SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of earliest event
reported: August 15, 1995
BIC CORPORATION
(Exact name of registrant as specified in its charter)
New York 1-6832 06-0735597
(State of (Commission File Number) IRS Employer
Incorporation) Identification No.)
500 BIC Drive, Milford, Connecticut 06460
(Address of principal executive offices) (Zip Code)
(203) 783-2000
(Registrant's telephone number)
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ITEM 5. OTHER EVENTS
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On August 16, 1995, BIC Corporation (the
"Company") and Societe BIC S.A. (the "Parent") announced
that they have executed a definitive Agreement and Plan of
Merger pertaining to Parent's previously announced proposal
to acquire from public shareholders the approximately 22% of
the Company's common shares not currently owned by Parent
and the Bich family. Under the Agreement and Plan of
Merger, Parent will acquire in the merger the publicly held
shares of the Company for a price of $40.50 per share in
cash, or an aggregate of approximately $219 million. Copies
of the press release and the Agreement and Plan of Merger
are attached as exhibits hereto and are incorporated herein
by reference.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL
INFORMATION AND EXHIBITS
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(c) Exhibits
(2) Agreement and Plan of Merger, dated as
of August 15, 1995, among the Company,
Societe BIC S.A., BIC Merger Corporation
and Bruno Bich, as voting trustee.
(99) Press release announcing the execution
of the Agreement and Plan of Merger.
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SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this
report to be signed on its behalf by the undersigned,
thereunto duly authorized.
BIC CORPORATION
Dated: August 21, 1995 By: /s/ Robert L. Macdonald
------------------------------
Robert L. Macdonald
Vice President-Finance
and Treasurer
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Exhibit Description Sequentially
No. Numbered Page
------- ----------- -------------
(2) Agreement and Plan of Merger, dated
as of August 15, 1995, among the
Company, Societe BIC S.A., BIC
Merger Corporation and Bruno Bich,
as voting trustee.
(99) Press release announcing the
execution of the Agreement and Plan
of Merger.
AGREEMENT AND PLAN OF MERGER
AMONG
SOCIETE BIC, S.A.
BIC MERGER CORPORATION,
BRUNO BICH,
as VOTING TRUSTEE
AND
BIC CORPORATION
Dated as of August 15, 1995
<PAGE>
AGREEMENT AND PLAN OF MERGER
TABLE OF CONTENTS
(Not Part of the Agreement)
Section Page
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PARTIES................................................... 1
PREAMBLE.................................................. 1
ARTICLE I THE MERGER
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1.1. The Merger......................................... 1
1.2. Certificate of Incorporation....................... 2
1.3. By-Laws............................................ 2
1.4. Directors and Officers............................. 2
1.5. Effective Time..................................... 2
ARTICLE II CONVERSION OF SHARES
-------------------------------
2.1. Company Common Shares.............................. 2
2.2. Dissenting Shares.................................. 3
2.3. Purchaser Common Shares............................ 3
2.4. Exchange of Shares................................. 4
2.5. Employee Stock Plans............................... 5
2.6. Withholding Rights................................. 5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------------------
3.1. Organization....................................... 5
3.2. Capitalization..................................... 6
3.3. Authorization of this Agreement; Recommendation of
Merger............................................. 6
3.4. Governmental Filings; No Conflicts................. 7
3.5. Disclosure and Financial Statements; No Undisclosed
Liabilities........................................ 7
3.6. Vote Required...................................... 8
3.7. Opinion of Financial Advisor....................... 8
3.8. Finders and Investment Bankers..................... 8
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGECO
---------------------------------------------------------------
4.1. Organization....................................... 8
4.2. Capitalization..................................... 9
4.3. Authorization of this Agreement.................... 9
4.4. Governmental Filings; No Violations................ 9
4.5. Financial Ability to Perform.......................10
4.6. Formation of Mergeco; No Prior Activities..........10
4.7. Finders and Investment Bankers.....................10
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ARTICLE V COVENANTS
-------------------
5.1. Conduct of the Business of the Company.............10
5.2. Activities of Mergeco; Shareholder Approval; Issuance
of Mergeco Preferred Shares........................11
5.3. Obligations of Mergeco.............................11
5.4. Access to Information..............................11
5.5. Shareholders' Meeting..............................11
5.6. Proxy Statement and Schedule 13E-3.................12
5.7. Best Efforts.......................................13
5.8. Consents...........................................13
5.9. Public Announcements...............................13
5.10. Indemnification....................................13
5.11. Transfer Taxes.....................................15
ARTICLE VI CLOSING CONDITIONS
-----------------------------
6.1. Conditions to the Obligations of Each Party........15
6.2. Conditions to the Obligations of Parent, Mergeco and
the Voting Trustee.................................16
6.3. Conditions to the Obligations of the Company.......16
ARTICLE VII CLOSING
-------------------
7.1. Time and Place.....................................17
7.2. Filings at the Closing.............................17
ARTICLE VIII TERMINATION AND ABANDONMENT
----------------------------------------
8.1. Termination........................................17
8.2. Procedure and Effect of Termination................18
ARTICLE IX MISCELLANEOUS
------------------------
9.1. Amendment and Modification.........................18
9.2. Waiver of Compliance; Consents.....................18
9.3. Survival of Warranties.............................19
9.4. Notices............................................19
9.5. Assignment; Parties in Interest....................20
9.6. Expenses...........................................20
9.7. Specific Performance...............................20
9.8. Governing Law......................................20
9.9. Counterparts.......................................20
9.10. Interpretation.....................................21
9.11. Entire Agreement...................................22
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AGREEMENT AND PLAN OF MERGER
----------------------------
AGREEMENT AND PLAN OF MERGER, dated as of August 15, 1995,
among Societe BIC S.A. ("Parent"), a societe anonyme organized under
the laws of France, BIC Merger Corporation ("Mergeco"), a New York
corporation more than two-thirds of the outstanding capital stock of
which is owned by Parent, solely for purposes of Section 5.5 hereof,
Bruno Bich, as voting trustee (the "Voting Trustee") under a voting
trust agreement, dated as of February 5, 1991, as amended (the
"Voting Trust Agreement"), among Parent, the Company (as hereinafter
defined) and the voting trustees and certain shareholders of the
Company named therein, and BIC Corporation, a New York corporation
(the "Company").
WHEREAS, Parent and the other shareholders of Mergeco own
an aggregate of approximately 78% of the shares of common stock, par
value $1.00 per share (the "Common Shares") of the Company and have
proposed to the Board of Directors of the Company that Parent acquire
the remaining Common Shares (the "Public Shares; and the holders
thereof; being referred to as the "Public Shareholders");
WHEREAS, the Board of Directors of each of Parent and
Mergeco believes it is in the best interest of each of Parent and
Mergeco and their respective shareholders, and the Board of Directors
of the Company believes it is in the best interest of the Company and
its shareholders, to consummate the merger of Mergeco with and into
the Company (the "Merger"), upon the terms and subject to the
conditions set forth in this Agreement;
WHEREAS, a Special Committee of the Board of Directors of
the Company (the "Special Committee") has determined that the Merger
is fair to, and in the best interests of, the Public Shareholders,
and recommended the approval and adoption of this Agreement to the
Board of Directors of the Company; and
WHEREAS, the Boards of Directors (or equivalent governing
bodies) of Parent, Mergeco and the Company have approved and adopted
this Agreement and approved the Merger upon the terms and subject to
the conditions set forth herein;
NOW, THEREFORE, in consideration of the representations,
warranties and agreements herein contained, the parties hereto agree
as follows:
ARTICLE I
THE MERGER
1.1. The Merger. (a) As promptly as practicable
-----------
following the satisfaction or waiver of the conditions set forth in
Article VI hereof, and in accordance with the provisions of this
Agreement and the provisions of the New York Business Corporation Law
(the "NYBCL"), the parties hereto shall cause Mergeco to be merged
with and into the Company, and the Company shall be the surviving
corporation (hereinafter sometimes called the "Surviving
Corporation") and shall continue its corporate existence under the
laws of the State of New York. At the Effective Time (as hereinafter
defined), the separate corporate existence of Mergeco shall cease.
