<PAGE>
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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
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MOORCO INTERNATIONAL INC.
(NAME OF SUBJECT COMPANY)
MII ACQUISITION CORP.
FMC CORPORATION
(BIDDER)
COMMON STOCK, PAR VALUE $.01 PER SHARE 61559L10
(Including the Associated Preferred (CUSIP Number of Class of Securities)
Stock Purchase Rights)
(Title of Class of Securities)
ROBERT L. DAY, ESQ.
FMC CORPORATION
200 EAST RANDOLPH DRIVE
CHICAGO, ILLINOIS 60601
TELEPHONE: (312) 861-6000
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON 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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CALCULATION OF FILING FEE
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<TABLE>
<CAPTION>
TRANSACTION AMOUNT OF
VALUATION* FILING FEE**
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<S> <C>
$228,868,460 $45,773.69
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</TABLE>
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*Based on the offer to purchase all of the outstanding shares of Common Stock,
par value $0.01 per share (the "Shares"), of the Subject Company and the
associated Preferred Stock Purchase Rights at $20.00 cash per share.
Outstanding Shares are assumed to equal the sum of the number of Shares
outstanding as reported as of March 31, 1995 in the Subject Company's
Quarterly Report on Form 10-Q for the quarter ended February 28, 1995 and the
number of options outstanding as of May 31, 1994 as reported in the Subject
Company's Annual Report to Stockholders for the year ended May 31, 1994, less
100 Shares beneficially owned by the Bidder.
**1/50 of 1% of Transaction Valuation.
[_] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form or
Schedule and the date of its filing.
Amount Previously Paid: ______________________________
Form or Registration No.: ____________________________
Filing Party: ________________________________________
Date Filed: __________________________________________
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CUSIP NO. 61559L10
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1. NAME OF REPORTING PERSON: S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
FMC CORPORATION
I.R.S. IDENTIFICATION NO. 94-0479804
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
(A) [_]
(B) [_]
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3. SEC USE ONLY
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4. SOURCES OF FUNDS (SEE INSTRUCTIONS)
BK, WC, OO
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(E) OR 2(F)
[_]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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7. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
100 SHARES
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8. CHECK IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES (SEE
INSTRUCTIONS)
[_]
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9. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
LESS THAN .1%
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10. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO
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2
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CUSIP NO. 61559L10
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1. NAME OF REPORTING PERSON:
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
MII ACQUISITION CORP.
I.R.S. IDENTIFICATION NO. APPLIED FOR
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
(A) [_]
(B) [_]
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3. SEC USE ONLY
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4. SOURCES OF FUNDS (SEE INSTRUCTIONS)
BK, AF
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(E) OR 2(F)
[_]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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7. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
NONE
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8. CHECK IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES (SEE
INSTRUCTIONS)
[_]
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9. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
0
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10. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO
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3
<PAGE>
This Tender Offer Statement on Schedule 14D-1 relates 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 (unless and until the Purchaser declares that the Rights
Condition as defined in the Offer to Purchase referred to below is satisfied)
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 $20.00 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,
together with the Offer to Purchase and supplements thereto, collectively
constitute the "Offer"), copies of which are attached hereto as Exhibits (a)(1)
and (a)(2), respectively.
ITEM 1. SECURITY AND SUBJECT COMPANY
(a) The name of the subject company is Moorco International Inc. which has
its principal executive offices at 2800 Post Oak Boulevard, Suite 5701,
Houston, Texas 77056.
(b) The exact title of the class of equity securities being sought in the
Offer is Common Stock, $.01 par value per share, including the associated
Preferred Stock Purchase Rights, of the Company. Information regarding the
number of Shares outstanding, the amount of Shares being sought and the
consideration being offered therefor is set forth in the Introduction (the
"Introduction") of the Offer to Purchase and is incorporated herein by
reference.
(c) Information concerning the principal market in which the Shares are
traded and the high and low sales prices of the Shares for each quarterly
period during the past two years is set forth in Section 6 ("Price Range of the
Shares and Rights; Dividends") of the Offer to Purchase and is incorporated
herein by reference.
