EXHIBIT 99(d)(1)
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
XXXXXXX PAPERS LTD.,
XXXXXXX ACQUISITION CORP.,
AND
XXXXX CORPORATION
AUGUST 30, 2000
TABLE OF CONTENTS
ARTICLE I THE TENDER OFFER AND THE MERGER; PAYMENT TO CERTAIN
OPTION HOLDERS.........................................................2
1.1 The Tender Offer and Tender Offer Documents........................2
1.2 Company Action.....................................................4
1.2.1 Company Recommendation.....................................4
1.2.2 Stockholder Lists..........................................5
1.3 The Merger.........................................................6
1.4 Certificate of Incorporation.......................................6
1.5 The Shares of Stock................................................6
1.5.1 The Shares of Stock of the Merged Corporation..............6
1.5.2 The Shares of Stock of the Company.........................6
1.5.3 Payment for Shares; Surrender of Certificates..............7
1.6 Additional Terms and Conditions of the Merger......................8
1.6.1 Bylaws.....................................................8
1.6.2 Directors and Officers.....................................8
1.6.3 The Effective Time.........................................8
1.6.4 Effect of the Merger.......................................9
1.7 The Closing........................................................9
1.7.1 Filing of Certificate of Merger; the Closing...............9
1.7.2 Place of Closing...........................................9
1.8 Payment to Certain Option Holders.................................10
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY................10
2.1 Approval of Agreement and Merger..................................10
2.2 Authority; No Restrictions; Binding Obligation....................11
2.3 No Material Interest..............................................11
2.4 The Company's and Each Subsidiary's Existence and Good
Standing; Authority.............................................11
2.5 Capital Stock.....................................................12
2.6 Subsidiaries and Investments......................................12
2.7 SEC Reports; Financial Statements.................................12
2.7.1 SEC Reports...............................................12
2.7.2 Financial Statements......................................13
2.8 No Competition Restrictions.......................................13
2.9 No Litigation.....................................................14
2.10 Absence of Certain Changes.......................................14
2.11 No Broker's or Finder's Fees.....................................14
2.12 Fairness Opinion of Financial Advisor............................14
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT AND
PURCHASER.............................................................15
3.1 Approval of Agreement and Merger..................................15
3.2 Existence and Good Standing; Authority; Binding
Obligation......................................................15
3.3 No Restrictions...................................................16
3.4 No Broker's or Finder's Fees......................................16
ARTICLE IV THE COMPANY'S FURTHER COVENANTS AND AGREEMENT................16
4.1 Conduct of Business of the Company and the Subsidiaries...........16
4.2 Coordination......................................................16
4.3 Due Diligence Investigation of the Company and the
Subsidiaries....................................................17
4.4 Shareholder Approval if Required; SEC Filings.....................17
4.4.1 Shareholder Approval if Required..........................17
4.4.2 SEC Filings...............................................18
4.5 No Shop Covenant..................................................19
ARTICLE V CONDITIONS TO THE OBLIGATIONS OF PARENT AND
PURCHASER.............................................................19
5.1 No Injunction or Other Legal Prohibition..........................19
5.2 Approvals.........................................................20
ARTICLE VI CONDITIONS TO THE OBLIGATIONS OF THE COMPANY.................20
6.1 No Injunction or Other Legal Prohibition..........................20
6.2 Approvals.........................................................20
ARTICLE VII TERMINATION..................................................20
7.1 Right to Termination..............................................20
7.2 Effects of Termination............................................22
7.3 Breakup Fee.......................................................22
ARTICLE VIII MISCELLANEOUS................................................23
8.1 Expenses..........................................................23
8.2 "Person" Defined..................................................23
8.3 Captions; Agreement; Construction.................................23
8.4 Notices...........................................................23
8.5 Parties in Interest...............................................24
8.6 Counterparts......................................................25
8.7 Entire Agreement..................................................25
8.8 Amendments; Waiver................................................25
8.9 Enforceability....................................................25
8.10 Non-Survival of Representations, Warranties, and
Covenants.......................................................25
8.11 No Assignment....................................................26
8.12 Currency.........................................................26
8.13 Public Announcements.............................................26
8.14 Applicable Law; Jurisdiction; Enforcement of Agreement...........26
8.15 Further Assurances...............................................26
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AGREEMENT AND PLAN OF MERGER
------------------------
AGREEMENT AND PLAN OF MERGER (the "Agreement") dated as of August 30,
2000, by and among XXXXXXX PAPERS LTD., a corporation organized and existing
under the laws of Canada, with offices located at 00, Xxxxx-Xxxxxxxx Xxxxxxxxx,
Xxxxxxx, Xxxxxx, X0X 0X0 Xxxxxx ("Parent"), XXXXXXX ACQUISITION CORP., a
corporation organized and existing under the laws of the State of New York, with
an address in care of Xxxxxxx Papers Ltd., 00, Xxxxx-Xxxxxxxx Xxxxxxxxx,
Xxxxxxx, Xxxxxx, X0X 0X0 Xxxxxx ("Purchaser"), and XXXXX CORPORATION, a
corporation organized and existing under the laws of the State of New York,
incorporated in New York on May 3, 1971 with the name Hosposable Products, Inc.,
with offices located at 0000 X.X. Xxxxxxx 00 Xxxx, Xxxxx 000, Xxxxxxxxxxx, Xxx
Xxxxxx 00000 (the "Company").
WHEREAS, Parent desires to acquire the Company pursuant to the Tender
Offer (as defined below) and the merger provided herein (the "Merger") and
otherwise pursuant to the terms and conditions contained herein; and
WHEREAS, Parent has caused Purchaser to be incorporated for the sole
purpose of the Tender Offer, the Stock Purchase Agreement (as defined below),
and the Merger, and Parent is the owner of all of the issued and outstanding
capital stock of Purchaser; and
WHEREAS, simultaneously with the execution and delivery hereof, Parent and
Purchaser, as purchasers, have entered into a certain stock purchase agreement
with each of Xxxxx X. Xxxxx, Xxxx Xxxxx Xxxxx, Xxxxx Xxxxx Xxxxx and the Estate
of Xxxxxx X. Xxxxx, as the beneficial owner of certain shares of the common
stock of the Company, and Xxxxx X. Xxxxx as the beneficial owner of Class E
Exchangeable Preferred Stock of Wood Xxxxx Inc. ("Exchangeable Preferred
Stock"), a Canada corporation and a wholly owned subsidiary of the Company,
exchangeable on a one-for-one basis for common stock of the Company (the "Stock
Purchase Agreement"), pursuant to which (i) a majority of the issued and
outstanding shares of common stock of the Company shall be tendered in the
Tender Offer and Purchaser shall take up and pay for such shares, and (ii)
Parent shall simultaneously, and for the same per-share consideration, purchase
the Exchangeable Preferred Stock or, in the event the Tender Offer shall be
terminated prior thereto, Parent and Purchaser shall have the right to purchase
from the foregoing sellers such majority of the issued and outstanding shares of
common stock of the Company and such Exchangeable Preferred Stock, subject to
certain conditions and otherwise pursuant to the terms and conditions of the
Stock Purchase Agreement; and
WHEREAS, the Company and Cascades Inc., a Quebec corporation
and the corporate parent of Parent, have entered into a certain agreement which
provides, among other things, that, prior to Parent's purchase of any shares of
the capital stock of the Company in which Xxxxx X. Xxxxx has a beneficial
interest, whether pursuant to the Stock Purchase Agreement or otherwise, Parent
shall make an offer to all other holders of the capital stock of the Company to
purchase such holders' capital stock on terms no less favorable to them than
those being offered to Xxxxx X. Xxxxx; and
WHEREAS, the board of directors of the Company has determined that it is
in the best interest of the Company and its shareholders for the Company to be
so acquired pursuant to the Tender Offer, the Stock Purchase Agreement, and the
Merger and otherwise pursuant to the terms and conditions contained herein; and
WHEREAS, the board of directors of each of Purchaser and the Company
(each, a "Constituent Corporation", and, together, the "Constituent
Corporations") has resolved that the Tender Offer, and the Merger and this
Agreement is advisable and approved, and, simultaneously with the execution and
delivery hereof, Parent as the sole shareholder of Purchaser has resolved that
the Tender Offer and the Merger and this Agreement be adopted, approved and
authorized; and
NOW THEREFORE, the parties hereto, in consideration of the mutual
covenants, agreements, and provisions herein contained, do hereby prescribe the
terms and conditions of the Tender Offer and the Merger and mode of carrying the
Tender Offer and the Merger into effect and otherwise agree to the provisions
hereof as follows:
ARTICLE I
THE TENDER OFFER AND THE MERGER; PAYMENT TO CERTAIN OPTION
HOLDERS
1.1 THE TENDER OFFER AND TENDER OFFER DOCUMENTS. As promptly as
practicable, but in no event later than five business days subsequent to the
public announcement hereof (or at such later time as the parties might agree),
Parent (or Purchaser as provided in the last sentence of this Section 1.1) shall
commence an offer to purchase for cash (the "Tender Offer") all of the issued
and outstanding shares of common stock of the Company, $.01 par value per
share,(the "Company Stock"), at a price of four ($4.00) dollars per share, net
to the seller in cash. The obligation of Parent to commence the Tender Offer and
to accept
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for payment and to pay for any shares of Company Stock tendered shall be subject
to the conditions set forth in Exhibit 1.1 hereto. The initial expiration date
of the Tender Offer shall be the 20th business day following the commencement of
the Tender Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under
the Securities Exchange Act of 1934, as amended (the "Exchange Act")). Parent
expressly reserves the right to waive any condition of the Tender Offer or
modify the terms to the Tender Offer, except that, without the consent of the
Company, Parent shall not (i) reduce the number of shares of Company Stock
subject to the Tender Offer, (ii) reduce the price per share of Company Stock to
be paid pursuant to the Tender Offer, (iii) modify in any manner adverse to the
holders of Company Stock or add to the conditions set forth in EXHIBIT 1.1, (iv)
except as provided in the next succeeding sentence, extend the Tender Offer, or
(v) change the form of consideration payable in the Tender Offer.
