<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(RULE 13D-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13D-1(A) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13D-2(A)
(AMENDMENT NO. 1)1
GENERAL CIGAR HOLDINGS, INC.
- --------------------------------------------------------------------------------
(NAME OF ISSUER)
Class A Common Stock, par value $.01 per share
- --------------------------------------------------------------------------------
(TITLE OF CLASS OF SECURITIES)
36933P - 10 - 0
---------------
(CUSIP NUMBER)
Edgar M. Cullman, Jr.
President and Chief Executive Officer
of General Cigar Holdings, Inc.
387 Park Avenue South
New York, New York 10016-8899
Telephone Number (212) 448-3800
R. Ronald Hopkinson, Esq.
Latham & Watkins
885 Third Avenue
New York, New York 10022
Telephone Number: (212) 906-1200
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
JANUARY 19, 2000
----------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the
following box / /.
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. SEE Rule 13d-7(b) for other
parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 16 Pages)
- --------
(1) The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, SEE the NOTES).
<PAGE>
SCHEDULE 13D
- --------------------------------- ---------------------------------
CUSIP No. 36933P100 Page 2 of 36 Pages
- --------------------------------- ---------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Edgar M. Cullman
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)|_|
(b)|X|
See Item 6 and Insert 1
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
No funds were used to acquire the shares.
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(E) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 494,172
SHARES ------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER**
OWNED BY
EACH 9,935,152
REPORTING ------------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH
494,172
------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
3,774,210
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
494,172
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |X|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.82
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
**SEE ITEM 5.
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 36933P100 Page 3 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Louise B. Cullman
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 459,717
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 3,220,112
Person --------------------------------------------------------
With 9 Sole Dispositive Power
459,717
--------------------------------------------------------
10 Shared Dispositive Power
3,220,112
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
459,717
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
1.69
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 36933P100 Page 4 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Edgar M. Cullman, Jr.
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 606,828
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power**
Each
Reporting 9,935,152
Person --------------------------------------------------------
With 9 Sole Dispositive Power
606,828
--------------------------------------------------------
10 Shared Dispositive Power
3,290,143
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
539,254
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
1.98
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
**SEE ITEM 5.
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 36933P100 Page 5 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Elissa F. Cullman
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 75,575
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 245,398
Person --------------------------------------------------------
With 9 Sole Dispositive Power
75,575
--------------------------------------------------------
10 Shared Dispositive Power
245,398
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
75,575
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
.28
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 36933P100 Page 6 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Susan R. Cullman
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 390,166
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 2,994,740
Person --------------------------------------------------------
With 9 Sole Dispositive Power
390,166
--------------------------------------------------------
10 Shared Dispositive Power
2,994,740
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
390,166
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
1.44
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 36933P100 Page 7 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Lucy C. Danziger
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 363,835
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 4,236,747
Person --------------------------------------------------------
With 9 Sole Dispositive Power
363,835
--------------------------------------------------------
10 Shared Dispositive Power
4,236,747
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
363,835
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
1.34
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 36933P100 Page 8 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Frederick M. Danziger
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 73,539
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 656,075
Person --------------------------------------------------------
With 9 Sole Dispositive Power
73,539
--------------------------------------------------------
10 Shared Dispositive Power
656,075
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
73,539
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
0.27
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 36933P100 Page 9 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
David M. Danziger
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 184,705
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 0
Person --------------------------------------------------------
With 9 Sole Dispositive Power
184,705
--------------------------------------------------------
10 Shared Dispositive Power
0
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
184,705
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
0.68
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 36933P100 Page 10 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Carolyn S. Fabrici
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 106,063
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 528,814
Person --------------------------------------------------------
With 9 Sole Dispositive Power
106,063
--------------------------------------------------------
10 Shared Dispositive Power
528,814
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
106,063
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
0.39
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 36933P100 Page 11 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
John L. Ernst
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 31,931
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 1,828,567
Person --------------------------------------------------------
With 9 Sole Dispositive Power
31,931
--------------------------------------------------------
10 Shared Dispositive Power
1,828,567
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
26,674
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
0.10
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 36933P100 Page 12 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Margot P. Ernst
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 0
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 90,315
Person --------------------------------------------------------
With 9 Sole Dispositive Power
0
--------------------------------------------------------
10 Shared Dispositive Power
90,315
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
0
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
0.00
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 36933P100 Page 13 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Alexandra Ernst
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 6,882
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 391,812
Person --------------------------------------------------------
With 9 Sole Dispositive Power
6,882
--------------------------------------------------------
10 Shared Dispositive Power
391,812
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
6,882
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
0.03
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 36933P100 Page 14 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
B. Bros. Realty Limited Partnership
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 1,039,339
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 0
Person --------------------------------------------------------
With 9 Sole Dispositive Power
1,039,339
--------------------------------------------------------
10 Shared Dispositive Power
0
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
1,039,339
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
3.83
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 36933P100 Page 15 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Matthew L. Ernst
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 5,557
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 0
Person --------------------------------------------------------
With 9 Sole Dispositive Power
5,557
--------------------------------------------------------
10 Shared Dispositive Power
0
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
5,557
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
.02
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 36933P100 Page 16 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Rebecca D. Gamzon
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 137,573
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 0
Person --------------------------------------------------------
With 9 Sole Dispositive Power
137,573
--------------------------------------------------------
10 Shared Dispositive Power
0
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
137,573
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
0.51
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 36933P100 Page 17 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Edgar M. Cullman III
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 83,551
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 0
Person --------------------------------------------------------
With 9 Sole Dispositive Power
83,551
--------------------------------------------------------
10 Shared Dispositive Power
0
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
83,551
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
.31
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 36933P100 Page 18 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Caroline B. Sicher
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 95,234
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 0
Person --------------------------------------------------------
With 9 Sole Dispositive Power
95,234
--------------------------------------------------------
10 Shared Dispositive Power
0
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
95,234
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
.35
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
Page 19 of 36 Pages
SCHEDULE 13D ITEMS
This Amendment No. 1, which amends the Statement on Schedule 13D,
dated September 5, 1997, of the signatories hereto (the "Reporting Persons"),
is filed to reflect information required pursuant to Rule 13d-2 of the
General Rules and Regulations under the Securities Exchange Act of 1934, as
amended, relating to the shares of Class A Common Stock, par value $.01 per
share (the "Class A Stock") and Class B Common Stock, par value $.01 per
share (the "Class B Stock"), of General Cigar Holdings, Inc., a Delaware
corporation (the "COMPANY").
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 of the Statement is hereby amended by replacing the
paragraphs therein in their entirety with the following:
On January 19, 2000, the Reporting Persons and the Company agreed
to a series of transactions with Swedish Match AB, a Kingdom of Sweden
corporation ("Swedish Match"), pursuant to which Swedish Match would acquire
approximately 64% of the outstanding shares of common stock of the Company,
the Reporting Persons would, in the aggregate, own the remaining 36% and the
public stockholders of the Company would receive cash for their shares. The
transactions will be effected through a merger of SM Merger Corporation
("Merger Sub") a wholly owned subsidiary of Swedish Match into the Company
(the "Merger") in which the public stockholders will receive $15.25 per share
in cash pursuant to an agreement and plan of merger, attached hereto as
Exhibit 2 (the "Merger Agreement"). The Reporting Persons entered into a
stock purchase agreement with Swedish Match on January 19, 2000, attached
hereto as Exhibit D to the Merger Agreement (the "Stock Purchase Agreement"),
pursuant to which the Reporting Persons agreed to sell an aggregate of 3.5
million shares of Company stock, or approximately one-third of their current
holdings, to Swedish Match at a price of $15.00 per share immediately prior
to the consummation of the Merger (the "Effective Time"). The Reporting
Persons and Swedish Match also entered into a shareholders' agreement,
attached hereto as Exhibit B to the Merger Agreement (the "Shareholders'
Agreement"), and a voting agreement, attached hereto as Exhibit D to the
Merger Agreement (the "Voting Agreement"), in connection with the Merger. The
purpose of the Merger is to create a strategic alliance through the purchase
by Swedish Match of a significant equity stake in the Company, as a privately
held entity.
The purchase of certain of the Reporting Persons shares pursuant
to the Stock Purchase Agreement is conditioned upon the satisfaction of the
closing conditions set forth in the Merger Agreement (other than such sale).
The Merger is subject, in addition to receipt of Hart-Scott Rodino approval
and the satisfaction of customary closing conditions, to the affirmative vote
of each of (i) the holders of the Company's outstanding Class A Stock voting
as a class; (ii) the holders of the Company's outstanding Class B Stock
voting as a class; and (iii) the holders representing a majority of the
entire voting power of the outstanding Class A and Class B Stock voting
together as a single class (with Class A Stock having one vote per share and
Class B Stock having ten votes per share).
The Voting Agreement provides that the Reporting Persons will
each vote in their capacities as stockholders in favor of the Merger and
against any competing offer for a period of eighteen months following the
termination of the Merger Agreement; however, in connection with the separate
class vote of Class A Stock, the Reporting Persons will vote their shares of
Class A Stock in the same manner as the holders of a majority of the
outstanding shares of the Class A Stock (excluding the Reporting Persons).
Pursuant to the Voting Agreement, each Reporting Person has appointed each of
Edgar M. Cullman and Edgar M. Cullman, Jr. as their proxy to serve as their
representatives and to perform all of the obligations of each of the
Reporting Person under the Voting Agreement.
The Shareholders' Agreement becomes effective at the Effective
Time and will govern the management of the Company following the Merger. The
Shareholders' Agreement provides, among other things, that following the
Merger the Company's Board of Directors (the "Board") will consist of seven
directors: four directors, including Edgar M. Cullman Jr. and Edgar M.
Cullman, Sr., nominated by the Reporting Persons and three Directors
nominated by Swedish Match; provided, that if the Reporting Persons cease to
own at least one third of the shares they hold immediately following the
Effective Time between the third anniversary and the sixth anniversary of the
Effective Time, Swedish Match will be entitled to nominate four out of the
seven Board members and the Reporting Persons will be entitled to nominate
three out of the seven Board members, and if after the sixth anniversary of
the Effective Time the Reporting Persons cease to own at least 15% of the
then outstanding common stock of the Company, Swedish Match will be entitled
to nominate four out of the seven Board members and the Reporting Persons
will be entitled to nominate three out of the seven Board members.
The Shareholders' Agreement also provides rights for the
Reporting Persons to sell their remaining shares of Company stock to Swedish
Match over a three-year period beginning on the third anniversary of the
Effective Time and for Swedish Match to buy the Reporting Persons' remaining
shares over a three-year period beginning on the third anniversary of the
Effective Time, each at prices as specified therein.
Copies of the Merger Agreement, the Stock Purchase Agreement, the
Voting Agreement and the Shareholders' Agreement are attached hereto as
Exhibits 2-5, respectively, and are incorporated herein by reference. The
description of such documents set forth herein do not purport to be complete
and are qualified in their entirety by reference to such documents.
<PAGE>
Page 20 of 36 Pages
Item 5. Interest in Securities of the Issuer
Item 5 of the Statement is hereby amended by adding the following:
Pursuant to the Voting Agreement attached hereto as Exhibit D to
the Merger Agreement, each of Edgar M. Cullman and Edgar M. Cullman, Jr.
have been appointed by the Reporting Persons to act as proxy in connection
with the transactions contemplated by the Agreements attached hereto.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS, OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Except as provided in the Merger Agreement, the Stock Purchase
Agreement, the Voting Agreement and the Shareholders' Agreement or as
described herein, none of the Reporting Persons (directly or indirectly), has
any contracts, arrangements, understandings, or relationships (legal or
otherwise) with each other or with any person with respect to any securities
of the Company.
Copies of the Merger Agreement, the Stock Purchase Agreement, the
Voting Agreement and the Shareholders' Agreement are attached hereto as
Exhibits 2-5, respectively, and are incorporated herein by reference. The
description of such documents set forth herein do not purport to be complete
and are qualified in their entirety by reference to such documents.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1 - Joint Filing Agreement, incorporated by reference to
the Reporting Persons' Schedule 13D filed on September 7, 1997.
Exhibit 2 - Merger Agreement with exhibits thereto.
Exhibit 3 - Stock Purchase Agreement, attached as Exhibit B to
the Merger Agreement.
Exhibit 4 - Voting Agreement, attached as Exhibit C to the Merger
Agreement.
Exhibit 5 - Shareholders' Agreement, attached as Exhibit D to the
Merger Agreement.
<PAGE>
Page 21 of 36 Pages
Each of the undersigned hereby certifies after reasonable inquiry,
that to the best of his/her knowledge and belief, the information set forth in
this statement is true, complete and correct.
Date: January 21, 2000
Edgar M. Cullman*
-----------------------------------------------
Edgar M. Cullman, individually and as
Trustee of the Trusts of which he is a
Trustee as indicated on Insert 1 hereto
Louise B. Cullman*
-----------------------------------------------
Louise B. Cullman, individually and as
Trustee of the Trusts of which she is a
Trustee as indicated on Insert 1 hereto
Susan R. Cullman*
-----------------------------------------------
Susan R. Cullman, individually, as
Custodian and as Trustee of the Trusts
of which she is a Trustee as indicated on
Insert 1 hereto
Edgar M. Cullman, Jr.*
-----------------------------------------------
Edgar M. Cullman, Jr., individually, as
Custodian and as Trustee of the Trusts of
which he is a Trustee as indicated on Insert
1 hereto
Lucy C. Danziger*
-----------------------------------------------
Lucy C. Danziger, individually and as
Trustee of the Trusts of which she is a
Trustee as indicated on Insert 1 hereto
/s/ John L. Ernst
-----------------------------------------------
John L. Ernst, individually and as Trustee
of the Trusts of which he is a Trustee, as
Custodian and as Guardian, all as indicated
on Insert 1 hereto
<PAGE>
Page 22 of 36 Pages
Carolyn S. Fabrici*
-----------------------------------------------
Carolyn S. Fabrici, individually and as
Trustee of the Trusts of which she is a
Trustee as indicated on Insert 1 hereto
Frederick M. Danziger*
-----------------------------------------------
Frederick M. Danziger, individually and as
Trustee of the Trusts of which he is a
Trustee as indicated on Insert 1 hereto
Elissa F. Cullman*
-----------------------------------------------
Elissa F. Cullman, individually and as
Trustee of the Trusts of which she is a
Trustee as indicated on Insert 1 hereto
Rebecca D. Gamzon*
-----------------------------------------------
Rebecca D. Gamzon, individually
formerly Rebecca B. Danziger
Matthew L. Ernst*
-----------------------------------------------
Matthew L. Ernst, individually
B. BROS. REALTY LIMITED
PARTNERSHIP
By John L. Ernst*
---------------------------------------------
John L. Ernst,
General Partner
Margot P. Ernst*
-----------------------------------------------
Margot P. Ernst, not individually but as
Trustee of the Trusts of which she is a
Trustee as indicated on Insert 1 hereto
Alexandra Ernst*
-----------------------------------------------
Alexandra Ernst, individually and as Trustee
of the Trusts of which she is a Trustee as
indicated on Insert 1 hereto
<PAGE>
David M. Danziger*
-----------------------------------------------
David M. Danziger, individually
Edgar M. Cullman III*
-----------------------------------------------
Edgar M. Cullman III
Caroline B. Sicher*
-----------------------------------------------
Caroline B. Sicher
By: /s/ John L. Ernst
-----------------------------------------------
John L. Ernst
Attorney-in-Fact
<PAGE>
EXECUTION COPY
================================================================================
AGREEMENT AND PLAN OF MERGER
by and AMONG
GENERAL CIGAR HOLDINGS, INC.,
a Delaware corporation,
SWEDISH MATCH AB,
a Kingdom of Sweden corporation,
and
SM MERGER CORPORATION,
a Delaware corporation
Dated: January 19, 2000
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
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ARTICLE I.DEFINITIONS.............................................................................................1
1.1 DEFINED TERMS...................................................................................1
1.2 OTHER DEFINED TERMS.............................................................................8
ARTICLE II.THE MERGER.............................................................................................8
2.1 THE MERGER......................................................................................8
2.2 EFFECTIVE TIME..................................................................................9
2.3 CLOSING.........................................................................................9
2.4 CERTIFICATE OF INCORPORATION AND BY-LAWS........................................................9
2.5 DIRECTORS.......................................................................................9
2.6 OFFICERS........................................................................................9
ARTICLE III.EFFECT OF MERGER ON SECURITIES OF SUB AND THE COMPANY.................................................9
3.1 CONVERSION OF SUB COMMON STOCK..................................................................9
3.2 CONVERSION OF COMPANY COMMON STOCK.............................................................10
3.3 OPTIONS........................................................................................10
3.4 EXCHANGE OF CERTIFICATES.......................................................................11
3.5 DISSENTING SHARES..............................................................................12
ARTICLE IV.REPRESENTATIONS AND WARRANTIES OF THE COMPANY.........................................................12
4.1 ORGANIZATION AND CAPITALIZATION................................................................13
4.2 AUTHORIZATION..................................................................................14
4.3 SUBSIDIARIES...................................................................................14
4.4 ABSENCE OF CERTAIN CHANGES OR EVENTS...........................................................15
4.5 REAL PROPERTY..................................................................................15
4.6 MATERIAL CONTRACTS AND COMMITMENTS.............................................................16
4.7 NO CONFLICT OR VIOLATION.......................................................................16
4.8 CONSENTS AND APPROVALS.........................................................................17
4.9 SEC DOCUMENTS; FINANCIAL STATEMENTS, ETC.......................................................17
4.10 UNDISCLOSED LIABILITIES........................................................................17
4.11 LITIGATION.....................................................................................18
4.12 LABOR MATTERS..................................................................................18
4.13 COMPLIANCE WITH LAW............................................................................18
4.14 NO BROKERS.....................................................................................18
4.15 INTELLECTUAL PROPERTY..........................................................................19
4.16 EMPLOYEE BENEFITS..............................................................................20
4.17 TAX MATTERS....................................................................................22
4.18 AFFILIATED TRANSACTIONS........................................................................23
</TABLE>
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4.19 COMPLIANCE WITH ENVIRONMENTAL LAWS.............................................................23
4.20 OPINION OF FINANCIAL ADVISOR...................................................................24
4.21 BOARD RECOMMENDATION...........................................................................24
4.22 REQUIRED COMPANY VOTE..........................................................................24
4.23 PROXY STATEMENT; SCHEDULE 13E-3................................................................24
4.24 INVENTORY......................................................................................24
4.25 CUSTOMERS......................................................................................25
4.26 AVAILABLE FUNDS................................................................................25
ARTICLE V.REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB.......................................................25
5.1 ORGANIZATION, ETC..............................................................................25
5.2 AUTHORIZATION..................................................................................26
5.3 CONSENTS AND APPROVALS.........................................................................26
5.4 NO CONFLICT OR VIOLATION.......................................................................26
5.5 PROXY STATEMENT................................................................................26
5.6 FINANCING......................................................................................27
ARTICLE VI.COVENANTS OF THE COMPANY, PARENT AND SUB..............................................................27
6.1 MAINTENANCE OF BUSINESS PRIOR TO CLOSING.......................................................27
6.2 INVESTIGATION BY PARENT AND SUB................................................................29
6.3 CONSENTS AND EFFORTS...........................................................................30
6.4 OTHER OFFERS...................................................................................30
6.5 MEETING OF STOCKHOLDERS........................................................................31
6.6 PROXY STATEMENT................................................................................32
6.7 DIRECTOR AND OFFICER LIABILITY.................................................................32
6.8 NOTICES OF CERTAIN EVENTS......................................................................33
6.9 FURTHER ASSURANCES.............................................................................34
6.10 CASH CONTRIBUTION..............................................................................34
ARTICLE VII.CONDITIONS TO THE MERGER.............................................................................34
7.1 CONDITIONS TO THE OBLIGATIONS OF EACH PARTY....................................................34
7.2 CONDITIONS TO THE OBLIGATIONS OF THE COMPANY...................................................35
7.3 CONDITIONS TO THE OBLIGATIONS OF PARENT AND SUB................................................35
ARTICLE VIII.MISCELLANEOUS.......................................................................................36
8.1 TERMINATION....................................................................................36
8.2 ASSIGNMENT.....................................................................................37
8.3 NOTICES........................................................................................37
8.4 ENTIRE AGREEMENT; WAIVERS......................................................................38
8.5 MULTIPLE COUNTERPARTS..........................................................................38
8.6 INVALIDITY.....................................................................................39
8.7 TITLES.........................................................................................39
8.8 FEES AND EXPENSES..............................................................................39
</TABLE>
ii
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8.9 CUMULATIVE REMEDIES............................................................................39
8.10 GOVERNING LAW..................................................................................39
8.11 AMENDMENT......................................................................................39
8.12 PUBLIC ANNOUNCEMENTS...........................................................................39
8.13 ENFORCEMENT OF AGREEMENT.......................................................................40
8.14 NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES....................................................40
8.15 INTERPRETIVE PROVISIONS........................................................................40
</TABLE>
EXHIBITS
A. Amendment
B. Shareholders' Agreement
C. Stock Purchase Agreement
D. Voting Agreement
E. Form of Amended and Restated Certificate of Incorporation of
the Company
iii
<PAGE>
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "AGREEMENT"), dated
January 19, 2000, is by and among General Cigar Holdings, Inc., a Delaware
corporation (the "COMPANY"), Swedish Match, a Kingdom of Sweden corporation
("PARENT") and SM Merger Corporation, a Delaware corporation and wholly owned
subsidiary of Parent ("SUB").
RECITALS
A. This Agreement provides for the merger (the "MERGER") of
Sub with and into the Company, with the Company as the surviving corporation in
such merger, all in accordance with the provisions of this Agreement.
B. Simultaneously herewith, Parent is entering into a Stock
Purchase Agreement (the "STOCK PURCHASE AGREEMENT") with the C&E Shareholders
pursuant to which Parent has agreed to purchase directly from the C&E
Shareholders 3.5 million shares of Company Common Stock held by such
stockholders at a price equal to $15.00 per share (the "STOCK PURCHASE"), a
Voting Agreement (defined below) with the C&E Shareholders and a Shareholders'
Agreement (defined below) with the C&E Shareholders.
C. The respective Boards of Directors of Parent, Sub and the
Company have approved this Agreement and declared it to be advisable and in the
best interests of their respective companies and stockholders to consummate the
Merger, and, simultaneously herewith, Parent is approving and adopting this
Agreement as the sole stockholder of Sub. The Company intends promptly to submit
this Agreement to its Stockholders for adoption.
D. The parties desire to make certain representations,
warranties, covenants and agreements in connection with the Merger and also to
prescribe various conditions to the Merger.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
ARTICLE I.
DEFINITIONS
1.1 DEFINED TERMS. As used herein, the terms below shall have the
following meanings:
"AFFILIATE" shall mean, with respect to any Person or entity
(the "REFERENT PERSON"), any Person or entity which controls the referent
person, any Person or entity which the referent person controls, or any Person
or entity which is under common control with the referent person. For purposes
of the preceding sentence, the term "control" shall mean the power, direct or
indirect, to direct or cause the direction of the management and policies of a
Person or entity through voting securities, by contract or otherwise.
<PAGE>
"AMENDMENT" shall mean that amendment to the Company's
Certificate of Incorporation set forth on EXHIBIT A hereto.
"ASSETS" shall mean all of the Company's and its Subsidiaries'
right, title and interest in and to all properties, assets and rights of any
kind, whether tangible or intangible, real or personal, owned by the Company or
its Subsidiaries or in which the Company or any of its Subsidiaries has any
interest whatsoever.
"C&E SHAREHOLDERS" shall mean the Persons listed on the
signature pages of the Shareholders' Agreement other than the Company and
Parent.
"CLASS A COMMON STOCK" shall mean the Class A common stock,
par value $0.01 per share, of the Company.
"CLASS B COMMON STOCK" shall mean the Class B common stock,
par value $0.01 per share, of the Company.
"CODE" shall mean the Internal Revenue Code of 1986, as
amended, and any successor statute.
"COMPANY COMMON STOCK" shall mean the Class A and Class B
Common Stock.
"CONTRACT" shall mean any agreement, contract, lease, note,
loan, evidence of indebtedness, purchase order, letter of credit, franchise
agreement, undertaking, covenant not to compete, employment agreement, license,
instrument, obligation, commitment, purchase and sales order, quotation and
other executory commitment to which the Company or its Subsidiaries is a party
or which relates to the Company's or its Subsidiaries' businesses or any of the
Assets, whether oral or written, express or implied, and which pursuant to its
terms has not expired, terminated or been fully performed by the parties
thereto.
"DGCL" shall mean the General Corporation Law of the State of
Delaware.
"DISSENTING STOCKHOLDERS" shall mean those Stockholders who
hold Dissenting Shares.
"DISSENTING SHARES" shall mean any shares held by Stockholders
who are entitled to an appraisal of their shares under the DGCL, and who have
properly exercised, perfected and not subsequently withdrawn or lost their
appraisal rights with respect to their Company Common Stock in accordance with
the DGCL.
"ENCUMBRANCE" shall mean any claim, lien, pledge, option,
charge, easement, security interest, deed of trust, mortgage, right-of-way,
encroachment, building or use restriction, encumbrance or other right of third
parties, whether voluntarily incurred or arising by operation of law, and
includes, without limitation, any agreement to give any of the foregoing in the
future, and any contingent or conditional sale agreement or other title
retention agreement or lease in the nature thereof.
2
<PAGE>
"ENVIRONMENTAL CLAIMS" shall mean all accusations,
allegations, notices of violation, liens, claims, demands, suits, or causes of
action for any damage, including, without limitation, personal injury, property
damage (including, without limitation, any depreciation or diminution of
property values), lost use of property or consequential damages, arising
directly or indirectly out of Environmental Conditions or Environmental Laws. By
way of example only (and not by way of limitation), Environmental Claims include
(i) violations of or obligations under any contract related to Environmental
Laws or Environmental Conditions between the Company or its Subsidiaries and any
other Person, (ii) actual or threatened damages to natural resources, (iii)
claims for nuisance or its statutory equivalent, (iv) claims for the recovery of
response costs, or administrative or judicial orders directing the performance
of investigations, responses or remedial actions under any Environmental Laws,
(v) requirements to implement "corrective action" pursuant to any order or
permit issued pursuant to the Resource Conservation and Recovery Act, as
amended, or similar provisions of applicable state law, (vi) claims related to
Environmental Laws or Environmental Conditions for restitution, contribution, or
indemnity, (vii) fines, penalties or liens of any kind against property related
to Environmental Laws or Environmental Conditions, (viii) claims related to
Environmental Laws or Environmental Conditions for injunctive relief or other
orders or notices of violation from federal, state or local agencies or courts,
and (ix) with regard to any present or former employees, claims relating to
exposure to or injury from Environmental Conditions.
"ENVIRONMENTAL CONDITIONS" shall mean the state of the
environment, including natural resources (E.G., flora and fauna), soil, surface
water, ground water, any present or potential drinking water supply, subsurface
strata or ambient air.
"ENVIRONMENTAL LAWS" shall mean all applicable foreign,
federal, state, district and local laws, all rules or regulations promulgated
thereunder, and all orders, consent orders, judgments, notices, permits or
demand letters issued, promulgated or entered with respect to the Company or any
of its Subsidiaries pursuant thereto, relating to pollution or protection of the
environment (including, without limitation, ambient air, surface water, ground
water, land surface, or subsurface strata), including, without limitation, (i)
laws relating to emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals, industrial materials, wastes or other
substances into the environment and (ii) laws relating to the identification,
generation, manufacture, processing, distribution, use, treatment, storage,
disposal, recovery, transport or other handling of pollutants, contaminants,
chemicals, industrial materials, wastes or other substances. Environmental Laws
shall include, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA"), the Toxic
Substances Control Act, as amended, the Hazardous Materials Transportation Act,
as amended, the Resource Conservation and Recovery Act, as amended ("RCRA"), the
Clean Water Act, as amended, the Safe Drinking Water Act, as amended, the Clean
Air Act, as amended, the Occupational Safety and Health Act, as amended, and all
analogous laws promulgated or issued by any state or other governmental
authority.
"ENVIRONMENTAL REPORTS" shall mean any and all written
analyses, summaries or explanations, in the possession or control of the Company
or its Subsidiaries, of (a) any Environmental Conditions in, on or about the
properties of the Company or its Subsidiaries or (b) the Company's or its
Subsidiaries' compliance with Environmental Laws.
3
<PAGE>
"EQUITY SECURITIES" shall mean (i) shares of capital stock or
other equity securities, (ii) subscriptions, calls, warrants, options or
commitments of any kind or character relating to, or entitling any Person or
entity to purchase or otherwise acquire, any capital stock or other equity
securities and (iii) securities convertible into or exercisable or exchangeable
for shares of capital stock or other equity securities.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"ERISA AFFILIATE" shall mean any entity which is (or at any
relevant time was) a member of a "controlled group of corporations" with, under
"common control" with, or a member of an "affiliated service group" with, or
otherwise required to be aggregated with, the Company or its Subsidiaries as set
forth in Section 414(b), (c), (m) or (o) of the Code.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended.
"FACILITIES" shall mean all plants, offices, manufacturing
facilities, stores, warehouses, administration buildings and all real property
and related facilities owned or leased by the Company or its Subsidiaries.
"FIXTURES AND EQUIPMENT" shall mean all of the furniture,
fixtures, furnishings, machinery, equipment, spare parts, appliances and
vehicles owned by the Company or its Subsidiaries, wherever located, including
all warranty rights with respect thereto.
"GAAP" shall mean, with respect to any Person, generally
accepted accounting principles in the United States of America, as in effect
from time to time, consistently applied.
"GOVERNMENTAL AUTHORITY" shall mean any foreign, domestic,
federal, state or local government authority, quasi-governmental authority,
instrumentality, court, government or self-regulatory organization, commission,
tribunal or organization or any regulatory, administrative or other agency, or
any political or other subdivision, department or branch of any of the
foregoing.
"HAZARDOUS SUBSTANCES" shall mean all pollutants,
contaminants, chemicals, wastes, and any other carcinogenic, ignitable,
corrosive, reactive, toxic or otherwise hazardous substances or materials
(whether solids, liquids or gases) subject to regulation, control or remediation
under Environmental Laws. By way of example only, the term Hazardous Substances
includes petroleum, urea formaldehyde, flammable, explosive and radioactive
materials, PCBs, pesticides, herbicides, asbestos, sludge, slag, acids, metals,
solvents and waste waters.
"HSR ACT" shall mean the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the rules and regulations promulgated
thereunder.
"INTELLECTUAL PROPERTY" shall mean all patents and
applications, including all reissues, continuations, divisions,
continuations-in-part, renewals or extensions thereof; trademarks, service
marks, trade names, trade dress, domain names, logos, business and product
names, slogans, and registrations and applications for registration or renewal
thereof; copyrights
4
<PAGE>
and registrations or renewals thereof; inventions, process, designs, formulae,
trade secrets, know-how, confidential and technical information; all other
intellectual property and proprietary rights; copies and tangible embodiments
thereof (in whatever form or medium, including electronic media); and licenses
of any of the foregoing.
"INVENTORY" shall mean the inventory owned by the Company and
used in connection with the business of the Company, consisting of supplies, raw
materials (tobacco), work in progress, finished goods, packaging materials and
machine parts.
"LAWS" shall mean (a) all applicable laws, statutes,
ordinances, regulations, rules and orders of every federal, state, local or
foreign government and every federal, state, local or foreign court or other
governmental or regulatory agency, department, authority, body or
instrumentality and (b) any judgment, decision, decree or order of any court or
governmental or regulatory agency, department, authority, body or
instrumentality.
"LEASES" shall mean all of the leases or subleases for any
Facility used or occupied by the Company or any of its Subsidiaries to which the
Company or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound.
"MATERIAL ADVERSE EFFECT" or "MATERIAL ADVERSE CHANGE" or a
similar phrase shall mean, with respect to any Person, any material adverse
effect on or change with respect to (i) the business, operations, assets (taken
as a whole), liabilities (taken as a whole), condition (financial or otherwise)
or results of operations of such Person and its Subsidiaries, taken as a whole
or (ii) the right or ability of such Person or its Subsidiaries to consummate
any of the transactions contemplated hereby; provided, however, that such terms
shall not include any material adverse effect resulting from an adverse trend or
trends in the cigar industry as a whole.
"NYSE" shall mean the New York Stock Exchange, Inc.
"OPTIONS" shall mean (i) the options to purchase in the
aggregate 1,160,207 shares of Company Common Stock issued to certain executive
employees and non-employee directors of the Company pursuant to the Stock Option
Plan and (ii) the options to purchase in the aggregate 15,000 shares of Company
Common Stock issued to Jim Morgan, a consultant to the Company.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
"PERMITS" shall mean all licenses, permits, franchises,
approvals, authorizations, consents or orders of, or filings with, or
notifications to, any governmental authority, whether foreign, federal, state or
local, or any other Person, necessary or desirable for the past, present or
currently anticipated conduct of, or relating to the operation of the business
of, the Company or its Subsidiaries.
"PERMITTED ENCUMBRANCES" shall mean (a) liens for Taxes (i)
not yet due and payable or (ii) being contested in good faith, if a reserve or
other appropriate provision, if any, as shall be required by GAAP shall have
been made therefor, (b) statutory liens of landlords, liens of carriers,
warehouse persons, mechanics and other liens imposed by law incurred in the
ordinary course of business, (c) liens incurred or deposits made in connection
with workers'
5
<PAGE>
compensation, unemployment insurance and other similar types of social security
programs or to secure the performance of tenders, statutory obligations, surety
and appeal bonds, bids, leases, government contracts, performance and return of
money bonds and similar obligations, in each case in the ordinary course of
business, consistent with past practice, (d) purchase money liens incurred in
the ordinary course of business, consistent with past practice, and (e)
easements, rights-of-way, restrictions and other similar charges or
encumbrances, in each case, which do not materially interfere with the ordinary
conduct of business of the Company and its Subsidiaries and do not materially
detract from the value of the property to which such encumbrance relates.
"PERSON" shall mean any person or entity, whether an
individual, trustee, corporation, partnership, limited partnership, limited
liability company, trust, unincorporated organization, business association,
firm, joint venture, governmental agency or authority, or any other form of
entity.
"PERSONNEL" shall mean all directors, officers and employees
of the Company or any of its Subsidiaries.
"REQUISITE STOCKHOLDER APPROVAL" shall mean the approval and
adoption of this Agreement, the Amendment and the Merger by each of the
following: (i) the affirmative vote of the holders of a majority of the
outstanding shares of the Class A Common Stock of the Company voting as a single
class; (ii) the affirmative vote of the holders of a majority of the outstanding
shares of the Class B Common Stock of the Company voting as a single class; and
(iii) the affirmative vote of the holders representing a majority of the entire
voting power of the outstanding Class A and Class B Common Stock voting together
as a single class (with Class A Common Stock having one vote per share and Class
B Common Stock having ten votes per share).
"RETURNS" shall mean any and all returns, reports,
declarations, schedules, forms and information statements and any other similar
documents with respect to Taxes required to be filed by or on behalf of the
Company or its Subsidiaries with any governmental authority or Tax authority or
agency, whether domestic or foreign, including, without limitation,
consolidated, combined and unitary returns and all amendments thereto or
thereof.
"SEC" shall mean the Securities and Exchange Commission.
"SEC REPORTS" shall mean the 10-K Annual Report of the Company
for the year ended November 28, 1998, the Form 10-Q Quarterly Reports of the
Company for the periods ended February 27, 1999, May 29, 1999 and August 28,
1999 and the Definitive Proxy Statement on Schedule 14A for the Company's 1999
annual stockholders meeting.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
"SHAREHOLDERS' AGREEMENT" shall mean the agreement among the
Company, Parent and the C&E Stockholders, dated as of the date hereof, and
attached as EXHIBIT B hereto.
"SOFTWARE" shall mean all computer software, including but not
limited to, application software and system software, including all source code
and object code versions thereof, in any and all forms and media, whether
recorded on paper, magnetic media or other
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electronic or non-electronic media (including data and related documentation,
user manuals, training materials, flow charts, diagrams, descriptive tests and
programs, computer print-outs, underlying tapes, computer databases and similar
items), integrated circuits, embedded systems, and other electro-mechanical or
processor based systems.
"STOCKHOLDERS" shall mean the record holders of Company Common
Stock.
"STOCK OPTION PLAN" shall mean the 1997 Stock Plan of the
Company.
"STOCK PURCHASE AGREEMENT" shall mean the agreement among
Parent and the C&E Stockholders, dated as of the date hereof attached as EXHIBIT
C hereto.
"SUBSIDIARY" shall mean, with respect to any of the parties to
this Agreement, any corporation or other business entity, whether or not
incorporated, of which at least 50% of the securities or interests having, by
their terms, ordinary voting power to elect members of the board of directors,
or other persons performing similar functions with respect to such entity, are
held, directly or indirectly, by such party.
"TAX(ES)" shall mean all taxes, estimated taxes, withholding
taxes, assessments, levies, imposts, fees and other charges, including, without
limitation, any interest, penalties, additions to tax or additional amounts that
may become payable in respect thereof, imposed by any foreign, federal, state or
local government or taxing authority, which taxes shall include, without
limitation, all income taxes, alternative minimum, windfall profits, payroll and
employee withholding taxes, unemployment insurance, social security, sales and
use taxes, value-added taxes, excise taxes, franchise taxes, capital net worth,
gross receipts taxes, occupation taxes, real and personal property taxes, stamp
taxes, transfer taxes, workers' compensation and other obligations of the same
or of a similar nature.
"TRADEMARKS" shall mean the trademarks set forth in Section
4.15(a) of the Disclosure Schedule.
"TREASURY SECURITIES" shall mean Company Common Stock and
Options owned by the Company or any of its Subsidiaries.
"VOTING AGREEMENT" shall mean the agreement among the Company,
Parent and the C&E Stockholders, dated as of the date hereof, and attached as
EXHIBIT D hereto.
"YEAR 2000 PROBLEM" shall mean any inability or failure of any
Software, hardware or equipment containing embedded microcontrollers used in the
business of the Company or its Subsidiaries that contains or calls on a calendar
function, including but not limited to any function that is indexed to a
computer processing unit clock, provides specific days, dates or times, or
calculates spans of dates or times, to record, store, process, calculate,
compare, sequence and provide true and accurate day, date, and time data from,
into and between the twentieth and the twenty-first centuries, including but not
limited to with respect to the years 1999, 2000 and 2001 and leap year
calculations.
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1.2 OTHER DEFINED TERMS. In addition to the terms defined in the
Recitals to this Agreement and Section 1.1, the following terms shall have the
meanings defined for such terms in the Sections set forth below:
<TABLE>
<CAPTION>
Term Section
---- -------
<S> <C>
"Acquisition Proposal"........................................6.4
"Actions".....................................................4.11
"Cash Contribution Amount.....................................6.10
"Cash Merger Consideration"...................................3.2(a)
"Closing".....................................................2.3
"Closing Date"................................................2.3
"Company Contracts"...........................................4.6
"Company Reports".............................................4.9
"Confidentiality Letter"......................................6.2
"Disclosure Schedule" ........................................Article IV Preamble
"Effective Time"..............................................2.2
"Employee"....................................................4.16(a)
"ERISA Plan...................................................4.16(a)
"Exchange Fund"...............................................3.5(d)
"Financial Statements"........................................4.9
"Leased Property".............................................4.5(b)
"Merger"......................................................Recitals
"Paying Agent.................................................3.5(a)
"Plans".......................................................4.16(a)
"Preferred Stock".............................................4.1(b)
"Proxy Statement".............................................6.6(a)
"Roll-Over Share".............................................3.2(c)
"Schedule 13E-3"..............................................6.7
"Special Committee"...........................................6.4
"Special Meeting".............................................4.23
"Stock Purchase"..............................................Recitals
"Subject Litigation"..........................................6.7(b)
"Surviving Corporation".......................................2.1
"Surviving Corporation Common Stock"..........................3.1
"Third Party".................................................6.4
</TABLE>
ARTICLE II.
