1
Exhibit(c)(1)
TENDER OFFER AND AMALGAMATION AGREEMENT
DATED
NOVEMBER 15, 0000
XXXXX
XXXXX ASIA PACIFIC, LTD.,
APPLE HOLD CO., L.P.
AND
NEW AAP LIMITED
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TABLE OF CONTENTS
ARTICLE PAGE
ARTICLE I INTERPRETATION...................................................................................2
ARTICLE II THE OFFER AND AMALGAMATION.......................................................................3
2.1 The Offer...............................................................................3
2.2 Company Actions.........................................................................4
ARTICLE III THE AMALGAMATION; CONVERSION OF SHARES...........................................................5
3.1 The Amalgamation........................................................................5
3.2 Conversion of Capital Stock.............................................................5
3.3 Exchange of Certificates................................................................6
3.4 Effective Time..........................................................................7
3.5 Closing.................................................................................7
3.6 Directors and Officers of the Amalgamated Company.......................................7
3.7 Further Assurances......................................................................9
ARTICLE IV SECTION 103 TRANSACTION..........................................................................9
4.1 Section 103 Transaction.................................................................9
4.2 Option of Purchaser.....................................................................9
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY ...................................................9
5.1 Organization and Qualification..........................................................9
5.2 Capitalization of the Company..........................................................10
5.3 Power and Authority....................................................................10
5.4 Recommendations........................................................................10
5.5 Consents and Approvals; No Violation...................................................11
5.6 Information Supplied...................................................................11
5.7 Brokers and Finders....................................................................11
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PURCHASER.....................................................12
6.1 Organization...........................................................................12
6.2 Power and Authority....................................................................12
6.3 Consent and Approvals; No Violation....................................................12
6.4 Information Supplied...................................................................12
6.5 Purchaser's Operations.................................................................12
6.6 Capitalization.........................................................................12
6.7 Financing..............................................................................13
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ARTICLE VII REPRESENTATIONS AND WARRANTIES OF HOLD CO.......................................................13
7.1 Organization...........................................................................13
7.2 Authority Relative to this Agreement...................................................13
7.3 Consent and Approvals; No Violation....................................................13
7.4 Hold Co.'s Operations..................................................................13
7.5 Capitalization.........................................................................13
7.6 Financing..............................................................................13
ARTICLE VIII ADDITIONAL COVENANTS............................................................................14
8.1 Consents and Approvals.................................................................14
8.2 Additional Actions.....................................................................14
8.3 Shareholders Approval..................................................................14
8.4 Indemnification, Exculpation And Insurance.............................................14
ARTICLE IX CONDITIONS .....................................................................................15
9.1 Conditions to each Party's Obligations.................................................15
ARTICLE X TERMINATION.....................................................................................16
10.1 Termination............................................................................16
10.2 Effect of Termination..................................................................16
ARTICLE XI GENERAL PROVISIONS..............................................................................17
11.1 Amendment and Modification.............................................................17
11.2 Nonsurvival of Representations and Warranties..........................................17
11.3 Notices................................................................................17
11.4 Definitions; Interpretation............................................................19
11.5 Specific Performance...................................................................19
11.6 Counterparts...........................................................................19
11.7 Entire Agreement; No Third Party Beneficiaries.........................................19
11.8 Severability...........................................................................19
11.9 Governing Law..........................................................................19
11.10 Assignment.............................................................................20
11.11 Extension; Waiver......................................................................20
11.12 Procedure For Termination, Amendment, Extension Or Waiver..............................20
11.13 Announcements..........................................................................20
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TENDER OFFER AND AMALGAMATION AGREEMENT
This Tender Offer and Amalgamation Agreement (this "Agreement") is made
the 15th day of November 1999, by and among Amway Asia Pacific Ltd., a company
incorporated under the laws of Bermuda having its registered office at Clarendon
House, Church Street, Hamilton, Bermuda (the "Company"), Apple Hold Co., L.P., a
Bermuda limited partnership ("Hold Co.") controlled by the Principal
Shareholders (as defined herein), and New AAP Limited, a company incorporated
under the laws of Bermuda having its registered office at Clarendon House,
Church Street, Hamilton, Bermuda ("Purchaser").
RECITALS
WHEREAS, the special committee formed by the Board of Directors of the
Company (the "Special Committee") comprised exclusively of directors of the
Board of Directors not affiliated with the Principal Shareholders (as defined
below) has considered and acted upon a proposal received from Purchaser, which
is a wholly owned subsidiary of Hold Co. and an entity controlled and
beneficially owned, directly and indirectly, by the principal shareholders of
the Company (the "Principal Shareholders"), to acquire from all shareholders of
the Company (the "Shareholders"), all the outstanding shares of Common Stock,
$.01 par value per share (the "Company Common Stock" or the "Shares"), of the
Company (the "Acquisition");
WHEREAS, the Principal Shareholders have advised the Special Committee
that Purchaser intends to commence the Acquisition by first conducting a tender
offer (the "Offer") for all of the outstanding Shares;
WHEREAS, the Principal Shareholders have informed Purchaser that they
will not tender their Shares in response to the Offer, but such Principal
Shareholders will transfer their Shares ("Non-Tendered Shares") to Hold Co.
contemporaneously with the consummation of the Offer;
WHEREAS, in furtherance of the Acquisition, after the consummation of
the Offer and subject to Section 4.1, the Company and Purchaser will amalgamate
(the "Amalgamation"), and the Company will continue as the amalgamated company
(the "Amalgamated Company");
WHEREAS, if at any time after consummation of the Offer, Purchaser and
Hold Co. own, in the aggregate, 95 percent or more of the outstanding shares of
the Company Common Stock, then in such event Purchaser may, if it elects to do
so in lieu of the Amalgamation, compulsorily purchase the remaining Shares from
the remaining Shareholders pursuant to Section 103 of the Bermuda Companies Act
of 1981, as amended (the "Act") at a price equal to the Amalgamation
Consideration (as defined below);
WHEREAS, having received the advice of financial and legal advisors,
and following negotiation of the terms of the Offer and this Agreement, the
Special Committee has unanimously determined that the Offer and the Amalgamation
are fair to, and in the best interests of, the holders of Shares, other than
Non-Tendered Shares (the "Public Shareholders"), and has advised the Board of
Directors of the Company that it has made such determination;
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WHEREAS, the Board of Directors of the Company other than those who
have any interest in any proceedings of the Board of Directors with respect to
the transactions contemplated by this Agreement, who currently are Messrs.
Xxxxxxx X. XxXxx, Xxxxxxx X. XxXxx, Xx., and Xxxxxxx X. Xxx Xxxxx (the
"Disinterested Directors") (based upon the recommendation of the Special
Committee) has unanimously approved the Acquisition, upon the terms and subject
to the conditions set forth in this Agreement, and has unanimously adopted
resolutions approving this Agreement and recommending that the Public
Shareholders accept the Offer and tender their Shares in response to the Offer;
WHEREAS, the Board of Directors of Purchaser has approved the Offer and
the Amalgamation, upon the terms and subject to the conditions set forth in this
Agreement and has adopted resolutions approving this Agreement;
WHEREAS, the general partner of Hold Co., the sole shareholder of
Purchaser, has approved this Agreement and the Acquisition, upon the terms and
subject to the conditions hereinafter described; and
WHEREAS, except as otherwise contemplated by this Agreement, the
Principal Shareholders have agreed, and Hold Co. has agreed that after transfer
to it of the Non-Tendered Shares by the Principal Shareholders, not to dispose
of or otherwise transfer the Non-Tendered Shares, and Purchaser has agreed not
to dispose of or otherwise transfer any Shares purchased by it in the Offer
("Purchased Shares"), in either case prior to consummation of the Amalgamation
or the transaction described in Article IV, as the case may be, and the
Principal Shareholders have agreed, and the Principal Shareholders have agreed
to cause Hold Co. and Purchaser, as the case may be, to vote, and Hold Co. and
Purchaser, as the case may be, have agreed to vote the Non-Tendered Shares and
Purchased Shares in favor of the Amalgamation or the transaction described in
Article IV, as the case may be, on the terms and subject to the conditions set
forth in the Shareholder and Voting Agreement (the "Shareholder Agreement") in
the form of Exhibit A attached hereto, which Shareholder Agreement is being
executed and delivered simultaneously with the execution and delivery of this
Agreement;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, the parties hereto
agree as follows:
ARTICLE I
INTERPRETATION
In this Agreement unless the context otherwise acquires:
(a) references to statutory provisions shall be construed as references
to those provisions as amended or re-enacted or as their application is modified
by other provisions from time to time and shall include references to any
provisions of which they are re-enactments (whether with or without
modification);
(b) references to the singular shall include the plural and vice versa
and references to the masculine shall include the feminine and/or neuter and
vice versa; and
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(c) references to persons shall include companies, partnerships,
associations and bodies of persons, whether incorporated or unincorporated.
