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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
dated as of
October 7, 2000
among
SMITHKLINE BEECHAM PLC
and
BLOCK DRUG COMPANY, INC.
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TABLE OF CONTENTS
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ARTICLE 1
THE OFFER
SECTION 1.01 The Offer..................................................................................2
SECTION 1.02 Company Action.............................................................................4
SECTION 1.03 Directors..................................................................................5
ARTICLE 2
THE MERGER
SECTION 2.01 The Merger.................................................................................7
SECTION 2.02 Effective Time.............................................................................7
SECTION 2.03 Closing....................................................................................7
SECTION 2.04 Effects of the Merger......................................................................7
SECTION 2.05 Certificate of Incorporation...............................................................7
SECTION 2.06 Bylaws.....................................................................................8
SECTION 2.07 Directors and Officers.....................................................................8
ARTICLE 3
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT
CORPORATIONS; EXCHANGE OF CERTIFICATES
SECTION 3.01 Conversion of Company Common Stock.........................................................8
SECTION 3.02 Payment for Shares in the Merger...........................................................9
SECTION 3.03 Stock Options; Special Stock Unit Plan; and Extraordinary Deferred
Compensation..............................................................................10
SECTION 3.04 Adjustments...............................................................................11
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 4.01 Organization and Qualification; Subsidiaries..............................................11
SECTION 4.02 Capitalization............................................................................13
SECTION 4.03 Corporate Authorization...................................................................13
SECTION 4.04 Governmental Authorization................................................................14
SECTION 4.05 Non-contravention.........................................................................14
SECTION 4.06 SEC Reports; Financial Statements.........................................................15
SECTION 4.07 Information Supplied......................................................................15
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SECTION 4.08 Absence of Certain Changes or Events......................................................16
SECTION 4.09 Litigation................................................................................16
SECTION 4.10 Compliance with Laws......................................................................16
SECTION 4.11 Taxes.....................................................................................17
SECTION 4.12 Employee Benefit Plans....................................................................17
SECTION 4.13 Environmental Matters.....................................................................19
SECTION 4.14 Intellectual Property.....................................................................20
SECTION 4.15 Products Liability........................................................................22
SECTION 4.16 Title and Condition of Properties.........................................................22
SECTION 4.17 Insurance.................................................................................23
SECTION 4.18 Certain Contracts.........................................................................23
SECTION 4.19 Employment Matters........................................................................23
SECTION 4.20 Finders' Fees.............................................................................23
SECTION 4.21 Opinion of Financial Advisor..............................................................24
SECTION 4.22 Voting Requirements.......................................................................24
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
SECTION 5.01 Organization, Standing and Corporate Power................................................24
SECTION 5.02 Corporate Authorization...................................................................24
SECTION 5.03 Governmental Authorization................................................................24
SECTION 5.04 Non-contravention.........................................................................25
SECTION 5.05 Information Supplied......................................................................25
SECTION 5.06 Litigation................................................................................25
SECTION 5.07 Financial Capability......................................................................26
ARTICLE 6
COVENANTS
SECTION 6.01 Conduct of Business by the Company........................................................26
SECTION 6.02 Other Actions.............................................................................29
SECTION 6.03 Shareholder Meeting; Proxy Material; Merger Without Shareholder
Meeting...................................................................................29
SECTION 6.04 Access to Information.....................................................................30
SECTION 6.05 No Solicitation; Other Offers.............................................................30
SECTION 6.06 Best Efforts; Notification................................................................32
SECTION 6.07 Indemnification and Insurance.............................................................35
SECTION 6.08 Employee Benefits.........................................................................37
SECTION 6.09 Public Announcements......................................................................38
SECTION 6.10 Further Assurances........................................................................38
SECTION 6.11 Notices of Certain Events.................................................................39
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SECTION 6.12 ISRA Procedures...........................................................................40
ARTICLE 7
CONDITIONS TO THE MERGER
SECTION 7.01 Conditions to Obligations of Each Party...................................................41
ARTICLE 8
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01 Termination...............................................................................42
SECTION 8.02 Effect of Termination.....................................................................43
SECTION 8.03 Fees and Expenses.........................................................................43
SECTION 8.04 Amendment.................................................................................44
SECTION 8.05 Extension; Waiver.........................................................................44
SECTION 8.06 Procedure for Termination, Amendment, Extension or Waiver.................................44
ARTICLE 9
MISCELLANEOUS
SECTION 9.01 Non-Survival of Representations and Warranties............................................45
SECTION 9.02 Notices...................................................................................45
SECTION 9.03 No Waivers................................................................................46
SECTION 9.04 Successors and Assigns....................................................................46
SECTION 9.05 Governing Law.............................................................................47
SECTION 9.06 Jurisdiction..............................................................................47
SECTION 9.07 WAIVER OF JURY TRIAL......................................................................47
SECTION 9.08 Counterparts; Effectiveness; Benefit......................................................47
SECTION 9.09 Entire Agreement..........................................................................47
SECTION 9.10 Captions..................................................................................48
SECTION 9.11 Severability..............................................................................48
SECTION 9.12 Specific Performance......................................................................48
SECTION 9.13 Interpretation............................................................................48
SECTION 9.14 Company Disclosure Memorandum.............................................................49
SECTION 9.15 Personal Liability........................................................................49
SECTION 9.16 Obligation of Parent and the Company......................................................49
SECTION 9.17 Certain Definitions.......................................................................49
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INDEX OF DEFINED TERMS
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TERM SECTION
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Acquisition Proposal.................................................................................6.05(d)
Affiliate............................................................................................9.17(a)
BC...................................................................................................6.01(c)
Beneficially.........................................................................................9.17(b)
Board of Directors...................................................................................1.02(a)
Business Day.........................................................................................9.17(c)
Certificates.........................................................................................3.02(a)
Class A Stock.......................................................................................Recitals
Class B Stock.......................................................................................Recitals
Closing.................................................................................................2.02
Code.................................................................................................4.12(b)
Company.............................................................................................Recitals
Company Common Stock.................................................................................1.01(a)
Company Disclosure Memorandum......................................................................Article 4
Company Employees....................................................................................6.08(a)
Company Form 10-K ......................................................................................4.16
Company SEC Reports..................................................................................4.06(a)
Company Securities...................................................................................4.02(b)
Company Shareholder Approval............................................................................4.22
Company Shareholder Meeting..........................................................................6.03(a)
Company Stock Option....................................................................................3.04
Confidentiality Agreement...............................................................................6.04
Continuing Directors.................................................................................1.03(a)
Corporate Agent...................................................................................6.07(a)(i)
DOJ..................................................................................................6.06(b)
Effective Time..........................................................................................2.02
Employee Plans.......................................................................................4.12(a)
Environmental Laws................................................................................4.13(b)(i)
Environmental Permits............................................................................4.13(b)(ii)
ERISA................................................................................................4.12(a)
ERISA Affiliate......................................................................................4.12(c)
Exchange Act.........................................................................................1.01(a)
FDA..................................................................................................6.01(c)
FTC..................................................................................................6.06(b)
GAAP....................................................................................................5.08
Governmental Entity.....................................................................................4.04
GS...................................................................................................1.02(a)
GS Fairness Opinion..................................................................................1.02(a)
Hazardous Substance.............................................................................4.13(b)(iii)
HSR Act.................................................................................................4.04
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HSR/EC Condition.....................................................................................Annex A
Indemnified Party................................................................................6.07(a)(ii)
Information Statement...................................................................................4.07
Initial Expiration Date..............................................................................1.01(a)
Intellectual Property...................................................................................4.14
IRS..................................................................................................4.11(b)
ISRA.................................................................................................6.12(c)
Knowledge............................................................................................9.17(d)
Liens...................................................................................................4.01
Material Adverse Effect.................................................................................4.01
Merger..............................................................................................Recitals
Merger Consideration.................................................................................3.01(a)
Minimum Condition....................................................................................1.01(a)
NJBCA...............................................................................................Recitals
NJDEP................................................................................................6.12(c)
Non-Union Company Employees..........................................................................6.08(a)
Offer...............................................................................................Recitals
Offer Completion Date................................................................................6.03(a)
Offer Documents......................................................................................1.01(c)
Offer Price.........................................................................................Recitals
Other Enterprise................................................................................6.07(a)(iii)
Parent..............................................................................................Recitals
Parent Expenses......................................................................................8.03(a)
Paying Agent.........................................................................................3.02(a)
Payment Fund.........................................................................................3.02(a)
PCBs.............................................................................................4.13(a)(iv)
Permits.................................................................................................4.10
Person...............................................................................................9.17(c)
Proxy Statement.........................................................................................4.04
Purchaser...........................................................................................Recitals
RCRA............................................................................................4.13(b)(iii)
Remediation Agreement................................................................................6.12(c)
Schedule 14D-9.......................................................................................1.02(b)
Schedule TO..........................................................................................1.01(c)
SEC..................................................................................................1.01(b)
Securities Act.......................................................................................4.06(a)
Sensodyne............................................................................................6.01(c)
Shareholder Agreements..............................................................................Recitals
Significant Subsidiary ............................................................................9.17(g)
Subsidiary..............................................................................................4.01
Superior Proposal....................................................................................6.05(d)
Surviving Corporation...................................................................................2.01
Tax Return...........................................................................................4.11(f)
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Taxes................................................................................................4.11(f)
Taxing Authority.....................................................................................4.11(f)
Termination Fee......................................................................................8.03(b)
Transactions.........................................................................................1.02(a)
Unduly Burdensome Condition..........................................................................6.06(g)
Union Employees......................................................................................6.08(a)
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of October 7, 2000, among Block
Drug Company, Inc. a New Jersey corporation (the "COMPANY"), SmithKline Beecham
plc, a public limited company organized under the laws of England and Wales
("PARENT"), and SB Acquisition Corp., a New Jersey corporation and a
wholly-owned subsidiary of Parent ("PURCHASER").
WHEREAS, the respective Boards of Directors of Parent, Purchaser and
the Company have determined that it would be advisable and in the best interests
of their respective shareholders for Parent to acquire the Company on the terms
and conditions set forth herein;
WHEREAS, to effectuate the acquisition, it is proposed that Purchaser
commence a cash tender offer as it may be amended from time to time as permitted
under this Agreement, (the "OFFER") to purchase all of the issued and
outstanding shares of Class A and Class B Common Stock, par value $.10 per
share, of the Company (the "CLASS A STOCK" and the "CLASS B STOCK",
respectively, and collectively, the "COMPANY COMMON STOCK"), in each case, at a
purchase price of $53.00 per share (the "OFFER PRICE"), upon the terms and
subject to the conditions set forth in this Agreement;
WHEREAS, to effectuate the acquisition, it is further proposed that
following consummation of the Offer, Purchaser will be merged with and into the
Company, with (i) the Company continuing as the surviving corporation in the
merger; (ii) each outstanding share of Company Common Stock not owned directly
or indirectly by Parent or the Company being converted into the right to receive
the highest per share cash consideration paid pursuant to the Offer; and (iii)
the other effects provided herein and set forth in Section 14A:10-6 of the New
Jersey Business Corporation Act (the "NJBCA") (the "MERGER");
WHEREAS, the Board of Directors of the Company has determined that the
consideration to be paid for each share in the Offer and the Merger is fair to
all holders of such shares and has resolved to recommend that the holders of
such shares accept the Offer and adopt this Agreement; and
WHEREAS, certain stockholders have executed and delivered to Parent
agreements pursuant to which they have agreed to take certain actions with
respect to the Offer (the "VOTING AND TENDER AGREEMENTS");
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements contained in this
Agreement, the parties hereto agree as follows:
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ARTICLE 1
THE OFFER
SECTION 1.01 THE OFFER. (a) Provided that this Agreement shall not have
been terminated in accordance with Article 8 and none of the events set forth in
ANNEX A hereto shall have occurred and be continuing, Purchaser shall, and
Parent shall cause Purchaser to, as promptly as practicable after the date
hereof (but in no event later than the tenth Business Day after the public
announcement of the terms of this Agreement) commence (within the meaning of
Rule 14d-2(a) of the Securities Exchange Act of 1934 as amended (the "EXCHANGE
ACT")), the Offer to purchase any and all of the Company Common Stock, in each
case, for the Offer Price, net to the seller in cash, subject to reduction for
any applicable withholding taxes and, but only if such payment is to be made
other than to the registered holder, any applicable stock transfer taxes payable
by such holder. The Offer will be made pursuant to an offer to purchase and
related letter of transmittal containing the terms and conditions set forth in
this Agreement. The initial expiration date of the Offer shall be the twentieth
Business Day from and after the date the Offer is commenced as determined in
accordance with Rule 14d-2(a) under the Exchange Act (the "INITIAL EXPIRATION
DATE"). The obligation of Purchaser to accept for payment, purchase and pay for
any shares of Company Common Stock tendered pursuant to the Offer shall be
subject, except as provided in Section 1.01(b), only to the satisfaction of (i)
the condition that all of the Shares of Class B Stock and at least a majority of
the shares of Class A Stock and Class B Stock (taken together as if a single
class) outstanding on a fully-diluted basis (taking into account any shares of
Class A Stock and Class B Stock owned by Parent or Purchaser or any affiliate of
Parent or Purchaser on the date such shares are purchased pursuant to the Offer)
have been validly tendered and not withdrawn prior to the expiration of the
Offer (the "MINIMUM CONDITION"), (ii) the condition that (A) any applicable
waiting period under the HSR Act shall have expired or been terminated and (B)
any required approval under the EC Merger Regulation shall have been received,
in each case without the Parent, the Purchaser or the Company being subject to
an Unduly Burdensome Condition or the Purchaser or Parent having to submit to
any Unduly Burdensome Commitment to any Governmental Entity (the "HSR/EC
CONDITION"), and (iii) the other conditions set forth in ANNEX A hereto;
provided, however, that Purchaser expressly reserves the right to waive any of
the conditions to the Offer (other than the Minimum Condition) and to make any
change in the terms or conditions of the Offer (other than the Minimum
Condition) in its sole discretion, subject to Section 1.01(b).
(b) Without the prior written consent of the Company, neither
Parent nor Purchaser will (i) decrease the Offer Price, (ii) decrease the number
of shares of Class A Stock or Class B Stock sought in the Offer, (iii) change
the form of consideration payable in the Offer, (iv) impose conditions to the
Offer in addition to the Minimum Condition, the HSR/EC Condition and the other
conditions set forth in ANNEX A, (v) except as provided below or required by any
rule, regulation, interpretation or position of the Securities and Exchange
Commission ("SEC") applicable to the Offer, change the expiration date of the
Offer, or (vi) otherwise amend or change any term or condition of the Offer in a
manner adverse to the holders of shares of Class A Stock or Class B Stock.
Notwithstanding anything in this Agreement to the contrary, without the consent
of the Company, Purchaser shall have the right to extend the Offer beyond the
Initial Expiration Date in
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the following events: (i) from time to time, but in no event later than June 30,
2001, if, at the Initial Expiration Date (or extended expiration date of the
Offer, if applicable), one or more of the conditions to the Offer (other than
the Minimum Condition to which this clause does not apply) shall not have been
satisfied or waived, until such conditions are satisfied or waived; (ii) for any
period required by any rule, regulation, interpretation or position of the SEC
or the staff thereof applicable to the offer or any period required by
applicable law; (iii) if all conditions to the Offer other than the Minimum
Condition are satisfied or waived, for one or more periods not to exceed ten
(10) Business Days each (but no more than an aggregate of thirty (30) Business
Days for all such extensions); or (iv) if all of the conditions to the Offer are
satisfied or waived but the number of shares of each class of Company Common
Stock validly tendered and not withdrawn is less than ninety percent (90%) of
the then outstanding number of shares of each class of Company Common Stock, for
one additional period of not less than three (3) nor more than twenty (20)
Business Days, provided that Purchaser shall accept and pay for all securities
tendered, as soon as reasonably practical, prior to the date of such extension,
shall otherwise meet the requirements of Rule 14d-11 under the Exchange Act in
connection with such extension and shall waive any condition to the consummation
of the Merger other than the conditions in Section 7.01(c) that may fail to be
satisfied during such extension. In addition, Parent and Purchaser agree that
Purchaser shall, if requested by the Company, from time to time extend the Offer
if at the Initial Expiration Date (or any extended expiration date of the Offer,
including pursuant to this sentence, if applicable), no conditions to the Offer
other than the Minimum Condition, the HSR/EC Condition and/or the conditions set
forth in clause (a) or clause (b) of ANNEX A shall excuse performance by
Purchaser under ANNEX A, until the earlier of twenty (20) Business Days after
such previously scheduled expiration date or June 30, 2001. Upon the
satisfaction or waiver of all the conditions to the Offer and subject to the
terms and conditions of this Agreement, Purchaser will, and Parent will cause
Purchaser to, accept for payment, purchase and pay for, in accordance with the
terms of the Offer, all shares of Company Common Stock validly tendered and not
withdrawn pursuant to the Offer as soon as reasonably practicable after the
expiration of the Offer.
(c) As soon as reasonably practicable on the date of
commencement of the Offer, Parent and Purchaser shall file or cause to be filed
with the SEC a Tender Offer Statement on Schedule TO (together with any
amendments or supplements thereto, the "SCHEDULE TO") with respect to the Offer,
which shall contain or incorporate by reference the offer to purchase, and forms
of the related letter of transmittal and such other ancillary documents and
instruments pursuant to which the Offer will be made (such Schedule TO and such
documents included therein pursuant to which the Offer will be made, together
with any supplements or amendments thereto, the "OFFER DOCUMENTS"). Parent and
Purchaser agree that the Offer Documents will comply as to form and content in
all material respects with the applicable provisions of the federal securities
laws. Parent, Purchaser and the Company each agree to correct promptly any
information provided by it for use in the Offer Documents if and to the extent
that such information shall have become false or misleading in any material
respect and to supplement the information provided by it specifically for use in
the Schedule TO or the other Offer Documents to include any information that
shall become necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Parent and Purchaser
agree to take all steps necessary to cause the Offer
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Documents as so corrected or supplemented to be filed with the SEC and to be
disseminated to holders of shares of Company Common Stock, in each case as and
to the extent required by applicable federal securities laws. The Company and
its counsel shall be given a reasonable opportunity to review and comment on the
Offer Documents prior to their being filed with the SEC. Parent and Purchaser
agree to provide to the Company and its counsel any comments or other
communications which Parent, Purchaser or their counsel may receive from the
Staff of the SEC with respect to the Offer Documents promptly after receipt
thereof.
