<PAGE>1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
September 1, 1995
----------------------------
Alaska Gold Company
(Exact name of registrant as specified in its charter)
Delaware 1-7241 13-2774390
(State or other (Commission (IRS Employer
jurisdiction File Number) Identification No.)
of incorporation)
2959 North Rock Road
Wichita, Kansas 67226
(Address of principal executive offices) (Zip Code)
(316) 636-6316
(Registrant's telephone number, including area code)
Not Applicable
(Former name or former address, if changed from last report.)
<PAGE>2
Item 5. Other Events.
Alaska Gold Company (the "Registrant") and Mueller Acquisition
Corporation ("MAC") have entered into an Agreement and Plan of Merger dated as
of September 1, 1995 (the "Merger Agreement"), pursuant to which, among other
things, (a) MAC, a newly formed Delaware corporation wholly owned by Mueller
Industries, Inc. ("Mueller"), will be merged with and into the Registrant with
the Registrant being the surviving corporation and (b) all shares of common
stock of the Registrant other than the shares of the Registrant's common stock
owned by Mueller, will be converted into the right to receive $0.25 cash per
share, and thereafter the Registrant will be wholly owned by Mueller. The
Merger Agreement is filed herewith as Exhibit 2.1 and is incorporated herein
by reference.
Item 7. Financial Statements and Exhibits.
(a) Financial statements of business acquired: None
(b) Pro forma financial information: None
(c) Exhibits:
2.1 Agreement and Plan of Merger, dated as of September 1,
1995, by and among Alaska Gold Company, Mueller
Acquisition Corporation and Mueller Industries, Inc.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ALASKA GOLD COMPANY
By: /s/ Gary L. Baker
Name: Gary L. Barker
Title: President
Date: September 13, 1995
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EXHIBIT INDEX
Exhibit
Number Description Page
2.1 Agreement and Plan of Merger, dated as of
September 1, 1995, by and among Alaska Gold
Company, Mueller Acquisition Corporation and
Mueller Industries, Inc.
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Exhibit 2.1
Agreement and Plan of Merger
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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
ALASKA GOLD COMPANY,
MUELLER INDUSTRIES, INC.
AND
MUELLER ACQUISITION CORPORATION
Dated as of September 1, 1995
<PAGE>3
TABLE OF CONTENTS
ARTICLE I
THE MERGER
SECTION 1.1. Meeting of Alaska Gold's Stockholders; Proxy Statement;
Schedule 13E-3 . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. The Merger . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3. Conversion of Outstanding Shares . . . . . . . . . . . . . 3
1.4. Surrender and Exchange . . . . . . . . . . . . . . . . . . 4
1.5. Certificate of Incorporation . . . . . . . . . . . . . . . 5
1.6. By-Laws . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.7. Directors and Officers . . . . . . . . . . . . . . . . . . 5
1.8. Stock Transfer Books . . . . . . . . . . . . . . . . . . . 5
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF ALASKA GOLD
SECTION 2.1. Corporate Organization . . . . . . . . . . . . . . . . . . 5
2.2. Capitalization . . . . . . . . . . . . . . . . . . . . . . 5
2.3. Authorization and Validity of Agreement . . . . . . . . . 6
2.4. No Conflict or Violation . . . . . . . . . . . . . . . . . 6
2.5. Consents and Approvals . . . . . . . . . . . . . . . . . . 6
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF MUELLER ACQUISITION
SECTION 3.1. Corporate Organization . . . . . . . . . . . . . . . . . . 7
3.2. Subsidiaries and Equity Investments . . . . . . . . . . . 7
3.3. Authorization and Validity of Agreement . . . . . . . . . 7
3.4. No Conflict or Violation . . . . . . . . . . . . . . . . . 8
3.5. Consents and Approvals . . . . . . . . . . . . . . . . . . 8
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF MUELLER
SECTION 4.1. Corporate Organization . . . . . . . . . . . . . . . . . . 8
4.2. Title to Cancelled Shares . . . . . . . . . . . . . . . . 8
4.3. Authorization and Validity of Agreement . . . . . . . . . 8
4.4. No Conflict or Violation . . . . . . . . . . . . . . . . . 9
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ARTICLE V
COVENANT OF ALASKA GOLD
SECTION 5.1. Vote . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE VI
COVENANTS OF MUELLER ACQUISITION
SECTION 6.1. Conduct of Mueller Acquisition . . . . . . . . . . . . . . 9
