Filed by Agribrands International, Inc.
Pursuant to Rule 425 under the Securities Act of 1933
Commission File No.: 1-13479
Subject Company: Agribrands International, Inc.
The following is a press release disseminated by Agribrands International, Inc.
on December 4, 2000 and a copy of the Agreement and Plan of Merger referred to
in the press release. These documents were filed by Agribrands on a Form 8-K
with the Securities and Exchange Commission.
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AGRIBRANDS INTERNATIONAL, INC. AGREES TO ACQUISITION BY CARGILL
St. Louis, Missouri, December 4, 2000-- Agribrands International, Inc.
(NYSE: AGX) announced today that it entered into an agreement with Cargill,
Incorporated ("Cargill") pursuant to which Cargill would acquire all of
Agribrands' common stock at a cash price of $54.50 per share (the "Cargill
Agreement").
Under the terms of the Cargill Agreement, Agribrands is permitted to
actively solicit other bids for thirty (30) days.
The Cargill Agreement has been approved by the Agribrands' board of
directors upon the recommendation of a committee of its independent directors.
The Agribrands Board of Directors determined that the Cargill Agreement (which
was unsolicited) was superior to the Ralcorp Merger. Based on that
determination, Agribrands elected to terminate the Ralcorp Merger. In accordance
with the terms of the Ralcorp Merger, Agribrands has paid to Ralcorp a $5
million termination fee.
Cargill's $54.50 offer represents a premium of 24.4 percent over
Agribrands' trading price on December 1, 2000, and a premium of 50.3 percent
over Agribrands' trading price on August 7, 2000, the day prior to Agribrands'
announcement of the Ralcorp Merger.
The Cargill Agreement is conditioned upon, among other things, approval by
two-thirds of the Agribrands' stockholders, receipt of a ruling from the
Internal Revenue Service that the merger will not impact the tax-free treatment
of Agribrands' 1998 spin-off from Ralston Purina, regulatory approvals and other
customary conditions. The agreement includes a $10 million termination fee. It
is anticipated that the transaction with Cargill will close sometime in April,
2001.
Wasserstein Perella & Co. advised Agribrands and provided a fairness
opinion to the Agribrands' board of directors.
Agribrands will file with the SEC an 8-K report relating to the
transaction, which includes a copy of the Cargill Agreement. Agribrands
shareholders are urged to read the report and the Cargill Agreement, which
includes important information relating to the transaction. The report and the
Cargill Agreement will be available free at the website maintained by the SEC,
www.sec.gov.
Agribrands is a leading international producer and marketer of agricultural
animal feeds. Agribrands operates, through its subsidiaries and joint ventures
outside the United States, 70 manufacturing plants in 17 countries on four
continents. Its agricultural products are marketed outside the United States
under the "Purina"(TM) and "Chow"(TM) trademarks and the "Checkerboard"(TM) logo
through a network of approximately 4,000 independent dealers, as well as an
independent and a direct sales force.
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Cargill is a privately-owned international marketer, processor and
distributor of agricultural, food, financial and industrial products and
services with 85,000 employees in 60 countries. Cargill provides distinctive
customer solutions in supply chain management, food applications and health and
nutrition.
This news release contains forward-looking statements within the meaning of
Section 27(a) of the Securities Act of 1933, as amended, and Section 21(e) of
the Securities Exchange Act of 1934, as amended. These statements involve risks,
uncertainties, estimates and assumptions which are difficult to predict.
Therefore, actual events may differ materially from those expressed in these
forward-looking statements. Readers, therefore, should not place undue reliance
on any such forward-looking statements. Further, any forward-looking statement
speaks only as of the date on which such statement is made, and Agribrands
undertakes no obligation to publicly update any such statement to reflect new
information, the occurrence of future events or circumstances or otherwise.
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AGREEMENT AND PLAN OF MERGER
by and between
CARGILL, INCORPORATED
ABACUS ACQUISITION CORP.
and
AGRIBRANDS INTERNATIONAL, INC.
dated as of December 1, 2000
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TABLE OF CONTENTS
Page
AGREEMENT AND PLAN OF MERGER...................................................1
Recitals....................................................................1
ARTICLE I THE MERGER; CLOSING.................................................1
1.1. The Merger..........................................................1
1.2. Directors and Officers..............................................2
1.3. Articles of Incorporation and Bylaws................................2
ARTICLE II. EFFECT OF THE MERGER ON SECURITIES OF THE COMPANY..................2
2.1. Conversion of Merger Sub Stock......................................2
2.2. Conversion of Common Stock..........................................2
2.3. Surrender and Payment...............................................3
2.4. Options.............................................................4
2.5. Withholding Rights..................................................5
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.....................5
3.1. Organization and Good Standing......................................5
3.2. Capitalization......................................................6
3.3. Subsidiaries........................................................6
3.4. Authorization; Binding Agreement....................................7
3.5. Governmental Approvals..............................................7
3.6. No Violations.......................................................7
3.7. Securities Filings and Litigation...................................8
3.8. Financial Statements................................................9
3.9. Absence of Certain Changes..........................................9
3.10. Related Party Transactions.........................................10
3.11. Compliance with Laws...............................................10
3.12. Permits............................................................10
3.13. Finders and Investment Bankers.....................................10
3.14. Material Contracts.................................................10
3.15. Employee Benefit Plans.............................................11
3.16. Taxes and Returns..................................................13
3.17. No Adverse Actions.................................................15
3.18. Fairness Opinion...................................................15
3.19. Takeover Statutes and Charter......................................15
3.20. Rights Plan........................................................15
3.21. Ralston Purina Consents............................................15
3.22. WPS Amendment to Management Continuity Agreement...................16
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF PARENT..........................16
4.1. Organization and Good Standing.....................................16
4.2. Authorization; Binding Agreement...................................16
4.3. Governmental Approvals.............................................16
4.4. No Violations......................................................17
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4.5. Financing..........................................................17
ARTICLE V. ADDITIONAL COVENANTS OF THE COMPANY................................17
5.1. Conduct of Business of the Company and the Company Subsidiaries....17
5.2. Notification of Certain Matters....................................19
5.3. Access and Information.............................................20
5.4. Shareholder Approval...............................................20
5.5. Reasonable Best Efforts............................................21
5.6. Public Announcements...............................................21
5.7. Compliance.........................................................21
5.8. Company Benefit Plans..............................................21
5.9. Solicitation of Acquisition Proposal...............................22
5.10. SEC and Shareholder Filings........................................25
5.11. Takeover Statutes..................................................25
5.12. Spin-off Covenant..................................................25
ARTICLE VI. ADDITIONAL COVENANTS OF PARENT AND MERGER SUB.....................26
6.1. Notification of Certain Matters....................................26
6.2. Reasonable Best Efforts............................................27
6.3. Public Announcements...............................................27
6.4. Director and Officer Liability.....................................27
6.5. Company Employee Agreements........................................28
ARTICLE VII. PROXY STATEMENT..................................................28
ARTICLE VIII. CONDITIONS......................................................29
8.1. Conditions to Each Party's Obligations.............................29
8.1.1. Company Shareholder Approval....................................29
8.1.2. No Injunction or Action.........................................29
8.1.3. Governmental Approvals..........................................30
8.1.4. HSR Act.........................................................30
8.2. Conditions to Obligations of the Company...........................30
8.2.1. Parent Representation and Warranties............................30
8.2.2. Performance by Parent...........................................31
8.2.3. No Material Adverse Change......................................31
8.2.4. Certificates and other Deliveries...............................31
8.3. Conditions to Obligations of Parent................................31
8.3.1. Company Representations and Warranties..........................31
8.3.2. Performance by the Company......................................31
8.3.3. No Material Adverse Change......................................31
8.3.4. Certificates and Other Deliveries...............................32
8.3.5. Required Consents...............................................32
8.3.6. Spin-off Covenant...............................................32
8.3.7. Effectiveness of WPS Company Options............................32
8.3.8. Effectiveness of Consent and Agreement..........................32
ARTICLE IX. TERMINATION AND ABANDONMENT.......................................33
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9.1. Termination........................................................33
9.2. Effect of Termination..............................................34
ARTICLE X. MISCELLANEOUS......................................................35
10.1. Confidentiality....................................................35
10.2. Amendment and Modification.........................................36
10.3. Waiver of Compliance; Consents.....................................36
10.4. Survival of Representations and Warranties.........................36
10.5. Notices............................................................36
10.6. Binding Effect; Assignment.........................................37
10.7. Expenses...........................................................38
10.8. Governing Law......................................................38
10.9. Counterparts.......................................................38
10.10. Interpretation.....................................................38
10.11. Entire Agreement...................................................38
10.12. Specific Performance...............................................38
10.13. Third Parties......................................................39
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INDEX OF DEFINED TERMS
Page
Acquisition Proposal..........................................................24
affiliate.....................................................................36
Agreement......................................................................1
Articles of Merger.............................................................2
Benefit Plan..................................................................11
Certificates...................................................................3
Closing........................................................................1
Closing Date...................................................................2
Code..........................................................................11
Company........................................................................1
Company Common Stock...........................................................3
Company Disclosure Schedule....................................................5
Company Material Adverse Effect................................................5
Company Options................................................................4
Company Preferred Stock........................................................6
Company Proposal..............................................................20
Company Shareholders Meeting..................................................20
Company Subsidiaries...........................................................5
Consent........................................................................7
Dissenting Shares..............................................................3
Effective Time.................................................................2
Enforceability Exceptions......................................................7
ERISA.........................................................................11
Event..........................................................................9
Exchange Act...................................................................6
Exchange Fund..................................................................4
Final Order...................................................................28
Financial Statements...........................................................9
Foreign Plans.................................................................13
Governmental Authority.........................................................7
Indemnified Losses............................................................26
Indemnified Person............................................................26
Initial Period Acquisition Inquiry............................................22
Initial Period Inquirors......................................................22
Initial Solicitation Period...................................................22
IRS...........................................................................11
Law............................................................................8
Letter of Transmittal..........................................................4
Litigation.....................................................................9
Material Contract.............................................................10
Merger.........................................................................1
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Merger Consideration...........................................................3
Merger Sub.....................................................................1
Missouri Code..................................................................1
Multi-Employer Plan...........................................................11
NYSE...........................................................................7
Parent.........................................................................1
Parent Disclosure Schedule....................................................16
Parent Material Adverse Effect................................................16
Parent Subsidiaries........................................................3, 16
Paying Agent...................................................................4
Permits.......................................................................10
person........................................................................36
Proxy Statement...............................................................27
Rights Agreement..............................................................15
RP............................................................................15
SAR............................................................................5
Securities Act.................................................................6
Securities Filings.............................................................8
Spin-Off Opinion..............................................................31
subsidiary....................................................................36
Superior Proposal.............................................................24
Surviving Corporation..........................................................1
Takeover Statute..............................................................15
Tax...........................................................................14
Tax Return....................................................................14
Termination Fee...............................................................32
WPS Continuity Agreement Amendment............................................16
v
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AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement") is made and
entered into as of December 1, 2000, by and between Cargill, Incorporated, a
Delaware corporation ("Parent"), Abacus Acquisition Corp., a Missouri
corporation and a wholly owned subsidiary of Parent ("Merger Sub") and
Agribrands International, Inc., a Missouri corporation (the "Company").
Recitals
A. The Special Committee of the Board of Directors of the Company
has recommended and the Board of Directors of the Company has approved and deems
it advisable and in the best interests of the Company and its shareholders to
consummate the merger provided for herein (the "Merger"), pursuant to which
Parent will acquire all of the common stock of the Company through the merger of
Merger Sub with and into the Company upon the terms and subject to the
conditions set forth herein. The Boards of Directors of Parent and Merger Sub
have approved and deem it advisable and in the best interests of their
respective companies and their respective shareholders to consummate the Merger
upon the terms and subject to the conditions set forth herein.
B. Parent, Merger Sub and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
ARTICLE I
THE MERGER; CLOSING
1.1. The Merger. Upon the terms and subject to the conditions set
forth in this Agreement:
(a) At the Effective Time, Merger Sub shall be merged with
and into the Company in accordance with the applicable provisions of the General
and Business Corporation Law of Missouri (the "Missouri Code"). The Company
shall be the surviving corporation in the Merger (the "Surviving Corporation")
and shall continue its corporate existence under the laws of the State of
Missouri. As a result of the Merger, the Company shall become a direct, wholly
owned subsidiary of Parent. After the Effective Time, the separate corporate
existence of Merger Sub shall cease. The Merger shall have the effects as set
forth in Section 351.450 of the Missouri Code.
(b) The closing of the Merger (the "Closing") shall take
place (a) at the offices of Bryan Cave LLP, One Metropolitan Square, Suite 3600,
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St. Louis, Missouri, at 10:00 a.m. local time, on the fifth business day
following the day on which the last to be fulfilled or waived of the conditions
set forth in Article IX (excluding conditions that, by their terms, cannot be
satisfied until the Closing Date, but subject to the fulfillment or waiver of
such conditions) shall be fulfilled or waived in accordance herewith, or (b) at
such other time, date or place as Parent and the Company may agree. The date on
which the Closing occurs is hereinafter referred to as the "Closing Date."
