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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION
14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 6)
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MOORCO INTERNATIONAL INC.
(NAME OF SUBJECT COMPANY)
MII ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
FMC CORPORATION
(BIDDER)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
(TITLE OF CLASS OF SECURITIES)
61559L100
(CUSIP NUMBER OF CLASS OF SECURITIES)
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ROBERT L. DAY, ESQ.
FMC CORPORATION
200 EAST RANDOLPH DRIVE
CHICAGO, ILLINOIS 60601
TELEPHONE: (312) 861-6000
(NAMES AND ADDRESSES AND TELEPHONE NUMBERS OF PERSONS AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDER)
COPY TO:
GLEN E. HESS, P.C.
KIRKLAND & ELLIS
CITICORP CENTER
153 EAST 53RD STREET
NEW YORK, NEW YORK 10022-4675
TELEPHONE: (212) 446-4800
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This Amendment No. 6 amends and supplements the Tender Offer Statement on
Schedule 14D-1 filed on May 5, 1995 (as amended, the "Schedule 14D-1") relating
to the offer by MII Acquisition Corp., a Delaware corporation (the "Purchaser")
and a wholly owned subsidiary of FMC Corporation, a Delaware corporation
("FMC"), to purchase all of the outstanding shares of Common Stock, $.01 par
value per share (the "Shares"), of Moorco International Inc., a Delaware
corporation (the "Company"), and the associated Preferred Stock Purchase Rights
(the "Rights") issued pursuant to the Rights Agreement, dated as of November 8,
1994, between the Company and The Bank of New York, a New York banking
corporation, as Rights Agent (the "Rights Agreement"), at a purchase price of
$20 per Share (and associated Right), net to the seller in cash, without
interest thereon, upon the terms and subject to the conditions set forth in the
Offer to Purchase dated May 5, 1995 (the "Offer to Purchase") and in the
related Letter of Transmittal (which collectively constitute the "Offer").
Unless otherwise indicated herein, each capitalized term used but not defined
herein shall have the meaning assigned to such term in the Schedule 14D-1.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
Item 3(b) of the Schedule 14D-1 is hereby amended and supplemented as
follows:
On June 12, 1995, FMC and the Company issued a joint press release,
announcing that on June 11, 1995, FMC, the Purchaser and the Company
entered into an Agreement and Plan of Merger, dated as of June 11, 1995
(the "Merger Agreement"), which provides for, among other matters, the
Purchaser to amend the Offer to increase the price offered to $28.00 per
share of Common Stock, net to the seller in cash. A copy of the press
release and the Merger Agreement are set forth as Exhibits (a)(11) and
(c)(2), respectively, to the Schedule 14D-1 and each is incorporated herein
by reference.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
Item 5 of the Schedule 14D-1 is hereby amended and supplemented as follows:
The information provided in this Amendment No. 6 under Item 3 is hereby
incorporated by reference.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SUBJECT COMPANY'S SECURITIES.
Item 7 of the Schedule 14D-1 is hereby amended and supplemented as follows:
The information provided in this Amendment No. 6 under Item 3 is hereby
incorporated by reference.
ITEM 10. ADDITIONAL INFORMATION.
The information set forth in paragraph (f) of Item 10 of the Schedule 14D-1
is hereby amended and supplemented as follows:
The Purchaser and FMC have extended the Offer to Purchase and Withdrawal
Rights until 12:00 midnight New York City time, on Monday June 26, 1995. A
press release issued by FMC on June 12, 1995 relating to the extension of
the Offer to Purchase is filed as Exhibit 11(a)(11) to the Schedule 14D-1
and is incorporated herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 is hereby amended by adding thereto the following exhibit:
11(a)(11) Joint Press Release issued by FMC and the Company on June 12,
1995.
11(c)(2) Agreement and Plan of Merger, dated June 11, 1995, by and
among FMC, the Purchaser and the Company.
VI-1
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SIGNATURE
AFTER DUE INQUIRY AND TO THE BEST OF MY KNOWLEDGE AND BELIEF, I CERTIFY THAT
THE INFORMATION SET FORTH IN THIS STATEMENT IS TRUE, COMPLETE AND CORRECT.
FMC Corporation
/s/ Robert L. Day, Esq.
By: _________________________________
Robert L. Day, Esq.
Secretary
MII Acquisition Corp.
/s/ Charlotte Mitchell Smith,
Esq.
By: _________________________________
Charlotte Mitchell Smith, Esq.
Secretary
Dated: June 12, 1995
VI-2
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EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION PAGES
------- ----------- ------------
<C> <S> <C>
11(a)(11) Joint Press Release issued by FMC and the Company on
June 12, 1995.
11(c)(2) Agreement and Plan of Merger, dated June 11, 1995, by
and among FMC, the Purchaser and the Company.
</TABLE>
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[LETTERHEAD OF FMC CORPORATION]
FMC: MOORCO:
Contact Lisa Azzarello James J. Nelson
(312) 861-6921 (713) 993-0999
NEWS RELEASE
FMC AND MOORCO ANNOUNCE DEFINITIVE MERGER AGREEMENT FOR $28 PER MOORCO SHARE
CHICAGO and HOUSTON, June 12, 1995 -- FMC Corporation and Moorco International
Inc. today announced that they have signed a definitive agreement and plan of
merger under which MII Acquisition Corp., a wholly-owned subsidiary of FMC
Corporation, will purchase all outstanding common shares of Moorco for $28 per
share in cash. The Boards of Directors of both companies have unanimously
approved the agreement.
In order to effect the transaction, FMC announced that it intends to amend
its tender offer of May 5, 1995, to increase the offering price to $28 per share
and will extend the expiration date of the tender offer to midnight, New York
time, on Monday, June 26, 1995. Consummation of the tender offer is subject to
customary terms and conditions.
"The more we found out about Moorco, the more we were impressed by its
management, operations, opportunities and synergies with our Petroleum Equipment
operations," said Robert N. Burt, FMC Chairman and CEO. "We look forward to
building on Moorco's strong business base."
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Page 2/FMC AND MOORCO ANNOUNCE MERGER AGREEMENT
Michael L. Tiner, Moorco's President and CEO, said, "This transaction is
the result of a process to maximize shareholder value. The acquisition of Moorco
by FMC will complete the story of a successful leveraged buyout that began in
1984. We are extremely pleased that Moorco's two operating subsidiaries, Smith
Meter and Crosby Valve & Gage, will continue to have bright futures as part of
FMC."
FMC stated that as of the close of business on Thursday, June 1, 1995,
approximately 48,789 shares of Moorco stock had been tendered pursuant to the
offer and not withdrawn. FMC owns 100 shares of Moorco stock.
FMC Corporation is one of the world's leading producers of chemicals and
machinery for industry, government and agriculture. The Chicago-based company
reported annual sales of $4 billion in 1994, with international sales to more
than 100 countries accounting for 49 percent of total annual revenues. FMC
employs 20,000 people at 97 manufacturing facilities and mines in 21 countries.
The company divides its businesses into five major segments: Performance
Chemicals, Industrial Chemicals, Machinery and Equipment, Defense Systems and
Precious Metals.
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.
# # #
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[Conformed Copy]
AGREEMENT AND PLAN OF MERGER
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AGREEMENT AND PLAN OF MERGER dated as of June 11, 1995, by and among
FMC Corporation, a Delaware corporation ("Parent"), MII Acquisition Corp., a
Delaware corporation and a subsidiary of Parent (the "Purchaser"), and Moorco
International, Inc., a Delaware corporation (the "Company").
WHEREAS, the respective Boards of Directors of Parent, the Purchaser
and the Company have approved the acquisition of the Company by Parent on the
terms and subject to the conditions set forth in this Agreement;
WHEREAS, on May 5, 1995, the Purchaser commenced a tender offer (the
"Initial Offer") to purchase all of the shares of Common Stock, par value $.01
per share, of the Company (the "Common Shares") (including the associated
Preferred Share Purchase Rights (the "Rights") issued pursuant to the Rights
Agreement dated as of November 8, 1994 between the Company and the Bank of New
York, as Rights Agent (the "Rights Agreement"), which Rights together with the
Common Shares are hereinafter defined as the "Shares"), at a price per Common
Share of $20.00 net to the seller in cash subject to the conditions set forth
therein;
WHEREAS, the Board of Directors of the Company (the "Board") has
approved (i) the Initial Offer as amended pursuant to this Agreement (the
"Amended Offer") in order to, among other things, increase to $28.00 net to the
Seller in cash, the price to be paid thereunder for each outstanding Common
Share (such price, as it may hereafter be increased, the "Offer Price"), and
(ii) the Merger (as hereinafter defined) and is recommending that the Company's
stockholders accept the Amended Offer;
WHEREAS, the respective Boards of Directors of Parent, the Purchaser
and the Company have approved the merger of the Purchaser with and into the
Company, as set forth below (the "Merger"), in accordance with the General
Corporation Law of the State of Delaware (the "GCL") and upon the terms and
subject to the conditions set forth in this Agreement, whereby each of the
issued and outstanding Common Shares not owned directly or indirectly by Parent
or the Company will be converted into the right to receive the Offer Price in
cash;
WHEREAS, Parent, the Purchaser and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the
Amended Offer and the
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Merger and also to prescribe various conditions to the Amended Offer and the
Merger.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, Parent,
the Purchaser and the Company agree as follows:
ARTICLE I
THE AMENDED OFFER
SECTION 1.01 The Amended Offer.
