<PAGE> 1
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
[ X ] Filed by the Registrant
[ ] Filed by a Party other than the Registrant
Check the appropriate box:
[ X ] Preliminary Proxy Statement
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Section 240.14a-11(c) or Section
240.14a-12
Fischer & Porter Company
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Fischer & Porter Company
(NAME OF PERSON(S) FILING PROXY STATEMENT)
Payment of Filing Fee (Check the appropriate box):
[ ] $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1), or 14a-6(j)(2).
[ ] $500 per each party to the controversy pursuant to Exchange Act Rule
14a-6(i)(3).
[ X ] Fee computed on table below per exchange Act Rules 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
Common Stock
2) Aggregate number of securities to which transaction applies:
5,295,250 shares of Common Stock outstanding and stock
options and warrants to purchase 1,850,209 shares of
Common Stock
3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11:* $24.25
per share of Common Stock outstanding and an aggregate
of $28,604,859.50 in consideration of the cancellation
of all outstanding stock options and warrants
4) Proposed maximum aggregate value of transaction:
$128,409,812.50 in consideration of the outstanding
shares of Common Stock and an aggregate of $28,604,859.50
in consideration of the cancellation of all outstanding
stock options and warrants for a total maximum aggregate
value of $157,014,672
* Set forth the amount on which the filing fee is calculated and state
how it was determined.
[ X ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
$31,402.94
-----------------------------------------------------------
2) Form, Schedule or Registration Statement No.:
Schedule 14A: File no. 001-04400
-----------------------------------------------------------
3) Filing Party:
Fischer & Porter Company
-----------------------------------------------------------
4) Dated Filed:
April 28, 1994
-----------------------------------------------------------
<PAGE> 2
Annex A
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AGREEMENT AND PLAN OF REORGANIZATION
Among
FISCHER & PORTER COMPANY
ELSAG BAILEY PROCESS AUTOMATION N.V.
and
EBPA ACQUISITION, INC.
Dated as of April 13, 1994
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TABLE OF CONTENTS
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ARTICLE I
PLAN OF REORGANIZATION
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 . . . . . . . . . . . . . . . . 8
ARTICLE III
ADDITIONAL COVENANTS AND AGREEMENTS
SECTION 3.01. Shareholder Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.02. Conduct of F&P's Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.03. Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.04. Inquiries and Negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.05. Notification of Certain Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.06. Access to Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.07. Public Announcements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.08. Indemnification; Director's and Officer's Insurance . . . . . . . . . . . . . . . . . 15
SECTION 3.09. Foreign Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.10. Buyer Loan to F&P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE IV
CONDITIONS TO THE MERGER
SECTION 4.01. Conditions to the Merger Relating to Buyer and Acquisition . . . . . . . . . . . . . . 18
SECTION 4.02. Conditions to the Merger Relating to F&P . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE V
TERMINATION AND ABANDONMENT
SECTION 5.01. Termination by Mutual Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 5.02. Termination by F&P, Buyer or Acquisition . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 5.03. Termination by F&P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
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<TABLE>
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SECTION 5.04. Termination by Buyer and Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 5.05. Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 5.06. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 5.07. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 6.02. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 6.03. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 6.04. No Survival of Representations or Warranties . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 6.05. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 6.06. Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 6.07. No Rights; Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 6.08. No Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 6.09. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 6.10 Consent to Jurisdiction; Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
EXHIBIT
EXHIBIT A Plan of Merger
SCHEDULES
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SCHEDULE 2.01(a) Subsidiaries; Articles of Incorporation and Bylaws
SCHEDULE 2.01(b) Options and Warrants
SCHEDULE 2.01(e) Required Consents
SCHEDULE 2.01(f) Material Liabilities
SCHEDULE 2.01(j) Employee Benefit Plans
SCHEDULE 2.01(m) Encumbrances
SCHEDULE 2.01(n) Material Contracts
SCHEDULE 2.01(o) Tax Matters
SCHEDULE 4.01(d) Adverse Changes
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<PAGE> 5
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION, dated as of April 13,
1994 (the "Agreement"), among FISCHER & PORTER COMPANY, a Pennsylvania
corporation ("F&P"), ELSAG BAILEY PROCESS AUTOMATION N.V., a Dutch corporation
("Buyer"), and EBPA ACQUISITION, INC., a Pennsylvania corporation and an
indirect 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
$24.25 (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.