THE MERGER
2.1 THE MERGER. Upon the terms and subject to the satisfaction or
waiver, if permissible, of the conditions hereof, and in accordance with the
DGCL, at the Effective Time, Sub shall be merged with and into the Company. Upon
the effectiveness of the Merger, the separate corporate existence of Sub shall
cease and the Company, under the name General Cigar Holdings, Inc., shall
continue as the surviving corporation (the "SURVIVING CORPORATION"). The Merger
shall have the effects specified under the DGCL.
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2.2 EFFECTIVE TIME. On the Closing Date, the parties shall cause the
Merger to be consummated by causing a certificate of merger with respect to the
Merger to be executed and filed in accordance with the relevant provisions of
the DGCL and shall make all other filings or recordings required under the DGCL.
The Merger shall become effective at the time of filing of the certificate of
merger or at such later time as is specified therein (the "EFFECTIVE TIME").
2.3 CLOSING. Upon the terms and subject to the conditions of this
Agreement, the closing of the Merger (the "Closing") shall take place (a) at the
offices of Latham & Watkins, 885 Third Avenue, New York, New York at 10:00 a.m.,
local time, on the first business day immediately following the day on which the
last to be satisfied or waived of the conditions set forth in Article VII shall
be satisfied or waived in accordance herewith (other than those conditions that
by their nature are to be satisfied at the Closing, but subject to the
satisfaction or waiver of those conditions) or (b) at such other time, date or
place as Sub and the Company may agree. The date on which the Closing occurs is
herein referred to as the "CLOSING DATE."
2.4 CERTIFICATE OF INCORPORATION AND BY-LAWS.
(a) At the Effective Time, and without any further action on the part
of the Company or Sub, the certificate of incorporation of the Company, as in
effect immediately prior to the Effective Time, shall be amended and restated so
as to read in its entirety in the form set forth as EXHIBIT E hereto, and, as so
amended and restated, until thereafter further amended as provided therein and
under the DGCL, it shall be the certificate of incorporation of the Surviving
Corporation following the Merger.
(b) At the Effective Time, and without any further action on the part
of the Company or Sub, the by-laws of Sub as in effect immediately prior to the
Effective Time shall be the by-laws of the Surviving Corporation following the
Merger until thereafter changed or amended as provided therein or by applicable
law.
2.5 DIRECTORS. The initial Board of Directors of the Surviving
Corporation shall consist of seven members, four of whom shall be designated
prior to the Effective Time by the C&E Shareholders and three of whom shall be
designated by Parent.
2.6 OFFICERS. The officers of the Company immediately prior to the
Effective Time shall be the initial officers of the Surviving Corporation and
shall hold office until their respective successors are duly elected and
qualified, or their earlier death, resignation or removal.
ARTICLE III.
EFFECT OF MERGER ON SECURITIES OF SUB AND THE COMPANY
3.1 CONVERSION OF SUB COMMON STOCK. At the Effective Time, by virtue of
the Merger and without any action on the part of the holder thereof, the common
shares, no par value, of Sub issued and outstanding immediately prior to the
Effective Time shall automatically be converted into and thereafter represent
such number of validly issued, fully paid and non-assessable shares of Common
Stock, par value $0.01 per share (the "SURVIVING CORPORATION COMMON STOCK"), of
the Surviving Corporation equal to the Cash Contribution Amount divided by
$15.25.
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3.2 CONVERSION OF COMPANY COMMON STOCK.
(a) At the Effective Time, by virtue of the Merger and without any
action on the part of the holder thereof, each share of Company Common Stock
outstanding immediately prior to the Effective Time (other than (i) Treasury
Securities, (ii) Roll-Over Shares and (iii) Dissenting Shares, if any) shall
automatically be converted into the right to receive, and each certificate which
immediately prior to the Effective Time represented a share of Company Common
Stock shall be cancelled and shall cease to exist and evidence solely the right
to receive, $15.25 in cash (the "CASH MERGER Consideration") upon surrender of
the certificate formerly representing Company Common Stock as provided in
Section 3.4.
(b) All Treasury Securities shall, by virtue of the Merger and without
any action on the part of the holder thereof, automatically be canceled and
cease to exist at and after the Effective Time and no consideration shall be
paid with respect thereto.
(c) At the Effective Time, each share of Class B Common Stock held by
the C&E Stockholders and each share of Class A Common Stock held by Parent as a
result of the purchase of shares of Company Common Stock pursuant to the Stock
Purchase Agreement (each a "ROLL-OVER SHARE") shall be converted into and
thereafter represent one fully-paid and non-assessable share of Surviving
Corporation Common Stock.
(d) At the Effective Time, the holders (other than the C&E Shareholders
and Parent) of certificates representing shares of Company Common Stock shall
cease to have any rights as stockholders of the Company, and their sole right
shall be the right to surrender such certificates or certificates in exchange
for payment of the Cash Merger Consideration. At the Effective Time, the C&E
Shareholders and Parent shall cease to have any rights as stockholders of the
Company, and their sole right shall be the right to surrender such certificates
in exchange for Surviving Corporation Common Stock.
3.3 OPTIONS.
(a) Immediately prior to the Effective Time, each outstanding Option
whether or not then exercisable, shall be canceled by the Company, and at the
Effective Time, or as soon as practicable thereafter, the former holder thereof
shall be entitled to receive from the Company in consideration for such
cancellation an amount in cash equal to the product of (i) the number of shares
of Company Common Stock previously subject to such Option and (ii) the excess,
if any, of the Cash Merger Consideration per share over the exercise price per
share, if any, previously subject to such Option (the "NET VALUE"), reduced by
the amount of withholding or other taxes required by law to be withheld.
(b) Except as provided herein or as otherwise agreed by the parties,
the Stock Option Plan and any other plan, program or arrangement providing for
the issuance or grant of any other interest in respect of the capital stock of
the Company or any Subsidiary shall terminate as of the Effective Time, and the
Company shall exercise its reasonable best efforts to ensure that following the
Effective Time, no current or former employee, officer, director or consultant
shall have any Option to purchase Company Common Stock or any other equity
interest in the Company under the Stock Option Plan or any other Employee Plan
maintained by the Company.
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(c) Prior to the Effective Time, the Board of Directors (or, if
appropriate, any committee administering the Stock Option Plan) shall adopt such
resolutions or take such actions as are necessary, subject, if necessary, to
obtaining consents of the holders thereof, to carry out the terms of this
Section 3.3.
3.4 EXCHANGE OF CERTIFICATES.
(a) From and after the Effective Time, a bank or trust company to be
designated by the Company (the "PAYING AGENT") shall act as paying agent in
effecting the exchange of the Cash Merger Consideration for certificates
representing shares of Company Common Stock entitled to payment pursuant to
Section 3.2(a) (the "CERTIFICATES"). At the Effective Time, the Company shall
deposit with the Paying Agent an amount of cash (which shall include the Cash
Contribution Amount) necessary to enable the Paying Agent to exchange the Cash
Merger Consideration for Certificates received by the Paying Agent.
(b) Promptly after the Effective Time, the Surviving Corporation shall
cause the Paying Agent to mail to each holder of an outstanding Certificate or
Certificates, a form letter of transmittal (which shall specify that delivery
shall be effected, and risk of loss and title to the Certificates shall pass,
only upon proper delivery of the Certificates to the Paying Agent) and
instructions for effecting the surrender of the Certificates for payment
therefor. As soon as practicable after the Effective Time, each holder of an
outstanding Certificate or Certificates upon surrender to the Paying Agent of
such Certificate or Certificates, together with such letter of transmittal duly
executed and completed in accordance with the instructions thereon and any other
items specified by such letter, and the acceptance thereof by the Paying Agent,
shall be entitled to receive in exchange therefor the Cash Merger Consideration
multiplied by the number of shares of Company Common Stock formerly represented
by such Certificate or Certificates. No interest will be paid on or accrue on
the Cash Merger Consideration. The Paying Agent shall accept such Certificates
upon compliance with such reasonable terms and conditions as the Paying Agent
may impose to effect an orderly exchange thereof in accordance with customary
exchange practices. After the Effective Time, there shall be no further transfer
on the records of the Company or its transfer agent of Certificates and if such
Certificates are presented to the Company for transfer, they shall be canceled
against delivery of such cash. Until surrendered as contemplated by this Section
3.4(b), each Certificate shall be deemed at any time after the Effective Time to
represent only the right to receive upon such surrender the Cash Merger
Consideration, net of any applicable withholding tax, for each share of Company
Common Stock.
(c) All cash paid upon the surrender for exchange of Certificates shall
be deemed to have been paid in full satisfaction of all rights pertaining to the
shares formerly represented by such Certificates.
(d) Any cash deposited with the Paying Agent pursuant to this SECTION
3.4 (the "EXCHANGE FUND") which remains undistributed to the holders of the
Certificates 180 days after the Effective Time shall be delivered to the
Surviving Corporation at such time and any former holders of shares of Company
Common Stock (other than Roll-Over Shares) prior to the Merger who have not
theretofore complied with this Article III shall thereafter look only to the
Surviving
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<PAGE>
Corporation and only as general unsecured creditors thereof for payment of their
claim, if any, for the Cash Merger Consideration.
(e) None of Parent, Sub, the Company or the Paying Agent shall be
liable to any Person in respect of any cash from the Exchange Fund delivered to
a public office pursuant to any applicable abandoned property, escheat or
similar law. If any Certificates shall not have been surrendered prior to one
year after the Effective Time (or immediately prior to such earlier date on
which any cash in respect of such Certificate would otherwise escheat to or
become the property of any federal, state, local, or municipal, foreign or other
government or subdivision, branch, department or agency thereof and any
governmental or quasi-governmental authority of any nature, including any court
or other tribunal), any such cash in respect of such Certificate shall, to the
extent permitted by applicable law, become the property of the Surviving
Corporation, free and clear of all claims or interest of any Person previously
entitled thereto.
(f) In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the Person claiming
such Certificate to be lost, stolen or destroyed and, if required by Surviving
Corporation, the posting by such Person of a bond in such reasonable amount as
Surviving Corporation may direct as indemnity against any claim that may be made
against it with respect to such Certificate, the Paying Agent will pay, in
exchange for such lost, stolen or destroyed Certificate the Cash Merger
Consideration deliverable in respect thereof pursuant to this Agreement.
3.5 DISSENTING SHARES. Notwithstanding SECTION 3.2 hereof, Dissenting
Shares shall not be converted into a right to receive the consideration
specified in SECTION 3.2(a). The holders thereof shall be entitled only to such
rights as are granted by Section 262 of the DGCL. Each holder of Dissenting
Shares who becomes entitled to payment for such shares pursuant to Section 262
of the DGCL shall receive payment therefor from the Surviving Corporation in
accordance with the DGCL; PROVIDED, HOWEVER, that (i) if any such holder of
Dissenting Shares shall have failed to establish his entitlement to appraisal
rights as provided in Section 262 of the DGCL, (ii) if any such holder of
Dissenting Shares shall have effectively withdrawn his demand for appraisal
rights with respect to such shares or lost his right to appraisal and payment
for his shares under Section 262 of the DGCL, or (iii) if neither any holder of
Dissenting Shares nor the Surviving Corporation shall have filed a petition
demanding a determination of the value of all Dissenting Shares within the time
provided in Section 262 of the DGCL, such holder shall forfeit the right to
appraisal of such shares and each such share shall be treated as if it had been
converted, as of the Effective Time, into the right to receive the Cash Merger
Consideration, without interest thereon, from the Surviving Corporation as
provided in Section 3.2. The Company shall give Parent prompt notice of any
demands received by the Company for appraisal of shares, and Parent shall have
the right to participate in all negotiations and proceedings with respect to
such demands. The Company shall not, except with the prior written consent of
Parent, make any payment with respect to, or settle or offer to settle, any such
demands.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
As an inducement to Parent and Sub to enter into this
Agreement, the Company hereby makes, as of the date hereof and as of the Closing
Date, the following representations and
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warranties to Parent and Sub, except as otherwise set forth in an SEC Report
filed by the Company prior to the date hereof or in a written disclosure
schedule (the "DISCLOSURE SCHEDULE") (provided that the listing of an item in
one schedule of the Disclosure Schedule shall be deemed to be a listing in each
schedule of the Disclosure Schedule and to apply to any other representation and
warranty of the Company in this Agreement to the extent that it is reasonably
apparent from a reading of the disclosure of such item in such first schedule
that such item would also qualify or apply to such other schedule or
representation and warranty) delivered by the Company to Sub on or prior to the
date hereof.
4.1 ORGANIZATION AND CAPITALIZATION.
(a) ORGANIZATION. The Company is duly organized, validly existing and
in good standing under the laws of the State of Delaware and has full corporate
power and authority to conduct its business as it is presently being conducted
and to own and lease its Assets. The Company is duly qualified to do business as
a foreign corporation and is in good standing in each jurisdiction in which such
qualification is necessary under applicable law except where the failure to be
so qualified and in good standing would not reasonably be expected to have a
Material Adverse Effect on the Company. The Company has delivered to Parent
true, correct and complete copies of its certificate of incorporation and
by-laws (in each case, as amended to date). The Company is not in default under
or in violation of any provision of its certificate of incorporation or by-laws.
(b) CAPITALIZATION. The authorized capital stock of the Company
consists of (i) 75 million shares of Company Common Stock, consisting of 50
million shares of Class A Common Stock and 25 million shares of Class B Common
Stock of the Company and (ii) 20 million shares of preferred stock of the
Company, par value $0.01 per share (the "PREFERRED STOCK"). As of January 14,
2000, (i) 27,039,400 shares of Company Common Stock were issued and outstanding,
consisting of 13,525,152 shares of Class A Common Stock and 13,514,248 shares of
Class B Common Stock, (ii) no shares of Preferred Stock were issued and
outstanding, (iii) Options to acquire 1,175,207 shares of Company Common were
outstanding and 3,315,000 shares of Company Common Stock were reserved for
issuance upon the exercise of stock options, and (iv) 1,233,700 shares of Class
A Common Stock of the Company were held by the Company in treasury. SCHEDULE
4.1(b) includes a complete and correct list of outstanding Options (including
the number of Options, the exercise price of each such Option and the vesting
schedule for each such Option). Except as set forth on SCHEDULE 4.1(b), the
Company has no outstanding subscriptions for shares of Company Common Stock and
no outstanding bonds, debentures, notes or other obligations the holders of
which have the right to vote (or which are convertible into or exercisable for
securities having the right to vote) with the stockholders of the Company on any
matter. All issued and outstanding shares of capital stock of the Company are
duly authorized, validly issued, fully paid, non-assessable and free of
preemptive rights. After the Effective Time, the Surviving Corporation will have
no obligation to issue, transfer or sell any shares of capital stock or other
securities of the Company or the Surviving Corporation. Except as set forth in
this Section 4.1(b), there are no (i) outstanding Equity Securities of the
Company or (ii) commitments or obligations of any kind or character for (A) the
issuance of any Equity Securities of the Company or (B) the repurchase,
redemption or other acquisition of any Equity Securities of the Company.
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(c) VOTING TRUSTS, PROXIES, ETC. Except as set forth on Schedule
4.1(c), there are to the Company's knowledge, no stockholder agreements, voting
trusts, proxies or other agreements or understandings with respect to or
concerning the purchase, sale or voting of any Equity Securities of the Company.
4.2 AUTHORIZATION. The Company has all necessary corporate power and
authority to execute and deliver this Agreement and all agreements and documents
contemplated hereby. Subject only to the Requisite Stockholder Approval, the
consummation by the Company of the transactions contemplated hereby has been
duly authorized by all requisite corporate action. This Agreement has been duly
authorized, executed and delivered by the Company, subject to the Requisite
Stockholder Approval, and is a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as
the enforceability thereof may be limited by (a) applicable bankruptcy,
insolvency, moratorium, reorganization, fraudulent conveyance or similar laws in
effect which affect the enforcement of creditors' rights generally or (b)
general principles of equity, whether considered in a proceeding at law or in
equity.
4.3 SUBSIDIARIES.
(a) OWNERSHIP; CAPITALIZATION. Except as set forth on SCHEDULE 4.3(a),
the Company has no investments (whether through the acquisition of an equity
interest, the making of a loan or advance or otherwise), directly or indirectly,
in any other Person. Each of the Company's Subsidiaries are set forth on
SCHEDULE 4.3(a). Except as set forth on SCHEDULE 4.3(a), the Company is the
beneficial owner of all of the outstanding shares of capital stock of each
Subsidiary, free and clear of any and all Encumbrances. The authorized, issued
and outstanding capital stock, and the record ownership of all such shares of
capital stock, of each Subsidiary is as set forth on SCHEDULE 4.3(a). All of the
shares of capital stock of each Subsidiary have been duly authorized and validly
issued and are fully paid and non-assessable. No Subsidiary has any outstanding
bonds, debentures, notes or other obligations the holders of which have the
right to vote (or which are convertible into or exercisable for securities
having the right to vote) with the stockholders of such Subsidiary on any
matter. Except as set forth on SCHEDULE 4.3(a), there are no (i) outstanding
Equity Securities of any of the Company's Subsidiaries, (ii) commitments or
obligations of any kind or character for (A) the issuance of Equity Securities
of any of the Company's Subsidiaries or (B) the repurchase, redemption or other
acquisition of any Equity Securities of any of the Company's Subsidiaries, or
(iii) stockholder agreements, voting trusts, proxies or other agreements or
understandings with respect to or concerning the purchase, sale or voting of any
Equity Securities of any of the Company's Subsidiaries.
(b) ORGANIZATION. Each of the Company's Subsidiaries is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has full corporate power and authority to conduct its business
as it is presently being conducted and to own and lease its Assets. Each of the
Company's Subsidiaries is duly qualified to do business as a foreign corporation
and is in good standing in each jurisdiction in which such qualification is
necessary under applicable law except whether the failure to be so qualified and
in good standing would not reasonably be expected to have a Material Adverse
Effect on the Company. The Company has delivered to Parent true, correct and
complete copies of each of its Subsidiaries' certificate of incorporation and
by-laws (in each case, as amended to date).
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4.4 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since August 28, 1999, (x)
the Company and its Subsidiaries have been operated in the ordinary course of
business, consistent with past practice, (y) there has been no Material Adverse
Change and to the knowledge of the Company, no events or developments have
occurred that, individually or in the aggregate, would reasonably be expected to
result in a Material Adverse Change, with respect to the Company and (z) without
limiting the generality of the foregoing, neither the Company nor its
Subsidiaries has taken any action of the type contemplated by Section
6.1(a)(iii) and (vi) - (xvii) hereof, except in the case of clauses (x) or (z)
as set forth on SCHEDULE 4.4.
4.5 REAL PROPERTY.
(a) OWNED REAL PROPERTY. SCHEDULE 4.5(a) hereto sets forth all
Facilities owned by the Company and its Subsidiaries. With respect to each
parcel of owned real property except as set forth on SCHEDULE 4.5(a), (A) the
Company or its Subsidiaries has good and marketable fee simple title to such
parcel of real property, free and clear of any and all Encumbrances other than
Permitted Encumbrances, (B) there are no leases, subleases, licenses, options,
rights, concessions or other agreements, written or oral, granting to any party
or parties the right of use or occupancy of any portion of such parcel of real
property, (C) there are no outstanding options, rights of first refusal or other
contractual right in favor of any other party to purchase any such parcel of
real property or any portion thereof or interest therein, and (D) there are no
parties (other than the Company and its Subsidiaries) who are in possession of
or who are using any such parcel of real property.
(b) LEASED REAL PROPERTY. SCHEDULE 4.5(b) sets forth all Leases, true
and correct copies of which have been delivered to Sub. The Company or one of
its Subsidiaries has good and valid leasehold title to, and enjoy peaceful and
undisturbed possession of, all leased property described in such leases (the
"LEASED PROPERTY"), free and clear of any and all Encumbrances other than any
Permitted Encumbrances which would not permit the termination of the Lease
therefor by the lessor, and none of the Company or any of its Subsidiaries or,
to the knowledge of the Company, any third party has entered into any sublease,
license, option, right, concession or other agreement or arrangement, written or
oral, granting to any Person (other than the Company or a Subsidiary) the right
to use or occupy such Leased Property or any portion thereof or interest therein
with respect to each Lease. With respect to each material lease relating to the
Leased Property: (A) there has been no material default under any such Lease by
the Company or its Subsidiary, as applicable, or, to the knowledge of the
Company, by any other party, (B) such Lease is a valid and binding obligation of
the Company or such Subsidiary, is in full force and effect with respect to the
Company or such Subsidiary and is enforceable against the Company or such
Subsidiary in accordance with its terms, except as the enforceability thereof
may be limited by (1) applicable bankruptcy, insolvency, moratorium,
reorganization, fraudulent conveyance or similar laws in effect which affect the
enforcement of creditors' rights generally or (2) general principles of equity,
whether considered in a proceeding at law or in equity, and (C) no action has
been taken by the Company or such Subsidiary and no event has occurred which,
with notice or lapse of time or both, would permit termination, modification or
acceleration by a party thereto other than the Company or such Subsidiary,
without the consent of the Company or such Subsidiary.
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4.6 MATERIAL CONTRACTS AND COMMITMENTS.
(a) The term "Company Contract" means each Contract to which the
Company or any of its Subsidiaries is a party or by which it is bound which: (i)
has been or would be required to be filed by the Company as an exhibit to a
Company Report under Item 10 of Rule 601 of Regulation S-K under the Exchange
Act, or (ii) (x) the loss of which would have a Material Adverse Effect, or (y)
pursuant to which the Company or any of its Subsidiaries is required to pay or
is scheduled to receive (assuming full performance pursuant to the terms
thereof) $500,000 or more during the 12-month period following the date of this
Agreement. Except as set forth on Schedule 4.6(a), the Company Reports filed
prior to the date hereof contain an accurate and complete listing of all Company
Contracts.
(b) Except as set forth on SCHEDULE 4.6(b) neither the Company nor any
of its Subsidiaries is a party to or is bound by any contract which contains
covenants limiting the freedom of the Company or any of its Subsidiaries to
engage in any line of business in any geographic area or to compete with any
person or entity or restricting the ability of the Company or any of its
Subsidiaries to acquire equity securities of any Person or entity. Unless the
same has expired in accordance with its terms or the Company or a Subsidiary
thereof has elected to terminate the same in compliance with the terms thereof,
each of such contracts, leases, agreements and understandings is in full force
and effect and (a) none of the Company or any of its Subsidiaries or, to the
best knowledge of the Company, any other party thereto, has breached or is in
default thereunder, (b) no event has occurred which, with the passage of time or
the giving of notice would constitute such a breach or default thereunder, or
would permit modification, acceleration or termination thereof, (c) no claim of
material default thereunder has, to the best knowledge of the Company, been
asserted or threatened and (d) none of the Company or any of its Subsidiaries
or, to the best knowledge of the Company, any other party thereto is seeking the
renegotiation thereof of substitute performance thereunder, except (i) as
disclosed in the Company Reports filed prior to the date hereof or as set forth
on SCHEDULE 4.6 of the Disclosure Schedule and (ii) where such breach or
default, modification, acceleration or termination or attempted renegotiation or
substitute performance, individually or in the aggregate, does not have and
would not be reasonably expected to have a Material Adverse Effect on the
Company.
4.7 NO CONFLICT OR VIOLATION. Neither the execution, delivery and
performance of this Agreement, nor the consummation of the transactions
contemplated hereby, by the Company or its Subsidiaries will result in (a) a
violation of or a conflict with any provision of the certificate of
incorporation or by-laws or other organizational documents of the Company or any
of its Subsidiaries, (b) a breach of, or a default under, or the creation of any
right of any party to accelerate, terminate or cancel pursuant to (including,
without limitation, by reason of the failure to obtain a consent or approval
under any such Contract), any term or provision of any Contract, Lease,
Encumbrance, Permit, authorization or concession to which the Company or its
Subsidiaries is a party or by which any of the Assets are bound, (c) a violation
by the Company or any of its Subsidiaries of any Law applicable to the Company
or such Subsidiary, (d) an impairment of any right of the Company or any of its
Subsidiaries under any Contract to which it is a party or by which its Assets
are bound or under any Permit relating to the operation of its business, or (e)
an imposition of any Encumbrance (other than Permitted Encumbrances),
restriction or charge on the business of the Company or any of its Subsidiaries
or on any of their Assets,
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except in the case of clauses (b), (c), (d) and (e), where such breach, default,
creation of any right, impairment or imposition would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect on the
Company.
4.8 CONSENTS AND APPROVALS. No consent, waiver, agreement, approval,
Permit or authorization of, or declaration, filing, notice or registration to or
with, any federal, state, local or foreign governmental or regulatory authority
or body or other Person or entity is required to be made or obtained by the
Company or its Subsidiaries in connection with the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby other than (a) filings required in connection with or in
compliance with the provisions of the HSR Act, any applicable foreign regulatory
filings and the Exchange Act (collectively, the "REGULATORY FILINGS"), (b) the
filing of a Certificate of Amendment to the Certificate of Incorporation of the
Company with respect to the Amendment under DGCL, (c) the filing of the
Certificate of Merger with respect to the Merger under the DGCL, and (d) those
consents, waivers, agreements, approvals, authorizations, declarations, filings,
notices or registrations, that have been, or will be prior to the Closing Date,
obtained or made, as set forth on SCHEDULE 4.8.
4.9 SEC DOCUMENTS; FINANCIAL STATEMENTS, ETC. The Company has filed all
forms, reports and documents required to be filed by it with the SEC since
January 1, 1998 (collectively, the "COMPANY REPORTS"). As of their respective
dates, the Company Reports (i) complied in all material respects with the
applicable requirements of the Securities Act, the Exchange Act, and the rules
and regulations thereunder and (ii) did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements made therein, in the light of the circumstances
under which they were made, not misleading. The consolidated financial
statements of the Company included in or incorporated by reference in the
Company Reports (the "FINANCIAL STATEMENTS") are complete and correct in all
material respects, were prepared from, and are in accordance with, the books and
records of the Company and its consolidated Subsidiaries, comply as to form in
all material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto and present fairly the
financial condition of the Company and its Subsidiaries as of the respective
dates thereof and the results of operations, stockholders' equity and cash flows
for the periods covered thereby in accordance with GAAP, consistently applied
throughout the periods covered (subject, in the case of the unaudited interim
financial statements, to normal, year-end audit adjustments). Since November 30,
1998, there has been no change in any of the significant accounting (including
tax accounting) policies, practices or procedures of the Company or any of its
Subsidiaries except as required by GAAP or applicable law.
4.10 UNDISCLOSED LIABILITIES. Since August 28, 1999, neither the
Company nor any of its Subsidiaries has incurred any liabilities or obligations
(whether absolute, accrued, fixed, contingent, liquidated, unliquidated or
otherwise and whether due or to become due) of any nature, which would be
required by GAAP, as of the date hereof, to be set forth on a consolidated
balance sheet of the Company and its Subsidiaries or in the notes thereto except
liabilities, obligations or contingencies (a) which are disclosed reflected or
reserved for on the unaudited balance sheet of the Company and its Subsidiaries
as of August 28, 1999 (including the notes thereto) or in this Agreement or in
Schedule 4.10 of the Disclosure Schedule or (b) which (i) were incurred in the
ordinary course of business after August 28, 1999 and consistent with past
practices or (ii) are disclosed or reflected or reserved for in the Company
Reports filed
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after August 28, 1999 and prior to the date hereof, or (c) which were incurred
as a result of actions taken or refrained from being taken (i) in furtherance of
the transactions contemplated by this Agreement, or (ii) at the request of
Parent and Sub.
4.11 LITIGATION. Except as set forth in the Company Reports or on
SCHEDULE 4.11, there are no outstanding actions, orders, writs, injunctions,
judgments or decrees or any claims, suits, charges, proceedings, labor disputes,
arbitrations, governmental audits or investigations (collectively, "ACTIONS")
pending or, to the knowledge of the Company, threatened against or related to
the Company or any of its Subsidiaries, or other than routine claims for
benefits, any Employee Plan of the Company or any of its Subsidiaries or any
trust or funding instrument, fiduciary or administrator thereof; except for
those Actions that would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect on the Company.
4.12 LABOR MATTERS. There is no (and within the past five years, there
has been no) labor strike, slow-down or other work stoppage or labor disturbance
pending or, to the knowledge of the Company, threatened against the Company or
its Subsidiaries nor, to the knowledge of the Company, is any grievance
currently being asserted. Except as set forth in Schedule 4.12, neither the
Company nor any of its Subsidiaries has received any notice of any claim, or has
knowledge of any facts which, in the reasonable judgment of the Company, are
likely to give rise to any claim, that it has not complied in any material
respect with any Federal, State or local laws relating to the employment of
labor, including, without limitation, any provisions thereof relating to wages,
hours, collective bargaining, the payment of social security and similar taxes,
equal employment opportunity, employment discrimination or employment safety.
4.13 COMPLIANCE WITH LAW. The Company and its Subsidiaries have not
violated and are in compliance with (a) all Federal, State and local United
States Laws, and (b) to the Company's knowledge all foreign Laws, in each case,
relating to the Assets, business or operations of the Company or its
Subsidiaries, except to the extent that any such violation or failure to comply
is not reasonably likely, individually or in the aggregate, to have a Material
Adverse Effect on the Company. Neither the Company nor its Subsidiaries has
received any written notice to the effect that, or otherwise has any knowledge
that, (i) the Company and its Subsidiaries are not currently in compliance with,
or are in violation of, any applicable Laws or (ii) any currently existing
circumstances are likely to result in a failure of the Company or its
Subsidiaries to comply with, or a violation by the Company or its Subsidiaries
of, any Laws, which such failure to comply or violation would be reasonably
likely, individually or in the aggregate, to have a Material Adverse Effect on
the Company. Each of the Company and each of its Subsidiaries has in effect all
Permits necessary for it to own, lease or operate its properties and assets and
to carry on its business as now conducted, and there has occurred no default
under any such Permit, except such as would not in each case, individually or in
the aggregate, have a Material Adverse Effect. No representation or warranty is
made in this Section 4.13 with respect to compliance with Laws relating to the
matters covered in Sections 4.16 (Employee Benefits), 4.17 (Tax Matters) and
4.19 (Compliance with Environmental Laws).
4.14 NO BROKERS. Other than Peter J. Solomon Company Limited and
Deutsche Bank Securities Inc. the arrangements with which have been disclosed in
writing to Parent prior to the date hereof, none of the Company, its
Subsidiaries or any of their officers, directors, employees,
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stockholders or other Affiliates has employed or made any agreement with any
broker, finder or similar agent or any Person or firm to pay any finder's fee,
brokerage fee or commission or similar payment in connection with the
transactions contemplated hereby.
4.15 INTELLECTUAL PROPERTY.
(a) TRADEMARKS. Section 4.15(a)(1) of the Disclosure Schedule contains
a complete list of all trademarks that are material to the business of the
Company and its Subsidiaries as it is currently conducted (the "TRADEMARKS").
Section 4.15(a)(2) of the Disclosure Schedule sets forth the trademark
registrations and/or pending applications therefor that are owned by the Company
and its Subsidiaries, relating to the Trademarks as well as other marks. Except
as set forth in Section 4.15(a)(3) of the Disclosure Schedule the Company and
its Subsidiaries own the Trademarks which have been registered or applied for in
the United States Patent and Trademark Office (hereinafter "U.S. TRADEMARKS"),
free and clear of all Encumbrances. The Company and its Subsidiaries own the
Trademarks in those foreign countries and jurisdictions where they have been
registered ("Foreign Trademarks"), free and clear of all Encumbrances, except
such Encumbrances as would not reasonably be expected to have a Material Adverse
Effect on the Company. All appropriate actions have been taken by the Company
and its Subsidiaries to maintain the validity and enforceability of the U.S.
Trademarks, including payment of all required fees. All appropriate actions have
been taken by the Company and its Subsidiaries to maintain the validity and
enforceability of the Foreign Trademarks, including payment of all required
fees, except where non-action would not reasonably be expected to have a
Material Adverse Effect on the Company. Except as set forth in Section
4.15(a)(3) of the Disclosure Schedule, no judicial or administrative proceeding
of any kind is pending or, to the knowledge of the Company, has been threatened
against the Company or its Subsidiaries in the United States involving (a) the
ownership, validity, enforceability, infringement, misuse or misappropriation of
any Trademarks or (b) the ownership, validity, enforceability, infringement,
misuse or misappropriation by the Company or its Subsidiaries of Intellectual
Property rights of any third party which proceeding would reasonably be expected
to have a Material Adverse Effect on the Company. The Company has no knowledge
of the infringement or misappropriation of any of the Trademarks by a third
party which could have a Material Adverse Effect on the Company. The Company and
its Subsidiaries have not received written notice of any infringement or
liability of any kind for the use of intellectual property rights of others with
respect to the Intellectual Property within the last three (3) years which could
have a Material Adverse Effect on the Company. None of the Company, its
Subsidiaries or any of their Affiliates have granted any license or right to
use, option, release or covenant not to sue or non-assertion assurance to any
third person with respect to, or granted any outstanding lien or security
interest in, any of the U.S. Trademarks or the Foreign Trademarks, except where
such grant would not have a Material Adverse Effect on the Company. There is no
existing or contemplated agreement, understanding, or grant of permission
between the Company, its Subsidiaries or any of their Affiliates and any third
person that encumbers or otherwise affects the Company's right to use the U.S.
Trademarks or the Foreign Trademarks, except where such agreement,
understanding, or grant of permission would not have a Material Adverse Effect
on the Company. Immediately after the Merger, the Surviving Corporation shall
own or have the right to use all of the Trademarks currently used in the
business of the Company and its Subsidiaries, in each case free from any
Encumbrances, and on the same terms and conditions as in effect prior to the
Merger.
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(b) The Company owns or has the right to use all Intellectual Property
that is material to the business of the Company or its Subsidiaries. The conduct
of the business of the Company and its Subsidiaries does not infringe upon,
conflict in any way with or misappropriate any Intellectual Property of any
third party, except for infringements, conflicts or misappropriations that,
individually and in the aggregate, would not have a Material Adverse Effect on
the Company. None of the Intellectual Property used in the business of the
Company and its Subsidiaries is being infringed or used by any third party,
except for such infringements or uses as, individually and in the aggregate,
would not have a Material Adverse Effect on the Company.
(c) To the Company's knowledge, none of the Intellectual Property which
is used in the United States and owned by the Company and its Subsidiaries is
subject to any outstanding order, ruling, decree, judgment or stipulation by or
with any Governmental Authority.
(d) To the Company's knowledge, neither the Company nor any of its
Subsidiaries has experienced any material disruption or Material Adverse Change
in the conduct of the businesses as a result of the Year 2000 Problem.
4.16 EMPLOYEE BENEFITS.
(a) SCHEDULE 4.16(a) lists as of the date hereof each material
"employee pension benefit plan," as that term is defined in Section 3(2) of
ERISA, each material "employee welfare benefit plan," as that term is defined in
Section 3(1) of ERISA (such plans being hereinafter referred to collectively as
the "ERISA PLANS"), each material other retirement, pension, profit-sharing,
money purchase, deferred compensation, incentive compensation, bonus, stock
option, stock purchase, severance pay, unemployment benefit, vacation pay,
health, life or other insurance, fringe benefit, or other employee benefit plan,
program, agreement or arrangement maintained or contributed to as of the date
hereof by the Company or its Affiliates in respect of or for the benefit of any
employee of the Company or its Subsidiaries (an "EMPLOYEE") or former Employee,
and separately identifies any such plan, program, agreement or arrangement
maintained or contributed to solely in respect of or for the benefit of
Employees or former Employees employed or formerly employed by the Company or
its Subsidiaries outside of the United States (collectively, together with the
ERISA Plans, referred to hereinafter as the "PLANS").
(b) Except as set forth on SCHEDULE 4.16(b), with respect to the ERISA
Plans:
(i) Neither the Company nor any of its ERISA Affiliates, any
of the ERISA Plans, any trust created thereunder, or any trustee or
administrator thereof, has engaged in any transaction as a result of which the
Company or its Subsidiaries would reasonably be expected to be subject to any
liability pursuant to Section 409 of ERISA or to either a civil penalty assessed
pursuant to Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 of
the Code, excluding any liability, penalty or tax that would not constitute a
Material Adverse Effect; and
(ii) Since the effective date of ERISA, no material liability
under Title IV of ERISA has been incurred by the Company or its Subsidiaries
(other than liability for premiums due to the PBGC) unless such liability has
been, or prior to the Closing Date will be, satisfied in full.
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(c) Except as set forth on SCHEDULE 4.16(c), with respect to the ERISA
Plans other than those ERISA Plans identified on SCHEDULE 4.16(d) as
"multiemployer plans":
(i) The PBGC has not instituted proceedings to terminate any
such ERISA Plan that is subject to Title IV of ERISA;
(ii) None of such ERISA Plans has incurred an "accumulated
funding deficiency" (as defined in Section 302 of ERISA and Section 412 of the
Code), whether or not waived, as of the last day of the most recent fiscal year
of each of the ERISA Plans ended prior to the date of this Agreement;
(iii) Each of such ERISA Plans has been operated and
administered in all material respects in accordance with its provisions and with
all applicable Laws;
(iv) Each of such ERISA Plans that is intended to be
"qualified" within the meaning of Section 401(a) of the Code has been determined
by the IRS to be so qualified, and to the knowledge of the Company nothing has
occurred since the date of the most recent such determination (other than the
effective date of certain amendments to the Code the remedial amendment period
for which has not yet expired) that would adversely affect the qualified status
of any of such ERISA Plans; and
(v) As of the date hereof, there are no pending material
claims by or on behalf of any of the ERISA Plans, by any employee or beneficiary
covered under any such ERISA Plan against any such ERISA Plan, or otherwise
involving any such ERISA Plan (other than routine claims for benefits and
routine expenses).
(d) Except as set forth on SCHEDULE 4.16(d), (i) none of the
ERISA Plans is a "multiemployer plan," as that term is defined in Section 3(37)
of ERISA, and (ii) with respect to any such multiemployer plans (as so defined),
neither the Company nor any of its Subsidiaries have made or incurred a
"complete withdrawal" or a "partial withdrawal," as such terms are respectively
defined in Sections 4203 and 4205 of ERISA. To the Company's knowledge, if the
Company and each of its ERISA Affiliates were to withdraw from each
multiemployer plan in which they participate as of the date hereof, the
Company's and its Subsidiaries' withdrawal liability would not have a Material
Adverse Effect on the Company or its Subsidiaries.
(e) Except as set forth on SCHEDULE 4.16(e), no amount that
could be received (whether in cash or property or the vesting of property) as a
result of the Merger or any of the other transactions contemplated by this
Agreement, either alone or together with other events, by any employee, officer
or director of the Company or any of its affiliates who is a "disqualified
individual" (as such term is defined in Proposed Treasury Regulation Section
1.280G-1) under any employment, severance or termination agreement, other
compensation arrangement or any Plan currently in effect would be characterized
as an "excess parachute payment" (as such term is defined in Section 280G(b)(1)
of the Code). Neither the Company nor any of its Subsidiaries is a party to any
contract, agreement or other arrangement which would result in the payment of
amounts prior to the Effective Time that will be nondeductible by reason of
Section 162(m) of the Code.
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4.17 TAX MATTERS.
(a) FILING OF TAX RETURNS AND PAYMENT OF TAXES. Each of the Company and
its Subsidiaries has filed all material Tax Returns and reports required to be
filed by it or requests for extensions to file such Returns or reports have been
timely filed, granted and have not expired. All Returns filed by the Company and
each of its Subsidiaries are complete and accurate in all material respects. The
Company and each of its Subsidiaries have paid (or the Company has paid on its
behalf) all material Taxes required to be paid by the Company or any of its
Subsidiaries, and the most recent financial statements contained in the Company
Filed SEC Documents reflect an adequate reserve for all Taxes payable by the
Company and its Subsidiaries for all taxable periods and portions thereof
accrued through the date of such financial statements.
(b) NO MATERIAL DEFICIENCIES. Except as disclosed in SCHEDULE 4.17(b),
no material deficiencies for any Taxes have been proposed, asserted or assessed
against the Company or any of its Subsidiaries that are not adequately reserved
for, and no requests for waivers or extension of the time to assess or collect
any material Taxes of the Company or any of its Subsidiaries have been granted
or are pending.