(d) Parent shall provide or cause to be provided to Purchaser on a
timely basis the funds necessary to accept for payment, and pay for, any shares
of Company Common Stock that Purchaser becomes obligated to accept for payment,
and pay for, pursuant to the Offer.
SECTION 1.02 COMPANY ACTION. (a) The Company hereby consents to the
Offer and represents and warrants that the board of directors of the Company
(the "BOARD OF DIRECTORS"), at a meeting duly called and held, has (i)
determined that this Agreement and the transactions contemplated hereby,
including, without limitation, the Offer, the Merger and the purchase of shares
of Company Common Stock contemplated by the Offer (collectively the
"TRANSACTIONS"), are advisable and fair to and in the best interests of the
Company and the Company's shareholders, (ii) approved of this Agreement and the
Transactions in accordance with the requirements of the NJBCA, and (iii)
resolved to recommend that the shareholders of the Company accept the Offer,
tender their shares of Company Common Stock pursuant to the Offer and approve
and adopt this Agreement and the Merger. Notwithstanding the foregoing, such
recommendation may be withdrawn, modified or amended as permitted by Section
6.05(c). The Company hereby consents to the inclusion in the Offer Documents,
the Schedule 14D-9 and the Proxy Statement (if any) of such recommendation of
the Board of Directors. The Company represents and warrants that the Board of
Directors has received the written opinion (the "GS FAIRNESS OPINION") of
Goldman Sachs & Co. ("GS"), stating that as of the date of such opinion, the
proposed consideration to be received by the holders of shares of Company Common
Stock pursuant to the Offer and the Merger is fair to such holders from a
financial point of view. The Company has been authorized by GS to permit,
subject to the prior review and consent by GS (such consent not to be
unreasonably withheld), the inclusion of the GS Fairness Opinion (or a reference
thereto) in the Offer Documents and the Schedule 14D-9. The Company acknowledges
that Voting and Tender Agreements have been executed and delivered by holders of
a majority of the outstanding shares of Class A Stock and 100% of the
outstanding shares of Class B Stock and has also been advised by each of its
directors and by each corporate officer who, as of the date hereof, is aware of
the Transactions and is not a party to or bound by such Voting and Tender
Agreement, that each such person intends to tender pursuant to the Offer all
shares of Company Common Stock owned, of record or beneficially, by such person
which he or she may sell without liability under Section 16(b) of the Exchange
Act, unless the Company's recommendation shall have been withdrawn or materially
modified as permitted by Section 6.05(c).
(b) As soon as reasonably practicable on the date of commencement of
the Offer, the Company shall file with the SEC and disseminate to holders of
shares of Company Common
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Stock, in each case as and to the extent required by applicable federal
securities laws, a Solicitation/Recommendation Statement on Schedule 14D-9
(together with any amendments or supplements thereto, the "SCHEDULE 14D-9") that
shall reflect the recommendation of the Board of Directors referred to in clause
(iii) of Section 1.02(a) hereof. The Schedule 14D-9 will comply in all material
respects with the provisions of applicable federal securities laws and, on the
date filed with the SEC and on the date first published, sent or given to the
Company's shareholders, shall not contain any untrue statement of a material
fact or omit 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, except that no representation is made by
the Company with respect to information supplied by Parent or Purchaser in
writing for inclusion in the Schedule 14D- 9. The Company, Parent and Purchaser
each agree promptly to correct any information provided by it for use in the
Schedule 14D-9 if and to the extent that it shall have become false or
misleading in any material respect and to supplement the information provided by
it specifically for use in the Schedule 14D-9 to include any information that
shall become necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company agrees to
take all steps necessary to cause the Schedule 14D-9 as so corrected or
supplemented to be filed with the SEC and to be disseminated to holders of
shares of Company Common Stock, in each case as and to the extent required by
applicable federal securities laws. Parent and its counsel shall be given a
reasonable opportunity to review and comment on the Schedule 14D-9 prior to its
being filed with the SEC. The Company agrees to provide to Parent and Purchaser
and their counsel any comments or other communications which the Company or its
counsel may receive from the staff of the SEC with respect to the Schedule 14D-9
promptly after receipt thereof. Parent, Purchaser and the Company each hereby
agree to provide promptly such information necessary to preparation of the
exhibits and schedules to the Schedule 14D-9 and the Offer Documents which the
respective party responsible therefor will reasonably request.
(c) The Company will cause its transfer agent promptly to
furnish Parent and Purchaser with a list of the Company's shareholders, mailing
labels and any available listings or computer file containing the names and
addresses of all record holders of shares of Company Common Stock and lists of
securities positions of shares of Company Common Stock held in stock
depositories and to provide to Parent and Purchaser such additional information
(including, without limitation, updated lists of shareholders, mailing labels
and lists of securities positions) and such other assistance as Parent or
Purchaser or their agents may reasonably request in connection with the Offer.
Subject to the requirements of applicable law, and except for such steps as are
necessary to disseminate the Offer Documents and any other documents necessary
to consummate the Transactions, Parent and Purchaser and each of their
affiliates, associates and agents will hold in confidence the information
contained in any such labels, listings and files, will use such information only
in connection with the Offer and the Merger and, if this Agreement is
terminated, will deliver, and will cause their agents to deliver, to the Company
all copies and any extracts or summaries from such information then in their
possession or control.
SECTION 1.03 DIRECTORS. (a) Promptly following the purchase of and
payment for a number of shares of Company Common Stock that satisfies the
Minimum Condition, and from
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time to time thereafter, Purchaser shall be entitled to designate for election
as directors of the Company a number of directors, equal to the next whole
number, greater than the product of (i) the total number of directors of the
Company constituting the whole Board of Directors (giving effect to any increase
in the number of directors in order to comply with this Section 1.03 and (ii)
the percentage that the voting power of shares of Company Common Stock
beneficially owned by Parent and Purchaser (including shares of Company Common
Stock paid for pursuant to the Offer), upon such acceptance for payment, bears
to the total voting power of shares of Company Common Stock outstanding, and the
Company shall take all action within its power to cause Purchaser's designees to
be elected or appointed to the Board of Directors, including, without
limitation, increasing the number of directors, and seeking and accepting
resignations of incumbent directors. At such time, the Company will also, upon
request of Parent or Purchaser, use its reasonable best efforts to cause
individual directors designated by Purchaser to constitute the number of
members, rounded up to the next whole number, on (i) each committee of the Board
of Directors other than any such committee of the Board of Directors established
to take action under this Agreement and (ii) each board of directors of each
Subsidiary of the Company, and each committee thereof, that represents the same
percentage as Purchaser's designees represent on the Board of Directors.
Notwithstanding the foregoing, in the event that Purchaser's designees are
appointed or elected to the Board of Directors the Board of Directors shall at
all times until the Effective Time have at least two directors who are directors
on the date of this Agreement or otherwise not affiliates of Parent(the
"CONTINUING DIRECTORS"); provided that in the event that the number of
Continuing Directors shall be reduced below two for any reason whatsoever, the
Board of Directors shall cause the person designated by the remaining Continuing
Director to fill such vacancy and such person shall be deemed to be a Continuing
Director for all purposes of this Agreement or, if no Continuing Directors then
remain, the other directors of the Company then in office shall designate two
persons to full such vacancies who are not officers, directors, employees or
affiliates of the Company or Parent or any of their respective Subsidiaries and
such persons shall be deemed to be Continuing Directors for all purposes of this
Agreement.
(b) The Company's obligations to appoint Purchaser's designees to the
Board of Directors shall be subject to Section 14(f) of the Exchange Act and
Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions
and shall include in the Schedule 14D-9 such information with respect to the
Company and its officers and directors (or an amendment thereof or an
information statement pursuant to Rule 14f-1 if Purchaser has not theretofore
designated directors), as Section 14(f) and Rule 14f-1 require in order to
fulfill its obligations under this Section. Parent and Purchaser shall supply to
the Company, and be solely responsible for, any information with respect to
themselves and their nominees, officers, directors and affiliates required by
Section 14(f) and Rule 14f-1.
(c) Following the election or appointment of Purchaser's designees
pursuant to Section 1.03(a) and until the Effective Time, the approval of the
Continuing Directors shall be required to authorize (and such authorization
shall constitute the authorization of the Company's Board of Directors and no
other action on the part of the Company, including any action by any other
directors of the Company, shall be required to authorize) any termination of
this Agreement by the
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Company, any amendment of this Agreement, any amendment of the certificate of
incorporation or bylaws of the Company, any extension of time for performance of
any obligation or action hereunder by Parent or Purchaser, any waiver of
compliance with, or enforcement of, any of the agreements or conditions
contained herein, for the benefit of the Company and any material transaction
with Parent, Purchaser or any affiliate thereof.
ARTICLE 2
THE MERGER
SECTION 2.01 THE MERGER. At the Effective Time and upon the terms and
subject to the conditions of this Agreement, Purchaser shall be merged with and
into the Company in accordance with applicable law, whereupon the separate
existence of Purchaser shall cease, and the Company shall be the surviving
corporation (the "SURVIVING CORPORATION"). Subject to the terms and conditions
of this Agreement, Parent and Purchaser agree to use their reasonable best
efforts to cause the Effective Time to occur as soon as practicable after (i)
the Company Shareholder Meeting or (ii) the purchase by Purchaser pursuant to
the Offer of ninety percent (90%) or more of the outstanding shares of both (A)
the Class A Stock and (B) the Class B Stock.
SECTION 2.02 EFFECTIVE TIME. The Merger shall become effective at such
time as a certificate of merger in the form of Annex B, attached hereto, duly
executed by the Purchaser and the Company is duly filed with the Secretary of
State of the State of New Jersey in accordance with the NJBCA or at such later
time as may be specified in the certificate of merger (the "EFFECTIVE TIME").
SECTION 2.03 CLOSING. The closing of the Merger (the "CLOSING") shall
take place at 10:00 a.m. on a date to be specified by the parties, which shall
be no later than the second Business Day after satisfaction or waiver of the
conditions set forth in Article 7 (other than those conditions that by their
nature are to be satisfied at the Closing, but subject to the fulfillment or
waiver of those conditions), at the offices of Fulbright & Jaworski L.L.P., 666
Fifth Avenue, New York, New York 10103, unless the parties agree to another
time, date or place in writing. At the Closing, subject to satisfaction or
waiver of all of the conditions to the Merger set forth in Article 7, the
Purchaser and the Company shall cause the certificate of merger to be filed with
the Secretary of State in accordance with the NJBCA and make all other filings,
if any, required by applicable law in connection with the Merger.
SECTION 2.04 EFFECTS OF THE MERGER. From and after the Effective Time,
the Merger shall have the effects set forth in Section 14A:10-6 of the NJBCA.
SECTION 2.05 CERTIFICATE OF INCORPORATION. The certificate of
incorporation of the Company at the Effective Time shall be the certificate of
incorporation of the Surviving Corporation, amended and restated pursuant to the
certificate of merger.
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SECTION 2.06 BYLAWS. The bylaws of the Company at the Effective Time
shall be the bylaws of the Surviving Corporation, amended and restated to be
identical to those of the Purchaser.
SECTION 2.07 DIRECTORS AND OFFICERS. (a) From and after the Effective
Time, until successors are duly elected or appointed and qualified in accordance
with applicable law, (i) the directors of Purchaser at the Effective Time shall
be the directors of the Surviving Corporation and (ii) the officers of the
Company at the Effective Time shall be the officers of the Surviving Corporation
; provided that, upon the request of Parent or Purchaser, the Company shall
cause any officers of the Company designated by Parent or Purchaser to be
removed at the Effective Time.
ARTICLE 3
EFFECT OF THE MERGER ON THE CAPITAL
STOCK OF THE CONSTITUENT CORPORATIONS;
EXCHANGE OF CERTIFICATES
SECTION 3.01 CONVERSION OF COMPANY COMMON STOCK. (a) At the Effective
Time by virtue of the Merger and without any other action on the part of the
holder thereof:
(i) each share of Class A Stock and each share of
Class B Stock outstanding immediately prior to the Effective
Time shall be converted into the right to receive from the
Surviving Corporation, in cash, without interest, upon the
surrender of the certificate representing such shares the
price per share of Company Common Stock paid in the Offer (in
each case, the "MERGER CONSIDERATION"); and
(ii) each share of common stock of Purchaser
outstanding immediately prior to the Effective Time shall be
converted into and become one share of common stock of the
Surviving Corporation with the same rights, powers and
privileges as the shares so converted and shall constitute the
only outstanding shares of capital stock of the Surviving
Corporation; and
(iii) each share of Company Common Stock that is
owned by the Company as treasury shares and all shares of
Company Common Stock that are owned, directly or indirectly,
by Parent or the Company or any of their respective
Subsidiaries shall be canceled and shall cease to exist and
shall not be entitled to receive or be converted into the
right to receive the Merger Consideration or any other
consideration therefor.
(b) At the Effective Time, holders of Company Common Stock
shall cease to be, and shall have no voting or other rights as, shareholders of
the Company, other than to receive the Merger Consideration and any dividend or
other distribution with respect to the Company Common Stock with a record date
occurring prior to the Effective Time. From and after the Effective Time,
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there shall be no transfers on the stock transfer records of the Company of any
shares of Company Common Stock that were outstanding immediately prior to the
Effective Time.
SECTION 3.02 PAYMENT FOR SHARES IN THE MERGER. (a) Prior to the
Effective Time, Parent shall appoint an agent (the "PAYING AGENT") reasonably
acceptable to the Company for the purpose of exchanging certificates
representing shares of Company Common Stock (the "CERTIFICATES") for the Merger
Consideration. At or prior to the Effective Time, Parent or Purchaser shall
deposit with the Paying Agent, in trust for the benefit of the holders of shares
of Company Common Stock, cash in immediately available funds sufficient to pay
the Merger Consideration to be paid in respect of all shares of Company Common
Stock then outstanding, other than those described in Section 3.01(a)(iii) (such
cash being hereinafter referred to as the "PAYMENT FUND"); provided, however,
that no such deposit shall relieve Parent or Purchaser of its obligations to pay
the Merger Consideration pursuant to Section 3.01(a)(i). The Payment Fund shall
not be used for any other purpose. The Payment Fund shall be invested by the
Paying Agent as directed by Parent or the Surviving Corporation pending payment
thereof by the Paying Agent to the holders of record of shares of Company Common
Stock. Earnings from such investment shall be the sole and exclusive property of
Parent and the Surviving Corporation, and no part of such earnings shall accrue
to the benefit of holders of record of shares of Company Common Stock.
(b) As soon as reasonably practicable after the Effective Time, Parent
will cause the Paying Agent to send to each holder of record of shares of
Company Common Stock at the Effective Time (other than holders of Shares of
Company Common Stock referred to in Section 3.01(a)(iii)) a letter of
transmittal (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 and will be in such form and have such other provisions as
Parent reasonably specifies) and instructions for use in effecting the surrender
of Certificate(s) for payment of the Merger Consideration for the shares
represented thereby.
(c) Each holder of record of shares of Company Common Stock that have
been converted into the right to receive the Merger Consideration will be
entitled to receive, upon surrender to the Paying Agent of one or more
Certificates, together with a properly completed letter of transmittal, the
Merger Consideration in respect of each share of Company Common Stock
represented by such Certificates. Until so surrendered, each such Certificate
shall represent after the Effective Time for all purposes only the right to
receive such Merger Consideration. No interest shall be paid or accrued on any
amount payable upon surrender of any Certificate.
(d) If any portion of the Merger Consideration is to be paid to a
Person other than the Person in whose name the surrendered Certificate is
registered, it shall be a condition to such payment that the Certificate so
surrendered 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.
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(e) Each of the Surviving Corporation and Parent shall be entitled to
deduct and withhold from the consideration otherwise payable to any Person
pursuant to this Article 3 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 the Surviving Corporation or Parent, as the
case may be, so withholds amounts, such amounts shall be treated for all
purposes of this Agreement as having been paid to the holder of the shares of
Company Common Stock in respect of which the Surviving Corporation or Parent, as
the case may be, made such deduction and withholding.
(f) If any Certificate shall have been lost, stolen or destroyed, upon
the making of an affidavit of that fact by the Person claiming such Certificate
to be lost, stolen or destroyed and, if required by the Surviving Corporation,
the posting by such Person of a bond, in such reasonable amount as the Surviving
Corporation may direct, as indemnity against any claim that may be made against
it with respect to such Certificate, the Paying Agent will pay, in exchange for
such lost, stolen or destroyed Certificate, the Merger Consideration to be paid
in respect of the shares of Company Common Stock represented by such
Certificate, as contemplated by this Article.
(g) At the Effective Time, the stock transfer books of the Company
shall be closed there shall be no further registration of transfers of shares of
Company Common Stock. If, after the Effective Time, Certificates are presented
to the Surviving Corporation, they shall be canceled and exchanged for the
Merger Consideration provided for, and in accordance with the procedures set
forth, in this Article 3.
(h) Any portion of the Payment Fund (and any interest or other income
earned thereon) that remains unclaimed by the holders of shares of Company
Common Stock one year after the Effective Time shall be returned to Parent, upon
demand, and any such holder who has not exchanged shares of Company Common Stock
for the Merger Consideration in accordance with this Section 3.02 prior to that
time shall thereafter look only to the Surviving Corporation for payment of the
Merger Consideration in respect of such shares without any interest thereon.
Notwithstanding the foregoing, neither the Paying Agent nor any party hereto
shall be liable to any holder of shares of Company Common Stock for any amount
paid to a public official pursuant to applicable abandoned property, escheat or
similar laws.
