EXHIBIT 10.1
VOTING AND TENDER AGREEMENT
VOTING AND TENDER AGREEMENT, dated as of September 25, 2000
(this "Agreement"), between INTERNATIONAL PAPER COMPANY, a New York
corporation (the "Principal Shareholder"), XXXX XXXXX XXXXX INC., a
Virginia corporation (the "Company"), INTERNATIONAL FLAVORS & FRAGRANCES
INC., a New York corporation ("Parent"), and B ACQUISITION CORP., a
Virginia corporation and wholly-owned subsidiary of Parent ("Merger
Subsidiary").
WHEREAS, the Company, Parent and Merger Subsidiary propose
to enter into an Agreement and Plan of Merger, dated as of the date hereof
(as amended from time to time in accordance with the terms thereof, the
"Merger Agreement"), which provides for, among other things, an offer to
purchase by Merger Subsidiary all of the outstanding shares of common
stock, par value $1.00 per share, of the Company ("Company Common Stock")
followed by the merger of Merger Subsidiary with and into the Company (the
"Merger");
WHEREAS, as of the date hereof, the Principal Shareholder
owns 13,150,000 shares of Company Common Stock; and
WHEREAS, as a condition to the willingness of Parent and
Merger Subsidiary to enter into the Merger Agreement, each of Parent and
Merger Subsidiary has required that the Principal Shareholder agree, and in
order to induce Parent and Merger Subsidiary to enter into the Merger
Agreement, the Principal Shareholder has agreed, to enter into this
Agreement with respect to (a) all the shares of Company Common Stock now
owned and all the Shares of Company Common Stock which may hereafter be
acquired by, or on behalf of, the Principal Shareholder (the "Shares") and
(b) certain other matters as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be
legally bound hereby, the parties hereto hereby agree as follows:
ARTICLE 1
Section 1.1 Tender Agreement. (a) The Principal Shareholder
hereby agrees that it shall promptly (and in any event within ten business
days) following the commencement of the Offer, tender pursuant to the
letter of transmittal included in the Offer Documents, the certificates
representing all of the Shares. The Principal Shareholder shall also
deliver in connection therewith all other customary documents or
instruments required to be delivered pursuant to the terms of the Offer
Documents. The Principal Shareholder shall not, subject to applicable law,
withdraw the tender of Shares effected in accordance with this Section 1.1
except if there is any amendment that adversely affects the Principal
Shareholder.
(b) Except as provided in clause (a) above, during the time
this Agreement is in effect, the Principal Shareholder hereby agrees that
it shall not sell, give, assign, hypothecate, pledge, encumber, grant a
security interest in or otherwise dispose of or transfer (whether by
operation of law or by agreement or otherwise), any Shares, or any right,
title or interest therein or thereto or enter into any contract, option or
other agreement or understanding with respect to any of the foregoing.
Section 1.2 Voting Agreement. (a) The Principal Shareholder
hereby agrees that during the time this Agreement is in effect, at any
meeting of the shareholders of the Company, however called, and in any
action by consent of the shareholders of the Company, the Principal
Shareholder shall vote the Shares: (x) in favor of the Merger, the Merger
Agreement and the transactions contemplated by the Merger Agreement and (y)
against any (i) Acquisition Proposal, (ii) action or agreement that would
reasonably be expected to result in a breach of any covenant or any other
obligation or agreement of the Company under the Merger Agreement or which
would reasonably be expected to result in any of the conditions to the
Company's obligations under the Merger Agreement not being fulfilled or
(iii) any other action which is intended, or would reasonably be expected,
to impede or materially delay, the consummation of the transactions
contemplated hereby or by the Merger Agreement or materially adversely
affect the contemplated economic benefits to Parent of the transactions
contemplated hereby or by the Merger Agreement.
(b) Except as otherwise provided herein, the Principal
Shareholder hereby agrees that it will not (i) grant any proxy,
power-of-attorney or other authorization in or with respect to any or all
of the Shares to any person other than Parent or Merger Subsidiary or (ii)
deposit such Shares into a voting trust or enter into a voting agreement or
similar arrangement with respect to such Shares.