6.2. Access to Information . . . . . . . . . . . . . . . . . . 10
6.3. Other Fees and Expenses . . . . . . . . . . . . . . . . . 10
ARTICLE VII
COVENANTS OF MUELLER
SECTION 7.1. Vote . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.2. No Sale or Disposition; Waiver . . . . . . . . . . . . . . 11
ARTICLE VIII
OTHER AGREEMENTS
SECTION 8.1. Best Efforts . . . . . . . . . . . . . . . . . . . . . . . 11
8.2. Notification of Certain Matters . . . . . . . . . . . . . 11
8.3. Further Assurances . . . . . . . . . . . . . . . . . . . . 12
ARTICLE IX
CONDITIONS TO THE MERGER
SECTION 9.1. Conditions to the Obligations of Each Party . . . . . . . 12
9.2. Conditions to the Obligation of Alaska Gold . . . . . . . 12
9.3. Conditions to the Obligation of Mueller Acquisition . . . 13
ARTICLE X
TERMINATION
SECTION 10.1. Termination . . . . . . . . . . . . . . . . . . . . . . . 14
10.2. Effect of Termination . . . . . . . . . . . . . . . . . . 14
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 15
11.2. Survival . . . . . . . . . . . . . . . . . . . . . . . . 15
11.3. Amendment . . . . . . . . . . . . . . . . . . . . . . . . 15
11.4. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . 16
11.5. Successors and Assigns . . . . . . . . . . . . . . . . . 16
11.6. Governing Law . . . . . . . . . . . . . . . . . . . . . . 16
11.7. Integration . . . . . . . . . . . . . . . . . . . . . . . 16
11.8. Headings and References . . . . . . . . . . . . . . . . . 16
11.9. Counterparts; Effectiveness . . . . . . . . . . . . . . . 16
<PAGE>6
INDEX TO DEFINED TERMS
Defined Term Where Defined
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction
Alaska Gold . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction
Cancelled Shares . . . . . . . . . . . . . . . . . . . . . . . . 1.3(a)
Certificate of Merger . . . . . . . . . . . . . . . . . . . . . . 1.2(b)
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2
Delaware Law . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2(a)
Effective Time . . . . . . . . . . . . . . . . . . . . . . . . . 1.2(b)
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1(b)
HSR Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
Merger Consideration . . . . . . . . . . . . . . . . . . . . . . 1.3(a)
Mueller . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction
Mueller Acquisition . . . . . . . . . . . . . . . . . . . . . . . Introduction
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4(a)
Proxy Statement . . . . . . . . . . . . . . . . . . . . . . . . . 1.1(b)
SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1(b)
Schedule 13E-3 . . . . . . . . . . . . . . . . . . . . . . . . . 1.1(b)
Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3(a)
Special Meeting . . . . . . . . . . . . . . . . . . . . . . . . . 1.1(a)
Surviving Corporation . . . . . . . . . . . . . . . . . . . . . . 1.2(a)
<PAGE>7
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of September 1, 1995 (this
"Agreement") by and among ALASKA GOLD COMPANY, a Delaware corporation ("Alaska
Gold"), MUELLER ACQUISITION CORPORATION, a Delaware corporation ("Mueller
Acquisition"), and MUELLER INDUSTRIES, INC., a Delaware Corporation
("Mueller").
WHEREAS, Mueller Acquisition is wholly owned by Mueller;
WHEREAS, Mueller owns shares of common stock of Alaska Gold;
WHEREAS, the parties hereto desire to effect the merger of Mueller
Acquisition with and into Alaska Gold (the "Merger") pursuant to the terms of
this Agreement;
WHEREAS, upon the consummation of the Merger, each share of common stock
of Mueller Acquisition will be converted into and become one share of common
stock of the surviving corporation; and
WHEREAS, the Board of Directors of each of Alaska Gold and Mueller
Acquisition have determined that the Merger contemplated hereby is fair to and
in the best interests of Alaska Gold and its shareholders and Mueller
Acquisition and its sole shareholder;
NOW THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1. Meeting of Alaska Gold's Stockholders; Proxy Statement;
Schedule 13E-3. (a) Alaska Gold will take all action necessary in accordance
with applicable law to convene a meeting of its stockholders (the "Special
Meeting") as promptly as practicable after the date hereof to consider and
vote upon the Merger. The Board of Directors of Alaska Gold, subject to its
fiduciary duties as advised by counsel, will recommend that Alaska Gold's
stockholders vote in favor of the Merger and the approval and adoption of this
Agreement.
