EXHIBIT (d)(1)
EXECUTION COPY
AGREEMENT
Among
SULZER MEDICA USA HOLDING CO.
and
XXXXXX X. XXXXXX,
As Liquidating Trustee
Dated as of November 17, 2000
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS..................................................................................... 1
SECTION 1.01. Definitions................................................................... 1
ARTICLE II THE OFFER...................................................................................... 5
SECTION 2.01. The Offer..................................................................... 5
SECTION 2.02. Trust Action.................................................................. 6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE LIQUIDATING TRUSTEE..................................... 7
SECTION 3.01. Creation and Power of Trust................................................... 7
SECTION 3.02. Trust Agreement............................................................... 7
SECTION 3.03. Interests in the Trust........................................................ 8
SECTION 3.04. Authority Relative to This Agreement.......................................... 8
SECTION 3.05. Material Contracts; No Conflict; Required Filings and Consents................ 8
SECTION 3.06. Absence of Litigation......................................................... 9
SECTION 3.07. Offer Documents; Schedule 14D-9............................................... 9
SECTION 3.08. Tax Treatment of Trust and the Beneficiaries.................................. 9
SECTION 3.09. Brokers....................................................................... 10
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER.................................................... 10
SECTION 4.01. Corporate Organization........................................................ 10
SECTION 4.02. Authority Relative to This Agreement.......................................... 10
SECTION 4.03. No Conflict; Required Filings and Consents.................................... 10
SECTION 4.04. Financing..................................................................... 11
SECTION 4.05. Offer Documents; Proxy Statement.............................................. 11
SECTION 4.06. Brokers....................................................................... 11
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ARTICLE V OTHER AGREEMENTS................................................................................ 11
SECTION 5.01. Restrictions on Transfer of Trust Units....................................... 11
SECTION 5.02. Rights of First Offer......................................................... 12
SECTION 5.03. Trust Board Representation.................................................... 12
SECTION 5.04. Access to Information; Confidentiality........................................ 13
SECTION 5.05. No Solicitation of Transactions............................................... 13
SECTION 5.06. Notification of Certain Matters............................................... 14
SECTION 5.07. Loan to Trust................................................................. 15
SECTION 5.08. Further Action; Reasonable Best Efforts....................................... 15
SECTION 5.09. Public Announcements.......................................................... 16
SECTION 5.10. Filings with the SEC.......................................................... 16
SECTION 5.11. Transfers of Interests........................................................ 16
ARTICLE VI TERMINATION, AMENDMENT AND WAIVER.............................................................. 16
SECTION 6.01. Termination................................................................... 16
SECTION 6.02. Effect of Termination......................................................... 17
SECTION 6.03. Amendment..................................................................... 17
SECTION 6.04. Waiver........................................................................ 17
ARTICLE VII GENERAL PROVISIONS............................................................................ 18
SECTION 7.01. Notices....................................................................... 18
SECTION 7.02. Severability.................................................................. 19
SECTION 7.03. Entire Agreement; Assignment.................................................. 19
SECTION 7.04. Parties in Interest........................................................... 19
SECTION 7.05. Specific Performance.......................................................... 19
SECTION 7.06. Governing Law................................................................. 19
SECTION 7.07. Waiver of Jury Trial.......................................................... 20
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SECTION 7.08. Headings...................................................................... 20
SECTION 7.09. Counterparts.................................................................. 20
ANNEX A Conditions to the Offer
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AGREEMENT dated as of November 17, 2000 (this "Agreement") among
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SULZER MEDICA USA HOLDING CO., a Delaware corporation ("Purchaser"), and XXXXXX
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X. XXXXXX, in his capacity as liquidating trustee (including any successor
thereto, the "Liquidating Trustee") of CAPITAL PARTNERS II, LTD. LIQUIDATING
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TRUST, a liquidating trust (the "Trust") created pursuant to the Liquidating
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Trust Agreement (the "Trust Agreement") dated the date hereof between Xxxxxx X.
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Xxxxxx, as liquidation trustee of Renaissance Capital Partners II, Ltd., a Texas
limited partnership (the "Partnership"), the Liquidating Trustee and Xxx Xxxxxx
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and Xxxxxx Xxxxxx, as supervising trustees under the Trust Agreement (each a
"Supervising Trustee").
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WHEREAS, the board of directors of Purchaser has determined that it is
in the best interests of its stockholders for Purchaser to offer to purchase up
to 21,627 Trust Units upon the terms and subject to the conditions set forth
herein and has approved this Agreement and declared its advisability;
WHEREAS, the Liquidating Trustee and the Supervising Trustees
(together, the "Board of Trustees") has determined that it is in the best
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interests of the beneficiaries (the "Beneficiaries") of the Trust and
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appropriate for the management, conservation and protection of the Trust Estate
for Purchaser to offer purchase up to 21,627 Trust Units upon the terms and
subject to the conditions set forth herein and have approved this Agreement and
declared its advisability;
WHEREAS, in furtherance of such purchase, it is proposed that
Purchaser shall make a tender offer (the "Offer") to acquire up to 21,627 Trust
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Units for a purchase price in cash of $1,387.12 for each Trust Unit (such
amount, or any greater amount per such Trust Unit paid pursuant to the Offer,
being the "Per Unit Amount"), net to the seller in cash, upon the terms and
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subject to the conditions of this Agreement and the Offer; and
WHEREAS, the Board of Trustees has unanimously approved the making of
the Offer and resolved to recommend that Beneficiaries desiring to obtain
liquidity for all or a portion of their investment accept the Offer and tender
their Trust Units pursuant to the Offer.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Purchaser and Trust hereby agree as follows:
ARTICLE I
DEFINITIONS
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SECTION 1.01. Definitions.
(a) For purposes of this Agreement:
"Acquisition Proposal" means (i) any proposal or offer from any person
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relating to any direct or indirect acquisition of (A) all or a substantial
part of the assets of the
Partnership, the Trust or the Company or (B) over 20% of any of the
partnership units of the Partnership, the Trust Units or other similar
Interests in the Trust or any class of equity securities of the Company;
(ii) any tender offer or exchange offer, as defined pursuant to the
Exchange Act, that, if consummated, would result in any person beneficially
owning 20% or more of any of the partnership units of the Partnership, the
Trust Units or other similar Interests in the Trust or any class of equity
securities of the Company; (iii) any merger, consolidation, business
combination, sale of all or a substantial part of the assets,
recapitalization, liquidation, dissolution or similar transaction involving
the Partnership, the Trust or the Company; or (iv) any other transaction
the consummation of which would reasonably be expected to impede, interfere
with, prevent or materially delay the Transactions.
"affiliate" of a specified person means a person who, directly or
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indirectly through one or more intermediaries, controls, is controlled by,
or is under common control with, such specified person.
"beneficial owner", with respect to any Trust Units or any other
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securities , has the meaning ascribed to such term under Rule 13d-3(a) of
the Exchange Act.
"business day" means any day on which the principal offices of the SEC
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in Washington, D.C. are open to accept filings, or, in the case of
determining a date when any payment is due, any day on which banks are not
required or authorized to close in The City of New York.
"Company" means Tutogen Medical, Inc., a Florida corporation;
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"Company Common Stock" means the common stock, par value $0.01 per
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share, of the Company;
"control" (including the terms "controlled by" and "under common
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control with") means the possession, directly or indirectly, or as trustee
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or executor, of the power to direct or cause the direction of the
management and policies of a person, whether through the ownership of
voting securities, as trustee or executor, by contract or credit
arrangement or otherwise;
"Interests" means all rights, title and interest of any Beneficiary to
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the Trust Estate.