Section 1.3 Option. (a) The Principal Shareholder hereby
irrevocably grants Parent an option (the "Option") to purchase all of the
Shares at a purchase price per share equal to $48.50 (as adjusted pursuant
to Section 1.3(e), the "Option Price") on the terms and subject to the
conditions set forth in this Section 1.3.
(b) Subject to the conditions set forth in Section 1.3(d),
Parent may exercise the Option, at any time prior to the date 40 days after
the expiration or termination of the Merger Agreement (such 40th day being
herein called the "Option Expiration Date") if the Merger Agreement is
terminated pursuant to a "Triggering Termination." For purposes of this
Agreement, a "Triggering Termination" means a termination of the Merger
Agreement (x) pursuant to Section 8.01(g) or (y) as a result of a breach by
the Principal Shareholder of its obligations under Section 1.1 or Section
3.4 hereof in any material respect. Parent shall exercise the Option by
delivering written notice thereof to the Principal Shareholder (the
"Notice"), specifying the date, time and place for the closing of such
purchase which date shall not be less than three business days nor more
than five business days from the date Parent provides the Notice (the
"Option Closing"). The Option Closing shall take place on the date and at
the time and place specified in such notice; provided, that if at such time
any of the conditions specified in Section 1.3(d) shall not have been
satisfied (or waived), Parent may postpone the Option Closing (but in no
event for more than 90 days) until a date within five business days after
such conditions are satisfied. Upon the exercise of the Option (and subject
to the satisfaction of the conditions set forth in Section 1.3(d)), Parent
shall be entitled to purchase the Shares under the Option (the "Option
Shares") and the Principal Shareholder shall sell the Option Shares to
Parent.
(c) At the Option Closing, the Principal Shareholder will
deliver to Parent (in accordance with Parent's instructions) the
certificates representing the Option Shares being purchased pursuant to
this Section 1.3, duly endorsed or accompanied by stock powers duly
executed in blank. At such Option Closing, Parent shall deliver to the
Principal Shareholder, by bank wire transfer of immediately available
funds, an amount equal to the number of Option Shares being purchased from
the Principal Shareholder as specified in the Notice multiplied by the
Option Price.
(d) The obligation of Parent to purchase the Option Shares
at the Option Closing is subject to the following conditions: (i) the
waiting period under the HSR Act and all other foreign antitrust laws
covered by Section 7.01(d) of the Merger Agreement with respect to the
acquisition of such Shares shall have expired or been terminated and (ii)
there shall be no preliminary or permanent injunction or other order,
decree or ruling issued by any Governmental Entity, nor any statute, rule,
regulation or order promulgated or enacted by any Governmental Entity
prohibiting, or otherwise restraining, such purchase.
(e) In the event of any change in the Company's capital
stock by reason of any stock dividend, stock split, merger, consolidation,
recapitalization, combination, conversion, exchange of shares,
extraordinary or liquidating dividend or other change in the corporate or
capital structure of the Company which would have the effect of diluting or
changing Parent's rights hereunder, the number and kind of Option Shares or
other securities subject to this Agreement and the Option Price shall be
appropriately and equitably adjusted so that Parent shall receive pursuant
to the exercise of the Option that number and class of shares or other
securities or property that Parent or Merger Subsidiary, as the case may
be, would have received in respect of the Option Shares purchasable
pursuant to the exercise of the Option if such purchase had occurred
immediately prior to such event.
(f) If the Option is exercised and the Option Shares are
acquired by Parent (or its permitted assigns), Parent shall offer to
purchase all outstanding shares of the Company's Common Stock or effect a
merger or similar business combination at a price per share not less than
the price per share paid for the Option Shares.
Section 1.4 Acknowledgment. The Principal Shareholder
acknowledges receipt and review of a copy of the Merger Agreement.