(b) As soon as practicable, Alaska Gold shall file with the Securities
and Exchange Commission (the "SEC") under the Securities Exchange Act of 1934
(the "Exchange Act"), and shall use its best efforts to have cleared by the
SEC, a proxy statement (together with any amendments or supplements thereto,
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the "Proxy Statement"), with respect to the Special Meeting. In addition,
Alaska Gold and Mueller Acquisition shall file with the SEC and make available
to Alaska Gold's stockholders, as required by applicable law, a joint Schedule
13E-3 (together with any amendments or supplements thereto, the "Schedule 13E-
3") with respect to the Special Meeting and the Merger. Mueller Acquisition
and Mueller will provide all information relating to them or their affiliates
(other than Alaska Gold) for use in preparation of the Proxy Statement and
Schedule 13E-3. Alaska Gold will provide all information, other than that
relating to Mueller Acquisition, Mueller or their respective affiliates (other
than Alaska Gold), for use in the Proxy Statement and in the Schedule 13E-3.
The information provided and to be provided by Alaska Gold, Mueller
Acquisition and Mueller, respectively, for use in the Proxy Statement and in
the Schedule 13E-3 shall be true and correct in all material respects and
shall not omit to state any material fact necessary in order to make such
information not misleading as of the date of the Proxy Statement or the
Schedule 13E-3, as the case may be, and as of the date of the Special Meeting.
Alaska Gold will promptly advise Mueller Acquisition and Mueller and Mueller
Acquisition or Mueller, as the case may be, will promptly advise Alaska Gold,
in writing, if at any time prior to the Effective Time (as defined in Section
1.2 (b)) Alaska Gold, Mueller Acquisition or Mueller shall obtain knowledge of
any facts that might make it necessary or appropriate to amend or supplement
the Proxy Statement or the Schedule 13E-3 in order to make the statements
contained or incorporated by reference therein not misleading or to comply
with applicable law. The Proxy Statement shall contain the recommendation of
the Board of Directors of Alaska Gold referred to in subdivision (a) of this
Section 1.1 as well as the conclusion of the Board of Directors of Alaska Gold
that the terms and conditions of the Merger are fair to the stockholders of
Alaska Gold (other than Mueller).
SECTION 1.2. The Merger. (a) At the Effective Time, the Merger shall
occur in accordance with the General Corporation Law of the State of Delaware
("Delaware Law"), whereupon the separate existence of Mueller Acquisition
shall cease, and Alaska Gold shall be the surviving corporation (the
"Surviving Corporation").
(b) As soon as practicable after all of the conditions set forth in
Article IX have been satisfied or waived, Alaska Gold and Mueller Acquisition
will file, or cause to be filed, with the Secretary of State of the State of
Delaware a certificate of merger for the Merger in accordance with Delaware
Law (the "Certificate of Merger"). The Merger shall become effective at the
time such filing is made or at such other time as is set forth in the
Certificate of Merger (the "Effective Time").
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(c) From and after the Effective Time, the Surviving Corporation shall
possess all the rights, privileges, powers and franchises and be subject to
all of the restrictions, disabilities and duties of Alaska Gold and Mueller
Acquisition, all as provided under Delaware Law.
SECTION 1.3. Conversion of Outstanding Shares.
(a) At the Effective Time:
(i) each share of Common Stock (as defined in Section 2.2) of
Alaska Gold (a "Share" and, collectively, the "Shares") outstanding
immediately prior to the Effective Time (except for the Cancelled Shares
hereinafter refered to) shall, except as otherwise provided in
subsections (a)(iii) and (b) of this Section 1.3, be converted into and
represent the right to receive $0.25 in cash (the "Merger
Consideration");
(ii) each Share held by Mueller outstanding immediately prior to
the Effective Time (a "Cancelled Share" and, collectively, the "Cancelled
Shares") shall, by virtue of the Merger, and without any action on the
part of the holder thereof, be cancelled and retired and cease to exist,
without any conversion thereof; provided, however, that in connection
with, and only in connection with, the consummation of the Merger,
Mueller waives its right to receive the Merger Consideration and consents
to being treated less favorably than the other stockholders of Alaska
Gold; and
(iii) each share of common stock of Mueller Acquisition outstanding
immediately prior to the Effective Time shall be converted into and
become one share of common stock of the Surviving Corporation.
(b) Notwithstanding subsection (a)(i) of this Section 1.3, Shares
outstanding immediately prior to the Effective Time and held by a holder who
has not voted in favor of the Merger or consented thereto in writing and who
has demanded appraisal for such Shares in accordance with Delaware Law shall
not be converted into a right to receive the Merger Consideration pursuant to
such subsection (a)(i) unless such holder fails to perfect or withdraws or
loses his right to appraisal. If after the Effective Time such holder fails
to perfect or withdraws or loses his right to appraisal, such Shares shall
thereupon be deemed to have been converted into and to represent the right to
receive, at the Effective Time, the Merger Consideration pursuant to the terms
of subsection (a)(i) of this Section 1.3, without
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any interest thereon or addition thereto. Alaska Gold shall give Mueller
Acquisition prompt notice of any demands received by Alaska Gold for appraisal
of Shares, and Mueller Acquisition shall have the right to participate in all
negotiations and proceedings with respect to such demands. Alaska Gold shall
not, except with the prior written consent of Mueller Acquisition, make any
payment with respect to, or settle or offer to settle, any such demands.