(i) The Surviving Corporation shall pay all charges and expenses of the
Paying Agent.
SECTION 3.03 STOCK OPTIONS; SPECIAL STOCK UNIT PLAN; AND EXTRAORDINARY
DEFERRED COMPENSATION. The Company shall take all actions necessary to provide
that, immediately prior to the Effective Time, each then outstanding option to
purchase Class A Stock under any stock option plan or arrangement of the Company
(a "COMPANY STOCK OPTION"), shall be fully vested, whether or not vested or
exercisable, and after such vesting shall be cancelled. In consideration for the
cancellation of each Company Stock Option, the Company shall make a cash payment
to the holder at or promptly after the Effective Time of an amount equal to the
product of (i) the excess, if any,
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of the Merger Consideration per share of Class A Stock over the exercise price
of such Company Stock Option, and (ii) the number of shares of Class A Stock
covered by such Company Stock Option (to the extent not previously terminated).
Payments made in cancellation of Company Stock Options will be subject to
applicable tax withholding requirements and will be in full satisfaction of all
of the Company's liabilities and obligations under any stock option plan or
arrangement of the Company and the Company Stock Options. The Company shall take
such actions as may be necessary to provide that, immediately prior to the
Effective Time, the accounts of all participants in the Company's Special Stock
Unit Plan will be fully vested and cashed out in full satisfaction of all of the
Company's liabilities and obligations under such plan and in respect of such
awards. The Company shall take such actions as may be necessary to provide that,
immediately prior to the Effective Time, all Extraordinary Deferred Compensation
Agreements specified in Schedule 4.12 of the Company Disclosure Memorandum will
be fully vested and cashed out.
SECTION 3.04 ADJUSTMENTS. Subject to Section 6.01(b), if, during the
period between the date of this Agreement and the Effective Time, any change in
the outstanding shares of capital stock of the Company shall occur by reason of
any reclassification, recapitalization, stock split or combination, exchange or
readjustment of shares, or stock dividend thereon with a record date during such
period, the Merger Consideration and any other amounts payable pursuant to this
Agreement shall be appropriately adjusted.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the disclosure memorandum delivered by the
Company to Parent on or prior to the date hereof (the "COMPANY DISCLOSURE
MEMORANDUM") or in the Company SEC Reports, as defined in Section 4.06(a)
herein, the Company represents and warrants to Parent and Purchaser as follows:
SECTION 4.01 ORGANIZATION AND QUALIFICATION; SUBSIDIARIES. The Company
and each of its Significant Subsidiaries, as defined in Section 9.17(g), is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction in which it is incorporated and has the requisite corporate
power and authority to carry on its business as now being conducted. The Company
and each of its Subsidiaries is duly qualified or licensed to do business and is
in good standing in each jurisdiction in which the nature of its business or the
ownership or leasing of its properties makes such qualification or licensing
necessary, other than in such jurisdictions where the failure to be so qualified
or licensed (individually or in the aggregate) would not reasonably be expected
to have a Material Adverse Effect on the Company. As used in this Agreement,
"MATERIAL ADVERSE EFFECT" means, with respect to any Person, any change, effect,
event, occurrence or state of facts (or any development that has had or is
reasonably likely to have any change or effect) that is or is reasonably likely
to be materially adverse to the business, financial condition or results of
operations of such Person and its Subsidiaries, taken as a whole, or which would
prevent or materially delay or materially impair the consummation of the
transactions contemplated hereby, PROVIDED, HOWEVER, none of the following shall
be deemed in themselves, either alone or in
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combination, to constitute, and none of the following shall be taken into
account in determining whether there has been a Material Adverse Effect: (i) any
change in the market price or trading volume of the capital stock of such Person
after the date hereof, (ii) changes, events or occurrences in the United States
securities markets which are not specific to such Person, (iii) any adverse
changes, events, developments or effects (A) arising from or relating to general
business or economic conditions which are not specific to such Person and its
Subsidiaries, or (B) affecting generally companies in the same business as such
Person and its Subsidiaries, except to the extent that such changes, events or
developments have an adverse effect on such Person and its Subsidiaries taken as
a whole that is materially greater than the adverse effect on comparable
companies, (iv) any failure by such Person to meet internal forecasts or
projections or published revenue or earnings predictions for any period ending
(or for which revenues or earnings are released) on or after the date of this
Agreement, (v) any adverse change, event, development or effect attributable to
the announcement or pendency of the Transactions (including any cancellations of
or delays in customer agreements, any reduction in sales, any disruption in
supplier, distributor, partner or similar relationships or any loss of
employees), or resulting from or relating to compliance with the terms of, or
the taking of any action required by, this Agreement, and (vi) any adverse
change, event, development or effect arising from or relating to any change in
U.S. generally accepted accounting principles. The term "SUBSIDIARY" means as to
any Person any corporation or other legal entity of which such Person controls
(either alone or through or together with any other Subsidiary), owns, directly
or indirectly, more than 50% of the capital stock or other ownership interests
the holders of which are generally entitled to vote for the election of the
Board of Directors or other governing body of such corporation or other legal
entity. Section 4.01 of the Company Disclosure Memorandum lists each Subsidiary
of the Company. Unless the context otherwise requires, when used herein
"Subsidiary" refers to each Subsidiary of the Company. The Company has made
available to Parent complete and correct copies of its certificate of
incorporation and bylaws and the certificates of incorporation and bylaws (or
comparable charter documents, in the case of any foreign subsidiary of the
Company) of its Significant Subsidiaries, in each case as amended to the date
hereof. All of the outstanding shares of capital stock or other ownership
interests of each such Subsidiary have been validly issued and are fully paid
and nonassessable and are owned by the Company, by a wholly-owned Subsidiary of
the Company or by the Company and another wholly-owned Subsidiary, in each case,
free and clear of all pledges, claims, liens, charges, encumbrances and security
interests of any kind or nature whatsoever (collectively, "LIENS"), and free of
any restriction on the right to vote, sell or otherwise dispose of such capital
stock or other ownership interests, except for restrictions imposed by
applicable securities laws. Other than director qualifying shares, there are no
outstanding (i) securities of the Company or any of its Subsidiaries convertible
into or exchangeable for shares of capital stock or other ownership interests in
any Subsidiary of the Company or (ii) options or other rights (including,
without limitation, any subscriptions, warrants, calls, stock appreciation
rights, commitments or agreements of any character) to acquire from the Company
or any of its Subsidiaries, or other obligation of the Company or any of its
Subsidiaries to issue, any capital stock or other ownership interests in, or any
securities convertible into or exchangeable for any capital stock or other
ownership interests in, any Subsidiary. Other than ownership securities
representing an investment of less than $10,000 (at cost), in any publicly
traded company and an investment of $100,000 in the aggregate (at cost) and
the capital stock or other ownership interests of its
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Subsidiaries, the Company does not own, directly or indirectly, any capital
stock or other ownership interest in any corporation, partnership, joint
venture or other entity.
SECTION 4.02 CAPITALIZATION. (a) The authorized capital stock of the
Company consists of 60,000,000 shares of common stock, $0.10 par value per
share, of which 20,000,000 shares have been designated as Class A Stock and
40,000,000 shares have been designated as Class B Stock. As of September 15,
2000 there were outstanding: (1) 14,541,582 shares of Class A Stock; (2)
8,671,372 shares of Class B Stock; and (3) employee stock options to purchase an
aggregate of 499,325 shares of Class A Stock. Since September 15, 2000, there
have been no issuances of shares of the capital stock of the Company or any
other securities of the Company. All shares of Company Common Stock outstanding
as of the date hereof have been duly authorized and validly issued and are fully
paid and nonassessable. All shares of Class A Stock issuable upon exercise of
outstanding employee stock options have been duly authorized and, when issued in
accordance with the terms thereof, will be validly issued, fully paid and
nonassessable.
(b) Except as set forth in Section 4.02(a), there are no
outstanding (i) shares of capital stock or voting securities of the Company,
(ii) securities of the Company convertible into or exchangeable for shares of
capital stock or voting securities of the Company or (iii) options or other
rights (including, without limitation, any subscriptions, warrants, calls, stock
appreciation rights, commitments or agreements of any character) to acquire from
the Company or other obligation of the Company to issue, any capital stock,
voting securities or securities convertible into or exchangeable for capital
stock or voting securities of the Company (the items in clauses (i), (ii) and
(iii) being referred to collectively as the "COMPANY SECURITIES"). There are no
outstanding obligations of the Company or any of its Subsidiaries to repurchase,
redeem or otherwise acquire any of the Company Securities. Without limiting the
generality of the foregoing, neither the Company nor any of its Subsidiaries has
adopted a shareholder rights plan or similar plan or arrangement.
(c) There are no bonds, debentures, notes or other
indebtedness of the Company having the right to vote (or convertible into
securities having the right to vote) on any matters on which shareholders of the
Company may vote.
(d) There are no voting trusts or other agreements or
understandings with respect to the voting of the capital stock of the Company or
any of the Subsidiaries (i) to which the Company of any its Subsidiaries is a
party or (ii) except as set forth in Schedule 4.02(c) of the Company Disclosure
Memorandum, to the knowledge of the Company, to which any shareholder who is a
party to a Voting and Tender Agreement of the Company, is a party.
SECTION 4.03 CORPORATE AUTHORIZATION. The Company has the requisite
corporate power and authority to enter into this Agreement and, subject to
approval, if necessary, of the Merger by the Company's shareholders in
accordance with the NJBCA, to consummate the transactions contemplated by
this Agreement. The execution and delivery of this Agreement by the Company
and the consummation by the Company of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
the Company, subject to approval, if
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necessary, of the Merger by the Company's shareholders in accordance with the
NJBCA. This Agreement has been duly executed and delivered by the Company and
constitutes a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except that such
enforceability (i) may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting or relating to the enforcement of creditors'
rights generally and (ii) is subject to general principles of equity.
SECTION 4.04 GOVERNMENTAL AUTHORIZATION. No consent, approval, order or
authorization of, or registration, declaration or filing with, any Federal,
state or local government or any court, administrative agency, commission or
other governmental or regulatory authority or agency, domestic or foreign (a
"GOVERNMENTAL ENTITY"), is required by or with respect to the Company or any of
its Subsidiaries in connection with the execution and delivery of this Agreement
by the Company or the consummation by the Company of the transactions
contemplated hereby, except for (a) the filing of a premerger notification and
report form by the Company under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976 (the "HSR ACT") and filings pursuant to the EC Merger Regulation and
similar applicable competition, merger control, antitrust or other laws, (b) the
filing with the SEC of (i) the Schedule 14D-9, (ii) a proxy statement relating
to the approval by the Company's shareholders of this Agreement (as amended or
supplemented from time to time, the "PROXY STATEMENT"), if required, and (iii)
such reports and information statements under the Exchange Act as may be
required in connection with this Agreement and the transactions contemplated by
this Agreement, (c) the filing of the certificate of merger with the New Jersey
Secretary of State and appropriate documents with the relevant authorities of
other states in which the Company is qualified to do business and (d) such other
consents, approvals, orders, authorizations, registrations, declarations and
filings the failure of which to be obtained or made would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect on
the Company or prevent or materially delay the consummation of any of the
transactions contemplated by this Agreement.
SECTION 4.05 NON-CONTRAVENTION. The execution and delivery of this
Agreement by the Company does not, and performance by the Company of its
obligations under this Agreement and the consummation of the transactions
contemplated hereby will not (a) contravene, conflict with, or result in any
violation or breach of any provision of the articles of incorporation or
bylaws of the Company, (b) assuming compliance with the matters referred to
in Section 4.04(a), (b) and (c), contravene, conflict with, or result in a
violation or breach of any provision of any applicable law, regulation,
judgment, injunction, order or decree, (c) require any consent or other
action by any Person under, constitute a default under, or cause or permit
the termination, cancellation, acceleration or other change of any right or
obligation or the loss of any benefit to which the Company or any of its
Subsidiaries is entitled under any provision of any agreement or other
instrument binding upon the Company or any of its Subsidiaries or any
license, sublicense, franchise, permit, certificate, approval or other
similar authorization affecting, or relating in any way to, the assets,
Intellectual Property, ownership or license rights or business of the Company
and its Subsidiaries or (d) result in the creation or imposition of any Lien
on any asset of the Company or any of its Subsidiaries, except, in the case
of clauses (b), (c) and (d), for such matters as would not,
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individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect on the Company or materially impair the ability of the Company
to consummate the transactions contemplated by this Agreement.
SECTION 4.06 SEC REPORTS; FINANCIAL STATEMENTS.
(a) The Company has filed with the SEC all reports, schedules, forms,
statements and other documents required to be filed with the SEC since April 1,
1999. True, complete and correct copies of all filings including exhibits, made
by the Company with the SEC since such date and prior to the date hereof (the
"COMPANY SEC REPORTS"), have been furnished or made available to the Parent and
the Purchaser. As of their respective dates, the Company SEC Reports complied as
to form in all material respects with the requirements of the Securities Act of
1933, as amended (the "Securities Act")or the Exchange Act, as the case may be,
and the rules and regulations of the SEC promulgated thereunder applicable to
such Company SEC Reports, and none of the Company SEC Reports 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.
(b) The financial statements of the Company included in the Company SEC
Reports, in each case: (i) comply as to form in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto, (ii) have been prepared in accordance with U.S.
generally accepted accounting principles (except, in the case of unaudited
statements, as permitted by Form 10-Q of the SEC) and described on Schedule
4.06(b) of the Company Disclosure Memorandum applied on a consistent basis
during the periods involved (except as may be indicated in the notes to such
financial statements) and (iii) fairly present in all material respects the
consolidated financial position of the Company and its consolidated Subsidiaries
as of the date thereof and the consolidated results of their operations and cash
flows for the period then ended (subject, in the case of unaudited statements,
to normal year-end audit adjustments which have not been, and are not likely to
be, materially adverse to the Company and its Subsidiaries, taken as a whole).
Neither the Company nor any of its Subsidiaries has any liabilities of any
nature, whether accrued, absolute, fixed, contingent or otherwise, whether due
or to become due and whether or not required to be recorded or reflected on a
balance sheet prepared in accordance with U.S. generally accepted accounting
principles except (i) liabilities reflected or reserved against or disclosed in
the financial statements of the Company and its consolidated Subsidiaries
(including the notes thereto) included in the Company SEC Reports, (ii)
liabilities and obligations under this Agreement or incurred in connection with
the transactions contemplated hereby, (iii) liabilities and obligations incurred
since June 30, 2000 in the ordinary course of business consistent with past
practice, and (iv) other liabilities and obligations that together with the
liabilities described in clause (iii) have not had and are not reasonably likely
to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 4.07 INFORMATION SUPPLIED. None of the information supplied or
to be supplied by the Company for inclusion or incorporation by reference in (a)
the Offer Documents,
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(b) the Schedule 14D-9, (c) the information statement to be filed by the Company
in connection with the Offer pursuant to Rule 14f-1 promulgated under the
Exchange Act (the "INFORMATION STATEMENT") or (d) the Proxy Statement will, in
the case of the Offer Documents, the Schedule 14D-9 and the Information
Statement, at the respective times such documents are filed with the SEC and
first published, sent or given to the Company's shareholders, or, in the case of
the Proxy Statement or any amendment thereof or supplement thereto, at the date
it is first mailed to the Company's shareholders and at the time of the Company
Shareholder Meeting, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they are
made, not misleading, except that no representation is made by the Company with
respect to statements made or incorporated by reference therein based on
information supplied by Parent or Purchaser specifically for inclusion or
incorporation by reference therein. The Schedule 14D-9, the Information
Statement and the Proxy Statement will comply as to form in all material
respects with the requirements of the Exchange Act and the rules and regulations
thereunder.
SECTION 4.08 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since March 31,
2000, except as set forth in the Company SEC Reports filed since such date, the
Company has conducted its business only in the ordinary course and (a) there has
not occurred any events or changes that have had, or would reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect on
the Company; and (b) the Company has not taken any action that would have been
prohibited under Section 6.01(b) hereof.
SECTION 4.09 LITIGATION. Except as disclosed in the Company SEC
Reports, there is no suit, action or proceeding pending or, to the knowledge of
the Company, threatened in writing against or affecting the Company or any of
its Subsidiaries that, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect on the Company or would prevent or
substantially delay any of the transactions contemplated by this Agreement or
otherwise prevent the Company from performing its obligations hereunder (it
being understood that this representation shall not include any litigation of
the nature described in paragraph (a) of ANNEX A), nor is there any judgment,
decree, injunction, rule or order of any Governmental Entity or arbitrator
outstanding against the Company or any of its Subsidiaries having, or which,
insofar as reasonably can be foreseen, in the future would have, any such
effect.
SECTION 4.10 COMPLIANCE WITH LAWS. Except as disclosed in the Company
SEC Reports, the Company and its Subsidiaries are in compliance with all
applicable statutes, laws, ordinances, regulations, rules, judgments, decrees
and orders of any Governmental Entity applicable to their respective businesses
or operations, except for instances of possible noncompliance that, individually
or in the aggregate, would not reasonably be expected to have a Material Adverse
Effect on the Company (provided that no representation or warranty is made in
this Section 4.10 with respect to Environmental Laws which are covered in
Section 4.13). Each of the Company and its Subsidiaries has in effect all
Federal, state, local and foreign governmental approvals, authorizations,
certificates, filings, franchises, licenses, notices, permits and rights
("PERMITS") necessary for it to own, lease or operate its properties and assets
and to carry on its business as now conducted, and
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there has occurred no default under any such Permit, except for the lack of
Permits and for defaults under Permits which lack or default individually or in
the aggregate would not reasonably be expected to have a Material Adverse Effect
on the Company.
