[CONFORMED]
AGREEMENT AND PLAN OF MERGER
dated as of
June 9, 1999
among
XXXXXXXXX CORPORATION,
MEGGITT PLC
and
MEGGITT ACQUISITION INC.
TABLE OF CONTENTS
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ARTICLE 1
THE OFFER
SECTION 1.01. The Offer........................................................................1
SECTION 1.02. Company Action...................................................................2
SECTION 1.03. Directors........................................................................4
ARTICLE 2
THE MERGER
SECTION 2.01. The Merger.......................................................................5
SECTION 2.02. Conversion of Shares.............................................................5
SECTION 2.03. Surrender and Payment............................................................6
SECTION 2.04. Dissenting Shares................................................................7
SECTION 2.05. Stock Options....................................................................8
SECTION 2.06. Lost Certificates................................................................8
ARTICLE 3
THE SURVIVING CORPORATION
SECTION 3.01. Certificate of Incorporation.....................................................9
SECTION 3.02. Bylaws...........................................................................9
SECTION 3.03. Directors and Officers...........................................................9
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 4.01. Corporate Existence and Power....................................................9
SECTION 4.02. Corporate Authorization.........................................................10
SECTION 4.03. Governmental Authorization......................................................10
SECTION 4.04. Non-Contravention...............................................................10
SECTION 4.05. Capitalization of the Company...................................................11
SECTION 4.06. Capitalization of Subsidiaries..................................................12
SECTION 4.07. SEC Filings.....................................................................12
SECTION 4.08. Financial Statements............................................................12
SECTION 4.09. Disclosure Documents............................................................13
SECTION 4.10. Absence of Certain Changes......................................................13
SECTION 4.11. No Undisclosed Material Liabilities.............................................15
SECTION 4.12. Litigation......................................................................15
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SECTION 4.13. Taxes...........................................................................16
SECTION 4.14. Employee Benefit Plans; ERISA; Labor............................................18
SECTION 4.15. Compliance with Laws and Court Orders...........................................20
SECTION 4.16. Finders' Fees...................................................................20
SECTION 4.17. Environmental Matters...........................................................20
SECTION 4.18. Antitakeover Statutes and Rights Agreement......................................21
SECTION 4.19. Intellectual Property...........................................................21
SECTION 4.20. Year 2000.......................................................................22
SECTION 4.21. Properties......................................................................23
SECTION 4.22. No Default......................................................................23
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PARENT
SECTION 5.01. Corporate Existence and Power...................................................24
SECTION 5.02. Corporate Authorization.........................................................24
SECTION 5.03. Governmental Authorization......................................................24
SECTION 5.04. Non-Contravention...............................................................24
SECTION 5.05. Disclosure Documents............................................................25
SECTION 5.06. Finders' Fees...................................................................25
SECTION 5.07. Parent Financing Agreements.....................................................25
ARTICLE 6
COVENANTS OF THE COMPANY
SECTION 6.01. Conduct of the Company..........................................................26
SECTION 6.02. Stockholder Meetings; Proxy Materials...........................................29
SECTION 6.03. Access to Information...........................................................30
SECTION 6.04. Other Offers, etc...............................................................30
ARTICLE 7
COVENANTS OF PARENT
SECTION 7.01. Obligations of Merger Subsidiary................................................32
SECTION 7.02. Voting of Shares................................................................32
SECTION 7.03. Director and Officer Liability..................................................32
SECTION 7.04. Employee Benefits...............................................................33
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ARTICLE 8
COVENANTS OF PARENT AND THE COMPANY
SECTION 8.01. Notices of Certain Events.......................................................34
SECTION 8.02. Reasonable Best Efforts.........................................................35
SECTION 8.03. Cooperation.....................................................................35
SECTION 8.04. Public Announcements............................................................36
SECTION 8.05. Further Assurances..............................................................36
ARTICLE 9
CONDITIONS TO THE MERGER
SECTION 9.01. Conditions to the Obligations of Each Party.....................................36
ARTICLE 10
TERMINATION
SECTION 10.01. Termination....................................................................37
SECTION 10.02. Effect of Termination..........................................................38
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Notices........................................................................38
SECTION 11.02. Entire Agreement; Non-Survival of Representations and
Warranties; Third Party Beneficiaries.................................................39
SECTION 11.03. Amendments; No Waivers.........................................................40
SECTION 11.04. Expenses.......................................................................40
SECTION 11.05. Successors and Assigns.........................................................41
SECTION 11.06. Governing Law..................................................................41
SECTION 11.07. Jurisdiction...................................................................41
SECTION 11.08. WAIVER OF JURY TRIAL...........................................................42
SECTION 11.09. Counterparts; Effectiveness....................................................42
SECTION 11.10. Captions.......................................................................42
SECTION 11.11. Specific Performance...........................................................42
SECTION 11.12. Joint and Several Liability....................................................42
SECTION 11.13. Definitions and Usage..........................................................42
Annex I
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of June 9, 1999 among XXXXXXXXX
CORPORATION, a Delaware corporation (the "COMPANY"), MEGGITT PLC, a U.K. public
limited company ("PARENT"), and MEGGITT ACQUISITION INC., a Delaware corporation
and a wholly-owned subsidiary of Parent ("MERGER SUBSIDIARY").
The parties hereto agree as follows:
ARTICLE 1
THE OFFER
SECTION 1.01. The Offer. (a) Provided that nothing shall have occurred
that would result in a failure to satisfy any of the conditions set forth in
Annex I hereto, as promptly as practicable after the date hereof, but in no
event later than five U.S. business days following the public announcement of
the execution of this Agreement, Merger Subsidiary shall commence an offer (the
"OFFER") to purchase (i) all of the Common Shares at a price of $28.00 per
Common Share ("COMMON SHARE PRICE") and (ii) all of the Preferred Shares at a
price equal to the Common Share Price times 326.531 per Preferred Share, in each
case, net to the seller in cash. The Offer shall be subject to the condition
that there shall be validly tendered in accordance with the terms of the Offer,
prior to the expiration date of the Offer and not withdrawn, a number of Shares
that, together with the Shares then beneficially owned by Parent, represents at
least a majority of the Common Shares outstanding on a fully-diluted basis (the
"MINIMUM CONDITION") and to the other conditions set forth in Annex I hereto.
Merger Subsidiary expressly reserves the right to waive any of the conditions to
the Offer and to make any change in the terms or conditions of the Offer,
provided that no change may be made that, without the prior written consent of
the Company, waives the Minimum Condition, changes the form of consideration to
be paid, decreases the price per Share or the number of Shares sought in the
Offer or imposes conditions to the Offer in addition to those set forth in Annex
I. If all of the conditions to the Offer are not satisfied or waived on any
scheduled expiration date of the Offer, Merger Subsidiary shall extend the Offer
from time to time until such conditions are satisfied or waived, provided that
Merger Subsidiary shall not be required to extend the Offer beyond the date
referred to in Section 10.01(b)(i). Subject to the foregoing and to the terms
and conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it
to, accept for payment and pay for, as
promptly as practicable after the expiration of the Offer, all Shares properly
tendered and not withdrawn pursuant to the Offer. "SHARES" means the Common
Shares and the Preferred Shares. "COMMON SHARES" means the outstanding shares of
common stock, par value $0.01 per share, of the Company, including the
associated rights (the "RIGHTS") issued pursuant to the rights agreement between
the Company and Mellon Bank N.A., dated as of November 12, 1998 (the "RIGHTS
AGREEMENT"). "PREFERRED SHARES" means the outstanding shares of Series D
participating convertible preferred stock, par value $1.00 per share, of the
Company.
(b) As soon as practicable on the date of commencement of the Offer, Merger
Subsidiary shall file with the Securities and Exchange Commission ("SEC") a
Tender Offer Statement on Schedule 14D-1 (the "SCHEDULE 14D-1") with respect to
the Offer, which will contain the offer to purchase and form of the related
letter of transmittal and summary advertisement (such Schedule 14D-1 and the
documents included therein pursuant to which the Offer will be made, together
with any supplements or amendments thereto, the "OFFER DOCUMENTS"). Parent and
the Company each agrees promptly to correct any information provided by it for
use in the Offer Documents if and to the extent that such information shall have
become false or misleading in any material respect. Merger Subsidiary agrees to
take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed
with the SEC and the Offer Documents as so corrected to be disseminated to
holders of Shares, in each case as and to the extent required by applicable
federal securities laws. The Company and its counsel shall be given a reasonable
opportunity to review and comment on the Offer Documents prior to their being
filed with the SEC or disseminated to the holders of Shares. Parent and Merger
Subsidiary shall provide the Company and its counsel with copies of any written
comments that Parent, Merger Subsidiary or their counsel may receive from the
SEC or its staff with respect to the Offer Documents promptly after receipt of
such comments.
SECTION 1.02. Company Action. (a) The Company hereby consents to the Offer
and represents that its Board of Directors, at a meeting duly called and held
has unanimously (i) determined that this Agreement and the transactions
contemplated hereby, including the Offer and the Merger, are fair to and in the
best interests of the Company's stockholders, (ii) approved and adopted this
Agreement and the transactions contemplated hereby, including the Offer and the
Merger, in accordance with the requirements of the General Corporation Law of
the State of Delaware (the "DELAWARE LAW") and (iii) resolved (subject to
Section 6.04(b)) to recommend acceptance of the Offer and approval and adoption
of this Agreement and the Merger by its stockholders. The Company further
represents that Credit Suisse First Boston Corporation and CIBC World Markets
Corp. (the "COMPANY FINANCIAL ADVISORS") have delivered to the Company's Board
of
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Directors their respective opinions that the consideration to be paid in the
Offer and the Merger is fair to the holders of Shares from a financial point of
view. The Company also represents that it has been authorized by the Company
Financial Advisors to permit the inclusion of such opinions in their entirety in
the Schedule 14D-9 and the Proxy Statement, so long as such inclusion is in form
and substance reasonably satisfactory to the Company Financial Advisors and
their counsel. The Company has been advised by each of its directors and by each
executive officer who as of the date hereof is actually aware (to the knowledge
of the Company) of the transactions contemplated by this Agreement that each
such person intends to tender pursuant to the Offer all Shares owned by such
person. The Company will promptly furnish Parent with a list of its
stockholders, mailing labels and any available listing or computer file
containing the names and addresses of all record holders of Shares and lists of
securities positions of Shares held in stock depositories, in each case true and
correct as of the most recent practicable date, and will provide to Parent such
additional information (including, without limitation, updated lists of
stockholders, mailing labels and lists of securities positions) and such other
assistance as Parent or its agents may reasonably request in connection with the
Offer. Subject to the requirements of applicable law, and except for such steps
as are necessary to disseminate the Offer Documents and any other documents
necessary to consummate the Merger, Parent and Merger Subsidiary and each of
their affiliates, associates, employees, agents and advisors shall hold in
confidence the information contained in any such lists, labels, listings or
files, shall use such information only in connection with the Offer and the
Merger and, if this Agreement shall be terminated and if the Company so
requests, shall deliver, and shall use their reasonable efforts to cause their
affiliates, associates, employees, agents and advisors to deliver, to the
Company all copies and any extracts or summaries from such information then in
their possession or control.
(b) As soon as practicable after the time that the Offer is commenced, the
Company shall file with the SEC and disseminate to holders of Shares, in each
case as and to the extent required by applicable federal securities laws, a
Solicitation/Recommendation Statement on Schedule 14D-9 (together with any
amendments or supplements thereto, the "SCHEDULE 14D-9") that shall reflect the
recommendations of the Company's Board of Directors referred to above. The
Company and Parent each agree promptly to correct any information provided by it
for use in the Schedule 14D-9 if and to the extent that it shall have become
false or misleading in any material respect. The Company 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, in each case as and to the
extent required by applicable federal securities laws. Parent and its counsel
shall be given a reasonable opportunity to review and comment on the Schedule
14D-9 prior to its filing with the SEC or dissemination to holders of Shares.
The
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Company shall provide Parent and its counsel with copies of any written comments
that the Company or its counsel may receive from the SEC or its staff with
respect to the Schedule 14D-9 promptly after receipt of such comments.