ARTICLE II
THE OFFER AND AMALGAMATION
2.1 THE OFFER.
(a) Provided that this Agreement shall not have been terminated in
accordance with Article X, then (i) on or after the date of execution of this
Agreement, but in any event not later than November 15, 1999, Purchaser and the
Company shall publicly announce the Offer and (ii) Purchaser shall, as promptly
as possible, but in no event later than five Business Days (for purposes of this
Agreement, such term having the meaning given the Rule 14d-1 under the
Securities Exchange Act of 1934 (the "Exchange Act")) after the date of such
public announcement, commence (within the meaning of Rule 14d-2 under the
Exchange Act), the Offer to purchase all of the issued and outstanding Shares at
a price per share of U.S. $18.00, in cash (the "Offer Price"). Purchaser may
withhold and deduct amounts from such payments in accordance with Section
2.1(c). The Offer shall be made pursuant to an Offer to Purchase (the "Offer to
Purchase") and related Letter of Transmittal (the "Letter of Transmittal")
containing terms and conditions consistent with this Agreement. The obligation
of Purchaser to commence the Offer, conduct and consummate the Offer and accept
for payment, and pay for, any Shares properly tendered and not withdrawn
pursuant to the Offer shall not be subject to any conditions other than changes
in applicable laws that have the effect of making the Offer unlawful. Purchaser
expressly reserves the right, subject to compliance with the Exchange Act, to
modify the terms of the Offer except that, without the express written consent
of the Company, as authorized by the Special Committee, Purchaser shall not (i)
reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price,
(iii) change the form of consideration payable in the Offer or (iv) amend,
alter, add or waive any term of the Offer in any manner adverse to the holders
of the Shares. Purchaser shall as soon as practicable after the expiration date
of the Offer, accept for payment, and pay for all Shares validly tendered and
not properly withdrawn pursuant to the Offer.
(b) On the date of commencement of the Offer, Purchaser shall file with
the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on
Schedule 14D-1, as supplemented or amended from time to time (the "Schedule
14D-1"), and Schedule 13E-3, as supplemented or amended from time to time (the
"Schedule 13E-3"), with respect to the Offer, which shall contain the Offer to
Purchase and the Letter of Transmittal, summary advertisement and any other
ancillary documents and instruments pursuant to which the Offer will be made
(such Schedule 14D-1, the Schedule 13E-3 and the documents included therein
pursuant to which the Offer will be made, together with any supplements or
amendments thereto, the "Offer Documents"). Purchaser agrees to take all
necessary steps to cause the Schedule 14D-1 and Schedule 13E-3 to be filed with
the SEC and the Offer Documents to be disseminated to holders of Shares, in each
case, as and to the extent required by applicable U.S. Federal securities laws.
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Purchaser shall make all filings necessary in accordance with the laws of
Australia. The Company and its counsel, as well as the Special Committee and
their counsel, shall be given reasonable opportunity to review and comment upon
the Offer Documents prior to their filing with the SEC and prior to
dissemination to the Shareholders. Purchaser shall consider all comments in good
faith. Purchaser agrees to provide the Company, the Special Committee and their
counsel any comments Purchaser may receive from the SEC or its staff with
respect to the Offer Documents promptly after the receipt of such comments.
(c) Purchaser shall be entitled to deduct and withhold from the
consideration otherwise payable pursuant to the Offer such amounts as may be
required to be deducted and withheld with respect to the payment of such
consideration under the Internal Revenue Code of 1986, as amended, or any other
tax under any provision of state, local or foreign tax law; provided, however,
that Purchaser shall promptly pay any amounts deducted and withheld hereunder to
the applicable governmental authority, shall promptly file all tax returns and
reports required to be filed in respect of such deductions and withholding, and
shall promptly provide to the Company proof of such payment and a copy of all
such tax returns and reports.
2.2 COMPANY ACTIONS.
(a) The Company hereby consents to the Offer.
(b) On the date the Offer Documents are filed with the SEC, the Company
shall file with the SEC a Solicitation/Recommendation Statement on Schedule
14D-9 with respect to the Offer, as supplemented or amended from time to time
(the "Schedule 14D-9"), containing the recommendation of the Board of Directors
consisting of the Disinterested Directors described in Section 5.4(b) and shall
mail the Schedule 14D-9 to the Shareholders. The Company agrees to take all
steps necessary to cause the Schedule 14D-9 to be filed with the SEC and
disseminated to the Shareholders simultaneously with the Offer Documents, in
each case, as and to the extent required by applicable U.S. Federal securities
laws. Purchaser shall be given reasonable opportunity to review and comment upon
the Schedule 14D-9 prior to its filing with the SEC or dissemination to the
Shareholders, and the Company shall consider such comments in good faith. The
Company agrees to provide Purchaser any comments the Company or its counsel may
receive from the SEC or its staff with respect to the Schedule 14D-9 promptly
after the receipt of such comments.
(c) In connection with the Offer and the Amalgamation, the Company
shall cause its transfer agent and its depositary to furnish Purchaser promptly
with mailing labels containing the names and addresses of the record holders of
Shares as of a recent date and of those persons becoming record holders
subsequent to such date, together with copies of all lists of Shareholders,
security position listings and computer files and all other information in the
Company's possession or control regarding the beneficial owners of Shares, and
shall furnish to Purchaser such information and assistance, including updated
lists of shareholders, security position listings and computer files, as
Purchaser may reasonably request in communicating the Offer to the Shareholders.
Purchaser shall use such labels and other information solely to effect the
Amalgamation and the Acquisition.
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ARTICLE III
THE AMALGAMATION; CONVERSION OF SHARES
3.1 THE AMALGAMATION.
(a) At the time the Amalgamation becomes effective pursuant to the Act
(the "Effective Time") Purchaser and the Company shall amalgamate on the terms
and subject to the conditions hereof and in accordance with Part VII of the Act.
The Company and Purchaser shall consummate the Amalgamation pursuant to which
(i) Purchaser and the Company shall amalgamate with the Company continuing as
the Amalgamated Company and (ii) all the rights, privileges, immunities, powers
and franchises of Purchaser and the Company shall be those of the Amalgamated
Company.
(b) Following the consummation of the Amalgamation, (i) the name of the
Amalgamated Company shall be "Amway Asia Pacific Ltd.", (ii) the Memorandum of
Association of the Amalgamated Company shall be that of the Company and (iii)
the Bye-laws of the Amalgamated Company shall be those of the Company.
3.2 CONVERSION OF CAPITAL STOCK. At the Effective Time, by virtue of
the Amalgamation and without any action on the part of Purchaser, the Company or
the holders of any shares of Company Common Stock or Purchaser's common stock,
U.S. $.01 par value per share ("Purchaser Common Stock"):
(a) Purchaser Common Stock. Each issued and outstanding share of
Purchaser Common Stock shall be converted into and become one (1) fully paid and
nonassessable share of common stock of the Amalgamated Company.
(b) Conversion of Shares. Each issued and outstanding share of Company
Common Stock (excluding shares of Company Common Stock owned by Hold Co. or the
Principal Shareholders, which shall remain outstanding) shall be canceled in
consideration for a payment in cash to the holder thereof of an amount equal to
the Offer Price, or if the Offer Price is increased, such increased price,
without interest (the "Amalgamation Consideration"), upon surrender of the
certificate formerly representing such shares of Company Common Stock in the
manner provided in Section 3.3 provided, that shares of Company Common Stock
owned by Purchaser shall not receive the Amalgamation Consideration. There will
be deducted from the Amalgamation Consideration paid to each holder any U.S.
backup or other applicable withholding taxes which may be required to be
withheld. Except for shares of Company Common Stock owned by Hold Co., all
shares of Company Common Stock (excluding shares issued pursuant to subsection
(a) of this Section 3.2), at the Effective Time, shall no longer be outstanding
and shall automatically be canceled and retired and shall cease to exist, and
each holder of a certificate representing any such shares shall cease to have
any rights with respect thereto, except the right to receive the Amalgamation
Consideration therefor upon the surrender of such certificate in the manner
prescribed in Section 3.3, without interest.
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(c) Stock Options. At the Effective Time and pursuant to the terms
governing warrants, options and other rights to acquire Company Securities (as
defined in Section 5.2(a)), all issued and outstanding warrants, options and
other rights to acquire Company Securities (as defined in Section 5.2(a)) shall
be converted into rights to receive cash in accordance with the Black-Scholes
Option Pricing Model and will require in connection therewith the surrender of
all awards to acquire Company Securities as of the Effective Time. No holder of
any such warrant, option or other right shall be entitled to receive
consideration in the form of Company Securities from the Company by virtue of
the Acquisition.
(d) Shares of Dissenting Shareholders. Notwithstanding anything in this
Agreement to the contrary, in connection with the Amalgamation (if it becomes
effective), holders of shares of Company Common Stock shall have rights pursuant
to Section 106 of the Act, provided such holders comply with the provisions of
such Section. For purposes of applying the foregoing provisions of the Act, the
date of the corporate action triggering the obligation to provide notice of
dissenters rights to the holders of shares of Company Common Stock shall be the
date on which notice of the shareholder's meeting to approve the Amalgamation is
deemed to be received by such holders.