SECTION 4.11 TAXES. (a) The Company and each of its Subsidiaries has
filed all income Tax Returns which it has been required to file, has paid all
Taxes which have become due and payable by it and has made adequate provision in
reserves established in its financial statements and accounts for all Taxes
which have accrued but are not yet due and payable, except where the failure to
file Tax Returns, pay Taxes or provide adequate reserves for Taxes would not
have a Material Adverse Effect.
(b) Neither the Company nor any of its Subsidiaries has waived any
statute of limitations in respect of the assessment and collection of Taxes or
agreed to any extension of time with respect to a Tax assessment or deficiency.
(c) None of the Company and its Subsidiaries is a party to any Tax
allocation or sharing agreement other than between or among themselves.
(d) None of the Company and its Subsidiaries has been a member of an
affiliated group filing a consolidated U.S. federal Tax Return.
(e) "TAXES" shall mean any and all taxes, charges, fees, levies or
other assessments, including income, gross receipts, excise, real or personal
property, sales, withholding, social security, retirement, unemployment,
occupation, use, goods and services, service use, license, value added, capital,
net worth, payroll, profits, withholding, franchise, business, transfer and
recording taxes, fees and charges, and any other taxes, assessment or similar
charges imposed by the IRS or any taxing authority (whether domestic or foreign
including any state, county, local or foreign government or any subdivision or
taxing agency thereof (including a United States possession)) (a "TAXING
AUTHORITY"), whether computed on a separate, consolidated, unitary, combined or
any other basis; and such term shall include any interest whether paid or
received, fines, penalties or additional amounts attributable to, or imposed
upon, or with respect to, any such taxes, charges, fees, levies or other
assessments. "TAX RETURN" shall mean any report, return, document, declaration
or other information or filing required to be supplied to any Taxing Authority
or jurisdiction (foreign or domestic) with respect to Taxes, including
information returns, any documents with respect to or accompanying payments of
estimated Taxes, or with respect to or accompanying requests for the extension
of time in which to file any such report, return, document, declaration or other
information.
SECTION 4.12 EMPLOYEE BENEFIT PLANS. (a) Schedule 4.12 of the Company
Disclosure Memorandum lists each material "employee benefit plan," as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), whether or not subject to ERISA, and each other material employment,
severance, consulting, confidentiality, deferred, incentive, fringe benefit,
change in control, retention, stock option or other equity based or other
compensatory or benefit plan, policy, agreement or arrangement (including,
without
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limitation, any collective bargaining agreement or national agreement governing
any terms and conditions of employment) that is (i) maintained, administered,
contributed to or required to be contributed to by the Company, any of its
Subsidiaries or any entity that, together with the Company or any of its
Subsidiaries, would be treated as a single employer under Section 414 of the
Code (an "ERISA Affiliate") or to which the Company or any such Subsidiary or
ERISA Affiliate is a party, and (ii)covers any employee or former employee of
the Company or any of its Subsidiaries (collectively, the "EMPLOYEE PLANS").
Subject to data protection or other law concerning the disclosure of personal
data, the Company has made available to Parent copies of the Employee Plans
(and, if applicable, related trust agreements or other funding arrangements) and
all material amendments thereto and material written interpretations thereof.
(b) The Company has delivered or made available to Parent the most
recent determination letter, if any, of the IRS relating to each Employee Plan
intended to qualify under Section 401(a) of the Internal Revenue Code of 1986,
as amended (the "CODE") and to the knowledge of the Company, no event or
condition has occurred or exists since the date of such letter that could be
reasonably expected to result in the disqualification of any such plan. Each
Employee Plan has been administered in, and is in, compliance with its terms and
with the requirements of applicable law, including but not limited to ERISA, the
Code, and comparable legislation of a non-U.S. jurisdiction except where the
failure so to administer would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect on the Company.
(c) With respect to any Employee Plan covered by Title I of ERISA, no
non-exempt transaction prohibited by Section 406 of ERISA or Section 4975 of the
Code or other misconduct has occurred which will cause the Company to incur
(directly or indirectly) a liability under ERISA, the Code or comparable
legislation of a non-U.S. jurisdiction that would reasonably be expected to have
a Material Adverse Effect on the Company. No "accumulated funding deficiency,"
as defined in Section 412 of the Code, has been incurred with respect to any
Employee Plan subject to such Section 412, whether or not waived. All material
contributions required to be made under any Employee Plan or any applicable law
as of the date hereof have been made or adequately provided for on the Company's
financial statements. No "reportable event," within the meaning of Section 4043
of ERISA, other than a "reportable event" that would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect on the
Company, and no event described in Section 4062 or 4063 of ERISA, has occurred
in connection with any Employee Plan that is subject to Title IV of ERISA.
Neither the Company nor any of its Subsidiaries sponsors or contributes to any
"multiple employer welfare arrangement" as defined in Section 3(40) of ERISA.
Neither the Company, any of its Subsidiaries, nor any ERISA Affiliate has
engaged in, or is a successor or parent corporation to an entity that has
engaged in, a transaction described in Sections 4069 or 4212(c) of ERISA or
incurred, or reasonably expects to incur prior to the Effective Time, any
material liability under Title IV of ERISA arising in connection with the
termination of, or a complete or partial withdrawal from, any plan covered or
previously covered by Title IV of ERISA or any material liability under Section
4971 or 4980B of the Code or to the Company's knowledge, any material penalty or
excise tax under laws of any non-U.S. jurisdiction that in any such case could
become or remain a liability of the Company, any of its Subsidiaries, Parent or
any
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ERISA Affiliate after the Effective Time. Neither the Company nor any of its
Subsidiaries contributes or has ever been required to contribute to any
"multiemployer plan," as defined in Section 3(37) of ERISA. The assets of the
Company are not now, nor will they after the passage of time be, subject to any
lien imposed under Code Section 412(n) by reason of a failure of the Company to
make timely installments or other payments required under Code Section 412 prior
to the Effective Time.
(d) No employee or former employee of the Company or any Subsidiary
will become entitled to any material bonus, retirement, severance, job security
or other payment, right or benefit (including any increased payment, award or
benefit or any acceleration of vesting payment or exercise of any award, amount
or benefit) as a result of the transactions contemplated hereby (whether alone
or in connection with additional events), and there is no contract, plan or
arrangement covering any employee or former employee of the Company or any
Subsidiary that, individually or collectively, could reasonably be expected to
give rise to a payment that would not be deductible by Parent, the Company or
any Subsidiary by reason of Sections 280G or 162(m) of the Code.
(e) With respect to each Employee Plan, where applicable, the Company
has provided or made available to Parent, true and complete copies of (i) the
most recent IRS Form 5500 filing, (ii) the most recent financial statement, and
(iii) the most recent actuarial report and Form PBGC-1 filing.
(f) There are no actions, suits, claims or administrative proceedings
which have been asserted, instituted (other than routine claims for benefits)
or, to the knowledge of the Company, threatened against the Company or any of
its Subsidiaries with respect to any Employee Plan or against the assets of any
Employee Plan which could reasonably be expected to have a Material Adverse
Effect.
(g) Neither the Company nor any of its Subsidiaries has any announced
plan or legally binding commitment to create any additional Employee Plans or to
amend or modify any existing Employee Plan, other than amendments required by
law and amendments or incentive awards expressly contemplated by Sections 3.03,
4.08, 4.12, 6.01 or 6.08 of this Agreement or the related Sections of the
Company Disclosure Memorandum.
SECTION 4.13 ENVIRONMENTAL MATTERS. (a) Except as would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
on the Company:
(i) no written notice, demand, request for information,
citation, summons or order has been received, no penalty has been
assessed, and no action, suit, proceeding or, to the knowledge of the
Company, investigation is pending or, to the knowledge of the Company,
threatened, which alleges a violation by the Company or any Subsidiary
of the Company of any Environmental Law or seeks to impose liability
under any Environmental Law (including, without limitation, Superfund
liabilities);
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(ii) the Company and its Subsidiaries are, and have been
during the preceding five years, in compliance with all applicable
Environmental Laws and all Environmental Permits;
(iii) in connection with the real property owned, operated or
leased by the Company, or the Company's activities or operations, no
release, emission, or discharge into the environment of Hazardous
Substances has occurred or is presently occurring, and no contamination
is present, that would require notification, investigation or
remediation under any Environmental Law. No Hazardous Substance has
been disposed of by the Company except in compliance with applicable
Environmental Laws and, to the Company's knowledge, no Hazardous
Substance resulting from the Company's activities or operations has
been disposed of by any other Person except in compliance with
applicable Environmental Laws; and
(iv) the Company has made available to Purchaser all
assessments, audits, investigations, and sampling or similar reports
relating to the environment and the presence or absence of any
contamination or release of Hazardous Substances, to the extent
applicable to the Company's activities or operations or the real
property which it owns, operates or leases.
(b) As used herein,
(i) "ENVIRONMENTAL LAWS" means any federal, state, local or
foreign law, regulation, rule, order, decree or requirement relating
to: (a) pollution, contamination, cleanup, preservation, protection, or
reclamation of the environment; (b) public or employee health or
safety; (c) notification, investigation, monitoring, or remediation of,
or other response to, a release of Hazardous Substances; or (d) the
handling, use, manufacture, distribution, treatment, storage, disposal,
or recycling of or exposure to Hazardous Substances;
(ii) "ENVIRONMENTAL PERMITS" means all permits, licenses,
certificates or approvals necessary for the operation of the Company or
any of its Subsidiaries as currently conducted to comply with all
applicable Environmental Laws; and
(iii) "HAZARDOUS SUBSTANCE" means any pollutant, contaminant,
chemical, petroleum or any fraction thereof, asbestos or
asbestos-containing material, polychlorinated biphenyls, or industrial,
toxic, radioactive, infectious, disease-causing or hazardous substance,
material, waste or agent.
SECTION 4.14 INTELLECTUAL PROPERTY. Except as, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect on
the Company and except as disclosed in the Company SEC Reports:
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(a) the Company and each of its Subsidiaries owns, controls or is
perpetually licensed to use (in each case, free and clear of any Liens or
restrictions), all Intellectual Property used in, or necessary for the conduct
of, its business as currently conducted or as currently planned to be conducted;
(b) to the Company's knowledge, the Company and its Subsidiaries are
not infringing or otherwise violating the Intellectual Property of any Person
and are acting in accordance with any applicable license pursuant to which the
Company or any Subsidiary acquired the right to use any Intellectual Property;
(c) no Person has commenced a proceeding challenging or claiming the
invalidity or unenforceability of, or contesting the rights of the Company or
any Subsidiary to, any Intellectual Property owned or controlled by and/or
licensed to the Company or its Subsidiaries used in or necessary for the conduct
of its business as currently conducted; and
(d) neither the Company nor any of its Subsidiaries has received any
written notice or otherwise has knowledge of any pending or threatened claim,
order or proceeding with respect to any Intellectual Property owned, controlled,
licensed or used by the Company or its Subsidiaries and no Intellectual Property
owned, controlled and/or licensed by the Company or its Subsidiaries is being
used or enforced in a manner that would reasonably be expected to result in the
abandonment, cancellation or unenforeceability of such Intellectual Property.
(e) neither the Company nor any of its Subsidiaries: (A) is a party to
any suit, action or proceeding which involves a claim of infringement of, or
breach of any license or agreement involving, any Intellectual Property of any
third party; or (B) has brought any action, suit or proceeding against any third
party for infringement of, or breach of any license or agreement involving, any
of the Intellectual Property owned by or licensed to the Company or its
Subsidiaries;
(f) to the Company's knowledge, there are no unauthorized uses,
disclosures, infringements or misappropriation of any Intellectual Property
owned by, or licensed by or to, the Company or any Subsidiary;
(g) except as disclosed in Section 4.14 of the Company Disclosure
Memorandum or where prohibited or restricted by law, the Company and each of its
Subsidiaries has a policy to secure valid written assignments to the Company or
such Subsidiary from all consultants and employees who contribute or have
contributed to the creation or development of Intellectual Property of all
rights to such contributions and Intellectual Property that the Company or such
subsidiary does not already own by operation of law;
(h) subject to subparagraph (g) above, the Company and each of its
Subsidiaries believes that it has taken all reasonable and appropriate steps to
protect and preserve the confidentiality of all of the trade secrets and other
non-public know-how and proprietary information owned by, or licensed to, the
Company or such Subsidiary.
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(i) For purposes of this Agreement, "INTELLECTUAL PROPERTY" shall mean
trademarks, service marks, brand names, certification marks, trade dress and
other indications of origin, the goodwill associated with the foregoing and
registrations in any jurisdiction of, and applications in any jurisdiction to
register, the foregoing, including any extension, modification or renewal of any
such registration or application; inventions, discoveries and ideas, whether
patentable or not, in any jurisdiction; patents, applications for patents
(including, without limitation, design patents, utility patents, utility models
and all divisions, continuations, continuations in part and renewal
applications), and any renewals, re-examinations, extensions, confirmations or
reissues thereof, and inventors' certificates and invention disclosures in any
jurisdiction; nonpublic information, trade secrets, know-how and confidential or
proprietary information and rights in any jurisdiction to limit the use or
disclosure thereof by any Person; writings and other works, whether
copyrightable or not, in any jurisdiction; and registrations or applications for
registration of copyrights in any jurisdiction, and any renewals or extensions
thereof; and any similar intellectual property or proprietary rights.
SECTION 4.15 PRODUCTS LIABILITY. Neither the Company nor any of its
Subsidiaries has received any written notice relating to any claim involving any
product manufactured, produced, distributed or sold by the Company or any of its
Subsidiaries resulting from an alleged defect in design, manufacture, materials
or workmanship, or any alleged failure to warn, or from any breach of any
implied warranties or representation, other than notices of claims that have
been settled or resolved by the Company and its Subsidiaries prior to the date
hereof and claims which, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect on the Company.
SECTION 4.16 TITLE AND CONDITION OF PROPERTIES. The Company or one of
its Subsidiaries (a) has good and marketable title to or a valid leasehold
interest under a real property or a capitalized lease in all assets recorded on
the Company's balance sheet as of March 31, 2000 included in the Company's
Annual Report on Form 10-K for the fiscal year ended March 31, 2000 (the
"COMPANY'S FORM 10-K") or otherwise described in Item 2 of the Company's Form
10-K, free and clear of all Liens, except for (i) assets disposed of in the
ordinary course of business consistent with past practice since such date, (ii)
Liens disclosed in the Company SEC Reports, (iii) Liens or imperfections of
title which are not, individually or in the aggregate, material in character,
amount or extent and which do not materially detract from the value or
materially interfere with the present or presently contemplated use of the
assets subject thereto or affected thereby, and (iv) Liens for current Taxes not
yet due and payable and (b) has a valid leasehold or other interest in all other
assets used by it in its business, except in each case for exceptions to the
foregoing that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect on the Company. All of the
improvements on real property and fixtures, machinery, equipment and other
tangible personal property and assets owned or used by the Company are in good
condition and repair, except for ordinary wear and tear not caused by neglect,
and are usable in the ordinary course of business, except for any matter
otherwise covered by this sentence which would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on the
Company.
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SECTION 4.17 INSURANCE. All material risks of the Company and its
Subsidiaries in respect of their business are covered by valid and currently
effective insurance policies or binders of insurance or programs of
self-insurance in such types and amounts as are reasonable in the context of the
businesses and operations engaged in by the Company and its Subsidiaries. The
Company has paid all premiums due under such policies and is not in default with
respect to its obligations under any such policies other than any default that
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect on the Company.
SECTION 4.18 CERTAIN CONTRACTS. (a) As of the date hereof, except as
set forth in the Company SEC Reports or Schedule 4.18 of the Company Disclosure
Memorandum, neither the Company nor any of its Subsidiaries is a party to or
bound by any Material Contracts or any material non-competition agreements or
any other agreements or arrangements that limit or otherwise restrict the
Company or any of its Subsidiaries or any successor thereto from engaging or
competing in any line of business or in any geographic area. As used in this
Agreement "Material Contract" shall mean a material contract as defined in Item
601(b)(10) of Regulation S-K of the SEC.
(b) Neither the Company nor any of its Significant
Subsidiaries is, or has any knowledge that any other party thereto is, in
default in any respect under any contract, agreement, commitment, arrangement,
lease (including with respect to personal property), undertaking or other
instrument to which the Company or any of its Significant Subsidiaries is a
party or by which the Company, any of its Significant Subsidiaries or any of
their respective assets is bound, except for such defaults as have not had and
are not reasonably likely to have a Material Adverse Effect, and there has not
occurred any event that with the lapse of time or the giving of notice or both
would constitute such a default.
SECTION 4.19 EMPLOYMENT MATTERS. Neither the Company nor any of its
Subsidiaries has experienced any work stoppages, strikes, collective labor
grievances, other collective bargaining disputes, claims of unfair labor
practices or industrial or trade disputes in the last five years which,
individually or in the aggregate, has had, or would be reasonably expected to
have, a Material Adverse Effect on the Company. To the Company's knowledge,
there is no work stoppage, strike, collective labor grievance, other collective
bargaining dispute or claim of unfair labor practices threatened against or
involving the Company or any of its Subsidiaries. To the knowledge of the
Company, there is neither a material labor negotiation in progress with any
labor union, labor organization, trade union, work council or other employee
representative body, nor an organizational effort presently being made or
overtly threatened by or on behalf of any labor union with respect to employees
of the Company or any of its Subsidiaries.
SECTION 4.20 FINDERS' FEES. Except for Goldman, Sachs & Co., there is
no investment banker, broker, finder or other intermediary that has been
retained by or is authorized to act on behalf of the Company or any of its
Subsidiaries who is entitled to any fee or commission from the Company or any of
its Subsidiaries in connection with the transactions contemplated by this
Agreement.
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SECTION 4.21 OPINION OF FINANCIAL ADVISOR. The Company has received an
opinion of Goldman Sachs & Co. to the effect that, as of the date of such
opinion, the consideration to be received by the holders of shares of Company
Common Stock pursuant to the Offer and the Merger is fair to such holders from a
financial point of view.
