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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): MARCH 18, 1994
FISCHER & PORTER COMPANY
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
PENNSYLVANIA 1-4400 23-0582516
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(STATE OR OTHER (COMMISSION FILE (I.R.S. EMPLOYER
JURISDICTION OF NUMBER) IDENTIFICATION NO.)
INCORPORATION)
125 EAST COUNTY LINE ROAD, WARMINSTER, PA 18974
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (215)674-6000
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(NOT APPLICABLE)
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(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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ITEM 5. OTHER EVENTS.
On March 18, 1994, Fischer & Porter Company, a Pennsylvania
corporation (the "Company"), and Moorco International Inc., a Delaware
corporation ("Moorco"), entered into a definitive agreement providing for the
acquisition of the Company by Moorco. The acquisition will be effected
pursuant to an Agreement and Plan of Reorganization, dated as of March 18, 1994
(the "Merger Agreement"), providing for the merger (the "Merger") of a
wholly-owned subsidiary of Moorco with and into the Company. The Merger
Agreement is attached hereto as Exhibit 2.1 and incorporated herein by
reference.
Pursuant to the Merger Agreement, each outstanding share of
the Company's common stock, par value $1.00 per share, will be converted into
the right to receive $23.25 in cash, without interest. Moorco has received a
commitment from NationsBank of Texas, N.A. to provide debt financing for the
transaction. The consummation of the Merger is subject to a number of
conditions, including (a) the approval of the transaction by the shareholders
of the Company, (b) the expiration or early termination of the waiting period
required by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, (c) the
availability to Moorco of the funds necessary for the Merger pursuant to the
NationsBank of Texas, N.A. commitment and (d) the establishment of certain
arrangements between Moorco (and its affiliates, including the Company after
the closing) and the Company's former Class B shareholders to limit the
liability of Moorco (and its affiliates, including the Company after the
closing) after the Merger for matters relating to the Company's September 30,
1993 issuance of common stock purchase warrants. The Company's former Class B
shareholders have agreed to these arrangements, and a copy of their agreement
is attached hereto as Exhibit 10.1 and incorporated herein by reference.
The Merger Agreement is the result of a six-month auction
process that was commenced by the Company in October 1993. CS First Boston
Corporation acted as financial advisor to the Company in the auction, and has
delivered its opinion (the "Fairness Opinion") that the consideration to be
received by the shareholders of the Company in the transaction provided in the
Merger Agreement is fair to such shareholders from a financial point of view.
The Fairness Opinion is attached hereto as Exhibit 99.1 and incorporated herein
by reference.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
(1) Agreement and Plan of Reorganization, dated
as of March 18, 1994, among the Company,
Moorco and F&P Acquisition, Inc. (with list
of omitted Schedules thereto).
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(2) Memorandum Agreement, dated March 18, 1994,
to Fischer & Porter Company from Jay H.
Tolson and E. Joseph Hochreiter.
(3) Fairness opinion of CS First Boston
Corporation dated March 18, 1994.
(4) Joint press release, dated March 18, 1994.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
FISCHER & PORTER COMPANY
(Registrant)
By /s/ E. Joseph Hochreiter
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E. Joseph Hochreiter
President and Chief Operating Officer
Dated: March 31, 1994
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Exhibit Index
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Exhibit Page
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2.1(a) Agreement and Plan of Reorganization, dated as of March
18, 1994, among Fischer & Porter Company, Moorco
International Inc. and F&P Acquisition, Inc. (Schedules
omitted) . . . . . . . . . . . . . . . . . . . . . . --
2.1(b) List of omitted Schedules to the
Agreement and Plan of Reorganization . . . . . . . . --
10.1 Memorandum Agreement, dated March 18, 1994, to
Fischer & Porter Company from Jay H. Tolson and
E. Joseph Hochreiter . . . . . . . . . . . . . . . . --
99.1 Opinion Letter, dated March 18, 1994, from
CS First Boston Corporation to Fischer & Porter
Company . . . . . . . . . . . . . . . . . . . . . . --
99.2 Joint press release, dated March 18, 1994, of
Fischer & Porter Company and Moorco International
Inc. . . . . . . . . . . . . . . . . . . . . . . . --
</TABLE>
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Conformed
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AGREEMENT AND PLAN OF REORGANIZATION
Among
FISCHER & PORTER COMPANY
MOORCO INTERNATIONAL INC.
and
F&P ACQUISITION, INC.
Dated as of March 18, 1994
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TABLE OF CONTENTS
<TABLE>
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Page
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ARTICLE I
PLAN OF REORGANIZATION
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SECTION 1.01. The Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Conversion and Cancellation of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.03. Timing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Representations and Warranties by F&P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.02. Representations and Warranties
by Buyer and Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE III
ADDITIONAL COVENANTS AND AGREEMENTS
SECTION 3.01. Shareholder Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 3.02. Conduct of F&P's Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3.03. Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.04. Inquiries and Negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.05. Notification of Certain Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.06. Access to Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.07. Public Announcements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.08. Indemnification;
Director's and Officer's Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE IV
CONDITIONS TO THE MERGER
SECTION 4.01. Conditions to the Merger
Relating to Buyer and Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.02. Conditions to the Merger Relating to F&P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE V
TERMINATION AND ABANDONMENT
SECTION 5.01. Termination by Mutual Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.02. Termination by F&P, Buyer or Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.03. Termination by F&P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.04. Termination by Buyer and Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
</TABLE>
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SECTION 5.05. Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.06. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.07. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6.02. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 6.03. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 6.04. No Survival of Representations or Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 6.05. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 6.06. Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 6.07. No Rights; Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 6.08. No Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 6.09. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
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EXHIBIT
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EXHIBIT A Plan of Merger
SCHEDULES
SCHEDULE 2.01(b) Options and Warrants
SCHEDULE 2.01(e) Required Consents
SCHEDULE 2.01(i) Employee Benefit Plans
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AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION, dated as of March 18, 1994
(the "Agreement"), among FISCHER & PORTER COMPANY, a Pennsylvania corporation
("F&P"), MOORCO INTERNATIONAL INC., a Delaware corporation ("Buyer"), and F&P
ACQUISITION, INC., a Pennsylvania corporation and a wholly-owned subsidiary of
Buyer ("Acquisition").
W I T N E S E T H
WHEREAS, the respective boards of directors of F&P, Buyer and
Acquisition have each approved the acquisition of F&P by Buyer through a
merger (the "Merger") of Acquisition with and into F&P (Acquisition and
F&P being sometimes hereinafter together referred to as the "Constituent
Corporations") in accordance with the provisions of this Agreement and
the Plan of Merger set forth as Exhibit A hereto (the "Plan of Merger"),
in which outstanding shares of F&P common stock, par value $1.00 per
share (the "F&P Common Stock"), will be converted into the right to
receive cash, without interest, in the amount of $23.25 (the "Merger
Price") per share.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants, agreements and conditions contained herein, and in order
to set forth the terms and conditions of the Merger and the mode of carrying
the same into effect, the parties hereto, intending to be legally bound, hereby
agree as follows:
ARTICLE I
PLAN OF REORGANIZATION
SECTION 1.01. The Merger. At the Effective Time (as hereinafter
defined), Acquisition shall be merged with and into F&P pursuant to this
Agreement and the Plan of Merger and the separate corporate existence of
Acquisition shall cease. F&P, as it exists from and after the Effective Time,
is sometimes hereinafter referred to as the "Surviving Corporation".
SECTION 1.02. Conversion and Cancellation of Securities. At the
Effective Time, by virtue of the Merger and without any action on the part of
Buyer, Acquisition, F&P or any holder of any shares of capital stock of F&P,
the shares of capital stock of each of the Constituent Corporations shall be
converted as set forth in the Plan of Merger.
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SECTION 1.03. Timing.
(a) Shareholder Approval. F&P shall submit this Agreement, the
Plan of Merger and the Merger to its shareholders for approval and adoption at
a meeting to be held as soon as practicable and will use its best efforts to
hold such meeting within 60 days in accordance with Section 3.01 hereof. In
connection with such meeting, F&P shall take all steps as shall be necessary
for the prompt preparation and filing by F&P of a proxy statement (the "Proxy
Statement"), as contemplated by Rules 14a-1 et. seq. under the Securities
Exchange Act of 1934 (the "Exchange Act"), with the Securities and Exchange
Commission (the "SEC") and shall use its best efforts to cause the Proxy
Statement to be mailed to the holders of shares of F&P Common Stock as soon as
practicable.