3.3 EXCHANGE OF CERTIFICATES.
(a) Paying Agent. Purchaser shall designate a bank or trust company to
act as agent for the holders of shares of Company Common Stock in connection
with the Amalgamation (the "Paying Agent") to receive the funds to which holders
of shares of Company Common Stock shall become entitled pursuant to Section
3.2(b). Purchaser shall deposit with the Paying Agent cash in an amount equal to
the product of (i) the number of shares of Company Common Stock required to be
converted pursuant to Section 3.2(b), multiplied by (ii) the Amalgamation
Consideration. The deposit made by Purchaser pursuant to the preceding sentence
is hereinafter referred to as the "Payment Fund." The Paying Agent shall cause
the Payment Fund to be (i) held for the benefit of the holders of shares of
Company Common Stock, and (ii) promptly applied to making the payments provided
for in Section 3.2(b). The Payment Fund shall not be used for any purpose that
is not provided for herein. Such funds shall be invested by the Paying Agent as
directed by Purchaser.
(b) Exchange Procedures. As soon as reasonably practicable after the
Effective Time, the Paying Agent shall mail to each holder of record of a
certificate or certificates which immediately prior to the Effective Time
represented outstanding shares of Company Common Stock (the "Certificates"),
whose shares of Company Common Stock will have been converted pursuant to
Section 3.2 into the right to receive the Amalgamation Consideration (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 Purchaser and the Company may reasonably specify) and related
materials, including, without limitation, a Substitute Form W-9 and (ii)
instructions for use in effecting the surrender of the Certificates in exchange
for payment of the Amalgamation Consideration. Upon surrender of a Certificate
for cancellation to the Paying Agent or to such other agent or agents as may be
appointed by Purchaser, together with such letter of transmittal and related
materials, duly executed, the holder of such Certificate shall be entitled to
receive in exchange therefor the Amalgamation Consideration for each share of
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Company Common Stock formerly represented by such Certificate and the
Certificate so surrendered shall forthwith be canceled. If payment of the
Amalgamation Consideration is to be made to a person other than the person in
whose name the surrendered Certificate is registered, it shall be a condition of
payment that the Certificate so surrendered shall be properly endorsed or shall
be otherwise in proper form for transfer and that the person requesting such
payment shall have paid any transfer and other taxes required by reason of the
payment of the Amalgamation Consideration to a person other than the registered
holder of the Certificate surrendered or shall have established to the
satisfaction of Amalgamated Company that such tax either has been paid or is not
applicable. Until surrendered as contemplated by this Section 3.3, each
Certificate shall be deemed at any time after the Effective Time to represent
only the right to receive the Amalgamation Consideration in cash, without
interest, as contemplated by this Section 3.3.
(c) Termination of Fund; No Liability. At any time following twelve
months after the Effective Time, the Amalgamated Company shall be entitled to
require the Paying Agent to deliver to it any funds, including any interest
received with respect thereto, which had been made available to the Paying Agent
and which have not been disbursed to holders of Certificates, and thereafter
such holders shall be entitled to look to the Amalgamated Company, subject to
abandoned property, escheat or other similar laws, only as general creditors
thereof with respect to the Amalgamation Consideration payable upon due
surrender of their Certificates, without any interest thereon. Notwithstanding
the foregoing, neither the Amalgamated Company nor the Paying Agent shall be
liable to any holder of a Certificate for Amalgamation Consideration delivered
to a public official pursuant to any applicable abandoned property, escheat or
similar law.
(d) Lost Certificates. In the event any Certificates shall have been
lost, stolen or destroyed, the Paying Agent shall pay in exchange for such lost,
stolen or destroyed Certificates, upon the making of an affidavit of that fact
by the holder thereof, the Amalgamation Consideration, if any, as may be
required pursuant to Section 3.2(b); provided, however, that Purchaser may, in
its discretion and as a condition precedent to the payment thereof, require the
owner of such lost, stolen or destroyed Certificates to deliver a bond in such
sum as it may reasonably direct against any claim that may be made against
Purchaser, the Amalgamated Company or the Paying Agent with respect to the
Certificates alleged to have been lost, stolen or destroyed.
(e) Investment of Payment Fund. The Paying Agent will invest the cash
in the Payment Fund, as directed by Purchaser, on a daily basis. Any interest
and other income resulting from investments will be paid to Purchaser.
3.4 EFFECTIVE TIME. On the date of Closing (as defined in Section 3.5),
the parties will cause appropriate documents as required under the Act to be
filed with the Registrar of Companies (the "Registrar of Companies"). The
Amalgamation will become effective when the certificate of amalgamation is
issued by the Registrar of Companies. The time the Amalgamation becomes
effective shall be referred to as the "Effective Time".
3.5 CLOSING. The Closing of the Amalgamation (the "Closing") will take
place at 9:00 a.m., Cleveland time, on a date to be specified by the parties,
which shall be as soon as practicable following the satisfaction or waiver of
the conditions set forth in Article IX (or on such other date as Purchaser and
the Company may agree), but in any event no later than the
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second Business Day after satisfaction or waiver of all of the conditions set
forth in Article IX hereof (the "Closing Date"), at the offices of Xxxxx, Day,
Xxxxxx & Xxxxx, North Point, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000,
unless another date or place is agreed to in writing by the parties hereto.
3.6 DIRECTORS AND OFFICERS OF THE AMALGAMATED COMPANY. The names and
addresses of the persons proposed to be directors and officers of the
Amalgamated Company are as follows:
NAME POSITION ADDRESS CITY, STATE
---- -------- ------- -----------
Xxxxxxx X. Xxx Xxxxx Chairman, Director 0000 Xxxxxxx, X.X. Xxx, Xxxxxxxx 00000
Xxxxxxx X. XxXxx, Xx. President, Director 0000 Xxxxxxxxx, X.X. Xxxxx Xxxxxx, Xxxxxxxx 00000
Xxxxxxx X. XxXxx Director 0000 Xxxxxxxxx, XX Xxxxx Xxxxxx, Xxxxxxxx 00000
Xxxxxx X. XxXxxxxx Director X-00 Xxxxxxx Xxx Xxxxxxx Xxx, Xxxx Xxxx
Apartments, 101
Repulse Bay Road
Xxxx C.K. So Director 000X Xxxxx Xxxxx, 00 Xxxx Xxxx
Xxxxxxxxx Xxxx
Xxxx X.X. Xxxx Xxxxxxxx Xxxx X, 0xx Xxxxx, Xxxxx Xxxx Xxxx
Heights, 52 Lyttelton
Road
Lai-Huat Choong Director 0, Xxxxx Xxxx, Xxxxx 00000 Xxxxx Xxxxxx, Xxxxxxxx
Bandaraya
Xxx Xxxxx Executive Vice Xxxxx 0-X, 00xx Xxxxx, Xxxx Xxxx
Xxxxxxxxx; Director Clovelly Court; 00 Xxx
Xxxx, Xxx-xxxxxx
Xxxx Xxxxx Chief Financial 0000 Xxxx Xxxxx, XX Xxxxx Xxxxxx, XX 00000
Officer, Vice
President and
Treasurer
Xxxxxxxx X. Call Vice President 00 Xxxxxx Xxxxxx, XX Xxxxx Xxxxxx, Xxxxxxxx 00000
Xxxxx X. Xxxxxxx Vice President, 0000 Xxxxxxxx Xxxx, XX Xxxxx Xxxxxx, Xxxxxxxx 00000
General Counsel
and Assistant
Secretary
Xxxx X. Xxxxxxxx Vice President, 0000 Xxxxxx, XX Xxxxx Xxxxxx, Xxxxxxxx 00000
Distributor
Relations
Xxxxx Xxxx Vice President, Xxxxx 0000, Xxxx Xxx Xxxxxxx, XXX; 200030
General Manager - Apartment, Magnolia
East China Garden, 50 Pu Xxx Xxxx
Road
Xxxxxxx Xxx Vice President, Xxxx 0X, Xxxxxxx Xxxxx, Xxxx Xxxx
General Manager - Tower 5, 23 Old Peak
National Operations Road
Xxxxx Xxxx Vice President, Xxxxx 000, Xxxxxxx Xxxxxxx, XXX 000000
General Manager - Xxxxxxx, Xx. 0, Xxxxx
Xxxxx Xxxxx Jiang Bei Road,
Chaoyang District
Xxxxxx Xxxx General Manager - Xx. 0, Xxxx 0, Xxxx-Xxx Xxxxxxx, Xxxxxx X.X.X.
Taiwan 0xx Xx.