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(b) The Merger shall have the effects specified in
the NYBCL. The Surviving Corporation shall possess all the rights,
privileges, immunities, powers and purposes of Mergeco and the
Company and shall assume and become liable for all the liabilities,
obligations and penalties of the Company and Mergeco.
1.2. Certificate of Incorporation. The Certificate of
----------------------------
Incorporation of the Company in effect immediately prior to the
Effective Time shall be the Restated Certificate of Incorporation of
the Surviving Corporation until thereafter amended in accordance with
provisions thereof and the NYBCL.
1.3. By-Laws. The By-Laws of the Company in effect
-------
immediately prior to the Effective Time shall be the By-Laws of the
Surviving Corporation until thereafter amended, altered or repealed
as provided therein and the NYBCL.
1.4. Directors and Officers. The directors and
------------------------
officers of the Company immediately prior to the Effective Time shall
be the directors and officers, respectively, of the Surviving
Corporation, each to hold office in accordance with the Certificate
of Incorporation and By-Laws of the Surviving Corporation.
1.5. Effective Time. As soon as practicable
---------------
following the Closing (as defined in Section 7.1 of this Agreement),
and provided that this Agreement shall not have been terminated
pursuant to Article VIII hereof, the Company and Mergeco will cause a
certificate of merger (the "Certificate of Merger"), together with
any other documents required by law to effectuate the Merger, to be
executed, verified and delivered for filing by the New York
Department of State as provided in Section 904 of the NYBCL. The
Merger shall become effective on the date on which the Certificate of
Merger has been filed by the New York Department of State. The date
and time when the Merger shall become effective is herein referred to
as the "Effective Time."
ARTICLE II
CONVERSION OF SHARES
2.1. Company Common Shares. (a) Each Common Share
----------------------
issued and outstanding immediately prior to the Effective Time
(except for (i) Common Shares then owned beneficially or of record by
the shareholders of Mergeco, (ii) Dissenting Shares (as defined in
Section 2.2 hereof) and (iii) Common Shares held in the Company's
treasury) shall, by virtue of the Merger and without any action on
the part of the holder thereof, be converted into the right to
receive $40.50 in cash (such cash amount being referred to
hereinafter as the "Merger Consideration"), payable to the holder
thereof, without interest thereon, upon surrender of the certificate
representing such Common Share.
(b) Each Common Share issued and outstanding
immediately prior to the Effective Time which is then owned
beneficially or of record by the shareholders of Mergeco shall, by
virtue of the Merger and without any action on the part of the holder
thereof, be canceled and retired and cease to exist, without any
conversion thereof.
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(c) Each Common Share issued and held in the
Company's treasury immediately prior to the Effective Time shall, by
virtue of the Merger, be canceled and retired and cease to exist,
without any conversion thereof.
(d) At the Effective Time the holders of certificates
representing Common Shares shall cease to have any rights as
shareholders of the Company, except such rights, if any, as they may
have pursuant to the NYBCL, and, except as aforesaid, their sole
right shall be the right to receive cash as aforesaid.
2.2. Dissenting Shares. (a) Notwithstanding
------------------
anything in this Agreement to the contrary, any Common Shares which
are outstanding immediately prior to the Effective Time and which are
held by shareholders who have not voted such shares in favor of the
approval of the Merger and adoption of this Agreement and who shall
have properly elected to dissent in the manner provided in Sections
623 and 910 of the NYBCL ("Dissenting Shares") shall not be converted
into or be exchangeable for the right to receive the Merger
Consideration, but the holders thereof shall be entitled to payment
of the fair value of such shares in accordance with the provisions of
Sections 623 and 910 of the NYBCL; provided, however, that in the
-----------------
case of (I) any holder of Dissenting Shares who shall subsequently
deliver a written withdrawal of his election to dissent (in
accordance with Section 623(e) of the NYBCL), or (ii) any holder who
fails to establish his entitlement to dissenters' rights as provided
in Sections 623 and 910 of the NYBCL, or (iii) any holder who shall,
for any other reason, become ineligible to dissent, each Common Share
held by any such holder shall thereupon be deemed to have been
converted into and to have become exchangeable for, as of the
Effective Time, the right to receive the Merger Consideration,
without any interest thereon.
(b) The Company shall give Parent (i) prompt written
notice of any written election to dissent, withdrawals of any
election to dissent and any other documents served pursuant to
Sections 623 and 910 of the NYBCL received by the Company and (ii)
the opportunity to direct all negotiations and proceedings with
respect to any election to dissent under Sections 623 and 910 of the
NYBCL. Except with the prior written consent of Parent, the Company
will not voluntarily make any payment with respect to any election to
dissent and will not settle or offer to settle any such election.
2.3. Purchaser Common Shares. Each common share, par
-----------------------
value $.001 per share (the "Mergeco Common Shares") and each
preferred share, par value $.001 per share (the "Mergeco Preferred
Shares"; and together with the Mergeco Common Shares; the "Mergeco
Shares"), of Mergeco issued and outstanding immediately prior to the
Effective Time shall, by virtue of the Merger and without any action
on the part of the holder thereof, be converted into and exchangeable
for one fully paid and non-assessable common share, par value $1.00
per share ("Surviving Corporation Common Shares"), of the Surviving
Corporation. From and after the Effective Time, each outstanding
certificate theretofore representing Mergeco Shares shall be deemed
for all purposes to evidence ownership of and to represent the same
number of Surviving Corporation Common Shares.
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2.4. Exchange of Shares. (a) Prior to the
--------------------
Effective Time, Parent shall, or Parent shall cause Mergeco to,
deposit in trust with a bank or trust company with offices in New
York designated by Parent and reasonably satisfactory to the Company
(the "Paying Agent"), cash in an aggregate amount equal to the
product of (x) the number of Common Shares issued and outstanding
immediately prior to the Effective Time (other than (i) Common Shares
owned beneficially or of record by the shareholders of Mergeco, (ii)
Dissenting Shares and (iii) Common Shares held in the Company's
treasury) and (y) the Merger Consideration (such amount being
hereinafter referred to as the "Exchange Fund"). The Paying Agent
shall, pursuant to irrevocable instructions, make the payments
provided for in Section 2.1(a) of this Agreement out of the Exchange
Fund. The Paying Agent shall invest the Exchange Fund as Parent
directs, in direct obligations of the United States of America,
obligations for which the full faith and credit of the United States
of America is pledged to provide for the payment of all principal and
interest, commercial paper obligations receiving the highest rating
from either Moody's Investors Services, Inc. or Standard & Poor's
Corporation, or certificates of deposit, bank repurchase agreements
or banker's acceptances of commercial banks with capital exceeding
$10 billion. Any net profit resulting from, or interest or income
produced by, such investments shall be payable to the Surviving
Corporation. Mergeco shall replace any monies lost through any
investment made pursuant to this Section 2.4(a) prior to the
Effective Time, and the Surviving Corporation shall replace any
monies lost through any investment made pursuant to this Section
2.4(a) after the Effective Time. The Exchange Fund shall not be used
for any other purpose except as provided in this Agreement.
(b) Promptly after the Effective Time, the Surviving
Corporation shall cause the Paying Agent to mail to each record
holder (other than the shareholders of Mergeco) as of the Effective
Time of an outstanding certificate or certificates which immediately
prior to the Effective Time represented Common Shares (the
"Certificates") a form letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon proper delivery of the
Certificates to the Paying Agent) and instructions for use in
effecting the surrender of the Certificates for payment therefor.
