Exhibit 2.1
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
by and among
MW HOLDING CORPORATION,
XXXXXXX MERGER SUB CORPORATION,
XXXXXXX MERGER SUB CORPORATION,
THE XXXX CORPORATION
AND
WESTVACO CORPORATION
Dated as of August 28, 2001
TABLE OF CONTENTS
ARTICLE I
THE MERGERS
Page
SECTION 1.1 The Xxxx Merger......................................................2
SECTION 1.2 The Westvaco Merger..................................................2
SECTION 1.3 Closing..............................................................2
SECTION 1.4 Effective Time.......................................................3
SECTION 1.5 Effects of the Mergers...............................................3
ARTICLE II
CERTAIN GOVERNANCE MATTERS
SECTION 2.1 Parent Name Change...................................................3
SECTION 2.2 Parent Board of Directors; Committees; CEO...........................3
SECTION 2.3 Corporate Headquarters...............................................4
SECTION 2.4 Integration..........................................................4
SECTION 2.5 Charters and By-laws of the Surviving Corporations...................5
SECTION 2.6 Directors of Surviving Corporations..................................5
SECTION 2.7 Stockholder Rights Plan..............................................5
SECTION 2.8 Trading Symbol.......................................................5
ARTICLE III
EFFECTS OF THE MERGERS ON THE CAPITAL STOCK
OF XXXX AND WESTVACO; EXCHANGE OF CERTIFICATES
SECTION 3.1 Effect on Capital Stock of Xxxx and Xxxxxxx Merger Sub...............6
SECTION 3.2 Effect on Capital Stock of Westvaco and Xxxxxxx Merger Sub...........8
SECTION 3.3 Exchange of Shares and Certificates..................................9
SECTION 3.4 Certain Adjustments.................................................13
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 Representations and Warranties of Xxxx..............................13
SECTION 4.2 Representations and Warranties of Westvaco..........................27
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
SECTION 5.1 Conduct of Business.................................................39
SECTION 5.2 No Solicitation by Xxxx.............................................44
SECTION 5.3 No Solicitation by Westvaco.........................................46
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1 Preparation of the Form S-4 and the Joint Proxy Statement;
Stockholders Meetings...............................................48
SECTION 6.2 Access to Information; Confidentiality..............................49
SECTION 6.3 Reasonable Best Efforts.............................................49
SECTION 6.4 Indemnification, Exculpation and Insurance..........................50
SECTION 6.5 Fees and Expenses...................................................51
SECTION 6.6 Public Announcements................................................52
SECTION 6.7 Affiliates..........................................................52
SECTION 6.8 NYSE Listing........................................................52
SECTION 6.9 Tax Treatment.......................................................52
SECTION 6.10 Takeover Statutes..................................................53
SECTION 6.11 Conveyance Taxes...................................................53
SECTION 6.12 Employee Benefits..................................................53
SECTION 6.13 Consents of Accountants............................................54
SECTION 6.14 Rights Agreements..................................................55
SECTION 6.15 Transfer Statutes..................................................55
SECTION 6.16 Section 16(b)......................................................55
SECTION 6.17 Payment of Dividends...............................................55
SECTION 6.18 Employment Agreements..............................................56
SECTION 6.19 Share Repurchase...................................................56
SECTION 6.20 Parent Taxable Year................................................56
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.1 Conditions to Each Party's Obligation to Effect The Merger..........56
SECTION 7.2 Conditions to Obligations of Westvaco...............................57
SECTION 7.3 Conditions to Obligations of Xxxx...................................58
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.1 Termination.........................................................59
SECTION 8.2 Effect of Termination...............................................61
SECTION 8.3 Amendment...........................................................62
SECTION 8.4 Extension; Waiver...................................................62
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1 Nonsurvival of Representations and Warranties.......................63
SECTION 9.2 Notices.............................................................63
SECTION 9.3 Definitions.........................................................64
SECTION 9.4 Interpretation......................................................65
SECTION 9.5 Counterparts........................................................65
SECTION 9.6 Entire Agreement; No Third-Party Beneficiaries......................65
SECTION 9.7 Governing Law.......................................................66
SECTION 9.8 Assignment..........................................................66
SECTION 9.9 Consent to Jurisdiction.............................................66
SECTION 9.10 Headings, etc......................................................66
SECTION 9.11 Severability.......................................................66
EXHIBITS
EXHIBIT A --Form of Certificate of Incorporation and By-laws of Parent
EXHIBIT B --Certain Officers
EXHIBIT C --Form of Rights Agreement
EXHIBIT D --Form of Affiliate Rule 145 Letter
EXHIBIT E --Form of Employment Agreement for Xxxxxx X. Xxxxx
EXHIBIT F --Form of Employment Agreement for Xxxx X. Xxxx, Xx.
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of August 28,
2001, by and among MW HOLDING CORPORATION, a Delaware corporation
("Parent"), XXXXXXX MERGER SUB CORPORATION, an Ohio corporation ("Xxxxxxx
Merger Sub"), XXXXXXX MERGER SUB CORPORATION, a Delaware corporation
("Xxxxxxx Merger Sub"), THE XXXX CORPORATION, an Ohio corporation ("Xxxx"),
and WESTVACO CORPORATION, a Delaware corporation ("Westvaco").
W I T N E S S ET H:
WHEREAS, the respective Boards of Directors of Xxxx and
Westvaco deem it advisable and in the best interests of their respective
corporations and stockholders that Xxxx and Westvaco engage in a business
combination in a merger of equals in order to advance the long-term
strategic business interests of Xxxx and Westvaco; and
WHEREAS, Parent is a newly formed corporation all of the
outstanding capital stock of which is owned by Xxxx; and
WHEREAS, Xxxx has caused Parent to form Xxxxxxx Merger
Sub and Xxxxxxx Merger Sub, and all of the outstanding capital stock of
each of Xxxxxxx Merger Sub and Xxxxxxx Merger Sub is owned by Parent; and
WHEREAS, the respective Boards of Directors of Xxxx and
Xxxxxxx Merger Sub have approved this Agreement and the merger of Xxxxxxx
Merger Sub with and into Xxxx with Xxxx continuing as the surviving
corporation (the "Xxxx Merger"), upon the terms and subject to the
conditions set forth in this Agreement; and
WHEREAS, the respective Boards of Directors of Westvaco
and Xxxxxxx Merger Sub have approved this Agreement and the merger of
Xxxxxxx Merger Sub with and into Westvaco with Westvaco continuing as the
surviving corporation (the "Westvaco Merger" and, together with the Xxxx
Merger, the "Mergers"), upon the terms and subject to the conditions set
forth in this Agreement; and
WHEREAS, the respective Boards of Directors of Xxxx and
Westvaco, having determined that the Xxxx Merger, the Westvaco Merger and
the other transactions contemplated hereby are advisable and in the best
interests of their respective corporations and stockholders, have approved
the transactions contemplated by this Agreement; and
WHEREAS, for United States federal income tax purposes,
it is intended that the Xxxx Merger and the Westvaco Merger will each
qualify as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), and that the
Mergers, taken together, will qualify as a transaction described in Section
351 of the Code.
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements set forth herein, the parties agree as
follows:
ARTICLE I
THE MERGERS
SECTION 1.1 The Xxxx Merger.
(a) Upon the terms and subject to the conditions set forth in this
Agreement and in accordance with the Ohio General Corporation Law (the
"OGCL"), Xxxxxxx Merger Sub shall be merged with and into Xxxx at the
Effective Time (as defined in Section 1.4). Following the Effective Time,
the separate corporate existence of Xxxxxxx Merger Sub shall cease, and
Xxxx shall continue as the surviving corporation (the "Xxxx Surviving
Corporation") in the Xxxx Merger and shall succeed to and assume all the
rights, privileges, immunities, properties, powers and franchises of
Xxxxxxx Merger Sub in accordance with the OGCL.
(b) In connection with the Xxxx Merger, Xxxx shall take such
actions as may be necessary to cause Parent to reserve, prior to the Xxxx
Merger, a sufficient number of shares of common stock, par value $0.01 per
share, of Parent ("Parent Common Stock") to permit the issuance of shares
of Parent Common Stock to the holders of common stock, without par value,
of Xxxx (the "Xxxx Common Stock") as of the Effective Time in accordance
with the terms of this Agreement.
SECTION 1.2 The Westvaco Merger.
(a) Upon the terms and subject to the conditions set forth in this
Agreement and in accordance with the Delaware General Corporation Law (the
"DGCL"), Xxxxxxx Merger Sub shall be merged with and into Westvaco at the
Effective Time. Following the Effective Time, the separate corporate
existence of Xxxxxxx Merger Sub shall cease, and Westvaco shall continue as
the surviving corporation (the "Westvaco Surviving Corporation") in the
Westvaco Merger and shall succeed to and assume all the rights, privileges,
immunities, properties, powers and franchises of Xxxxxxx Merger Sub in
accordance with the DGCL.
(b) In connection with the Westvaco Merger, Xxxx shall take such
actions as may be necessary to cause Parent to reserve, prior to the
Westvaco Merger, a sufficient number of shares of Parent Common Stock to
permit the issuance of shares of Parent Common Stock to the holders of
common stock, par value $5.00 per share, of Westvaco (the "Westvaco Common
Stock") as of the Effective Time in accordance with the terms of this
Agreement.
SECTION 1.3 Closing.
The closing of the Mergers (the "Closing") shall take place at
10:00 a.m., New York time, on a date to be specified by the parties, which
shall be no later than the second business day after satisfaction or waiver
of all of the conditions set forth in Article VII (other than those
conditions that by their nature are to be fulfilled at the Closing, but
subject to the fulfillment or waiver of such conditions), at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Four Times Square, New York, New
York, unless another time, date or place is agreed to in writing by the
parties hereto (the date of the Closing, the "Closing Date").
SECTION 1.4 Effective Time.
Subject to the provisions of this Agreement, as soon as
practicable on the Closing Date, (a) Xxxx and Xxxxxxx Merger Sub shall file
with the Secretary of State of the State of Ohio a Certificate of Merger
(the "Xxxx Certificate of Merger") with respect to the Xxxx Merger, duly
executed and completed in accordance with the relevant provisions of the
OGCL, and shall make all other filings or recordings required under the
OGCL and (b) Westvaco shall file with the Secretary of State of the State
of Delaware a Certificate of Merger (the "Westvaco Certificate of Merger")
with respect to the Westvaco Merger, duly executed and completed in
accordance with the relevant provisions of the DGCL, and shall make all
other filings or recordings required under the DGCL. The Mergers shall
become effective at such time as both the Xxxx Certificate of Merger and
the Westvaco Certificate of Merger have been duly filed with the
Secretaries of State of the States of Ohio and Delaware, respectively, or
at such subsequent date or time as Xxxx and Westvaco shall agree and
specify in each such Certificate of Merger (the time the Mergers become
effective being hereinafter referred to as the "Effective Time").
SECTION 1.5 Effects of the Mergers.
(a) The Xxxx Merger shall have the effects set forth in Section
1701.82 of the OGCL.
(b) The Westvaco Merger shall have the effects set forth in
Section 259 of the DGCL.
ARTICLE II
CERTAIN GOVERNANCE MATTERS
SECTION 2.1 Parent Name Change.
At the Effective Time, Parent shall cause its name to be changed
to "MeadWestvaco Corporation." Parent shall cause its Certificate of
Incorporation and By-laws to be amended as of the Effective Time to read as
set forth on Exhibit A hereto.
SECTION 2.2 Parent Board of Directors; Committees; CEO.
(a) Prior to the Effective Time, the Board of Directors of Parent
shall take all action necessary to cause the Board of Directors of Parent
to consist, as of the Effective Time, of an even number of directors, (i)
50% of whom shall be persons designated by Xxxx who were directors of Xxxx
immediately prior to the Effective Time and (ii) 50% of whom shall be
persons designated by Westvaco who were directors of Westvaco immediately
prior to the Effective Time. No more than one person who is an officer of
Xxxx shall be designated by Xxxx, and no more than one person who is an
officer of Westvaco shall be designated by Westvaco, in each case pursuant
to the immediately preceding sentence. If any such person is not able to
serve as a director, the party hereto on whose Board of Directors such
person presently sits shall designate a replacement. Xxxx and Westvaco
shall mutually agree upon which directors shall be members of which class,
with the intent that each class shall, to the extent reasonably
practicable, have an equal number of directors designated by each party.
(b) To the extent mutually agreed upon prior to the Effective
Time, the Board of Directors of Parent shall take all action necessary to
cause to exist as of the Effective Time such committees of the Board of
Directors of Parent, with such members and chairpersons as shall have been
mutually agreed upon by Xxxx and Westvaco. It is the intention of the
parties that the members of the committees and the chairpersons thereof
should approximate equal representation between Xxxx and Westvaco
directors. Each of Xxxxxx X. Xxxxx and Xxxx X. Xxxx, Xx. will be members of
the class with the longest term.
(c) Prior to the Effective Time, the Board of Directors of Parent
shall take all action necessary (i) to cause Xxxxxx X. Xxxxx to be
designated as Chairman of Parent as of the Effective Time, (ii) to cause
Xxxx X. Xxxx, Xx. to be appointed as Chief Executive Officer and President
of Parent as of the Effective Time and (iii) to cause the individuals
identified on Exhibit B and such other persons as are mutually agreed to by
Xxxx and Westvaco to be officers of Parent as of the Effective Time. The
roles of the Chairman of Parent and the Chief Executive Officer of Parent
shall be as set forth in the Bylaws of Parent and in their respective
employment agreements with Parent.
SECTION 2.3 Corporate Headquarters.
(a) After the Effective Time, Parent shall maintain (x) its
principal executive offices at the corporate headquarters of Westvaco in
Stamford, Connecticut and (y) the headquarters of the paper division and
the consumer and office products division at the place of the existing
corporate headquarters of Xxxx. It is also the intention of the parties
that the place of the existing corporate headquarters of Xxxx shall, over
time, become the principal location for staff functions of Parent.
(b) Xxxx and Westvaco acknowledge the long-standing, mutually
beneficial relationship between Xxxx and the Dayton, Ohio community. In
recognition of this, Xxxx and Westvaco hereby confirm their mutual
intention to have Parent maintain this relationship following the Effective
Time, including by continuing, following the Effective Time, to provide
funding to The Xxxx Corporation Foundation and to otherwise maintain Xxxx'x
charitable and communal endeavors in the Dayton, Ohio community. Xxxx and
Westvaco also confirm their mutual intention, following the Effective Time,
to have Parent explore opportunities to minimize the effects, if any, on
the headquarters community served by Xxxx that the provisions of Section
2.3(a) may have.
SECTION 2.4 Integration.
Prior to the Effective Time, Xxxx and Westvaco shall appoint an
integration team (the "Integration Team"), half the members of which shall
be persons designated by Xxxx and half the members of which shall be
persons designated by Westvaco. The Integration Team shall have one
chairperson. The Integration Team shall report to the persons to be
appointed pursuant to Section 2.2(c)(i) and (ii).
SECTION 2.5 Charters and By-laws of the Surviving Corporations.
(a) At the Effective Time, the Articles of Incorporation and
regulations of Xxxx, as in effect immediately prior to the Effective Time,
shall be the Articles of Incorporation and regulations of the Xxxx
Surviving Corporation, in each case until thereafter amended in accordance
with applicable law.
(b) At the Effective Time, the Certificate of Incorporation and
the by-laws of Westvaco, as in effect immediately prior to the Effective
Time, shall be the Certificate of Incorporation and by-laws of the Westvaco
Surviving Corporation, in each case until thereafter amended in accordance
with applicable law.
SECTION 2.6 Directors of Surviving Corporations.
(a) The directors of Xxxxxxx Merger Sub and officers of Xxxx at
the Effective Time shall, from and after the Effective Time, be the
directors and officers of the Xxxx Surviving Corporation until their
successors shall have been duly elected or qualified or until their earlier
death, resignation or removal in accordance with the Xxxx Surviving
Corporation's Articles of Incorporation and regulations.
(b) The directors of Xxxxxxx Merger Sub and officers of Westvaco
at the Effective Time shall, from and after the Effective Time, be the
directors and officers of the Westvaco Surviving Corporation until their
successors shall have been duly elected or qualified or until their earlier
death, resignation or removal in accordance with the Westvaco Surviving
Corporation's Certificate of Incorporation and by-laws.
(c) Xxxx shall cause such persons as shall be mutually agreed upon
with Westvaco to be appointed directors of Xxxxxxx Merger Sub and Xxxxxxx
Merger Sub, respectively, as of immediately prior to the Effective Time.
SECTION 2.7 Stockholder Rights Plan.
Parent shall adopt prior to the Effective Time a stockholder
rights plan, in substantially the form set forth in Exhibit C, so that each
share of Parent Common Stock issued in the Mergers will have one right
issued pursuant to such plan attached to it. The initial purchase price for
each such right shall be jointly agreed to by Xxxx and Westvaco prior to
filing the Form S-4 (as defined herein).
SECTION 2.8 Trading Symbol.
The ticker symbol for Parent Common Stock following the Mergers
shall be as mutually agreed upon by Xxxx and Westvaco prior to the
Effective Time.
ARTICLE III
EFFECTS OF THE MERGERS ON THE CAPITAL STOCK OF
XXXX AND WESTVACO; EXCHANGE OF CERTIFICATES
SECTION 3.1 Effect on Capital Stock of Xxxx and Xxxxxxx Merger Sub.
As of the Effective Time, by virtue of the Xxxx Merger and without
any action on the part of Xxxx, Xxxxxxx Merger Sub, Parent or the holders
of any shares of Xxxx Common Stock (or options thereon) or any shares of
common stock of Xxxxxxx Merger Sub:
(a) Conversion of Xxxx Common Stock. Each issued and outstanding
share of Xxxx Common Stock (other than any shares of Xxxx Common Stock to
be canceled pursuant to Section 3.1(c) and other than the Dissenting Shares
(as defined below)) shall be converted into the right to receive (i) the
amount of $1.20 in cash (the "Cash Consideration") and (ii) one fully paid
and nonassessable share of Parent Common Stock. Notwithstanding anything in
this Agreement to the contrary, it shall be the obligation of Xxxx to pay
the Cash Consideration to each holder of Xxxx Common Stock as of the
Effective Time. As of the Effective Time, all such shares of Xxxx Common
Stock shall no longer be outstanding and shall automatically be canceled
and retired and shall cease to exist. As of the Effective Time, each holder
of a certificate representing any shares of Xxxx Common Stock shall cease
to have any rights with respect thereto, except the right to receive, upon
the surrender of any such certificates, (i) the Cash Consideration for each
share of Xxxx Common Stock so represented and (ii) certificates
representing the shares of Parent Common Stock to be issued or paid in
consideration therefor upon surrender of such certificate in accordance
with Section 3.3 without interest. The Cash Consideration and shares of
Parent Common Stock to be received as consideration pursuant to the Xxxx
Merger with respect to shares of Xxxx Common Stock is referred to herein as
the "Xxxx Merger Consideration."
(b) Conversion of Common Stock of Xxxxxxx Merger Sub. Each issued
and outstanding share of common stock, without par value, of Xxxxxxx Merger
Sub shall be converted into one fully paid and nonassessable share of
common stock, without par value, of the Xxxx Surviving Corporation.
(c) Cancellation of Treasury Shares. Each share of Xxxx Common
Stock or Parent Common Stock held in the treasury of, or owned by, Xxxx or
Parent immediately prior to the Effective Time shall automatically be
canceled and retired and shall cease to exist, and no consideration shall
be delivered in exchange thereof.
(d) Assumption and Conversion of Xxxx Options.
(i) As of the Effective Time, each option to purchase Xxxx
Common Stock issued under each Xxxx Stock Plan (as defined in Section
4.1(c)) (collectively, the "Xxxx Options") that is outstanding immediately
prior to the Effective Time and each Limited Right issued under each Xxxx
Stock Plan (collectively, the "Xxxx Limited Rights") that is outstanding
immediately prior to the Effective Time shall be converted into an option
(a "Parent Option") or a Limited Right (a "Parent Limited Right"), as
applicable, with respect to the greatest number of whole shares of Parent
Common Stock that does not exceed the number of shares of Xxxx Common Stock
with respect to the Xxxx Option or Xxxx Limited Right, as applicable,
immediately prior to the Effective Time multiplied by the "Xxxx Exchange
Ratio". The Xxxx Exchange Ratio shall be the sum of (x) plus (y), where (x)
is one and (y) is the number equal to the quotient of $1.20 divided by the
Parent Closing Share Value. "Parent Closing Share Value" shall mean the
average of the high and low trading prices of a whole share of Parent
Common Stock on the New York Stock Exchange on the Closing Date, or, if
there shall be no such trading of Parent Common Stock on the Closing Date,
on the first trading date thereafter. The exercise price per share of
Parent Common Stock under the Parent Option or Parent Limited Right, as
applicable, shall be the exercise price per share of Xxxx Common Stock with
respect to the corresponding Xxxx Option or Xxxx Limited Right, as
applicable, immediately prior to the Effective Time divided by the Xxxx
Exchange Ratio (and rounded up to the nearest xxxxx). The parties hereto
acknowledge that (i) each unvested Xxxx Option issued under each Xxxx Stock
Plan that is outstanding both on the date hereof and immediately prior to
shareholder approval of the Xxxx Merger and each Xxxx Option which is
hereafter issued upon the exercise of a currently outstanding Xxxx Option
that includes an automatic reload feature and is outstanding immediately
prior to shareholder approval shall become fully vested and exercisable
immediately prior to the approval date in accordance with its terms, and
(ii) each Xxxx Limited Right that is outstanding upon the date of
shareholder approval of this Agreement shall become fully vested and
exercisable on that date subject to any applicable limitation in its terms.
Notwithstanding the foregoing provisions of this Section 3.1(d)(i), (i) an
opportunity to purchase Xxxx Common Stock under the Xxxx Employees Stock
Purchase Plan shall not be considered a Xxxx Option, and (ii) the
conversion and assumption provided in this Section 3.1(d) with respect to
any Xxxx Option which qualifies as an "incentive stock option" (as defined
in section 422 of the Code) shall be effected in a manner consistent with
the requirements of section 424(a) of the Code.
(ii) As of the Effective Time, Parent shall assume in full
each Xxxx Option and Xxxx Limited Right and all of the other rights and
obligations of Xxxx under the Xxxx Stock Plans as provided herein. The
assumption of a Xxxx Option or Xxxx Limited Right by Parent shall not
terminate or modify (except as required hereunder) any of the terms
thereof. After such assumption, Parent shall issue, upon any partial or
total exercise of any Xxxx Option, in lieu of shares of Xxxx Common Stock,
the number of shares of Parent Common Stock to which the holder of the Xxxx
Option is entitled pursuant to this Agreement. The assumption by Parent of
Xxxx Options and Xxxx Limited Rights shall not give holders of Xxxx Options
and Xxxx Limited Rights any additional benefits that they did not have
immediately prior to the Effective Time. Parent shall file with the
Securities and Exchange Commission (the "SEC"), within a reasonable period
of time following the Effective Time, a registration statement on Form S-8
under the Securities Act of 1933, as amended (the "Securities Act"),
covering, to the extent applicable, the shares of Parent Common Stock to be
issued upon the exercise of Xxxx Options assumed by Parent pursuant hereto.
Prior to the Effective Time, Xxxx shall make such amendments, if any, to
the Xxxx Stock Plans, and any option or rights award agreements (subject to
the consent of agreement holders, if necessary), as shall be necessary to
permit such assumption in accordance with this Section 3.1(d) and to
provide that holders of such options, following the Effective Time, will
not have any rights to acquire Xxxx Common Stock.
SECTION 3.2 Effect on Capital Stock of Westvaco and Xxxxxxx Merger Sub.