SECTION 1.4. Surrender and Exchange. (a) Promptly after the Effective
Time, the Surviving Corporation, or such bank or trust company acting as
paying agent (the "Paying Agent") for the Merger pursuant to an agreement in a
form to be mutually agreed upon by Alaska Gold and Mueller Acquisition, shall
mail or cause to be mailed to each holder of Shares at the Effective Time a
letter of transmittal for use in surrendering for exchange the certificate or
certificates representing such Shares. After the Effective Time, each such
holder, upon surrender to the Paying Agent of such certificate or certificates
(together with such letter of transmittal duly executed), will be entitled to
receive the Merger Consideration. Until so surrendered, each such certificate
shall after the Effective Time represent for all purposes only the right to
receive the Merger Consideration. At the Effective Time, Mueller Acquisition
shall furnish or cause to be furnished to the Paying Agent funds equal to the
aggregate Merger Consideration payable to the holders of Shares. After the
Effective Time, there shall be no further registration or transfers of Shares.
The Surviving Corporation shall establish reasonable procedures for the
delivery of the Merger Consideration to holders of Shares whose stock
certificates have been lost, destroyed or mutilated.
(b) If any delivery of the Merger Consideration is to be made pursuant
to Section 1.3(a)(i) to a person other than the registered holder of the
certificate or certificates surrendered in exchange therefor, it shall be a
condition to such delivery that the certificate or certificates so surrendered
shall be properly endorsed or be otherwise in proper form for transfer and
that the person requesting such delivery shall (i) pay to the Paying Agent any
transfer or other taxes required as a result of delivery to a person other
than the registered holder or (ii) establish to the satisfaction of the Paying
Agent that such tax has been paid or is not payable.
(c) Any holder of Shares who has not exchanged his Shares for the Merger
Consideration in accordance with subsection (a) within six months after the
Effective Time shall have no further claim upon the Paying Agent and shall
thereafter look only to the Surviving Corporation for payment in respect of
his Shares.
<PAGE>11
Notwithstanding the foregoing, no party hereto shall be liable to a holder of
Shares for any amount paid to a public official pursuant to applicable
abandoned property laws.
SECTION 1.5. Certificate of Incorporation. The Certificate of
Incorporation of Alaska Gold as in effect immediately prior to the Effective
Time shall be the Certificate of Incorporation of the Surviving Corporation
until amended in accordance with applicable law.
SECTION 1.6. By-Laws. The By-Laws of Alaska Gold as in effect
immediately prior to the Effective Time shall be the By-Laws of the Surviving
Corporation until amended in accordance with applicable law.
SECTION 1.7. Directors and Officers. From and after the Effective Time,
until successors are duly elected or appointed in accordance with applicable
law, (a) the directors of Alaska Gold at the Effective Time shall be the
directors of the Surviving Corporation and (b) the officers of Alaska Gold at
the Effective Time shall be the officers of the Surviving Corporation.
SECTION 1.8. Stock Transfer Books. At the Effective Time the stock
transfer books of Alaska Gold shall be closed and no transfer of shares of
Common Stock shall thereafter be made on such stock transfer books.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF ALASKA GOLD
Alaska Gold represents and warrants to Mueller Acquisition and Mueller
that:
SECTION 2.1. Corporate Organization. Alaska Gold is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all requisite corporate power and
authority to own its properties and assets and to conduct its businesses as
now conducted.
SECTION 2.2. Capitalization. The authorized capital stock of Alaska
Gold consists of 10,000,000 shares, consisting of 10,000,000 shares of Common
Stock, par value $0.10 per share (the "Common Stock"), 5,000,000 shares of
which are issued and outstanding, all of which have been duly authorized and
validly issued, and are fully paid and nonassessable and no personal
<PAGE>12
liability attaches to the ownership thereof. The Common Stock is the only
outstanding capital stock of Alaska Gold.