00
Xxx Xxx-Xxx Xxxxxxxx Xxxxxx - 00, Xxxxx XX00/0; 00000, Xxxxxxxx, Xxxxxxxx
Malaysia Petaling Jaya
Xxxxxxx Xxxxxxxxx General Manager - 335 Lad Prao 101 Xxxxxxxx, Xxxxxxx 00000
Xxxxxxxx Thailand
Xxxxx Xxxxxxxx General Manager - 00 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxx 0000
Xxxxxxxxx Kenthurst
Xxxxx Xxxxx General Manager - 923 King's Road, 9/Floor, Quarry Bay, Hong Kong
South China Ritz Mansion
Xxxx X.X. Xxxxxx Secretary "Saltcoats," 00 Xxxxx Xxxx Xxxxxxx XX00, Xxxxxxx
Road
3.7 FURTHER ASSURANCES. If, at any time after the Effective Time, any
further action is necessary or desirable to consummate the Amalgamation, to
carry out the purposes of this Agreement or to vest the Amalgamated Company with
full right, title and possession to all assets, property, rights, privileges,
powers and franchises of the Company and Purchaser, the officers and directors
of the Company and Purchaser are fully authorized in the name of their
respective corporations or otherwise to take, and will take, all such lawful and
necessary action.
ARTICLE IV
SECTION 103 TRANSACTION
4.1 SECTION 103 TRANSACTION. Notwithstanding anything stated or
contemplated in this Agreement to the contrary and in particular notwithstanding
Article III, the Company and Purchaser need not amalgamate if at any time after
consummation of the Offer, Purchaser and Hold Co. own, in the aggregate, 95
percent or more of the outstanding shares of the Company Common Stock. In such
event, Purchaser may, if it elects to do so in lieu of the Amalgamation,
compulsorily purchase the remaining outstanding Shares from the remaining Public
Shareholders pursuant to Section 103 of the Act for a per share consideration
equal to the Amalgamation Consideration. In the event the Shares of the
remaining Shareholders are purchased pursuant to Section 103 of the Act, such
remaining Public Shareholders will have the rights granted to them in accordance
with Section 103 of the Act, including dissenters' rights.
4.2 OPTION OF PURCHASER. If, as a result of or following the Offer,
Purchaser is able to effect the transaction set forth in Sections 4.1, Purchaser
shall elect, in its sole discretion, whether to implement such transaction or to
effect the Amalgamation.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Purchaser and Hold Co. as
follows:
5.1 ORGANIZATION AND QUALIFICATION. The Company has been duly
incorporated and is validly existing as a corporation under the laws of Bermuda.
5.2 CAPITALIZATION OF THE COMPANY.
(a) As of the date hereof, the authorized capital stock of the Company
consists of
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110,000,000 shares of Common Stock. All outstanding shares of capital stock of
the Company have been validly issued, and are fully paid and nonassessable. As
of the date hereof, there are 448,500 shares of Common Stock subject to issuance
upon exercise of outstanding options, warrants, or other rights to purchase
capital stock of the Company from the Company. Except as set forth above, there
are outstanding (A) no shares of capital stock or other securities of the
Company, (B) no securities of the Company convertible into or exchangeable for
shares of capital stock or securities of the Company, (C) no options,
subscriptions, warrants, convertible securities, calls or other rights to
acquire from the Company, and no obligation of the Company to issue, deliver or
sell, any capital stock, securities or securities convertible into or
exchangeable for capital stock or securities of the Company, and (D) no equity
equivalents, performance shares, interests in the ownership or earnings of the
Company or other similar rights issued by the Company (the items referred to in
clauses (A)(D) are referred to herein as "Company Securities"). As of the date
hereof, (i) there are no outstanding obligations of the Company to repurchase,
redeem or otherwise acquire any Company Securities, (ii) no agreement, other
document or other obligation that grants or imposes on any Company Securities
any right, preference, privilege or restriction with respect to the transactions
contemplated hereby, including, without limitation, any rights of first refusal,
(iii) there are no bonds, debentures, notes or other indebtedness having general
voting rights (or convertible into securities having such rights) of the Company
issued and outstanding and (iv) the Company is not a party or bound to, and to
the Company's knowledge there are no other, voting agreements, lock-up
agreements or similar agreements or arrangements restricting or affecting
outstanding Company Securities.
(b) All issued and outstanding warrants, options and other rights to
acquire Company Securities will, as of or prior to the Effective Time, be
substituted for such alternative consideration as the Board of Directors of the
Company may in good faith determine to be equitable under the circumstances
surrounding the Acquisition and will require in connection therewith the
surrender of all awards to acquire Company Securities as of the Effective Time.
No holder of any such warrant, option or other right shall be entitled to
receive consideration in the form of Company Securities from the Company by
virtue of the Acquisition.
5.3 POWER AND AUTHORITY. The Company has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Company.
5.4 RECOMMENDATIONS.
(a) On November 15, 1999, the Special Committee received an opinion
from its financial advisor, Xxxxxxx, Xxxxx & Co. ("Goldman") to the effect that
the Offer Price to be received by the Public Shareholders in the Offer and the
Amalgamation Consideration or the consideration to be received in the compulsory
acquisition pursuant to Section 103 of the Act pursuant to this Agreement is
fair from a financial point of view to the Public Shareholders. A complete and
correct signed copy of such opinion will be delivered to Purchaser for purposes
of inclusion in the Offer Documents. At a meeting duly called and held on
November 15, 1999, the Special Committee duly, validly and unanimously (i)
determined that the Offer and the Amalgamation are fair to, and in the best
interests of, the Public Shareholders, (ii) recommended
14
to the Board of Directors that the Board of Directors approve, authorize and
adopt this Agreement, the Amalgamation and the other transactions contemplated
hereby, and (iii) resolved to recommend that the Public Shareholders accept the
Offer and tender their Shares in response to the Offer.
(b) The Board of Directors consisting of the Disinterested Directors,
at a meeting duly called and held on November 15, 1999, based, among other
things, on the recommendation of the Special Committee, unanimously (i)
determined that the Offer and the Amalgamation are fair to, and in the best
interests of, the Public Shareholders, (ii) approved, authorized and adopted
this Agreement, the Amalgamation and the other transactions contemplated hereby,
(iii) resolved to recommend that the Public Shareholders accept the Offer and
tender their Shares in response to the Offer, and (iv) took the action required
to cause all issued and outstanding warrants, options and other rights to
acquire Company Securities to be substituted for rights to acquire consideration
other than Company Securities, as of or prior to the Effective Time.
5.5 CONSENTS AND APPROVALS; NO VIOLATION. The execution and delivery of
this Agreement do not, and the consummation of the transactions contemplated
hereby and the performance by the Company of its obligations hereunder will not:
(a) conflict with or violate any provision of the Company's Memorandum
of Association or Bye-laws; or
(b) require on the part of the Company any consent, approval, order,
authorization or permit of, or registration, filing or notification to, any
Governmental Authority (as hereinafter defined), except for (i) the filing with
the SEC of such reports under the Exchange Act as may be required in connection
with this Agreement (including, without limitation, the Schedule 14D-9), and the
transactions contemplated hereby, (ii) the filing of the Articles of
Amalgamation with the Registrar of Companies, and (iii) such additional actions
or filings which, if not taken or made, would not, singly or in the aggregate,
have a material adverse effect on the condition, financial or otherwise, the
earnings, business affairs or business prospects of the Company or the
consummation of the transactions contemplated by this Agreement.
5.6 INFORMATION SUPPLIED. None of the information supplied or to be
supplied by the Company specifically for use in the Offer Documents will, at the
time filed with the SEC or as of the date mailed to the Shareholders, 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 the light of the circumstances under which they are made, not
misleading.
5.7 BROKERS AND FINDERS. Except for payments required to be made to
Goldman, the Company will not or has not, directly or indirectly, become
obligated to pay any person or entity any brokerage fee, finder's fee,
investment banking fee or agent's fee as a result of the entering into of this
Agreement or any of the transactions contemplated hereby.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to the Company and Hold Co. as
follows:
15
6.1 ORGANIZATION. Purchaser is a company duly incorporated and is
validly existing as a corporation under the laws of Bermuda. Purchaser is a
wholly owned subsidiary of Hold Co.
6.2 POWER AND AUTHORITY. Purchaser has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby on the part of
Purchaser have been duly and validly authorized by its board of directors and
its sole shareholder and no other corporate proceedings on the part of Purchaser
are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Purchaser.
6.3 CONSENT AND APPROVALS; NO VIOLATION. The execution and delivery by
Purchaser of this Agreement do not, and the consummation of the transactions
contemplated hereby and the performance by Purchaser of its obligations
hereunder will not:
(a) conflict with or violate any provision of Purchaser's Memorandum of
Association or Bye-laws; or
(b) require on the part of Purchaser any consent, approval, order,
authorization or permit of, or registration, filing or notification to, any
Governmental Authority (as hereinafter defined), except for (i) the filing by
Purchaser with the SEC of such reports under the Exchange Act as may be required
in connection with this Agreement (including, without limitation, the Schedule
14D-1 and the Schedule 13E-3), and the transactions contemplated hereby and (ii)
such additional actions or filings which, if not taken or made, would not,
singly or in the aggregate, have a material adverse effect on the condition,
financial or otherwise, the earnings, business affairs or business prospects of
Purchaser or the consummation of the transactions contemplated by this
Agreement.