Upon surrender to the Paying Agent of a Certificate, together with
such letter of transmittal duly executed, the holder of such
Certificate shall be entitled to receive in exchange therefor cash in
an amount equal to the product of the number of shares represented by
such Certificate and the Merger Consideration, less any applicable
withholding tax, and such Certificate shall forthwith be canceled.
No interest shall be paid or accrued on the cash payable upon the
surrender of the Certificates. If payment is to be made to a person
other than the person in whose name the Certificate surrendered is
registered, it shall be a condition of payment that the Certificate
so surrendered shall be properly endorsed or otherwise in proper form
for transfer and that the person requesting such payment shall pay
any transfer or other tax required by reason of the payment to a
person other than the registered holder of the Certificate
surrendered or establish to the satisfaction of the Paying Agent and
the Surviving Corporation that such tax has been paid or is not
applicable. Until surrendered in accordance with the provisions of
this Section 2.4, each Certificate (other than Certificates
representing Common Shares owned beneficially or of record by the
shareholders of Mergeco, Certificates representing Dissenting Shares
in respect of which appraisal rights are perfected and Certificates
representing Common Shares held in the Company's treasury) shall
represent for all purposes the right to receive the Merger
Consideration in cash multiplied by the number of Common Shares
evidenced by such Certificate, without any interest thereon.
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(c) After the Effective Time there shall be no
transfers on the stock transfer books of the Surviving Corporation of
Common Shares which were outstanding immediately prior to the
Effective Time. If, after the Effective Time, Certificates are
presented to the Surviving Corporation, they shall be canceled and
exchanged for cash as provided in this Article II.
(d) Any portion of the Exchange Fund which remains
unclaimed by the shareholders of the Company for 180 days after the
Effective Time (including any interest, dividends, earnings or
distributions received with respect thereto) shall be repaid to the
Surviving Corporation, upon demand. Any shareholders of the Company
who have not theretofore complied with Section 2.4(b) shall
thereafter look only to the Surviving Corporation for payment of
their claim for the Merger Consideration per Common Share, without
any interest thereon, but shall have no greater rights against the
Surviving Corporation than may be accorded to general creditors of
the Surviving Corporation under New York law. Notwithstanding the
foregoing, neither the Paying Agent nor any party hereto shall be
liable to any holder of Certificates formerly representing Common
Shares for any amount paid to a public official pursuant to any
applicable abandoned property, escheat or similar law.
2.5. Employee Stock Plans. The Company shall take all
--------------------
actions necessary to amend the Company's Local 134 Employees' Share
Purchase Plan, 401(k) Savings and Investment Plan and a separate, non-
contributory 401(k) plan for certain unionized employees of the
Company on or prior to the Closing to delete as an investment option
thereunder purchases of Common Shares.
2.6. Withholding Rights. Parent, Mergeco, the
-------------------
Surviving Corporation and the Paying Agent shall be entitled to
deduct and withhold from the amounts payable (including the Merger
Consideration) pursuant to this Agreement to any holder of Common
Shares such amounts as Parent, Mergeco, the Surviving Corporation or
the Paying Agent is required to deduct and withhold with respect to
the making of such payment under applicable tax law. To the extent
that amounts are so deducted and withheld by Parent, Mergeco, the
Surviving Corporation or the Paying Agent, such amounts shall be
treated for all purposes of this Agreement as having been paid to the
relevant holder of Common Shares.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and Mergeco
as follows:
3.1. Organization. The Company and each of its
------------
subsidiaries is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation
and has all requisite corporate power and authority to own, lease and
operate its properties and to conduct its business as now being
conducted, except where the failure to be so organized, existing and
in good standing or to have such power and authority would not,
individually or in the aggregate, have a material adverse effect on
the business, condition (financial or otherwise), properties or
assets of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect").
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3.2. Capitalization. The authorized capital stock of
--------------
the Company consists of (i) 50,000,000 Common Shares, of which, on
August 10, 1995, there were 23,559,244 shares issued and outstanding
and (ii) 1,000,000 shares of preferred stock, par value $1.00 per
share, of which, on August 10, 1995, there were no shares issued and
outstanding. All of the Common Shares are entitled to vote on
matters submitted to the shareholders of the Company. Except as set
forth above, there are no shares of capital stock of the Company
authorized, issued or outstanding. All issued and outstanding Common
Shares are duly authorized, validly issued, fully paid and
nonassessable. Each of the Company's subsidiaries is listed in the
Company's Annual Report on Form 10-K for the fiscal year ending
January 1, 1995 (the "1994 Form 10-K"), and except as and to the
extent set forth in the 1994 Form 10-K, the Company owns directly or
indirectly all of the issued and outstanding capital stock of each of
its subsidiaries, free and clear of all liens, pledges, security
interests, claims or other encumbrances. There are not now, and at
the Effective Time there will not be, any existing stock option or
similar plans or options, warrants, calls, subscriptions, preemptive
rights or other rights or other agreements or commitments whatsoever
obligating the Company or any of its subsidiaries to issue, transfer,
deliver or sell or cause to be issued, transferred, delivered or sold
any additional shares of capital stock of the Company or any of its
subsidiaries, or obligating the Company or any of its subsidiaries to
grant, extend or enter into any such agreement or commitment.
3.3. Authorization of this Agreement; Recommendation
------------------------------------------------
of Merger. (a) The Company has all requisite corporate power and
---------
authority to execute and deliver this Agreement and, subject to
approval by the shareholders of the Company, to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized and approved by the
Company's Board of Directors and, except for the adoption of this
Agreement by the shareholders of the Company, no other corporate
proceedings on the part of the Company are necessary to authorize
this Agreement or consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by
the Company, and subject only to adoption hereof by its shareholders
(and assuming the due authorization, execution and delivery hereof by
Parent, Mergeco and the Voting Trustee), this Agreement constitutes a
valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms.
(b) The Board of Directors of the Company (at a
meeting duly called and held at which a quorum was present) has
determined that the Merger is fair to and in the best interests of
the shareholders of the Company and has resolved to recommend
approval of the Merger and adoption of this Agreement by the
shareholders of the Company; provided, however, that such
-------------------
recommendation may be withdrawn, modified or amended to the extent
the Company's Board of Directors deems it appropriate to do so in the
exercise of its fiduciary duties under applicable law, based upon the
advice of independent legal counsel (which may include the Company's
regularly engaged legal counsel).
(c) The Special Committee has determined that the
Merger is fair to, and in the best interests of, the Public
Shareholders, and has recommended the approval and adoption of this
Agreement to the Board of Directors of the Company and to the Public
Shareholders; provided, however, that such recommendation may be
------------------
withdrawn, modified or amended to the extent that the Special
Committee deems it appropriate to do so in the exercise of its
fiduciary duties under applicable law, based upon the advice of legal
counsel to the Special Committee.