(a) As promptly as practicable following the execution hereof, Parent and the
Purchaser shall issue a press release announcing that the Purchaser is
increasing the price to be paid for each outstanding Common Share to $28.00, net
to the seller in cash and extending the expiration date of the Initial Offer
until June 26, 1995 (the "Amended Expiration Date"). As promptly as
practicable, the Purchaser shall file with the Securities and Exchange
Commission (the "SEC") an amendment to the Purchaser's Tender Offer Statement on
Schedule 14D-1 (together with any supplements or amendments thereto, the "Offer
Documents"), which shall contain (as an exhibit) a supplement to the Purchaser's
Offer to Purchase dated May 5, 1995 (the "Offer to Purchase") which shall be
mailed to the holders of Shares with respect to the Amended Offer, which shall
amend the Initial Offer as described in the preceding sentence and shall amend
Section 14 of the Offer to Purchase to change the conditions set forth therein
to those set forth in Annex I hereto and no others; it being understood that,
except for the foregoing amendments or as otherwise provided herein, the Amended
Offer shall be on the same terms and subject to the same conditions as the
Initial Offer. The obligation of Parent to accept for payment or pay for any
Common Shares tendered pursuant to the Amended Offer will be subject only to the
satisfaction of the conditions set forth in Annex I hereto. Without the prior
written consent of the Company, the Purchaser shall not decrease the price per
Common Share or change the form of consideration payable in the Amended Offer,
decrease the number of Shares sought to be purchased in the Amended Offer,
change the conditions set forth in Annex I, waive the Minimum Condition (as
defined in Annex I), impose additional conditions to the Amended Offer or amend
any other term of the Offer in any manner adverse to the holders of Common
Shares. Subject to the terms of the Amended Offer and this Agreement and the
satisfaction of all the conditions of the Amended Offer set
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forth in Annex I hereto as of any expiration date, Parent will accept for
payment and pay for all Common Shares validly tendered and not withdrawn
pursuant to the Amended Offer as soon as practicable after such expiration date
of the Amended Offer. Subject to Section 8.01, if the conditions set forth in
Annex I hereto are not satisfied or, to the extent permitted by this Agreement,
waived by the Parent, as of the Amended Expiration Date (or any subsequently
scheduled expiration date), Parent will extend the Amended Offer from time to
time for the shortest time periods which it reasonably believes are necessary
until the consummation of the Amended Offer. Each of Parent and the Purchaser
shall use its reasonable best efforts to avoid the occurrence of any event
specified in Annex I or to cure any such event that shall have occurred.
(b) The Offer Documents will comply in all material respects with the
provisions of applicable federal securities laws and, on the date filed with the
SEC and on the date first published, sent or given to the Company's
stockholders, shall not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements made therein, in light of the circumstances under which
they were made, not misleading, except that no representation is made by Parent
or the Purchaser with respect to information supplied by the Company in writing
for inclusion in the Offer Documents. Each of Parent and the Purchaser, on the
one hand, and the Company, on the other hand, agrees promptly to correct any
information provided by it for use in the Offer Documents if and to the extent
that it shall have become false or misleading in any material respect and the
Purchaser further agrees to take all steps necessary to cause the Offer
Documents as so corrected to be filed with the SEC and to be disseminated to
stockholders of the Company, in each case as and to the extent required by
applicable federal securities laws.
SECTION 1.02 Company Actions.
(a) The Company shall promptly file with the SEC and mail to the holders of
Shares an amendment to the Company's Solicitation/Recommendation Statement on
Schedule 14D-9 with respect to the Offer (together with any amendments or
supplements thereto, the "Schedule 14D-9"). The Schedule 14D-9 will set forth,
and the Company hereby represents, that the Board, at a meeting duly called and
held, has (i) determined that the Amended Offer and the Merger are fair to and
in the best interests of the Company and its stockholders, (ii) approved the
Amended Offer and the Merger in accordance
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with Section 203 of the GCL, and (iii) resolved to recommend acceptance of the
Amended Offer and approval and adoption of the Merger and this Agreement by the
Company's stockholders (if such approval is required by applicable law);
provided, however, that such recommendation and approval may be withdrawn,
modified or amended to the extent that the Board determines in good faith, upon
advice from its outside counsel, that its fiduciary duties would require it to
do so. The Company further represents that, prior to the execution hereof,
Salomon Brothers Inc has delivered to the Board its written opinion that the
consideration to be received for the Common Shares pursuant to the Amended Offer
and the Merger is fair to the Company's stockholders.
(b) Each of the Company, on the one hand, and Parent and the Purchaser, on
the other hand, agree promptly to correct any information provided by either of
them for use in the Schedule 14D-9 if and to the extent that it shall have
become false or misleading, and the Company further agrees to take all steps
necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC
and to be disseminated to the holders of Shares, in each case as and to the
extent required by applicable federal securities law.
(c) In connection with the Amended Offer, the Company will furnish the
Purchaser with such information and assistance as the Purchaser or its agents or
representatives may reasonably request in connection with communicating the
Amended Offer to the record and beneficial holders of the Shares.
SECTION 1.03 Directors.
(a) Subject to compliance with applicable law, promptly upon the payment by
the Purchaser for Common Shares pursuant to the Amended Offer, and from time to
time thereafter, Parent shall be entitled to designate such number of directors,
rounded up to the next whole number, on the Board as is equal to the product of
the total number of directors on the Board (determined after giving effect to
the directors elected pursuant to this sentence) multiplied by the percentage
that the aggregate number of Common Shares beneficially owned by Parent or its
affiliates bears to the total number of fully diluted Shares then outstanding,
and the Company shall, upon request of Parent, promptly take all actions
necessary to cause Parent's designees to be so elected, including, if necessary,
seeking the resignations of one or more existing directors; provided, however,
that prior to the Effective Time (as defined in Section 2.02), the Board
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shall always have at least three members who are neither officers, directors,
stockholders or designees of the Purchaser or any of its affiliates ("Purchaser
Insiders"). If the number of directors who are not Purchaser Insiders is
reduced below three prior to the Effective Time, the remaining directors who are
not Purchaser Insiders (or if there is only one director who is not a Purchaser
Insider, the remaining director who is not a Purchaser Insider) shall be
entitled to designate a person (or persons) to fill such vacancy (or vacancies)
who is not an officer, director, stockholder or designee of the Purchaser or any
of its affiliates and who shall be a director not deemed to be a Purchaser
Insider for all purposes of this Agreement.
(b) The Company's obligations to appoint Parent's designees to the Board
shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 thereunder.
The Company shall promptly take all actions required pursuant to such Section
and Rule in order to fulfill its obligations under this Section 1.03 and shall
include in the Schedule 14D-9 such information with respect to the Company and
its officers and directors as is required under such Section and Rule in order
to fulfill its obligations under this Section 1.03. Parent will supply any
information with respect to itself and its officers, directors and affiliates
required by such Section and Rule to the Company.
(c) Following the election or appointment of Parent's designees pursuant to
this Section 1.03 and prior to the Effective Time, any amendment or termination
of this Agreement by the Company, any extension by the Company of the time for
the performance of any of the obligations or other acts of Parent or the
Purchaser or waiver of any of the Company's rights hereunder, or any other
action taken by the Board in connection with this Agreement, will require the
concurrence of a majority of the directors of the Company then in office who are
not Purchaser Insiders if such amendment, termination, extension, waiver or
action would have an adverse effect on the minority stockholders.
ARTICLE II
THE MERGER
SECTION 2.01 The Merger. Upon the terms and subject to the satisfaction or
waiver of the conditions hereof, and in accordance with the applicable
provisions of this Agreement and the GCL, at the Effective Time (as defined in
Section 2.02) the Purchaser shall be merged with and into the
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Company. Following the Merger, the separate corporate existence of the
Purchaser shall cease and the Company shall continue as the surviving
corporation (the "Surviving Corporation"). At the option of Parent and provided
that such amendment does not delay the Effective Time, the Merger may be
structured so that, and this Agreement shall thereupon be amended to provide
that, the Company shall be merged with and into the Purchaser or another direct
or indirect wholly-owned subsidiary of Parent, with the Purchaser or such other
subsidiary of Parent continuing as the Surviving Corporation; provided, however,
that the Company shall be deemed not to have breached any of its representations
and warranties herein if and to the extent such breach would have been
attributable to such election.
SECTION 2.02 Effective Time; Closing. As soon as practicable after the
satisfaction or waiver of the conditions set forth in Section 7.01 (a) and (b),
but subject to Section 7.01(c), the Company shall execute in the manner required
by the GCL and deliver to the Secretary of State of the State of Delaware a duly
executed and verified certificate of merger, or, if permitted, a certificate of
ownership and merger, and the parties shall take such other and further actions
as may be required by law to make the Merger effective. The time the Merger
becomes effective in accordance with applicable law is referred to as the
"Effective Time."
SECTION 2.03 Effects of the Merger. The Merger shall have the effects set
forth in Section 259 of the GCL.
SECTION 2.04 Certificate of Incorporation and By-Laws of the Surviving
Corporation.
(a) The Certificate of Incorporation of the Company, as in effect immediately
prior to the Effective Time, shall be the Certificate of Incorporation of the
Surviving Corporation, until thereafter amended in accordance with the
provisions thereof and hereof and applicable law.
(b) Subject to the provisions of Section 6.07 of this Agreement, the By-Laws
of the Purchaser in effect at the Effective Time shall be the By-Laws of the
Surviving Corporation until amended in accordance with the provisions thereof
and applicable law.
SECTION 2.05 Directors. Subject to applicable law, the directors of the
Purchaser immediately prior to the Effective Time shall be the initial directors
of the Surviving Corporation and shall hold office until their respective
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successors are duly elected and qualified, or their earlier death, resignation
or removal.
SECTION 2.06 Officers. The officers of the Company immediately prior to the
Effective Time shall be the initial officers of the Surviving Corporation and
shall hold office until their respective successors are duly elected and
qualified, or their earlier death, resignation or removal.
SECTION 2.07 Conversion of Common Shares. At the Effective Time, by virtue
of the Merger and without any action on the part of the holders thereof, each
Common Share issued and outstanding immediately prior to the Effective Time
(other than any Common Shares held by Parent, the Purchaser, any wholly-owned
subsidiary of Parent or the Purchaser, in the treasury of the Company or by any
wholly-owned subsidiary of the Company, which Common Shares, by virtue of the
Merger and without any action on the part of the holder thereof, shall be
cancelled and retired and shall cease to exist with no payment being made with
respect thereto, and other than Dissenting Shares (as defined in Section 3.01))
shall be converted into the right to receive in cash the Offer Price (the
"Merger Price"), payable to the holder thereof, without interest thereon, upon
surrender of the certificate formerly representing such Common Share.