6.4 INFORMATION SUPPLIED. None of the information supplied or to be
supplied by Purchaser or the Principal Shareholders specifically for use in the
Schedule 14D-9 will, at the time filed with the SEC or as of the date mailed to
the Shareholders, contain any untrue statement of a material fact or will omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances in which they
are made, not misleading.
6.5 PURCHASER'S OPERATIONS. Purchaser was incorporated solely for the
purpose of engaging in the transactions contemplated hereby and has not engaged
in any business activities or conducted any operations other than to facilitate
the transactions contemplated hereby.
6.6 CAPITALIZATION. All of the capital stock of Purchaser has been duly
and validly issued and is held of record and owned beneficially solely by Hold
Co.
6.7 FINANCING. Purchaser has, or will have as of the date of
consummation of the Offer, all funds necessary to purchase all Shares accepted
for payment in the Offer. Purchaser has, or will have as of the date of
consummation of the Amalgamation or the transaction contemplated by Section 4.1,
all funds necessary to consummate the applicable transaction.
16
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF HOLD CO.
Hold Co. represents and warrants to the Company and Purchaser as
follows:
7.1 ORGANIZATION. Hold Co. is a limited partnership duly organized,
validly existing and in good standing under the laws of Bermuda.
7.2 AUTHORITY RELATIVE TO THIS AGREEMENT. Hold Co. has all requisite
limited partnership power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby on the part of Hold Co. have been duly and validly authorized by the
general partner of Hold Co. and no other limited partnership proceedings on the
part of Hold Co. are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Hold Co.
7.3 CONSENT AND APPROVALS; NO VIOLATION. The execution and delivery of
this Agreement does not, and the consummation of the transactions contemplated
hereby and the performance by Hold Co. of its obligations hereunder will not:
(a) conflict with any provision of the certificate of formation of Hold
Co.; or
(b) require on the part of Hold Co. any consent, approval, order,
authorization or permit of, or registration, filing or notification to, any
Governmental Authority (as hereinafter defined) or any third party.
7.4 HOLD CO.'S OPERATIONS. Hold Co. was formed solely for the purpose
of engaging in the transactions contemplated hereby and has not engaged in any
business activities or conducted any operations other than to facilitate the
transactions contemplated hereby.
7.5 CAPITALIZATION. All of the partnership interests of Hold Co. have
been duly and validly issued and are held of record and owned beneficially
solely by the Principal Shareholders.
7.6 FINANCING. Purchaser has, or will have as of the date of
consummation of the Offer, all funds necessary to purchase all Shares accepted
for payment in the Offer. Purchaser has, or will have as of the date of
consummation of the Amalgamation or the transaction contemplated by Section 4.1,
all funds necessary to consummate the applicable transaction.
ARTICLE VIII
ADDITIONAL COVENANTS
17
The parties hereto further agree as follows:
8.1 CONSENTS AND APPROVALS. The parties hereto shall cooperate with
each other and use commercially reasonable efforts to promptly prepare and file
all necessary documentation, to effect all applications, notices, petitions and
filings, to obtain as promptly as practicable all permits, consents, approvals
and authorizations of all third parties ("Third Party Approvals") and Bermuda,
U.S. Federal, state and local governmental and any foreign governmental agencies
and authorities ("Governmental Authority") which are necessary or advisable to
consummate the transactions contemplated by this Agreement ("Governmental
Approvals" and, together with Third Party Approvals, "Approvals"), and to comply
with the terms and conditions of all such Approvals.
8.2 ADDITIONAL ACTIONS. Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations, or
to remove any injunctions or other impediments or delays, to consummate and make
effective the Offer, the Amalgamation and the other transactions contemplated by
this Agreement.
8.3 SHAREHOLDERS APPROVAL. The Company shall, as soon as practicable
after the consummation of the Offer, take all steps necessary (a) to duly call,
give notice of, convene and hold a meeting of the Shareholders (the "Shareholder
Meeting") for the purpose of securing the approval by the Shareholders
("Shareholder Approval") of the Amalgamation or (b) to the extent Purchaser
elects under Section 4.2 to pursue the transaction described in Sections 4.1, to
effect such transaction as has been so elected.
8.4 INDEMNIFICATION, EXCULPATION AND INSURANCE.
(a) The Company agrees that all rights to indemnification and
exculpation (including the advancement of expenses) from liabilities for acts or
omissions occurring at or prior to the Effective Time (including with respect to
the transactions contemplated by this Agreement) existing now or at the
Effective Time in favor of the current or former directors or officers of the
Company (the "Indemnified Parties") as provided in the Company Memorandum of
Association, the Company Bye-Laws and any indemnification agreements (each as in
effect on the date hereof) shall be assumed by the Amalgamated Company in the
Amalgamation, without further action, as of the Effective Time and shall survive
the Amalgamation and shall continue in full force and effect without amendment,
modification or repeal for a period not less than the statute of limitations
applicable to such matters; provided, however, that if any claims are asserted
or made during the continuance of such period, all rights to indemnification
(and to advancement of expenses) hereunder in respect of any such claims shall
continue, without diminution, until disposition of any and all such claims.
(b) To the extent paragraph (a) shall not serve to indemnify and hold
harmless an Indemnified Party, for a period of six years from and after the
Effective Time, the Amalgamated Company shall indemnify, defend and hold
harmless the Indemnified Parties against all losses, claims, damages, costs,
expenses (including reasonable attorneys' fees and expenses), liabilities or
judgments of or in connection with any threatened or actual claim, action, suit,
proceeding or investigation (an "ACTION") arising out of or pertaining to such
individuals' services, prior to the
18
Effective Time, as directors, officers or employees of the Company, including,
without limitation, matters based in whole or in part on, or arising in whole or
in part out of, or pertaining to this Agreement or the transactions contemplated
hereby, in each case to the full extent permitted by applicable law.
(c) The Amalgamated Company shall (i) maintain for a period of not less
than six years from the Effective Time the Company's current directors' and
officers' insurance and indemnification policy to the extent that it provides
coverage for events occurring prior to the Effective Time (the "D&O Insurance"),
for all persons who are directors or officers of the Company on the date of this
Agreement (the "Insured Parties") or (ii) cause to be provided coverage no less
advantageous to the Insured Parties than the D&O Insurance, in each case so long
as the annual premium therefor would not be in excess of 150% of the last annual
premium paid for the D&O Insurance prior to the date of this Agreement (such
150% amount, the "Maximum Premium"). If the existing D&O Insurance expires, is
terminated or canceled during such six-year period, the Amalgamated Company will
use all reasonable efforts to cause to be obtained as much D&O Insurance as can
be obtained for the remainder of such period for an annualized premium not in
excess of the Maximum Premium.
(d) The provisions of this Section 8.4 shall survive the consummation
of the Acquisition and are intended to be for the benefit of, and will be
enforceable by, each indemnified or insured party, his or her heirs and his or
her representatives and (ii) are in addition to, and not in substitution for,
any other rights to indemnification or contribution that any such person may
have by contract or otherwise. The Company or the Amalgamated Company, as
applicable, shall pay the reasonable expenses, including reasonable attorneys'
fees, that may be incurred by any Indemnified Parties in enforcing rights to
which such Indemnified Parties are entitled under the provisions of this Section
8.4.
ARTICLE IX
CONDITIONS
9.1 CONDITIONS TO EACH PARTY'S OBLIGATIONS. The respective obligations
of the parties to effect the Amalgamation or the transaction contemplated by
Article IV, as the case may be, shall be subject to the satisfaction or waiver,
on or prior to the Closing Date, of the following conditions:
(a) Shareholder Approval. Unless the transaction contemplated by
Article IV is consummated in lieu of the Amalgamation, prior to consummation of
the Amalgamation, this Agreement and the Amalgamation shall have been approved
by the Shareholders required by and in accordance with applicable law.
(b) Governmental Approvals. Other than the filing of the Articles of
Amalgamation in accordance with the Act, all Governmental Approvals required to
be obtained and all material filings, notices or declarations with or to
Governmental Authorities required to be made by the parties and their
Subsidiaries, officers, directors and affiliates in order to consummate the
Amalgamation or the transaction contemplated by Article IV, as the case may be,
shall have been obtained or made, and no such approval shall contain any
conditions, limitations or restrictions, other than any deviation from the
foregoing that does not have and may not reasonably be
19
expected to have a material adverse effect on the ability of each of the Company
or Purchaser, as the case may be, to perform its obligations under this
Agreement or to consummate the Amalgamation or the transaction contemplated by
Article IV, as the case may be.