<PAGE> 6
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 Pennsylvania Business Corporation Law of 1988 (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 an indirect 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 the
F&P Subsidiaries (as hereinafter defined) 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
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being conducted, and is duly qualified as a foreign corporation to do business,
and is in good standing, in each jurisdiction in which the nature of its
business or the ownership or leasing of its properties makes such qualification
necessary, except for such jurisdictions where the failure so to qualify would
not have a material adverse effect on F&P and the F&P Subsidiaries taken as a
whole. Schedule 2.01(a) hereto is an accurate and complete chart showing all
of the corporations in which F&P owns directly or indirectly at least a
majority of the issued and outstanding capital stock (collectively the "F&P
Subsidiaries"), the jurisdiction of incorporation of each such corporation and
each of the owners of any of the capital stock of each such corporation.
Except as set forth in Schedule 2.01(a) hereto, neither F&P nor any of the F&P
Subsidiaries owns any equity interest in any corporation, partnership, joint
venture or similar entity. Schedule 2.01(a) hereto also includes accurate and
complete copies of the present Articles of Incorporation and Bylaws of F&P.
(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 such, if any, as may have been issued pursuant to the options and
warrants described in the next sentence. Except for options and warrants
described in Schedule 2.01(b) hereto, as of March 17, 1994 there were no
options, warrants, calls, agreements or other rights to purchase or otherwise
acquire from F&P or any of the F&P Subsidiaries at any time, or upon the
happening of any stated event, any shares of the capital stock of F&P or any of
the F&P Subsidiaries, whether or not presently issued or outstanding, and no
such options, warrants, calls, agreements or other rights to purchase or
otherwise acquire have been granted or awarded since March 17, 1994.
(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
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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 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 the F&P
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 the F&P Subsidiaries,
which violation, default, loss or acceleration would have a material adverse
effect on F&P and the F&P 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) the
filing of a notification with the German Federal Cartel Office, (iv) as
described in Schedule 2.01(e) hereto and (v) the filing of Articles of Merger
with the Secretary of the Commonwealth of Pennsylvania.
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<PAGE> 9
(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 case
of the unaudited interim financial statements, to the omission of footnote
information and to normal year-end audit adjustments. Except as disclosed in
the SEC Filings or on Schedule 2.01(f) hereto and except for liabilities
incurred since December 31, 1993 in the ordinary course of business, as of the
date hereof neither F&P nor any of the F&P Subsidiaries has any liabilities or
obligations due or to become due, whether absolute, accrued, contingent or
otherwise which are material to F&P and the F&P Subsidiaries taken as a whole.
(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.
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<PAGE> 10
(i) Litigation. There is no action, suit or proceeding
pending, or to the knowledge of F&P threatened against F&P or any of the F&P
Subsidiaries, which if determined or resolved adversely to F&P or any of the
F&P Subsidiaries is reasonably likely to have a material adverse effect on F&P
and the F&P Subsidiaries, taken as a whole. In respect of the Civil Action
92-7822 in the United States District Court for the Eastern District of
Pennsylvania ("Court"), F&P represents and warrants that (i) there were only
two objectors to the settlement agreement reached among the parties in June
1993, (ii) the parties have reached a new settlement agreement (a copy of which
was provided to Buyer by F&P under cover of letter dated February 18, 1994),
(iii) the settlement agreement has been approved by F&P's insurers who have
agreed to contribute not less than $522,273.05 toward the settlement and has
been submitted to the Court for preliminary approval, and (iv) as of the date
hereof, F&P has not been advised that the original objectors, the Court or any
other F&P shareholders will raise any material objection to the new settlement
agreement or that F&P's insurers will withdraw their approval of same.
(j) Employee Benefit Plans. Schedule 2.01(j) 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 or made available to Buyer and
Acquisition. Except as described in Schedule 2.01(j) 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 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, and each other
employee benefit plan described in Section 3(3) of ERISA and maintained by F&P
and the F&P Subsidiaries, 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
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<PAGE> 11
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 or the F&P Subsidiaries 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 and the F&P Subsidiaries, taken as a whole.