SECTION 2.08 Conversion of Purchaser Common Stock. At the Effective Time,
each share of common stock, par value $.01 per share, of the Purchaser issued
and outstanding immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into and become one validly issued, fully paid and non-assessable share of
common stock, par value $.01 per share, of the Surviving Corporation.
SECTION 2.09 Company Option Plans. The Company shall use all reasonable
efforts to cause the holder of each outstanding option to purchase Common Shares
(an "Option") granted under the Company's 1987 Non-Qualified Stock Option and
Restricted Stock Award Plan or the Company's 1990 Stock Incentive Plan
(collectively, the "Option Plans"), to agree that each such Option shall be
cancelled, upon the acceptance for payment of Common Shares by the Purchaser
pursuant to the Amended Offer, at which time the Company will pay each such
holder of an Option (whether or not such Option is then vested or exercisable)
an amount determined by multiplying (i) the excess, if any, of the Offer Price
over the applicable exercise price of such Option by (ii) the number of Common
Shares such holder could have purchased if such holder had exercised such Option
in full immediately prior to such
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time (without giving effect to any antidilutive changes in the number of such
Common Shares arising from the Merger). In the case of the 1987 Option Plan,
the Company shall in any event take such action prior to the expiration date for
the Amended Offer as is necessary to ensure that Options issued thereunder will
have been extinguished as of the Effective Time upon payment of the amount
contemplated by the preceding sentence for each Option. If any consent of an
Option holder required pursuant to the second preceding sentence shall not be
obtained by the time of acceptance for payment, the Company shall, prior to the
Effective Time, obtain all consents necessary to give effect to the transaction
described in the foregoing sentence and shall make the payments provided in the
preceding sentence to those holders of Options who shall not have consented
prior to the time of acceptance for payment as soon as possible after obtaining
such consent.
SECTION 2.10 Stockholders' Meeting.
(a) If required by applicable law in order to consummate the Merger, the
Company, acting through the Board, shall, in accordance with applicable law:
(i) duly call, give notice of, convene and hold a special meeting of
its stockholders (the "Special Meeting") as soon as practicable following
the acceptance for payment of and payment for Common Shares by the
Purchaser pursuant to the Amended Offer for the purpose of considering and
taking action upon this Agreement;
(ii) prepare and file with the SEC a preliminary proxy statement
relating to the Merger and this Agreement and use its best efforts (x) to
obtain and furnish the information required to be included by the SEC in
the Proxy Statement (as hereinafter defined) and, after consultation with
Parent, to respond promptly to any comments made by the SEC with respect
to the preliminary proxy statement and cause a definitive proxy statement
(the "Proxy Statement") to be mailed to its stockholders and (y) to obtain
the necessary approvals of the Merger and this Agreement by its
stockholders; and
(iii) subject to the fiduciary obligations of the Board under
applicable law as provided in Section 1.02(a), include in the Proxy
Statement the recommendation of the Board that stockholders of the Company
vote in favor of the approval of the Merger and the adoption of this
Agreement.
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(b) Parent agrees that it will vote, or cause to be voted, all of the
Common Shares then owned by it, the Purchaser or any of its other subsidiaries
in favor of the approval of the Merger and the adoption of this Agreement.
SECTION 2.11 Merger Without Meeting of Stockholders. Notwithstanding
Section 2.10, in the event that Parent, the Purchaser or any other subsidiary of
Parent shall acquire at least 90% of the outstanding shares of each outstanding
class of capital stock of the Company pursuant to the Amended Offer, the parties
hereto agree to take all necessary and appropriate action to cause the Merger to
become effective as soon as practicable after the acceptance for payment of and
payment for Common Shares by the Purchaser pursuant to the Amended Offer without
a meeting of stockholders of the Company, in accordance with Section 253 of the
GCL.
ARTICLE III
DISSENTING SHARES; PAYMENT FOR SHARES
SECTION 3.01 Dissenting Shares. Notwithstanding anything in this Agreement
to the contrary, Common Shares outstanding immediately prior to the Effective
Time and held by a holder who has not voted in favor of the Merger or consented
thereto in writing and who has demanded appraisal for such Shares in accordance
with Section 262 of the GCL, if such Section 262 provides for appraisal rights
for such Shares in the Merger ("Dissenting Shares"), shall not be converted into
the right to receive the Merger Price as provided in Section 2.07, unless and
until such holder fails to perfect or withdraws or otherwise loses his right to
appraisal and payment under the GCL. If, after the Effective Time, any such
holder fails to perfect or withdraws or loses his right to appraisal, such
Dissenting Shares shall thereupon be treated as if they had been converted as of
the Effective Time into the right to receive the Merger Price, if any, to which
such holder is entitled, without interest or dividends thereon. The Company
shall give Parent prompt notice of any demands received by the Company for
appraisal of Common Shares and, prior to the Effective Time, Parent shall have
the right to participate in all negotiations and proceedings with respect to
such demands. Prior to the Effective Time, the Company shall not, except with
the prior written consent of Parent, make any payment with respect to, or settle
or offer to settle, any such demands.
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SECTION 3.02 Payment for Common Shares.
(a) From and after the Effective Time, The Chase Manhattan Bank, N.A. or such
other bank or trust company as shall be mutually acceptable to Parent and the
Company shall act as paying agent (the "Paying Agent") in effecting the payment
of the Merger Price in respect of certificates (the "Certificates") that, prior
to the Effective Time, represented Common Shares entitled to payment of the
Merger Price pursuant to Section 2.07. At the Effective Time, Parent or the
Purchaser shall deposit, or cause to be deposited, in trust with the Paying
Agent the aggregate Merger Price to which holders of Common Shares shall be
entitled at the Effective Time pursuant to Section 2.07.
(b) Promptly after the Effective Time, the Paying Agent shall mail to each
record holder of Certificates that immediately prior to the Effective Time
represented Common Shares (other than Certificates representing Dissenting
Shares and Certificates representing Common Shares held by Parent or the
Purchaser, any wholly-owned subsidiary of Parent or the Purchaser, in the
treasury of the Company or by any wholly-owned subsidiary of the Company) a form
of letter of transmittal which shall specify that delivery shall be effected,
and risk of loss and title to the Certificates shall pass, only upon proper
delivery of the Certificates to the Paying Agent and instructions for use in
surrendering such Certificates and receiving the Merger Price in respect
thereof. Upon the surrender of each such Certificate, the Paying Agent shall
pay the holder of such Certificate the Merger Price multiplied by the number of
Common Shares formerly represented by such Certificate, in consideration
therefor, and such Certificate shall forthwith be cancelled. Until so
surrendered, each such Certificate (other than Certificates representing
Dissenting Shares and Certificates representing Common Shares held by Parent or
the Purchaser, any wholly-owned subsidiary of Parent or the Purchaser, in the
treasury of the Company or by any wholly-owned subsidiary of the Company) shall
represent solely the right to receive the aggregate Merger Price relating
thereto. No interest or dividends shall be paid or accrued on the Merger Price.
If the Merger Price (or any portion thereof) is to be delivered to any person
other than the person in whose name the Certificate formerly representing Common
Shares surrendered therefor is registered, it shall be a condition to such right
to receive such Merger Price that the Certificate so surrendered shall be
properly endorsed or otherwise be in proper form for transfer and that the
person surrendering such Common Shares shall pay to the Paying Agent any
transfer or other taxes required by reason of the payment of the Merger Price to
a
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person other than the registered holder of the Certificate surrendered, or shall
establish to the satisfaction of the Paying Agent that such tax has been paid or
is not applicable.
(c) Promptly following the date which is 180 days after the Effective Time,
the Paying Agent shall deliver to the Surviving Corporation all cash,
Certificates and other documents in its possession relating to the transactions
described in this Agreement, and the Paying Agent's duties shall terminate.
Thereafter, each holder of a Certificate formerly representing a Common Share
may surrender such Certificate to the Surviving Corporation and (subject to
applicable abandoned property, escheat and similar laws) receive in
consideration therefor the aggregate Merger Price relating thereto, without any
interest or dividends thereon.
(d) After the Effective Time, there shall be no transfers on the stock
transfer books of the Surviving Corporation of any Common Shares which were
outstanding immediately prior to the Effective Time. If, after the Effective
Time, Certificates formerly representing Common Shares are presented to the
Surviving Corporation or the Paying Agent, they shall be surrendered and
cancelled in return for the payment of the aggregate Merger Price relating
thereto, as provided in this Article III, subject to applicable law in the case
of Dissenting Shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and the Purchaser that except
as set forth in the Company Disclosure Statement:
SECTION 4.01 Organization and Qualification; Subsidiaries. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. Each of the Company's significant subsidiaries
(within the meaning of Regulation S-X under the Exchange Act (the "Significant
Subsidiaries")) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation. The Company
and each of the Significant Subsidiaries has the requisite corporate power and
authority to own, operate or lease its properties and to carry on its business
as it is now being conducted, and is duly qualified or licensed to do business,
and is in good standing, in each jurisdiction in which
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the nature of its business or the properties owned, operated or leased by it
makes such qualification, licensing or good standing necessary, except where the
failure to have such power or authority, or the failure to be so qualified,
licensed or in good standing, would not have a Material Adverse Effect on the
Company. The term "Material Adverse Effect on the Company", as used in this
Agreement, means any change in or effect on the business, operations, financial
condition or long-term profitability of the Company or any of its subsidiaries
that is materially adverse to the Company and its subsidiaries taken as a whole.
SECTION 4.02 Charter and By-Laws. The Company has heretofore made available
to Parent and the Purchaser a complete and correct copy of the charter and the
by-laws or comparable organizational documents, each as amended to the date
hereof, of the Company and each of the Significant Subsidiaries.