SECTION 1.03. Directors. (a) Effective upon the acceptance for payment
pursuant to the Offer of a number of Shares that satisfies the Minimum
Condition, Parent shall be entitled to designate the number of directors,
rounded up to the nearest whole number, on the Company's Board of Directors that
equals the product of (i) the total number of directors on the Company's Board
of Directors and (ii) the percentage that the number of Common Shares
beneficially owned by Parent bears to the total number of Common Shares
outstanding on a fully diluted basis, and the Company shall take all action
necessary to cause Parent's designees to be elected or appointed to the
Company's Board of Directors, including, without limitation, increasing the
number of directors, and seeking and accepting resignations of incumbent
directors. At such time, the Company will also use its best efforts to cause
individuals designated by Parent to constitute the number of members, rounded up
to the nearest whole number, on (i) each committee of the Board of Directors of
the Company and (ii) each board of directors of each subsidiary of the Company
(and each committee thereof) that represents the same percentage as such
individuals represent on the Board of Directors of the Company. Notwithstanding
the foregoing, the Parent and the Company shall use their reasonable efforts to
ensure that at least two members of the Company's Board of Directors as of the
date hereof who are not employees of the Company (the "CONTINUING DIRECTORS")
shall remain members of the Company's Board of Directors until the Effective
Time.
(b) The Company's obligations to appoint Parent's designees to the
Company's Board of Directors shall be subject to Section 14(f) of the 1934 Act
and Rule 14f-1 promulgated thereunder. The Company shall promptly take all
actions, and shall include in the Schedule 14D-9 such information with respect
to the Company and its officers and directors, as Section 14(f) and Rule 14f-1
require in order to fulfill its obligations under this Section. Parent shall
supply to the Company in writing and be solely responsible for any information
with respect to itself and its nominees, officers, directors and affiliates
required by Section 14(f) and Rule 14f-1.
(c) Following the election or appointment of Parent's designees pursuant to
Section 1.03(a) and until the Effective Time, the approval of a majority of the
Continuing Directors shall be required to authorize (and such authorization
shall constitute the authorization of the Company's Board of Directors and no
other action on the part of the Company, including any action by any other
director of the Company, shall be required to authorize) any termination of this
Agreement by the Company, any amendment of this Agreement requiring action by
the
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Company's Board of Directors, any extension of time for performance of any
obligation or action hereunder by Parent or Merger Subsidiary and any waiver of
compliance with any of the agreements or conditions contained herein for the
benefit of the Company.
ARTICLE 2
THE MERGER
SECTION 2.01. The Merger. (a) Upon the terms and subject to the conditions
set forth in this Agreement, at the Effective Time, Merger Subsidiary shall be
merged (the "MERGER") with and into the Company in accordance with the Delaware
Law, whereupon the separate existence of Merger Subsidiary shall cease, and the
Company shall continue as the surviving corporation (the "SURVIVING
CORPORATION").
(b) As soon as practicable after satisfaction or, to the extent permitted
hereunder, waiver of all conditions to the Merger set forth herein, the Company
and Merger Subsidiary will file a certificate of merger with the Secretary of
State of the State of Delaware and make all other filings or recordings required
by Delaware Law in connection with the Merger. The Merger shall become effective
at such time as the certificate of merger is duly filed with the Secretary of
State of the State of Delaware or at such later time as is agreed by Parent and
the Company and specified in the certificate of merger (the "EFFECTIVE TIME").
(c) From and after the Effective Time, the Surviving Corporation shall
possess all the rights, powers, privileges and franchises and be subject to all
of the obligations, liabilities, restrictions and disabilities of the Company
and Merger Subsidiary, all as provided under Delaware Law.
SECTION 2.02. Conversion of Shares. At the Effective Time:
(a) each share of common stock of Merger Subsidiary outstanding immediately
prior to the Effective Time shall be converted into and become one share of
common stock of the Surviving Corporation with the same rights, powers and
privileges as the shares so converted and shall constitute the only outstanding
shares of capital stock of the Surviving Corporation;
(b) each Share held by the Company as treasury stock or owned by Parent or
any of its subsidiaries immediately prior to the Effective Time shall be
canceled, and no payments shall be made with respect thereto;
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(c) except as otherwise provided in Section 2.02(b) or Section 2.04, each
Common Share outstanding immediately prior to the Effective Time shall be
converted into the right to receive $28.00 in cash or any higher price paid for
each Common Share in the Offer, without interest (the "COMMON SHARE
CONSIDERATION"); and
(d) each Preferred Share outstanding immediately prior to the Effective
Time shall be converted into the right to receive an amount equal to the Common
Share Consideration times 326.531, without interest (the "PREFERRED SHARE
CONSIDERATION" and, together with the Common Share Consideration, the "MERGER
CONSIDERATION").
SECTION 2.03. Surrender and Payment. (a) Prior to the Effective Time,
Parent shall appoint an agent reasonably acceptable to the Company (the
"EXCHANGE AGENT") for the purpose of exchanging certificates representing Shares
(the "CERTIFICATES") for the Merger Consideration. Immediately following the
Effective Time, Parent shall deposit with the Exchange Agent, for the benefit of
the holders of Shares, the Merger Consideration to be paid pursuant to Section
2.02 in exchange for outstanding Shares. For purposes of determining the Merger
Consideration to be made available, Parent shall assume that no holder of Shares
will perfect his right to appraisal of his Shares. Promptly after the Effective
Time, Parent will send, or will cause the Exchange Agent to send, to each holder
of Shares at the Effective Time a letter of transmittal for use in such exchange
(which shall specify that delivery of the Merger Consideration shall be
effected, and risk of loss and title to the Certificates shall pass, only upon
proper delivery of the Certificates to the Exchange Agent).
(b) Each holder of Shares that have been converted into a right to receive
the Merger Consideration, upon surrender to the Exchange Agent of a Certificate,
together with a properly completed letter of transmittal if applicable, will be
entitled to receive the Merger Consideration payable for each Share represented
by such Certificate. Until so surrendered, each such Certificate shall, after
the Effective Time, represent for all purposes only the right to receive such
Merger Consideration, without interest thereon.
(c) If any portion of the Merger Consideration is to be paid to a person
other than the person in whose name the surrendered Certificate is registered,
it shall be a condition to such 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 to the Exchange Agent any transfer
or other taxes required as a result of such payment to a person other than the
registered
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holder of such Certificate or establish to the satisfaction of the Exchange
Agent that such tax has been paid or is not applicable.
(d) At the Effective Time, the stock transfer books of the Company shall be
closed and there shall be no further registration of transfers of Shares. From
and after the Effective Time, the holders of Certificates evidencing ownership
of the Shares outstanding immediately prior to the Effective Time shall cease to
have rights with respect to such Shares, except as otherwise provided for herein
or by applicable law. If, after the Effective Time, Certificates are presented
to the Surviving Corporation, they shall be canceled and exchanged for the
Merger Consideration provided for, and in accordance with the procedures set
forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange
Agent pursuant to Section 2.03(a) that remains unclaimed by the holders of
Shares six months after the Effective Time shall be returned to Parent, upon
demand, and any such holder who has not exchanged them for the Merger
Consideration in accordance with this Section 2.03 prior to that time shall
thereafter look only to Parent for payment of the Merger Consideration in
respect of such Shares. Notwithstanding the foregoing, Parent shall not be
liable to any holder of Shares for any amount paid to a public official pursuant
to applicable abandoned property, escheat or similar laws.
(f) Parent and Merger Subsidiary shall be entitled to deduct and withhold,
or cause the Exchange Agent to deduct and withhold, from the Merger
Consideration payable to a holder of Shares pursuant to the Merger any
withholding taxes as are required under the Internal Revenue Code of 1986 (the
"CODE"), or any applicable provision of state, local or foreign tax law. Parent
shall take appropriate steps to minimize such taxes. To the extent that amounts
are so withheld by Parent or Merger Subsidiary, such withheld amounts shall be
treated for all purposes of this Agreement as having been paid to the holder of
the Shares in respect of which such deduction and withholding was made by Parent
or Merger Subsidiary.
(g) Any portion of the Merger Consideration made available to the Exchange
Agent pursuant to Section 2.03(a) to pay for Shares for which appraisal rights
have been perfected shall be returned to Parent, upon demand.
SECTION 2.04. Dissenting Shares. (a) Notwithstanding Section 2.02, Shares
outstanding immediately prior to the Effective Time 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 in accordance with Delaware Law shall not be
converted into a right to receive the Merger Consideration, unless such
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holder fails to perfect, withdraws or otherwise loses its right to appraisal. If
after the Effective Time such holder fails to perfect, withdraws or loses his
right to appraisal, such Shares shall be treated as if they had been converted
as of the Effective Time into a right to receive the Merger Consideration
without any interest thereon. The Company shall give Parent prompt notice of any
demands received by the Company for appraisal of Shares, attempted withdrawals
of such demands and any other instruments served pursuant to Delaware Law and
received by the Company relating to stockholders' rights of appraisal, and
Parent shall have the right to participate in and, following consummation of the
Offer, direct all negotiations and proceedings with respect to such demands. The
Company shall not, except with the prior written consent of Parent, make any
payment with respect to, or settle or offer to settle, any such demands.
SECTION 2.05. Stock Options. (a) At or immediately prior to the Effective
Time, each employee and director stock option (collectively, the "STOCK
OPTIONS") to purchase Shares outstanding under any employee or director stock
option or compensation plan or arrangement of the Company, whether or not vested
or exercisable, shall be canceled, and the Company shall pay each holder of any
such option at or promptly after the Effective Time for each such option, an
amount in cash equal to (i) the product of (A) the excess, if any, of the Common
Share Consideration over the applicable exercise price of such option and (B)
the number of Common Shares such holder could have purchased (assuming full
vesting of all options) had such holder exercised such option in full
immediately prior to the Effective Time minus (ii) the amount of any applicable
withholding tax.
(b) Prior to the Effective Time, to the extent required to effect the
transactions contemplated hereby, the Company shall take any actions necessary
with respect to its stock option or compensation plans or arrangements,
including if applicable making amendments to the terms of such stock option or
compensation plans or arrangements.
SECTION 2.06. Lost Certificates. If any Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming such Certificate to be lost, stolen or destroyed and, if required by
the Surviving Corporation, the posting by such person of a bond, in such
reasonable amount as the Surviving Corporation may direct, as indemnity against
any claim that may be made against it with respect to such Certificate, the
Exchange Agent will pay, in exchange for such lost, stolen or destroyed
Certificate, the Merger Consideration to be paid in respect of the Shares
represented by such Certificate, as contemplated by this Article 2.
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ARTICLE 3
THE SURVIVING CORPORATION
SECTION 3.01. Certificate of Incorporation. The certificate of
incorporation of Merger Subsidiary in effect at the Effective Time shall be the
certificate of incorporation of the Surviving Corporation until amended in
accordance with applicable law, provided that, at the Effective Time, Article I
of such certificate of incorporation shall be amended to read as follows: "The
name of the corporation is Xxxxxxxxx Corporation."
SECTION 3.02. Bylaws. The bylaws of Merger Subsidiary in effect at the
Effective Time shall be the bylaws of the Surviving Corporation until amended in
accordance with applicable law.
SECTION 3.03. Directors and Officers. From and after the Effective Time,
until successors are duly elected or appointed and qualified in accordance with
the Delaware Law and the certificate of incorporation and bylaws of the
Surviving Corporation, (a) the directors of Merger Subsidiary at the Effective
Time shall be the directors of the Surviving Corporation, and (b) the officers
of the Company at the Effective Time shall be the officers of the Surviving
Corporation.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent that except as otherwise
disclosed in the Disclosure Schedule:
SECTION 4.01. Corporate Existence and Power. Each of the Company and its
subsidiaries is a corporation, partnership or other entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, and has the requisite corporate or other power
and authority and governmental approvals to own, lease and operate its
properties and to carry on its business as now conducted, except for such
matters as would not have a material adverse effect on the Company. Each of the
Company and its subsidiaries is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where such
qualification is necessary, except for such matters as would not have a material
adverse effect on the Company. The Company has heretofore delivered or made
available to Parent true and complete copies of the Company's certificate of
incorporation and bylaws as currently in effect.