As of the Effective Time, by virtue of the Westvaco Merger and
without any action on the part of Westvaco, Xxxxxxx Merger Sub, Parent or
the holders of any shares of Westvaco Common Stock (or options thereon) or
any shares of common stock of Xxxxxxx Merger Sub:
(a) Conversion of Westvaco Common Stock. Each issued and
outstanding share of Westvaco Common Stock (other than any shares of
Westvaco Common Stock to be canceled pursuant to Section 3.2(c)) shall be
converted into the right to receive .97 (the "Westvaco Exchange Ratio")
fully paid and nonassessable shares of Parent Common Stock. As of the
Effective Time, all such shares of Westvaco Common Stock shall no longer be
outstanding and shall automatically be canceled and retired and shall cease
to exist. As of the Effective Time, each holder of a certificate
representing any shares of Westvaco Common Stock shall cease to have any
rights with respect thereto, except the right to receive, upon the
surrender of any such certificates, certificates representing the shares of
Parent Common Stock to be issued or paid in consideration therefor upon
surrender of such certificate in accordance with Section 3.3 without
interest. The shares of Parent Common Stock to be received as consideration
pursuant to the Westvaco Merger with respect to shares of Westvaco Common
Stock (together with cash in lieu of fractional shares of Parent Common
Stock as specified below) is referred to herein as the "Westvaco Merger
Consideration."
(b) Conversion of Common Stock of Xxxxxxx Merger Sub. Each issued
and outstanding share of common stock, par value $0.01 per share, of
Xxxxxxx Merger Sub shall be converted into one fully paid and nonassessable
share of common stock, par value $0.01 per share, of the Westvaco Surviving
Corporation.
(c) Cancellation of Treasury Shares. Each share of Westvaco Common
Stock held in the treasury of Westvaco immediately prior to the Effective
Time shall automatically be canceled and retired and shall cease to exist,
and no consideration shall be delivered in exchange thereof.
(d) Assumption and Conversion of Westvaco Options.
(i) As of the Effective Time, each option to purchase
Westvaco Common Stock issued under each Westvaco Stock Plan (as defined in
Section 4.2(c)) (collectively, the "Westvaco Options") that is outstanding
immediately prior to the Effective Time, each stock appreciation right
issued under each Westvaco Stock Plan (collectively, the "Westvaco SARs")
that is outstanding immediately prior to the Effective Time and each
limited stock appreciation right issued under each Westvaco Stock Plan that
is outstanding immediately prior to the Effective Time shall be converted
into an option (a "Parent Option"), a stock appreciation right (a "Parent
SAR"), or a limited stock appreciation right (a "Parent LSAR"), as
applicable, with respect to the greatest number of whole shares of Parent
Common Stock that does not exceed the number of shares of Westvaco Common
Stock with respect to the Westvaco Option, the Westvaco SAR or the Westvaco
LSAR, as applicable, immediately prior to the Effective Time multiplied by
the Westvaco Exchange Ratio. The exercise price per share of Parent Common
Stock under the Parent Option, Parent SAR or Parent LSAR, as applicable,
shall be the exercise price per share of Westvaco Common Stock under the
corresponding Westvaco Option, Westvaco SAR or Westvaco LSAR, as
applicable, immediately prior to the Effective Time divided by the Westvaco
Exchange Ratio (and rounded up to the nearest xxxxx). The parties hereto
acknowledge that each Westvaco Option, each Westvaco SAR and each Westvaco
LSAR that is outstanding both on the date hereof and immediately prior to
the Effective Time shall become fully vested and exercisable at the
Effective Time in accordance with its terms. Notwithstanding the foregoing
provisions of this Section 3.2(d)(i), the conversion and assumption
provided in this Section 3.2(d) with respect to any Westvaco Option which
qualifies as an "incentive stock option" (as defined in section 422 of the
Code) shall be effected in a manner consistent with the requirements of
section 424(a) of the Code.
(ii) As of the Effective Time, Parent shall assume in full
each Westvaco Option, Westvaco SAR and Westvaco LSAR and all of the other
rights and obligations of Westvaco under the Westvaco Stock Plans as
provided herein. The assumption of a Westvaco Option, Westvaco SAR or
Westvaco LSAR by Parent shall not terminate or modify (except as required
hereunder) any of the terms thereof. After such assumption, Parent shall
issue, upon any partial or total exercise of any Westvaco Option, in lieu
of shares of Westvaco Common Stock, the number of shares of Parent Common
Stock to which the holder of the Westvaco Option is entitled pursuant to
this Agreement. The assumption by Parent of Westvaco Options, Westvaco SARs
and Westvaco LSARs shall not give holders of Westvaco Options, Westvaco
SARs and Westvaco LSARs any additional benefits that they did not have
immediately prior to the Effective Time. Parent shall file with the SEC,
within a reasonable period of time following the Effective Time, a
registration statement on Form S-8 under the Securities Act, covering, to
the extent applicable, the shares of Parent Common Stock to be issued upon
the exercise of Westvaco Options assumed by Parent pursuant hereto. Prior
to the Effective Time, Westvaco shall make such amendments, if any, to the
Westvaco Stock Plans, and any option or rights award agreement (subject to
the consent of agreement holders, if necessary), as shall be necessary to
permit such assumption in accordance with this Section 3.2(d) and to
provide that holders of such options, SARs and LSARs, following the
Effective Time, will not have any rights to acquire Westvaco Common Stock.
SECTION 3.3 Exchange of Shares and Certificates.
(a) Exchange Agent. As of the Effective Time, Xxxx and
Westvaco shall mutually designate a bank, trust company or nationally
recognized shareholder services provider (the "Exchange Agent") for the
purpose of exchanging, in accordance with this Article III, Certificates
(as defined in Section 3.3(b)) for the Xxxx Merger Consideration and the
Westvaco Merger Consideration. Parent (and, in the case of the Cash
Consideration, Xxxx) shall make available to the Exchange Agent, as needed,
the Xxxx Merger Consideration and the Westvaco Merger Consideration to be
delivered in respect of the shares of Xxxx Common Stock and Westvaco Common
Stock.
(b) Exchange Procedures. As soon as reasonably practicable
after the Effective Time, the Exchange Agent shall mail to each holder of
record of a certificate or certificates that immediately prior to the
Effective Time represented outstanding shares of Xxxx Common Stock or
Westvaco Common Stock (the "Certificates") whose shares were converted into
the right to the Xxxx Merger Consideration or the Westvaco Merger
Consideration, as the case may be, the (i) a letter of transmittal (which
shall specify that delivery will be effected, and risk of loss and title to
the Certificates will pass, only upon delivery of the Certificates to the
Exchange Agent and which shall be in such form and have such other
provisions as Parent may reasonably specify) and (ii) instructions for use
in effecting the surrender of the Certificates in exchange for the Xxxx
Merger Consideration or the Westvaco Merger Consideration, as the case may
be. Upon surrender of a Certificate for cancellation to the Exchange Agent
or to such other agent or agents as may be appointed by Parent, together
with such letter of transmittal, duly executed, and such other documents as
may reasonably be required by the Exchange Agent, the holder of such
Certificate shall be entitled to receive in exchange therefor a certificate
representing that number of whole shares of Parent Common Stock that such
holder has the right to receive pursuant to the provisions of this Article
III and, in the case of holders of Certificates that immediately prior to
the Effective Time represented outstanding shares of Xxxx Common Stock, the
Cash Consideration in respect of each such share of Xxxx Common Stock so
represented, and the Certificate so surrendered shall forthwith be
canceled. If any portion of the Xxxx Merger Consideration or the Westvaco
Merger Consideration is to be registered in the name of a person other than
the person in whose name the applicable surrendered Certificate is
registered, it shall be a condition to the registration of such Xxxx Merger
Consideration or Westvaco Merger Consideration, as the case may be, that
the surrendered Certificate shall be properly endorsed or otherwise be in
proper form for transfer and the person requesting such delivery of the
Xxxx Merger Consideration or the Westvaco Merger Consideration shall pay to
the Exchange Agent any transfer or other taxes required by reason of such
registration in the name of a person other than the registered holder of
such Certificate or establish to the reasonable satisfaction of the
Exchange Agent that such tax has been paid or is not applicable. Until
surrendered as contemplated by this Section 3.3, each Certificate shall be
deemed at any time after the Effective Time to represent only the right to
receive upon such surrender the Xxxx Merger Consideration or the Westvaco
Merger Consideration, as the case may be. No interest shall be paid or
shall accrue on any cash payable in lieu of any fractional shares of Parent
Common Stock.
(c) Distributions with respect to Unexchanged Shares. No
dividends or other distributions with respect to Parent Common Stock with a
record date after the Effective Time shall be paid to the holder of any
unsurrendered Certificate with respect to the shares of Parent Common Stock
represented thereby, and no cash payment in lieu of fractional shares shall
be paid to any such holder pursuant to Section 3.3(e) until the surrender
of such Certificate in accordance with this Article III. Subject to the
effect of applicable laws, following surrender of any such Certificate,
there shall be paid to the holder of the certificate representing whole
shares of Parent Common Stock issued in exchange therefor, without
interest, (i) at the time of such surrender, the amount of any cash payable
in lieu of a fractional share of Parent Common Stock to which such holder
is entitled pursuant to Section 3.3(e) and the amount of dividends or other
distributions with a record date after the Effective Time theretofore paid
with respect to such whole shares of Parent Common Stock and (ii) at the
appropriate payment date, the amount of dividends or other distributions
with a record date after the Effective Time but prior to such surrender and
a payment date subsequent to such surrender payable with respect to such
whole shares of Parent Common Stock.
(d) No Further Ownership Rights in Xxxx Common Stock or
Westvaco Common Stock. All shares of Parent Common Stock issued upon the
surrender for exchange of Certificates in accordance with the terms of this
Article III (including any cash paid pursuant to Section 3.3(c) or 3.3(e))
shall be deemed to have been issued (and paid) in full satisfaction of all
rights pertaining to the shares of Xxxx Common Stock or Westvaco Common
Stock theretofore represented by such Certificates, subject, however, to
the obligation of the Xxxx Surviving Corporation or the Westvaco Surviving
Corporation, as the case may be and as applicable, to pay any dividends or
make any other distributions with a record date prior to the Effective Time
that may have been declared or made by Xxxx and Westvaco on such shares of
Xxxx Common Stock and Westvaco Common Stock, respectively, in accordance
with the terms of this Agreement and that remain unpaid at the Effective
Time, and there shall be no further registration of transfers on the stock
transfer books of the Xxxx Surviving Corporation or the Westvaco Surviving
Corporation of the shares of Xxxx Common Stock and Westvaco Common Stock
that were outstanding immediately prior to the Effective Time. If, after
the Effective Time, Certificates are presented to the Xxxx Surviving
Corporation, the Westvaco Surviving Corporation or the Exchange Agent for
any reason, they shall be canceled and exchanged as provided in this
Article III, except as otherwise provided by law.
(e) Fractional Shares.
(i) No certificates representing fractional shares of Parent
Common Stock shall be issued upon the surrender for exchange of
Certificates, and such fractional share interests shall not entitle the
owner thereof to vote or to any other rights of a stockholder of Parent.
(ii) Notwithstanding any other provision of this Agreement,
each holder of shares of Westvaco Common Stock converted pursuant to the
Westvaco Merger who would otherwise have been entitled to receive a
fraction of a share of Parent Common Stock (after taking into account all
Certificates delivered by such holder) shall receive, in lieu thereof, cash
(without interest) in an amount equal to such fraction as determined below.
As promptly as practicable following the Effective Time, the Exchange Agent
shall determine the excess of (i) the number of full shares of Parent
Common Stock delivered to the Exchange Agent by Parent for issuance to
holders of Certificates of Westvaco Common Stock over (ii) the aggregate
number of full shares of Parent Common Stock to be distributed to holders
of Certificates of Westvaco Common Stock (such excess being herein referred
to as the "Excess Westvaco Shares"). As soon as practicable after the
Effective Time, the Exchange Agent, as agent for such holders of
Certificates of Westvaco Common Stock, shall sell the Excess Westvaco
Shares at then prevailing prices on the NYSE, all in the manner provided
herein.
(iii) The sale of the Excess Westvaco Shares by the Exchange
Agent shall be executed on the NYSE through one or more member firms of the
NYSE and shall be executed in round lots to the extent practicable. Until
the net proceeds of any such sale or sales have been distributed to the
holders of Certificates of Westvaco Common Stock, the Exchange Agent will
hold such proceeds in trust for such holders. Westvaco shall pay all
commissions, transfer taxes and other out-of-pocket transaction costs of
the Exchange Agent incurred in connection with such sale or sales of Excess
Westvaco Shares and the Exchange Agent's compensation and expenses in
connection with such sale or sales. The Exchange Agent shall determine the
portion of such net proceeds to which each holder of Certificates of
Westvaco Common Stock shall be entitled, if any, by multiplying the amount
of the aggregate net proceeds by a fraction, the numerator of which is the
amount of the fractional share interest to which such holder of
Certificates of Westvaco Common Stock is entitled (after taking into
account all Certificates then held by such holder) and the denominator of
which is the aggregate amount of fractional share interests to which all
holders of Certificates of Westvaco Common Stock are entitled. As soon as
practicable after the determination of the amount of cash, if any, to be
paid to holders of Certificates with respect to any fractional share
interests, the Exchange Agent shall promptly pay such amounts to such
holders of Certificates of Westvaco Common Stock subject to and in
accordance with this Section 3.3(e).
(f) Return of Merger Consideration. Any portion of the Xxxx Merger
Consideration or the Westvaco Merger Consideration made available to the
Exchange Agent pursuant to Section 3.3(a) that remains undistributed to the
holders of the Certificates for one year after the Effective Time shall be
delivered to Parent (other than the Cash Consideration which shall be
delivered to Xxxx), upon demand, and any holders of the Certificates who
have not theretofore complied with this Article III shall thereafter be
entitled to look only to Parent or Xxxx, as the case may be, for payment of
their claim for any cash, any shares of Parent Common Stock, any cash in
lieu of fractional shares of Parent Common Stock and any dividends or
distributions with respect to Parent Common Stock.
(g) No Liability. None of Parent, Xxxx, Xxxxxxx Merger Sub,
Westvaco, Xxxxxxx Merger Sub or the Exchange Agent shall be liable to any
person in respect of any shares of Parent Common Stock (or dividends or
distributions with respect thereto) or cash from the Xxxx Merger
Consideration or Westvaco Merger Consideration delivered to a public
official pursuant to any applicable abandoned property, escheat or similar
law. If any Certificate will not have been surrendered prior to seven years
after the Effective Time, or immediately prior to such earlier date on
which any cash, any shares of Parent Common Stock, any cash in lieu of
fractional shares of Parent Common Stock or any dividends or distributions
with respect to Parent Common Stock in respect of such Certificate would
otherwise escheat to or become the property of any Governmental Entity (as
defined in Section 4.1(b)), any such shares, cash, dividends or
distributions in respect of such Certificate shall, to the extent permitted
by applicable law, become the property of the Xxxx Surviving Corporation or
the Westvaco Surviving Corporation, as the case may be, free and clear of
all claims or interest of any person previously entitled thereto.
(h) Investment of Merger Consideration. The Exchange Agent shall
invest any cash included in the Xxxx Merger Consideration or the Westvaco
Merger Consideration made available to the Exchange Agent pursuant to
Section 3.3(a), as directed by Parent, on a daily basis. Any interest and
other income resulting from such investments shall be paid to Parent,
except for interest and other income from investment of the Cash
Consideration which shall be paid to Xxxx.
(i) Dissenting Shares.
(i) Notwithstanding any provision of this Agreement to the
contrary, any shares of Xxxx Common Stock that are outstanding immediately
prior to the Effective Time and that are held by persons who will have
properly delivered a written demand for payment of the fair cash value of
such shares of Xxxx Common Stock in accordance with Section 1701.85 of the
OGCL (collectively, the "Dissenting Shares") shall not be converted into or
represent the right to receive the Xxxx Merger Consideration as provided in
Section 3.1(a). Such persons shall be entitled only to such rights as are
granted under Section 1701.85 of the OGCL, except that all Dissenting
Shares held by persons who will have failed to perfect or who will have
effectively withdrawn or lost their rights as dissenting shareholders in
respect of such shares under Section 1701.85 of the OGCL shall thereupon be
deemed to have been converted into, as of the Effective Time, the Xxxx
Merger Consideration upon surrender of the Certificate therefor in the
manner provided in Section 3.3(b).
(ii) Xxxx shall give Westvaco (i) prompt notice of any
demands by dissenting shareholders received by Xxxx, withdrawals of such
demands and any other instruments served pursuant to the OGCL and received
by Xxxx in connection with such demands and (ii) the opportunity to
participate in all negotiations and proceedings with respect to such
demands occurring prior to the Effective Time. Prior to the Effective Time,
Xxxx shall not, except with the prior written consent of Westvaco, make any
payment with respect to any demands for appraisal or offer to settle or
settle any such demands.
SECTION 3.4 Certain Adjustments.
If between the date hereof and the Effective Time, the outstanding
shares of Xxxx Common Stock, Westvaco Common Stock or Parent Common Stock
will be changed into a different number of shares by reason of any
reclassification, recapitalization, split-up, combination or exchange of
shares, or any dividend payable in stock or other securities will be
declared thereon with a record date within such period, the Westvaco
Exchange Ratio and/or the Xxxx Merger Consideration and related provisions
shall be adjusted accordingly to provide to the holders of Xxxx Common
Stock and Westvaco Common Stock or Xxxx Options and Westvaco Options the
same economic effect as contemplated by this Agreement prior to such
reclassification, recapitalization, split-up, combination, exchange or
dividend.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 Representations and Warranties of Xxxx.
Except as disclosed in the disclosure schedule delivered by Xxxx
to Westvaco prior to the execution of this Agreement (the "Xxxx Disclosure
Schedule") and making reference to the particular subsection of this
Agreement to which exception is being taken (subject to the second
paragraph of the cover page of the Xxxx Disclosure Schedules), Xxxx
represents and warrants to Westvaco as follows:
(a) Organization, Standing and Corporate Power. Each of Xxxx and
its subsidiaries (as defined in Section 9.3) is a corporation or other
legal entity duly organized, validly existing and in good standing (with
respect to jurisdictions which recognize such concept) under the laws of
the jurisdiction in which it is organized and has the requisite corporate
or other power, as the case may be, and authority to carry on its business
as now being conducted, except, as to subsidiaries, for those jurisdictions
where the failure to be so organized, existing or in good standing
individually or in the aggregate would not have a material adverse effect
(as defined in Section 9.3) on Xxxx. Each of Xxxx and its subsidiaries is
duly qualified or licensed to do business and is in good standing (with
respect to jurisdictions which recognize such concept) in each jurisdiction
in which the nature of its business or the ownership, leasing or operation
of its properties makes such qualification or licensing necessary, except
for those jurisdictions where the failure to be so qualified or licensed or
to be in good standing individually or in the aggregate would not have a
material adverse effect on Xxxx. Xxxx has delivered to or made available to
Westvaco prior to the execution of this Agreement true and complete copies
of any amendments to the Articles of Incorporation of Xxxx (the "Xxxx
Articles") and the regulations of Xxxx not filed as of the date hereof with
the Xxxx Filed SEC Documents (as defined in Section 4.1(g)).
(b) Corporate Authority; Non-contravention.
(i) Each of Xxxx, Parent, Xxxxxxx Merger Sub and Xxxxxxx
Merger Sub has all requisite corporate power and authority to enter into
this Agreement, subject to the Xxxx Shareholder Approval (as defined in
Section 4.1(m)), to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by Xxxx, Parent, Xxxxxxx Merger
Sub and Xxxxxxx Merger Sub and the consummation by Xxxx, Parent, Xxxxxxx
Merger Sub and Xxxxxxx Merger Sub of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
Xxxx, Parent, Xxxxxxx Merger Sub and Xxxxxxx Merger Sub, subject in the
case of the Xxxx Merger to the Xxxx Shareholder Approval. This Agreement
has been duly executed and delivered by Xxxx, Parent, Xxxxxxx Merger Sub
and Xxxxxxx Merger Sub and, assuming the due authorization, execution and
delivery of this Agreement by Westvaco, constitutes the legal, valid and
binding obligation of Xxxx, Parent, Xxxxxxx Merger Sub and Xxxxxxx Merger
Sub, enforceable against Xxxx, Parent, Xxxxxxx Merger Sub and Xxxxxxx
Merger Sub in accordance with its terms.
(ii) The execution and delivery of this Agreement does not,
and the consummation of the transactions contemplated hereby and compliance
with the provisions of this Agreement shall not, conflict with, or result
in any violation of, or default (with or without notice or lapse of time,
or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or loss of a benefit under, or result in the
creation of any pledge, claim, lien, charge, encumbrance or security
interest of any kind or nature whatsoever (collectively, "Liens") upon any
of the properties or assets of Xxxx or any of its subsidiaries or in any
restriction on the conduct of Xxxx'x business or operations under, (A) the
Xxxx Articles or the regulations of Xxxx or the comparable organizational
documents of any of its subsidiaries, (B) any loan or credit agreement,
note, bond, mortgage, indenture, trust document, lease or other agreement,
instrument, permit, concession, franchise, license or similar authorization
applicable to Xxxx or any of its subsidiaries or their respective
properties or assets or (C) subject to the governmental filings and other
matters referred to in clause (iii) below, any judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to Xxxx or any of
its subsidiaries or their respective properties or assets, other than, in
the case of clauses (B) and (C), any such conflicts, violations, defaults,
rights, losses, restrictions or Liens that individually or in the aggregate
would not (x) have a material adverse effect on Xxxx or (y) reasonably be
expected to impair the ability of any of Xxxx, Parent, Xxxxxxx Merger Sub
or Xxxxxxx Merger Sub to perform its respective obligations under this
Agreement.
(iii) No consent, approval, order or authorization of, action
by or in respect of, or registration, declaration or filing with, any
federal, state, local, foreign or supranational government, any court,
administrative, regulatory or other governmental agency, commission or
authority or any non-governmental self-regulatory agency, commission or
authority (a "Governmental Entity") is required by or with respect to Xxxx
or any of its subsidiaries in connection with the execution and delivery of
this Agreement by Xxxx, Parent, Xxxxxxx Merger Sub and Xxxxxxx Merger Sub
or the consummation by Xxxx, Parent, Xxxxxxx Merger Sub and Xxxxxxx Merger
Sub of the transactions contemplated hereby, except for (A) compliance with
any applicable requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended (the "HSR Act"), with Council Regulation No.
4064/89 of the European Community, as amended (the "EC Merger Regulation"),
and with the antitrust, merger control, competition, investment or similar
laws of any other foreign jurisdiction ("Foreign Laws", and together with
the HSR Act and EC Merger Regulation, the "Antitrust Laws"); (B) the filing
with the SEC of (x) a proxy statement relating to the Xxxx Shareholders
Meeting (as defined in Section 6.1(b)) (such proxy statement, together with
the proxy statement relating to the Westvaco Stockholders Meeting (as
defined in Section 6.1(c)), in each case as amended or supplemented from
time to time, the "Joint Proxy Statement"), (y) the registration statement
on Form S-4 to be filed with the SEC by Parent in connection with the
issuance of shares of Parent Common Stock in the Mergers (the "Form S-4"),
and (z) such reports under Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as may be required
in connection with this Agreement and the transactions contemplated hereby;
(C) the filing of the Xxxx and Westvaco Certificates of Merger with the
appropriate Secretaries of State and appropriate documents with the
relevant authorities of other states in which Xxxx and Westvaco are
qualified to do business; (D) such filing with and approvals of the New
York Stock Exchange (the "NYSE") to permit the shares of Parent Common
Stock that are to be issued in the Mergers to be listed on the NYSE; and
(E) such other consents, approvals, orders or authorizations the failure of
which to be made or obtained individually or in the aggregate would not (x)
have a material adverse effect on Xxxx or (y) reasonably be expected to
impair the ability of any of Xxxx, Parent, Xxxxxxx Merger Sub and Xxxxxxx
Merger Sub to perform its obligations under this Agreement.
(c) Capital Structure.