(c) WITHHOLDING. All material Taxes required to be withheld by the
Company or any of its Subsidiaries have been duly withheld and paid to the
proper taxing authority or properly set aside in accounts for such purpose.
(d) AFFILIATED GROUP. Neither the Company nor any of its Subsidiaries
is or has been at any time since January 1, 1990 for purposes of filing any
income tax Return a member of any affiliated, consolidated, combined or unitary
group of which a corporation (other than the Company and its Subsidiaries) is or
was the common parent.
(e) AUDITS. Except as disclosed in SCHEDULE 4.17(b), (i) no Taxes of
the Company or any of its Subsidiaries are currently under audit by any taxing
authority, and no taxing authority is now asserting against the Company or any
of its Subsidiaries any material deficiency or claim for additional Taxes or any
material adjustment of Taxes and (ii) since January 1, 1990, no material claim
has been made by any taxing authority in any jurisdiction where the Company or
any of its Subsidiaries does not file Returns that the Company or such
Subsidiary is or may be subject to taxation by that jurisdiction.
(f) TAX SHARING AGREEMENTS. Except as disclosed in SCHEDULE 4.17(F),
(i) neither the Company nor any of its Subsidiaries is a party to or bound by or
has any obligation under any Tax sharing agreement, allocation, indemnity or
other similar arrangement entered into with any person (other than the Company
or any of its Subsidiaries) and (ii) neither the Company nor any of its
Subsidiaries may be held liable for Taxes of any other Person as a transferee or
successor of such Person.
(g) ASSETS. None of the Assets is: (A) property that is required to be
treated as being owned by any other Person pursuant to the so-called safe harbor
lease provisions of former Section 168(f)(8) of the Code; (B) "tax-exempt use
property" within the meaning of Section
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168(h) of the Code; or (C) property that directly or indirectly secures any debt
the interest on which is tax-exempt under Section 103(a) of the Code.
(h) SECTION 481 ADJUSTMENTS, ETC. Except as disclosed in SCHEDULE
4.17(h), (i) there are no outstanding material adjustments under Section 481 of
the Code or other similar adjustments as a result of changes in methods of
accounting applicable to the Company or any of its Subsidiaries, (ii) there are
no Tax rulings, requests for rulings or closing agreements relating to the
Company or any of its Subsidiaries which would be reasonably expected to affect
its liability for Taxes for any period after the Closing and (iii) none of the
assets of the Company or any of its Subsidiaries are subject to any Tax liens
(other than liens for Taxes which are not yet due and payable).
4.18 AFFILIATED TRANSACTIONS. Except as disclosed in the Company
Reports filed prior to the date hereof or as contemplated by this Agreement,
there are no contracts, leases, agreements or understandings, whether written or
oral, with or on behalf of any Affiliate of the Company, to which the Company or
any of its Subsidiaries is a party or is otherwise bound which would be required
to be described in a report or schedule filed with the SEC or filed as an
exhibit thereto pursuant to the Exchange Act and the applicable rules and
regulations thereunder, other than contracts, leases, agreements or
understandings which are not, singly or in the aggregate material to the Company
and its Subsidiaries, taken as a whole, or which have been disclosed in writing
to Parent.
4.19 COMPLIANCE WITH ENVIRONMENTAL LAWS. Except as set forth on
SCHEDULE 4.19:
(a) The Company and its Subsidiaries are in material compliance with
all Federal, State and local United States Environmental Laws and to the
Company's knowledge it is materially in compliance with all foreign
Environmental Laws, including, without limitation, all Permits required
thereunder to conduct their business as currently being conducted or proposed to
be conducted.
(b) There are no material Environmental Claims pending or to the
knowledge of the Company threatened against the Company or any of its
Subsidiaries, nor have any of them received any written notification nor does
the Company otherwise have any knowledge, of any allegation of any actual, or
potential responsibility for, or any inquiry or investigation regarding, any
disposal, release or threatened release at any location of any Hazardous
Substance generated or transported by the Company or any of its Subsidiaries.
(c) (i) No underground tank or other underground storage receptacle for
Hazardous Substances is currently located on any Facility and (ii) to the
knowledge of the Company there have been no releases (i.e., any past or present
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, disposing, or dumping) of Hazardous Substances
on, upon or into any Facility other than those authorized by Environmental Laws
including, without limitation, the Permits required thereunder, except in the
case of clause (i) or (ii) as would not individually or in the aggregate have a
Material Adverse Effect on the Company.
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(d) Except as would not have a Material Adverse Effect on the Company,
there are no PCBs or asbestos-containing materials located at or on any
Facility.
(e) Neither Company nor any of its Subsidiaries is a party, whether as
a direct signatory or as successor, assign or third-party beneficiary, or
otherwise bound, to any Lease or other Contract under which the Company or its
Subsidiaries are obligated by any representation, warranty, indemnification,
covenant, restriction or other undertaking concerning Environmental Conditions
or compliance with Environmental Laws.
(f) True and correct copies of the Environmental Reports, as well as
all other written environmental reports, audits or assessments which have been
conducted either by the Company or its Subsidiaries or any Person engaged by the
Company or its Subsidiaries for such purpose, at any current or former
Facilities have been made available to Parent and a list of all such reports,
audits and assessments is set forth on SCHEDULE 4.19(f).
4.20 OPINION OF FINANCIAL ADVISOR. The Company has received the opinion
of Deutsche Bank Securities Inc., dated the date of this Agreement, to the
effect that, as of such date, the Cash Merger Consideration to be received in
connection with the Merger by the holders of Company Common Stock is fair to
such holders from a financial point of view, a signed copy of which opinion has
been delivered to Parent.
4.21 BOARD RECOMMENDATION. The Board of Directors of the Company, at a
meeting duly called and held, has by unanimous vote (i) declared the
advisability of this Agreement and the Amendment, determined that this Agreement
and the transactions contemplated hereby, including the Merger, taken together
are fair to and in the best interests of the stockholders of the Company and
(ii) resolved to recommend that the holders of Company Common Stock adopt this
Agreement and approve the Amendment.
4.22 REQUIRED COMPANY VOTE. There are no votes of the holders of any
class or series of the Company's securities necessary to approve this Agreement,
the Merger, the Amendment and the other transactions contemplated hereby other
than the Requisite Stockholder Vote.
4.23 PROXY STATEMENT; SCHEDULE 13E-3. The Proxy Statement to be mailed
to the Stockholders in connection with the special meeting of the Stockholders
(the "SPECIAL MEETING") and the Schedule 13E-3, and any amendment thereof or
supplement thereto (excluding any information supplied in writing by Parent or
Sub specifically for inclusion therein), when, in the case of the Proxy
Statement, mailed and at the time of the Special Meeting, and in the case of the
Schedule 13E-3, when filed, shall not contain any untrue statement of a material
fact, or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not false or misleading, and shall comply with all
requirements of the Exchange Act. Notwithstanding the foregoing, the Company
makes no representation or warranty with respect to any information furnished in
writing by Parent or Sub or its representatives specifically for inclusion in
any of the foregoing documents.
4.24 INVENTORY. Except as provided for or reserved against on the
Company's consolidated balance sheet, dated as of August 28, 1999, the finished
product Inventory of the
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Company and its Subsidiaries is merchantable and fit for the use for which it
was procured or manufactured and legally qualified for export and sale, and all
other Inventory of the Company and its Subsidiaries is in good and usable
condition. Except as set forth in SCHEDULE 4.24, all Inventory of the Company
and its Subsidiaries is in good and marketable condition and salable in the
normal course of the business of the Company or its Subsidiaries. The Inventory
of the Company and its Subsidiaries (excluding inventory of raw materials) is
sufficient for and not materially or substantially in excess of the requirements
of the business of the Company and its Subsidiaries.
4.25 CUSTOMERS. The Company has not received any notice nor has any
reason to believe that any material customer of the Company or its Subsidiaries
(i) has ceased, or will cease, to purchase or will significantly reduce its
purchases, in the aggregate, from the Company or its Subsidiaries, (ii) has
reduced, or will reduce, its use of products or goods of the Company or its
Subsidiaries or (iii) has sought, or is seeking, to reduce the price it will pay
for products or goods of the Company or its Subsidiaries, such as would in the
case of clauses (i), (ii) and (iii), individually or in the aggregate, have a
Material Adverse Effect. To the Company's knowledge the rate of return of
products of the Company or any of its Subsidiaries sold prior to or following
the Effective Time by any customer of the Company or its Subsidiaries is not
expected to be materially greater than the rate of return of products
experienced by the Company and its Subsidiaries for the past three years.
4.26 AVAILABLE FUNDS. The Company has, or will have immediately prior
to the Closing, sufficient funds available, which when added to the Cash
Contribution Amount, will permit the Company to perform its obligations under
SECTION 3.4(a).
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
As an inducement to the Company to enter into this Agreement,
Parent and Sub hereby, jointly and severally, make the following representations
and warranties as of the date hereof and as of the Closing Date to the Company:
5.1 ORGANIZATION, ETC.
(a) Sub is duly organized, validly existing and in good standing under
the laws of the state of Delaware. Sub has been formed for the purpose of
effecting the Merger, has no commitments or obligations other than those
relating thereto and its obligations under this Agreement, does not conduct any
business and has no assets or liabilities.
(b) Parent is duly organized, validly existing and in good standing
under the laws of the Kingdom of Sweden and has full corporate power and
authority to conduct its business as it is presently being conducted and to own
and lease its Assets. Parent is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which such
qualification is necessary under applicable law except where the failure to be
so qualified and in good standing would not reasonably be expected to have a
Material Adverse Effect on the Parent.
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5.2 AUTHORIZATION.
(a) Sub has all necessary corporate power and authority to, and has
taken all corporate action necessary on its part to, execute and deliver this
Agreement and to consummate the transactions contemplated hereby. This Agreement
has been duly executed and delivered by Sub and is a legal, valid and binding
obligation of Sub, enforceable against Sub in accordance with its terms, except
as the enforceability thereof may be limited by (a) applicable bankruptcy,
insolvency, moratorium, reorganization, fraudulent conveyance or similar laws in
effect which affect the enforcement of creditors' rights generally or (b)
general principles of equity, whether considered in a proceeding at law or in
equity.
(b) Parent has all necessary corporate power and authority to execute
and deliver this Agreement and each of the Shareholders' Agreement and the Stock
Purchase Agreement and all agreements and documents contemplated hereby and
thereby. The consummation by the Parent of the transactions contemplated hereby
and thereby have been duly authorized by all requisite corporate action. This
Agreement, the Shareholders' Agreement and the Stock Purchase Agreement have
each been duly authorized, executed and delivered by the Parent and are each
legal, valid and binding obligations of the Parent, enforceable against the
Parent in accordance with their respective terms, except as the enforceability
thereof may be limited by (a) applicable bankruptcy, insolvency, moratorium,
reorganization, fraudulent conveyance or similar laws in effect which affect the
enforcement of creditors' rights generally or (b) general principles of equity,
whether considered in a proceeding at law or in equity.
5.3 CONSENTS AND APPROVALS. No consent, waiver, agreement, approval,
Permit or authorization of, or declaration, filing, notice or registration to or
with, any federal, state, local or foreign governmental or regulatory authority
or body is required to be made or obtained by Parent or Sub in connection with
the execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby other than any Regulatory Filings and
pursuant to the DGCL.
5.4 NO CONFLICT OR VIOLATION. Neither the execution, delivery and
performance of this Agreement, the Shareholders' Agreement or the Stock Purchase
Agreement nor the consummation of the transactions contemplated hereby or, by
Parent or Sub will result in (a) a violation of or a conflict with any provision
of the certificate of incorporation or by-laws of Parent or Sub, or (b) a breach
of, or a default under, or the creation of any right of any party to accelerate,
terminate or cancel pursuant to (including, without limitation, by reason of the
failure to obtain a consent or approval under any such contract), any term or
provision of any contract, encumbrance or permit to which Parent or Sub is a
party or by which any of its assets are bound, which breach, default or creation
of any such right would reasonably be expected to have a Material Adverse Effect
on Parent or Sub.
5.5 PROXY STATEMENT. The information concerning Parent or Sub, their
officers, directors, employees and stockholders furnished in writing to the
Company by Parent or Sub specifically for use in the Proxy Statement will not,
when mailed to the Stockholders or at the time of the Stockholders Meeting,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
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Notwithstanding the foregoing, Parent and Sub make no representation or warranty
with respect to any information supplied by the Company or any of its
representatives which is contained in or incorporated by reference in any of the
foregoing documents.
5.6 FINANCING. Parent has, or will have immediately prior to the
Closing and the closing under the Stock Purchase Agreement, sufficient funds to
perform its obligations hereunder and thereunder.
ARTICLE VI.
COVENANTS OF THE COMPANY, PARENT AND SUB
The Company, Parent and Sub covenant and agree with each other
that from the date hereof through the Closing:
6.1 MAINTENANCE OF BUSINESS PRIOR TO CLOSING.
(a) Prior to the Effective Time, except as set forth in SECTION 6.1 of
the Disclosure Schedule or as contemplated by any other provision of this
Agreement, unless Parent has consented in writing thereto, the Company:
(i) shall, and shall cause each of its Subsidiaries to,
conduct its operations and business according to their usual, regular and
ordinary course consistent with past practice;
(ii) shall use its reasonable best efforts, and shall cause
each of its Subsidiaries to use reasonable efforts, to preserve intact their
business organizations and goodwill, keep available the services of their
respective officers and employees and maintain satisfactory relationships with
suppliers, distributors, customers and other Persons having business
relationships with them;
(iii) shall not, and shall cause its Subsidiaries not to,
amend their respective certificates of incorporation or by-laws or comparable
governing instruments, other than as expressly provided by the terms of this
Agreement;
(iv) shall promptly notify Parent of (i) any Material Adverse
Change in the Company and will confer on a regular and frequent basis with
representatives of Parent to report on the status of operations, (ii) any
material litigation or material governmental complaints, investigations or
hearings (or communications indicating that the same may be contemplated), or
(iii) the material breach of any representation or warranty contained herein;
(v) shall promptly deliver to Parent correct and complete
copies of any report, statement or schedule filed with the SEC subsequent to the
date of this Agreement;
(vi) shall not, and shall not permit any of its Subsidiaries
to, authorize, propose or announce an intention to authorize or propose, or
enter into an agreement with respect to, any merger, consolidation or business
combination (other than the Merger), release or relinquishment of any material
contract rights, or any acquisition or disposition of Assets or securities;
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(vii) shall not, and shall not permit any of its Subsidiaries
to grant, confer or award any options, warrants, conversion rights or other
rights or Equity Securities (other than Company Common Stock issued upon
exercise of Options in accordance with their terms) not existing on the date
hereof;
(viii) except to the extent necessary to conform to changed
laws or regulations, shall not, and shall not permit any of its Subsidiaries to,
amend the terms of any Employee Plan, including, without limitation, any
employment, severance or similar agreements or arrangements in existence on the
date hereof, or adopt any new employee benefit plans, programs or arrangements
or any employment, severance or similar agreements or arrangements;
(ix) shall not, and shall not permit any of its Subsidiaries
to, (i) increase or agree to increase the compensation payable or to become
payable to its officers or, other than increases in accordance with past
practice which are not material, to its employees or (ii) enter into any
collective bargaining agreement;
(x) shall not, and shall not permit any of its Subsidiaries
to, (i) incur, create, assume or otherwise become liable for borrowed money or
assume, guarantee, endorse or otherwise become responsible or liable for the
obligations of any other individual, corporation or other entity or (ii) make
any loans or advances to any other Person, except (x) borrowings between the
Company and its consolidated Subsidiaries; (y) in the case of clause (i) for
borrowings under existing credit facilities in the ordinary course of business
and borrowings of up to $65 million under new credit facilities in connection
with consummation of the Merger (pursuant to which the Company and its
Subsidiaries shall be permitted to grant a security interest in their Assets,
including with respect to the Company's headquarters at 387 Park Avenue South);
and (z) in the case of clause (ii) for advances consistent with past practice in
the ordinary course of business which are not material;
(xi) shall not, and shall not permit any of its Subsidiaries
to, (i) materially change any practice with respect to Taxes, (ii) make, change
or revoke any material Tax election, (iii) settle or compromise any material
dispute involving a Tax liability or (iv) permit any material insurance policy
naming it as a beneficiary or a loss payable payee to be canceled or terminated;
(xii) shall not, and shall not permit any of its Subsidiaries
to, (i) declare, set aside or pay any dividend or make any other distribution or
payment with respect to any shares of its capital stock or other ownership
interests, (ii) directly or indirectly redeem, purchase or otherwise acquire any
shares of its capital stock or capital stock of any of its Subsidiaries, or make
any commitment for any such action or (iii) split, combine or reclassify any of
its capital stock or issue or authorize the issuance of any other securities in
respect of, in lieu of or in substitution for share of its capital stock;
(xiii) shall not, and shall not permit any of its Subsidiaries
to, issue, deliver, sell, pledge or otherwise encumber any of its Equity
Securities (other than the issuance of Company Common Stock upon the exercise of
Options);
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(xiv) shall not, and shall not permit any of its Subsidiaries
to, make or agree to make any capital expenditure that when added with all
capital expenditures since December 1, 1999 would exceed in the aggregate $3
million;
(xv) shall not, and shall not permit any of its Subsidiaries
to, change any accounting principles or practices, except to the extent
necessary to conform to changed laws or regulations;
(xvi) shall not, and shall not permit any of its Subsidiaries
to, pay, discharge, settle or satisfy any claims, liabilities or obligations
(absolute, accrued, asserted or unasserted, contingent or otherwise), other than
the payment, discharge or satisfaction, in the ordinary course of business
consistent with past practice or in accordance with their terms, of liabilities
reflected or reserved against in the most recent consolidated financial
statements (or the notes thereto) of the Company included in the Company Reports
or incurred thereafter in the ordinary course of business consistent with past
practice, or waive any benefits of, or agree to modify in any respect, any
confidentiality, standstill, non-solicitation or similar agreement to which the
Company or any Subsidiary is a party;
(xvii) shall not (i) acquire (by merger, consolidation,
acquisition of stock, other securities or assets or otherwise), (ii) make a
capital investment in (whether through the acquisition of an equity interest,
the making of a loan or advance or otherwise) or (iii) guarantee indebtedness
for borrowed money of, (A) any Person or (B) any portion of the assets of any
Person that constitutes a division or operating unit of such Person;
(xviii) shall not, and shall not permit any of its
Subsidiaries (x) to settle or compromise any pending or threatened suit, action
or claim related to tobacco or (y) to settle or compromise any other pending or
threatened suit, action or claim in which the amount involved is greater than
$100,000 or which is material to the Company and its Subsidiaries taken as a
whole or which relates to the transactions contemplated hereby, or (z) to
modify, amend or terminate any material Company Contract or waive, release or
assign any material right or claim;
(xix) shall not, and shall not permit any of its Subsidiaries,
to fail to pay its trade payables or to maintain its Inventory in the ordinary
course of business consistent with past practices; and
(xx) shall not, and shall not permit any of its Subsidiaries
to take, or agree (in writing or otherwise) or resolve to take, any of the
foregoing actions.
(b) Prior to the Effective Time, unless Company has consented in
writing thereto, Sub shall not, and Parent shall not cause Sub to, engage in any
activities of any nature except as provided in or contemplated by this
Agreement.
6.2 INVESTIGATION BY PARENT AND SUB. The Company shall allow Parent,
Sub, and their counsel, accountants and other representatives during regular
business hours upon reasonable notice, to make such reasonable inspection of the
Assets, Facilities, business and operations of the Company and its Subsidiaries
and to inspect and make copies of Contracts, books and records and all other
documents and information reasonably requested by Parent and related to the
operations and business of the Company and its Subsidiaries including, without
limitation,
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historical financial information concerning the business of the Company and its
Subsidiaries and to meet with designated Personnel of the Company or its
Subsidiaries and/or their representatives. The Company and its Subsidiaries
shall furnish to Parent promptly upon request (a) all additional documents and
information with respect to the affairs of the Company and its Subsidiaries
relating to their businesses and (b) access to the Personnel and to the
Company's and its Subsidiaries' accountants and counsel as Parent, or its
counsel or accountants, may from time to time reasonably request and the Company
and its Subsidiaries shall instruct their Personnel, accountants and counsel to
cooperate with Parent, and to provide such documents and information as Parent
and its representatives may reasonably request. Parent and Sub will hold, and
will use reasonable best efforts to cause their counsel, accountants and other
representatives to hold all documents and information in confidence to the
extent required by, and in accordance with, that certain confidentiality letter,
dated December 6, 1999, between the Company and Parent (the "CONFIDENTIALITY
LETTER").
6.3 CONSENTS AND EFFORTS.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, each of the parties agrees to (A) promptly make its respective
filings under the HSR Act with respect to the Merger and (B) use its
commercially reasonable efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, and to assist and cooperate with the other parties
in doing, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective, in the most expeditious manner
practicable, the Merger, the Stock Purchase and the other transactions
contemplated by this Agreement. Parent, Sub and the Company will use their
reasonable best efforts and cooperate with one another (i) in promptly
determining whether any filings are required to be made or consents, approvals,
waivers, licenses, permits or authorizations are required to be obtained (or,
which if not obtained, would result in an event of default, termination or
acceleration of any agreement or any put right under any agreement) under any
applicable law or regulation or from any governmental authorities or third
parties, including parties to loan agreements or other debt instruments, in
connection with the transactions contemplated by this Agreement, including the
Merger and the Stock Purchase, and (ii) in promptly making any such filings, in
furnishing information required in connection therewith and in timely seeking to
obtain any such consents, approvals, permits or authorizations.
(b) Each of the parties agrees to cooperate with each other in taking,
or causing to be taken, all actions necessary to delist the Company Common Stock
from the NYSE, PROVIDED, that such delisting shall not be effective until after
the Effective Time. The parties also acknowledge that the common stock of the
Surviving Corporation following the Merger will not be listed on any national
securities exchange or quoted on the NASDAQ Stock Market Inc.'s National Market.
6.4 OTHER OFFERS. Neither the Company nor any of its Subsidiaries shall
(whether directly or indirectly through advisors, agents or other
intermediaries), nor shall the Company or any of its Subsidiaries authorize or
permit any of its or their officers, directors, agents, representatives,
advisors or Subsidiaries to, (x) solicit, initiate or take any action knowingly
to facilitate the submission of inquiries, proposals or offers from any Person
or group, other than Parent and its representatives and Affiliates, relating to
(i) any acquisition or purchase of a material portion of the assets or any
Equity Securities of the Company, (ii) any tender offer
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(including a self tender offer) or exchange offer that if consummated would
result in any Person beneficially owning any Equity Securities of the Company,
(iii) any merger, consolidation, recapitalization, sale of all or substantially
all of the assets, liquidation, dissolution or similar transaction involving the
Company or any of its Subsidiaries whose assets, individually or in the
aggregate, constitute a material portion of the Assets other than the
transactions contemplated by this Agreement or (iv) any other transaction the
consummation of which could reasonably be expected to impede, interfere with,
prevent or materially delay the Merger or which could reasonably be expected to
materially dilute the benefits to Parent of the transactions contemplated hereby
(each such transaction being referred to herein as an "ACQUISITION PROPOSAL"),
or agree to or endorse any Acquisition Proposal, (y) continue, enter into or
participate in, any discussions or negotiations with, furnish any information to
any Person (other than Parent and its representatives and Affiliates) in
connection with, or otherwise knowingly take any other action to facilitate or
encourage any effort or attempt by, any Person (other than Parent and its
representatives and Affiliates) to make, an Acquisition Proposal or, (z) grant
any waiver or release under any standstill or similar agreement with respect to
any Equity Securities of the Company or any of its Subsidiaries; PROVIDED,
HOWEVER, that the foregoing shall not prohibit the Company (either directly or
indirectly through advisors, agents or other intermediaries), prior to a
shareholder vote at the Special Meeting, in connection with the Merger from (i)
furnishing information pursuant to an appropriate confidentiality letter (which
letter shall not be less favorable to the Company in any material respect than
the Confidentiality Letter, and a copy of which shall be provided for
informational purposes only to Parent) concerning the Company and its
businesses, properties or Assets to any Person or group, (a "THIRD PARTY") who
has made a bona fide Acquisition Proposal, (ii) engaging in discussions or
negotiations with a Third Party who has made a bona fide Acquisition Proposal,
(iii) taking and disclosing to its stockholders a position contemplated by Rule
14e-2(a) under the Exchange Act or otherwise making disclosure to its
stockholders, or (iv) taking any non-appealable, final action ordered to be
taken by the Company by any court of competent jurisdiction, but in each case
referred to in the foregoing clauses (i) through (iii), only to the extent that
the Board of Directors of the Company shall have concluded in good faith, upon
the recommendation of the Special Committee of the Board of Directors of the
Company (the "SPECIAL COMMITTEE"), that such Acquisition Proposal, if accepted,
is reasonably likely to be consummated, taking into account all legal, financial
and regulatory aspects of the proposal and the Person or entity making the
proposal and would, if consummated, result in a transaction that is more
favorable to the stockholders of the Company (other than the C&E Shareholders)
than the transaction contemplated by this Agreement; PROVIDED, FURTHER, that the
Board of Directors of the Company shall not take any of the foregoing actions
referred to in clauses (i) through (iii) until after giving 72 hours' notice to
Parent with respect to its intent to take such action and informing Parent of
the terms and conditions of such proposal and the identity of the Person making
it and providing Parent with a copy of any such proposal in writing. The Company
shall, at all times, promptly inform Parent of the status and terms of any
discussions regarding any Acquisition Proposal with any other Person.
6.5 MEETING OF STOCKHOLDERS. The Company shall take all action
necessary in accordance with applicable law and its certificate of incorporation
and by-laws, including the timely mailing of the Proxy Statement, to convene the
Special Meeting as promptly as practicable to consider and vote upon the
approval and adoption of this Agreement and the approval of the Amendment. The
Board of Directors of the Company shall recommend such
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approval, shall not withdraw or modify such recommendation and shall take all
lawful action to solicit such approval; PROVIDED that the Board of Directors of
the Company may fail to make or withdraw or modify such recommendation, but only
to the extent that the Board of Directors of the Company, upon the
recommendation of the Special Committee, shall have concluded in good faith
after consultation with outside counsel that such action is required to prevent
the Board of Directors of the Company from breaching its fiduciary duties to the
stockholders of the Company under applicable law (including but not limited to
the circumstances contemplated by the proviso of Section 6.4). Without limiting
the generality of the foregoing, in the event that the Board of Directors of the
Company withdraws or modifies its recommendation, the Company nonetheless shall
cause the Special Meeting to be convened and a vote taken with respect to this
Agreement, the Merger and the Amendment.
6.6 PROXY STATEMENT.
(a) Parent and the Company shall cooperate and prepare, and the Company
shall file with the SEC as soon as practicable, a proxy statement with respect
to the Special Meeting of the Stockholders in connection with the Merger (the
"PROXY STATEMENT"), respond to comments of the staff of the SEC, clear the Proxy
Statement with the staff of the SEC and promptly thereafter mail the Proxy
Statement to all holders of record of Company Common Stock. The Company shall
comply in all respect with the requirements of the Exchange Act and the
Securities Act and the rules and regulations of the SEC thereunder applicable to
the Proxy Statement and the solicitation of proxies for the Special Meeting
(including any requirement to amend or supplement the Proxy Statement) and each
party shall furnish to the other such information relating to it and its
Affiliates and the transactions contemplated by this Agreement and such further
and supplemental information as may be reasonably requested by the other party.
The Proxy Statement shall include the recommendation of the Company's Board of
Directors in favor of the Merger, unless otherwise required by the fiduciary
duties of the directors under applicable law as contemplated hereby.
(b) No amendment or supplement to the Proxy Statement shall be made by
the Company without the approval of Parent which approval shall not be
unreasonably withheld or delayed. The Company shall advise Parent of any
comments (whether written or oral) and any requests by the SEC relating to the
Proxy Statement, including any requests for additional information or for the
amendment of such statement. In addition, the Company shall furnish Parent with
any written comments and summaries of oral comments of the SEC relating to the
Proxy Statement and all requests by the SEC for additional information or the
amendment of such statement, and shall, prior to furnishing to the SEC any
responses to such comments or requests, consult with Parent and its advisors.
6.7 DIRECTOR AND OFFICER LIABILITY.
(a) For a period of six years after the Effective Time, the
Surviving Corporation and the Parent shall jointly and severally indemnify and
hold harmless the present and former officers and directors of the Company in
respect of acts or omissions occurring prior to the Effective Time to the extent
provided under the Company's certificate of incorporation and by-laws in effect
on the date hereof; PROVIDED that such indemnification shall be subject to any
limitation imposed from time to time under applicable law. To the maximum extent
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permitted by the DGCL, such indemnification shall be mandatory rather than
permissive and the Surviving Corporation shall advance expenses in connection
with such indemnification. The by-laws of the Surviving Corporation shall
contain provisions substantially similar in terms of the rights granted to the
provisions with respect to indemnification and insurance set forth in the
Company's certificate of incorporation, which provisions shall not be amended in
any manner that would adversely affect the rights under those by-laws of the
Company's employees, agents, directors or officers for acts or omissions on or
prior to the Effective Time, except if such amendment is required by law. For a
period of six years after the Effective Time, Parent will cause the Surviving
Corporation to use its reasonable best efforts to provide officers' and
directors' liability insurance in respect of acts or omissions occurring prior
to the Effective Time covering each such Person currently covered by the
Company's officers' and directors' liability insurance policy on terms with
respect to coverage and amount no less favorable than those of such policy in
effect on the date hereof, PROVIDED that in satisfying its obligation under this
Section 6.7, the Surviving Corporation shall not be required to pay premiums in
excess of 125% of the amount per annum the Company paid in its last full fiscal
year.
(b) In furtherance of and not in limitation of the preceding
paragraph, the officers and directors of the Company that are defendants in all
litigation commenced by stockholders of the Company with respect to (x) the
performance of their duties as such officers and/or directors under federal or
state law (including litigation under federal and state securities laws) and (y)
the Merger, including, without limitation, any and all such litigation commenced
on or after the date of this Agreement (the "SUBJECT LITIGATION") shall be
entitled to be represented, at the reasonable expense of the Company or the
Surviving Corporation, in the Subject Litigation by one counsel (and Delaware
counsel if appropriate and one local counsel in each jurisdiction in which a
case is pending) each of which such counsel shall be selected by a plurality of
such director defendants; PROVIDED that Company or the Surviving Corporation
shall not be liable for any settlement effected without its prior written
consent (which consent shall not be unreasonably withheld) and that a condition
to the indemnification payments provided in Section 6.8(a) shall be that such
officer/director defendant not have settled any Subject Litigation without the
consent of the Company or the Surviving Corporation (such consent not to be
unreasonably withheld) and, prior to the Closing, Parent; and PROVIDED FURTHER
that neither the Company nor the Surviving Corporation shall have any obligation
hereunder to any officer/director defendant when and if a court of competent
jurisdiction shall ultimately determine, and such determination shall have
become final and non-appealable, that indemnification of such officer/director
defendant in the manner contemplated hereby is prohibited by applicable law.
(c) In the event the Surviving Corporation or any of its
successors or assigns (i) consolidates with or merges into any other Person and
shall not be the continuing or surviving corporation or entity of such
consolidation or merger or (ii) transfers all or substantially all of its
properties and assets to any Person, then, and in each such case, proper
provisions shall be made so that the successors and assigns of the Surviving
Corporation shall assume its obligations set forth in this Section 6.8.
6.8 NOTICES OF CERTAIN EVENTS. Each of the Company and Parent shall
promptly notify the other party of:
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(a) any notice or other communication from any Person alleging that the
consent of such Person is or may be required in connection with the transactions
contemplated by this Agreement;
(b) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions contemplated
by this Agreement; and
(c) with respect to the Company, any Actions commenced or, to the best
of its knowledge, threatened against, relating to or involving or otherwise
affecting the Company or any Subsidiary which, if pending on the date of this
Agreement, would have been required to have been disclosed pursuant to Section
4.12 or which relate to the consummation of the transactions contemplated by
this Agreement.
6.9 FURTHER ASSURANCES. At and after the Effective Time, the officers
and directors of the Surviving Corporation will be authorized to execute and
deliver, in the name and on behalf of the Company or Sub, any deeds, bills of
sale, assignments or assurances and to take and do, in the name and on behalf of
the Company or Sub, any other actions and things to vest, perfect or confirm of
record or otherwise in the Surviving Corporation any and all right, title and
interest in, to and under any of the rights, properties or assets of the Company
acquired or to be acquired by the Surviving Corporation as a result of, or in
connection with, the Merger.
6.10 CASH CONTRIBUTION. Prior to the Effective Time, Parent will make a
cash equity contribution to Sub in the amount of $117.5 million (the "CASH
CONTRIBUTION AMOUNT") and Parent will ensure that Sub will have no outstanding
liabilities as of the Effective Time and no Assets other than the Cash
Contribution Amount. Prior to the Effective Time, the Company will take such
actions as are required to have sufficient funds available (including through
borrowings of up to $65 million under existing credit facilities or credit
facilities entered into with the approval of Parent) to permit, taking into
account the Cash Contribution Amount, the Company to perform its obligations
under Section 3.4(a).
ARTICLE VII.
CONDITIONS TO THE MERGER
7.1 CONDITIONS TO THE OBLIGATIONS OF EACH PARTY. The obligations of the
Company, on the one hand, and Parent and Sub on the other hand, to consummate
the transactions contemplated hereby on the Closing Date are subject to the
satisfaction, on or prior to the Closing Date, of each of the following
conditions:
(a) The Requisite Stockholder Approval shall have been obtained;
(b) The Amendment shall have been filed with the Delaware Secretary of
State;
(c) All consents, approvals and licenses of any governmental or other
regulatory body required in connection with the execution, delivery and
performance of this Agreement, and for the Surviving Corporation to conduct the
business of the Company in substantially the manner now conducted, shall have
been obtained, unless the failure to obtain such consents, authorizations,
orders or approvals would not, individually or in the aggregate, have a Material
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Adverse Effect on the Company after giving effect to the transactions
contemplated by this Agreement;
(d) Any applicable waiting period under the HSR Act relating to the
Merger shall have expired or been terminated; and
(e) No provision of any applicable law or regulation and no judgment,
order, decree or injunction shall prohibit or restrain the consummation of the
Merger or make such consummation illegal.
7.2 CONDITIONS TO THE OBLIGATIONS OF THE COMPANY. The obligations of
the Company to consummate the transactions contemplated hereby on the Closing
Date are subject, in the sole discretion of the Company, to the satisfaction, on
or prior to the Closing Date, of the following additional conditions, which may
be waived by the Company in accordance with Section 8.4: (a) all representations
and warranties of Parent and Sub contained in this Agreement shall be true and
correct in all material respects at and as of the Closing Date, as if such
representations and warranties were made at and as of the Closing Date (except
to the extent that any such representations and warranties were made as of a
specified date, which representations and warranties shall continue on the
Closing Date to be true as of such specified date), (b) Parent and Sub shall
each have performed in all material respects all obligations arising under the
agreements and covenants required hereby to be performed by it prior to or on
the Closing Date, (c) Parent shall have performed its obligations under the
Stock Purchase Agreement and (d) the Company shall have received, at or prior to
the Closing, a certificate executed by the President of each of Parent and Sub
certifying that, as of the Closing Date, the conditions set forth in Section
7.2(a), (b) and (c) have been satisfied.
7.3 CONDITIONS TO THE OBLIGATIONS OF PARENT AND SUB. The obligations of
Parent and Sub to consummate the transactions contemplated hereby on the Closing
Date are subject, in the sole discretion of Parent, to the satisfaction, on or
prior to the Closing Date, of each of the following additional conditions, any
of which may be waived by Parent in accordance with Section 8.4:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS.
(i) All representations and warranties of the Company
contained in this Agreement shall be true and correct at and as of the Closing
Date as if such representations and warranties were made at and as of the
Closing Date (except to the extent that any such representations and warranties
were made as of a specified date, such representations and warranties shall
continue on the Closing Date to have been true in all material respects as of
such specified date), except where the untruth or incorrectness of such
representations and warranties would not, singly or in the aggregate, have a
Material Adverse Effect on the Company. For purposes of this Section 7.3(a)(i),
the representations and warranties of the Company contained in this Agreement
shall be deemed to have been made without any qualification as to knowledge or
materiality and, accordingly, all references in such representations and
warranties to "material," "Material Adverse Effect," "in all material respects,"
"Material Adverse Change," "knowledge" and similar terms and phrases (including,
without limitation, references to the dollar thresholds therein) shall be deemed
to be deleted therefrom, PROVIDED that the foregoing
35
<PAGE>
clause shall not apply solely for the purpose of determining the truth and
correctness of the lists set forth in certain informational representations and
warranties that require disclosure of lists of items of a material nature or
above a specified threshold.
(ii) The Company shall have performed in all material respects
all obligations arising under the agreements and covenants required hereby to be
performed by it prior to or on the Closing Date.
(iii) The C&E Stockholders shall have performed their
obligations under the Stock Purchase Agreement and shall have performed any
obligations under the Shareholders' Agreement required to be performed on the
Closing Date.
(iv) Sub shall have received, at or prior to the Closing, a
certificate executed by the President and the Chief Financial Officer of the
Company certifying that, as of the Closing Date, the conditions set forth in
Sections 7.3(a) and (b) have been satisfied.
(b) The Company shall have received, and provided Parent with copies
of, the resignations of certain directors, and the Board of Directors shall have
elected certain persons designated by Parent (and Parent shall have been
provided with resolutions confirming such election), such that at the Effective
Time, the Board of Directors of the Company shall consist of the directors
identified in Schedule II to the Shareholders' Agreement.
ARTICLE VIII.
MISCELLANEOUS
8.1 TERMINATION.
(a) TERMINATION. This Agreement may be terminated prior to the
Effective Time as follows (notwithstanding any adoption of this Agreement by the
stockholders of the Company):
(i) by mutual written consent of Parent and the Company at any
time;
(ii) by Parent or the Company if the Closing shall not have
occurred on or before December 31, 2000, provided that the party seeking to
exercise such right is not then in breach in any material respect of any of its
obligations under this Agreement;
(iii) by either the Company or Parent, if there shall be any
law or regulation that makes consummation of the Merger illegal or otherwise
prohibited or if any judgment, injunction, order or decree enjoining Sub or the
Company from consummating the Merger is entered and such judgment, injunction,
order or decree shall become final and non-appealable; or
(iv) by either the Company or Parent if, at the Special
Meeting the Required Stockholder Approval shall not have been obtained.
The party desiring to terminate this Agreement pursuant to
Sections 8.1(a)(ii)-(iv) shall give written notice of such termination to the
other party in accordance with Section 8.3.
36
<PAGE>
(b) EFFECT OF TERMINATION. If this Agreement is terminated pursuant to
Section 8.1, this Agreement shall become void and of no effect with no liability
on the part of any party hereto or such party's officers, directors, employees
or representatives, except (i) that the agreements contained in Sections 6.2,
8.8 and 8.13 hereof shall survive the termination hereof and (ii) nothing herein
shall relieve any party from liability for any breach of this Agreement.
(c) PROCEDURE UPON TERMINATION. In the event of termination of this
Agreement pursuant to Section 8.1:
(i) Each party shall redeliver all documents, work papers and
other material of any other party and any and all copies thereof relating to the
transactions contemplated hereby, whether obtained before or after the execution
hereof, to the party furnishing the same;
(ii) No confidential information received by any party with
respect to the business of any other party or its Affiliates shall be disclosed
to any third party, unless required by law; and
(iii) The Confidentiality Letter shall survive in accordance
with its terms.
8.2 ASSIGNMENT. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned, in whole or in part, by operation of law
or otherwise by any party without the prior written consent of all other parties
to this Agreement, PROVIDED that the Parent shall be entitled to assign its
rights and obligations under this Agreement to any Subsidiary of Parent,
PROVIDED FURTHER that in such event Parent remains liable for all of the
obligations of such Subsidiary hereunder. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, and, with respect to the provisions
of Article III and Section 6.7 hereof, shall inure to the benefit of the persons
or entities benefiting from the provisions thereof who are intended to be
third-party beneficiaries thereof, and no other Person shall have any right,
benefit or obligation hereunder.