Notwithstanding the foregoing, Parent may, without the consent of the Company,
(A) extend the Tender Offer for any period required by any rule, regulation,
interpretation or position of the Securities and Exchange Commission (the "SEC")
or the staff thereof applicable to the Tender Offer, (B) extend the Tender Offer
for one or more periods of time that Parent determines if at the scheduled or
any extended expiration date of the Tender Offer any conditions to Parent's
obligation to purchase shares of Company Stock are not satisfied or waived, and
(C) if at the scheduled or any extended expiration date of the Tender Offer
fewer than 90% of the then issued and outstanding shares of Company Stock have
been validly tendered and not withdrawn in the Tender Offer, extend the Tender
Offer for a period of not more than ten business days in the aggregate beyond
the latest expiration date that would otherwise be permitted under clauses (A)
or (B) of this sentence. Parent may in addition make available a "subsequent
offering period", in accordance with Rule 14d-11 of the Exchange Act. Purchaser
will take up and accept for payment all shares of Company stock validly tendered
pursuant to the Tender Offer and not withdrawn as soon as legally permissible,
and pay for all such shares as promptly as practicable thereafter, in each case
upon the terms and subject to the conditions of the Tender Offer, as provided
herein. In order to make the cash payments required in connection therewith,
Parent shall cause Purchaser to deliver to Xxxxxx Trust Company of New York, the
Depositary for the Tender Offer, at or prior to the time Purchaser is required
to purchase tendered shares, cash in an aggregate amount equal to the product of
(x) the Share Price multiplied by (y) the number of shares of Company Stock so
tendered. The Company agrees that no shares of Company Stock held by the Company
or any subsidiary of the Company will be tendered in the Tender Offer. In
connection with the Tender Offer, Parent shall file with the SEC a Tender Offer
Statement on Schedule TO with respect to the Tender Offer, which shall contain
an offer to purchase and a related letter of transmittal and summary
advertisement (such Schedule TO and the
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documents therein pursuant to which the Tender Offer will be made, together with
any supplements or amendments thereto, the "Tender Offer Documents"). The Tender
Offer Documents shall comply as to form in all material respects with the
requirements of the Exchange Act, and the rules and regulations promulgated
thereunder and, on the date filed with the SEC and on the date first published,
sent or given to the holders of shares of Company Stock, shall not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading, except
that no representation is made by Parent or Purchaser with respect to
information supplied by the Company specifically for inclusion in the Tender
Offer Documents. Each of Parent, Purchaser and the Company agrees promptly to
correct any information supplied by it specifically for inclusion in the Tender
Offer Documents if and to the extent that such information shall have become
false or misleading in any material respect, and Parent further agrees to take
all steps necessary to cause the Tender Offer Documents as so corrected to be
filed with the SEC and to be disseminated to holders of shares of Company Stock,
in each case as and to the extent required by applicable United States
securities laws. Parent and Purchaser agree to provide the Company and its
counsel in writing with any comments Parent or Purchaser or its counsel may
receive from the SEC or its staff with respect to the Tender Offer Documents
promptly after the receipt of such comments. Parent shall have the right
effective upon notice to the Company to delegate or to transfer or assign, in
whole or from time to time in part, to Purchaser or to one or more other
wholly-owned subsidiaries of Parent, the obligation to make the Tender Offer or
the right to purchase shares of Company Stock tendered pursuant to the Tender
Offer, but any such delegation or transfer or assignment will not relieve Parent
of its obligation under the Tender Offer and will in no way prejudice the rights
of tendering shareholders to receive payment for their shares of Company Stock
validly tendered and accepted for payment pursuant to the Tender Offer.
1.2 COMPANY ACTION.
1.2.1 COMPANY RECOMMENDATION. The board of directors of the Company
has approved the Tender Offer and the Merger and determined that the Tender
Offer and the Merger are fair to and in the best interests of the Company's
shareholders and has adopted resolutions recommending acceptance of the Tender
Offer and approval and adoption of the Merger and this Agreement by the
shareholders of the Company, and the Company hereby consents to the Tender
Offer. The Company shall, as soon as practicable on or after the date of
commencement of the Tender Offer, file with the SEC a
Solicitation/Recommendation Statement on Schedule 14D-9 (as amended from time to
time, the "Schedule 14D-9") which shall reflect the foregoing recommendations of
the Company's board of
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directors, and copies of the Schedule 14D-9 (excluding exhibits) shall be
enclosed with the Tender Offer Documents to be mailed to the shareholders of the
Company in connection with the Tender Offer. The Schedule 14D-9 shall comply as
to form in all material respects with the requirements of the Exchange Act and
the rules and regulations promulgated thereunder and, on the date filed with the
SEC and on the date first published, sent or given to the holders of shares of
Company Stock, shall not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
are made, not misleading, except that no representation is made by the Company
with respect to information supplied by Parent or Purchaser specifically for
inclusion in the Schedule 14D-9. Each of Parent, Purchaser and the Company
agrees promptly to correct any information supplied by it specifically for
inclusion in the Schedule 14D-9 if and to the extent that such information shall
have become false or misleading in any material respect, and the Company further
agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected
to be filed with the SEC and to be disseminated to holders of shares of Company
Stock, in each case as and to the extent required by applicable United States
securities laws. The Company agrees to provide Parent and Purchaser and their
counsel in writing with 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. The board of directors of the Company shall be
entitled to change their foregoing recommendations and to amend the Schedule
14D-9 accordingly only to the extent required by their fiduciary duties under
applicable law after the receipt of written advice of counsel in connection with
an Alternative Proposal as provided in Section 4.5 hereof.
1.2.2 STOCKHOLDER LISTS. In connection with the Tender Offer, the
Company shall (a) cause its agent to furnish Parent with mailing labels
containing the names and addresses of the record holders of Company Stock as of
a recent date and of those persons becoming record holders of Company Stock as
of a recent date and of those persons becoming record holders after such date,
together with copies of all security position listings and computer files and
all other information in the Company's possession or control regarding the
beneficial owners of Company Stock, and (b) furnish to Parent such other
information and assistance as Parent may reasonably request in communicating the
Tender Offer to the Company's shareholders. Subject to the requirements of law,
and except for such steps as are necessary to disseminate the Tender Offer and
any other documents necessary to consummate the Merger, Parent and Purchaser
shall hold in confidence the information contained in any such labels and lists,
will use such information only in connection with the Tender Offer and the
Merger and, if this Agreement is terminated, will, upon request, deliver to the
Company all copies of, and any
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extracts or summaries from, such information then in their possession.