Section 1.5 Board Duties. Notwithstanding the foregoing,
nothing in this Agreement shall prohibit any person affiliated with the
Principal Shareholder from fulfilling his or her fiduciary duties as a
member of the Board of Directors of the Company.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
OF THE PRINCIPAL SHAREHOLDER
The Principal Shareholder hereby represents and warrants to
Parent, as of the date hereof and any Option Closing, as follows:
Section 2.1 Authority Relative to This Agreement. The
Principal Shareholder has all necessary power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery
of this Agreement by the Principal Shareholder and the consummation by the
Principal Shareholder of the transactions contemplated hereby have been
duly and validly authorized by the Principal Shareholder, and no other
proceedings on the part of the Principal Shareholder are necessary to
authorize this Agreement, to perform such obligations or to consummate such
transactions. This Agreement has been duly and validly executed and
delivered by the Principal Shareholder and, assuming the due authorization,
execution and delivery by Parent and Merger Subsidiary, constitutes a
legal, valid and binding obligation of the Principal Shareholder,
enforceable against the Principal Shareholder in accordance with its terms.
Section 2.2 No Conflict. (a)The execution and delivery of
this Agreement by the Principal Shareholder do not, and the performance of
its obligations under this Agreement by the Principal Shareholder and the
consummation of the transactions contemplated hereby shall not, (i)
conflict with or violate the certificate of incorporation, by-laws or other
organizational documents of the Principal Shareholder, (ii) conflict with
or violate any law, rule, regulation, order, judgment or decree applicable
to the Principal Shareholder or by which the Shares are bound or affected
or (iii) result in any breach of or constitute a default (or an event that
with notice or lapse or time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on any
of the Shares pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or
obligation to which the Principal Shareholder is a party or by which the
Principal Shareholder or the Shares are bound or affected, except, in the
case of clauses (ii) and (iii), for any such conflicts, violations,
breaches, defaults or other occurrences which would not prevent or delay
the performance by the Principal Shareholder of its obligations under this
Agreement.
(b) The execution and delivery of this Agreement by the
Principal Shareholder do not, and the performance of its obligations under
this Agreement by the Principal Shareholder shall not, require any consent,
approval, authorization or permit of, or filing with or notification to,
any court or arbitrator or any Governmental Entity, agency or official
except for applicable requirements, if any, of the Securities Exchange Act
and except where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would
not prevent or delay the performance by the Principal Shareholder of its
obligations under this Agreement.
Section 2.3 Title to the Shares. As of the date hereof, the
Principal Shareholder is the sole record and beneficial owner of 13,150,000
shares of Company Common Stock. Such Shares are all the securities of the
Company owned, either of record or beneficially, by the Principal
Shareholder and the Principal Shareholder owns no other rights or interests
exercisable for or convertible into any securities of the Company. The
Principal Shareholder has sole voting power and sole power to issue
instructions with respect to the matters set forth herein, sole power of
disposition, sole power (if any) to demand dissenters' rights and sole
power to agree to all of the matters set forth in this Agreement, in each
case with respect to all of the Shares with no limitations, qualifications
or restrictions on such rights, subject to applicable law. The Shares are
owned free and clear of all Liens. The transfer of the Shares to Parent or
Merger Subsidiary upon consummation of the Offer, or upon exercise of the
Option, will constitute a transfer of valid title to Parent or Merger
Subsidiary, as the case may be, free and clear of all Liens, other than
Liens which may be created by Parent or Merger Subsidiary. The Principal
Shareholder has not appointed or granted any proxy, which appointment or
grant is still effective, with respect to the Shares.
ARTICLE 3
COVENANTS OF THE PRINCIPAL SHAREHOLDER
Section 3.1 No Inconsistent Agreement. The Principal
Shareholder hereby covenants and agrees that the Principal Shareholder
shall not enter into any agreement or take any other action that would
restrict, limit or interfere with the performance of the Principal
Shareholder's obligations hereunder, under the Merger Agreement or the
consummation of the transactions contemplated hereby or thereby.
Section 3.2 No Encumbrances. The Principal Shareholder
hereby covenants and agrees that the Principal Shareholder shall not by any
action or omission cause any Liens to attach to the Shares.
Section 3.3 Publicity. The Principal Shareholder hereby
covenants and agrees that from the date hereof until the Effective Time,
the Principal Shareholder, Parent, Merger Subsidiary and the Company shall
use their respective reasonable best efforts to consult with each other
before issuing any press release or making any public statement with
respect to this Agreement and the transactions contemplated hereby and by
the Merger Agreement, and, except as may be required by the applicable law
or any listing agreement with the NYSE, will not issue any such press
release or make any such public statement prior to such consultation.