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SECTION 4.02. Corporate Authorization. The execution, delivery and
performance by the Company of this Agreement and the consummation by the Company
of the transactions contemplated hereby are within the Company's corporate
powers and, except as set forth in the next succeeding sentence of this Section
4.02, have been duly authorized by all necessary corporate action. The
affirmative vote of a majority of the outstanding Common Shares is the only vote
of any class or series of the Company's capital stock necessary to approve and
adopt this Agreement and the transactions contemplated by this Agreement.
Subject to the receipt of the approval described in the immediately preceding
sentence, this Agreement constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally.
SECTION 4.03. Governmental Authorization. The execution, delivery and
performance by the Company of this Agreement and the consummation by the Company
of the transactions contemplated hereby require no action by or in respect of,
or filing with, any governmental body, agency, official or authority other than
(i) the filing of a certificate of merger with respect to the Merger with the
Delaware Secretary of State; (ii) compliance with any applicable requirements of
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000 (xxx "XXX XXX"); (iii)
compliance with any applicable requirements of the Securities Act of 1933 (the
"1933 ACT"); (iv) compliance with any applicable requirements of the Securities
Exchange Act of 1934 (the "1934 ACT"); (v) compliance with any other applicable
securities or takeover laws, whether state or foreign; (vi) any actions or
filings which, if not taken or made, would not have a material adverse effect on
the Company or the transactions contemplated hereby; and (vii) any filings or
notices not required to be made or given until after the Effective Time.
SECTION 4.04. Non-Contravention. The execution, delivery and performance by
the Company of this Agreement do not, and the consummation by the Company of the
transactions contemplated hereby will not (a) assuming receipt of the approval
of stockholders referred to in Section 4.02, contravene or conflict with the
certificate of incorporation, bylaws or similar organizational documents of the
Company, (b) assuming compliance with the matters referred to in Section 4.03,
violate any applicable law, rule, regulation, judgment, injunction, order or
decree, (c) constitute a default under or give rise to a right of termination,
cancellation or acceleration of any right or obligation of the Company or any of
its subsidiaries or to a loss of any benefit to which the Company or any of its
subsidiaries is entitled under any provision of any agreement or other
instrument binding upon the Company or any of its subsidiaries or any license,
franchise, permit or other similar authorization held by the Company or any of
its subsidiaries, or (d) result in the creation or imposition of any Lien on any
asset of
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the Company or any of its subsidiaries, except in the case of clause (b), (c) or
(d), for such matters as that would not have a material adverse effect on the
Company or the transaction contemplated hereby. For purposes of this Agreement,
"LIEN" means, with respect to any asset, any mortgage, lien, pledge, charge,
security interest or encumbrance in respect of such asset.
SECTION 4.05. Capitalization of the Company. The authorized capital stock
of the Company consists of 40,000,000 shares of common stock, par value $.01 per
share ("COMMON STOCK"), and 5,000,000 shares of preferred stock, par value $1.00
per share ("PREFERRED STOCK"), of which 10,000 are designated as Series D
Participating Convertible Preferred Stock and 150,000 are designated as Series E
Participating Convertible Preferred Stock. As of the close of business on June
4, 1999, (i) 11,440,452 shares of Common Stock were issued and outstanding,
stock options to purchase an aggregate of 851,152 shares of Common Stock under
the Company's Long-Term Stock Incentive Plan (1989) and 1992 Stock Option Plan
for Non-Employee Directors (collectively, the "OPTION PLANS") were outstanding,
883,912 shares of Common Stock were reserved for issuance upon conversion of the
7% convertible subordinated notes due May 1, 2005 of the Company (the
"CONVERTIBLE NOTES"), and 188,467 shares of Common Stock were reserved for
issuance upon conversion of the Series D Participating Convertible Preferred
Stock, and (ii) 577.18 shares of Series D Participating Convertible Preferred
Stock were issued and outstanding, and 150,000 shares of Series E Participating
Cumulative Preferred Stock were reserved for issuance upon exercise of the
Rights associated with the Common Stock. All the outstanding shares of the
Company's capital stock are, and all shares which may be issued in connection
with the Option Plans, the Convertible Notes or the Preferred Shares will be,
when issued in accordance with the respective terms thereof, duly authorized,
validly issued, fully paid and non-assessable. Except as set forth in this
Section 4.05 and for changes since June 4, 1999 resulting from the exercise of
employee and director stock options or the conversion of the Preferred Shares
and the Convertible Notes outstanding on such date, there are no outstanding (x)
shares of capital stock or other voting securities of the Company, (y)
securities of the Company convertible into or exchangeable for shares of capital
stock or voting securities of the Company or (z) options, warrants or other
rights to acquire from the Company, or other obligation of the Company to issue,
transfer or sell, any capital stock, voting securities or securities convertible
into or exchangeable for capital stock or voting securities of the Company.
Except with respect to the Convertible Notes, neither the Company nor any of its
subsidiaries has any contractual obligation to repurchase, redeem or otherwise
acquire any of the securities referred to above. There are no stockholder
agreements, voting trusts or other agreements or understandings to which the
Company or any of its subsidiaries is a party or to which it is bound relating
to the voting of any shares of capital stock of the Company. Upon the Company
taking the actions referred
11
to in Section 2.05(a), following the Effective Time, no holder of Stock Options
will have any right to receive shares of common stock of the Surviving
Corporation upon exercise of the Stock Options. Upon execution by the Company of
the supplemental instrument contemplated by Section 4.5(b) of the Convertible
Notes, no holder of Convertible Notes will have any right to receive shares of
common stock of the Surviving Corporation upon conversion of the Convertible
Notes.
SECTION 4.06. Capitalization of Subsidiaries. All of the outstanding shares
of capital stock of, or other ownership interests in, each subsidiary of the
Company is owned by the Company, directly or indirectly, free and clear of any
consensual Lien (including any restriction on the right to vote, sell or
otherwise dispose of such capital stock or other ownership interests). There are
no outstanding (i) securities of the Company or any of its subsidiaries
convertible into or exchangeable for shares of capital stock or other voting
securities or ownership interests in any subsidiary of the Company, or (ii)
options or other rights to acquire from the Company or any of its subsidiaries,
or other obligation of the Company or any of its subsidiaries to issue, any
capital stock, voting securities or other ownership interests in, or any
securities convertible into or exchangeable for any capital stock, voting
securities or ownership interests in, any subsidiary of the Company.
SECTION 4.07. SEC Filings. (a) The Company has filed all required reports,
schedules, forms, statements and other documents with the SEC since October 31,
1997 (the "SEC DOCUMENTS").
(b) Each SEC Document filed pursuant to the 1934 Act did not, as of its
filing date, and each SEC Document filed pursuant to the 1933 Act did not, as of
its effective date, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading, except to the extent that such statements have been
modified or superseded by a later filed SEC Document.
SECTION 4.08. Financial Statements. The audited consolidated financial
statements and unaudited consolidated interim financial statements of the
Company included in the Company's Annual Report on Form 10-K for the fiscal
years ended October 31, 1997 and 1998 and its quarterly report on Form 10-Q for
its fiscal quarter ended January 31, 1999 (the "10-Q") have been prepared in
accordance with United States generally accepted accounting principles ("GAAP")
applied on a consistent basis during the periods involved (except as may be
indicated in the notes thereto) and fairly present in all material respects the
consolidated financial position of the Company and its consolidated subsidiaries
12
as of the dates thereof and their consolidated results of operations and cash
flows for the periods then ended (subject to normal year-end adjustments in the
case of any unaudited interim financial statements). For purposes of this
Agreement, "BALANCE SHEET" means the consolidated balance sheet of the Company
as of January 31, 1999 set forth in the 10-Q and "BALANCE SHEET DATE" means
January 31, 1999.
SECTION 4.09. Disclosure Documents. (a) Each document required to be filed
by the Company with the SEC or required to be distributed or otherwise
disseminated to the Company's stockholders in connection with the transactions
contemplated by this Agreement (the "COMPANY DISCLOSURE DOCUMENTS"), including,
without limitation, the Schedule 14D-9 and the proxy or information statement of
the Company (the "COMPANY PROXY STATEMENT"), if any, to be filed with the SEC in
connection with the Merger, and any amendments or supplements thereto, when
filed, distributed or disseminated, as applicable, will comply as to form in all
material respects with the applicable requirements of the 1934 Act.
(b) (i) The Company Proxy Statement, as supplemented or amended, if
applicable, at the time such Company Proxy Statement or any amendment or
supplement thereto is first mailed to stockholders of the Company and at the
time such stockholders vote on adoption of this Agreement, and (ii) any Company
Disclosure Document (other than the Company Proxy Statement), at the time of the
filing of such Company Disclosure Document or any supplement or amendment
thereto and at the time of any distribution or dissemination thereof, will not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading. The representations
and warranties contained in this Section 4.09(b) will not apply to statements or
omissions included in the Company Disclosure Documents based upon information
furnished to the Company in writing by Parent specifically for use therein.
(c) The information with respect to the Company or any of its subsidiaries
that the Company furnishes to Parent in writing specifically for use in the
Offer Documents, at the time of the filing thereof, at the time of any
distribution or dissemination thereof and at the time of the consummation of the
Offer, will not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not misleading.
SECTION 4.10. Absence of Certain Changes. Except as disclosed in the SEC
Documents filed prior to the date of this Agreement and except as permitted by
Section 6.01, since the Balance Sheet Date, the business of the Company and
13
its subsidiaries has been conducted in the ordinary course consistent with past
practices and there has not been:
(a) any event, occurrence or development which has had or is reasonably
likely to have a material adverse effect on the Company;
(b) any declaration, setting aside or payment of any dividend or other
distribution with respect to any shares of capital stock of the Company, or any
repurchase, redemption or other acquisition by the Company or any of its
subsidiaries of any outstanding shares of capital stock or other equity
securities of, or other ownership interests in, the Company or any of its
subsidiaries;
(c) any amendment of any term of any outstanding security of the Company or
any of its subsidiaries that would materially increase the obligations of the
Company or such subsidiary under such security;
(d) any incurrence, assumption or guarantee by the Company or any of its
subsidiaries of any indebtedness for borrowed money other than in the ordinary
course of business consistent with past practices;
(e) any creation or assumption by the Company or any of its subsidiaries of
any Lien on any material asset of the Company or any subsidiary other than in
the ordinary course of business consistent with past practices;
(f) any making of any loan, advance or capital contribution to or
investment in any person by the Company or any of its subsidiaries other than
(i) in connection with any acquisition or capital expenditure permitted by
Section 6.01, (ii) loans, advances or capital contributions to or investments in
wholly-owned subsidiaries of the Company, (iii) loans or advances to the Company
by any of its subsidiaries or (iv) loans or advances to employees of the Company
or any of its subsidiaries made in the ordinary course of business consistent
with past practices;
(g) (i) any contract or agreement entered into by the Company or any of its
subsidiaries relating to any material acquisition or disposition of any assets
or business other than in the ordinary course of business consistent with past
practices and those contemplated by this Agreement or (ii) any modification,
amendment, assignment, termination or relinquishment by the Company or any of
its subsidiaries of any contract, license or other right that would have a
material adverse effect on the Company;
14
(h) any material change in any method of accounting or accounting practice
by the Company or any of its subsidiaries, except for any such change required
by reason of a change in GAAP;
(i) any (i) employment, deferred compensation, severance, retirement or
other similar agreement entered into with any director, officer or employee of
the Company (or any amendment to any such existing agreement), (ii) grant of any
severance or termination pay to any director, officer or employee of the
Company, or (iii) change in benefits payable to any director, officer or
employee of the Company pursuant to any severance or retirement plans or
policies thereof, in each case other than in the ordinary course of business
consistent with past practices; or
(j) any agreement or commitment to take any action referred to in Section
4.10(a) through 4.10(i).
SECTION 4.11. No Undisclosed Material Liabilities. There are no liabilities
of the Company or any of its subsidiaries required to be disclosed on a balance
sheet prepared in accordance with GAAP, other than:
(a) liabilities provided for in the Balance Sheet or disclosed in the notes
thereto or in the SEC Documents filed prior to the date hereof;
(b) liabilities disclosed in, related to or arising under any agreements,
instruments or other matters disclosed in this Agreement;
(c) liabilities incurred in the ordinary course of business since the
Balance Sheet Date; or
(d) other undisclosed liabilities which, individually or in the aggregate,
would not have a material adverse effect on the Company.