1.3 THE MERGER. At the Effective Time, as defined below, Purchaser
(hereinafter, sometimes, the "Merged Corporation") shall be merged with and into
the Company (hereinafter, sometimes, the "Surviving Corporation"), pursuant to
the provisions of Section 901 or 905 of the New York Business Corporation Law
(the "New York Law") with the Company being the surviving corporation.
1.4 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of the
Surviving Corporation as in effect at the Effective Time shall continue in full
force and effect after the Effective Time as the Certificate of Incorporation of
the Surviving Corporation, except that such Certificate of Incorporation of the
Surviving Corporation shall be amended, at the election of Parent either upon
the filing of the New York Certificate of Merger, as defined below, or promptly
thereafter, to decrease the aggregate number of shares which the Surviving
Corporation shall have the authority to issue, by deleting Article 4 thereof in
its entirety and substituting in lieu thereof the following:
The total number of shares of stock which the Corporation is
authorized to issue is one thousand (1000) shares of Common Stock, with a par
value of $.01 per share, all of which shall be of the same class.
1.5 THE SHARES OF STOCK. By virtue of the Merger and without any action on
the part of the holder thereof, at the Effective Time pursuant to this
Agreement:
1.5.1 THE SHARES OF STOCK OF THE MERGED CORPORATION. Each share of
the common stock, no par value, of the Merged Corporation, which shall be issued
and outstanding at the Effective Time, shall be converted into and become one
fully paid and nonassessable share of common stock, $.01 par value per share, of
the Surviving Corporation.
1.5.2 THE SHARES OF STOCK OF THE COMPANY. Each share of the Company
Stock, (other than Dissenters' Shares, as defined below, and as provided below),
and all rights in respect thereof, shall, at the Effective Time, be changed and
converted into the right to receive four ($4.00) dollars in cash (the "Share
Price").
1.5.2.1 DISSENTING SHARES. Notwithstanding Section 1.5.2,
shares of Company Stock outstanding immediately prior to the Effective Time of
the Merger and held by a holder who has not voted in favor of the Merger or
consented thereto in writing and who has demanded appraisal for such shares of
Company
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Stock in accordance with Sections 910 and 623 of the New York Law shall not be
converted into a right to receive the Share Price, unless such holder fails to
perfect or withdraws or otherwise loses his right to appraisal. If after the
Effective Time of the Merger such holder fails to perfect or withdraws or loses
his right to appraisal, such shares of Company Stock shall be treated as if they
had been converted as of the Effective Time of the Merger into the right to
receive the Share Price payable in respect of such shares of Company Stock
pursuant to Section 1.5.2. The Company shall give Parent and Purchaser prompt
notice of any demands received by the Company for appraisal of shares of Company
Stock, and Parent and Purchaser shall have the right to participate in all
negotiations and proceedings with respect to such demands. The Company shall
not, except with the prior written consent of Parent and Purchaser or as
otherwise required by law, make any payment with respect to, or settle, or offer
to settle, any such demands.
1.5.3 PAYMENT FOR SHARES; SURRENDER OF CERTIFICATES.
1.5.3.1 PAYMENT FOR SHARES; PAYMENT FUND; NO Liability. In
order to make the cash payments provided in Section 1.5.3.2 hereof, Parent shall
cause Purchaser to deliver to Xxxxxx Trust Company of New York (the "Paying
Agent"), at or prior to the Effective Time, in trust for the benefit of the
holders of Company Stock, cash in an aggregate amount equal to the product of
(x) the Share Price multiplied by (y) the number of shares of Company Stock
outstanding immediately prior to the Effective Time (excluding shares held in
the Company's treasury, and shares taken up and paid for in the Tender Offer).
(Such cash is hereinafter referred to as the "Payment Fund".) Pending payment to
such holders, such funds shall be deposited (so long as such funds are available
for payment to such holders) by the Paying Agent in an interest bearing account,
and any earnings with respect to such funds shall be paid to the order of Parent
upon the termination of the Payment Fund. Any portion of the Payment Fund that
remains undistributed to the holders of Company Stock for nine months after the
Effective Time shall be delivered to Parent, and any holder of Company Stock who
has not theretofore received payment for its shares hereunder shall thereafter
look only to Parent for payment of its claims for payment. None of Parent,
Purchaser, the Company or the Paying Agent shall be liable to any person in
respect of any cash from the Payment Fund delivered to a public official
pursuant to any applicable abandoned property, escheat or similar law. If any
certificate representing Company Stock has not been surrendered prior to five
years after the Effective Time (or immediately prior to such earlier date on
which payment in respect of such certificate would otherwise escheat to or
become the property of any governmental entity, any cash in respect of such
certificate shall, to the extent permitted by applicable law, become the
property of the Surviving Corporation, free and clear of all
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claims or interest of any person previously entitled thereto. Parent shall be
entitle to deduct and withhold from the consideration otherwise payable
hereunder to any holder of Company Stock such amounts as may be required to be
deducted and withheld with respect to the making of such payment under the U.S.
Internal Revenue Code, or under any provision of foreign, state, provincial, or
local tax Law.
1.5.3.2 SURRENDER OF CERTIFICATES. As soon as practicable
before the Effective Time, the Company shall mail to each record holder of an
outstanding certificate or certificates which represents shares of Company Stock
a form letter of transmittal and instructions for use in effecting the surrender
of such certificate or certificates for payment therefor. As provided in the
Paying Agent Agreement, upon surrender of the stock certificate(s) and a duly
completed letter of transmittal, the Paying Agent shall, as provided in the
Paying Agent Agreement, promptly pay to the persons entitled thereto (in
accordance with the letter of transmittal), in cash, the amount to which such
persons are entitled. No interest will be paid or accrued on the cash payable
upon the surrender of the certificate or certificates. If payment is to be made
to a person other than the one in whose name the certificate surrendered is
registered, it shall be a condition of payment that the certificate so
surrendered shall be properly endorsed or otherwise be in proper form for
transfer and that the person requesting such payment shall pay any transfer or
other taxes required by reason of the payment to a person other than the
registered holder of the certificate surrendered or establish to the
satisfaction of the Surviving Corporation that such tax has been paid or is not
applicable.
1.6 ADDITIONAL TERMS AND CONDITIONS OF THE MERGER. Additional terms and
conditions of the Merger are as follows:
1.6.1 BYLAWS. The bylaws of Purchaser as they shall exist at the
Effective Time shall be and remain the bylaws of the Surviving Corporation after
the Effective Time until the bylaws may duly be altered, amended or repealed.
1.6.2 DIRECTORS AND OFFICERS. The directors and officers of
Purchaser immediately prior to the Effective Time shall be the directors and
officers, respectively, of the Surviving Corporation after the Effective Time
until their successors shall have been elected and qualified.
1.6.3 THE EFFECTIVE TIME. The Merger shall become effective upon the
acceptance for filing by the New York Secretary of State of the New York
Certificate of Merger (as defined below) at the Effective Time on the Closing
Date, as defined below.
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1.6.4 EFFECT OF THE MERGER. The separate corporate existence of the
Merged Corporation shall cease at the Effective Time. at the Effective Time, all
the property, rights, privileges, franchises, patents, trademarks, licenses,
registrations and other assets of every kind and description of each of the
Constituent Corporations shall be transferred to, vested in, and devolve upon,
the Surviving Corporation without further act or deed and all property, rights,
and every other interest of each of the Constituent Corporations shall be as
effectively the property of the Surviving Corporation as they were of the
Surviving Corporation and the Merged Corporation, respectively. The Merged
Corporation and the Company on behalf of its directors and officers hereby
agree, from time to time as and when requested by the Surviving Corporation or
by its successors or assigns, to execute and deliver or cause to be executed and
delivered all such deeds and instruments and to take or cause to be taken such
further or other action as the Surviving Corporation may deem necessary or
desirable in order to vest in and confirm to the Surviving Corporation title to
and possession of any property of the Merged Corporation acquired or to be
acquired by reason of or as a result of the Merger herein provided for, and
otherwise to carry out the intent and purposes hereof, and the proper officers
and directors of the Merged Corporation and the proper officers and directors of
the Surviving Corporation are fully authorized in the name of the Merged
Corporation or otherwise to take any and all such action.