(c) As soon as practicable following the Closing, the
parties shall (i) file articles of merger with respect to the Merger (the
"Articles of Merger") in such form as is required by and executed in accordance
with the Missouri Code and (ii) make all other filings or recordings required
under the laws of Missouri. The Merger shall become effective at the date and
time of the filing of the Articles of Merger (or such other date and time as may
be agreed to by Parent and the Company and specified in the Articles of Merger
as may be permitted by the Missouri Code). The time at which the Merger becomes
effective is referred to in this Agreement as the "Effective Time."
1.2. Directors and Officers. The directors of Merger Sub immediately
prior to the Effective Time shall be the directors of the Surviving Corporation,
as of the Effective Time and until their successors are duly appointed or
elected in accordance with the laws of Missouri or until their earlier death,
resignation or removal. The officers of the Company immediately prior to the
Effective Time shall continue as the officers of the Surviving Corporation and
after the Effective Time until such time as their successors shall be duly
elected or appointed in accordance with the laws of Missouri or until their
earlier death, resignation or removal.
1.3. Articles of Incorporation and Bylaws. The articles of
incorporation and bylaws of the Company immediately prior to the Effective Time
shall be the articles of incorporation and bylaws of the Surviving Corporation
as of the Effective Time.
ARTICLE II.
EFFECT OF THE MERGER ON SECURITIES OF THE COMPANY
AND MERGER SUB
2.1. Conversion of Merger Sub Stock. At the Effective Time, by virtue
of the Merger and without any action on the part of any of the parties, each
share of the common stock of Merger Sub outstanding immediately prior to the
Effective Time shall be converted into and shall become one share of common
stock of the Surviving Corporation of the Merger.
2.2. Conversion of Common Stock. (a) Subject to the provisions of
this Agreement, at the Effective Time each issued and outstanding share of
common stock, par value $.01 per share, of the Company together with the
associated rights issued pursuant to the Rights Agreement (as hereinafter
defined) ("Company Common Stock"), shall be converted into the right to receive
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in cash from Parent, without interest, an amount equal to $54.50 (the "Merger
Consideration");
(b) As a result of the Merger and without any action on the
part of the holder thereof, at the Effective Time all shares of Company Common
Stock shall cease to be outstanding and shall be canceled and retired and shall
cease to exist, and each holder of shares of Company Common Stock shall
thereafter cease to have any rights with respect to such shares of Company
Common Stock, except the right to receive, without interest, the Merger
Consideration upon the surrender of a certificate representing such shares of
Company Common Stock, together with a duly completed Letter of Transmittal (as
defined below), or a Letter of Transmittal with respect to shares of Company
Common Stock held in book-entry form (the "Certificates"). To the extent that
objecting shareholders' rights are available under Section 351.455 of the
Missouri Code, shares of Company Common Stock that are issued and outstanding
immediately prior to the Effective Time and that have not voted for the approval
of this Agreement and with respect to which such rights have been properly
demanded in accordance with Section 351.455 of the Missouri Code (collectively,
the "Dissenting Shares") shall not be converted into the right to receive Merger
Consideration at or after the Effective Time unless and until the holder of such
shares becomes ineligible for such rights. If a holder of Dissenting Shares
becomes ineligible under Section 351.455, then, as of the Effective Time or the
occurrence of such event whichever later occurs, such holder's Dissenting Shares
shall cease to be Dissenting Shares and shall be converted into and represent
the right to receive the Merger Consideration upon surrender of the Certificates
representing such Dissenting Shares in accordance with Section 2.3 of this
Agreement. The Company shall give prompt notice to Parent of any demand received
by the Company from an objecting shareholder of the Company demanding fair value
for the shareholder's Company Common Stock. Prior to the Effective Time, except
with the prior written consent of Parent, or as may otherwise be required under
applicable law, the Company shall not make any payment with respect to, or
settle or offer to settle, any such demands.
(c) Notwithstanding anything contained in this section to
the contrary, each share of Company Common Stock issued and held in the
Company's treasury or by any of the Company's subsidiaries immediately prior to
the Effective Time shall, by virtue of the Merger, cease to be outstanding and
shall be canceled and retired without payment of any consideration therefor.
(d) Notwithstanding the foregoing, each share of Company
Common Stock owned by Parent or any of its subsidiaries ("Parent Subsidiaries")
at the Effective Time shall, by virtue of the Merger, be canceled and retired
without payment of any consideration therefor.
(e) The Merger Consideration shall be subject to appropriate
adjustment in the event of a stock split, stock dividend or recapitalization
after the date of this Agreement applicable to Company Common Stock.
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2.3. Surrender and Payment. (a) Prior to the Effective Time, Parent
shall appoint an agent (the "Paying Agent") for the purpose of exchanging the
Certificates for the Merger Consideration. Immediately after the Effective Time,
Parent shall deposit with or make available to the Paying Agent the Merger
Consideration to be paid in respect of the shares of Company Common Stock (the
"Exchange Fund"). Promptly after the Effective Time, Parent will send, or will
cause the Paying Agent to send, to each record holder of shares of Company
Common Stock, at the Effective Time, a letter of transmittal and instructions
(which shall specify that the delivery shall be effected, and risk of loss and
title shall pass, only upon proper delivery of the Certificates to the Paying
Agent) for use in such exchange (a "Letter of Transmittal").
(b) Upon surrender to the Paying Agent of his Certificate
together with a properly completed Letter of Transmittal, each holder of shares
of Company Common Stock will be entitled to receive promptly the Merger
Consideration in respect of the shares of Company Common Stock represented by
his Certificate. Until so surrendered, each such Certificate shall represent
after the Effective Time, for all purposes, only the right to receive the Merger
Consideration.
(c) If any portion of the Merger Consideration is to be paid
to a person other than the person in whose name the Certificate so surrendered
is registered, it shall be a condition to such payment that such Certificate
shall be properly endorsed or otherwise be in proper form for transfer and that
the person requesting such payment shall pay to the Paying Agent any transfer or
other taxes required as a result of such payment to a person other than the
registered holder of such Certificate, or establish to the satisfaction of the
Paying Agent that such tax has been paid or is not payable.
(d) Any portion of the Exchange Fund made available to or
deposited with the Paying Agent pursuant to this Section 2.3 that remains
unclaimed by the holders of Company Common Stock six months after the Effective
Time shall be returned to Parent, upon demand, and any such holder who has not
exchanged his shares for the Merger Consideration in accordance with this
Section 2.3 prior to that time shall thereafter look only to Parent for payment
of such consideration without any interest thereon. Notwithstanding the
foregoing, Parent shall not be liable to any holder of Company Common Stock for
any amounts paid to a public official pursuant to applicable abandoned property,
escheat or similar laws. Any amounts remaining unclaimed by the holders of
Company Common Stock five years after the Effective Time (or such earlier date,
immediately prior to such time when the amounts would otherwise escheat to or
become property of any Governmental Authority) shall become, to the extent
permitted by applicable law, the property of Parent free and clear of any claims
or interest of any person previously entitled thereto.
2.4. Options. (a) At the Effective Time, each option granted by the
Company to purchase shares of Company Common Stock (the "Company Options") which
is outstanding and unexercised immediately prior to the Effective Time shall be
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fully vested and converted at the Effective Time into the right to receive an
amount of cash, without interest, equal to (1) the excess, if any, of the Merger
Consideration over the exercise price per share of Company Common Stock subject
to such Company Option multiplied by (2) the number of shares of Company Common
Stock subject to such option immediately prior to the Effective Time.
(b) At the Effective Time, each stock appreciation right
("SAR") granted by the Company which is outstanding and unexercised immediately
prior to the Effective Time shall be fully vested and converted at the Effective
Time into the right to receive an amount of cash, without interest, equal to (1)
the excess, if any, of the Merger Consideration over the fair market value on
the date of grant of each share of Company Common Stock subject to the SAR
multiplied by (2) the number of shares of Company Common Stock subject to such
SAR immediately prior to the Effective Time.
2.5. Withholding Rights. Parent shall be entitled to deduct and
withhold from the consideration otherwise payable to any holder of Company
Common Stock or Company Options pursuant to this Article II such amounts as it
is required to deduct and withhold with respect to the making of such payment
under any provision of federal, state, local or foreign tax law. If Parent so
withholds amounts, such amounts shall be treated for all purposes as having been
paid to the holder of Company Common Stock or Company Options, as the case may
be, in respect of which Parent made such deduction and withholding.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and Merger Sub that the
statements contained in this Article III are true and correct, except as set
forth in the disclosure schedule delivered by the Company to Parent prior to the
execution of this Agreement (the "Company Disclosure Schedule") or as otherwise
expressly contemplated by this Agreement.
3.1. Organization and Good Standing. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Missouri. Each of the Company's subsidiaries (the "Company
Subsidiaries") is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation. Each of the
Company and the Company Subsidiaries is qualified to do business as a foreign
corporation in each jurisdiction in which the failure to be so qualified would
have a Company Material Adverse Effect. For purposes of this Agreement, "Company
Material Adverse Effect" shall mean a material adverse effect on (i) the
business, assets, condition (financial or otherwise), properties, liabilities,
or the results of operations of the Company and the Company Subsidiaries, taken
as a whole, (ii) the ability of the Company to perform its obligations set forth
in this Agreement, or (iii) the ability of the Company to timely consummate the
transactions contemplated by this Agreement. The Articles of Incorporation and
5
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Bylaws of the Company and the Company Subsidiaries will not be amended prior to
the Closing Date. The Company and the Company Subsidiaries have all corporate
power and all material governmental licenses, authorizations, consents and
approvals required to carry on their respective businesses substantially as now
being conducted and necessary to own, operate and lease their properties and
assets.
3.2. Capitalization. As of the date hereof, the authorized capital
stock of the Company consists of 50,000,000 shares of Company Common Stock and
10,000,000 shares of preferred stock, par value $.01 per share (the "Company
Preferred Stock"). Of such authorized shares, as of the date hereof, there are
issued and outstanding 9,813,851 shares of Company Common Stock, 854,060 shares
of Company Common Stock are issued and held in the treasury of Company, no
shares of the Company Preferred Stock have been designated or issued, and no
other capital stock of Company is issued or outstanding. All issued and
outstanding shares of Company Common Stock are duly authorized, validly issued
and outstanding, fully paid and nonassessable and were issued free of preemptive
rights in compliance with applicable corporate and securities Laws (as
hereinafter defined). Except as set forth in the Company Disclosure Schedule, as
of the date hereof there are no outstanding rights, including stock appreciation
rights, subscriptions, warrants, puts, calls, unsatisfied preemptive rights,
options or other agreements of any kind relating to, or the value of which is
tied to the value of, any of the outstanding, authorized but not issued,
unauthorized or treasury shares of the capital stock or any other security of
the Company, and there is no authorized or outstanding security of any kind
convertible into or exchangeable for any such capital stock or other security.
Except as set forth in the Company Disclosure Schedule, there are no
restrictions upon the transfer of or otherwise pertaining to the securities
(including, but not limited to, the ability to pay dividends thereon) or
retained earnings of the Company and the Company Subsidiaries or the ownership
thereof other than those imposed by the Securities Act of 1933, as amended, and
the rules and regulations thereunder (the "Securities Act"), the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder (the
"Exchange Act"), applicable state securities Laws or applicable corporate Law.
3.3. Subsidiaries. Each Company Subsidiary is wholly owned by the
Company and all of the capital stock and other interests of the Company
Subsidiaries so held by the Company are directly or indirectly owned by it, free
and clear of any claim, lien, encumbrance, security interest or agreement with
respect thereto. All of the outstanding shares of capital stock in each of the
Company Subsidiaries directly or indirectly held by the Company are duly
authorized, validly issued and outstanding, fully paid and nonassessable and
were issued free of preemptive rights in compliance with applicable corporate
and securities Laws. There are no irrevocable proxies or similar obligations
with respect to such capital stock of the Company Subsidiaries held by the
Company and no equity securities or other interests of any of the Company
Subsidiaries are or may become required to be issued or purchased by reason of
any options, warrants, rights to subscribe to, puts, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into or
exchangeable for, shares of any capital stock of any Company Subsidiary, and
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there are no contracts, commitments, understandings or arrangements by which any
Company Subsidiary is bound to issue additional shares of its capital stock, or
options, warrants or rights to purchase or acquire any additional shares of its
capital stock or securities convertible into or exchangeable for such shares.