ITEM 2. IDENTITY AND BACKGROUND
(a)-(d) and (g) This Statement is filed by the Purchaser and FMC. The
information concerning the name, the state of its organization, its principal
business and address of the principal office of each of the Purchaser and FMC,
and the information regarding the name, business address, present principal
occupation or employment and the name, principal business and address of any
corporation or other organization in which such employment or occupation is
conducted, material occupations, positions, officers or employments during the
last five years and the citizenship of each of the executive officers and
directors of the Purchaser and FMC is set forth in Section 9 ("Certain
Information Concerning FMC and the Purchaser") of the Offer to Purchase and in
Schedule I thereto and is incorporated herein by reference.
(e) and (f) During the last five years, neither the Purchaser nor FMC nor, to
the best knowledge of the Purchaser or FMC, any of the persons listed in
Schedule I to the Offer to Purchase (i) has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (ii) was a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
activities subject to, federal or state securities laws or finding any
violation of such laws.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY
(a) The information set forth in Section 9 ("Certain Information Concerning
the Purchaser and FMC") of the Offer to Purchase is incorporated herein by
reference. Except as set forth in Section 9 of the Offer to Purchase, since
June 1, 1991, there have been no transactions which would be required to be
disclosed under this Item 3(a) between either the Purchaser or FMC or, to the
best knowledge of the Purchaser and FMC, any of the persons listed in Schedule
I to the Offer to Purchase and the Company or any of its executive officers,
directors or affiliates.
4
<PAGE>
(b) The information set forth in Section 9 ("Certain Information Concerning
the Purchaser and FMC") and Section 10 ("Background of the Offer; Contacts with
the Company") of the Offer to Purchase is incorporated herein by reference.
Except as set forth in Section 9 and Section 10 of the Offer to Purchase, since
June 1, 1991, there have been no contacts, negotiations or transactions which
would be required to be disclosed under Item 3(b) between either the Purchaser
or FMC or any of their respective subsidiaries or, to the best knowledge of the
Purchaser and FMC any of those persons listed in Schedule I to the Offer to
Purchase and the Company or its affiliates concerning a merger, consolidation
or acquisition, a tender offer or other acquisition of securities, an election
of directors or a sale or other transfer of a material amount of assets.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
(a)-(c) The information set forth in Section 12 ("Source and Amount of
Funds") of the Offer to Purchase is incorporated herein by reference.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER
(a)-(g) The information set forth in the Introduction, Section 10
("Background of the Offer; Contacts with the Company"), Section 11 ("Purpose of
the Offer; Plans for the Company"), Section 13 ("Dividends and Distributions")
and Section 7 ("Possible Effects of the Offer on the Market for the Shares and
Rights; Stock Exchange Listing, Exchange Act Registration; Margin Regulations")
of the Offer to Purchase is incorporated herein by reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY
(a) The information set forth in the Introduction and Section 9 ("Certain
Information Concerning FMC and the Purchaser") of, and Schedule I to, the Offer
to Purchase is incorporated herein by reference.
(b) The information set forth in the Introduction, Section 9 ("Certain
Information Concerning FMC and the Purchaser") and Section 10 ("Background of
the Offer; Contacts with the Company") of, and Schedule I to, the Offer to
Purchase is incorporated herein by reference.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SUBJECT COMPANY'S SECURITIES
The information set forth in the Introduction, Section 9 ("Certain
Information Concerning FMC and the Purchaser"), Section 10 ("Background of the
Offer; Contacts with the Company"), Section 11 ("Purpose of the Offer; Plans
for the Company"), Section 12 ("Source and Amount of Funds") and Section 16
("Certain Fees and Expenses") of the Offer to Purchase is incorporated herein
by reference. Except as set forth in the Introduction and Sections 9, 10, 11,
12 and 16 of the Offer to Purchase, neither the Purchaser nor FMC, nor, to the
best knowledge of the Purchaser or FMC, any of the persons listed in Schedule I
to the Offer to Purchase, has any contract, arrangement, understanding or
relationship with any other person with respect to any securities of the
Subject Company (including, but not limited to, any contract, arrangement,
understanding or relationship concerning the transfer or the voting of any such
securities, joint ventures, loans or option arrangements, puts or calls,
guarantees of loans, guarantee agreements or any giving or withholding of
proxies).