1.7 THE CLOSING.
1.7.1 FILING OF CERTIFICATE OF MERGER; THE CLOSING. If this
Agreement is not terminated pursuant to Article VII hereof, as soon as
practicable after the Purchaser has taken up and paid for the shares of Company
Stock tendered in the Tender Offer, and all other conditions to the Merger set
forth herein shall have been satisfied or waived, Purchaser and the Company
shall cause a Certificate of Merger in accordance with the New York Law (the
"New York Certificate of Merger"), to be executed and filed with the Secretary
of State of the State of New York as provided in the New York Law. The Merger
shall be consummated and the closing of this Agreement (the "Closing") shall
occur immediately upon the foregoing filing of the New York Certificate of
Merger as aforesaid (the date and time of such filing and Closing being referred
to herein as the "Effective Time").
1.7.2 PLACE OF CLOSING. The Closing shall take place at the offices
of Xxxxxxx & Associates, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 upon the
filing of the New York Certificate of Merger at the Effective Time (sometimes,
the "Closing Date"), which shall be as soon as practicable after the later to
occur of the (i) consummation of the Tender Offer, and (ii) the satisfaction of
the conditions contained in Articles V and VI
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hereof, but in no event later than ten days subsequent to the later to occur of
the foregoing, or such other place or on such other date as the parties hereto
may mutually agree.
1.8 PAYMENT TO CERTAIN OPTION HOLDERS. Promptly following the acceptance
for payment of shares of Company Stock pursuant to the Tender Offer (the
"Acquisition Date"), each holder of an option (an "Employee Option") to purchase
shares of Company Stock granted by the Company pursuant to the 1991 Stock Option
Plan and the 1997 Stock Option Plan (the "Plans") which is outstanding as of the
date hereof and which has not been exercised prior to the Acquisition Date,
whether or not then exercisable or vested, shall be entitled to receive from
Purchaser, upon the disposition of or as consideration for such Employee Option,
a cash payment in an amount per share equal to the excess of the Share Price
over the Option Price (as defined in the Plans) of such Employee Option,
multiplied by the number of shares of Company Stock covered by such Employee
Option, subject to any required withholding taxes pursuant to the legislation of
the jurisdiction where the employment is exercised; provided, however, that to
the extent the Share Price is less than the Option Price of any Employee Option,
the holder of any such Employee Option shall not receive any payment therefor,
but rather all of the same shall be cancelled by the Parent without further
obligation on the part of the Parent, the Purchaser or the Company. Prior to the
Acquisition Date, the Company agrees to use its commercially reasonable best
efforts to attempt to obtain any consents from holders of Employee Options which
may be necessary or appropriate to effectuate the foregoing.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and Purchaser as follows:
2.1 APPROVAL OF AGREEMENT AND MERGER. This Agreement and the Tender Offer
and the Merger have been duly adopted, approved, certified, executed and
acknowledged by the Company upon the appropriate action of its board of
directors, and all corporate action has been properly taken with respect
thereto, except for the approval by the vote of the Company's shareholders which
will be sought as soon as practicable following the execution and delivery
hereof unless not required pursuant to Section 905 of the New York Law, in
accordance with the New York Law and the Certificate of Incorporation and Bylaws
of the Company. The approval by the board of directors of the Company as
evidenced by the execution and delivery of this Agreement by the Company
constitutes board approval of the Stock Purchase Agreement and
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Merger as a Business Combination as contemplated by Section 912 of the New York
Law.
2.2 AUTHORITY; NO RESTRICTIONS; BINDING OBLIGATION. The Company has full
legal capacity, right, power and authority to make, execute, deliver and perform
this Agreement and each of the other agreements, instruments and other documents
delivered pursuant hereto or otherwise in connection herewith. The execution and
delivery of this Agreement and each other instrument or other document delivered
herewith or pursuant hereto or otherwise contemplated herein, and performance of
the Company's obligations hereunder and thereunder and otherwise in connection
herewith and therewith, and the consummation of the transactions contemplated
hereby and thereby, do not require the consent or approval of (i) any
governmental or regulatory authority, or (ii) any other entity, except for the
acceptance for filing by the New York Secretary of State of the New York
Certificate of Merger, shareholder approval if required as contemplated in
Section 4.4.1, and as will already have been obtained at or prior to the
Effective Time. This Agreement and any other documents or instruments delivered
herewith or pursuant hereto or otherwise contemplated herein have been duly
executed and delivered by the Company and (assuming valid execution and delivery
by Parent and Purchaser), and shareholder approval if required as contemplated
in Section 4.4.1, and acceptance for filing by the New York Secretary of State
of the New York Certificate of Merger, each constitutes the legal, valid and
binding obligation of the Company enforceable in accordance with its terms.
2.3 NO MATERIAL INTEREST. The Company does not have any direct or indirect
equity, partnership or other interest in any creditor, competitor, supplier,
lessor, customer or lessee of the Company except for the Company's ownership of
all of the issued and outstanding capital stock of IFC Disposables, Inc., a
Tennessee corporation.
2.4 THE COMPANY'S AND EACH SUBSIDIARY'S EXISTENCE AND GOOD STANDING;
AUTHORITY. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of New York, and each subsidiary of
the Company identified in Schedule 2.4 of that certain Disclosure Letter dated
the date hereof and executed and delivered by the Company simultaneously
herewith (the "Disclosure Letter") (each, a "Subsidiary" and, together, the
"Subsidiaries"), is a corporation duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of incorporation. The
Company and each Subsidiary has full power and authority to own, lease and
operate its assets and to carry on its business as now being conducted. The
Company and each Subsidiary is qualified to do business in any jurisdiction
where the character or location of the properties owned or leased by it, or the
nature of the
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business conducted by it, requires such qualification except where the failure
to be so qualified would not result in a Material Adverse Effect (as defined in
Section 5.2). Correct and complete copies of the certificate of incorporation
and bylaws of the Company and each Subsidiary, certified by the Secretary of the
Company and each Subsidiary, as the case may be, are annexed to the Disclosure
Letter as Schedule 2.4, and there have been no amendments thereof not reflected
in such copies. The minute books of the Company and of each Subsidiary as the
same exists as of the date hereof have been made available to Parent and
Purchaser for review. Neither the Company nor any Subsidiary is in material
default in the performance, observance or fulfillment of any of the terms or
conditions of its certificate of incorporation or bylaws.
2.5 CAPITAL STOCK. The Company has an authorized capitalization consisting
of such shares of capital stock, with such par value, of which such number are
issued and outstanding, as set forth in Schedule 2.5 of the Disclosure Letter.
No shares are held in the Company's nor any Subsidiary's treasury, except as
otherwise may be set forth in such Schedule 2.5. All such outstanding shares as
are set forth in Schedule 2.5 have been duly authorized and validly issued and
are fully paid and nonassessable. None of such shares were issued in violation
of the preemptive rights of any person. Except as set forth in Schedule 2.5,
there are no options, warrants, rights, calls, subscriptions, commitments,
conversion rights, rights of exchange, plans or other agreements of any
character providing for the purchase, issuance or sale by the Company or any
Subsidiary of any of their respective capital stock. There are no shares of
capital stock of the Company or any Subsidiary reserved for issuance for any
purpose, except as otherwise may be set forth in such Schedule 2.5.
2.6 SUBSIDIARIES AND INVESTMENTS. Except to the extent set forth in
Schedule 2.6 of the Disclosure Letter, neither the Company nor any of the
Subsidiaries owns, nor has it owned, nor does it have, nor has it had, any
commitment to purchase, any capital stock or other equity or ownership or
proprietary interest in any person (as defined below), nor does the Company nor
any Subsidiary have any direct or indirect subsidiary.
2.7 SEC REPORTS; FINANCIAL STATEMENTS.
2.7.1 SEC REPORTS. The Company has prior to the date of this
Agreement filed with the Securities and Exchange Commission (the "SEC") pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
provided to Parent and Purchaser a true and complete copy of an Annual Report on
Form 10-K for the fiscal year ended December 31, 1999 (the "10-K Report") and
Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2000 (the
"10-Q Report"). The 10-K Report and the
-12-
10-Q Report did not contain any untrue statement by the Company of a material
fact or omit to state a material fact required to be stated by the Company
therein or necessary in order to make the statements by the Company therein, in
light of the circumstances under which they were made, not misleading. The
Company has not filed since December 31, 1999 any Current Report on Form 8-K
with the SEC (nor is it currently obligated to file such a Current Report within
the next fifteen days, other than to report the execution and delivery of this
Agreement).
