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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
SCHEDULE 14D-1
Tender Offer Statement Pursuant to Section 14(d)(1)
of the Securities Exchange Act of 1934
(AMENDMENT NO. 2)
-------------------
COHR INC.
(Name of Subject Company)
TCF ACQUISITION CORPORATION
THREE CITIES FUND II, L.P.
THREE CITIES OFFSHORE II C.V.
(Bidders)
COMMON STOCK, PAR VALUE $.01 PER SHARE
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
(Title of Class of Securities)
192567105
(CUSIP Number of Class of Securities)
-------------------
J. WILLIAM UHRIG
PRESIDENT
TCF ACQUISITION CORPORATION
C/O THREE CITIES RESEARCH, INC.
650 MADISON AVENUE
NEW YORK, NEW YORK 10022
(212) 838-9660
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidder)
-------------------
Copy to:
DAVID W. BERNSTEIN, ESQ.
ROGERS & WELLS LLP
200 PARK AVENUE
NEW YORK, NEW YORK 10166
(212) 878-8000
-------------------
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This Amendment No. 2 amends and supplements the Tender Offer Statement on
Schedule 14D-1 originally filed with the Securities and Exchange Commission on
January 4, 1999 and Amendment No. 1 thereto, filed on February 5, 1999 (the
"Schedule 14D-1") by TCF Acquisition Corporation, a Delaware corporation (the
"Purchaser"), Three Cities Fund II, L.P., a Delaware limited partnership, and
Three Cities Offshore II C.V., a Netherlands Antilles partnership, relating to
the tender offer of the Purchaser (the "Offer") to purchase all of the
outstanding shares of common stock, par value $.01 per share (the "Shares") of
COHR Inc., a Delaware corporation, which are not owned by the Purchaser and its
stockholders, at a purchase price of $6.50 per Share, net to the seller in cash,
upon the terms and subject to the conditions set forth in the Offer to Purchase,
dated January 4, 1999, as supplemented by the Supplement to Offer to Purchase
dated February 5, 1999 (the "Offer to Purchase") and in the related Letter of
Transmittal. Unless the context otherwise requires, terms not otherwise defined
herein have the meanings ascribed to them in the Schedule 14D-1 and the Offer to
Purchase. The purpose of this Amendment is to file as an exhibit the Amended and
Restated Plan and Agreement of Merger.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(c)(2) Amended and Restated Plan and Agreement of Merger, dated as of
February 4, 1999.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: February 9, 1999
TCF ACQUISITION CORPORATION
By: /s/ J. William Uhrig*
-----------------------------------
J. William Uhrig
President
THREE CITIES FUND II, L.P.
By: TCR Associates, L.P.,
its general partner
By: Three Cities Research, Inc.,
its general partner
By: /s/ William de Vogel*
----------------------
William de Vogel
President
THREE CITIES OFFSHORE II C.V.
By: TCR Offshore Associates, L.P.,
its general partner
By: Three Cities Associates, N.V.,
its general partner
By: /s/ J. William Uhrig*
----------------------
J. William Uhrig
President
*By: /s/ David W. Bernstein
--------------------------------
David W. Bernstein
Attorney-in-Fact
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EXHIBIT INDEX
(c)(2) Amended and Restated Plan and Agreement of Merger, dated as of
February 4, 1999.
<PAGE> 1
AMENDED AND RESTATED PLAN AND AGREEMENT OF MERGER
DATED AS OF
FEBRUARY 4, 1999
BETWEEN
COHR INC.
AND
TCF ACQUISITION CORPORATION
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<TABLE>
<S> <C>
Article 1 THE AMENDED TENDER OFFER..................................... 1
1.1 The Amended Tender Offer........................................ 1
1.2 Company Action.................................................. 3
Article 2 THE MERGER................................................... 5
2.1 Agreement to Effect Merger...................................... 5
2.2 The Merger...................................................... 5
2.3 Certificate of Incorporation.................................... 6
2.4 By-Laws......................................................... 6
2.5 Directors....................................................... 6
2.6 Officers........................................................ 6
2.7 Stock of the Company............................................ 6
2.8 Stock of Acquisition............................................ 7
2.9 Stockholders Meeting............................................ 7
2.10 Voting by Acquisition........................................... 8
2.11 Dissenting Shares............................................... 8
2.12 Payment for Shares.............................................. 9
2.13 Options and Warrants............................................ 11
Article 3 EFFECTIVE TIME OF MERGER..................................... 11
3.1 Date of the Merger.............................................. 11
3.2 Execution of Certificate of Merger.............................. 11
3.3 Effective Time of the Merger.................................... 12
Article 4 REPRESENTATIONS AND WARRANTIES............................... 12
4.1 Representations and Warranties of Acquisition................... 12
4.2 Representations and Warranties of the Company................... 16
4.3 Termination of Representations and Warranties................... 22
Article 5 ACTIONS PRIOR TO THE MERGER.................................. 22
5.1 Activities Until Effective Time................................. 22
5.2 HSR Act Filings................................................. 24
5.3 Proxy Statements and Stockholders' Meetings..................... 25
5.4 No Solicitation of Offers; Notice of Proposals from
Others.......................................................... 25
5.5 Acquisition's Efforts to Fulfill Conditions..................... 26
5.6 Company's Efforts to Fulfill Conditions......................... 26
Article 6 CONDITIONS PRECEDENT TO MERGER............................... 26
6.1 Conditions to the Company's Obligations......................... 27
6.2 Conditions to Acquisition's Obligations......................... 27
</TABLE>
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<TABLE>
<S> <C>
Article 7 TERMINATION.................................................. 29
7.1 Right to Terminate.............................................. 29
7.2 Manner of Terminating Agreement................................. 29
7.3 Effect of Termination........................................... 30
Article 8 ABSENCE OF BROKERS........................................... 30
8.1 Representations and Warranties Regarding Brokers and
Others.......................................................... 30
Article 9 OTHER AGREEMENTS............................................. 30
9.1 Indemnification for Prior Acts.................................. 30
9.3 Agreement Regarding Directors................................... 32
9.5 Control of Stockholder Suits.................................... 33
Article 10 GENERAL...................................................... 33
10.1 Expenses........................................................ 33
10.2 Access to Properties, Books and Records......................... 33
10.3 Press Releases.................................................. 34
10.4 Entire Agreement................................................ 34
10.5 Effect of Disclosures........................................... 34
10.6 Captions........................................................ 35
10.7 Prohibition Against Assignment.................................. 35
10.8 Notices and Other Communications................................ 35
10.9 Governing Law................................................... 37
10.10 Amendments...................................................... 37
10.11 Counterparts.................................................... 37
</TABLE>
ii
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AMENDED AND RESTATED PLAN AND AGREEMENT OF MERGER
This is an Amended and Restated Plan and Agreement of Merger (the
"Agreement") dated as of February 4, 1999 between COHR Inc. (the "Company"), a
Delaware corporation, and TCF Acquisition Corporation ("Acquisition"), a
Delaware corporation. This Agreement amends and restates the Plan and Agreement
of Merger dated as of December 24, 1998 (the "Original Merger Agreement")
between the Company and Acquisition.
Article 1
THE AMENDED TENDER OFFER
1.1 The Amended Tender Offer. (a) On December 24, 1998, Three Cities Fund
II, L.P. and Three Cities Offshore II C.V. (the "Three Cities Funds") purchased
from funds managed by Franklin Research, Inc. (the "Franklin Funds") and by
Strong Capital Management, Inc. (the "Strong Funds" and, together with the
Franklin Funds, the "Funds") substantially all the stock of the Company which
the Funds owned, and the Company and Acquisition entered into the Original
Merger Agreement. On January 4, 1999, Acquisition commenced a tender offer (the
"Original Offer") for any and all the outstanding common stock of the Company
("Common Stock") at a price (the "Tender Offer Price") of $5.375 per share of
Common Stock, which would be increased to $6.375 per share of Common Stock under
certain circumstances, pursuant to the Original Merger Agreement. Not later than
the first business day after the date of this Agreement, Acquisition will make a
public announcement that it has amended the Original Offer to increase the
Tender Offer Price to $6.50 per share of Common Stock in cash. The Original
Offer, as amended, is referred to as the "Amended Tender Offer".
(b) On January 4, 1999, the Purchaser filed a Schedule 14D-1 with
the Securities and Exchange Commission ("SEC") ("Original Schedule 14D-1").