(b) Closing and Effective Time. Subject to the Merger
receiving all requisite shareholder approvals and subject to the provisions of
this Agreement, the parties shall hold a closing (the "Closing") on (i) the
later of (A) the second business day following the meeting of the shareholders
of F&P to consider and vote upon this Agreement, the Plan of Merger and the
Merger and (B) the first business day on which the last of the conditions set
forth in Article IV to be fulfilled prior to the Closing is fulfilled or waived
or (ii) such other date as the parties hereto may agree (the "Closing Date"),
at 10:00 A.M. (local time) at the offices of Morgan, Lewis & Bockius,
Philadelphia, Pennsylvania, or at such other time or place as the parties
hereto may agree. On the Closing Date, Articles of Merger shall be filed with
the Secretary of the Commonwealth of Pennsylvania in accordance with the
provisions of the BCL, and the Merger shall become effective upon such filing
or at such later time on the Closing Date as may be specified in the filing
with the Secretary of the Commonwealth of Pennsylvania (the "Effective Time").
As a result of the Merger, the Surviving Corporation shall become a
wholly-owned subsidiary of Buyer at the Effective Time.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Representations and Warranties by F&P. F&P
represents and warrants to Buyer and Acquisition as follows:
(a) Organization and Qualification. F&P and each of its
subsidiaries 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 or lease and operate its
properties and to carry on its business as it has been and now is being
conducted, and is duly qualified as a foreign corporation to do business, and
is in
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good standing, in each jurisdiction in which the nature of its business or the
ownership or leasing of its properties makes such qualification necessary,
except for such jurisdictions where the failure so to qualify would not have a
material adverse effect on F&P and its subsidiaries taken as a whole.
(b) Capitalization. The authorized capital stock of F&P
consists of (i) 8,000,000 shares of F&P common stock, par value $1 per share
(previously defined as the F&P Common Stock), (ii) 50,000 shares of F&P
convertible exchangeable preferred stock, par value $100 per share (the "F&P
Preferred Stock"), (iii) 1,000,000 share of F&P series preference stock, par
value $1 per share (the "F&P Series Stock"), and (iv) 700,000 shares of F&P
class B capital stock, par value $1 per share (the "F&P Class B Stock"). At
the close of business on March 17, 1994, [5,295,250] shares of F&P Common Stock
were issued and outstanding and 13 shares of F&P Common Stock were held in
treasury by F&P, and no shares of F&P Preferred Stock, F&P Series Stock or F&P
Class B Stock were issued and outstanding. All of such issued and outstanding
shares of F&P Common Stock were validly issued, and are fully paid and
nonassessable and were issued in compliance with all applicable Federal and
state securities laws. Since March 17, 1994, no shares of F&P Common Stock,
F&P Preferred Stock, F&P Series Stock or F&P Class B Stock have been issued.
Except for options and warrants described in Schedule 2.01(b) hereto, there are
no options, warrants, calls, agreements or other rights to purchase or
otherwise acquire from F&P at any time, or upon the happening of any stated
event, any shares of the capital stock of F&P or any of its subsidiaries,
whether or not presently issued or outstanding.
(c) Authority Relative to Agreements. F&P has all requisite
corporate power and authority to execute and deliver this Agreement and the
agreements and instruments to be executed and delivered by F&P in connection
herewith (collectively, the "Other F&P Agreements") and, subject only to the
requisite approval of its shareholders, the requisite approval to perform its
obligations hereunder and thereunder. This Agreement has been approved the
Board of Directors of F&P. The execution and delivery of this Agreement and
the Other F&P Agreements by F&P and the consummation by F&P of the transactions
contemplated hereby and thereby have been duly authorized by the Board of
Directors of F&P and, except for the approval and adoption of this Agreement,
the Plan of Merger and the Merger by its shareholders, no other corporate
proceedings on the part of F&P are necessary to authorize the Merger and the
other transactions contemplated hereby and thereby. This Agreement has been,
and each Other F&P Agreement will be, duly executed and delivered by F&P and,
subject only to the requisite approval of its shareholders, this Agreement
constitutes, and each Other F&P Agreement when executed and delivered will
constitute, a valid
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and binding obligation of F&P, enforceable against F&P in accordance with its
terms.
(d) Lack of Conflict With Other Agreements. The execution and
delivery of this Agreement and the Other F&P Agreements by F&P and the
consummation by F&P of the transactions contemplated hereby and thereby will
not (i) conflict with any provision of the Articles of Incorporation or Bylaws
of F&P or (ii) except for agreements between F&P or any of its subsidiaries and
its or their lenders, result in any violation of or default or loss of a
benefit under, or permit the acceleration of any obligation under, any
mortgage, indenture, lease, agreement or other instrument, permit, concession,
grant, franchise, license, judgment, order, decree, statute, law, ordinance,
rule or regulation applicable to F&P or any of its subsidiaries, which
violation, default, loss or acceleration would have a material adverse effect
on F&P and its subsidiaries, taken as a whole.
(e) Consents. No consent, approval, order or authorization of,
or registration, declaration or filing with, any Federal, state, local or
foreign governmental or regulatory authority is required to be obtained or made
by F&P in connection with the execution and delivery of this Agreement or the
Other F&P Agreements by F&P or the consummation by F&P of the transactions
contemplated hereby and thereby, except for (i) filings pursuant to Section 14
of the Exchange Act and the rules and regulations promulgated by the SEC
thereunder, (ii) the filing of a premerger notification and the expiration or
early termination of the waiting period required by the Hart-Scott-Rodino
Antitrust Improvements Act of 1976 (the "HSR Act"), (iii) as described in
Schedule 2.01(e) hereto and (iv) the filing of Articles of Merger with the
Secretary of the Commonwealth of Pennsylvania.
(f) SEC Filings. F&P has made available to Buyer and
Acquisition a true and complete copy of each report, schedule, registration
statement and definitive proxy statement filed by F&P with the SEC since
January 1, 1990 (together referred to as the "SEC Filings"). As of their
respective dates, the SEC Filings did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, except, in the case of any SEC Filing,
any statement or omission therein which has been corrected or otherwise
disclosed or updated in a subsequent SEC Filing. The financial statements of
F&P included in the SEC Filings have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis (except as may be
indicated therein or in the notes thereto) and fairly present the financial
position of F&P as at the dates thereof and the results of its operations and
changes in financial position for the periods then ended, subject, in the
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case of the unaudited interim financial statements, to the omission of footnote
information and to normal year-end audit adjustments.
(g) F&P has furnished to Buyer its balance sheet as of December
31, 1993, together with a statement of income for the year then ended (the
"Financial Statements"). The Financial Statements have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis (except as may be indicated therein or in the notes thereto)
and fairly present the financial position of F&P as of December 31, 1993 and
the results of its operations and changes in financial position for the year
then ended.
(h) Proxy Statement. None of the information included in the
Proxy Statement (as amended or supplemented) will, at the time the proxy
statement is mailed or at the time of the meeting of shareholders to which the
Proxy Statement relates, contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
that no representation or warranty is made with respect to information relating
to Buyer or Acquisition supplied by Buyer or Acquisition for inclusion in the
Proxy Statement. The Proxy Statement will comply in all material respects, as
to form and otherwise, with the requirements of the Exchange Act and the rules
and regulations promulgated by the SEC thereunder.
(i) Litigation. There are no actions, suits or proceedings
pending, or to the knowledge of F&P threatened against F&P or any of its
subsidiaries, which if determined or resolved adversely to F&P or any of its
subsidiaries is reasonably likely to have a material adverse effect on F&P and
its subsidiaries, taken as a whole.
(j) Employee Benefit Plans. Schedule 2.01(i) hereto lists all
employee benefit plans, contracts, agreements or arrangements sponsored,
maintained or contributed to by F&P or any of its United States subsidiaries
(collectively, the "Employee Benefit Plans") including without limitation all
employment, pension, retirement, deferred compensation, incentive, bonus,
profit-sharing, stock purchase, stock option, performance share, stock
appreciation right, phantom stock, life insurance, death or survivor's benefit,
health insurance, sickness, disability, medical, surgical, hospital, severance,
layoff or vacation plans, contracts, agreements or arrangements. Accurate
summaries of the material benefits provided under all Employee Benefit Plans
have been delivered to Buyer and Acquisition. Except as described in Schedule
2.01(i) hereto, (i) neither F&P nor any of its subsidiaries has incurred any
obligation to contribute any material amount to any multi- employer plan, as
defined in Section 3(37) of the Employee
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Retirement Income Security Act of 1974, as amended ("ERISA"), (ii) neither F&P
nor any of its subsidiaries has incurred any material liability under Title IV
of ERISA arising in connection with the termination of, or complete or partial
withdrawal from, any plan covered or previously covered by Title IV of ERISA,
and (iii) each Employee Benefit Plan is in compliance with all applicable laws
and regulations in all material respects.