(i) The authorized capital stock of Xxxx consists of
300,000,000 shares of Xxxx Common Stock, 61,500 shares of undesignated
non-voting cumulative preferred stock, par value $100.00 per share,
20,000,000 shares of undesignated voting cumulative preferred stock,
without par value, 20,000,000 shares of cumulative preferred stock, without
par value, and 295,540 shares of cumulative second preferred stock, par
value $50.00 per share (all of such preferred stock, collectively, "Xxxx
Preferred Stock"). At the close of business on August 24, 2001, (A)
99,172,162 shares of Xxxx Common Stock were issued and outstanding, (B) no
shares of Xxxx Common Stock were held by Xxxx in its treasury, (C) no
shares of Xxxx Preferred Stock were issued and outstanding, (D) there were
options, warrants, agreements or other arrangements outstanding to acquire
no more than 9,980,417 shares of Xxxx Common Stock pursuant to stock
option, or other stock-based compensation, benefits or savings plans,
agreements or arrangements in which current or former employees or
directors of Xxxx or its subsidiaries participate as of the date hereof,
true and complete copies of which, in each case as amended as of the date
hereof, have been filed as exhibits to the Xxxx Filed SEC Documents (as
defined below) or delivered to Westvaco (such plans, collectively, the
"Xxxx Stock Plans"), (E) 4,088,595 Limited Rights were outstanding under
the Xxxx Stock Plans, with a weighted average exercise price of $28.06; and
(F) the number of shares of Xxxx Common Stock with respect to unexercised
options to which there exist automatic rights to the grant of "reload
options" within the meaning of the applicable Xxxx Stock Plans was
1,042,938 and each share of Xxxx Common Stock has attached one common share
purchase right (collectively, the "Xxxx Rights") exercisable pursuant to
the Restated Rights Agreement, as amended and restated as of February 16,
2000, by and between Xxxx and BankBoston, N.A., as rights agent (the "Xxxx
Rights Agreement"). Section 4.1(c) of the Xxxx Disclosure Schedule sets
forth a list summarizing all Xxxx Options outstanding as of August 24, 2001
under all of the Xxxx Stock Plans, including the term and the exercise
price of each Xxxx Option and whether such Xxxx Option has a Limited Right
or right to automatic grants of reload options associated with it.
(ii) The authorized capital stock of Parent, as of the date
hereof, consists of 100 shares of common stock, par value $0.01 per share,
of which 100 shares are issued and outstanding. The authorized capital
stock of Xxxxxxx Merger Sub consists of 100 shares of common stock, par
value $0.01 per share, of which 100 shares are issued and outstanding. The
authorized capital stock of Xxxxxxx Merger Sub consists of 100 shares of
common stock, without par value, of which 100 shares are issued and
outstanding. Xxxx is the sole stockholder of Parent and is the legal and
beneficial owner of all 100 issued and outstanding shares. Parent is the
sole stockholder of Xxxxxxx Merger Sub and Xxxxxxx Merger Sub and is the
legal and beneficial owner of all 100 issued and outstanding shares of
each. Parent, Xxxxxxx Merger Sub and Xxxxxxx Merger Sub were recently
formed by Xxxx solely for the purpose of effecting the Mergers and the
other transactions contemplated by this Agreement. Except as contemplated
by this Agreement, none of Parent, Xxxxxxx Merger Sub or Xxxxxxx Merger Sub
holds or has held any material assets or incurred any material liabilities,
or has carried on any business activities other than in connection with the
Mergers and the other transactions contemplated by this Agreement.
(iii) All outstanding shares of capital stock of Xxxx,
Parent, Xxxxxxx Merger Sub and Xxxxxxx Merger Sub are, and all shares of
capital stock of Xxxx that may be issued as permitted by this Agreement or
otherwise shall be, when issued, duly authorized, validly issued, fully
paid and nonassessable and not subject to preemptive rights. Except as set
forth in this Section 4.1(c) and except for changes since August 24, 2001
resulting from the issuance of shares of Xxxx Common Stock pursuant to Xxxx
Options or as expressly permitted by Section 5.1(a)(ii) of this Agreement
(including by being set forth in Section 5.1(a)(ii) of the Xxxx Disclosure
Schedule), (A) there are not issued or outstanding (x) any shares of
capital stock or other voting securities of Xxxx, (y) any securities of
Xxxx or any Xxxx subsidiary convertible into or exchangeable or exercisable
for, or based upon the value of, shares of capital stock or voting
securities of Xxxx or (z) any warrants, calls, options or other rights to
acquire from Xxxx or any Xxxx subsidiary (including any subsidiary trust),
or obligations of Xxxx or any Xxxx subsidiary to issue, any capital stock,
voting securities or securities convertible into or exchangeable or
exercisable for, or based upon the value of, capital stock or voting
securities of Xxxx, and (B) there are no outstanding obligations of Xxxx or
any Xxxx subsidiary to repurchase, redeem or otherwise acquire any such
securities or to issue, deliver or sell, or cause to be issued, delivered
or sold, any such securities.
(d) Subsidiaries.
(i) Exhibit 21 to Xxxx'x Annual Report on Form 10-K for the
fiscal year ended December 31, 2000, includes all the subsidiaries of Xxxx
which as of the date of this Agreement are Significant Subsidiaries (as
defined in Rule 1-02 of Regulation S-X of the SEC). Except as set forth on
such Exhibit and for director qualifying shares, all outstanding shares of
capital stock of, or other equity interests in, each such Significant
Subsidiary have been validly issued and are fully paid and nonassessable
and are owned directly or indirectly by Xxxx, free and clear of any Liens
and free of any other restriction, including any restriction on the right
to vote, sell or otherwise dispose of such capital stock or other ownership
interests.
(ii) There are no outstanding (A) securities of Xxxx or any
Xxxx subsidiary convertible into or exchangeable or exercisable for shares
of capital stock or other voting securities or ownership interests in any
Xxxx subsidiary, (B) warrants, calls, options or other rights to acquire
from Xxxx or any Xxxx subsidiary, or any obligation of Xxxx or any Xxxx
subsidiary to issue, any capital stock, voting securities or other
ownership interests in, or any securities convertible into or exchangeable
or exercisable for any capital stock, voting securities or ownership
interests in, any Xxxx subsidiary or (C) obligations of Xxxx or any Xxxx
subsidiary to repurchase, redeem or otherwise acquire any such outstanding
securities of Xxxx subsidiaries or to issue, deliver or sell, or cause to
be issued, delivered or sold, any such securities.
(iii) Other than the Xxxx subsidiaries, Xxxx does not
directly or indirectly beneficially own any securities or other beneficial
ownership interests in any other entity except for non-controlling
investments made in the ordinary course of business in entities which are
not individually or in the aggregate material to Xxxx and its subsidiaries
as a whole.
(e) SEC Documents; Undisclosed Liabilities.
(i) Xxxx and its subsidiaries have filed all required
registration statements, prospectuses, reports, schedules, forms,
statements and other documents (including exhibits and all other
information incorporated therein) with the SEC since January 1, 1999 (the
"Xxxx SEC Documents"). As of their respective dates, the Xxxx SEC Documents
complied in all material respects with the requirements of the Securities
Act or the Exchange Act, as the case may be, and the rules and regulations
of the SEC promulgated thereunder applicable to the Xxxx SEC Documents, and
none of the Xxxx SEC Documents when filed and at their respective effective
times, if applicable, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(ii) The financial statements of Xxxx included in the Xxxx
SEC Documents comply as to form, as of their respective dates of filing
with the SEC, in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with
respect thereto, have been prepared in accordance with generally accepted
accounting principles ("GAAP") (except, in the case of unaudited
statements, as permitted by Form 10-Q of the SEC) applied on a consistent
basis during the periods involved (except as may be indicated in the notes
thereto) and fairly present the consolidated financial position of Xxxx and
its consolidated subsidiaries as of the dates thereof and the consolidated
results of their operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments which are not material).
(iii) Except (A) as reflected in such financial statements or
in the notes thereto, (B) for liabilities incurred in connection with this
Agreement or the transactions contemplated hereby and (C) for liabilities
incurred since July 1, 2001 in the ordinary course of business consistent
with past practice, neither Xxxx nor any of its subsidiaries has any
liabilities or obligations of any nature that, individually or in the
aggregate, are reasonably likely to have a material adverse effect on Xxxx.
(f) Information Supplied. None of the information supplied or to
be supplied by Xxxx specifically for inclusion or incorporation by
reference in (i) the Form S-4 will, at the time the Form S-4 is filed with
the SEC, at any time it is amended or supplemented or at the time it
becomes effective under the Securities Act, contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they are made, not misleading or (ii) the
Joint Proxy Statement will, at the date it is first mailed to Xxxx'x
shareholders or at the time of the Xxxx Shareholders Meeting, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading. The Form S-4 and the Joint Proxy Statement will comply as to
form in all material respects with the requirements of the Securities Act
and the Exchange Act and the rules and regulations thereunder, except that
no representation or warranty is made by Xxxx with respect to statements
made or incorporated by reference therein based on information supplied by
Westvaco specifically for inclusion or incorporation by reference in the
Form S-4 or the Joint Proxy Statement.
(g) Absence of Certain Changes or Events. Except for liabilities
incurred in connection with this Agreement or the transactions contemplated
hereby, and except as would be permitted by Section 5.1(a) as if Section
5.1(a) were applicable as of July 1, 2001 (including by being set forth in
Section 5.1(a) of the Xxxx Disclosure Schedule), since July 1, 2001, Xxxx
and its subsidiaries have conducted their businesses only in the ordinary
course consistent with past practice or as disclosed in any Xxxx SEC
Document filed since such date and prior to the date hereof, and since July
1, 2001 and, with respect to clauses (ii) through (vi), prior to the date
hereof, there has not been: (i) any material adverse change in Xxxx, (ii)
any declaration, setting aside or payment of any dividend or other
distribution (whether in cash, stock or property) with respect to any of
the capital stock of Xxxx or any of its subsidiaries (other than regular
quarterly dividends of $0.17 per share of Xxxx Common Stock), (iii) any
split, combination or reclassification of any of the capital stock of Xxxx
or any of its subsidiaries or any issuance or the authorization of any
issuance of any other securities in respect of, in lieu of, or in
substitution for shares of the capital stock of Xxxx or any of its
subsidiaries, except for issuances of Xxxx Common Stock upon exercise of
Xxxx Options, in each case awarded prior to the date hereof in accordance
with their present terms or issued pursuant to Section 5.1(a)(taking into
account Section 5.1(a) of the Xxxx Disclosure Schedule) or to the extent
required upon the exercise of a currently outstanding Xxxx Option that
includes an automatic reload feature, (iv) except insofar as may have been
disclosed in Xxxx SEC Documents filed and publicly available prior to the
date of this Agreement (as amended to the date hereof, the "Xxxx Filed SEC
Documents") or required by a change in GAAP, any change in accounting
methods, principles or practices by Xxxx materially affecting its assets,
liabilities or business, (v) except insofar as may have been disclosed in
the Xxxx Filed SEC Documents, any tax election that individually or in the
aggregate would have a material adverse effect on Xxxx or any of its tax
attributes or any settlement or compromise of any material income tax
liability, or (vi) any action taken by Xxxx or any of the Xxxx subsidiaries
during the period from July 1, 2001, through the date of this Agreement
that, if taken during the period from the date of this Agreement through
the Effective Time, would constitute a breach of Section 5.1(a) (taking
into account Section 5.1(a) of the Xxxx Disclosure Schedule).
(h) Compliance with Applicable Laws; Outstanding Orders.
(i) Xxxx, its subsidiaries and employees hold all permits,
licenses, variances, exemptions, orders, registrations and approvals of all
Governmental Entities that are required for the operation of the businesses
of Xxxx and its subsidiaries (the "Xxxx Permits"), except where the failure
to have any such Xxxx Permits, individually or in the aggregate, would not
have a material adverse effect on Xxxx. Except as specifically disclosed in
the Xxxx Filed SEC Documents, Xxxx and its subsidiaries are in compliance
with the terms of the Xxxx Permits and all applicable laws, statutes,
orders, rules, regulations, policies or guidelines promulgated, or
judgments, decisions or orders entered by any Governmental Entity (all such
laws, statutes, orders, rules, regulations, policies, guidelines,
judgments, decisions and orders, collectively, "Applicable Laws") relating
to Xxxx and its subsidiaries or their respective businesses or properties,
except where the failure to be in compliance with such Applicable Laws
individually or in the aggregate would not have a material adverse effect
on Xxxx. Except as disclosed in the Xxxx Filed SEC Documents, no action,
demand, requirement or investigation by any Governmental Entity and no
suit, action, investigation or proceeding by any person, in each case with
respect to Xxxx or any of its subsidiaries or any of their respective
properties, is pending or, to the knowledge (as defined in Section 9.3) of
Xxxx, threatened, other than, in each case, those the outcome of which
individually or in the aggregate would not reasonably be expected to (A)
have a material adverse effect on Xxxx or (B) impair the ability of any of
Xxxx, Parent, Xxxxxxx Merger Sub or Xxxxxxx Merger Sub to perform its
respective obligations under this Agreement or (C) prevent or materially
delay the consummation of any of the transactions contemplated hereby.
(ii) Neither Xxxx nor any Xxxx subsidiary is subject to any
outstanding order, injunction or decree that has had or would, individually
or in the aggregate, reasonably be expected to have a material adverse
effect on Xxxx or prevent or materially delay the consummation of the
transactions contemplated hereby.
(i) Litigation. There is no action, suit, investigation or
proceeding (each, an "Action") pending against or, to the knowledge of
Xxxx, threatened against or affecting Xxxx or any of its subsidiaries or
any of their respective properties or any of their respective officers or
directors before any court or arbitrator or any Governmental Entity except
as would not, individually or in the aggregate, reasonably be expected to
have a material adverse effect on Xxxx, materially impair the ability of
Xxxx, Parent, Xxxxxxx Merger Sub or Xxxxxxx Merger Sub to perform its
obligations under this Agreement or prevent or materially delay the
consummation of the transactions contemplated hereby.
(j) Absence of Changes in Benefit Plans. Xxxx has delivered to
Westvaco or made available to Westvaco for review true and complete copies
of (i) all severance and employment agreements between Xxxx, on the one
hand, and any of its directors, executive officers or key employees, on the
other hand, (ii) all severance programs and policies of each of Xxxx and
each Xxxx subsidiary affecting U.S. employees, and (iii) all plans or
arrangements of Xxxx and each Xxxx subsidiary relating to its employees
that contain change in control provisions and, in each case, that has not
been filed as an exhibit to a Xxxx Filed SEC Document. With respect to each
Xxxx Benefit Plan (as defined in this Section 4.1(j)) that covers
individuals employed in the United States, Xxxx has delivered or made
available to Westvaco a true, correct and complete copy of: (i) the most
recent annual report (Form 5500 Series) and accompanying schedule, if any;
(ii) the current summary plan description and any material modifications
thereto, if any (in each case, whether or not required to be furnished
under ERISA); (iii) the most recent annual financial report, if any; and
(iv) the most recent actuarial report, if any. Since July 1, 2001, except
as would be permitted by Section 5.1(a) as if Section 5.1(a) were
applicable as of July 1, 2001 (including by being set forth in Section
5.1(a) of the Xxxx Disclosure Schedule) there has not been any adoption or
amendment by Xxxx or any of its subsidiaries of any Xxxx Benefit Plan or
Xxxx Collective Bargaining Agreement that, when aggregated with other such
adoptions or amendments materially increases the obligations and
liabilities of Xxxx and its subsidiaries under the Xxxx Collective
Bargaining Agreements and the Xxxx Benefit Plans. "Xxxx Benefit Plans"
shall mean, with respect to current or former directors, officers or
employees of Xxxx or any of its subsidiaries, any material bonus, pension,
profit sharing, deferred compensation, incentive compensation, stock
ownership, stock purchase, stock option, phantom stock, retirement,
vacation, severance, disability, death benefit, hospitalization, medical or
other plan, arrangement or understanding in each case, with respect to
which Xxxx or any of its subsidiaries could have any liability. Since July
1, 2001, there has not been any material change in any actuarial or other
assumption used to calculate funding obligations with respect to any Xxxx
pension plans, or any material change in the manner in which contributions
to any Xxxx pension plans are made or the basis on which such contributions
are determined. Since July 1, 2001, neither Xxxx nor any Xxxx subsidiary
has amended any Xxxx Options or any Xxxx Stock Plans to accelerate the
vesting of, or release restrictions on, awards thereunder, or to provide
for such acceleration in the event of a change in control.
(k) Benefit Plans.
(i) Each Xxxx Benefit Plan has been administered in
accordance with its terms, except for any failures so to administer any
Xxxx Benefit Plan that individually or in the aggregate would not have a
material adverse effect on Xxxx. To the knowledge of Xxxx, the Xxxx Benefit
Plans have been operated, and are, in compliance with the applicable
provisions of ERISA, the Code and all other applicable laws and the terms
of all applicable Xxxx Collective Bargaining Agreements (as defined in this
Section 4.1(k)), except for any failures to be in such compliance that
individually or in the aggregate would not have a material adverse effect
on Xxxx. Each Xxxx Benefit Plan that is intended to be qualified under
section 401(a) or 401(k) of the Code has received a favorable determination
letter from the Internal Revenue Service ("IRS") that it is so qualified
and each trust established in connection with any Xxxx Benefit Plan that is
intended to be exempt from federal income taxation under section 501(a) of
the Code has received a determination letter from the IRS that such trust
is so exempt. To the knowledge of Xxxx, no fact or event has occurred since
the date of any determination letter from the IRS that could affect
adversely the qualified status of any such Xxxx Benefit Plan or the exempt
status of any such trust except for facts or events that can be cured
without any material liability on the part of Xxxx and its subsidiaries.
(ii) With respect to each of the Xxxx Benefit Plans which is
subject to Title IV of ERISA, the present value of accrued benefits under
such plan, based upon the actuarial assumptions used for funding purposes
in the most recent actuarial report prepared by such plan's actuary with
respect to such plan, did not, as of its latest valuation date, exceed the
then current value of the assets of such plan allocable to such accrued
benefits. No Xxxx Benefit Plan nor any trust established under a Xxxx
Benefit Plan has incurred any "accumulated funding deficiency" (as defined
in section 302 of ERISA and section 412 of the Code), whether or not
waived, as of the last day of the most recent fiscal year of each of the
Xxxx Benefit Plans ended prior to the date of this Agreement.
(iii) No Xxxx Benefit Plan provides medical benefits (whether
or not insured) with respect to current or former employees after
retirement or other termination of service (other than coverage mandated by
applicable law or benefits, the full cost of which is borne by the current
or former employee) other than individual arrangements the amounts of which
are not material.
(iv) Xxxx has previously provided to Westvaco a list of each
collective bargaining or other labor union contract applicable to persons
employed by Xxxx or any of its subsidiaries to which Xxxx or any of its
subsidiaries is a party (each a "Xxxx Collective Bargaining Agreement"). No
Xxxx Collective Bargaining Agreement is being negotiated or renegotiated by
Xxxx or any of its subsidiaries. As of the date of this Agreement, there is
no labor dispute, strike or work stoppage against Xxxx or any of its
subsidiaries pending or, to the knowledge of Xxxx, threatened that may
interfere with the respective business activities of Xxxx or any of its
subsidiaries, except where such dispute, strike or work stoppage
individually or in the aggregate would not have a material adverse effect
on Xxxx. As of the date of this Agreement, to the knowledge of Xxxx, none
of Xxxx, any of its subsidiaries or any of their respective representatives
or employees has committed any material unfair labor practice in connection
with the operation of the respective businesses of Xxxx or any of its
subsidiaries, and there is no material charge or complaint against Xxxx or
any of its subsidiaries by the National Labor Relations Board or any
comparable Governmental Entity pending or threatened in writing.
(v) No employee of Xxxx or any Xxxx subsidiary will be
entitled to any material payment, additional benefits or any acceleration
of the time of funding (through a grantor trust or otherwise), payment or
vesting of any benefits under any Xxxx Benefit Plan as a result of the
transactions contemplated by this Agreement by virtue of their status as a
"Change in Control" (including equivalent terms such as "Significant
Change") within the meaning of Xxxx Benefit Plans (either alone or in
conjunction with any other event such as a termination of employment).
(vi) Except such as would not have a material adverse effect
on Xxxx, there are no material unresolved claims or disputes under the
terms of, or in connection with, any Xxxx Benefit Plan (other than routine
undisputed claims for benefits), and no action, legal or otherwise, has
been commenced with respect to any material claim.
(vii) To the knowledge of Xxxx, no non-exempt "prohibited
transaction" (within the meaning of section 4975(c) of the Code) involving
any Xxxx Benefit Plan has occurred that could subject Xxxx to any material
tax penalty or other cost or liability (by indemnification or otherwise).
(viii) No liability under Title IV of ERISA has been incurred
and not yet satisfied by Xxxx or any of its subsidiaries, or any trade or
business (whether or not incorporated) that together with Xxxx or such
subsidiary would have been deemed a "single employer" within the meaning of
section 4001(b) of ERISA at any time within the six-year period ending on
the Closing Date (a "Xxxx ERISA Affiliate") since the effective date of
ERISA that has not been satisfied in full. No condition exists that
presents a material risk to Xxxx or any of its subsidiaries of incurring a
liability under such Title, other than liability for premiums due the
Pension Benefit Guaranty Corporation. To the extent this representation
applies to section 4064, 4069 or 4204 of Title IV of ERISA, it is made not
only with respect to the Xxxx Benefit Plans, but also with respect to any
employee benefit plan, program, agreement or arrangement subject to Title
IV of ERISA to which Xxxx or any of its subsidiaries or a Xxxx ERISA
Affiliate made, or was required to make, contributions during the six-year
period ending on the Closing Date.
(ix) To the knowledge of Xxxx, all Xxxx Benefit Plans subject
to the laws of any jurisdiction outside of the United States (i) have been
maintained in accordance with all applicable requirements, (ii) if they are
intended to qualify for special tax treatment meet all requirements for
such treatment, and (iii) if they are intended to be funded and/or
book-reserved are fully funded and/or book reserved, as appropriate, based
upon reasonable actuarial assumptions.
(l) Taxes.
(i) Each of Xxxx and its subsidiaries has timely filed or has
caused to be timely filed all material Tax Returns required to be filed by,
or with respect to, Xxxx and its subsidiaries and all such Tax Returns are
true, complete, and correct in all material respects. Xxxx and each of its
subsidiaries have paid (or Xxxx has paid or caused to be paid on its
behalf) all Taxes shown as due on such Tax Returns, and the most recent
financial statements contained in the Xxxx Filed SEC Documents reflect an
adequate reserve in accordance with GAAP for all Tax liabilities of Xxxx
and its subsidiaries for all taxable periods and portions thereof accrued
through the date of such financial statements.
(ii) No deficiencies for any Taxes have been proposed,
asserted or assessed in writing against Xxxx or any of its subsidiaries
that are not adequately reserved for, except for deficiencies that
individually or in the aggregate would not have a material adverse effect
on Xxxx.
(iii) Neither Xxxx nor any of its subsidiaries has taken any
action or knows of any fact, agreement, plan or other circumstance that is
reasonably likely to preclude (A) the Mergers, taken together, from
qualifying as a transaction described in Section 351 of the Code or (B)
either of the Mergers from qualifying as a "reorganization" within the
meaning of Section 368(a) of the Code.
(iv) There is no audit, assessment, deficiency, claim,
investigation, examination, matter in controversy, proposed adjustment,
refund litigation or other proceeding (judicial or administrative)
currently pending with regard to any Taxes or Tax Returns of Xxxx or its
subsidiaries the adverse outcome of which, individually or in the
aggregate, is reasonably likely to have a material adverse effect on Xxxx.
(v) Neither Xxxx nor any of its subsidiaries is liable for
any Tax imposed on any other entity, except as the result of the
application of Treasury Regulations Section 1.1502-6 (and any comparable
provision of the tax laws of any state, local or foreign jurisdiction) to
the affiliated group of which Xxxx is the common parent.
(vi) There are no liens for Taxes on any of the assets of
Xxxx or its subsidiaries, except for statutory liens for Taxes that are not
yet due and payable.
(vii) Neither Xxxx nor any of its subsidiaries is a party to
any agreement, plan, contract or arrangement that could result,
individually or in aggregate, in a payment of any "excess parachute
payments" within the meaning of Section 280G of the Code.
(viii) Neither Xxxx nor any of its subsidiaries has been
included in any "consolidated," "unitary" or "combined" Tax Return (other
than Tax Returns which include only Xxxx and subsidiaries of Xxxx) provided
for under the laws of the United States, any foreign jurisdiction or any
state or locality with respect to material Taxes for any taxable period for
which the statute of limitations has not expired (taking into account all
applicable extensions).
(ix) No election under section 341(f) of the Code has been
made or shall be made prior to the Closing Date to treat Xxxx or any of its
subsidiaries as a consenting corporation, as defined in section 341 of the
Code.