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED
The information set forth in the Introduction and Section 16 ("Certain Fees
and Expenses") of the Offer to Purchase is incorporated herein by reference.
5
<PAGE>
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS
The information set forth in Section 9 ("Certain Information Concerning FMC
and the Purchaser") of the Offer to Purchase is incorporated herein by
reference.
ITEM 10. ADDITIONAL INFORMATION
(a) None.
(b) and (c) The information set forth in the Introduction, Section 11
("Purpose of the Offer; Plans for the Company") and Section 15 ("Certain Legal
Matters; Required Regulatory Approvals") of the Offer to Purchase is
incorporated herein by reference.
(d) The information set forth in Section 12 ("Source and Amount of Funds")
and Section 15 ("Certain Legal Matters; Required Regulatory Approvals") of the
Offer to Purchase is incorporated herein by reference.
(e) The information set forth in Section 10 ("Background of the Offer;
Contacts with the Company") and Section 15 ("Certain Legal Matters; Required
Regulatory Approvals") of the Offer to Purchase is incorporated herein by
reference.
(f) The information set forth in the Offer to Purchase and the Letter of
Transmittal is incorporated herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS
<TABLE>
<C> <C> <S>
(a) (1) Offer to Purchase dated May 5, 1995.
(a) (2) Letter of Transmittal.
(a) (3) Notice of Guaranteed Delivery.
(a) (4) Letter from the Dealer Manager to Brokers, Dealers, Commercial Banks,
Trust Companies and Nominees.
(a) (5) Letter to clients for use by Brokers, Dealers, Commercial Banks, Trust
Companies and Nominees.
(a) (6) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
(a) (7) Summary Advertisement as published on May 5, 1995.
(a) (8) Press Release issued by FMC on May 5, 1995.
(b) (1) Credit Agreements
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
(f) Not applicable.
(g) (1) Complaint seeking Declaratory and Injunctive Relief filed in the Court
of Chancery in the State of Delaware on May 5, 1995.*
</TABLE>
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*To be filed as Amendment No. 1 to this Schedule 14D-1.
6
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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
By: _________________________________
Name: Robert L. Day, Esq.
Title: Secretary
MII Acquisition Corp.
/s/ Charlotte Mitchell Smith
By: _________________________________
Name: Charlotte Mitchell Smith,
Esq.
Title: Secretary
Date: May 5, 1995
7
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NO. DESCRIPTION NO.
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<C> <S> <C>
11(a)(1) Offer to Purchase dated May 5, 1995............................
11(a)(2) Letter of Transmittal..........................................
11(a)(3) Notice of Guaranteed Delivery..................................
11(a)(4) Letter from the Dealer Manager to Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees............................
11(a)(5) Letter to clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees............................
11(a)(6) Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9.........................................
11(a)(7) Summary Advertisement as published on May 5, 1995..............
11(a)(8) Press Release issued by FMC on May 5, 1995.....................
11(b)(1) Credit Agreements..............................................
11(g)(1) Complaint seeking Declaratory and Injunctive Relief filed in
the Court of Chancery in the State of Delaware on May 5, 1995.. *
</TABLE>
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*To be filed as Amendment No. 1 to this Schedule 14D-1.
<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
MOORCO INTERNATIONAL INC.