SECTION 4.03 Capitalization. The authorized capital stock of the Company
consists of 50,000,000 Common Shares and 5,000,000 shares of Preferred Stock, no
par value and 230,000 shares of Preferred Stock, $100 par value (collectively
"Preferred Stock"). As of the close of business on May 31, 1995, 11,146,022
Common Shares were issued and outstanding, excluding 1,118,089 Common Shares in
treasury. As of the close of business on June 10, 1995 there were no shares of
Preferred Stock issued and outstanding. The Company has no shares reserved for
issuance, except that, as of May 31, 1995, there were 281,950 Common Shares
reserved for issuance pursuant to outstanding Options under the Option Plans and
500,000 shares of Series A Junior Participating Par Preferred Stock, par value
$1.00 per share, reserved for issuance upon exercise of the Rights. As of the
date hereof, the Company has no options to purchase Common Shares outstanding
other than as set forth in the Company Disclosure Statement. Since May 31,
1995, the Company has not issued any shares of capital stock except pursuant to
the exercise of Options outstanding as of such date. All the outstanding Common
Shares are, and all Common Shares which may be issued pursuant to the exercise
of outstanding Options will be, when issued in accordance with the respective
terms thereof, duly authorized, validly issued, fully paid and nonassessable.
There are no bonds, debentures, notes or other indebtedness having general
voting rights (or convertible into securities having such rights) ("Voting
Debt") of the Company or any of its subsidiaries issued and outstanding. Except
as set forth above or for the Rights and except for the transactions
contemplated by this Agreement, there are no existing options, warrants, calls,
subscriptions or other rights, agreements,
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arrangements or commitments of any character, relating to the issued or unissued
capital stock of the Company or any of its subsidiaries, obligating the Company
or any of its subsidiaries to issue, transfer or sell or cause to be issued,
transferred or sold any shares of capital stock or Voting Debt of, or other
equity interest in, the Company or any of its subsidiaries or securities
convertible into or exchangeable for such shares or equity interests and neither
the Company nor any of its subsidiaries is obligated to grant, extend or enter
into any such option, warrant, call, subscription or other right, agreement,
arrangement or commitment. Except as contemplated by this Agreement or the
Rights Agreement and except for the Company's obligations in respect of the
Options under the Option Plans, there are no outstanding contractual obligations
of the Company or any of its subsidiaries to repurchase, redeem or otherwise
acquire any Common Shares or the capital stock of the Company or any of its
subsidiaries. Each of the outstanding shares of capital stock of each of the
Company's subsidiaries is duly authorized, validly issued, fully paid and
nonassessable, and such shares of the Company's subsidiaries as are owned by the
Company or by a subsidiary of the Company are owned in each case free and clear
of any lien, claim, option, charge, security interest, limitation, encumbrance
and restriction of any kind (any of the foregoing being a "Lien"), except such
as would not have a Material Adverse Effect on the Company (provided that the
representation in this sentence with respect to the Principal Subsidiaries (as
hereinafter defined) is not qualified by reference to such Material Adverse
Effect).
SECTION 4.04 Authority Relative to this Agreement. The Company has all
necessary corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by the Company and the consummation by the Company of
the transactions contemplated hereby have been duly and validly authorized and
approved by the Board and no other corporate proceedings on the part of the
Company are necessary to authorize or approve this Agreement or to consummate
the transactions contemplated hereby (other than, with respect to the Merger,
the approval and adoption of the Merger and this Agreement by the affirmative
vote of the holders of a majority of the Common Shares then outstanding, to the
extent required by applicable law). This Agreement has been duly and validly
executed and delivered by the Company and, assuming the due and valid
authorization, execution and delivery of this Agreement by Parent and the
Purchaser, constitutes a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms,
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except that such enforceability (i) may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting or relating to the enforcement of
creditors' rights generally and (ii) is subject to general principles of equity.
SECTION 4.05 No Conflict; Required Filings and Consents.
(a) None of the execution and delivery of this Agreement by the Company, the
consummation by the Company of the transactions contemplated hereby or
compliance by the Company with any of the provisions hereof will (i) conflict
with or violate the Certificate of Incorporation or By-Laws of the Company or
the comparable organizational documents of any of the Significant Subsidiaries,
(ii) conflict with or violate any statute, ordinance, rule, regulation, order,
judgment or decree applicable to the Company or its subsidiaries, or by which
any of them or any of their respective properties or assets may be bound or
affected, or (iii) result in a violation or breach of or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in any loss of any material benefit, or the creation
of any Lien on any of the property or assets of the Company or any of its
subsidiaries (any of the foregoing referred to in clause (ii) or this clause
(iii) being a "Violation") pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or any of their respective
properties may be bound or affected, except in the case of the foregoing clauses
(ii) or (iii) for any such Violations which would not in the aggregate have a
Material Adverse Effect on the Company.
(b) None of the execution and delivery of this Agreement by the Company, the
consummation by the Company of the transactions contemplated hereby or
compliance by the Company with any of the provisions hereof will require any
consent, waiver, approval, authorization or permit of, or registration or filing
with or notification to (any of the foregoing being a "Consent"), any government
or subdivision thereof, domestic, foreign or supranational or any
administrative, governmental or regulatory authority, agency, commission,
tribunal or body, domestic, foreign or supranational (a "Governmental Entity"),
except for (i) compliance with any applicable requirements of the Exchange Act,
(ii) the filing of a certificate of merger, or, if permitted, a certificate
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of ownership and merger, pursuant to the GCL, (iii) certain state takeover and
environmental statutes, (iv) compliance with the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act") and any requirements of any
foreign or supranational Antitrust Laws (as hereinafter defined), and (v)
Consents the failure of which to obtain or make would not in the aggregate have
a Material Adverse Effect on the Company or materially adversely affect the
ability of the Company to consummate the transactions contemplated hereby.
SECTION 4.06 SEC Reports and Financial Statements.
(a) The Company has filed with the SEC all forms, reports, schedules,
registration statements and definitive proxy statements required to be filed by
the Company with the SEC since May 31, 1992 (the "SEC Reports"). As of their
respective dates, the SEC Reports complied in all material respects with the
requirements of the Exchange Act or the Securities Act of 1933 and the rules and
regulations of the SEC promulgated thereunder applicable, as the case may be, to
such SEC Reports, and none of the SEC Reports contained any untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
(b) The consolidated balance sheets as of May 31, 1994, 1993 and 1992 and the
related consolidated statements of income, common shareholders' equity and cash
flows for each of the three years in the period ended May 31, 1994 (including
the related notes and schedules thereto) of the Company contained in the Form
10-Ks for the years ended May 31, 1994, 1993 and 1992 included in the SEC
Reports present fairly in all material respects the consolidated financial
position and the consolidated results of operations and cash flows of the
Company and its consolidated subsidiaries as of the dates or for the periods
presented therein in conformity with United States generally accepted accounting
principles ("GAAP") applied on a consistent basis during the periods involved
except as otherwise noted therein, including the related notes.
(c) The consolidated balance sheets and the related statements of income and
cash flows (including in each case the related notes thereto) of the Company
contained in the Forms 10-Q for the periods ended August 31, 1994, November 30,
1994 and February 28, 1995 included in the SEC Reports (collectively, the
Quarterly Financial Statements) have been prepared in accordance with the
requirements for
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interim financial statements contained in Regulation S-X, which do not require
all the information and footnotes necessary for a fair presentation of financial
position, results of operations and cash flows in conformity with generally
accepted accounting principles. The Quarterly Financial Statements reflect all
adjustments, which include only normal recurring adjustments, necessary to
present fairly in all material respects the consolidated financial position,
results of operations and cash flows of the Company for all periods presented.
SECTION 4.07 Information. None of the information supplied by the Company
in writing specifically for inclusion or incorporation by reference in (i) the
Offer Documents, (ii) the Schedule 14D-9, (iii) the Proxy Statement or (iv) any
other document to be filed with the SEC or any other Governmental Entity in
connection with the transactions contemplated by this Agreement (the "Other
Filings") will, at the respective times filed with the SEC or other Governmental
Entity and, in addition, in the case of the Proxy Statement, at the date it or
any amendment or supplement is mailed to stockholders, at the time of the
Special Meeting and at the Effective Time, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading. The Schedule 14D-9
and the Proxy Statement will comply as to form in all material respects with the
provisions of the Exchange Act and the rules and regulations thereunder, except
that no representation is made by the Company with respect to statements made
therein based on information supplied by Parent or the Purchaser in writing
specifically for inclusion in the Proxy Statement.
SECTION 4.08 Certain Approvals. The Board has taken appropriate action such
that the provisions of Section 203 of the GCL will not apply to any of the
transactions contemplated by this Agreement.
SECTION 4.09 Rights Agreement. Assuming the accuracy of Parent's
representation in Section 5.06 of this Agreement, neither the execution nor the
delivery of this Agreement, nor the commencement of the Amended Offer, will
result in a "Distribution Date" (as defined in the Rights Agreement).
SECTION 4.10 Brokers. Except for the engagement of Salomon Brothers Inc
("Salomon"), none of the Company, any of its subsidiaries, or any of their
respective officers, directors or employees has employed any broker or finder or
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incurred any liability for any brokerage fees, commissions or finder's fees in
connection with the transactions contemplated by this Agreement.
SECTION 4.11 Material Adverse Effect. Since February 28, 1995, except as
disclosed in the SEC Reports, there has not been any material adverse change, or
any event, condition or development reasonably likely to result in a material
adverse change, in the business, operations, financial condition or long-term
profitability of the Company and its subsidiaries taken as a whole, other than
changes arising from general economic or industry conditions or from the
commencement of the Initial Offer or the acquisition proposal made by Parent on
April 3, 1995. Since February 28, 1995, (i) the Company has not taken any
action or agreed to take any action that the Company is prohibited from taking
after the date hereof by paragraphs (a) through (k) of Section 6.01 of this
Agreement and (ii) the Company has not taken any material action or agreed to
take any material action that the Company is otherwise prohibited from taking
after the date hereof by Section 6.01 of this Agreement.