(x) "Tax" or "Taxes" means all taxes, charges, levies or
other like assessments imposed by any governmental authority, including any
income, gross receipts, license, severance, occupation, premium,
environmental (including taxes under Code Section 59A), customs, duties,
profits, disability, alternative or add-on minimum, estimated, withholding,
payroll, employment, unemployment insurance, social security (or similar),
excise, sales, use, value-added, occupancy, franchise, real property,
personal property, business and occupation, mercantile, windfall profits,
capital stock, stamp, transfer, workmen's compensation or other taxes,
charges, levies or other like assessments of any kind whatsoever, together
with any interest, penalties, additions to tax or additional amounts
imposed by any Governmental Entity, whether disputed or not. "Tax
Authority" means any Governmental Entity responsible for the administration
of any Taxes. "Tax Return" means any returns, declarations, statements,
claim for refund, election, estimate, reports, forms and information
returns and any schedules or amendments thereto relating to Taxes.
(m) Voting Requirements. The affirmative vote at the Xxxx
Shareholders Meeting (the "Xxxx Shareholder Approval") of the holders of
two-thirds of all outstanding shares of Xxxx Common Stock is necessary to
approve this Agreement, the Merger and the other transactions contemplated.
The Xxxx Shareholder Approval is the only vote necessary to approve the
transactions contemplated by this Agreement.
(n) Rights Agreement. The Board of Directors of Xxxx has resolved
to, and promptly after the execution hereof Xxxx shall, take all action
necessary to render the Xxxx Rights inapplicable to this Agreement, the
Mergers and the other transactions contemplated hereby and to cause the
Xxxx Rights to expire immediately prior to the Effective Time.
(o) Takeover Statutes and Charter Provisions. Assuming that
Westvaco does not own, directly or indirectly, 10% or more of the Xxxx
Common Stock, the Board of Directors of Xxxx has taken all action necessary
to render any potentially applicable anti-takeover or similar statute or
regulation inapplicable to this Agreement and the transactions contemplated
hereby.
(p) Intellectual Property.
(i) Xxxx and its subsidiaries own, free and clear of all
Liens, or have the right to use pursuant to valid license, sublicense,
agreement or permission all items of Intellectual Property necessary for
their operations, as currently conducted or as contemplated by them to be
conducted, except where the failure to own or have such rights,
individually or in the aggregate, would not reasonably be expected to have
a material adverse effect on Xxxx. The conduct of Xxxx'x and its
subsidiaries' businesses, as currently conducted or contemplated by them to
be conducted, does not interfere, infringe, misappropriate, dilute or
violate any of the Intellectual Property rights of any third party, except
for interferences, infringements, misappropriations, dilutions or
violations which, individually or in the aggregate, would not be reasonably
expected to have a material adverse effect on Xxxx. To the knowledge of
Xxxx, no third party has interfered with, infringed upon, misappropriated,
diluted, violated or otherwise come into conflict with any Intellectual
Property rights of Xxxx or any of its subsidiaries, except for
interferences, infringements, misappropriations, dilutions or violations
that, individually or in the aggregate, would not reasonably be expected to
have a material adverse effect on Xxxx.
(ii) As used in this Agreement, "Intellectual Property"
means, collectively, patents, trademarks, service marks, trade dress,
logos, trade names, Internet domain names, designs, slogans and general
intangibles of like nature, copyrights and all registrations, applications,
reissuances, continuations, continuations-in-part, revisions, extensions,
reexaminations and associated goodwill with respect to each of the
foregoing, computer software (including source and object codes), computer
programs, computer databases and related documentation and materials, data,
documentation, technology, trade secrets, confidential business information
(including ideas, formulae, algorithms, models, methodologies,
compositions, know-how, manufacturing and production processes and
techniques, research and development information, drawings, designs, plans,
proposals and technical data, financial, marketing and business data and
pricing and cost information) and other intellectual property rights (in
whatever form or medium).
(q) Certain Contracts. Except as set forth in the Xxxx Filed SEC
Documents, neither Xxxx nor any of its subsidiaries is a party to or bound
by (i) any "material contract" (as such term is defined in Item 601(b)(10)
of Regulation S-K of the SEC), or (ii) any non-competition agreement or any
other agreement or obligation which purports to limit in any material
respect the manner in which, or the localities in which, all or any
material portion of the businesses of Xxxx and its subsidiaries (including,
for purposes of this Section 4.1(q), Parent, Westvaco and its subsidiaries,
assuming the Mergers have taken place), taken as a whole, is or would be
conducted (all contracts of the types described in clauses (i) and (ii),
collectively, the "Xxxx Material Contracts"). Xxxx has delivered to
Westvaco or provided to Westvaco for review, prior to the execution of this
Agreement, true and complete copies of all Xxxx Material Contracts not
filed as exhibits to the Xxxx Filed SEC Documents. Each Xxxx Material
Contract is valid and binding on Xxxx (or, to the extent a Xxxx subsidiary
is a party, such subsidiary) and is in full force and effect, and Xxxx and
each Xxxx subsidiary have in all material respects performed all
obligations required to be performed by them to date under each Xxxx
Material Contract, except where such noncompliance, individually or in the
aggregate, would not have a material adverse effect on Xxxx. Neither Xxxx
nor any Xxxx subsidiary knows of, or has received notice of, any violation
or default under (nor, to the knowledge of Xxxx, does there exist any
condition that with the passage of time or the giving of notice or both
would result in such a violation or default under) any Xxxx Material
Contract.
(r) Environmental Protection. Environmental Protection.
(i) Except as set forth in the Xxxx Filed SEC Documents:
(1) Xxxx and each of the Xxxx subsidiaries are in
compliance with all applicable Environmental Laws (as defined in
Section 4.1(r)(ii)(2)) and neither Xxxx nor any of the Xxxx
subsidiaries has received any communication (written or oral) from any
person or Governmental Authority that alleges that Xxxx or any of the
Xxxx subsidiaries is not in such compliance with applicable
Environmental Laws, except where the failure to so comply or where such
alleged non-compliance would not have a material adverse effect on
Xxxx. To the knowledge of Xxxx, compliance with all applicable
Environmental Laws will not require Xxxx or any Xxxx subsidiary to
incur costs, beyond those currently budgeted for the three Xxxx fiscal
years beginning with January 1, 2001, that will be reasonably likely to
result in a material adverse effect on Xxxx, including, but not limited
to, the costs of pollution control equipment that are known or
anticipated to be required in the future.
(2) Xxxx and each of the Xxxx subsidiaries have obtained
or have applied for all environmental, health and safety permits and
governmental authorizations (collectively, the "Environmental Permits")
necessary for the construction of their facilities or the conduct of
their operations except where the failure to so obtain would not have a
material adverse effect on Xxxx, and all such Environmental Permits are
in good standing or, where applicable, a renewal application has been
timely filed and is pending agency approval, and Xxxx and the Xxxx
subsidiaries are in material compliance with all terms and conditions
of the Environmental Permits, except where failure to so comply would
not reasonably likely have a material adverse effect on Xxxx.
(3) To the best knowledge of Xxxx, there are no
Environmental Claims (as defined in Section 4.1(r)(ii)(1)),
individually or in the aggregate, that would have a material adverse
effect on Xxxx pending (A) against Xxxx or any of the Xxxx
subsidiaries, (B) against any person or entity whose liability for any
Environmental Claim Xxxx or any of the Xxxx subsidiaries has or may
have retained or assumed either contractually or by operation of law,
or (C) against any real or personal property or operations which Xxxx
or any of the Xxxx subsidiaries owns, leases or manages, in whole or in
part.
(4) Xxxx has no knowledge of any Releases (as defined in
Section 4.1(r)(ii)(4)) of any Hazardous Material (as defined in Section
4.1(r)(ii)(3)) that would be reasonably likely to form the basis of any
Environmental Claim against Xxxx or any of the Xxxx subsidiaries, or
against any person or entity whose liability for any Environmental
Claim Xxxx or any of the Xxxx subsidiaries has or may have retained or
assumed either contractually or by operation of law except for any
Environmental Claims, individually or in the aggregate, that would not
reasonably likely have a material adverse effect on Xxxx.
(ii) Definitions. As used in this Agreement:
(1) "Environmental Claim" means any and all
administrative, regulatory or judicial actions, suits, demands, demand
letters, directives, claims, liens, investigations, proceedings or
notices of noncompliance or violation (written or oral) by any person
or entity (including any Governmental Authority), alleging potential
liability (including, without limitation, potential responsibility for
or liability for enforcement, investigatory costs, cleanup costs,
governmental response costs, removal costs, remedial costs, natural
resources damages, property damages, personal injuries or penalties)
arising out of, based on or resulting from (A) the presence, Release or
threatened Release into the environment of any Hazardous Materials at
any location, whether or not owned, operated, leased or managed by Xxxx
or any of the Xxxx subsidiaries (for purposes of this Section 4.1(r))
or by Westvaco or any of the Westvaco subsidiaries (for purposes of
Section 4.2(r)); or (B) circumstances forming the basis of any
violation or alleged violation of any Environmental Law; or (C) any and
all claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief
resulting from the presence or Release of any Hazardous Materials.
(2) "Environmental Laws" means all federal, state and
local laws, rules and regulations relating to pollution, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or protection of human
health as it relates to the environment including, without limitation,
laws and regulations relating to Releases or threatened Releases of
Hazardous Materials, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials.
(3) "Hazardous Materials" means (A) any petroleum or
petroleum products, radioactive materials, asbestos in any form that is
or could become friable, urea formaldehyde foam insulation and
transformers or other equipment that contain dielectric fluid
containing polychlorinated biphenyls ("PCBs"); (B) any chemicals,
materials or substances which are now ---- defined as or included in
the definition of "hazardous substances," "hazardous wastes,"
"hazardous materials," "extremely hazardous wastes," "restricted
hazardous wastes," "toxic substances," "toxic pollutants," or words of
similar import under any Environmental Law and (C) any other chemical,
material, substance or waste, exposure to which is now prohibited,
limited or regulated under any Environmental Law in a jurisdiction in
which Xxxx or any of the Xxxx subsidiaries operates (for purposes of
this Section 4.1(r)) or in which Westvaco or any of the Westvaco
subsidiaries operates (for purposes of Section 4.2(r)).
(4) "Release" means any release, spill, emission,
leaking, injection, deposit, disposal, discharge, dispersal, leaching
or migration into the atmosphere, soil, surface water, groundwater or
property.
(s) Opinion of Financial Advisors. Xxxx has received the opinion
of Xxxxxxx, Xxxxx & Co. ("Xxxxxxx Sachs"), dated the date of this
Agreement, to the effect that, as of such date, the Xxxx Merger
Consideration is fair from a financial point of view to Xxxx shareholders.
(t) Brokers. Except for fees payable to Xxxxxxx Xxxxx pursuant to
an engagement letter, dated as of April 9, 2001, no broker, investment
banker, financial advisor or other person is entitled to any broker's,
finder's, financial advisor's or other similar fee or commission in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of Xxxx.
SECTION 4.2 Representations and Warranties of Westvaco.
Except as disclosed in the disclosure schedule delivered by
Westvaco to Xxxx prior to the execution of this Agreement (the "Westvaco
Disclosure Schedule") and making reference to the particular subsection of
this Agreement to which exception is being taken (subject to the second
paragraph of the cover page of the Westvaco Disclosure Schedules), Westvaco
represents and warrants to Xxxx as follows:
(a) Organization, Standing and Corporate Power. Each of Westvaco
and its subsidiaries is a corporation or other legal entity duly organized,
validly existing and in good standing (with respect to jurisdictions which
recognize such concept) under the laws of the jurisdiction in which it is
organized and has the requisite corporate or other power, as the case may
be, and authority to carry on its business as now being conducted, except,
as to subsidiaries, for those jurisdictions where the failure to be so
organized, existing or in good standing individually or in the aggregate
would not have a material adverse effect on Westvaco. Each of Westvaco and
its subsidiaries is duly qualified or licensed to do business and is in
good standing (with respect to jurisdictions which recognize such concept)
in each jurisdiction in which the nature of its business or the ownership,
leasing or operation of its properties makes such qualification or
licensing necessary, except for those jurisdictions where the failure to be
so qualified or licensed or to be in good standing individually or in the
aggregate would not have a material adverse effect on Westvaco. Westvaco
has delivered to or made available to Xxxx prior to the execution of this
Agreement true and complete copies of any amendments to the Certificate of
Incorporation of Westvaco (the "Westvaco Certificate") and by-laws not
filed as of the date hereof with the Westvaco SEC Filed Documents (as
defined in Section 4.2(g)).
(b) Corporate Authority; Non-contravention.
(i) Westvaco has all requisite corporate power and authority
to enter into this Agreement. Subject to the Westvaco Stockholder Approval
(as defined in Section 4.2(m)), Westvaco has all requisite corporate power
and authority to consummate the transactions contemplated by this
Agreement. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Westvaco,
subject in the case of the Westvaco Merger to the Westvaco Stockholder
Approval. This Agreement has been duly executed and delivered by Westvaco
and, assuming the due authorization, execution and delivery of this
Agreement by the other parties hereto, constitutes the legal, valid and
binding obligation of Westvaco enforceable against Westvaco in accordance
with its terms.
(ii) The execution and delivery of this Agreement does not,
and the consummation of the transactions contemplated hereby and compliance
with the provisions of this Agreement shall not, conflict with, or result
in any violation of, or default (with or without notice or lapse of time,
or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or loss of a benefit under, or result in the
creation of any Lien upon any of the properties or assets of Westvaco or
any of its subsidiaries or any restriction on the conduct of Westvaco's
business or operations under, (A) the Westvaco Certificate or the by-laws
of Westvaco or the comparable organizational documents of any of its
subsidiaries, (B) any loan or credit agreement, note, bond, mortgage,
indenture, trust document, lease or other agreement, instrument, permit,
concession, franchise, license or similar authorization applicable to
Westvaco or any of its subsidiaries or their respective properties or
assets or (C) subject to the governmental filings and other matters
referred to in clause (iii) below, any judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to Westvaco or any of its
subsidiaries or their respective properties or assets, other than, in the
case of clauses (B) and (C), any such conflicts, violations, defaults,
rights, losses, restrictions or Liens that individually or in the aggregate
would not (x) have a material adverse effect on Westvaco or (y) reasonably
be expected to impair the ability of Westvaco to perform its obligations
under this Agreement. (iii) No consent, approval, order or authorization
of, action by, or in respect of, or registration, declaration or filing
with, any Governmental Entity is required by or with respect to Westvaco or
any of its subsidiaries in connection with the execution and delivery of
this Agreement by Westvaco or the consummation by Westvaco of the
transactions contemplated hereby, except for (A) compliance with any
applicable requirements of the HSR Act, with the EC Merger Regulation and
with the antitrust, competition or similar laws of any other foreign
jurisdiction; (B) the filing with the SEC of (x) the Joint Proxy Statement
relating to the Westvaco Stockholders Meeting and (y) such reports under
Section 13(a) or 15(d) of the Exchange Act as may be required in connection
with this Agreement and the transactions contemplated hereby; (C) the
filing of the Westvaco Certificate of Merger with the Secretary of State of
the State of Delaware and appropriate documents with the relevant
authorities of other states in which Westvaco is qualified to do business;
and (D) such other consents, approvals, orders or authorizations the
failure of which to be made or obtained individually or in the aggregate
would not (x) have a material adverse effect on Westvaco or (y) reasonably
be expected to impair the ability of Westvaco to perform its obligations
under this Agreement.
(iii) No consent, approval, order or authorization of, action
by, or in respect of, or registration, declaration or filing with, any
Governmental Entity is required by or with respect to Westvaco or any of
its subsidiaries in connection with the execution and delivery of this
Agreement by Westvaco or the consummation by Westvaco of the transactions
contemplated hereby, except for (A) compliance with any applicable
requirements of the HSR Act, with the EC Merger Regulation and with the
antitrust, competition or similar laws of any other foreign jurisdiction;
(B) the filing with the SEC of (x) the Joint Proxy Statement relating to
the Westvaco Stockholders Meeting and (y) such reports under Section 13(a)
or 15(d) of the Exchange Act as may be required in connection with this
Agreement and the transactions contemplated hereby; (C) the filing of the
Westvaco Certificate of Merger with the Secretary of State of the State of
Delaware and appropriate documents with the relevant authorities of other
states in which Westvaco is qualified to do business; and (D) such other
consents, approvals, orders or authorizations the failure of which to be
made or obtained individually or in the aggregate would not (x) have a
material adverse effect on Westvaco or (y) reasonably be expected to impair
the ability of Westvaco to perform its obligations under this Agreement.
(c) Capital Structure.
(i) The authorized capital stock of Westvaco consists of
300,000,000 shares of Westvaco Common Stock, 10,000,000 shares of preferred
stock, without par value ("Westvaco Preferred Stock") and 44,170 shares of
Cumulative Preferred Stock, par value $100 per share ("Westvaco Cumulative
Preferred Stock"). At the close of business on July 31, 2001, (A)
102,297,220 shares of Westvaco Common Stock were issued and outstanding,
(B) 873,447 shares of Westvaco Common Stock were held by Westvaco in its
treasury, (C) no shares of Westvaco Preferred Stock or Westvaco Cumulative
Preferred Stock were issued and outstanding, (D) there were Westvaco
Options outstanding to acquire no more than 7,329,515 shares of Westvaco
Common Stock pursuant to stock option or other stock-based compensation,
benefits or savings plans, agreements or arrangements in which current or
former employees or directors of Westvaco or its subsidiaries participate
as of the date hereof, true and complete copies of which, in each case as
amended as of the date hereof, have been filed as exhibits to the Westvaco
Filed SEC Documents or delivered to Xxxx (such plans, collectively, the
"Westvaco Stock Plans"); (E) 41,000 Westvaco SARs outstanding, with a
weighted average exercise price of $28.5122; (F) 486,136 Westvaco LSARs
outstanding, with a weighted average exercise price of $27.579 and (G)
1,500,000 shares of Westvaco cumulative preferred stock, no par value,
designated as Cumulative Preferred Stock, are reserved for issuance upon
the exercise of preferred stock purchase rights (the "Westvaco Rights")
issuable pursuant to the Rights Agreement, dated as of September 23, 1997,
between Westvaco and The Bank of New York, as rights agent (the "Westvaco
Rights Agreement"). Section 4.2(c) of the Westvaco Disclosure Schedule sets
forth a list summarizing all Westvaco Options, Westvaco SARs, and Westvaco
LSARs outstanding as of July 31, 2001 under all of the Westvaco Stock
Plans, including the term and the exercise price of each Westvaco Option.
(ii) All outstanding shares of capital stock of Westvaco are,
and all shares that may be issued as permitted by this Agreement or
otherwise shall be, when issued, duly authorized, validly issued, fully
paid and nonassessable and not subject to preemptive rights. Except as set
forth in this Section 4.2(c), and except for changes since July 31, 2001
resulting from the issuance of shares of Westvaco Common Stock pursuant to
Westvaco Options or as expressly permitted by Section 5.1(b)(ii) of this
Agreement (including by being set forth in Section 5.1(b)(ii) of the
Westvaco Disclosure Schedule), (A) there are not issued or outstanding (x)
any shares of capital stock or other voting securities of Westvaco, (y) any
securities of Westvaco or any Westvaco subsidiary convertible into or
exchangeable or exercisable for, or based upon the value of, shares of
capital stock or voting securities of Westvaco or (z) any warrants, calls,
options or other rights to acquire from Westvaco or any Westvaco subsidiary
(including any subsidiary trust), or obligations of Westvaco or any
Westvaco subsidiary to issue, any capital stock, voting securities or
securities convertible into or exchangeable or exercisable for, or based
upon the value of, capital stock or voting securities of Westvaco, and (B)
there are no outstanding obligations of Westvaco or any Westvaco subsidiary
to repurchase, redeem or otherwise acquire any such securities or to issue,
deliver or sell, or cause to be issued, delivered or sold, any such
securities.
(d) Subsidiaries.
(i) Exhibit 21 to Westvaco's Annual Report on Form 10-K for
the fiscal year ended October 31, 2000 includes all the subsidiaries of
Westvaco which as of the date of this Agreement are Significant
Subsidiaries (as defined in Rule 1-02 of Regulation S-X of the SEC. Except
as set forth on such Exhibit and for director qualifying shares, all
outstanding shares of capital stock of, or other equity interests in, each
such subsidiary have been validly issued and are fully paid and
nonassessable and are owned directly or indirectly by Westvaco, free and
clear of all Liens and free of any other restriction, including any
restriction on the right to vote, sell or otherwise dispose of such capital
stock or other ownership interests.
(ii) There are no outstanding (A) securities of Westvaco or
any Westvaco subsidiary convertible into or exchangeable or exercisable for
shares of capital stock or other voting securities or ownership interests
in any Westvaco subsidiary, (B) warrants, calls, options or other rights to
acquire from Westvaco or any Westvaco subsidiary, or obligations of
Westvaco or any Westvaco subsidiary to issue, any capital stock, voting
securities or other ownership interests in, or any securities convertible
into or exchangeable or exercisable for any capital stock, voting
securities or ownership interests in, any Westvaco subsidiary or (C)
obligations of Westvaco or any Westvaco subsidiary to repurchase, redeem or
otherwise acquire any such outstanding securities of Westvaco subsidiaries
or to issue, deliver or sell, or cause to be issued, delivered or sold, any
such securities.
(iii) Other than the Westvaco subsidiaries, Westvaco does not
directly or indirectly beneficially own any securities or other beneficial
ownership interests in any other entity except for non-controlling
investments made in the ordinary course of business in entities which are
not individually or in the aggregate material to Westvaco and its
subsidiaries as a whole.
(e) SEC Documents; Undisclosed Liabilities.
(i) Westvaco and its subsidiaries have filed all required
registration statements, prospectuses, reports, schedules, forms,
statements and other documents (including exhibits and all other
information incorporated therein) with the SEC since May 1, 1999 (the
"Westvaco SEC Documents"). As of their respective dates, the Westvaco SEC
Documents complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and the rules and
regulations of the SEC promulgated thereunder applicable to such Westvaco
SEC Documents, and none of the Westvaco SEC Documents when filed and at
their respective effective times, if applicable, contained any untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(ii) The financial statements of Westvaco included in the
Westvaco SEC Documents comply as to form, as of their respective dates of
filing with the SEC, in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with
respect thereto, have been prepared in accordance with GAAP (except, in the
case of unaudited statements, as permitted by Form 10-Q of the SEC) applied
on a consistent basis during the periods involved (except as may be
indicated in the notes thereto) and fairly present the consolidated
financial position of Westvaco and its consolidated subsidiaries as of the
dates thereof and the consolidated results of their operations and cash
flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments which are not material).
(iii) Except (A) as reflected in such financial statements or
in the notes thereto, (B) for liabilities incurred in connection with this
Agreement or the transactions contemplated hereby and (C) for liabilities
incurred since May 1, 2001 in the ordinary course of business consistent
with past practice, neither Westvaco nor any of its subsidiaries has any
liabilities or obligations of any nature which, individually or in the
aggregate, are reasonably likely to have a material adverse effect on
Westvaco.
(f) Information Supplied. None of the information supplied or to be
supplied by Westvaco specifically for inclusion or incorporation by
reference in (i) the Form S- 4 will, at the time the Form S-4 is filed with
the SEC, at any time it is amended or supplemented or at the time it
becomes effective under the Securities Act, contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they are made, not misleading or (ii) the
Joint Proxy Statement will, at the date it is first mailed to Westvaco's
stockholders or at the time of the Westvaco Stockholders Meeting, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they are made, not
misleading. The Joint Proxy Statement and the Form S-4 will comply as to
form in all material respects with the requirements of the Securities Act
and the Exchange Act and the rules and regulations thereunder, except that
no representation or warranty is made by Westvaco with respect to
statements made or incorporated by reference therein based on information
supplied by Xxxx specifically for inclusion or incorporation by reference
in the Joint Proxy Statement or the Form S-4.