SECTION 4.12. Litigation. Except as disclosed in the SEC Documents filed
prior to the date hereof, there is no action, suit, investigation or proceeding
pending against, or to the knowledge of the Company threatened against or
affecting, the Company or any of its subsidiaries or any of their respective
properties before any court or arbitrator or any governmental body, agency or
official which (a) would reasonably be expected to have a material adverse
effect on the Company or (b) as of the date hereof, questions the validity of
this Agreement or any action to be taken by the Company in connection with the
consummation of the transactions contemplated hereby or could otherwise prevent
or delay the consummation of the transactions contemplated by this Agreement.
Except as and to the extent publicly disclosed by the Company in the XXX
00
Xxxxxxxxx, xxxx of the Company or its subsidiaries is subject to any outstanding
order, writ, injunction or decree which does or would reasonably be expected to
have, individually or in the aggregate, a material adverse effect on the
Company.
SECTION 4.13. Taxes. (a) Except for such matters as would not have a
material adverse effect on the Company:
(i) each of the Company and its subsidiaries has timely filed (or has
had timely filed on its behalf), all Federal income and all other material
Tax Returns required by applicable law to be filed by it prior to or as of
the date hereof, and all such Tax Returns are true, accurate and complete
in all material respects.
(ii) each of the Company and its subsidiaries has paid (or has had
paid on its behalf) or, where payment is not yet due, has established (or
has had established on its behalf and for its sole benefit and recourse) in
accordance with GAAP on or before the date hereof an adequate accrual for
the payment of, all material Taxes due with respect to any monthly
accounting period ending prior to or as of the date hereof. No material
deficiency with respect to Taxes has been proposed in writing or assessed
against the Company or any of its subsidiaries. No material liens for Taxes
exist with respect to any asset of the Company or any of its subsidiaries,
except for statutory liens for Taxes not yet due.
(iii) the Federal income Tax Returns and material state income and
franchise and foreign Tax Returns of the Company and each of its
subsidiaries have been examined by and settled with the appropriate Taxing
Authority or the applicable statute of limitations has expired for all
years through 1994. All material assessments for Taxes due with respect to
such completed and settled examinations or any concluded litigation have
been fully paid.
(iv) except for customary indemnities included within leases, neither
the Company nor any of its subsidiaries has any obligation under any
agreement (either with any person or any taxing authority) with respect to
Taxes.
(v) no claim has been made by a Taxing Authority in a jurisdiction
where neither the Company nor any of its subsidiaries files Tax Returns
that the Company or any of its subsidiaries is or may be subject to income
or franchise taxation in that jurisdiction.
16
(vi) no issue has been raised in writing by any Taxing Authority in
any presently pending tax audit that could have a material adverse effect
on the Company for any period after the Effective Time.
(vii) neither the Company nor any of its subsidiaries is a party to
any contract, agreement or other arrangement which provides for the payment
of any amount which would not be deductible by reason of Section 162(m) or
Section 280G of the Code.
(b) Within the past ten years, neither the Company nor any of its
subsidiaries has constituted either a "distributing corporation" or a
"controlled corporation"(within the meaning of Section 355(a)(1)(A) of the Code)
in a distribution of stock qualifying for tax-free treatment under Section 355
of the Code.
(c) Neither the Company nor within the past six years, any of its current
subsidiaries has been a member of an affiliated, consolidated, combined or
unitary group of corporations, other than any such group of which the Company
has been the common parent.
(d) The Company has made available to Parent true and complete copies of
(A) all Federal and material state and foreign income and franchise Tax Returns
of the Company and its subsidiaries for the preceding three Taxable years ending
in 1997 and (B) any audit report issued within the last three years (or
otherwise with respect to any audit or proceeding in progress) relating to
material Taxes of the Company or any of its subsidiaries.
(e) No subsidiary of the Company owns any Shares.
(f) "TAXES" shall mean any and all taxes, charges, fees, levies or other
assessments, including income, gross receipts, excise, real or personal
property, sales, withholding, social security, retirement, unemployment,
occupation, use, goods and services, license, value added, capital, net worth,
payroll, profits, franchise, transfer and recording taxes, fees and charges, and
any other taxes, assessment or similar charges imposed by the Internal Revenue
Service or any taxing authority (whether domestic or foreign including any
state, county, local or foreign government or any subdivision or taxing agency
thereof (including a United States possession)) (a "TAXING AUTHORITY"), whether
computed on a separate, consolidated, unitary, combined or any other basis; and
such term shall include any interest whether paid or received, fines, penalties
or additional amounts attributable to, or imposed upon, or with respect to, any
such taxes, charges, fees, levies or other assessments. "TAX RETURN" shall mean
any report, return, document, declaration or other information or filing
required to be
17
supplied to any Taxing Authority, including information returns, any documents
with respect to or accompanying payments of estimated Taxes, or with respect to
or accompanying requests for the extension of time in which to file any such
report, return, document, declaration or other information.
SECTION 4.14. Employee Benefit Plans; ERISA; Labor. (a) The Company has
provided Parent with a list identifying each material employee benefit plan
(including any plans for the benefit of directors or former directors),
arrangement, contract or agreement (including employment agreements and
severance agreements, incentive compensation, bonus, stock option, stock
appreciation rights and stock purchase plans) of any type (including plans
described in Section 3(3) of the Employee Retirement Income Security Act of 1974
("ERISA")), (i) which is maintained by the Company, any of its subsidiaries or
any trade or business, whether or not incorporated, which is or has been under
common control, or which is or has ever been treated as a single employer, with
the Company under Sections 414(b), (c), (m) or (o) of the Code (an "ERISA
AFFILIATE"), or would be deemed a "controlled group" within the meaning of
Section 4001(a)(14) of ERISA and (ii) which covers any current or former
employee of the Company or any of its subsidiaries and with respect to which the
Company or any of its subsidiaries has a current liability or is reasonably
likely to have a future liability (the "BENEFIT PLANS").
(b) True, correct and complete copies of the following documents, with
respect to each of the Benefit Plans, if applicable, have been made available or
delivered to Parent by the Company: (i) any plans and related trust documents,
and amendments thereto; (ii) the most recent Forms 5500 and schedules thereto;
(iii) the most recent IRS determination letter; (iv) the most recent financial
statements and actuarial valuations; (v) summary plan descriptions; and (vi) all
material written communications to employees regarding the Benefit Plans that
have the effect of amending or modifying such plans.
(c) With respect to each Benefit Plan, except as would not, individually or
in the aggregate, have a material adverse effect on the Company: (i) if intended
to qualify under Section 401(a), 401(k) or 403(a) of the Code, such plan so
qualifies, and its trust is exempt from taxation under Section 501(a) of the
Code; (ii) such plan has been administered in accordance with its terms and
applicable law; (iii) no breaches of fiduciary duty have occurred; (iv) no
prohibited transaction within the meaning of Section 406 of ERISA and Section
4975 of the Code has occurred; (v) as of the date of this Agreement, no lien
imposed under the Code or ERISA exists; and (vi) all contributions and premiums
(including PBGC premiums) due (including any extensions for such contributions
and premiums) and payments required to be made by the Company or its
subsidiaries have been made in full; and (vii) there are no material actions,
suits, arbitrations or claims
18
(other than routine claims for benefits) pending or, to the knowledge of the
Company, threatened with respect to any Benefit Plan.
(d) None of the Benefit Plans has incurred any "accumulated funding
deficiency", as such term is defined in Section 412 of the Code, whether or not
waived, except as would not result in a current material liability to the
Company.
(e) Except as would not, individually or in the aggregate, have a material
adverse effect on the Company, neither the Company nor any ERISA Affiliate nor
any organization to which the Company is a successor or parent corporation,
within the meaning of Section 4069(b) of ERISA, has engaged in any transaction,
within the meaning of Section 4069 of ERISA, and except as would not result in a
material liability to the Company, neither the Company nor any ERISA Affiliate
has terminated any Benefit Plan, or incurred any outstanding liability under
Section 4062 of ERISA to the Pension Benefit Guaranty Corporation, or to a
trustee appointed under Section 4042 of ERISA since January 1, 1995.
(f) With respect to each Benefit Plan that is a "welfare plan" (as defined
in Section 3(1) of ERISA), no such plan provides medical or death benefits with
respect to current or former employees of the Company or any of its subsidiaries
beyond their termination of employment, other than on an employee-pay-all basis,
except as would not, individually or in the aggregate, have a material adverse
effect on the Company. With respect to each such Benefit Plan that is "group
health plan" within the meaning of Section 5000(b)(I) of the Code, such plans
have complied with the notice and continuation requirements of Section 4980B of
the Code ("COBRA"), Part 6 of Title I of ERISA, and the regulations thereunder
except as would not have a material adverse effect on the Company.
(g) There is no Benefit Plan that is a "multiemployer plan", as such term
is defined in Section 3(37) of ERISA, or which is covered by Section 4063 or
4064 of ERISA.
(h) Neither the Company nor any of its subsidiaries is a party to or
subject to any collective bargaining agreement and there are no collective
bargaining agreements which pertain to employees of the Company or any of its
subsidiaries. Except as would not have a material adverse effect on the Company,
no labor organization or group of employees of the Company or any of its
subsidiaries has made a pending demand for recognition or certification, and, to
the Company's knowledge, there are no representation or certification
proceedings or petitions seeking a representation proceeding presently pending
or threatened in writing to be bought or filed with the National Labor Relations
Board or any other labor relations tribunal or authority. Except as would not
have
19
a material adverse effect on the Company, there has been no "mass layoff" or
"plant closing" as defined by WARN with respect to the Company within six months
of the date of this Agreement. "WARN" means the Worker Adjustment and Retraining
Notification Act and any similar state or local "plant closing" law.
(i) Except as would not have a material adverse effect on the Company,
neither the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (i) increase any benefits otherwise
payable under any Benefit Plan or (ii) result in the acceleration of the time of
payment or vesting of any such benefits.
(j) According to the actuarial assumptions used in the Aon Consulting
letter to the Company dated May 17, 1999, the present value of the benefits of
the Company's Employees' Pension Plan as of May 1, 1999 exceeded the market
value of the assets of such plan as of April 30, 1999 by $22,547,875.
SECTION 4.15. Compliance with Laws and Court Orders. Except as set forth in
the SEC Documents filed prior to the date hereof, and except for such matters as
would not have a material adverse effect on the Company, (i) the Company and its
subsidiaries hold all permits, licenses, variances, exemptions, orders and
approvals of all governmental entities necessary for the lawful conduct of their
respective businesses and (ii) neither the Company nor any of its subsidiaries
is in violation of any applicable law, rule, regulation, judgment, injunction,
order or decree.
SECTION 4.16. Finders' Fees. Except for Credit Suisse First Boston
Corporation and CIBC World Markets Corp., no investment banker, broker, finder
or other intermediary is entitled to any fee or commission from the Company or
any of its subsidiaries upon consummation of the transactions contemplated by
this Agreement.
SECTION 4.17. Environmental Matters. Except as set forth in the SEC
Documents filed prior to the date hereof, and except for such matters as would
not have a material adverse effect on the Company:
(i) no written notice, request for information, order, complaint or
penalty has been received by the Company relating to any Environmental Law,
and there are no judicial, administrative or other actions, suits or
proceedings pending, nor to the knowledge of the Company, threatened which
allege a violation of any Environmental Law;
(ii) (A) the Company and each of its subsidiaries have all
environmental permits necessary for their operations to comply with all
20
applicable Environmental Laws and are in compliance with the terms of such
permits and (B) there are no legal proceedings pending, nor to the
knowledge of the Company, threatened to revoke such environmental permits;
and
(iii) there has been no written environmental audit conducted within
the past five years by the Company or any of its subsidiaries of any
property currently owned or leased by the Company or any of its
subsidiaries which has not been delivered or made available to Parent prior
to the date hereof.