SECTION 4.12 Accuracy on Expiration Date. The representations and
warranties of the Company contained in this Article IV, as modified by the
Company Disclosure Schedule, and in the second and third sentences of Section
1.02(a) of this Agreement will be true and correct in all material respects as
of the expiration date of the Amended Offer as though then made (other than
representations and warranties as of a specific date, which will be true and
correct in all material respects as of such date).
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF PARENT AND THE PURCHASER
Parent and the Purchaser represent and warrant to the Company as follows:
SECTION 5.01 Organization and Qualification. Parent is a corporation duly
organized, validly existing and in good standing under the laws of Delaware and
each material subsidiary of Parent is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization. The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. Parent and each
of its
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material subsidiaries (including the Purchaser) has the requisite corporate
power and authority to own, operate or lease its properties and to carry on its
business as it is now being conducted, and is duly qualified or licensed to do
business, and is in good standing, in each jurisdiction in which the nature of
its business or the properties owned, operated or leased by it makes such
qualification, licensing or good standing necessary, except where the failure to
have such power or authority, or the failure to be so qualified, licensed or in
good standing, would not have a Material Adverse Effect on Parent. The term
"Material Adverse Effect on Parent", as used in this Agreement, means any change
in or effect on the business, operations, financial condition or long-term
profitability of Parent or any of its subsidiaries that would be materially
adverse to Parent and its subsidiaries taken as a whole.
SECTION 5.02 Authority Relative to this Agreement. Each of Parent and the
Purchaser has all necessary corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by Parent and the Purchaser and the
consummation by Parent and the Purchaser of the transactions contemplated hereby
have been duly and validly authorized and approved by the Boards of Directors of
Parent and the Purchaser and by Parent as stockholder of the Purchaser and no
other corporate proceedings on the part of Parent or the Purchaser are necessary
to authorize or approve this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
each of Parent and the Purchaser and, assuming the due and valid authorization,
execution and delivery by the Company, constitutes a valid and binding
obligation of each of Parent and the Purchaser enforceable against each of them
in accordance with its terms, except that such enforceability (i) may be limited
by bankruptcy, insolvency, moratorium or other similar laws affecting or
relating to the enforcement of creditors' rights generally and (ii) is subject
to general principles of equity.
SECTION 5.03 No Conflict; Required Filings and Consents.
(a) None of the execution and delivery of this Agreement by Parent or the
Purchaser, the consummation by Parent or the Purchaser of the transactions
contemplated hereby or compliance by Parent or the Purchaser with any of the
provisions hereof will (i) conflict with or violate the organizational documents
of Parent or the Purchaser, (ii)
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conflict with or violate any statute, ordinance, rule, regulation, order,
judgment or decree applicable to Parent or the Purchaser, or any of their
subsidiaries, or by which any of them or any of their respective properties or
assets may be bound or affected, or (iii) result in a Violation pursuant to any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Parent or the Purchaser, or
any of their subsidiaries, is a party or by which any of their respective
properties or assets may be bound or affected, except in the case of the
foregoing clauses (ii) and (iii) for any such Violations which would not have a
Material Adverse Effect on Parent or materially adversely affect the ability of
Parent or the Purchaser to consummate the transactions contemplated hereby.
(b) None of the execution and delivery of this Agreement by Parent and the
Purchaser, the consummation by Parent and the Purchaser of the transactions
contemplated hereby or compliance by Parent and the Purchaser with any of the
provisions hereof will require any Consent of any Governmental Entity, except
for (i) compliance with any applicable requirements of the Exchange Act, (ii)
the filing of a certificate of merger, or, if permitted, a certificate of
ownership and merger, pursuant to the GCL, (iii) notifications required by
certain state takeover and environmental statutes and (iv) Consents the failure
of which to obtain or make would not have a Material Adverse Effect on Parent or
materially adversely affect the ability of Parent or the Purchaser to consummate
the transactions contemplated hereby.
SECTION 5.04 Information. None of the information supplied or to be
supplied by Parent and the Purchaser in writing specifically for inclusion in
(i) the Offer Documents, (ii) the Schedule 14D-9, (iii) the Proxy Statement or
(iv) the Other Filings will, at the respective times filed with the SEC or such
other Governmental Entity and, in addition, in the case of the Proxy Statement,
at the date it or any amendment or supplement is mailed to stockholders, at the
time of the Special Meeting and at the Effective Time, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading.
SECTION 5.05 Financing. Parent or the Purchaser has available to it the
funds necessary to consummate the Amended Offer and the Merger and the
transactions contemplated hereby.
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SECTION 5.06 Parent Not an Interested Stockholder or an Acquiring Person.
As of the date of this Agreement, neither Parent nor any of its affiliates is an
"Interested Stockholder" as such term is defined in Section 203 of the GCL, or
an "Acquiring Person" as such term is defined in the Rights Agreement.
ARTICLE VI
COVENANTS
SECTION 6.01 Conduct of Business of the Company. Except as contemplated by
this Agreement or with the prior written consent of Parent, during the period
from the date of this Agreement to the Effective Time, the Company will, and
will cause each of its subsidiaries to, conduct its operations only in the
ordinary and usual course of business consistent with past practice and will use
its reasonable efforts, and will cause each of its subsidiaries to use its
reasonable efforts, to preserve intact the business organization of the Company
and each of its subsidiaries, to keep available the services of its and their
present officers and key employees, and to preserve the good will of those
having business relationships with it. Without limiting the generality of the
foregoing, and except as otherwise contemplated by this Agreement, the Company
will not, and will not permit any of its subsidiaries to, prior to the Effective
Time, without the prior written consent of Parent:
(a) adopt any amendment to its charter or By-Laws or comparable
organizational documents or the Rights Agreement;
(b) except for issuances of capital stock of the Company's subsidiaries to
the Company or a wholly-owned subsidiary of the Company, issue, reissue, pledge
or sell, or authorize the issuance, reissuance, pledge or sale of (i) additional
shares of capital stock of any class, or securities convertible into capital
stock of any class, or any rights, warrants or options to acquire any
convertible securities or capital stock, other than the issuance of Common
Shares (and the related Rights), in accordance with the terms of the instruments
governing such issuance on the date hereof, pursuant to the exercise of options
outstanding on the date hereof, or (ii) any other securities in respect of, in
lieu of, or in substitution for, Shares outstanding on the date hereof;
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(c) declare, set aside or pay any dividend or other distribution (whether in
cash, securities or property or any combination thereof) in respect of any class
or series of its capital stock other than between any of the Company and any of
its wholly-owned subsidiaries, except for (y) the regular quarterly dividend on
the Common Shares not in excess of $0.055 per Common Share with a record and
payment date in accordance with recent practice, provided that such dividend may
not be declared if Common Shares are accepted for payment in accordance with the
Amended Offer and this Agreement prior to July 15, 1995 and (z) the redemption
of the Rights when and as provided in this Agreement;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise
acquire, or propose to redeem or purchase or otherwise acquire, any shares of
its capital stock, or any of its other securities;
(e) except for (i) increases in salary, wages and benefits granted to
officers and employees of the Company or its subsidiaries in conjunction with
promotions or other changes in job status or normal compensation reviews in the
ordinary course of business consistent with past practice, or (ii) increases in
salary, wages and benefits to employees of the Company pursuant to collective
bargaining agreements entered into in the ordinary course of business consistent
with past practice: increase the compensation or fringe benefits payable or to
become payable to its directors, officers or key employees (whether from the
Company or any of its subsidiaries), or pay or award any benefit not required by
any existing plan or arrangement to any officer, director or key employee
(including, without limitation, the granting of stock options, stock
appreciation rights, shares of restricted stock or performance units pursuant to
the Option Plans or otherwise), or grant any additional severance or termination
pay to any officer, director, or headquarters' employee of the Company or to the
president of either Principal Subsidiary (other than as required by existing
agreements or policies described in the Company Disclosure Statement), or enter
into any employment or severance agreement with, any director, officer or other
key employee of the Company or any of its subsidiaries or establish, adopt,
enter into, amend or waive any performance or vesting criteria under any
collective bargaining, bonus, profit sharing, thrift, compensation, stock
option, restricted stock, pension, retirement, savings, welfare, deferred
compensation, employment, termination, severance or other employee benefit plan,
agreement, trust, fund, policy or arrangement for the benefit or welfare of any
directors, officers or current or former employees (any of the foregoing being
an "Employee Benefit
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Arrangement"), except in each case to the extent required by applicable law or
regulation; provided, however, that nothing herein will be deemed to prohibit
the payment of benefits as they become payable or prevent the payment, prior to
the consummation of the Amended Offer, of (i) annual bonuses in respect of the
fiscal year ended May 31, 1995 in an aggregate amount up to $1,427,549 (which
bonuses have been accrued in the results set forth in the Company Disclosure
Statement and which aggregate amount is the sum of the target bonuses set forth
in the plans under which such bonuses are awarded) and (ii) sales incentive
payments pursuant to the Smith Meter Inc. Sales Incentive Plan and the Crosby
Valve and Gage Company Sales Incentive Plan in respect of the fiscal year ended
May 31, 1995 in an aggregate amount up to $275,000 (which payments have been
accrued in the results set forth in the Company Disclosure Statement and which
aggregate amount is the sum of the target incentive awards set forth in such
plans);
(f) except as set forth in the Company Disclosure Schedule, acquire, sell,
lease or dispose of any assets or securities which are material to the Company
and its subsidiaries, or enter into any commitment to do any of the foregoing or
enter into any material commitment or transaction outside the ordinary course of
business consistent with past practice other than transactions between a wholly
owned subsidiary of the Company and the Company or another wholly owned
subsidiary of the Company;
(g) except as set forth in the Company Disclosure Schedule (i) incur, assume
or pre-pay any long-term debt or incur or assume any short-term debt, except
that the Company and its subsidiaries may incur or pre-pay debt in the ordinary
course of business in amounts and for purposes consistent with past practice
under existing lines of credit, (ii) assume, guarantee, endorse or otherwise
become liable or responsible (whether directly, contingently or otherwise) for
the obligations of any other person except in the ordinary course of business
consistent with past practice, or (iii) make any loans, advances or capital
contributions to, or investments in, any other person except in the ordinary
course of business consistent with past practice and except for loans, advances,
capital contributions or investments between any wholly owned subsidiary of the
Company and the Company or another wholly owned subsidiary of the Company;
(h) settle or compromise any suit or claim or threatened suit or claim where
the amount involved was greater than $250,000;
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(i) other than in the ordinary course of business consistent with past
practice, (i) modify, amend or terminate any contract, (ii) waive, release,
relinquish or assign any contract (or any of the Company's rights thereunder),
right or claim, or (iii) cancel or forgive any indebtedness owed to the Company
or any of its subsidiaries in excess of $250,000, and that in the case of (i)
and (ii) is material to the Company and its subsidiaries taken as a whole;
provided, however, that the Company may not under any circumstance waive or
release any of its rights under any confidentiality agreement (except that
provisions limiting control-related activities may be waived if the Company's
Board of Directors determines in good faith, upon the advice of its outside
counsel, that its fiduciary duties require it to do so) to which it is a party;
(j) make any tax election not required by law or settle or compromise any tax
liability, in any case that is material and adverse to the Company and its
subsidiaries; or
(k) agree in writing or otherwise to take any of the foregoing actions
prohibited under Section 6.01 or any action which would cause any representation
or warranty in this Agreement to be or become untrue or incorrect in any
material respect.