Promptly after the public announcement of the amendment to the Original Offer
described above, Acquisition will file with
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the SEC an amendment to the Original Schedule 14D-1 with respect to the Amended
Tender Offer (the "Amended Schedule 14D-1" and together with any further
amendments or supplements, the "Schedule 14D-1"), including forms of a
supplement to the Offer to Purchase dated January 4, 1999 with regard to the
Original Offer and a letter of transmittal (the Schedule 14D-1 and the documents
included in it by which the Amended Tender Offer will be made, as they may be
further supplemented or amended, being the "Offer Documents"). Promptly after
that, Acquisition will communicate the Amended Tender Offer to the record
holders and beneficial owners of the Common Stock. Each of Acquisition and the
Company will promptly correct any information provided by it for use in the
Offer Documents if and to the extent that information becomes incomplete or
inaccurate in any material respect, and Acquisition will supplement or amend the
Offer Documents to the extent required by the Securities Exchange Act of 1934,
as amended (the "Exchange Act") and the rules under it, file the amended or
supplemented Offer Documents with the SEC and, if required, disseminate the
amended Offer Documents to the Company's stockholders. The Company and its
counsel will be given a reasonable opportunity to review the Offer Documents and
any amendments or supplements to them before they are filed with the SEC or
disseminated to the Company's stockholders.
(c) The day on which the Amended Tender Offer expires (the
"Expiration Date") will not be earlier than 10 business days, and (except as
provided in subparagraph (e) or with the Company's consent) will not be later
than 20 business days after the day on which the Amended Schedule 14D-1 is filed
with the SEC.
(d) [Intentionally deleted.]
(e) [Intentionally deleted.]
(f) Subject to the conditions to the Amended Tender Offer set forth
on Exhibit 1.1-E and the other conditions set forth in this Agreement,
Acquisition will, not later than five
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days after the Expiration Date, accept for payment and pay for all the shares of
Common Stock which are properly tendered in response to the Amended Tender Offer
and not withdrawn (including shares which were tendered in response to the
Original Offer and not withdrawn). The obligation of Acquisition to accept for
payment and pay for shares which are properly tendered and not withdrawn will
not be subject to any conditions other than those set forth on Exhibit 1.1-E.
Acquisition will not (i) decrease the Amended Tender Offer Price below that
described in subparagraphs (a) and (d), (ii) decrease the number of shares being
solicited in the Amended Tender Offer, (iii) change the form of consideration
payable in the Amended Tender Offer, or (iv) modify or add to the conditions set
forth on Exhibit 1.1-E or (v) extend the Expiration Date to a day which is more
than 20 business days after the day on which the Amended Schedule 14D-1 is filed
with the SEC, except that (A) if the Amended Tender Offer is modified to
increase the Amended Tender Offer Price or in any other manner permitted by this
Agreement, the Expiration Date may be extended until 10 business days after the
day on which Acquisition makes a public announcement of the modification, (B) if
anyone other than Acquisition makes a tender offer for Common Stock before the
Amended Tender Offer expires, Acquisition may extend the Expiration Date until
not more than 10 business days after the other tender offer expires, and (C) if
Acquisition is prevented by an order of a court or other governmental agency
from accepting shares which are tendered in response to the Amended Tender
Offer, Acquisition may extend the Expiration Date until 10 business days after
Acquisition is able to accept shares without violating any order of any court or
other governmental agency.
1.2 Company Action. (a) The Company approves of and consents to the
Amended Tender Offer and represents and warrants that the Board has (i)
determined that this Agreement and the transactions contemplated by it are fair
to and in the best interests of the Company and its stockholders, (ii) approved
this Agreement and the transactions contemplated
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by it, including the Three Cities Funds' purchase of the stock of the Company
which the Funds own, the Amended Tender Offer and the Merger (described in
Article 2), and (iii) resolved to recommend that the Company's stockholders
accept the Amended Tender Offer, tender their shares in response to the Amended
Tender Offer, and adopt and approve this Agreement and the Merger.
Simultaneously with the execution of this Agreement, each of the directors and
executive officers of the Company has agreed to tender and sell his or her
shares of Common Stock in response to the Amended Tender Offer, except that
directors and executive officers whose sales of their shares in response to the
Amended Tender Offer might result in liability under Section 16(b) of the
Exchange Act have agreed that if they do not tender and sell their shares in
response to the Amended Tender Offer, they will vote their shares in favor of
the Merger.
(b) On or before February 8, 1999, the Company will file with the
SEC an amendment to the Solicitation/Recommendation Statement on Schedule 14D-9
filed by the Company on January 6, 1999 (the "Amended Schedule 14D-9" and
together with any further amendments or supplements, the "Schedule 14D-9")
containing the recommendations described in subparagraph (a) and will
disseminate the Amended Schedule 14D-9 as required by Rule 14d-9 under the
Exchange Act. The Company and Acquisition each agrees to correct promptly any
information provided by it for use in the Amended Schedule 14D-9 if and to the
extent that information is or becomes incomplete or inaccurate in any material
respect and the Company will file any corrected Schedule 14D-9 with the SEC and
disseminate the corrected Schedule 14D-9 to the Company's stockholders to the
extent required by the Exchange Act or the rules under it.
(c) In connection with the Amended Tender Offer, the Company will
promptly furnish Acquisition with mailing labels, security position listings and
any other available listing or computer files containing the names and addresses
of the record holders or beneficial owners
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of shares of Common Stock as of a recent date and the Company will furnish
Acquisition with such additional information and assistance (including, without
limitation, updated lists of stockholders, mailing labels and lists of
securities positions) as Acquisition or its representatives may reasonably
request in order to communicate the Amended Tender Offer to the record holders
and beneficial owners of the Common Stock. Subject to the requirements of
applicable law, Acquisition will hold in confidence the information contained in
any such labels, listings or files, and will use that information only in
connection with the Amended Tender Offer and the Merger. If this Agreement is
terminated, Acquisition will return to the Company the originals and all copies
of that information which are in Acquisition's possession.
Article 2
THE MERGER
2.1 Agreement to Effect Merger. If the conditions to the Merger set forth
in Paragraph 6.2 are satisfied or waived, Acquisition will take all steps in its
power, including voting, and causing its affiliates to vote, all the Common
Stock beneficially owned by any of them in favor of adoption of this Agreement
and approval of the Merger, to cause Acquisition to be merged into the
Company (the "Merger") on the terms and with the effects set forth in Paragraphs
2.2 through 2.8.
2.2 The Merger. In the Merger, Acquisition will be merged into the
Company, which will be the surviving corporation of the Merger (the "Surviving
Corporation"). Except as specifically provided in this Agreement, when the
Merger becomes effective, (i) the real and personal property, other assets,
rights, privileges, immunities, powers, purposes and franchises of the Company
will continue unaffected and unimpaired by the Merger, (ii) the separate
existence of Acquisition will terminate, and Acquisition's real and personal
property, other assets, rights, privileges, immunities, powers, purposes and
franchises will be merged into the
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Surviving Corporation, and (iii) the Merger will have the other effects
specified in Section 259 of the Delaware General Corporation Law (the "DGCL").
2.3 Certificate of Incorporation. From the Effective Time (described in
Paragraph 3.3) until subsequently amended (subject to Paragraph 9.1), the
Certificate of Incorporation of Acquisition immediately before the Effective
Time will be the Certificate of Incorporation of the Surviving Corporation, and
that Certificate of Incorporation, separate and apart from this Agreement, may
be certified as the Certificate of Incorporation of the Surviving Corporation.
2.4 By-Laws. At the Effective Time, the By-Laws of Acquisition immediately
before the Effective Time will be the By-Laws of the Surviving Corporation,
until they are altered, amended or repealed (subject to Paragraph 9.1).
2.5 Directors. The directors of Acquisition immediately before the
Effective Time will be the directors of the Surviving Corporation after the
Effective Time and will hold office in accordance with the By-Laws of the
Surviving Corporation for the respective terms shown on Exhibit 2.5.
2.6 Officers. The officers of the Company immediately before the Effective
Time will be the officers of the Surviving Corporation after the Effective Time
and will hold office at the pleasure of the Board of Directors of the Surviving
Corporation.
2.7 Stock of the Company. (a) Except as provided in subparagraph (b), at
the Effective Time each share of Common Stock which is outstanding immediately
before the Effective Time will be converted into and become the right to receive
a sum in cash equal to the Amended Tender Offer Price (the "Merger Price").