"ENVIRONMENTAL LAW" means any federal, state or local (including common
law), statute, code, ordinance, rule or regulation, relating to the environment,
natural resources, or the effect of the environment on public or employee health
and safety and includes, but is not limited to, the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. 'SS' 9601 et
seq., the Hazardous Materials Transportation Act, 49 U.S.C. 'SS' 1801 et. seq.,
the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. 'SS' 6901 et
seq., the Clean Water Act, 33 U.S.C. 'SS' 1251 et seq., the Clean Air Act, 33
U.S.C. 'SS' 2601 et seq., the Toxic Substances Control Act, 15 U.S.C. 'SS' 2601
et seq., the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 'SS'
136 et seq., the Oil Pollution Act of 1990, 33 U.S.C. 'SS' 2701 et seq., as such
laws have been amended or supplemented on or prior to the Effective Time, and
the regulations promulgated pursuant thereto on or prior to the Effective Time,
and all analogous state or local statutes.
SECTION 4.18. Antitakeover Statutes and Rights Agreement. (a) The Board of
Directors of the Company has approved the Merger and this Agreement, and such
approval is sufficient to render inapplicable to the Merger, this Agreement and
the transactions contemplated hereby the provisions of Section 203 of the
Delaware Law or any antitakeover provision in the Company's certificate of
incorporation and bylaws.
(b) The Company has taken all action necessary to render the Rights issued
pursuant to the Rights Agreement inapplicable to the Offer, the Merger, this
Agreement and the transactions contemplated hereby.
SECTION 4.19. Intellectual Property. (a) As of the date of this Agreement,
all Taxes, royalties, fees and other payments due and payable and necessary to
maintain the ownership or license to use, as the case may be, any registered
Intellectual Property shall have been made (except as would not reasonably be
expected to have a material adverse effect on the Company and except with
21
respect to those registrations and applications that the Company has determined
to allow to lapse in the ordinary course of their business).
(b) There are no restrictions that would materially affect the use of the
Intellectual Property in the business of the Company or any of its subsidiaries
as currently conducted and the Intellectual Property as currently used by the
Company and its subsidiaries does not infringe upon or otherwise violate the
rights of any other person except as would not reasonably be expected to have a
material adverse effect on the Company.
(c) There are no actions or proceedings pending or, to the knowledge of the
Company, threatened challenging the Intellectual Property, and, to the knowledge
of the Company, no person is infringing or otherwise violating, the Intellectual
Property, except for challenges, infringements or violations which, individually
or in the aggregate, would not reasonably be expected to have a material adverse
effect on the Company.
"INTELLECTUAL PROPERTY" means all material intellectual property (and the
right associated therewith) used in connection with the business of the Company
and its subsidiaries, including the following: material trademarks, service
marks, brand names, certification marks, trade dress, assumed names, trade names
and other indications of origin, the goodwill associated with the foregoing and
registrations in any jurisdiction of, and applications in any jurisdiction to
register, the foregoing; material patents, applications for patents (including,
without limitation, divisions, continuations, continuations-in-part and renewal
applications); material non-public information, trade secrets and confidential
information and rights in any jurisdiction to limit the use or disclosure
thereof by any person; and material copyrighted works and registrations or
applications for registration of copyrights in any jurisdiction, and any
renewals or extensions thereof.
SECTION 4.20. Year 2000. Except as disclosed in the SEC Documents filed
prior to the date hereof, (i) the Company and its subsidiaries have reviewed the
areas within their business and operations which could reasonably be expected to
have an "Year 2000 Problem" (that is, the risk that computer applications used
by the Company and its subsidiaries may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior to and any date
after December 31, 1999) that would have a material adverse effect on the
Company and have developed a program to address on a timely basis any such
problem, and (ii) based on such review and program, the "Year 2000 Problem" will
not, or is not reasonably likely to, have a material adverse effect on the
Company.
22
SECTION 4.21. Properties. The Company and its subsidiaries have good title
to, or in the case of leased property have valid leasehold interests in, all
real property reflected on the Balance Sheet or acquired after the Balance Sheet
Date, except for properties sold since the Balance Sheet Date in the ordinary
course of business consistent with past practices or where the failure to have
such good title or valid leasehold interests would not have a material adverse
effect on the Company. None of such property is subject to any Lien, except:
(a) Liens disclosed on the Balance Sheet or notes thereto or securing
liabilities reflected on the Balance Sheet or notes thereto;
(b) Liens for taxes, assessments and similar charges that are not yet due
or are being contested in good faith;
(c) mechanic's, materialman's, carrier's, repairer's and other similar
Liens arising or incurred in the ordinary course of business or that are not yet
due and payable or are being contested in good faith;
(d) Liens incurred in the ordinary course of business since the Balance
Sheet Date; or
(e) other Liens which would not have a material adverse effect on the
Company.
SECTION 4.22. No Default. There is no default or claimed default under any
contract or agreement to which the Company or any of its subsidiaries is a
party, either by the Company or any of its subsidiaries or, to the Company's
knowledge, by any other party thereto, and no event has occurred that with the
lapse of time or the giving of notice or both would constitute a default
thereunder by the Company or any of its subsidiaries or, to the Company's
knowledge, any other party, in any such case in which such default or event does
or would reasonably be expected to have, individually or in the aggregate, a
material adverse effect on the Company.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to the Company that:
23
SECTION 5.01. Corporate Existence and Power. Each of Parent and Merger
Subsidiary is a corporation, partnership or other entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, and has the requisite corporate or other power
and authority and governmental approvals to own, lease and operate its
properties and to carry on its business as now conducted, except for such
matters as would not have a material adverse effect on Parent or the
transactions contemplated hereby. Since the date of its incorporation, Merger
Subsidiary has not engaged in any activities other than in connection with or as
contemplated by this Agreement.
SECTION 5.02. Corporate Authorization. The execution, delivery and
performance by Parent and Merger Subsidiary of this Agreement and the
consummation by Parent and Merger Subsidiary of the transactions contemplated
hereby are within the corporate powers of Parent and Merger Subsidiary and,
subject to the approval of Parent's ordinary shareholders, have been duly
authorized by all necessary corporate action. This Agreement constitutes a valid
and binding agreement of each of Parent and Merger Subsidiary, enforceable
against Parent or Merger Subsidiary, as the case may be, in accordance with its
terms except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally.
SECTION 5.03. Governmental Authorization. The execution, delivery and
performance by Parent and Merger Subsidiary of this Agreement and the
consummation by Parent and Merger Subsidiary of the transactions contemplated
hereby require no action by or in respect of, or filing with, any governmental
body, agency, official or authority other than (i) the filing of a certificate
of merger with respect to the Merger with the Delaware Secretary of State; (ii)
compliance with any applicable requirements of the HSR Act; (iii) compliance
with any applicable requirements of the 1933 Act; (iv) compliance with any
applicable requirements of the 1934 Act; (v) compliance with any other
applicable securities laws; (vi) compliance with any applicable requirements of
Section 721 of the Defense Production Act of 1950 (the "EXON-XXXXXX PROVISION");
(vii) any actions or filings which, if not taken or made, would not have a
material adverse effect on Parent or the transactions contemplated hereby; and
(viii) any filings or notices not required to be made or given until after the
Effective Time.
SECTION 5.04. Non-Contravention. The execution, delivery and performance by
Parent and Merger Subsidiary of this Agreement do not, and the consummation by
Parent and Merger Subsidiary of the transactions contemplated hereby will not
(i) contravene or conflict with the certificate of incorporation, bylaws or
similar organizational documents of Parent or Merger Subsidiary, (ii) assuming
compliance with the matters referred to in Section 5.03, violate any
24
applicable law, rule, regulation, judgment, injunction, order or decree, or
(iii) constitute a default under or give rise to a right of termination,
cancellation or acceleration of any right or obligation of Parent or Merger
Subsidiary or to a loss of any benefit to which Parent or Merger Subsidiary is
entitled under any provision of any agreement or other instrument binding upon
Parent or Merger Subsidiary or any license, franchise, permit or other similar
authorization held by Parent or Merger Subsidiary, except in the case of clause
(ii) or (iii), for such matters as would not have a material adverse effect on
Parent or the transaction contemplated hereby.
SECTION 5.05. Disclosure Documents. (a) The information with respect to
Parent and any of its subsidiaries that Parent furnishes to the Company in
writing specifically for use in any Company Disclosure Document will not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading (i) in the case of the
Company Proxy Statement, as supplemented or amended, if applicable, at the time
such Company Proxy Statement or any amendment or supplement thereto is first
mailed to stockholders of the Company and at the time such stockholders vote on
adoption of this Agreement, and (ii) in the case of any Company Disclosure
Document other than the Company Proxy Statement, at the time of the filing of
such Company Disclosure Document or any supplement or amendment thereto and at
the time of any distribution or dissemination thereof.
(b) The Offer Documents, when filed, distributed or disseminated, as
applicable, will comply as to form in all material respects with the applicable
requirements of the 1934 Act and, at the time of the filing thereof, at the time
of any distribution or dissemination thereof and at the time of consummation of
the Offer, will not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements made therein, in the
light of the circumstances under which they were made, not misleading, provided
that this representation and warranty will not apply to statements or omissions
included in the Offer Documents based upon information furnished to Parent or
Merger Subsidiary in writing by the Company specifically for use therein.
SECTION 5.06. Finders' Fees. Except for Rothschild Inc., whose fees will be
paid by Parent, there is no investment banker, broker, finder or other
intermediary that has been retained by or is authorized to act on behalf of
Parent who might be entitled to any fee or commission upon consummation of the
transactions contemplated by this Agreement.
SECTION 5.07. Parent Financing Agreements. Parent has delivered to the
Company true and correct copies of the executed underwriting agreement between
25
Parent, a subsidiary of Parent and NM Rothschild & Sons Limited, dated as of
June 9, 1999 (the "PARENT UNDERWRITING AGREEMENT"), the circular referred to
therein in substantially the form to be sent to Parent's shareholders (the
"CIRCULAR") and the executed loan agreement between Parent, certain subsidiaries
of Parent, Barclays Capital and HSBC Investment Bank plc, as arrangers, and the
banks listed therein, dated as of June 9, 1999 (the "PARENT LOAN AGREEMENT" and
together with the Parent Underwriting Agreement, the "FINANCING AGREEMENTS").
The financing to be provided under the Financing Agreements is referred to
herein as the "FINANCING." The aggregate proceeds of the Financing will be in an
amount sufficient to acquire all the Shares in the Offer and the Merger, and to
pay all related fees and expenses. As of the date hereof, Parent knows of no
facts or circumstances that are reasonably likely to result in any of the
conditions set forth in the Financing Agreements not being satisfied.