SECTION 6.02 Access to Information. From the date of this Agreement until
the Effective Time, the Company will, and will cause its subsidiaries, and each
of their respective officers, directors, employees, counsel, advisors and
representatives (collectively, the "Company Representatives") to, give Parent
and the Purchaser and their respective officers, employees, counsel, advisors
and representatives (collectively, the "Parent Representatives") full access
(subject, however, to existing confidentiality and similar non-disclosure
obligations and the preservation of attorney client and work product
privileges), during normal business hours, to the offices and other facilities
and to the books and records of the Company and its subsidiaries and will cause
the Company Representatives and the Company's subsidiaries to furnish Parent,
the Purchaser and the Parent Representatives to the extent available with such
financial and operating data and such other information with respect to the
business and operations of the Company and its subsidiaries as Parent and the
Purchaser may from time to time request. In addition, Parent will comply with
the terms of the Confidentiality Agreement (as hereinafter defined).
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SECTION 6.03 Reasonable Best Efforts. Subject to the terms and conditions
herein provided and to applicable legal requirements, 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 (in the case of the Company consistent
with the fiduciary duties of the Company's Board of Directors under applicable
law as provided in Section 1.02(a)), and to assist and cooperate with the other
parties hereto in doing, as promptly as practicable, all things necessary,
proper or advisable under applicable laws and regulations to ensure that the
conditions set forth in Annex I and Article VII are satisfied and to consummate
and make effective the transactions contemplated by the Amended Offer and this
Agreement.
In addition, if at any time prior to the Effective Time any event or
circumstance relating to either the Company or Parent or the Purchaser or any of
their respective subsidiaries, should be discovered by the Company or Parent, as
the case may be, and which should be set forth in an amendment to the Offer
Documents or Schedule 14D-9, the discovering party will promptly inform the
other party of such event or circumstance. If at any time after the Effective
Time any further action is necessary or desirable to carry out the purposes of
this Agreement, including the execution of additional instruments, the proper
officers and directors of each party to this Agreement shall take all such
necessary action.
SECTION 6.04 Consents.
(a) Each of the parties will use its reasonable best efforts to obtain as
promptly as practicable all Consents of any Governmental Entity or any other
person required in connection with, and waivers of any Violations that may be
caused by, the consummation of the transactions contemplated by the Amended
Offer and this Agreement.
(b) In furtherance and not in limitation of the foregoing, Parent shall use
its best efforts to resolve such objections, if any, as may be asserted with
respect to the transactions contemplated by this Agreement under any antitrust,
competition or trade regulatory laws, rules or regulations of any domestic or
foreign government or governmental authority or any multinational authority
("Antitrust Laws"). If any suit is instituted challenging any of the
transactions contemplated by this Agreement as violative of any Antitrust Law,
Parent shall take such action (including, without limitation, agreeing to hold
separate or to divest any of the businesses, product lines or assets of Parent
or
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any of its affiliates or of any of the Company, its subsidiaries or affiliates)
as may be required (a) by the applicable government or governmental or
multinational authority (including, without limitation, the Antitrust Division
of the United States Department of Justice, the Federal Trade Commission or the
European Economic Area) in order to resolve such objections as such government
or authority may have to such transactions under such Antitrust Law, or (b) by
any domestic or foreign court or similar tribunal, in any suit brought by a
private party or governmental or multinational authority challenging the
transactions contemplated by this Agreement as violative of any Antitrust Law,
in order to avoid the entry of, or to effect the dissolution of, any injunction,
temporary restraining order or other order that has the effect of preventing the
consummation of any of such transactions. The entry by a court, in any suit
brought by a private party or governmental or multinational authority
challenging the transactions contemplated by this Agreement as violative of any
Antitrust Law, of an order or decree permitting the transactions contemplated by
this Agreement, but requiring that any of the businesses, product lines or
assets of any of Parent or its affiliates, the Company or its subsidiaries or
affiliates be divested or held separate by Parent, or that would otherwise limit
Parent's freedom of action with respect to, or its ability to retain, the
Company and its subsidiaries or any portion thereof or any of Parent's or its
affiliates' other assets or businesses, shall not be deemed a failure to satisfy
the conditions specified in Annex I hereto or Section 7.01(c) hereof.
(c) Any party hereto shall promptly inform the others of any material
communication from the United States Federal Trade Commission, the Department of
Justice, the European Economic Area or any other domestic or foreign government
or governmental or multinational authority regarding any of the transactions
contemplated by this Agreement. If any party or any affiliate thereof receives
a request for additional information or documentary material from any such
government or authority with respect to the transactions contemplated by this
Agreement, then such party will endeavor in good faith to make, or cause to be
made, as soon as reasonably practicable and after consultation with the other
party, an appropriate response in compliance with such request. Parent will
advise the Company promptly in respect of any understandings, undertakings or
agreements (oral or written) which Parent proposes to make or enter into with
the Federal Trade Commission, the Department of Justice, the European Economic
Area or any other domestic or foreign government or governmental or
multinational authority in connection with the transactions contemplated by this
Agreement.
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SECTION 6.05 Public Announcements. So long as this Agreement is in effect,
but only until the Purchaser purchases Shares pursuant to the Offer, Parent, the
Purchaser and the Company agree to use reasonable efforts to consult with each
other before issuing any press release or otherwise making any public statement
with respect to the transactions contemplated by this Agreement.
SECTION 6.06 Employee Benefit Arrangements. Parent agrees that the Company
will honor and, from and after the Effective Time, Parent will cause the
Surviving Corporation to honor, all obligations under Employee Benefit
Arrangements to which the Company or any of its subsidiaries is presently a
party which are listed in Section 6.06 of the Company Disclosure Schedule.
Notwithstanding the foregoing, from and after the Effective Time, subject to the
remaining provisions of this Section 6.06, the Surviving Corporation shall have
the right to amend, modify, alter or terminate any Employee Benefit
Arrangements, provided that any such action shall not adversely affect the
rights of any employees or other beneficiaries which shall have arisen
thereunder prior to such amendment, modification, alteration or termination and
shall not affect any rights for which the agreement of the other party or a
beneficiary is required. Notwithstanding the foregoing, for a period of two
years following the Effective Time, Parent shall cause the Surviving Corporation
to continue to provide to employees of the Company and its subsidiaries
(excluding employees covered by collective bargaining agreements) Fringe
Benefits (as defined below) which are in the aggregate no less favorable than
those provided to such employees as of the date hereof; provided, that nothing
in this sentence shall be deemed to limit or otherwise affect the right of the
Surviving Corporation to terminate employment or change the place of work,
responsibilities, status or designation of any employee or group of employees as
the Surviving Corporation may determine in the exercise of its business judgment
and in compliance with applicable laws. Solely for purposes of eligibility and
vesting under Employee Benefit Arrangements (including without limitation plans
or programs of Parent and its affiliates after the Effective Time), all service
with the Company or any of its subsidiaries prior to the Effective Time shall be
treated as service with Parent and its affiliates. "Fringe Benefits" means only
the following benefits: any health, dental, pension, life insurance, long-term
disability, severance, retirement or savings plan, policy or arrangement.
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SECTION 6.07 Indemnification.
(a) Parent agrees that all rights to indemnification now existing in favor
of any director or officer of the Company and its subsidiaries (the "Indemnified
Parties") as provided in their respective charters or by-laws or, to the extent
set forth in the Company Disclosure Statement, as provided, in an agreement
between an Indemnified Party and the Company or one of its subsidiaries, shall
survive the Merger and shall continue in full force and effect for a period of
not less than six years from the Effective Time; provided that in the event any
claim or claims are asserted or made within such six-year period, all rights to
indemnification in respect of any such claim or claims shall continue until
final disposition of any and all such claims. After the Effective Time, Parent
agrees to cause the Surviving Corporation to honor all rights to indemnification
referred to in the preceding sentence. Without limitation of the foregoing, in
the event any such Indemnified Party is or becomes involved in any capacity in
any action, proceeding or investigation in connection with any matter,
including, without limitation, the transactions contemplated by this Agreement,
occurring prior to, and including, the Effective Time, Parent will cause to be
paid in accordance with the applicable charters, by-laws and agreements, as
incurred such Indemnified Party's legal and other expenses (including the cost
of any investigation and preparation) incurred in connection therewith. Parent
shall pay all expenses, including attorneys' fees, that may be incurred by any
Indemnified Party in enforcing the indemnity and other obligations provided for
in this Section 6.07 subject to the limitations of the GCL to the extent
applicable.