(m) Title to Properties. Except as described in the SEC
Filings or on Schedule 2.01(m) hereto, F&P or one of the F&P Subsidiaries has
good and marketable title to or a valid, binding and enforceable leasehold
interest in all of its respective properties and assets, whether real, personal
or mixed, tangible or intangible, including those reflected on the Financial
Statements (except those subsequently disposed of in the ordinary course of
business), free and clear of all mortgages, liens, pledges, charges,
encumbrances, title defects or third party claims of a material nature.
(n) Material Contracts. Schedule 2.01(n) hereto lists
all Material Contracts to which F&P or any of the F&P Subsidiaries is a party.
For purposes of this Agreement, the term "Material Contract" means any contract
providing for (i) the sale of a system at a price in excess of $2 million (a
"System Sales Contract"), (ii) F&P or any of the F&P Subsidiaries to refrain
from engaging in conduct which is competitive with the business of the other
party to the contract in any way which is also material to F&P and the F&P
Subsidiaries taken as a whole, (iii) the license to or from any third party of
any intellectual property rights that are material to the operation of the
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business of F&P and the F&P Subsidiaries (other than software licenses made in
the ordinary course of the systems business, which may not be material to the
operation of such business), (iv) any original equipment manufacture or private
label manufacture agreement, (v) the repayment of money borrowed from a third
party, excluding working capital lines of credit of foreign F&P Subsidiaries of
not more than $1,000,000 each, (vi) the sale by F&P of goods and services
pursuant to any individual contract which F&P reasonably expects will account
for at least five percent of its consolidated gross revenues during 1994, (vii)
the purchase by F&P of goods and services pursuant to any individual contract
which F&P reasonably expects will account for at least five percent of its
consolidated payments to suppliers during 1994, and (viii) the indemnification
of former or current directors and officers of F&P or the F&P Subsidiaries.
F&P has provided or made available to Buyer an accurate and complete copy of
each Material Contract except as noted on Schedule 2.01(n) hereto and those
Material Contracts which have heretofore been filed as exhibits to the SEC
Filings. Except for the agreement with Fuji listed on Schedule 2.01(n) hereto,
neither F&P nor any of the F&P Subsidiaries is a party to any binding agreement
with Fuji or any of its affiliates. F&P and the F&P Subsidiaries have no joint
venture contracts. Each System Sales Contract is on terms which F&P believes
are commercially prudent taken as a whole and was contracted in all material
respects in accordance with F&P's internal contracting and bidding procedures
and with F&P's anticipation of obtaining its normal profit margins. F&P has no
knowledge of any material problem or claim with respect to any System Sales
Contract.
(o) Taxes. Except as disclosed on Schedule 2.01(o)
hereto, F&P and the F&P Subsidiaries have duly and timely filed all material
income tax returns, reports and statements required by law to have been filed
by them (such material income tax returns, reports and statements,
collectively, "Tax Returns"), and have duly and timely paid, deposited or made
proper provision on their financial statements for all amounts shown thereon as
due and owing. All Tax Returns (including those which have been supplied to
Buyer) are accurate and complete in all material respects. Schedule 2.01(o)
hereto describes, in each case as of the date of this Agreement, all audits and
examinations underway, or to the knowledge of the senior executive officers of
F&P threatened, by any tax authority with respect to any of the Tax Returns,
with an explanation of the principal issues involved and a good faith estimate
of the relevant taxpayer's exposure with respect thereto.
SECTION 2.02. Representations and Warranties by Buyer and
Acquisition. Buyer and Acquisition each represent and warrant to F&P as
follows:
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(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.
(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
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premerger notification and the expiration or early termination of the waiting
period required by the HSR Act, (ii) the filing of a notification with the
German Federal Cartel Office and (iii) 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 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 Merrill Lynch & 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.