ARTICLE 6
COVENANTS OF THE COMPANY
SECTION 6.01. Conduct of the Company. The Company covenants and agrees
that, from the date hereof until the Effective Time, except as expressly
provided otherwise in this Agreement (or except as disclosed in writing to
Parent prior to the date hereof), or as reasonably necessary for the Company to
fulfill its obligations hereunder, the Company and its subsidiaries shall
conduct their business in the ordinary course consistent with past practices and
shall use their reasonable best efforts to preserve intact their business
organizations and relationships with third parties and to keep available the
services of their present officers and employees. Without limiting the
generality of the foregoing, and except as otherwise contemplated hereby, from
the date hereof until the Effective Time:
(a) the Company will not adopt or propose any change in its certificate of
incorporation or any material change in its bylaws;
(b) the Company will not, and will not permit any of its subsidiaries to,
adopt a plan or agreement of complete or partial liquidation, dissolution,
merger, consolidation, restructuring, recapitalization or other material
reorganization of the Company or any of its subsidiaries (other than a
liquidation or dissolution of any such subsidiary, a merger or consolidation
between wholly-owned subsidiaries of the Company or of any such wholly-owned
subsidiary into the Company);
26
(c) the Company will not, and will not permit any of its subsidiaries to,
make any equity investment in or acquisition of any business of any person or
any material amount of assets, except (i) for any capital expenditure permitted
by Section 6.01(h), (ii) for equity investment in any wholly-owned subsidiary of
the Company or (iii) in the ordinary course of business consistent with past
practices;
(d) the Company will not, and will not permit any of its subsidiaries to,
sell, lease, license or otherwise dispose of any assets in an amount that would
be material to the Company and its subsidiaries, taken as a whole, except (i)
pursuant to existing contracts or commitments or (ii) in the ordinary course of
business consistent with past practices;
(e) the Company will not, and will not permit any of its subsidiaries to,
declare, set aside or pay any dividend or other distribution payable in cash,
stock or property with respect to its capital stock other than (i) dividends or
other distributions paid by any of its subsidiaries to the Company or any other
subsidiary of the Company and (ii) dividends payable in accordance with the
terms of the Preferred Shares;
(f) the Company will not, and will not permit any of its subsidiaries to,
issue, sell, transfer, pledge or dispose of any shares of, or securities
convertible into or exchangeable for, or options, warrants, calls, commitments
or rights of any kind to acquire, any shares of capital stock of any class or
series of the Company or its subsidiaries, other than (i) issuances pursuant to
the exercise of options under the Option Plans described in Section 4.05,
outstanding on the date hereof, (ii) issuances pursuant to the conversion of the
Preferred Shares and the Convertible Notes outstanding on the date hereof and
(iii) issuances by any of its subsidiaries to the Company or any other
subsidiary of the Company;
(g) the Company will not, and will not permit any of its subsidiaries to,
redeem, purchase or otherwise acquire directly or indirectly any of the
Company's capital stock;
(h) the Company will not, and will not permit any of its subsidiaries to,
make or commit to make any capital expenditure, except in the ordinary course of
business or pursuant to the 1999 budget made available to Parent;
(i) the Company will not, and will not permit any of its subsidiaries to,
(i) incur or assume any long-term or short-term debt or issue any debt
securities, except for borrowings under existing lines of credit in the ordinary
course of business consistent with past practice; (ii) assume, guarantee,
endorse or otherwise become liable or responsible (whether directly,
contingently or otherwise) for the obligations of any other person, except in
the ordinary course of
27
business consistent with past practice, and except for obligations of the wholly
owned subsidiaries of the Company; (iii) make any loans, advances or capital
contributions to, or investment in, any other person, except in the ordinary
course of business consistent with past practice and except to wholly owned
subsidiaries of the Company or to the Company; (iv) pledge or otherwise encumber
shares of capital stock of the Company or its subsidiaries; or (v) mortgage or
pledge any of its material assets, tangible or intangible, or create any
material Lien thereupon, except in the ordinary course of business consistent
with past practice;
(j) except as may be required by law or as contemplated by this Agreement
or as required by existing agreements or arrangements, the Company will not, and
will not permit any of its subsidiaries to, increase in any manner the
compensation or benefits under the Benefit Plans of any director, officer or
employee or pay any benefit not required by any plan and arrangement as in
effect as of the date hereof (including, without limitation, the granting of
stock appreciation rights or performance units), in each case other than in the
ordinary course of business consistent with past practice;
(k) the Company will not, and will not permit any of its subsidiaries to,
enter into any material contract, agreement, commitment or transaction, other
than in the ordinary course of business consistent with past practice;
(l) except as may be required as a result of a change in law or in GAAP,
the Company will not, and will not permit any of its subsidiaries to, change
materially any of the accounting principles or practices used by it;
(m) the Company will not, and will not permit any of its subsidiaries to,
revalue any material assets (including, without limitation, writing down the
value of inventory or writing-off notes or accounts receivable) other than in
the ordinary course of business consistent with past practice or as required by
GAAP;
(n) the Company will not, and will not permit any of its subsidiaries to,
make or revoke any tax election, or settle or compromise any tax liability, or
change (or make a request to any taxing authority to change) any material aspect
of its method of accounting for tax purposes, in each case other than in the
ordinary course of business consistent with past practice;
(o) the Company will not, and will not permit any of its subsidiaries to,
pay, discharge or satisfy any claims, liabilities or obligations (absolute,
accrued, asserted or unasserted, contingent or otherwise), other than in the
ordinary and usual course of business consistent with past practice or waive the
benefits of, or agree to modify in any manner, any confidentiality, standstill
or similar agreement to which the Company or any of its subsidiaries is a party;
28
(p) the Company will not, and will not permit any of its subsidiaries to,
settle or compromise any pending or threatened suit, action or claim relating to
the transactions contemplated hereby;
(q) the Company will not, and will not permit any of its subsidiaries to,
enter into any agreement that limits or otherwise restricts the Company or any
of its subsidiaries or any successor thereto or that could, after the Effective
Time, limit or restrict the Surviving Corporation and its affiliates (including
Parent) or any successor thereto, from engaging or competing in any line of
business or in any geographic area;
(r) the Company will not, and will not permit any of its subsidiaries to,
agree or commit to do any of the foregoing; and
(s) the Company will not, and will not permit any of its subsidiaries to
take any action that would make any representation and warranty of the Company
hereunder inaccurate in any material respect at, or as of any time prior to, the
Effective Time.
SECTION 6.02. Stockholder Meetings; Proxy Materials. (a) Unless Delaware
Law does not require a vote of stockholders of the Company for consummation of
the Merger, the Company shall cause a meeting of its stockholders (the
"STOCKHOLDER MEETING") to be duly called and held as soon as reasonably
practicable after consummation of the Offer for the purpose of voting on the
approval and adoption of this Agreement and the Merger (the "STOCKHOLDER
APPROVAL"). Subject to Section 6.04(b), the Board of Directors of the Company
shall recommend approval and adoption of this Agreement and the Merger by the
Company's stockholders. In connection with the Stockholder Meeting, the Company
(x) will promptly prepare and file with the SEC, will use its reasonable best
efforts to have cleared by the SEC and will thereafter mail to its stockholders
as promptly as practicable the Company Proxy Statement and all other proxy
materials for such meeting, (y) will use its reasonable best efforts to obtain
the Stockholder Approval and (z) will otherwise comply with all legal
requirements applicable to such meeting, in each case except if the Board of
Directors of the Company withdraws or modifies its approval or recommendation of
this Agreement and the Merger pursuant to Section 6.04(b). If after consummation
of the Offer, Parent, Merger Subsidiary or any other subsidiary of Parent shall
beneficially own at least 90% of the outstanding Shares of each class, the
parties hereto agree to take all necessary and appropriate action to cause the
Merger (or, at Parent's option, a merger on the same terms as the Merger except
that the Merger Subsidiary will be the Surviving Corporation) to be effective as
soon as practicable after the acceptance for payment and purchase of Shares
29
pursuant to the Offer without a meeting of stockholders of the Company in
accordance with Delaware Law.
(b) Parent shall, as soon as practicable following the execution and
delivery of this Agreement, duly call, give notice of, convene and hold an
extraordinary general meeting of its shareholders for the purpose of approving
this Agreement and the transactions contemplated by this Agreement. Each
document filed by Parent with the London Stock Exchange and/or sent to the
shareholders of Parent in connection with such extraordinary general meeting
including, without limitation, the Circular and any amendments or supplements
thereto (the "PARENT PROXY MATERIALS") will, when so filed or dispatched, comply
as to form and content in all material respects with the requirements of
applicable law and the rules of the London Stock Exchange. Prior to filing any
Parent Proxy Material with the London Stock Exchange or sending the same to the
shareholders of Parent, Parent shall have given the Company a reasonable
opportunity to review and give comments on such material. No information
relating to the Company shall be included in the Parent Proxy Materials without
the prior consent of the Company, such consent not to be unreasonably withheld
or delayed. The Company agrees to provide such information relating to the
Company as is reasonably necessary to include in the Parent Proxy Materials.
SECTION 6.03. Access to Information. To the extent permitted by applicable
law, from the date hereof until the Effective Time, the Company will give
Parent, its counsel, financial advisors, auditors and other authorized
representatives reasonable access during normal business hours to the offices,
properties, books and records of the Company and its subsidiaries, will furnish
to Parent, its counsel, financial advisors, auditors and other authorized
representatives such financial and operating data and other information as such
persons may reasonably request and will instruct the Company's employees,
counsel and financial advisors to cooperate with Parent in its investigation of
the business of the Company and its subsidiaries. The foregoing information
shall be held in confidence to the extent required by, and in accordance with,
the provisions of the letter agreement dated March 10, 1999 between Parent and
CIBC Xxxxxxxxxxx Corp. as the Company's representative (the "CONFIDENTIALITY
AGREEMENT") which shall continue in effect.
SECTION 6.04. Other Offers, etc. (a) From the date hereof until the
termination hereof, the Company will not and will cause its subsidiaries and the
officers, directors, employees and other agents and advisors of the Company and
its subsidiaries not to, directly or indirectly, (i) take any action to solicit,
initiate or encourage any Acquisition Proposal or (ii) furnish information to or
participate in any discussions or negotiations with any person that has made or
indicated an interest in making an Acquisition Proposal; provided, however, that
nothing
30
contained in this Section 6.04(a) shall prohibit the Board of Directors of the
Company from furnishing information to, or entering into discussions or
negotiations with, any person that has made an unsolicited bona fide written
Acquisition Proposal if, and only to the extent that (A) the acceptance for
payment of Shares pursuant to the Offer shall not have occurred, (B) the Board
of Directors of the Company, based on advice of outside legal counsel,
determines in good faith that failure to take such action would present a
reasonable probability of violating its fiduciary duties under applicable law,
and (C) prior to taking such action, the Company (x) provides reasonable notice
to Parent to the effect that it intends to take such action and (y) receives
from such person an executed confidentiality agreement in reasonably customary
form and in any event containing terms at least as stringent as those contained
in the Confidentiality Agreement between Parent and the Company. Prior to
providing any information to or entering into discussions or negotiations with
any person in connection with an Acquisition Proposal by such person, the
Company shall notify Parent of any such Acquisition Proposal (including, without
limitation, the material terms and conditions thereof and the identity of the
person making it) as promptly as practicable (but in no case later than one
business day) after its receipt thereof, and shall thereafter inform Parent on a
prompt basis of the status of any discussion or negotiations with such third
party and any material changes to the terms and conditions of such Acquisition
Proposal, and shall promptly give Parent a copy of any information delivered to
such person which has not previously been reviewed by Parent. The Company will,
and will cause its subsidiaries and the officers, directors, employees and other
agents and advisors of the Company and its subsidiaries to, immediately cease
and cause to be terminated all discussions and negotiations, if any, that have
taken place prior to the date hereof with any parties with respect to any
Acquisition Proposal. Nothing contained in this Agreement shall prevent the
Board of Directors of the Company from complying with Rule 14e-2 under the 1934
Act with respect to any Acquisition Proposal. For purposes of this Agreement,
"ACQUISITION PROPOSAL" means any offer or proposal for a merger or other
business combination transaction involving the acquisition of all or a material
portion of the equity interest in, or all or a material portion of the assets
of, the Company and its subsidiaries, other than the transactions contemplated
by this Agreement.
(b) The Board of Directors of the Company may not withdraw or modify, or
propose to withdraw or modify, in a manner adverse to Parent, its approval or
recommendation of this Agreement, the Offer or the Merger unless the Board of
Directors of the Company, based on advice of its outside legal counsel,
determines in good faith that failure to do so would present a reasonable
probability of violating its fiduciary duties under applicable law; provided,
however, the Board of Directors of the Company may not approve or recommend (and
in connection therewith, withdraw or modify its approval or recommendation
31
of this Agreement, the Offer or the Merger) an Acquisition Proposal unless (i)
the Company has complied with the terms of this Section 6.04, including, without
limitation, the requirement in Section 6.04(a) that it notify Parent promptly
after its receipt of any Acquisition Proposal, (ii) the Acquisition Proposal is
a Superior Proposal and (iii) it determines in good faith (based on advice of
its outside legal counsel) that the failure to do so would present a reasonable
probability of violating its fiduciary duties under applicable law. For purposes
of this Agreement, "SUPERIOR PROPOSAL" means any Acquisition Proposal (A)
involving the acquisition of the entire equity interest in, or all or
substantially all of the assets and liabilities of, the Company and its
subsidiaries and (B) with respect to which the Board of Directors of the Company
(x) determines in good faith that such proposal, if accepted, is reasonably
likely to be consummated, taking into account all legal, financial, regulatory
and other aspects of the proposal and the person making the proposal and (y)
believes in good faith, based on the advice of its financial advisors, that such
proposal would, if consummated, result in a transaction more favorable to the
Company's stockholders from a financial point of view than the Offer and the
Merger.