SECTION 2.3. Authorization and Validity of Agreement. Alaska Gold has
the corporate power to enter into this Agreement, to carry out its obligations
hereunder, and to consummate the Merger. The execution and delivery of this
Agreement and the performance of Alaska Gold's obligations hereunder have been
duly authorized by all necessary corporate action, including, without
limitation, by the Board of Directors of Alaska Gold. The consummation of the
Merger has been duly authorized by all necessary corporate action, other than
the affirmative vote of the stockholders of Alaska Gold in accordance with
applicable law and this Agreement, and approval of the Merger by the
stockholders of Alaska Gold has been recommended by the Board of Directors of
Alaska Gold. This Agreement has been duly executed by Alaska Gold and
constitutes the valid and binding obligation of Alaska Gold enforceable
against Alaska Gold in accordance with its terms, except (i) to the extent
that enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of creditors' rights
generally, and (ii) that the availability of equitable remedies, including
specific performance, is subject to the discretion of the court before which
any proceeding therefor may be brought.
SECTION 2.4. No Conflict or Violation. As of the date hereof and as of
the Effective Time, the execution, delivery and performance by Alaska Gold of
this Agreement and consummation of the Merger does not and will not (i)
violate or conflict with any provision of the Certificate of Incorporation or
By-Laws of Alaska Gold, or (ii) violate any provision of law, or any order,
judgment or decree of any court or other governmental or regulatory authority.
SECTION 2.5. Consents and Approvals. As of the Effective Time, no
material consent, waiver, authorization or approval of any governmental or
regulatory authority, domestic or foreign, or of any other person, firm or
corporation, and no material declaration or notification to or filing or
registration with any such governmental or regulatory authority, is required
on the part of Alaska Gold in connection with the execution and delivery of
this Agreement by Alaska Gold, the performance by Alaska Gold of its
obligations hereunder, or the consummation of the Merger, other than in
connection with or in compliance with the applicable provisions of Delaware
Law, the Exchange Act or the Hart-Scott-Rodino Antitrust Improvements Act of
1976 (the "HSR Act").
<PAGE>13
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF MUELLER ACQUISITION
Mueller Acquisition represents and warrants to Alaska Gold that:
SECTION 3.1. Corporate Organization. Mueller Acquisition is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. Since its date of incorporation, Mueller
Acquisition has not engaged in any activities not related to the acquisition,
or proposed acquisition, of Shares or the transactions contemplated by this
Agreement and the Merger and as of the Effective Time Mueller Acquisition will
have no liabilities other than those incurred to facilitate or in connection
with the acquisition, or proposed acquisition, of Shares or the transactions
contemplated by this Agreement and the Merger.
SECTION 3.2. Subsidiaries and Equity Investments. As of the date of
this Agreement there are no corporations of which Mueller Acquisition owns,
directly or indirectly, shares of capital stock having in the aggregate 50% or
more of the total combined voting power of the issued and outstanding shares
of capital stock entitled to vote generally in the election of directors of
such corporation.
SECTION 3.3. Authorization and Validity of Agreement. Mueller
Acquisition has the corporate power to enter into this Agreement and to carry
out its obligations hereunder. The execution and delivery of this Agreement,
the performance of Mueller Acquisition's obligations hereunder and the
consummation of the Merger have been duly authorized by the Board of Directors
and by the sole stockholder of Mueller Acquisition and no other proceedings on
the part of Mueller Acquisition are necessary to authorize such execution,
delivery and performance. This Agreement has been duly executed by Mueller
Acquisition and is the legal, valid and binding obligation of Mueller
Acquisition, enforceable against Mueller Acquisition in accordance with its
terms, except (i) to the extent that enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other laws affecting the
enforcement of creditors' rights generally, and (ii) that the availability of
equitable remedies, including specific performance, is subject to the
discretion of the court before which any proceeding therefor may be brought.
SECTION 3.4. No Conflict or Violation. As of the date hereof and as of
the Effective Time, the execution, delivery and
<PAGE>14
performance by Mueller Acquisition of this Agreement and consummation of the
Merger does not and will not (i) violate or conflict with any provision of the
charter documents or By-Laws of Mueller Acquisition, or (ii) violate any
provision of law, or any order, judgment or decree of any court or other
governmental or regulatory authority.
SECTION 3.5. Consents and Approvals. As of the Effective Time, no
material consent, waiver, authorization or approval of any governmental or
regulatory authority, domestic or foreign, or of any other person, firm or
corporation, and no material declaration or notification to or filing or
registration with any such governmental or regulatory authority, is required
on the part of Mueller Acquisition in connection with the execution and
delivery of this Agreement by Mueller Acquisition, the performance by Mueller
Acquisition of its obligations hereunder, or the consummation of the Merger,
other than in connection with or in compliance with the applicable provisions
of Delaware Law, the Exchange Act or the HSR Act.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF MUELLER
Mueller represents and warrants to Alaska Gold that:
SECTION 4.1. Corporate Organization. Mueller is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware.
SECTION 4.2. Title to Cancelled Shares. All of the Cancelled Shares are
owned of record and beneficially by Mueller free and clear of all liens.