SECTION 4.22 VOTING REQUIREMENTS. The affirmative vote of the holders
of a majority of the outstanding shares of each of the Class A Stock and Class B
Stock, each voting as a separate class (the "COMPANY SHAREHOLDER APPROVAL"),
approving this Agreement is the only vote of the holders of any class or series
of the Company's capital stock necessary to approve this Agreement and the
transactions contemplated by this Agreement.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Parent and Purchaser jointly and severally, represent and warrant to
the Company that:
SECTION 5.01 ORGANIZATION, STANDING AND CORPORATE POWER. Each of Parent
and Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is incorporated and has
the requisite corporate power and authority to carry on its business as now
being conducted.
SECTION 5.02 CORPORATE AUTHORIZATION. Parent and Purchaser have all
requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated by this Agreement. The execution and
delivery of this Agreement, and the consummation of the transactions
contemplated by this Agreement, in each case by Parent and/or Purchaser, as the
case may be, have been duly authorized by all necessary corporate action on the
part of Parent and Purchaser. This Agreement has been duly executed and
delivered by Parent and Purchaser and constitutes a valid and binding obligation
of each such party, enforceable against each such party in accordance with its
terms, except that such enforceability may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting or relating to the enforcement of
creditors' rights generally and is subject to general principles of equity.
SECTION 5.03 GOVERNMENTAL AUTHORIZATION. No consent, approval, order or
authorization of, or registration, declaration or filing with, any Governmental
Entity is required by or with respect to Parent, Purchaser or any other
Subsidiary of Parent in connection with the execution and delivery of this
Agreement by Parent and Purchaser or the consummation by Parent and Purchaser of
the transactions contemplated by this Agreement, except for (a) the filing of a
premerger notification and report form under the HSR Act and pursuant to the EC
Merger Regulation and similar applicable competition, merger control, antitrust,
investment or other laws, (b) the filing with the SEC of (i) the Offer Documents
and (ii) such reports under the Exchange Act as may be required in connection
with this Agreement and the transactions contemplated by this Agreement, (c) the
filing of the certificate of merger with the New Jersey Secretary of State and
appropriate documents with the relevant authorities of other states in which the
Company is qualified
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to do business and (d) such other consents, approvals, orders, authorizations,
registrations, declarations and filings the failure of which to be obtained or
made would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect on Parent or prevent or materially delay the
consummation of any of the transactions contemplated by this Agreement. Neither
Parent nor any of its affiliates or associates (as each such term is defined in
Section 14A:10A-3 of the NJBCA) was, at any time since January 1, 1995, an
"interested stockholder" (as such term is defined in Section 14A:10A-3 of the
NJBCA) of the Company.
SECTION 5.04 NON-CONTRAVENTION. The execution and delivery of this
Agreement by Parent and Purchaser do not and performance by Parent and Purchaser
of this Agreement and the consummation by Parent and Purchaser of the
transactions contemplated hereby will not (a) contravene, conflict with, or
result in any violation or breach of any provision of the certificate of
incorporation or bylaws of Parent or Purchaser, (b) assuming compliance with the
matters referred to in Section 5.03(a), (b) and (c), contravene, conflict with
or result in any violation or breach of any provision of any law, regulation,
judgment, injunction, order or decree or (c) require any consent or other action
by any Person under, constitute a default under, or cause or permit the
termination, cancellation, acceleration or other change of any right or
obligation or the loss of any benefit to which Parent or Purchaser is entitled
under any provision of any agreement or other instrument binding upon Parent or
Purchaser, except, in the case of clauses (b) and (c), for such matters as would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect on Parent or materially impair the ability of Parent or Purchaser
to consummate the transactions contemplated by the Agreement.
SECTION 5.05 INFORMATION SUPPLIED. None of the information supplied or
to be supplied by Parent or Purchaser for inclusion or incorporation by
reference in the Offer Documents, the Schedule 14D-9, the Information Statement
or the Proxy Statement will, in the case of the Offer Documents, the Schedule
14D-9 and the Information Statement, at the respective times such documents are
filed with the SEC or first published, sent or given to the Company's
shareholders, or, in the case of the Proxy Statement or any amendment thereof or
supplement thereto, at the date it is first mailed to the Company's shareholders
and at the time of the meeting of the Company's shareholders held to vote on
approval of the Merger, 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
are made, not misleading, except that no representation is made by Parent or
Purchaser with respect to statements made or incorporated by reference therein
based on information supplied by the Company. The Offer Documents will comply as
to form in all material respects with the requirements of the Exchange Act and
the rules and regulations promulgated thereunder.
SECTION 5.06 LITIGATION. There is no suit, action or proceeding pending
or, to the knowledge of the Parent, overtly threatened in writing against or
affecting the Parent, any Subsidiary of Parent or Purchaser that would prevent
or substantially delay any of the transactions contemplated by this Agreement or
otherwise prevent the Parent or Purchaser from performing its obligations
hereunder, (it being understood that this representation shall not include any
litigation of the nature
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described in paragraph (a) of Annex A) nor is there any judgment, decree,
injunction, rule or order of any Governmental Entity or arbitrator outstanding
against the Parent or Purchaser or any Subsidiary of Parent having, or which,
insofar as reasonably can be foreseen, in the future would have, any such
effect.
SECTION 5.07 FINANCIAL CAPABILITY. Parent has, or will have prior to
the expiration of the Offer, sufficient funds to consummate the transactions
contemplated by this Agreement, including payment in full for all shares of
Company Common Stock (on a fully-diluted basis) validly tendered in the Offer or
outstanding at the Effective Time and to pay all fees and expenses payable by it
related to the transactions contemplated by this Agreement.
ARTICLE 6
COVENANTS
SECTION 6.01 CONDUCT OF BUSINESS BY THE COMPANY. (a) From the date
hereof until the Effective Time, the Company shall, and shall cause each of its
Subsidiaries to, conduct its business in the ordinary course consistent with
past practice and use its reasonable best efforts to preserve intact its
business organization and relationships with third parties and to keep available
the services of its officers and employees.
(b) Except with the prior written consent of Parent or as contemplated
or permitted by this Agreement or as expressly set forth in the Company
Disclosure Memorandum, from the date hereof until the Effective Time the Company
shall not, and shall not permit any of its Subsidiaries to:
(i) make, declare, set aside or pay any dividend or other
distribution with respect to any share of its capital stock, other than
(A) regular quarterly cash and stock dividends on the Class A Stock and
Class B Stock in amounts and with record and payment dates consistent
with past practice and (B) dividends and other distributions paid in
the ordinary course of business consistent with past practice by any
Subsidiary of the Company to the Company or any wholly-owned Subsidiary
of the Company;
(ii) adjust, split, combine or reclassify any of its capital
stock or issue or authorize the issuance of any other securities in
respect of, in lieu of or in substitution for shares of its capital
stock;
(iii) directly or indirectly repurchase, redeem or otherwise
acquire any shares of capital stock or other securities of, or other
ownership interests in, the Company or any of its Subsidiaries;
(iv) issue, deliver or sell any shares of any class or series
of its capital stock (including Company Common Stock), or any
securities convertible into
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or exercisable or exchangeable for shares of any class or series of its
capital stock (including Company Common Stock, or any rights, warrants
or options to acquire any shares of Company Common Stock), other than
issuances pursuant to stock-based awards or options that are
outstanding on the date hereof;
(v) adopt or implement any amendment to its certificate of
incorporation or bylaws or other comparable organizational documents or
any plan of consolidation, merger or reorganization or amend the terms
of its outstanding securities;
(vi) acquire or agree to acquire (A) by merging or
consolidating with, or by purchasing a substantial portion of the
assets of, or by any other manner, any business or any corporation,
partnership, joint venture, association or other business organization
or division thereof or (B) any assets that are material, individually
or in the aggregate, to the Company, except purchases in the ordinary
course of business consistent with past practice;
(vii) transfer, sell, lease, license, mortgage or otherwise
encumber or subject to any Lien or otherwise dispose of any of its
properties or assets which are material, individually or in the
aggregate, to the Company (including in the case of the Company,
without limitation, any capital stock in its Subsidiaries), except
sales in the ordinary course of business consistent with past practice;
(viii) except for the items currently contracted for by the
Company and the items contemplated by the Company's capital expenditure
budget of $27 million per year, make or agree to make any new capital
expenditure or expenditures;
(ix) incur any indebtedness for borrowed money or guarantee
any such indebtedness of another Person, issue or sell any debt
securities or warrants or other rights to acquire any debt securities,
or guarantee any debt securities of another Person, except for the
endorsement of checks in the normal course of business and the
extension of credit in the normal course of business, or make any
loans, advances or capital contributions to, or investments in, any
other Person, other than to any direct or indirect wholly-owned
Subsidiary or in accordance with past practice;
(x) except as required under any existing collective
bargaining agreement, enter into or adopt any new, or amend or renew
any existing, Employee Plan, any pension, retirement, profit sharing,
fringe or welfare benefit plan, policy, agreement or arrangement or any
collective bargaining agreement, other than as required by law;
(xi) except to the extent required by any existing collective
bargaining agreement or by the terms of written employment agreements
as in effect on the date of this Agreement, (A) increase the
compensation payable to or to become payable
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to, or pension or other fringe benefits or perquisites to its present
or former directors, employees, officers or consultants, except for
increases in the ordinary course of business consistent with past
practice in salaries or wages of present employees who are not
executive officers of the Company or any of its Subsidiaries, or (B)
accelerate the vesting, funding or payment of any compensation payment
or benefit;
(xii) enter into any contracts of employment (other than
contracts terminable by the Company without liability immediately
following the Closing) or any severance, retention, consulting, change
in control or similar agreement except for agreements with new
employees entered into in the ordinary course of business and providing
for annual base and bonus compensation not to exceed $250,000;
(xiii) adopt any change, other than as required by the SEC,
changes in U.S. generally accepted accounting principles or applicable
law, in its accounting policies, procedures or practices;
(xiv) (A) make any Tax election, (B) settle or compromise any
material income Tax liability or (C) change any of its methods of
reporting material items of income and deductions for Tax purposes from
those employed in the preparation of the Tax Returns of the Company for
the taxable years ending March 31,1999 and March 31, 2000, except as
required by changes in law or regulation;
(xv) pay, discharge, settle or satisfy any claims, litigation,
arbitration, liabilities or other controversies (absolute, accrued,
asserted or unasserted, contingent or otherwise), other than the
payment, discharge or satisfaction, in the ordinary course of business
consistent with past practice or in accordance with their terms, of
liabilities reflected or reserved against in, or contemplated by, the
most recent consolidated financial statements (or the notes thereto)
included in the Company SEC Reports or incurred in the ordinary course
of business consistent with past practice, or waive any material
benefits of, or agree to modify in any material respect, any
confidentiality, standstill or similar agreements to which the Company
or any of its Subsidiaries is a party;
(xvi) (A) notwithstanding clause (B) of this Section
6.01(b)(xvi) or any other provision of this Section 6.01(b), enter into
or terminate any contract, agreement, or arrangement providing for the
distribution by third parties of the Company's products in Germany or
Japan or distribution of products of third parties by the Company,
whether such agreement is characterized as an agency, commission or
distribution agreement, or (B) except in the ordinary course of
business or as otherwise permitted by this Section 6.01(b), (x) enter
into any material lease, contract or agreement, (y) modify, amend or
terminate any material lease, contract or agreement to which the
Company or any of its Subsidiaries is a party, or (z) waive, release or
assign any material rights or claims;
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(xvii) permit any material insurance policy naming the Company
or any Subsidiary as a beneficiary or loss payable payee to be canceled
or terminated;
(xviii) take, or agree to take, any action that would
materially impair the ability of the Company, Parent or Purchaser to
consummate the Offer or the Merger in accordance with the terms hereof
or materially delay such consummation; or
(xix) agree or commit to do any of the foregoing.
(c) From and after the date hereof until the Effective Time, the
Company shall (i) provide reasonable prior notice to the Parent of any proposed
meeting, contact or communication, written or oral, with the Federal Drug
Administration (the "FDA") or any other competent regulatory authority having
jurisdiction over the Company's products, including, without limitation, any
application or monograph with respect to the product "BC" or "Sensodyne," (ii)
provide the Parent with a copy of any proposed written communication with the
FDA or any other such authority, and (iii) at the request of the Parent, allow
representatives of the Parent to participate in any such meeting, contact or
communication, or in the case of any written communication, review and comment
on such communication.
SECTION 6.02 OTHER ACTIONS. The Company, Parent and Purchaser shall
not, and shall not permit any of their respective Subsidiaries to, take any
action that would, or that could reasonably be expected to, result in (i) any of
their respective representations and warranties set forth in this Agreement that
are qualified as to materiality becoming untrue, (ii) any of such
representations and warranties that are not so qualified becoming untrue so as
to have, individually or in the aggregate, a Material Adverse Effect or (iii)
any of the conditions to the Offer set forth in ANNEX A or to the Merger set
forth in Article 7 not being satisfied (subject to the Company's right to take
action specifically permitted by Section 6.05).
SECTION 6.03 SHAREHOLDER MEETING; PROXY MATERIAL; MERGER WITHOUT
SHAREHOLDER MEETING. (a) If required by applicable law to consummate the Merger,
the Company shall cause a meeting of its shareholders (the "COMPANY SHAREHOLDER
MEETING"), to be duly called and held as soon as practicable following the date
on which the Purchaser completes the purchase of shares of Company Common Stock
pursuant to the Offer (the "OFFER COMPLETION DATE"), for the purpose of voting
on the approval and adoption of this Agreement and the Merger. At the Company
Shareholder Meeting, Parent shall cause all of the shares of Company Common
Stock then actually or beneficially owned by Parent, Purchaser or any of their
Subsidiaries to be voted in favor of the Merger. Notwithstanding the foregoing,
if Purchaser or any other subsidiary of Parent shall acquire at least ninety
percent (90%) of the outstanding shares of the Class A Stock and ninety percent
(90%) of the outstanding shares of Class B Stock, the parties shall, at the
request of Parent, take all necessary and appropriate action to cause the Merger
to become effective as soon as practicable after the expiration of the Offer
without a Company Shareholder Meeting in accordance with Section 14A:10-5.1 of
the NJBCA.
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(b) The Company will, if required and at Parent's request, as soon as
practicable following the expiration of the Offer, prepare and file a
preliminary Proxy Statement with the SEC and will use its reasonable best
efforts to respond to any comments of the SEC or its staff and to cause the
Proxy Statement to be mailed to the Company's shareholders as promptly as
practicable after responding to all such comments to the satisfaction of the
staff. The Company shall give Parent and its counsel the opportunity to review
the Proxy Statement and all amendments and supplements thereto, prior to their
being filed with the SEC. The Company will notify Parent promptly of the receipt
of any comments from the SEC or its staff and of any request by the SEC or its
staff for amendments or supplements to the Proxy Statement or for additional
information and will supply Parent with copies of all correspondence between the
Company or any of its representatives, on the one hand, and the SEC or its
staff, on the other hand, with respect to the Proxy Statement or the Merger. If
at any time prior to the Company Shareholder Meeting there shall occur any event
that should be set forth in an amendment or supplement to the Proxy Statement,
the Company will promptly prepare and mail to its shareholders such an amendment
or supplement. The Company will not mail any Proxy Statement, or any amendment
or supplement thereto, to which Parent reasonably objects.
SECTION 6.04 ACCESS TO INFORMATION. (a) From the date hereof until the
Effective Time and subject to applicable law the Company shall and shall cause
its Subsidiaries to (i) give Parent, its officers, employees, counsel, financial
advisors, auditors and other authorized representatives access to the offices,
properties, books and records of the Company and its Subsidiaries, (ii) furnish
to Parent, its officers, employees, counsel, financial advisors, auditors and
other authorized representatives (A) such financial and operating data and other
information as such Persons may reasonably request (B) a copy of each report,
schedule, registration statement and other document filed or received during
such period pursuant to the requirements of federal, state, local and foreign
securities laws and (iii) instruct the employees, counsel, financial advisors,
auditors and other authorized representatives of the Company and its
Subsidiaries to cooperate with Parent in its investigation of the Company and
its Subsidiaries. Any investigation pursuant to this section shall be conducted
upon reasonable notice to the Company, during regular business hours and in such
manner as not to interfere unreasonably with the conduct of the business of the
Company and its Subsidiaries.
(b) Except as required by law, Parent will hold, and will cause its
officers, directors, employees, accountants, counsel, consultant, advisors and
agents to hold, in confidence all documents and information concerning the
Company or any of its Subsidiaries furnished to Parent or its affiliates in
connection with the transactions contemplated by this Agreement to the extent
required by and in accordance with the terms of the Confidentiality Agreement
dated July 7, 2000 between the Company and Parent (the "CONFIDENTIALITY
AGREEMENT").
SECTION 6.05 NO SOLICITATION; OTHER OFFERS. (a) The Company shall not,
and shall not permit any of its Subsidiaries to, and shall use its best efforts
to ensure that its officers, directors or employees, or any investment bankers,
consultants or other agents retained by it or any of its Subsidiaries do not
solicit, initiate, encourage the submission of any Acquisition Proposal or
engage
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in discussions or negotiations or furnish to any Person any information with
respect to an Acquisition Proposal or knowingly facilitate any effort or attempt
to make an Acquisition Proposal. The Company will notify Parent within 48 hours
of receipt by the Company of any Acquisition Proposal or any request for
nonpublic information relating to the Company or any of its Subsidiaries by any
Person who, to the knowledge of the Company, is making or considering making or
who has made, an Acquisition Proposal. The Company shall provide such notice
orally and in writing including the terms and conditions of any such Acquisition
Proposal or request. The Company shall, and shall cause its Subsidiaries and the
directors, employees and other agents of the Company and its Subsidiaries to,
cease immediately and cause to be terminated all activities, discussions and
negotiations, if any, with any Persons conducted prior to the date hereof with
respect to any Acquisition Proposal and, to the extent within its power, to
recover or cause to be destroyed all information concerning the Company and its
Subsidiaries in the possession of such Persons and their affiliates,
representatives and advisors. Nothing contained in this Agreement shall prevent
the Board of Directors of the Company from complying with Rule 14d-9 or Rule
14e-2 under the Exchange Act with respect to any Acquisition Proposal or making
any disclosure to the Company's shareholders if, in the good faith judgment of
the majority of the disinterested members of the Board of Directors of the
Company, failure to so disclose would be inconsistent with applicable law.