3.4. Authorization; Binding Agreement. The Company has all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. This Agreement, the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby, including, but not limited to, the Merger, have been duly
and validly authorized by the Company's Board of Directors, and no other
corporate proceedings on the part of the Company or any Company Subsidiary are
necessary to authorize the execution and delivery of this Agreement or to
consummate the transactions contemplated hereby (other than the approval and
adoption of this Agreement and the transactions contemplated hereby by the
shareholders of Company in accordance with the Missouri Code and the Articles of
Incorporation and Bylaws of the Company). This Agreement has been duly and
validly executed and delivered by the Company and constitutes the legal, valid
and binding agreements of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforceability thereof may
be limited by applicable bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally and by principles
of equity ("Enforceability Exceptions").
3.5. Governmental Approvals. No consent, approval, waiver or
authorization of, notice to or declaration or filing with ("Consent") any nation
or government, any state or other political subdivision thereof, any person,
authority or body exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government including, without
limitation, any governmental or regulatory authority, agency, department, board,
commission or instrumentality, any court, tribunal or arbitrator and any
self-regulatory organization ("Governmental Authority") on the part of the
Company or any of the Company Subsidiaries is required in connection with the
execution or delivery by the Company of this Agreement or the consummation of
the transactions contemplated hereby other than (i) the filing of the Articles
of Merger with the Secretary of State of the State of Missouri in accordance
with the Missouri Code, (ii) filings with the Securities and Exchange Commission
(the "SEC") and the New York Stock Exchange (the "NYSE"), (iii) Consents from or
with Governmental Authorities set forth on the Company Disclosure Schedule, (iv)
filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder (the "HSR Act"),
(v) a Second Supplemental Ruling Letter (as defined in Section 1.4 of the
Consent and Agreement (as defined below)), and (vi) those Consents that, if they
were not obtained or made, do not or would not reasonably be expected to have a
Company Material Adverse Effect.
3.6. No Violations. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and compliance by the
Company with any of the provisions hereof will not (i) conflict with or result
in any breach of any provision of the Articles and/or Certificate of
Incorporation or Bylaws or other governing instruments of the Company or any of
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the Company Subsidiaries, (ii) require any Consent under or result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, cancellation
or acceleration or augment the performance required) under any of the terms,
conditions or provisions of any Material Contract (as hereinafter defined) or
other material obligation to which the Company or any Company Subsidiary is a
party or by which any of them or any of their properties or assets may be bound,
(iii) result in the creation or imposition of any lien or encumbrance of any
kind upon any of the assets of the Company or any Company Subsidiary, or (iv)
subject to obtaining the Consents from Governmental Authorities referred to in
Section 3.5, above, contravene any applicable provision of any constitution,
treaty, statute, law, code, rule, regulation, ordinance, policy or order of any
Governmental Authority or other matters having the force of law including, but
not limited to, any orders, decisions, injunctions, judgments, awards and
decrees of or agreements with any court or other Governmental Authority ("Law")
currently in effect to which the Company or any Company Subsidiary or its or any
of their respective assets or properties are subject, except in the case of
clauses (ii), (iii) and (iv) above, for any deviations from the foregoing which
do not or would not reasonably be expected to have a Company Material Adverse
Effect. The Agreement and Plan of Reorganization, dated as of August 7, 2000, by
and between Ralcorp Holdings, Inc. ("Ralcorp") and the Company and the
agreements ancillary thereto to which the Company is a party have been
terminated and the Company shall have no further obligations thereunder (other
than the obligation to pay a termination fee of $5 million to Ralcorp in
connection with the Company's entering into this Agreement).
3.7. Securities Filings and Litigation. The Company has made
available to Parent true and complete copies of (i) its Annual Reports on Form
10-K, as amended, for the years ended August 31, 1998, 1999 and 2000, as filed
with the SEC, (ii) its proxy statements relating to all of the meetings of
shareholders (whether annual or special) of the Company since April 1, 1998, as
filed with the SEC, and (iii) all other reports, statements and registration
statements and amendments thereto (including, without limitation, Quarterly
Reports on Form 10-Q and Current Reports on Form 8-K, as amended) filed by the
Company with the SEC since April 1, 1998. The reports and statements set forth
in clauses (i) through (iii), above, and those subsequently provided or required
to be provided pursuant to this section, are referred to collectively herein as
the "Securities Filings." As of their respective dates, or as of the date of the
last amendment thereof, if amended after filing, none of the Securities Filings
(including all schedules thereto and disclosure documents incorporated by
reference therein), contained or, as to Securities Filings subsequent to the
date hereof, will contain any untrue statement of a material fact or omitted or,
as to Securities Filings subsequent to the date hereof, will omit to state a
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
misleading. Each of the Securities Filings was filed in a timely manner and at
the time of filing or as of the date of the last amendment thereof, if amended
after filing, complied or, as to Securities Filings subsequent to the date
hereof, will comply in all material respects with the Exchange Act or the
Securities Act, as applicable. There is no action, cause of action, claim,
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demand, suit, proceeding, citation, summons, subpoena, inquiry or investigation
of any nature, civil, criminal, regulatory or otherwise, in law or in equity, by
or before any court, tribunal, arbitrator or other Governmental Authority
("Litigation") pending or, to the knowledge of the Company, threatened against
the Company or any of its subsidiaries, any officer, director, employee or agent
thereof, in his or her capacity as such, or as a fiduciary with respect to any
Benefit Plan of the Company or any of its subsidiaries or otherwise relating to
the Company or any of its subsidiaries or the securities of any of them, or any
properties or rights of the Company or any of its subsidiaries or any Benefit
Plan of the Company or any of its subsidiaries which is required to be described
in any Securities Filing that is not so described. No event has occurred as a
consequence of which the Company would be required to file a Current Report on
Form 8-K pursuant to the requirements of the Exchange Act as to which such a
report has not been timely filed with the SEC. Any reports, statements and
registration statements and amendments thereof (including, without limitation,
Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports
on Form 8-K, as amended) filed by the Company with the SEC after the date hereof
shall be provided to Parent on the date of such filing.
3.8. Financial Statements. The audited consolidated financial
statements and unaudited interim financial statements of the Company included in
the Securities Filings (the "Financial Statements") have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis (except as may be indicated therein or in the notes thereto) and present
fairly, in all material respects, the financial position of the Company and the
Company Subsidiaries as at the dates thereof and the results of their operations
and cash flows for the periods then ended subject, in the case of the unaudited
interim financial statements, to normal year-end audit adjustments, any other
adjustments described therein and the fact that certain information and notes
have been condensed or omitted in accordance with the Exchange Act.
3.9. Absence of Certain Changes. Except as set forth in the
Securities Filings filed by the Company prior to the date of this Agreement,
since August 31, 2000, there has not been: (i) any event, occurrence, fact,
condition, change, development or effect ("Event") (except for those Events
caused by (x) conditions affecting national, regional or world economies such as
currency fluctuations (but excluding extraordinary disruptions in regional or
world economies or markets or U.S./foreign currency exchange ratios involving
multiple countries), (y) conditions affecting the animal feed industry in the
regions in which Company operates, or (z) the pendency or announcement of this
Agreement, or the transactions contemplated hereby) that has had or would
reasonably be expected to have a Company Material Adverse Effect; (ii) any
declaration, payment or setting aside for payment of any dividend (except to the
Company or any Company Subsidiary wholly owned by the Company) or other
distribution or any redemption, purchase or other acquisition of any shares of
capital stock or securities of the Company or any Company Subsidiary; (iii) any
return of any capital or other distribution of assets to shareholders of the
Company or any Company Subsidiary (except to the Company or any Company
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Subsidiary wholly owned by the Company); (iv) any acquisition (by merger,
consolidation, acquisition of stock or assets or otherwise) of any person or
business; or (v) any other action or agreement or undertaking by the Company or
any Company Subsidiary that, if taken or done on or after the date hereof
without Parent's consent, would result in a breach of Section 5.1, below, and
that has had or would reasonably be expected to have a Company Material Adverse
Effect.
3.10. Related Party Transactions. Except as set forth in the
Securities Filings filed by the Company prior to the date of this Agreement,
since August 31, 2000, the Company has not entered into any relationship or
transaction of a sort that would be required to be disclosed pursuant to Item
404 of Regulation S-K by the Company in a proxy statement in connection with an
annual meeting of shareholders.
3.11. Compliance with Laws. The business of the Company and each
Company Subsidiary has been operated in compliance with all Laws applicable
thereto, except for any instances of non-compliance which do not and would not
reasonably be expected to have a Company Material Adverse Effect. Without
limiting the generality of the foregoing, neither the Company nor any Company
Subsidiary has conducted its business in violation of applicable Laws, tariffs,
rules and regulations in any jurisdiction, foreign or domestic, which violation
has had or would reasonably be expected to have a Company Material Adverse
Effect.
3.12. Permits. The Company and the Company Subsidiaries have all
material permits, certificates, licenses, approvals, tariffs and other
authorizations required in connection with the operation of their respective
businesses (collectively, "Permits"), and neither the Company nor any Company
Subsidiary is in violation of any Permit, and no proceedings are pending or, to
the knowledge of the Company, threatened, to revoke or limit any Permit, except
any such violation or proceeding which does not and would not reasonably be
expected to have a Company Material Adverse Effect.
3.13. Finders and Investment Bankers. Neither the Company nor any of
its officers or directors has employed any broker or finder or incurred any
liability for any brokerage fees, commissions or finders' fees in connection
with the transactions contemplated hereby other than pursuant to the agreements
with Wasserstein Perella & Co., Inc. and Houlihan Lokey Howard & Zukin, accurate
and complete copies of which have been provided to Parent.
3.14. Material Contracts. Neither the Company nor any Company
Subsidiary is a party or is subject to any note, bond, mortgage, indenture,
contract, lease, license, agreement, understanding, instrument, bid or proposal
that is required to be described in or filed as an exhibit to any Securities
Filing ("Material Contract") that is not so described in or filed as required by
the Securities Act or the Exchange Act, as the case may be. The Company has made
available to Parent true and accurate copies of the Material Contracts. All such
Material Contracts are valid and binding and are in full force and effect and
enforceable against the Company or such subsidiary in accordance with their
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respective terms, subject to the Enforceability Exceptions. Except as referenced
in Section 3.6 above, (i) no Consent of any person is needed in order that each
such Material Contract shall continue in full force and effect in accordance
with its terms without penalty, acceleration or rights of early termination by
reason of the consummation of the transactions contemplated by this Agreement,
except for Consents the absence of which would not have a Company Material
Adverse Effect, and (ii) neither the Company nor any of its subsidiaries is in
violation or breach of or default under any such Material Contract; nor to the
Company's knowledge is any other party to any such Material Contract in
violation or breach of or default under any such Material Contract in each case
where such violation or breach would have a Company Material Adverse Effect.
Except as set forth in the Company Disclosure Schedule, neither the Company nor
any Company Subsidiary is a party to or is subject to any contract or agreement
that limits the ability of the Company or any Company Subsidiary, or would limit
the ability of Parent or any subsidiary of Parent after the Effective Time, to
compete in or conduct any line of business or compete with any person or in any
geographic area or during any period.
3.15. Employee Benefit Plans. (a) There are no Benefit Plans (as
defined below) or Foreign Plans (as defined below) maintained or contributed to
by the Company or a Company Subsidiary under which the Company or a Company
Subsidiary could incur any material liability other than the benefit obligations
thereunder. A "Benefit Plan" shall include (i) an employee benefit plan as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended, together with all regulations thereunder ("ERISA"), even if, because
of some other provision of ERISA, such plan is not subject to any or all of
ERISA's provisions, and (ii) whether or not described in the preceding clause,
(a) any pension, profit sharing, stock bonus, deferred or supplemental
compensation, retirement, thrift, stock purchase, stock appreciation or stock
option plan, or any other compensation, welfare, fringe benefit or retirement
plan, program, policy, course of conduct, understanding or arrangement of any
kind whatsoever, whether formal or informal, oral or written, providing for
benefits for or the welfare of any or all of the current or former employees or
agents of a specified person or their beneficiaries or dependents, (b) a
multi-employer plan as defined in Section 3(37) of ERISA (a "Multi-Employer
Plan"), or (c) a multiple employer plan as defined in Section 413 of the
Internal Revenue Code of 1986, as amended (the "Code").
(b) With respect to each Benefit Plan (where applicable):
the Company has made available to Parent complete and accurate copies of (i) all
plan and trust texts and agreements, insurance contracts and other funding
arrangements; (ii) the most recent annual report on the Form 5500 series; (iii)
the most recent financial statement and/or annual and periodic accounting of
plan assets; (iv) the most recent determination letter received from the
IRS; and (v) the most recent summary plan description as defined in ERISA.