"knowledge of the Trust" means the knowledge of Liquidating Trustee or
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either Supervising Trustee, after due inquiry.
"Material Adverse Effect" means any event, circumstance, change or
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effect that, when taken together with all other events, circumstances,
changes and effects occurring after the date hereof, is or is reasonably
likely to be materially adverse to the business, financial condition or
results of operations of the Trust or the Company.
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"person" means an individual, corporation, partnership, limited
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partnership, limited liability company, syndicate, person (including,
without limitation, a "person" as defined in Section 13(d)(3) of the
Exchange Act), trust, association or entity or government, political
subdivision, agency or instrumentality of a government.
"subsidiary" or "subsidiaries" of any person means an affiliate
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controlled by such person, directly or indirectly, through one or more
intermediaries.
"Superior Proposal" means any Acquisition Proposal on terms which the
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Liquidating Trustee or the Board of Trustees determines, in its good faith
judgment, to be more favorable to the Beneficiaries than the Offer and for
which financing, to the extent required, is then committed.
"Taxes" shall mean any and all taxes, fees, levies, duties, tariffs,
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imposts and other charges of any kind (together with any and all interest,
penalties, additions to tax and additional amounts imposed with respect
thereto) imposed by any Governmental Authority or taxing authority,
including, without limitation, taxes or other charges on or with respect to
income, franchise, windfall or other profits, gross receipts, property,
sales, use, capital stock, payroll, employment, social security, workers'
compensation, unemployment compensation or net worth; taxes or other
charges in the nature of excise, withholding, ad valorem, stamp, transfer,
value-added or gains taxes; license, registration and documentation fees;
and customers' duties, tariffs and similar charges.
"Trust Estate" shall mean the 7,202,408 shares of Company Common
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Stock, warrants and options to purchase an additional 703,500 shares of
Company Common Stock and all of the cash and other securities held by the
Partnership prior to the date of transfer into the Trust, which
collectively constitute the entire Trust Estate under the Trust Agreement.
"Trust Unit" means the proportional share of the aggregate Interests
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in the Trust which, on the date hereof, corresponds to one partnership unit
of the Partnership.
(b) The following terms have the meaning set forth in the Sections
indicated below:
Defined Term Location of Definition
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Action (SS) 3.06
Agreement Preamble
Beneficiaries Recitals
Blue Sky Laws (SS) 3.05(c)
Board of Trustees Recitals
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Confidential Information (SS) 5.04(b)
Exchange Act (SS) 2.01(a)
GAAP (SS) 3.01(b)
Governmental Authority (SS) 3.05(c)
Law (SS) 3.05(b)
Liquidating Trustee Preamble
Minimum Condition (SS) 2.01(a)
Offer Recitals
Offer Documents (SS) 2.01(b)
Offer to Purchase (SS) 2.01(b)
Partnership Preamble
Per Unit Amount Recitals
Purchase Notice (SS) 5.02
Purchaser Preamble
Sale Notice (SS) 5.01(b)
Schedule 14D-9 (SS) 2.02(b)
Schedule TO (SS) 2.01(b)
SEC (SS) 2.01(a)
Supervising Trustee Preamble
Transactions (SS) 2.02(a)
Transfer Agreements (SS) 2.01(b)
Trust Preamble
Trust Agreement Preamble
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ARTICLE II
THE OFFER
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SECTION 2.01. The Offer. (a) Provided that none of the events
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set forth in Annex A hereto shall have occurred and be continuing, Purchaser
shall commence the Offer as promptly as reasonably practicable after the date
hereof. The obligation of Purchaser to make payment for the Trust Units pursuant
to the Offer shall be subject to the condition (the "Minimum Condition") that
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Beneficiaries shall have validly tendered, and not withdrawn, 8,651 Trust Units
prior to the expiration of the Offer and also shall be subject to the
satisfaction of each of the other conditions set forth in Annex A hereto.
Purchaser expressly reserves the right to waive any such condition, to increase
the price per Trust Unit payable in the Offer, and to make any other changes in
the terms and conditions of the Offer; provided, however, that no change may be
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made which decreases the price per Trust Unit payable in the Offer or which
reduces the maximum number of Trust Units to be purchased in the Offer or which
imposes conditions to the Offer in addition to those set forth in Annex A
hereto. Notwithstanding the foregoing, Purchaser may, without the consent of the
Liquidating Trustee: (i) extend the Offer beyond the scheduled expiration date,
which shall be 20 business days following the commencement of the Offer, if, at
the scheduled expiration of the Offer, any of the conditions to Purchaser's
obligation to pay for the Trust Units shall not be satisfied or waived; or (ii)
extend the Offer for any period required by any rule, regulation or
interpretation of the Securities and Exchange Commission (the "SEC"), or the
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staff thereof, applicable to the Offer. Purchaser shall pay for up to 21,627 of
the Trust Units which Beneficiaries have validly tendered (and not withdrawn)
promptly following the acceptance thereof for payment pursuant to the Offer;
provided that, if more than 21,627 Trust Units are so tendered, the Purchaser
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shall accept and purchase at least 21,627 Trust Units from such Beneficiaries on
a pro rata basis, with such adjustments to eliminate fractions as the Purchaser,
in its sole discretion, shall determine. Notwithstanding the immediately
preceding sentence and subject to the applicable rules of the SEC and the terms
and conditions of the Offer, Purchaser expressly reserves the right to delay
payment for Trust Units in order to comply in whole or in part with applicable
laws. Any such delay shall be effected in compliance with Rule 14e-1(c) under
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
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(b) As promptly as reasonably practicable on the date of commencement
of the Offer, Purchaser shall file with the SEC a Tender Offer Statement on
Schedule TO (together with all amendments and supplements thereto, the "Schedule
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TO") with respect to the Offer. The Schedule TO shall contain or shall
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incorporate by reference an offer to purchase (the "Offer to Purchase") and
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forms of the related transfer agreement (the "Transfer Agreements") and notices
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and any related summary advertisement (the Schedule TO, the Offer to Purchase
and such other documents, together with all supplements and amendments thereto,
being referred to herein collectively as the "Offer Documents"). Purchaser and
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Liquidating Trustee agree to correct promptly any information provided by any of
them for use in the Offer Documents that shall have become false or misleading,
and Purchaser further agrees to take all steps necessary to cause the Schedule
TO, as so corrected, to be filed with the SEC, and the other Offer Documents,
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as so corrected, to be disseminated to Beneficiaries, in each case as and to the
extent required by applicable federal securities laws.