SECTION 4.3. Authorization and Validity of Agreement. Mueller has the
corporate power to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery of this Agreement and the performance
of Mueller's obligations hereunder have been duly authorized by the board of
directors of Mueller and no other proceedings on the part of Mueller are
necessary to authorize such execution, delivery and performance. This
Agreement has been duly executed by Mueller and is the legal, valid and
binding obligation of Mueller, enforceable against Mueller in accordance with
its terms, except (i) to the extent that enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other laws affecting the
enforcement of creditors' rights generally, and
<PAGE>15
(ii) that the availability of equitable remedies, including specific
performance, is subject to the discretion of the court before which any
proceeding therefor may be brought.
SECTION 4.4. No Conflict or Violation. As of the date hereof and as of
the Effective Time, the execution, delivery and performance by Mueller of this
Agreement and consummation of the Merger does not and will not (i) violate or
conflict with any provision of the charter documents or By-Laws of Mueller, or
(ii) violate any provision of law, or any order, judgment or decree of any
court or other governmental or regulatory authority.
ARTICLE V
COVENANT OF ALASKA GOLD
Alaska Gold agrees that:
SECTION 5.1. Vote. From and after the date hereof, Alaska Gold will, to the
extent required by applicable law or as otherwise reasonably requested by
Mueller Acquisition and in accordance with Delaware Law and its Certificate of
Incorporation and By-Laws, use its best efforts to (a) solicit from the
stockholders of Alaska Gold proxies in favor of the approval of this Agreement
and (b) take all other action necessary or helpful to secure a vote of
stockholders in favor of the Merger and to approve this Agreement.
ARTICLE VI
COVENANTS OF MUELLER ACQUISITION
Mueller Acquisition agrees that:
SECTION 6.1. Conduct of Mueller Acquisition. From and after the date of
this Agreement and until the Effective Time, Mueller Acquisition shall conduct
its business solely in the ordinary course consistent with past practice and,
without the prior written consent of Alaska Gold, will not, except as required
or permitted pursuant to the terms hereof or as may occur in the ordinary
course of business consistent with past practice:
(i) make any change in its Certificate of Incorporation; or
<PAGE>16
(ii) take any other action that would cause any of the
representations and warranties made in this Agreement not to remain true
and correct; or
(iii) commit itself to do any of the foregoing.
SECTION 6.2. Access to Information. From and after the date hereof and
subject to the execution of such confidentiality agreements as Mueller
Acquisition shall reasonably require, Mueller Acquisition will give Alaska
Gold and its counsel, financial advisors, auditors and other authorized
representatives reasonable access to the offices, properties, books and
records of Mueller Acquisition and will instruct Mueller Acquisition's
employees, counsel and financial advisors to cooperate with any such person in
its investigation of Mueller Acquisition.
SECTION 6.3. Other Fees and Expenses. Whether or not the Merger is
consummated (except as provided below), from and after the date hereof and
without the execution of any further instrument, Mueller Acquisition will (a)
assume all of the obligations of Mueller and of any entity formed by it for
purposes of completing the Merger (including but not limited to Mueller
Acquisition) including, without limitation, indemnities, contribution,
compensation and expense reimbursements. Mueller Acquisition will pay all
reasonable attorneys' fees, expenses and disbursements of Alaska Gold incurred
prior to or after the date hereof in connection with the transactions
contemplated by this Agreement; provided, however, that Mueller Acquisition
shall not be obligated to assume any obligation or to pay any fees and
expenses under this Section 6.3 if this Agreement is terminated because of a
material breach by Alaska Gold of any of its representations, warranties or
covenants contained hereunder.
ARTICLE VII
COVENANTS OF MUELLER
Mueller agrees that:
SECTION 7.1. Vote. Mueller will vote the Cancelled Shares in favor of
the approval and adoption of this Agreement and the approval of the Merger.
SECTION 7.2. No Sale or Disposition; Waiver. From and after the date of
this Agreement and until the earlier of the Effective Time and the termination
of this Agreement, Mueller will not sell or otherwise dispose of any Cancelled
Shares other than to any of its respective affiliates or otherwise to
<PAGE>17
facilitate the consummation of the transactions contemplated by this
Agreement.
ARTICLE VIII
OTHER AGREEMENTS
The parties hereto agree that:
SECTION 8.1. Best Efforts. Upon the terms and subject to the conditions
set forth in this Agreement, each party shall use its best efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations,
including without limitation under the HSR Act, to consummate the transactions
contemplated by this Agreement as promptly as possible.