(c) With respect to each Benefit Plan while maintained
or contributed to by the Company: (i) if intended to qualify under Code Sections
401(a) or 403(a), such Benefit Plan has received a favorable determination
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letter from the IRS that it so qualifies, and its trust is exempt from taxation
under Code Section 501(a) and, to the knowledge of the Company, nothing has
since occurred to cause the loss of the Benefit Plan's qualification; (ii)
except for payment of benefits made in the ordinary course of the plan
administration, no event has occurred and, to the knowledge of the Company,
there exists no circumstance under which the Company or Parent could incur
liability under ERISA, the Code or otherwise; (iii) no non-exempt prohibited
transaction as defined under ERISA and the Code has occurred; (iv) all
contributions and premiums due have fully been made and paid on a timely basis;
and (v) all contributions made or required to be made under any Benefit Plan
meet the requirements for deductibility under the Code, and all contributions
accrued prior to the Effective Time which have not been made have been properly
recorded on the Financial Statements in a manner satisfying the requirements of
Financial Accounting Standards 87 and 88 except, in each case, for any
deviations from the foregoing which do not and would not reasonably be expected
to have a Company Material Adverse Effect.
(d) No Benefit Plan is a pension plan subject to Title IV
of ERISA or Section 412 of the Code. Each of the Benefit Plans has been
maintained in compliance with its terms and all applicable Laws, except where
the failure to do so would not reasonably be expected to have a Company Material
Adverse Effect. The Company does not contribute to, or have any outstanding
liability with respect to, any Multi-employer Plan.
(e) With respect to each Benefit Plan which is a welfare
plan (as defined in ERISA Section 3(1)): (i) any liability for medical or death
benefits with respect to current or former employees beyond their termination of
employment (except as may be required by applicable Law) is provided for in the
Financial Statements to the extent required by generally accepted accounting
principles; (ii) there are no reserves, assets, surplus or prepaid premiums
under any such plan; (iii) no term or provision of any such plan prohibits the
amendment or termination thereof; (iv) Company has complied with Code Section
4980B, except, in each case, for any deviations from the foregoing which do not
and would not reasonably be expected to have a Company Material Adverse Effect;
and (v) each such Benefit Plan which is intended to meet the requirements for
tax-favored treatment under Subchapter B of Chapter 1 of the Code meets such
requirements.
(f) Except as provided in Section 5.8 below, the
consummation of the Merger will not, either alone or in conjunction with another
event under the terms of any Benefit Plan: (i) entitle any individual to
severance pay, (ii) accelerate the time of payment or vesting of benefits or
increase the amount of compensation due to any individual; or (iii) give rise to
the payment of any amount that would not be deductible pursuant to Section 280G
of the Code. William P. Stiritz is not entitled to any additional payment or
other compensation as a result of the execution of this Agreement, the
consummation of the Merger or any of the actions contemplated hereunder.
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(g) With respect to each Benefit Plan which is contributed
to or required to be maintained by the law or applicable custom or rule of the
relevant jurisdiction outside of the United States (the "Foreign Plans") except,
in each case, for any deviations from the below which do not and would not
reasonably be expected to have a Company Material Adverse Effect:
(i) Each of the Foreign Plans is in compliance with
the provisions of the laws of each jurisdiction in which each such Foreign Plan
is maintained, to the extent those laws are applicable to the Foreign Plans;
(ii) All contributions to, and payments from, the
Foreign Plans which may have been required to be made in accordance with the
terms of any such Foreign Plan, and, when applicable, the law of the
jurisdiction in which such Foreign Plan is maintained, have been timely made or
shall be made by the Closing Date. All such contributions to the Foreign Plans,
and all payments under the Foreign Plans, for any period ending before the
Closing Date that are not yet, but will be, required to be made, are reflected
as an accrued liability on the balance sheet;
(iii) All reports, returns and similar documents, if
any, with respect to any Foreign Plan required to be filed with any governmental
body or distributed to any Foreign Plan participant have been duly and timely
filed or distributed or will be filed or distributed by the Closing Date, and
all of the Foreign Plans have obtained from the governmental body having
jurisdiction with respect to such plans any required determinations, if any,
that such Foreign Plans are in compliance with the laws of the relevant
jurisdiction if such determinations are required in order to give effect to the
Foreign Plan;
(iv) Each of the Foreign Plans has been
administered at all times in accordance with its terms. To the knowledge of the
Company, there are no pending investigations by any governmental body involving
the Foreign Plans, and no pending claims (except for claims for benefits payable
in the normal operations of the Foreign Plans), suits or proceedings against any
Foreign Plan or asserting any rights or claims to benefits under any Foreign
Plan; and
(v) The consummation of the transactions
contemplated by this Agreement will not by itself create or otherwise result in
any liability with respect to any Foreign Plan other than the triggering of
payment to participants.
3.16. Taxes and Returns. (a) The Company and each of the Company
Subsidiaries have timely filed or caused to be filed all material Tax Returns
required to be filed by it, and all Tax Returns filed by the Company and the
Company Subsidiaries are true, complete and correct in all material respects.
(b) The Company and the Company Subsidiaries have each
timely paid, collected or withheld, or caused to be timely paid, collected or
withheld, all material amounts of Taxes required to be paid, collected or
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withheld, other than such Taxes for which adequate reserves in the Financial
Statements have been established.
(c) There are no claims or assessments pending against the
Company or any of the Company Subsidiaries for any alleged deficiency in any
Tax, and the Company has not been notified in writing of any proposed Tax claims
or assessments against the Company or any of the Company Subsidiaries (other
than in each case, claims or assessments for which adequate reserves in the
Financial Statements have been established or which are being contested in good
faith or are immaterial in amount).
(d) There are no material federal, state, local or foreign
audits or administrative proceedings pending with regard to any material amounts
of Tax or Tax Return of the Company or the Company Subsidiaries and none of them
has received a written notice of any proposed material audit or proceeding.
(e) Neither the Company nor any of the Company Subsidiaries
has any waivers or extensions of any applicable statute of limitations to assess
any material amount of Taxes.
(f) There are no outstanding requests by the Company or any
of the Company Subsidiaries for any extension of time within which to file any
material Tax Return or within which to pay any material amounts of Taxes shown
to be due on any return.
(g) There are no liens for material amounts of Taxes on
the assets of the Company or any of the Company Subsidiaries except for
statutory liens for current Taxes not yet due and payable.
(h) Neither the Company nor any Company Subsidiary is a
party to any agreement, contract, arrangement, or plan that has resulted or
would result, individually or in the aggregate, in connection with this
Agreement or any change of control of the Company or any of the Company
Subsidiaries in the payment of any "excess parachute payments" within the
meaning of Section 280G of the Code.
(i) For purposes of this Agreement, the term "Tax" shall
mean any federal, state, local, foreign or provincial income, gross receipts,
property, sales, use, license, excise, franchise, employment, payroll,
alternative or added minimum, ad valorem, withholding, estimated, transfer or
excise tax, or any other tax, custom, duty, governmental fee or other like
assessment or charge of any kind whatsoever, together with any interest or
penalty imposed by any Governmental Authority. The term "Tax Return" shall mean
a report, return or other information (including any attached schedules or any
amendments to such report, return or other information) required to be supplied
to or filed with a governmental entity with respect to any Tax, including an
information return, claim for refund, amended return or declaration of estimated
Tax.
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3.17. No Adverse Actions. There is no existing, pending or, to the
knowledge of the Company, threatened termination, cancellation, limitation,
modification or change in the business relationship of the Company or any of the
Company Subsidiaries, with any supplier, customer or other person except such as
would not reasonably be expected to have a Company Material Adverse Effect. None
of the Company, any Company Subsidiary or, to the knowledge of the Company, any
director, officer, agent, employee or other person acting on behalf of any of
the foregoing has used any corporate funds for unlawful contributions, payments,
gifts or entertainment or for the payment of other unlawful expenses relating to
political activity, or made any direct or indirect unlawful payments to
governmental or regulatory officials or others, which would reasonably be
expected to have a Company Material Adverse Effect.
3.18. Fairness Opinion. The Company's Board of Directors and the
Independent Committee of the Company's Board of Directors received from
Wasserstein Perella & Co., Inc. an opinion to the effect that the Merger
Consideration is fair to the holders of the shares of Company Common Stock from
a financial point of view.
3.19. Takeover Statutes and Charter. No "business combination," "fair
price," "moratorium," "control share acquisition" or other similar antitakeover
statute or regulation enacted under state or federal laws in the United States
(each a "Takeover Statute"), including, without limitation, Sections 351.407 and
351.459 of the Missouri Code, applicable to the Company or any of the Company
Subsidiaries is applicable to the Merger, this Agreement or the other
transactions contemplated hereby (inasmuch as Company has approved the
transactions contemplated by this Agreement for purposes of Section 351.459 of
the Missouri Code and has taken all other requisite corporate action under the
Takeover Statutes). The provisions of Article Four of the Articles of
Incorporation of the Company are not applicable to the Merger, this Agreement or
the other transactions contemplated hereby (inasmuch as there are one or more
"Continuing Directors" (as defined in the Articles of Incorporation of the
Company) and the Merger has been approved by a majority of them).
3.20. Rights Plan. Under the Rights Agreement between the Company and
Continental Stock Transfer & Trust Company, dated as of March 31, 1998 and as
amended on August 7, 2000 and on the date hereof (the "Rights Agreement"),
neither Merger Sub, Parent nor any of their affiliates will become an "Acquiring
Person," no "Shares Acquisition Date" or "Distribution Date" (as such terms are
defined in the Rights Agreement) will occur, and the holders of any rights
issued pursuant to the Rights Agreement will not be entitled to receive any
benefits under the Rights Agreement as a result of the approval, execution or
delivery of this Agreement or the consummation of the transactions contemplated
hereby, including, without limitation, the Merger.
3.21. Ralston Purina Consents. The Company and Ralston Purina Company
("RP") have duly executed and delivered a Consent and Agreement as of the date
set forth in the form attached as Exhibit A hereto (the "Consent and
Agreement"). The Consent and Agreement is valid and binding and in full force
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and effect, and is enforceable against the parties (including by Parent) in
accordance with its terms.
3.22. WPS Amendment to Management Continuity Agreement. The Company
and William P. Stiritz have duly executed and delivered the Second Amendment to
the Management Continuity Agreement and Tax Indemnification Agreement in the
form attached as Exhibit B hereto (the "WPS Continuity Agreement Amendment").
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to the Company that the statements
contained in this Article IV are true and correct, except as set forth in the
disclosure schedule delivered by Parent to Company prior to the execution of
this Agreement (the "Parent Disclosure Schedule") or as otherwise expressly
contemplated by this Agreement.
4.1. Organization and Good Standing. Parent and Merger Sub are each
corporations duly organized, validly existing and in good standing under the
laws of the State of Delaware and the State of Missouri, respectively. Each of
Parent and Merger Sub is qualified to do business as a foreign corporation in
each jurisdiction in which the failure to be so qualified would have a Parent
Material Adverse Effect. For purposes of this Agreement, "Parent Material
Adverse Effect" shall mean a material adverse effect on (i) the ability of
Parent and Merger Sub to perform their obligations set forth in this Agreement
or (ii) the ability of Parent and Merger Sub to timely consummate the
transactions contemplated by this Agreement.
4.2. Authorization; Binding Agreement. Parent and Merger Sub each
have all requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. This
Agreement, the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
each of Parent's and Merger Sub's Board of Directors and by Parent in its
capacity as sole shareholder of Merger Sub, and no other corporate proceedings
on the part of Parent or Merger Sub are necessary to authorize the execution and
delivery of this Agreement or to consummate the transactions contemplated
hereby. This Agreement has been duly and validly executed and delivered by each
of Parent and Merger Sub and constitutes the legal, valid and binding agreements
of both Parent and Merger Sub, enforceable against Parent and Merger Sub in
accordance with its terms, subject to the Enforceability Exceptions.
4.3. Governmental Approvals. No Consent from or with any Governmental
Authority on the part of Parent or Parent Subsidiaries is required in connection
with the execution or delivery by each of Parent and Merger Sub of this
Agreement or the consummation by each of Parent and Merger Sub of the
transactions contemplated hereby other than (i) the filing of the Articles of
Merger with the Secretary of State of the State of Missouri in accordance with
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the Missouri Code, (ii) filings with the SEC and state securities laws
administrators, (iii) consents from or with Governmental Authorities set forth
on the Parent Disclosure Schedule, (iv) filings under the HSR Act, and (v) those
Consents that, if they were not obtained or made, do not or would not reasonably
be expected to have a Parent Material Adverse Effect.
4.4. No Violations. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and compliance by each of
Parent and Merger Sub with any of the provisions hereof will not (i) conflict
with or result in any breach of any provision of the Articles and/or Certificate
of Incorporation or Bylaws or other governing instruments of Parent or Merger
Sub, (ii) require any Consent under or result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation or acceleration or augment
the performance required) under any of the terms, conditions or provisions of
any material obligation to which Parent or any Parent Subsidiary is a party or
by which any of them or any of their properties or assets may be bound, (iii)
result in the creation or imposition of any lien or encumbrance of any kind upon
any of the assets of Parent or any Parent Subsidiary, or (iv) subject to
obtaining the Consents from Governmental Authorities referred to in Section 4.3
above, contravene any Law currently in effect to which Parent or any Parent
Subsidiary or its or any of their respective assets or properties are subject,
except in the case of clauses (ii), (iii) and (iv) above, for any deviations
from the foregoing which do not or would not reasonably be expected to have a
Parent Material Adverse Effect.