(g) Absence of Certain Changes or Events. Except for liabilities
incurred in connection with this Agreement or the transactions contemplated
hereby, and except as would be permitted by Section 5.1(b) as if Section
5.1(b) were applicable as of May 1, 2001 (including by being set forth in
Section 5.1(b) of the Westvaco Disclosure Schedule), since May 1, 2001,
Westvaco and its subsidiaries have conducted their businesses only in the
ordinary course consistent with past practice or as disclosed in any
Westvaco SEC Document filed since such date and prior to the date hereof,
and since May 1, 2001 and, with respect to clauses (ii) through (vi), prior
to the date hereof, there has not been: (i) any material adverse change in
Westvaco, (ii) any declaration, setting aside or payment of any dividend or
other distribution (whether in cash, stock or property) with respect to any
of the capital stock of Westvaco or any of its subsidiaries (other than
regular quarterly dividends of $0.22 per share of Westvaco Common Stock),
(iii) any split, combination or reclassification of any of the capital
stock of Westvaco or any of its subsidiaries or any issuance or the
authorization of any issuance of any other securities in respect of, in
lieu of or in substitution for shares of the capital stock of Westvaco or
any of its subsidiaries, except for issuances of Westvaco Common Stock in
connection with Westvaco's Investor Services Plan or upon exercise of
Westvaco Options, in each case awarded prior to the date hereof in
accordance with their present terms or issued pursuant to Section 5.1(b)
(taking into account Section 5.1(b) of the Westvaco Disclosure Schedule),
(iv) except insofar as may have been disclosed in Westvaco SEC Documents
filed and publicly available prior to the date of this Agreement (as
amended to the date hereof, the "Westvaco Filed SEC Documents") or required
by a change in GAAP, any change in accounting methods, principles or
practices by Westvaco materially affecting its assets, liabilities or
business, (v) except insofar as may have been disclosed in the Westvaco
Filed SEC Documents, any tax election that individually or in the aggregate
would have a material adverse effect on Westvaco or any of its tax
attributes or any settlement or compromise of any material income tax
liability or (vi) any action taken by Westvaco or any of the Westvaco
subsidiaries during the period from May 1, 2001, through the date of this
Agreement that, if taken during the period from the date of this Agreement
through the Effective Time, would constitute a breach of Section 5.1(b)
(taking into account Section 5.1(b) of the Westvaco Disclosure Schedule).
(h) Compliance with Applicable Laws; Outstanding Orders.
(i) Westvaco, its subsidiaries and employees hold all
permits, licenses, variances, exemptions, orders, registrations and
approvals of all Governmental Entities that are required for the operation
of the businesses of Westvaco and its subsidiaries (the "Westvaco Permits")
except where the failure to have any such Westvaco Permits, individually or
in the aggregate, would not have a material adverse effect on Westvaco.
Except as specifically disclosed in the Westvaco Filed SEC Documents,
Westvaco and its subsidiaries are in compliance with the terms of the
Westvaco Permits and all Applicable Laws relating to Westvaco and its
subsidiaries or their respective business or properties, except where the
failure to be in compliance with such Applicable Laws individually or in
the aggregate would not have a material adverse effect on Westvaco. Except
as disclosed in the Westvaco Filed SEC Documents, no action, demand,
requirement or investigation by any Governmental Entity and no suit,
action, investigation or proceeding by any person, in each case with
respect to Westvaco or any of its subsidiaries or any of their respective
properties, is pending or, to the knowledge of Westvaco, threatened, other
than, in each case, those the outcome of which individually or in the
aggregate would not reasonably be expected to (A) have a material adverse
effect on Westvaco or (B) impair the ability of Westvaco to perform its
obligations under this Agreement or (C) prevent or materially delay the
consummation of any of the transactions contemplated hereby.
(ii) Neither Westvaco nor any Westvaco subsidiary is subject
to any outstanding order, injunction or decree that has had or would,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on Westvaco or prevent or materially delay the consummation
of the transactions contemplated hereby.
(i) Litigation. There is no Action pending against or, to the
knowledge of Westvaco, threatened against or affecting Westvaco or any of
its subsidiaries or any of their respective properties or any of their
respective officers or directors before any court or arbitrator or any
Governmental Entity except as would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on Westvaco,
materially impair the ability of Westvaco to perform its obligations under
this Agreement or prevent or materially delay the consummation of the
transactions contemplated hereby.
(j) Absence of Changes in Benefit Plans. Westvaco has delivered to
Xxxx or made available to Xxxx for review true and complete copies of (i)
all severance and employment agreements between Westvaco, on the one hand,
and of its directors, executive officers or key employees, on the other
hand, (ii) all severance programs and policies of each of Westvaco and each
Westvaco subsidiary affecting U.S. employees, and (iii) all plans or
arrangements of Westvaco and each Westvaco subsidiary relating to its
employees that contain change in control provisions and, in each case, that
has not been filed as an exhibit to a Westvaco Filed SEC Document. With
respect to each Westvaco Benefit Plan (as defined in this Section 4.2(j))
that covers individuals employed in the United States, Westvaco has
delivered or made available to Xxxx a true, correct and complete copy of:
(i) the most recent annual report (Form 5500 Series) and accompanying
schedule, if any; (ii) the current summary plan description and any
material modifications thereto, if any (in each case, whether or not
required to be furnished under ERISA); (iii) the most recent annual
financial report, if any; and (iv) the most recent actuarial report, if
any. Since May 1, 2001, except as would be permitted by Section 5.1(b) as
if Section 5.1(b) were applicable as of May 1, 2001 (including by being set
forth in Section 5.1(b) of the Westvaco Disclosure Schedule), there has not
been any adoption or amendment by Westvaco or any of its subsidiaries of
any Westvaco Benefit Plan or Westvaco Collective Bargaining Agreement that,
when aggregated with other such adoptions or amendments, materially
increases the obligations and liabilities of Westvaco and its subsidiaries
under the Westvaco Collective Bargaining Agreements and the Westvaco
Benefit Plans. "Westvaco Benefit Plans" shall mean, with respect to current
or former directors, officers or employees of Westvaco or any of its
subsidiaries, any material bonus, pension, profit sharing, deferred
compensation, incentive compensation, stock ownership, stock purchase,
stock option, phantom stock, retirement, vacation, severance, disability,
death benefit, hospitalization, medical or other plan, arrangement or
understanding, in each case, with respect to which Westvaco or any of its
subsidiaries could have any liability. Since May 1, 2001, there has not
been any material change in any actuarial or other assumption used to
calculate funding obligations with respect to any Westvaco pension plans,
or any material change in the manner in which contributions to any Westvaco
pension plans are made or the basis on which such contributions are
determined. Since May 1, 2001, neither Westvaco nor any Westvaco subsidiary
has amended any Westvaco Options or any Westvaco Stock Plans to accelerate
the vesting of, or release restrictions on, awards thereunder, or to
provide for such acceleration in the event of a change in control.
(k) Benefit Plans.
(i) Each Westvaco Benefit Plan has been administered in
accordance with its terms, except for any failures so to administer any
Westvaco Benefit Plan that individually or in the aggregate would not have
a material adverse effect on Westvaco. To the knowledge of Westvaco, the
Westvaco Benefit Plans have been operated, and are, in compliance with the
applicable provisions of ERISA, the Code and all other applicable laws and
the terms of all Westvaco Collective Bargaining Agreements (as defined in
this Section 4.2(k)), except for any failures to be in such compliance that
individually or in the aggregate would not have a material adverse effect
on Westvaco. Each Westvaco Benefit Plan that is intended to be qualified
under section 401(a) or 401(k) of the Code has received a favorable
determination letter from the IRS that it is so qualified and each trust
established in connection with any Westvaco Benefit Plan that is intended
to be exempt from federal income taxation under section 501(a) of the Code
has received a determination letter from the IRS that such trust is so
exempt. To the knowledge of Westvaco, no fact or event has occurred since
the date of any determination letter from the IRS that could affect
adversely the qualified status of any such Westvaco Benefit Plan or the
exempt status of any such trust except for facts or events that can be
cured without any material liability on the part of Westvaco and its
subsidiaries.
(ii) With respect to each of the Westvaco Benefit Plans which
is subject to Title IV of ERISA, the present value of accrued benefits
under such plan, based upon the actuarial assumptions used for funding
purposes in the most recent actuarial report prepared by such plan's
actuary with respect to such plan, did not, as of its latest valuation
date, exceed the then current value of the assets of such plan allocable to
such accrued benefits. No Westvaco Benefit Plan nor any trust established
under a Westvaco Benefit Plan has incurred any "accumulated funding
deficiency" (as defined in section 302 of ERISA and section 412 of the
Code), whether or not waived, as of the last day of the most recent fiscal
year of each of the Westvaco Benefit Plans ended prior to the date of this
Agreement.
(iii) No Westvaco Benefit Plan provides medical benefits
(whether or not insured) with respect to current or former employees after
retirement or other termination of service (other than coverage mandated by
applicable law or benefits, the full cost of which is borne by the current
or former employee) other than individual arrangements the amounts of which
are not material.
(iv) Westvaco has previously provided to Xxxx a list of each
collective bargaining or other labor union contract applicable to persons
employed by Westvaco or any of its subsidiaries to which Westvaco or any of
its subsidiaries is a party (each a "Westvaco Collective Bargaining
Agreement"). No Westvaco Collective Bargaining Agreement is being
negotiated or renegotiated by Westvaco or any of its subsidiaries. As of
the date of this Agreement, there is no labor dispute, strike or work
stoppage against Westvaco or any of its subsidiaries pending or, to the
knowledge of Westvaco, threatened that may interfere with the respective
business activities of Westvaco or any of its subsidiaries, except where
such dispute, strike or work stoppage individually or in the aggregate
would not have a material adverse effect on Westvaco. As of the date of
this Agreement, to the knowledge of Westvaco, none of Westvaco, any of its
subsidiaries or any of their respective representatives or employees has
committed any material unfair labor practice in connection with the
operation of the respective businesses of Westvaco or any of its
subsidiaries, and there is no material charge or complaint against Westvaco
or any of its subsidiaries by the National Labor Relations Board or any
comparable Governmental Entity pending or threatened in writing.
(v) No employee of Westvaco or any Westvaco subsidiary will
be entitled to any material payment, additional benefits or any
acceleration of the time of funding (through a grantor trust or otherwise),
payment or vesting of any benefits under any Westvaco Benefit Plan as a
result of the transactions contemplated by this Agreement by virtue of
their status as a "Change in Control" (including equivalent terms such as
"Significant Change") within the meaning of the Westvaco Benefit Plans
(either alone or in conjunction with any other event such as a termination
of employment).
(vi) Except as would not have a material adverse effect on
Westvaco, there are no material unresolved claims or disputes under the
terms of, or in connection with, any Westvaco Benefit Plan (other than
routine undisputed claims for benefits), and no action, legal or otherwise,
has been commenced with respect to any material claim.
(vii) To the knowledge of Westvaco, no non-exempt "prohibited
transaction" (within the meaning of section 4975(c) of the Code) involving
any Westvaco Benefit Plan has occurred that could subject Westvaco to any
material tax penalty or other cost or liability (by indemnification or
otherwise).
(viii) No liability under Title IV of ERISA has been incurred
and not yet satisfied by Westvaco or any of its subsidiaries, or any trade
or business (whether or not incorporated) that together with Westvaco or
such subsidiary would have been deemed a "single employer" within the
meaning of section 4001(b) of ERISA at any time within the six-year period
ending on the Closing Date (a "Westvaco ERISA Affiliate") since the
effective date of ERISA that has not been satisfied in full. No condition
exists that presents a material risk to Westvaco or any of its subsidiaries
of incurring a liability under such Title, other than liability for
premiums due the Pension Benefit Guaranty Corporation. To the extent this
representation applies to section 4064, 4069 or 4204 of Title IV of ERISA,
it is made not only with respect to the Westvaco Benefit Plans, but also
with respect to any employee benefit plan, program, agreement or
arrangement subject to Title IV of ERISA to which Westvaco or any of its
subsidiaries or a Westvaco ERISA Affiliate made, or was required to make,
contributions during the six-year period ending on the Closing Date.
(ix) To the knowledge of Westvaco, all Westvaco Benefit Plans
subject to the laws of any jurisdiction outside of the United States (i)
have been maintained in accordance with all applicable requirements, (ii)
if they are intended to qualify for special tax treatment meet all
requirements for such treatment, and (iii) if they are intended to be
funded and/or book-reserved are fully funded and/or book reserved, as
appropriate, based upon reasonable actuarial assumptions.
(x) Westvaco has taken such actions as are necessary to
assure that no funding of any Westvaco grantor trust is required to occur
in connection with the execution of this Agreement or the consummation of
the transactions contemplated hereby.
(l) Taxes.
(i) Each of Westvaco and its subsidiaries has timely filed or
has caused to be timely filed all material Tax Returns required to be filed
by, or with respect to, Westvaco and its subsidiaries and all such Tax
Returns are true, complete, and correct in all material respects. Westvaco
and each of its subsidiaries have paid (or Westvaco has paid or caused to
be paid on its behalf) all Taxes shown as due on such Tax Returns, and the
most recent financial statements contained in the Westvaco Filed SEC
Documents reflect an adequate reserve in accordance with GAAP for all Tax
liabilities of Westvaco and its subsidiaries for all taxable periods and
portions thereof accrued through the date of such financial statements.
(ii) No deficiencies for any Taxes have been proposed,
asserted or assessed in writing against Westvaco or any of its subsidiaries
that are not adequately reserved for, except for deficiencies that
individually or in the aggregate would not have a material adverse effect
on Westvaco.
(iii) Neither Westvaco nor any of its subsidiaries has taken
any action or knows of any fact, agreement, plan or other circumstance that
is reasonably likely to preclude (A) the Mergers, taken together, from
qualifying as a transaction described in Section 351 of the Code or (B)
either of the Mergers from qualifying as a "reorganization" within the
meaning of Section 368(a) of the Code.
(iv) There is no audit, assessment, deficiency, claim,
investigation, examination, matter in controversy, proposed adjustment,
refund litigation or other proceeding (judicial or administrative)
currently pending with regard to any Taxes or Tax Returns of Westvaco or
its subsidiaries the adverse outcome of which, individually or in the
aggregate, is reasonably likely to have a material adverse effect on
Westvaco.
(v) Neither Westvaco nor any of its subsidiaries is liable
for any Tax imposed on any other entity, except as the result of the
application of Treasury Regulations Section 1.1502-6 (and any comparable
provision of the tax laws of any state, local or foreign jurisdiction) to
the affiliated group of which Westvaco is the common parent.
(vi) There are no liens for Taxes on any of the assets of
Westvaco or its subsidiaries, except for statutory liens for Taxes that are
not yet due and payable.
(vii) Neither Westvaco nor any of its subsidiaries is a party
to any agreement, plan, contract or arrangement that could result,
individually or in aggregate, in a payment of any "excess parachute
payments" within the meaning of Section 280G of the Code.
(viii) Neither Westvaco nor any of its subsidiaries has been
included in any "consolidated," "unitary" or "combined" Tax Return (other
than Tax Returns which include only Westvaco and subsidiaries of Westvaco)
provided for under the laws of the United States, any foreign jurisdiction
or any state or locality with respect to material Taxes for any taxable
period for which the statute of limitations has not expired (taking into
account all applicable extensions).
(ix) No election under section 341(f) of the Code has been
made or shall be made prior to the Closing Date to treat Westvaco or any of
its subsidiaries as a consenting corporation, as defined in section 341 of
the Code.
(m) Voting Requirements.
The affirmative vote at the Westvaco Stockholders Meeting (the
"Westvaco Stockholder Approval") of the holders of a majority of all
outstanding shares of Westvaco Common Stock entitled to vote at a duly
convened and held meeting of Westvaco stockholders is the only vote of the
holders of any class or series of Westvaco's capital stock necessary to
approve and adopt this Agreement and the transactions contemplated hereby,
including the Westvaco Merger.
(n) Rights Agreement. The Board of Directors of Westvaco has
resolved to, and promptly after the execution hereof Westvaco shall, take
all action necessary to render the Westvaco Rights inapplicable to this
Agreement, the Mergers and the other transactions contemplated hereby and
to cause the Westvaco Rights to expire immediately prior to the Effective
Time.
(o) Takeover Statutes and Charter Provisions. The Board of
Directors of Westvaco has taken all action necessary to render Section 203
of the DGCL, any other potentially applicable anti-takeover or similar
statute or regulation and the provisions of Article Eleventh of the
Westvaco Certificate inapplicable to this Agreement and the transactions
contemplated hereby.
(p) Intellectual Property. Westvaco and its subsidiaries own, free
and clear of all Liens, or have the right to use pursuant to valid license,
sublicense, agreement or permission all items of Intellectual Property
necessary for their operations, as currently conducted or as contemplated
by them to be conducted, except where the failure to own or have such
rights, individually or in the aggregate, would not reasonably be expected
to have a material adverse effect on Westvaco. The conduct of Westvaco's
and its subsidiaries' businesses, as currently conducted or contemplated by
them to be conducted, does not interfere, infringe, misappropriate, dilute
or violate any of the Intellectual Property rights of any third party,
except for interferences, infringements, misappropriations, dilutions or
violations which, individually or in the aggregate, would not be reasonably
expected to have a material adverse effect on Westvaco. To the knowledge of
Westvaco, no third party has interfered with, infringed upon,
misappropriated, diluted, violated or otherwise come into conflict with any
Intellectual Property rights of Westvaco or any of its subsidiaries, except
for interferences, infringements, misappropriations, dilutions or
violations that, individually or in the aggregate, would not reasonably be
expected to have a material adverse effect on Westvaco.
(q) Certain Contracts. Except as set forth in the Westvaco Filed
SEC Documents, neither Westvaco nor any of its subsidiaries is a party to
or bound by (i) any "material contract" (as such term is defined in Item
601(b)(10) of Regulation S-K of the SEC), or (ii) any non- competition
agreement or any other agreement or obligation which purports to limit in
any material respect the manner in which, or the localities in which, all
or any material portion of the businesses of Westvaco and its subsidiaries
(including, for purposes of this Section 4.2(q), Parent, Xxxx and its
subsidiaries, assuming the Mergers have taken place), taken as a whole, is
or would be conducted (all contracts of the types described in clauses (i)
and (ii), collectively, the "Westvaco Material Contracts"). Westvaco has
delivered to Xxxx or provided to Xxxx for review, prior to the execution of
this Agreement, true and complete copies of all Westvaco Material Contracts
not filed as exhibits to the Westvaco Filed SEC Documents. Each Westvaco
Material Contract is valid and binding on Westvaco (or, to the extent a
Westvaco subsidiary is a party, such subsidiary) and is in full force and
effect, and Westvaco and each Westvaco subsidiary have in all material
respects performed all obligations required to be performed by them to date
under each Westvaco Material Contract, except where such noncompliance,
individually or in the aggregate, would not have a material adverse effect
on Westvaco. Neither Westvaco nor any Westvaco subsidiary knows of, or has
received notice of, any violation or default under (nor, to the knowledge
of Westvaco, does there exist any condition that with the passage of time
or the giving of notice or both would result in such a violation or default
under) any Westvaco Material Contract.
(r) Environmental Protection.
(i) Except as set forth in the Westvaco Filed SEC Documents:
(1) Westvaco and each of the Westvaco subsidiaries are
in compliance with all applicable Environmental Laws (as defined in
Section 4.1(r)(ii)(2)) and neither Westvaco nor any of the Westvaco
subsidiaries has received any communication (written or oral) from any
person or Governmental Authority that alleges that Westvaco or any of
the Westvaco subsidiaries is not in such compliance with applicable
Environmental Laws, except where the failure to so comply or where such
alleged non-compliance would not have a material adverse effect on
Westvaco. To the knowledge of Westvaco, compliance with all applicable
Environmental Laws will not require Westvaco or any Westvaco subsidiary
to incur costs, beyond those currently budgeted for the three Westvaco
fiscal years beginning with November 1, 2000, that will be reasonably
likely to result in a material adverse effect on Westvaco, including,
but not limited to, the costs of pollution control equipment that are
known or anticipated to be required in the future.
(2) Westvaco and each of the Westvaco subsidiaries have
obtained or have applied for all Environmental Permits necessary for
the construction of their facilities or the conduct of their operations
except where the failure to so obtain would not have a material adverse
effect on Westvaco, and all such Environmental Permits are in good
standing or, where applicable, a renewal application has been timely
filed and is pending agency approval, and Westvaco and the Westvaco
subsidiaries are in material compliance with all terms and conditions
of the Environmental Permits, except where failure to so comply would
not reasonably likely have a material adverse effect on Westvaco.
(3) To the best knowledge of Westvaco, there are no
Environmental Claims (as defined in Section 4.1(r)(ii)(1)),
individually or in the aggregate, that would have a material adverse
effect on Westvaco pending (A) against Westvaco or any of the Westvaco
subsidiaries, (B) against any person or entity whose liability for any
Environmental Claim Westvaco or any of the Westvaco subsidiaries has or
may have retained or assumed either contractually or by operation of
law, or (C) against any real or personal property or operations which
Westvaco or any of the Westvaco subsidiaries owns, leases or manages,
in whole or in part.
(4) Westvaco has no knowledge of any Releases (as
defined in Section 4.1(r)(ii)(4)) of any Hazardous Material (as defined
in Section 4.1(r)(ii)(3)) that would be reasonably likely to form the
basis of any Environmental Claim against Westvaco or any of the
Westvaco subsidiaries, or against any person or entity whose liability
for any Environmental Claim Westvaco or any of the Westvaco
subsidiaries has or may have retained or assumed either contractually
or by operation of law except for any Environmental Claims,
individually or in the aggregate, that would not reasonably likely have
a material adverse effect on Westvaco.
(s) Opinion of Financial Advisors. Westvaco has received the
opinion of Xxxxxxxxx & Co., LLC and Xxxxxx Xxxxxxx & Co. Incorporated,
dated the date of this Agreement, to the effect that, as of such date, the
Westvaco Exchange Ratio is fair from a financial point of view to
Westvaco's stockholders.
(t) Brokers. Except for fees payable to Xxxxxxxxx & Co., LLC and
Xxxxxx Xxxxxxx & Co. Incorporated, pursuant to engagement letters, dated as
of August 20, 2001 and August 28, 2001, respectively, no broker, investment
banker, financial advisor or other person, is entitled to any broker's,
finder's, financial advisor's or other similar fee or commission in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of Westvaco.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
SECTION 5.1 Conduct of Business.