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3.4. Governmental Filings; No Conflicts. Except for
----------------------------------
(a) filings required under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), (b) the filing and recordation of
appropriate merger documents as required by the NYBCL and, if
applicable, the laws of other states in which the Company is
qualified to do business, (c) filings under securities or blue sky
laws or takeover statutes of the various states, (d) the listing
requirements of the New York Stock Exchange and (e) filings in
connection with any applicable transfer or other taxes in any
applicable jurisdiction, no filing with, and no permit,
authorization, consent or approval of, any public body or authority
is necessary for the consummation by the Company of the transactions
contemplated by this Agreement, the failure to make or obtain which
would have, individually or in the aggregate, a Material Adverse
Effect or a material adverse effect on the ability of the Company to
consummate the transactions contemplated hereby. Neither the
execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby nor compliance by the Company with
any of the provisions hereof will (i) conflict with or result in any
violation of any provision of the Restated Certificate of
Incorporation or By-Laws of the Company, (ii) result in a violation
or breach of, or constitute a default (or give rise to any right of
termination, cancellation or acceleration) under, any note, bond,
mortgage, indenture, license, agreement or other instrument or
obligation to which the Company or any of its subsidiaries is a party
or by which any of them or any of their properties or assets is bound
or (iii) assuming the truth of the representations and warranties of
Parent and Mergeco contained herein and their compliance with all
agreements contained herein and assuming the due making or obtaining
of all filings, permits, authorizations, consents and approvals
referred to in the preceding sentence, violate any statute, rule,
regulation, order, injunction, writ or decree of any public body or
authority by which the Company or any of its subsidiaries or any of
their respective assets or properties is bound, excluding from the
foregoing clauses (ii) and (iii) conflicts, violations, breaches or
defaults which, either individually or in the aggregate, would not
have a Material Adverse Effect or a material adverse effect on the
Company's ability to consummate the transactions contemplated hereby.
3.5. Disclosure and Financial Statements; No
-----------------------------------------------
Undisclosed Liabilities. (a) As of the date of this Agreement,
-----------------------
the Company has filed all forms, reports and documents with the
Securities and Exchange Commission (the "SEC") since January 1, 1992,
required to be filed by it pursuant to the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder (the
"Securities Act") and the Exchange Act and the rules and regulations
promulgated thereunder (collectively, the "Disclosure Statements"),
all of which have complied in all material respects with all
applicable requirements of the Securities Act and the Exchange Act
and the rules and regulations promulgated thereunder. As of the date
of this Agreement, none of such Disclosure Statements, at the time
filed, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
As of the date of this Agreement, the consolidated balance
sheets and the related statements of consolidated income,
consolidated cash flows and consolidated retained earnings (including
the notes and schedules thereto) of the Company and its subsidiaries
contained or incorporated by reference in the Disclosure Statements
have been prepared from, and are in accordance with, the books and
records of the Company and its consolidated subsidiaries, comply in
all material respects with applicable accounting requirements and
with the published rules and regulations of the SEC with respect
thereto, and present fairly
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the consolidated financial position of the Company and its
subsidiaries as of their respective dates, and the consolidated
results of their operations and their cash flows for the periods
presented therein, in conformity with United States generally
accepted accounting principles ("GAAP") applied on a consistent
basis, except as otherwise noted therein, and subject in the case of
quarterly financial statements to normal year-end audit adjustments
and except that the quarterly financial statements do not contain all
of the footnote disclosures required by GAAP.
(b) As of the date of this Agreement, there is no
liability of the Company or any subsidiary thereof of any nature,
whether absolute, accrued, contingent or otherwise, which,
individually or in the aggregate, is material to the Company and its
subsidiaries, taken as a whole, other than as disclosed in the
Disclosure Statements or incurred in the ordinary course of business
since the end of the first quarter of the Company's 1995 fiscal year.
3.6. Vote Required. The affirmative vote of the
--------------
holders of two-thirds of the outstanding Common Shares is the only
vote of the holders of any class or series of capital stock of the
Company necessary to approve the Merger under the NYBCL.
3.7. Opinion of Financial Advisor. The Special
-------------------------------
Committee has received the opinion of Goldman, Sachs & Co. ("Goldman
-------
Sachs") dated August 15, 1995 that, as of the date of such opinion,
-----
the $40.50 per Common Share in cash to be received by the Public
Shareholders pursuant to this Agreement is fair to the Public
Shareholders.
3.8. Finders and Investment Bankers. All negotiations
------------------------------
relating to this Agreement and the transactions contemplated hereby
have been carried on without the intervention of any person acting on
behalf of the Company in such manner as to give rise to any valid
claim against Parent, Mergeco, the Company or the Surviving
Corporation for any broker's or finder's fee or similar compensation,
except for Goldman Sachs, whose fees shall be paid by the Company.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGECO
Parent and Mergeco each jointly and severally represent and
warrant to the Company as follows:
4.1. Organization. Each of Parent and Mergeco is a
------------
corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and each has
all requisite corporate power and authority to own, lease and operate
its properties and to conduct its business as now being conducted,
except where the failure to be so organized, existing and in good
standing or to have such power and authority would not, individually
or in the aggregate, have a material adverse effect on the business
or financial condition of Parent and its subsidiaries taken as a
whole. More than two-thirds of the outstanding Mergeco Shares are
owned beneficially and of record by Parent.
-8-
<PAGE>
4.2. Capitalization. The authorized capital stock of
--------------
Mergeco on August 10, 1995 consisted of (i) 23,559,294 Mergeco Common
Shares, of which there were 18,154,848 shares issued and outstanding,
and (ii) 5,254,396 Mergeco Preferred Shares, of which there were no
shares issued and outstanding. All of the Mergeco Common Shares are
entitled to vote on matters submitted to the shareholders of Mergeco.
Except as set forth above, there are no shares of capital stock of
Mergeco authorized, issued or outstanding. All issued and
outstanding Mergeco Common Shares are duly authorized, validly
issued, fully paid and nonassessable. Except as provided in Section
5.2(c), there are not now, and, at the Effective Time there will not
be, any existing stock option or similar plans or options, warrants,
calls, subscriptions, preemptive rights or other rights or other
agreements or commitments whatsoever obligating Mergeco or any of its
subsidiaries to issue, transfer, deliver or sell or cause to be
issued, transferred, delivered or sold any additional shares of
capital stock of Mergeco, or obligating Mergeco to grant, extend or
enter into any such agreement or commitment.
4.3. Authorization of this Agreement. (a) Each of
-------------------------------
Parent and Mergeco has all requisite corporate power and authority to
execute and deliver this Agreement and, subject to approval by the
shareholders of Mergeco, to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
and validly authorized and approved by the Boards of Directors (or
equivalent governing bodies) of Parent and Mergeco, and, except for
the adoption of this Agreement by the shareholders of Mergeco, no
other corporate proceedings on the part of Parent or Mergeco are
necessary to authorize this Agreement or, except as provided in
Section 5.2(c), consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by
each of Parent and Mergeco and, in the case of Mergeco subject only
to adoption hereof by its shareholders (assuming the due
authorization, execution and delivery hereof by the Company)
constitutes a valid and binding agreement of each of Parent and
Mergeco.
(b) The Voting Trustee has all requisite power and
authority pursuant to the Voting Trust Agreement to execute and
deliver this Agreement and to consummate the transactions on its part
to be consummated that are contemplated hereby. The execution and
delivery of this Agreement has been duly and validly authorized by
the Voting Trustee pursuant to the Voting Trust Agreement, and no
further action on the part of the Voting Trustee is necessary to
authorize this Agreement or consummate the transactions contemplated
hereby. This Agreement has been duly and validly executed and
delivered by the Voting Trustee and (assuming the due authorization,
execution and delivery hereof by the other parties hereto)
constitutes a valid and binding agreement of the Voting Trustee.