2.7.2 FINANCIAL STATEMENTS. The Company has delivered to Parent and
Purchaser (i) the audited consolidated financial statements of the Company and
its affiliates that formed the consolidated group of the Company for each of the
years in the two year period ended December 31, 1999 (the "Balance Sheet Date")
(such audited financial statements for the year ended the Balance Sheet Date are
hereinafter referred to as the "1999 Financial Statements"), and (ii) the
unaudited consolidated balance sheet of the Company and its affiliates that
formed the consolidated group of the Company as of June 30, 2000 (the "Interim
Balance Sheet") and the related unaudited consolidated statements of operations
and cash flows for the six months then ended (the "Unaudited Interim Financial
Statements")(which Unaudited Interim Financial Statements were delivered as part
of the 10-Q Report). Except as disclosed on Schedule 2.7.2 of the Disclosure
Letter, all such financial statements referred to in the immediately preceding
sentence, including the footnotes thereto, have been prepared from the books and
records of the Company and each of the respective other entities to which they
pertain as of the respective dates of such financial statements in accordance
with U.S. Generally Accepted Accounting Principles consistently applied, except
as may otherwise be noted therein, and with respect to the Unaudited Interim
Financial Statements, subject to normal year-end adjustments and the absence of
footnotes. The balance sheets fairly present in all material respects the
financial condition of the Company and each of the respective other entities to
which they pertain as at the dates thereof, and the related consolidated
statements of operations and cash flows fairly present in all material respects
the results of the operations and changes in financial position of the Company
and each of the respective other entities to which they pertain for the periods
indicated.
2.8 NO COMPETITION RESTRICTIONS. Except as set forth on Schedule 2.8 of
the Disclosure Letter, neither the Company nor any Subsidiary is a party to, or
otherwise subject to, any charter, bylaw, mortgage, lien, lease, license,
permit, agreement, contract, instrument, law, regulation, order, judgment or
decree, or any other restriction of any kind or character, which would in any
manner restrict the ability of the Company or any Subsidiary to compete with any
person in any geographic area.
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2.9 NO LITIGATION. As of the date hereof, and except as may otherwise be
set forth in Schedule 2.9 of the Disclosure Letter, there is no action, suit or
proceeding at law or in equity by any person, or any arbitration or any
administrative or other proceeding, or any investigation by, any governmental or
other instrumentality or agency, pending or, to the knowledge of the Company or
any Subsidiary, threatened with respect to the Company or any Subsidiary, any of
the officers or directors thereof (in their capacities as such), any of their
respective properties or rights, or any of the shares of the Company Stock, or
the capital stock of any of the Subsidiaries, which could have a materially
adverse effect on any of them. Neither the Company nor any Subsidiary is subject
to any judgment, order or decree entered in any lawsuit, proceeding or
arbitration.
2.10 ABSENCE OF CERTAIN CHANGES. Since the Balance Sheet Date, neither the
Company nor any Subsidiary has:
(a) declared, set aside, or paid any dividend or made any
distribution on any shares of its capital stock, or redeemed, purchased or
otherwise acquired any shares of its capital stock or any option, warrant
or other right to purchase or acquire any such shares, except for the
required redemptions of and dividends on the various classes of Preferred
Stock of Wood Xxxxx Inc., in accordance with the terms thereof; or
(b) made or suffered any change in or amendment to its
certificate of incorporation or bylaws.
2.11 NO BROKER'S OR FINDER'S FEES. No agent, broker, person or firm acting
or purporting to act on behalf of the Company or any shareholder or any
Subsidiary is, or will be, entitled to any commission or broker's or finder's
fee from Parent or Purchaser respecting any of the transactions contemplated
herein.
2.12 FAIRNESS OPINION OF FINANCIAL ADVISOR. The Company has received the
opinion of Xxxxxxxx Xxxxx, dated the date of this Agreement, to the effect that,
as of such date, the consideration to be received in the Tender Offer and the
Merger by the holders of Company Stock is fair to such holders from a financial
point of view, and a copy of the signed opinion has been provided to Parent.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Parent and Purchaser, jointly and severally, represent and warrant to the
Company as follows:
3.1 APPROVAL OF AGREEMENT AND MERGER. This Agreement and the Merger have
been duly adopted, approved, certified, executed and acknowledged by Parent and
Purchaser and all corporate action has been properly taken with respect thereto,
in accordance with the New York Law and the Certificate of Incorporation and
Bylaws of Purchaser.
3.2 EXISTENCE AND GOOD STANDING; AUTHORITY; BINDING OBLIGATION. Each of
Parent and Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of Canada and the State of New York, respectively.
Each of Parent and Purchaser has full legal and corporate power and authority to
make, execute, deliver and perform this Agreement, including the consummation of
the Merger, and each of the other agreements, instruments and other documents
delivered pursuant hereto or otherwise in connection herewith, and this
Agreement and each such other document has been duly authorized and approved by
all required corporate action of Parent and Purchaser This Agreement and any
other documents or instruments delivered herewith or pursuant hereto or
otherwise contemplated herein have been duly authorized, executed and delivered
by Parent and Purchaser and (assuming valid execution and delivery by the
Company), and acceptance for filing by the New York Secretary of State of the
New York Certificate of Merger, each constitutes the legal, valid and binding
obligation of Parent and Purchaser enforceable in accordance with its terms.
Each of Parent and Purchaser has provided to the Company a copy of a resolution
adopted by each of their respective Boards of Directors and Parent as sole
shareholder of Purchaser duly certified by an appropriate corporate officer
authorizing it to execute, deliver and perform its obligations under this
Agreement, including the consummation of the Merger, and each other instrument
or other document delivered herewith or otherwise pursuant hereto or otherwise
contemplated herein. The execution and delivery hereof and of each such other
document and performance of each of Parent's and Purchaser's obligations
hereunder and thereunder and otherwise in connection herewith and therewith, and
the consummation of the transactions contemplated hereby and thereby, do not
require the consent or approval of (i) any governmental or regulatory authority,
or (ii) any other entity, except for the acceptance for filing by the New York
Secretary of State of the New York Certificate of Merger, and as will already
have been obtained at or prior to the Effective Time.
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3.3 NO RESTRICTIONS. Neither Parent nor Purchaser is subject to any
charter, bylaw, mortgage, lien, lease, agreement, instrument, order, law, rule,
regulation, judgment or decree, or any other restriction of any kind or
character, which would prevent consummation of the transactions contemplated in
this Agreement, including the Merger, or any other instrument or other document
delivered herewith or pursuant hereto or otherwise contemplated herein.
3.4 NO BROKER'S OR FINDER'S FEES. No agent, broker, person or firm acting
or purporting to act on behalf of Parent or Purchaser is, or will be, entitled
to any commission or broker's or finder's fee from the Company or any Subsidiary
respecting any of the transactions contemplated herein
ARTICLE IV
THE COMPANY'S FURTHER COVENANTS AND AGREEMENT
4.1 CONDUCT OF BUSINESS OF THE COMPANY AND THE SUBSIDIARIES. During the
period from the date of this Agreement to the Effective Time, the Company and
the Subsidiaries shall, and the Company shall cause the Subsidiaries to, (a)
conduct their business and operations only according to their ordinary and usual
course of business as presently and formerly conducted, and (b) use commercially
reasonable efforts to preserve intact the Company's and the Subsidiaries'
business organization, keep available the services of their officers and
employees and maintain satisfactory relationships with their licensors,
suppliers, distributors, customers, subcontractors, independent contractors,
partners or other co-owners in any venture, and others having business
relationships with them. Pending the Effective Time and except as may be first
approved in writing by Parent and Purchaser or as is otherwise permitted or
required by this Agreement, neither the Company nor any Subsidiary will, and the
Company will not cause or allow any Subsidiary to, in each case subject to
commercially reasonable efforts, take any action which if it had been taken
after the Balance Sheet Date and prior to the date hereof would have resulted in
a misrepresentation or breach of warranty under Article II of this Agreement.