8.3 NOTICES. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when received, if personally delivered;
when transmitted, if transmitted by telecopy, upon receipt of telephonic or
electronic confirmation; the day after it is sent, if sent for next day delivery
to a domestic address by recognized overnight delivery service (e.g., Federal
Express); and upon receipt, if sent by certified or registered mail, return
receipt requested. In each case notice shall be sent to:
If to the Company, addressed to:
General Cigar Holdings, Inc.
387 Park Avenue South
New York, New York 10016
Attention: Chief Executive Officer
Telecopy: (212) 561-8791
37
<PAGE>
With a copy to:
Latham & Watkins
885 Third Avenue
Suite 1000
New York, NY 10022
Attention: R. Ronald Hopkinson, Esq.
Telecopy: (212) 751-4864
and
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
Attention: Elliott Stein, Esq.
Telecopy: (212) 403-2000
If to Parent or Sub, addressed to:
Swedish Match AB
SE - 118 85 Stockholm
Sweden
Attention: Senior Vice President and Legal Counsel
Telecopy: (46-8) 720-7656
With a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, NY 10022
Attention: Paul S. Bird, Esq.
Telecopy: (212) 909-6836
or to such other place and with such other copies as either party may designate
as to itself by written notice to the others.
8.4 ENTIRE AGREEMENT; WAIVERS. This Agreement, together with all
exhibits and schedules hereto (including, without limitation, the Disclosure
Schedule), and the other agreements referred to herein, constitute the entire
agreement among the parties pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar), nor shall such waiver constitute a
continuing waiver unless otherwise expressly provided. The Confidentiality
Letter shall terminate at the Effective Time.
8.5 MULTIPLE COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
38
<PAGE>
8.6 INVALIDITY. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, then to the maximum extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other such instrument.
8.7 TITLES. The titles, captions or headings of the Articles and
Sections herein are inserted for convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
8.8 FEES AND EXPENSES. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
Transfer taxes, sales taxes, stamp taxes and other similar taxes (including real
property transfer taxes) directly or indirectly incurred as a result of the
transactions contemplated by this Agreement, including such taxes that would not
have been imposed but for such transactions, shall be paid by the Company.
8.9 CUMULATIVE REMEDIES. All rights and remedies of either party hereto
are cumulative of each other and of every other right or remedy such party may
otherwise have at law or in equity, and the exercise of one or more rights or
remedies shall not prejudice or impair the concurrent or subsequent exercise of
other rights or remedies.
8.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF THE LAWS
THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
8.11 AMENDMENT. This Agreement may be amended by the parties hereto at
any time by action of their respective boards of directors (provided that such
action by the Company shall also require approval by the Special Committee)
before or after approval of matters presented in connection with the Merger by
the stockholders of the Company, but after any such stockholder approval, no
amendment shall be made which by law requires the further approval of
stockholders without obtaining such further approval. This Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties hereto shall terminate at the Effective Time.
8.12 PUBLIC ANNOUNCEMENTS. Neither Parent or Sub, on the one hand, nor
the Company, on the other hand, will issue any press release or public statement
with respect to the transactions contemplated by this Agreement, including the
Merger, without the other party's prior consent (such consent not to be
unreasonably withheld or delayed), except as may be required by applicable law,
court process or the listing requirements of NYSE. In addition to the foregoing,
Parent and Sub and the Company will consult with each other before issuing, and
provide each other the opportunity to review and comment upon, any such press
release or other public statements with respect to such transactions. The
parties agree that the initial press release or releases to be issued with
respect to the transactions contemplated by this Agreement shall be mutually
agreed upon prior to the issuance thereof.
39
<PAGE>
8.13 ENFORCEMENT OF AGREEMENT. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof, this being in addition to
any other remedy to which they are entitled at law or in equity.
8.14 NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES. The representations
and warranties in this Agreement or in any instrument delivered pursuant to this
Agreement shall terminate at the Effective Time.
8.15 INTERPRETIVE PROVISIONS.
(a) The words "hereof," "herein," "hereby" and "hereunder" and words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision hereof.
[Signature Page Follows]
40
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement and Plan of Merger to be duly executed on their respective behalf, by
their respective officers thereunto duly authorized, all as of the day and year
first above written.
GENERAL CIGAR HOLDINGS, INC.
By: /s/ Edgar M. Coleman, Jr.
----------------------------
Name:
Title:
SWEDISH MATCH AB
By: /s/ Massimo Rossi
----------------------------
Name:
Title:
SM MERGER CORPORATION
By: Massimo Rossi
----------------------------
Name:
Title:
<PAGE>
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
GENERAL CIGAR HOLDINGS, INC.
GENERAL CIGAR HOLDINGS, INC., a corporation duly organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
does hereby certify that:
1. The Amended and Restated Certificate of Incorporation of the
Corporation is hereby amended by deleting Subsection (b)(4) of Article Fourth
thereof and inserting the following in lieu thereof:
"In the event of any corporate merger, consolidation, purchase or
acquisition of property or stock, or other reorganization other than the merger
contemplated by the Merger Agreement dated January 19, 2000 by and among GENERAL
CIGAR HOLDINGS, INC., SWEDISH MATCH AB and SM MERGER CORPORATION, as such may be
amended from time to time, in which any consideration is to be received by the
holders of shares of Class A Common Stock or the holders of shares of Class B
Common Stock, the holders of shares of Class A Common Stock and the holders of
shares of Class B Common Stock shall receive the same consideration on a per
share basis; provided that, if such consideration consists in any part of voting
securities (or of options or warrants to purchase or of securities convertible
into or exchangeable for, voting securities), the holders of shares of Class B
Common Stock may receive, on a per share basis, voting securities with ten (10)
times the number of votes per share as those voting securities to be received by
the holders of shares of Class A Common Stock (or options or warrants to
purchase, or securities convertible into or exchangeable for, voting securities
with ten (10) times the number of votes per share as those voting securities
issuable upon exercise of the options or warrants to be received by the holders
of the shares of Class A Common Stock, or into which the convertible or
exchangeable securities to be received by the holders of the shares of Class A
Common Stock may be converted or exchanged)."
2. The foregoing amendment was duly adopted in accordance with the
provisions of Sections 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, GENERAL CIGAR HOLDINGS, INC. has caused this
Certificate to be executed by [NAME], its [OFFICE], on this __st day of
__________, ____.
GENERAL CIGAR HOLDINGS, INC.
By:
----------------------------
Name:
Office
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
EXHIBIT B
SHAREHOLDERS' AGREEMENT
among
Swedish Match AB,
the Persons listed on the signature pages hereof,
and
General Cigar Holdings, Inc.
Dated as of January 19, 2000
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINITIONS..................................................................2
ARTICLE II
REPRESENTATIONS AND WARRANTIES...............................................8
Section 2.1. Representations and Warranties of each C&E Shareholder.......8
Section 2.2. Representations and Warranties of Swedish Match.............10
ARTICLE III
CORPORATE GOVERNANCE AND MANAGEMENT.........................................10
Section 3.1. Composition of the Board....................................10
Section 3.2. Removal of Directors........................................11
Section 3.3. Vacancies...................................................11
Section 3.4. Meetings of the Board.......................................12
Section 3.5. Action by the Board.........................................12
Section 3.6. Executive Officers..........................................16
Section 3.7. Conflicting Charter or Bylaw Provision......................17
ARTICLE IV
RESTRICTIONS ON TRANSFER....................................................17
Section 4.1. General.....................................................17
Section 4.2. Transfers to Permitted Transferees..........................17
Section 4.3. Put Right of C&E Shareholders...............................17
Section 4.4. Call Right of Swedish Match.................................19
Section 4.5. Designated Purchaser........................................22
Section 4.6. Disagreement over Put Price or Call Price...................22
Section 4.7. Legend......................................................23
ARTICLE V
OTHER COVENANTS AND AGREEMENTS..............................................23
Section 5.1. C&E Representative..........................................23
Section 5.2. Confidentiality.............................................24
Section 5.3. Financial Information and Other Reports.....................25
Section 5.4. Trust and Security Agreement................................26
Section 5.5. Non-Competition; Non-Solicitation...........................27
Section 5.6. Further Assurances..........................................28
</TABLE>
<PAGE>
<TABLE>
<S> <C>
ARTICLE VI
MISCELLANEOUS...............................................................28
Section 6.1. Effectiveness; Termination..................................28
Section 6.2. Governing Law...............................................28
Section 6.3. Jurisdiction; Waiver of Jury Trial..........................28
Section 6.4. Amendment, Waivers, etc.....................................29
Section 6.5. Assignment; No Third Party Beneficiaries....................29
Section 6.6. Notices.....................................................30
Section 6.7. Remedies....................................................31
Section 6.8. Specific Performance........................................31
Section 6.9. Severability................................................31
Section 6.10. Integration.................................................31
Section 6.11. Section Headings............................................31
Section 6.12. Counterparts................................................32
Section 6.13. Indemnity...................................................32
</TABLE>
Schedule I: C&E Shareholders
Schedule II: Initial Directors
Exhibit A: Terms of Company Retention and Incentive Plan
<PAGE>
SHAREHOLDERS' AGREEMENT
SHAREHOLDERS' AGREEMENT, dated as of January 19, 2000, among Swedish
Match AB, a company organized under the laws of Sweden ("SWEDISH MATCH"), the
Persons listed on the signature pages hereof (the "C&E SHAREHOLDERS"), and
General Cigar Holdings, Inc., a company organized under the laws of the State of
Delaware (the "COMPANY").
RECITALS
A. Concurrently with the execution and delivery of this Agreement, the
Company, Swedish Match and SM Merger Corporation, a company organized under the
laws of the State of Delaware ("SM ACQUISITION"), are entering into an Agreement
and Plan of Merger, dated as of the date hereof (as the same may from time to
time be modified, supplemented or restated, the "MERGER AGREEMENT"), providing
for the merger of SM Acquisition with and into the Company (the "MERGER") upon
the terms and subject to the conditions set forth therein.
B. Currently with the execution and delivery of this Agreement, (I) the
C&E Shareholders and Swedish Match are entering into a Stock Purchase Agreement,
dated as of the date hereof (as the same may from time to time be modified,
supplemented or restated, the "STOCK PURCHASE AGREEMENT"), providing for the
sale by the C&E Shareholders to Swedish Match of an aggregate of 3,500,000
shares of common stock of the Company upon the terms and subject to the
conditions set forth therein, and (II) the C&E Shareholders and Swedish Match
are entering into a C&E Voting Agreement, dated as of the date hereof (as the
same may from time to time be modified, supplemented or restated, the "C&E
VOTING AGREEMENT"), providing for the voting of shares of the Company by the C&E
Shareholders in favor of the adoption of the Merger Agreement and certain other
matters.
C. Following the Merger, (I) Swedish Match, directly or through a
subsidiary, will own, beneficially and of record, 63.52% of the then outstanding
shares of the common stock, par value $0.01 per share (the "COMMON STOCK"), of
the Company and (II) the C&E Shareholders will own, beneficially and of record,
in the aggregate, 36.48% of the then outstanding shares of Common Stock.
D. The parties hereto desire to enter into this Agreement to govern
certain of their rights, duties and obligations relating to their ownership of
stock of the Company
<PAGE>
following the Merger. The parties understand and acknowledge that, except for
Article II, this Agreement shall be effective, and the rights and obligations of
the parties under this Agreement shall commence, as of the Effective Time.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following terms, as used in this Agreement, have the following
meanings:
"ADJUSTED EBITDA" means, for any period, consolidated net income
of the Company for such period, minus (I) net extraordinary or non-recurring or
unusual gains of the Company for such period, plus, without duplication, (II) to
the extent deducted in calculating such consolidated net income, net
extraordinary or non-recurring or unusual losses, net consolidated income tax
expense, net consolidated interest expense, and consolidated depreciation and
amortization expense of the Company for such period, in each case determined in
accordance with GAAP consistently applied; PROVIDED that (A) if, since the
beginning of such period, the Company or any Subsidiary has made a disposition
or acquisition not in the ordinary course of business or undertaken any other
material transaction not in the ordinary course of business, Adjusted EBITDA
shall be calculated after giving pro forma effect to such disposition,
acquisition or other material transaction as if such disposition, acquisition or
other material transaction had taken place on the first day of such period, and
(B) no gain or loss arising, resulting from or related to any investment in or
disposition of bonds issued by the Russian Federation and currently held by the
Company shall be included in the calculation of Adjusted EBITDA.
"AFFILIATE" means, with respect to any Person, (I) any other
Person directly or indirectly controlling, controlled by or under common control
with, such Person, and (II) if a C&E Shareholder, any Permitted Transferee of
such C&E Shareholder. Control of any Person shall consist of the power to direct
the management and policies of such Person (whether through the ownership of
voting securities, by contract, as trustee or executor or otherwise) and shall
be deemed to exist upon the ownership of securities entitling the holder thereof
to exercise more than 50% of the voting power in the election of directors of
such Person (or other persons or body performing similar functions). For
purposes of this Agreement, neither Swedish Match nor any C&E Shareholder shall
constitute an Affiliate of the Company.
"AFFILIATE AGREEMENT" means any agreement, commitment,
understanding or
2
<PAGE>
arrangement between the Company or any Subsidiary, on the one hand, and any
Shareholder or any Affiliate of a Shareholder, on the other hand.
"ANNUAL STATEMENT" has the meaning given in Section 5.3(a).
"ARBITRATOR" has the meaning given in Section 4.6(a).
"AVERAGE ADJUSTED EBITDA" means, as of any date of determination,
(I) the aggregate amount of Adjusted EBITDA for the most recent consecutive
eight-quarter period ending prior to the date of determination for which Annual
Statements or SemiAnnual Statements, as the case may be, are available for the
fiscal year or six-month period ending on the last day of such eight-quarter
period, divided by (II) 2.0.
"BOARD" means the board of directors of the Company immediately
following the Effective Time and at all times thereafter.
"C&E REPRESENTATIVE" has the meaning given in Section 5.1.
"C&E SHARES" means the shares of Common Stock owned from time to
time by the C&E Shareholders.
"C&E SHAREHOLDER" has the meaning given in the Introduction and
includes any Permitted Transferee of a C&E Shareholder that acquires Equity
Securities in accordance with this Agreement.
"C&E VOTING AGREEMENT" has the meaning given in Recital B.
"CALL FORMULA" means, with respect to the exercise of any Call
Right, (I) the Average Adjusted EBITDA for the most recent eight-quarter period
ending prior to the exercise of such Call Right multiplied by 10.0, plus (II)
the amount of cash and cash equivalents of the Company and its Subsidiaries on a
consolidated basis as of the last day of such eight-quarter period, determined
in accordance with GAAP consistently applied, minus (III) Total Debt as of the
last day of such eight-quarter period.
"CALL NOTICE" has the meaning given in Section 4.4(a).
"CALL PRICE" has the meaning given in Section 4.4(c).
"CALL RIGHT" has the meaning given in Section 4.4(a).
"COMMENCEMENT DATE" means (I) June 1, 2000, if the Effective
Time occurs
3
<PAGE>
on or prior to such date, (II) December 1, 2000, if the Effective Time occurs on
or prior to such date but after June 1, 2000, and (III) June 1, 2001, if the
Effective Time occurs after December 1, 2000.
"COMMON STOCK" has the meaning given in Recital C, and includes
any stock having ordinary power to vote for election of Directors into which
such common stock may thereafter be converted or exchanged.
"COMPANY" has the meaning given in the Introduction and includes
any successor thereto, whether by merger, consolidation or otherwise.
"DIRECTOR" means a member of the Board.
"EFFECTIVE TIME" means the effective time of the Merger.
"EQUITY SECURITIES" means (i) shares of capital stock, whether
common or preferred, of the Company, (ii) options, warrants or other rights to
acquire shares of capital stock, whether common or preferred, of the Company,
and (iii) any other securities or instruments convertible or exchangeable into
shares of capital stock, whether common or preferred, of the Company.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXECUTIVE OFFICER" means Chairman of the Board and the Chief
Executive Officer of the Company.
"EXERCISE PERIOD" means any Year 4 Exercise Period, Year 5
Exercise Period or Year 6 Exercise Period. For avoidance of doubt, it is agreed
and acknowledged that each Exercise Period shall begin and end at exactly the
same time for both the Put Right and the Call Right.
"FUNDAMENTAL ACTION" has the meaning given in Section 3.5(b).
"GAAP" means the accounting principles and practices generally
accepted from time to time in the United States.
"INITIAL C&E SHARES" means 6,435,152 shares of Common Stock
(representing the number of C&E Shares immediately following the Effective
Time), adjusted for any stock split, stock dividend, reclassification, reverse
stock split or similar event.
4
<PAGE>
"INITIAL CREDIT FACILITY" means the credit or loan agreement to be
entered into by the Company prior to the Merger, as agreed upon by the C&E
Representative and Swedish Match.
"INITIAL INCENTIVE PLAN" means the Company Retention and Incentive
Plan for the benefit of the employees of the Company having the terms set forth
on Exhibit A and such other terms agreed upon prior to the Merger by the
Company, Swedish Match and the C&E Representative.
"LIEN" means any mortgage, lien, pledge, charge, encumbrance,
security interest or other adverse claim.
"MERGER" has the meaning given in Recital A.
"MERGER AGREEMENT" has the meaning given in Recital A.
"PERMITTED TRANSFEREE" means (i) in the case of Swedish Match, any
Affiliate of Swedish Match, and (ii) in the case of a C&E Shareholder, (A) any
other C&E Shareholder, (B) a spouse or lineal descendant (whether natural or
adopted), sibling, parent, heir, executor, administrator, testamentary trustee,
lifetime trustee or legatee of such C&E Shareholder, (C) any charitable
organization described in Section 170(c) of the U.S. Internal Revenue Code of
1986, as amended, (D) any trust, the trustees of which include only the Persons
named in clause (A) or (B) and the beneficiaries of which include only the
Persons named in clause (A), (B) or (C), (E) any corporation, limited liability
company or partnership, the stockholders, members or general or limited partners
of which include only the Persons named in clause (A) or (B), or (F) if such C&E
Shareholder is a trust, the beneficiary or beneficiaries authorized or entitled
to receive distributions from such trust.
"PERSON" means an individual, corporation, limited liability
company, partnership, trust or other entity, including a governmental or
political subdivision or an agency or instrumentality thereof.
"PRINCIPAL C&E SHAREHOLDER" means each of Edgar M. Cullman, Sr.
and Edgar M. Cullman, Jr.
"PRO RATA CALL AMOUNT" means, with respect to any C&E Shareholder,
at any time, the number of C&E Shares owned beneficially by such C&E Shareholder
at such time multiplied by a fraction, (i) the numerator of which is the number
of C&E Shares owned by such C&E Shareholder at such time and the (ii)
denominator of which is the total number of C&E Shares outstanding at such time.
5
<PAGE>
"PRO RATA PUT AMOUNT" means, with respect to any C&E Shareholder
who has given notice of the exercise of a Put Right to the C&E Representative
pursuant to Section 5.1(b) (the "EXERCISING C&E SHAREHOLDER"), the number of C&E
Shares that such Exercising C&E Shareholder desires to sell during such Exercise
Period multiplied by a fraction, (i) the numerator of which is the number of C&E
Shares that such Exercising C&E Shareholder desires to sell during such Exercise
Period and (ii) the denominator of which is the total number of C&E Shares that
all C&E Shareholders desire to sell by the exercise of the Put Right during such
Exercise Period.
"PUT FORMULA" means, with respect to the exercise of any Put
Right, (i) the Average Adjusted EBITDA for the most recent eight-quarter ending
period prior to the exercise of such Put Right multiplied by 9.0, plus (ii) the
amount of cash and cash equivalents of the Company and its Subsidiaries on a
consolidated basis as of the last day of such eight-quarter period, determined
in accordance with GAAP consistently applied, minus (iii) Total Debt as of the
last day of such eight-quarter period.
"PUT NOTICE" has the meaning given in Section 4.3(a).
"PUT PRICE" has the meaning given in Section 4.3(c).
"PUT RIGHT" has the meaning given in Section 4.3(a).
"RESTRICTED PERIOD" means, with respect to either Principal C&E
Shareholder, the period beginning on the Effective Time and ending on the
earlier of (i) the third anniversary of the termination of employment of such
Principal C&E Shareholder with the Company and (ii) the fifth anniversary of the
sale of all of the C&E Shares of such Principal C&E Shareholder pursuant to this
Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITY AGREEMENT" has the meaning given in Section 5.4.
"SEMI-ANNUAL STATEMENT" has the meaning given in Section 5.3(a).
"SHAREHOLDER" means Swedish Match, any C&E Shareholder and each
Person (other than the Company and its subsidiaries) who is or shall become a
party to this Agreement, whether as an original party to this Agreement as of
the date hereof, pursuant to Section 4.2 or otherwise. A Person shall cease to
be a Shareholder when such Person ceases to own, beneficially or of record, any
Equity Securities; PROVIDED that so long as a Permitted Transferee of Swedish
Match owns, beneficially or of record, any Equity Securities, Swedish Match
shall be a Shareholder for all purposes of this Agreement.
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"SM ACQUISITION" has the meaning given in Recital A.
"SM OFFICER" has the meaning given in Section 3.6(b).
"STOCK PURCHASE AGREEMENT" has the meaning given in Recital B.
"SUBSIDIARY" means any corporation, limited liability company,
partnership or other entity of which the stock or membership, general or limited
partnership or other ownership interests having ordinary power to elect a
majority of the board of directors (or other persons or bodies performing
similar functions) are directly or indirectly owned by the Company.
"SWEDISH MATCH" has the meaning given in the Introduction and
includes any Permitted Transferee of Swedish Match that acquires Equity
Securities in accordance with this Agreement.
"TOTAL DEBT" means, as of any date of determination, the total
consolidated Indebtedness of the Company and its Subsidiaries as of such date,
determined in accordance with GAAP consistently applied. For avoidance of doubt,
it is stipulated that Indebtedness of the Company or its Subsidiaries to Swedish
Match or its Affiliates shall be included in the calculation of Total Debt.
"INDEBTEDNESS" means (i) obligations for borrowed money, (ii) obligations
evidenced by bonds, debentures, notes or other similar instruments, (iii)
reimbursement obligations with respect to letters of credit, bankers'
acceptances or similar facilities (other than reclamation bonds, surety bonds,
performance bonds and letters of credit required by statutes, governmental
authorities, customers or suppliers and issued in the ordinary course of
business), (iv) obligations issued or assumed as deferred purchase price of
property or services or conditional sales obligations (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), and (v) liabilities in respect of capital
or financing leases that would be required to be capitalized on a balance sheet,
in each case determined in accordance with GAAP consistently applied.
"TRANSFER" has the meaning given in Section 4.1(a).
"TRIGGER EVENT" means the purchase by Swedish Match or its
designee of C&E Shares pursuant to the exercise of a Put Right resulting in the
C&E Shareholders owning, in the aggregate, one-third or less of the Initial C&E
Shares.
"YEAR 4" means the twelve-month period beginning on the third
anniversary of the Commencement Date and ending on the day preceding the fourth
anniversary of the Commencement Date.
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"YEAR 4 EXERCISE PERIODS" means the 30-day periods following the
delivery of the Semi-Annual Statements for the first six months of Year 4 and
the Annual Statements for Year 4.
"YEAR 4 EXERCISED SHARES" means the C&E Shares purchased by
Swedish Match or its designees upon the exercises of Put Rights and/or the Call
Rights during the Year 4 Exercise Periods.
"YEAR 5" means the twelve-month period beginning on the fourth
anniversary of the Commencement Date and ending on the day preceding the fifth
anniversary of the Commencement Date.
"YEAR 5 EXERCISE PERIODS" means the 30-day periods following the
delivery of the Semi-Annual Statements for the first six months of Year 5 and
the Annual Statements for Year 5.
"YEAR 5 EXERCISED SHARES" means the C&E Shares purchased by
Swedish Match or its designees upon the exercises of Put Rights and/or Call
Right during the Year 5 Exercise Periods.
"YEAR 6" means the twelve-month period beginning on the fifth
anniversary of the Commencement Date and ending on the day preceding the sixth
anniversary of the Commencement Date.
"YEAR 6 EXERCISE PERIODS" means the 30-day periods following the
delivery of the Semi-Annual Statements for the first six months of Year 6 and
the Annual Statements for Year 6.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. REPRESENTATIONS AND WARRANTIES OF EACH C&E
SHAREHOLDER. Each C&E Shareholder, severally and not jointly, represents and
warrants to Swedish Match as follows:
(a) AUTHORITY FOR THIS AGREEMENT. Such C&E Shareholder has all
requisite power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. This Agreement has
been duly authorized, executed and delivered by such C&E Shareholder
and constitutes a valid and binding obligation of each C&E Shareholder
enforceable in accordance with its
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terms. If such C&E Shareholder is married and the C&E Shares of such
C&E Shareholder constitute community property or otherwise need spousal
or other approval for this Agreement to be legal, valid and binding
with respect to such C&E Shares, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and
binding agreement of, such C&E Shareholder's spouse, enforceable
against such spouse in accordance with its terms. If such C&E
Shareholder is a trust, no consent of any beneficiary is required for
the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby.
(b) AUTHORITY FOR SECURITY AGREEMENT. Such C&E Shareholder has all
requisite power and authority to enter into the Security Agreement and
to consummate the transactions contemplated thereby. The execution,
delivery and performance of the Security Agreement has been duly
authorized by all requisite action on the part of such C&E Shareholder.
Upon the execution and delivery of the Security Agreement by such C&E
Shareholder, the Security Agreement will constitute a valid and binding
obligation of such C&E Shareholder enforceable in accordance with its
terms. If such C&E Shareholder is married and the C&E Shares of such
C&E Shareholder constitute community property or otherwise need spousal
or other approval for the Security Agreement to be legal, valid and
binding with respect to such C&E Shares, the execution and delivery of
the Security Agreement has been duly authorized by such C&E
Shareholder's spouse, and upon its execution and delivery by such
spouse will constitute a valid and binding agreement of such spouse,
enforceable against such spouse in accordance with its terms. If such
C&E Shareholder is a trust, no consent of any beneficiary is required
for the execution and delivery of the Security Agreement or the
consummation of the transactions contemplated thereby.
(c) NO CONFLICTS. Neither the execution and delivery of this
Agreement or the Security Agreement, nor the consummation of the
transactions contemplated hereby or thereby nor compliance with the
terms hereof or thereof will violate, conflict with or result in a
breach, or constitute a default (with or without notice of lapse of
time or both) under any provision of, any trust agreement, loan or
credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise, license,
judgment, order, notice, decree, statute, law, ordinance, rule or
regulation applicable to such C&E Shareholder or to such C&E
Shareholder's property or assets.
(d) THE SUBJECT SHARES. Immediately following the Effective Time,
such C&E Shareholder will be the record and beneficial owner of, or is
trustee of a trust that is the record holder of and whose beneficiaries
are the beneficial owners
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of, and has good and marketable title to, the C&E Shares set forth
opposite such C&E Shareholder's name on Schedule I hereto (subject to
any adjustments in the number of shares to be sold by certain C&E
Shareholders pursuant to the Stock Purchase Agreement in accordance
with Section 1.1 thereof), in each case free and clear of all Liens. As
of the Effective Time such C&E Shareholder will have the sole right to
vote, or to dispose, of such C&E Shares, and none of such C&E Shares
will be subject to any agreement, arrangement or restriction with
respect to the voting of such C&E Shares, except as contemplated by
this Agreement. Except for this Agreement, the Stock Purchase
Agreement, the Security Agreement, and, if such C&E Shareholder is a
trust, in accordance with the terms of such trust, (I) there are, and
as of the Effective Time there will be, no agreements or arrangements
of any kind, contingent or otherwise, obligating such C&E Shareholder
to Transfer any of the C&E Shares, and (II) no Person has, nor as of
the Effective Time any Person will have, any contractual or other right
or obligation to purchase or otherwise acquire any of the C&E Shares of
such C&E Shareholder.
Section 2.2. REPRESENTATIONS AND WARRANTIES OF SWEDISH MATCH.
Swedish Match hereby represents and warrants to each C&E Shareholder that
Swedish Match has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by Swedish Match, and the consummation of the
transactions contemplated hereby, have been duly authorized by all necessary
corporate action on the part of Swedish Match. This Agreement has been duly
executed and delivered by Swedish Match and constitutes a valid and binding
obligation of Swedish Match enforceable in accordance with its terms. Neither
the execution and delivery of this Agreement, nor the consummation of the
transactions contemplated hereby and thereby and compliance with the terms
hereof and thereof will violate, conflict with or result in a breach, or
constitute a default (with or without notice or lapse of time or both) under any
provision of, the articles of association of Swedish Match, any trust agreement,
loan or credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise, license, judgment, order,
notice, decree, statute, law, ordinance, rule or regulation applicable to
Swedish Match or to Swedish Match's property or assets.
ARTICLE III
CORPORATE GOVERNANCE AND MANAGEMENT
Section 3.1. COMPOSITION OF THE BOARD. (a) The Board shall consist
of seven Directors. Such Directors shall be designated as follows:
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(i) Prior to the sixth anniversary of the Effective Time,
until such time as of a Trigger Event has occurred, four of the
Directors shall be nominated by the C&E Representative on behalf
of the C&E Shareholders and three of the Directors shall be
nominated by Swedish Match.
(ii) Prior to the sixth anniversary of the Effective Time,
following the occurrence of a Trigger Event, four of the Directors
shall be nominated by Swedish Match and three of the Directors
shall be nominated by the C&E Representative on behalf of the C&E
Shareholders.
(iii)After the sixth anniversary of the Effective Time, so
long as the C&E Shareholders own, in the aggregate, 15% or more of
the then outstanding shares of Common Stock, four of the Directors
shall be nominated by the C&E Representative on behalf of the C&E
Shareholders and three of the Directors shall be nominated by
Swedish Match.
(iv) After the sixth anniversary of the Effective Time, upon
the C&E Shareholders owning, in the aggregate, less than 15% of
the then outstanding shares of Common Stock, four of the Directors
shall be nominated by Swedish Match and three of the Directors
shall be nominated by the C&E Representative on behalf of the C&E
Shareholders.
(b) Each Shareholder agrees that it shall vote its shares of
Common Stock or execute consents, as the case may be, and take all
other necessary action in order to ensure that the composition of the
Board is as set forth in Section 3.1. The Board immediately after the
Effective Time shall consist of the individuals listed on Schedule II.
Section 3.2. REMOVAL OF DIRECTORS. Each Shareholder agrees that
if, at any time, it is then entitled to vote for the removal of Directors, it
will not vote any of its shares of Common Stock in favor of the removal of any
Director who shall have been designated or nominated pursuant to Section 3.1(a)
unless such Director or the Person(s) entitled to designate or nominate such
Director shall have consented to such removal in writing; PROVIDED that if the
Persons entitled to designate or nominate any Director pursuant to Section
3.1(a) shall request the removal of such Director in writing, such Shareholder
shall vote its shares of Common Stock in favor of such removal.
Section 3.3. VACANCIES. If, as a result of death, disability,
retirement, resignation, removal or otherwise, there shall exist or occur any
vacancy on the Board:
(a) the Shareholder(s) entitled under Section 3.1(a) to nominate
such Director whose death, disability, retirement, resignation or
removal resulted in
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such vacancy, may, subject to the provisions of Section 3.1(a) nominate
another individual to fill such vacancy and serve as a Director; and
(b) subject to Section 3.1(a), each Shareholder then entitled to
vote for the election of such nominee as a Director agrees that it will
vote its shares of Common Stock, or execute a written consent, as the
case may be, in order to ensure that such nominee is elected to the
Board.
Section 3.4. MEETINGS OF THE BOARD. (a) The Board shall meet at
least once in every quarter. The Chairman of the Board shall provide at least 30
calendar days' prior notice of such regular meetings of the Board (or such
shorter period consented to by all the Directors). The Chairman or any two
Directors may call a special meeting of the Board by delivery of at least ten
calendar days' prior notice to all Directors (or such shorter period consented
to by all the Directors).
(b) A quorum of the Board shall consist of at least five
Directors; PROVIDED that if all of the Directors designated by the C&E
Shareholders or Swedish Match fail to attend two consecutive Board
meetings (including an adjournment, for more than five calendar days,
of a meeting called in accordance with Section 3.4(a)), then the
presence of four Directors shall constitute a quorum of the Board.
Section 3.5. ACTION BY THE BOARD. (a) All actions of the Board shall
require the affirmative vote of at least a majority of the Directors at a duly
convened meeting of the Board at which a quorum is present or the unanimous
written consent of the Board.
(b) Notwithstanding Section 3.5(a), none of the following actions
(collectively, the "FUNDAMENTAL ACTIONS") may validly be taken by the
Company without the prior approval of at least six of the Directors at
a duly convened meeting of the Board at which a quorum is present or
the unanimous written consent of the Board, except as otherwise
provided in Section 3.5(c):
(i) the authorization, declaration or payment of any dividend
or other distribution on any Equity Security;
(ii) any recapitalization, capital increase or capital
reduction by the Company, or the issuance, sale, repurchase,
redemption or other acquisition of any Equity Securities;
(iii) the issuance by a Subsidiary to any Person (other than
the Company or a Subsidiary) of any common or preferred stock or
other equity securities (including options, warrants or other
rights to acquire shares of capital stock, or
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other securities or instruments convertible or exchangeable into
shares of capital stock), or the repurchase, redemption or other
acquisition of any shares of common or preferred stock or other
equity securities (including options, warrants or other rights to
acquire shares of capital stock, or other securities or
instruments convertible or exchangeable into shares of capital
stock) of a Subsidiary from any Person (other than the Company or
a Subsidiary);
(iv) other than the Initial Incentive Plan, the adoption of
any stock option, stock appreciation, stock purchase, phantom
stock or other equity-based, performance or other employee or
retiree benefit or compensation plan, program, policy or
arrangement for current or former employees of the Company or
Subsidiaries, it being understood that salaries of and annual
bonus for employees (other than the Executive Officers) and the
grant of awards or benefits to employees pursuant to any such
plan, program, policy or arrangement previously approved by the
Board in accordance with this clause (iv) (including the Initial
Incentive Plan) shall not require a supermajority vote of the
Board pursuant to this clause (iv);
(v) the appointment, dismissal or removal of any Executive
Officer or the SM Officer, it being understood that any such
appointment, dismissal or removal shall also take place in
accordance with Section 3.6;
(vi) the determination or modification of the compensation
paid to any Executive Officer, including the grant of awards or
benefits to any Executive Officer pursuant to the Initial
Incentive Plan and plans, programs, policies or arrangements
approved by the Board in accordance with clause (iv) of this
Section 3.5(b);
(vii) the purchase or other acquisition of capital or fixed
assets, in a single transaction or series of related transactions,
if after giving effect thereto, the Company would have expended
(A) in excess of $500,000 or equivalent on the purchase or other
acquisition of such capital or fixed assets, or (B) in excess of
$5 million on all purchases or other acquisitions of capital and
fixed assets during the applicable fiscal year (other than
purchases or acquisitions approved pursuant to clause (A)); or
entering into any agreement involving the foregoing;
(viii) the purchase or other acquisition of any asset or
group of related assets (other than raw materials in the ordinary
course of business), in a single transaction or series of related
transactions, if after giving effect thereto, the Company would
have expended (A) in excess of $500,000 or equivalent on such
purchase or other acquisition, or (B) in excess of $5 million or
equivalent on all
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purchases or other acquisitions of assets during the applicable
fiscal year (other than purchases or other acquisitions approved
pursuant to clause (A)); or entering into any agreement involving
the foregoing;
(ix) the lease by the Company of any asset or group of
related assets, in a single transaction or series of related
transactions, involving aggregate lease payments by the Company of
in excess of $1 million or equivalent;
(x) the sale, lease or other disposition of any asset or
group of related assets of the Company (other than inventory in
the ordinary course of business), in a single transaction or
series of related transactions (A) having a fair market value in
excess of $500,000 or equivalent or (B) if after giving effect
thereto, the Company would have sold, leased or otherwise disposed
of assets during the applicable fiscal year having a fair market
value in excess of $5 million or equiv alent (other than sales,
leases or other dispositions approved pursuant to clause (A)); or
entering into any agreement involving the foregoing;
(xi) the transfer of or the grant of a license to any
material trademark or trade name of the Company or any Subsidiary
(including trademarks or trade names used by the Company or a
Subsidiary under license), other than (A) licenses of the "Club
Macanudo" trademark or trade name in a manner consistent with past
practice, (B) licenses for production or sale of tobacco
accessories, and (C) customary licenses for sales promotions in
the ordinary course.;
(xii) the entry into, modification, extension, termination or
replacement of any financing or credit agreement, facility or
other arrangement (A) providing for total borrowings by the
Company in excess of $5 million or equivalent, or (B) such that
the aggregate amount of the outstanding borrowings of the Company
thereafter exceeds $10 million or equivalent, EXCEPT for the entry
into the Initial Credit Facility and drawdowns or borrowings under
the Initial Credit Facility, provided that the Company provides
Swedish Match at least 10 days prior notice of any drawdowns or
other borrowing under the Initial Credit Facility of an amount in
excess of $10 million or equivalent;
(xiii) other than borrowings under the Initial Credit
Facility, the issuance or sale of any bond, debenture, note or
other similar instruments (A) for an amount in excess of $5
million or equivalent, and the redemption or repurchase, or the
modification of the terms of, any such bond, debenture, note or
similar instrument or (B) resulting in the aggregate amount of the
outstanding borrowings of the Company thereafter exceeding $10
million or equivalent;
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(xiv) the modification, extension or termination of the
Initial Credit Facility;
(xv) incurrence of any guaranty obligation with respect to
any indebtedness, liability or other obligation of any Person,
other than any Subsidiary, (A) not in the ordinary course of
business consistent with past practice, or (B) such that the
aggregate amount of outstanding obligations guaranteed by the
Company after incurring such guaranty obligation exceed $1.5
million or equivalent;
(xvi) other than with respect to purchases of raw materials
and distribution or marketing of products in the ordinary course
of business (excluding exclusive distribution or agency agreements
or arrangements), entering into any agreement, commitment,
understanding or arrangement, (A) having a term in excess of three
years, or (B) if the aggregate amount reasonably expected to be
received or paid thereunder by the Company exceeds $3 million or
equivalent;
(xvii) the commencement or settlement by the Company of any
suit, action or other proceeding (A) relating to alleged or actual
health effects from use of tobacco products or the regulation of
the production, sale or distribution of tobacco products, or (B)
in which the amount involved (for such suit, action or other
proceeding together related suits, actions or other proceedings)
exceeds $500,000 or equivalent (without regard to whether the
matter in question is covered by insurance or any indemnity,
contribution or similar agreement or arrangement by or with any
other Person);
(xviii) the appointment or dismissal of the Company's
independent auditors or legal counsel;
(xix) the adoption or modification of any material accounting
or tax principle or practice of the Company;
(xx) the entry by the Company into any new significant
business activity or line of business;
(xxi) the modification, whether by amendment or supplement,
of the Company's certificate of incorporation or bylaws; and
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(xxii) the liquidation, petition for bankruptcy, winding-up,
merger, consolidation, dissolution, split up or other similar
transaction of or involving the Company.
(c) In addition to any vote of the Directors required by
applicable law or Section 3.5(a) or (b), in the event the Company or
any Subsidiary proposes to enter into any Affiliate Agreement, or to
modify or terminate any Affiliate Agreement, and in enforcing or
abandoning the rights of the Company or any Subsidiary under or
pursuant to any Affiliate Agreement (including the commencement or
settlement of any suit or action), the approval of the directors not
nominated by Swedish Match (if the Affiliate Agreement is with Swedish
Match or any of its Affiliates) or the C&E Shareholders (if the
Affiliate Agreement is with a C&E Shareholder or an Affiliate of a C&E
Shareholder) shall be required to authorize the Company to take such
action.
(d) The parties agree and acknowledge that all requirements set
forth in Section 3.5(b) regarding the approval of the taking of
Fundamental Actions shall apply to all Subsidiaries, both individually
and on a consolidated basis. The Shareholders further agree and
acknowledge that all the requirements and thresholds set forth in
Section 3.5(b) are intended to apply to the Company on both a
consolidated and unconsolidated basis.