(b) Notwithstanding the first sentence of Section 6.05(a), the Company
may negotiate or otherwise engage in substantive discussions with, and furnish
nonpublic information to, any Person in response to an unsolicited Acquisition
Proposal by such Person if (i) the Company has complied with the terms of this
Section 6.05, (ii) a majority of the Board of Directors of the Company
reasonably determines in good faith that such Acquisition Proposal could
reasonably be expected to result in a Superior Proposal and, after consultation
with outside legal counsel, that the failure to take such action could
reasonably be deemed to constitute a breach of its fiduciary duties under
applicable law, and (iii) such Person executes a confidentiality agreement in
substantially the form of the Confidentiality Agreement (including the
standstill provisions).
(c) Except as permitted by the second sentence of this Section 6.05(c),
neither the Board of Directors of the Company nor any committee thereof shall
(i) withdraw or modify, or publicly propose to withdraw or modify, in a manner
adverse to Parent, or take any action not explicitly permitted by this Agreement
that would be inconsistent with its approval of the Offer and the Merger, (ii)
approve or recommend, or publicly propose to approve or recommend, any
Acquisition Proposal or (iii) cause the Company to enter into any letter of
intent, agreement in principle, acquisition agreement or similar agreement
related to any Acquisition Proposal. The Board of Directors of the Company shall
be permitted (i) not to recommend to its shareholders acceptance of the Offer
and/or approval and adoption of this Agreement and the Merger, (ii) to withdraw,
or modify in a manner adverse to Parent, its recommendation to its shareholders
referred to in Section 1.02 hereof, (iii) approve or recommend any Superior
Proposal or (iv) terminate this Agreement and in connection therewith enter into
an agreement with respect to such Superior Proposal, but only if (w) the Company
has complied with the terms of this Section 6.05, (x) the Company has received
an Acquisition Proposal which the Board of Directors determines in good faith
constitutes a Superior Proposal, (y) the Board of Directors of the Company
determines in good
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faith, after consultation with outside legal counsel, that the failure to take
such action could reasonably be deemed to be inconsistent with its fiduciary
duties under applicable law, and (z) no such action is taken earlier than the
third full Business Day following Parent's receipt of written notice of the
intention of the Company's Board of Directors to do so.
(d) For purposes of this Agreement:
"ACQUISITION PROPOSAL" means any offer or proposal for a
merger, reorganization, consolidation, share exchange, business
combination, or other similar transaction involving the Company or any
of its Subsidiaries or any proposal or offer to acquire, directly or
indirectly, securities representing more than 51% of the voting power of
the Company, or all or substantially all of the assets of the Company
and its Subsidiaries taken as a whole, other than the Offer and the
Merger contemplated by this Agreement.
"SUPERIOR PROPOSAL" means any bona fide written Acquisition
Proposal which (i) the Board of Directors of the Company determines in
good faith (after consultation with a financial advisor of nationally
recognized reputation and taking into account all the terms and
conditions of the Acquisition Proposal) is more favorable to the
Company's shareholders (in their capacities as shareholders) from a
financial point of view than the Offer and Merger; and (ii) any
conditions to such Acquisition Proposal are reasonably capable of being
satisfied promptly, including a conclusion that financing for such
Acquisition Proposal, to the extent required, is then committed or is in
the good faith judgment of the Board of Directors of the Company,
reasonably available to the Person making such Acquisition Proposal.
SECTION 6.06 BEST EFFORTS; NOTIFICATION. (a) Upon the terms and subject
to the conditions set forth in this Agreement, each of the parties agrees to use
their best efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, and to assist and cooperate with the other parties in doing,
all things necessary, proper or advisable to consummate and make effective, in
the most expeditious manner practicable, the Offer and the Merger and the other
transactions contemplated by this Agreement, including (i) the obtaining of all
necessary actions or nonactions, waivers, consents and approvals from
Governmental Entities and the making of all necessary registrations and filings
(including filings with Governmental Entities, if any) and the taking of all
steps (subject to Section 6.06(g)) as may be necessary to avoid an action or
proceeding by any Governmental Entity and for the avoidance of doubt, this shall
include an obligation on Parent and Purchaser to use their best efforts to
submit all necessary commitments, including commitments to divest, to any
Governmental Entity, save that Parent and Purchaser's obligation to use their
best efforts to submit all necessary commitments (as described in this Section
6.06(a)) shall not extend to the submission of a commitment which would
constitute an Unduly Burdensome Commitment or the acceptance of an Unduly
Burdensome Condition, (ii) the obtaining of all necessary consents, approvals or
waivers from third parties, (iii) the defending of any lawsuits or other legal
proceedings, whether judicial or administrative, challenging this Agreement or
the consummation of the
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transactions contemplated hereby, including, without limitation, seeking to
have any stay or temporary restraining order entered by any court or other
Governmental Entity vacated or reversed and (iv) the execution and delivery
of any additional instruments necessary to consummate the transactions
contemplated by, and to fully carry out the purposes of, this Agreement. In
connection with and without limiting the foregoing, the Company and its Board
of Directors shall, if any state takeover statute or similar statute or
regulation is or becomes applicable to the Offer, the Merger, this Agreement
or the other transactions contemplated by this Agreement, use their best
efforts to ensure that the Offer, the Merger and the other transactions
contemplated by this Agreement may be consummated as promptly as practicable
on the terms contemplated by this Agreement and otherwise to minimize the
effect of such statute or regulation on the Offer, the Merger and the other
transactions contemplated by this Agreement. Nothing herein shall limit or
affect the Company's taking actions specifically permitted by Section 6.05(b)
and (c).
(b) In furtherance and without limiting the above provisions, each of
the Company and Parent shall, as promptly as practicable following the execution
and delivery of this Agreement, (i) file with the United States Federal Trade
Commission (the "FTC") and the United States Department of Justice (the "DOJ")
the notification and report required by the HSR Act (but in no event later than
ten (10) Business Days after the date of this Agreement), (ii) file with the
European Commission under the EC Merger Regulation, the notification required by
the EC Merger Regulation (but in no event more than twenty eight (28) days after
the date of this Agreement) and (iii) file with the relevant Governmental
Entities in other jurisdictions, all other antitrust filings, if any, required
for consummation of the transactions contemplated hereby under any applicable
laws and regulations and, in each case, any supplemental information requested
in connection therewith pursuant to the HSR Act and the EC Merger Regulation or
such other laws or regulations. Any such notification and report form and
supplemental information shall be in substantial compliance with the
requirements of the HSR Act, the EC Merger Regulation and other relevant law or
regulation. Each of the Company and Parent shall furnish to the other such
necessary information and reasonable assistance as the other may request in
connection with its preparation of any filing or submission which is necessary
under the HSR Act, the EC Merger Regulation and other relevant law or
regulation. The Company and Parent shall keep each other apprised of the status
of any communications with, and any inquiries or requests for additional
information from, the FTC, the DOJ, the European Commission or any other
Governmental Entity, and shall comply promptly with any such inquiry or request.
Each of Parent and the Company shall use its best efforts and take all other
actions necessary to cause the expiration or termination of the applicable
waiting periods under the HSR Act and other applicable law or regulation and the
clearance decision under the EC Merger Regulation and other applicable law or
regulation as soon as practicable, and to provide assistance to the other in any
antitrust proceedings related to, the consummation of the transactions
contemplated by this Agreement.
(c) Subject to the terms and conditions of this Agreement, in
furtherance and not in limitation of the covenants of the parties contained in
Sections 6.06(a) and 6.06(b), if any administrative or judicial action or
proceeding, including any proceeding by a private party, is instituted (or
threatened to be instituted) challenging any transaction contemplated by this
Agreement
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as violative of any applicable law, each of the parties shall cooperate in all
respects with each other and use its respective best efforts in order to contest
and resist any such action or proceeding and to have vacated, lifted, reversed
or overturned any decree, judgment, injunction or other order, whether
temporary, preliminary or permanent, that is in effect and that prohibits,
prevents or restricts consummation of the transactions contemplated by this
Agreement.
(d) If any objections are asserted with respect to the transactions
contemplated hereby under any applicable law or if any suit is instituted by any
Governmental Entity or any private party challenging any of the transactions
contemplated hereby as violative of any applicable law, each of the Company and
Parent shall use its best efforts to resolve any such objections or challenge
such Governmental Entity or private party may have to such transactions so as to
permit consummation of the transactions contemplated by this Agreement.
(e) Parent and Purchaser, on the one hand, and the Company, on the
other hand, each hereby agrees promptly to provide such information necessary to
the preparation of the Offer Documents and the Schedule 14D-1, respectively,
which the respective party responsible therefor shall reasonably request.
(f) The existence of the conditions set forth in Section 7.01 and
clauses (a) and (b) of ANNEX A shall not limit or diminish Parent's or
Purchaser's obligations pursuant to this Section 6.06 or relieve Parent or
Purchaser of any liability or damages that may result from its breach of its
obligations under this Section 6.06.
(g) Nothing in this Section 6.06 or elsewhere in this Agreement shall
require Purchaser or Parent to agree to any Unduly Burdensome Condition or to
submit any Unduly Burdensome Commitment to any Governmental Entity in order to
secure any approval from, or in order to resolve any objection or challenge that
may be asserted by the FTC, the DOJ, the EC, any other Governmental Entity or
any private party with respect to the Offer, the Merger or any of the other
transactions contemplated hereby. For purposes of this Agreement "Unduly
Burdensome Condition" and "Unduly Burdensome Commitment" shall mean (i) the
imposition of conditions or the submission of commitments to any Governmental
Entity or (ii) the requirement of divestitures or the submission of commitments
to any Governmental Entity involving the making of divestitures that, in the
case of clauses (i) and (ii), would, individually or in the aggregate, if
offered or complied with, be reasonably likely to have a Material Adverse Effect
on the Company or a Material Adverse Effect on the Parent; PROVIDED, HOWEVER,
for the avoidance of doubt, it is agreed by the Company and the Parent that any
conditions or requirements for divestitures or the commitments submitted to any
Governmental Entity including commitments to make divestitures that would,
individually or in the aggregate, had the same been in effect or have been
completed by, or complied with from and after the beginning of the most recently
concluded fiscal year of the Company or the Parent, as the case may be,
reasonably be expected to have resulted in a reduction of U.S. $30 million or
more (at currency rates used by the Company in preparing its financial
statements for the fiscal year ended March 31, 2000) in net sales of the Company
and its consolidated Subsidiaries or the Parent and its consolidated
Subsidiaries, in each case for the most recently concluded fiscal year of the
Company
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and its consolidated Subsidiaries or the Parent and its consolidated
Subsidiaries, as the case may be, from the net sales of the Company and its
consolidated Subsidiaries, or the Parent and its consolidated Subsidiaries, as
the case may be, as reported in the financial statements of the Company and its
consolidated Subsidiaries, or the Parent and its Subsidiaries, as the case may
be, would constitute an Unduly Burdensome Condition or Unduly Burdensome
Commitment. For the avoidance of doubt, it is also agreed by the Company and the
Parent that any conditions or requirement for divestitures that would, for or by
the Company, the Parent and their respective Subsidiaries in the aggregate, had
the same been in effect or have been completed by, or complied with from and
after the beginning of the most recently concluded fiscal year of the Company or
the Parent, as the case may be, reasonably be expected to have resulted in a
reduction of less than U.S. $30 million (at currency rates used by the Company
in preparing its financial statements for the fiscal year ended March 31, 2000)
in net sales of the Company and its consolidated Subsidiaries or the Parent and
its consolidated Subsidiaries, in each case for the most recently concluded
fiscal year of the Company and its consolidated Subsidiaries or the Parent and
its consolidated Subsidiaries, as the case may be, from the net sales of the
Company and its consolidated Subsidiaries, or the Parent and its consolidated
Subsidiaries, as the case may be, as reported in the financial statements of the
Company and its consolidated Subsidiaries, or the Parent and its Subsidiaries,
as the case may be, would not constitute an Unduly Burdensome Condition or an
Unduly Burdensome Commitment.
SECTION 6.07 INDEMNIFICATION AND INSURANCE. (a) The Company shall (to
the fullest extent permitted by the NJBCA and regardless of whether the Merger
becomes effective), and after the Effective Time, the Parent shall cause the
Surviving Corporation to (to the fullest extent permitted by the NJBCA and
subject to Section 6.07(d)), indemnify, defend and hold harmless each Corporate
Agent against all reasonable costs, disbursements and attorneys' fees, and any
and all amounts in satisfaction of settlements, judgments, fines and penalties,
incurred or suffered by such Corporate Agent in connection with any civil,
criminal or arbitrative, suit, action, proceeding or investigation by reason of
his or her being or having been such a Corporate Agent prior to and including
the Effective Time (including but not limited to the transactions contemplated
by this Agreement). The Company's obligation under this Section 6.07(a) shall
continue for a period of six years following the Effective Time; provided,
however, that if any claims is asserted or any situation, proceeding or
investigation commenced within such six-year period, all rights to
indemnification with respect thereto shall continue until the final disposition
thereof, including appeals as used herein.
(i) "CORPORATE AGENT" shall mean any person who is or was at any time
prior to and including the Effective Time (A) a director, officer, employee or
agent of the Company, or (B) a director, officer, trustee, employee or agent of
any Other Enterprise, serving as such at the request of the Company, or the
legal representatives of any such director, officer, trustee, employee or agent.
(ii) "INDEMNIFIED PARTY" shall mean individually, and "INDEMNIFIED
PARTIES" shall mean collectively, the person or persons entitled to be
indemnified, defended and held harmless under this Section 6.07 or the legal
representative of such person or persons.
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(iii) "OTHER ENTERPRISE" shall mean any domestic or foreign
corporation, other than the Company, and any partnership, joint venture, sole
proprietorship, trust, or other enterprise (including any employee benefit
plan), whether or not for profit, served by a Corporate Agent.
(b) Parent and Purchaser agree that all rights to indemnification
existing in favor of the Indemnified Parties of the Company or any of its
Subsidiaries as provided in the Certificate of Incorporation and Bylaws of the
Surviving Corporation and its Subsidiaries as in effect as of the date hereof
with respect to matters occurring prior to the Effective Time shall survive the
Merger and shall continue in full force and effect for a period of not less than
the statutes of limitations applicable to such matters, and Parent agrees to
cause the Surviving Corporation to comply fully with its obligations hereunder
and thereunder. The Certificate of Incorporation and Bylaws of the Surviving
Corporation shall not be amended, repealed or otherwise modified and shall
contain indemnification and exculpation provisions which are no less favorable
to the Indemnified Parties than those provisions contained in the Company's
certificate of incorporation and bylaws as in effect immediately prior to the
date of this Agreement in any manner adverse to persons who, as of the date
hereof, are Indemnified Parties, without the prior written consent of such
persons, for a period of six years from and after the Effective Time.
(c) For six years after the Effective Time, Parent shall maintain, or
cause the Surviving Corporation to maintain, policies of directors and officers'
liability insurance comparable to those currently maintained by the Company for
the benefit of persons currently covered by the Company's directors' and
officers' liability insurance policies with respect to matters occurring prior
to the Effective Time (except to the extent any provisions in such insurance are
no longer generally available in the market), provided that in no event shall
the Surviving Corporation be required in order to maintain such directors' and
officers' liability insurance policies to expend in any one year an amount in
excess of 200% of the aggregate annual premiums currently paid by the Company
for such insurance (the Company represents that the annual premium is currently
approximately $94,000), and provided further, that if the annual premiums of
such insurance coverage exceed such amount, the Surviving Corporation shall only
be obligated to obtain as much coverage as can be obtained for a cost not
exceeding such amount.
(d) In the event of any suit, action, proceeding or investigation
referred to in Section 6.07(a) above, (i) the Company or the Surviving
Corporation, as applicable, shall pay the reasonable fees and expenses of
counsel selected by the Indemnified Parties, which counsel shall be reasonably
satisfactory to the Company or the Surviving Corporation; provided, however,
that neither the Company nor the Surviving Corporation shall be obligated
pursuant to this Section 6.07(d) to pay the fees and disbursements of more than
one counsel for all Indemnified Parties in any single action except to the
extent that, in the opinion of counsel for the Indemnified Parties, two or more
of such Indemnified Parties have conflicting interests in the outcome of such
action, and (ii) the Company and the Surviving Corporation will cooperate in the
defense of any such matter; provided, however, that neither the Company nor the
surviving Corporation shall be liable for any settlement effected without its
written consent (which consent shall not be unreasonably withheld).
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(e) In the event Parent, the Surviving Corporation or any of their
successors or assigns merges into any other person and shall not be the
continuing or surviving corporation or entity of such consolidation or merger or
transfers all or substantially all of its properties and assets to any person,
then and in each such case, proper provisions shall be made so that the
successors and assigns of Parent or the Surviving Corporation, as the case may
be, shall assume the obligations set forth in this Section 6.07. In the event
the Surviving Corporation transfers any material portion of its assets, in a
single transaction or in a series of transactions, Parent will either guarantee
the indemnification obligations referred to in Section 6.07(a) or take such
other action to ensure that the ability of the Surviving Corporation to satisfy
such indemnification obligations will not be diminished in any material respect.
(f) This Section 6.07 shall survive the consummation of the Merger at
the Effective Time, is intended to benefit the Company, Parent, the Surviving
Corporation and the Indemnified Parties, and shall be binding on all successors
and assigns of Parent and the Surviving Corporation.