SECTION 2.02. Trust Action. (a) The Liquidating Trustee hereby
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approves of and consents to the transfer of the Trust Units pursuant to the
Offer in accordance with Section 3.2 of the Trust Agreement and represents that
the Board of Trustees, at a meeting duly called and held on November 17, 2000,
has unanimously (i) determined that this Agreement and the transactions
contemplated hereby, including each of the Offer and the transactions
contemplated by this Agreement (collectively, the "Transactions"), are in the
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best interests of the Beneficiaries and appropriate for the management,
conservation and protection of the Trust Estate, (ii) approved, adopted and
declared advisable this Agreement and the Transactions (such approval and
adoption having been made in accordance with the Trust Agreement and applicable
law) and (iii) resolved to recommend that Beneficiaries desiring to obtain
liquidity for all or a portion of their investment accept the Offer and tender
Trust Units pursuant to the Offer, and approve and adopt this Agreement and the
Transactions. The Liquidating Trustee hereby consents to the inclusion in the
Offer Documents of the recommendation of the Board of Trustees described in the
immediately preceding sentence, and neither the Liquidating Trustee not the
Board of Trustees shall withdraw or modify such recommendation in any manner
adverse to Purchaser. Notwithstanding the foregoing, in the event that, prior to
the time of acceptance for payment of Trust Units pursuant to the Offer, the
Liquidating Trustee or the Board of Trustees determines in good faith that it is
required to do so by its fiduciary duties under the Trust Agreement and
applicable law after having received advice from outside legal counsel, the
Board of Trustees or the Liquidating Trustee may withdraw or modify its approval
or recommendation of the Offer, but only to terminate this Agreement in
accordance with Section 6.01(d)(ii) (and, concurrently with such termination,
cause the Liquidating Trustee to enter into an agreement with respect to a
Superior Proposal).
(b) As promptly as reasonably practicable on the date of commencement
of the Offer, the Liquidating Trustee shall file with the SEC a
Solicitation/Recommendation Statement on Schedule 14D-9 (together with all
amendments and supplements thereto, the "Schedule 14D-9") containing, the
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recommendation of the Board of Trustees described in Section 2.02(a), and shall
disseminate the Schedule 14D-9 to the extent required by Rule 14d-9 promulgated
under the Exchange Act, and any other applicable federal securities laws. The
Liquidating Trustee and Purchaser agree to correct promptly any information
provided by any of them for use in the Schedule 14D-9 which shall have become
false or misleading, and the Liquidating Trustee further agrees to take all
steps necessary to cause the Schedule 14D-9, as so corrected, to be filed with
the SEC and disseminated to holders of Shares, in each case as and to the extent
required by applicable federal securities laws.
(c) The Liquidating Trustee shall promptly furnish Purchaser with
mailing labels containing the names and addresses of all Beneficiaries and with
their corresponding number of Trust Units, each as of a date subsequent to the
date hereof, together with all other available listings and computer files
containing names, addresses and Trust Unit amounts of Beneficiaries and other
beneficial owners of Interests. The Liquidating Trustee shall promptly furnish
Purchaser with such additional information, including, without limitation,
updated listings and computer files of Beneficiaries, mailing labels and
security position listings, and
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such other assistance in disseminating the Offer Documents to Beneficiaries as
Purchaser may reasonably request. Subject to the requirements of applicable law,
and except for such steps as are necessary to disseminate the Offer Documents
and any other documents necessary to consummate the Offer, Purchaser shall hold
in confidence the information contained in such labels, listings and files,
shall use such information only in connection with the Transactions, and, if
this Agreement shall be terminated in accordance with Section 7.01, shall
deliver to the Liquidating Trustee all copies of such information then in its
possession.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE LIQUIDATING TRUSTEE
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As an inducement to Purchaser to enter into this Agreement, the
Liquidating Trustee hereby represents and warrants to Purchaser that:
SECTION 3.01. Creation and Power of Trust. (a) The Trust has
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been duly created and is validly existing as a trust pursuant to the laws of the
State of Texas. For U.S. federal tax purposes, the Trust is and will be treated
as a liquidating trust pursuant to Section 301.7701-4(d) of the United States
Treasury Regulations and has the requisite trust power and authority and all
necessary governmental approvals to own its assets and to carry on its
activities as it is now being conducted.
(b) Except for any rights under Actions instituted by the Partnership
and existing on the date hereof, the Trust Estate constituted all of the assets
of the Partnership immediately prior to the transfer of partnership assets into
the Trust; the Trust Estate constitutes all of the assets of the Trust; and,
except as otherwise set forth in this Agreement, the Trust has no liabilities,
including any liability for Taxes, whether or not these liabilities are
contingent, would be reflected on the balance sheet of the Trust under U.S.
generally accepted accounting principles ("GAAP"), or otherwise.
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(c) The Liquidating Trust had provided the Purchaser a copy of all of
the documents relating to the warrant to purchase shares of the Company Common
Stock, including the warrant agreement and any warrant certificate therefor,
each as amended as of the date hereof; such warrant agreement and warrant
certificate are in full force and effect; and the Trust has good and valid title
to 7,202,408 shares of Company Common Stock and warrants and options to purchase
703,500 shares of Company Common Stock and such shares and warrants are owned by
the Trust free and clear of any pledge, lien, security interest, charge, claim,
equity or encumbrance or any kind other than as may exist hereunder or under the
Trust Agreement.
SECTION 3.02. Trust Agreement. The Liquidating Trustee has
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heretofore furnished to Purchaser a complete and correct copy of the Trust
Agreement of the Trust and the Articles of Incorporation and the By-laws/1/,
each as amended to date, of the Company. Such
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/1/ RCP to confirm that the Company has Bylaws that just were not included in
their public filing.
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Trust Agreement, Articles of Incorporation and By-laws are in full force and
effect. The Trust is not in violation of the Trust Agreement or any applicable
laws related thereto.
SECTION 3.03. Interests in the Trust. The total number of Trust
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Units outstanding are 43,254 and such Trust Units represent the Interests in the
entire Trust Estate. The information heretofore furnished by the Liquidating
Trustee to Purchaser regarding the Beneficiaries, the Trust Units and any other
respective Interests in the Trust pursuant to Section 2.02(b) hereto is, to the
knowledge of the Trust, complete and accurate. No person other than the
Beneficiaries has any rights or interests with respect to the Trust Estate.
SECTION 3.04. Authority Relative to This Agreement. The
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Liquidating Trustee has all necessary power and authority to execute and deliver
this Agreement, to perform the obligations hereunder and to consummate the
Transactions. The execution and delivery of this Agreement by the Liquidating
Trustee and the consummation by the Liquidating Trustee of the Transactions have
been duly and validly authorized, and no other proceedings on the part of the
Board of Trustees or under the Trust Agreement are necessary to authorize this
Agreement or to consummate the Transactions. This Agreement has been duly
executed and delivered by the Liquidating Trustee and, assuming the due
authorization, execution and delivery by Purchaser, constitutes a legal, valid
and binding obligation of the Liquidating Trustee, enforceable against the
Liquidating Trustee in accordance with its terms.
SECTION 3.05. Material Contracts; No Conflict; Required Filings
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and Consents. (a) (i) Neither the Trust nor the Trust Estate is subject to,
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bound by or a party to any agreements or instruments other than the Trust
Agreement; (ii) To the knowledge of the Trust, no other party is in breach or
violation of, or default under, any note, bond, mortgage, indenture, loan or
credit agreement, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which the Trust or the Company is a party or
by which either of their properties or assets is bound which breach, violation
or default would have a Material Adverse Effect; and (iii) Neither the Trust nor
the Company is in receipt of any claim of default under any such agreement.