4.4. Governmental Filings; No Violations. Except for
-----------------------------------
(a) filings required by the applicable requirements of the Exchange
Act, (b) the filing and recordation of appropriate merger documents
as required by the NYBCL, (c) filings under the securities or blue
sky laws or takeover statutes of the various states and (d) filings
in connection with any applicable transfer or other taxes in any
applicable jurisdiction, no filing with, and no permit,
authorization, consent or approval of, any public body or authority
is necessary for the consummation by Parent, Mergeco or the Voting
Trustee of the transactions contemplated by this Agreement, the
failure to make or obtain which is reasonably likely to impair the
ability of Parent, Mergeco or the Voting Trustee to perform their
respective obligations hereunder or to consummate the transactions
contemplated hereby. Neither the
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<PAGE>
execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby nor compliance
by Parent, Mergeco or the Voting Trustee with any of the provisions
hereof will (i) conflict with or result in any violation of any
provision of the certificate of incorporation or By-Laws (or
equivalent governing instruments) of Parent or Mergeco, or the Voting
Trust Agreement, (ii) result in a violation or breach of, or
constitute a default (or give rise to any right of termination,
cancellation or acceleration) under, any note, bond, mortgage,
indenture, license, agreement or other instrument or obligation to
which any of Parent, Mergeco or the Voting Trustee is a party, or by
which it or any of its properties or assets is bound, or (iii)
assuming the truth of the representations and warranties of the
Company hereunder and its compliance with all agreements contained
herein and assuming the due making or obtaining of all filings,
permits, authorizations, consents and approvals referred to in the
preceding sentence, violate any statute, rule, regulation, order,
injunction, writ or decree of any public body or authority by which
Parent, Mergeco or the Voting Trustee or any of their respective
properties or assets is bound, excluding from the foregoing clauses
(ii) and (iii) conflicts, violations, breaches or defaults which,
either individually or in the aggregate, are not reasonably likely to
impair materially the ability of Parent, Mergeco or the Voting
Trustee to perform their respective obligations hereunder or to
consummate the transactions contemplated hereby.
4.5. Financial Ability to Perform. Parent and Mergeco
----------------------------
presently have, and at the Effective Time will have, cash funds
available sufficient to consummate the transactions contemplated by
this Agreement and to perform their respective obligations under this
Agreement.
4.6. Formation of Mergeco; No Prior Activities.
----------------------------------------------
Mergeco was formed solely for the purpose of engaging in the
transactions contemplated by this Agreement. As of the date hereof
and the Effective Time, except for obligations or liabilities
incurred in connection with its incorporation or organization and the
transactions contemplated by this Agreement and, except for this
Agreement and any other agreements or arrangements contemplated by
this Agreement or in furtherance of the transactions contemplated
hereby, Mergeco has not and will not have incurred, directly or
indirectly, through any subsidiary or affiliate, any obligations or
liabilities or engaged in any business activities of any type or kind
whatsoever or entered into any agreements or arrangements with any
person.
4.7. Finders and Investment Bankers. All negotiations
------------------------------
relating to this Agreement and the transactions contemplated hereby
have been carried on without the intervention of any person acting on
behalf of Parent or Mergeco in such manner as to give rise to any
valid claim against Parent, Mergeco, the Company or the Surviving
Corporation for any broker's or finder's fee or similar compensation,
except for Donaldson, Lufkin & Jenrette Securities Corporation, whose
fees shall be paid by Parent.
ARTICLE V
COVENANTS
5.1. Conduct of the Business of the Company. During
--------------------------------------
the period from the date of this Agreement to the Effective Time,
neither the Company nor any of its subsidiaries will declare, set
aside or pay any dividend or other distribution (whether in cash,
stock or property or any combination thereof) in respect of its
capital stock, or agree to do any of the foregoing; provided, that
--------
(a) if the Merger has not been consummated by
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<PAGE>
December 31, 1995, the Board of Directors of the Company
may after such date declare dividends in respect of its capital stock
and (b) any of the Company's direct or indirect wholly-owned
subsidiaries may declare, set aside or pay any dividend or other
distribution with respect to their capital stock.
5.2. Activities of Mergeco; Shareholder Approval;
------------------------------------------------
Issuance of Mergeco Preferred Shares. (a) From the date of
-------------------------------------
this Agreement to the Effective Time, Mergeco will not conduct any
business or engage in any activities of any nature other than
activities in connection with this Agreement or the transactions
contemplated hereby.
(b) As soon as practicable after the date hereof,
Parent shall cause this Agreement to be approved by the requisite
vote of the shareholders of Mergeco.
(c) Prior to the Effective Time, Mergeco shall issue
a number of voting Mergeco Shares equal to the number of Public
Shares.
5.3. Obligations of Mergeco. Parent shall take all
----------------------
actions necessary to cause Mergeco to perform its obligations under
this Agreement and to consummate the Merger in accordance with the
terms and conditions set forth in this Agreement.
5.4. Access to Information. Between the date of this
---------------------
Agreement and the Effective Time, during normal business hours, upon
reasonable notice and in such a manner as will not unreasonably
interfere with the conduct of the business of the Company, the
Company will (i) give Parent and its authorized representatives
reasonable access to all stores, offices, warehouses and other
facilities and to all books and records of the Company and its
subsidiaries, (ii) permit Parent and its authorized representatives
to make such inspections as it may reasonably require and (iii) cause
its officers and those of its subsidiaries to furnish Parent with a
copy of each report, schedule and other document filed or received by
it during such period pursuant to the requirements of federal and
state securities laws and such financial and operating data and other
information with respect to the business and properties of the
Company and its subsidiaries as Parent may from time to time
reasonably request.
5.5. Shareholders' Meeting. As soon as practicable,
---------------------
the Company, acting through its Board of Directors, shall in
accordance with applicable law, and subject to the fiduciary duties
under applicable law of the Board of Directors (as determined by the
Board of Directors in good faith after consultation with independent
legal counsel, which may include the Company's regularly engaged
legal counsel), take all steps necessary duly to call, give notice
of, convene and hold a special meeting of its shareholders (the
"Shareholders' Meeting") for the purpose of adopting and approving
this Agreement and the transactions contemplated hereby. The notice
of such meeting shall contain the information required to be included
therein pursuant to the NYBCL. At such meeting, the Voting Trustee
will vote, or cause to be voted, all Common Shares then beneficially
owned by him on the record date for such meeting, in favor of the
approval of the Merger and adoption of this Agreement and the
transactions contemplated hereby.
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<PAGE>
5.6. Proxy Statement and Schedule 13E-3. (a) The
----------------------------------
Company will as soon as practicable prepare and file with the SEC a
proxy statement and a form of proxy, in connection with the vote of
the Company's stockholders with respect to the Merger (such proxy
statement, together with any amendments thereof or supplements
thereto, in each case in the form or forms mailed to the Company's
stockholders, being the "Proxy Statement"). The Company, Parent and
Mergeco shall together prepare and file a Transaction Statement on
Schedule 13E-3 (the "Schedule 13E-3") under the Exchange Act. Each
of Parent, Mergeco and the Company shall furnish all information
concerning it, its affiliates and the holders of its capital stock
required to be included in the Proxy Statement and the Schedule 13E-3
and, after consultation with each other, shall respond promptly to
any comments made by the SEC with respect to the Proxy Statement and
any preliminary version thereof and the Schedule 13E-3. The Company
shall cause the Proxy Statement to be mailed to its shareholders at
the earliest practicable time. The Proxy Statement shall include the
respective recommendations of the Company's Board of Directors to the
shareholders of the Company and of the Special Committee to the
Public Shareholders, subject to the fiduciary duties under applicable
law of the directors of the Company or of the Company's directors
constituting the Special Committee (as determined by such directors
in good faith after consultation with independent legal counsel,
which may include the Company's regularly engaged legal counsel), in
favor of the adoption and approval of this Agreement and the
transactions contemplated hereby. Subject to the fiduciary duties
under applicable law of the Company's directors (as advised by
independent legal counsel, which may include the Company's regularly
engaged legal counsel), the Company shall use its best efforts to
obtain the necessary approvals by its shareholders of this Agreement
and the transactions contemplated hereby. Notwithstanding anything
to the contrary in this Agreement, if the Board of Directors of the
Company or the Special Committee determines, in good faith after
consultation with independent legal counsel (which may include the
Company's regularly engaged legal counsel) in the exercise of its
fiduciary duties under applicable law, to withdraw, modify or amend
its recommendation in favor of the Merger, such withdrawal,
modification or amendment shall not constitute a breach of this
Agreement.