(b) Each share of Common Stock held in the treasury of the Company,
and each share of Common Stock held by Acquisition or by any direct or indirect
subsidiary of the
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Company, immediately before the Effective Time will, at the Effective Time, be
cancelled and cease to exist and no payment will be made with respect to any of
those shares.
2.8 Stock of Acquisition. At the Effective Time, each share of common
stock, par value $1.00 per share, of Acquisition ("Acquisition common stock")
which is outstanding immediately before the Effective Time will be converted
into and become one share of common stock of the Surviving Corporation
("Surviving Corporation Common Stock"). At the Effective Time, a certificate
which represented Acquisition common stock will automatically become and be a
certificate representing the number of shares of Surviving Corporation Common
Stock into which the Acquisition common stock represented by the certificate was
converted.
2.9 Stockholders Meeting. If the conditions described in clauses (a) and
(b) of Paragraph 2.1 are satisfied, and if approval by the Company's
stockholders is required by applicable law in order to consummate the Merger,
the Company will:
(a) hold a special meeting of its stockholders as soon as
practicable following the Expiration Date for the purpose of adopting this
Agreement and approving the Merger (the "Stockholders Meeting");
(b) as promptly as practicable after the Expiration Date, (i) file
with the SEC a proxy statement (the "Proxy Statement") and other proxy
soliciting materials relating to the Stockholders Meeting, (ii) respond promptly
to any comments made by the staff of the SEC with respect to the Proxy Statement
or other proxy soliciting materials, (iii) cause the Proxy Statement to be
mailed to its stockholders at the earliest practicable time following the
Expiration Date, and (iv) in all other respects, use its best efforts to cause
its stockholders to adopt this Agreement and approve the Merger; and
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(c) include in the Proxy Statement the recommendation of the Board
that the stockholders of the Company vote in favor of the adoption of this
Agreement and approve the Merger, unless the Board, based upon written advice
from its counsel, determines in good faith that the failure to amend or withdraw
that recommendation could reasonably be expected to be a breach of the
directors' fiduciary duties under applicable law.
2.10 Voting by Acquisition. Until (a) the earlier of the Expiration Time
or such time as this Agreement is terminated and (b) if the conditions described
in clauses (a) and (b) of Paragraph 2.1 are satisfied, the earlier of the
Effective Time or such time as this Agreement is terminated, (i) Acquisition
will not, and Acquisition will cause the Three Cities Funds not to, dispose of
any of stock of the Company (except to a parent or subsidiary of Acquisition
which agrees to be bound by Paragraph 2.1 and this Paragraph) and (ii)
Acquisition will, and Acquisition will cause the Three Cities Funds to, vote all
shares of Common Stock which Acquisition or the Three Cities Funds own or
otherwise have the power to vote as required by Paragraph 2.1.
2.11 Dissenting Shares. (a) Notwithstanding any provision of this
Agreement to the contrary, Common Stock that is outstanding immediately prior to
the Effective Time which is held by stockholders who have complied with Section
262 of the DGCL (including making a timely demand for appraisal and not voting
in favor of or consenting to the Merger) will not be converted into the right to
receive the Merger Price. Instead, if the Merger takes place, the Surviving
Corporation will pay the holders of those shares the fair value of the shares
determined as provided in Section 262 of the DGCL. Shares held by stockholders
who fail to perfect, or who otherwise properly withdraw or lose, their rights to
receive the fair value of their shares determined under Section 262 of the DGCL
will be deemed to have been converted, at the later of the Effective Time or the
time they withdraw or lose their rights to receive the fair value of their
shares, into the right to receive the Merger Price, without any interest.
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(b) The Company will promptly give Acquisition (i) notice of any
demands for appraisal received by the Company, any withdrawals of any such
demands, and any other instruments served pursuant to Section 262 of the DGCL
which the Company receives and (ii) the opportunity to direct all negotiations
and proceedings with respect to demands for appraisal under the DGCL. The
Company will not, except with the prior written consent of Acquisition, make any
payment with respect to any demands for payment of the fair value of shares or
offer to settle or settle any such demands.
2.12 Payment for Shares. (a) Prior to the Effective Time, Acquisition will
designate a bank or trust company to act as Paying Agent in connection with the
Merger (the "Paying Agent"). At, or immediately before, the Effective Time,
Acquisition will provide the Paying Agent with the funds necessary to make the
payments contemplated by Paragraph 2.7. Until used for that purpose, the funds
will be invested by the Paying Agent, as directed by Acquisition, in obligations
of or guaranteed by the United States of America or obligations of an agency of
the United States of America which are backed by the full faith and credit of
the United States of America, in commercial paper obligations rated A-1 or P-1
or better by Moody's Investors Services Inc. or Standard & Poors' Corporation,
or in deposit accounts, certificates of deposit or banker's acceptances of,
repurchase or reverse repurchase agreements with, or Eurodollar time deposits
purchased from, commercial banks with capital, surplus and undivided profits
aggregating more than $200 million (based on the most recent financial
statements of the banks which are then publicly available at the SEC or
otherwise).
(b) Promptly after the Effective Time, the Surviving Corporation
will cause the Paying Agent to mail to each person who was a record holder of
Common Stock at the Effective Time, a form of letter of transmittal for use in
effecting the surrender of stock certificates representing Common Stock
("Certificates") in order to receive payment of the Merger Price. When the
Paying Agent receives a Certificate, together with a properly completed and
executed
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letter of transmittal and any other required documents, the Paying Agent will
pay to the holder of the Certificate, or as otherwise directed in the letter of
transmittal, the Merger Price with regard to the shares represented by the
Certificate, and the Certificate will be cancelled. No interest will be paid or
accrued on the cash payable upon the surrender of Certificates. If payment is to
be made to a person other than the person in whose name a surrendered
Certificate is registered, the surrendered Certificate must be properly endorsed
or otherwise be in proper form for transfer, and the person who surrenders the
Certificate must provide funds for payment of any transfer or other taxes
required by reason of the payment to a person other than the registered holder
of the surrendered Certificate or establish to the satisfaction of the Surviving
Corporation that the tax has been paid. After the Effective Time, a Certificate
which has not been surrendered will represent only the right to receive the
Merger Price, without any interest.
(c) If a Certificate has been lost, stolen or destroyed, the
Surviving Corporation will accept an affidavit and indemnification reasonably
satisfactory to it instead of the Certificate.
(d) At any time which is more than six months after the Effective
Time, the Surviving Corporation may require the Paying Agent to deliver to it
any funds which had been made available to the Paying Agent and have not been
disbursed to holders of shares of Common Stock (including, without limitation,
interest and other income received by the Paying Agent in respect of the funds
made available to it), and after the funds have been delivered to the Surviving
Corporation, former stockholders of the Company must look to the Surviving
Corporation for payment of the Merger Price upon surrender of the Certificates
held by them. Neither the Surviving Corporation nor the Paying Agent will be
liable to any former stockholder of the Company for any Merger consideration
which is delivered to a public official pursuant to any abandoned property,
escheat or similar law.
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(e) After the Effective Time, the Surviving Corporation will not
record any transfers of shares of Common Stock on the stock transfer books of
the Company or the Surviving Corporation, and the stock ledger of the Company
will be closed. If, after the Effective Time, Certificates are presented for
transfer, they will be cancelled and treated as having been surrendered for the
Merger Price.
2.13 Options and Warrants. At the Effective Time, each option or warrant
issued by the Company which is outstanding at that time will become the right to
receive a sum in cash equal to (a) the amount, if any, by which the Merger Price
exceeds the per share exercise price of the option or warrant, times (b) the
number of shares of Common Stock issuable upon exercise of the option or warrant
in full. In order to receive the amount to which a holder of an option or
warrant is entitled under this Paragraph, the holder must deliver to the Company
(i) any certificate or option agreement relating to the option or warrant and
(ii) a document in which the holder acknowledges that the payment the holder is
receiving is in full satisfaction of any rights the holder may have under or
with regard to the option or warrant.
Article 3
EFFECTIVE TIME OF MERGER
3.1 Date of the Merger. The day on which the Merger is to take place (the
"Merger Date") will be (a) the day on which the Merger is approved by the
holders of a majority of the outstanding shares of Common Stock or (b) if
stockholder approval of the Merger is not required by applicable law or by the
rules of the Nasdaq National Market (if they are applicable), a day designated
by Acquisition which will be not later than 10 days after the Expiration Date.