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 call, give notice of and convene a meeting on a
date proposed by F&P as to which Buyer has no reasonable objection (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 as to which Buyer has
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no reasonable objection. 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. F&P, Buyer and Acquisition shall cooperate fully with each other 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, without Buyer's prior approval
which shall not be unreasonably delayed or withheld and no communication with
the SEC shall be had, without 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 (for purposes
of the rest of this Section 3.02, references to F&P shall be deemed to refer to
F&P and the F&P Subsidiaries) 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, other than an
intercompany dividend by any F&P Subsidiary payable in cash (provided such
intercompany dividend has no adverse tax consequences to either the payor or
recipient of any such dividend), 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);
(b) F&P shall not (i), except in connection with the
exercise of any Company Stock Options or Company Warrants (each
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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
under the credit facilities listed on Schedule 2.01(n) hereto, (iv) enter into
any new Material Contract or modify any existing Material Contract in any
material respect 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 charge of any nature, any of its
property or assets, or become committed so
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to do, or permit or suffer any of such property or assets to become subject to
any mortgage, pledge, lien, security interest, encumbrance or charge 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, and (ii) an agreement in
form and substance reasonably satisfactory to Buyer from Mr. E. Joseph
Hochreiter ("Hochreiter") waiving any and all rights Hochreiter has or may
have, by virtue of the transactions contemplated hereby, to receive the
"severance payment" defined in section 11(b) of that certain Employment
Agreement, dated October 23, 1991, by and between F&P and Hochreiter.
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
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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, its
counterpart provisions under German law, and under the Exchange Act.
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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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 Finmeccanica S.p.A. 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 the F&P 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 the F&P Subsidiaries, whether or not pertaining to any matter
existing or occurring at or prior to the Effective Time and whether or not
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asserted or 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 a person, mutually
acceptable to F&P and the Indemnified Party, who shall have been a director or
executive officer of a corporation whose shares of common stock were listed
during at least one year of such service on the New York Stock Exchange or the
American Stock Exchange or quoted on the National Association of Securities
Dealers Automated Quotations System. 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.
SECTION 3.09. Foreign Subsidiaries. Following approval of
this Agreement by the shareholders of F&P and immediately prior to the
Effective Time, Buyer shall have the right to cause such of its affiliates as
it shall select to purchase the non-United States F&P Subsidiaries and, if
Buyer so elects, F&P shall sell or otherwise cause such F&P Subsidiaries
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to be sold to such affiliates of Buyer on such terms and in such manner as
Buyer shall select provided that (a) such purchase and sale transactions do not
have an adverse effect on F&P, and (b) no such transaction will be deemed to
constitute a breach of any representation, warranty, or covenant of F&P herein
contained.
SECTION 3.10. Buyer Loan to F&P.
(a) Not later than April 20, 1994, Buyer will loan to F&P
the sum of $5.3 million, said loan to be made on the terms of this Section
3.10. F&P will use the loan solely to pay the amount payable by F&P under
Section 5.05 of the Merger Agreement with Moorco International Inc. ("Moorco")
and said amount will be paid by F&P to Moorco immediately on receipt of this
loan from Buyer.
(b) F&P's obligations to repay the loan will be evidenced
by a promissory note ("Note") in form and substance reasonably satisfactory to
Buyer and F&P. The Note will be delivered against receipt of the loan and will
be payable on the Due Date (as herein defined). Interest will accrue on the
Note from the date of the loan until the Note is paid in full at the annual
rate of 9 1/2 percent. At Buyer's election, F&P's obligations to pay the Note
will be secured by a perfected security interest in all of F&P's U.S. assets,
said interest to be granted pursuant to one or more security agreements
prepared by and in form and substance reasonably satisfactory to Buyer and to
be executed by F&P and delivered to Buyer on the date of the loan. Buyer
acknowledges that both the Note and the security interests to be granted in it
will, in all respects, be subordinated to the right of all other secured
lenders to F&P. Prior to Buyer making the loan, F&P will obtain the consent of
Bank of America Business Credit and any other parties whose consent is required
for the transactions contemplated by this Section 3.10.
(c) If this Agreement is terminated by F&P or Buyer
pursuant to Sections 5.01, 5.02, 5.03 or 5.04, then the Due Date will be ten
business days after the date of such termination, provided if this Agreement is
terminated as a result of conditions or circumstances beyond F&P's control or
pursuant to Section 5.03(a) hereof, then the Note will be due and payable in
three annual equal installments on April 13, 1995, 1996 and 1997 and accrued
interest will be payable with each annual installment, and provided further
that for purposes of the foregoing the condition set forth in Section 4.01(a)
hereof shall be deemed to be within F&P's control and as a result termination
of this Agreement because of the failure of this condition to be satisfied will
not extend the Due Date beyond ten business days after termination. If this
Agreement is not terminated, then the Due Date will be such date after the
Effective Time as Buyer may select.