(k) Brokers. Except for the arrangement regarding CS First
Boston heretofore disclosed to Buyer, no broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the Merger based upon arrangements made by or on behalf of F&P.
(l) Environmental Matters.
(1) F&P is not subject to any existing or pending (or to the
knowledge of F&P threatened) action, suit, investigation, inquiry or proceeding
by any governmental authority or private party under, or is currently in
violation of, or subject to, any remedial obligation under, any environmental
law except for (i) violations or obligations that would not have, either
individually or in the aggregate, a material adverse effect on the business,
prospects, results of operations or condition (financial or otherwise) of F&P,
taken as a whole, and (ii) actions, suits, investigations, inquiries or
proceedings that, if adversely determined, would not have, either individually
or in the aggregate, a material adverse effect on the business, prospects,
results of operations or condition (financial or otherwise) of F&P, taken as a
whole; and
(2) all environmental notices, permits, licenses or similar
authorizations, if any, required to be obtained or filed in connection with the
operation of the business of F&P have been obtained or filed, except where the
failure to obtain or file the same would not have, either individually or in
the aggregate, a material adverse effect on the business, prospects, results of
operations or condition (financial or otherwise) of F&P, taken as a whole.
SECTION 2.02. Representations and Warranties by Buyer and Acquisition.
Buyer and Acquisition each represent and warrant to F&P as follows:
(a) Organization and Qualification; Etc. Each of Buyer and
Acquisition 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 or lease and operate its
properties and to carry on its business as it is now being conducted. Buyer
owns beneficially and of record all the issued and outstanding capital stock of
Acquisition.
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(b) Authority Relative to Agreements. Each of Buyer and
Acquisition has all requisite corporate power and authority to enter into this
Agreement and the agreements and instruments to be executed and delivered by
Buyer or Acquisition in connection herewith (collectively, the "Other Buyer
Agreements") and to perform its obligations hereunder and thereunder. The
execution and delivery of this Agreement and the Other Buyer Agreements by
Buyer and Acquisition and the consummation by Buyer and Acquisition of the
transactions contemplated hereby and thereby have been duly authorized by the
Boards of Directors of Buyer and Acquisition and no other corporate proceedings
on the part of Buyer or Acquisition are necessary to authorize the Merger and
the other transactions contemplated hereby and thereby. This Agreement has
been, and each Other Buyer Agreement will be, duly executed and delivered by
Buyer or Acquisition and this Agreement constitutes, and each Other Buyer
Agreement when executed and delivered will constitute, a valid and binding
obligation of Buyer or Acquisition, as the case may be, enforceable against
Buyer and Acquisition in accordance with its terms.
(c) Lack of Conflicts with Other Agreements. The execution and
delivery of this Agreement and the Other Buyer Agreements by Buyer and
Acquisition and the consummation by Buyer and Acquisition of the transactions
contemplated hereby and thereby will not (i) conflict with any provision of the
charter or organizational documents of Buyer or Acquisition or (ii) result in
any violation of or default or loss of a benefit under, or permit the
acceleration of any obligation under, any mortgage, indenture, lease, agreement
or other instrument, permit, concession, grant, franchise, license, judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to Buyer
or Acquisition, which violation, default, loss or acceleration would have a
material adverse effect on Buyer or Acquisition.
(d) Consents. No consent, approval, order or authorization of,
or registration, declaration or filing with, any Federal, state, local or
foreign governmental or regulatory authority is required to be made or obtained
by Buyer or Acquisition in connection with the execution and delivery of this
Agreement or any Other Buyer Agreement by Buyer or Acquisition or the
consummation by Buyer or Acquisition of the transactions contemplated hereby
and thereby, except for (i) the filing of a premerger notification and the
expiration or early termination of the waiting period required by the HSR Act
and (ii) the filing of Articles of Merger with the Secretary of the
Commonwealth of Pennsylvania.
(e) Proxy Statement and Other Information. None of the
information relating to Buyer or Acquisition which is supplied by Buyer for
inclusion in the Proxy Statement (as such information is amended or
supplemented) will, at the time the
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proxy statement is mailed or at the time of the meeting of shareholders to
which the Proxy Statement relates, contain any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except that no representation or warranty is otherwise made by
Buyer or Acquisition with respect to the Proxy Statement.
(f) Brokers. Except for Wasserstein Perella & Co., no broker,
finder or investment banker is entitled to any brokerage, finder's or other fee
or commission in connection with the Merger based upon arrangements made by or
on behalf of Buyer or Acquisition.
(g) Financing. Buyer has on hand or access to, and will make
available to Acquisition on or prior to the Effective Time, funds sufficient to
pay the Merger Price for all issued and outstanding shares of F&P Common Stock
pursuant to the Merger and to pay all other amounts owing by F&P or Acquisition
in connection with the transactions contemplated by this Agreement.
(h) Buyer, as of the date of this Agreement, has been advised
by NationsBank of Texas, N.A. ("NationsBank") that:
(i) no additional diligence of F&P is required by NationsBank
in connection with the loans contemplated by the commitment
letter from NationsBank to Buyer dated March 11, 1994; and
(ii) all authorizations internal to the NationsBank approval
process have been obtained; and
(iii) a condition precedent to the loans contemplated by the
aforementioned commitment letter is that no material
adverse change shall have occurred to the business,
financial condition, property or prospect(s) of (i) F&P,
taken as a whole, or (ii) Buyer and its subsidiaries (on a
consolidated basis) and F&P, taken as a whole, since
December 31, 1993.
ARTICLE III
ADDITIONAL COVENANTS AND AGREEMENTS
SECTION 3.01. Shareholder Approval.
(a) As soon as reasonably practicable following the date of
this Agreement, F&P shall take all action necessary in accordance with the
Exchange Act, the laws of the Commonwealth of Pennsylvania and its Articles of
Incorporation and Bylaws to
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call, give notice of and convene a meeting (the "Meeting") of its shareholders
to consider and vote upon the approval and adoption of this Agreement, the Plan
of Merger and the Merger and for such other purposes as may be necessary or
desirable. The Board of Directors of F&P shall, subject to its fiduciary
duties, recommend without qualification of any nature that F&P's shareholders
vote to approve and adopt this Agreement, the Plan of Merger and the Merger and
any other matters to be submitted to F&P's shareholders in connection
therewith. The Board of Directors of F&P shall, subject to its fiduciary
duties, use its reasonable best efforts to solicit and secure from shareholders
of F&P such approval and adoption, which efforts may include without limitation
causing F&P to solicit shareholder proxies therefor and to advise Buyer upon
its request from time to time as to the status of the shareholder vote then
tabulated.
(b) Promptly following the date of this Agreement, F&P shall
prepare and file with the SEC under the Exchange Act and the rules and
regulations promulgated by the SEC thereunder, a preliminary draft of the Proxy
Statement. Buyer and Acquisition shall cooperate fully with F&P in the
preparation and filing of the Proxy Statement and any amendments and
supplements thereto. The Proxy Statement shall not be filed, and no amendment
or supplement thereto shall be made by F&P, and no communication with the SEC
shall be had, without in each case prior consultation with Buyer and
Acquisition and their counsel. F&P will use its best efforts to have any
review of the Proxy Statement conducted by the SEC promptly. As soon as
reasonably practicable following the date of this Agreement, F&P shall cause to
be mailed a definitive Proxy Statement to its shareholders entitled to vote at
the Meeting promptly following completion of any review by, or in the absence
of such review, the termination of any applicable waiting period of, the SEC.