SECTION 8.2. Notification of Certain Matters. Each party to this
Agreement will give prompt notice to the other parties hereof of:
(i) any notice or other communication from any person or entity
alleging that the consent of such person or entity is or may be required
in connection with the transactions contemplated by this Agreement;
(ii) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions
contemplated by this Agreement;
(iii) any action, suit, claim, investigation or proceeding commenced
or, to its knowledge, threatened against, relating to or involving or
otherwise affecting Alaska Gold on the one hand, or Mueller Acquisition
and/or Mueller on the other hand, which is reasonably likely to affect
materially the transactions contemplated by this Agreement;
(iv) the occurrence, or failure to occur, of any event or change in
circumstances where such occurrence or failure to occur would be likely
to cause any representation or warranty contained in this Agreement to be
untrue and inaccurate in any material respect at any time from the date
hereof to the Effective Time; and
<PAGE>18
(v) any material failure of such party to comply with or satisfy
any covenant, condition or agreement to be complied with or satisfied by
it hereunder.
No such notification shall affect the representations or warranties of the
parties or the conditions to the obligations of the parties hereunder.
SECTION 8.3. Further Assurances. At and after the Effective Time, the
officers and directors of the Surviving Corporation will be authorized to
execute and deliver, in the name and on behalf of Alaska Gold or Mueller
Acquisition, any deeds, bills of sale, assignments or assurances and to take
and do in the name and on behalf of Alaska Gold or Mueller Acquisition 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 Alaska Gold acquired or to be
acquired by the Surviving Corporation as a result of, or in connection with,
the Merger.
ARTICLE IX
CONDITIONS TO THE MERGER
SECTION 9.1. Conditions to the Obligations of Each Party. The
obligations of Alaska Gold and Mueller Acquisition to consummate the Merger
are subject to (a) the approval of the Merger and this Agreement at the
Special Meeting by the affirmative vote of at least the holders of a majority
of the Shares outstanding on the record date of such Special Meeting (b) any
waiting period applicable to the Merger under the HSR Act shall have
terminated or expired, (c) the absence of any statute, rule or regulation
which makes consummation of the Merger illegal or otherwise prohibited or any
order, decree, injunction or judgment enjoining the consummation of the
Merger, and (d) the receipt of an opinion of counsel to Alaska Gold, in form
and substance reasonably satisfactory to Alaska Gold and Mueller Acquisition,
as to the validity of the Merger under Delaware Law.
SECTION 9.2. Conditions to the Obligation of Alaska Gold. The
obligation of Alaska Gold to consummate the Merger is subject to the
satisfaction or waiver of the following further conditions:
(a) Mueller Acquisition shall have performed in all material
respects all of its obligations hereunder required to be performed by it
at or prior to the Effective Time;
<PAGE>19
(b) the representations and warranties of Mueller Acquisition
contained in this Agreement and in any certificate or other writing
delivered by Mueller Acquisition pursuant hereto shall be true in all
material respects at and as of the Effective Time as if made at and as of
such time (other than any inaccuracies in such representations or
warranties that are attributable to Alaska Gold);
(c) receipt by Alaska Gold of a certificate signed by an executive
officer of Mueller Acquisition to the effect set forth in paragraphs (a)
and (b) of this Section; and
(d) no action or proceeding shall have been commenced or threatened
for the purpose of obtaining an injunction, order or damages before any
court or governmental agency or other regulatory or administrative agency
or commission, domestic or foreign, which Alaska Gold shall on advice of
counsel, reasonably determine would (1) result in the imposition of
material limitations on the ability of Alaska Gold or Mueller Acquisition
effectively to consummate the Merger, (2) have the effect of rendering
the Merger violative of any applicable law, or (3) have a material
adverse effect on the business, assets or financial condition of the
Surviving Corporation.
SECTION 9.3. Conditions to the Obligation of Mueller Acquisition. The
obligation of Mueller Acquisition to consummate the Merger is subject to the
satisfaction or waiver of the following further conditions:
(a) Alaska Gold shall have performed in all material respects all
of its obligations hereunder required to be performed by it at or prior
to the Effective Time;
(b) the representations and warranties of Alaska Gold contained in
this Agreement and in any certificate or other writing delivered by
Alaska Gold pursuant hereto shall be true in all material respects at and
as of the Effective Time as if made at and as of such time;
(c) receipt by Mueller Acquisition of a certificate signed by an
executive officer of Alaska Gold to the effect set forth in paragraphs
(a) and (b) of this Section;
(d) the holders of not more than 5% of the outstanding shares of
Common Stock shall have exercised their appraisal rights in the Merger in
accordance with Delaware Law; and
<PAGE>20
(e) no action or proceeding shall have been commenced or threatened
for the purpose of obtaining an injunction, order or damages before any
court or governmental agency or other regulatory or administrative agency
or commission, domestic or foreign, which Mueller Acquisition shall on
advice of counsel, reasonably determine would (1) result in the
imposition of material limitations on the ability of Alaska Gold or
Mueller Acquisition effectively to consummate the Merger, (2) have the
effect of rendering the Merger violative of any applicable law, or (3)
have a material adverse effect on the business, assets or financial
condition of the Surviving Corporation.