(b) The execution and delivery of this Agreement by the Liquidating
Trustee do not, and the performance of this Agreement by the Liquidating Trustee
will not, (i) conflict with or violate the Trust Agreement or, to the knowledge
of the Trust, the Certificate of Incorporation or By-laws of the Company, (ii)
conflict with or violate any United States or non-United States statute, law,
ordinance, regulation, rule, code, executive order, injunction, judgment, decree
or other order ("Law") applicable to the Trust or, to the knowledge of the
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Trust, the Company or by which any property or asset of the Trust or, to the
knowledge of the Trust, the Company is bound or affected, or (iii) result in any
breach of or constitute a default (or an event which, with notice or lapse of
time or both, would become a default) under, or give to others any right of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or other encumbrance on any property or asset of the Trust
or, to the knowledge of the Trust, the Company pursuant to, any note, bond,
mortgage, indenture, loan or credit agreement , contract, agreement, lease,
license, permit, franchise or other instrument or obligation, except, with
respect to clauses (ii) and (iii) of this subsection, for any such conflicts,
violations, breaches, defaults or other occurrences which would not prevent or
materially delay
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consummation of the Offer or otherwise prevent or materially delay the
Liquidating Trustee from performing its obligations under this Agreement and
would not have a Material Adverse Effect.
(c) The execution and delivery of this Agreement by the Liquidating
Trustee do not, and the performance of this Agreement by the Liquidating Trustee
will not, require any consent, approval, authorization or permit of, or filing
with or notification to, any United States federal, state, county or local or
non-United States government, governmental, regulatory or administrative
authority, agency, instrumentality or commission or any court, tribunal, or
judicial or arbitral body (a "Governmental Authority"), except (i) for
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applicable requirements, if any, of the Exchange Act, state securities or "blue
sky" laws ("Blue Sky Laws") and state takeover laws and (ii) where the failure
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to obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not prevent or materially delay consummation of
the Offer, or otherwise prevent or materially delay the Liquidating Trustee from
performing its obligations under this Agreement, and would not have a Material
Adverse Effect.
SECTION 3.06. Absence of Litigation. There is no litigation,
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suit, claim, action, proceeding or investigation (an "Action") pending or, to
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the knowledge of the Trust, threatened against the Partnership, the Trust, the
Liquidating Trustee or the Company or any property or asset of the such person
before any Governmental Authority that would seeks to materially delay or
prevent the consummation of any Transaction. Neither the Partnership, the Trust
nor any property or asset of the Partnership or the Trust is subject to any
continuing order of, consent decree, settlement agreement or similar written
agreement with, or, to the knowledge of the Trust, continuing investigation by,
any Governmental Authority, or any order, writ, judgment, injunction, decree,
determination or award of any Governmental Authority that would prevent or
materially delay consummation of the Offer or otherwise prevent or materially
delay the Liquidating Trustee from performing its obligations under this
Agreement or would have a Material Adverse Effect.
SECTION 3.07. Offer Documents; Schedule 14D-9. Neither the
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Schedule 14D-9 nor any information supplied by the Liquidating Trustee for
inclusion in the Offer Documents shall, at the times the Schedule 14D-9, the
Offer Documents or any amendments or supplements thereto are filed with the SEC
or are first published, sent or given to Beneficiaries of the Trust, as the case
may be, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, the Liquidating Trustee makes no
representation or warranty with respect to any information supplied by Purchaser
or any of Purchaser's representatives for inclusion in the foregoing documents.
The Schedule 14D-9 shall comply in all material respects as to form with the
requirements of the Exchange Act and the rules and regulations thereunder.
SECTION 3.08. Tax Treatment of Trust and the Beneficiaries.
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The Trust is treated, and through the consummation of the Offer will continue to
be treated, as a grantor trust that is disregarded for U.S. federal income tax
purposes, and each of the Beneficiaries is treated, and through the consummation
of the Offer will continue to be treated, as directly owning a proportionate
share of the Trust Estate for such purposes.
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SECTION 3.09. Brokers. No broker, finder or investment banker is
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entitled to any brokerage, finder's or other fee or commission in connection
with the Transactions based upon arrangements made by or on behalf of the
Partnership or the Trust.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
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As an inducement to the Liquidating Trustee to enter into this
Agreement, Purchaser hereby, jointly and severally, represents and warrants to
the Liquidating Trustee that:
SECTION 4.01. Corporate Organization. Purchaser is a corporation
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duly organized, validly existing and in good standing under the laws of the
State of Delaware and has the requisite corporate power and authority and all
necessary governmental approvals to own, lease and operate its properties and to
carry on its business as it is now being conducted, except where the failure to
be so organized, existing or in good standing or to have such power, authority
and governmental approvals would not prevent or materially delay consummation of
the Transactions, or otherwise prevent Purchaser from performing its material
obligations under this Agreement.
SECTION 4.02. Authority Relative to This Agreement. Purchaser
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has all necessary corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
Transactions. The execution and delivery of this Agreement by Purchaser and the
consummation by Purchaser of the Transactions have been duly and validly
authorized by all necessary corporate action, and no other corporate proceedings
on the part of Purchaser are necessary to authorize this Agreement or to
consummate the Transactions. This Agreement has been duly and validly executed
and delivered by Purchaser and, assuming due authorization, execution and
delivery by the Liquidating Trustee, constitutes a legal, valid and binding
obligation of Purchaser enforceable against Purchaser in accordance with its
terms.
SECTION 4.03. No Conflict; Required Filings and Consents. (a)
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The execution and delivery of this Agreement by Purchaser do not, and the
performance of this Agreement by Purchaser will not, (i) conflict with or
violate the Certificate of Incorporation or By-laws of Purchaser, (ii) assuming
that all consents, approvals, authorizations and other actions described in
Section 4.03(b) have been obtained and all filings and obligations described in
Section 4.03(b) have been made, conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to Purchaser or by which any of
its property or asset is bound or affected, or (iii) result in any breach of, or
constitute a default (or an event which, with notice or lapse of time or both,
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or other encumbrance on any property or asset of Purchaser pursuant to, any
note, bond, mortgage, indenture, loan or credit agreement, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which
Purchaser is a party or by which Purchaser or any of its property or asset is
bound or affected, except, with respect to clauses (ii) and (iii) of this
10
subsection, for any such conflicts, violations, breaches, defaults or other
occurrences which would not prevent or materially delay consummation of the
Transactions or otherwise prevent Purchaser from performing its material
obligations under this Agreement.
(b) The execution and delivery of this Agreement by Purchaser do not,
and the performance of this Agreement by Purchaser will not, require any
consent, approval, authorization or permit of, or filing with, or notification
to, any Governmental Authority, except (i) for applicable requirements, if any,
of the Exchange Act, Blue Sky Laws and state takeover laws, and (ii) where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or materially delay
consummation of the Transactions, or otherwise prevent Purchaser from performing
its material obligations under this Agreement.
SECTION 4.04. Financing. Purchaser has sufficient funds to
---------
permit it to consummate the Transactions, including, without limitation,
acquiring up to 21,627 Trust Units pursuant to the Offer.
SECTION 4.05. Offer Documents; Proxy Statement. The Offer
--------------------------------
Documents shall not, at the time the Offer Documents are filed with the SEC or
are first published, sent or given to Beneficiaries, as the case may be, 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 made
therein, in the light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, Purchaser makes no representation or
warranty with respect to any information supplied by the Liquidating Trustee or
any of its representatives for inclusion in any of the foregoing documents or
the Offer Documents. The Offer Documents shall comply in all material respects
as to form with the requirements of the Exchange Act and the rules and
regulations thereunder.
SECTION 4.06. Brokers. No broker, finder or investment banker is
-------
entitled to any brokerage, finder's or other fee or commission in connection
with the Transactions based upon arrangements made by or on behalf of Purchaser.