SECTION 3.02. Conduct of F&P's Business. F&P covenants and
agrees that, from the date of this Agreement to the Effective Time, unless
Buyer or Acquisition shall otherwise agree in writing or as otherwise expressly
contemplated by this Agreement:
(a) F&P shall not directly or indirectly do any of the
following: (i) issue, sell, pledge, dispose of or encumber any assets of F&P
other than in the ordinary course of its business consistent with past
practice, (ii) amend or propose to amend its Articles of Incorporation or
Bylaws, (iii) split, combine or reclassify any outstanding shares of its
capital stock, or declare, set aside or pay any dividend payable in cash,
stock, property or otherwise with respect to such shares, (iv) redeem,
purchase, acquire or offer to acquire any shares of its capital stock or (v)
enter into any agreement with respect to any of the matters set forth in this
Section 3.02(a);
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(b) F&P shall not (i), except in connection with the exercise
of any Company Stock Options or Company Warrants (each as defined in the Plan
of Merger), issue, sell, pledge or dispose of, or agree to issue, sell, pledge
or dispose of, any additional shares of, or securities convertible or
exchangeable for, or any options, warrants or rights of any kind to acquire any
shares of, its capital stock of any class or other property or assets whether
pursuant to any rights agreement, stock plan or otherwise, (ii) acquire (by
merger, consolidation or acquisition of stock or assets) any corporation,
partnership or other business organization or division thereof, (iii) incur any
indebtedness for borrowed money or issue any debt securities, except in the
ordinary course of its business consistent with past practice, (iv) enter into
or modify any material contract, lease or agreement except in the ordinary
course of its business consistent with past practice, (v) terminate, modify,
assign, waive, release or relinquish any material contract rights or amend any
material rights or claims not in the ordinary course of its business consistent
with past practice or except as expressly provided herein or (vi) dissolve or
otherwise alter its corporate existence;
(c) F&P shall not grant any increase in the salary or other
compensation of its employees or grant any bonus to any employee, except in the
ordinary course of its business consistent with past practice. F&P shall not
enter into any employment agreement or make any loan to or enter into any
material transaction of any other nature with any officer or other executive
employee of F&P;
(d) F&P shall not take any action to institute any new
severance or termination pay practices with respect to any directors, officers
or employees of F&P or to increase the benefits payable under its severance or
termination pay practices;
(e) F&P shall not hire any new employees except for employees
having an annualized salary of less than $100,000 who are terminable at will;
(f) F&P shall not adopt or amend, in any respect, except as may
be required by applicable law or regulation, any bonus, profit sharing,
compensation, stock option, restricted stock, pension, retirement, deferred
compensation, employment or other employee benefit plan, agreement, trust,
fund, plan or arrangement for the benefit or welfare of any directors, officers
or employees, except in the ordinary course of its business consistent with
past practice;
(g) F&P shall not mortgage, pledge or otherwise subject to any
lien, security interest, encumbrance or change of any nature, any of its
property or assets, or become committed so
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<PAGE> 14
to do, or permit or suffer any of such property or assets to become subject to
any mortgage, pledge, lien, security interest, encumbrance or change of any
nature, other than liens of current taxes not yet due and payable, or become
committed to do so;
(h) F&P shall use its reasonable best efforts to maintain its
relationships with its suppliers and customers and, if and as requested by
Buyer or Acquisition, (i) F&P shall make reasonable arrangements as reasonably
requested by Buyer or Acquisition for representatives of Buyer or Acquisition
to meet with customers and suppliers of F&P (if Buyer shall give F&P reasonable
notice of such meetings) and (ii) F&P shall schedule, and the management of F&P
shall participate in, meetings of representatives of Buyer or Acquisition with
employees of F&P;
(i) F&P shall not make any new commitments for capital
expenditures in excess of $100,000 individually or $500,000 in the aggregate,
except for expenditures for maintenance of capital assets in the ordinary
course of its business consistent with past practice;
(j) F&P shall maintain all of the assets used or useful to the
business of F&P in good repair, order and condition, maintain in full force and
effect all franchises, licenses, permits, consents, approvals, rights, waivers
and other authorizations, governmental or otherwise, currently in effect and
maintain in full force all policies of insurance or satisfactory substitute
insurance policies insuring against the risks, damages and losses covered by
the insurance policies currently in force, in each case consistent with its
past practice.
(k) F&P shall not otherwise conduct its business except in the
ordinary course consistent with past practice; and
(l) F&P shall obtain agreements in form and substance
reasonably satisfactory to Buyer from holders of all Company Stock Options and
holders of all Company Warrants to cancel such options and warrants in
accordance with section 3(d) of the Plan of Merger.
SECTION 3.03. Other Agreements. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use its
reasonable best efforts to take, or cause to be taken, all action and to do, or
cause to be done, all things necessary, proper or advisable to consummate and
make effective as promptly as practicable the transactions contemplated by this
Agreement, including without limitation using its reasonable best efforts to
obtain all necessary waivers, consents and approvals and to effect all
necessary registrations and filings, including without limitation filings
required under the HSR Act and the Exchange Act.
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<PAGE> 15
SECTION 3.04. Inquiries and Negotiations. F&P shall immediately
cease and cause to be terminated any existing activities, discussions or
negotiations with any parties conducted heretofore in respect of the
acquisition of all or any substantial part of the business and properties of
F&P, whether by sale of assets or shares of capital stock of F&P, or by merger,
consolidation, recapitalization, liquidation or similar transaction including
F&P (collectively, an "Acquisition Transaction"). F&P shall not, and shall not
permit its officers, employees, representatives or agents to, directly or
indirectly, (a) solicit or initiate discussions or negotiations with, or
provide any nonpublic information to, any person other than Buyer or its
affiliates concerning an Acquisition Transaction, or (b) otherwise solicit,
initiate or encourage inquiries or the submission of any proposal contemplating
an Acquisition Transaction. F&P shall promptly communicate to Buyer the terms
of any inquiry or proposal which it may receive in respect of an Acquisition
Transaction. F&P's notification under this Section 3.04 shall include the
identity of the person making such proposal or any other such information with
respect thereto as Buyer may reasonably request. Nothing contained in this
Agreement shall be construed to prohibit F&P from (a), if advised in writing by
counsel to be required by fiduciary obligations under applicable law, providing
non-public information to, and participating in negotiations with, a person who
has made a bona fide offer to effect an Acquisition Transaction for an all cash
purchase price in excess of the Merger Price and (b) accepting an offer for an
Acquisition Transaction which the Board of Directors of F&P, on the advice in
writing of its investment banker, believes is more favorable to F&P or to its
shareholders than the Merger contemplated hereby.
SECTION 3.05. Notification of Certain Matters. F&P shall give
prompt notice to Buyer and Acquisition, and Buyer and Acquisition shall give
prompt notice to F&P, of (i) the occurrence, or failure to occur, of any event
which such party believes would likely cause any of its representations or
warranties contained in this Agreement to be untrue or inaccurate in any
material respect at any time from the date of this Agreement to the Effective
Time and (ii) any material failure of F&P, Buyer or Acquisition, as the case
may be, or any officer, director, employee or agent thereof, to comply with or
satisfy any covenant, condition or agreement to be complied with or satisfied
by it hereunder.
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<PAGE> 16
SECTION 3.06. Access to Information.
(a) F&P shall, shall cause its officers, directors and
employees to, and shall use its reasonable best efforts to cause its
representatives and agents (including without limitation its attorneys and
accountants) to, afford, from the date of this Agreement to the Effective Time,
the officers, employees and agents of Buyer and Acquisition complete access at
all reasonable times to its officers, employees, agents, properties, books,
records, work papers, and shall furnish Buyer and Acquisition all financial,
operating and other data and information as Buyer or Acquisition, through its
officers, employees or agents, may reasonably request.
(b) If this Agreement is terminated, the parties hereto shall
comply with the terms of the letter agreement dated October 8, 1993 between F&P
and Buyer regarding confidentiality of all proprietary information of F&P and
Buyer and its affiliates, including without limitation the return of all
materials provided by the other party or certification of their destruction.
SECTION 3.07. Public Announcements. Neither F&P, Buyer nor
Acquisition shall make, issue or release any oral or written public
announcement or statement concerning, or acknowledgment of the existence of, or
reveal the terms, conditions or status of, the transactions contemplated by
this Agreement, or make any other communication to its shareholders or the
investing public, directly or indirectly (including without limitation press
releases and statements to securities analysts), without first making a good
faith attempt to obtain the prior approval of, or concurrence in, the contents
of such announcement, acknowledgment or statement by the other of them, which
approval or concurrence shall not be unreasonably withheld or delayed.