4.5. Financing. As of the Closing Date, Parent will have the funds,
either from its available cash and cash equivalents or from borrowings to be
made under its existing credit facilities or other financing sources, necessary
to consummate the Merger and the transactions contemplated hereby.
ARTICLE V.
ADDITIONAL COVENANTS OF THE COMPANY
The Company covenants and agrees as follows:
5.1. Conduct of Business of the Company and the Company Subsidiaries.
Except as expressly contemplated by this Agreement, during the period from the
date of this Agreement to the Effective Time, the Company shall conduct, and it
shall cause the Company Subsidiaries to conduct, its or their respective
businesses in the ordinary course and consistent with past practice, subject to
the limitations contained in this Agreement, and the Company shall, and it shall
cause the Company Subsidiaries to, use its or their respective reasonable best
efforts to preserve intact its or their respective business organizations, to
keep available the services of its or their respective officers, agents and
employees and to maintain satisfactory relationships with all persons with whom
any of them does business. Without limiting the generality of the foregoing, and
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except as otherwise expressly provided in this Agreement, after the date of this
Agreement and prior to the Effective Time, neither the Company nor any Company
Subsidiary will, without the prior written consent of Parent:
(i) amend or propose to amend its Articles or Certificate of
Incorporation or Bylaws (or comparable governing instruments) in any
material respect;
(ii) authorize for issuance, issue, grant, sell, pledge,
dispose of or propose to issue, grant, sell, pledge or dispose of any
shares of, or any options, warrants, commitments, subscriptions or
rights of any kind to acquire or sell any shares of, the capital stock
or other securities of the Company or any Company Subsidiary including,
but not limited to, any securities convertible into or exchangeable for
shares of capital stock of any class of the Company or any Company
Subsidiary, except for the issuance of shares of Company Common Stock
pursuant to the exercise of the Company Options outstanding on the date
of this Agreement in accordance with their present terms;
(iii) split, combine or reclassify any shares of its capital
stock or declare, pay or set aside any dividend or other distribution
(whether in cash, stock or property or any combination thereof) in
respect of its capital stock, other than dividends or distributions to
the Company or a Company Subsidiary wholly owned by the Company, or
redeem, purchase or otherwise acquire or offer to acquire any shares of
its capital stock or other securities;
(iv) (a) create, incur or assume any debt or obligations in
respect of capital leases, except refinancings of existing obligations
on terms and conditions prevailing in the market; (b) assume, guarantee,
endorse or otherwise become liable or responsible (whether directly,
indirectly, contingently or otherwise) for the obligations of any
person; (c) make any capital expenditures or make any loans, advances or
capital contributions to, or investments in, any other person (other
than to a Company Subsidiary and customary travel, relocation or
business advances to employees made in the ordinary course of business
consistent with past practice); provided that, after notifying Parent,
the Company and Company Subsidiaries may make capital expenditures
that are in the ordinary course of business consistent with past
practice and in accordance with the capital budget for the Company
previously furnished to Parent (provided, further that, without the
prior written consent of Parent, the capital expenditures made with
respect to any individual project shall not exceed $250,000 and total
capital expenditures in any three month period shall not exceed $5
million, in the aggregate); (d) acquire the stock or assets of, or
merge or consolidate with, any other person; (e) voluntarily incur any
material liability or obligation (absolute, accrued, contingent or
otherwise); or (f) sell, transfer, mortgage, pledge or otherwise
dispose of, or encumber, or agree to sell, transfer, mortgage, pledge
or otherwise dispose of or encumber, any assets or properties other
than to secure debt permitted under (a) of this clause (iv) and other
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than transfers in the ordinary course of business consistent with past
practice;.
(v) increase in any manner the compensation of any of its
officers or employees or enter into, establish, amend or terminate any
employment, consulting, retention, management continuity, change in
control, collective bargaining, bonus or other incentive compensation,
profit sharing, health or other welfare, stock option or other equity,
pension, retirement, vacation, severance, deferred compensation or other
compensation or benefit plan, policy, agreement, trust, fund or
arrangement with, for or in respect of, any shareholder, officer,
director, other employee, agent, consultant or affiliate other than (a)
as required pursuant to the terms of agreements in effect on the date of
this Agreement, or (b) with respect to non-officer employees, such as
are in the ordinary course of business consistent with past practice.
(vi) enter into any lease or amend any lease of real property
other than in the ordinary course of business consistent with past
practice;
(vii) make or rescind any express or deemed election relating
to Taxes of the Company, unless required to do so by applicable Law;
(viii) settle or compromise any Tax liability of the Company or
agree to an extension of a statute of limitations with respect to the
assessment or determination of Taxes;
(ix) file or cause to be filed any amended Tax Return with
respect to the Company or any Company Subsidiaries or file or cause to
be filed any claim for refund of Taxes paid by or on behalf of the
Company or any Company Subsidiaries; or
(x) prepare or file any Tax Return of the Company
inconsistent with past practice in preparing or filing similar Tax
Returns in prior periods or, on any such Tax Return, take any position,
make any election, or adopt any method that is inconsistent with
positions taken, elections made or methods used in preparing or filing
similar Tax Returns in prior periods, in each case except to the extent
required by Law.
Furthermore, the Company covenants that from and after the date of this
Agreement, unless Parent shall otherwise expressly consent in writing, the
Company shall, and the Company shall cause each of the Company Subsidiaries to,
use its or their reasonable best efforts to comply in all material respects with
all Laws applicable to it or any of its properties, assets or business and
maintain in full force and effect all Permits necessary for, or otherwise
material to, such business.
5.2. Notification of Certain Matters. The Company shall give prompt
notice to Parent if any of the following occurs after the date of this
Agreement: (i) any notice of, or other communication relating to, a material
default or Event which, with notice or lapse of time or both, would become a
material default under any Material Contract; (ii) receipt of any notice or
other communication in writing from any third party alleging that the Consent of
such third party is or may be required in connection with the transactions
contemplated by this Agreement, other than a Consent disclosed pursuant to
Section 3.5 or 3.6 above or not required to be disclosed pursuant to the terms
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thereof; (iii) receipt of any material notice or other communication from any
Governmental Authority (including, but not limited to, the NYSE or any other
securities exchange) in connection with the transactions contemplated by this
Agreement; (iv) the occurrence of an Event which would reasonably be expected to
have a Company Material Adverse Effect; (v) the commencement or threat of any
Litigation involving or affecting the Company or any Company Subsidiary, or any
of their respective properties or assets, or, to its knowledge, any employee,
agent, director or officer of the Company or any Company Subsidiary, in his or
her capacity as such or as a fiduciary under a Benefit Plan of the Company,
which, if pending on the date hereof, would have been required to have been
disclosed in or pursuant to this Agreement or which relates to the consummation
of the Merger, or any material development in connection with any Litigation
disclosed by the Company in or pursuant to this Agreement or the Company
Securities Filings; (vi) the occurrence of any Event that would reasonably be
expected to cause a breach by the Company of any provision of this Agreement,
and (vii) the occurrence of any Event that, had it occurred prior to the date of
this Agreement without any additional disclosure hereunder, would have
constituted a breach by the Company of any provision of this Agreement.
5.3. Access and Information. Between the date of this Agreement and
the Effective Time, the Company will give, and will cause each of the Company
Subsidiaries to give, and shall direct its financial advisors, accountants and
legal counsel to give, upon reasonable notice, Parent, its lenders, financial
advisors, accountants and legal counsel and their respective authorized
representatives at all reasonable times access to all offices and other
facilities and to all contracts, agreements, commitments, Tax Returns (and
supporting schedules), books and records of or pertaining to the Company and the
Company Subsidiaries, will permit the foregoing to make such reasonable
inspections as they may require and will cause its officers promptly to furnish
Parent with (a) such financial and operating data and other information with
respect to the business and properties of the Company and the Company
Subsidiaries as Parent may from time to time reasonably request and (b) a copy
of each material report, schedule and other document filed or received by the
Company or any of the Company Subsidiaries pursuant to the requirements of
applicable securities laws or the NYSE. The foregoing access will be subject to
restrictions contained in confidentiality agreements to which the Company is
subject; provided that the Company shall use its reasonable best efforts to
obtain waivers of such restrictions.
5.4. Shareholder Approval. As soon as practicable, the Company will
take all steps necessary to duly call, give notice of, convene and hold a
meeting of its shareholders (the "Company Shareholders Meeting") for the purpose
of approving this Agreement and the Merger and the transactions contemplated
hereby and for such other purposes as may be necessary or desirable in the
opinion of Parent and the Company in connection with effectuating the
transactions contemplated hereby (the "Company Proposal"). Except as otherwise
contemplated by this Agreement and subject to the exercise of their fiduciary
duties, the Board of Directors of the Company (i) will recommend to the
shareholders of the Company that they approve the Company Proposal, and (ii)
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will use its reasonable best efforts to obtain any necessary approval by the
Company's shareholders of the Company Proposal, including, without limitation,
voting the shares of Company Common Stock held by such directors for such
adoption and approval.
5.5. Reasonable Best Efforts. Subject to the terms and conditions
herein provided, the Company agrees to use its reasonable best efforts to take,
or cause to be taken, all actions, and to do, or cause to be done, all things
necessary, proper or advisable to consummate and make effective as promptly as
practicable the Merger and the other transactions contemplated by this Agreement
including, but not limited to (i) obtaining any third party Consent required in
connection with the execution and delivery by the Company of this Agreement or
the consummation by the Company of the transactions contemplated hereby, (ii)
the defending of any Litigation against the Company or any Company Subsidiary
challenging this Agreement or the consummation of the transactions contemplated
hereby, (iii) obtaining all Consents from Governmental Authorities required for
the consummation of the Merger and the transactions contemplated hereby, and
(iv) timely making all necessary filings under the HSR Act. Upon the terms and
subject to the conditions hereof, the Company agrees to use its reasonable best
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary to satisfy the other conditions of the Closing set
forth herein. The Company will consult with counsel for Parent as to, and will
permit such counsel to participate in, at Parent's expense, any Litigation
referred to in clause (ii) above brought against or involving the Company or any
Company Subsidiary.
5.6. Public Announcements. So long as this Agreement is in effect,
the Company shall not, and shall cause its affiliates not to, issue or cause the
publication of any press release or any other announcement with respect to the
Merger, the Company Proposal or the transactions contemplated by this Agreement
without the consent of Parent which shall not be unreasonably withheld or
delayed, except when such release or announcement is required by applicable Law
or any applicable listing agreement with, or rules or regulations of, the NYSE
or any securities exchange, in which case the Company, to the extent
practicable, prior to making such announcement, shall consult with Parent
regarding the same.
5.7. Compliance. In consummating the Merger and the transactions
contemplated hereby, the Company shall comply, and/or cause the Company
Subsidiaries to comply or to be in compliance, in all material respects, with
all applicable Laws.
5.8. Company Benefit Plans. Between the date of this Agreement and
through the Effective Time, no discretionary award or grant under any Benefit
Plan of the Company or a Company Subsidiary shall be made without the consent of
Parent; nor shall the Company or a Company Subsidiary take any action or permit
any action to be taken to accelerate the vesting of any warrants or options
previously granted pursuant to any such Benefit Plan except as specifically
required pursuant to the terms thereof as in effect on the date of this
Agreement. Other than as expressly provided in Section 5.13, neither the Company
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nor any Company Subsidiary shall make any amendment to any Benefit Plan or any
awards thereunder without the consent of Parent.