ARTICLE V
OTHER AGREEMENTS
----------------
SECTION 5.01. Restrictions on Transfer of Trust Units. The
---------------------------------------
Liquidating Trustee agrees:
(a) between the date of this Agreement and the consummation of the
Offer, unless Purchaser shall otherwise agree in writing, not to (i) permit any
transfers or assignment of Trust Units or any other Interests, (ii) amend or
otherwise change the Trust Agreement, (iii) sell, assign, pledge, dispose of,
distribute, transfer or encumber, or authorize the sale, assignment, pledge,
disposition, distribution, transfer or encumbrance of, any portion of the Trust
Estate, (iv) declare, set aside, make or pay any distribution, payable in cash,
stock, property or otherwise, with respect to any of the Trust Units or any
Interests; (v) make any Tax election or settle or
11
compromise any Tax liability; (vi) commence or settle any Action; or (vii)
announce an intention, enter into any formal or informal agreement or otherwise
make a commitment, to do any of the foregoing;
(b) from the date hereof until the termination of the Trust in
accordance with the terms of the Trust Agreement, if the Liquidating Trustee
receives a bona fide offer to purchase any of the Trust's shares of Company
Common Stock, any other equity securities of the Company or any warrants,
options or other securities exercisable for, or exchangeable or convertible
into, Company Common Stock or other equity securities of the Company, the
Liquidating Trustee shall give the Purchaser prompt written notice of such
offer, including all the terms thereof (the "Sale Notice"), and Purchaser
-----------
shall be entitled, for a period of 30 days after receipt of such Sale Notice, to
purchase all of such shares of Company Common Stock or other securities at the
same price per security and on the same terms as set forth in the Sale Notice;
provided, however, that if the Purchaser does not exercise, or waives, its
-------- -------
rights under this Section 5.01(b), the Liquidating Trustee shall be entitled
consummate the transaction as set forth in the Sale Notice, at the same or any
higher price per security, so long as such sale is consummated within the 20-day
period following the earlier of (i) receipt of Purchasers' written waiver of its
rights hereunder and (ii) the expiration of the above 30-day period.
(c) from the date hereof until the termination of the Trust in
accordance with the terms of the Trust Agreement, unless Purchaser shall
otherwise agree in writing, the Liquidating Trustee acting in such capacity on
the date hereof shall not resign as liquidating trustee of the Trust and shall
not take any action to increase the number of the Board of Trustees to greater
than three or change the constituency of the Board of Trustees other than as
contemplated in pursuant to Section 5.03 hereto.
SECTION 5.02. Rights of First Offer. The Purchaser agrees that,
---------------------
from the date hereof until the termination of the Trust in accordance with the
terms of the Trust Agreement, if the Purchaser intends to purchase any shares of
Company Common Stock, any other equity securities of the Company or any
warrants, options or other securities exercisable for, or exchangeable or
convertible into, Company Common Stock or other equity securities of the Company
from any person other than the Trust, the Purchaser shall give the Liquidating
Trustee prompt written notice of such intention, including the terms thereof
(the "Purchase Notice"), and the Liquidating Trustee shall be entitled, for a
---------------
period of 15 days after receipt of such Purchase Notice, to sell to Purchaser
the same number of such shares of Company Common Stock or other securities at
the same price per security and on the same terms as set forth in the Purchase
Notice; provided, however, that if the Liquidating Trustee does not exercise, or
-------- -------
waives, its rights under this Section 5.02, the Purchaser shall be entitled to
purchase such shares or other securities, at the same or any lower price per
security, so long as such purchase is consummated within the 20-day period
following the earlier of (i) receipt of Liquidating Trustee's written waiver of
its rights hereunder and (ii) the expiration of the above 15-day period.
SECTION 5.03. Trust Board Representation. Promptly upon the
--------------------------
purchase by Purchaser of Trust Units pursuant to the Offer and from time to time
thereafter, for so long as Purchaser owns at least 35% of the then outstanding
Trust Units, Purchaser shall be entitled to designate supervising trustees
constituting one-third of the Board of Trustees, rounded up to the
12
next whole number, and the other members of the Board of Trustees, including
Liquidating Trustee shall, at such time, promptly take all actions necessary to
cause Purchaser's designees to be elected as a supervising trustee of the Trust,
including increasing the size of the Board of Trustees or securing the
resignations of incumbent supervising trustees, or both.
SECTION 5.04. Access to Information; Confidentiality. (a) From
--------------------------------------
the date hereof until the consummation of the Offer, the Liquidating Trustee
shall, and shall cause the Company and the officers, directors, employees,
auditors and agents of the Company to, afford the officers, employees and agents
of Purchaser complete access at all reasonable times to the officers, employees,
agents, properties, offices, plants and other facilities, books and records of
the Trust and the Company, and shall furnish Purchaser with such financial,
operating and other data and information as Purchaser, through its officers,
employees or agents, may reasonably request.
(b) Purchaser shall, and shall cause its affiliates and directors,
officers, employees and agents to, keep confidential, not disclose in any manner
and use only in connection with the Transactions all data and information
obtained by them from the Liquidating Trustee and the Company and their
respective directors, officers, employees, auditors and agents (other than data
or information that is or becomes ascertainable from public or published
information or trade sources, except as a result of disclosure by Purchaser in
violation of this Section 5.04(b)) ("Confidential Information") and shall insure
------------------------
that such directors, officers, employees and agents do not disclose Confidential
Information to third parties without the prior written consent of the
Liquidating Trustee or the Company, respectively, unless disclosure of
Confidential Information is required by law.
(c) In the event of the termination of this Agreement in accordance
with Section 6.01, Purchaser shall, and shall use its reasonable best efforts to
cause its affiliates and officers, directors, employees and agents to, (i)
return promptly every document furnished to them by the Liquidating Trustee or
the Company, or any officer, director, employee, auditor or agent of the
Liquidating Trustee or the Company, in connection with the Transactions and
containing Confidential Information and all copies thereof in their possession,
and cause any other parties to whom such documents may have been furnished
promptly to return such documents and all copies thereof, other than such
documents as may have been filed with the SEC or otherwise be publicly
available, and (ii) destroy promptly all documents created by them from any
Confidential Information and all copies thereof in their possession, and cause
any other parties to whom such documents may have been furnished to destroy
promptly such documents and any copies thereof .
(d) No investigation pursuant to this Section 5.04 shall affect any
representation or warranty in this Agreement of any party hereto or any
condition to the obligations of the parties hereto or any condition to the
Offer.
SECTION 5.05. No Solicitation of Transactions. (a) Neither
-------------------------------
the Liquidating Trustee nor any Supervising Trustee shall, directly or
indirectly, through any officer, director, agent or otherwise, (i) solicit,
initiate or encourage the submission of, any Acquisition Proposal or (ii) except
as required by the fiduciary duties of the Liquidating Trustee or the Board
13
of Trustees under the terms of the Trust Agreement and applicable law after
having received advice from outside legal counsel and after giving prior written
notice to Purchaser and entering into a customary confidentiality agreement on
terms no less favorable to the Trust and the Company than those contained in
Sections 5.04(b) and (c), participate in any discussions or negotiations
regarding, or furnish to any person, any information with respect to, or
otherwise cooperate in any way with respect to, or assist or participate in,
facilitate or encourage, any unsolicited proposal that constitutes, or may
reasonably be expected to lead to, an Acquisition Proposal
(b) Except as set forth in this Section 5.05(b), neither the
Liquidating Trustee or the Board of Trustees shall (i) withdraw or modify, or
propose to withdraw or modify, in a manner adverse to Purchaser, the approval or
recommendation by the Board of Trustees of this Agreement, the Offer, any other
Transaction, (ii) approve or recommend, or propose to approve or recommend, any
Acquisition Proposal or (iii) enter into any agreement with respect to any
Acquisition Proposal. Notwithstanding the foregoing, in the event that, prior
to the time of acceptance for payment of Trust Units pursuant to the Offer, the
Liquidating Trustee or the Board of Trustees determines in good faith that it is
required to do so by its fiduciary duties under the Trust Agreement and
applicable law after having received advice from outside legal counsel, the
Board of Trustees or the Liquidating Trustee may withdraw or modify its approval
or recommendation of the Offer, but only to terminate this Agreement in
accordance with Section 6.01(d)(ii) (and, concurrently with such termination,
cause the Liquidating Trustee to enter into an agreement with respect to a
Superior Proposal).