The Merger Date may be changed with the consent of the Company and Acquisition.
3.2 Execution of Certificate of Merger. Not later than 3:00 P.M. on the
day before the Merger Date, (a) Acquisition and the Company will each execute a
certificate of merger (the
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"Certificate of Merger") substantially in the form of Exhibit 3.2 and deliver it
to Rogers & Wells for filing with the Secretary of State of Delaware. Rogers &
Wells will be instructed that, if it is notified on the Merger Date that all the
conditions in Article VI have been fulfilled or waived, it is to cause the
Certificate of Merger to be filed with the Secretary of State of Delaware on the
Merger Date or as soon after that date as is practicable.
3.3 Effective Time of the Merger. The Merger will become effective at
11:59 P.M. on the day when the Certificate of Merger is filed with the Secretary
of State of Delaware (that being the "Effective Time").
Article 4
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of Acquisition. Acquisition represents
and warrants to the Company as follows:
(a) Acquisition is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(b) Acquisition has all corporate power and authority necessary to
enable it to enter into this Agreement and carry out the transactions
contemplated by this Agreement. All corporate actions necessary to authorize
Acquisition to enter into this Agreement and carry out the transactions
contemplated by it have been taken. This Agreement has been duly executed by
Acquisition and is a valid and binding agreement of Acquisition, enforceable
against Acquisition in accordance with its terms.
(c) Neither the execution or delivery of this Agreement or of any
document to be delivered in accordance with this Agreement nor the consummation
of the transactions contemplated by this Agreement or by any document to be
delivered in accordance with this
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Agreement will violate, result in a breach of, or constitute a default (or an
event which, with notice or lapse of time or both would constitute a default)
under, the Certificate of Incorporation or by-laws of Acquisition, any agreement
or instrument to which Acquisition or any subsidiary of Acquisition is a party
or by which any of them is bound, any law, or any order, rule or regulation of
any court or governmental agency or other regulatory organization having
jurisdiction over Acquisition or any of its subsidiaries, except violations or
breaches of, or defaults under, agreements or instruments which would not have a
Material Adverse Effect on any of the Company, Acquisition or either of the
Three Cities Funds.
(d) No governmental filings, authorizations, approvals or consents,
or other governmental action, other than the termination or expiration of
waiting periods under the Hart Scott Rodino Antitrust Improvements Act of 1976
(the "HSR Act"), if any, are required to permit Acquisition to fulfill all its
obligations under this Agreement.
(e) Acquisition was formed solely for the purpose of engaging in the
transaction contemplated by this Agreement. Acquisition has not, and at the
Effective Time will not have, engaged in any activities or incurred, directly or
indirectly, any obligations or liabilities, except the activities relating to or
contemplated by this Agreement and obligations or liabilities incurred in
connection with those activities and with the transactions contemplated by this
Agreement.
(f) Neither the Offer Documents nor any information supplied by
Acquisition for inclusion in the Schedule 14D-9 or the Amended Schedule 14D-9
will, at the respective times the Schedule 14D-1, the Amended Schedule 14D-1,
the Schedule 14D-9 and the Amended Schedule 14D-9 are filed with the SEC and
first published, sent or given to the Company's stockholders, contain a false or
misleading statement with respect to any 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.
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On the date the Proxy Statement is mailed to the Company's stockholders and on
the date of the Stockholders Meeting, none of the information supplied by
Acquisition for inclusion in the Proxy Statement will be false or misleading
with respect to any material fact or will 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
or necessary to correct any statement in any earlier communication with respect
to the Stockholders Meeting or the solicitation of proxies to be used at the
Stockholders Meeting. However, Acquisition does not make any representations or
warranties with respect to information supplied by the Company or any of its
affiliates or representatives for inclusion in the Offering Documents, or with
respect to the Schedule 14D-9, the Amended Schedule 14D-9 or the Proxy Statement
(except to the extent of information supplied by Acquisition for inclusion in
the Schedule 14D-9, the Amended Schedule 14D-9 or the Proxy Statement). The
Offering Documents will comply as to form in all material respects with the
requirements of the Exchange Act and the rules under it.
(g) Acquisition is wholly owned by the Three Cities Funds. The Three
Cities Funds have, or have arranged equity investments or loans which will
provide, sufficient funds to enable Acquisition to purchase and pay for in a
timely manner all the Common Stock which is tendered in response to the Amended
Tender Offer and enable Acquisition to fulfill in a timely manner all of its
other obligations under this Agreement.
(h) Neither Acquisition nor either of the Three Cities Funds is the
subject of any suit or governmental proceeding which seeks to prevent
Acquisition from completing the transactions which are the subject of this
Agreement, nor, to the best of Acquisition's knowledge, has any such suit or
proceeding been threatened.
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<PAGE> 18
(i) Prior to purchasing Common Stock from either of the Funds, the
Three Cities Funds disclosed to the Funds the principal terms of this Agreement,
including the terms relating to the amount of the Tender Offer Price and the
amount of the Merger Price.
(j) In connection with the purchase of Common Stock from the Funds,
the Three Cities Funds have obtained from the Funds assignments of (i) all
claims the Funds have or may have as purchasers or holders of Common Stock
against the Company, any directors, officers, agents or employees of, or
underwriters, accountants or attorneys for, the Company or any other persons
arising out of or relating to disclosure, or omissions to disclosure, by the
Company relating to its or its subsidiaries' business, operating results,
financial condition or prospects or to any other subjects, (ii) all rights
arising out of or resulting from those claims or the subject matter of those
claims, and (iii) all rights to payments, and all other rights which they have
or to which they in the future become entitled as the holders of those claims
(including all the claims and rights the Funds may have as members of any class
or alleged class of plaintiffs, or otherwise as stockholders of the Company
during the relevant time period, in the Stockholder Suits).
(k) In acquiring claims and rights relating to Sherleigh Associates
Inc. Profit Sharing Plan v. Cohr, Inc., et. al. in the United States District
Court, Central District of California, 988-3028 JSL (BQRx); Leonard Leeds v.
Umesh Malhotra, et. al. in the Superior Court of the State of California, County
of Los Angeles, BC 189490; Marcia Zabronsky, et. al. v. Cohr, Inc. et. al. in
the United States District Court, Central District of California, Western
Division, 98-3493 R (Ex); Robert Schug v. Paul Chopra, et. al. in the Superior
Court of the State of California, County of Los Angeles, BC 190933; Charles
Birdu v. Cohr, Inc. et. al in the United States District Court, Central District
of California, 98-4177 WMB(AJWx) and any other suits brought by or on behalf of
stockholders of the Company relating to the occurrences which are the subject of
those five suits (together, the "Stockholder Suits"), the Three Cities Funds
were at all times
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<PAGE> 19
advised by competent counsel of their own choosing, and they have not been
represented by anyone who is a counsel for any of the plaintiffs in any of the
Stockholder Suits.
4.2 Representations and Warranties of the Company. The Company represents
and warrants to Acquisition as follows:
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(b) The Company has all corporate power and authority necessary to
enable it to enter into this Agreement and carry out the transactions
contemplated by this Agreement. All corporate actions necessary to authorize the
Company to enter into this Agreement and carry out the transactions contemplated
by it, other than adoption of this Agreement by the stockholders of the Company,
have been taken. This Agreement has been duly executed by the Company and is a
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms.
(c) Neither the execution and delivery of this Agreement or of any
document to be delivered in accordance with this Agreement nor the consummation
of the transactions contemplated by this Agreement or by any document to be
delivered in accordance with this Agreement will violate, result in a breach of,
or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, the Certificate of Incorporation or
By-Laws of the Company, any agreement or instrument to which the Company or any
subsidiary of the Company is a party or by which any of them is bound, any law,
or any order, rule or regulation of any court or governmental agency or other
regulatory organization having jurisdiction over the Company or any of its
subsidiaries except violations or breaches of, or defaults under, agreements or
instruments which would not have a Material Adverse Effect on any of the
Company, Acquisition or either of the Three Cities Funds.
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<PAGE> 20
(d) Except as shown on Exhibit 4.2-D, no governmental filings,
authorizations, approvals, or consents, or other governmental action, other than
the expiration or termination of waiting periods under the HSR Act, if any, are
required to permit the Company to fulfill all its obligations under this
Agreement.
(e) Effective concurrently with the execution of the Original Merger
Agreement, the Board approved increasing in the number of members constituting
the entire Board to ten and elected J. William Uhrig and Wm. Robert Wright II to
fill the resulting two vacancies on the Board.