5.9. Solicitation of Acquisition Proposal. (a) Subject to compliance
with Section 5.9(c), for a period of thirty (30) days from the date of this
Agreement (the "Initial Solicitation Period"), the Company shall have the right
to, directly or indirectly, take action to (1) encourage (including by way of
furnishing nonpublic information), solicit, initiate or facilitate any
Acquisition Proposal (as defined in Section 5.9(d)), or (2) participate in
discussions or negotiations with, or furnish information to, any person in
connection with, or take any other action to facilitate any inquiries or the
making of any proposal that constitutes, or could reasonably be expected to lead
to, any Acquisition Proposal; provided, however, that the Company and its
advisors and representatives may furnish information only pursuant to a
customary confidentiality agreement the terms of which are no more favorable to
the other party to such confidentiality agreement than those then in place with
Parent. It is expressly understood and agreed that subject to compliance with
Section 5.9(c) and the proviso set forth in the prior sentence, during the
Initial Solicitation Period, the Company's officers, directors, and financial
and legal advisors shall be permitted to actively encourage and solicit
inquiries from, initiate and engage in discussions with, and provide any
information to, any party for the purpose of receiving any Acquisition Proposal
without violating this Agreement. In the event that during the Initial
Solicitation Period, the Company receives any inquiry or proposal that
constitutes, or could reasonably lead to, an Acquisition Proposal (any of the
foregoing, an "Initial Period Acquisition Inquiry"), then, subject to compliance
with Section 5.9(c) and the proviso contained in the first sentence of this
Section 5.9(a), for fifteen days after the Initial Solicitation Period (and
prior to the Company Shareholders Meeting), the Company shall have the right to
(A) continue to encourage (including by way of furnishing nonpublic information)
and/or facilitate the making of Acquisition Proposals by persons that made
Initial Period Acquisition Inquiries (the "Initial Period Inquirors"), (B)
continue to participate in discussions or negotiations with, or furnish
information to, the Initial Period Inquirors in connection with, or take any
other action to facilitate any inquiries or the making of any proposal by the
Initial Period Inquirors that constitute, or could reasonably be expected to
lead to, an Acquisition Proposal from such Initial Period Inquirors, and (C)
permit its officers, directors, and financial and legal advisors to engage in
discussions with, and provide any information to, the Initial Period Inquirors
for the purpose of receiving Acquisition Proposals from the Initial Period
Inquirors. In the event that, during the Initial Solicitation Period (or during
the subsequent 15 days, if from an Initial Period Inquiror), the Company
receives an Acquisition Proposal that the Board of Directors of the Company
determines in good faith is reasonably likely to result in a Superior Proposal
(as defined in Section 5.9(d)), then, subject to (x) compliance with Section
5.9(c) and the proviso contained in the first sentence of this Section 5.9(a)
and (y) if the Board of Directors of the Company determines in good faith, after
consultation with outside counsel, that it is reasonably likely to be necessary
to do so to discharge its fiduciary duties to the shareholders of the Company,
the Company may, following the Initial Solicitation Period and prior to the
Company Shareholders Meeting, (A) continue to encourage (including by way of
furnishing nonpublic information) and/or facilitate such Acquisition Proposal,
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(B) continue to participate in discussions or negotiations with, or furnish any
information to, the person making such Acquisition Proposal, and (C) permit its
officers, directors, and financial and legal advisors to engage in discussions
with, and provide any information to, the person making such Acquisition
Proposal without any violation of this Agreement.
(b) Subject to Section 5.9(a) above, after the Initial
Solicitation Period, the Company shall not, directly or indirectly, take any
action to (1) encourage (including by way of furnishing nonpublic information),
solicit, initiate or facilitate any Acquisition Proposal, (2) enter into any
agreement with respect to any Acquisition Proposal or (3) participate in any way
in discussions or negotiations with, or furnish any information to, any person
in connection with, or take any other action to facilitate any inquiries or the
making of any proposal that constitutes, or could reasonably be expected to lead
to, any Acquisition Proposal; provided, however, that if the Board of Directors
of the Company determines in good faith, after consultation with outside
counsel, that it is necessary to do so to discharge properly its fiduciary
duties to shareholders, the Company may, prior to the Company Shareholders
Meeting, in response to an Acquisition Proposal that the Board of Directors of
the Company determines in good faith is reasonably likely to result in a
Superior Proposal and subject to such party's compliance with Section 5.9(c),
(A) furnish information with respect to the Company to the person making such
Acquisition Proposal pursuant to a customary confidentiality agreement the terms
of which are no more favorable to the other party to such confidentiality
agreement than those then in place with Parent and (B) participate in
discussions with respect to such Acquisition Proposal. It is expressly
understood and agreed that with respect to the foregoing proviso, the Company's
legal and financial advisors shall be able to make inquiries, and engage in
discussions, with any party that has made an Acquisition Proposal (and such
party's legal and financial advisors) in order to elicit information to allow
the Company's Board of Directors to determine in good faith if such Acquisition
Proposal is reasonably likely to result in a Superior Proposal.
(c) The Company will as promptly as practicable (but in any
event within two business days) (x) communicate to Parent any Acquisition
Proposal received by the Company or any of its advisors or representatives (in
each case, whether written or oral), including the material terms of any such
proposal (including any changes or amendments thereto) and the identity of the
person and its affiliates making the same, and (y) inform Parent of any
information requested from the Company or any of its advisors or
representatives, and of any negotiations or discussions being sought to be
initiated with the Company or any of its advisors or representatives, in each
case in connection with any Acquisition Proposal. The Company will keep Parent
informed of the status of any discussions, negotiations or further inquiries
regarding any Acquisition Proposal, including, without limitation, providing
Parent with copies of (x) any written Acquisition Proposals or written
indications of interest with respect to potential Acquisition Proposals received
by the Company or any of its advisors or representatives and (y) any information
delivered to any person in connection with any Acquisition Proposal or potential
Acquisition Proposal which has not been previously delivered to Parent.
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(d) "Acquisition Proposal" means any offer or proposal
concerning any (1) merger, consolidation, business combination, or similar
transaction involving the Company, (2) sale, lease or other disposition of
assets of the Company representing 20% or more of the consolidated assets of the
Company and the Company Subsidiaries, (3) issuance, sale, or other disposition
of (including by way of merger, consolidation, business combination, share
exchange, joint venture, or any similar transaction) securities (or options,
rights or warrants to purchase, or securities convertible into or exchangeable
for, such securities) representing 20% or more of the voting power of the
Company or (4) transaction in which any person shall acquire beneficial
ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the
right to acquire beneficial ownership or any "group" (as such term is defined
under the Exchange Act) shall have been formed which beneficially owns or has
the right to acquire beneficial ownership of, 20% or more of the outstanding
voting capital stock of the Company. "Superior Proposal" means a bona fide
Acquisition Proposal made by a third party which was not solicited by the
Company in violation of this Agreement, its subsidiaries, representatives or
other affiliates and which, in the good faith judgment of the Company's Board of
Directors, taking into account, to the extent deemed appropriate by the
Company's Board of Directors, the various legal, financial and regulatory
aspects of the proposal and the person making such proposal (A) if accepted, is
reasonably likely to be consummated, and (B) if consummated, is reasonably
likely to result in a transaction that is more favorable to the Company's
shareholders (in their capacity as shareholders), from a financial point of
view, than the transactions contemplated by this Agreement.
(e) If the Company's Board of Directors is prepared to
accept a Superior Proposal or to withdraw, or modify or change in a manner
adverse to Parent or Merger Sub, its approval or recommendation of the Merger
and/or the Company Proposal, then the Company shall give Parent three business
days notice thereof and furnish Parent with a copy of an agreement the Company
is prepared to execute with respect to the transaction contemplated by such
proposal. If Parent indicates that it may make an alternative proposal, the
Company will establish an auction procedure whereby, for a period of three
business days following the day in which the Company shall have given the notice
referred to in the prior sentence, Parent and the party making the Superior
Proposal will have the opportunity to make their respective offers to be
considered by the Company. The Company shall accept the offer from such party
that the Company's Board of Directors shall have determined that, if
consummated, is reasonably likely to result in a transaction that is more
favorable to the Company's shareholders (in their capacity as shareholders) from
a financial point of view. Notwithstanding anything to the contrary contained
herein, the Company may not definitively accept a Superior Proposal unless the
Company concurrently therewith terminates this Agreement pursuant to Section
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9.1(f) and, concurrently with such termination, makes the payment required by
Section 9.2(b).
5.10. SEC and Shareholder Filings. The Company shall send to Parent a
copy of all public reports and materials as and when it sends the same to its
shareholders, the SEC or any state or foreign securities commission.
5.11. Takeover Statutes. If any Takeover Statute is or may become
applicable to the Merger or the transactions contemplated hereby, the Company
and the members of its Board of Directors will grant such approvals and will
take such other actions as are necessary so that the Merger and the other
transactions contemplated by this Agreement may be consummated as promptly as
practicable on the terms contemplated hereby and will otherwise act to eliminate
or minimize the effects of any Takeover Statute on the Merger and any of the
transactions contemplated hereby.
5.12 Second Supplemental Ruling Letter.
(a) The Company shall use reasonable best efforts to obtain from the
IRS a Second Supplemental Ruling Letter (as defined in Section 1.4 of the
Consent and Agreement). In that regard, as promptly as possible following the
execution of this Agreement, the Company, through its outside tax counsel,
Sutherland Asbill & Brennan LLP ("SAB"), shall prepare and file a request for a
Second Supplemental Ruling Letter from the Internal Revenue Service (the "IRS").
The request for such supplemental ruling letter (including any subsequent
submissions) is hereafter referred to as the "Second Supplemental Ruling
Request." In addition, the Company, through SAB, shall engage in such
discussions with the IRS as are reasonably necessary to facilitate the obtaining
of the Second Supplemental Ruling.
(b) Parent agrees to use reasonable best efforts to cooperate fully and
promptly with the Company and SAB in reviewing drafts of the Second Supplemental
Ruling Request (which drafts shall be made available, when reasonably complete,
to Parent and its outside tax counsel, Fried, Frank, Harris, Shriver & Jacobson
("FF")), and in otherwise responding to any reasonable requests for information
that may be reasonably required in connection with the preparation or IRS
processing of the Second Supplemental Ruling Request. Prior to being filed with
the IRS, the Second Supplemental Ruling Request, and any subsequent written
submissions that may be required by the IRS in connection with its processing of
the Second Supplemental Ruling Request, shall be approved by Parent or FF, which
approval shall be communicated in writing to SAB and shall not be unreasonably
withheld. The Company, through SAB, shall promptly advise Parent, through FF, of
all communications with the IRS in connection with its processing of the Second
Supplemental Ruling Request and provide Parent and FF, with copies of all such
communications that are in writing. The Company shall provide Parent and FF
reasonable notice of any meeting or discussions with the IRS with respect to the
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Second Supplemental Ruling Request and give Parent and FF the opportunity to
attend such meetings and participate in such discussions. In the event that
Parent seeks an opinion of counsel with respect to the tax effect of the Merger
on the Company's spin-off from RP, the Company shall provide such counsel with
such representations as are reasonably necessary to support such opinion.
(c) Notwithstanding anything to the contrary contained herein, Parent
in its sole discretion may at any time agree (by providing written notice to the
Company) that the condition set forth in Section 8.3.6 may be satisfied by
delivery to RP of a Tax Opinion.
ARTICLE VI.
ADDITIONAL COVENANTS OF PARENT AND MERGER SUB
Parent and Merger Sub covenant and agree as follows:
6.1. Notification of Certain Matters. Parent shall give prompt notice
to the Company if any of the following occurs after the date of this Agreement:
(i) receipt of any notice or other communication in writing from any third party
alleging that the Consent of such third party is or may be required in
connection with the transactions contemplated by this Agreement, other than a
Consent disclosed pursuant to Section 4.3 or 4.4 above or not required to be
disclosed pursuant to the terms thereof; (ii) receipt of any material notice or
other communication from any Governmental Authority (including, but not limited
to, the NYSE or any other securities exchange) in connection with the
transactions contemplated by this Agreement; (iii) the occurrence of an Event
which would reasonably be expected to have a Parent Material Adverse Effect;
(iv) the commencement or threat of any Litigation involving or affecting Parent
or any Parent Subsidiary, or any of their respective properties or assets, or,
to its knowledge, any employee, agent, director or officer of Parent or any
Parent Subsidiary, in his or her capacity as such or as a fiduciary under a
Benefit Plan of Parent, which relates to the consummation of the Merger; and (v)
the occurrence of any Event that would reasonably be expected to cause a breach
by Parent of any provision of this Agreement.
6.2. Reasonable Best Efforts. Subject to the terms and conditions
herein provided, Parent and Merger Sub agree to use their reasonable best
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things necessary, proper or advisable to consummate and make effective
as promptly as practicable the Merger and the other transactions contemplated by
this Agreement including, but not limited to (i) obtaining any third party
Consent required in connection with the execution and delivery by Parent and
Merger Sub of this Agreement or the consummation by Parent and Merger Sub of the
transactions contemplated hereby, (ii) the defending of any Litigation against
Parent or any Parent Subsidiary challenging this Agreement or the consummation
of the transactions contemplated hereby, (iii) obtaining all Consents from
Governmental Authorities required for the consummation of the Merger and the
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transactions contemplated hereby, and (iv) timely making all necessary filings
under the HSR Act. Upon the terms and subject to the conditions hereof, Parent
and Merger Sub agree to use their reasonable best efforts to take, or cause to
be taken, all actions and to do, or cause to be done, all things necessary to
satisfy the other conditions of the Closing set forth herein.
6.3. Public Announcements. So long as this Agreement is in effect,
Parent shall not, and shall cause its affiliates not to, issue or cause the
publication of any press release or any other announcement with respect to the
Merger, the Company Proposal or the transactions contemplated by this Agreement
without the consent of the Company which shall not be unreasonably withheld or
delayed, except when such release or announcement is required by applicable Law
or any applicable listing agreement with, or rules or regulations of, the NYSE
or any securities exchange, in which case Parent, to the extent practicable,
prior to making such announcement, shall consult with the Company regarding the
same.