ARTICLE X
TERMINATION
SECTION 10.1. Termination. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time:
(a) by mutual written consent of Alaska Gold and Mueller
Acquisition after approval of their respective Board of Directors; or
(b) by either Alaska Gold or Mueller Acquisition after approval of
the Board of Directors of Alaska Gold or Mueller Acquisition, as the case
may be, if the Merger has not been consummated on or before December 1,
1995; provided, however, that neither party may terminate this Agreement
pursuant to this clause (b) if the failure of such party to fulfill any
of its obligations under this Agreement shall have been the reason that
the Merger shall not have been consummated on or before said date.
SECTION 10.2. Effect of Termination. If this Agreement is terminated
pursuant to Section 10.1, this Agreement shall become void and of no effect
with no liability on the part of any party hereto.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile or similar
writing) and shall be given:
<PAGE>21
(a) if to Alaska Gold to:
Alaska Gold Company
2959 North Rock Road
Wichita, Kansas 67226
Facsimile: (316) 636-6390
Attention: Gary L. Barker
(b) if to Mueller Acquisition to:
Mueller Acquisition Corporation
c/o Alaska Gold Company
2959 North Rock Road
Wichita, Kansas 67226
Facsimile: (316) 636-6390
Attention: William H. Hensley
or such other address or facsimile number as such party may hereafter specify
by notice to the other party hereto. Each such notice, request or other
communication shall be effective (i) if given by facsimile, when such
facsimile is transmitted to the facsimile number specified in this Section and
the appropriate confirmation is provided, (ii) if given via United States
mail, three days after such notice is deposited in the mail in a postage pre-
paid envelope, or (iii) if given by any other means, when delivered at the
address specified in this Section.
SECTION 11.2. Survival. None of the representations, warranties,
agreements or covenants contained herein shall survive the Effective Time
except for the agreements contained in Sections 1.3, 1.4, 1.5 and 8.3.
SECTION 11.3. Amendment. Subject to applicable law, any provision of
this Agreement may be amended by the parties hereto, by action of each of
their respective Board of Directors or by their respective officers duly
authorized by such Board of Directors, at any time prior to the Effective
Time. Any amendment to this Agreement shall be in writing signed by all the
parties hereto.
SECTION 11.4. Waiver. (a) At any time prior to the Effective Time,
Mueller Acquisition on the one hand, and Alaska Gold on the other hand, may
(i) extend the time for the performance of any agreement of the other party or
parties hereto, (ii) waive any accuracy in the representations and warranties
contained herein or in any document delivered pursuant hereto, or (iii) waive
compliance with any agreement or condition
<PAGE>22
contained herein; provided, however, that if such waiver would have the same
effect as any decrease of the amount or change in the type of the Merger
Consideration or any amendment to Article IX, Article X or Section 11.3
hereof, such waiver shall also be approved by the respective Board of
Directors of each of Alaska Gold and Mueller Acquisition. Any agreement on
the part of any party to any such extension or waiver shall be effective only
if set forth in a writing signed on behalf of such party and delivered to the
other parties.
(b) 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 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 11.5. 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, however, that no party may assign
or otherwise transfer any of its rights under this Agreement without the
consent of the other parties hereto.
SECTION 11.6. Governing Law. This Agreement shall be construed in
accordance with and governed by the internal laws of the State of Delaware
without regard to principles of conflict of laws.
SECTION 11.7. Integration. This Agreement embodies the entire agreement
and understanding among the parties hereto and supersedes all prior agreements
and understandings relating to the subject matter hereof.
SECTION 11.8. Headings and References. The headings of the Articles and
Sections of this Agreement are inserted for convenience only and shall not
constitute a part hereof.
SECTION 11.9. Counterparts; Effectiveness. 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 the other party hereto.
<PAGE>23
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.
ALASKA GOLD COMPANY
By:/s/ Gary L. Barker
Name: Gary L. Barker
Title: President
MUELLER ACQUISITION CORPORATION
By:/s/ William H. Hensley
Name: William H. Hensley
Title: President and Secretary
MUELLER INDUSTRIES, INC.
By:/s/ William H. Hensley
Name: William H. Hensley
Title: Vice President, General
Counsel and Secretary