(b) The information supplied by the Company for
inclusion in the Proxy Statement or the Schedule 13E-3 shall not, at
the time the Proxy Statement is mailed, contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading or, at the time of the Shareholders' Meeting, as then
amended or supplemented, or at the Effective Time, omit to state any
material fact necessary to correct any statement originally supplied
by the Company for inclusion in the Proxy Statement or the Schedule
13E-3 which has become false or misleading. If at any time prior to
the Effective Time any event relating to the Company or any of its
affiliates, or its, or its affiliates', respective officers,
directors or stockholders, should be discovered which should be set
forth in an amendment of, or a supplement to, such Proxy Statement or
Schedule 13E-3, the Company shall promptly so inform Parent and
Mergeco and will furnish all necessary information to Parent and
Mergeco relating to such event. All documents that the Company is
responsible for filing with the SEC in connection with the
transactions contemplated by this Agreement shall comply in all
material respects, both as to form and otherwise, with the Exchange
Act and the rules and regulations thereunder.
-13-
<PAGE>
(c) The information supplied or to be supplied by
Parent or Mergeco for inclusion in the Proxy Statement or the
Schedule 13E-3 shall not, at the time the Proxy Statement is mailed,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under
which they were made, not misleading or, at the time of the
Shareholders' Meeting, as then amended or supplemented, or at the
Effective Time, omit to state any material fact necessary to correct
any statement originally supplied by Parent or Mergeco for inclusion
in the Proxy Statement or the Schedule 13E-3 which has become false
or misleading. If at any time prior to the Effective Time any event
relating to Parent or Mergeco or any of their respective affiliates,
or their, or their affiliates', respective officers, directors or
stockholders should be discovered which should be set forth in an
amendment of, or a supplement to, such Proxy Statement or Schedule
13E-3, Parent or Mergeco, as the case may be, shall promptly so
inform the Company and will furnish all necessary information to the
Company relating to such event. All documents that Parent and
Mergeco are responsible for filing with the SEC in connection with
the transactions contemplated by this Agreement shall comply in all
material respects, both as to form and otherwise, with the Exchange
Act and the rules and regulations thereunder.
5.7. Best Efforts. Subject to the terms and
--------------
conditions herein provided and the fiduciary duties under applicable
law of the directors of the Company or of the Company's directors
constituting the Special Committee (as determined by such directors
in good faith after consultation with independent legal counsel,
which may include the Company's regularly engaged legal counsel),
each of the parties hereto agrees to use its best efforts consistent
with applicable legal requirements to take, or cause to be taken, all
action, and to do, or cause to be done, all things necessary or
proper and advisable under applicable laws and regulations to ensure
that the conditions set forth in Article VI hereof are satisfied and
to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
5.8. Consents. Parent, Mergeco and the Company each
--------
shall use their best efforts to obtain all material consents of third
parties and governmental authorities, and to make all governmental
filings, necessary to the consummation of the transactions
contemplated by this Agreement.
5.9. Public Announcements. Parent, Mergeco and the
--------------------
Company will consult with each other before issuing any press release
or otherwise making any public statements with respect to the Merger,
this Agreement and the transactions contemplated hereby and shall not
issue any such press release or make any such public statement prior
to such consultation, except as may be required by law or by
obligations pursuant to any listing agreement with any securities
exchange.
5.10. Indemnification. (a) For a period
---------------
of six years after the Effective Time, Parent shall, and shall cause
the Surviving Corporation to, indemnify, defend and hold harmless the
present and former officers, directors, employees and agents of the
Company and its subsidiaries (collectively, the "Indemnified
Parties") from and against, and pay or reimburse the Indemnified
Parties for, all losses, obligations, expenses, claims, damages or
liabilities (whether or not resulting from third-party claims and
including interest, penalties, out-of-pocket expenses and attorneys'
fees incurred in the investigation or defense of any of the same or
-13-
<PAGE>
in asserting any of their rights hereunder) resulting from or
arising out of actions or omissions occurring on or prior
to the Effective Time (including, without limitation, the
transactions contemplated by this Agreement) to the full extent
permitted or required under applicable law and, in the case of
indemnification by the Surviving Corporation, to the fullest extent
permitted under the By-Laws of the Company in effect on the date of
this Agreement (which provisions shall not be amended in any manner
which adversely affects any Indemnified Party for a period of six
years), including provisions relating to advances of expenses
incurred in the defense of any action or suit; provided that in the
event any claim or claims are asserted or made within such six-year
period, all rights to indemnification in respect of each such claim
shall continue until final disposition of such claim. Without
limiting the foregoing, in any case in which approval by the
Surviving Corporation is required to effectuate any indemnification,
Parent shall cause the Surviving Corporation to direct, at the
election of the Indemnified Party, that the determination of any such
approval shall be made by independent counsel selected by the
Indemnified Party.
(b) For not less than four years after the Effective
Time, Parent shall, and shall cause the Surviving Corporation to,
maintain in effect directors' and officers' liability insurance
covering the Indemnified Parties who are currently covered by the
Company's existing directors' and officers' liability insurance, on
terms and conditions no less favorable to such directors and officers
than those in effect on the date hereof; provided that in no event
--------
shall Parent or the Surviving Corporation be required to expend in
any one year an amount in excess of 200% of the annual premiums
currently paid by the Company for such insurance; and, provided,
---------
further, that if the annual premiums of such insurance coverage
-------
exceed such amount, the Parent shall be obligated to obtain a policy
with the greatest coverage available for a cost not exceeding such
amount.
(c) Any Indemnified Party wishing to claim
indemnification under Section 5.10(a) shall provide notice to Parent
promptly after such Indemnified Party has actual knowledge of any
claim as to which indemnity may be sought, and the Indemnified Party
shall permit Parent (at Parent's expense) to assume the defense of
any claim or any litigation resulting therefrom; provided that (i)
--------
counsel for Parent who shall conduct the defense of such claim or
litigation shall be reasonably satisfactory to the Indemnified Party,
and the Indemnified Party may participate in such defense at such
Indemnified Party's expense, and (ii) the omission by any Indemnified
Party to give notice as provided herein shall not relieve Parent of
its indemnification obligation under this Agreement except to the
extent that such omission results in a failure of actual notice to
Parent and Parent is materially damaged as a result of such failure
to give notice. Parent shall not, in the defense of any such claim
or litigation, except with the consent of the Indemnified Party,
consent to entry of any judgment or enter into any settlement that
provides for injunctive or other nonmonetary relief affecting the
Indemnified Party or that does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified
Party of a release from all liability with respect to such claim or
litigation. In the event that Parent does not accept the defense of
any matter as above provided, or counsel for the Indemnified Parties
advises that there are issues which raise conflicts of interest
between Parent or the Surviving Corporation and the Indemnified
Parties, the Indemnified Parties may retain counsel satisfactory to
them, and Parent or the Surviving Corporation shall pay all
reasonable fees and expenses of such counsel for the Indemnified
Parties promptly as
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<PAGE>
statements therefore are received; provided that Parent
--------
shall not be liable for any settlement effected without its prior
written consent (which consent shall not be unreasonably withheld).
In any event, Parent and the Indemnified Parties shall cooperate in
the defense of any action or claim subject to this Section 5.10 and
the records of each shall be available to the other with respect to
such defense.
(d) This Section 5.10 is intended for the benefit of
and to grant third party rights to the Indemnified Parties whether or
not parties to this Agreement and each of the Indemnified Parties
shall be entitled to enforce the covenants contained herein.