6.4. Director and Officer Liability. (a) The Surviving Corporation
shall indemnify and hold harmless and advance expenses to the present and former
officers and directors of the Company, and each person who prior to the
Effective Time becomes an officer or director of the Company (each an
"Indemnified Person"), in respect of acts or omissions by them in their
capacities as such occurring at or prior to the Effective Time (including,
without limitation, for acts or omissions occurring in connection with this
Agreement and the consummation of the Merger) to the fullest extent permissible
under applicable law (collectively, the "Indemnified Losses"). Without limiting
the generality of the foregoing, the Indemnified Losses shall include reasonable
costs of prosecuting a claim under this Section 6.4(a). The Surviving
Corporation shall periodically advance or reimburse each Indemnified Person for
all reasonable fees and expenses of counsel constituting Indemnified Losses as
such fees and expenses are incurred; provided that such Indemnified Person shall
agree to promptly repay to the Surviving Corporation the amount of any such
reimbursement if it shall be judicially determined by judgment or order not
subject to further appeal or discretionary review that such Indemnified Person
is not entitled to be indemnified by the Surviving Corporation in connection
with such matter.
(b) For six years after the Effective Time, the Surviving
Corporation shall provide officers' and directors' liability insurance in
respect of acts or omissions occurring prior to the Effective Time (including,
without limitation, for acts or omissions occurring in connection with this
Agreement and the consummation of the Merger) covering each Indemnified Person
currently covered by the Company's officers' and directors' liability insurance
policy on terms with respect to coverage and amount (including with respect to
the payment of attorney's fees) no less favorable than those of such policy in
effect on the date hereof (which policies have been made available by the
Company to Parent); provided that if the aggregate annual premiums for such
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insurance during such period shall exceed 200% of the per annum rate of premium
paid by the Company as of the date hereof for such insurance, then the Surviving
Corporation shall provide a policy with the best coverage as shall then be
available at 200% of such rate.
(c) The rights of each Indemnified Person and his or her
heirs and legal representatives under this Section 6.4 shall be in addition to
any rights such Indemnified Person may have under the Articles of Incorporation
or Bylaws of the Company, any agreement providing for indemnification, or under
the laws of the State of Missouri or any other applicable Laws. These rights
shall survive consummation of the Merger and are intended to benefit, and shall
be enforceable by, each Indemnified Person.
6.5. Company Employee Agreements. From and after the Effective Time,
Parent shall cause the Surviving Corporation to honor, in accordance with its
terms, each existing management continuity agreement and other severance
arrangement of the Company or between the Company and any of its officers or
employees.
ARTICLE VII.
PROXY STATEMENT
Parent and the Company shall cooperate and promptly prepare and the
Company shall file with the SEC as soon as practicable a proxy statement with
respect to the Company Shareholders Meeting (the "Proxy Statement"). The parties
will cause the Proxy Statement to comply as to form in all material respects
with the applicable provisions of the Exchange Act and the rules and regulations
thereunder. The Company shall use all reasonable efforts, and Parent will
cooperate with the Company, to have the Proxy Statement cleared by the SEC as
promptly as practicable. The Company shall, as promptly as practicable, provide
copies of any written comments received from the SEC with respect to the Proxy
Statement to Parent and advise Parent of any verbal comments with respect to the
Proxy Statement received from the SEC. The Company agrees that the Proxy
Statement and each amendment or supplement thereto at the time of mailing
thereof and at the time of the Company Shareholders Meeting will not include an
untrue statement of a material fact or omit to state a 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 misleading; provided, however,
that the foregoing shall not apply to the extent that any such untrue statement
of a material fact or omission to state a material fact was made by the Company
in reliance upon and in conformity with written information concerning Parent
furnished to the Company by Parent specifically for use in the Proxy Statement.
Parent agrees that the written information provided by it for inclusion in the
Proxy Statement and each amendment or supplement thereto, at the time of mailing
thereof and at the time of the Company Shareholders Meeting, will not include an
untrue statement of a material fact or omit to state a 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 misleading. No amendment or
supplement to the Proxy Statement will be made by the Company without the
approval of Parent. The Company will advise Parent promptly of any request by
the SEC for amendment of the Proxy Statement or comments thereon and responses
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thereto or requests by the SEC for additional information. Whenever any event or
condition affecting the Company or Parent occurs that is required to be set
forth in an amendment or supplement to the Proxy Statement, such party will
promptly inform the other of such occurrence and cooperate in filing with the
SEC or its staff or any other government officials, and in mailing to
shareholders of the Company, such amendment or supplement.
ARTICLE VIII.
CONDITIONS
8.1. Conditions to Each Party's Obligations. The respective
obligations of each party to effect the Merger shall be subject to the
fulfillment or waiver on or prior to the Closing Date of the following
conditions:
8.1.1. Company Shareholder Approval. The Merger shall have been
approved at or prior to the Effective Time by the requisite vote of the
shareholders of the Company in accordance with the Missouri Code and the
Company's Articles of Incorporation.
8.1.2. No Injunction or Action. No order, statute, rule,
regulation, executive order, stay, decree, judgment or injunction shall have
been enacted, entered, promulgated or enforced by any court or other
Governmental Authority, which prohibits or prevents the consummation of the
Merger and which has not been vacated, dismissed or withdrawn by the Effective
Time. Parent and the Company shall use their reasonable best efforts to have any
of the foregoing vacated, dismissed or withdrawn on or prior to the Effective
Time.
8.1.3. Governmental Approvals. All Consents of any
Governmental Authority required for the consummation of the Merger and the
transactions contemplated by this Agreement shall have been obtained by Final
Order (as hereafter defined), except (x) as may be waived by Parent or (y) those
the failure of which to obtain will have neither a Company Material Adverse
Effect nor a Parent Material Adverse Effect. The term "Final Order" with respect
to any Consent of a Governmental Authority shall mean an action by the
appropriate Governmental Authority as to which: (i) no request for stay by such
Governmental Authority of the action is pending, no such stay is in effect, and,
if any deadline for filing any such request is designated by statute or
regulation, it has passed; (ii) no petition for rehearing or reconsideration of
the action is pending before such Governmental Authority, and no appeal or
comparable administrative remedy with such or any other Governmental Authority
is pending before such Governmental Authority, and the time for filing any such
petition, appeal or administrative remedy has passed; (iii) such Governmental
Authority does not have the action under reconsideration on its own motion and
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the time for such reconsideration has passed; and (iv) no appeal to a court, or
request for stay by a court, of the Governmental Authority action is pending or
in effect, and if any deadline for filing any such appeal or request is
designated by statute or rule, it has passed.
8.1.4. HSR Act. The waiting period applicable to the Merger
under the HSR Act shall have expired or earlier termination thereof shall have
been granted, and no action, suit, proceeding or investigation shall have been
instituted by either the United States Department of Justice or the Federal
Trade Commission to prevent the consummation of the transactions contemplated by
this Agreement or to modify or amend such transactions in any material manner,
or if any such action shall have been instituted, it shall have been withdrawn
or a Final Order having the effect of permitting the consummation of the
transactions contemplated by this Agreement shall have been entered against such
Department or Commission, as the case may be.
8.2. Conditions to Obligations of the Company. The obligation of the
Company to effect the Company Merger shall be subject to the fulfillment on or
prior to the Closing Date of the following additional conditions, any one or
more of which may be waived by the Company:
8.2.1. Parent Representation and Warranties. As of the Closing
Date, none of the representations or warranties of Parent contained in this
Agreement, disregarding any qualifications herein regarding materiality or
Parent Material Adverse Effect, shall be untrue or incorrect as of the Closing
Date, except to the extent such representations and warranties speak as of an
earlier date, to the extent that such untrue or incorrect representations or
warranties, when taken together as a whole, have had or would reasonably be
expected to have a Parent Material Adverse Effect.
8.2.2. Performance by Parent. Parent shall have performed and
complied with all of the covenants and agreements in all material respects and
satisfied in all material respects all of the conditions required by this
Agreement to be performed or complied with or satisfied by Parent on or prior to
the Closing Date.
8.2.3. No Material Adverse Change. There shall not have
occurred after the date hereof any Event that has had or reasonably would be
expected to have a Parent Material Adverse Effect.
8.2.4. Certificates and other Deliveries. Parent shall have
delivered to the Company a certificate executed on its behalf by its Chief
Executive Officer to the effect that the conditions set forth in Subsections
8.2.1, 8.2.2 and 8.2.3, above, have been satisfied.
8.3. Conditions to Obligations of Parent. The obligations of Parent
to effect the Merger shall be subject to the fulfillment on or prior to the
Closing Date of the following additional conditions, any one or more of which
may be waived by Parent:
8.3.1. Company Representations and Warranties. As of the
Closing Date, none of the representations or warranties of the Company contained
in this Agreement, disregarding any qualifications herein regarding materiality
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or Company Material Adverse Effect shall be untrue or incorrect as of the
Closing Date, except to the extent such representations and warranties speak as
of an earlier date, to the extent that such untrue or incorrect representations
or warranties, when taken together as a whole, have had or would reasonably be
expected to have a Company Material Adverse Effect.
8.3.2. Performance by the Company. The Company shall have
performed and complied with all the covenants and agreements in all material
respects and satisfied in all material respects all the conditions required by
this Agreement to be performed or complied with or satisfied by the Company on
or prior to the Closing Date.
8.3.3. No Material Adverse Change. There shall have not
occurred after the date hereof any Event (except for those Events caused by (x)
conditions affecting national, regional or world economies such as currency
fluctuations (but excluding extraordinary disruptions in regional or world
economies or markets or U.S./foreign currency exchange ratios involving multiple
countries), (y) conditions affecting the animal feed industry in the regions in
which the Company operates, or (z) the pendency or announcement of this
Agreement, or the transactions contemplated hereby) that has had or reasonably
would be expected to have a Company Material Adverse Effect.
8.3.4. Certificates and Other Deliveries. The Company shall
have delivered, or caused to be delivered, to Parent (i) a certificate executed
on its behalf by its Chief Executive Officer to the effect that the conditions
set forth in Subsections 8.3.1, 8.3.2 and 8.3.3, above and 8.3.7 below, have
been satisfied; (ii) a certificate of good standing from the Secretary of State
of the State of Missouri stating that the Company is a validly existing
corporation in good standing; (iii) duly adopted resolutions of the Board of
Directors of the Company approving the execution, delivery and performance of
this Agreement and the instruments contemplated hereby and of the shareholders
of the Company approving the Company Proposal, certified by the Secretary or an
Assistant Secretary of the Company; (iv) a true and complete copy of the
Articles of Incorporation of the Company certified by the Secretary of State of
the State of Missouri, and a true and complete copy of the Bylaws of the Company
certified by the Secretary or an Assistant Secretary of the Company; and (v)
such other documents and instruments as Parent reasonably may request.
8.3.5. Required Consents. Any required Consents of any person
to the Merger or the transactions contemplated hereby as described in Sections
3.5, 3.6, 4.3 and 4.4 shall have been obtained and be in full force and effect,
except for those the failure of which to obtain will have neither a Company
Material Adverse Effect nor a Parent Material Adverse Effect.
8.3.6. Spin-Off Ruling/Opinion. The Company shall have
delivered to RP a Second Supplemental Ruling Letter from the IRS (reasonably
acceptable to Parent) or, in the event that Parent has agreed that the condition
contained in this Section 8.3.6 may be satisfied by delivery to RP of a Tax
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Opinion (as defined below) as contemplated by Sections 5.12(c) and/or 9.1(d), RP
shall have received an opinion of counsel (in form and substance reasonably
acceptable to Parent) as contemplated by Section 1.4 of the Consent and
Agreement (a "Tax Opinion").
8.3.7. Effectiveness of WPS Continuity Agreement Amendment. The
WPS Continuity Agreement Amendment shall be in full force and effect, and
enforceable against William P. Stiritz in accordance with its terms.
8.3.8. Effectiveness of Consent and Agreement. The Consent and
Agreement shall be in full force and effect, and enforceable against the parties
(including by Parent) in accordance with its terms.
ARTICLE IX.