(f) As of the date of the Original Merger Agreement, the Company and
each of its subsidiaries is qualified to do business as a foreign corporation in
each state in which it is required to be qualified, except states in which the
failure to qualify, in the aggregate, would not have a Material Adverse Effect
upon the Company. As used in this Agreement, the term "Material Adverse Effect"
upon a company means a material adverse effect upon (i) the consolidated
financial position of that company and its subsidiaries taken as a whole, or
(ii) the consolidated results of operations of that company and its subsidiaries
taken as a whole compared with the consolidated results of their operations
during the same period of the prior year. For the purposes of the definition of
Material Adverse Effect, (x) an adverse change in financial condition will be
material if it is a material reduction of working capital, tangible net worth or
net asset value, and (y) an adverse change in results of operations will be
material if it is a material reduction in total revenues, net income before
income taxes or net income.
(g) The only authorized stock of the Company is 20,000,000 shares of
Common Stock and 2,000,000 shares of preferred stock, par value $.01 per share.
At the date of the Original Merger Agreement, the only outstanding stock of the
Company is 6,433,189 shares of Common Stock. All those shares have been duly
authorized and issued and are fully paid and
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<PAGE> 21
non-assessable. Except as shown on Exhibit 4.2-G, as of the date of the Original
Merger Agreement, the Company has not issued any options, warrants or
convertible or exchangeable securities, and is not a party to any other
agreements, which require, or upon the passage of time, the payment of money or
the occurrence of any other event may require, the Company to issue or sell any
of its stock. The Company, with the approval of the Board, has amended the
Rights Agreement (the "Rights Agreement") dated November 23, 1998 between the
Company and ChaseMellon Shareholder Services LLC, to exclude the Three Cities
Funds and Acquisition from the definition of "Acquiring Person" in the Rights
Agreement. As a result of that amendment, neither the purchase of Common Stock
by the Three Cities Funds from the Funds nor any of the transactions
contemplated by this Agreement will result in there being a Distribution Date
under the Rights Agreement or otherwise entitle anyone to exercise Rights under
the Rights Agreement.
(h) Except as shown on Exhibit 4.2-G or 4.2-H, as of the date of the
Original Merger Agreement, (i) each of the corporations and other entities of
which the Company owns directly or indirectly 50% or more of the equity (each
corporation or other entity of which a company owns directly or indirectly 50%
or more of the equity being a "subsidiary" of that company) has been duly
organized, and is validly existing and in good standing under the laws of its
state of incorporation, (ii) all outstanding shares of stock of the Company's
subsidiaries owned by the Company or any of its subsidiaries are duly
authorized, validly issued, fully paid and non-assessable and are not subject to
any preemptive rights, and (iii) neither the Company nor any of its subsidiaries
has issued any options, warrants or convertible or exchangeable securities, or
is a party to any other agreements, which require, or upon the passage of time,
the payment of money or the occurrence of any other event may require, the
Company or any subsidiary to issue or sell any of its stock or other equity
interests, and, there are no registration
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<PAGE> 22
covenants or transfer or voting restrictions with respect to outstanding
securities of any of the Company's subsidiaries.
(i) Since February 16, 1996, the Company has filed with the SEC all
forms, statements, reports and documents it has been required to file under the
Securities Act of 1993, as amended, the Exchange Act or the rules under them.
(j) The Company's Annual Report on Form 10-K for the year ended
March 31, 1998 (the "1998 10-K") and its Report on Form 10-Q for the period
ended September 30, 1998 (the "September 10-Q") which were filed with the
Securities and Exchange Commission, including the documents incorporated by
reference in each of them, each contained all the information required to be
included in it and, when it was filed, did not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements made in it, in light of the circumstances under which they were made,
not misleading. Without limiting what is said in the preceding sentence, the
financial statements included in the 1998 10-K all were prepared, and the
financial information included in the September 10-Q was derived from financial
statements which were prepared, in accordance with United States generally
accepted accounting principles ("GAAP") applied on a consistent basis (except
that financial information included in the September 10-Q does not contain notes
and is subject to normal year end adjustments) and presented fairly the
consolidated financial condition and the consolidated results of operations of
the Company and its subsidiaries at the dates, and for the periods, to which
they relate. As of the date of the Original Merger Agreement, the Company has
not filed any reports with the Securities and Exchange Commission with regard to
any period which ended, or any event which occurred, after September 30, 1998,
except a Form 8-A which the Company filed on November 25, 1998 and a Form 8-K
which the Company filed on December 21, 1998.
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<PAGE> 23
(k) Between September 30, 1998 and the date of the Original Merger
Agreement, (i) the Company and its subsidiaries conducted their businesses in
the ordinary course and in the same manner in which they were conducted prior to
September 30, 1998, and (ii) nothing occurred which, individually or in
aggregate, had a Material Adverse Effect on the Company and its subsidiaries
taken as a whole.
(l) The assets of the Company and its subsidiaries at the date of
the Original Merger Agreement constitute, in the aggregate, all the assets
(including, but not limited to, intellectual property rights) used in or
necessary to the conduct of their businesses as they were being conducted at the
date of the Original Merger Agreement.
(m) The Company and it subsidiaries at all times prior to and at the
date of the Original Merger Agreement complied with all applicable Federal,
state, local and foreign laws and regulations, except failures to comply which
would not reasonably have been expected, in the aggregate, to have a Material
Averse Effect on the Company.
(n) The Company and each of its subsidiaries has all licenses and
permits which, at the date of the Original Merger Agreement, were required to
enable them to conduct their businesses as they currently are being conducted,
except licenses or permits the lack of which would not reasonably be expected,
in the aggregate, to have a Material Adverse Effect on the Company.
(o) As of the date of the Original Merger Agreement, the Company and
each of its subsidiaries has filed when due all Tax Returns which it has been
required to file and has paid all Taxes shown on those returns to be due. Those
Tax Returns accurately reflect all Taxes required to have been paid, except to
the extent of items which may be disputed by applicable taxing authorities but
for which there is substantial authority to support the position taken by the
Company or the subsidiary and which have been adequately reserved against in
20
<PAGE> 24
accordance with GAAP on the balance sheet at September 30, 1998 included in the
September 10-Q. Except as shown on Exhibit 4.2-O, as of the date of the Original
Merger Agreement, (i) no extension of time given by the Company or any of its
subsidiaries for completion of the audit of any of its Tax Returns is in effect,
(ii) no tax lien has been filed by any taxing authority against the Company or
any of its subsidiaries or any of their assets, (iii) no Federal, state or local
audits or other administrative proceedings or court proceedings with regard to
Taxes are presently pending with regard to the Company or any of its
subsidiaries, (iv) neither the Company nor any subsidiary is a party to any
agreement providing for the allocation or sharing of Taxes, (v) neither the
Company nor any subsidiary has participated in or cooperated with an
international boycott as that term is used in Section 999 of the Internal
Revenue Code of 1986, as amended (the "Code") and (vi) neither the Company nor
any subsidiary has filed a consent pursuant to Section 341(f) of the Code or
agreed to have Section 341(f)(2) of the Code apply to any disposition of a
Subsection (f) asset (as that term is defined in Section 341(f)(4) of the Code)
owned by the Company or any subsidiary. For the purposes of this Agreement, the
term "Taxes" means all taxes (including, but not limited to, withholding taxes),
assessments, fees, levies and other governmental charges, and any related
interest or penalties. For the purposes of this Agreement, the term "Tax Return"
means any report, return or other information required to be supplied to a
taxing authority in connection with Taxes.
(p) Except as shown on Exhibit 4.2-P, as of the date of the Original
Merger Agreement, neither the Company nor any subsidiary has received any notice
of material non-compliance or material liability under any Federal, state or
local environmental laws or regulations relating to real property owned or
leased by the Company or by a subsidiary.