SECTION 6.08 EMPLOYEE BENEFITS. (a) For at least two years from and
after the Effective Time, Parent shall provide or cause to be provided to the
individuals who, immediately prior to the Effective Time, are employed by the
Company or any Subsidiary ("Company Employees") compensation opportunities
(consisting of base pay, commissions, bonus opportunities) and employee benefits
that are comparable, in the aggregate, to the compensation and the benefits
(exclusive of any such compensation and benefits consisting of or based on any
equity securities) provided under the Employee Plans by the Company and its
Subsidiaries to Company Employees immediately prior to the Effective Time in the
ordinary course of business and not in contemplation of the transactions
contemplated by this Agreement. The preceding sentence shall not preclude the
Parent or the Surviving Entity or its Subsidiaries at any time following the
Effective Time from terminating the employment of any Company Employee and
shall, subject to the provisions of any Employee Plan, require such compensation
opportunities to be continued to any such Company Employee only during his or
her period of employment, so long as any such terminated employee receives
severance and other termination benefits upon or in connection with such
termination in an amount which is at least equal to the severance and other
termination benefits which would have been provided to such employee if his or
her employment had been terminated for the same reason immediately prior to the
Effective Time (determined with regard to the applicable severance and other
policies of the Company and its Subsidiaries described on Section 6.08(a) of the
Company Disclosure Memorandum). Nothing contained herein shall be construed to
limit, the rights and obligations of the Company, any Subsidiary of the Company
and any current or former employee or other personnel (and where applicable, the
dependents and beneficiaries of any such employees or other personnel) under,
each Employee Plan.
(b) Each Company Employee shall be given full credit for all
service with the Company and its Subsidiaries and their respective predecessors
under any plans or arrangements providing vacation, sick pay, severance,
retirement, pension or retiree welfare benefits maintained by Parent or the
Surviving Corporation or any of their respective affiliates in which such
Company
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Employees participate for all purposes that such service was recognized under
any similar Employee Plan or other plan or arrangement in effect immediately
prior to the Effective Time (other than for benefit accrual purposes); provided,
however, that any benefit provided under such plans and arrangements maintained
by Parent or the Surviving Corporation or any of their respective affiliates in
respect of any period of service prior to the Effective Time may be reduced in
amount by the benefit accrued by such Company Employee under any similar
Employee Plan in respect of the same period of service.
(c) In the event of any change in the welfare benefits provided to
Company Employees following the Effective Time that become effective in the plan
year that includes the Effective Time, Parent shall or shall cause the Surviving
Corporation to (i) waive all limitations as to pre-existing conditions,
exclusions and waiting periods with respect to participation and coverage
requirements applicable to the Company Employees under any such welfare benefits
to the extent that such conditions, exclusions or waiting periods would not
apply in the absence of such change and (ii) credit each Company Employee with
any co-payments and deductibles paid prior to any such change in satisfying any
applicable deductible or out-of-pocket requirements after such change for the
relevant plan year.
(d) Without limiting any of its other obligations hereunder, Parent
shall cause all of the individual agreements listed in Section 4.08(1)(A) and
(B) of the Company Disclosure Memorandum to be honored in accordance with their
terms and shall assume the obligations of the Company and its Subsidiaries
thereunder. If Parent elects to terminate or cause the termination of the
Company's Employee Scholarship Program, then Parent shall honor the commitments
made under the Program with respect to the remaining period of the covered
education of those individuals who are affected by such termination.
(e) Company and Parent shall give each other such assistance as either
may reasonably require in order to ensure compliance prior to the Effective Time
with any applicable law relating to any transfer of Company Employees to Parent,
including, without limitation, any collective consultation, information
provision or other statutory obligations and requirements.
(f) The Contracts (Rights of Third Parties) Act 1999 will not apply to
this Section 6.08.
SECTION 6.09 PUBLIC ANNOUNCEMENTS. Parent and the Company will consult
with each other before issuing any press release or making any public statement
(including any broadly issued statement or announcement to employees) with
respect to this Agreement or the transactions contemplated hereby and, except as
may be required by applicable law or any listing agreement with any national
securities exchange, will not issue any such press release or make any such
public statement without the prior consent of the other (which consent shall not
be unreasonably withheld).
SECTION 6.10 FURTHER ASSURANCES. At and after the Effective Time, the
officers and directors of the Surviving Corporation will be authorized to
execute and deliver, in the name and on
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behalf of the Company or Purchaser, any deeds, bills of sale, assignments or
assurances and to take and do, in the name and on behalf of the Company or
Purchaser, any other actions and things to vest, perfect or confirm of record or
otherwise in the Surviving Corporation any and all right, title and interest in,
to and under any of the rights, properties or assets of the Company acquired or
to be acquired by the Surviving Corporation as a result of, or in connection
with, the Merger.
SECTION 6.11 NOTICES OF CERTAIN EVENTS. Each of the Company and Parent
shall promptly notify the other of:
(a) any representation or warranty made by it contained in this
Agreement (disregarding all qualifications and exceptions contained therein
relating to materiality or Material Adverse Effect or any similar standard or
qualification) which becomes untrue or incorrect in any respect that
individually or in the aggregate (when taken together with all other
representations and warranties that are untrue or incorrect) has had or would be
reasonably expected to have a Material Adverse Effect;
(b) the failure by it to perform, or comply with, in any material
respect any of its obligations, covenants, or agreements contained in this
Agreement and such failure, either individually or in the aggregate, has had or
would reasonably be expected to have a Material Adverse Effect;
(c) the Company obtaining knowledge of a material breach by Parent, or
Parent obtaining knowledge of a material breach by the Company, of their
respective representations, warranties or covenants hereunder of which the
breaching party has not already given notice pursuant to clauses (a) or (b)
above;
(d) any notice or other communication from any Person alleging that the
consent of such Person is or may be required in connection with the transactions
contemplated by this Agreement;
(e) any notice or other communication from any Governmental Entity in
connection with the transactions contemplated by this Agreement;
(f) any actions, suits, claims, investigations, orders, decrees,
complaints or proceedings commenced or, to its knowledge, threatened against,
relating to or involving or otherwise affecting the Company, Parent or any of
their respective Subsidiaries that relate to the consummation of the
transactions contemplated by this Agreement; or
(g) the occurrence of any other event which would reasonably be likely
to have a Material Adverse Effect on the Company or cause any condition set
forth in ANNEX A hereto to be unsatisfied in any material respect at any time
prior to consummation of the Offer;
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provided, however, that the delivery of any notice pursuant to this Section 6.11
shall not limit or otherwise affect the remedies available hereunder to the
party receiving such notice.
SECTION 6.12 ISRA PROCEDURES.
(a) At its own cost and expense, the Company shall comply with all
obligations pursuant to ISRA resulting from the transactions contemplated by
this Agreement required to be complied with prior to the Effective Time. At the
Company's option, Company may seek a determination from NJDEP that compliance
with ISRA is not required by reason of the transactions contemplated by this
Agreement, in the form of an application for a letter of ISRA nonapplicability
or deferral (an "LNA") for each facility or place of business in New Jersey
owned or operated by the Company. If NJDEP approves an LNA for any site, the LNA
shall fulfill any liability of the Company for compliance with the provisions of
this Agreement to ISRA for such site (a "SITE"). If an LNA is denied for any
Site or the Company elects not to seek an LNA for any Site, then the Company
shall seek and make all filings necessary to obtain prior to Closing NJDEP
approval of a remediation agreement (as the term is used in ISRA) with respect
to such Site (a "REMEDIATION AGREEMENT"). The terms of any Remediation Agreement
entered into for a Site shall obligate the Company after the Effective Time to
satisfy the requirements of ISRA triggered by the Merger, and otherwise to
investigate and remediate the Site. NJDEP and the Company shall sign any such
Remediation Agreement prior to the Effective Time, and the Company will provide
or commit to provide any required remediation funding source. The Company shall
provide Purchaser with drafts of all submissions to NJDEP regarding ISRA
exemption or compliance at least three (3) business days in advance of
submission to NJDEP for review and approval by Parent or its designee, which
approval shall not be unreasonably withheld. From time to time, at the Company's
request, the Purchaser and the Parent shall execute such documents and take all
other lawful action as the Company may reasonably request to assist the Company
in obtaining an LNA or a Remediation Agreement as contemplated hereby.
(b) Purchaser expressly waives any and all rights under ISRA and the
Solid Waste Management Act to void this Agreement and/or any of the transactions
contemplated hereby on, before or after the Effective Time. Further, in no event
shall any officer, director, shareholder or employee of the Company have any
liability to Parent, Purchaser or the Company for the costs of compliance with
ISRA or any Remediation Agreement.
(c) As used herein,
(i) "ISRA" means collectively, New Jersey's Industrial Site
Recovery Act, N.J.S.A. ss.13:1K-6 ET SEQ. and the Brownfield and
Contaminated Site Remediation Act f/k/a the Hazardous Discharge Site
Remediation Site Act, N.J.S.A. ss.58:10B-1 ET SEQ., both as amended,
and all applicable regulations, orders or directives adopted thereunder
or pertaining thereto.
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(ii) "NJDEP" means the New Jersey Department of Environmental
Protection, and its successors.
(iii) "REMEDIATION AGREEMENT" shall have the meaning ascribed
to it in Section 6.12 of this Agreement.
ARTICLE 7
CONDITIONS TO THE MERGER
SECTION 7.01 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The respective
obligations of the Company, Parent and Purchaser to consummate the Merger are
subject to the satisfaction or waiver of the following conditions:
(a) Purchaser shall have purchased shares of Company Common Stock
pursuant to the Offer; provided that this condition shall be deemed to have been
satisfied with respect to the obligation of Parent and Purchaser to effect the
Merger if Purchaser fails to accept for payment or pay for shares of Company
Common Stock validly tendered and not withdrawn pursuant to the Offer in
violation of the terms of the Offer or of this Agreement;
(b) if required by applicable law, this Agreement shall have been
approved and adopted by the required vote of the shareholders of the Company in
accordance with the NJBCA;
(c) no statute, rule or regulation shall have been enacted, promulgated
or deemed applicable to the Merger by any Governmental Entity which prevents the
consummation of the Merger or makes the consummation of the Merger unlawful, and
no temporary restraining order, preliminary or permanent injunction or other
order issued by any court of competent jurisdiction preventing the consummation
of the Merger shall be in effect; provided, however, that each of the parties
shall have used best efforts (subject to Section 6.06(g)) to prevent the entry
of any such injunction or other order and to appeal as promptly as possible any
injunction or other order that may be entered; and
(d) the HSR/EC Condition shall be satisfied; and
(e) if the Company has not sought and obtained an LNA for any Site,
approval of a Remediation Agreement covering such Site must have been obtained
from NJDEP in the customary form.
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ARTICLE 8
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01 TERMINATION. This Agreement may be terminated, and the
Merger contemplated hereby may be abandoned, at any time prior to the Effective
Time, whether before or after approval of the Merger by the shareholders of the
Company:
(a) by mutual written consent of Parent, Purchaser and the Company;
(b) by either the Company (by action of the Continuing Directors only
following the purchase of shares of Company Common Stock pursuant to the Offer)
or Parent:
(i) if any court or Governmental Entity shall have issued an
order, decree or ruling or taken any other action (which order, decree,
ruling or other action the parties hereto shall use their best efforts
to lift) restraining, enjoining or otherwise prohibiting the Merger and
such order, decree, ruling or other action shall have become final and
nonappealable; or
(ii) if (x) the Offer shall have expired without any Company
Common Stock being purchased therein or (y) Parent or Purchaser shall
not have accepted for payment all Company Common Stock tendered
pursuant to the Offer by June 30, 2001, provided that the right to
terminate this Agreement under this Section 8.01(b)(ii) 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
Parent or Purchaser to purchase the Company Common Stock pursuant to
the Offer on or prior to such date;
(c) by the Company:
(i) if Parent and/or Purchaser fails to commence the Offer as
provided in Section 1.01 hereof; provided, that the Company may not
terminate this Agreement pursuant to this Section 8.01(c)(i) if the
Company is at such time in breach of its obligations under this
Agreement such as to (A) cause a Material Adverse Effect on the Company
or (B) prevent or materially hinder or delay the purchase of the
Company Common Stock pursuant to the Offer or the Merger;
(ii) in connection with entering into a definitive agreement
as permitted by the second sentence of Section 6.05(c), provided (A)
that the relevant Acquisition Proposal is a Superior Proposal, (B) that
the Company has complied with all provisions of Section 6.05, including
the notice provisions therein, and (C) that the Company makes
simultaneous payment of the Termination Fee and Parent Expenses; or
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(iii) if Parent or Purchaser shall have made a material
misrepresentation or have breached in any material respect any of their
respective representations, covenants or other agreements contained in
this Agreement, which breach cannot be or has not been cured, in all
material respects, within 30 days after the giving of written notice to
Parent or Purchaser, as applicable;
(d) by Parent:
(i) if due to an occurrence, not resulting from a breach by
Parent or Purchaser of their obligations hereunder, which makes it
impossible to satisfy any of the conditions set forth in ANNEX A
hereto, Parent or Purchaser shall have failed to commence the Offer on
or prior to ten Business Days following the date of the initial public
announcement of the Offer;
(ii) if prior to the purchase of shares of Company Common
Stock pursuant to the Offer, the Company shall have breached any
representation, warranty, covenant or other agreement contained in this
Agreement which (A) would give rise to the failure of a condition set
forth in paragraph (d) or (e) of ANNEX A hereto and (B) cannot be or
has not been cured, in all material respects, within 30 days after the
giving of written notice to the Company; or
(iii) if, whether or not permitted to do so, (A) the Board of
Directors of the Company shall have withdrawn or modified in a manner
adverse to Parent or Purchaser its approval or recommendation of the
Offer, the Merger or the Agreement, or approved or recommended any
Acquisition Proposal or (B) the Company shall have entered into any
agreement with respect to any Acquisition Proposal, including a
Superior Proposal entered into in accordance with the second sentence
of Section 6.05(c) of this Agreement.
SECTION 8.02 EFFECT OF TERMINATION. In the event of termination of this
Agreement by either the Company or Parent as provided in Section 8.01, this
Agreement shall forthwith become void and have no effect, without any liability
or obligation on the part of Parent, Purchaser or the Company, other than the
provisions of Section 6.04(b), this Section 8.02, Section 8.03, and Article 9
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.
SECTION 8.03 FEES AND EXPENSES. (a) All fees and expenses incurred
in connection with the Offer, the Merger, this Agreement and the transactions
contemplated by this Agreement shall be paid by the party incurring such fees
or expenses, whether or not the Offer or the Merger is consummated.
(b) The Company shall promptly pay, or cause to be paid, to Parent a
fee equal to $25 million (the "TERMINATION FEE"), payable in same day funds, if
this Agreement is terminated (x)
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by Parent or Purchaser pursuant to Section 8.01(d)(iii) at any time after an
Acquisition Proposal has been made to the Company or its shareholders or (y) by
the Company pursuant to Section 8.01(c)(ii).
(c) In addition, whenever a Termination Fee is paid to Parent, the
Company shall promptly reimburse Parent, or cause Parent to be reimbursed, for
all Parent Expenses, up to a maximum of $5 million. For purposes of this
Agreement, the term "PARENT EXPENSES" means all documented reasonable
out-of-pocket expenses incurred by the Parent and its affiliates in connection
with or arising out of the Offer, the Merger, this Agreement and the
transactions contemplated hereby (including, without limitation, amounts paid or
payable to investment bankers, lead banks, dealer-managers and information
agents, fees and expenses of counsel, accountants and consultants, commitment
fees, underwriting fees and all printing and mailing costs), regardless of when
those expenses are incurred.
(d) Any Termination Fee and reimbursement of Parent Expenses shall be
paid by wire transfer of same day funds to an account designated by Parent
within two Business Days after a demand for payment by Parent following
termination of this Agreement, provided that in the event of a termination of
the Agreement under Section 8.01(c)(ii), the Termination Fee and reimbursement
of Parent Expenses shall be paid as therein provided as a condition to the
effectiveness of such termination.
SECTION 8.04 AMENDMENT. This Agreement may be amended by the parties
hereto at any time before or after any required approval of the Merger by the
shareholders of the Company; provided, however, that after any such approval,
there shall be made no amendment that by law requires further approval by such
shareholders without the further approval of such shareholders. This Agreement
may not be amended except by an instrument in writing signed on behalf of each
of the parties hereto.
SECTION 8.05 EXTENSION; WAIVER. At any time prior to the Effective
Time, the parties may (a) extend the time for the performance of any of the
obligations or other acts of the other parties, (b) waive any inaccuracies in
the representations and warranties contained herein or in any document delivered
pursuant hereto on the part of the other parties or (c) subject to the proviso
of Section 8.04, waive compliance with any of the agreements or conditions
contained herein on the part of the other parties. Any agreement on the part of
a party to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party. The failure of any party
to this Agreement to assert any of its rights under this Agreement or otherwise
shall not constitute a waiver of such rights.
SECTION 8.06 PROCEDURE FOR TERMINATION, AMENDMENT, EXTENSION OR WAIVER.
A termination of this Agreement pursuant to Section 8.01, an amendment of this
Agreement pursuant to Section 8.04 or an extension or waiver pursuant to Section
8.05 shall, in order to be effective, require in the case of Parent, Purchaser
or the Company, action by its Board of Directors or the duly authorized designee
of its Board of Directors; provided, however, that in the event that Purchaser's
designees are appointed or elected to the Board of Directors of the Company as
provided in
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Section 1.03, after the acceptance for payment of shares of Company Common Stock
pursuant to the Offer and prior to the Effective Time, the affirmative vote of a
majority of the Continuing Directors of the Company shall be required by the
Company to (i) amend or terminate this Agreement by the Company, (ii) exercise
or waive any of the Company's rights or remedies under this Agreement, (iii)
extend the time for performance of Parent's and Purchaser's respective
obligations under this Agreement, (iv) take any action to amend or otherwise
modify the Company's certificate of incorporation or by-laws or (v) take any
action that would adversely affect the rights of the shareholders of the Company
or the holders of options with respect to the transactions contemplated hereby.