(a) Conduct of Business by Xxxx. Except as set forth in Section
5.1(a) of the Xxxx Disclosure Schedule, as otherwise expressly contemplated
by this Agreement or as consented to by Westvaco in writing, such consent
not to be unreasonably withheld or delayed, during the period from the date
of this Agreement to the Effective Time, Xxxx shall, and shall cause its
subsidiaries to, carry on their respective businesses in the ordinary
course consistent with past practice and, to the extent consistent
therewith, use all reasonable efforts to preserve intact their current
business organizations, use reasonable efforts to keep available the
services of their current officers and other key employees and preserve
their relationships with those persons having business dealings with them
to the end that their goodwill and ongoing businesses shall be unimpaired
at the Effective Time. Without limiting the generality of the foregoing
(but subject to the above exceptions, including those exceptions set forth
on Section 5.1(a) of the Xxxx Disclosure Schedule), during the period from
the date of this Agreement to the Effective Time, Xxxx shall not, and shall
not permit any of its subsidiaries to, in either instance without the
written consent of Westvaco, which consent shall not be unreasonably
withheld or delayed:
(i) (A) other than dividends and distributions by a direct or
indirect wholly owned subsidiary of Xxxx to its parent or by a subsidiary
that is partially owned by Xxxx or any of its subsidiaries, provided that
Xxxx or any such subsidiary receives or is to receive its proportionate
share thereof and regular quarterly cash dividends of $0.17 per share
payable by Xxxx on shares of Xxxx Common Stock consistent with past
practice, declare, set aside or pay any dividends on, make any other
distributions in respect of, or enter into any agreement with respect to
the voting of, any of its capital stock, (B) split, combine or reclassify
any of its capital stock or issue or authorize the issuance of any other
securities in respect of, in lieu of or in substitution for shares of its
capital stock, or (C) purchase, redeem or otherwise acquire any shares of
capital stock of Xxxx or any of its subsidiaries or any other securities
thereof or any rights, warrants or options to acquire any such shares or
other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber or
subject to any Lien any shares of its capital stock, any other voting
securities or any securities convertible into, or any rights, warrants or
options to acquire, any such shares, voting securities or convertible
securities (other than (1) the issuance of Xxxx Common Stock upon the
exercise of Xxxx Options outstanding as of the date hereof in accordance
with their present terms, (2) the issuance of new Xxxx Options, to the
extent required, upon the exercise of Xxxx Options outstanding as of the
date hereof that include an automatic reload feature, or (3) the issuance
of Xxxx Common Stock upon the exercise of such new Xxxx Options);
(iii) except as contemplated hereby, amend the Xxxx Articles,
its regulations or other comparable organizational documents;
(iv) acquire or agree to acquire by merging or consolidating
with, or by purchasing a substantial portion of the assets or equity or
other securities of, or by any other manner, any business or any person;
(v) sell, lease, license, mortgage or otherwise encumber or
subject to any Lien or otherwise dispose of any of its material properties
or assets other than in the ordinary course of business consistent with
past practice;
(vi) incur any indebtedness for borrowed money or issue any
debt securities or assume, guarantee or endorse or otherwise as an
accommodation become responsible for the obligations of any person for
borrowed money, other than pursuant to a revolving credit facility or
receivables facility or commercial paper facility in effect as of the date
hereof (including any replacement facilities) in the ordinary course of
business consistent with past practice;
(vii) settle or compromise any material claim, action or
proceeding (including any material claim, action or proceeding relating to
Taxes) involving money damages, except in the ordinary course of business
consistent with past practice;
(viii) make any material Tax election except in the ordinary
course of business consistent with past practice;
(ix) other than in the ordinary course of business, enter
into or terminate any material contract or agreement or make any change in
any material lease or contract, other than amendments or renewals of
contracts and leases without material adverse changes of terms;
(x) grant to any current or former director, officer or other
employee of Xxxx or its subsidiaries any increase in compensation, bonus or
other benefits, except for normal increases as a result of promotions or
normal increases of base pay, bonuses, compensation or benefits, in each
case, (1) in the ordinary course of business or (2) as required under any
employment agreement or Xxxx Collective Bargaining Agreement as in effect
on the date hereof or (3) as required by applicable law or (4) in the
course of a collective bargaining process required by applicable law and
conducted in the ordinary course of business; commit itself to, or enter
into, any employment agreement involving base salary of more than $200,000
per year or a term of more than one year; accelerate the timing or funding
(through a grantor trust or otherwise) of payments or vesting under any
Xxxx Benefit Plans; or adopt or commit itself to any new Xxxx Benefit Plan
or other benefit, compensation or stock option plan or arrangement or
otherwise amend or supplement any Xxxx Benefit Plan (other than as may be
required by applicable law, an employment agreement as in effect on the
date hereof, or by a Xxxx Collective Bargaining Agreement or in the course
of a collective bargaining process required by applicable law and conducted
in the ordinary course of business) in such a manner as would, when
aggregated with other such actions, materially increase Xxxx'x obligations
(including obligations to fund benefits) under the Xxxx Benefit Plans;
(xi) enter into any agreements or arrangements that limit or
otherwise restrict Xxxx or any of its subsidiaries, or that would, after
the Effective Time, limit or restrict Parent or any of its subsidiaries,
from engaging or competing in any line of business or in any geographic
area;
(xii) change any of the accounting methods used by Xxxx or
any of its subsidiaries, unless required by GAAP; or
(xiii) authorize, or commit or agree to take, any of the
foregoing actions; provided, however, that the limitations set forth in
this Section 5.1(a) (other than clause (iii)) shall not apply to any
transaction between Xxxx and any wholly owned subsidiary of Xxxx or between
any wholly owned subsidiaries of Xxxx.
Notwithstanding the foregoing, from the date hereof until the Effective
Time, Xxxx and its subsidiaries may (x) make acquisitions of property,
assets or any business (other than pursuant to a merger or consolidation
with or into Xxxx) so long as no one acquisition or series of related
acquisitions involves the payment of consideration in an amount in excess
of $50 million, and all acquisitions pursuant to this clause (x) do not
involve the payment of consideration in excess of $150 million, in the
aggregate, and (y) sell, transfer or otherwise dispose of assets or
property so long as Xxxx and its subsidiaries do not sell, transfer and
otherwise dispose of assets and property pursuant to this clause (y) having
a fair market value in excess of $50 million, individually or $150 million,
in the aggregate.
(b) Conduct of Business by Westvaco. Except as set forth in
Section 5.1(b) of the Westvaco Disclosure Schedule, as otherwise expressly
contemplated by this Agreement or as consented to by Xxxx in writing, such
consent not to be unreasonably withheld or delayed, during the period from
the date of this Agreement to the Effective Time, Westvaco shall, and shall
cause its subsidiaries to, carry on their respective businesses in the
ordinary course consistent with past practice and, to the extent consistent
therewith, use all reasonable efforts to preserve intact their current
business organizations, use reasonable efforts to keep available the
services of their current officers and other key employees and preserve
their relationships with those persons having business dealings with them
to the end that their goodwill and ongoing businesses shall be unimpaired
at the Effective Time. Without limiting the generality of the foregoing
(but subject to the above exceptions, including those exceptions set forth
on Section 5.1(b) of the Westvaco Disclosure Schedule), during the period
from the date of this Agreement to the Effective Time, Westvaco shall not,
and shall not permit any of its subsidiaries to, in either instance without
the written consent of Xxxx, which consent shall not be unreasonably
withheld or delayed:
(i) (A) other than dividends and distributions by a direct or
indirect wholly owned subsidiary of Westvaco to its parent or by a
subsidiary that is partially owned by Westvaco or any of its subsidiaries,
provided that Westvaco or any such subsidiary receives or is to receive its
proportionate share thereof and regular quarterly cash dividends of $0.22
per share payable by Westvaco on shares of Westvaco Common Stock consistent
with past practices, declare, set aside or pay any dividends on, make any
other distributions in respect of, or enter into any agreement with respect
to the voting of, any of its capital stock or the capital stock of any of
its subsidiaries, (B) split, combine or reclassify any of its capital stock
or issue or authorize the issuance of any other securities in respect of,
in lieu of or in substitution for shares of its capital stock or the
capital stock of any of its subsidiaries, or (C) purchase, redeem or
otherwise acquire any shares of capital stock of Westvaco or any of its
subsidiaries or any other securities thereof or any rights, warrants or
options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber or
subject to any Lien any shares of its capital stock, any other voting
securities or any securities convertible into, or any rights, warrants or
options to acquire, any such shares, voting securities or convertible
securities (other than the issuance of Westvaco Common Stock upon the
exercise of Westvaco Options outstanding as of the date hereof in
accordance with their present terms or the issuance of Westvaco Options);
(iii) except as contemplated hereby, amend the Westvaco
Certificate, its by-laws or other comparable organizational documents;
(iv) acquire or agree to acquire by merging or consolidating
with, or by purchasing a substantial portion of the assets or equity or
other securities of, or by any other manner, any business or any person;
(v) sell, lease, license, mortgage or otherwise encumber or
subject to any Lien or otherwise dispose of any of its material properties
or assets other than in the ordinary course of business consistent with
past practice;
(vi) incur any indebtedness for borrowed money or issue any
debt securities or assume, guarantee or endorse or otherwise as an
accommodation become responsible for the obligations of any person for
borrowed money, other than pursuant to a revolving credit facility or
receivables facility or commercial paper facility in effect as of the date
hereof (including any replacement facilities) in the ordinary course of
business consistent with past practice;
(vii) settle or compromise any material claim, action or
proceeding (including any material claim, action or proceeding relating to
Taxes) involving money damages, except in the ordinary course of business
consistent with past practice;
(viii) make any material Tax election except in the ordinary
course of business consistent with past practice;
(ix) other than in the ordinary course of business, enter
into or terminate any material contract or agreement or make any change in
any material lease or contract, other than amendments or renewals of
contracts and leases without material adverse changes of terms;
(x) grant to any current or former director, officer or other
employee of Westvaco or its subsidiaries any increase in compensation,
bonus or other benefits, except for normal increases as a result of
promotions, normal increases of base pay, bonuses, compensation or
benefits, in each case, (1) in the ordinary course of business or (2) as
required under any employment agreement or Westvaco Collective Bargaining
Agreement as in effect on the date hereof or (3) as required by applicable
law or (4) in the course of a collective bargaining process required by
applicable law and conducted in the ordinary course of business; commit
itself to, or enter into, any employment agreement involving base salary of
more than $200,000 per year or a term of more than one year; accelerate the
timing or funding (through a grantor trust or otherwise) of payments or
vesting under any Westvaco Benefit Plan; or adopt or commit itself to any
new Westvaco Benefit Plan or other benefit, compensation or stock option
plan or arrangement or otherwise amend or supplement any Westvaco Benefit
Plan (other than as may be required by applicable law, an employment
agreement as in effect on the date hereof, or by a Westvaco Collective
Bargaining Agreement or in the course of a collective bargaining process
required by applicable law and conducted in the ordinary course of
business) in such a manner as would, when aggregated with other such
actions, materially increase Westvaco's obligations (including obligations
to fund benefits) under the Westvaco Benefit Plans;
(xi) enter into any agreements or arrangements that limit or
otherwise restrict Westvaco or any of its subsidiaries, or that would,
after the Effective Time, limit or restrict Parent or any of its
subsidiaries, from engaging or competing in any line of business or in any
geographic area;
(xii) change any of the accounting methods used by Westvaco
or any of its subsidiaries, unless required by GAAP; or
(xiii) authorize, or commit or agree to take, any of the
foregoing actions; provided that the limitations set forth in this Section
5.1(b) (other than clause (iii)) shall not apply to any transaction between
Westvaco and any wholly owned subsidiary of Westvaco or between any wholly
owned subsidiaries of Westvaco.
Notwithstanding the foregoing, from the date hereof until the Effective
Time, Westvaco and its subsidiaries may (x) make acquisitions of property,
assets or any business (other than pursuant to a merger or consolidation
with or into Westvaco) so long as no one acquisition or series of related
acquisitions involves the payment of consideration in an amount in excess
of $50 million, and all acquisitions pursuant to this clause (x) do not
involve the payment of consideration in excess of $150 million, in the
aggregate, and (y) sell, transfer or otherwise dispose of assets or
property so long as Westvaco and its subsidiaries do not sell, transfer and
otherwise dispose of assets and property pursuant to this clause (y) having
a fair market value in excess of $50 million, individually or $150 million,
in the aggregate.
(c) Other Actions. Except as required by law, during the period
from the date of this Agreement to the Effective Time, none of Xxxx,
Parent, Xxxxxxx Merger Sub, Xxxxxxx Merger Sub or Westvaco shall, or shall
it permit any of its subsidiaries to, take any action that would, or that
could reasonably be expected to, result in (i) any of the representations
and warranties of such party set forth in this Agreement that are qualified
as to materiality becoming untrue at the Effective Time, (ii) any of such
representations and warranties that are not so qualified becoming untrue in
any material respect at the Effective Time or (iii) any of the conditions
to the Xxxx Merger or the Westvaco Merger set forth in Article VII not
being satisfied.
(d) Advice of Changes. During the period from the date of this
Agreement to the Effective Time, each of Xxxx and Westvaco shall promptly
advise the other orally and in writing to the extent it has knowledge of
(i) any representation or warranty made by it contained in this Agreement
that is qualified as to materiality becoming untrue or inaccurate in any
respect or any such representation or warranty that is not so qualified
becoming untrue or inaccurate in any material respect, (ii) the failure by
it to comply in any material respect with or satisfy in any material
respect any covenant, condition or agreement to be complied with or
satisfied by it under this Agreement and (iii) any change or event having,
or which, insofar as can reasonably be foreseen, could reasonably be
expected to have a material adverse effect on such party or on the truth of
such party's representations and warranties or the ability of the
conditions set forth in Article VII to be satisfied; provided, however,
that no such notification shall affect the representations, warranties,
covenants or agreements of the parties (or remedies with respect thereto)
or the conditions to the obligations of the parties under this Agreement.
SECTION 5.2 No Solicitation by Xxxx.
(a) Xxxx shall not, nor shall it permit any of its subsidiaries
to, nor shall it authorize or permit any of its officers, directors or
employees or any investment banker, financial advisor, attorney, accountant
or other representative retained by it or any of its subsidiaries to,
directly or indirectly through another person, (i) solicit, initiate or
encourage (including by way of furnishing information), or take any other
action designed to facilitate, any inquiries or the making of any proposal
the consummation of which would constitute an Alternative Transaction (as
hereinafter defined) or (ii) participate in any substantive discussions or
negotiations regarding any Alternative Transaction; provided, however, that
(x) if, at any time prior to obtaining the Xxxx Shareholder Approval, the
Board of Directors of Xxxx determines in good faith, after receipt of
advice from outside counsel, that the failure to provide such information
or participate in such negotiations or discussions could reasonably be
expected to constitute a breach by Xxxx'x Board of Directors of its
fiduciary duties to Xxxx'x shareholders under applicable law and (y) after
giving two business days' notice to Westvaco of its intention to do so,
Xxxx may, in response to any such proposal that was not solicited by it and
that did not otherwise result from a breach of this Section 5.2(a), and
subject to compliance with Section 5.2(c), (A) furnish information with
respect to Xxxx and its subsidiaries to any person pursuant to a customary
confidentiality agreement containing terms as to confidentiality generally
no less restrictive than the terms of the confidentiality agreement, dated
August 7, 2001, entered into between Westvaco and Xxxx (the
"Confidentiality Agreement") and (B) participate in substantive discussions
or negotiations regarding such proposal. For purposes of this Agreement,
"Alternative Transaction" means any of (i) a transaction or series of
transactions pursuant to which any person (or group of persons) other than
Westvaco and its subsidiaries and other than Xxxx and its subsidiaries (a
"Third Party") acquires or would acquire, directly or indirectly,
beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of
more than 20% of the outstanding shares of Westvaco or Xxxx, as the case
may be, whether from Westvaco or Xxxx or pursuant to a tender offer or
exchange offer or otherwise, (ii) any acquisition or proposed acquisition
of Westvaco or any of its significant subsidiaries or Xxxx or any of its
significant subsidiaries, as the case may be, by a merger or other business
combination (including any so-called "merger of equals" and whether or not
Westvaco or any of its significant subsidiaries or Xxxx or any of its
significant subsidiaries, as the case may be, is the entity surviving any
such merger or business combination) or (iii) any other transaction
pursuant to which any Third Party acquires or would acquire, directly or
indirectly, control of assets (including for this purpose the outstanding
equity securities of subsidiaries of Westvaco or Xxxx, as the case may be,
and any entity surviving any merger or combination including any of them)
of Westvaco or any of its subsidiaries or Xxxx or any of its subsidiaries,
as the case may be, for consideration equal to 20% or more of the fair
market value of all of the outstanding shares of Westvaco Common Stock or
all of the outstanding shares of Xxxx Common Stock, as the case may be, on
the date prior to the date hereof.
(b) Neither the Board of Directors of Xxxx nor any committee
thereof shall (i) except as determined in good faith by the Board of
Directors of Xxxx that such action is required to satisfy its fiduciary
duties under applicable law or, if in response to a Xxxx Superior Proposal,
in compliance with the following sentence, withdraw, qualify or modify, or
propose publicly to withdraw, qualify or modify, in a manner adverse to
Westvaco, the approval or recommendation by such Board of Directors or such
committee of the Xxxx Merger or this Agreement, (ii) approve or recommend,
or propose publicly to approve or recommend, any Alternative Transaction or
(iii) cause Xxxx to enter into any letter of intent, agreement in
principle, acquisition agreement or other similar agreement related to any
Alternative Transaction. Notwithstanding the foregoing, in the event that
prior to obtaining the Xxxx Shareholder Approval, the Board of Directors of
Xxxx determines in good faith, after it has received a Xxxx Superior
Proposal (as defined below) and after receipt of advice from outside
counsel, that the failure to do so could reasonably be expected to
constitute a breach by the Board of Directors of Xxxx of its fiduciary
duties to Xxxx'x shareholders under applicable law, the Board of Directors
of Xxxx may (subject to this and the following sentences) inform Xxxx'x
shareholders that it no longer believes that the Xxxx Merger or this
Agreement is advisable and no longer recommends adoption and/or approval (a
"Xxxx Subsequent Determination"), but only at a time that is after the
fifth business day following Westvaco's receipt of written notice from Xxxx
advising Westvaco that the Board of Directors of Xxxx has received a Xxxx
Superior Proposal specifying the material terms and conditions of such Xxxx
Superior Proposal, identifying the person making such Xxxx Superior
Proposal and stating that it intends to make a Xxxx Subsequent
Determination. For purposes of this Agreement, a "Xxxx Superior Proposal"
means any proposal (on its most recently amended or modified terms, if
amended or modified) made by a Third Party to enter into an Alternative
Transaction that has not been solicited or facilitated in breach of Section
5.2(a) and on terms that the Board of Directors of Xxxx determines in its
good faith judgment (after obtaining advice from a financial advisor of
nationally recognized reputation) to be more favorable to Xxxx'x
shareholders than the Mergers, taking into account all relevant factors
(including (i) whether, in the good faith judgment of the Board of
Directors of Xxxx, after obtaining advice from a financial advisor of
nationally recognized reputation, the Third Party is reasonably able to
finance the transaction and (ii) any proposed changes to this Agreement
that may be proposed by Westvaco in response to such Alternative
Transaction). Notwithstanding any other provision of this Agreement, Xxxx
shall submit this Agreement to its shareholders whether or not the Board of
Directors of Xxxx makes a Xxxx Subsequent Determination, assuming such a
shareholder vote would be effective under the OGCL.
(c) In addition to the obligations of Xxxx set forth in Sections
5.2(a) and (b), Xxxx shall promptly advise Westvaco orally and in writing
of any request for information or of any proposal in connection with an
Alternative Transaction, the material terms and conditions of such request
or proposal and the identity of the person making such request or proposal.
Xxxx shall keep Westvaco reasonably informed of the status and details
(including amendments or proposed amendments) of any such request or
proposal on a current basis.
(d) Nothing contained in this Section 5.2 shall prohibit Xxxx (i)
from taking and disclosing to its shareholders a position contemplated by
Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or (ii) from
making any disclosure to its shareholders if, in the good faith judgment of
the Board of Directors of Xxxx, after receipt of advice from outside
counsel, failure so to disclose would be inconsistent with its fiduciary
duties to Xxxx'x shareholders under applicable law.
SECTION 5.3 No Solicitation by Westvaco.
(a) Westvaco shall not, nor shall it permit any of its
subsidiaries to, nor shall it authorize or permit any of its officers,
directors or employees or any investment banker, financial advisor,
attorney, accountant or other representative retained by it or any of its
subsidiaries to, directly or indirectly through another person, (i)
solicit, initiate or encourage (including by way of furnishing
information), or take any other action designed to facilitate, any
inquiries or the making of any proposal the consummation of which would
constitute an Alternative Transaction or (ii) participate in any
substantive discussions or negotiations regarding any Alternative
Transaction; provided, however, that (x) if, at any time prior to obtaining
the Westvaco Stockholder Approval, the Board of Directors of Westvaco
determines in good faith, after receipt of advice from outside counsel,
that the failure to provide such information or participate in such
negotiations or discussions could reasonably be expected to constitute a
breach by the Board of Directors of Westvaco of its fiduciary duties to
Westvaco's stockholders under applicable law and (y) after giving two
business days' notice to Xxxx of its intention to do so, Westvaco may, in
response to any such proposal that was not solicited by it and that did not
otherwise result from a breach of this Section 5.3(a), and subject to
compliance with Section 5.3(c), (A) furnish information with respect to
Westvaco and its subsidiaries to any person pursuant to a customary
confidentiality agreement containing terms as to confidentiality generally
no less restrictive than the terms of the Confidentiality Agreement and (B)
participate in substantive discussions and negotiations regarding such
proposal.
(b) Neither the Board of Directors of Westvaco nor any committee
thereof shall (i) except as determined in good faith by the Board of
Directors of Westvaco that such action is required to satisfy its fiduciary
duties under applicable law or, if in response to a Westvaco Superior
Proposal, in compliance with the following sentence, withdraw, qualify or
modify, or propose publicly to withdraw, qualify or modify, in a manner
adverse to Xxxx, the approval or recommendation by such Board of Directors
or such committee of the Westvaco Merger or this Agreement, (ii) approve or
recommend, or propose publicly to approve or recommend, any Alternative
Transaction or (iii) cause Westvaco to enter into any letter of intent,
agreement in principle, acquisition agreement or other similar agreement
related to any Alternative Transaction. Notwithstanding the foregoing, in
the event that prior to obtaining the Westvaco Stockholder Approval, the
Board of Directors of Westvaco determines in good faith, after it has
received a Westvaco Superior Proposal (as defined below) and after receipt
of advice from outside counsel, that the failure to do so could reasonably
be expected to constitute a breach by the Board of Directors of Westvaco of
its fiduciary duties to Westvaco's stockholders under applicable law, the
Board of Directors of Westvaco may (subject to this and the following
sentences) inform Westvaco stockholders that it no longer believes that the
Westvaco Merger or this Agreement is advisable and no longer recommends
adoption and/or approval (a "Westvaco Subsequent Determination"), but only
at a time that is after the fifth business day following Xxxx'x receipt of
written notice from Westvaco advising Xxxx that the Board of Directors of
Westvaco has received a Westvaco Superior Proposal, specifying the material
terms and conditions of such Westvaco Superior Proposal, identifying the
person making such Westvaco Superior Proposal and stating that it intends
to make a Westvaco Subsequent Determination. For purposes of this
Agreement, a "Westvaco Superior Proposal" means any proposal (on its most
recently amended or modified terms, if amended or modified) made by a Third
Party to enter into an Alternative Transaction that has not been solicited
or facilitated in breach of Section 5.3(a) and on terms that the Board of
Directors of Westvaco determines in its good faith judgment (after
obtaining advice from a financial advisor of nationally recognized
reputation) to be more favorable to Westvaco's stockholders than the
Mergers, taking into account all relevant factors (including (i) whether,
in the good faith judgment of the Board of Directors of Westvaco, after
obtaining advice from a financial advisor of nationally recognized
reputation, the Third Party is reasonably able to finance the transaction
and (ii) any proposed changes to this Agreement that may be proposed by
Xxxx in response to such Alternative Transaction). Notwithstanding any
other provision of this Agreement, Westvaco shall submit this Agreement to
its stockholders whether or not the Board of Directors of Westvaco makes a
Westvaco Subsequent Determination.
(c) In addition to the obligations of Westvaco set forth in
paragraphs (a) and (b) of this Section 5.3, Westvaco shall promptly advise
Xxxx orally and in writing of any request for information or of any
proposal in connection with an Alternative Transaction, the material terms
and conditions of such request or proposal and the identity of the person
making such request or proposal. Westvaco shall keep Xxxx reasonably
informed of the status and details (including amendments or proposed
amendments) of any such request or proposal on a current basis.
(d) Nothing contained in this Section 5.3 shall prohibit Westvaco
from (i) taking and disclosing to its stockholders a position contemplated
by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or (ii)
from making any disclosure to its stockholders if, in the good faith
judgment of the Board of Directors of Westvaco, after receipt of advice
from outside counsel, failure so to disclose would be inconsistent with its
fiduciary duties to Westvaco's stockholders under applicable law.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1 Preparation of the Form S-4 and the Joint Proxy
Statement; Stockholders Meetings.
(a) As soon as practicable following the date of this Agreement,
Xxxx and Westvaco shall prepare and file with the SEC the Joint Proxy
Statement, and Xxxx shall prepare and cause Parent to file with the SEC the
Form S-4, in which the Joint Proxy Statement will be included as a
prospectus. Each of Xxxx and Westvaco shall use reasonable best efforts to
have the Form S-4 declared effective under the Securities Act as promptly
as practicable after such filing. Xxxx and Westvaco shall, as promptly as
practicable after receipt thereof, provide the other party copies of any
written comments and advise the other party of any oral comments, with
respect to the Joint Proxy Statement/Prospectus received from the SEC. Xxxx
and Parent shall provide Westvaco with a reasonable opportunity to review
and comment on any amendment or supplement to the Form S-4 prior to filing
such with the SEC, and with a copy of all such filings made with the SEC.