TERMINATION AND ABANDONMENT
9.1. Termination. This Agreement may be terminated at any time prior
to the Effective Time, whether before or after approval of this Agreement and
the Merger by the shareholders of the Company:
(a) by mutual consent of the Company and Parent;
(b) (1) by the Company (provided that the Company is not
then in material breach of any representation, warranty, covenant or other
agreement contained herein), if there has been a breach by Parent of any of its
representations, warranties, covenants or agreements contained in this
Agreement, or any such representation and warranty shall have become untrue, in
any such case such that Section 8.2.1 or Section 8.2.2 will not be satisfied
and, in either such case, such breach or condition has not been promptly cured
within 30 days following receipt by Parent of written notice of such breach; (2)
by Parent (provided that Parent is not then in material breach of any
representation, warranty, covenant or other agreement contained herein), if
there has been a breach by the Company of any of its representations,
warranties, covenants or agreements contained in this Agreement, or any such
representation and warranty shall have become untrue, in any such case such that
Section 8.3.1 or Section 8.3.2 will not be satisfied and such breach or
condition has not been promptly cured within 30 days following receipt by the
Company of written notice of such breach;
(c) by either Parent or the Company if any decree, permanent
injunction, judgment, order or other action by any court of competent
jurisdiction, any arbitrator or any Governmental Authority preventing or
prohibiting consummation of the Merger shall have become final and nonappealable
(so long as the party seeking termination is not in breach of Section 5.5 or
Section 6.2 hereof);
(d) by either Parent or the Company if the Merger shall
not have been consummated before the "End Date", which shall be April 30, 2001;
provided, however, that if on April 30, 2001, the condition to closing set forth
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in Section 8.3.6 shall not have been satisfied (or waived by Parent) but all
other conditions to consummation of the Merger shall have been satisfied (or
waived) or shall be capable of being satisfied, then either party shall have the
right to extend the End Date to June 30, 2001. If the Second Supplemental Ruling
Letter has not been received by June 30, 2001, but the Second Supplemental
Ruling Request is still pending at that date, Parent shall have the right to
extend the End Date until August 31, 2001 and shall have the right until August
31, 2001 to agree (by providing a written notice to the Company) that the
condition set forth in Section 8.3.6 may be satisfied by delivery to RP of a Tax
Opinion; provided, however, that, unless otherwise determined by Parent, efforts
to obtain the Second Supplemental Ruling Letter shall continue as provided in
Section 5.12 at least until August 31, 2001. If at any time prior to August 31,
2001 the IRS communicates to the Company or SAB that (i) for any reason, the IRS
declines to rule on the Second Supplemental Ruling Request, or (ii) the IRS has
finally determined that it would rule adversely, Parent shall be promptly
notified of such communication and shall then have 30 days (measured from the
date Parent reasonably confirms based on discussion with the IRS that the
Company is unable to obtain either any ruling or a favorable ruling (such date,
the "IRS Ruling Notification Date")), or such lesser number of days until August
31, 2001, to nonetheless agree (by providing a written notice to the Company)
that the condition set forth in Section 8.3.6 may be satisfied by delivery to RP
of a Tax Opinion. If Parent fails to so agree by the expiration of such 30 day
period (or by August 31, 2001, if earlier), the Company shall have the right to
terminate this Agreement pursuant to this paragraph (d), notwithstanding that
the End Date has not occurred. Parent shall have the right to terminate this
Agreement pursuant to this paragraph (d) at any time after the IRS Ruling
Notification Date, notwithstanding that the End Date has not occurred.
Notwithstanding the foregoing, a party shall not be permitted to extend the End
Date or terminate this Agreement pursuant to this paragraph (d) if the failure
of the Effective Time to occur by the End Date shall be due to the failure of
such party to perform or observe in all material respects the covenants and
agreements of such party set forth herein;
(e) by either Parent or the Company if the transactions
contemplated by this Agreement shall fail to receive the requisite vote for
approval and adoption by the shareholders of the Company at the Company
Shareholders Meeting or any adjournment or postponement thereof; provided that
the right to terminate this Agreement under this Section 9.1(e) shall not be
available to any party whose failure to fulfill any obligation under this
Agreement has been the cause of, or resulted in, the failure of such approval to
have been obtained;
(f) prior to the Company Shareholders Meeting, by the
Company concurrently with its acceptance of a Superior Proposal; or
(g) by Parent, if the Board of Directors of the Company
shall have withdrawn, or modified or changed, in a manner adverse to Parent or
Merger Sub, its approval or recommendation of the Merger and/or the Company
Proposal.
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9.2. Effect of Termination. (a) In the event of the termination of
this Agreement by either the Company or Parent pursuant to Section 9.1, this
Agreement shall forthwith become void, there shall be no liability under this
Agreement on the part of Parent or the Company, other than the provisions of
this Section 9.2, Section 10.1 and Section 10.7, and except to the extent that
such termination results from the willful and material breach by a party of any
of its representations, warranties, covenants or agreements set forth in this
Agreement.
(b) The Company and Parent agree that the Company shall pay
to Parent $10,000,000 (the "Termination Fee") solely as follows: (1) if all of
the following occur (A) the Company or Parent shall terminate this Agreement
pursuant to Section 9.1(d) or (e), (B) at any time after the date of this
Agreement and prior to the Company Shareholders Meeting there shall have been
publicly announced an Acquisition Proposal and (C) within 12 months of the
termination of this Agreement, the Company enters into a definitive agreement
with respect to an Acquisition Proposal, (2) if the Company shall terminate this
Agreement pursuant to Section 9.1(f), or (3) if Parent shall terminate this
Agreement pursuant to Section 9.1(g).
(c) The Termination Fee required to be paid pursuant to
Section 9.2(b)(1) shall be paid to Parent not later than five business days
after the Company enters into a definitive agreement with respect to an
Acquisition Proposal. The Termination Fee to be paid to Parent pursuant to
Section 9.2(b)(2) shall be paid to Parent concurrently with notice of
termination of this Agreement by the Company. The Termination Fee to be paid to
Parent pursuant to Section 9.2(b)(3) shall be paid to Parent no later than five
business days after the Company's receipt of notice of termination of this
Agreement by Parent. All payments under Section 9.2(b) shall be made by wire
transfer of immediately available funds to an account designated by Parent.
ARTICLE X.
MISCELLANEOUS
10.1. Confidentiality. Unless (i) otherwise expressly provided in this
Agreement, (ii) required by applicable Law, (iii) necessary to secure any
required Consents as to which the other party has been advised, or (iv)
consented to in writing by Parent and the Company, this Agreement and any
information or documents furnished in connection herewith shall be kept strictly
confidential by the Company and the Company Subsidiaries, Parent and the Parent
Subsidiaries, and their respective officers, directors, employees and agents.
Prior to any disclosure pursuant to the preceding sentence, the party intending
to make such disclosure shall consult with the other party to the extent
practicable regarding the nature and extent of the disclosure. Subject to the
preceding sentence, nothing contained herein shall preclude disclosures to the
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extent necessary to comply with accounting, SEC and other disclosure obligations
imposed by applicable Law. To the extent required by such disclosure
obligations, Parent or the Company, after consultation with the other party to
the extent practicable, may file with the SEC any written communications
relating to the Merger and the transactions contemplated hereby pursuant to
Regulation 14A promulgated under the Securities Act. Parent and the Company
shall cooperate with the other and provide such information and documents as may
be required in connection with any such filings. In the event the Merger is not
consummated, Parent and the Company shall return to the other all documents
furnished by the other and all copies thereof made by such party and will hold
in absolute confidence all information obtained from the other party except to
the extent (i) such party is required to disclose such information by Law or
such disclosure is necessary in connection with the pursuit or defense of a
claim, (ii) such information was known by such party prior to such disclosure or
was thereafter developed or obtained by such party independent of such
disclosure, (iii) such party received such information on a non-confidential
basis from a source, other than the other party, which is not known by such
party to be bound by a confidentiality obligation with respect thereto or (iv)
such information becomes generally available to the public or is otherwise no
longer confidential. Prior to any disclosure of information pursuant to the
exception in clause (i) of the preceding sentence, the party intending to
disclose the same shall so notify the party which provided the same to the
extent practicable in order that such party may seek a protective order or other
appropriate remedy should it choose to do so.
10.2. Amendment and Modification. To the extent permitted by
applicable Law, this Agreement may be amended, modified or supplemented only by
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a written agreement among the Company, Parent and Merger Sub, whether before or
after approval of this Agreement and the Merger by the shareholders of the
Company, except that following approval by the shareholders of the Company,
there shall be no amendment or change to the provisions hereof with respect to
the Merger Consideration without further approval by the shareholders of the
Company, and no other amendment shall be made which by law requires further
approval by such shareholders without such further approval.
10.3. Waiver of Compliance; Consents. Any failure of the Company on
the one hand, or Parent or Merger Sub on the other hand, to comply with any
obligation, covenant, agreement or condition herein may be waived by Parent on
the one hand, or the Company on the other hand, only by a written instrument
signed by the party granting such waiver, but such waiver or failure to insist
upon strict compliance with such obligation, covenant, agreement or condition
shall not operate as a waiver of, or estoppel with respect to, any subsequent or
other failure. Whenever this Agreement requires or permits consent by or on
behalf of any party hereto, such consent shall be given in writing in a manner
consistent with the requirements for a waiver of compliance as set forth in this
Section 10.3.
10.4. Survival of Representations and Warranties. The respective
representations and warranties of the Company and Parent contained herein or in
any certificates or other documents delivered prior to or at the Closing shall
survive the execution and delivery of this Agreement, notwithstanding any
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investigation made or information obtained by the other party, but shall
terminate at the Effective Time.
10.5. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given when delivered in
person, by facsimile, receipt confirmed, or on the next business day when sent
by overnight courier or on the second succeeding business day when sent by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
(i) if to Agribrands, to:
Agribrands International, Inc.
9811 South Forty Dr.
St. Louis, Missouri 63124
Attention: Chairman of the Board, Chief Executive
Officer and President
Telecopy: (314) 812-0409
with a copy to:
Latham & Watkins
633 West 5th Street, Suite 4000
Los Angeles, CA 90071
Attention: Gary Olson, Esq.
Telecopy: (213) 891-8763
and with a copy to:
Bryan Cave LLP
211 North Broadway, Suite 3600
St. Louis, Missouri 63102-2750
Attention: Don G. Lents, Esq.
Telecopy: (314) 259-2020
and
(ii) if to Parent or Merger Sub, to:
Cargill, Incorporated
P.O. Box 5624
Minneapolis, MN 55440
Attention: Linda L. Cutler, Esq.
Vice President, Assistant General Counsel and
Assistant Secretary
Telecopy: (952) 742-6349
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with a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Attention: Gary P. Cooperstein, Esq.
Telecopy: (212) 859-4000
10.6. Binding Effect; Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any of the parties hereto prior to the Effective Time without the
prior written consent of the other parties hereto.
10.7. Expenses. All costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such costs or expenses, provided, however, that each of Parent
and the Company shall pay one-half of the expenses related to printing, filing
and mailing the Proxy Statement and all SEC and other regulatory filing fees
incurred in connection with the Merger.
10.8. Governing Law. This Agreement shall be deemed to be made in, and
in all respects shall be interpreted, construed and governed by and in
accordance with the internal laws of, the State of Missouri, and the parties
hereto consent to the jurisdiction of the courts of or in the State of Missouri
in connection with any dispute or controversy relating to or arising out of this
Agreement and the transactions contemplated hereby.
10.9. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
10.10. Interpretation. The article and section headings contained in
this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement. No rule of construction shall apply to this
Agreement which construes ambiguous language in favor of or against any party by
reason of that party's role in drafting this Agreement. As used in this
Agreement, (i) the term "person" shall mean and include an individual, a
partnership, a joint venture, a corporation, a limited liability company, a
trust, an association, an unincorporated organization, a Governmental Authority
and any other entity; (ii) the term "affiliate," with respect to any person,
shall mean and include any person controlling, controlled by or under common
control with such person; and (iii) the term "subsidiary" of any specified
person shall mean any corporation 50 percent or more of the outstanding voting
power of which, or any partnership, joint venture, limited liability company or
other entity 50 percent or more of the total equity interest of which, is
directly or indirectly owned by such specified person.
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10.11. Entire Agreement. This Agreement and the other agreements,
documents or instruments referred to herein or executed in connection herewith
including, but not limited to, the Company Disclosure Schedule and Parent
Disclosure Schedule, which schedules are incorporated herein by reference,
embody the entire agreement and understanding of the parties hereto in respect
of the subject matter contained herein. There are no restrictions, promises,
representations, warranties, covenants, or undertakings, other than those
expressly set forth or referred to herein. This Agreement supersedes all prior
agreements and the understandings between the parties with respect to such
subject matter.
10.12. Specific Performance. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions in this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. Accordingly, the parties further agree that each party shall be
entitled to an injunction or restraining order to prevent breaches hereof or
thereof and to enforce specifically the terms and provisions hereof or thereof
in any court of the United States or any state having jurisdiction, this being
in addition to any other right or remedy to which such party may be entitled
under this Agreement, at law or in equity.
10.13. Third Parties. Nothing contained in this Agreement or in any
instrument or document executed by any party in connection with the transactions
contemplated hereby shall create any rights in, or be deemed to have been
executed for the benefit of, any person that is not a party hereto or thereto,
or, a successor or permitted assign of such a party; provided, however, that the
parties hereto specifically acknowledge that the provisions of Section 6.4
above, are intended to be for the benefit of, and shall enforceable by, the
officers and directors of the Company and/or the Company Subsidiaries affected
thereby and their heirs and representatives.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Parent, the Company and Merger Sub have caused this
Agreement to be signed and delivered by their respective duly authorized
officers as of the date first above written.
CARGILL, INCORPORATED
By:
---------------------------
Name:
Title:
AGRIBRANDS INTERNATIONAL, INC.
By:
---------------------------
Name:
Title:
ABACUS ACQUISITION CORP.
By:
---------------------------
Name:
Title:
39