(c) Legal Action; Statutes. No governmental entity shall have enacted,
issued, promulgated, enforced or entered any statute, rule, regulation,
injunction or other order which is in effect and has the effect of making the
Amalgamation or the transaction contemplated by Article IV, as the case may be,
illegal or prohibits the Company or Purchaser from consummating the Amalgamation
or the transaction contemplated by Article IV.
(d) Closing of Tender Offer. Purchaser shall have (i) commenced the
Offer pursuant to Article II hereof and (ii) purchased, pursuant to the terms
and conditions of such Offer, all Shares duly tendered and not withdrawn;
provided, however, that Purchaser shall not be entitled to rely on the condition
in this Section 9.1(d) if Purchaser shall have failed to commence the Offer or
purchase Shares pursuant to the Offer in breach of its obligations under this
Agreement.
ARTICLE X
TERMINATION
10.1 TERMINATION. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement and the Offer may be terminated and the
Amalgamation or transaction contemplated by Article IV may be abandoned at any
time prior to the Effective Time, whether before or after Shareholder Approval
thereof:
(a) By Mutual Consent. By mutual consent of Purchaser or Hold Co. on
the one hand and the Company acting through the Board of Directors consisting of
the Disinterested Directors on the other.
(b) By Purchaser or the Company. By Purchaser or the Company, if any
governmental entity enacts, issues, promulgates, enforces or enters any statute,
rule, regulation, injunction or other order which is in effect and has the
effect of making the Offer, the Amalgamation or the transaction contemplated by
Article IV, as the case may be, illegal or prohibits Purchaser from buying
Shares in the Offer or prohibits the Company or Purchaser from consummating the
Amalgamation or otherwise prohibits, directly or indirectly, consummation of the
transactions contemplated by this Agreement, including the transaction
contemplated by Article IV or if the conditions to consummation of the Offer or
the Amalgamation cannot be satisfied; provided, however, that the right to
terminate this Agreement under this Section 10.1(b) shall not be available to
any party whose failure to fulfill any obligation under this Agreement has been
the cause of , or resulted directly or indirectly in, the failure of such
condition to occur on or before the Effective Time.
(c) By the Company: By the Company (acting through the Board of
Directors consisting of the Disinterested Directors), if Purchaser (A) fails to
commence the Offer within five Business Days of the public announcement by
Purchaser and the Company of the Offer, or
20
(B) fails to pay for Shares pursuant to the Offer in accordance with Section
2.1(a) hereof.
10.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement as provided in Section 10.1 above, written notice thereof shall
forthwith be given to the other parties specifying the provision hereof pursuant
to which such termination is made, and this Agreement (except as to those
portions of the Acquisition which, at the date of termination, have been
consummated) shall forthwith become null and void and there shall be no
liability or obligation on the part of the parties hereto or their respective
officers, directors or employees, except to the extent arising under applicable
law and for willful breach hereof.
ARTICLE XI
GENERAL PROVISIONS
11.1 AMENDMENT AND MODIFICATION. Subject to applicable law and subject
to Section 11.12, this Agreement may be amended, modified and supplemented in
any and all respects by written agreement of the parties hereto; provided,
however, that after approval of this Agreement by the Shareholders, no such
amendment, modification or supplement shall reduce or change the form of the
Amalgamation Consideration.
11.2 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the
representations and warranties in this Agreement shall survive, in the case of
the Offer, the date upon which the Offer is consummated, in the case of the
Amalgamation, the Effective Time, and, in the case of the transaction described
in Article IV, the date upon which such transaction is consummated. This Section
11.2 shall not limit any covenant or agreement of the parties hereto which by
its terms contemplates performance after (a) the date of consummation of the
Offer, (b) the Effective Time or (c) the date of consummation of the transaction
described in Article IV.
11.3 NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed given upon personal delivery, facsimile
transmission (which is confirmed), telex or delivery by an overnight express
courier service (delivery, postage or freight charges prepaid), or on the fourth
day following deposit in the mail (if sent by registered or certified mail,
return receipt requested, delivery, postage or freight charges prepaid),
addressed to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
(a) If to the Company:
Special Committee
c/o Amway Asia Pacific, Ltd.
00/X Xxx Xxx Xxxxxxx
00 Xxxxx Xxxxxx
Xxxxxxxx Xxx
Xxxx Xxxx
Attention: Xxxxxx XxXxxxxx
Telephone: 852/0000-0000
Facsimile: 852/2524-9902
E-mail: Xxxxxx.XxXxxxxx@XxXxxxxxxx.xxx
21
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Telephone: 212/000-0000
Facsimile: 212/225-3999
E-mail: xxxxxxxxxx@xxxx.xxx
(b) If to Hold Co.:
Apple Hold Co., L.P.
0000 Xxxxxx Xxxxxx Xxxx
Xxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone: 616/000-0000
Facsimile: 616/787-5623
E-mail: xxxxx_xxxxxxx@xxxxx.xxx
with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telephone: 216/000-0000
Facsimile: 216/579-0212
E-mail: xxxxxxxxx@xxxxxxxx.xxx
(c) If to Purchaser:
New AAP Limited
0000 Xxxxxx Xxxxxx Xxxx
Xxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone: 616/000-0000
Facsimile: 616/787-5623
E-mail: xxxxx_xxxxxxx@xxxxx.xxx
with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
22
Telephone: 216/000-0000
Facsimile: 216/579-0212
E-mail: xxxxxxxxx@xxxxxxxx.xxx
11.4 DEFINITIONS; INTERPRETATION. When a reference is made in this
Agreement to an Article or Section, such reference shall be to an Article or
Section in this Agreement unless otherwise indicated. The words "include,"
"includes" and "including" when used herein shall be deemed in each case to be
followed by the words "without limitation." 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.
11.5 SPECIFIC PERFORMANCE. 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 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 court of Bermuda having
jurisdiction, this being in addition to any other remedy to which they are
entitled at law or in equity.
11.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
11.7 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES. Except for that
certain Confidentiality Agreement, dated as of September 29, 1999, between the
Company and XXXX Hold Co., Ltd., a Nevada limited partnership, which shall apply
to the Purchaser as if it were a party thereto, this Agreement (including the
documents and the instruments referred to herein and therein) (a) constitutes
the entire agreement and supersedes all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof, and (b) with the exception of Section 8.4(d) is not intended to confer
upon any person other than the parties hereto any rights or remedies hereunder.
11.8 SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void, unenforceable or against its regulatory policy, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
11.9 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of Bermuda and with respect to the transactions
contemplated hereby the parties hereby irrevocably submit to the non-exclusive
jurisdiction of the courts of Bermuda.
11.10 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding
23
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by, the parties and their respective successors and assigns.
11.11 EXTENSION; WAIVER. Subject to Section 11.12, at any time prior to
the Effective Time, the parties hereto, by action taken or authorized by, in the
case of the Company, the Board of Directors consisting of its Disinterested
Directors, in the case of Purchaser, its board of directors or, in the case of
Hold Co., a partner, member or authorized officer, may, to the extent legally
allowed, (i) extend the time for the performance of any of the obligations or
other acts of the other parties hereto, (ii) waive any inaccuracies in the
representations and warranties of the other parties hereto contained herein or
in any document delivered pursuant hereto or (iii) subject to Section 11.1,
waive compliance with any of the agreements or conditions of the other parties
hereto contained herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in a written instrument
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 those rights.
11.12 PROCEDURE FOR TERMINATION, AMENDMENT, EXTENSION OR WAIVER. A
termination of this Agreement pursuant to Section 10.1, an amendment of this
Agreement pursuant to Section 11.1 or an extension or waiver pursuant to Section
11.11 or other action required or permitted to be taken pursuant to this
Agreement shall, in order to be effective, require in the case of Purchaser,
action by its board of directors or a duly authorized designee thereof, require
in the case of the Company, action by its Board of Directors consisting of its
Disinterested Directors or a duly authorized designee thereof, or require in the
case of Hold Co., action by a partner, member or authorized officer; provided,
however, the affirmative vote of a majority of the Board of Directors consisting
of the Disinterested Directors shall be required in order for the Company or the
Board of Directors to act to (i) amend or terminate this Agreement, (ii)
exercise or waive any of Company's rights or remedies under this Agreement,
(iii) extend the time for performance of Hold Co.'s or Purchaser's respective
obligations under this Agreement or (iv) take any action to amend or otherwise
modify the Company's Articles of Association or Bye-Laws (each as in effect on
the date hereof).
11.13 ANNOUNCEMENTS. None of the Company, Hold Co. or Purchaser shall
make any public announcement of the terms or existence of this Agreement without
the consent of the other parties hereto, unless required by law.
[SIGNATURE PAGE FOLLOWS]
24
IN WITNESS WHEREOF, Hold Co., Purchaser, and the Company have caused
this Agreement to be signed by their respective officers thereunto duly
authorized as of the date first written above.