SECTION 3.08. Indemnification; Director's and Officer's
Insurance. After the Effective Time, the Surviving Corporation shall indemnify
and hold harmless (and shall also advance expenses as incurred to the fullest
extent permitted under applicable law to) each person who is now, or has been
prior to the date hereof or who becomes prior to the Effective Time, an officer
or director of F&P or any of its subsidiaries (the "Indemnified Parties")
against (i) all losses, claims, damages, costs, expenses (including without
limitation counsel fees and expenses), settlement payments or liabilities
arising out of or in connection with any claim, demand, action, suit,
proceeding or investigation based in whole or in part on, or arising in whole
or in part out of, the fact that such person is or was an officer or director
of F&P or any of its subsidiaries, whether or not pertaining to any matter
existing or occurring at or prior to the Effective Time and whether or not
asserted or
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claimed prior to or at or after the Effective Time ("Indemnified Liabilities")
and (ii) all Indemnified Liabilities based in whole or in part on, or arising
in whole or in part out of, or pertaining to this Agreement, any Other F&P
Agreement or the transactions contemplated hereby or thereby, in each case to
the fullest extent required or permitted under applicable law or under the
Surviving Corporation's Articles of Incorporation or Bylaws (which in relevant
part are and shall remain identical to F&P's Articles of Incorporation and
Bylaws) or any indemnification agreements in effect on the date hereof (to the
extent consistent with applicable law). Any determination required to be made
with respect to whether an Indemnified Party's conduct complies with the
standards set forth under applicable law or the Surviving Corporation's
Articles of Incorporation or Bylaws shall be made by independent counsel
mutually acceptable to F&P and the Indemnified Party. The parties hereto
intend, to the extent not prohibited by applicable law, that the
indemnification provided for in this Section 3.08 shall apply without
limitation to negligent acts or omissions by an Indemnified Party. The
Surviving Corporation's Articles of Incorporation and Bylaws shall not be
amended in a manner that adversely affects the rights of any Indemnified Party
thereunder or under this Section 3.08, unless otherwise required by applicable
law. To the extent available on terms satisfactory to the Surviving
Corporation, the Surviving Corporation shall maintain, for not less than ten
years after the Effective Time, director's and officer's liability insurance
covering each indemnified person on terms not materially less favorable than
the insurance maintained in effect by F&P on the date hereof in terms of
coverage (including without limitation types of claims, time period of claims,
exclusions and persons covered), amounts and deductibles (but in no event shall
the coverage be less than that being maintained for the benefit of the officers
and directors of Buyer). Buyer hereby guarantees the payment and performance
of the Surviving Corporation's obligations in this Section 3.08. Each
Indemnified Party is intended to be a third party beneficiary of this Section
3.08 and may specifically enforce its terms. This Section 3.08 shall not limit
or otherwise adversely affect any rights any Indemnified Party may have under
any agreement with F&P or under F&P's Articles of Incorporation or Bylaws.
ARTICLE IV
CONDITIONS TO THE MERGER
SECTION 4.01. Conditions to the Merger Relating to Buyer and
Acquisition. The obligation of Buyer and Acquisition to effect the Merger is
subject to the satisfaction prior to the Effective Time of the following
conditions:
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(a) Shareholder Approval and Dissenters Rights. This
Agreement, the Plan of Merger and the Merger shall have been approved and
adopted by the requisite vote of the holders of the outstanding F&P Common
Stock in accordance with the BCL and F&P's Articles of Incorporation and
Bylaws. The aggregate number of Dissenting Shares (as defined in the Plan of
Merger) shall not exceed 10% of the outstanding shares of F&P Common Stock.
(b) No Injunction. No order, decree, ruling or other action of
a court or governmental agency of competent jurisdiction, restraining,
enjoining or otherwise prohibiting the Merger, shall be in effect.
(c) HSR Act. The waiting period under the HSR Act shall have
terminated or early termination thereof shall have been granted.
(d) Financing. NationsBank shall have made available to Buyer
the funds necessary for the Merger at the Closing Date pursuant to the letter
agreement between NationsBank and Buyer dated March 11, 1994, heretofore
provided to F&P.
(e) Truth of Representations and Warranties and Absence of
Material Adverse Change. The representations and warranties of F&P herein
shall be true at and as of the Closing Date and no material adverse change
shall have occurred to the business, financial condition, property or prospects
of F&P taken as a whole since the date of the Financial Statements.
(f) In a manner reasonably satisfactory to the parties:
(1) Jay H. Tolson and E. Joseph Hochreiter ("Tolson and
Hochreiter") will expressly indemnify F&P, Buyer and
Acquisition from any and all liability arising out of
and/or related to the issuance of the common stock purchase
warrants, which indemnity will be secured by the deposit of
$10,000,000 received by them in the Merger into an interest
bearing escrow account at Mellon Bank, N.A. to be invested
in U.S. Treasury obligations having maturities of not more
than 5 years;
(2) Tolson and Hochreiter expressly shall waive any indemnities
running to them from F&P, by contract, charter, by-law or
otherwise for any liability arising out of or connected
with the issuance of the warrants;
(3) Buyer shall agree that F&P shall pay the reasonable defense
costs and expenditures incurred in connection with the
defense of any claim or
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action relating to said warrants up to the $500,000 self-
insured retention under F&P's present directors and officers'
liability insurance policy and will work with Tolson and
Hochreiter on a best efforts basis to secure coverage for any
additional expenditures from the directors and officers'
insurance carrier.
SECTION 4.02. Conditions to the Merger Relating to F&P. The
obligation of F&P to effect the Merger is subject to the satisfaction prior to
the Effective Time of the following conditions:
(a) Shareholder Approval. This Agreement, the Plan of Merger
and the Merger shall have been approved and adopted by the requisite vote of
the holders of the outstanding F&P Common Stock in accordance with the BCL and
F&P's Articles of Incorporation and Bylaws.
(b) No Injunction. No order, decree, ruling or other action of
a court of competent jurisdiction, restraining, enjoining or otherwise
prohibiting the Merger, shall be in effect.
(c) HSR Act. The waiting period under the HSR Act shall have
terminated or early termination thereof shall have been granted.
ARTICLE V
TERMINATION AND ABANDONMENT
SECTION 5.01. Termination by Mutual Consent. This Agreement may
be terminated and the Merger may be abandoned at any time prior to the
Effective Time, before or after the approval by holders of shares of Company
Capital Stock, by the mutual consent of the F&P, Buyer and Acquisition, by
action of their respective Boards of Directors.
SECTION 5.02. Termination by F&P, Buyer or Acquisition. This
Agreement may be terminated and the Merger may be abandoned by action of either
the Board of Directors of the F&P or the Boards of Directors of Buyer and
Acquisition if (a) the Merger shall not have been consummated on or before
[six] months after the date hereof, or such later date as may be mutually
agreed to by the parties hereto (but only if the party seeking to terminate
this Agreement is not otherwise in breach in any material respect of any of its
obligations hereunder) or (b) any court or governmental agency of competent
jurisdiction shall have issued an order, decree or ruling or taken any other
action restraining, enjoining or otherwise prohibiting the Merger and
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such order, decree, ruling, or other action shall have become final and
nonappealable.
SECTION 5.03. Termination by F&P. This Agreement may be
terminated and the Merger may be abandoned by action of the Board of Directors
of F&P if (a) Buyer or Acquisition shall have failed to comply in any material
respect with any of the covenants or agreements contained in this Agreement to
be complied with or performed by it at or prior to the Effective Time and such
failure has not been cured within 30 days after receipt of notice thereof, or
(b) the Board of Directors of F&P shall have withdrawn or modified in a manner
adverse to Buyer or Acquisition its approval or recommendation of the Merger in
order to approve an Acquisition Transaction with any third party.
SECTION 5.04. Termination by Buyer and Acquisition. This
Agreement may be terminated and the Merger may be abandoned by action of the
Boards of Directors of Buyer and Acquisition if (a) F&P shall have failed to
comply in any material respect with any of the covenants or agreements
contained in this Agreement to be complied with or performed by it at or prior
to the Effective Time and such failure has not been cured within 30 days after
receipt of notice thereof, (b) any condition to the Merger as set out in
Section 4.01 has not been satisfied for any reason or (c) the Board of
Directors of F&P shall not recommend to its shareholders the approval of this
Agreement, or shall withdraw or modify in a manner adverse to Buyer or
Acquisition its approval or recommendation of the Merger, or shall take any
other action to facilitate an Acquisition Transaction with any third party.
SECTION 5.05. Effect of Termination. Except as provided in
Section 3.06(b) hereof with respect to information obtained in connection with
the transactions contemplated hereby, in the event of the termination of this
Agreement and the abandonment of the Merger, this Agreement shall thereafter
become void and have no effect, and no party thereto shall have any liability
to any other party hereto or its shareholders or directors or officers in
respect thereof, and each party shall be responsible for its own expenses,
except that nothing herein shall relieve any party from liability for any
willful breach thereof. Notwithstanding the foregoing, in the event that F&P
terminates this Agreement pursuant to clause (b) in Section 5.03 hereof, or
Buyer and Acquisition terminate this Agreement pursuant to clause (c) of
Section 5.04 hereof, then F&P shall, within ten business days following the
termination of this Agreement, pay Buyer a termination fee payable in cash of $
[3% of aggregate consideration called for by the Merger which, for purposes
hereof, is defined to be the aggregate Merger Price plus the indebtedness of
F&P set forth in the Financial Statements]. Except as provided in the
immediately preceding sentence, and whether or not the Merger is consummated,
all costs and expenses incurred in connection with this Agreement and the
transactions
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contemplated hereby shall be paid by the party incurring such expenses.