Section 3.6. EXECUTIVE OFFICERS. (a) The Executive Officers shall be
appointed by the Board from among the individuals designated by the party hereto
having the right to designate a majority of the Directors pursuant to Section
3.1(a). If at any time the Person having the right to designate the nominees for
Executive Officer proposes the removal of an Executive Officer, each of the
Shareholders shall take all necessary action in their capacities as shareholders
in order to cause the removal of such Executive Officer (including requesting
the Directors nominated by them to vote for such removal). Upon any death,
disability, retirement, resignation or removal of an Executive Officer, the
replacement therefor shall be designated for appointment by the Board in
accordance with the first sentence of this Section 3.6. The initial Chairman of
the Board shall be Edgar M. Cullman, Sr., and the initial Chief Executive
Officer shall be Edgar M. Cullman, Jr.
(b) Swedish Match shall have the right to designate for approval
by the Board at least one senior executive for a position with the
Company to be agreed upon among Swedish Match, the C&E Representative
and the Company (the "SM OFFICER"), and to remove or replace the SM
Officer at any time. If at any time Swedish Match proposes the removal
of the SM Officer, each of the Shareholders shall take all necessary
action in their capacities as shareholder to cause the removal of the
SM Officer (including requesting the Directors nominated by them to
vote for such removal). Upon the death disability, retirement,
resignation or removal of the SM Officer, the replacement therefor
shall be designated by Swedish Match for appointment by the Board.
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Section 3.7. CONFLICTING CHARTER OR BYLAW PROVISION. Each
Shareholder shall vote its shares of Common Stock, and shall take all other
actions reasonably necessary, to ensure that the Company's certificate of
incorporation and bylaws (I) facilitate compliance with this Agreement,
including the management and governance of the Company in accordance with this
Article III, and (II) do not at any time conflict with any provision of this
Agreement.
ARTICLE IV
RESTRICTIONS ON TRANSFER
Section 4.1. GENERAL. (a) After the Effective Time, none of the
Shareholders or any of their successors in interest may, directly or indirectly,
sell, transfer, assign, grant a participation in, option, pledge, hypothecate or
otherwise dispose of or encumber (collectively, "TRANSFER") any of their Equity
Securities, except (I) subject to Section 4.2, to a Permitted Transferee of such
proposed transferor, (II) pursuant to Section 4.3 or 4.4, or (III) in the case
of Equity Securities that are not Common Stock, pursuant to the terms and
conditions of the agreement or instrument pursuant to which the applicable
Equity Security was issued (as the same may be modified from time to time).
(b) Any attempt by any Shareholder to transfer any Equity
Securities not in compliance with this Agreement shall be null and
void, and the Company shall not, and shall cause any transfer agent not
to, give effect in the Company's stock records to any such attempted
Transfer.
Section 4.2. TRANSFERS TO PERMITTED TRANSFEREES. No share of
Common Stock shall be Transferred pursuant to clause (i) of Section 4.1 to any
Permitted Transferee of the applicable Shareholder unless and until such
Permitted Transferee shall have agreed in writing, in a manner acceptable in
form and substance to Swedish Match (in the case of a proposed Transfer by a C&E
Shareholder) and the C&E Representative (in the case of a proposed Transfer by
Swedish Match), (I) to accept the shares of Common Stock Transferred to it
subject to the terms and conditions of this Agreement, and (II) to be bound by
this Agreement and to agree and acknowledge that such Person shall constitute a
Shareholder, and, if applicable, a C&E Shareholder, for all purposes of this
Agreement.
Section 4.3. PUT RIGHT OF C&E SHAREHOLDERS. (a) At any time during
an Exercise Period, the C&E Shareholders shall have the right, upon the delivery
of notice by the C&E Representative to Swedish Match in accordance with Section
4.3(d) (each, a "PUT NOTICE"), to sell all or a portion of the C&E Shares to
Swedish Match or its designee in accordance with this Section 4.3 (each, a "PUT
RIGHT").
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(b) The number of C&E Shares with respect to which the Put Right
may be exercised during Year 4 Exercise Periods and Year 5 Exercise
Periods shall be subject to the following limitations:
(i) In the case of a Put Right exercised during a Year 4
Exercise Period, the number of C&E Shares with respect to which
such Put Right may be exercised, when added to all C&E Shares
previously sold to Swedish Match or its designee upon the exercise
of Put Rights or Call Rights or to be sold to Swedish Match or its
designee upon the exercise of such Put Right, may not exceed
one-third of the Initial C&E Shares.
(ii) In the case of a Put Right exercised during a Year 5
Exercise Period, the number of C&E Shares with respect to which
such Put Right may be exercised, when added to all C&E Shares
previously sold to Swedish Match or its designee upon the exercise
of Put Rights or Call Rights or to be sold to Swedish Match or its
designee upon the exercise of such Put Right, may not exceed
two-thirds of the Initial C&E Shares.
(c) The price for the sale of each C&E Share to Swedish Match upon
the exercise of a Put Right shall be as follows (the "PUT PRICE"):
(i) In the case of a Put Right exercised during a Year 4
Exercise Period, the amount equal to (A) the Put Formula divided
by (B) the number of outstanding shares of Common Stock at the
time of the exercise of the Put Right; PROVIDED that such price
shall not exceed $23.00 nor be less than $15.00.
(ii) In the case of a Put Right exercised during a Year 5
Exercise Period, the amount equal to (A) the Put Formula divided
by (B) the number of outstanding shares of Common Stock at the
time of the exercise of the Put Right; PROVIDED that such price
shall not exceed $26.00 nor be less than $15.00.
(iii) In the case of a Put Right exercised during a Year 6
Exercise Period, the amount equal to (A) the Put Formula divided
by (B) the number of outstanding shares of Common Stock at the
time of the exercise of the Put Right, PROVIDED that such price
shall not exceed $28.50 nor be less than $15.00.
(d) Each Put Notice shall specify (i) the number of C&E Shares to
be sold to Swedish Match by each selling C&E Shareholder in connection
with the exercise of such Put Right, which number may not exceed the
amounts specified in Section 4.3(b) in the case of the exercise of a
Put Right during a Year 4 Exercise Right or a Year 5 Exercise Right,
(ii) the date for the closing of the purchase and sale of such C&E
Shares,
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which date shall not be less than 20 days nor more than 45 days from
the date of the Put Notice, and (iii) the calculation of the Put Price
to be paid for the sale of such C&E Shares to Swedish Match pursuant to
Section 4.3(c).
(e) Upon the delivery of a Put Notice by the C&E Representative to
Swedish Match, each C&E Shareholder named in the Put Notice shall be
obligated to sell to Swedish Match, and Swedish Match shall be
obligated to purchase from each such C&E Shareholder the number of C&E
Shares specified in the Put Notice. A closing in respect of the
purchase and sale of the C&E Shares specified in the Put Notice shall
occur at the headquarters of the Company on the date for the closing
specified in the Put Notice (or at such other place or date as Swedish
Match and the C&E Representative may agree upon); PROVIDED that if
Swedish Match shall have delivered a notice of disagreement of the Put
Price specified in the Put Notice, such closing shall occur within ten
days of the resolution of such disagreement pursuant to Section 4.6. At
the closing:
(i) the C&E Representative shall deliver, or cause to be
delivered, to Swedish Match or its designee, free and clear of all
Liens, one or more stock certificates, duly endorsed or
accompanied by stock powers duly endorsed in blank, evidencing all
the C&E Shares being sold to Swedish Match or its designee in
connection with the exercise of such Put Right;
(ii) Swedish Match or its designee shall deliver by wire
transfer of immediately available funds to the bank account
designated by the C&E Representative at least five days prior to
such closing, an amount equal to the aggregate Put Price for all
C&E Shares being sold in connection with the exercise of such Put
Right; and
(iii) the Company shall deliver (A) to Swedish Match a new
stock certificate or certificates, duly executed and issued in the
name of Swedish Match or its designee, evidencing all the C&E
Shares sold to Swedish Match or its designee at such closing, and
(B) to the C&E Representative a new stock certificate or
certificates, duly executed and issued in the name of the selling
C&E Shareholders, evidencing the C&E Shares owned by such C&E
Shareholders following such closing
All the foregoing deliverables shall be deemed to be made simultaneously, and
none shall be deemed completed until all have been completed.
Section 4.4. CALL RIGHT OF SWEDISH MATCH. (a) At any time during
an Exercise Period, Swedish Match or its designee shall have the right, upon the
delivery of notice to the C&E Representative in accordance with Section 4.4(d)
(each, a "CALL
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NOTICE"), to purchase all or a portion of the C&E Shares from the C&E
Shareholders, on a pro rata basis (except as otherwise determined by the C&E
Representative in accordance with the first sentence of Section 4.4(e)), in
accordance with this Section 4.4 (each, a "CALL RIGHT").
(b) The number of C&E Shares with respect to which the Call Right
may be exercised during Year 4 Exercise Periods and Year 5 Exercise
Periods shall be subject to the following limitations:
(i) In the case of a Call Right exercised during a Year 4
Exercise Period, the number of C&E Shares with respect to which
such Call Right may be exercised, when added to all C&E Shares
previously purchased by Swedish Match or its designee upon the
exercise of Put Rights or Call Rights or to be purchased by
Swedish Match or its designee upon the exercise of such Call
Right, may not exceed one-third of the Initial C&E Shares.
(ii) In the case of a Call Right exercised during a Year 5
Exercise Period, the number of C&E Shares with respect to which
such Call Right may be exercised, when added to all C&E Shares
previously purchased by Swedish Match or its designee upon the
exercise of Put Rights or Call Rights or to be purchased by
Swedish Match or its designee upon the exercise of such Call
Right, may not exceed two-thirds of the Initial C&E Shares.
(c) The price for the sale of each C&E Share to Swedish Match upon
the exercise of a Call Right shall be as follows (the "CALL PRICE"):
(i) In the case of a Call Right exercised during a Year 4
Exercise Period, the greater of (A) $23.00 and (B) the amount
equal to (x) the Call Formula divided by (y) the number of
outstanding shares of Common Stock at the time of the exercise of
the Call Right.
(ii) In the case of a Call Right exercised during a Year 5
Exercise Period, the greater of (A) $26.00 and (B) the amount
equal to (x) the Call Formula divided by (y) the number of
outstanding shares of Common Stock at the time of the exercise of
the Call Right.
(iii) In the case of a Call Right exercised during a Year 6
Exercise Period, the greater of (A) $28.50 and (B) the amount
equal to (x) the Call Formula divided by (y) the number of
outstanding shares of Common Stock at the time of the exercise of
the Call Right.
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(d) Each Call Notice shall specify (i) the number of C&E Shares to
be purchased by Swedish Match in connection with the exercise of such
Call Right, which number may not exceed the amounts specified in
Section 4.4(b) in the case of the exercise of a Call Right during a
Year 4 Exercise Right or a Year 5 Exercise Right, (ii) the date for the
closing of the purchase and sale of such C&E Shares, which date shall
not be less than 20 days nor more than 45 days from the date of the
Call Notice, and (iii) the calculation of the Call Price to be paid for
the purchase of such C&E Shares by Swedish Match pursuant to Section
4.4(c).
(e) Upon the delivery of a Call Notice by Swedish Match to the C&E
Representative, Swedish Match shall be obligated to purchase from each
C&E Shareholder, and each such C&E Shareholder shall be obligated to
sell to Swedish Match, such C&E Shareholder's Pro Rata Call Amount of
the C&E Shares; PROVIDED that the C&E Representative has the right to
modify the number of C&E Shares that each C&E Shareholder shall be
obligated to sell to Swedish Match so long as (x) the total number of
C&E Shares to be purchased by Swedish Match is the same as the number
specified by Swedish Match in the Call Notice, and (y) neither
Principal C&E Shareholder may sell more than his Pro Rata Call Amount
pursuant to any Call Notice. A closing in respect of the purchase and
sale of the C&E Shares specified in the Call Notice shall occur at the
headquarters of the Company on the date for the closing specified in
the Call Notice (or at such other place or date as Swedish Match and
the C&E Representative may agree upon); PROVIDED that if the C&E
Representative shall have delivered a notice of disagreement of the
Call Price specified in the Call Notice, such closing shall occur
within ten days of the resolution of such disagreement pursuant to
Section 4.6. At the closing:
(i) the C&E Representative shall deliver, or cause to be
delivered, to Swedish Match or its designee, free and clear of all
Liens, one or more stock certificates, duly endorsed or
accompanied by stock powers duly endorsed in blank, evidencing all
the C&E Shares being purchased by Swedish Match or its designee in
connection with the exercise of such Call Right;
(ii) Swedish Match or its designee shall deliver by wire
transfer of immediately available funds to the bank account
designated by the C&E Representative at least five days prior to
such closing, amount equal to the aggregate Call Price for all C&E
Shares being purchased in connection with the exercise of such
Call Right; and
(iii) The Company shall deliver (A) to Swedish Match a new
stock certificate or certificates, duly executed and issued in the
name of Swedish Match or its designee, evidencing all the C&E
Shares purchased by Swedish Match or its designee at such closing
and (B) to the C&E Representative a new stock
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certificate or certificates, duly executed and issued in the name
of each selling C&E Shareholder, evidencing the C&E Shares owned
by each C&E Shareholder following such closing.
All the foregoing deliverables shall be deemed to be made simultaneously, and
none shall be deemed completed until all have been completed.
Section 4.5. DESIGNATED PURCHASER. If Swedish Match is required to
purchase any C&E Shares upon the exercise of a Put Right, or has the right to
purchase any C&E Shares upon the exercise of a Call Right, Swedish Match may, at
its option, designate one or more of its Affiliates to purchase all or a portion
of such C&E Shares. In such event, Swedish Match shall cause its designee to pay
the applicable Put Price or Call Price, as the case may be, and shall be liable
for the performance by its designee of all obligations with respect to the
purchase of the C&E Shares pursuant to the exercise of the Put Right or Call
Right, as the case may be.
Section 4.6. DISAGREEMENT OVER PUT PRICE OR CALL PRICE. (a) In the
event Swedish Match disagrees with the calculation of a Put Price specified in a
Put Notice, or the C&E Representatives disagree with the calculation of a Call
Price specified in a Call Notice, Swedish Match or the C&E Representatives, as
the case may be, shall, within 15 days of the delivery of the Put Notice or Call
Notice, as the case may be, deliver written notice of such disagreement to the
other party, together with an explanation of its disagreement. Thereafter,
Swedish Match and the C&E Representatives shall negotiate in good faith to
resolve such disagreement. If Swedish Match and the C&E Representatives are
unable to reach a resolution within 15 days of the delivery of the notice of
disagreement, Swedish Match and the C&E Representatives shall promptly submit
such disagreement for resolution to an internationally recognized, independent
accounting firm mutually acceptable to Swedish Match and the C&E Representative
(the "ARBITRATOR"). The Arbitrator shall, within 15 days after submission
(unless an audit of Semi-Annual Statements is requested pursuant to Section
4.6(b), in which case within 45 days after submission), determine and report to
Swedish Match and the C&E Representatives its determination of the Put Price or
Call Price, as the case may be, and such determination shall be final and
binding on the parties.
(b) In the event that Swedish Match or the C&E Representatives
deliver a notice of disagreement with a Put Price or a Call Price, as
the case may be, pursuant to Section 4.6(a) and the applicable Put
Right or the Call Right is exercised during an Exercise Period
following the delivery of Semi-Annual Statements, then the party
delivering such notice of disagreement may, by written notice to the
other parties hereto within 15 days of the delivery of the notice of
disagreement, demand an audit of such SemiAnnual Statements by the
Arbitrator and the Company shall promptly request the
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Arbitrator to conduct such audit. The Arbitrator shall, within 45 days
of such request, audit such Semi-Annual Statements and deliver its
opinion with respect to such SemiAnnual Statements. The Company shall
provide such books and records and other information to the Arbitrator
as may be necessary or appropriate with respect to such audit and shall
make such adjustments and modifications to the Semi-Annual Statements
as may be required or deemed appropriate by the Arbitrator for the
delivery of an unqualified opinion with respect to such Semi-Annual
Statements.
(e) The fees and expenses of the Arbitrator shall be borne
one-half by Swedish Match and one-half by the C&E Representatives;
PROVIDED that if Swedish Match or the C&E Representatives request an
audit of Semi-Annual Statements pursuant to Section 4.6(b) and the
determination of the Put Price or Call Price, as the case may be, by
the Arbitrator following such audit deviates by 3% or less than the Put
Price or Call Price proposed in the applicable Put Notice or Call
Notice, the party requesting such audit shall bear all the fees and
expenses of the Arbitrator in connection with such audit.
Section 4.7. LEGEND. Any certificate for any share of Common Stock
that is issued to any Shareholder on or after the Effective Time shall bear a
legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD
EXCEPT IN COMPLIANCE THEREWITH. THIS SECURITY IS ALSO SUBJECT TO
RESTRICTIONS ON TRANSFER SET FORTH IN THE SHAREHOLDERS' AGREEMENT DATED
AS OF JANUARY 19, 2000, AS MAY BE AMENDED FROM TIME TO TIME, COPIES OF
WHICH MAY BE OBTAINED UPON REQUEST FROM THE COMPANY OR ANY SUCCESSOR
THERETO.
ARTICLE V
OTHER COVENANTS AND AGREEMENTS
Section 5.1. C&E REPRESENTATIVE. (a) Each C&E Shareholder hereby
designates and appoints (and each Permitted Transferee of each such C&E
Shareholder is hereby deemed to have so designated and appointed) each Principal
C&E Shareholder, acting jointly or individually, as its attorney(s)-in-fact with
full power of substitution for each of them (each, in such capacity, a "C&E
REPRESENTATIVE"), to serve as the representative(s) of each such C&E Shareholder
to perform all such acts as are required, authorized or contemplated by this
Agreement to be performed by such person and hereby
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acknowledges that the C&E Representatives shall be the only persons authorized
to take any action so required, authorized or contemplated by this Agreement by
each such C&E Shareholder. Each such C&E Shareholder further acknowledges that
the foregoing appointment and designation shall be deemed to be coupled with an
interest and shall survive the death or incapacity of such C&E Shareholder. Each
such C&E Shareholder hereby authorizes (and each such Permitted Transferee shall
be deemed to have authorized) the other parties hereto to disregard any notices
or other action taken by such C&E Shareholder pursuant to this Agreement, except
for notice and actions taken by any C&E Representatives. The other parties
hereto are and will be entitled to rely on any action so taken or any notice
given by the C&E Representatives and are and will be entitled and authorized to
give notices only to the C&E Representatives for any notice contemplated by this
Agreement to be given to any such C&E Shareholder. A successor to the C&E
Representatives may be chosen by a majority in interest of the C&E Shareholders;
PROVIDED that notice thereof is given by the new C&E Representative to the
Company and to Swedish Match.
(b) In the event that any C&E Shareholder desires to exercise a
Put Right during any Exercise Period, such C&E Shareholder shall notify
the C&E Representative, no later than 20 days prior to the last day of
such Exercise Period, of such C&E Shareholder's desire to exercise a
Put Right during such Exercise Period. Each notice given to the C&E
Representative pursuant to this Section 5.1(b) shall specify the name
of the C&E Shareholder desiring to exercise the Put Right and the
number of C&E Shares proposed to be sold by such C&E Shareholder during
the applicable Exercise Period. In the event that the C&E
Representatives receive from C&E Shareholders notices representing a
greater number of C&E Shares than are permitted be sold in such
Exercise Period pursuant to Section 4.3(b), the C&E Representative
shall reduce the number of shares proposed to be sold by each C&E
Shareholder's Pro Rata Put Amount (unless the C&E Representatives and
the C&E Shareholders desiring to sell shares during such Exercise
period agree to modify the number of C&E Shares being sold by each such
C&E Shareholder). Notwithstanding the foregoing, Swedish Match may, at
all times, rely on the Put Notice delivered pursuant to Section 4.3,
and Swedish Match shall have no obligation to purchase any C&E Shares
pursuant to the exercise of a Put Right until the receipt by Swedish
Match of a Put Notice from the C&E Representative in accordance with
Section 4.3.
Section 5.2. CONFIDENTIALITY. (a) No Shareholder shall, and each
Shareholder shall cause its Affiliates not to, use for any purpose or disclose
to any Person (other than to other Shareholders), any Confidential Information,
except as required by applicable laws or regulations. In the event any
Shareholder or any of its Affiliates is required to disclose any Confidential
Information under any law or regulation (including complying with any oral or
written questions, interrogatories, requests for information or
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documents, subpoena, civil investigative demand or process to which a
Shareholder is subject), such Person shall, to the extent practicable, promptly
notify the other parties of such requirement so that such other parties may seek
an appropriate protective order or similar relief.
(b) "CONFIDENTIAL INFORMATION" means (i) any information
concerning the Company and Subsidiaries, and Persons which become
Subsidiaries, or the financial condition, business, operations or
prospects of the Company and, Persons which become Subsidiaries in the
possession of or furnished to any Shareholder (including by virtue of
its present or former right to designate a Director) and (ii) any
information concerning this Agreement or the transactions contemplated
by this Agreement; PROVIDED that the term "Confidential Information"
does not include information which (x) is or becomes generally
available to the public other than as a result of a disclosure by a
Shareholder or its partners, directors, officers, employees, agents,
counsel, investment advisers or representatives (collectively,
"REPRESENTATIVES") in violation of this Agreement, (y) is or was
available to such Shareholder on a nonconfidential basis prior to its
disclosure to such Shareholder or its Representatives by the Company or
(z) was or becomes available to such Shareholder on a non-confidential
basis from a source other than the Company, provided that such source
is or was (at the time of receipt of the relevant information) not, to
the best of such Shareholder's knowledge, bound by a confidentiality
agreement with (or other confidentiality obligation to) the Company or
another Person.
Section 5.3. FINANCIAL INFORMATION AND OTHER REPORTS. The Company
shall prepare and furnish to Swedish Match and the C&E Representative:
(a) as soon as available and in any event, within 30 days after
the end of each fiscal year of the Company, an audited consolidated
balance sheet of the Company and the consolidated Subsidiaries as at
the end of such year and the related audited consolidated statement of
operations, changes in equity (deficit) and cash flows for such year,
setting forth in each case in comparative form the figures for the
previous year, together with all notes and schedules required by GAAP,
and audited by PricewaterhouseCoopers, LLP (the "ANNUAL STATEMENTS");
(b) as soon as available and in any event within 30 days after the
end of the second quarter of each fiscal year of the Company, an
audited consolidated balance sheet of the Company and the consolidated
Subsidiaries as of the end of such quarter and the related audited
consolidated statement of operations, changes in equity (deficit) and
cash flows for such six-month period, setting forth in each case in
comparative form the figures for such six-month period in the
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previous fiscal year and for the corresponding portion of the previous
year (the "SEMIANNUAL STATEMENTS");
(c) as soon as available and in any event within 20 days after the
end of each of the first and third quarters of each fiscal year, a
consolidated balance sheet of the Company and the consolidated
Subsidiaries as of the end of such quarter, and the related
consolidated statement of operations, changes in equity (deficit) and
cash flows for such quarter and for the current fiscal year to date,
setting forth in each case in comparative form the figures for such
quarter in the previous fiscal year and for the corresponding portion
of the previous fiscal year; and
(d) as soon as available and in any event within five days after
the end of each month, a consolidated balance sheet of the Company and
the consolidated Subsidiaries as of the end of such month, and the
related consolidated statement of operations for such month and for the
current fiscal year to date, setting forth in each case in comparative
form the figures for such month in the previous fiscal year and the
corresponding portion of the previous fiscal year.
All such financial statements shall present fairly in all material respects the
consolidated financial condition of the Company and the consolidated
Subsidiaries as at the applicable dates, and the consolidated results of their
operations, changes in equity (deficit) and cash flows for the periods reflected
therein, and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (in the case of the financial statements referred to in Sections 5.3(b),
(c) and (d), subject to normal year-end audit procedures).
Section 5.4. TRUST AND SECURITY AGREEMENT. Immediately following
the Effective Time, each C&E Shareholder and Swedish Match shall execute and
deliver a trust and security agreement, having such terms and conditions as
Swedish Match and the C&E Representatives shall agree upon, with a security
agent mutually acceptable to Swedish Match and the C&E Representatives, pursuant
to which (i) each C&E Shareholder shall pledge, and grant a valid perfected
security interest in, its C&E Shares to the security agent for the benefit of
Swedish Match to secure the due and prompt performance by such C&E Shareholder
of its obligations upon the exercise by Swedish Match of Call Rights, and (ii)
Swedish Match shall pledge, and grant a valid perfected security interest in,
its shares of Common Stock to the security agent for the benefit of the C&E
Shareholders to secure the due and prompt performance by Swedish Match of its
obligations upon the exercise by the C&E Shareholders of the Put Rights.
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Section 5.5. NON-COMPETITION; NON-SOLICITATION. (a) At all times
during the Restricted Period, neither Principal C&E Shareholder shall, directly
and indirectly, (i) become employed by, (ii) engage in business with, (iii)
serve as an agent or consultant to, or (iv) become a partner, member, principal
or stockholder (other than a holder of less than 5% of any outstanding publicly
held security) of, any Person that competes in any material way with any part of
the business of the Company or any Subsidiary. Each Principal C&E Shareholder
agrees and acknowledges that the Company and the Subsidiaries are engaged in
business in each of the states of the United States and throughout the world.
(b) At all times during the Restricted Period, neither Principal
C&E Shareholder shall, directly and indirectly, for his own account or
for the account of any other Person, (i) solicit for employment, employ
or otherwise interfere with the relationship of the Company or any
Subsidiary with any person throughout the world who is or was employed
by or otherwise engaged to perform services for the Company or any
Subsidiary other than any such solicitation or employment on behalf of
the Company or any Subsidiary, or (ii) induce any employee of the
Company or any Subsidiary who is a member of management to engage in
any activity which the Principal C&E Shareholder is prohibited from
engaging in under this Section 5.5 or to terminate his employment with
the Company or such Subsidiary.
(c) At all times during the Restricted Period, neither Principal
C&E Shareholder shall, directly and indirectly, for his own account or
for the account of any other Person, solicit or otherwise attempt to
establish any business relationship with any Person, which is or was a
supplier, customer, client or distributor of the Company or any
Subsidiary, with respect to any business or activity that competes or
would compete, directly or indirectly, in any material way with any
part of the business of the Company or any Subsidiary.
(d) Each Principal C&E Shareholder acknowledges and agrees that
(i) the covenants, obligations and agreements of such Principal C&E
Shareholder contained in this Section 5.5 relate to special, unique and
extraordinary matters, (ii) Swedish Match is and will be relying on
such covenants in connection with purchases of C&E Shares pursuant to
the Put Rights or Call Rights, and (iii) a violation of any of the
terms of such covenants, obligations or agreements will cause the
Company and Swedish Match irreparable injury for which adequate
remedies are not available at law. Therefore, each Principal C&E
Shareholder agrees that the Company and Swedish Match shall be entitled
to an injunction, restraining order or such other equitable relief
(without the requirement to post bond) as a court of competent
jurisdiction may deem necessary or appropriate to restrain such
Principal C&E Shareholder from committing any violation of such
covenants,
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obligations or agreements. These injunctive remedies are cumulative and
in addition to any other rights and remedies the Company and Swedish
Match may have.
Section 5.6. FURTHER ASSURANCES. Each Shareholder shall, from time
to time, execute and deliver, or cause to be executed and delivered, such
additional documents and instruments as the other parties may reasonably request
to carry out the intent and purposes of this Agreement and consummate the
transactions contemplated by this Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.1. EFFECTIVENESS; TERMINATION. (a) Except for Article
II, this Agreement shall be effective, and the rights and obligations of the
parties under this Agreement shall commence, without any action or notice by any
party, as of the Effective Time. No party shall have any right or obligation
under this Agreement prior to the Effective Time, other than for any inaccuracy
in or breach of any representation or warranty of such party in Article II.
(b) This Agreement shall terminate without any action or notice by
any party (i) upon the C&E Shareholders ceasing to own any shares of
Common Stock, or (ii) at any time by written agreement of Swedish
Match, the C&E Representative (on behalf of the C&E Shareholders) and
the Company, or (iii) the termination of the Merger Agreement in
accordance with the terms thereof; PROVIDED that, in the event of the
termination of this Agreement pursuant to clause (i) or (ii) of this
Section 6.1(b), the obligations of each Principal C&E Shareholders
under Section 5.5, and Sections 6.2, 6.3, 6.6, 6.7, 6.8 and 6.9, shall
survive such termination until the expiration of the Restricted Period
for such C&E Principal Shareholder.
Section 6.2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO ANY PRINCIPLES OR RULES OF CONFLICTS OF LAWS THEREOF.
Section 6.3. JURISDICTION; WAIVER OF JURY TRIAL. (a) Each of the
parties hereto irrevocably and unconditionally (i) agrees that any legal suit,
action or proceeding brought by any party hereto arising out of or based upon
this Agreement or the transactions contemplated hereby may be brought in the
Courts of Delaware or the United States District Court for the District of
Delaware (each, a "DELAWARE COURT"), (ii) waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter
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have to the laying of venue of any such proceeding brought in any Delaware
Court, and any claim that any such action or proceeding brought in any Delaware
Court has been brought in an inconvenient forum, and (iii) submits to the
non-exclusive jurisdiction of Delaware Courts in any suit, action or proceeding.
Each of the parties agrees that a judgment in any suit, action or proceeding
brought in a Delaware Court shall be conclusive and binding upon it and may be
enforced in any other courts to whose jurisdiction it is or may be subject, by
suit upon such judgment.
(b) Each of the parties agrees and acknowledges that any
controversy that may arise under this Agreement is likely to involve
complicated and difficult issues, and therefore each such party hereby
irrevocably and unconditionally waives any right such party may have to
a trial by jury in respect of any litigation directly or indirectly
arising out of or relating to this Agreement, or the breach,
termination or validity of this Agreement.
Section 6.4. AMENDMENT, WAIVERS, ETC. Neither this Agreement nor
any term hereof may be amended or otherwise modified other than by an instrument
in writing signed by Swedish Match, the C&E Representative and the Company. No
provision of this Agreement may be waived, discharged or terminated other than
by an instrument in writing signed by the party against whom the enforcement of
such waiver, discharge or termination is sought.
Section 6.5. ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. (a) This
Agreement shall not be assignable or otherwise transferable by a party without
the prior consent of the other parties, and any attempt to so assign or
otherwise transfer this Agreement without such consent shall be void and of no
effect; PROVIDED that (i) any Person acquiring shares of Common Stock in
accordance with this Section 4.2 shall, upon the delivery of the documents
contemplated by Section 4.2, become a "Shareholder", and if such Person is a
Permitted Transferee of a C&E Shareholder, such Person shall also be deemed a
"C&E Shareholder", and (ii) Swedish Match may, in its sole discretion, assign or
transfer all or any of its rights, interests and obligations under this
Agreement to any Permitted Transferee of Swedish Match, provided that no such
assignment or transfer shall relieve Swedish Match of any liability under this
Agreement, and Swedish Match shall be jointly and severally liable for the
obligations of its Permitted Transferee under this Agreement.
(b) This Agreement shall be binding upon the respective heirs,
successors, legal representatives and permitted assigns of the parties
hereto. Nothing in this Agreement shall be construed as giving any
Person, other than the parties hereto and their heirs, successors,
legal representatives and permitted assigns, any right, remedy or claim
under or in respect of this Agreement or any provision hereof.
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Section 6.6. NOTICES. All notices, consents, requests,
instructions, approvals and other communications provided for in this Agreement
shall be in writing and shall be deemed validly given upon personal delivery or
one day after being sent by overnight courier service or by telecopy (so long as
for notices or other communications sent by telecopy, the transmitting telecopy
machine records electronic conformation of the due transmission of the notice),
at the following address or telecopy number, or at such other address or
telecopy number as a party may designate to the other parties:
(i) if to Swedish Match to:
Swedish Match AB
SE-118 85 Stockholm
Sweden
Attn: Senior Vice President and Legal Counsel
Telecopy: (46-8) 720-7656
with a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Attn.: Paul S. Bird
Telecopy: (1-212) 909-6836;
(ii) if to any C&E Shareholder to:
Edgar M. Cullman, Sr.
Edgar M. Cullman, Jr.
c/o General Cigar Holdings, Inc.
387 Park Avenue South
New York, New York 10016-8899
Fax: (1-212) 561-8791
with a copy to:
Latham & Watkins
885 Third Avenue
New York, New York 10022-4802
Attn: R. Ronald Hopkinson
Telecopy: (1-212) 751-4864
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(iii) if to the Company to:
General Cigar Holdings, Inc.
387 Park Avenue South
New York, New York 10016-8899
Attn.: General Counsel
Telecopy: (1-212) 561-8791
Section 6.7. REMEDIES. No failure or delay by any party in
exercising any right, power or privilege under this Agreement shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies provided herein shall be cumulative and not
exclusive of any rights or remedies provided by law.
Section 6.8. SPECIFIC PERFORMANCE. Each of the parties hereto
acknowledges that there may be no adequate remedy at law for the failure by such
party to comply with the provisions of this Agreement and that such failure
would cause immediate harm that would not be adequately compensable in damages.
Accordingly, each of the parties hereto agrees that its agreement contained
herein may be specifically enforced without the requirement of posting a bond or
other security, in addition to all other remedies available to the parties
hereto under this Agreement.
Section 6.9. SEVERABILITY. If any provision of this Agreement is
held to be invalid or unenforceable for any reason, it shall be adjusted rather
than voided, if possible, in order to achieve the intent of the parties hereto
to the maximum extent possible. In any event, the invalidity or unenforceability
of any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of this Agreement, including that
provision, in any other jurisdiction.
Section 6.10. INTEGRATION. This Agreement, including the Schedules
hereto, the Stock Purchase Agreement and the C&E Voting Agreement constitute the
full and entire understanding and agreement of the parties with respect to the
subject matter hereof and thereof and supersede any and all prior understandings
or agreements relating to the subject matter hereof and thereof.
Section 6.11. SECTION HEADINGS. The article and section headings
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
31
<PAGE>
Section 6.12. COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
Section 6.13. INDEMNITY. The C&E Shareholders, severally and not
jointly, hereby agree to, and shall, indemnify the C&E Representative and hold
the C&E Representative harmless from and against any and all loss, cost,
liability, expense, claims, injuries, or other detriment (including without
limitation payment of court costs and attorneys' fees) that the C&E
Representative shall incur from or with respect to its performance under this
Agreement except to the extent caused by the C&E Representative's intentionally
wrongful conduct or negligence.
32
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and date above written.
GENERAL CIGAR HOLDING, INC.
By: /s/Edgar M. Cullman
---------------------------------
Name:
Title:
SWEDISH MATCH AB
By: /s/Edgar M. Cullman, Jr.
---------------------------------
Name:
Title:
Each of the undersigned hereby acknowledges
and accepts his appointment as a C&E
Representative pursuant to Section 5.1(a):
/s/Edgar M. Cullman
- ------------------------
Edgar M. Cullman
/s/Edgar M. Cullman, Jr.
- ------------------------
Edgar M. Cullman, Jr.
33
<PAGE>
I. TRUSTS OF WHICH LOUISE B. CULLMAN IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
2. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
John L. Ernst: 4,890 1 13-6100132
3. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
John L. Ernst: 13,696 13-6100135
7. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of John L. Ernst
Descendants: 11,469 13-6100141
8. Trust Created by Susan B. Ernst
Dated 4/9/52 For the Benefit of John L. Ernst
Descendants: 19,400 13-6100138
9. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For the Benefit of John L. Ernst
Descendants: 14,199 13-6100143
10. Trust Created U/C/O/W Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 21,098 1 13-6387289
11. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 173,990 13-6100148
14. Trust Created by Susan B. Ernst
Dated 4/9/52 For The Benefit of Carolyn S. Fabrici
Descendants: 17,088 13-1000139
15. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of Carolyn S. Fabrici: 6,223 13-6100136
16. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Carolyn S. Fabrici: 6,735 13-6100130
17. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of Carolyn S. Fabrici
Descendants 52,017 1 13-6100139
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
18. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of Carolyn S. Fabrici
Descendants: 15,675 1 13-6100144
19. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of Carolyn S. Fabrici
Descendants: 173,990 13-6100149
23. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst : 17,666 13-6100134
24. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst: 17,666 13-6100131
28. Trust Created by Rita G. Bloomingdale
Dated 11/27/31 For The Benefit of
Louise B. Cullman 133,367 13-6045860
30. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Lucy C. Danziger: 129,775 1 13-6102584
31. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Lucy C. Danziger 24,086 1 13-6103585
32. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Lucy C. Danziger: 171,234 13-6102586
33. Trust Created by Louise B. Cullman
Dated 12/16/43 For The Benefit of
Lucy C. Danziger: 98,976 1 13-6102581
34. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Lucy C. Danziger: 77,441 1 13-6102593
41. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Lucy C. Danziger Descendants: 108,471 1 13-6102590
42. Trust Created by U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Lucy C. Danziger Descendants: 85,479 1 13-6102592
43. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 48,145 1 13-6100167
55. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Edgar M. Cullman, Jr.: 11,165 1 13-6102595
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
56. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Edgar M. Cullman, Jr.: 44,340 13-6102596
57. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Edgar M. Cullman, Jr.: 178,667 113-6102597
58. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Edgar M. Cullman, Jr: 61,215 1 13-6102603
66. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 68,497 1 13-6100165
67. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 152,260 1 13-6102601
68. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Edgar M. Cullman, Jr. Descendants 90,387 1 13-6102602
76. Trust Created by Samuel J. & Rita G. Bloomingdale
Dated 1/10/50 For The Benefit of
Susan R. Cullman 226,190 13-6102604
77. Trust Created by Edgar M. Cullman & Louise B. Cullman
Dated 3/21/50 For The Benefit of
Susan R. Cullman 83,194 1 13-6102605
78. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Susan R. Cullman, Trustees: 115,584 1 13-6102606
79. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Susan R. Cullman: 52,635 1 13-6102607
80. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Susan R. Cullman: 178,222 1 13-6102591
81. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Susan R. Cullman: 88,973 1 13-6102613
83. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 63,127 1 13-6100169
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
84. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Susan R. Cullman Descendants: 168,762 1 13-6102611
85. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Susan R. Cullman Descendants: 76,419 1 13-6102612
/s/ Louise B. Cullman
-------------------------------------
Louise B. Cullman, not in her individual
capacity but solely as a trustee of the
above named trusts
27. Louise B. Cullman - personal 459,716 ###-##-####
/s/ Louise B. Cullman
-----------------------------------
Louise B. Cullman, in her individual capacity
</TABLE>
<PAGE>
II. TRUSTS OF WHICH EDGAR M. CULLMAN IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
10. Trust Created U/C/O/W Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 21,098 1 13-6387289
11. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 173,990 13-6100148
18. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of Carolyn S. Fabrici
Descendants: 15,675 1 13-6100144
20. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of Carolyn S. Fabrici
Descendants: 173,990 13-6100149
26. Trust Created U/W/O Joseph F. Cullman, Jr.
Dated 6/30/50 For The Benefit of
Edgar M. Cullman: 339,854 13-6828719
30. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Lucy C. Danziger: 129,775 1 13-6102584
31. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Lucy C. Danziger: 24,086 1 13-6103585
32. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Lucy C. Danziger: 171,234 13-6102586
33. Trust Created by Louise B. Cullman
Dated 12/16/43 For The Benefit of
Lucy C. Danziger: 98,976 1 13-6102581
34. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Lucy C. Danziger: 77,441 1 13-6102593
44. Trust Created by Samuel J. Bloomingdale
Dated 4/15/66 For The Benefit of
David M. Danziger: 55,676 1 13-6214196
45. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Lucy C. Danziger Descendants: 108,471 1 13-6102590
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
46 Trust Created by U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Lucy C. Danziger Descendants: 85,479 1 13-6102592
47. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 31,118 1 13-6102589
48. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Lucy C. Danziger Descendants: 46,233 1 13-6102587
50. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Lucy C. Danziger Descendants: 115,335 1 13-6102588
55. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Edgar M. Cullman, Jr.: 111,165 1 13-6102595
56. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Edgar M. Cullman, Jr.: 44,340 13-6102596
57. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Edgar M. Cullman, Jr.: 178,667 1 13-6102597
58. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Edgar M. Cullman, Jr.: 61,215 1 13-6102603
68. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 220,064 1 13-6102599
70. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 53,898 1 13-6102600
71. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 152,260 1 13-6102601
72. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 90,387 1 13-6102602
73. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 7,877 13-6102598
76. Trust Created by Samuel J. & Rita G.Bloomingdale
Dated 1/10/50 For The Benefit of
Susan R. Cullman: 226,190 13-6102604
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
77. Trust Created by Edgar M. Cullman & Louise B. Cullman
Dated 3/21/50 For The Benefit of
Susan R. Cullman: 83,194 1 13-6102605
78. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Susan R. Cullman: 115,584 1 13-6102606
79. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Susan R. Cullman: 52,635 1 13-6102607
80. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Susan R. Cullman: 178,222 1 13-6102591
81. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Susan R. Cullman: 88,973 1 13-6102613
85. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Susan R. Cullman Descendants: 116,847 1 13-6102608
86. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Susan R. Cullman Descendants: 159,498 3-6102609
88. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 60,459 1 13-6102610
89. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Susan R. Cullman Descendants: 168,762 1 13-6102611
90. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Susan R. Cullman Descendants: 76,419 1 13-6102612
/s/ Edgar M. Cullman
---------------------------------------
Edgar M. Cullman, not in his individual
capacity but solely as a trustee of the
above named trusts.