Notwithstanding any other provision herein to the contrary, no amendment or
supplement (including by incorporation by reference) to the Joint Proxy
Statement/ Prospectus or the Form S-4 shall be made without the approval of
both Xxxx and Westvaco, which approval shall not be unreasonably withheld
or delayed; provided that with respect to documents filed by a party which
are incorporated by reference in the Form S-4 or Joint Proxy
Statement/Prospectus, this right of approval shall apply only with respect
to information relating to the other party or its business, financial
condition or results of operations, or the combined entity; and provided
further that this approval right shall not apply with respect to
information relating to a Xxxx Subsequent Determination or a Westvaco
Subsequent Determination. Xxxx shall use reasonable best efforts to cause
the Joint Proxy Statement to be mailed to Xxxx'x shareholders, and Westvaco
shall use reasonable best efforts to cause the Joint Proxy Statement to be
mailed to Westvaco's stockholders, in each case as promptly as practicable
after the Form S-4 is declared effective under the Securities Act. Xxxx
shall advise Westvaco promptly after it receives notice thereof, of the
time when the Form S-4 has become effective or any supplement or amendment
has been filed, the issuance of any stop order, the suspension of the
qualification of the Parent Common Stock issuable in connection with the
Mergers for offering or sale in any jurisdiction, or any request by the SEC
for amendment of the Joint Proxy Statement or the Form S-4 or comments
thereon and responses thereto or requests by the SEC for additional
information. If at any time prior to the Effective Time any information
relating to Xxxx or Westvaco, or any of their respective affiliates,
officers or directors, should be discovered by Xxxx or Westvaco that should
be set forth in an amendment or supplement to any of the Form S-4 or the
Joint Proxy Statement, so that any of such documents would not include any
misstatement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, the party which discovers such
information shall promptly notify the other parties hereto and an
appropriate amendment or supplement describing such information shall be
promptly filed with the SEC and, to the extent required by law,
disseminated to the stockholders of Xxxx and Westvaco.
(b) Xxxx shall, as promptly as practicable after the Form S-4 is
declared effective under the Securities Act, duly give notice of, convene
and hold a meeting of its shareholders (the "Xxxx Shareholders Meeting") in
accordance with the OGCL for the purpose of obtaining the Xxxx Shareholder
Approval and shall, subject to the provisions of Section 5.2(b), through
its Board of Directors, recommend to its shareholders the approval and/or
adoption of this Agreement, the Xxxx Merger and the other transactions
contemplated hereby.
(c) Westvaco shall, as promptly as practicable after the Form S-4
is declared effective under the Securities Act, duly give notice of,
convene and hold a meeting of its stockholders (the "Westvaco Stockholders
Meeting") in accordance with the DGCL for the purpose of obtaining the
Westvaco Stockholder Approval and shall, subject to the provisions of
Section 5.3(b), through its Board of Directors, recommend to its
stockholders the approval and adoption of this Agreement, the Westvaco
Merger and the other transactions contemplated hereby.
(d) Westvaco and Xxxx shall use reasonable best efforts to hold
the Xxxx Shareholders Meeting and the Westvaco Stockholders Meeting on the
same date and as soon as reasonably practicable after the date hereof.
SECTION 6.2 Access to Information; Confidentiality.
Subject to the Confidentiality Agreement and subject to applicable
law, each of Xxxx and Westvaco shall, and shall cause each of its
respective subsidiaries to, afford to the other party and to the officers,
employees, accountants, counsel, financial advisors and other
representatives of such other party, reasonable access, during normal
business hours during the period from the date of this Agreement to the
Effective Time, to all their respective properties, books, contracts,
commitments, personnel and records (provided that such access shall not
unreasonably interfere with the business or operations of such party), and
during such period, each of Xxxx and Westvaco shall, and shall cause each
of its respective subsidiaries to, furnish promptly to the other party all
information concerning its business, properties and personnel as such other
party may reasonably request. No review pursuant to this Section 6.2 shall
affect any representation or warranty given by the other party hereto. Each
of Xxxx and Westvaco shall hold, and shall cause its respective officers,
employees, accountants, counsel, financial advisors and other
representatives and affiliates to hold, any nonpublic information in
accordance with the terms of the Confidentiality Agreement.
SECTION 6.3 Reasonable Best Efforts.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, each of the parties agrees to use reasonable best efforts to
take, or cause to be taken, all actions, and to do, or cause to be done,
and to assist and cooperate with the other parties in doing, all things
necessary, proper or advisable to consummate and make effective, in the
most expeditious manner practicable, the Mergers and the other transactions
contemplated by this Agreement, including (i) the obtaining of all
necessary actions or nonactions, waivers, consents and approvals from
Governmental Entities, including any required action or non-action under
the Antitrust Laws (the "Required Consents") prior to the Effective Time,
and the making of all necessary registrations and filings and the taking of
all steps as may be necessary to obtain a Required Consent from, or to
avoid an action or proceeding by, any Governmental Entity, (ii) the
obtaining of all necessary consents, approvals or waivers, and any
necessary or appropriate financing arrangements, from third parties, (iii)
the defending of any lawsuits or other legal proceedings, whether judicial
or administrative, challenging this Agreement or the consummation of the
transactions contemplated by this Agreement, including seeking to have any
stay or temporary restraining order entered by any court or other
Governmental Entity vacated or reversed, and (iv) the execution and
delivery of any additional instruments necessary to consummate the
transactions contemplated by, and to fully carry out the purposes of, this
Agreement. In furtherance and not in limitation of the foregoing, each
party hereto agrees to make (i) an appropriate filing of a Notification and
Report Form pursuant to the HSR Act with respect to the transactions
contemplated hereby as promptly as practicable after the date hereof, (ii)
appropriate filings, if any are required, pursuant to the EC Merger
Regulation and/or other foreign regulatory authorities in accordance with
applicable Foreign Laws, and (iii) all other necessary filings with other
Governmental Entities relating to the Merger, and, in each case, to supply
as promptly as practicable any additional information and documentary
material that may be formally or informally requested pursuant to the
Antitrust Laws or by such authorities and to use reasonable best efforts to
cause the expiration or termination of any applicable waiting periods under
the Antitrust Laws and the receipt of the Required Consents as soon as
practicable. Notwithstanding anything to the contrary in this Agreement,
neither Xxxx nor Westvaco shall be required to hold separate (including by
trust or otherwise) or divest any of its businesses or assets or enter into
any consent decree or other agreement that would restrict it in the conduct
of its business as heretofore conducted if such action is reasonably likely
to have a material adverse effect on Parent (after giving effect to the
Mergers), including a material adverse effect on the total benefits
expected to be realized by Parent after completion of the Mergers.
(b) Each of the parties will consult and cooperate with one
another, and consider in good faith the views of one another, in connection
with any analyses, appearances, presentations, memoranda, briefs,
arguments, opinions and proposals made or submitted by or on behalf of any
party, hereto in connection with proceedings under or relating to any
Antitrust Law. Each of the parties will (i) promptly notify the other party
of any communication received by that party from, or given by it to, any
Governmental Entity and, subject to applicable law, if practicable, permit
the other party to review in advance any proposed written communication to
any such Governmental Entity and incorporate the other party*s reasonable
comments, (ii) not agree to participate in any substantive meeting or
discussion with any such Governmental Entity in respect of any filing,
investigation or inquiry concerning this Agreement or the Merger unless, to
the extent reasonably practicable, it consults with the other party in
advance and, to the extent permitted by such Governmental Entity, gives the
other party the opportunity to attend and (iii) furnish the other party
with copies of all correspondence, filings and written communications
between them and their affiliates and their respective officers, directors,
employees, agents, representatives, consultants, financial advisors,
attorneys, accountants and other agents on one hand, and any such
Governmental Entity or its respective staff on the other hand, with respect
to this Agreement and the Merger.
SECTION 6.4 Indemnification, Exculpation and Insurance.
(a) Parent agrees that at all times after the Effective Time, it
shall indemnify, or shall cause the Westvaco Surviving Corporation to
indemnify, each person who is now, or has been at any time prior to the
date of this Agreement, a director or officer of Westvaco, any of its
subsidiaries or affiliates, or of any of its successors and assigns
(individually a "Westvaco Indemnified Party" and collectively the "Westvaco
Indemnified Parties"), to the same extent and in the same manner as is now
provided in the Westvaco Certificate or its by-laws or otherwise in effect
on the date hereof (pursuant to an indemnification agreement or otherwise),
with respect to any claim, liability, loss, damage, cost or expense
(whenever asserted or claimed) based in whole or in part on, or arising in
whole or in part out of, any matter existing or occurring at or prior to
the Effective Time. Parent shall, or shall cause the Westvaco 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 Westvaco on the date hereof; provided, however,
that Parent or the Westvaco Surviving Corporation may substitute therefor
policies having at least the same coverage and containing terms and
conditions which are no less advantageous to the persons currently covered
by such policies as insured) with respect to matters existing or occurring
at or prior to the Effective Time; and provided, further, that if the
aggregate annual premiums for such policies at any time during such period
will exceed 150% of the per annum premium rate paid by Westvaco and its
subsidiaries as of the date hereof for such policies, then Parent shall, or
shall cause the Westvaco Surviving Corporation to, provide only such
coverage as will then be available at an annual premium equal to 150% of
such rate (or, if greater, the amount paid for insurance pursuant to
Section 6.4(b)).
(b) Parent agrees that at all times after the Effective Time, it
shall indemnify, or shall cause the Xxxx Surviving Corporation to
indemnify, each person who is now, or has been at any time prior to the
date of this Agreement, a director or officer of Xxxx, any of its
subsidiaries or affiliates, or of any of its successors and assigns
(individually an "Xxxx Indemnified Party" and collectively the "Xxxx
Indemnified Parties"), to the same extent and in the same manner as is now
provided in the Xxxx Articles or its code of regulations or otherwise in
effect on the date hereof (pursuant to an indemnification agreement or
otherwise), with respect to any claim, liability, loss, damage, cost or
expense (whenever asserted or claimed) based in whole or in part on, or
arising in whole or in part out of, any matter existing or occurring at or
prior to the Effective Time. Parent shall, or shall cause the Xxxx
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 Xxxx on the date hereof ; provided,
however, that Parent or the Xxxx Surviving Corporation may substitute
therefor policies having at least the same coverage and containing terms
and conditions which are no less advantageous to the persons currently
covered by such policies as insured) with respect to matters existing or
occurring at or prior to the Effective Time; and provided, further, that if
the aggregate annual premiums for such policies at any time during such
period will exceed 150% of the per annum premium rate paid by Xxxx and its
subsidiaries as of the date hereof for such policies, then Parent shall, or
shall cause the Xxxx Surviving Corporation to, provide only such coverage
as will then be available at an annual premium equal to 150% of such rate
(or, if greater, the amount paid for insurance pursuant to Section 6.4(a)).
SECTION 6.5 Fees and Expenses.
Except as set forth in this Section 6.5 and in Section 8.2, all
fees and expenses incurred in connection with the Mergers, this Agreement
and the transactions contemplated by this Agreement shall be paid by the
party incurring such fees or expenses, whether or not the Mergers are
consummated, except that each of Westvaco and Xxxx shall bear and pay
one-half of the costs and expenses (other than the fees and expenses of
each party's attorneys and accountants, which shall be borne by the party
incurring such expenses) incurred by the parties hereto in connection with
(i) the filing, printing and mailing of the Form S-4 and the Joint Proxy
Statement (including SEC filing fees) and (ii) the filings of the premerger
notification and report forms under the HSR Act and similar laws of other
jurisdictions (including filing fees).
SECTION 6.6 Public Announcements.
The initial press release relating to the Mergers shall be a joint
press release, to be agreed upon by Xxxx and Westvaco. Thereafter, Xxxx and
Westvaco shall consult with each other before issuing any press release or
making any public statement with respect to this Agreement or the
transactions contemplated hereby and shall not issue any such press release
or make any such public statement without the prior consent of the other
party, unless such consent will have been unreasonably withheld.
Notwithstanding the foregoing, any such press release or public statement
as may be required by applicable law or any listing agreement with any
national securities exchange may be issued prior to such consultation if
the party making the release or statement has used its reasonable efforts
to consult with the other party.
SECTION 6.7 Affiliates.
As soon as practicable after the date hereof, each of Westvaco and
Xxxx shall deliver to the other a letter identifying all persons who may be
deemed to be, at the time this Agreement is submitted for approval and
adoption by stockholders, "affiliates" of it for purposes of Rule 145 under
the Securities Act, and such list shall be updated as necessary to reflect
changes from the date hereof. Each of Westvaco and Xxxx shall use
reasonable best efforts to cause each person identified on its list to
deliver to the other, on or before the date immediately preceding the date
of filing the Form S-4, a written agreement substantially in the form
attached as Exhibit D and, in the event any other person becomes an
affiliate of it thereafter, to cause such person to deliver such an
agreement to the other as soon as practicable but in any event at the
Closing.
SECTION 6.8 NYSE Listing.
Xxxx shall use reasonable best efforts to cause the Parent Common
Stock issuable under Article III to be approved for listing on the NYSE,
subject to official notice of issuance, as promptly as practicable after
the date hereof, and in any event prior to the Closing Date.
SECTION 6.9 Tax Treatment.
Each of Xxxx, Westvaco and their respective subsidiaries shall use
all reasonable efforts to cause (a) the Mergers, taken together, to qualify
as a transaction described in Section 351 of the Code, (b) each of the
Mergers to qualify as a reorganization within the meaning of Section 368(a)
of the Code and (c) the delivery of the opinions of counsel referred to in
Sections 7.2(d) and 7.3(d). None of Xxxx, Westvaco or any of their
respective subsidiaries shall take any action, or allow any affiliate to
take any action, reasonably likely to preclude any of the foregoing.
SECTION 6.10 Takeover Statutes.
If any anti-takeover or similar statute or regulation is or may
become applicable to the transactions contemplated by this Agreement, each
of the parties hereto and its respective Board of Directors shall (i) grant
such approvals and take all such actions as are legally permissible so that
the transactions contemplated hereby may be consummated as promptly as
practicable on the terms contemplated hereby and (ii) otherwise act to
eliminate or minimize the effects of any such statute or regulation on the
transactions contemplated hereby.
SECTION 6.11 Conveyance Taxes.
Westvaco and Xxxx shall cooperate in the preparation, execution
and filing of all Tax Returns, questionnaires, applications or other
documents regarding any real property transfer or gains, sales, use,
transfer, value added, stock transfer and stamp taxes, any transfer,
recording, registration and other fees or any similar Taxes which become
payable in connection with the transactions contemplated by this Agreement
that are required or permitted to be filed on or before the Effective Time.
Westvaco and Xxxx shall pay on behalf of those persons holding Westvaco
Common Stock and Xxxx Common Stock, respectively, immediately prior to the
Effective Time any real estate transfer Taxes payable by such persons in
connection with the Mergers.
SECTION 6.12 Employee Benefits.
(a) From and after the Effective Time, (i) Parent shall assume and
honor all agreements and commitments listed in Section 6.12(a)(i) of the
Westvaco Disclosure Schedule and Section 6.12(a)(i)(A) of the Xxxx
Disclosure Schedule, (ii) Parent shall cause Xxxx to honor all agreements
and commitments listed in Sections 6.12(a)(i)(B) and 6.12(a)(i)(C) of the
Xxxx Disclosure Schedule, and (iii) Parent shall assume and honor all
Westvaco Stock Plans and all Xxxx Stock Plans, taking such actions as are
necessary to ensure that shares of Parent Common Stock may be subject to
awards granted under such plans. The foregoing shall not be construed to
prevent the termination of employment of any Employee (as defined below) or
the amendment or termination of any particular Xxxx Benefit Plan or
Westvaco Benefit Plan to the extent permitted by its terms as in effect
immediately before the Effective Time.
(b) For all purposes under the employee benefit plans of Parent
and its affiliates providing benefits to any current or former director,
officer or employee of Xxxx or Westvaco or any of their respective
affiliates, as the case may be (each an "Employee") after the Effective
Time (the "New Plans"), and subject to applicable law and obligations under
applicable collective bargaining agreements, each Employee shall be
credited with his or her years of service with Xxxx or Westvaco or any of
their respective affiliates, as the case may be, before the Effective Time,
to the same extent as such Employee was entitled, before the Effective
Time, to credit for such service under any similar Xxxx Benefit Plans or
Westvaco Benefit Plans, as applicable, except to the extent such credit
would result in a duplication of benefits. In addition, and without
limiting the generality of the foregoing, and subject to applicable law and
obligations under applicable collective bargaining agreements: (i) each
Employee shall be immediately eligible to participate, without any waiting
time, in any and all New Plans which are welfare benefit plans to the
extent coverage under such New Plan replaces coverage under a comparable
Xxxx Benefit Plan or Westvaco Benefit Plan, as applicable, in which such
Employee participated immediately before the Effective Time (such plans,
collectively, the "Old Plans"); and (ii) for purposes of each New Plan
providing medical, dental, pharmaceutical and/or vision benefits to any
Employee, Parent shall cause all pre-existing condition exclusions and
actively-at-work requirements of such New Plan to be waived for such
Employee and his or her covered dependents, and Parent shall cause any
eligible expenses incurred by such Employee and his or her covered
dependents during the portion of the plan year of the Old Plan ending on
the date such Employee's participation in the corresponding New Plan begins
to be taken into account under such New Plan for purposes of satisfying all
deductible, coinsurance and maximum out-of-pocket requirements applicable
to such Employee and his or her covered dependents for the applicable plan
year as if such amounts had been paid in accordance with such New Plan.
(c) The parties agree that the consummation of the transactions
contemplated by this Agreement (in the case of Westvaco) and the
shareholder approval of this Agreement (in the case of Xxxx) shall
constitute a "Change in Control" for all purposes of all compensation and
benefit plans of Westvaco and Xxxx (except for any tax-qualified defined
benefit pension plan of Xxxx). The parties further agree that for purposes
of this Section 6.12(c), the term "Change in Control" shall include all
equivalent terms as required by context (by way of illustration and not
limitation, "Significant Change").
(d) Xxxx shall take (or cause to be taken) such actions with
respect to benefit matters as are set forth in Section 6.12(d) of the Xxxx
Disclosure Schedule.
(e) Xxxx shall take (or shall cause to be taken) such actions as
are necessary to assure that no funding of any Xxxx grantor trust is
required to occur in connection with the execution of this Agreement or the
consummation of the transactions contemplated hereby.
(f) Xxxx shall amend its 2001 Annual Incentive Plan, its Long Term
Incentive Plan covering 2000-2001 and its Long Term Incentive Plan covering
2001-2002 to change the respective pro-rata payments of the then current
target incentives which would otherwise become payable upon a Change in
Control to pro-rata payments based on the level of actual achievement of
the respective performance goals through the Effective Time.
(g) Parent shall cause Xxxx to continue to provide retiree medical
benefits to Xxxx employees who meet the requirements for such benefits, in
accordance with the terms and conditions thereof in effect as of the date
hereof, until at least the first anniversary of the Effective Time. During
such one-year period the Chairman and the Chief Executive Officer shall
discuss the retiree medical benefits program in good faith, seeking to
agree on the most appropriate long-term approach to such benefits.
SECTION 6.13 Consents of Accountants.
Xxxx and Westvaco shall use reasonable best efforts to cause to be
delivered to each other consents from their respective independent
auditors, dated the date on which the Form S-4 will become effective, in
form reasonably satisfactory to the recipient and customary in scope and
substance for consents delivered by independent public accountants in
connection with registration statements on Form S-4 under the Securities
Act.
SECTION 6.14 Rights Agreements.
(a) Prior to the Effective Time, Xxxx shall not redeem the Xxxx
Rights, or amend, modify (other than to delay any "distribution date"
therein or to render the Xxxx Rights inapplicable to the Merger or any
action permitted under this Agreement) or terminate the Xxxx Rights
Agreement, unless required to do so by order of a court of competent
jurisdiction.
(b) Prior to the Effective Time, Westvaco shall not redeem the
Westvaco Rights or amend, modify (other than to delay any "distribution
date" therein or to render the Westvaco Rights inapplicable to the Merger
or any action permitted under this Agreement) or terminate the Westvaco
Rights Agreement, unless required to do so by order of a court of competent
jurisdiction.
SECTION 6.15 Transfer Statutes.
Each of Xxxx and Westvaco agrees to use reasonable best efforts to
comply promptly with all requirements of state property transfer statutes
to the extent applicable to the transactions contemplated by this Agreement
and to take all actions necessary to cause the transactions contemplated
hereby to be effected in compliance with such statutes. Xxxx and Westvaco
agree that they will consult with each other to determine what, if any,
actions must be taken prior to or after the Effective Time to ensure
compliance with such statutes. Each of Xxxx and Westvaco agrees to provide
the other with any documents to be submitted to the relevant state agencies
prior to submission.
SECTION 6.16 Section 16(b).
Xxxx and Westvaco shall take all such steps as are reasonably
necessary to cause the transactions contemplated by this Agreement and any
other dispositions of equity securities of Xxxx or Westvaco (including
derivative securities) or acquisitions of equity securities of Parent
(including derivative securities) in connection herewith by any individual
who (a) is a director or officer of Xxxx or Westvaco or (b), at the
Effective Time, will become a director or officer of Parent to be exempt
under Rule 16b-3 promulgated under the Exchange Act.
SECTION 6.17 Payment of Dividends.
(a) From the date of the Agreement until the Effective Time,
Westvaco and Xxxx shall coordinate with each other regarding the
declaration of dividends in respect of the shares of Westvaco Common Stock
and the shares of Xxxx Common Stock and the record dates and payment dates
relating thereto, it being the intention of the parties that holders of
shares of Westvaco Common Stock or Xxxx Common Stock will not receive two
dividends, or fail to receive one dividend, for any single calendar quarter
with respect to their shares of Westvaco Common Stock or Xxxx Common Stock
and the shares of Parent Common Stock any holder of shares of Westvaco
Common Stock or Xxxx Common Stock receives in exchange therefor in
connection with the Mergers.
(b) It is the intention of Xxxx and Westvaco that the initial
annual dividend rate on the shares of Parent Common Stock following the
Mergers shall be $0.92 per share.
SECTION 6.18 Employment Agreements.
At the Effective Time, Parent shall enter into employment
agreements with each of Xxxxxx X. Xxxxx and Xxxx X. Xxxx, Xx. in the form
of Exhibit E and F, respectively.
SECTION 6.19 Share Repurchase.
Westvaco shall, prior to the Effective Time, repurchase from
holders of Westvaco Common Stock at least 800,000 shares of Westvaco Common
Stock, such repurchases to be made at such times prior to the Effective
Time and upon such terms as determined by Westvaco.
SECTION 6.20 Parent Taxable Year.
Xxxx, Westvaco and Parent confirm their intention to seek to have
the taxable year of Parent immediately after the Mergers be, for federal
income tax purposes, the year ending on December 31 of each year. In
furtherance of the foregoing, Xxxx, Westvaco and Parent shall, and shall
cause their respective affiliates to, cooperate and consider in good faith
taking appropriate actions (including seeking a ruling or other
confirmation from the Internal Revenue Service) necessary to ensure that,
for federal income tax purposes, the taxable year of Parent immediately
after the Mergers shall be the year ending on December 31 of each year.
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.1 Conditions to Each Party's Obligation to Effect
The Merger.
The respective obligation of each party to effect the Mergers is
subject to the satisfaction or waiver on or prior to the Closing Date of
the following conditions:
(a) Stockholder Approvals. Each of the Xxxx Shareholder Approval
and the Westvaco Stockholder Approval will have been obtained.
(b) HSR Act. The waiting period (and any extension thereof)
applicable to the Mergers under the HSR Act will have been terminated or
will have expired.
(c) EU Approval. The approval by the European Commission of the
Mergers and the other transactions contemplated by this Agreement will have
been obtained pursuant to the EC Merger Regulation.