SECTION 5.06. Amendment. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto; except that after approval of the Merger by the shareholders of F&P, no
amendment may be made which decreases the amount of cash to which the
shareholders of F&P are entitled pursuant to this Agreement or otherwise
materially adversely affects the shareholders of F&P without the further
approval of a majority of the votes cast by the shareholders of F&P.
SECTION 5.07. Waiver. Any time prior to the Effective Time, any
party hereto may (a) in the case of the Buyer or Acquisition, extend the time
for the performance of any of the obligations or other acts of F&P or, subject
to the provisions contained in Section 5.06 hereof, waive compliance with any
of the agreements of F&P or with any conditions to the respective obligations
of Buyer or Acquisition, or (b) in the case of F&P, extend the time for the
performance of any of the obligations or other acts of Buyer or Acquisition, or
waive compliance with any conditions to its own obligations. Any agreement on
the part of a party hereto to any such extension or waiver shall be valid if
set forth in an instrument in writing signed on behalf of such party by a duly
authorized officer.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Notices. Any notices or other communications
required or permitted hereunder shall be sufficiently given if sent by
facsimile transmission, registered or certified mail, postage prepaid, or
Federal Express or similar overnight delivery addressed, in the case of F&P, to
it at
Fischer & Porter Company
125 East County Line Road
Warminster, PA 18974
Attention: Mr. Jay H. Tolson
Chairman and Chief Executive Officer
Facsimile No. 215-674-6622
with a required copy to:
Morgan, Lewis & Bockius
2000 One Logan Square
Philadelphia, PA 19103
Attention: William E. Zeiter, Esq.
Facsimile No. 215-963-5299
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or, in the case of Buyer and Acquisition, to them at:
Moorco International Inc.
2800 Post Oak Boulevard
Suite 5701
Houston, TX 77056-6111
Attention: Michael L. Tiner,
President and Chief Executive Officer
Facsimile No. 713-993-7488
with a required copy to:
Moorco International Inc.
2800 Post Oak Boulevard
Suite 5701
Houston, TX 77056-6111
Attention: James J. Nelson,
Vice President, General Counsel
and Secretary
Facsimile No. 713-993-7488
or such other address as shall be furnished in writing by any party to the
others prior to the giving of the applicable notice or communication.
SECTION 6.02. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 6.03. Headings. The headings herein are for convenience
of reference only, do not constitute a part of this Agreement, and shall not be
deemed to limit or affect any of the provisions of this Agreement.
SECTION 6.04. No Survival of Representations or Warranties. None
of the representations or warranties included or provided for herein or in any
schedule or certificate or other document delivered pursuant to this Agreement
shall survive consummation of the Merger.
SECTION 6.05. Entire Agreement. This Agreement, which includes
the Exhibit and Schedules hereto, constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral,
among the parties, with respect to the subject matter of this Agreement.
SECTION 6.06. Cooperation. Subject to the terms and conditions
of this Agreement, each of the parties hereto shall use its reasonable best
efforts to take, or cause to be taken,
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such action, to execute and deliver, or cause to be executed and delivered,
such governmental notifications and additional documents and instruments and to
do, or cause to be done, all things necessary, proper or advisable under the
provisions of this Agreement and under applicable law to consummate and make
effective the transactions contemplated by this Agreement.
SECTION 6.07. No Rights; Etc. Nothing in this Agreement express
or implied is intended to confer upon any other person, other than the
Indemnified Parties, any rights or remedies under or by reason of this
Agreement.
SECTION 6.08. No Assignment. This Agreement shall not be
assigned, by operation of law or otherwise.
SECTION 6.09. Governing Law. This Agreement shall be governed in
all respects, including without limitation validity, interpretation and effect,
by the laws of the Commonwealth of Pennsylvania, applicable to contracts made
and to be performed in the Commonwealth.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the date first above written.
FISCHER & PORTER COMPANY
By /s/ Jay H. Tolson
-----------------------
As its Chairman and
Chief Executive Officer
MOORCO INTERNATIONAL INC.
By /s/ Michael L. Tiner
-----------------------
As its President
F&P ACQUISITION, INC.
By /s/ Michael L. Tiner
-----------------------
As its President
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<PAGE> 24
Exhibit A
PLAN OF MERGER
MERGING
F&P ACQUISITION, INC.
(A PENNSYLVANIA CORPORATION)
WITH AND INTO
FISCHER & PORTER COMPANY
(A PENNSYLVANIA CORPORATION)
BACKGROUND
FISCHER & PORTER COMPANY, a Pennsylvania corporation ("F&P"),
MOORCO INTERNATIONAL INC., a Delaware corporation ("Buyer"), and F&P
ACQUISITION, INC., a Pennsylvania corporation and a wholly-owned
subsidiary of Buyer ("Acquisition"), are parties to an Agreement and
Plan of Reorganization, dated as of March 18, 1994 (the "Merger
Agreement"), providing for the merger (the "Merger") of Acquisition with
and into F&P upon the terms and conditions set forth in this Plan of
Merger and pursuant to the Pennsylvania Business Corporation Law of 1988
(the "BCL"). Acquisition and F&P are sometimes hereinafter together
referred to as the "Constituent Corporations". Terms used herein that
are not defined herein shall have the meaning ascribed thereto in the
Merger Agreement.
TERMS AND CONDITIONS
1. Merger. The Constituent Corporations shall effect the Merger
upon the terms and subject to the conditions set forth in this Plan of Merger.
(a) The Merger. At the Effective Time (as hereinafter defined),
Acquisition shall be merged with and into F&P pursuant to this Plan of Merger,
the separate corporate existence of Acquisition shall cease (except as it may
be continued by operation of law) and F&P shall continue as the surviving
corporation under the corporate name "Fischer & Porter Company", all upon the
terms and subject to the conditions provided for in this Plan of Merger and
pursuant to the BCL. F&P, as it exists from and after the Effective Time, is
sometimes hereinafter referred to as the "Surviving Corporation".
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(b) Effect of the Merger. The Merger shall have the effect
provided therefor by the BCL; including, without limitation, that all the
property, real, personal and mixed, and franchises of each of the Constituent
Corporations, and all debts due on whatever account to either of them,
including subscriptions for shares and other choses in action belonging to
either of them, shall be deemed to be transferred to and vested in the
Surviving Corporation without further action; and title to any real estate, or
any interest therein, vested in either of the Constituent Corporations shall
not revert or be in any way impaired by reason of the Merger; and the Surviving
Corporation shall thenceforth be responsible for all the liabilities of each of
the Constituent Corporations; but liens upon the property of Constituent
Corporations shall not be impaired by the Merger and any claim existing or
action or proceeding pending by or against either of the Constituent
Corporations may be prosecuted to judgment as if the Merger had not taken place
or the Surviving Corporation may be proceeded against or substituted in its
place.
(c) Consummation of the Merger On the Closing Date, Articles of
Merger shall be filed with the Secretary of the Commonwealth of Pennsylvania in
accordance with the provisions of the BCL, and the Merger shall become
effective upon such filing or at such later time on the Closing Date as may be
specified in the filing with the Secretary of the Commonwealth of Pennsylvania
(the "Effective Time").
2. Articles of Incorporation; Bylaws; Directors and Officers.
The Articles of Incorporation of the Surviving Corporation from and after the
Effective Time shall be the Articles of Incorporation of Acquisition until
thereafter amended in accordance with the provisions therein and as provided by
the BCL. The Bylaws of the Surviving Corporation from and after the Effective
Time shall be the Bylaws of Acquisition as in effect immediately prior to the
Effective Time, continuing until thereafter amended in accordance with their
terms and the Articles of Incorporation of the Surviving Corporation and as
provided by the BCL. The initial directors of the Surviving Corporation shall
be the directors of Acquisition immediately prior to the Effective Time, in
each case until their successors are elected and qualified, and the initial
officers of the Surviving Corporation shall be the officers of F&P immediately
prior to the Effective Time, in each case until their successors are duly
elected and qualified.
3. Conversion and Cancellation of Securities. At the Effective
Time, by virtue of the Merger and without any action on the part of
Acquisition, F&P or any holder of any shares of capital stock of F&P:
(a) Conversion of Subsidiary Common Stock. Each share of Common
Stock, par value [$.01] per share, of Acquisition
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shall be converted into a share of Common Stock, par value [$.01] per share, of
the Surviving Corporation.