Section 3.4 Regulatory Filings. The Principal Shareholder
hereby covenants and agrees that it will, as soon as practicable, file a
Notification and Report Form under the HSR Act with the FTC and the
Antitrust Division in connection with the transactions contemplated hereby
and by the Merger Agreement as the "ultimate parent entity" of the Company,
if required under applicable law, and will make any filing or seek any
consent, including any filings under any applicable foreign antitrust laws,
as may be required in connection with this Agreement, the Merger Agreement
or the transactions contemplated thereby. The Principal Shareholder shall
cooperate with the Company and Parent and use its best efforts to respond
as promptly as practicable to all inquiries received from the FTC or the
Antitrust Division or any regulatory agencies for additional information or
documentation concerning the Principal Shareholder, the Company or the
transactions contemplated hereby or by the Merger Agreement. The Principal
Shareholder shall use its best efforts to take or cause to be taken all
actions necessary, proper or advisable to obtain any consent, waiver,
approval or authorization relating to any antitrust law that is required
for the consummation of the transactions contemplated hereby and by the
Merger Agreement.
Section 3.5 Waiver of Appraisal Rights. The Principal
Shareholder hereby acknowledges that no rights of appraisal are available
to it in connection with the Merger and hereby irrevocably and
unconditionally waives, and agrees to prevent the exercise of, any rights
of appraisal, any dissenters' rights and any similar rights relating to the
Merger or any related transaction that the Principal Shareholder may
directly or indirectly have by virtue of the ownership of any Shares.
Section 3.6 Reasonable Best Efforts. The Principal
Shareholder hereby covenants and agrees, subject to the terms and
conditions of this Agreement, to use its reasonable best efforts to take,
or cause to be taken, all actions, and to do or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations
to consummate and make effective the transactions contemplated hereby.
Section 3.7 Further Assurances. The Principal Shareholder
hereby covenants and agrees that, from time to time and without additional
consideration, the Principal Shareholder shall (at the Principal
Shareholder's sole expense) execute and deliver, or cause to be executed
and delivered, such additional transfers, assignments, endorsements,
proxies, consents and other instruments (which shall be reasonably
satisfactory in form and substance to Parent) and shall, at the Principal
Shareholder's sole expense, take such further actions, as Parent may
reasonably request for the purpose of carrying out and furthering the
intent of this Agreement.
Section 3.8 No Solicitation. The Principal Shareholder
acknowledges that it is aware of the covenants of the Company contained in
Section 6.03 of the Merger Agreement and hereby agrees to comply with the
terms of such section as if it were an "agent" of the Company for all
purposes of said section.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PARENT
Each of Parent and Merger Subsidiary has all necessary power
and authority to execute, deliver and perform its obligations under this
Agreement and this Agreement has been duly authorized, executed and
delivered by each of Parent and Merger Subsidiary and is a valid and
binding agreement of each of Parent and Merger Subsidiary enforceable
against each of Parent and Merger Subsidiary in accordance with its terms.
ARTICLE 5
MISCELLANEOUS
Section 5.1 Termination. Except as set forth below, this
Agreement shall terminate upon the earliest of (i) the Effective Time, (ii)
the Option Closing and (iii) the termination of the Merger Agreement in
accordance with its terms; provided, however, that this Agreement shall not
terminate under this clause (iii) if the Merger Agreement is terminated
pursuant to a Triggering Termination unless and until the Option expires in
accordance with Section 1.3. Notwithstanding the foregoing, the Principal
Shareholder's representation contained in Section 2.3 and covenant set
forth in Section 3.7 shall survive any termination occasioned by clause
(ii) of the preceding sentence.
Section 5.2 Fees and Expenses. Except as otherwise provided
herein, all costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such
costs and expenses.