AMWAY ASIA PACIFIC, LTD.: APPLE HOLD CO., L.P.:
By: AP New Co., LLC, as
general partner
By: /s/ Xxx Xxxxx By: /s/ Xxxxx X. Xxxxxxx
-------------------------- -----------------------------
Name: Xxx Xxxxx Name: Xxxxx X. Xxxxxxx
Title: Director and Executive Title: Manager
Vice President
NEW AAP LIMITED
By: /s/ Xxxxxxxx X. Call
-----------------------------
Name: Xxxxxxxx X. Call
Title: President
25
Exhibit to
(c)(1)
EXHIBIT A
---------
SHAREHOLDER AND VOTING AGREEMENT
by and among
APPLE HOLD CO., L.P.,
NEW AAP LIMITED
and
CERTAIN SHAREHOLDERS OF AMWAY ASIA PACIFIC LTD.
dated as of
November 15, 1999
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TABLE OF CONTENTS
PAGE
I. VOTING OF COMPANY SHARES...............................................................-2-
1.1 Agreement to Vote Company Shares.................................-2-
II. REPRESENTATIONS AND WARRANTIES.........................................................-2-
2.1 Representations and Warranties of the Principal Shareholders.....-2-
2.2 Representations and Warranties of Parent.........................-2-
2.3 Representations and Warranties of Purchaser......................-3-
III. CERTAIN COVENANTS OF PRINCIPAL SHAREHOLDERS...........................................-4-
3.1 Restriction on Transfer of Principal Shares;
Proxies and Noninterference......................................-4-
IV. CERTAIN COVENANTS OF PARENT............................................................-4-
4.1 Restriction on Transfer of Non-Tendered Shares,
Proxies and Noninterference......................................-4-
4.2 Cooperation......................................................-4-
V. MISCELLANEOUS...........................................................................-5-
5.1 Amendment; Termination...........................................-5-
5.2 Extension; Waiver................................................-5-
5.3 Governing Law....................................................-5-
5.4 Notices..........................................................-5-
5.5 Assignment.......................................................-6-
5.6 Further Assurances...............................................-6-
5.7 Enforcement......................................................-6-
5.8 Severability.....................................................-6-
5.9 Counterparts.....................................................-6-
5.10 Headings.........................................................-6-
5.11 Third Party Beneficiary..........................................-7-
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SHAREHOLDER AND VOTING AGREEMENT
This SHAREHOLDER AND VOTING AGREEMENT, dated as of November 15, 1999
(this "Agreement"), is made and entered into among Apple Hold Co., L.P., a
Bermuda limited partnership ("Parent"), New AAP Limited, a Bermuda corporation
and wholly owned subsidiary of Parent ("Purchaser") and each of the shareholders
whose name is set forth on Schedule A hereto (each, a "Principal Shareholder"
and, collectively, the "Principal Shareholders"). Except as otherwise defined
herein, terms used herein with initial capital letters have the respective
meanings ascribed thereto in the Amalgamation Agreement (as defined below).
RECITALS:
WHEREAS, Parent, Purchaser and Amway Asia Pacific Ltd., a Bermuda
corporation (the "Company") propose to enter into a Tender Offer and
Amalgamation Agreement, dated as of November 15, 1999 (the "Amalgamation
Agreement"), pursuant to which Purchaser will conduct a tender offer (the
"Offer") for all of the Company's Common Stock, and following the Offer,
Purchaser will amalgamate with and into the Company (the "Amalgamation") or, if
so elected by Purchaser, Purchaser will compulsorily purchase all outstanding
Company Common Stock, all on the terms and subject to the conditions set forth
in the Amalgamation Agreement;
WHEREAS, as of the date hereof, each Principal Shareholder beneficially
owns and is entitled to dispose of (or to direct the disposition of) and to vote
(or to direct the voting of) the number of shares, no par value, of the Company,
set forth opposite such Principal Shareholder's name on Schedule A hereto
(collectively, the "Principal Shares");
WHEREAS, the Principal Shareholders have informed Purchaser that they
will not tender their Principal Shares in response to the Offer, but such
Principal Shareholders will transfer their Principal Shares ("Non-Tendered
Shares") to Parent contemporaneously with the consummation of the Offer;
WHEREAS, following the Offer and the transfer of the Non-Tendered
Shares to Parent, Parent will beneficially own and be entitled to dispose of (or
to direct the disposition of) and to vote Shares, representing in excess of
two-thirds of the outstanding Shares of the Company;
WHEREAS, all or a portion of the funds required to pay the Offer Price
will be borrowed by Purchaser pursuant to a Credit Agreement among Purchaser,
Parent, XXXX Hold Co., Ltd. and N.A.J. Co., Ltd., the lenders parties thereto
(the "Lender Parties") and Xxxxxx Guaranty Trust Company of New York, Tokyo
Branch, as agent (the "Agent", and together with the Lender Parties, the
"Banks");
WHEREAS, as a condition and inducement to their willingness to enter
into the Amalgamation Agreement, the Company and Purchaser have requested, and
as a condition to the agreement of the Banks to fund the Offer Price and the
consideration to be paid in the
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Amalgamation or the compulsory purchase, the Banks have requested, that Parent
agree, and Parent has agreed, to enter into this Agreement; and
WHEREAS, as a condition and inducement to their willingness to enter
into the Amalgamation Agreement, the Parent and Purchaser have requested, and as
a condition to the agreement of the Banks to fund the Offer Price and the
consideration to be paid in the Amalgamation or the compulsory purchase, the
Banks have requested, that each Principal Shareholder agree, and each Principal
Shareholder has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and covenants contained in this Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
I. VOTING OF COMPANY SHARES
1.1 AGREEMENT TO VOTE COMPANY SHARES. At any meeting of the
shareholders of the Company called to consider and vote upon the adoption or
approval of the Amalgamation Agreement or the Amalgamation (and at any and all
postponements and adjournments thereof), each Principal Shareholder will cause
Parent to vote, and Parent hereby agrees to vote, all of the Non-Tendered
Shares, in favor of the adoption or approval of the Amalgamation Agreement and
the Amalgamation and in favor of any other matter necessary or appropriate for
the consummation of the transactions contemplated by the Amalgamation Agreement
that is considered and voted upon at any such shareholders' meeting.
II. REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL SHAREHOLDERS. Each
Principal Shareholder, severally and not jointly, represents and warrants to
Parent, the Banks and Purchaser, as of the date hereof and as of the Closing
Date, as follows:
(a) EXECUTION AND DELIVERY. Such Principal Shareholder has all
requisite power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. In the case of each Principal Shareholder that
is not a natural person, the execution and delivery of this Agreement by such
Principal Shareholder and the consummation by such Principal Shareholder of the
transactions contemplated hereby have been duly authorized by all necessary
action, if any, on the part of such Principal Shareholder. This Agreement has
been duly and validly executed and delivered by such Principal Shareholder.
(b) OWNERSHIP OF SHARES. Such Principal Shareholder is the
sole holder of record and beneficial owner of such number of Principal Shares
set forth opposite its, his or her name on SCHEDULE A and holds good, valid and
marketable title to such Principal Shares and will hold such title at the date
or dates such Principal Shareholders transfer their Principal Shares to Parent.
2.2 REPRESENTATIONS AND WARRANTIES OF PARENT. Parent represents and
warrants to
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Purchaser and the Principal Shareholders, as of the date hereof and as of the
Closing Date, as follows:
(a) ORGANIZATION. Parent is a limited partnership duly
organized, validly existing and in good standing under the laws of Bermuda.
(b) AUTHORITY RELATIVE TO THIS AGREEMENT. Parent has all
requisite limited partnership power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby on the part of Parent have been duly and validly authorized
by the general partner of Parent and no other limited partnership proceedings on
the part of Parent are necessary to authorize this Agreement or to consummate
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Parent.
(c) CONSENT AND APPROVALS; NO VIOLATION. The execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated hereby and the performance by Parent of its obligations hereunder
will not:
(i) conflict with any provision of the certificate of
formation of Parent; or
(ii) require on the part of Parent any consent, approval,
order, authorization or permit of, or registration, filing or notification to,
any Governmental Authority or any third party.
2.3 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents
and warrants to Parent and the Principal Shareholders, as of the date hereof and
as of the Closing Date, as follows:
(a) ORGANIZATION. Purchaser is a company duly incorporated and
is validly existing as a corporation under the laws of Bermuda.
(b) POWER AND AUTHORITY. Purchaser has full corporate power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby on the part of
Purchaser have been duly and validly authorized by its board of directors and
its sole shareholder and no other corporate proceedings on the part of Purchaser
are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Purchaser.