(b) Parent agrees that the Company, and from and after the Effective Time,
the Surviving Corporation shall cause to be maintained in effect for not less
than four years from the Effective Time the current policies of the directors'
and officers' liability insurance maintained by the Company; provided that the
Surviving Corporation may substitute therefor other policies not less
advantageous (other than to a de minimus extent) to the beneficiaries of the
current policies and provided that such substitution shall not result in any
gaps or lapses in coverage with respect to matters occurring prior to the
Effective Time; and provided, further, that the Surviving Corporation shall not
be required to pay an annual premium in excess of 250% of the last annual
premium paid by the Company prior to the date hereof and if the Surviving
Corporation is unable to obtain the insurance
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required by this Section 6.07(b) it shall obtain as much comparable insurance as
possible for an annual premium equal to such maximum amount.
SECTION 6.08 Notification of Certain Matters. Parent and the Company shall
promptly notify each other of (a) the occurrence or non-occurrence of any fact
or event which would be reasonably likely (i) to cause any representation or
warranty contained in this Agreement to be untrue or inaccurate in any material
respect at any time from the date hereof to the Effective Time or (ii) to cause
any material covenant, condition or agreement under this Agreement not to be
complied with or satisfied in all material respects and (b) any failure of the
Company or Parent, as the case may be, to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it hereunder in any
material respect; provided, however, that no such notification shall affect the
representations or warranties of any party or the conditions to the obligations
of any party hereunder.
SECTION 6.09 Redemption of Rights. The Company will redeem the Rights
effective immediately prior to the Purchaser's acceptance for payment of Common
Shares pursuant to the Amended Offer and will not otherwise redeem the Rights,
or amend or terminate the Rights Agreement, unless in each such case the Board
determines in good faith with the advice of outside counsel that failure to take
such action would result in a breach of its fiduciary duties under applicable
law. The Company agrees that the Amended Offer will provide, and require that
tendering holders of Common Shares confirm, that Parent will be entitled to
receive and retain the amounts paid in redemption of all Rights attached to
Common Shares acquired pursuant to the Amended Offer.
SECTION 6.10 State Takeover Laws. The Company shall, upon the request of
the Purchaser, take all reasonable steps to assist in any challenge by the
Purchaser to the validity or applicability to the transactions contemplated by
this Agreement, including the Amended Offer and the Merger, of any state
takeover law.
SECTION 6.11 Disposition of Litigation. The parties hereto shall
immediately dismiss, with prejudice, with each party bearing its own costs and
litigation expenses, all proceedings pending between them and their affiliates
(including their respective directors), including any and all counterclaims
asserted against any such parties or their directors and officers in connection
with the Initial Offer
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(collectively, the "Litigation") and each shall thereafter sign and deliver such
further papers as may be necessary to effect such dismissals.
SECTION 6.12 No Solicitation.
(a) The Company agrees that, prior to the Effective Time, it shall not, and
shall not authorize or permit any of its subsidiaries or any of its or its
subsidiaries' directors, officers, employees, agents or representatives,
directly or indirectly, to solicit, initiate, knowingly encourage or actively
facilitate, or furnish or disclose non-public information in furtherance of, any
inquiries or the making of any proposal with respect to any merger,
consolidation or other business combination involving the Company or either of
Smith Meter Inc. or Crosby Valve & Gage Company (the "Principal Subsidiaries")
or acquisition of any capital stock or any material portion of the assets
(except for acquisition of assets in the ordinary course of business consistent
with past practice) of the Company or either of its Principal Subsidiaries, or
any combination of the foregoing (an "Acquisition Transaction"), or negotiate,
explore or otherwise engage in substantive discussions with any person (other
than Purchaser, Parent or their respective directors, officers, employees,
agents and representatives) with respect to any Acquisition Transaction or enter
into any agreement, arrangement or understanding requiring it to abandon,
terminate or fail to consummate the Merger or any other transactions
contemplated by this Agreement; provided that the Company may furnish
information to, and negotiate or otherwise engage in substantiative discussions
with, any party who delivers a written proposal for an Acquisition Transaction
if the Board or Directors of the Company determines in good faith by a majority
vote, based upon advice from its outside legal counsel, that failing to take
such action would constitute a breach of the fiduciary duties of the Board and
such a proposal is, in the written opinion of Salomon Brothers Inc, more
favorable to the Company's stockholders from a financial point of view than the
transactions contemplated by this Agreement.
(b) From and after the execution of this Agreement, the Company shall
immediately advise the Purchaser in writing of the receipt, directly or
indirectly, of any inquiries or proposals relating to an Acquisition Transaction
and furnish to the Purchaser either a copy of any such proposal or a written
summary of any such proposal.
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ARTICLE VII
CONDITIONS TO CONSUMMATION OF THE MERGER
SECTION 7.01 Conditions. The respective obligations of Parent, the
Purchaser and the Company to consummate the Merger are subject to the
satisfaction, at or before the Effective Time, of each of the following
conditions:
(a) Stockholder Approval. The stockholders of the Company shall have
duly approved the transactions contemplated by this Agreement, if required by
applicable law.
(b) Purchase of Common Shares. The Purchaser shall have accepted for
payment and paid for Common Shares pursuant to the Amended Offer in accordance
with the terms hereof; provided that this condition shall be deemed to have been
satisfied with respect to Parent and the Purchaser if the Purchaser fails to
accept for payment or pay for Common Shares pursuant to the Amended Offer in
violation of the terms of the Amended Offer.
(c) Injunctions; Illegality. The consummation of the Merger shall not
be restrained, enjoined or prohibited by any order, judgment, decree, injunction
or ruling of a court of competent jurisdiction or any Governmental Entity and
there shall not have been any statute, rule or regulation enacted, promulgated
or deemed applicable to the Merger by any Governmental Entity which prevents the
consummation of the Merger.
ARTICLE VIII
TERMINATION; AMENDMENTS; WAIVER
SECTION 8.01 Termination. This Agreement may be terminated and the
Merger contemplated hereby may be abandoned at any time prior to the Effective
Time, notwithstanding approval thereof by the stockholders of the Company (with
any termination by Parent also being an effective termination by the Purchaser):
(a) by the mutual written consent of Parent and the Company;
(b) by the Company if (i) the Purchaser fails to commence the Amended
Offer as provided in Section 1.01 hereof, (ii) the Purchaser shall not have
accepted for payment and paid for Common Shares pursuant to the Amended Offer
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in accordance with the terms thereof on or before September 15, 1995 or (iii)
the Purchaser fails to purchase validly tendered Common Shares in violation of
the terms of the Amended Offer or this Agreement;
(c) by Parent or the Company if the Amended Offer is terminated or
withdrawn pursuant to its terms without any Common Shares being purchased
thereunder; provided, however, that neither Parent nor the Company may terminate
this Agreement pursuant to this Section 8.01(c) if such party shall have
materially breached this Agreement or, in the case of Parent, if it or the
Purchaser is in material violation of the terms of the Amended Offer;
(d) by Parent or the Company if any court or other Governmental Entity
shall have issued, enacted, entered, promulgated or enforced any order,
judgment, decree, injunction, or ruling or taken any other action restraining,
enjoining or otherwise prohibiting the Merger and such order, judgment, decree,
injunction, ruling or other action shall have become final and nonappealable;
provided, however, that Parent may not terminate this Agreement pursuant to this
Section 8.01(d) if any such order, judgment, decree, injunction, ruling or other
action is the result of or in any way related to any Antitrust Laws; and
provided further that the party seeking to terminate the Agreement shall have
used its best efforts to remove or lift such order, decree or ruling;
(e) by the Company if, prior to the purchase of Common Shares pursuant
to the Amended Offer in accordance with the terms of this Agreement, the Board
approves an agreement to effect an Acquisition Transaction if the Board has
determined in good faith, upon advice from its outside counsel, that failure to
approve such agreement and terminate this Agreement would constitute a breach of
fiduciary duties of the Board; provided that the termination described in this
clause (e) shall not be effective unless and until the Company shall have paid
to Parent all of the fees and expenses described in Section 8.03(b);
(f) by Parent if the Board withdraws, modifies or changes its
recommendation or approval in respect of this Agreement or the Amended Offer,
except due to Parent or the Purchaser's material breach of this Agreement or
material violation of the terms of the Amended Offer, in a manner adverse to
Parent or the Purchaser or if the Board recommends or approves another
Acquisition Transaction or the Company enters into any agreement to effect an
Acquisition Transaction;
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(g) by Parent if it shall not have breached, in any material respect, any
of its obligations hereunder or under the Amended Offer and no Common Shares
shall have been purchased pursuant to the Amended Offer on or before September
15, 1995; provided, however, that Parent may not terminate this Agreement
pursuant to this Section 8.01(g) on or before March 31, 1996 if the conditions
to Parent's obligations to consummate the transactions contemplated hereunder
have not been satisfied on account of any impediment under any Antitrust Laws;
or
(h) by Parent or the Company if any of the conditions set forth in Annex
I attached hereto shall be impossible to satisfy by September 15, 1995 unless
such circumstance results from the failure of the terminating party to perform
in any material respect its obligations under this Agreement, provided, however,
that the Company may not terminate this Agreement pursuant to this Section
8.01(h) if Parent is willing to waive the relevant condition (other than the
Minimum Condition as defined in Annex I, which cannot be waived).
SECTION 8.02 Effect of Termination. In the event of the termination of
this Agreement pursuant to Section 8.01, this Agreement shall forthwith become
void and have no effect, without any liability on the part of any party or its
directors, officers or stockholders, other than the provisions of this Section
8.02, Section 8.03 and the last sentence of Section 6.02, which shall survive
any such termination. Nothing contained in this Section 8.02 shall relieve any
party from liability for any breach of this Agreement or the Confidentiality
Agreement.