(b) Cancellation of Treasury Stock. Each share of F&P common
stock, par value $1.00 per share (the "F&P Common Stock") that may be held in
the treasury of F&P shall be canceled and retired and no capital stock of the
Surviving Corporation, cash or other consideration shall be paid or delivered
in exchange therefor.
(c) Conversion of F&P Common Stock. Except for any Dissenting
Shares (as hereinafter defined), each remaining outstanding share of F&P Common
Stock shall be converted into the right to receive cash, without interest, in
the amount of $23.25 (the "Merger Price") per share.
(d) Cancellation of Stock Options and Warrants. Immediately
prior to the Effective Time, each option to purchase shares of Company Common
Stock (individually, a "Company Stock Option" and collectively, the "Company
Stock Options") issued pursuant to F&P's Nonqualified Stock Option Plan, its
Nonqualified Stock Option Plan (1991) or its 1982 Incentive Stock Option Plan
(collectively, the "Company Stock Option Plans"), and each outstanding warrant
to purchase shares of Company Common Stock (individually, a "Company Warrant"
and collectively, the "Company Warrants"), which is then outstanding, whether
or not then vested or exercisable, shall become exercisable in full, shall be
canceled, and the holder thereof shall be entitled to receive from F&P
immediately prior to the Effective Time an amount equal to the excess, if any,
of (i) the Merger Price multiplied by the number of shares of Company Common
Stock subject to the Company Stock Option or Company Warrant, over (ii) the
exercise price of the Company Stock Option or Company Warrant multiplied by the
number of shares of Company Common Stock subject thereto. The funds required
to make such payments shall be made available to F&P by Acquisition immediately
prior to the Effective Time. Appropriate arrangements shall be made for
reduction of the amount to be paid to each holder of canceled Company Stock
Options for any applicable withholding taxes or other amounts required by law
to be paid or withheld, either through reducing the amount paid to, or by
obtaining a cash payment from, such holder. Prior to the Effective Time, the
Board of Directors of F&P shall take such action as may be required under the
Company Stock Option Plans, the governing option agreements and warrant
agreements or otherwise to effectuate the foregoing.
(e) Dissenting Shares. Notwithstanding anything herein to the
contrary, shares of F&P Common Stock that are outstanding immediately prior to
the Effective Time and that are held by shareholders, if any, who are entitled
to assert a right to dissent from the Merger and who demand and validly perfect
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their rights to receive the "fair value" of their shares with respect to the
Merger under Section 1574 of the BCL (the "Dissenting Shares") shall not be
converted into or be exchangeable for the right to receive the Merger Price,
but the holders of such shares of F&P Common Stock shall be entitled solely to
payment of the "fair value" of such shares in accordance with the provisions of
the BCL; except that (i) if such demand to receive "fair Value" shall be
withdrawn upon the consent of the Surviving Corporation, (ii) if this Plan of
Merger shall be terminated, or the Merger shall not be consummated, (iii) if no
demand or petition for the determination of "fair value" by a court shall have
been made or filed within the time provided in the provisions of the BCL or
(iv) if a court of competent jurisdiction shall determine that such holder of
Dissenting Shares is not entitled to the relief provided by the provisions of
the BCL, then the right of such holder of Dissenting Shares to be paid the
"fair value" of his shares of F&P Common Stock shall cease and with respect to
clauses (i), (iii) and (iv) above such Dissenting Shares shall thereupon be
deemed to have been converted into and to have become exchangeable for, as of
the Effective Time, the right to receive the amount into which such shares
would have been converted in the Merger in accordance with Section 3(c) hereof,
without any interest thereon, and with respect to clause (ii) above the status
of such shareholder shall be restored retroactively without prejudice to any
corporate proceeding which may have been taken during the interim.
(f) No Convertible Securities. At the Effective Time, there
shall not be any securities, rights, warrants, options or other instruments
originally issued by F&P which, after consummation of the Merger, would be
convertible into or exercisable for securities of the Surviving Corporation.
4. Merger Payment Procedure.
(a) Merger Paying Agent. Acquisition and F&P agree that
NationsBank of Texas, N.A. or another bank or trust company reasonably
acceptable to F&P shall be designated by Acquisition as the paying agent for
the Merger (the "Merger Paying Agent"). The Surviving Corporation shall
deposit with the Merger Paying Agent at the Effective Time such funds as are
required for the conversion of shares of F&P Common Stock pursuant to Section
3(c) hereof (the "Payment Fund").
(b) Payment Procedure. As soon as practicable after the
Effective Time, the Surviving Corporation shall cause the Merger Paying Agent
to distribute to holders of F&P Common Stock so converted, upon surrender to
the Merger Paying Agent of one or more certificates for such shares of F&P
Common Stock for cancellation, a bank check for the cash being paid in respect
of the aggregate number of shares of F&P Common Stock previously
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represented by the stock certificates surrendered. If for any reason
(including without limitation losses) the Payment Fund is inadequate to pay the
amounts to which the holders of shares of F&P Common Stock shall be entitled
under Section 3(c) hereof, the Surviving Corporation shall be liable for the
payment thereof. In no event shall the holder of any surrendered certificates
for shares of F&P Common Stock be entitled to receive interest on any of the
funds to be received in the Merger. If a check is to be sent to a person other
than the person in whose name the certificates for shares of F&P Common Stock
surrendered for conversion are registered, it shall be a condition of the
payment that the certificate so surrendered shall be properly endorsed and the
signatures thereon properly guaranteed and otherwise in proper form for
transfer and that the person requesting such payment shall pay to the Merger
Paying Agent any transfer or other taxes required by reason of the delivery of
such check to a person other than the registered holder of the certificate
surrendered, or shall establish to the satisfaction of the Merger Paying Agent
that such tax has been paid or is not applicable. Notwithstanding the
foregoing, neither the Merger Paying Agent nor either party to this Plan of
Merger shall be liable to a holder of shares of F&P Common Stock for any amount
paid to a public official pursuant to any applicable abandoned property,
escheat or similar laws.
(c) No Further Ownership Rights. The cash paid, issued and
distributed upon the surrender of certificates representing shares of F&P
Common Stock in accordance with the terms of this Plan of Merger shall be
deemed to have been paid in full satisfaction of all rights pertaining to such
shares of F&P Common Stock.
(d) Return of Payment Funds. Any cash delivered or made
available to the Merger Paying Agent pursuant to this Section 4, and not
exchanged pursuant to this Section 4 for certificates representing shares of
F&P Common Stock within six months after the Effective Time, shall be returned
by the Merger Paying Agent to the Surviving Corporation which shall thereafter
act as paying agent subject to the rights of holders of unsurrendered
certificates representing shares of F&P Common Stock hereunder.
(e) Closing of Stock Transfer Books. At the Effective Time, the
stock transfer books of F&P shall be closed and no transfer of shares of F&P
Common Stock shall thereafter be made.
5. Termination. This Plan of Merger may be terminated at any
time on or before the Effective Time by agreement of the Boards of Directors of
the Constituent Corporations. This Plan of Merger shall be automatically
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terminated if F&P, Buyer or Acquisition validly terminate the Merger Agreement.
6. Amendment. This Plan of Merger may not be amended except by
an instrument in writing signed on behalf of each of the parties hereto; except
that after approval of the Merger by the shareholders of F&P, no amendment may
be made which decreases the amount of cash to which the shareholders of F&P are
entitled pursuant to this Plan of Merger or otherwise materially adversely
affects the shareholders of F&P without the further approval of a majority of
the votes cast by the shareholders of F&P.
7. Waiver. Any time prior to the Effective Time, either party
hereto may (a) in the case of Acquisition, extend the time for the performance
of any of the obligations or other acts of F&P or, subject to the provisions
contained in Section 6 hereof, waive compliance with any of the agreements of
F&P or with any conditions to the respective obligations of or Acquisition, or
(b) in the case of F&P, extend the time for the performance of any of the
obligations or other acts of Acquisition, or waive compliance with any
conditions to its own obligations. Any agreement on the part of a party hereto
to any such extension or waiver shall be valid if set forth in an instrument in
writing signed on behalf of such party by a duly authorized officer.
8. Further Assurances. If at any time the Surviving Corporation,
or its successors or assigns, shall consider or be advised that any further
assignments or assurances in law or any other acts are necessary or desirable
to (a) vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation its rights, title or interest in, to or under any of the rights,
properties or assets of the Constituent Corporations acquired or to be acquired
by the Surviving Corporation as a result of, or in connection with, the Merger,
or (b) otherwise carry out the purposes of this Plan of Merger, each
Constituent Corporation and its proper officers and directors shall be deemed
to have granted to the Surviving Corporation an irrevocable power of attorney
to execute and deliver all such proper deeds, assignments and assurances in law
and to do all acts necessary or proper to vest, perfect or confirm title to and
possession of such rights, properties or assets in the Surviving Corporation
and otherwise to carry out the purposes of this Plan; and the proper officers
and directors of the Surviving Corporation are fully authorized in the name of
each Constituent Corporation or otherwise to take any and all such action.