(q) Neither the Schedule 14D-9 nor the Amended Schedule 14D-9, nor
any information supplied by the Company for inclusion in the Offering Documents
will, at the respective times the Schedule 14D-9, the Amended Schedule 14D-9,
the Schedule 14D-1 and
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<PAGE> 25
the Amended Schedule 14D-1 are filed with the SEC and first published, sent or
given to the Company's stockholders, contain a false or misleading statement
with respect to any 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. On the day the
Proxy Statement is mailed to the Company's stockholders and on the day of the
Stockholders Meeting, the Proxy Statement will not contain a false or misleading
statement with respect to any 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
or necessary to correct any statement in any earlier communication with respect
to the Stockholders Meeting or the solicitation of proxies to be used at the
Stockholders Meeting. However, the Company does not make any representations or
warranties with respect to information supplied by Acquisition or any of its
affiliates or representatives for inclusion in the Schedule 14D-9, the Amended
Schedule 14D-9 or the Proxy Statement, or with respect to the Offering Documents
(except to the extent of information supplied by the Company for inclusion in
the Offering Documents). The Schedule 14D-9, the Amended Schedule 14D-9 and
Proxy Statement will comply as to form in all material respects with the
requirements of the Exchange Act and the rules under it.
4.3 Termination of Representations and Warranties. The representations and
warranties in Paragraphs 4.1, 4.2 and 8.1 will terminate at the Expiration Date,
and neither the Company nor Acquisition, nor any of their respective
stockholders, will have any rights or claims as a result of any of those
representations or warranties after the Expiration Date.
Article 5
ACTIONS PRIOR TO THE MERGER
5.1 Activities Until Effective Time. From the date of the Original Merger
Agreement to the date of this Agreement, the Company has acted, and has caused
each of its subsidiaries
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<PAGE> 26
to act, as described in subparagraphs (a) through (o) below. In addition, from
the date of this Agreement until the Effective Time, except as described on
Exhibit 5.1, the Company will continue to, and will continue to cause each of
its subsidiaries to, except with the written consent of Acquisition and the
Company:
(a) Operate its business in the ordinary course and in a manner
consistent with the manner in which it is being operated at the date of this
Agreement.
(b) Take all reasonable steps available to it to maintain the
goodwill of its business and, except as otherwise requested by Acquisition, the
continued employment of its executives and other employees.
(c) At its expense, maintain all its assets in good repair and
condition, except to the extent of reasonable wear and use and damage by fire or
other unavoidable casualty.
(d) Not make any borrowings other than borrowings in the ordinary
course of business under working capital lines which are disclosed in the notes
to the consolidated balance sheet at March 31, 1998 included in the 1998 10-K or
the consolidated balance sheet at September 30, 1998 included in the September
10-Q.
(e) Not enter into any contractual commitments involving capital
expenditures, loans or advances, and not voluntarily incur any contingent
liabilities, except in each case in the ordinary course of business.
(f) Not redeem or purchase any of its stock and not declare or pay
any dividends, or make any other distributions or repayments of debt to its
stockholders (other than payments by subsidiaries of the Company to the Company
or to other wholly owned subsidiaries of the Company).
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<PAGE> 27
(g) Not make any loans or advances (other than advances for travel
and other normal business expenses) to stockholders, directors, officers or
employees.
(h) Maintain its books of account and records in the usual manner,
in accordance with GAAP applied on a consistent basis, subject to normal
year-end adjustments and accruals.
(i) Comply in all material respects with all applicable laws and
regulations of governmental agencies.
(j) Not sell, dispose of or encumber any property or assets, or
engage in any activities or transactions, except in each case in the ordinary
course of business.
(k) Not enter into or amend any employment, severance or similar
agreements or arrangements, or increase the salaries of any employees, other
than through normal annual merit increases averaging not more than 10%.
(l) Not adopt, become an employer with regard to, or amend any
employee compensation, employee benefit or post-employment benefit plan.
(m) Not amend its certificate of incorporation or by-laws.
(n) Not (i) issue or sell any of its stock (except upon exercise of
options which are outstanding on the date of this Agreement) or any options,
warrants or convertible or exchangeable securities or (ii) split, combine, or
reclassify its outstanding stock.
(o) Not authorize or enter into any agreement to take any of the
actions referred to in subparagraphs (a ) through (n) above.
5.2 HSR Act Filings. The Company and Acquisition has each made the filing
it is required to make under the HSR Act with regard to the transactions which
are the subject of this
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<PAGE> 28
Agreement and they have been notified that the waiting periods required by the
HSR Act have been terminated. The Company and Acquisition will each provide
information and cooperate in all other respects to assist the other of them in
making any further filings required under the HSR Act.
5.3 Proxy Statements and Stockholders' Meetings
(a) If the conditions in clauses (a) and (b) of Paragraph 2.1 are
satisfied and stockholder approval of the Merger is required by applicable law
or by rules of the Nasdaq National Market (if they are applicable), the Company
will (i) file the Proxy Statement with the SEC as promptly as practicable after
the Expiration Date, (ii) use its best efforts to cause review of the Proxy
Statement by the SEC staff to be completed as promptly as practicable, (iii)
recommend to its stockholders that they vote in favor of the Merger and permit
that recommendation to be described in the Proxy Statement, (iv) as promptly as
practicable, and in any event within 10 days after the Company is informed that
the SEC staff has no further comments about the Proxy Statement, cause the Proxy
Statement to be mailed to its stockholders and (v) cause the Stockholders
Meeting to be held not later than the 30th day after the day on which the Proxy
Statement is mailed.
(b) Acquisition will (i) supply to the Company all information in
Acquisition's possession, including any required financial statements of
Acquisition, which the Company is required to include in the Proxy Statement and
in all other respects cooperate with the Company in its efforts to file the
Proxy Statement with the SEC and cause review of the Proxy Statement to be
completed as promptly as practicable after it is filed with the SEC.
5.4 No Solicitation of Offers; Notice of Proposals from Others. (a) The
Company will not, and will not authorize or permit its or any of its
subsidiaries' officers, directors, employees, agents or representatives
(including any investment banker, attorney or accountant
25
<PAGE> 29
retained by it or by any of its subsidiaries) directly or indirectly to
initiate, solicit, encourage or otherwise facilitate any inquiry or the making
of any proposal or offer with respect to a merger, reorganization, share
exchange, consolidation or similar transaction involving the Company, or any
purchase of or tender offer for, all or any significant portion of the Company's
equity securities or any significant portion of the assets of the Company and
its subsidiaries on a consolidated basis (each of these being an "Acquisition
Proposal").
(b) [Intentionally deleted.]
(c) If the Company receives an Acquisition Proposal, or the Company
learns that someone other than Acquisition is contemplating soliciting tenders
of Common Stock or otherwise proposes to acquire the Company or its Common Stock
if the Company's stockholders do not tender their Common Stock to Acquisition or
do not approve the Merger, the Company will promptly notify Acquisition of that
fact and provide Acquisition with all information in the Company's possession
which Acquisition reasonably requests regarding the Acquisition Proposal,
solicitation of tenders or other proposed transaction, and the Company will
promptly, from time to time, provide Acquisition with any additional information
the Company obtains regarding the Acquisition Proposal, the solicitation of
tenders or the other proposed transaction.
5.5 Acquisition's Efforts to Fulfill Conditions. Acquisition will use its
best efforts to cause all the conditions set forth in Paragraph 6.1 to be
fulfilled on or before the Merger Date.
5.6 Company's Efforts to Fulfill Conditions. The Company will use its best
efforts to cause all the conditions set forth in Paragraph 6.2 to be fulfilled
on or before the Merger Date.
Article 6
CONDITIONS PRECEDENT TO MERGER
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<PAGE> 30
6.1 Conditions to the Company's Obligations. The obligations of the
Company to complete the Merger are subject to satisfaction of the following
conditions (any or all of which may be waived by the Company):
(a) The representations and warranties of Acquisition contained in
this Agreement will, except as contemplated by this Agreement, be true and
correct in all material respects on the Merger Date with the same effect as
though made on that date (except that representations or warranties which
related expressly to a specified date or a specified period need only to have
been true and correct with regard to the specified date or period), and
Acquisition will have delivered to the Company a certificate dated that date and
signed by the President or a Vice President of Acquisition to that effect.
(b) Acquisition will have fulfilled in all material respects all its
obligations under this Agreement required to have been fulfilled on or before
the Merger Date.
(c) No order will have been entered by any court or governmental
authority and be in force which invalidates this Agreement or restrains the
Company from completing the transactions which are the subject of this Agreement
(d) If stockholder approval of the Merger is required by applicable
law or by the rules of the Nasdaq National Market (if they are applicable), the
Merger will have been approved by the holders of a majority of the outstanding
shares of Common Stock.