AT
$20 NET PER SHARE
BY
MII ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
FMC CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, JUNE 2, 1995, UNLESS THE OFFER IS EXTENDED
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE BEING VALIDLY
TENDERED AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER THAT
NUMBER OF SHARES WHICH, WHEN AGGREGATED WITH THE SHARES CURRENTLY OWNED BY FMC
CORPORATION ("FMC"), REPRESENT AT LEAST A MAJORITY OF THE TOTAL NUMBER OF
OUTSTANDING SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE (THE "SHARES"),
OF MOORCO INTERNATIONAL INC. (THE "COMPANY") ON A FULLY DILUTED BASIS ON THE
DATE OF PURCHASE (THE "MINIMUM CONDITION"), (2) THE COMPANY'S PREFERRED STOCK
PURCHASE RIGHTS (THE "RIGHTS") HAVING BEEN REDEEMED BY THE COMPANY'S BOARD OF
DIRECTORS OR MII ACQUISITION CORP. (THE "PURCHASER") BEING SATISFIED, IN ITS
SOLE DISCRETION, THAT THE RIGHTS HAVE BEEN INVALIDATED OR OTHERWISE ARE
INAPPLICABLE TO THE OFFER AND THE PROPOSED MERGER (AS DEFINED IN THE
INTRODUCTION) (THE "RIGHTS CONDITION") AND (3) THE PURCHASER BEING SATISFIED,
IN ITS SOLE DISCRETION, THAT AFTER CONSUMMATION OF THE OFFER, THE RESTRICTIONS
ON BUSINESS COMBINATIONS AS DEFINED AND CONTAINED IN SECTION 203 OF THE
DELAWARE GENERAL CORPORATION LAW (THE "DELAWARE LAW") WILL NOT APPLY TO THE
PROPOSED MERGER (THE "BUSINESS COMBINATION CONDITION"). THE OFFER IS ALSO
SUBJECT TO OTHER TERMS AND CONDITIONS CONTAINED IN THIS OFFER TO PURCHASE. SEE
"INTRODUCTION" AND SECTIONS 1, 14 AND 15.
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IMPORTANT
Any stockholder desiring to tender all or any portion of his or her Shares,
and the associated Rights, should either (i) complete and sign the Letter of
Transmittal (or a facsimile thereof) in accordance with the instructions in
the Letter of Transmittal and mail or deliver it together with the
certificate(s) representing tendered Shares and, if separate, the
certificate(s) representing the associated Rights ("Rights Certificates"), and
any other required documents, to the Depositary (as defined herein) or tender
such Shares (and associated Rights, if applicable) pursuant to the procedures
for book-entry transfer set forth in Section 3 or (ii) request his or her
broker, dealer, commercial bank, trust company or other nominee to effect the
transaction for the stockholder. A stockholder whose Shares and, if
applicable, associated Rights are registered in the name of a broker, dealer,
commercial bank, trust company or other nominee must contact such broker,
dealer, commercial bank, trust company or other nominee if the stockholder
desires to tender such Shares and, if applicable, the associated Rights.
Unless and until the Purchaser declares that the Rights Condition is
satisfied, stockholders will be required to tender one associated Right for
each Share tendered in order to effect a valid tender of such Share. Until the
Distribution Date (as defined in Section 11) occurs, the Rights will be
represented by and transferred with the Shares. Accordingly, if the
Distribution Date does not occur prior to the Expiration Date (as defined in
Section 1), a tender of Shares will constitute a tender of the associated
Rights. If the Distribution Date occurs prior to the Expiration Date, the
procedures set forth in Section 3 with respect to separate delivery of Rights
Certificates must be followed.
A stockholder who desires to tender his or her Shares and associated Rights,
and whose certificates representing such Shares (and, if applicable,
associated Rights) are not immediately available or who cannot comply with the
procedures for book-entry transfer on a timely basis, may tender such Shares
(and, if applicable, associated Rights) by following the procedures for
guaranteed delivery set forth in Section 3.
Questions and requests for assistance may be directed to D.F. King & Co.,
Inc. (the "Information Agent") or Merrill Lynch, Pierce, Fenner & Smith
Incorporated (the "Dealer Manager") at their respective addresses and
telephone numbers set forth on the back cover of this Offer to Purchase.
Additional copies of this Offer to Purchase, the Letter of Transmittal, the
Notice of Guaranteed Delivery and other related materials may be obtained from
the Information Agent or from brokers, dealers, commercial banks and trust
companies.
The Dealer Manager for the Offer is:
MERRILL LYNCH & CO.