25. Edgar M. Cullman - personal 494,071 101 ###-##-####
/s/ Edgar M. Cullman
--------------------------------------------
Edgar M. Cullman, in his individual capacity
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
92. Samuel J. Bloomingdale Foundation 87,319 13-6099790
93. Louise B. & Edgar M. Cullman Foundation 28,451 13-6100041
95. Justus Heijmans Foundation 889 13-6272082
/s/ Edgar M. Cullman
---------------------------------------
Edgar M. Cullman, not in his individual
capacity but solely as President for
the above named Foundations.
</TABLE>
<PAGE>
III. TRUSTS OF WHICH LUCY C. DANZIGER IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
26. Trust Created U/W/O Joseph F. Cullman, Jr.
Dated 6/30/50 For The Benefit of
Edgar M. Cullman: 339,854 13-6828719
30. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Lucy C. Danziger: 129,775 1 13-6102584
31. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Lucy C. Danziger: 24,086 1 13-6103585
32. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Lucy C. Danziger: 171,234 13-6102586
37. Trust Created by Edgar M. Cullman
Dated 12/26/72 For The Benefit of
Rebecca D. Gamzon: 80,020 1 13-6585287
39. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Rebecca D. Gamzon: 72,018 1 13-6737018
41. Trust Created by Edgar M. Cullman
Dated 12/26/72 For The Benefit of
David M. Danziger: 79,131 1 13-6585286
43. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
David M. Danziger: 71,129 1 13-6737013
44. Trust Created by Samuel J. Bloomingdale
Dated 4/15/66 For The Benefit of
David M. Danziger: 55,676 1 13-6214196
45. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Lucy C. Danziger Descendants: 108,471 1 13-6102590
46. Trust Created by U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Lucy C. Danziger Descendants : 85,479 1 13-6102592
47. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 31,118 1 13-6102589
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
48. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Lucy C. Danziger Descendants:. 46,233 1 13-6102587
49. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 48,145 1 13-6100167
50. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Lucy C. Danziger Descendants: 115,335 1 13-6102588
60. Trust Created by Edgar M. Cullman,Jr.
Dated 12/25/76 For The Benefit of
Edgar M. Cullman, III: 32,008 1 13-6736143
61. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Edgar M. Cullman, III: 90,689 1 13-6737012
63. Trust Created by Edgar M. Cullman, Jr.
Dated 12/25/76 For The Benefit of
Samuel B. Cullman: 32,008 1 13-6736142
64. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Samuel B. Cullman: 90,689 1 13-6737011
66. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Georgina D. Cullman: 88,911 1 13-6737017
67. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 173,270 1 13-6102598
68. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 220,064 1 13-6102599
69. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 68,497 1 13-6100165
70. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 53,898 1 13-6102600
71. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 152,260 1 13-6102601
73. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 7,877 13-6102598
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
83. Trust Created by Susan R. Cullman
Dated 12/25/76 For The Benefit of
Carolyn B. Sicher: 62,237 1 13-6736147
84. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Carolyn B. Sicher: 71,129 1 13-6736170
85. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Susan R. Cullman Descendants: 116,847 1 13-6102608
86. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Susan R. Cullman Descendants: 159,498 13-6102609
87. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 63,127 1 13-6100169
88. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 60,459 1 13-6102610
89. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Susan R. Cullman Descendants: 168,762 1 13-6102611
/s/ Lucy C. Danziger
---------------------------------------
Lucy C. Danziger, not in her individual
capacity but solely as a trustee of
the above named trusts.
29. Lucy C. Danziger - personal 363,834 1 ###-##-####
/s/ Lucy C. Danziger
--------------------------------------------
Lucy C. Danziger, in her individual capacity
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
91. B. Bros. Realty Limited Partnership
Lucy C. Danziger & John L. Ernst
General Partners 1,039,338 1 13-3313591
/s/ Lucy C. Danziger
---------------------------------------
Lucy C. Danziger, not in her individual
capacity but sole as General Partner
for the above named Partnership
</TABLE>
<PAGE>
IV. TRUSTS OF WHICH EDGAR M. CULLMAN, JR. IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
19. Trust Created U/C/O/W Richard C. Ernst
Dated 6/19/84 For The Benefit of Carolyn S. Fabrici
Descendants: 26,655 1 13-6896905
21. Trust Created U/W/O Susan B. Ernst
Dated 4/19/81 For The Benefit of Carolyn S. Fabrici
Family: 8,891 13-6810526
26. Trust Created U/W/O Joseph F. Cullman, Jr.
Dated 6/30/50 For The Benefit of
Edgar M. Cullman: 339,854 13-6828719
34. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Lucy C. Danziger: 77,441 1 13-6102593
37. Trust Created by Edgar M. Cullman
Dated 12/26/72 For The Benefit of
Rebecca D. Gamzon: 80,020 1 13-6585287
38 Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
Rebecca D. Gamzon: 14,225 1 13-6736178
39. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Rebecca D. Gamzon: 72,018 1 13-6737018
41. Trust Created by Edgar M. Cullman
Dated 12/26/72 For The Benefit of
David M. Danziger: 79,131 1 13-6585286
42. Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
David M. Danziger: 14,225 1 13-6736410
43. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
David M. Danziger: 71,129 1 13-6737013
45. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Lucy C. Danziger Descendants: 108,471 1 13-6102590
47. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 31,118 1 13-6102589
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
48. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Lucy C. Danziger Descendants: 46,233 1 13-6102587
49. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 48,145 1 13-6100167
50. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Lucy C. Danziger Descendants: 15,335 1 13-6102588
55. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Edgar M. Cullman, Jr.: 111,165 1 13-6102595
56. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Edgar M. Cullman, Jr.: 44,340 13-6102596
57. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Edgar M. Cullman, Jr.: 178,667 1 13-6102597
58. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Edgar M. Cullman, Jr.: 61,215 1 13-6102603
61. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Edgar M. Cullman, III: 90,689 1 13-6737012
64. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Samuel B. Cullman: 90,689 1 13-6737011
66. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Georgina D. Cullman: 88,911 1 13-6737017
67. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 173,270 1 13-6102598
68. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 220,064 1 13-6102599
69. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 68,497 1 13-6100165
70. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 53,898 1 13-6102600
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
71. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 152,260 1 13-6102601
72. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 90,387 1 13-6102602
73. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 7,877 13-6102598
81. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Susan R. Cullman: 88,973 1 13-6102613
83. Trust Created by Susan R. Cullman
Dated 12/25/76 For The Benefit of
Carolyn B. Sicher: 62,237 1 13-6736147
84. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Carolyn B. Sicher: 71,129 1 13-6736170
85. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Susan R. Cullman Descendants: 116,847 1 13-6102608
86. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Susan R. Cullman Descendants: 159,498 13-6102609
87. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 63,127 1 13-6100169
88. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 60,459 1 13-6102610
/s/ Edgar M. Cullman
----------------------------------
Edgar M. Cullman, Jr. not in his individual
capacity but solely as a trustee of
the above named trusts.
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
54. Edgar M. Cullman, Jr. - personal 539,252 1 ###-##-####
/s/ Edgar M. Cullman
-------------------------------------------
Edgar M. Cullman, in his individual capacity
</TABLE>
<PAGE>
V. TRUSTS OF WHICH SUSAN R. CULLMAN IS A TRUSTEE:
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
26. Trust Created U/W/O Joseph F. Cullman, Jr.
Dated 6/30/50 For The Benefit of
Edgar M. Cullman: 339,854 13-6828719
38. Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
Rebecca D. Gamzon: 14,225 1 13-6736178
39. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Rebecca D. Gamzon: 72,018 1 13-6737018
42. Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
David M. Danziger: 14,225 1 13-6736410
43. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
David M. Danziger: 71,129 1 13-6737013
47. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 31,118 1 13-6102589
48. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Lucy C. Danziger Descendants: 46,233 1 13-6102587
49. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 48,145 1 13-6100167
50. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Lucy C. Danziger Descendants: 115,335 1 13-6102588
60. Trust Created by Edgar M. Cullman,Jr.
Dated 12/25/76 For The Benefit of
Edgar M. Cullman, III: 32,008 1 13-6736143
61. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Edgar M. Cullman, III: 90,689 1 13-6737012
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
64. Trust Created by Edgar M. Cullman, Jr.
Dated 12/25/76 For The Benefit of
Samuel B. Cullman: 32,008 1 13-6736142
65. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Samuel B. Cullman: 90,689 1 13-6737011
66. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Georgina D. Cullman: 88,911 1 13-6737017
67. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 173,270 1 13-6102598
68. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 220,064 1 13-6102599
69. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 68,497 1 13-6100165
70. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 53,898 1 13-6102600
73. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 7,877 1 13-6102598
76. Trust Created by Samuel J. & Rita G. Bloomingdale
Dated 1/10/50 For The Benefit of
Susan R. Cullman: 226,190 13-6102604
77. Trust Created by Edgar M. Cullman & Louise B. Cullman
Dated 3/21/50 For The Benefit of
Susan R. Cullman: 83,194 1 13-6102605
78. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Susan R. Cullman: 115,584 1 13-6102606
79. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Susan R. Cullman: 52,635 1 13-6102607
80. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Susan R. Cullman: 178,222 1 13-6102591
84. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
</TABLE>
<PAGE>
VII. TRUSTS OF WHICH JOHN L. ERNST IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
2. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
John L. Ernst: 4,890 1 13-6100132
3. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
John L. Ernst: 13,696 13-6100135
7. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of John L. Ernst
Descendants: 11,469 13-6100141
8. Trust Created by Susan B. Ernst
Dated 4/9/52 For the Benefit of John L. Ernst
Descendants: 19,400 13-6100138
9. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For the Benefit of John L. Ernst
Descendants: 14,199 13-6100143
10. Trust Created U/C/O/W Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 21,098 1 13-6387289
11. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 173,990 13-6100148
12. Trust Created U/W/P Susan B. Ernst
Dated 4/19/81 For The Benefit of John L. Ernst
Family: 33,155 1 13-6810525
14. Trust Created by Susan B. Ernst
Dated 4/9/52 For The Benefit of Carolyn S. Fabrici
Descendants: 17,088 13-1000139
15. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of Carolyn S. Fabrici: 6,223 13-6100136
16. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Carolyn S. Fabrici: 6,735 13-6100130
17. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of Carolyn S. Fabrici
Descendants 52,017 1 13-6100139
</TABLE>
<PAGE>
VIII. TRUST OF WHICH ALEXANDRA ERNST IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
2. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
John L. Ernst: 4,890 1 13-6100132
3. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
John L. Ernst: 13,696 13-6100135
7. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of John L. Ernst
Descendants: 11,469 13-6100141
8. Trust Created by Susan B. Ernst
Dated 4/9/52 For the Benefit of John L. Ernst
Descendants: 19,400 13-6100138
9. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For the Benefit of John L. Ernst
Descendants: 14,199 13-6100143
10. Trust Created U/C/O/W Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 21,098 1 13-6387289
11. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 173,990 13-6100148
14. Trust Created by Susan B. Ernst
Dated 4/9/52 For The Benefit of Carolyn S. Fabrici
Descendants: 17,088 13-1000139
15. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of Carolyn S. Fabrici: 6,223 13-6100136
16. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Carolyn S. Fabrici: 6,735 13-6100130
17. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of Carolyn S. Fabrici
Descendants 52,017 1 13-6100139
18. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of Carolyn S. Fabrici
Descendants: 15,675 1 13-6100144
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
23. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst: 17,666 13-6100134
24. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst: 17,666 13-6100131
/s/ Alexandra Ernst
--------------------------------------
Alexandra Ernst, not in her individual
capacity but solely as a trustee of the
above named trusts.
4. Alexandra Ernst - personal 6,881 ###-##-####
/s/ Alexandra Ernst
-------------------------------------------
Alexandra Ernst, in her individual capacity
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
18. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of Carolyn S. Fabrici
Descendants: 15,675 1 13-6100144
19. Trust Created U/C/O/W Richard C. Ernst
Dated 6/19/84 For The Benefit of Carolyn S. Fabrici
Descendants: 26,655 1 13-6896905
20. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of Carolyn S. Fabrici
Descendants: 173,990 13-6100149
21. Trust Created U/W/O Susan B. Ernst
Dated 4/19/81 For The Benefit of Carolyn S. Fabrici
Family: 8,891 13-6810526
23. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst: 17,666 13-6100134
24. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst: 17,666 13-6100131
38. Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
Rebecca D. Gamzon: 14,225 1 13-6736178
42. Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
David M. Danziger: 14,225 1 13-6736410
60. Trust Created by Edgar M. Cullman,Jr.
Dated 12/25/76 For The Benefit of
Edgar M. Cullman, III: 32,008 1 13-6736143
63. Trust Created by Edgar M. Cullman, Jr.
Dated 12/25/76 For The Benefit of
Samuel B. Cullman: 32,008 1 13-6736142
83. Trust Created by Susan R. Cullman
Dated 12/25/76 For The Benefit of
Carolyn B. Sicher: 62,237 1 13-6736147
/s/ John L. Ernst
------------------------------------
John L. Ernst, not in his individual
capacity but solely as a trustee of
the above named trusts
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
1. John L. Ernst - personal 26,673 1 ###-##-####
/s/ John L. Ernst
-----------------------------------------
John L. Ernst, in his individual capacity
5. Jessica P. Ernst - personal 5,556 101-66-910
/s/ John L. Ernst
--------------------------------------------------
John L. Ernst, not in his individual capacity, but
as Parent of the above named minor child
22. Dorothy P. Ernst - personal
John L. Ernst, Guardian 11,909 1 065-38-791
/s/ John L. Ernst
-------------------------------------
John L. Ernst, not in his individual
capacity but solely as Guardian for the
above named individual
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Carolyn B. Sicher: 71,129 1 13-6736170
85. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Susan R. Cullman Descendants: 116,847 1 13-6102608
86. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Susan R. Cullman Descendants: 159,498 13-6102609
87. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 63,127 1 13-6100169
88. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 60,459 1 13-6102610
89. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Susan R. Cullman Descendants: 168,762 1 13-6102611
90. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Susan R. Cullman Descendants: 76,419 1 13-6102612
/s/ Susan R. Cullman
--------------------------------------------
Susan R. Cullman, not in her individual
capacity but solely as a trustee of the above
named trusts
75. Susan R. Cullman - personal 390,165 ###-##-####
/s/ Susan R. Cullman
---------------------------------------------
Susan R. Cullman, in her individual capacity
</TABLE>
<PAGE>
VI. TRUSTS OF WHICH CAROLYN S. FABRICI IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
10. Trust Created U/C/O/W Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 21,098 1 13-6387289
11. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 173,990 13-6100148
14. Trust Created by Susan B. Ernst
Dated 4/9/52 For The Benefit of Carolyn S. Fabrici
Descendants: 17,088 13-1000139
15. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of Carolyn S. Fabrici: 6,223 13-6100136
16. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Carolyn S. Fabrici: 6,735 13-6100130
17. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of Carolyn S. Fabrici
Descendants 52,017 1 13-6100139
18. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of Carolyn S. Fabrici
Descendants: 5,675 1 13-6100144
19. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of Carolyn S. Fabrici
Descendants: 26,655 1 13-6896905
20. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of Carolyn S. Fabrici
Descendants: 173,990 13-6100149
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
23. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst : 17,666 13-6100134
24. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst: 17,666 13-6100131
/s/ Carolyn S. Fabrici
-----------------------------------------
Carolyn S. Fabrici, not in her individual
capacity but solely as a trustee of the
above named trusts.
13. Carolyn S. Fabrici - personal 106,062 ###-##-####
/s/ Carolyn S. Fabrici
---------------------------------------------
Carolyn S. Fabrici, in her individual capacity
</TABLE>
<PAGE>
IX. TRUSTS OF WHICH FREDERICK M. DANZIGER IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
12. Trust Created U/W/O Susan B. Ernst
Dated 4/19/81 For The Benefit of John L. Ernst
Family: 33,155 1 13-6810525
19. Trust Created U/C/O/W Richard C. Ernst
Dated 6/19/84 For The Benefit of Carolyn S. Fabrici
Descendants: 26,655 1 13-6896905
36. Trust Created by Lucy C. Danziger
Dated 12/24/69 For The Benefit of
Rebecca D. Gamzon: 101,358 1 13-6345528
37. Trust Created by Edgar M. Cullman
Dated 12/26/72 For The Benefit of
Rebecca D. Gamzon: 80,020 1 13-6585287
38. Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
Rebecca D. Gamzon: 14,225 1 13-6736178
39. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Rebecca D. Gamzon: 72,018 1 13-6737018
41. Trust Created by Edgar M. Cullman
Dated 12/26/72 For The Benefit of
David M. Danziger: 79,131 1 13-6585286
42. Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
David M. Danziger: 14,225 1 13-6736410
43. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
David M. Danziger: 71,129 1 13-6737013
44. Trust Created by Samuel J. Bloomingdale
Dated 4/15/66 For The Benefit of
David M. Danziger: 55,676 1 13-6214196
52. Trust Created by Elsie B. Paskus
Dated 8/26/64 For The Benefit of
Frederick M. Danziger: 6,223 13-6159963
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
53. Trust Created by Elsie B. Paskus
Dated 8/26/64 For The Benefit of
Richard M. Danziger: 13,336 13-6159970
66. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Georgina D. Cullman: 88,911 1 13-6737017
/s/ Frederick M. Danziger
--------------------------------------------
Frederick M. Danziger, not in his individual
capacity but solely as a trustee of the above
named trusts
51. Frederick M. Danziger - personal 73,538 ###-##-####
/s/ Frederick M. Danziger
------------------------------------------------
Frederick M. Danziger in his individual capacity
</TABLE>
<PAGE>
TRUSTS OF WHICH ELISSA F. CULLMAN IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
60. Trust Created by Edgar M. Cullman,Jr.
Dated 12/25/76 For The Benefit of
Edgar M. Cullman, III: 32,008 1 13-6736143
61. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Edgar M. Cullman, III: 90,689 1 13-6737012
63. Trust Created by Edgar M. Cullman, Jr.
Dated 12/25/76 For The Benefit of
Samuel B. Cullman: 32,008 1 13-6736142
64. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Samuel B. Cullman: 90,689 1 13-6737011
/s/ Elissa F. Cullman
----------------------------------------
Elissa F. Cullman, not in her individual
capacity but solely as a trustee of the
above named trusts
74. Elissa F. Cullman - personal 75,574 ###-##-####
/s/ Elissa F. Cullman
---------------------------------------------
Elissa F. Cullman, in her individual capacity
</TABLE>
<PAGE>
XI. TRUSTS OF WHICH MARGOT P. ERNST IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
2. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
John L. Ernst: 4,890 1 13-6100132
3. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
John L. Ernst: 13,696 13-6100135
7. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of John L. Ernst
Descendants: 11,469 13-6100141
8. Trust Created by Susan B. Ernst
Dated 4/9/52 For the Benefit of John L. Ernst
Descendants: 19,400 13-6100138
9. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For the Benefit of John L. Ernst
Descendants: 14,199 13-6100143
/s/ Margot P. Ernst
-----------------------------------
Margot P. Ernst, not in her individual
capacity but solely as a trustee of the above
named trusts
</TABLE>
<PAGE>
XII. TRUSTS OF WHICH RICHARD M. DANZIGER IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
36. Trust Created by Lucy C. Danziger
Dated 12/24/69 For The Benefit of
Rebecca D. Gamzon: 101,358 1 13-6345528
52. Trust Created by Elsie B. Paskus
Dated 8/26/64 For The Benefit of
Frederick M. Danziger: 6,223 13-6159963
53. Trust Created by Elsie B. Paskus
Dated 8/26/64 For The Benefit of
Richard M. Danziger 13,336 13-6159970
/s/ Richard M. Danziger
---------------------------------------------
Richard M. Danziger, not in his individual
capacity but solely as a trustee of the above
named trusts
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
91. B. Bros. Realty Limited Partnership
Lucy C. Danziger & John L. Ernst
General Partners 1,039,338 1 13-3313591
/s/ Lucy C. Danziger
---------------------------------
Lucy C. Danziger, as General Partner
/s/ John L. Ernst
---------------------------------
John L. Ernst, as General Partner
92. Samuel J. Bloomingdale Foundation 87,319 13-6099790
/s/ Susan R. Cullman
-----------------------------------
Susan R. Cullman, as President
93. Louise B. & Edgar M. Cullman Foundation 28,451 13-6100041
/s/ Susan R. Cullman
------------------------------------
Susan R. Cullman, as President
95. Justus Heijmans Foundation 889 13-6272082
/s/ Edgar M. Cullman
-------------------------------------
Edgar M. Cullman, as Trustee
94. Richard C. & Susan B. Ernst Foundation 53,560 13-6153761
/s/ John L. Ernst
--------------------------------------
John L. Ernst, as President
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
4. Alexandra Ernst - personal 6,881 ###-##-####
/s/ Alexandra Ernst
---------------------------
6. Matthew L. Ernst - personal 5,556 ###-##-####
/s/ Matthew L. Ernst
---------------------------
59. Edgar M. Cullman, III - personal 60,431 1 ###-##-####
/s/ Edgar M. Cullman
---------------------------
62. Samuel B. Cullman - personal 83,550 1 ###-##-####
/s/ Samuel B. Cullman
---------------------------
65. Georgina D. Cullman - personal 34,577 1 ###-##-####
/s/ Georgina D. Cullman
---------------------------
82. Carolyn B. Sicher - personal 95,233 1 ###-##-####
/s/ Carolyn B. Sicher
---------------------------
</TABLE>
<PAGE>
EXHIBIT C
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (the "AGREEMENT"), dated as of
January 19, 2000, between certain shareholders signatories hereto (each a "C&E
SHAREHOLDER" and together the "C&E SHAREHOLDERS") of General Cigar Holdings,
Inc., a Delaware corporation (the "COMPANY"), and Swedish Match AB, a Kingdom of
Sweden corporation ("SWEDISH MATCH").
RECITALS
A. Whereas, Swedish Match desires to purchase from C&E
Shareholders and C&E Shareholders desire to sell to Swedish Match, an aggregate
of 3.5 million shares of Class B Common Stock of the Company (the "STOCK
PURCHASE").
B. Whereas concurrently with the execution and delivery of
this Agreement Swedish Match, the Company and SM Merger Corporation, a Delaware
corporation ("SM ACQUISITION"), are entering into an Agreement and Plan of
Merger (the "MERGER AGREEMENT") which provides for the merger of SM Acquisition
with and into the Company (the "MERGER").
C. All terms used herein and not otherwise defined herein
shall have the meanings assigned to them in the Merger Agreement.
AGREEMENT
NOW, THEREFORE, In consideration of the mutual covenants and
promises contained herein and for other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
I. PURCHASE OF COMPANY SHARES
1.1 SALE OF THE COMPANY SHARES. Upon the terms and subject to the
conditions contained herein, at the Closing each C&E Shareholder shall sell,
convey, transfer, assign and deliver to Swedish Match the shares of Class B
Common Stock of the Company set forth with respect to such C&E Shareholder on
Schedule A hereto (the "SHARES"), free and clear of all Liens (provided that the
C&E Representative shall have the right, upon notice to Swedish Match, to modify
the allocation of shares set forth on Schedule A among the C&E Shareholders
prior to the Closing as long as (i) the aggregate number of Shares being sold by
all the C&E Shareholders remains unchanged and (ii) Edgar M. Cullman, Sr. and
Edgar M. Cullman, Jr., do not sell more than one third of their current holdings
of shares of Class B Common Stock (owned directly or indirectly) pursuant to
this Agreement.
<PAGE>
1.2 CONSIDERATION FOR THE SHARES. Upon the terms and subject to the
conditions contained herein, at the Closing, Swedish Match shall pay to the C&E
Shareholders $15.00 per Share, constituting an aggregate of $52.5 million (the "
AGGREGATE PURCHASE PRICE").
1.3 DELIVERY OF SHARES. At the Closing the C&E Representative will deliver
to Swedish Match a duly issued and executed stock certificate, registered in the
name of Swedish Match and representing all the Shares being sold hereunder.
1.4 DELIVERY OF PURCHASE PRICE. At the Closing, Swedish Match will deliver
to the C&E Representative the Aggregate Purchase Price in immediately available
funds payable to the account designated by the C&E Representative. Swedish
Match's obligations with respect to the delivery of the purchase price for the
Shares shall terminate upon the delivery of the Aggregate Purchase Price in
accordance with the first sentence of this Section 1.4, and the C&E
Representative shall be solely responsible for the distribution to each C&E
Shareholder of its portion of the Aggregate Purchase Price.
1.5 THE CLOSING. The Closing of the purchase and sale of the Shares
hereunder (the "CLOSING") shall occur immediately prior to consummation of the
Merger, provided that all conditions precedent to consummation of the Merger
(other than as agreed upon by Swedish Match and the C&E Representative) have
been satisfied.
II. SWEDISH MATCH'S REPRESENTATIONS AND WARRANTIES
Swedish Match represents and warrants to the C&E Shareholders as of the
Closing Date as follows:
2.1 ORGANIZATION AND STANDING. Swedish Match is duly organized, validly
existing and in good standing under the laws of the Kingdom of Sweden and has
full corporate power and authority to conduct its business as it is presently
being conducted and to own and lease its Assets.
2.2 CORPORATE POWER; AUTHORIZATION. Swedish Match has all requisite
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by Swedish Match, and the consummation of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action on the part of
Swedish Match. This Agreement has been duly executed and delivered by Swedish
Match and constitutes a valid and binding obligation of Swedish Match
enforceable in accordance with its terms.
2.3 NO CONFLICTS. Neither the execution and delivery of this Agreement by
Swedish Match, nor the consummation of the transactions contemplated hereby and
compliance with the terms hereof will violate, conflict with or result in a
breach, or constitute a default (with or without notice or lapse of time or
both) under any provision of, the articles of association of Swedish Match, any
trust agreement, loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession, franchise, license,
judgment, order,
<PAGE>
notice, decree, statute, law, ordinance, rule or regulation applicable to
Swedish Match or to Swedish Match's property or assets.
2.4 FINANCING. Swedish Match has, or will have immediately prior to the
Closing, sufficient funds to perform its obligations hereunder. Such funds
(whether provided by Swedish Match or by a permitted designee, transferee or
assignee of Swedish Match pursuant to SECTION 5.2 hereof) will not come from
General Cigar Holdings, Inc., any of the subsidiaries of General Cigar Holdings,
Inc., SM Acquisition Corporation, or debt whose acquisition or financing was
based upon the profits or assets of General Cigar Holdings, Inc., any of the
subsidiaries of General Cigar Holdings, Inc. or SM Acquisition Corporation.
III. SELLER'S REPRESENTATIONS AND WARRANTIES
Each C&E Shareholder, severally (and not jointly) represents and warrants
to Swedish Match as of the Closing Date as follows:
3.1 AUTHORITY. Such C&E Shareholder has all requisite power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly authorized, executed and delivered by such
C&E Shareholder and constitutes a valid and binding obligation of such C&E
Shareholder enforceable in accordance with its terms. If any C&E Shareholder is
married and the Shares of such C&E Shareholder constitute community property or
otherwise needs spousal or other approval for this Agreement to be legal, valid
and binding with respect to such Shares, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, such C&E Shareholder's spouse, enforceable against such spouse in
accordance with its terms. If such C&E Shareholder is a trust, no consent of any
beneficiary is required for the execution and deliver of this Agreement or the
consummation of the transactions contemplated hereby.
3.2 NO CONFLICTS. None of (i) the execution and delivery of this Agreement;
(ii) the consummation of the transactions contemplated hereby; or (iii)
compliance with the terms hereof will violate, conflict with or result in a
breach, or constitute a default (with or without notice of lapse of time or
both) under any provision of, any trust agreement, loan or credit agreement,
note, bond, mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise, license, judgment, order, notice, decree, statute, law,
ordinance, rule or regulation applicable to such C&E Shareholder or to such C&E
Shareholder's property or assets.
3.3 THE SHARES. Such C&E Shareholder is the record and beneficial owner of,
or is trustee of a trust that is the record holder of and whose beneficiaries
are the beneficial owners of, and has good and marketable title to, the Shares
set forth opposite such C&E Shareholder's name on Schedule A hereto, free and
clear of any mortgage, lien, pledge, charge, encumbrance, security interest or
other adverse claim (collectively "LIENS"). To the best of such C&E Shareholder'
knowledge each such Share has been duly authorized and validly issued and is
fully paid and non-assessable. Upon delivery of the stock certificates therefor
at the Closing in accordance with Section 1.3, Swedish Match or its designee
will acquire good, valid and marketable title to the Shares, free and clear of
all Liens. Each C&E Shareholder has the sole
<PAGE>
right to vote, or to dispose, of such Shares, and none of such Shares is subject
to any agreement, arrangement or restriction with respect to the voting of such
Shares. Except for the this Agreement and the C&E Voting Agreement, (i) there
are, and as of the Closing there will be no agreements or arrangements of any
kind, contingent or otherwise, obligating any C&E Shareholder to sell, transfer,
assign, grant a participation interest in, option pledge, hypothecate or
otherwise dispose or encumber (each, a "TRANSFER"), or cause to be Transferred,
any of the Shares, and (ii) no Person has any contractual or other right or
obligation to purchase or otherwise acquire any of the Shares.
IV. CONDITIONS TO THE STOCK PURCHASE
4.1 CONDITIONS TO THE OBLIGATIONS OF EACH PARTY. The obligations of the C&E
Shareholders, on the one hand, and Swedish Match on the other hand, to
consummate the transactions contemplated hereby at the Closing are subject to
the satisfaction, on or prior to the Closing Date, of each of the conditions set
forth in Article VII of the Merger Agreement (other than as agreed upon by
Swedish Match and the C&E Representative). In addition unless waived by Swedish
Match, the obligation of Swedish Match to consummate the transactions
contemplated hereby will be subject to all representations and warranties of the
C&E Shareholders contained in this Agreement being true and correct in all
material respects when made and as of the date of the Closing.
V. MISCELLANEOUS
5.1 AMENDMENT. This Agreement may be amended, modified or supplemented
only by a written instrument executed by the C&E Representative (on behalf of
the C&E Shareholders) and Swedish Match.
5.2 ASSIGNMENT. Swedish Match may, in its sole discretion, assign or
transfer all or any of its rights, interests and obligations under this
Agreement to any of its Subsidiaries, PROVIDED, that Swedish Match shall not
assign or transfer any of its rights, interests or obligations under this
Agreement to General Cigar Holdings, Inc. or SM Acquisition and PROVIDED
FURTHER, that no such permissible assignment or transfer shall relieve
Swedish Match of any liability under this Agreement and Swedish Match shall
be jointly and severally liable for the obligations of its transferee or
assignee under this Agreement.
5.3 APPLICABLE LAW; CONSENT TO JURISDICTION. This Agreement shall be
construed and enforced in accordance with, and be governed by, the internal
laws of the State of New York, without regard to its choice of law rules, and
the parties consent to the exclusive jurisdiction of the federal and state
courts located in the city of New York to resolve any dispute relating to
this Agreement.
5.4 TERMINATION. This agreement shall terminate upon the termination of the
Merger Agreement, and no part of this Agreement shall survive such termination.
5.5 SURVIVABILITY. The representations and warranties contained in this
Agreement shall survive the Closing.
<PAGE>
5.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts; each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
5.7 STOCK TRANSFER TAXES. Any applicable stock transfer taxes shall be paid
by the C&E Shareholders.
5.8 C&E REPRESENTATIVE. Each C&E Shareholder hereby designates and appoints
each of Edgar M. Cullman, Sr. and Edgar M. Cullman, Jr., acting jointly or
individually, as its attorney(s)-in-fact with full power of substitution for
each of them (each, a "C&E REPRESENTATIVE"), to serve as the representative(s)
of each such C&E Shareholder to perform all such acts as are required,
authorized or contemplated by this Agreement to be performed by such person and
hereby acknowledges that the C&E Representatives shall be the only persons
authorized to take any action so required, authorized or contemplated by this
Agreement by each such C&E Shareholder. Each such C&E Shareholder further
acknowledges that the foregoing appointment and designation shall be deemed to
be coupled with an interest and shall survive the death or incapacity of such
C&E Shareholder. Each such C&E Shareholder hereby authorizes (and each such
Permitted Transferee shall be deemed to have authorized) the other parities
hereto to disregard any notices or other action taken by such C&E Shareholder
pursuant to this Agreement, except for notice and actions taken by any C&E
Representatives. The other parties hereto are and will be entitled to rely on
any action so taken or any notice given by the C&E Representatives and are and
will be entitled and authorized to give notices only to the C&E Representatives
for any notice contemplated by this Agreement to be given to any such C&E
Shareholder. A successor to the C&E Representatives may be chosen by a majority
in interest of the C&E Shareholders; provided that notice thereof is given by
the new C&E Representative to the Company and to Swedish Match.
[signature page follows]
<PAGE>
IN WITNESS WHEREOF, Swedish Match and C&E Shareholders have
executed this Agreement as of the day and year first above written.
SWEDISH MATCH AB
By: /s/ Massimo Rossi
-----------------------------------
Name:
Title:
Each of the undersigned
hereby acknowledges and
accepts his appointment as a
C&E Representative pursuant
to Section 5.8:
/s/ Edgar M. Cullman
- -------------------------
Edgar M. Cullman
/s/ Edgar M. Cullman, Jr.
- -------------------------
Edgar M. Cullman, Jr.
<PAGE>
I. TRUSTS OF WHICH LOUISE B. CULLMAN IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
2. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
John L. Ernst: 4,890 1 13-6100132
3. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
John L. Ernst: 13,696 13-6100135
7. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of John L. Ernst
Descendants: 11,469 13-6100141
8. Trust Created by Susan B. Ernst
Dated 4/9/52 For the Benefit of John L. Ernst
Descendants: 19,400 13-6100138
9. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For the Benefit of John L. Ernst
Descendants: 14,199 13-6100143
10. Trust Created U/C/O/W Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 21,098 1 13-6387289
11. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 173,990 13-6100148
14. Trust Created by Susan B. Ernst
Dated 4/9/52 For The Benefit of Carolyn S. Fabrici
Descendants: 17,088 13-1000139
15. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of Carolyn S. Fabrici: 6,223 13-6100136
16. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Carolyn S. Fabrici: 6,735 13-6100130
17. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of Carolyn S. Fabrici
Descendants 52,017 1 13-6100139
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
18. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of Carolyn S. Fabrici
Descendants: 15,675 1 13-6100144
19. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of Carolyn S. Fabrici
Descendants: 173,990 13-6100149
23. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst : 17,666 13-6100134
24. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst: 17,666 13-6100131
28. Trust Created by Rita G. Bloomingdale
Dated 11/27/31 For The Benefit of
Louise B. Cullman 133,367 13-6045860
30. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Lucy C. Danziger: 129,775 1 13-6102584
31. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Lucy C. Danziger 24,086 1 13-6103585
32. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Lucy C. Danziger: 171,234 13-6102586
33. Trust Created by Louise B. Cullman
Dated 12/16/43 For The Benefit of
Lucy C. Danziger: 98,976 1 13-6102581
34. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Lucy C. Danziger: 77,441 1 13-6102593
41. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Lucy C. Danziger Descendants: 108,471 1 13-6102590
42. Trust Created by U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Lucy C. Danziger Descendants: 85,479 1 13-6102592
43. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 48,145 1 13-6100167
55. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Edgar M. Cullman, Jr.: 11,165 1 13-6102595
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
56. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Edgar M. Cullman, Jr.: 44,340 13-6102596
57. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Edgar M. Cullman, Jr.: 178,667 113-6102597
58. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Edgar M. Cullman, Jr: 61,215 1 13-6102603
66. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 68,497 1 13-6100165
67. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 152,260 1 13-6102601
68. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Edgar M. Cullman, Jr. Descendants 90,387 1 13-6102602
76. Trust Created by Samuel J. & Rita G. Bloomingdale
Dated 1/10/50 For The Benefit of
Susan R. Cullman 226,190 13-6102604
77. Trust Created by Edgar M. Cullman & Louise B. Cullman
Dated 3/21/50 For The Benefit of
Susan R. Cullman 83,194 1 13-6102605
78. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Susan R. Cullman, Trustees: 115,584 1 13-6102606
79. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Susan R. Cullman: 52,635 1 13-6102607
80. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Susan R. Cullman: 178,222 1 13-6102591
81. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Susan R. Cullman: 88,973 1 13-6102613
83. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 63,127 1 13-6100169
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
84. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Susan R. Cullman Descendants: 168,762 1 13-6102611
85. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Susan R. Cullman Descendants: 76,419 1 13-6102612
/s/ Louise B. Cullman
-------------------------------------
Louise B. Cullman, not in her individual
capacity but solely as a trustee of the
above named trusts
27. Louise B. Cullman - personal 459,716 ###-##-####
/s/ Louise B. Cullman
-----------------------------------
Louise B. Cullman, in her individual capacity
</TABLE>
<PAGE>
II. TRUSTS OF WHICH EDGAR M. CULLMAN IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
10. Trust Created U/C/O/W Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 21,098 1 13-6387289
11. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 173,990 13-6100148
18. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of Carolyn S. Fabrici
Descendants: 15,675 1 13-6100144
20. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of Carolyn S. Fabrici
Descendants: 173,990 13-6100149
26. Trust Created U/W/O Joseph F. Cullman, Jr.
Dated 6/30/50 For The Benefit of
Edgar M. Cullman: 339,854 13-6828719
30. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Lucy C. Danziger: 129,775 1 13-6102584
31. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Lucy C. Danziger: 24,086 1 13-6103585
32. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Lucy C. Danziger: 171,234 13-6102586
33. Trust Created by Louise B. Cullman
Dated 12/16/43 For The Benefit of
Lucy C. Danziger: 98,976 1 13-6102581
34. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Lucy C. Danziger: 77,441 1 13-6102593
44. Trust Created by Samuel J. Bloomingdale
Dated 4/15/66 For The Benefit of
David M. Danziger: 55,676 1 13-6214196
45. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Lucy C. Danziger Descendants: 108,471 1 13-6102590
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
46 Trust Created by U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Lucy C. Danziger Descendants: 85,479 1 13-6102592
47. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 31,118 1 13-6102589
48. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Lucy C. Danziger Descendants: 46,233 1 13-6102587
50. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Lucy C. Danziger Descendants: 115,335 1 13-6102588
55. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Edgar M. Cullman, Jr.: 111,165 1 13-6102595
56. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Edgar M. Cullman, Jr.: 44,340 13-6102596
57. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Edgar M. Cullman, Jr.: 178,667 1 13-6102597
58. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Edgar M. Cullman, Jr.: 61,215 1 13-6102603
68. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 220,064 1 13-6102599
70. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 53,898 1 13-6102600
71. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 152,260 1 13-6102601
72. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 90,387 1 13-6102602
73. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 7,877 13-6102598
76. Trust Created by Samuel J. & Rita G.Bloomingdale
Dated 1/10/50 For The Benefit of
Susan R. Cullman: 226,190 13-6102604
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
77. Trust Created by Edgar M. Cullman & Louise B. Cullman
Dated 3/21/50 For The Benefit of
Susan R. Cullman: 83,194 1 13-6102605
78. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Susan R. Cullman: 115,584 1 13-6102606
79. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Susan R. Cullman: 52,635 1 13-6102607
80. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Susan R. Cullman: 178,222 1 13-6102591
81. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Susan R. Cullman: 88,973 1 13-6102613
85. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Susan R. Cullman Descendants: 116,847 1 13-6102608
86. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Susan R. Cullman Descendants: 159,498 3-6102609
88. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 60,459 1 13-6102610
89. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Susan R. Cullman Descendants: 168,762 1 13-6102611
90. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Susan R. Cullman Descendants: 76,419 1 13-6102612
/s/ Edgar M. Cullman
---------------------------------------
Edgar M. Cullman, not in his individual
capacity but solely as a trustee of the
above named trusts.