6.2 Conditions to Acquisition's Obligations. The obligations of
Acquisition to complete the Merger are subject to the following conditions (any
or all of which may be waived by Acquisition):
(a) The representations and warranties of the Company contained in
this Agreement will, except as contemplated by this Agreement, be true and
correct in all material
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<PAGE> 31
respects on the Merger Date with the same effect as though made on that date
(except that representations or warranties which related expressly as of a
specified date or a specified period need only to have been true and correct
with regard to the specified date or period), and the Company will have
delivered to Acquisition a certificate dated that date and signed by the
President or a Vice President of the Company to that effect.
(b) The Company will have fulfilled in all material respects all its
obligations under this Agreement required to have been fulfilled on or before
the Merger Date.
(c) No order will have been entered by any court or governmental
authority and be in force which invalidates this Agreement or restrains
Acquisition from completing the transactions which are the subject of this
Agreement and no action will be pending against the Company or Acquisition
relating to the transactions which are the subject of this Agreement which
presents a reasonable likelihood of resulting in an award of damages against the
Company or Acquisition which would be material after the Merger to the Company
and its subsidiaries taken as a whole.
(d) J. William Uhrig and Wm. Robert Wright II (or replacements
designated by Acquisition) will have been members of the Board at all times
since this Agreement was signed by the Company and by Acquisition.
(e) If stockholder approval of the Merger is required by applicable
law or by the rules of the Nasdaq National Market (if they are applicable), the
Merger will have been approved by the holders of at least a majority of the
outstanding shares of Common Stock.
(f) If stockholder approval of the Merger is required by applicable
law or by the rules of the Nasdaq National Market (if they are applicable), the
Effective Time will occur not later than 120 days after the Expiration Time,
unless the Effective Time is delayed until after
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<PAGE> 32
then because of actions of Acquisition or its affiliates (other than the Company
and its subsidiaries) or because of Acquisition's failure to fulfill obligations
under this Agreement.
Article 7
TERMINATION
7.1 Right to Terminate. This Agreement may be terminated at any time prior
to the Effective Time (whether or not the Company's stockholders have approved
the Merger):
(a) By mutual consent of the Company and Acquisition.
(b) By Acquisition if the condition in Paragraph 6.2(f) is not
fulfilled.
(c) By the Company if (i) it is determined that any of the
representations or warranties of Acquisition contained in this Agreement was not
complete and accurate in all material respects on the date of this Agreement or
(ii) any of the conditions in Paragraph 6.1 is not satisfied or waived by the
Company on or before the Merger Date.
(d) By Acquisition if (i) it is determined that any of the
representations or warranties of the Company contained in this Agreement was not
complete and accurate in all material respects on the date of this Agreement or
(ii) any of the conditions in Paragraph 6.2 is not satisfied or waived by
Acquisition on or before the Merger Date.
(e) [Intentionally deleted.]
(f) [Intentionally deleted.]
7.2 Manner of Terminating Agreement If at any time the Company has the
right under Paragraph 7.1 to terminate this Agreement, it can terminate this
Agreement by a notice to the other of them that it is terminating this
Agreement.
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<PAGE> 33
7.3 Effect of Termination. If this Agreement is terminated pursuant to
Paragraph 7.1, after this Agreement is terminated, neither party will have any
further rights or obligations under this Agreement other than Acquisition's
obligations under Paragraph 9.1. Nothing contained in this Paragraph will,
however, relieve either party of liability for any breach of this Agreement
which occurs before this Agreement is terminated.
Article 8
ABSENCE OF BROKERS
8.1 Representations and Warranties Regarding Brokers and Others. The
Company and Acquisition each represents and warrants to the other of them that
nobody acted as a broker, a finder or in any similar capacity in connection with
the transactions which are the subject of this Agreement, except that Lehman
Brothers, Inc. acted as financial advisor to the Company and Sanders Morris
Mundy & Co. has assisted the Three Cities Funds in connection with the purchases
of Common Stock from the Funds. The Company will pay all fees of Lehman
Brothers, Inc. (which will not exceed $900,000) and reimbursement of Lehman
Brothers, Inc. for out-of-pocket expenses (which will not exceed $25,000) and
the Three Cities Funds will pay all fees of Sanders Morris Mundy & Co. The
Company and Acquisition each indemnifies the other of them against, and agrees
to hold the other of them harmless from, all losses, liabilities and expenses
(including, but not limited to, reasonable fees and expenses of counsel and
costs of investigation) incurred because of any claim by anyone for compensation
as a broker, a finder or in any similar capacity by reason of services allegedly
rendered to the indemnifying party in connection with the transactions which are
the subject of this Agreement.
Article 9
OTHER AGREEMENTS
9.1 Indemnification for Prior Acts. (a)The Surviving Corporation will
honor, and will not amend or modify for a period of not less than six years
after the date of this Agreement,
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any and all obligations of the Company and its subsidiaries to indemnify present
and former directors, officers or employees of the Company or its subsidiaries
(each an "Indemnified Party") with respect to matters which occur on or prior to
the Effective Time, whether provided in the certificate of incorporation or
by-laws of the Company or any of its subsidiaries, in any of the agreements
listed on Exhibit 9.1-A(1) or under the DGCL. The Surviving Corporation will
maintain in effect for not less than six years after the Effective Time with
respect to occurrences or omissions prior to the Effective Time directors and
officers' liability insurance (which need not insure the Company against risk
other than the Company's obligation to insure officers and directors) with
coverage limits comparable to those of the policies in effect at the date of
this Agreement (the "Current Policies") to the extent that insurance can be
purchased for premiums totaling not more than $100,000 plus any premiums paid
for the Current Policies which are refunded because the Current Policies are
terminated before their stated expiration dates (if that occurs), or to the
extent that coverage cannot be purchased for that amount, reduce the coverage or
increase the deductible amount in order to obtain the maximum coverage which can
be purchased for that amount.
(b) Without limiting the foregoing, in the event any indemnified claim
("Claim") is brought against any Indemnified Party after the Effective Time, (i)
the Indemnified Parties may retain the Company's regularly engaged independent
legal counsel, or other independent legal counsel satisfactory to them and to
the Surviving Corporation, (ii) the Surviving Corporation shall pay all
reasonable fees and expenses of counsel for the Indemnified Parties as described
below promptly as statements therefor are received and (iii) the Surviving
Corporation will use its best efforts to assist in the vigorous defense of any
such matter, provided that the Surviving Corporation shall not be liable for any
settlement of any Claim effected without its written consent, which consent
shall not be unreasonably withheld. Any Indemnified Party wishing to claim
indemnification with regard to a Claim, upon learning of the Claim, shall notify
the
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Surviving Corporation of the Claim (although the failure so to notify the
Surviving Corporation shall not relieve the Surviving Corporation from any
liability which the Surviving Corporation may have, except to the extent such
failure materially prejudices the Surviving Corporation), and shall deliver to
the Surviving Corporation the undertaking contemplated by Section 145(e) of the
DGCL. The Indemnified Parties as a group may retain one law firm (in addition to
local counsel) to represent them with respect to each such matter unless there
is, under applicable standards of professional conduct (as determined by counsel
to the Indemnified Parties), a conflict on any significant issue between the
positions of any two or more Indemnified Parties, in which event, such
additional counsel as may be required may be retained by the Indemnified
Parties. The Company will pay the fees and expenses of the one law firm (plus
local counsel) and, if there is a conflict as described in the preceding
sentence, fees and expenses of one additional law firm (plus local counsel).
Under no circumstances will the Company be required to pay the fees and expenses
of more than two law firms (plus local counsel) with regard to any Claim or
group of related Claims.
(c) The provisions of this Paragraph 9.1 are intended to be for the
benefit of, and will be enforceable by, the respective directors, officers and
employees of the Company or its subsidiaries to which it relates and their heirs
and representatives and will be binding upon the Surviving Corporation.
9.2 [Intentionally deleted.]
9.3 Agreement Regarding Directors. Until Acquisition purchases all the
shares of Common Stock which are properly tendered in response to the Amended
Tender Offer and not withdrawn or this Agreement terminates, neither of the
Three Cities Funds nor Acquisition will vote any Common Stock or take any other
action to cause (i) anyone other than J. William Uhrig and Wm. Robert Wright II
(or replacements for them designated by Acquisition) to be elected to
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the Board (except by voting at an annual meeting of stockholders in favor of the
Board's nominees for election to the Board), (ii) the number of directors
constituting the entire Board to be increased or decreased, or (iii) any
director to be removed from the Board other than for cause.
9.4 [Intentionally deleted.]