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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:
(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 periods under the HSR Act and
its counterpart provisions under German law shall have terminated or early
termination thereof shall have been granted, or all approvals required in
connection therewith, if any, shall have been obtained.
(d) Truth of Representations and Warranties and Absence
of Material Adverse Change. The representations and warranties of F&P herein
shall be true in all material respects at and as of the Closing Date (except to
the extent that such representation and warranty speaks as of another 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 provided that the matters identified on Schedule 4.01(d)
hereto shall not be included in any determination of a material adverse change.
(e) 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,
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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
(including without limitation Section 3.08 hereof),
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 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.
(f) Foreign Subsidiaries. F&P shall have complied in all
material respects with its covenants in Section 3.09 hereof.
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 and
its counterpart provisions under German law shall have terminated or early
termination thereof shall have been granted, or all approvals required in
connection therewith, if any, shall have been obtained.
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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 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.
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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 except as provided in Section 3.10 hereof
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 three percent 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 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
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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: Timothy Maxwell, Esq.
Facsimile No. 215-963-5299
or, in the case of Buyer and Acquisition, to them at:
Elsag Bailey Process Automation
29801 Euclid Avenue
Wickliffe, Ohio 44092
Attention: Mark V. Santo, Esquire
Facsimile No. 216-585-7578
with a required copy to:
Jones, Day, Reavis & Pogue
901 Lakeside Avenue
Cleveland, OH 44114
Attention: John P. Dunn, Esquire
Facsimile No. 216-579-0212
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
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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, 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.
SECTION 6.10 Consent to Jurisdiction; Etc. Each of the
parties hereto irrevocably and unconditionally (a) agrees that any suit, action
or other legal proceeding ("Suit") arising out of this Agreement may be brought
and adjudicated in the United States District Court for the Eastern District of
Pennsylvania, or, if such court will not accept jurisdiction, in any court of
competent civil jurisdiction sitting in Montgomery County, Pennsylvania, (b)
submits to the non-exclusive jurisdiction of any such court for the purposes of
any such Suit and (c) waives and agrees not to assert by way of motion, as a
defense or otherwise in any such Suit, any claim that it is not subject to the
jurisdiction of the above courts, that such Suit is brought in an inconvenient
forum or that the venue of such
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Suit is improper. Each of the parties hereto also irrevocably and
unconditionally consents to the service of any process, pleadings, notices or
other papers in a manner permitted by the notice provisions of Section 6.01
hereof.
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
ELSAG BAILEY PROCESS AUTOMATION N.V.
By /s/ Vincenzo Cannatelli
----------------------------
As its Managing Director
EBPA ACQUISITION, INC.
By /s/ Vincenzo Cannatelli
----------------------------
As its President
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Exhibit A
PLAN OF MERGER
MERGING
EBPA ACQUISITION, INC.
(A PENNSYLVANIA CORPORATION)
WITH AND INTO
FISCHER & PORTER COMPANY
(A PENNSYLVANIA CORPORATION)
BACKGROUND
FISCHER & PORTER COMPANY, a Pennsylvania corporation
("F&P"), ELSAG BAILEY PROCESS AUTOMATION N.V., a Dutch
corporation ("Buyer"), and EBPA ACQUISITION, INC., a
Pennsylvania corporation and an indirect wholly-owned
subsidiary of Buyer ("Acquisition"), are parties to an
Agreement and Plan of Reorganization, dated as of April 13,
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".
(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
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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 F&P 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 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
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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 $24.25 (the "Merger Price") per share.
(d) Cancellation of Stock Options and Warrants.
Immediately prior to the Effective Time, each option to purchase shares of F&P
Common Stock (individually, a "F&P Stock Option" and collectively, the "F&P
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 "F&P Stock Option Plans"), and each outstanding warrant to
purchase shares of F&P Common Stock (individually, a "F&P Warrant" and
collectively, the "F&P 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 F&P Common Stock
subject to the F&P Stock Option or F&P Warrant, over (ii) the exercise price of
the F&P Stock Option or F&P Warrant multiplied by the number of shares of F&P
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 F&P 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 F&P 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 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
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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 Chemical Bank or another bank or trust company reasonably acceptable
to Acquisition and 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 and a properly completed letter of
transmittal, a bank check for the cash being paid in respect of the aggregate
number of shares of F&P Common Stock previously 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
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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 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 its own obligations 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
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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.
6