25. Edgar M. Cullman - personal 494,071 101 ###-##-####
/s/ Edgar M. Cullman
--------------------------------------------
Edgar M. Cullman, in his individual capacity
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
92. Samuel J. Bloomingdale Foundation 87,319 13-6099790
93. Louise B. & Edgar M. Cullman Foundation 28,451 13-6100041
95. Justus Heijmans Foundation 889 13-6272082
/s/ Edgar M. Cullman
---------------------------------------
Edgar M. Cullman, not in his individual
capacity but solely as a trustee of the
above named trusts.
</TABLE>
<PAGE>
III. TRUSTS OF WHICH LUCY C. DANZIGER IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
26. Trust Created U/W/O Joseph F. Cullman, Jr.
Dated 6/30/50 For The Benefit of
Edgar M. Cullman: 339,854 13-6828719
30. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Lucy C. Danziger: 129,775 1 13-6102584
31. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Lucy C. Danziger: 24,086 1 13-6103585
32. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Lucy C. Danziger: 171,234 13-6102586
37. Trust Created by Edgar M. Cullman
Dated 12/26/72 For The Benefit of
Rebecca D. Gamzon: 80,020 1 13-6585287
39. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Rebecca D. Gamzon: 72,018 1 13-6737018
41. Trust Created by Edgar M. Cullman
Dated 12/26/72 For The Benefit of
David M. Danziger: 79,131 1 13-6585286
43. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
David M. Danziger: 71,129 1 13-6737013
44. Trust Created by Samuel J. Bloomingdale
Dated 4/15/66 For The Benefit of
David M. Danziger: 55,676 1 13-6214196
45. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Lucy C. Danziger Descendants: 108,471 1 13-6102590
46. Trust Created by U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Lucy C. Danziger Descendants : 85,479 1 13-6102592
47. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 31,118 1 13-6102589
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
48. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Lucy C. Danziger Descendants:. 46,233 1 13-6102587
49. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 48,145 1 13-6100167
50. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Lucy C. Danziger Descendants: 115,335 1 13-6102588
60. Trust Created by Edgar M. Cullman,Jr.
Dated 12/25/76 For The Benefit of
Edgar M. Cullman, III: 32,008 1 13-6736143
61. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Edgar M. Cullman, III: 90,689 1 13-6737012
63. Trust Created by Edgar M. Cullman, Jr.
Dated 12/25/76 For The Benefit of
Samuel B. Cullman: 32,008 1 13-6736142
64. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Samuel B. Cullman: 90,689 1 13-6737011
66. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Georgina D. Cullman: 88,911 1 13-6737017
67. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 173,270 1 13-6102598
68. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 220,064 1 13-6102599
69. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 68,497 1 13-6100165
70. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 53,898 1 13-6102600
71. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 152,260 1 13-6102601
73. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 7,877 13-6102598
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
83. Trust Created by Susan R. Cullman
Dated 12/25/76 For The Benefit of
Carolyn B. Sicher: 62,237 1 13-6736147
84. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Carolyn B. Sicher: 71,129 1 13-6736170
85. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Susan R. Cullman Descendants: 116,847 1 13-6102608
86. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Susan R. Cullman Descendants: 159,498 13-6102609
87. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 63,127 1 13-6100169
88. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 60,459 1 13-6102610
89. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Susan R. Cullman Descendants: 168,762 1 13-6102611
/s/ Lucy C. Danziger
---------------------------------------
Lucy C. Danziger, not in her individual
capacity but solely as a trustee of
the above named trusts.
29. Lucy C. Danziger - personal 363,834 1 ###-##-####
/s/ Lucy C. Danziger
--------------------------------------------
Lucy C. Danziger, in her individual capacity
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
91. B. Bros. Realty Limited Partnership
Lucy C. Danziger & John L. Ernst
General Partners 1,039,338 1 13-3313591
/s/ Lucy C. Danziger
---------------------------------------
Lucy C. Danziger, not in her individual
capacity but solely as a trustee of
the above named trusts.
</TABLE>
<PAGE>
IV. TRUSTS OF WHICH EDGAR M. CULLMAN, JR. IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
19. Trust Created U/C/O/W Richard C. Ernst
Dated 6/19/84 For The Benefit of Carolyn S. Fabrici
Descendants: 26,655 1 13-6896905
21. Trust Created U/W/O Susan B. Ernst
Dated 4/19/81 For The Benefit of Carolyn S. Fabrici
Family: 8,891 13-6810526
26. Trust Created U/W/O Joseph F. Cullman, Jr.
Dated 6/30/50 For The Benefit of
Edgar M. Cullman: 339,854 13-6828719
34. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Lucy C. Danziger: 77,441 1 13-6102593
37. Trust Created by Edgar M. Cullman
Dated 12/26/72 For The Benefit of
Rebecca D. Gamzon: 80,020 1 13-6585287
38 Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
Rebecca D. Gamzon: 14,225 1 13-6736178
39. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Rebecca D. Gamzon: 72,018 1 13-6737018
41. Trust Created by Edgar M. Cullman
Dated 12/26/72 For The Benefit of
David M. Danziger: 79,131 1 13-6585286
42. Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
David M. Danziger: 14,225 1 13-6736410
43. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
David M. Danziger: 71,129 1 13-6737013
45. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Lucy C. Danziger Descendants: 108,471 1 13-6102590
47. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 31,118 1 13-6102589
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
48. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Lucy C. Danziger Descendants: 6,233 1 13-6102587
49. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 48,145 1 13-6100167
50. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Lucy C. Danziger Descendants: 15,335 1 13-6102588
55. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Edgar M. Cullman, Jr.: 11,165 1 13-6102595
56. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Edgar M. Cullman, Jr.: 44,340 13-6102596
57. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Edgar M. Cullman, Jr.: 178,667 1 13-6102597
58. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Edgar M. Cullman, Jr.: 61,215 1 13-6102603
61. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Edgar M. Cullman, III: 90,689 1 13-6737012
64. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Samuel B. Cullman: 90,689 1 13-6737011
66. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Georgina D. Cullman: 88,911 1 13-6737017
67. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 173,270 1 13-6102598
68. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 220,064 1 13-6102599
69. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 68,497 1 13-6100165
70. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 53,898 1 13-6102600
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
71. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 152,260 1 13-6102601
72. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 90,387 1 13-6102602
73. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 7,877 13-6102598
81. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Susan R. Cullman: 88,973 1 13-6102613
83. Trust Created by Susan R. Cullman
Dated 12/25/76 For The Benefit of
Carolyn B. Sicher: 62,237 1 13-6736147
84. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Carolyn B. Sicher: 71,129 1 13-6736170
85. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Susan R. Cullman Descendants: 116,847 1 13-6102608
86. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Susan R. Cullman Descendants: 159,498 13-6102609
87. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 63,127 1 13-6100169
88. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 60,459 1 13-6102610
/s/ Edgar M. Cullman
----------------------------------
Edgar M. Cullman, Jr. not in his individual
capacity but solely as a trustee of
the above named trusts.
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
54. Edgar M. Cullman, Jr. - personal 539,252 1 ###-##-####
/s/ Edgar M. Cullman
-------------------------------------------
Edgar M. Cullman, in his individual capacity
</TABLE>
<PAGE>
V. TRUSTS OF WHICH SUSAN R. CULLMAN IS A TRUSTEE:
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
26. Trust Created U/W/O Joseph F. Cullman, Jr.
Dated 6/30/50 For The Benefit of
Edgar M. Cullman: 339,854 13-6828719
38. Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
Rebecca D. Gamzon: 14,225 1 13-6736178
39. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Rebecca D. Gamzon: 72,018 1 13-6737018
42. Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
David M. Danziger: 14,225 1 13-6736410
43. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
David M. Danziger: 71,129 1 13-6737013
47. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 31,118 1 13-6102589
48. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Lucy C. Danziger Descendants: 46,233 1 13-6102587
49. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 48,145 1 13-6100167
50. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Lucy C. Danziger Descendants: 115,335 1 13-6102588
60. Trust Created by Edgar M. Cullman,Jr.
Dated 12/25/76 For The Benefit of
Edgar M. Cullman, III: 32,008 1 13-6736143
61. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Edgar M. Cullman, III: 90,689 1 13-6737012
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
64. Trust Created by Edgar M. Cullman, Jr.
Dated 12/25/76 For The Benefit of
Samuel B. Cullman: 32,008 1 13-6736142
65. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Samuel B. Cullman: 90,689 1 13-6737011
66. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Georgina D. Cullman: 88,911 1 13-6737017
67. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 173,270 1 13-6102598
68. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 220,064 1 13-6102599
69. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 68,497 1 13-6100165
70. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 53,898 1 13-6102600
73. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 7,877 1 13-6102598
76. Trust Created by Samuel J. & Rita G. Bloomingdale
Dated 1/10/50 For The Benefit of
Susan R. Cullman: 226,190 13-6102604
77. Trust Created by Edgar M. Cullman & Louise B. Cullman
Dated 3/21/50 For The Benefit of
Susan R. Cullman: 83,194 1 13-6102605
78. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Susan R. Cullman: 115,584 1 13-6102606
79. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Susan R. Cullman: 52,635 1 13-6102607
80. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Susan R. Cullman: 178,222 1 13-6102591
84. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
</TABLE>
<PAGE>
VII. TRUSTS OF WHICH JOHN L. ERNST IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
2. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
John L. Ernst: 4,890 1 13-6100132
3. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
John L. Ernst: 13,696 13-6100135
7. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of John L. Ernst
Descendants: 11,469 13-6100141
8. Trust Created by Susan B. Ernst
Dated 4/9/52 For the Benefit of John L. Ernst
Descendants: 19,400 13-6100138
9. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For the Benefit of John L. Ernst
Descendants: 14,199 13-6100143
10. Trust Created U/C/O/W Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 21,098 1 13-6387289
11. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 173,990 13-6100148
12. Trust Created U/W/O Susan B. Ernst
Dated 4/19/81 For The Benefit of John L. Ernst
Family 33,155 1 13-6810525
14. Trust Created by Susan B. Ernst
Dated 4/9/52 For The Benefit of Carolyn S. Fabrici
Descendants: 17,088 13-1000139
15. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of Carolyn S. Fabrici: 6,223 13-6100136
16. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Carolyn S. Fabrici: 6,735 13-6100130
17. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of Carolyn S. Fabrici
Descendants 52,017 1 13-6100139
</TABLE>
<PAGE>
VIII. TRUST OF WHICH ALEXANDRA ERNST IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
2. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
John L. Ernst: 4,890 1 13-6100132
3. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
John L. Ernst: 13,696 13-6100135
7. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of John L. Ernst
Descendants: 11,469 13-6100141
8. Trust Created by Susan B. Ernst
Dated 4/9/52 For the Benefit of John L. Ernst
Descendants: 19,400 13-6100138
9. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For the Benefit of John L. Ernst
Descendants: 14,199 13-6100143
10. Trust Created U/C/O/W Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 21,098 1 13-6387289
11. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 173,990 13-6100148
14. Trust Created by Susan B. Ernst
Dated 4/9/52 For The Benefit of Carolyn S. Fabrici
Descendants: 17,088 13-1000139
15. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of Carolyn S. Fabrici: 6,223 13-6100136
16. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Carolyn S. Fabrici: 6,735 13-6100130
17. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of Carolyn S. Fabrici
Descendants 52,017 1 13-6100139
18. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of Carolyn S. Fabrici
Descendants: 15,675 1 13-6100144
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
23. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst: 17,666 13-6100134
24. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst: 17,666 13-6100131
/s/ Alexandra Ernst
--------------------------------------
Alexandra Ernst, not in her individual
capacity but solely as a trustee of the
above named trusts.
4. Alexandra Ernst - personal 6,881 ###-##-####
/s/ Alexandra Ernst
-------------------------------------------
Alexandra Ernst, in her individual capacity
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
18. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of Carolyn S. Fabrici
Descendants: 15,675 1 13-6100144
19. Trust Created U/C/O/W Richard C. Ernst
Dated 6/19/84 For The Benefit of Carolyn S. Fabrici
Descendants: 26,655 1 13-6896905
20. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of Carolyn S. Fabrici
Descendants: 173,990 13-6100149
21. Trust Created U/W/O Susan B. Ernst
Dated 4/19/81 For The Benefit of Carolyn S. Fabrici
Family: 8,891 13-6810526
23. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst: 17,666 13-6100134
24. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst: 17,666 13-6100131
38. Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
Rebecca D. Gamzon: 14,225 1 13-6736178
42. Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
David M. Danziger: 14,225 1 13-6736410
60. Trust Created by Edgar M. Cullman,Jr.
Dated 12/25/76 For The Benefit of
Edgar M. Cullman, III: 32,008 1 13-6736143
63. Trust Created by Edgar M. Cullman, Jr.
Dated 12/25/76 For The Benefit of
Samuel B. Cullman: 32,008 1 13-6736142
83. Trust Created by Susan R. Cullman
Dated 12/25/76 For The Benefit of
Carolyn B. Sicher: 62,237 1 13-6736147
/s/ John L. Ernst
------------------------------------
John L. Ernst, not in his individual
capacity but solely as a trustee of
the above named trusts
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
1. John L. Ernst - personal 26,673 1 ###-##-####
/s/ John L. Ernst
-----------------------------------------
John L. Ernst, in his individual capacity
5. Jessica P. Ernst - personal 5,556 101-66-910
/s/ John L. Ernst
--------------------------------------------------
John L. Ernst, not in his individual capacity, but
as Parent of the above named minor child
22. Dorothy P. Ernst - personal
John L. Ernst, Guardian 11,909 1 065-38-791
/s/ John L. Ernst
-------------------------------------
John L. Ernst, not in his individual
capacity but solely as Guardian for the
above named individual
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Carolyn B. Sicher: 71,129 1 13-6736170
85. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Susan R. Cullman Descendants: 116,847 1 13-6102608
86. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Susan R. Cullman Descendants: 159,498 13-6102609
87. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 63,127 1 13-6100169
88. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 60,459 1 13-6102610
89. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Susan R. Cullman Descendants: 168,762 1 13-6102611
90. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Susan R. Cullman Descendants: 76,419 1 13-6102612
/s/ Susan R. Cullman
--------------------------------------------
Susan R. Cullman, not in her individual
capacity but solely as a trustee of the above
named trusts
75. Susan R. Cullman - personal 390,165 ###-##-####
/s/ Susan R. Cullman
---------------------------------------------
Susan R. Cullman, in her individual capacity
</TABLE>
<PAGE>
VI. TRUSTS OF WHICH CAROLYN S. FABRICI IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
10. Trust Created U/C/O/W Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 21,098 1 13-6387289
11. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 173,990 13-6100148
14. Trust Created by Susan B. Ernst
Dated 4/9/52 For The Benefit of Carolyn S. Fabrici
Descendants: 17,088 13-1000139
15. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of Carolyn S. Fabrici: 6,223 13-6100136
16. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Carolyn S. Fabrici: 6,735 13-6100130
17. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of Carolyn S. Fabrici
Descendants 52,017 1 13-6100139
18. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of Carolyn S. Fabrici
Descendants: 15,675 1 13-6100144
19. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of Carolyn S. Fabrici
Descendants: 26,655 1 13-6896905
20. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of Carolyn S. Fabrici
Descendants: 173,990 13-6100149
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
23. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst : 17,666 13-6100134
24. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst: 17,666 13-6100131
/s/ Carolyn S. Fabrici
-----------------------------------------
Carolyn S. Fabrici, not in her individual
capacity but solely as a trustee of the
above named trusts.
13. Carolyn S. Fabrici - personal 106,062 ###-##-####
/s/ Carolyn S. Fabrici
---------------------------------------------
Carolyn S. Fabrici, in her individual capacity
</TABLE>
<PAGE>
IX. TRUSTS OF WHICH FREDERICK M. DANZIGER IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
12. Trust Created U/W/O Susan B. Ernst
Dated 4/19/81 For The Benefit of John L. Ernst
Family: 33,155 1 13-6810525
19. Trust Created U/C/O/W Richard C. Ernst
Dated 6/19/84 For The Benefit of Carolyn S. Fabrici
Descendants: 26,655 1 13-6896905
36. Trust Created by Lucy C. Danziger
Dated 12/24/69 For The Benefit of
Rebecca D. Gamzon: 101,358 1 13-6345528
37. Trust Created by Edgar M. Cullman
Dated 12/26/72 For The Benefit of
Rebecca D. Gamzon: 80,020 1 13-6585287
38. Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
Rebecca D. Gamzon: 14,225 1 13-6736178
39. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Rebecca D. Gamzon: 72,018 1 13-6737018
41. Trust Created by Edgar M. Cullman
Dated 12/26/72 For The Benefit of
David M. Danziger: 79,131 1 13-6585286
42. Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
David M. Danziger: 14,225 1 13-6736410
43. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
David M. Danziger: 71,129 1 13-6737013
44. Trust Created by Samuel J. Bloomingdale
Dated 4/15/66 For The Benefit of
David M. Danziger: 55,676 1 13-6214196
52. Trust Created by Elsie B. Paskus
Dated 8/26/64 For The Benefit of
Frederick M. Danziger: 6,223 13-6159963
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
53. Trust Created by Elsie B. Paskus
Dated 8/26/64 For The Benefit of
Richard M. Danziger: 13,336 13-6159970
66. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Georgina D. Cullman: 88,911 1 13-6737017
/s/ Frederick M. Danziger
--------------------------------------------
Frederick M. Danziger, not in his individual
capacity but solely as a trustee of the above
named trusts
51. Frederick M. Danziger - personal 73,538 ###-##-####
/s/ Frederick M. Danziger
------------------------------------------------
Frederick M. Danziger in his individual capacity
</TABLE>
<PAGE>
TRUSTS OF WHICH ELISSA F. CULLMAN IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
60. Trust Created by Edgar M. Cullman,Jr.
Dated 12/25/76 For The Benefit of
Edgar M. Cullman, III: 32,008 1 13-6736143
61. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Edgar M. Cullman, III: 90,689 1 13-6737012
63. Trust Created by Edgar M. Cullman, Jr.
Dated 12/25/76 For The Benefit of
Samuel B. Cullman: 32,008 1 13-6736142
64. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Samuel B. Cullman: 90,689 1 13-6737011
/s/ Elissa F. Cullman
----------------------------------------
Elissa F. Cullman, not in her individual
capacity but solely as a trustee of the
above named trusts
74. Elissa F. Cullman - personal 75,574 ###-##-####
/s/ Elissa F. Cullman
---------------------------------------------
Elissa F. Cullman, in her individual capacity
</TABLE>
<PAGE>
XI. TRUSTS OF WHICH MARGOT P. ERNST IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
2. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
John L. Ernst: 4,890 1 13-6100132
3. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
John L. Ernst: 13,696 13-6100135
7. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of John L. Ernst
Descendants: 11,469 13-6100141
8. Trust Created by Susan B. Ernst
Dated 4/9/52 For the Benefit of John L. Ernst
Descendants: 19,400 13-6100138
9. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For the Benefit of John L. Ernst
Descendants: 14,199 13-6100143
/s/ Margot P. Ernst
-----------------------------------
Margot P. Ernst, not in her individual
capacity but solely as a trustee of the above
named trusts
</TABLE>
<PAGE>
XII. TRUSTS OF WHICH RICHARD M. DANZIGER IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
36. Trust Created by Lucy C. Danziger
Dated 12/24/69 For The Benefit of
Rebecca D. Gamzon: 101,358 1 13-6345528
52. Trust Created by Elsie B. Paskus
Dated 8/26/64 For The Benefit of
Frederick M. Danziger: 6,223 13-6159963
53. Trust Created by Elsie B. Paskus
Dated 8/26/64 For The Benefit of
Richard M. Danziger 13,336 13-6159970
/s/ Richard M. Danziger
---------------------------------------------
Richard M. Danziger, not in his individual
capacity but solely as a trustee of the above
named trusts
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
91. B. Bros. Realty Limited Partnership
Lucy C. Danziger & John L. Ernst
General Partners 1,039,338 1 13-3313591
/s/ Lucy C. Danziger
---------------------------------
Lucy C. Danziger, as General Partner
/s/ John L. Ernst
---------------------------------
John L. Ernst, as General Partner
92. Samuel J. Bloomingdale Foundation 87,319 13-6099790
/s/ Susan R. Cullman
-----------------------------------
Susan R. Cullman, as President
93. Louise B. & Edgar M. Cullman Foundation 28,451 13-6100041
/s/ Susan R. Cullman
------------------------------------
Susan R. Cullman, as President
95. Justus Heijmans Foundation 889 13-6272082
/s/ Edgar M. Cullman
-------------------------------------
Edgar M. Cullman, as Trustee
94. Richard C. & Susan B. Ernst Foundation 53,560 13-6153761
/s/ John L. Ernst
--------------------------------------
John L. Ernst, as President
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
4. Alexandra Ernst - personal 6,881 ###-##-####
/s/ Alexandra Ernst
---------------------------
6. Matthew L. Ernst - personal 5,556 ###-##-####
/s/ Matthew L. Ernst
---------------------------
59. Edgar M. Cullman, III - personal 60,431 1 ###-##-####
/s/ Edgar M. Cullman
---------------------------
62. Samuel B. Cullman - personal 83,550 1 ###-##-####
/s/ Samuel B. Cullman
---------------------------
65. Georgina D. Cullman - personal 34,577 1 ###-##-####
/s/ Georgina D. Cullman
---------------------------
82. Carolyn B. Sicher - personal 95,233 1 ###-##-####
/s/ Carolyn B. Sicher
---------------------------
</TABLE>
<PAGE>
EXHIBIT D
C&E VOTING AGREEMENT
C&E VOTING AGREEMENT dated as of January 19, 2000, between Swedish
Match AB, a company organized under the laws of Sweden ("SWEDISH MATCH"), and
the Persons listed on signature pages hereof (each, a "C&E SHAREHOLDER" and,
collectively, the "C&E SHAREHOLDERS").
RECITALS
A. General Cigar Holdings, Inc. is a company organized under the laws
of the State of Delaware (the "COMPANY"). Each C&E Shareholder owns the number
of shares of Class A Common Stock, par value $0.01 per share, of the Company
(including any common stock into which such common stock may be converted or
exchanged after the date hereof, the "CLASS A COMMON STOCK") and of Class B
Common Stock, par value $0.01 per share, of the Company (including any common
stock into which such common stock may be converted or exchanged after the date
hereof, the "CLASS B COMMON STOCK" and, together with the Class A Common Stock,
the "COMMON STOCK") set forth opposite such C&E Shareholder's name on Schedule A
hereto (such shares of Common Stock, together with any other shares of capital
stock of the Company acquired by any C&E Shareholder after the date hereof and
during the term of this Agreement, being collectively referred to herein as the
"SUBJECT SHARES").
B. Concurrently with the execution and delivery of this Agreement,
Swedish Match, SM Merger Corporation, a company organized under the laws of the
State of Delaware ("SM ACQUISITION"), and the Company are entering into an
Agreement and Plan of Merger (as the same may from time to time be modified,
supplemented or restated, the "MERGER AGREEMENT") providing for the merger of SM
Acquisition with and into the Company (the "MERGER") upon the terms and subject
to the conditions set forth therein.
C. Concurrently with the execution and delivery of this Agreement,
Swedish Match and the C&E Shareholders are entering into (i) a Stock Purchase
Agreement (as the same may from time to time be modified, supplemented or
restated, the "STOCK PURCHASE AGREEMENT") providing for the purchase by Swedish
Match of 3,500,000 Subject Shares immediately prior to the effective time of the
Merger (the "EFFECTIVE TIME"), all upon the terms and subject to the conditions
set forth therein, and (ii) a Shareholders' Agreement (as the same may from time
to time be modified supplemented or restated, the "SHAREHOLDERS' AGREEMENT")
with the Company governing certain of the rights, duties and obligations of the
parties thereto relating to their ownership of stock of the Company following
the Merger.
<PAGE>
D. As a condition to entering into the Merger Agreement and the Stock
Purchase Agreement, Swedish Match has required that the C&E Shareholders enter
into this Agreement, and the C&E Shareholders desire to enter into this
Agreement to induce Swedish Match to enter into the Merger Agreement and Stock
Purchase Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF EACH C&E SHAREHOLDER. Each C&E
Shareholder, severally and not jointly, represents and warrants to Swedish Match
as follows:
(a) AUTHORITY. Such C&E Shareholder has all requisite power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by such C&E Shareholder and constitutes a valid and binding
obligation of such C&E Shareholder enforceable in accordance with its
terms. If such C&E Shareholder is married and the Subject Shares of such
C&E Shareholder constitute community property or otherwise need spousal or
other approval for this Agreement to be legal, valid and binding with
respect to such Subject Shares, this Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding agreement
of, such C&E Shareholder's spouse, enforceable against such spouse in
accordance with its terms. If such C&E Shareholder is a trust, no consent
of any beneficiary is required for the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
(b) NO CONFLICTS. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated hereby
and compliance with the terms hereof will violate, conflict with or result
in a breach, or constitute a default (with or without notice of lapse of
time or both) under any provision of, any trust agreement, loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license, judgment, order,
notice, decree, statute, law, ordinance, rule or regulation applicable to
such C&E Shareholder or to such C&E Shareholder's property or assets.
(c) THE SUBJECT SHARES. Such C&E Shareholder is the record and
beneficial owner of, or is trustee of a trust that is the record holder of
and whose beneficiaries are the beneficial owners of, and has good and
marketable title to, the Subject Shares set forth opposite such C&E
Shareholder's name on Schedule A hereto, free and clear of any mortgage,
lien, pledge, charge, encumbrance, security interest or other adverse
claim. Such C&E Shareholder does not own, of record or beneficially, any
shares of capital stock of the Company other than the Subject Shares set
forth opposite such
2
<PAGE>
C&E Shareholder's name on Schedule A hereto. Such C&E Shareholder has the
sole right to vote, or to dispose, of such Subject Shares, and none of
such Subject Shares is subject to any agreement, arrangement or
restriction with respect to the voting of such Subject Shares, except as
contemplated by this Agreement or the Shareholders' Agreement. Except for
the Stock Purchase Agreement and the Shareholders' Agreement, and, if such
C&E Shareholder is a trust, in accordance with the terms of such trust,
(i) there are no agreements or arrangements of any kind, contingent or
otherwise, obligating such C&E Shareholder to sell, transfer, assign,
grant a participation interest in, option pledge, hypothecate or otherwise
dispose or encumber (each, a "TRANSFER"), or cause to be Transferred, any
of the Subject Shares, and (ii) no Person (as defined in the Merger
Agreement) has any contractual or other right or obligation to purchase or
otherwise acquire any of the Subject Shares.
(d) RELIANCE BY SWEDISH MATCH. Such C&E Shareholder understands and
acknowledges that Swedish Match is entering into, and causing Swedish
Match to enter into, the Merger Agreement and the Stock Purchase Agreement
in reliance upon such C&E Shareholder's execution and delivery of this
Agreement.
(e) LITIGATION. There is no action, proceeding or investigation
pending or threatened against such C&E Shareholder that questions the
validity of this Agreement or any action taken or to be taken by such C&E
Shareholder in connection with this Agreement.
2. REPRESENTATIONS AND WARRANTIES OF SWEDISH MATCH. Swedish Match
hereby represents and warrants to each C&E Shareholder that Swedish Match has
all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Swedish Match, and the consummation of the transactions
contemplated hereby, have been duly authorized by all necessary corporate action
on the part of Swedish Match. This Agreement has been duly executed and
delivered by Swedish Match and constitutes a valid and binding obligation of
Swedish Match enforceable in accordance with its terms. Neither the execution
and delivery of this Agreement, nor the consummation of the transactions
contemplated hereby and compliance with the terms hereof will violate, conflict
with or result in a breach, or constitute a default (with or without notice or
lapse of time or both) under any provision of, the articles of association of
Swedish Match, any trust agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit, concession,
franchise, license, judgment, order, notice, decree, statute, law, ordinance,
rule or regulation applicable to Swedish Match or to Swedish Match's property or
assets.
3
<PAGE>
3. COVENANTS OF EACH C&E SHAREHOLDER. Until the termination of this
Agreement in accordance with Section 6, each C&E Shareholder, severally and not
jointly, agrees as follows:
(a) At any meeting of shareholders of the Company called to vote upon
the Merger and the Merger Agreement or at any adjournment thereof or in
any other circumstances upon which a vote, consent or other approval
(including by written consent) with respect to the Merger and the Merger
Agreement is sought, each C&E Shareholder shall vote (or cause to be
voted) the Subject Shares (and each class thereof) in favor of the
adoption by the Company of the Merger and the approval of the Merger
Agreement and each of the transactions contemplated by the Merger
Agreement; PROVIDED that the C&E Shareholders shall vote (or cause to be
voted) the Subject Shares that are Class A Common Stock in the same manner
as the vote of the holders of a majority of the outstanding shares of the
Class A Common Stock (excluding such Subject Shares) voting as a single
class.
(b) At any meeting of shareholders of the Company or at any
adjournment thereof or in any other circumstances upon which a vote,
consent or other approval of all or some of the shareholders of the
Company is sought, each C&E Shareholder shall vote (or cause to be voted)
its Subject Shares (and each class thereof) against (i) any merger
agreement or merger (other than the Merger Agreement and the Merger),
consolidation, combination, sale or transfer of a material amount of
assets, reorganization, recapitalization, dissolution, liquidation or
winding up of or by the Company or any Acquisition Proposal (as defined in
the Merger Agreement), and (ii) any amendment of the Company's certificate
of incorporation or by-laws or other proposal or transaction involving the
Company or any of its subsidiaries, which amendment or other proposal or
transaction would in any manner delay, impede, frustrate, prevent or
nullify the Merger, the Merger Agreement or any of the other transactions
contemplated by the Merger Agreement or change in any manner the voting
rights of each class of Common Stock. Subject to Section 4, each C&E
Shareholder further agrees not to commit or agree to take any action
inconsistent with the foregoing.
(c) Except as provided in the next to the last sentence of this
Section 3(c), each C&E Shareholder agrees not to, directly or indirectly,
(i) Transfer or enter into any agreement, option or other arrangement
(including any profit sharing arrangement) with respect to the Transfer
of, any Subject Shares to any Person, other than in accordance with the
Merger Agreement, the Stock Purchase Agreement or the Shareholders'
Agreement, (ii) grant any proxies, or proxies, deposit any Subject Shares
into any voting trust or enter into any voting arrangement, whether by
proxy, voting agreement or otherwise, with respect to the Subject Shares,
other than
4
<PAGE>
pursuant to this Agreement and the Shareholders' Agreement, or (iii)
convert (or cause to be converted) any of the Subject Shares consisting of
Class B Common Stock into Class A Common Stock. Subject to the next to the
last sentence of this Section 3(c), each C&E Shareholder further agrees
not to commit or agree to take any of the foregoing actions.
Notwithstanding the foregoing, each C&E Shareholder shall have the right
to Transfer its Subject Shares to a Permitted Transferee (as defined in
this Section 3(c)) of such C&E Shareholder if and only if such Permitted
Transferee shall have agreed in writing, in a manner acceptable in form
and substance to Swedish Match, (i) to accept such Subject Shares subject
to the terms and conditions of this Agreement, and (ii) to be bound by
this Agreement and to agree and acknowledge that such Person shall
constitute a C&E Shareholder for all purposes of this Agreement.
"PERMITTED TRANSFEREE" means, with respect to any C&E Shareholder, (A) any
other C&E Shareholder, (B) a spouse or lineal descendant (whether natural
or adopted), sibling, parent, heir, executor, administrator, testamentary
trustee, lifetime trustee or legatee of such C&E Shareholder, (C) any
charitable organization described in section 170(c) of the U.S. Internal
Revenue Code of 1986, as amended, (D) any trust, the trustees of which
include only the Persons named in clause (A) or (B) and the beneficiaries
of which include only the Persons named in clause (A), (B) or (C), (E) any
corporation, limited liability company or partnership, the stockholders,
members or general or limited partners of which include only the Persons
named in clause (A) or (B), or (F) if such C&E Shareholder is a trust, the
beneficiary or beneficiaries authorized or entitled to receive
distributions from such trust.
(d) Subject to the terms of Section 4, no C&E Shareholder shall, nor
shall any C&E Shareholder permit any investment banker, attorney or other
adviser or representative of any C&E Shareholder to, such, directly or
indirectly, initiate, solicit (including by way of furnishing
information), encourage or respond to or take any other action knowingly
to facilitate, any inquiries or the making of any proposal by any Person
(other than Swedish Match or any affiliate of Swedish Match) with respect
to the Company that constitutes or reasonably may be expected to lead to,
an Acquisition Proposal, or enter into or maintain or continue discussions
or negotiate with any person or entity in furtherance of such inquiries or
to obtain any Acquisition Proposal, or agree to or endorse any Acquisition
Proposal, or authorize or permit any Person acting on behalf of such C&E
Shareholder to do any of the foregoing, and no C&E Shareholder shall,
alone or together with any other Person, make an Acquisition Proposal. If
any C&E Shareholder receives any inquiry or proposal regarding any
Acquisition Proposal, such C&E Shareholder shall promptly inform Swedish
Match of such inquiry or proposal and the details thereof.
5
<PAGE>
(e) Each C&E Shareholder shall use all reasonable efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, and to
assist and cooperate with the other parties in doing, all things
necessary, proper or advisable to consummate and make effective, in the
most expeditious manner practicable, the Merger and the other transactions
contemplated by the Merger Agreement and the Stock Purchase Agreement, and
to carry out the intent and purposes of this Agreement.
4. SHAREHOLDER CAPACITY. No Person executing this Agreement who is or
becomes during the term hereof a director or officer of the Company shall be
deemed to make any agreement or understanding in this Agreement in such Person's
capacity as a director or officer. Each C&E Shareholder is entering into this
Agreement solely in its capacity as the record holder or beneficial owner of, or
the trustee of a trust whose beneficiaries are the beneficial owners of, such
C&E Shareholder's Subject Shares and nothing herein shall limit or affect any
actions taken by a C&E Shareholder in its capacity as a director or officer of
the Company to the extent specifically permitted by the Merger Agreement or
following the termination of the Merger Agreement.
5. C&E REPRESENTATIVE. (a) Each C&E Shareholder hereby designates and
appoints (and each permitted Transferee of each such C&E Shareholder is hereby
deemed to have so designated and appointed) each of Edgar M. Cullman and Edgar
M. Cullman, Jr. (each, a "C&E REPRESENTATIVE"), acting jointly or individually,
as its attorneys-in-fact with full power of substitution for each of them, to
serve as the representative(s) of such C&E Shareholder to perform all such acts
as are required, authorized or contemplated by this Agreement to be performed by
such C&E Shareholder (including the voting of the Subject Shares in accordance
with Sections 3(a) and (b)), and hereby acknowledges that each C&E
Representative shall be authorized to take any action so required, authorized or
contemplated by this Agreement. Each such C&E Shareholder further acknowledges
that the foregoing appointment and designation shall be deemed to be coupled
with an interest and shall survive the death or incapacity of such C&E
Shareholder. Each such C&E Shareholder hereby authorizes (and each such
Permitted Transferee of such C&E Shareholder shall be deemed to have authorized)
the other parties hereto to disregard any notices or other action taken by such
C&E Shareholder pursuant to this Agreement, except for notices and actions taken
by the C&E Representatives. Swedish Match is and will be entitled to rely on any
action so taken or any notice given by any C&E Representative and is and will be
entitled and authorized to give notices only to the C&E Representative for any
notice contemplated by this Agreement to be given to any such C&E Shareholder. A
successor to the C&E Representative may be chosen by a majority in interest of
the C&E Shareholders; PROVIDED that notice thereof is given by the new C&E
Representative to Swedish Match.
6
<PAGE>
(b) Notwithstanding the generality of Section 5(a), each C&E
Shareholder hereby constitutes and appoints each C&E Representative, acting
jointly or individually, with full power of substitution, as the proxy pursuant
to the provisions of Section 212 of the Delaware General Corporation Law and
attorney of such C&E Shareholder, and hereby authorizes and empowers each C&E
Representative, acting individually or jointly, to represent, vote and otherwise
act (by voting at any meeting of the shareholders of the Company, by written
consent in lieu thereof or otherwise) with respect to the Subject Shares owned
or held by such C&E Shareholder regarding the matters referred to in Sections
3(a) and (b) until the termination of this Agreement, to the same extent and
with the same effect as such C&E Shareholder might or could do under applicable
law, rules and regulations. The proxy granted pursuant to the immediately
preceding sentence is coupled with an interest and shall be irrevocable. Each
C&E Shareholder hereby revokes any and all previous proxies or powers of
attorney granted with respect to any of the Subject Shares owned or held by such
C&E Shareholder regarding the matters referred to in Sections 3(a) and (b).
6. TERMINATION. This Agreement shall terminate (i) upon the earlier
of (A) the Effective Time and (B) the last day of the 18th full calendar month
following the date of the termination of the Merger Agreement, or (ii) at any
time upon notice by Swedish Match to the C&E Representative. No party hereto
shall be relieved from any liability for breach of this Agreement by reason of
any such termination.
7. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without regard to any
principles or rules of conflicts of laws thereof.
8. JURISDICTION; WAIVER OF JURY TRIAL. (a) Each of the parties hereto
irrevocably and unconditionally (i) agrees that any legal suit, action or
proceeding brought by any party hereto arising out of or based upon this
Agreement or the transactions contemplated hereby may be brought in the Courts
of Delaware or the United States District Court for the District of Delaware
(each, a "DELAWARE COURT"), (ii) waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding brought in any Delaware Court, and any
claim that any such action or proceeding brought in any Delaware Court has been
brought in an inconvenient forum, and (iii) submits to the non-exclusive
jurisdiction of Delaware Courts in any suit, action or proceeding. Each of the
parties agrees that a judgment in any suit, action or proceeding brought in a
Delaware Court shall be conclusive and binding upon it and may be enforced in
any other courts to whose jurisdiction it is or may be subject, by suit upon
such judgment.
7
<PAGE>
(b) Each of the parties agrees and acknowledges that any controversy
that may arise under this Agreement is likely to involve complicated and
difficult issues, and therefore each such party hereby irrevocably and
unconditionally waives any right such party may have to a trial by jury in
respect of any litigation directly or indirectly arising out of or relating to
this Agreement, or the breach, termination or validity of this Agreement.
9. SPECIFIC PERFORMANCE. Each C&E Shareholder acknowledges and agrees
that (i) the covenants, obligations and agreements of such C&E Shareholder
contained in this Agreement relate to special, unique and extraordinary matters,
(ii) Swedish Match is and will be relying on such covenants in connection with
entering into the Merger Agreement and the Stock Purchase Agreement, the
performance of its obligations under the Merger Agreement and the purchase of
shares pursuant to the Stock Purchase Agreement, and (iii) a violation of any of
the terms of such covenants, obligations or agreements will cause Swedish Match
irreparable injury for which adequate remedies are not available at law.
Therefore, each C&E Shareholder agrees that Swedish Match shall be entitled to
an injunction, restraining order or such other equitable relief (without the
requirement to post bond) as a court of competent jurisdiction may deem
necessary or appropriate to restrain such C&E Shareholder from committing any
violation of such covenants, obligations or agreements. These injunctive
remedies are cumulative and in addition to any other rights and remedies Swedish
Match may have.