9.5 Control of Stockholder Suits. At least until the Expiration Date,
the Company, under the direction of the Board, will control any and all
negotiations and decisions with respect to the Stockholder Suits, and
Acquisition will not, and will cause the Three Cities Funds not to, communicate
about the Stockholder Suits with counsel for the plaintiffs in the Stockholder
Suits, the Company's insurance carriers or their counsel, or any other party
involved in the Stockholder Suits, without the express prior consent of the
Company or its counsel.
Article 10
GENERAL
10.1 Expenses. The Company and Acquisition will each pay its own
expenses in connection with the transactions which are the subject of this
Agreement, including legal fees.
10.2 Access to Properties, Books and Records. From the date of this
Agreement until the Effective Time, the Company will, and will cause each of its
subsidiaries to, give representatives of Acquisition full access during normal
business hours to all of their respective properties, books and records.
Acquisition will, and will cause its representatives to, hold all information it
receives as a result of its access to the properties, books and records of the
Company or its subsidiaries in confidence, except to the extent that information
(i) is or becomes available to the public (other than through a breach of this
Agreement), (ii) becomes available to Acquisition from a third party which,
insofar as Acquisition is aware, is not under an
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obligation to the Company, or to a subsidiary of the Company, to keep the
information confidential, (iii) was known to Acquisition or its affiliates
(which includes the Three Cities Funds and Three Cities Research, Inc.) before
it was made available to Acquisition or its representative by the Company or a
subsidiary, or (iv) otherwise is independently developed by Acquisition or its
affiliates. If this Agreement is terminated prior to the Effective Time,
Acquisition will, at the request of the Company, deliver to the Company all
documents and other material obtained by Acquisition from the Company or a
subsidiary in connection with the transactions which are the subject of this
Agreement or evidence that that material has been destroyed by Acquisition.
10.3 Press Releases. The Company and Acquisition will consult with each
other before issuing any press releases or otherwise making any public
statements with respect to this Agreement, except that nothing in this Paragraph
will prevent either party from making any statement when and as required by law
or by the rules of any securities exchange or securities quotation or trading
system on which securities of that party or an affiliate are listed, quoted or
traded.
10.4 Entire Agreement. This Agreement and the documents to be delivered
in accordance with this Agreement contain the entire agreement between the
Company and Acquisition relating to the transactions which are the subject of
this Agreement and those other documents, all prior negotiations, understandings
and agreements between the Company and Acquisition are superseded by this
Agreement and those other documents, and there are no representations,
warranties, understandings or agreements concerning the transactions which are
the subject of this Agreement or those other documents other than those
expressly set forth in this Agreement or those other documents.
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10.5 Effect of Disclosures. Any information disclosed by a party in any
representation or warranty contained in this Agreement (including exhibits to
this Agreement) will be treated as having been disclosed in connection with each
representation and warranty made by that party in this Agreement.
10.6 Captions. The captions of the articles and paragraphs of this
Agreement are for reference only, and do not affect the meaning or
interpretation of this Agreement.
10.7 Prohibition Against Assignment. Neither this Agreement nor any
right of any party under it may be assigned, except that Acquisition may assign
its rights under this Agreement to a corporation or other entity a majority of
the equity of which is owned by the Three Cities Funds.
10.8 Notices and Other Communications. Any notice or other
communication under this Agreement must be in writing and will be deemed given
when it is delivered in person or sent by facsimile (with proof of receipt at
the number to which it is required to be sent), on the business day after the
day on which it is sent by a major nationwide overnight delivery service, or on
the third business day after the day on which it is mailed by first class mail
from within the United States of America, to the following addresses (or such
other address as may be specified after the date of this Agreement by the party
to which the notice or communication is sent):
If to Acquisition:
TCF Acquisition Corporation
c/o Three Cities Research, Inc.
650 Madison Avenue
New York, New York
Attention: J. William Uhrig
Facsimile: 212-980-1142
with a copy to:
David W. Bernstein
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Rogers & Wells LLP
200 Park Avenue
New York, New York 10166
Facsimile: 212-878-8375
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If to the Company.:
COHR Inc.
2540 Plummer Street
Chatsworth, CA 91311
Attention: President
Facsimile: 818-717-8426
with a copy to:
Robert B. Knauss
Munger Tolles & Olson LLP
355 South Grand Avenue
Los Angeles, CA 90071
Facsimile No.: 213-687-3702
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10.9 Governing Law. This Agreement will be governed by, and construed
under, the substantive laws of the State of Delaware.
10.10 Amendments. This Agreement may be amended only by a document in
writing signed by both the Company and Acquisition.
10.11 Counterparts. This Agreement may be executed in two or more
counterparts, some of which may be signed by fewer than all the parties or may
contain facsimile copies of pages signed by some of the parties. Each of those
counterparts will be deemed to be an original copy of this Agreement, but all of
them together will constitute one and the same agreement.
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IN WITNESS WHEREOF, the Company and Acquisition have executed this
Agreement, intending to be legally bound by it, on the day shown on the first
page of this Agreement.
COHR INC.
By: /s/ Lynn P. Reitnouer
------------------------
Title: Chairman of the Board
TCF ACQUISITION CORPORATION
By: /s/ J. William Urhig
------------------------
Title: President
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Exhibit 1.1-E
Acquisition will not be required to accept for payment or pay for any
Common Stock tendered in response to the Amended Tender Offer if:
(a) Any statute, rule, regulation, order or injunction has been
enacted, promulgated, entered or enforced by any national or state government or
governmental authority or by any United States court of competent jurisdiction,
that would make the acquisition of the tendered Common Stock by Acquisition
illegal or otherwise prohibit consummation of the Amended Tender Offer or the
Merger; or
(b) There has been (i) a general suspension of trading in, or
limitation on prices for, securities on the New York Stock Exchange or the
Nasdaq National Market System which continued for at least three business days,
(ii) the declaration of a banking moratorium or any suspension of payments in
respect of banks in the United States (whether or not mandatory) which continued
for at least three business days, (iii) the commencement of a war or armed
hostilities or any other international or national calamity directly or
indirectly involving the United States, which has a significant adverse effect
on the functioning of financial markets in the United States, (iv) any
limitation (whether or not mandatory) by any United States governmental
authority or agency on the extension of credit by banks or other financial
institutions which would have a material adverse effect on Acquisition's ability
to purchase and pay for all the Common Stock which is tendered in response to
the Amended Tender Offer and to carry out the Merger on the terms contemplated
by the Agreement or (v) there is a material acceleration or worsening of any of
the conditions described in clauses (i) through (iv) which exists at the date of
the commencement of the Amended Tender Offer.
(c) Any of the representations or warranties of the Company in the
Agreement is not true and correct as of the date of the Agreement (except that
representations or warranties which related expressly as of a specified date or
period need only to have been true and correct with regard to the specified date
or period), except failures to be true and correct which would not, in the
aggregate, have a Material Adverse Effect upon the Company or adversely affect
Acquisition's legal ownership of the tendered Common Stock, Acquisition's legal
ability to consummate the Merger as contemplated by the Agreement, or the
ownership of the Surviving Corporation after the Merger by the persons which own
the stock of Acquisition immediately before the Merger;
(d) Without limiting the condition in subparagraph (c), Acquisition
learns that the 1998 10-K or the September 10-Q contained a false or misleading
statement with respect to a material fact or omitted to state a material fact
required to be stated therein or which may be necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (other than with regard to matters which are the subject of the
Stockholder Suits);
(e) The Company has not performed all the obligations it is required to
have performed under the Agreement by the Expiration Date, except failures which
(i) would, in the aggregate, not materially impair or delay the ability of
Acquisition to consummate the purchase of the Common Stock which is tendered in
response to the Amended Tender Offer or the ability of Acquisition and the
Company to effect the Merger, (ii) have been caused by or result from a breach
of the Agreement by Acquisition; or (iii) do not, and are not reasonably
expected to, have a Material Adverse Effect on the Company.
(f) The Agreement has been terminated in accordance with its terms; or
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(g) The Board withdraws or modifies in a manner adverse to Acquisition
the Board's approval or recommendation of the Amended Tender Offer or the
Merger.
The conditions set forth above are for the sole benefit of Acquisition,
and may be waived by Acquisition, in whole or in part. Any delay by Acquisition
in exercising the right to terminate the Amended Tender Offer because any of the
conditions are not fulfilled will not be deemed a waiver of its right to do so.
2