4.2 COORDINATION. During the period from the date of this Agreement to the
Effective Time, the Company and the Subsidiaries shall, and the Company shall
cause the Subsidiaries to, confer on a regular and frequent basis with one or
more designated representatives of Parent and Purchaser to report material
operational matters and to report the general status of on-going operations. The
Company and the Subsidiaries shall, and the Company shall cause the Subsidiaries
to, notify Parent and Purchaser of any event which if it had occurred after the
Balance
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Sheet Date and prior to the date hereof would have resulted in a
misrepresentation or breach of warranty under Article II of this Agreement, and
of any unexpected event or other change in the normal course of their business
or in the operation of their properties and of any governmental complaints,
investigations or hearings, or communications indicating that the same may be
contemplated, litigation, claims, arbitration, adjudicatory proceedings, and to
keep Parent and Purchaser reasonably fully informed of such events and permit
its representatives reasonably prompt access to all materials prepared in
connection therewith, provided that in no event shall Parent or Purchaser
interfere with the normal business operations of the Company. The scope of the
parties' obligations under this Section 4.2 shall be limited to the minimum
extent required to conform to applicable law.
4.3 DUE DILIGENCE INVESTIGATION OF THE COMPANY AND THE Subsidiaries. The
Company shall make available for inspection and copying by Parent and Purchaser
and their representatives originals or true, complete and correct copies of all
documents referred to in this Agreement including all Schedules and Exhibits
annexed hereto. The Company and the Subsidiaries shall, and the Company shall
cause the Subsidiaries to, permit Parent and Purchaser and their representatives
to have, upon reasonable notice, reasonably full access to the premises and to
all the books and records of the Company and the Subsidiaries and to cause their
officers or other senior personnel to furnish Parent and Purchaser with such
financial and operating data and other information with respect to their
business and properties as Parent and Purchaser shall from time to time
reasonably request in connection with their due diligence investigation of the
Company and the Subsidiaries.
4.4 SHAREHOLDER APPROVAL IF REQUIRED; SEC FILINGS.
4.4.1 SHAREHOLDER APPROVAL IF REQUIRED. The provisions of this
Section 4.4.1 shall apply only if approval of this Agreement and Merger by the
shareholders of the Company is required by the New York Law.
(a) Subject to the terms and conditions contained herein, the
Company shall submit this Agreement and the Merger for approval to the
holders of Company Stock at a meeting to be duly held for this purpose by
the Company (the "Company Meeting"). The Company shall take all action in
accordance with the federal securities laws, the New York Law and its
certificate of incorporation and bylaws necessary to duly convene the
Company Meeting. The Company shall use its best efforts to hold the
Company Meeting as soon as practicable after the date thereof. Subject to
the fiduciary duties of the board of directors of the Company under
applicable law after the receipt of written advice of counsel in
connection with an Alternative Proposal as
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provided in Section 4.5 hereof, the board of directors of the Company
shall recommend that the holders of Company Stock approve such matters,
which recommendation shall be contained in a proxy statement and other
proxy solicitation materials of the Company (the "Proxy Statement"), and
use their commercially reasonable efforts to take all lawful action to
solicit such approval by holders of Company Stock.
(b) The Company agrees to prepare and file the Proxy Statement
with the SEC as promptly as practicable, and to cause the Proxy Statement
to be mailed as promptly as practicable to the holders of Company Stock.
Parent and the Company each agrees to furnish to the other all information
concerning itself and its subsidiaries, officers, directors, and
shareholders as may be reasonably requested by the other in connection
with the foregoing.
(c) The Company agrees, as to itself and the Subsidiaries,
that none of the information supplied or to be supplied by it for
inclusion or incorporation by reference in the Proxy Statement will, at
the time the Proxy Statement and each amendment or supplement thereto, if
any, is filed with the SEC, and at the time of the Company Meeting,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which such
statements are made, not misleading. The Company further agrees that if it
shall become aware prior to the time of the Company Meeting of any
information that would cause any of the statements in the Proxy Statement
to be false or misleading with respect to any material fact, or of the
omission to state any material fact necessary in order to make the
statements made therein not false or misleading, it will promptly inform
Parent thereof and take the necessary steps to correct the Proxy
Statement.
4.4.2 SEC FILINGS. The Company shall furnish to Parent copies of any
Company SEC reports which it files with the SEC on or after the date hereof, and
the Company covenants and represents and warrants that as of the respective
dates hereof, such reports will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading. Any unaudited consolidated interim financial
statements included in such reports (including any related notes and schedules)
will fairly present, in all material respects, the financial position of the
Company and the Subsidiaries as of the dates thereof and the results of
operations and changes in financial position or other information included
therein for the periods or as of the dates then ended, in each case in
accordance with past practice
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and U.S. Generally Accepted Accounting Principles consistently applied during
the periods involved (except as otherwise disclosed in the notes thereto and
subject, where appropriate, to normal year-end adjustments).
4.5 NO SHOP COVENANT. In consideration of the substantial expenditure of
time, effort and expense undertaken and to be undertaken by Parent and Purchaser
in connection with the Tender Offer and the Merger, and as a material condition
to the execution and delivery hereof by Parent and Purchaser, the Company and
the Subsidiaries covenant that, until such time as this Agreement may be
terminated as provided herein, none of them shall, nor shall any of them permit
any officer, director or employee of the Company, any Subsidiary, or any
affiliate thereof to, or authorize any investment banker, attorney, accountant
or other representative retained by the Company, any Subsidiary, or any
affiliate thereof to, directly or indirectly, solicit or encourage, or furnish
information with respect to the Company or any Subsidiary to, or otherwise have
any communication with, any person in connection with the possible sale of the
Company or any Subsidiary, or any affiliate or asset thereof, or any merger or
similar transaction with respect thereto (an "Alternative Proposal"); provided,
however, that if and so long as the Company and each Subsidiary has complied in
all material respects with its obligations under this Section 4.5, if the
Company receives an unsolicited Alternative Proposal then (1) the Company may
discuss such Alternative Proposal with the party presenting such Alternative
Proposal, participate in negotiations with respect to such Alternative Proposal
with the party making such proposal and its representatives, and provide
information with respect to the Company to such party and its representatives,
if and to the extent, but only to the extent, that the members of the board of
directors of the Company reasonably believe, after the receipt of written advice
of Winthrop, Stimson, Xxxxxx & Xxxxxxx, the Company's legal counsel, that the
directors of the Company are under a fiduciary obligation to so cooperate with
such party, (2) the Company shall promptly notify Parent and Purchaser orally
and in writing of the receipt of any such Alternative Proposal, and (3) the
Company may engage an investment banking firm or other financial advisor to
assist it in connection with such Alternative Proposal discussions and
negotiations.
ARTICLE V
CONDITIONS TO THE OBLIGATIONS OF PARENT AND PURCHASER
The obligations of Parent and Purchaser to effect the Merger are subject
to the following conditions:
5.1 NO INJUNCTION OR OTHER LEGAL PROHIBITION. There shall
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not be any injunction, or action taken, or any statute, rule, regulation or
order enacted, promulgated or issued or deemed applicable to the Merger by any
United States or Canadian federal or state or provincial government or
governmental agency or instrumentality or court, which would make the
consummation of the Merger illegal.
5.2 APPROVALS. All governmental and other consents and approvals
necessary, including approval by the Company's shareholders if required by the
New York Law, to permit the consummation of the Merger shall have been received,
or applicable waiting periods shall have run.
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF THE COMPANY
The obligations of the Company to effect the Merger are subject to the
following conditions:
6.1 NO INJUNCTION OR OTHER LEGAL PROHIBITION. There shall not be any
injunction, or action taken, or any statute, rule, regulation or order enacted,
promulgated or issued or deemed applicable to the Merger by any United States or
Canadian federal or state or provincial government or governmental agency or
instrumentality or court, which would make the consummation of the Merger
illegal.
6.2 APPROVALS. All governmental and other consents and approvals
necessary, including approval by the Company's shareholders if required by the
New York Law, to permit the consummation of the Merger shall have been received,
or applicable waiting periods shall have run.