ARTICLE 7
COVENANTS OF PARENT
SECTION 7.01. Obligations of Merger Subsidiary. Parent will take all action
necessary to cause Merger Subsidiary to perform its obligations under this
Agreement and to consummate the Offer and the Merger on the terms and conditions
set forth in this Agreement.
SECTION 7.02. Voting of Shares. Parent agrees to vote all Shares
beneficially owned by it in favor of adoption of this Agreement at the
Stockholder Meeting (if any).
SECTION 7.03. Director and Officer Liability. Parent agrees that at all
times after the Effective Time, it shall indemnify each person who is now, or
has been at any time prior to the date hereof, a director, officer or manager of
the Company or of any of its subsidiaries (individually an "INDEMNIFIED PARTY"
and collectively the "INDEMNIFIED PARTIES"), to the fullest extent permitted by
law, with respect to any claim, liability, loss, damage, judgment, fine,
penalty, amount paid in settlement or compromise, cost or expense (including
reasonable fees and expenses of legal counsel), whenever asserted or claimed,
based in whole or in part on, or arising in whole or in part out of, any facts
or circumstances occurring at or prior to the Effective Time whether commenced,
asserted or claimed before
32
or after the Effective Time, including liability arising under the 1933 Act, the
1934 Act or state law. Parent shall, or shall cause the Surviving Corporation
to, maintain in effect for not less than six years after the Effective Time the
current policies of directors' and officers' liability insurance maintained by
the Company and its subsidiaries on the date hereof (provided that Parent may
substitute therefor policies with reputable and financially sound carriers
having at least the same coverage and amounts thereof and containing terms and
conditions which are no less advantageous to the persons currently covered by
such policies as the insured) with respect to facts or circumstances occurring
at or prior to the Effective Time to the extent that such liability insurance
can be maintained annually at a cost to Parent not greater than 200 percent of
the current annual premium for the current Company directors' and officers'
liability insurance; provided that if such insurance cannot be so maintained or
obtained at such costs, Parent shall maintain or obtain as much of such
insurance as can be so maintained or obtained at a cost equal to 200 percent of
the current annual premium of the Company for such insurance. Parent agrees to
pay all expenses (including fees and expenses of counsel) that may be incurred
by any Indemnified Party in successfully enforcing the indemnity or other
obligations under this Section 7.03. The rights under this Section 7.03 are in
addition to rights that an Indemnified Party may have under the certificate of
incorporation, bylaws, or other similar organizational documents of the Company
or any of its subsidiaries or the Delaware Law. The rights under this Section
7.03 shall survive consummation of the Merger and are expressly intended to
benefit each Indemnified Party. Parent agrees to cause the Surviving Corporation
and any of its subsidiaries (or their successors) to maintain in effect for a
period of six years provisions in its certificate of incorporation or bylaws or
similar organizational documents providing for indemnification and exculpation
of Indemnified Parties, with respect to facts or circumstances occurring at or
prior to the Effective Time, to the extent set forth in the Company's
certificate of incorporation and bylaws as of the date hereof; provided that the
foregoing shall not in any way restrict or preclude any sale, liquidation or
dissolution of any subsidiary of Parent at any time after the Effective Time.
SECTION 7.04. Employee Benefits. Subject to Section 2.05(a), following the
Effective Time, Parent shall, or shall cause the Surviving Corporation to (i)
honor all obligations under employment agreements of the Company and (ii) pay
all benefits (including any vacation, personal and sick days) accrued through
the Effective Time under employee benefit plans, programs, policies and
arrangements of the Company (including any rabbi trust agreement) in accordance
with the terms thereof. Parent also agrees to provide, or cause the Surviving
Corporation to provide, employees of the Company and its subsidiaries who
continue to be employed by the Company or any of its subsidiaries as of the
Effective Time ("CONTINUING EMPLOYEES") for a period of not less than one year
33
following the Effective Time with compensation and benefits which, in the
aggregate, are no less favorable than either the compensation and benefits
provided to such employees immediately prior to the Effective Time or the
compensation and benefits provided to similarly situated employees of Parent or
any affiliate of Parent. Notwithstanding the foregoing, nothing herein shall
prevent Parent from terminating the employment of any Continuing Employee
following the Effective Time, provided however that for a period of one year
following the Effective Time, Parent shall, or shall cause the Surviving
Corporation to, establish and maintain a plan to provide severance and
termination benefits to all Continuing Employees which are no less favorable
than the severance and termination benefits provided under the Company's plans
and arrangements in effect as of the date of this Agreement as disclosed to
Parent in writing prior to the date hereof. With respect to medical benefits
provided to Continuing Employees after the Effective Time, Parent agrees that it
will, or it will cause the Surviving Corporation and its subsidiaries to, waive
waiting periods and pre-existing condition requirements (to the extent waived
under the Company's plans), and will give Continuing Employees credit for any
copayments and deductibles actually paid by such employees under the Company's
medical plans during the calendar year in which the Effective Time occurs. In
addition, service with the Company shall be recognized for purposes of
eligibility under the welfare plans in which Continuing Employees participate as
well as for purposes of the programs or policies for vacation pay and sick pay
in which Continuing Employees participate.
ARTICLE 8
COVENANTS OF PARENT AND THE COMPANY
SECTION 8.01. Notices of Certain Events. (a) The Company and Parent shall
promptly notify each other of:
(i) any notice or other communication from any person alleging that
the consent of such person is or may be required in connection with the
transactions contemplated by this Agreement; and
(ii) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions
contemplated by this Agreement.
(b) The Company shall promptly notify Parent of:
34
(i) any actions, suits, claims, investigations or proceedings
commenced or, to its knowledge threatened against, relating to or involving
or otherwise affecting the Company or any of its subsidiaries which relate
to the consummation of the transactions contemplated by this Agreement; and
(ii) the occurrence of any event or condition that becomes known to an
executive officer of the Company and causes such officer to believe that
the condition set forth in paragraph (c) of Annex I hereto will not be met.
(c) Parent shall promptly notify the Company of any actions, suits, claims,
investigations or proceedings commenced or, to its knowledge threatened against,
relating to or involving or otherwise affecting Parent or any of its
subsidiaries which relate to the consummation of the transactions contemplated
by this Agreement.
SECTION 8.02. Reasonable Best Efforts. Subject to the terms and conditions
of this Agreement, each party will 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 the Merger and the other transactions contemplated by this Agreement.
In furtherance and not in limitation of the foregoing, each party hereto agrees
to (i) make an appropriate filing of a Notification and Report Form pursuant to
the HSR Act and (ii) complete its portion of, and jointly file, a Notification
under the Exon-Xxxxxx Provision with respect to the transactions contemplated
hereby as promptly as practicable and in any event within five business days
after the date hereof and to supply as promptly as practicable any additional
information and documentary material that may be requested pursuant to the HSR
Act and the Exon-Xxxxxx Provision, as the case may be, and to take all other
actions necessary to cause the expiration or termination of the applicable
waiting periods as soon as practicable.
SECTION 8.03. Cooperation. Without limiting the generality of Section 8.02,
Parent and the Company shall cooperate (i) in connection with the preparation of
the Company Disclosure Documents, the Offer Documents and the Circular, (ii) in
determining whether any action by or in respect of, or filing with, any
governmental body, agency or official, or authority is required, or any actions,
consents, approvals or waivers are required to be obtained from parties to any
material contracts, in connection with the consummation of the transactions
contemplated by this Agreement, and (iii) in seeking any such actions, consents,
approvals or waivers or making any such filings, furnishing information required
in connection therewith or with the Company Disclosure Documents, the Offer
35
Documents or the Circular and seeking timely to obtain any such actions,
consents, approvals or waivers.
SECTION 8.04. Public Announcements. So long as this Agreement is in effect,
Parent and the Company will consult with each other before issuing any press
release or other public statement with respect to this Agreement or the
transactions contemplated hereby and, except as may be required by applicable
law, court process or any listing agreement with or rule of any national
securities exchange or the London Stock Exchange, will not issue any such press
release or other public statement prior to such consultation and providing the
other party with a reasonable opportunity to comment thereon.
SECTION 8.05. Further Assurances. At and after the Effective Time, the
officers and directors of the Surviving Corporation will be authorized to
execute and deliver, in the name and on behalf of the Company or Merger
Subsidiary, any deeds, bills of sale, assignments or assurances and to take and
do, in the name and on behalf of the Company or Merger Subsidiary, any other
actions and things to vest, perfect or confirm of record or otherwise in the
Surviving Corporation any and all right, title and interest in, to and under any
of the rights, properties or assets of the Company acquired or to be acquired by
the Surviving Corporation as a result of, or in connection with, the Merger.
ARTICLE 9
CONDITIONS TO THE MERGER
SECTION 9.01. Conditions to the Obligations of Each Party. The obligations
of the Company, Parent and Merger Subsidiary to consummate the Merger are
subject to the satisfaction (or waiver by the party for whose benefit the
applicable condition exists) of the following conditions:
(a) if required by Delaware Law, this Agreement shall have been approved
and adopted by the stockholders of the Company in accordance with such Law;
(b) no provision of any applicable U.S. or U.K. law or regulation and no
judgment, injunction, order or decree of a U.S. or U.K. court of competent
jurisdiction shall prohibit or enjoin the consummation of the Merger; and
(c) Merger Subsidiary shall have purchased Shares pursuant to the Offer.
36
ARTICLE 10
TERMINATION
SECTION 10.01. Termination. This Agreement may be terminated and the Merger
may be abandoned at any time prior to the Effective Time (notwithstanding any
approval of this Agreement by the stockholders of the Company or Parent):
(a) by mutual written agreement of the Company and Parent;
(b) by either the Company or Parent,
(i) if the Offer has not been consummated on or before the 60th
U.S. business day after commencement of the Offer (or if the period of
time for any applicable review process under the Exon-Xxxxxx Provision
has not expired by such date, then the date on which the Exon-Xxxxxx
review process is completed), provided that the right to terminate
this Agreement pursuant to this Section 10.01(b)(i) shall not be
available to any party whose breach of any provision of this Agreement
results in the failure of the Offer to be consummated by such time; or
(ii) if consummation of the Merger would violate or be prohibited
by any U.S. or U.K. law or regulation or if any injunction, judgment,
order or decree of a U.S. or U.K. court of competent jurisdiction
enjoining the Company or Parent from consummating the Merger is
entered and such injunction, judgment, order or decree shall become
final and nonappealable;
(c) by Parent, if prior to the purchase of any Shares pursuant to the
Offer,
(i) the Board of Directors of the Company shall have failed to
recommend or withdrawn or materially modified in a manner adverse to
Parent its approval or recommendation of the Offer and the Merger, or
(ii) the Company shall have entered into, or shall have publicly
announced its intention to enter into, an agreement with respect to
any Superior Proposal; or
37
(iii) due to the occurrence and continuation of any event that if
occurring after the commencement of the Offer would result in a
failure to satisfy any of the conditions set forth in Annex I hereto,
Parent, Merger Subsidiary or any of their affiliates shall have failed
to commence the Offer on or prior to five U.S. business days following
the date of the initial public announcement of the Offer.
(d) by the Company, if, prior to purchase of any Shares pursuant to the
Offer, (A) the Company notifies Parent in writing that it intends to enter into
an agreement with respect to a Superior Proposal in accordance with Section
6.04, provided the Company has complied in all material respects with the
provisions thereof, including the notice provision therein; (B) Parent does not
make, within one business day after receipt of the Company's notification
pursuant to clause (A), an offer that the Board of Directors of the Company
determines, in good faith based on the advice of its financial advisors, is at
least as favorable to the Company's stockholders as the Superior Proposal and
(C) prior to or simultaneously with such termination, the Company makes payment
to Parent of the amounts payable pursuant to Section 11.04(b).
The party desiring to terminate this Agreement pursuant to clauses (b), (c) or
(d) shall give written notice of such termination to the other party in
accordance with Section 11.01.