10. AMENDMENT, WAIVERS, ETC. Neither this Agreement nor any term
hereof may be amended or otherwise modified other than by an instrument in
writing signed by Swedish Match and the C&E Representative. No provision of this
Agreement may be waived, discharged or terminated other than by an instrument in
writing signed by the party against whom the enforcement of such waiver,
discharge or termination is sought.
11. ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. This Agreement shall
not be assignable or otherwise transferable by a party without the prior consent
of the other parties, and any attempt to so assign or otherwise transfer this
Agreement without such consent shall be void and of no effect; PROVIDED that (i)
any Permitted Transferee acquiring any Subject Shares in accordance with this
Section 3(c) shall, upon the delivery of the documents contemplated by Section
3(c), become a "C&E Shareholder", and (ii) Swedish Match may, in its sole
discretion, assign or transfer all or any of its rights, interests and
obligations under this Agreement to SM Acquisition or any direct or indirect
wholly-owned subsidiary of Swedish Match. This Agreement shall be binding upon
the respective heirs, successors, legal representatives and permitted assigns of
the parties hereto. Nothing in this Agreement shall be construed as giving any
Person, other than the parties hereto and their heirs, successors, legal
representatives and permitted assigns, any right, remedy or claim under or in
respect of this Agreement or any provision hereof.
8
<PAGE>
12. NOTICES. All notices, consents, requests, instructions, approvals
and other communications provided for in this Agreement shall be in writing and
shall be deemed validly given upon personal delivery or one day after being sent
by overnight courier service or by telecopy (so long as for notices or other
communications sent by telecopy, the transmitting telecopy machine records
electronic conformation of the due transmission of the notice), at the following
address or telecopy number, or at such other address or telecopy number as a
party may designate to the other parties:
(A) if to Swedish Match to:
Swedish Match AB
SE-118 85 Stockholm
Sweden
Attn: Senior Vice President
and Legal Counsel
Telecopy: (46-8) 720-7656
with a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Attn.: Paul S. Bird
Telecopy: (1-212) 909-6836;
(B) if to any C&E Shareholder to:
Edgar M. Cullman, Sr.
Edgar M. Cullman, Jr.
c/o General Cigar Holdings, Inc.
387 Park Avenue South
New York, New York 10016-8899
Telecopy: (1-212) 561-8791
with a copy to:
Latham & Watkins
885 Third Avenue
New York, New York 10022-4802
Attn.: R. Ronald Hopkinson
Telecopy: (1-212) 751-4864.
9
<PAGE>
13. REMEDIES. No failure or delay by any party in exercising any
right, power or privilege under this Agreement shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies provided herein shall be cumulative and not exclusive of any
rights or remedies provided by law.
14. SEVERABILITY. If any provision of this Agreement is held to be
invalid or unenforceable for any reason, it shall be adjusted rather than
voided, if possible, in order to achieve the intent of the parties hereto to the
maximum extent possible. In any event, the invalidity or unenforceability of any
provision of this Agreement in any jurisdiction shall not affect the validity or
enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of this Agreement, including that provision, in any
other jurisdiction.
15. INTEGRATION. This Agreement, including the Schedules hereto, the
Shareholders' Agreement and the Stock Purchase Agreement constitute the full and
entire understanding and agreement of the parties with respect to the subject
matter hereof and thereof and supersede any and all prior understandings or
agreements relating to the subject matter hereof and thereof.
16. SECTION HEADINGS. The article and section headings of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
10
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and date first above written.
SWEDISH MATCH AB
By: /s/ Massimo Rossi
------------------------------------
Name:
Title:
Each of the undersigned hereby (i) acknowledges
and accepts his appointment as a C&E
Representative pursuant to Section 5(a)
and the grant of the proxy referred to in
Section 5(b), and (ii) agrees and confirms
that he will vote all Subject Shares in
accordance with Sections 3(a) and (b):
/s/ Edgar M. Cullman, Sr.
- -------------------------------
Edgar M. Cullman, Sr.
/s/ Edgar M. Cullman, Jr.
- -------------------------------
Edgar M. Cullman, Jr.
11
<PAGE>
I. TRUSTS OF WHICH LOUISE B. CULLMAN IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
2. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
John L. Ernst: 4,890 1 13-6100132
3. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
John L. Ernst: 13,696 13-6100135
7. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of John L. Ernst
Descendants: 11,469 13-6100141
8. Trust Created by Susan B. Ernst
Dated 4/9/52 For the Benefit of John L. Ernst
Descendants: 19,400 13-6100138
9. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For the Benefit of John L. Ernst
Descendants: 14,199 13-6100143
10. Trust Created U/C/O/W Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 21,098 1 13-6387289
11. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 173,990 13-6100148
14. Trust Created by Susan B. Ernst
Dated 4/9/52 For The Benefit of Carolyn S. Fabrici
Descendants: 17,088 13-1000139
15. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of Carolyn S. Fabrici: 6,223 13-6100136
16. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Carolyn S. Fabrici: 6,735 13-6100130
17. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of Carolyn S. Fabrici
Descendants 52,017 1 13-6100139
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
18. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of Carolyn S. Fabrici
Descendants: 15,675 1 13-6100144
19. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of Carolyn S. Fabrici
Descendants: 173,990 13-6100149
23. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst : 17,666 13-6100134
24. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst: 17,666 13-6100131
28. Trust Created by Rita G. Bloomingdale
Dated 11/27/31 For The Benefit of
Louise B. Cullman 133,367 13-6045860
30. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Lucy C. Danziger: 129,775 1 13-6102584
31. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Lucy C. Danziger 24,086 1 13-6103585
32. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Lucy C. Danziger: 171,234 13-6102586
33. Trust Created by Louise B. Cullman
Dated 12/16/43 For The Benefit of
Lucy C. Danziger: 98,976 1 13-6102581
34. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Lucy C. Danziger: 77,441 1 13-6102593
41. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Lucy C. Danziger Descendants: 108,471 1 13-6102590
42. Trust Created by U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Lucy C. Danziger Descendants: 85,479 1 13-6102592
43. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 48,145 1 13-6100167
55. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Edgar M. Cullman, Jr.: 11,165 1 13-6102595
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
56. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Edgar M. Cullman, Jr.: 44,340 13-6102596
57. Trust Created by Rita G. Bloomingdale 1
Dated 6/14/51 For The Benefit of
Edgar M. Cullman, Jr.: 178,667 113-6102597
58. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Edgar M. Cullman, Jr: 61,215 1 13-6102603
66. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 68,497 1 13-6100165
67. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 152,260 1 13-6102601
68. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Edgar M. Cullman, Jr. Descendants 90,387 1 13-6102602
76. Trust Created by Samuel J. & Rita G. Bloomingdale
Dated 1/10/50 For The Benefit of
Susan R. Cullman 226,190 13-6102604
77. Trust Created by Edgar M. Cullman & Louise B. Cullman
Dated 3/21/50 For The Benefit of
Susan R. Cullman 83,194 1 13-6102605
78. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Susan R. Cullman, Trustees: 115,584 1 13-6102606
79. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Susan R. Cullman: 52,635 1 13-6102607
80. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Susan R. Cullman: 178,222 1 13-6102591
81. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Susan R. Cullman: 88,973 1 13-6102613
83. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 63,127 1 13-6100169
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
84. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Susan R. Cullman Descendants: 168,762 1 13-6102611
85. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Susan R. Cullman Descendants: 76,419 1 13-6102612
/s/ Louise B. Cullman
-------------------------------------
Louise B. Cullman, not in her individual
capacity but solely as a trustee of the
above named trusts
27. Louise B. Cullman - personal 459,716 ###-##-####
/s/ Louise B. Cullman
-----------------------------------
Louise B. Cullman, in her individual capacity
</TABLE>
<PAGE>
II. TRUSTS OF WHICH EDGAR M. CULLMAN IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
10. Trust Created U/C/O/W Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 21,098 1 13-6387289
11. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 173,990 13-6100148
18. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of Carolyn S. Fabrici
Descendants: 15,675 1 13-6100144
20. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of Carolyn S. Fabrici
Descendants: 173,990 13-6100149
26. Trust Created U/W/O Joseph F. Cullman, Jr.
Dated 6/30/50 For The Benefit of
Edgar M. Cullman: 339,854 13-6828719
30. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Lucy C. Danziger: 129,775 1 13-6102584
31. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Lucy C. Danziger: 24,086 1 13-6103585
32. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Lucy C. Danziger: 171,234 13-6102586
33. Trust Created by Louise B. Cullman
Dated 12/16/43 For The Benefit of
Lucy C. Danziger: 98,976 1 13-6102581
34. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Lucy C. Danziger: 77,441 1 13-6102593
44. Trust Created by Samuel J. Bloomingdale
Dated 4/15/66 For The Benefit of
David M. Danziger: 55,676 1 13-6214196
45. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Lucy C. Danziger Descendants: 108,471 1 13-6102590
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
46 Trust Created by U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Lucy C. Danziger Descendants: 85,479 1 13-6102592
47. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 31,118 1 13-6102589
48. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Lucy C. Danziger Descendants: 46,233 1 13-6102587
50. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Lucy C. Danziger Descendants: 115,335 1 13-6102588
55. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Edgar M. Cullman, Jr.: 111,165 1 13-6102595
56. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Edgar M. Cullman, Jr.: 44,340 13-6102596
57. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Edgar M. Cullman, Jr.: 178,667 1 13-6102597
58. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Edgar M. Cullman, Jr.: 61,215 1 13-6102603
68. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 220,064 1 13-6102599
70. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 53,898 1 13-6102600
71. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 152,260 1 13-6102601
72. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 90,387 1 13-6102602
73. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 7,877 13-6102598
76. Trust Created by Samuel J. & Rita G.Bloomingdale
Dated 1/10/50 For The Benefit of
Susan R. Cullman: 226,190 13-6102604
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
77. Trust Created by Edgar M. Cullman & Louise B. Cullman
Dated 3/21/50 For The Benefit of
Susan R. Cullman: 83,194 1 13-6102605
78. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Susan R. Cullman: 115,584 1 13-6102606
79. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Susan R. Cullman: 52,635 1 13-6102607
80. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Susan R. Cullman: 178,222 1 13-6102591
81. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Susan R. Cullman: 88,973 1 13-6102613
85. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Susan R. Cullman Descendants: 116,847 1 13-6102608
86. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Susan R. Cullman Descendants: 159,498 3-6102609
88. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 60,459 1 13-6102610
89. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Susan R. Cullman Descendants: 168,762 1 13-6102611
90. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Susan R. Cullman Descendants: 76,419 1 13-6102612
/s/ Edgar M. Cullman
---------------------------------------
Edgar M. Cullman, not in his individual
capacity but solely as a trustee of the
above named trusts.
25. Edgar M. Cullman - personal 494,071 101 ###-##-####
/s/ Edgar M. Cullman
--------------------------------------------
Edgar M. Cullman, in his individual capacity
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
92. Samuel J. Bloomingdale Foundation 87,319 13-6099790
93. Louise B. & Edgar M. Cullman Foundation 28,451 13-6100041
95. Justus Heijmans Foundation 889 13-6272082
/s/ Edgar M. Cullman
---------------------------------------
Edgar M. Cullman, not in his individual
capacity but solely as a trustee of the
above named trusts.
</TABLE>
<PAGE>
III. TRUSTS OF WHICH LUCY C. DANZIGER IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
26. Trust Created U/W/O Joseph F. Cullman, Jr.
Dated 6/30/50 For The Benefit of
Edgar M. Cullman: 339,854 13-6828719
30. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Lucy C. Danziger: 129,775 1 13-6102584
31. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Lucy C. Danziger: 24,086 1 13-6103585
32. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Lucy C. Danziger: 171,234 13-6102586
37. Trust Created by Edgar M. Cullman
Dated 12/26/72 For The Benefit of
Rebecca D. Gamzon: 80,020 1 13-6585287
39. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Rebecca D. Gamzon: 72,018 1 13-6737018
41. Trust Created by Edgar M. Cullman
Dated 12/26/72 For The Benefit of
David M. Danziger: 79,131 1 13-6585286
43. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
David M. Danziger: 71,129 1 13-6737013
44. Trust Created by Samuel J. Bloomingdale
Dated 4/15/66 For The Benefit of
David M. Danziger: 55,676 1 13-6214196
45. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Lucy C. Danziger Descendants: 108,471 1 13-6102590
46. Trust Created by U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Lucy C. Danziger Descendants : 85,479 1 13-6102592
47. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 31,118 1 13-6102589
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
48. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Lucy C. Danziger Descendants:. 46,233 1 13-6102587
49. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 48,145 1 13-6100167
50. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Lucy C. Danziger Descendants: 115,335 1 13-6102588
60. Trust Created by Edgar M. Cullman,Jr.
Dated 12/25/76 For The Benefit of
Edgar M. Cullman, III: 32,008 1 13-6736143
61. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Edgar M. Cullman, III: 90,689 1 13-6737012
63. Trust Created by Edgar M. Cullman, Jr.
Dated 12/25/76 For The Benefit of
Samuel B. Cullman: 32,008 1 13-6736142
64. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Samuel B. Cullman: 90,689 1 13-6737011
66. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Georgina D. Cullman: 88,911 1 13-6737017
67. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 173,270 1 13-6102598
68. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 220,064 1 13-6102599
69. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 68,497 1 13-6100165
70. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 53,898 1 13-6102600
71. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 152,260 1 13-6102601
73. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 7,877 13-6102598
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
83. Trust Created by Susan R. Cullman
Dated 12/25/76 For The Benefit of
Carolyn B. Sicher: 62,237 1 13-6736147
84. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Carolyn B. Sicher: 71,129 1 13-6736170
85. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Susan R. Cullman Descendants: 116,847 1 13-6102608
86. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Susan R. Cullman Descendants: 159,498 13-6102609
87. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 63,127 1 13-6100169
88. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 60,459 1 13-6102610
89. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Susan R. Cullman Descendants: 168,762 1 13-6102611
/s/ Lucy C. Danziger
---------------------------------------
Lucy C. Danziger, not in her individual
capacity but solely as a trustee of
the above named trusts.
29. Lucy C. Danziger - personal 363,834 1 ###-##-####
/s/ Lucy C. Danziger
--------------------------------------------
Lucy C. Danziger, in her individual capacity
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
91. B. Bros. Realty Limited Partnership
Lucy C. Danziger & John L. Ernst
General Partners 1,039,338 1 13-3313591
/s/ Lucy C. Danziger
---------------------------------------
Lucy C. Danziger, not in her individual
capacity but solely as a trustee of
the above named trusts.
</TABLE>
<PAGE>
IV. TRUSTS OF WHICH EDGAR M. CULLMAN, JR. IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
19. Trust Created U/C/O/W Richard C. Ernst
Dated 6/19/84 For The Benefit of Carolyn S. Fabrici
Descendants: 26,655 1 13-6896905
21. Trust Created U/W/O Susan B. Ernst
Dated 4/19/81 For The Benefit of Carolyn S. Fabrici
Family: 8,891 13-6810526
26. Trust Created U/W/O Joseph F. Cullman, Jr.
Dated 6/30/50 For The Benefit of
Edgar M. Cullman: 339,854 13-6828719
34. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Lucy C. Danziger: 77,441 1 13-6102593
37. Trust Created by Edgar M. Cullman
Dated 12/26/72 For The Benefit of
Rebecca D. Gamzon: 80,020 1 13-6585287
38 Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
Rebecca D. Gamzon: 14,225 1 13-6736178
39. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Rebecca D. Gamzon: 72,018 1 13-6737018
41. Trust Created by Edgar M. Cullman
Dated 12/26/72 For The Benefit of
David M. Danziger: 79,131 1 13-6585286
42. Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
David M. Danziger: 14,225 1 13-6736410
43. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
David M. Danziger: 71,129 1 13-6737013
45. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Lucy C. Danziger Descendants: 108,471 1 13-6102590
47. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 31,118 1 13-6102589
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
48. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Lucy C. Danziger Descendants: 46,233 1 13-6102587
49. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 48,145 1 13-6100167
50. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Lucy C. Danziger Descendants: 15,335 1 13-6102588
55. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Edgar M. Cullman, Jr.: 111,165 1 13-6102595
56. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Edgar M. Cullman, Jr.: 44,340 13-6102596
57. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Edgar M. Cullman, Jr.: 178,667 1 13-6102597
58. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Edgar M. Cullman, Jr.: 61,215 1 13-6102603
61. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Edgar M. Cullman, III: 90,689 1 13-6737012
64. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Samuel B. Cullman: 90,689 1 13-6737011
66. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Georgina D. Cullman: 88,911 1 13-6737017
67. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 173,270 1 13-6102598
68. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 220,064 1 13-6102599
69. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 68,497 1 13-6100165
70. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 53,898 1 13-6102600
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
71. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 152,260 1 13-6102601
72. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 90,387 1 13-6102602
73. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 7,877 13-6102598
81. Trust Created U/W/O Frances W. Cullman
Dated 7/23/59 For The Benefit of
Susan R. Cullman: 88,973 1 13-6102613
83. Trust Created by Susan R. Cullman
Dated 12/25/76 For The Benefit of
Carolyn B. Sicher: 62,237 1 13-6736147
84. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Carolyn B. Sicher: 71,129 1 13-6736170
85. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Susan R. Cullman Descendants: 116,847 1 13-6102608
86. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Susan R. Cullman Descendants: 159,498 13-6102609
87. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 63,127 1 13-6100169
88. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 60,459 1 13-6102610
/s/ Edgar M. Cullman
----------------------------------
Edgar M. Cullman, Jr. not in his individual
capacity but solely as a trustee of
the above named trusts.
</TABLE>
<TABLE>
<S> <C> <C> <C> <C>
54. Edgar M. Cullman, Jr. - personal 539,252 1 ###-##-####
/s/ Edgar M. Cullman
-------------------------------------------
Edgar M. Cullman, in his individual capacity
</TABLE>
<PAGE>
V. TRUSTS OF WHICH SUSAN R. CULLMAN IS A TRUSTEE:
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
26. Trust Created U/W/O Joseph F. Cullman, Jr.
Dated 6/30/50 For The Benefit of
Edgar M. Cullman: 339,854 13-6828719
38. Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
Rebecca D. Gamzon: 14,225 1 13-6736178
39. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Rebecca D. Gamzon: 72,018 1 13-6737018
42. Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
David M. Danziger: 14,225 1 13-6736410
43. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
David M. Danziger: 71,129 1 13-6737013
47. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 31,118 1 13-6102589
48. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Lucy C. Danziger Descendants: 46,233 1 13-6102587
49. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Lucy C. Danziger Descendants: 48,145 1 13-6100167
50. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Lucy C. Danziger Descendants: 115,335 1 13-6102588
60. Trust Created by Edgar M. Cullman,Jr.
Dated 12/25/76 For The Benefit of
Edgar M. Cullman, III: 32,008 1 13-6736143
61. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Edgar M. Cullman, III: 90,689 1 13-6737012
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
64. Trust Created by Edgar M. Cullman, Jr.
Dated 12/25/76 For The Benefit of
Samuel B. Cullman: 32,008 1 13-6736142
65. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Samuel B. Cullman: 90,689 1 13-6737011
66. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Georgina D. Cullman: 88,911 1 13-6737017
67. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 173,270 1 13-6102598
68. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 220,064 1 13-6102599
69. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 68,497 1 13-6100165
70. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 53,898 1 13-6102600
73. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Edgar M. Cullman, Jr. Descendants: 7,877 1 13-6102598
76. Trust Created by Samuel J. & Rita G. Bloomingdale
Dated 1/10/50 For The Benefit of
Susan R. Cullman: 226,190 13-6102604
77. Trust Created by Edgar M. Cullman & Louise B. Cullman
Dated 3/21/50 For The Benefit of
Susan R. Cullman: 83,194 1 13-6102605
78. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of
Susan R. Cullman: 115,584 1 13-6102606
79. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
Susan R. Cullman: 52,635 1 13-6102607
80. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
Susan R. Cullman: 178,222 1 13-6102591
84. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
</TABLE>
<PAGE>
VII. TRUSTS OF WHICH JOHN L. ERNST IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
2. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
John L. Ernst: 4,890 1 13-6100132
3. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
John L. Ernst: 13,696 13-6100135
7. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of John L. Ernst
Descendants: 11,469 13-6100141
8. Trust Created by Susan B. Ernst
Dated 4/9/52 For the Benefit of John L. Ernst
Descendants: 19,400 13-6100138
9. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For the Benefit of John L. Ernst
Descendants: 14,199 13-6100143
10. Trust Created U/C/O/W Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 21,098 1 13-6387289
11. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 173,990 13-6100148
12. Trust Created by Susan B. Ernst
Dated 4/19/81 For The Benefit of John L. Ernst
Family: 33,155 1 13-6810525
14. Trust Created by Susan B. Ernst
Dated 4/9/52 For The Benefit of Carolyn S. Fabrici
Descendants: 17,088 13-1000139
15. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of Carolyn S. Fabrici: 6,223 13-6100136
16. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Carolyn S. Fabrici: 6,735 13-6100130
17. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of Carolyn S. Fabrici
Descendants 52,017 1 13-6100139
</TABLE>
<PAGE>
VIII. TRUST OF WHICH ALEXANDRA ERNST IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
2. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
John L. Ernst: 4,890 1 13-6100132
3. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
John L. Ernst: 13,696 13-6100135
7. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of John L. Ernst
Descendants: 11,469 13-6100141
8. Trust Created by Susan B. Ernst
Dated 4/9/52 For the Benefit of John L. Ernst
Descendants: 19,400 13-6100138
9. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For the Benefit of John L. Ernst
Descendants: 14,199 13-6100143
10. Trust Created U/C/O/W Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 21,098 1 13-6387289
11. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 173,990 13-6100148
14. Trust Created by Susan B. Ernst
Dated 4/9/52 For The Benefit of Carolyn S. Fabrici
Descendants: 17,088 13-1000139
15. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of Carolyn S. Fabrici: 6,223 13-6100136
16. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Carolyn S. Fabrici: 6,735 13-6100130
17. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of Carolyn S. Fabrici
Descendants 52,017 1 13-6100139
18. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of Carolyn S. Fabrici
Descendants: 15,675 1 13-6100144
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
23. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst: 17,666 13-6100134
24. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst: 17,666 13-6100131
/s/ Alexandra Ernst
--------------------------------------
Alexandra Ernst, not in her individual
capacity but solely as a trustee of the
above named trusts.
4. Alexandra Ernst - personal 6,881 ###-##-####
/s/ Alexandra Ernst
-------------------------------------------
Alexandra Ernst, in her individual capacity
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
18. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of Carolyn S. Fabrici
Descendants: 15,675 1 13-6100144
19. Trust Created U/C/O/W Richard C. Ernst
Dated 6/19/84 For The Benefit of Carolyn S. Fabrici
Descendants: 26,655 1 13-6896905
20. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of Carolyn S. Fabrici
Descendants: 173,990 13-6100149
21. Trust Created U/W/O Susan B. Ernst
Dated 4/19/81 For The Benefit of Carolyn S. Fabrici
Family: 8,891 13-6810526
23. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst: 17,666 13-6100134
24. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst: 17,666 13-6100131
38. Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
Rebecca D. Gamzon: 14,225 1 13-6736178
42. Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
David M. Danziger: 14,225 1 13-6736410
60. Trust Created by Edgar M. Cullman,Jr.
Dated 12/25/76 For The Benefit of
Edgar M. Cullman, III: 32,008 1 13-6736143
63. Trust Created by Edgar M. Cullman, Jr.
Dated 12/25/76 For The Benefit of
Samuel B. Cullman: 32,008 1 13-6736142
83. Trust Created by Susan R. Cullman
Dated 12/25/76 For The Benefit of
Carolyn B. Sicher: 62,237 1 13-6736147
/s/ John L. Ernst
------------------------------------
John L. Ernst, not in his individual
capacity but solely as a trustee of
the above named trusts
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
1. John L. Ernst - personal 26,673 1 ###-##-####
/s/ John L. Ernst
-----------------------------------------
John L. Ernst, in his individual capacity
5. Jessica P. Ernst - personal 5,556 101-66-910
/s/ John L. Ernst
--------------------------------------------------
John L. Ernst, not in his individual capacity, but
as Parent of the above named minor child
22. Dorothy P. Ernst - personal
John L. Ernst, Guardian 11,909 1 065-38-791
/s/ John L. Ernst
-------------------------------------
John L. Ernst, not in his individual
capacity but solely as Guardian for the
above named individual
</TABLE>
<TABLE>
<S> <C> <C> <C> <C>
Carolyn B. Sicher: 71,129 1 13-6736170
85. Trust Created by Louise B. Cullman
Dated 1/6/53 For The Benefit of
Susan R. Cullman Descendants: 116,847 1 13-6102608
86. Trust Created by Louise B. Cullman
Dated 6/30/54 For The Benefit of
Susan R. Cullman Descendants: 159,498 13-6102609
87. Trust Created by Edgar M. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 63,127 1 13-6100169
88. Trust Created by Louise B. Cullman
Dated 3/23/55 For The Benefit of
Susan R. Cullman Descendants: 60,459 1 13-6102610
89. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of
Susan R. Cullman Descendants: 168,762 1 13-6102611
90. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of
Susan R. Cullman Descendants: 76,419 1 13-6102612
/s/ Susan R. Cullman
--------------------------------------------
Susan R. Cullman, not in her individual
capacity but solely as a trustee of the above
named trusts
75. Susan R. Cullman - personal 390,165 ###-##-####
/s/ Susan R. Cullman
---------------------------------------------
Susan R. Cullman, in her individual capacity
</TABLE>
VI. TRUSTS OF WHICH CAROLYN S. FABRICI IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
10. Trust Created U/C/O/W Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 21,098 1 13-6387289
11. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For the Benefit of John L. Ernst
Descendants: 173,990 13-6100148
14. Trust Created by Susan B. Ernst
Dated 4/9/52 For The Benefit of Carolyn S. Fabrici
Descendants: 17,088 13-1000139
15. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of Carolyn S. Fabrici: 6,223 13-6100136
16. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Carolyn S. Fabrici: 6,735 13-6100130
17. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of Carolyn S. Fabrici
Descendants 52,017 1 13-6100139
18. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For The Benefit of Carolyn S. Fabrici
Descendants: 15,675 1 13-6100144
19. Trust Created U/C/O/W Richard C. Ernst
Dated 6/19/84 For The Benefit of Carolyn S. Fabrici
Descendants: 26,655 1 13-6896905
20. Trust Created U/W/O Rita G. Bloomingdale
Dated 2/29/56 For The Benefit of Carolyn S. Fabrici
Descendants: 173,990 13-6100149
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
23. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst : 17,666 13-6100134
24. Trust Created by Samuel J. Bloomingdale
Dated 12/21/50 For The Benefit of Dorothy P. Ernst: 17,666 13-6100131
/s/ Carolyn S. Fabrici
-----------------------------------------
Carolyn S. Fabrici, not in her individual
capacity but solely as a trustee of the
above named trusts.
13. Carolyn S. Fabrici - personal 106,062 ###-##-####
/s/ Carolyn S. Fabrici
---------------------------------------------
Carolyn S. Fabrici, in her individual capacity
</TABLE>
IX. TRUSTS OF WHICH FREDERICK M. DANZIGER IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
12. Trust Created U/W/O Susan B. Ernst
Dated 4/19/81 For The Benefit of John L. Ernst
Family: 33,155 1 13-6810525
19. Trust Created U/C/O/W Richard C. Ernst
Dated 6/19/84 For The Benefit of Carolyn S. Fabrici
Descendants: 26,655 1 13-6896905
36. Trust Created by Lucy C. Danziger
Dated 12/24/69 For The Benefit of
Rebecca D. Gamzon: 101,358 1 13-6345528
37. Trust Created by Edgar M. Cullman
Dated 12/26/72 For The Benefit of
Rebecca D. Gamzon: 80,020 1 13-6585287
38. Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
Rebecca D. Gamzon: 14,225 1 13-6736178
39. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Rebecca D. Gamzon: 72,018 1 13-6737018
41. Trust Created by Edgar M. Cullman
Dated 12/26/72 For The Benefit of
David M. Danziger: 79,131 1 13-6585286
42. Trust Created by Lucy C. Danziger
Dated 12/25/76 For The Benefit of
David M. Danziger: 14,225 1 13-6736410
43. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
David M. Danziger: 71,129 1 13-6737013
44. Trust Created by Samuel J. Bloomingdale
Dated 4/15/66 For The Benefit of
David M. Danziger: 55,676 1 13-6214196
52. Trust Created by Elsie B. Paskus
Dated 8/26/64 For The Benefit of
Frederick M. Danziger: 6,223 13-6159963
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
53. Trust Created by Elsie B. Paskus
Dated 8/26/64 For The Benefit of
Richard M. Danziger: 13,336 13-6159970
66. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Georgina D. Cullman: 88,911 1 13-6737017
/s/ Frederick M. Danziger
--------------------------------------------
Frederick M. Danziger, not in his individual
capacity but solely as a trustee of the above
named trusts
51. Frederick M. Danziger - personal 73,538 ###-##-####
/s/ Frederick M. Danziger
------------------------------------------------
Frederick M. Danziger in his individual capacity
</TABLE>
<PAGE>
X. TRUSTS OF WHICH ELISSA F. CULLMAN IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
60. Trust Created by Edgar M. Cullman,Jr.
Dated 12/25/76 For The Benefit of
Edgar M. Cullman, III: 32,008 1 13-6736143
61. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Edgar M. Cullman, III: 90,689 1 13-6737012
63. Trust Created by Edgar M. Cullman, Jr.
Dated 12/25/76 For The Benefit of
Samuel B. Cullman: 32,008 1 13-6736142
64. Trust Created by Edgar M. Cullman
Dated 12/23/76 For The Benefit of
Samuel B. Cullman: 90,689 1 13-6737011
/s/ Elissa F. Cullman
----------------------------------------
Elissa F. Cullman, not in her individual
capacity but solely as a trustee of the
above named trusts
74. Elissa F. Cullman - personal 75,574 ###-##-####
/s/ Elissa F. Cullman
---------------------------------------------
Elissa F. Cullman, in her individual capacity
</TABLE>
XI. TRUSTS OF WHICH MARGOT P. ERNST IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
2. Trust Created by Rita G. Bloomingdale
Dated 12/21/50 For The Benefit of
John L. Ernst: 4,890 1 13-6100132
3. Trust Created by Rita G. Bloomingdale
Dated 6/14/51 For The Benefit of
John L. Ernst: 13,696 13-6100135
7. Trust Created by Susan B. Ernst
Dated 1/6/53 For The Benefit of John L. Ernst
Descendants: 11,469 13-6100141
8. Trust Created by Susan B. Ernst
Dated 4/9/52 For the Benefit of John L. Ernst
Descendants: 19,400 13-6100138
9. Trust Created by Samuel J. Bloomingdale
Dated 8/2/55 For the Benefit of John L. Ernst
Descendants: 14,199 13-6100143
/s/ Margot P. Ernst
-----------------------------------
Margot P. Ernst, not in her individual
capacity but solely as a trustee of the above
named trusts
</TABLE>
XI. TRUSTS OF WHICH RICHARD M. DANZIGER IS A TRUSTEE
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
36. Trust Created by Lucy C. Danziger
Dated 12/24/69 For The Benefit of
Rebecca D. Gamzon: 101,358 1 13-6345528
52. Trust Created by Elsie B. Paskus
Dated 8/26/64 For The Benefit of
Frederick M. Danziger: 6,223 13-6159963
53. Trust Created by Elsie B. Paskus
Dated 8/26/64 For The Benefit of
Richard M. Danziger 13,336 13-6159970
/s/ Richard M. Danziger
---------------------------------------------
Richard M. Danziger, not in his individual
capacity but solely as a trustee of the above
named trustees
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
91. B. Bros. Realty Limited Partnership
Lucy C. Danziger & John L. Ernst
General Partners 1,039,338 1 13-3313591
/s/ Lucy C. Danziger
---------------------------------
Lucy C. Danziger, as General Partner
/s/ John L. Ernst
---------------------------------
John L. Ernst, as General Partner
92. Samuel J. Bloomingdale Foundation 87,319 13-6099790
/s/ Susan R. Cullman
-----------------------------------
Susan R. Cullman, as President
93. Louise B. & Edgar M. Cullman Foundation 28,451 13-6100041
/s/ Susan R. Cullman
------------------------------------
Susan R. Cullman, as President
95. Justus Heijmans Foundation 889 13-6272082
/s/ Edgar M. Cullman
-------------------------------------
Edgar M. Cullman, as Trustee
94. Richard C. & Susan B. Ernst Foundation 53,560 13-6153761
/s/ John L. Ernst
--------------------------------------
John L. Ernst, as President
</TABLE>
<TABLE>
<CAPTION>
"B" "A"
SHARES SHARES TAX ID#
------ ------ -------
<S> <C> <C> <C> <C>
4. Alexandra Ernst - personal 6,881 ###-##-####
/s/ Alexandra Ernst
---------------------------
6. Matthew L. Ernst - personal 5,556 ###-##-####
/s/ Matthew L. Ernst
---------------------------
59. Edgar M. Cullman, III - personal 60,431 1 ###-##-####
/s/ Edgar M. Cullman
---------------------------
62. Samuel B. Cullman - personal 83,550 1 ###-##-####
/s/ Samuel B. Cullman
---------------------------
65. Georgina D. Cullman - personal 34,577 1 ###-##-####
/s/ Georgina D. Cullman
---------------------------
82. Carolyn B. Sicher - personal 95,233 1 ###-##-####
/s/ Carolyn B. Sicher
---------------------------
</TABLE>
<PAGE>
EXHIBIT E
FORM OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
GENERAL CIGAR HOLDINGS, INC.
General Cigar Holdings, Inc. (the "Corporation"), a corporation
organized and existing under the General Corporation Law of the State of
Delaware (the "DGCL"), does hereby certify as follows.
1. The present name of the Corporation is General Cigar Holdings, Inc.
The Corporation was originally incorporated under the name "General Cigar
Holdings, Inc." and its original certificate of incorporation was filed
with the office of the Secretary of State of the State of Delaware on
December 12, 1996. The certificate of incorporation was amended and restated
on February 3, 1997.
2. This Amended and Restated Certificate of Incorporation, having been
duly proposed by the Board of Directors of the Corporation (the "Board") and
adopted in accordance with Sections [228], 242, and 245 of the DGCL, further
amends and restates the amended and restated certificate of incorporation of
the Corporation.
3. Accordingly, the certificate of incorporation of the Corporation is
hereby further amended and restated to read in its entirety as follows (the
"Certificate of Incorporation"):
FIRST: The name of the Corporation is General Cigar Holdings, Inc.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, Wilmington, Delaware 19801, in the
City of Wilmington, County of New Castle. The name of its registered agent at
that address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the DGCL.
FOURTH: (a) AUTHORIZED CAPITAL STOCK. The Corporation is authorized to
issue 26 million shares of capital stock, of which 25 million shares shall be
shares of
- ------------------------
* To be revised as necessary to reflect certain provisions in the
Shareholders' Agreement.
<PAGE>
common stock, par value $0.01 per share ("Common Stock"), and 1 million
shares shall be shares of preferred stock, par value $0.01 per share
("Preferred Stock").
(b) COMMON STOCK. All shares of Common Stock shall be identical and
shall entitle the holders thereof to the same rights and privileges. Without
limiting the generality of the foregoing, except as otherwise required by
law, (i) on all matters submitted to the Corporation's stockholders, the
holders of Common Stock shall be entitled to one vote per share and (ii) when
and as divided or other distributions are declared, whether payable in cash,
in property or in securities of the Corporation, the holders of shares of
Common Stock shall be entitled to share equally, share for share, in such
dividends or other distributions.
(c) PREFERRED STOCK. The Board is expressly authorized to provide for the
issuance of all or any shares of the Preferred Stock in one or more classes or
series, and to fix for each such class or series such voting powers, full or
limited, or no voting powers, and such designations, preferences and
relative, participating, optional or other special rights and such
qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions adopted by the Board providing for
the issuance of such class or series, including, without limitation, the
authority to provide that any such class or series may be (i) subject to
redemption at such time or times and at such price or prices; (ii) entitled
to receive dividends (which may be cumulative or non-cumulative) at such
rates, on such conditions, and at such times, and payable in preference to,
or in such relation to, the dividends payable on any other class or classes
or any other series; (iii) entitled to such rights upon the dissolution of,
or upon any distribution of the assets of, the Corporation; or (iv)
convertible into, or exchangeable for, shares of any other class or classes
of stock, or of any other series of the same or any other class or classes of
stock, of the Corporation at such price or prices or at such rates of
exchange and with such adjustments; all as may be stated in such resolution
or resolutions.
FIFTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(a) The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
(b) The directors shall have concurrent power with the stockholders to
adopt, amend or repeal the By-Laws of the Corporation.
2
<PAGE>
(c) The number of directors of the Corporation shall be as from time to
time fixed by, or in the manner provided in, the By-Laws of the Corporation.
Election of directors need not be by written ballot unless the By-Laws so
provide.
(d) No director shall be personally liable to the Corporation or any of
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) pursuant to Section 174 of the DGCL or (iv) for any
transaction from which the director derived an improper personal benefit. If
the DGCL is amended hereafter to authorize the further elimination or
limitation of liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent authorized
by the DGCL, as so amended. Any repeal or modification of this Article FIFTH
by the stockholders of the Corporation shall not adversely affect any right
or protection of a director of the Corporation existing at the time of such
repeal or modification with respect to acts or omissions occurring prior to
such repeal or modification.
(c) In addition to the powers and authority hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done
by the Corporation, subject, nevertheless, to the provisions of the DGCL,
this Certificate of Incorporation and any By-Laws adopted by the
stockholders; PROVIDED that no By-Laws hereafter adopted by the stockholders
shall invalidate any prior act of the directors which would have been valid
if such By-Laws had not been adopted.
(f) The Corporation expressly elects not to be governed by Section 203
of the DGCL.
SIXTH: Meetings of stockholders may be held within or without the State
of Delaware, as the By-Laws may provide. The books of the Corporation may be
kept (subject to any provision contained in the DGCL) outside the State of
Delaware at such place or places as may be designated from time to time by
the Board or in the By-Laws.
SEVENTH: The Corporation shall indemnify its directors and officers to
the fullest extent authorized or permitted by law, as now or hereafter in
effect, and such right to indemnification shall continue as to a person who
has ceased to be a director or officer of the Corporation and shall inure to
the benefit of his or her heirs, executors and personal and legal
representatives; PROVIDED that, except for proceedings to enforce rights to
indemnification, the Corporation shall not be obligated to indemnify any
director or officer (or his or her heirs, executors or personal or legal
representatives) in connection with a
3
<PAGE>
proceeding (or part thereof) initiated by such person unless such proceeding
(or part thereof) was authorized or consented to by the Board of Directors.
The right to indemnification conferred by this Article SEVENTH shall include
the right to be paid by the Corporation the expenses incurred in defending or
otherwise participating in any proceeding in advance of its final disposition.
The Corporation may, to the extent authorized from time to time by the
Board of Directors, provide rights to indemnification and to the advancement
of expenses to employees and agents of the Corporation similar to those
conferred in this Article SEVENTH to directors and officers of the
Corporation.
The rights to indemnification and to the advance of expenses conferred
in this Article SEVENTH shall not be exclusive of any other right which any
person may have or hereafter acquire under this Certificate of Incorporation,
the By-Laws, any statute, agreement, vote of stockholders or disinterested
directors or otherwise.
Any repeal or modification of this Article SEVENTH by the stockholders
of the Corporation shall not adversely affect any rights to indemnification
and to the advancement of expenses of a director or officer of the
Corporation existing at the time of such repeal or modification with respect
to any acts or omissions occurring prior to such repeal or modification.
EIGHTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed in this Certificate of Incorporation, the
By-Laws or the laws of the State of Delaware, and all rights herein conferred
upon stockholders are granted subject to such reservation.
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be duly executed this day of ________________.
GENERAL CIGAR HOLDINGS, INC.
By:
-------------------------
Name:
Title:
4