ARTICLE VII
TERMINATION
7.1 RIGHT TO TERMINATION. Notwithstanding anything to the contrary
contained herein, this Agreement may be terminated at any time prior to the
Effective Time by:
(a) written consent of all of the parties;
(b) by Parent or by the Company, by written notice to the
other, if the Merger shall not have been consummated on or before March 31,
2001(or such later date as Parent and the Company may agree in writing);
provided, that the
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right to terminate this Agreement under this clause (b) shall not be available
to any party whose failure to fulfill any obligations under this Agreement has
been the cause of, or resulted in, the failure of the Effective Time to occur on
or before this date; provided further, that the passage of such period shall be
tolled (and the date for such consummation shall be correspondingly extended)
for any part thereof (but not exceeding 60 days in the aggregate) during which
any party shall be subject to a nonfinal order, decree, ruling or action
restraining, enjoining or otherwise prohibiting consummation of the Merger and
the other transactions contemplated by this Agreement or the calling or holding
of the Company Meeting (as defined in Section 4.4 above;
(c) by Parent, by written notice to the Company, if at any
time prior to the Effective Time the board of directors of the Company (i) shall
withdraw or modify in any manner adverse to Parent its approval or
recommendation of this Agreement, the Tender Offer, the Merger or the other
transactions contemplated by this Agreement, (ii) shall approve any Alternative
Proposal, or (iii) shall resolve to take any of the actions specified in
sub-clause (i) or (ii) of this clause (c);
(d) by Parent, by written notice to the Company if (i) Parent
shall terminate the Tender Offer prior to accepting for payment shares of
Company Stock tendered therein as provided herein in one or more of the
circumstances set forth in Exhibit 1.1 hereto, or (ii) any of the conditions
precedent to effecting the Merger set forth in Article V has not been met by
March 31, 2001, and, in each case, Parent is not then in default of its material
obligations hereunder;
(e) by the Company, by written notice to Parent if any of the
conditions precedent to effecting the Merger set forth in Article VI has not
been met by March 31, 2001, and in each case the Company is not then in default
of its material obligations hereunder;
(f) by the Company, by written notice to Parent, if the board
of directors of the Company, in the good faith exercise of its business
judgment, after the receipt of written advice of Winthrop, Stimson, Xxxxxx &
Xxxxxxx, the Company's legal counsel, has determined that the board of directors
of the Company's continuing to recommend to the shareholders of the Company the
approval of this Agreement and the Tender Offer or the Merger would be a breach
of the fiduciary duty of the board of directors of the Company under New York
law;
(g) by Parent or the Company, by written notice to the other,
if (i) upon a vote at the Company Meeting (as defined in Section 4.4 above), if
any shall be required by the New York Law, shareholder approval shall not have
been obtained
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or (ii) the Company Meeting, if required by the New York Law, shall not have
been held by March 31, 2001;
(h) by Parent or the Company, by written notice to the other,
if any court of competent jurisdiction or other federal, state, provincial,
local or foreign government or governmental department, commission,
instrumentality, board, bureau, agency or authority shall have issued an order,
decree or ruling or taken any other action permanently enjoining, restraining or
otherwise prohibiting the Tender Offer, the Merger or the consummation of the
other material transactions contemplated by this Agreement and such order,
decree, ruling or other action shall have become final and non-appealable; or
(i) by Parent if there shall have been a material breach of
Section 4.5.
7.2 EFFECTS OF TERMINATION.
(a) In the case of any termination of this Agreement, the
provisions of Section 8.14 (respecting applicable law, jurisdiction, and
enforcement shall) remain in full force and effect.
(b) Upon termination of this Agreement as provided in Section
7.1, except as stated in subsection (a) above, this Agreement shall forthwith
become void and there shall be no liability or obligation on the part of any
party hereto or their respective shareholders, directors, officers, employees,
agents or other representatives, except as provided in Section 7.2(d).
(c) Upon termination of this Agreement, all confidential
information received by Parent from or on behalf of the Company shall be treated
in accordance with the confidentiality agreement between Cascades Inc., the
corporate parent of Parent, and the Company, dated June 28, 2000, which shall
remain in full force and effect in accordance with its terms notwithstanding the
termination of this Agreement.
(d) Nothing contained in this Section 7.2 shall release the
Company or Parent from liability for any breach of this Agreement prior to its
termination.
7.3 BREAKUP FEE. In the event this Agreement is terminated by Parent or
the Company, as applicable, pursuant to Section 7.1 (c) or (i) hereof, and the
Purchaser is not then in default of its material obligations hereunder, then the
Company shall promptly pay to Parent in immediately available funds a breakup
fee equal to $750,000. The parties acknowledge that the breakup fee payable
pursuant to this Section 7.3 constitutes the sole and exclusive remedy of Parent
for such termination, and, as such,
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represents Parent's liquidated damages as compensation for such termination of
this Agreement.
ARTICLE VIII
MISCELLANEOUS
8.1 EXPENSES. Parent and Purchaser shall pay all expenses incurred by them
relating to the transactions contemplated in this Agreement. The Company shall
pay all expenses incurred by the Company relating to the transactions
contemplated in this Agreement.
8.2 "PERSON" DEFINED. When used herein, "person" shall mean and include an
individual, a partnership, a joint venture, a corporation, a trust, an
unincorporated organization, a government or other department or agency thereof
or any other entity.
8.3 CAPTIONS; AGREEMENT; CONSTRUCTION. The Article and Section captions
used herein are for reference purposes only, and shall not in any way affect the
meaning or interpretation of this Agreement. The term "Agreement" as used herein
means this document and all Exhibits and Schedules annexed hereto. All words
used in this Agreement will be construed to be of such gender or number as the
circumstances require. Unless otherwise expressly provided, the word "including"
means "including without limitation" and does not limit the preceding words or
terms. The term "business day" as used herein means a day when banks are not
required or authorized to be closed in Quebec, Ontario, or New York.
8.4 NOTICES. Any notice or other communication required or permitted
hereunder shall be given in writing and shall be given by personal delivery, by
registered mail or by electronic means of communication addressed as follows:
If to Parent or Purchaser:
Xxxxxxx Papers Ltd.
00, Xxxxx-Xxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxx
X0X 0X0
Attention: President
Telefax: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx & Associates
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00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telefax: (000) 000-0000
If to the Company or any Subsidiary:
Xxxxx Corporation
c/o Wood Xxxxx Inc.
0000 00x Xxxxxx
Xxxxxxx (Xxxxxx) X0X 0X0
Attention: Xxxxxx XxxXxxxxx,
Chairman and CEO
Telefax: (000) 000-0000
With a copy in each case to:
Winthrop, Stimson, Putnam, & Xxxxxxx
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Telefax: (000) 000-0000
If to the Paying Agent:
Xxxxxx Trust Company of New York
Wall Street Plaza
00 Xxxx Xxxxxx- 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx,
Vice President
Telefax: (000) 000-0000
or to such other address, individual or electronic communication number as may
be designated by notice given by any party to the others. Any demand, notice or
other communication given by personal delivery shall be conclusively deemed to
have been given on the day of actual delivery thereof and, if given by
registered airmail, on the tenth business day following the deposit thereof in
the mail and, if given by electronic communication, on the day of transmittal
thereof if given between 9:00 AM and 5:00 PM on a business day of the recipient,
and on the business day during which such normal business hours next occur if
not given during such hours on any day.
8.5 PARTIES IN INTEREST. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and permitted assigns. Nothing in this
Agreement shall be construed
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as giving any person, other than the parties hereto and their respective
successors and permitted assigns, any right, remedy or claim under or in respect
to this Agreement or any provision hereof.
8.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one instrument.
8.7 ENTIRE AGREEMENT. This Agreement, including the Exhibits and Schedules
and other documents referred to herein (which form a part hereof) contains the
entire understanding of the parties hereto with respect to the subject matter
contained herein and therein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter, and all
such prior agreements and understandings are merged herein and shall not survive
the execution and delivery hereof.
8.8 AMENDMENTS; WAIVER. No modification of or amendment to this Agreement
shall be valid or binding unless set forth in writing and duly executed by the
parties hereto and no waiver of any breach of any term or provision including,
without limitation, any representation or warranty, of this Agreement shall be
effective or binding unless made in writing and duly executed by the waiving
party and, unless otherwise provided, shall be limited to the specific breach
waived.