SECTION 10.02. Effect of Termination. If this Agreement is terminated
pursuant to Section 10.01, this Agreement shall become void and of no effect
with no liability on the part of any party hereto, except that (a) the
agreements contained in this Section 10.02 and in Section 11.04 and in the
Confidentiality Agreement shall survive the termination hereof and (b) no such
termination shall relieve any party of any liability or damages resulting from
any willful breach by that party of this Agreement.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission) and
shall be given:
38
if to Parent or Merger Subsidiary, to:
Meggitt PLC
Xxxxx Xxxxx
Xxxxxxxx
Xxxxxxxx Xxxxxx XX00 0XX
Xxxxxx Xxxxxxx
Fax: 00-0-000-000-000
Attention: Xxxxxx X. Xxxxx
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
Attention: Xxxxx X. Xxxxxx
if to the Company, to:
Xxxxxxxxx Corporation
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000-0000
Fax: 000-000-0000
Attention: Xxxxx M.O. Xxxxxxxx
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxxxxxx Xxxxx
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests or other communications shall be deemed received on the date of receipt
by the recipient thereof if received prior to 5 p.m. on any business day in the
place of receipt. Otherwise, any such notice, request or other communication
shall be deemed not to have been received until the next succeeding business day
in the place of receipt.
39
SECTION 11.02. Entire Agreement; Non-Survival of Representations and
Warranties; Third Party Beneficiaries. (a) This Agreement and the
Confidentiality Agreement constitute the entire agreement among the parties with
respect to the subject matter hereof and thereof and supersede all prior
agreements, understandings and negotiations, both written and oral, among the
parties with respect to such subject matter. None of this Agreement, the
Confidentiality Agreement or any other agreement contemplated hereby or thereby
(or any provision hereof or thereof) is intended to confer on any person other
than the parties hereto or thereto any rights or remedies (except that Section
7.03 is intended to confer rights and remedies on the persons specified
therein).
(b) The representations and warranties contained herein or in any schedule,
instrument or other writing delivered pursuant hereto shall not survive the
Effective Time.
SECTION 11.03. Amendments; No Waivers. (a) Any provision of this Agreement
may be amended or waived prior to the Effective Time if, but only if, such
amendment or waiver is in writing and signed, in the case of an amendment, by
the Company and Parent or, in the case of a waiver, by the party against whom
the waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 11.04. Expenses. (a) Except as otherwise specified in this Section
11.04 or agreed in writing by the parties, all costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such cost or expense.
(b) The Company agrees to pay to Parent (by wire transfer of immediately
available funds) an amount equal to
(i) $6.5 million prior to or simultaneously with the termination of
this Agreement as a result of the occurrence of any of the events set forth
in Section 10.01(c)(i), 10.01(c)(ii) or 10.01(d); and
(ii) Parent's and Merger Subsidiary's actual and reasonable
out-of-pocket expenses incurred by Parent or Merger Subsidiary in
connection with this Agreement and the transactions contemplated hereby,
promptly upon receipt of reasonable documentation of such expenses, in
connection
40
with the termination of this Agreement as a result of the occurrence of any
of the following events:
(A) any of the events set forth in Section 10.01(c)(i),
10.01(c)(ii) or 10.01(d) above;
(B) the Minimum Condition not having been met by the expiration
of the Offer as extended pursuant to Section 1.01(a); or
(C) the condition set forth in paragraph (c) of Annex I hereto
not having been met as a result of a breach by the Company of its
representations and warranties set forth in this Agreement; provided
that such breach existed as of the date hereof;
provided that in each of clause (B) and (C), all of the other conditions
set forth in Annex I shall have been satisfied (but for those conditions
which are not satisfied in the case of clause (C) due to or resulting from
the facts constituting such breach) and Parent and Merger Subsidiary are
not in material breach of any of their representations and warranties or
covenants set forth in this Agreement.
Acceptance by Parent of any amounts payable pursuant to Section 11.04(b) shall
constitute conclusive evidence that this Agreement has been validly terminated.
SECTION 11.05. Successors and Assigns. The provisions of this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns; provided that no party may
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the written consent of the other parties hereto.
SECTION 11.06. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware, without
regard to the conflict of laws rules of such state.
SECTION 11.07. Jurisdiction. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby may be brought
against any of the parties in any federal court located in the State of Delaware
or any Delaware state court, and each of the parties hereto hereby consents to
the exclusive jurisdiction of such courts (and of the appropriate appellate
courts therefrom) in any such suit, action or proceeding and irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such suit, action or proceeding
in any such court
41
or that any such suit, action or proceeding which is brought in any such court
has been brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court. Without limiting the generality of
the foregoing, each party hereto agrees that service of process upon such party
as provided in Section 11.01 shall be deemed effective service of process upon
such party.
SECTION 11.08. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 11.09. Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
SECTION 11.10. Captions. The captions herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof.
SECTION 11.11. Specific Performance. The parties hereto agree that
irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties (a) will
waive, in any action for specific performance, the defense of adequacy of a
remedy at law and the posting of any bond in connection therewith and (b) shall
be entitled to an injunction or injunctions to prevent breaches of this
Agreement or to enforce specifically the terms and provisions of this Agreement
in any federal court located in the State of Delaware or any Delaware state
court, in addition to any other remedy to which they are entitled at law or in
equity.
SECTION 11.12. Joint and Several Liability. Parent and Merger Subsidiary
hereby agree that they will be jointly and severally liable for all covenants,
agreements, obligations and representations and warranties made by either of
them in this Agreement.
SECTION 11.13. Definitions and Usage. (a) For purposes of this Agreement:
42
"AFFILIATE" means, with respect to any person, any other person directly or
indirectly controlling, controlled by, or under common control with such person.
"BUSINESS DAY" means a day on which banks are open for business in both
London and New York.
"MATERIAL ADVERSE EFFECT" means, with respect to any person, a material
adverse effect on the business, assets, financial condition or results of
operations of such person and its subsidiaries, taken as a whole, except any
such effect resulting from or arising in connection with (i) this Agreement or
the transactions contemplated hereby, (ii) changes or conditions affecting the
commercial or military aerospace industries generally or (iii) changes in
economic, regulatory or political conditions generally.
"PERSON" means an individual, corporation, partnership, limited liability
company, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"SUBSIDIARY" means, with respect to any person, any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at any time directly or indirectly owned by such person.
"U.S. BUSINESS DAY" shall have the meaning ascribed to it in Schedule 14D
under the 1934 Act.
(b) A reference in this Agreement to any statute shall be to such statute
as amended from time to time, and to the rules and regulations promulgated
thereunder.
(c) Each of the following terms is defined in the Section set forth
opposite such term:
TERM SECTION
---- --------
1933 Act.................................................................. 4.03
1934 Act.................................................................. 4.03
Acquisition Proposal...................................................... 6.04
Balance Sheet............................................................. 4.08
Balance Sheet Date........................................................ 4.08
Certificates.............................................................. 2.03
Circular.................................................................. 5.07
Code...................................................................... 2.03
43
TERM SECTION
---- -------
Common Share Price........................................................ 1.01
Common Shares............................................................. 1.01
Common Stock.............................................................. 4.05
Company................................................................... preamble
Company Disclosure Documents.............................................. 4.09
Company Financial Advisors................................................ 1.02
Company Proxy Statement................................................... 4.09
Confidentiality Agreement................................................. 6.03
Continuing Directors...................................................... 1.03
Delaware Law.............................................................. 1.02
Effective Time............................................................ 2.01
Exchange Agent............................................................ 2.03
Exon-Xxxxxx Provision..................................................... 5.03
GAAP...................................................................... 4.08
HSR Act................................................................... 4.03
Lien...................................................................... 4.04
Merger.................................................................... 2.01
Merger Consideration...................................................... 2.02
Merger Subsidiary......................................................... preamble
Minimum Condition......................................................... 1.01
Offer..................................................................... 1.01
Offer Documents........................................................... 1.01
Option Plans.............................................................. 4.05
Parent.................................................................... preamble
Preferred Shares.......................................................... 1.01
Rights.................................................................... 1.01
Rights Agreement.......................................................... 1.01
Schedule 14D-1............................................................ 1.01
Schedule 14D-9............................................................ 1.02
SEC....................................................................... 1.01
SEC Documents............................................................. 4.07
Shares.................................................................... 1.01
Stockholder Approval...................................................... 6.02
Stockholder Meeting....................................................... 6.02
Stock Options ............................................................ 2.05
Superior Proposal......................................................... 6.04
Surviving Corporation..................................................... 2.01
Taxes..................................................................... 4.12
44
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
XXXXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
MEGGITT PLC
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Xxxxxxx X. Xxxxxx
Chief Executive Officer
MEGGITT ACQUISITION INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Xxxxxxx X. Xxxxxx
President
45
ANNEX I
Notwithstanding any other provision of the Offer, Merger Subsidiary shall not be
required to accept for payment or pay for any Shares, and may, subject to the
terms of this Agreement, terminate the Offer, if (i) at the expiration of the
Offer, (A) the Minimum Condition has not been satisfied, (B) the applicable
waiting periods under the HSR Act shall not have expired or been terminated, (C)
the period of time for any applicable review process under the Exon-Xxxxxx
Provision shall not have expired or the President of the United States shall
have made a determination to block or prevent the consummation of the Offer or
the Merger or (D) the Merger Agreement and the transactions contemplated by the
Merger Agreement shall not have been approved by the holders of the ordinary
shares of Parent, or (ii) at any time on or after June 9, 1999 and prior to the
acceptance for payment of Shares, any of the following conditions exist:
(a) there shall be (i) pending any suit, action or proceeding before a U.S.
or U.K. court of competent jurisdiction, or (ii) threatened any suit, action or
proceeding by any U.S. or U.K. governmental agency, in each case, that is
reasonably likely to have a material adverse effect on the Company or, as a
result of the transactions contemplated by the Merger Agreement, on Parent; or
(b) there shall be any U.S. or U.K. statute, rule, regulation, judgment,
order or injunction enacted, entered, enforced, promulgated or deemed applicable
to the Offer or the Merger, other than the application to the Offer or the
Merger of applicable waiting periods under the HSR Act and the review process
under the Exon-Xxxxxx Provision, that is reasonably likely to have a material
adverse effect on the Company or, as a result of the transactions contemplated
by the Merger Agreement, on Parent; or
(c) (i) the representations and warranties of the Company set forth in the
Merger Agreement shall not be true and accurate (without giving effect to any
limitation as to "materiality" or "material adverse effect" set forth therein)
as of the date of consummation of the Offer as though made on or as of such date
(except for those representations and warranties that address matters only as of
a particular date or only with respect to a specific period of time which need
only be true and accurate as of such date or with respect to such period) or
(ii) the Company shall have failed to perform or comply with any of its
obligations, agreements or covenants required by the Merger Agreement, except
where the failure of such representations and warranties to be true and accurate
or the failure to perform or comply with such covenants, individually or in the
aggregate, do not have and are not reasonably likely to have a material adverse
effect on the Company; or
(d) there shall have occurred (i) any general suspension of trading in, or
limitation of prices for, securities on the New York Stock Exchange or the
London Stock Exchange, for a period in excess of three days (excluding
suspensions or limitations resulting solely from physical damage or
interferences with such exchanges not related to market conditions), (ii) a
declaration of a banking moratorium or any suspension of payments in respect of
banks in the United States or the United Kingdom (whether or not mandatory), or
(iii) any decline in either the Dow Xxxxx Industrial Average, the Standard &
Poor's Index of 500 Industrial Companies or Financial Times Stock Exchange 100
by an amount in excess of 30% measured from the close of business on the date of
this Agreement; or
(e) this Agreement shall have been terminated in accordance with its terms.
The foregoing conditions are for the sole benefit of Parent and Merger
Subsidiary and may, subject to the terms of this Agreement, be waived by Parent
and Merger Subsidiary in whole or in part at any time and from time to time in
their discretion. The failure by Parent or Merger Subsidiary at any time to
exercise any of the foregoing rights shall not be deemed a waiver of any right
and each such right shall be deemed an ongoing right which may be asserted at
any time and from time to time.
Annex I - 2