(c) CONSENT AND APPROVALS; NO VIOLATION. The execution and
delivery by Purchaser of this Agreement does not, and the consummation of the
transactions contemplated hereby and the performance by Purchaser of its
obligations hereunder will not:
(i) conflict with or violate any provision of Purchaser's
Memorandum of Association or Bye-laws; or
(ii) require on the part of Purchaser any consent,
approval, order,
30
authorization or permit of, or registration, filing or notification to, any
Governmental Authority, except for (i) the filing by Purchaser with the SEC of
such reports under the Exchange Act as may be required in connection with the
Amalgamation Agreement (including, without limitation, the Schedule 14D-1 and
the Schedule 13E-3), and the transactions contemplated thereby and (iii) such
additional actions or filings which, if not taken or made, would not, singly or
in the aggregate, have a material adverse effect on the condition, financial or
otherwise, the earnings, business affairs or business prospects of Purchaser or
the transactions contemplated by this Agreement.
III. CERTAIN COVENANTS OF PRINCIPAL SHAREHOLDERS
3.1 RESTRICTION ON TRANSFER OF PRINCIPAL SHARES; PROXIES AND
NONINTERFERENCE. Each Principal Shareholder hereby agrees that it will not,
directly or indirectly: (A) except as otherwise contemplated by this Agreement
or the Amalgamation Agreement, offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of the Principal Shares or any other Shares it may at
anytime own (collectively, "Company Shares"); (B) except pursuant to the terms
of this Agreement, grant any proxies or powers of attorney, deposit any Company
Shares into a voting trust or enter into a voting agreement with respect to any
Company Shares; or (C) take any action that would reasonably be expected to make
any representation or warranty contained herein untrue or incorrect or have the
effect of impairing the ability of such Principal Shareholder to perform its
obligations under this Agreement or preventing or delaying the consummation of
any of the transactions contemplated hereby.
IV. CERTAIN COVENANTS OF PARENT
4.1 RESTRICTION ON TRANSFER OF NON-TENDERED SHARES, PROXIES AND
NONINTERFERENCE. Parent hereby agrees that it will not, directly or indirectly:
(A) except as otherwise contemplated by this Agreement or the Amalgamation
Agreement, offer for sale, sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all of
the Non-Tendered Shares or any other Shares it may at anytime own (collectively,
"Parent Shares"); (B) except pursuant to the terms of this Agreement, grant any
proxies or powers of attorney, deposit any Parent Shares into a voting trust or
enter into a voting agreement with respect to any Parent Shares; or (C) take any
action that would reasonably be expected to make any representation or warranty
contained herein untrue or incorrect or have the effect of impairing the ability
of Parent to perform its obligations under this Agreement or preventing or
delaying the consummation of any of the transactions contemplated hereby.
4.2 COOPERATION. Parent will cooperate fully with the Company and
Purchaser in connection with their respective reasonable best efforts to fulfill
the conditions to (a) the Offer set forth in Article II to the Amalgamation
Agreement and (b) the Amalgamation set forth in Article III of the Amalgamation
Agreement or, if so elected by Purchaser, the compulsory purchase set forth in
Article IV of the Amalgamation Agreement.
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V. MISCELLANEOUS
5.1 AMENDMENT; TERMINATION. This Agreement may not be amended except by
an instrument in writing signed on behalf of each of the parties hereto. This
Agreement will terminate upon the date the Amalgamation Agreement is terminated
in accordance with its terms, or by the mutual consent of the Board of Directors
of the Company consisting of the Disinterested Directors, and the general
partner of Parent. In the event of termination of this Agreement pursuant to
this Section 5.1, this Agreement, except as to those transactions already
consummated, will become null and void and of no effect with no liability on the
part of any party hereto; provided, however, that no such termination will
relieve any party hereto from any liability for any breach of this Agreement
arising under applicable law.
5.2 EXTENSION; WAIVER. Any agreement on the part of a party to waive
any provision of this Agreement, or to extend the time for any performance
hereunder, will 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 will not constitute a waiver of
such rights.
5.3 GOVERNING LAW. This Agreement will be governed by, and construed in
accordance with, the laws of Bermuda and the parties hereby irrevocably submit
to the non-exclusive jurisdiction of the courts of Bermuda.
5.4 NOTICES. All notices and other communications hereunder shall
comply with the notice provisions of the Amalgamation Agreement. In addition all
notices to the Principal Shareholders shall be sent to the following parties:
Amway Corporation
0000 Xxxxxx Xxxxxx Xxxx
Xxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxx_xxxxxxx@xxxxx.xxx
with copies to (for those Principal Shareholders listed on
SCHEDULE A as the "XxXxx Family"):
Xxxxxxx Xxxxxx & Xxxxx
Worldwide Plaza
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxxx@xxxxxxx.xxx
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with copies to (for those Principal Shareholders listed on
SCHEDULE A as the "Xxx Xxxxx Family"):
Xxxxx & Xxxxxxx
Columbia Square
000 Xxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx-Xxx Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxxxxx@xxxxx.xxx
5.5 ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any party hereto (whether by
operation of law or otherwise) without the prior written consent of the other
parties. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by, the parties and their respective
successors and assigns.
5.6 FURTHER ASSURANCES. Each of the Principal Shareholders and Parent
will execute and deliver such other documents and instruments and take such
further actions as may be necessary or appropriate or as may be reasonably
requested by Purchaser in order to ensure that Purchaser receives the full
benefit of this Agreement.
5.7 ENFORCEMENT. 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. Accordingly, the parties will be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement, this
being in addition to any other remedy to which they are entitled at law or in
equity.
5.8 SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void, unenforceable or against its regulatory policy, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
5.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same instrument and
will become effective when one or more counterparts have been signed by any
party and delivered to the other parties.
5.10 HEADINGS. The descriptive headings contained herein are for
convenience and reference only and will not affect in any way the meaning or
interpretation of this Agreement.
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5.11 THIRD PARTY BENEFICIARY. Except for the Banks and, to the extent
provided in the second sentence of Section 5.1 hereof, the Company, this
Agreement is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder. The Banks shall have the same rights
and remedies available to the parties to this Agreement as if the Banks were a
party hereto.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed as of the day and year first written above.
APPLE HOLD CO., L.P.
By: AP New Co., LLC, as general partner
By:_____________________________
Name:
Title:
NEW AAP LIMITED
By:_____________________________
Name:
Title:
PRINCIPAL SHAREHOLDERS:
XXX XXX XXXXX TRUST
By:_____________________________
Name:
Title:
SUBTRUST UNDER PARAGRAPH 3 OF JVA
TRUST
By:_____________________________
Name:
Title:
XXX AND XXXXX XXX XXXXX FOUNDATION
By:_____________________________
Name:
Title:
XXXXXXX X. XXXXX 1998 TRUST
By:_____________________________
Name:
35
Title:
By:_____________________________
Name:
Title:
XXXXXXX & XXXXX XXXXX FOUNDATION
By:_____________________________
Name:
Title:
XXXXX X. XXXXX ARTICLE I TRUST
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
XXXXXXX X. XXXXX, XX. ARTICLE II TRUST
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
36
XXXXXX X. XXXXX ARTICLE II TRUST
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
XXXXXXX XXXXX-XXXXXXXXXXX ARTICLE II
TRUST
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
XXXXXXX X. XXXXX ARTICLE II TRUST
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
RDV CAPITAL MANAGEMENT L.P. III
By: RDV Corporation, as general partner
By:_____________________________
Name:
Title:
37
XXXXXXX X. XXXXX, XX. 1995 CHRISTMAS
TRUST
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
XXXXXX X. XXXXX 0000 XXXXXXXXX TRUST
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
XXXXXXX XXXXX-XXXXXXXXXXX 1995
CHRISTMAS TRUST
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
38
XXXXXXX X. XXXXX 1995 CHRISTMAS TRUST
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
39
SCHEDULE A
----------------------------------------------------------------------
NUMBER OF PRINCIPAL
SHAREHOLDER SHARES OWNED
----------------------------------------------------------------------
X. XXX XXXXX FAMILY
Xxx Xxx Xxxxx Trust 12,315,145
Subtrust Under Paragraph 3 of JVA Trust 11,092,330
Xxx and Xxxxx Xxx Xxxxx Foundation 564,290
II. XXXXX FAMILY
----------------------------------------------------------------------
Xxxxxxx X. XxXxx 1998 Trust 9,948,743
Xxxxxxx & Xxxxx XxXxx Foundation 564,290
Xxxxx X. XxXxx Article I Trust 3,835,882
Xxxxxxx X. XxXxx, Xx. Article II Trust 200,528
Xxxxxx X. XxXxx Article II Trust 200,528
Xxxxxxx XxXxx-XxxxxxXxxxx Article II Trust 200,528
Xxxxxxx X. XxXxx Article II Trust 200,528
RDV Capital Management L.P. III 1,000,000
Xxxxxxx X. XxXxx, Xx. 1995 Christmas Trust 1,955,184
Xxxxxx X. XxXxx 1995 Christmas Trust 1,955,184
Xxxxxxx XxXxx-XxxxxxXxxxx 1995 Christmas Trust 1,955,185
Xxxxxxx X. XxXxx 1995 Christmas Trust 1,955,185
TOTAL 47,943,530
----------------------------------------------------------------------