8.9 ENFORCEABILITY. If any provision of this Agreement (including the
Exhibits and Schedules hereto and documents delivered in performance of this
Agreement) shall be found by any court of competent jurisdiction in a final
order to be invalid or unenforceable, the parties hereby waive such provision to
the extent that it was found to be invalid or unenforceable. Such provision
shall, to the extent allowable by law, be modified by such court so that it
becomes enforceable and, as modified, shall be enforced as any other provision
hereof, all the other provisions continuing in full force and effect. The
provisions of this Section 8.9 shall not be applicable to the extent that they
would result in a material alteration of the agreement otherwise provided
herein.
8.10 NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES, AND COVENANTS. The
respective representations, warranties, agreements and covenants of Parent,
Purchaser and the Company contained in this Agreement shall not survive the
consummation of the Tender Offer and shall be of no force or effect whatsoever
upon the consummation thereof.
8.11 NO ASSIGNMENT. None of the parties hereto may assign or otherwise
transfer any of its rights hereunder, or delegate any of its obligations
hereunder, to any third party without the
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prior written consent of the other parties, provided, however, that Parent and
Purchaser may assign their rights, but not their obligations, hereunder to any
person controlled by Parent and Purchaser if Parent and Purchaser remain fully
bound by their obligations.
8.12 CURRENCY. All references to dollars or $ in this Agreement are to
United States dollars.
8.13 PUBLIC ANNOUNCEMENTS. Each of the parties agrees that it shall not,
nor shall any of their respective affiliates, issue or cause the publication of
any press release or other public announcement with respect to the Tender Offer,
the Merger, this Agreement or the transactions contemplated hereby without the
prior approval of the other party, except such disclosure as may be required by
law or by any listing agreement with a national securities exchange; provided,
if such disclosure is required by law or any such listing agreement, such
disclosure shall not be made without prior consultation with the other parties.
8.14 APPLICABLE LAW; JURISDICTION; ENFORCEMENT OF AGREEMENT. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York without regard to the law of the conflicts of law of such
State. The parties consent to the exclusive jurisdiction of the United States
District Court for the Southern District of New York in connection with any
civil action concerning any controversy, dispute or claim arising out of or
relating to this Agreement, or any other agreement contemplated by, or otherwise
with respect to, this Agreement or the breach hereof, unless such court would
not have subject matter jurisdiction thereof, in which event the parties consent
to the jurisdiction of the state courts of the State of New York located in New
York County. Each party hereto irrevocably waives any claim that any civil
action brought in any such court has been brought in an inconvenient forum. The
parties hereto agree that money damages or other remedy at law would not be a
sufficient or adequate remedy for any breach or violation of, or a default
under, this Agreement by them, and that, in addition to all other remedies
available to them, each of them shall be entitled to the fullest extent
permitted by law to an injunction restraining such breach, violation, or default
or threatened breach, violation or default and to any other equitable relief,
including, without limitation, specific performance, without bond or other
security being required.
8.15 FURTHER ASSURANCES. Each of the parties shall deliver or cause to be
delivered at the Effective Time, and at such other times and places as shall be
reasonably necessary or desirable, such additional instruments and other
documents, and shall take such other action, as the other parties may reasonably
request for the purpose of carrying out the transactions contemplated in this
Agreement.
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IN WITNESS WHEREOF, the parties to this Agreement and Plan of
Merger, pursuant to the approval and authority duly given by resolutions adopted
by their respective boards of directors, have caused these presents to be
executed by the officers and attested by the secretary of each of them as set
forth below as the respective act, deed and agreement of each of such parties,
on this 30th day of August, 2000.
XXXXXXX PAPERS LTD.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
XXXXXXX ACQUISITION CORP.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
XXXXX CORPORATION
By: /s/ Xxxxxx XxxXxxxxx
------------------------
Name: Xxxxxx XxxXxxxxx
Title: Chairman and CEO
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EXHIBIT 1.1
CONDITIONS OF THE TENDER OFFER
Notwithstanding any other provision of the Tender Offer or the Merger
or the Agreement, neither Parent nor Purchaser (for the purposes of this Exhibit
1.1, collectively, "Parent") will be required to accept for payment or, subject
to any applicable rules and regulations of the Securities and Exchange
Commission, including Rule 14e-1(c) (relating to Parent's obligation to pay for
or return tendered shares promptly after the termination or withdrawal of the
Tender Offer), to pay for, any Company Stock not theretofore accepted for
payment or paid for, and may terminate or amend the Tender Offer as provided
herein, if at the expiration date of the Tender Offer, in the case of paragraph
(a) below, or at any time on or after the date of the Agreement, and before the
acceptance of such Company Stock for payment or the payment therefor (the
"Tender Offer Closing"), in the case of paragraphs (b) through (h) below, any of
the following conditions exist:
(a) INJUNCTION. An injunction which prevents the acceptance for payment
of, or payment for, any Company stock shall have been issued and shall remain
in effect.
(b) ILLEGALITY. There shall be any action taken, or any statute, rule,
regulation or order enacted, promulgated or issued or deemed applicable to the
Tender Offer or the Merger by any United States or Canadian federal or state or
provincial government or governmental agency or instrumentality or court, which
would make the acceptance for payment of, or payment for, any Company Stock, or
consummation of the Merger, illegal.
(c) MATERIAL ADVERSE CHANGE. Between the Balance Sheet Date and the
date of the Tender Offer Closing (the "Tender Offer Closing Date"), there shall
have been a material adverse change in the business or financial condition of
the Company and its Subsidiaries taken as a whole (a "Material Adverse Effect"),
or the Company shall have failed to deliver to Parent a certificate, dated the
Tender Offer Closing Date, certifying the absence of any such Material Adverse
Effect.
(d) FALSITY OF REPRESENTATIONS AND WARRANTIES. Any one or more of the
representations and warranties of the Company contained in this Agreement,
including all
Exhibit 1.1
Page 2
Schedules and Exhibits delivered pursuant hereto, shall not be true and correct
in all material respects on and as of any Tender Offer Closing Date with the
same force and effect as though such representations and warranties had been
made on and as of such Date, or, with respect to any representation or warranty
contained in Sections 2.3, 2.4, 2.6, 2.7, 2.8 or 2.9, if not true and correct to
such extent the particular facts and circumstances which shall render such
representations or warranties no longer to be true and correct to such extent
are not such as have resulted in a Material Adverse Effect, or the Company shall
have failed to deliver to Parent a certificate, dated the Tender Offer Closing
Date, certifying the absence of any such falsity.
(e) NON-PERFORMANCE OF AGREEMENTS. Any one or more of the covenants
and agreements of the Company to be performed on or before the Tender Offer
Closing Date pursuant to the terms hereof shall not have been duly performed in
all material respects, except where the failure of such performance shall not
result in a Material Adverse Effect, or the Company shall have failed to deliver
to Parent a certificate, dated the Tender Offer Closing Date, certifying the
absence of any non-performance.
(f) APPROVALS. Any one or more of the governmental or other consents
and approvals necessary to permit the consummation of the transactions
contemplated by this Agreement shall not have been received, or applicable
waiting periods shall not have run, or the Company shall have failed to deliver
to Parent a certificate, dated the Tender Offer Closing Date, certifying the
absence of such non-approval or consent.
(g) PROCEEDINGS. Any one or more of the proceedings to be taken in
connection with the transactions contemplated in this Agreement and all
documents incident thereto shall not be reasonably satisfactory in form and
substance to Parent and its counsel, or Parent shall not have received copies of
all such documents and other evidence as Parent or its counsel may reasonably
request in order to establish the consummation of such transactions and the
taking of all proceedings in connection therewith.
(h) TERMINATION OF AGREEMENT. The Agreement shall have been terminated
in accordance with its terms or the
Exhibit 1.1
Page 3
Tender Offer shall have been terminated with the consent of the Company.
The foregoing conditions are for the sole benefit of Parent and may be asserted
by Parent regardless of the circumstances giving rise to such condition or may
be waived by Parent in whole or in part at any time and from time to time in its
sole discretion. The failure by Parent at any time to exercise any of the
foregoing rights shall not be deemed a waiver of any such right, the waiver of
any such right with respect to particular facts and other circumstances shall
not be deemed a waiver with respect to any other facts and circumstances, and
each such right shall be deemed an ongoing right that may be asserted at any
time and from time to time.
* * *