(c) The Liquidating Trustee shall, and shall direct or cause its
directors, officers, employees, representatives and agents to, immediately cease
and cause to be terminated any discussions or negotiations with any parties that
may be ongoing with respect to any Acquisition Proposal.
(d) The Liquidating Trustee shall promptly advise Purchaser orally and
in writing of (i) any Acquisition Proposal or any request for information with
respect to any Acquisition Proposal, the material terms and conditions of such
Acquisition Proposal or request and the identity of the person making such
Acquisition Proposal or request and (ii) any changes in any such Acquisition
Proposal or request.
(e) Nothing contained in this Section 5.05 shall prohibit the
Liquidating Trustee of the Board of Trustees from taking and disclosing to the
Beneficiaries a position contemplated by Rule 14e-2(a) promulgated under the
Exchange Act or from making any disclosure to the Beneficiaries, if either the
Liquidating Trustee or the Board of Trustees determines in good faith that it is
required to do so by its fiduciary duties under the Trust Agreement and
applicable law after having received advice from outside legal counsel.
SECTION 5.06. Notification of Certain Matters. The Liquidating
-------------------------------
Trustee shall give prompt notice to Purchaser, and Purchaser shall give prompt
notice to the Liquidating Trustee, of (a) the occurrence, or non-occurrence, of
any event the occurrence, or non-occurrence, of which reasonably could be
expected to cause any representation or warranty contained in this Agreement to
be untrue or inaccurate in any material respect and (b) any failure
14
of the Liquidating Trustee or Purchaser to comply with or satisfy any covenant
or agreement to be complied with or satisfied by it hereunder; provided,
--------
however, that the delivery of any notice pursuant to this Section 5.06 shall
-------
not limit or otherwise affect the remedies available hereunder to the party
receiving such notice.
SECTION 5.07. Loan to Trust. The Purchaser agrees, upon written
-------------
request of the Liquidating Trustee, to make available (or cause to be made
available) to the Trust from time to time such funds in an aggregate principal
amount equal to the exercise price of the Trust's options and warrants for
shares of Company Common Stock or other equity security of the Company pursuant
to mutually agreed upon loan documentation to be entered into at or prior to the
extension of such funds; provided, however, that any loan made pursuant to this
-------- -------
Section 5.07: (a) will be secured by such options, warrants and shares of
Company Common Stock or other equity securities of the Company purchased upon
the exercise thereof, (b) will accrue interest at a fixed rate per annum equal
to the lesser of (i) the rate of one-year LIBOR (as reported in the Wall Street
Journal on the date of the funding of such loan) and (ii) the maximum rate
permissible by law on the date of such loan (the laws of the State of Texas
shall be deemed to be the laws relating to permissible rates of interest on
commercial loans), calculated on the basis of a 365/366-day year for the actual
number of days elapsed and compounded annually, and such interest rate shall be
adjusted on each anniversary of the date of such loan to be the lesser of such
rates provided above; (c) shall be due and payable in full, together with
accrued interest thereon, on the second anniversary of the date of the Trust
Agreement; and (d) shall be subject to customary closing conditions, including
the lender having a perfected security interest and receiving other documents
customary for secured financings.
SECTION 5.08. Further Action; Reasonable Best Efforts. (a) Upon
---------------------------------------
the terms and subject to the conditions hereof, each of the parties hereto shall
use its reasonable best efforts to take, or cause to be taken, all appropriate
action, and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
the Transactions, including, without limitation, using its reasonable best
efforts to obtain all permits, consents, approvals, authorizations,
qualifications and orders of Governmental Authorities and parties to contracts
with the Liquidating Trustee, the Trust or the Company as are necessary for the
consummation of the Transactions and to fulfill the conditions to the Offer;
provided that Purchaser will not be required by this Section 5.07 to
--------
take any action, including entering into any consent decree, hold separate
orders or other arrangements, that (A) requires the divestiture of any assets of
Purchaser or any of its subsidiaries, the Company or the Trust or (B) limits
Purchaser's freedom of action with respect to, or its ability to retain its
indirect interest in, the Trust or any portion thereof or any of Purchaser's or
its affiliates' or the Trust's assets or businesses. In case, at any time after
the consummation of the Offer, any further action is necessary or desirable to
carry out the purposes of this Agreement, the proper officers and directors or
trustees of each party to this Agreement shall use their reasonable best efforts
to take all such action.
(b) Each of the parties hereto agrees to cooperate and use its
reasonable best efforts to vigorously contest and resist any Action, including
administrative or judicial Action, and to have vacated, lifted, reversed or
overturned any decree, judgment, injunction or other order (whether temporary,
preliminary or permanent) that is in effect and that restricts, prevents
15
or prohibits consummation of the Transactions, including, without limitation, by
vigorously pursuing all available avenues of administrative and judicial appeal.
SECTION 5.09. Public Announcements. Purchaser and the
--------------------
Liquidating Trustee agree that no public release or announcement concerning the
Transactions or the Offer shall be issued by either party without the prior
consent of the other party (which consent shall not be unreasonably withheld),
except as such release or announcement may be required by Law or the rules or
regulations of any United States or non-United States securities exchange, in
which case the party required to make the release or announcement shall use its
best efforts to allow the other party reasonable time to comment on such release
or announcement in advance of such issuance.
SECTION 5.10. Filings with the SEC. The Liquidating Trustee
--------------------
agrees to file within 5 days of the date hereof, a current report on Form 8-K
with respect to, and including as an exhibit thereto, the Trust Agreement.
SECTION 5.11. Transfers of Interests. In exercising its
----------------------
discretion under Section 3.2 of the Trust Agreement, the Liquidating Trustee
shall limit transfers of Interests in the Trust each year as necessary or
appropriate to ensure that, if the Trust were treated as a partnership for U.S.
federal income tax purposes, it would not constitute a "publicly traded
partnership" under section 7704 of the Internal Revenue Code of 1986, as
amended.
ARTICLE VI
TERMINATION, AMENDMENT AND WAIVER
---------------------------------
SECTION 6.01. Termination. This Agreement may be terminated and
-----------
the Transactions may be abandoned at any time prior to the consummation of the
Offer:
(a) By mutual written consent of each of Purchaser and the
Liquidating Trust duly authorized by their respective board of directors or
Board of Trustees, as applicable; or
(b) By either Purchaser or the Liquidating Trustee if (i) the Offer
has not been consummated on or before March 31, 2001; provided, however, that
-------- -------
the right to terminate this Agreement under this Section 6.01(b) shall not be
available to any party whose failure to fulfill any obligation under this
Agreement has been the cause of, or resulted in, the failure of the consummation
of the Offer to occur on or before such date or (ii) any Governmental Authority
in the United States shall have enacted, issued, promulgated, enforced or
entered any injunction, order, decree or ruling (whether temporary, preliminary
or permanent) (A) which has become final and nonappealable and has the effect of
making consummation of the Offer illegal or otherwise preventing or prohibiting
consummation of the Offer; or (B) which would cause the Trust to no longer be
treated as a grantor trust that is disregarded for U.S. federal income tax
purposes.