Section 5.3 Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given
(and shall be deemed to have been duly given upon receipt) by delivery in
person, registered or certified mail (postage prepaid, return receipt
requested) or courier service, or by facsimile (and shall be deemed to have
been given upon proof of receipt), to the other party as follows:
(a) If to the Principal Shareholder, to:
International Paper Company
0 Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: General Counsel
with a copy to:
O'Melveny & Xxxxx LLP
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
(b) if to the Company, to:
Xxxx Xxxxx Xxxxx Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.;
(c) if to Parent or Merger Subsidiary, to:
International Flavors & Fragrances Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Block, Esq.
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Xxxxxxx X. Xxxxxx, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above.
Section 5.4 Assignment. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned, delegated
or transferred, in whole or in part, by any of the parties hereto (whether
by operation of law or otherwise) without the prior written consent of the
other parties hereto (and which transfer shall not relieve the transferor
of its obligations hereunder in the event of a breach by the transferee)
provided that Parent or Merger Subsidiary may assign this Agreement to any
wholly-owned Subsidiary of Parent without the prior written consent of the
other parties hereto.
Section 5.5 No Third-Party Beneficiaries. This Agreement
shall be binding upon and inure solely to the benefit of each party hereto
and its respective successors and permitted assigns, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any
other person any right, benefits or remedies of any nature whatsoever.
Section 5.6 Specific Performance. The parties hereto agree
that irreparable damage would occur in the event that the provisions of
this Agreement were not performed in accordance with the terms hereof and
that the parties shall be entitled to specific performance of the terms
hereof, in addition to any other remedy at law or in equity.
Section 5.7 Entire Agreement. This Agreement constitutes the
entire agreement among Parent, Merger Subsidiary, the Company and Principal
Shareholder with respect to the subject matter hereof (other than the
Merger Agreement) and supersedes all prior agreements and understandings,
both written and oral, among Parent, Merger Subsidiary, the Company and the
Principal Shareholder with respect to the subject matter hereof.
Section 5.8 Amendment. This Agreement may not be modified,
amended, altered or supplemented except by an instrument in writing signed
by each of the parties hereto.
Section 5.9 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 this Agreement 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 hereby shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible to the
fullest extent permitted by applicable law in a mutually acceptable manner
in order that the terms of this Agreement remain as originally
contemplated.
Section 5.10 Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York
regardless of the laws that might otherwise govern under applicable
principles of conflicts of law.
Section 5.11 Consent to Jurisdiction. Each party to this
Agreement hereby irrevocably agrees that any legal action or proceeding
arising out of or relating to this Agreement or any agreements or
transactions contemplated hereby shall be brought in the United States
District Court for the Southern District of New York or any appropriate
state court in the State of New York and hereby expressly submits to the
personal jurisdiction and venue of such courts for the purposes thereof and
expressly waives any claim of improper venue and any claim that such courts
are an inconvenient forum. Each party hereby irrevocably consents to the
service of process of any of the aforementioned courts in any such suit,
action or proceeding by the mailing of copies thereof by registered or
certified mail, post prepaid, to the address set forth in Section 5.3, such
service to become effective ten days after such mailing.
SECTION 5.12 WAIVER OF JURY TRIAL. EACH OF THE PARTIES
HERETO IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE ACTIONS OF THE PRINCIPAL SHAREHOLDER, THE COMPANY, PARENT OR MERGER
SUBSIDIARY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
THEREOF.
Section 5.13 Defined Terms. Capitalized terms used herein
but not defined herein shall have the meanings ascribed to them in the
Merger Agreement.
Section 5.14 Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the Principal Shareholder, the Company,
Parent and Merger Subsidiary have caused this Agreement to be duly executed
on the date hereof.
INTERNATIONAL PAPER COMPANY
By: /s/ C. Xxxxxx Xxxxx
---------------------------------------------
Name: C. Xxxxxx Xxxxx
Title: Executive Vice Xxxxxxxxx
XXXX XXXXX XXXXX INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman, President & CEO
INTERNATIONAL FLAVORS & FRAGRANCES INC.
By: /s/ Xxxxxxx X. Block
---------------------------------------------
Name: Xxxxxxx X. Block
Title: Senior Vice President
B ACQUISITION CORP.
By: /s/ Xxxxxxx X. Block
---------------------------------------------
Name: Xxxxxxx X. Block
Title: Vice President