ARTICLE 9
MISCELLANEOUS
SECTION 9.01 NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties contained herein and in any certificate or other
writing delivered pursuant hereto shall not survive the Effective Time or the
termination of this Agreement. This Section 9.01 shall not limit any covenant or
agreement of the parties which by its terms contemplates performance after the
Effective Time.
SECTION 9.02 NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission) and
shall be given,
if to Parent or Purchaser, to:
SmithKline Beecham plc
One New Horizons Court
Brentford, Middlesex TW89EP
England
Attention: General Counsel
Fax: 011-44-208-975-2040
with a copy to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 1004
Attention: James F. Munsell
Fax: (212) 225-3999
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and to:
SB Acquisition Corp.
c/o SmithKline Beecham Corporation
One Franklin Plaza
200 North 16th Street (FP 2360)
Philadelphia, PA 19101
Fax: (215) 751-3935
if to the Company, to:
Block Drug Company, Inc.
257 Cornelison Avenue
Jersey City, New Jersey 07302
Attention: General Counsel
Fax: (201) 333-6124
with a copy (which shall not constitute notice) to:
Fulbright & Jaworski L.L.P.
666 Fifth Avenue
New York, New York 10103
Attention: William Bush, Esq.
Fax: (212) 318-3400
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5 p.m. in the place of
receipt and such day is a Business Day in the place of receipt. Otherwise, any
such notice, request or communication shall be deemed not to have been received
until the next succeeding Business Day in the place of receipt. Rejection or
other refusal to accept or the inability to deliver because of changed address
of which no notice was given shall be deemed to be receipt of the notice as of
the date of such rejection, refusal or inability to deliver.
SECTION 9.03 NO WAIVERS. No failure or delay by any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
SECTION 9.04 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under
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this Agreement without the consent of each other party hereto, except that
Parent or Purchaser may transfer or assign, in whole or from time to time in
part, to one or more of its affiliates, the right to enter into the transactions
contemplated by this Agreement, but no such transfer or assignment will relieve
Parent or Purchaser of its obligations hereunder.
SECTION 9.05 GOVERNING LAW. Except as required by mandatory provisions
of the NJBCA, this Agreement shall be governed by and construed in accordance
with the law of the State of New York, without regard to the conflicts of law
rules of such state.
SECTION 9.06 JURISDICTION. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby shall be brought
exclusively in the United States District Court for the Southern District of New
York, and each of the parties hereby expressly submits to the jurisdiction and
venue of such court (and of the appropriate appellate courts therefrom) in any
such suit, action or proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of the venue of any such suit, action or proceeding in any such court or that
any such suit, action or proceeding brought in any such court has been brought
in an inconvenient forum. Process in any such suit, action or proceeding may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party
agrees that service of process on such party irrevocably consents to the service
of process in any of the aforementioned courts in any such suit, action or
proceeding by the mailing of copies thereof, by registered or certified mail,
postage prepaid, to the address set forth or referred to in Section 9.02, such
service to become effective 10 days after mailing.
SECTION 9.07 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 9.08 COUNTERPARTS; EFFECTIVENESS; BENEFIT. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties hereto.
Except as expressly provided in Section 6.07, no provision of this Agreement is
intended to confer any rights, benefits, remedies, obligations or liabilities
hereunder upon any Person (including any employee of the Company or any of its
Subsidiaries) other than the parties hereto and their respective successors and
assigns. Execution of this Agreement may be made by facsimile signature which,
for all purposes, shall be deemed to be an original signature.
SECTION 9.09 ENTIRE AGREEMENT. This Agreement, the Company Disclosure
Memorandum, the Voting and Tender Agreement and the Confidentiality Agreement
constitute the entire agreement between the parties with respect to the subject
matter of this Agreement and supersede all prior representations, warranties,
agreements and understandings, both oral and written,
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between the parties with respect to the subject matter of this Agreement. No
prior drafts of this Agreement or portions thereof shall be admissible into
evidence in any action, suit or other proceeding involving this Agreement
SECTION 9.10 CAPTIONS. The captions herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof.
SECTION 9.11 SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon such
a determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
SECTION 9.12 SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
or to enforce specifically the performance of the terms and provisions hereof in
any federal court located in the State of New York, in addition to any other
remedy to which they are entitled at law or in equity.
SECTION 9.13 INTERPRETATION. When a reference is made in this Agreement
to an Article or Section, such reference shall be to an Article or Section of
this Agreement unless otherwise indicated. The table of contents to this
Agreement is for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation." The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement. All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant
thereto unless otherwise defined therein. The definitions contained in this
Agreement are applicable to the singular as well as the plural forms of such
terms and to the masculine as well as to the feminine and neuter genders of such
term. Any agreement, instrument or statute defined or referred to herein or in
any agreement or instrument that is referred to herein means such agreement,
instrument or statute as from time to time amended, modified or supplemented,
including (in the case of agreements or instruments) by waiver or consent and
(in the case of statutes) by succession of comparable successor statutes and
references to all attachments thereto and instruments incorporated therein.
References to a Person are also to its permitted successors and assigns. Each of
the parties has participated in the drafting and negotiation of this Agreement.
If an ambiguity or question of intent or interpretation arises, this Agreement
must be construed as if it is drafted by all the parties and no presumption or
burden of
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proof will arise favoring or disfavoring any party by virtue of authorship of
any of the provisions of this Agreement.
SECTION 9.14 COMPANY DISCLOSURE MEMORANDUM. The Company Disclosure
Memorandum referred to in this Agreement is hereby incorporated in this
Agreement and made a part of this Agreement for all purposes as if fully set
forth in this Agreement. Except where reference is made to the Company
Disclosure Memorandum in Article 6, any matter disclosed in all applicable
locations throughout the Company Disclosure Memorandum to the extent that, based
upon a reasonable review of the Company Disclosure Memorandum by someone
familiar with this Agreement, its applicability would be readily apparent. No
disclosure in the Company Disclosure Memorandum shall be deemed to be an
admission or representation as to the materiality of the item so disclosed.
SECTION 9.15 PERSONAL LIABILITY. Neither this Agreement nor any other
document delivered in connection with this Agreement shall create or be deemed
to create or permit any personal liability or obligation on the part of any
officer or director of the Company or any Subsidiary of the Company.
SECTION 9.16 OBLIGATION OF PARENT AND THE COMPANY. Whenever this
Agreement requires Purchaser or another Subsidiary of Parent to take any action,
such requirement shall be deemed to include an undertaking on the part of Parent
to cause Purchaser or such Subsidiary to take such action and a guarantee of the
performance thereof. Whenever this Agreement requires the Surviving Corporation
to take any action, from and after Offer Completion Date, such requirement shall
be deemed to include an undertaking on the part of Parent to cause the Surviving
Corporation to take such action and a guarantee of the performance thereof.
Whenever this Agreement require a Subsidiary of the Company to take any action,
such requirement shall be deemed to include an undertaking on the part of the
Company to cause such Subsidiary to take such action and a guarantee of the
performance thereof.
SECTION 9.17 CERTAIN DEFINITIONS. As used in this Agreement:
(a) The term "AFFILIATE," as applied to any Person, shall mean any
other Person directly or indirectly controlling, controlled by, or under common
control with, that Person; for purposes of this definition, "CONTROL"
(including, with correlative meanings, the terms "controlling," "controlled by,"
"under common control with"), as applied to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of that Person, whether through the ownership of voting
securities, by contract or otherwise.
(b) A Person will be deemed to "BENEFICIALLY" own securities if such
Person would be the beneficial owner of such securities under Rule 13d-3
under the Exchange Act, including securities which such Person has the right
to acquire (whether such right is exercisable immediately or only after the
passage of time).
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(c) The term "BUSINESS DAY" means any day on which commercial banks are
open for business in New York, New York other than a Saturday, a Sunday or a day
observed as a holiday in New York, New York under the laws of the State of New
York or the federal laws of the United States.
(d) The term "EC MERGER REGULATION" shall mean Regulation 4064/899/EC
concerning the control of concentrations between undertakings adopted by the
Council of European Communities on December 21, 1989, as amended.
(e) The term "KNOWLEDGE" or any similar formulation of "KNOWLEDGE"
shall mean, with respect to the Company, the actual knowledge of the Company's
executive officers, and with respect to the Parent, the actual knowledge of the
Parent's executive officers.
(f) The term "PERSON" shall include individuals, corporations,
partnerships, trusts, limited liability companies, associations, unincorporated
organizations, joint ventures, other entities, groups (which term shall include
a "group" as such term is defined in Section 13(d)(3) of the Exchange Act),
labor unions or Governmental Entities.
(g) The term "SIGNIFICANT SUBSIDIARIES" shall include Block Drug
Company (Japan), Inc., Stafford-Miller (Ireland) Limited, Stafford-Miller
Limited (UK), Stafford-Miller Limited - Australian Branch, Block Drug Company,
Inc. - German Branch, Reedco, Inc., Dentco, Inc. Block Drug Company (Canada)
Limited Stafford-Miller Continental, NA-SA (which includes Laboratories
Stafford-Miller S.A.R.L. (France)), Stafford-Miller Industria Ltda. (Brazil) and
Stafford- Miller S.r.l. (Italy).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
SMITHKLINE BEECHAM PLC,
Parent
By: /s/ John B. Ziegler
------------------------------
Name: John B. Ziegler
Title: Attorney-in-Fact
SB ACQUISITION CORP.,
Purchaser
By: /s/ John B. Ziegler
------------------------------
Name: John B. Ziegler
Title: Chairman
BLOCK DRUG COMPANY, INC.
By: /s/ James A. Block
------------------------------
Name: James A. Block
Title: Chairman
<PAGE>
ANNEX A
CONDITIONS TO THE OFFER
Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Agreement and Plan of Merger (the "AGREEMENT") of
which this Annex A is a part. Notwithstanding any other provision of the Offer,
Purchaser shall not be required to accept for payment or, subject to any
applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated
under the Exchange Act (relating to the obligation of Purchaser to pay for or
return tendered shares of Company Common Stock promptly after termination or
withdrawal of the Offer), pay for any tendered shares of Company Common Stock
and (subject to any such rules or regulations) may delay the acceptance for
payment of or the payment for any tendered shares of Company Common Stock and
(except as provided in the Agreement) amend or terminate the Offer if (i) there
are not validly tendered (and not properly withdrawn) prior to the expiration
date for the Offer that number of shares of Company Common Stock which, when
added to any such shares owned by Parent or any of its affiliates, will at least
satisfy the Minimum Condition, (ii) the HSR/EC Condition has not been satisfied
or (iii) at any time on or after the date of the Agreement and before the
expiration date of the Offer, any of the following events shall have occurred
and be continuing:
(a) there shall have been instituted or be pending any action,
suit or proceeding by or on behalf of any Governmental Entity that has a
reasonable likelihood of success (i) challenging or seeking to make illegal,
materially delay or otherwise, directly or indirectly prohibit the making of the
Offer, the acceptance for payment of any Company Common Stock by Parent or
Purchaser, or the consummation of the Merger or (ii) seeking to require
divestiture by Parent or Purchaser of any Company Common Stock; or
(b) there has been any statute, rule, regulation, injunction,
order or decree, enacted, enforced, promulgated, issued or deemed applicable to
the Offer or the Merger, by any Governmental Entity that results in any of the
consequences referred to in clauses (i) or (ii) of paragraph (a) above; or
(c) the Agreement shall have been terminated in accordance
with its terms or any event shall have occurred which gives the Parent or
Purchaser the right to terminate the Agreement or not consummate the Merger; or
(d) (i) any representation or warranty of the Company
contained in the Agreement (disregarding all qualifications and exceptions
contained therein relating to materiality or Material Adverse Effect or any
similar standard or qualification), shall not be true in any respect that,
individually or in the aggregate (when taken together with all other
representations and warranties are not true and correct), has had or would
reasonably be likely to have a Material Adverse Effect on the Company, as of the
date of determination, as if made at and as of such time (except to the extent
that any such representation or warranty, by its terms, is expressly limited to
a specific date, in which case such representation or warranty shall not be true
and correct as of such date), provided that such
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breaches are incapable of being cured or have not been cured prior to the
Initial Expiration Date (or such later date upon which the Offer shall expire in
accordance with Section 1.01(b) of the Agreement); or
(e) the Company shall have failed to perform or comply with,
any of its obligations, covenants or agreements contained in the Agreement, and
such failure, either individually or in the aggregate, has had or would
reasonably be expected to have a Material Adverse Effect on the Company,
provided that such failures to perform are incapable of being cured or have not
been cured prior to the Initial Expiration Date (or such later date upon which
the Offer shall expire in accordance with Section 1.01(b) of the Agreement); or
(f) there shall have occurred (i) any general suspension of
trading in, or limitation on prices for, securities on any national securities
exchange or in the over-the-counter market in the United States (other than a
shortening of trading hours or any coordinated trading halt triggered solely as
a result of a specified increase or decrease in a market index), (ii) a
declaration of a banking moratorium or any suspension of payments in respect of
banks in the United States, (iii) any limitation (whether or not mandatory) by
any governmental entity on, or other event that materially and adversely
affects, the extension of credit by banks or other lending institutions, (iv) a
commencement of a war or armed hostilities or other national or international
calamity directly or indirectly involving the United States or (v) in the case
of any of the foregoing existing at the time of the execution of the Agreement,
a material acceleration or worsening thereof; or
(g) the Board of Directors of the Company or any committee
thereof, (i) shall have withdrawn or modified in a manner adverse to Parent or
Purchaser (including by amendment of the Schedule 14D-9) its approval or
recommendation of the Offer, the Merger or the Agreement or (ii) shall have
resolved to do any of the foregoing;
(h) the Company or any of its Subsidiaries (or the Board of
Directors, or any committee thereof) shall have approved, recommended,
authorized, or proposed any Acquisition Proposal, or has resolved to do any of
the foregoing; or
(i) there shall have occurred and be continuing any event
occurrence, development or state of circumstances that, either individually or
in the aggregate, has had or is reasonably likely to have, a Material Adverse
Effect provided that such Material Adverse Effect is incapable of being cured or
has not been cured prior to the Initial Expiration Date (or such later date upon
which the Offer shall expire in accordance with Section 1.01(b) of this
Agreement).
which in the good faith judgment of Parent or Purchaser, in any such
case, and regardless of the circumstances giving rise to such condition, and
provided that Purchaser and Parent have performed all of their respective
obligations under Section 6.06 herein, makes it inadvisable to proceed with the
Offer or the acceptance for payment of or payment for the Company Common Stock.
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The foregoing conditions (x) are for the sole benefit of
Parent and Purchaser and, (y) may be asserted by Parent and Purchaser, and
except for the Minimum Condition, subject to the terms of the Agreement, may be
waived by Parent and Purchaser, in whole or in part, at any time and from time
to time, in the sole discretion of Parent and Purchaser. The failure of Parent
or Purchaser at any time to exercise any of the foregoing rights shall not be
deemed a waiver of any such right, and each right shall be deemed a continuing
right which may be asserted at any time and from time to time.
Any determination by Parent or Purchaser to terminate the Offer will be final
and binding, but shall not affect any rights of any party under the Agreement.
Notwithstanding the fact that the Parent and Purchaser reserve the right to
assert the failure of a condition following acceptance for payment but prior to
payment in order to delay payment or cancel their obligation to pay for properly
tendered shares of Company Common Stock, the Parent and Purchaser will either
promptly pay for such Company Common Stock or promptly return such Company
Common Stock. Should the Offer be terminated pursuant to the foregoing
provisions, all tendered shares of Company Common Stock not theretofore accepted
for payment pursuant thereto shall forthwith be returned to the tendering
shareholders.
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ANNEX B
FORM OF PLAN OF MERGER
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CERTIFICATE OF MERGER
OF
BLOCK DRUG COMPANY, INC.
AND
----------------------------
Pursuant to Section 14A:10-5.1 of the
New Jersey Business Corporation Act
*******************************
Dated: , 2000
The undersigned corporation, having adopted an Agreement and
Plan of Merger pursuant to N.J.S.A. 14A:10-5.1 for the purpose of merging itself
into its subsidiary, BLOCK DRUG COMPANY, INC., a New Jersey corporation
certifies that:
1. The name of the surviving corporation is BLOCK DRUG COMPANY, INC.
(the "Subsidiary"). The name of the merged corporation is
______________________ (the "Parent").
2. The Agreement and Plan of Merger (the "Plan"), pursuant to which
the merger will be effectuated, is annexed hereto as Exhibit A.
3. The Plan was adopted by the board of directors of the Parent on
October _____, 2000.
4. The number of outstanding shares of Class A common stock of the
Subsidiary is _____ shares, _____ of which are owned by the Parent. The
number of outstanding shares of Class B common stock of the Subsidiary is
_____ shares, _____ of which are owned by the Parent.
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5. The certificate of incorporation of the Subsidiary, amended and
restated as set forth in the form of the amended and restated certificate of
incorporation annexed hereto as Exhibit B, shall be the certificate of
incorporation of the surviving corporation.
6. A copy of the Plan was mailed to the minority shareholders of the
Subsidiary on _____________, 2000.
7. The Plan was approved by the sole shareholder of the Parent on
October _____, 2000.
8. The number of shares of common stock of the Parent entitled to vote
on the Plan was _____. The number of shares of common stock of the Parent that
voted in favor of the Plan was _____. The number of shares of common stock of
the Parent that voted against the Plan was zero (o). The Parent has no other
class or series of stock entitled to vote on the Plan.
IN WITNESS WHEREOF, the undersigned corporation has caused this
certificate of merger to be executed on its behalf by its duly authorized
officer as of the date first written above.
----------------------------
By:_________________________
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EXHIBIT A
AGREEMENT AND PLAN OF MERGER
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EXHIBIT B
FORM OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
TO BE IDENTICAL TO THE PURCHASER'S CERTIFICATE OF INCORPORATION
SUBJECT TO THE PROVISIONS OF THE AGREEMENT AND PLAN OF MERGER
INCLUDING THE PROVISIONS OF SECTION 6.07 THEREOF.
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