(c) By Purchaser if (i) due to an occurrence or circumstance that
would result in a failure to satisfy any condition set forth in Annex A hereto,
Purchaser shall have
16
(A) terminated the Offer without having accepted any Trust Units for payment
thereunder or (B) failed to accept Trust Units for payment pursuant to the Offer
within 90 days following the commencement of the Offer, unless such action or
inaction under (A) or (B) if this clause (i) shall have been caused by or
resulted from the failure of Purchaser to perform, in any material respect, any
of its material covenants or agreements contained in this Agreement, or the
material breach by Purchaser of any of its material representations or
warranties contained in this Agreement or (ii) prior to the purchase of Trust
Units pursuant to the Offer, the Board of Trustees or the Liquidating Trustee
shall have withdrawn or modified in a manner adverse to Purchaser its approval
or recommendation of this Agreement, the Offer or any other Transaction, or
shall have recommended or approved any Acquisition Proposal, or shall have
resolved to do any of the foregoing; or
(d) By the Liquidating Trustee, upon approval of the Board of
Trustees, if (i) Purchaser shall have (A) terminated the Offer without having
accepted any Trust Units for payment thereunder or (B) failed to accept Trust
Units for payment pursuant to the Offer within 90 days following the
commencement of the Offer, unless such action or inaction under (A) or (B) of
this clause (i) shall have been caused by or resulted from the failure of the
Liquidating Trust or the Board of Trustees to perform, in any material respect,
any of its material covenants or agreements contained in this Agreement or the
material breach by the Liquidating Trustee or the Board of Trustees of any of
its material representations or warranties contained in this Agreement, or (ii)
prior to the purchase of Trust Units pursuant to the Offer, the Liquidating
Trustee or the Board of Trustees determines in good faith that it is required to
do so by its fiduciary duties under the Trust Agreement or applicable law, after
having received advice from outside legal counsel, in order to enter into a
definitive agreement with respect to a Superior Proposal, upon five business
days' prior written notice to Parent, setting forth in reasonable detail the
identity of the person making, and the final terms and conditions of, the
Superior Proposal and after duly considering any proposals that may be made by
Parent during such five business day period.
SECTION 6.02. Effect of Termination. In the event of the
---------------------
termination of this Agreement pursuant to Section 6.01, this Agreement shall
forthwith become void, and there shall be no liability on the part of any party
hereto, except (a) that the provisions of Section 5.01(b) and (c) and Section
5.02 shall survive any termination of this Agreement and (b) nothing herein
shall relieve any party from liability for any breach hereof prior to the date
of such termination; provided, however, that the terms of Sections 5.04(b) and
-------- -------
(c) shall survive any termination of this Agreement.
SECTION 6.03. Amendment. This Agreement may be amended by the
---------
parties hereto by action taken by or on behalf of their respective Board of
directors or Board of Trustees at any time prior to the consummation of the
Offer. This Agreement may not be amended except by an instrument in writing
signed by each of the parties hereto.
SECTION 6.04. Waiver. At any time prior to the consummation of
------
the Offer, any party hereto may (a) extend the time for the performance of any
obligation or other act of any other party hereto, (b) waive any inaccuracy in
the representations and warranties of any other party contained herein or in any
document delivered pursuant hereto and (c) waive
17
compliance with any agreement of any other party or any condition to its own
obligations contained herein. Any such extension or waiver shall be valid if set
forth in an instrument in writing signed by the party or parties to be bound
thereby.
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.01. Notices. All notices, requests, claims, demands
-------
and other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person, by
telecopy or email or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses (or at
such other address for a party as shall be specified in a notice given in
accordance with this Section 7.01):
if to Purchaser:
Sulzer Medica USA Holding Co.
0 Xxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Telephone No.: 000-000-0000
Telecopier No.: 000-000-0000
Attn: General Counsel
e-mail: xxxxx.xxxx@xxxxxxx.xxx
with a copy to:
Shearman & Sterling
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No: (000) 000-0000
Attention: Xxxxx X. Xxxxx
e-mail: xxxxxx@xxxxxxxx.xxx
if to the Trust:
Xxxxxx X. Xxxxxx, as Liquidating Trustee
Capital Partners II, Ltd. Liquidating Trust
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No: (000) 000-0000
e-mail: xxxxxxxx@xxx.xxx
18
with a copy to:
Xxxx Xxxxxxx
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No: (000) 000-0000
e-mail: xxxxxxx0@xxxxxxx.xxx
SECTION 7.02. 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 so long as the economic or
legal substance of the Transactions is not affected in any manner adverse to any
party. Upon such 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 in a mutually acceptable manner in order that the
Transactions be consummated as originally contemplated to the fullest extent
possible.
SECTION 7.03. Entire Agreement; Assignment. This Agreement
----------------------------
constitutes the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior agreements and undertakings, both written
and oral, among the parties, or either of them, with respect to the subject
matter hereof. This Agreement shall not be assigned (whether pursuant to a
merger, by operation of law or otherwise), except that Purchaser may assign all
or any of its rights and obligations hereunder to any affiliate of Purchaser,
provided that no such assignment shall relieve the assigning party of its
--------
obligations hereunder if such assignee does not perform such obligations.
SECTION 7.04. Parties in Interest. This Agreement shall be
-------------------
binding upon and inure solely to the benefit of each party hereto, and nothing
in this Agreement, express or implied, is intended to or shall confer upon any
other person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
SECTION 7.05. Specific Performance. The parties hereto agree
--------------------
that irreparable damage would occur in the event any provision of this Agreement
were not performed in accordance with the terms hereof and that the parties
shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or equity.
SECTION 7.06. Governing Law. This Agreement shall be governed
-------------
by, and construed in accordance with, the laws of the State of Texas applicable
to contracts executed in and to be performed in that State . All actions and
proceedings arising out of or relating to this Agreement shall be heard and
determined exclusively in any state or federal court sitting in the State of
Texas. The parties hereto hereby (a) submit to the exclusive jurisdiction of any
state or federal court sitting in the State of Texas for the purpose of any
Action arising out of or relating to this Agreement brought by any party hereto,
and (b) irrevocably waive, and agree not to assert by way of motion, defense, or
otherwise, in any such Action, any claim that it is not subject personally to
the jurisdiction of the above-named courts, that its property is exempt or
immune
19
from attachment or execution, that the Action is brought in an inconvenient
forum, that the venue of the Action is improper, or that this Agreement or the
Transactions may not be enforced in or by any of the above-named courts.
SECTION 7.07. Waiver of Jury Trial. Each of the parties hereto
--------------------
hereby waives to the fullest extent permitted by applicable law any right it may
have to a trial by jury with respect to any litigation directly or indirectly
arising out of, under or in connection with this Agreement or the Transactions.
Each of the parties hereto (a) certifies that no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce that
foregoing waiver and (b) acknowledges that it and the other hereto have been
induced to enter into this Agreement and the Transactions, as applicable, by,
among other things, the mutual waivers and certifications in this Section 7.07.
SECTION 7.08. Headings. The descriptive headings contained in
--------
this Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
SECTION 7.09. Counterparts. This Agreement may be executed and
------------
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
20
IN WITNESS WHEREOF, Purchaser and the Liquidating Trustee have caused
this Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
SULZER MEDICA USA HOLDING CO.