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EXHIBIT 2.1(b)
LIST OF OMITTED SCHEDULES
TO THE AGREEMENT AND PLAN OF REORGANIZATION
Schedule 2.01(b) Options and Warrants
Schedule 2.01(e) Consents
Schedule 2.01(i) Employee Benefit Plans
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MEMORANDUM AGREEMENT
TO: Fischer & Porter Company DATE: March 18, 1994
FROM: Jay H. Tolson
E. Joseph Hochreiter
SUBJECT: Moorco International Indemnification Proposal
We have reviewed the March 18, 1994 Moorco International Inc.
proposal (the "Moorco Proposal") regarding "Claims arising out of the issuance
of the FP common stock purchase warrants to Tolson and Hochreiter" (attached).
In order to induce Moorco to enter into the transaction
approved today (the "Transaction") by the Sale Committee and the Board of
Directors of Fischer & Porter Company (the "Company"), and acting solely in our
capacity as shareholders of the Company, and with the intention of being
legally bound hereby:
(1) Each of us hereby accepts and agrees to be bound by the Moorco
Proposal and
(2) Each of us further agrees that we will execute such further
documents as may be reasonably requested by the Company or Moorco
International Inc. to effect the arrangements set forth in the Moorco
Proposal.
This Memorandum Agreement shall terminate immediately, and shall be of no
further force or effect, if and when the definitive Agreement
and Plan of Reorganization providing for the Transaction is terminated.
/s/ Jay H. Tolson /s/ E. Joseph Hochreiter
- ---------------------- -------------------------------
JAY H. TOLSON E. JOSEPH HOCHREITER
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March 18, 1994
MEMORANDUM
TO: Fischer & Porter Company ("FP")
FROM: Moorco International Inc. ("Moorco")
RE: Claims arising out of the issuance of the FP common stock
purchase warrants to Tolson and Hochreiter
Moorco proposes the following condition to closing,
to be documented to the reasonable satisfaction of Moorco prior to the closing:
1. Tolson and Hochreiter will expressly indemnify FP, F&P
Acquisition, Inc. and Moorco from any and all liability
arising out of and/or related to the issuance of the
disputed warrants, which indemnity will be secured by the
deposit of 2/3rds of the warrant "premium" into an interest
bearing escrow account;
2. Tolson and Hochreiter expressly waive any indemnities
running to them from FP, by contract, charter, by-law, or
otherwise for any liability arising out of or connected with
the issuance of the warrants;
3. Moorco agrees to pay the reasonable defense costs and
expenditures incurred in connection with the defense of
any such claim or action up to the $500,000 self-insured
retention under FP's present directors and officers'
liability insurance policy and will work with Tolson and
Hochreiter on a best efforts basis to secure coverage for
any additional expenditures from the directors and officers'
insurance carrier.
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OPINION OF CS FIRST BOSTON CORPORATION
March 18, 1994
Board of Directors
Fischer & Porter Company
125 East County Line Road
Warminster, PA 18974
Dear Sirs:
You have asked us to advise you with respect to the fairness to the
shareholders of Fischer & Porter Company (the "Company") from a financial point
of view of the consideration to be received by such shareholders pursuant to
the terms of the Agreement and Plan of Reorganization, dated as of March 18,
1994 (the "Reorganization Agreement), among the Company, Moorco International,
Inc. (the "Acquiror"), and F&P Acquisition Corp. ("the Sub"). The
Reorganization Agreement provides for the merger of the Company with the Sub
pursuant to which the Company will become a wholly owned subsidiary of the
Acquiror and each outstanding share of the Company's Class A Common Stock, par
value $1.00 per share, will be converted into the right to receive $23.25 in
cash (the "Transaction").
In arriving at our opinion, we have reviewed the Reorganization Agreement and
certain publicly-available business and financial information relating to the
Company. We have also reviewed certain other information, including financial
forecasts, provided to us by the Company, and have met with the management of
the Company to discuss the business and prospects of the Company.
We have also considered certain financial and stock market data of the Company
and we have compared that data with similar data for other publicly-held
companies in businesses similar to those of the Company and we have considered
the financial terms of certain other business combinations which have recently
been effected. We also considered such other information, financial studies,
analyses and investigations and financial, economic and market criteria which
we deemed relevant.
In connection with our review, we have not independently verified any of the
foregoing information and have relied on its being complete and accurate in all
material respects. With respect to the financial forecasts, we have assumed
that they have been reasonably prepared on bases reflecting the best currently
available estimates and judgments of the management of the Company as to the
future financial performance of the Company. In addition, we have not made an
independent evaluation or appraisal of the assets of the Company, nor have we
been furnished with any such appraisals.
We have acted as financial advisor to the Board of Directors in connection with
the Transactions and will receive a fee for our services which is primarily
contingent on the closing of the Transactions.
In the ordinary course of our business, we may actively trade the debt and
equity securities of the Company for our own account and for the accounts of
customers and, accordingly, may at any time hold long or short position in
such securities.
It is understood that this letter is for the information of the Board of
Directors only and may be published in its entirety in the proxy statement to
be distributed to shareholders of the Company in connection with the
Transaction so long as we give our prior written consent to any summary of,
excerpt from or reference to such opinion. This letter is not to be quoted or
referred to, in whole or in part, in any registration statement, prospectus or
in any other document used in connection with the offering or sale of
securities, nor shall this letter be used for any other purposes without CS
First Boston's prior written consent.
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Based upon and subject to the foregoing, it is our opinion that, as of
the date hereof, the consideration to be received by the shareholders of the
Company pursuant to the Transaction is fair to such shareholders from a
financial point of view.
Very truly yours,
CS FIRST BOSTON CORPORATION
By:/s/ J. Craig Oxman
---------------------
J. Craig Oxman
Managing Director
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FOR IMMEDIATE RELEASE
MOORCO AGREES TO ACQUIRE FISCHER & PORTER COMPANY
Houston, TX - March 18, 1994 - Moorco International Inc. (NYSE symbol: MRC)
and Fischer & Porter Company (AMEX symbol: FP) announced today that they have
executed a definitive merger agreement providing for the acquisition of Fischer
& Porter by Moorco for a total of approximately $150 million or $23.25 per
share on a fully diluted basis. The transaction is conditioned upon, among
other things, the approval of Fischer & Porter's shareholders.
Michael L. Tiner, President and Chief Executive Officer of Moorco stated that,
"We are enthusiastic about the prospect of combining the two companies. This
acquisition represents an important step in the diversification of Moorco.
Fischer & Porter is a world leader in providing measurement and control
products and related services to the industrial marketplace. Fischer & Porter
products have virtually no application in the petroleum industry, a market
sector which Moorco currently served through its Smith Meter subsidiary. The
combination of Moorco and Fischer & Porter will further enhance Moorco's
position as a worldwide leader in the measurement of liquids." Moorco's sales
for its fiscal year ended May 31, 1993 were approximately $195 Million and
Fischer & Porter sales for its fiscal year ended December 31, 1993 were
approximately $220 Million. Both companies derive approximately 65% of their
revenues from the international marketplace.
Jay H. Tolson, Fischer & Porter's Chairman and CEO said "This transaction is
the result of an extensive auction process that started in October 1993 and
involved a substantial number of potential purchasers. With the assistance of
our financial advisor, CS First Boston, the Board of Directors and its Sale
Committee valuated the proposals from six final bidders. The transaction was
concluded with the bidder offering the highest price to the shareholders of
Fischer & Porter and the fewest
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conditions that might delay or impede the closure of the transaction.
Fischer & Porter is a world leader in measurement and control technologies.
The Company's products include flowmeters, transmitters, process controllers,
microcomputers, distributed control systems, analytical instruments, and
various types of disinfection equipment. Throughout the world, Fischer &
Porter instruments and systems are an integral part of such varied enterprises
as chemical plants, pharmaceutical plants, food and beverage processing
facilities, pulp and paper mills, mines, metal refineries, and municipal and
industrial water and wastewater treatment plants.
Moorco International Inc., headquartered in Houston, Texas, is a leading
supplier of fluid measurement and pressure control products for the petroleum,
industrial process and electric power generation industries.
CONTACT: James J. Nelson
Moorco International Inc.
(713) 993-0999