(e) If Parent or the Surviving Corporation or any of
their respective successors or assigns (i) reorganizes or
consolidates with or merges into any other person and is not the
resulting, continuing or surviving corporation or entity of such
reorganization, consolidation or merger, or (ii) liquidates,
dissolves or transfers all or substantially all of its properties and
assets to any person or persons, then, and in such case, proper
provision will be made so that the successors and assigns of Parent
or the Surviving Corporation assumes all of the obligations of Parent
or the Surviving Corporation, as the case may be, set forth in this
Section 5.10.
5.11. Transfer Taxes. The Surviving Corporation
--------------
shall pay any transfer taxes (including any interest and penalties
thereon and additions thereto) payable in connection with the Merger
and shall be responsible for the preparation and filing of any
required tax returns, declarations, reports, schedules, terms and
information returns with respect to such transfer taxes.
ARTICLE VI
CLOSING CONDITIONS
6.1. Conditions to the Obligations of Each Party. The
-------------------------------------------
respective obligations of each party hereto to effect the Merger
shall be subject to the satisfaction or waiver, at or prior to the
Effective Time, of the following conditions:
(a) the proposal to approve this Agreement at the
Shareholder's Meeting shall have received the affirmative vote
of the holders of at least a majority of the Public Shares
actually voted, in person or by proxy, on such proposal
(excluding abstentions);
(b) there shall not have occurred (i) a declaration
of a banking moratorium or any suspension of payments in respect
of banks in the United States or France or (ii) a commencement
of a war, armed hostilities or other international or national
calamity directly involving the United States or France which
has a material adverse effect on the general economic conditions
in the United States or France (other than the commencement of
war or armed hostilities in the Republic of Bosnia-Herzegovina);
(c) no statute, rule, regulation, temporary,
preliminary or permanent order or injunction shall have been
promulgated, enacted, entered, enforced or deemed applicable to
the Merger or performance under this Agreement, by any state,
federal or foreign government or governmental authority or court
or governmental agency of competent jurisdiction and remain in
effect that (i) prohibits the
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<PAGE>
consummation of the Merger or (ii) imposes material
limitations on the ability of the shareholders of Mergeco
effectively to exercise full rights of ownership with respect to
the Common Shares; provided, however, that the provisions of
-----------------
this Section 6.1(c) shall not be a condition to the obligations
of any party that has directly or indirectly solicited or
encouraged any such governmental or judicial action; and
(d) this Agreement shall have been approved and
adopted by the affirmative vote of the holders of the requisite
number of Common Shares in accordance with the Restated
Certificate of Incorporation and By-Laws of the Company and the
NYBCL.
6.2. Conditions to the Obligations of Parent, Mergeco
------------------------------------------------
and the Voting Trustee. The obligations of Parent, Mergeco and the
-----------------------
Voting Trustee pursuant to this Agreement to consummate the Merger
are also subject to the satisfaction or waiver, at or prior to the
Effective Time, of the following additional conditions:
(a) the representations and warranties of the Company
contained herein shall be true and correct in all respects (in
the case of any representation or warranty containing any
materiality qualification) or in all material respects (in the
case of any representation or warranty without any materiality
qualification) as of the date of this Agreement and as of the
Closing with the same effect as though all such representations
and warranties had been made as of the Closing, except (x) for
any such representations and warranties made as of a specified
date, which shall be true and correct as of such date, or (y) as
expressly contemplated by this Agreement, and Parent shall have
received from the Company's President and Chief Operating
Officer an officer's certificate to this effect; and
(b) each and all of the covenants and agreements of
the Company to be performed and complied with pursuant to this
Agreement prior to the Closing shall have been duly performed
and complied with in all material respects, and Parent shall
have received from the Company's President and Chief Operating
Officer an officer's certificate to this effect.
6.3. Conditions to the Obligations of the Company.
-----------------------------------------------
The obligation of the Company pursuant to this Agreement to
consummate the Merger is also subject to the satisfaction or waiver,
at or prior to the Effective Time, of the following additional
conditions:
(a) the representations and warranties of Parent and
Mergeco contained herein shall be true and correct in all
respects (in the case of any representation or warranty
containing any materiality qualification) or in all material
respects (in the case of any representation or warranty without
any materiality qualification) as of the date of this Agreement
and as of the Closing with the same effect as though all such
representations and warranties had been made as of the Closing,
except (x) for any such representations and warranties made as
of a specified date, which shall be true and correct as of such
date, and (y) as expressly contemplated by this Agreement, and
the Company shall have received from Parent and Mergeco
officers' certificates to this effect; and
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<PAGE>
(b) each and all of the covenants and agreements of
Parent and Mergeco to be performed and complied with pursuant to
this Agreement prior to the Closing shall have been duly
performed and complied with in all material respects, and the
Company shall have received from the Parent and Mergeco
officers' certificates to this effect.
ARTICLE VII
CLOSING
7.1. Time and Place. The closing of the Merger (the
--------------
"Closing") shall take place at the offices of Debevoise & Plimpton,
875 Third Avenue, New York, New York, as soon as practicable
following satisfaction or waiver of the conditions set forth in
Article VI. The date on which the Closing actually occurs is herein
referred to as the "Closing Date."
7.2. Filings at the Closing. At the Closing, Parent,
----------------------
Mergeco and the Company shall cause the Certificate of Merger,
together with any other documents required by law to effectuate the
Merger, to be executed, verified and delivered for filing by the New
York Department of State as provided by Section 904 of the NYBCL, and
shall take any and all other lawful actions and do any and all other
lawful things necessary to cause the Merger to become effective.
ARTICLE VIII
TERMINATION AND ABANDONMENT
8.1. Termination. This Agreement may be terminated at
-----------
any time prior to the Effective Time, whether before or after
approval by the shareholders of the Company:
(a) by mutual consent of the respective Boards of
Directors (or equivalent governing bodies) of Parent and Mergeco
and the Board of Directors of the Company; provided, however,
------------------
that any termination of this Agreement pursuant to this Section
8.1(a) shall require the approval of the Special Committee;
(b) by action of either the respective Boards of
Directors (or equivalent governing bodies) of Parent and Mergeco
or the Board of Directors of the Company if, without the fault
of the terminating party, the Merger has not been consummated on
or prior to January 31, 1996;
(c) by action of the respective Boards of Directors
(or equivalent governing bodies) of Parent and Mergeco, if the
Board of Directors of the Company shall have withdrawn or
modified in a manner adverse to Mergeco its approval or
recommendation of the Merger, this Agreement or the transactions
contemplated hereby; or
(d) by action of either of the respective Boards of
Directors (or equivalent governing bodies) of Parent and Mergeco
or the Board of Directors of the Company, if any court of
competent jurisdiction in the United States or other
governmental agency of competent jurisdiction shall have issued
an order, decree or ruling or taken any other action
restraining, permanently enjoining or otherwise
-17-
<PAGE>
prohibiting the Merger, and such order, decree, ruling or
other action shall have become final and non-appealable.
8.2. Procedure and Effect of Termination. In the
------------------------------------
event of termination and abandonment of the Merger by either Parent
and Mergeco or the Company pursuant to Section 8.1, written notice
thereof shall forthwith be given to the others, and this Agreement
shall terminate and the Merger shall be abandoned, without further
action by any of the parties hereto. Mergeco agrees that any termi
nation by Parent shall be conclusively binding upon it, whether given
expressly on its behalf or not, and the Company shall have no further
obligation with respect to it. If this Agreement is terminated as
provided herein, no party hereto shall have any liability or further
obligation to any other party to this Agreement, provided that any
termination shall be without prejudice to the rights of any party
hereto arising out of a breach by any other party of any covenant or
agreement contained in this Agreement, and provided, further, that
------------------
the obligations set forth in this Section 8.2 and Sections 3.8, 4.7,
9.6 and 9.8 shall in any event survive any termination.