By /s/ Xxxxx X. Xxxx
----------------------------------------
Title: Secretary
XXXXXX X. XXXXXX,
in his capacity as Liquidating Trustee
By /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Title: Liquidating Trustee
21
ANNEX A
-------
Conditions to the Offer
-----------------------
Notwithstanding any other provision of the Offer, Purchaser shall not
be required to pay for any Trust Units pursuant to the Offer, and may extend,
terminate or amend the Offer, if (i) immediately prior to the expiration of the
Offer, the Minimum Condition shall not have been satisfied or (ii) at any time
on or after the date of this Agreement and prior to the expiration of the Offer,
any of the following conditions shall exist:
(a) there shall have been instituted or be pending any Action before
any Governmental Authority (i) challenging or seeking to make illegal,
materially delay, or otherwise, directly or indirectly, restrain or
prohibit or make materially more costly, the making of the Offer, the
acceptance for payment of any Trust Units by Purchaser or any affiliate of
Purchaser or the consummation of any other Transaction, or seeking to
obtain damages in connection with any Transaction; (ii) seeking to prohibit
or limit the ownership or operation by the Liquidating Trustee, Purchaser
or its subsidiaries of all or any of the business or assets of the Trust,
Purchaser, or its subsidiaries or to compel the Liquidating Trustee,
Purchaser or any of its subsidiaries, as a result of the Transactions, to
dispose of or to hold separate all or any portion of the business or assets
of the Trust, Purchaser or any of its subsidiaries; (iii) seeking to impose
or confirm any limitation on the ability of Purchaser or any other
affiliate of Purchaser to exercise effectively full rights of ownership of
any Trust Units, including, without limitation, the right to receive
distributions with respect to or vote any Trust Units acquired by Purchaser
pursuant to the Offer or otherwise on all matters properly presented to the
Beneficiaries; (iv) seeking to require divestiture by Purchaser or any
affiliate of Purchaser of any Trust Units; or (v) which otherwise would
prevent or materially delay consummation of the Offer or otherwise prevent
or materially delay the Liquidating Trustee from performing its obligations
under this Agreement or would have a Material Adverse Effect;
(b) there shall have been any statute, rule, regulation, legislation
or interpretation enacted, promulgated, amended, issued or deemed
applicable to (i) Purchaser, the Liquidating Trustee, the Trust or any
subsidiary or affiliate thereof or (ii) any Transaction, by any United
States or non-United States legislative body or Governmental Authority with
appropriate jurisdiction that is reasonably likely to result, directly or
indirectly, in any of the consequences referred to in clauses (i) through
(v) of paragraph (a) above;
(c) any Material Adverse Effect shall have occurred;
(d) there shall have occurred (i) any general suspension of trading
in, or limitation on prices for, securities on the American Stock Exchange
(other than a shortening of trading hours or any coordinated trading halt
triggered solely as a result of a specified increase or decrease in a
market index), (ii) a declaration of a banking moratorium or any suspension
of payments in respect of banks in the United States,
(iii) any limitation (whether or not mandatory) by any government or
Governmental Authority, on the extension of credit by banks or other
lending institutions or (iv) in the case of any of the foregoing existing
on the date hereof, a material acceleration or worsening thereof;
(e) (i) it shall have been publicly disclosed, or Purchaser shall have
otherwise learned, that beneficial ownership (determined for the purposes
of this paragraph as set forth in Rule 13d-3 promulgated under the Exchange
Act) of 15% or more of the then-outstanding shares of Company Common Stock,
on a fully diluted basis, or 15% or more of the partnership units in the
Partnership or the Trust Units or other Interests in the Trust has been
acquired by any person, other than Purchaser or any of its affiliates, or
(ii) (A) the Board of Trustees or the Liquidating Trust shall have
withdrawn or modified, in a manner adverse to Purchaser, the approval or
recommendation of the Offer, the Agreement or the Transfer Agreements, or
approved or recommended any Acquisition Proposal or any other acquisition
of partnership units in the Partnership, Trust Units or other Interests in
the Trust or shares Company Common Stock other than the Offer and the
Transfer Agreements or (B) the Board of Trustees or the Liquidating Trustee
shall have resolved to do any of the foregoing;
(f) any representation or warranty of the Liquidating Trustee in the
Agreement, or of any Beneficiaries in the Transfer Agreements, that is
qualified as to materiality or Material Adverse Effect shall not be true
and correct or any such representation or warranty that is not so qualified
shall not be true and correct in any material respect, in each case as if
such representation or warranty was made as of such time on or after the
date of this Agreement;
(g) the Liquidating Trustee shall have failed to perform, in any
material respect, any obligation or to comply, in any material respect,
with any agreement or covenant of the Liquidating Trustee to be performed
or complied with by it under the Agreement;
(h) the Agreement shall have been terminated in accordance with its
terms;
(i) the Company has failed to file (i) any form, report or document
required to be filed by it with the SEC since September 30, 1997, including
(1) its Annual Reports on Form 10-K for the fiscal years ended September
30, 1997, 1998, and 1999, (2) its Quarterly Reports on Form 10-Q for the
periods ended December 31, 1999, March 31, 2000 and June 30, 2000, (3) all
proxy statements relating to the Company's meetings of stockholders
(whether annual or special) held since March 1, 1998 and (4) any other
form, report or registration statement (other than Quarterly Reports on
Form 10-Q not referred to in clause (2) of this subsection) filed by the
Company with the SEC since September 31, 1999; or (ii) any such form,
report or other document referred to in clauses (1), (2), (3) and (4) of
this subsection (1) was not prepared in accordance with either the
requirements of the Securities Act of 1933, as amended, or the Exchange
Act, as the case may be, and the rules and regulations promulgated
thereunder, or contained, at the time filed, or, if amended, as of the date
of such amendment, any untrue statement of
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a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not misleading;
(j) any of the consolidated financial statements (including, in each
case, any notes thereto) contained in any form, report or other document
referred to in clauses (1), (2), (3) and (4) of clause (i) above was not
prepared in accordance with GAAP applied on a consistent basis throughout
the periods indicated (except as may be indicated in the notes thereto) or
does not fairly present, in all material respects, the consolidated
financial position, results of operations and cash flows of the Company and
its consolidated subsidiaries as at the respective dates thereof and for
the respective periods indicated therein (subject, in the case of unaudited
statements, to normal and recurring year-end adjustments which would not
have had, and would not have, a Material Adverse Effect); or
(k) Purchaser and the Liquidating Trustee shall have agreed that
Purchaser shall terminate the Offer or postpone the acceptance for payment
of Trust Units thereunder;
which, in the sole judgment of Purchaser in any such case, and regardless of the
circumstances (including any action or inaction by Purchaser or any of its
affiliates) giving rise to any such condition, makes it inadvisable to proceed
with such acceptance for payment.
The foregoing conditions are for the sole benefit of Purchaser and may
be asserted by Purchaser regardless of the circumstances giving rise to any such
condition or may be waived by Purchaser in whole or in part at any time and from
time to time in its sole discretion. The failure by Purchaser at any time to
exercise any of the foregoing rights shall not be deemed a waiver of any such
right; the waiver of any such right with respect to particular facts and other
circumstances shall not be deemed a waiver with respect to any other facts and
circumstances; and each such right shall be deemed an ongoing right that may be
asserted at any time and from time to time.
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