(d) Governmental, Regulatory and Other Approvals. (i) All required
approvals and consents of any Governmental Entity in connection with the
Mergers and the consummation of the other transactions contemplated hereby
(together with the matters contemplated by Sections 7.1(b) and 7.1(c), the
"Requisite Regulatory Approvals") will have been obtained (and all relevant
statutory, regulatory or other waiting periods of any Governmental Entity
will have expired) unless the failure to receive any such approval or
consent would not, and would not be reasonably expected to, have a material
adverse effect on Parent (after giving effect to the Mergers) at or after
the Effective Time and (ii) all such approvals and consents that have been
obtained will be on terms that would not, and would not be reasonably
expected to, have a material adverse effect on Parent (after giving effect
to the Mergers) at or after the Effective Time.
(e) No Injunctions or Restraints. No judgment, order, decree,
statute, law, ordinance, rule or regulation, entered, enacted, promulgated,
enforced or issued by any court or other Governmental Entity of competent
jurisdiction or other legal restraint or prohibition (collectively,
"Restraints") will be in effect (i) preventing the consummation of the
Mergers, or (ii) that otherwise is reasonably likely to have a material
adverse effect on Xxxx or Westvaco, as applicable, or the effective
operation of their respective businesses following consummation of the
Mergers; provided, however, that each of Xxxx and Westvaco will have used
reasonable best efforts to prevent the entry of any such Restraints and to
appeal as promptly as possible any such Restraints that may be entered.
(f) Form S-4. The Form S-4 will have become effective under the
Securities Act prior to the mailing of the Joint Proxy Statement by each of
Xxxx and Westvaco to their respective stockholders, and no stop order or
proceedings seeking a stop order will be threatened by the SEC or will have
been initiated by the SEC.
(g) NYSE Listing. The shares of Parent Common Stock issuable to
the stockholders of Xxxx and Westvaco as contemplated by Article III will
have been approved for listing on the NYSE, subject to official notice of
issuance.
SECTION 7.2 Conditions to Obligations of Westvaco.
The obligation of Westvaco to effect the Westvaco Merger is
further subject to satisfaction or waiver of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Xxxx set forth herein will be true and correct both when made
and at and as of the Closing Date, as if made at and as of such time
(except to the extent expressly made as of an earlier date, in which case
as of such date), except where the failure of such representations and
warranties (other than those set forth in Section 4.1(c)) to be so true and
correct (without giving effect to any limitation as to "materiality" or
"material adverse effect" set forth therein) does not have, and is not
likely to have, individually or in the aggregate, a "material adverse
effect" on Xxxx.
(b) Performance of Obligations of Xxxx. Xxxx will have performed
in all material respects all obligations required to be performed by it
under this Agreement at or prior to the Closing Date.
(c) Officer's Certificate. Westvaco will have received an
officer's certificate duly executed by each of the Chief Executive Officer
and Chief Financial Officer of Xxxx to the effect that the conditions set
forth in Sections 7.2(a) and 7.2(b) have been satisfied.
(d) Tax Opinion. Westvaco will have received an opinion of
Wachtell, Lipton, Xxxxx & Xxxx, in form and substance reasonably
satisfactory to Westvaco, dated the date of the Effective Time,
substantially to the effect that, on the basis of facts, representations
and assumptions set forth in such opinion, for United States federal income
tax purposes (i) the Mergers, taken together, will constitute a transaction
described in Section 351 of the Code and/or (ii) the Westvaco Merger will
constitute a reorganization within the meaning of Section 368(a) of the
Code, each of Parent, Westvaco and Xxxxxxx Merger Sub will be a party to
the reorganization within the meaning of section 368(b) of the Code and no
gain or loss will be recognized by Westvaco as a result of the Westvaco
Merger. In rendering such opinion, Wachtell, Lipton, Xxxxx & Xxxx may
receive and rely upon representations contained in certificates of Parent,
Westvaco, Xxxx and others, and the parties hereto agree to provide
Wachtell, Lipton, Xxxxx & Xxxx with such certificates as it may reasonably
request in connection with rendering its opinion.
SECTION 7.3 Conditions to Obligations of Xxxx.
The obligations of Xxxx to effect the Mergers are further subject
to satisfaction or waiver of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Westvaco set forth herein will be true and correct both when
made and at and as of the Closing Date, as if made at and as of such time
(except to the extent expressly made as of an earlier date, in which case
as of such date), except where the failure of such representations and
warranties (other than those set forth in Section 4.2(c)) to be so true and
correct (without giving effect to any limitation as to "materiality," or
"material adverse effect" set forth therein) does not have, and is not
likely to have, individually or in the aggregate, a material adverse effect
on Westvaco.
(b) Performance of Obligations of Westvaco. Westvaco will have
performed in all material respects all obligations required to be performed
by it under this Agreement at or prior to the Closing Date.
(c) Officer's Certificate. Xxxx will have received an officer's
certificate duly executed by each of the Chief Executive Officer and Chief
Financial Officer of Westvaco to the effect that the conditions set forth
in Sections 7.3(a) and 7.3(b) have been satisfied.
(d) Tax Opinion. Xxxx will have received an opinion of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, in form and substance reasonably
satisfactory to Xxxx, dated the date of the Effective Time, substantially
to the effect that, on the basis of facts, representations and assumptions
set forth in such opinion, for United States federal income tax purposes
(i) the Mergers, taken together, will constitute a transaction described in
Section 351 of the Code and/or (ii) the Xxxx Merger will constitute a
reorganization within the meaning of Section 368(a) of the Code, each of
Parent, Xxxx and Xxxxxxx Merger Sub will be a party to the reorganization
within the meaning of Section 368(b) of the Code and no gain or loss will
be recognized by Xxxx as a result of the Xxxx Merger. In rendering such
opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP may receive and rely upon
representations contained in certificates of Parent, Westvaco, Xxxx and
others, and the parties hereto agree to provide Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP with such certificates as it may reasonably request in
connection with rendering its opinion.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.1 Termination.
This Agreement may be terminated at any time prior to the
Effective Time, and (except in the case of 8.1(e) or 8.1(f)) whether before
or after the Xxxx Shareholder Approval or the Westvaco Stockholder
Approval:
(a) by mutual written consent of Westvaco and Xxxx;
(b) by either Westvaco or Xxxx:
(i) if the Mergers will not have been consummated by February
28, 2002 (the "Outside Date"); provided, however, that the right to
terminate this Agreement pursuant to this Section 8.1(b)(i) shall not be
available to any party whose failure to perform any of its obligations
under this Agreement results in the failure of the Mergers to be
consummated by such time; provided, further, however, that in the event any
of the conditions set forth in Section 7.1(b), Section 7.1(c) or Section
7.1(d) shall not have been satisfied by such date, the Outside Date shall
be extended to May 31, 2002;
(ii) if the Xxxx Shareholder Approval will not have been
obtained by reason of the failure to obtain the required vote at a Xxxx
Shareholders Meeting duly convened therefor or at any adjournment or
postponement thereof;
(iii) if the Westvaco Stockholder Approval will not have been
obtained by reason of the failure to obtain the required vote at a Westvaco
Stockholders Meeting duly convened therefor or at any adjournment or
postponement thereof;
(iv) if any Restraint having any of the effects set forth in
Section 7.1(e) will be in effect and will have become final and
nonappealable, or if any Governmental Entity that must grant a Requisite
Regulatory Approval has denied approval of the Mergers and such denial has
become final and nonappealable, provided that the party seeking to
terminate this Agreement pursuant to this Section 8.1(b)(iv) will have used
reasonable best efforts to prevent the entry of and to remove such
Restraint or to obtain such Requisite Regulatory Approval, as the case may
be;
(c) by Westvaco if Xxxx will have breached or failed to perform in
any material respect any of its representations, warranties, covenants or
other agreements contained in this Agreement, which breach or failure to
perform (i) would give rise to the failure of a condition set forth in
Section 7.2(a) or 7.2(b) and (ii) is incapable of being cured by Xxxx or is
not cured within 30 days of written notice thereof;
(d) by Xxxx if Westvaco will have breached or failed to perform in
any material respect any of its representations, warranties, covenants or
other agreements contained in this Agreement, which breach or failure to
perform (i) would give rise to the failure of a condition set forth in
Section 7.3(a) or 7.3(b) and (ii) is incapable of being cured by Westvaco
or is not cured within 30 days of written notice thereof;
(e) by Westvaco, (x) at any time prior to the Xxxx Shareholders
Meeting, if the Board of Directors of Xxxx will have (i) failed to include
in the Joint Proxy Statement to the shareholders of Xxxx, its
recommendation without modification or qualification that such shareholders
approve and/or adopt this Agreement and the transactions contemplated
hereby, (ii) subsequently withdrawn such recommendation or (iii) modified
or qualified such recommendation in a manner adverse to the interests of
Westvaco, or (y) if the Board of Directors of Xxxx shall have failed to
call the Xxxx Shareholders Meeting in breach of Section 6.1(b) and Xxxx
shall have failed to cure such breach on 30 days' notice from Westvaco;
(f) by Xxxx, (x) at any time prior to the Westvaco Stockholders
Meeting, if the Board of Directors of Westvaco will have (i) failed to
include in the Joint Proxy Statement to the stockholders of Westvaco, its
recommendation without modification or qualification that such stockholders
adopt this Agreement and the transactions contemplated hereby, (ii)
subsequently withdrawn such recommendation or (iii) modified or qualified
such recommendation in a manner adverse to the interests of Xxxx or (y) if
the Board of Directors of Westvaco shall have failed to call the Westvaco
Stockholders Meeting in breach of Section 6.1(c) and Westvaco shall have
failed to cure such breach on 30 days' notice from Xxxx;
(g) by Westvaco, if (i) the Board of Directors of Westvaco
authorizes Westvaco, subject to complying with the terms of this Agreement,
to enter into a binding written agreement concerning a transaction that
constitutes a Westvaco Superior Proposal and Westvaco notifies Xxxx in
writing that it intends to enter into such an agreement, attaching the most
current version of such agreement (or a description of all material terms
and conditions thereof) to such notice, (ii) Xxxx does not make, within
five business days of receipt of Westvaco's written notification of its
intention to enter into a binding agreement for a Westvaco Superior
Proposal, an offer that the Board of Directors of Westvaco determines, in
good faith after consultation with a financial advisor of nationally
recognized reputation, is at least as favorable to Westvaco's stockholders
as the Westvaco Superior Proposal, it being understood that Westvaco shall
not enter into any such binding agreement during such five-day period, and
(iii) Westvaco, at or prior to any termination pursuant to this Section
8.1(g), pays to Xxxx the Termination Fee (as defined below) set forth in
Section 8.2(c); or
(h) by Xxxx, if (i) the Board of Directors of Xxxx authorizes
Xxxx, subject to complying with the terms of this Agreement, to enter into
a binding written agreement concerning a transaction that constitutes a
Xxxx Superior Proposal and Xxxx notifies Westvaco in writing that it
intends to enter into such an agreement, attaching the most current version
of such agreement (or a description of all material terms and conditions
thereof) to such notice, (ii) Westvaco does not make, within five business
days of receipt of Xxxx'x written notification of its intention to enter
into a binding agreement for a Xxxx Superior Proposal, an offer that the
Board of Directors of Xxxx determines, in good faith after consultation
with a financial advisor of nationally recognized reputation, is at least
as favorable to Xxxx'x stockholders as the Xxxx Superior Proposal, it being
understood that Xxxx shall not enter into any such binding agreement during
such five-day period, and (iii) Xxxx, at or prior to any termination
pursuant to this Section 8.1(h), pays to Westvaco the Termination Fee set
forth in Section 8.2(b).
SECTION 8.2 Effect of Termination.
(a) In the event of termination of this Agreement as provided in
Section 8.1, and subject to the provisions of Section 9.1, this Agreement
shall forthwith become void, and there shall be no liability or obligation
on the part of any of the parties, except (i) as set forth in this Section
8.2 and in Sections 4.1(t), 4.2(t), 6.2 and 6.5, and (ii) nothing contained
herein shall relieve any party from liability for any willful breach
hereof.
(b) If this Agreement is terminated (i) by Westvaco pursuant to
Section 8.1(e), (ii) by Westvaco or Xxxx pursuant to Section 8.1(b)(ii)
because of the failure to obtain the Xxxx Shareholder Approval and prior to
the Xxxx Shareholders Meeting there will have been an offer or proposal
for, or an announcement of any intention with respect to (including the
filing of a statement of beneficial ownership on Schedule 13D discussing
the possibility of or reserving the right to engage in), a transaction that
would constitute a Business Combination involving Xxxx (whether or not such
offer, proposal, announcement or agreement will have been rejected or
withdrawn prior to the time of such meeting), (iii) by Xxxx or Westvaco
pursuant to Section 8.1(b)(i) because the Mergers shall not have been
consummated at or prior to the Outside Date, and at the time of the
termination the Xxxx Shareholder Approval shall not have been obtained and
there shall have been an offer or proposal for, or an announcement of any
intention with respect to (including the filing of a statement of
beneficial ownership on Schedule 13D discussing the possibility of or
reserving the right to engage in), a transaction that would constitute a
Business Combination involving Xxxx (whether or not such offer, proposal,
announcement or agreement will have been rejected or withdrawn prior to the
Outside Date); or (iv) by Xxxx pursuant to Section 8.1(h), then (A) in the
case of clauses (b)(i), (b)(ii) and (b)(iii), if within nine months of
termination of this Agreement, Xxxx or its subsidiaries enters into a
definitive agreement with any Third Party with respect to a Business
Combination or any Business Combination with respect to Xxxx or its
subsidiaries is consummated, then Xxxx shall pay to Westvaco, not later
than one business day after the earlier of the date such agreement is
entered into or such Business Combination is consummated, a termination fee
of $95,000,000 (the "Termination Fee") and (B) in the case of clause
(b)(iv), Xxxx shall pay to Westvaco, at or prior to such termination
pursuant to Section 8.1(h), the Termination Fee. Notwithstanding the
foregoing, no Termination Fee shall be payable by Xxxx to Westvaco in any
circumstance in which the Westvaco shareholders vote to disapprove this
Agreement or the transactions contemplated hereby. For purposes of this
Agreement a "Business Combination" shall mean a transaction that would
constitute an Alternative Transaction, except that for purposes of clauses
(i) and (iii) of the definition of Alternative Transaction, the applicable
percentages shall be 50%.
(c) If this Agreement is terminated (i) by Xxxx pursuant to
Section 8.1(f), (ii) by Westvaco or Xxxx pursuant to Section 8.1(b)(iii)
because of the failure to obtain the Westvaco Stockholder Approval and
prior to the Westvaco Stockholders Meeting there will have been an offer or
proposal for, or an announcement of any intention with respect to
(including the filing of a statement of beneficial ownership on Schedule
13D discussing the possibility of or reserving the right to engage in), a
transaction that would constitute a Business Combination involving Westvaco
(whether or not such offer, proposal, announcement or agreement will have
been rejected or withdrawn prior to the time of such meeting), (iii) by
Xxxx or Westvaco pursuant to Section 8.1(b)(i) because the Mergers shall
not have been consummated at or prior to the Outside Date, and at the time
of the termination the Westvaco Stockholder Approval shall not have been
obtained and there shall have been an offer or proposal for, or an
announcement of any intention with respect to (including the filing of a
statement of beneficial ownership on Schedule 13D discussing the
possibility of or reserving the right to engage in), a transaction that
would constitute a Business Combination involving Westvaco (whether or not
such offer, proposal, announcement or agreement will have been rejected or
withdrawn prior to the Outside Date); or (iv) by Westvaco pursuant to
Section 8.1(g), then (A) in the case of clauses (c)(i), (c)(ii) and
(c)(iii), if within nine months of termination of this Agreement, Westvaco
or its subsidiaries enters into a definitive agreement with any Third Party
with respect to a Business Combination or any Business Combination with
respect to Westvaco or its subsidiaries is consummated, then Westvaco shall
pay to Xxxx, not later than one business day after the earlier of the date
such agreement is entered into or such Business Combination is consummated,
the Termination Fee and (B) in the case of clause (c)(iv), Westvaco shall
pay to Xxxx, at or prior to such termination pursuant to Section 8.1(g),
the Termination Fee. Notwithstanding the foregoing, no Termination Fee
shall be payable by Westvaco to Xxxx in any circumstance in which the Xxxx
shareholders vote to disapprove this Agreement or the transactions
contemplated hereby.
(d) Each Termination Fee payable under Sections 8.2(b) and 8.2(c)
shall be payable in immediately available funds no later than the
applicable date set forth in Sections 8.2(b) and 8.2(c).
(e) Westvaco and Xxxx agree that the agreements contained in
Sections 8.2(b) and 8.2(c) are an integral part of the transaction
contemplated by this Agreement and constitute liquidated damages and not a
penalty. If one party fails to promptly pay to the other any fee due under
such Sections 8.2(b) and 8.2(c), the defaulting party shall pay the costs
and expenses (including legal fees and expenses) in connection with any
action, including the filing of any lawsuit or other legal action, taken to
collect payment.
SECTION 8.3 Amendment.
Subject to compliance with applicable law, this Agreement may be
amended by the parties hereto at any time before or after the Xxxx
Shareholder Approval or the Westvaco Stockholder Approval; provided,
however, that after any such approval, there may not be, without further
approval of the shareholders of Xxxx (in the case of the Xxxx Shareholder
Approval) and the stockholders of Westvaco (in the case of the Westvaco
Stockholder Approval), any amendment of this Agreement that changes the
amount or the form of the consideration to be delivered to the holders of
Xxxx Common Stock or Westvaco Common Stock hereunder or that by law
otherwise expressly requires the further approval of the shareholders of
Xxxx or the stockholders of Westvaco, as the case may be. This Agreement
may not be amended except by an instrument in writing signed on behalf of
each of the parties hereto and duly approved by the parties' respective
Boards of Directors or a duly authorized committee thereof.
SECTION 8.4 Extension; Waiver.
At any time prior to the Effective Time, a party hereto may,
subject to the proviso of Section 8.3 (and for this purpose treating any
waiver referred to below as an amendment), (a) extend the time for the
performance of any of the obligations or other acts of the other parties,
(b) waive any inaccuracies in the representations and warranties of the
other parties contained in this Agreement or in any document delivered
pursuant to this Agreement or (c) waive compliance by the other party with
any of the agreements or conditions contained in this Agreement. Any
agreement on the part of a party hereto to any such extension or waiver
shall be valid only if set forth in an instrument in writing signed on
behalf of such party. Any extension or waiver given in compliance with this
Section 8.4 or failure to insist on strict compliance with an obligation,
covenant, agreement or condition shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1 Nonsurvival of Representations and Warranties.
None of the representations and warranties in this Agreement or in
any instrument delivered pursuant to this Agreement shall survive the
Effective Time. This Section 9.1 shall not limit any covenant or agreement
of the parties that, by its terms, contemplates performance after the
Effective Time.
SECTION 9.2 Notices.
All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if
delivered personally, telecopied or faxed (which is confirmed) or sent by
overnight courier (providing proof of delivery) to the parties at the
following addresses (or at such other address for a party as shall be
specified by like notice):
(a) if to Westvaco, to:
Xxx Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Fax: No: (000) 000-0000
Attention: General Counsel
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
(b) if to Parent or Xxxx, to:
Xxxx World Xxxxxxxxxxxx
Xxxxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxx, Xxxx 00000
Fax: No: (000) 000-0000
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
SECTION 9.3 Definitions.
For purposes of this Agreement:
(a) An "affiliate" of any person means another person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such first person, where
"control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management policies of a person,
whether through the ownership of voting securities, by contract, as trustee
or executor, or otherwise;
(b) "material adverse change" or "material adverse effect" means,
when used in connection with Xxxx or Westvaco, any change, effect, event,
occurrence or state of facts that is or could reasonably be expected to be
materially adverse to the business, financial condition or results of
operations of Xxxx or Westvaco, as the case may be, and its subsidiaries
taken as a whole, it being understood that none of the following shall be
deemed by itself or by themselves, either alone or in combination, to
constitute a material adverse effect: (i) any change in the market price or
trading volume of Xxxx Common Stock or Westvaco Common Stock, as the case
may be, (ii) any changes resulting from the announcement of the Mergers or
the transactions contemplated hereby or from any action required to be
taken by the terms hereof, (iii) any changes in general economic conditions
in industries in which Xxxx or Westvaco, as the case may be, operates,
which conditions do not affect Xxxx or Westvaco, as the case may be,
disproportionately relative to other entities operating in such industries,
and (iv) any changes in the United States or global economy as a whole;
(c) "person" means a natural person, corporation, partnership,
limited liability company, joint venture, association, trust,
unincorporated organization or other entity;
(d) a "subsidiary" of any person means another person, an amount
of the voting securities, other voting ownership or voting partnership
interests of which is sufficient to elect at least a majority of its Board
of Directors or other governing body (or, if there are no such voting
interests, 50% or more of the equity interests of which) is owned directly
or indirectly by such first person; and
(e) "knowledge" of any person that is not a natural person means
the knowledge of such person's executive officers, including without
limitation, its Chief Executive Officer, Chief Financial Officer, general
counsel and head of human resources.
SECTION 9.4 Interpretation.
When a reference is made in this Agreement to an Article, Section
or Exhibit, such reference shall be to an Article or Section of, or an
Exhibit to, this Agreement, unless otherwise indicated. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall
be deemed to be followed by the words "without limitation." The words
"hereof," "herein" and "hereunder" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. All terms defined in this Agreement
shall have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto unless otherwise defined
therein. The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such term. Any agreement,
instrument or statute defined or referred to herein or in any agreement or
instrument that is referred to herein means such agreement, instrument or
statute as from time to time amended, modified or supplemented, including
(in the case of agreements or instruments) by waiver or consent and (in the
case of statutes) by succession of comparable successor statutes and
references to all attachments thereto and instruments incorporated therein.
References to a person are also to its permitted successors and assigns.
SECTION 9.5 Counterparts.
This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the
parties hereto and delivered to the other parties.
SECTION 9.6 Entire Agreement; No Third-Party Beneficiaries.
This Agreement (including the documents, exhibits, schedules and
instruments referred to herein), the other agreements entered into between
Xxxx and Westvaco on the date hereof relating to this Agreement and the
transactions contemplated hereby, and the Confidentiality Agreement (a)
constitute the entire agreement, and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to
the subject matter of this Agreement and (b) except for the provisions of
Section 6.4 and Section 6.12(a)(i), are not intended to confer upon any
person other than the parties any rights or remedies. Any covenants of the
parties hereto appearing in the Xxxx Disclosure Schedule or the Westvaco
Disclosure Schedule, as the case may be, shall have the same binding effect
on the parties hereto as if set forth herein.
SECTION 9.7 Governing Law.
Except to the extent the Xxxx Merger may be required to be
governed by the laws of the State of Ohio, this Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware,
regardless of the laws that might otherwise govern under applicable
principles of conflict of laws thereof.
SECTION 9.8 Assignment.
Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise by any of the parties hereto without the
prior written consent of the other parties. Any assignment in violation of
the preceding sentence shall be void. Subject to the preceding two
sentences, this Agreement will be binding upon, inure to the benefit of,
and be enforceable by the parties hereto and their respective successors
and assigns.
SECTION 9.9 Consent to Jurisdiction.
Each of the parties hereto (a) consents to submit itself to the
personal jurisdiction of any federal court located in the State of New York
or any New York state court in the event any dispute arises out of this
Agreement or any of the transactions contemplated by this Agreement, (b)
agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court, and
(c) agrees that it will not bring any action relating to this Agreement or
any of the transactions contemplated by this Agreement in any court other
than a federal court sitting in the State of New York or a New York state
court.
SECTION 9.10 Headings, etc.
The headings and table of contents contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 9.11 Severability.
If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy,
all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect insofar as the foregoing can be
accomplished without materially affecting the economic benefits anticipated
by the parties to this Agreement. Upon a determination that any term or
other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible to the
fullest extent permitted by applicable law in an acceptable manner to the
end that the transactions contemplated hereby are fulfilled to the extent
possible.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as of the
day and year first above written.
MW HOLDING CORPORATION
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: President
XXXXXXX MERGER SUB CORPORATION
By: /s/ Xxxxx Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
Title: President
XXXXXXX MERGER SUB CORPORATION
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: President
THE XXXX CORPORATION
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Chairman of the Board, Chief
Executive Officer and President
WESTVACO CORPORATION
By: /s/ Xxxx Xxxx, Xx.
---------------------------------
Name: Xxxx Xxxx, Xx.
Title: Chairman of the Board, Chief
Executive Officer and President
