee or agent of the Corporation or any subsidiary or parent of the
Corporation, and each such person who is or was serving or who had agreed to
serve at the request of the Corporation as a director, officer, partner, member,
employee or agent of another corporation, partnership, limited liability
company, joint venture, trust or other enterprise (including the heirs,
executor, administrators or estate of such person), shall be indemnified by the
Corporation to the fullest extent permitted from time to time by applicable law
from and against any and all expenses and liabilities that may be imposed upon
or incurred by such person in connection with, or as a result of, any proceeding
in which such person may become involved, as a party or otherwise, by reason of
the fact that such person is or was such a director, officer, employee or agent
of the Corporation or any subsidiary or parent of the Corporation, or, at the
Corporation's request, a director, officer, partner, member, employee or agent
of another entity, whether or not such person continues to be such at the time
such expenses and liabilities shall have been imposed or incurred.