SECTION 8.03 Fees and Expenses.
(a) Whether or not the Merger is consummated, all costs and expenses
incurred in connection with the Amended Offer, this Agreement and the
transactions contemplated by this Agreement shall be paid by the party incurring
such expenses.
(b) In the event that this Agreement is terminated pursuant to Section
8.01(e) or (f), then the Company shall promptly reimburse Parent for the
documented fees and expenses of Parent and the Purchaser related to this
Agreement, the transactions contemplated hereby and any related financing
(subject to a maximum of $2,400,000), and pay Parent a termination fee of
$8,000,000.
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(c) The prevailing party in any legal action undertaken to enforce this
Agreement or any provision hereof shall be entitled to recover from the other
party the costs and expenses (including attorneys' and expert witness fees)
incurred in connection with such action.
SECTION 8.04 Amendment. Subject to Section 1.03(c), this Agreement may
be amended by the Company, Parent and the Purchaser at any time before or after
any approval of this Agreement by the stockholders of the Company but, after any
such approval, no amendment shall be made which decreases the Merger Price or
which adversely affects the rights of the Company's stockholders hereunder
without the approval of such stockholders. This Agreement may not be amended
except by an instrument in writing signed on behalf of all the parties.
SECTION 8.05 Extension; Waiver. Subject to Section 1.03(c), at any time
prior to the Effective Time, the parties hereto may (i) extend the time for the
performance of any of the obligations or other acts of any other party hereto,
(ii) waive any inaccuracies in the representations and warranties contained
herein by any other party or in any document, certificate or writing delivered
pursuant hereto by any other party or (iii) waive compliance with any of the
agreements of any other party or with any conditions to its own obligations.
Any agreement on the part of any party to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Non-Survival of Representations and Warranties. The
representations and warranties made in this Agreement shall not survive beyond
the Effective Time. Notwithstanding the foregoing, the agreements set forth in
Section 3.02, the last sentence of Section 6.03, Section 6.06 and Section 6.07
shall survive the Effective Time indefinitely (except to the extent a shorter
period of time is explicitly specified therein).
SECTION 9.02 Entire Agreement; Assignment.
(a) This Agreement (including the documents and the instruments referred
to herein) and the letter agreement dated May 23, 1995 (the "Confidentiality
Agreement"), constitute the entire agreement and supersede all prior agreements
and understandings, both written and oral,
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among the parties with respect to the subject matter hereof and thereof.
(b) Neither this Agreement nor any of the rights, interests or
obligations hereunder will be assigned by any of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the other
party (except that Parent may assign its rights and Purchaser may assign its
rights, interest and obligations to any affiliate or direct or indirect
subsidiary of Parent without the consent of the Company). Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit of
and be enforceable by the parties and their respective successors and assigns.
SECTION 9.03 Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, each of which shall remain in full force
and effect.
SECTION 9.04 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person, by overnight courier or facsimile to the
respective parties as follows:
If to Parent or the Purchaser:
FMC Corporation
200 East Randolph Drive
Chicago, Illinois 60601
Attention: Randall S. Ellis
Robert L. Day, Esq.
with a copy to:
Kirkland & Ellis
Citicorp Center
153 East 53rd Street
New York, New York 10022-4675
Attention: Glen E. Hess, P.C.
If to the Company:
Moorco International Inc.
2800 Post Oak Boulevard
Suite 5701
Houston, Texas 77056-6111
Attention: Mr. Michael Tiner
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with a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Daniel A. Neff, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereof).
SECTION 9.05 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
SECTION 9.06 Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
SECTION 9.07 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
SECTION 9.08 Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and, except with respect
to Sections 1.03(c), 2.09, 6.06 and 6.07, nothing in this Agreement, express or
implied, is intended to confer upon any other person any rights or remedies of
any nature whatsoever under or by reason of this Agreement.
SECTION 9.09 Certain Definitions. As used in this Agreement:
(a) the term "affiliate", as applied to any person, shall mean any other
person directly or indirectly controlling, controlled by, or under common
control with, that person. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that person, whether through the
ownership of voting securities, by contract or otherwise;
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(b) the term "Person" or "person" shall include individuals,
corporations, partnerships, trusts, other entities and groups (which term shall
include a "group" as such term is defined in Section 13(d)(3) of the Exchange
Act); and
(c) the term "Subsidiary" or "subsidiaries" means, with respect to
Parent, the Company or any other person, any corporation, partnership, joint
venture or other legal entity of which Parent, the Company or such other person,
as the case may be (either alone or through or together with any other
subsidiary), owns, directly or indirectly, stock or other equity interests the
holders of which are generally entitled to more than 50% of the vote for the
election of the board of directors or other governing body of such corporation
or other legal entity.
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SECTION 9.10 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its respective officer thereunto duly authorized, all
as of the day and year first above written.
FMC CORPORATION
By: /s/ Robert N. Burt
--------------------------------
Name: Robert N. Burt
Title: Chairman and CEO
MII ACQUISITION CORP.
By: /s/ Charlotte Mitchell Smith
--------------------------------
Name: Charlotte Mitchell Smith
Title: Secretary
MOORCO INTERNATIONAL INC.
By: /s/ Michael L. Tiner
--------------------------------
Name: Michael L. Tiner
Title: President & CEO
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Annex I
Conditions to the Amended Offer. Notwithstanding any other provisions
of the Amended Offer, the Purchaser shall not be required to accept for payment
or pay for any tendered Common Shares, unless there are validly tendered and not
properly withdrawn prior to the expiration date for the Amended Offer (the
"Expiration Date") that number of Common Shares which, when aggregated with the
100 Common Shares currently owned by Parent, represent at least a majority of
the total number of outstanding Common Shares on a fully diluted basis on the
date of purchase (not taking into account the Rights) (the "Minimum Condition").
Furthermore, notwithstanding any other provisions of the Amended Offer, the
Purchaser may, subject to the terms of the Merger Agreement, amend the Amended
Offer or postpone the acceptance for payment of or payment for tendered Common
Shares if at any time on or after June 11, 1995 (unless otherwise indicated
below) and before the time of payment for any Common Shares, any of the
following events (each, an "Event") shall occur:
(a) any order or preliminary or permanent injunction shall be entered
in any action or proceeding before any court of competent jurisdiction or any
statute, rule, regulation, legislation, or order shall be enacted, entered,
enforced, promulgated, amended or issued by any United States legislative body,
court, government or governmental, administrative or regulatory authority or
agency (other than the waiting period provisions of the HSR Act) which shall
remain in effect and which shall have the effect of making illegal or
restraining or prohibiting the making of the Amended Offer, the acceptance for
payment of, or payment for, the Common Shares by Parent, the Purchaser or any
other affiliate of Parent, or the consummation of the Amended Offer or the
Merger provided, that Parent shall, if necessary to prevent the taking of such
action, or the enactment, enforcement, promulgation, amendment, issuance or
application of any statute, rule, regulation, legislation, judgment, order or
injunction, offer to accept an order to divest such of the Company's or Parent's
assets and businesses as may be necessary to forestall such injunction or order
and to hold separate such assets and business pending such divestiture; or
(b) the Board or any committee thereof shall have withdrawn, or shall
have modified or amended in a manner adverse to Parent or the Purchaser, the
approval or recommendation of the Amended Offer, the Merger or the Merger
Agreement, or approved or recommended any other acquisition of Common Shares
other than the Amended Offer and the Merger; or
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(c) the Company and the Purchaser and Parent shall have reached an
agreement that the Amended Offer or the Merger Agreement be terminated, or the
Merger Agreement shall have been terminated in accordance with its terms; or
(d) the Company shall have breached its representations and
warranties set forth in the Merger Agreement or failed to perform any of its
obligations, covenants or agreements under the Merger Agreement (other than any
breaches or failures to perform that, in the aggregate, do not have and are not
reasonably expected to have a material adverse effect on (i) the financial
condition, business, operations or long-term profitability of the Company and
its subsidiaries taken as a whole, (ii) the value reasonably attributable to the
Company by Parent or (iii) the ability of Parent to own or control the Company,
its equity securities and its assets); or
(e) Options issued and outstanding under the Company's 1990 Stock
Incentive Plan to purchase more than 25,000 Common Shares shall not have
consented to the changes described in Section 2.09 of the Merger Agreement; or
(f) there shall have occurred, and continued to exist, (i) any general
suspension of, or limitation on prices for, trading in securities on the New
York Stock Exchange, (ii) a declaration of a banking moratorium or any
suspension of payments in respect of banks in the United States, (iii) a
commencement of a war, armed hostilities or other national or international
crisis directly or indirectly involving the United States, (iv) any limitation
by any Governmental Entity on, or any other event which adversely affects, the
extension of credit by banks or other lending institutions in the United States
which has a material adverse effect on the ability of Parent to obtain financing
for the Amended Offer, or (v) in the case of any of the foregoing clauses (i)
through (iv) existing at the time of the commencement of the Amended Offer, a
material acceleration or worsening thereof.
The foregoing conditions are for the benefit of Parent and the
Purchaser and may be asserted by Parent or the Purchaser regardless of the
circumstances giving rise to any such conditions and may be waived by Parent or
the Purchaser in whole or in part at any time and from time to time in their
reasonable discretion, in each case, subject to the
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terms of the Merger Agreement. The failure by Parent or the Purchaser at any
time to exercise any of the foregoing rights shall not be deemed a waiver of any
such right and each such right shall be deemed an ongoing right which may be
asserted at any time and from time to time.
The Offer may be terminated by Purchaser if the Merger Agreement is
terminated pursuant to its terms.
The capitalized terms used in this Annex I shall have the meanings set
forth in the Agreement to which it is annexed, except that the term "Merger
Agreement" shall be deemed to refer to the Agreement to which this Annex I is
appended.
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