ARTICLE IX
MISCELLANEOUS
9.1. Amendment and Modification. Subject to
------------------------------
applicable law, this Agreement may be amended, modified or
supplemented only by written agreement of Parent, Mergeco, the Voting
Trustee and the Company at any time prior to the Effective Time with
respect to any of the terms contained herein, provided, that (a)
--------
after this Agreement is adopted by the Company's shareholders
pursuant to Section 5.5, no such amendment or modification shall be
made that reduces the amount or changes the form of the Merger
Consideration or otherwise materially and adversely affects the
rights of the Public Shareholders hereunder, without the further
approval of the holders of at least a majority of the Public Shares
actually voted, in person or by proxy, on such proposal (excluding
abstentions) and (b) the approval of the Special Committee shall be
required for any amendment or modification of this Agreement, any
extension by the Company of the time for the performance of any
obligations or other acts of Parent or Mergeco and any waiver of any
of the Company's rights under this Agreement.
9.2. Waiver of Compliance; Consents. Any failure of
------------------------------
Parent, Mergeco or the Voting Trustee, on the one hand, or the
Company, on the other hand, to comply with any obligation, covenant,
agreement or condition herein may be waived by the Company or Parent,
respectively, only by a written instrument signed by the party
granting such waiver (and if required pursuant to Section 9.1(b), by
the Special Committee), 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
9.2. Mergeco hereby agrees that any consent or waiver of compliance
given by Parent hereunder shall be conclusively binding upon it,
whether given expressly on its behalf or not.
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<PAGE>
9.3. Survival of Warranties. Each and every
-------------------------
representation and warranty made in this Agreement shall expire with,
and be terminated and extinguished by, the Merger, or the termination
of this Agreement pursuant to Section 8.1. This Section 9.3 shall
have no effect upon any other obligation of the parties hereto,
whether to be performed before or after the Closing.
9.4. Notices. All notices and other communications
-------
hereunder shall be in writing and shall be deemed given if (a)
delivered personally or by overnight courier, (b) mailed by
registered or certified mail, return receipt requested, postage
prepaid, or (c) transmitted by telecopy, and in each case, addressed
to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice; provided that
notices of a change of address shall be effective only upon receipt
thereof):
(a) if to the Parent, Mergeco or the Voting Trustee,
to
Societe BIC S.A.
9, Rue Petit
92110 Clichy
France
Telecopy: 011-331-45-19-52-04
Attention: Bruno Bich
President Directeur General
with a copy to
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Telecopy: 212-909-6836
Attention: Andrew L. Sommer, Esq.
(b) if to the Company, to
BIC Corporation
500 BIC Drive
Milford, Connecticut 06460
Telecopy: 203-783-2108
Attention: Thomas M. Kelleher, Esq.
General Counsel and Secretary
with a copy to
Special Committee of the Board of Directors of
BIC Corporation
c/o Robert E. Allen
Redding Consultants, Inc.
11 Grumman Hill
Wilton, Connecticut 06897
Telecopy: 203-762-1185
-19-
<PAGE>
and to
Shearman & Sterling
Counsel to the Special Committee of the Board of
Directors of BIC Corporation
599 Lexington Avenue
New York, New York 10022
Telecopy: 212-848-7179
Attention: Peter Lyons, Esq.
Any notice so addressed shall be deemed to be given (x) three
business days after being mailed by first-class, registered or
certified mail, return receipt requested, postage prepaid and (y)
upon delivery, if transmitted by hand delivery, overnight courier or
telecopy.
9.5. Assignment; Parties in Interest. 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, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the
parties hereto without the prior written consent of the other
parties. Except for Section 5.10, which is intended for the benefit
of the Indemnified Parties, this Agreement is not intended to confer
upon any other person except the parties any rights or remedies under
or by reason of this Agreement.
9.6. Expenses. Whether or not the Merger is
--------
consummated, all costs and expenses incurred in connection with the
Offer, this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such expenses; provided, however, that
the allocable share of each of Parent and the Company for all
expenses related to printing, filing and mailing the Proxy Statement
and all SEC and other regulatory filing fees incurred in connection
with the Proxy Statement and the Schedule 13E-3 shall be one-half.
9.7. Specific Performance. The parties hereto agree
--------------------
that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly
agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court of the
United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in
equity.
9.8. Governing Law. This Agreement shall be governed
-------------
by the laws of the State of New York (regardless of the laws that
might otherwise govern under applicable principles of conflicts of
law) as to all matters, including but not limited to matters of
validity, construction, effect, performance and remedies.
9.9. Counterparts. This Agreement may be executed in
------------
two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
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<PAGE>
9.10. 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.
As used in this Agreement, (I) the term "person" shall mean and
include an individual, a partnership, a joint venture, a corporation,
a trust, an unincorporated organization and a government or any
department or agency thereof; (ii) the terms "affiliate" and
"associate" shall have the meanings set forth in Rule l2b-2 of the
General Rules and Regulations promulgated under the Exchange Act; and
(iii) the term "subsidiary" of any specified corporation shall mean
any corporation of which the outstanding securities having ordinary
voting power to elect a majority of the board of directors are
directly or indirectly owned by such specified corporation.
9.11. Entire Agreement. This Agreement, including
-----------------
the schedules hereto, embodies the entire agreement and understanding
of the parties hereto in respect of the subject matter contained
herein and supersedes all prior agreements and the understandings
between the parties with respect to such subject matter.
-21-
<PAGE>
IN WITNESS WHEREOF, Parent, Mergeco, the Voting Trustee and
the Company have caused this Agreement to be signed, by their
respective duly authorized officers or directly, as of the date first
above written.
SOCIETE BIC S.A.
By /s/ Bruno Bich
-----------------------------------
Name: Bruno Bich
Title: President Directeur
General
BIC MERGER CORPORATION
By /s/ Bruno Bich
-----------------------------------
Name: Bruno Bich
Title: President
BIC CORPORATION
By /s/ Raymond Winter
-----------------------------------
Name: Raymond Winter
Title: President and
Chief Operating
Officer
Solely for purposes
of Section 5.5:
VOTING TRUSTEE
By /s/ Bruno Bich
---------------------
Name: Bruno Bich
FOR IMMEDIATE RELEASE Contact: Robert L. Macdonald
(203) 783-2011
BIC CORPORATION AND SOCIETE BIC S.A.
ANNOUNCE AGREEMENT ON CASH MERGER
AT $40.50 PER SHARE
Milford, CT; Clichy, France, August 16, 1995 - - BIC Corporation
(NYSE : BIC) and its French parent, Societe BIC S.A., jointly announced
today that they have executed a definitive merger agreement pertaining to
Societe BIC S.A.'s previously announced proposal to acquire from public
shareholders the approximately 22% of BIC Corporation's common shares not
currently owned by Societe BIC S.A. and the Bich family. Under the
agreement, Societe BIC S.A. will acquire in the merger the publicly held
shares of BIC Corporation for a price of $40.50 per share in cash, or an
aggregate of approximately $219 million.
The merger agreement was approved by the Board of Directors of BIC
Corporation following the unanimous recommendation of the merger by a
special committee of independent directors. Goldman, Sachs & Co. has
served as financial advisor to the special committee.
The transaction, which will be financed out of Societe BIC's cash
position, is subject to certain customary conditions including approval of
a majority of the publicly held shares actually voted at a special meeting
of shareholders which will be called to consider the merger.
Although there can be no assurance as to whether the proposed
transaction will be effected, it is currently anticipated that the merger
will be completed in late October or early November of 1995. Under the
terms of the merger agreement, BIC Corporation will not pay the regularly
scheduled cash dividend payable on October 30, 1995, even if the merger is
consummated subsequent to such date.
BIC Corporation, headquartered in Milford, Connecticut, is a leading
U.S. manufacturer and distributor of stationery products, lighters and
shavers. 1994 sales were $475 million.