May 5, 1995
<PAGE>
TABLE OF CONTENTS
<TABLE>
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PAGE
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<C> <S> <C>
INTRODUCTION............................................................. 1
THE TENDER OFFER......................................................... 5
1. Terms of the Offer............................................... 5
2. Acceptance for Payment and Payment for Shares.................... 6
Procedures for Accepting the Offer and Tendering Shares and
3. Rights........................................................... 8
4. Withdrawal Rights................................................ 11
5. Certain Tax Consequences......................................... 12
6. Price Range of the Shares and Rights; Dividends.................. 14
7. Possible Effects of the Offer on the Market for the Shares and
Rights; Stock Exchange Listing, Exchange Act Registration; Margin
Regulations...................................................... 14
8. Certain Information Concerning the Company....................... 16
9. Certain Information Concerning the Purchaser and FMC............. 18
10. Background of the Offer; Contacts with the Company............... 21
11. Purpose of the Offer; Plans for the Company...................... 25
12. Source and Amount of Funds....................................... 32
13. Dividends and Distributions...................................... 33
14. Certain Conditions of the Offer.................................. 34
15. Certain Legal Matters; Required Regulatory Approvals............. 38
16. Certain Fees and Expenses........................................ 41
17. Miscellaneous.................................................... 42
SCHEDULE I............................................................... S-1
</TABLE>
<PAGE>
To: All Holders of Shares of Common Stock of
MOORCO INTERNATIONAL INC.
INTRODUCTION
MII Acquisition Corp. (the "Purchaser"), a Delaware corporation and a wholly
owned subsidiary of FMC Corporation, a Delaware corporation ("FMC"), hereby
offers to purchase all outstanding shares of common stock, par value $.01 per
share (the "Shares"), of Moorco International Inc., a Delaware corporation (the
"Company"), and (unless and until the Purchaser declares that the Rights
Condition (as defined herein) has been satisfied) 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 (as the same may be amended, 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 this Offer to Purchase and in the
related Letter of Transmittal (which together constitute the "Offer"). Unless
the context otherwise requires, all references to Shares shall include the
associated Rights and all references to the Rights shall include all benefits
that may inure to the stockholders of the Company or to holders of the Rights
pursuant to the Rights Agreement.
Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the purchase of Shares pursuant to the
Offer. However, any tendering stockholder or other payee who fails to complete
and sign the Substitute Form W-9 that is included in the Letter of Transmittal
may be subject to a required backup federal income tax withholding of 31% of
the gross proceeds payable to such stockholder or other payee pursuant to the
Offer. See Section 3. The Purchaser will pay all charges and expenses of
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), as Dealer
Manager (in such capacity, the "Dealer Manager"), The Chase Manhattan Bank,
N.A., as Depositary (the "Depositary"), and D.F. King & Co., Inc. as
Information Agent (the "Information Agent"), incurred in connection with the
Offer. See Section 16.
The purpose of the Offer is to acquire control of, and the entire equity
interest in, the Company. The Purchaser currently intends, as soon as
practicable following completion of the Offer, to propose and seek to have the
Company consummate a merger or similar business combination with the Purchaser
(the "Proposed Merger") pursuant to which each then outstanding Share (other
than Shares owned by FMC or any of its wholly owned subsidiaries, Shares held
in the treasury of the Company and Shares held by stockholders who perfect
appraisal rights under the Delaware General Corporation Law (the "Delaware
Law")) would be converted into the right to receive cash in the same amount as
received per Share in the Offer, and the Company would become a wholly owned
subsidiary of FMC.
Although the Purchaser will seek to have the Company consummate the Proposed
Merger as soon as practicable after consummation of the Offer, if the Board of
Directors of the Company opposes the Offer and the Proposed Merger, certain
terms of the Rights and the Delaware Law, the Company's Certificate of
Incorporation, as amended (the "Company's Certificate"), and the Company's
Bylaws, as amended November 8, 1994 (the "Company's Bylaws"), may affect the
ability of the Purchaser to consummate the Offer, to obtain control of the
Company and to effect the Proposed Merger. Accordingly, the timing of
consummation of the Offer and the Proposed Merger will depend on a variety of
factors and legal requirements, the actions of the Board of Directors of the
Company, the number of Shares (if any) acquired by the Purchaser pursuant to
the Offer, and whether the Minimum Condition, the Rights Condition and the
Business Combination Condition (as such terms are defined herein) are satisfied
or waived.
THIS OFFER TO PURCHASE DOES NOT CONSTITUTE A SOLICITATION OF A PROXY, CONSENT
OR AUTHORIZATION FOR OR WITH RESPECT TO THE ANNUAL MEETING OR ANY SPECIAL
MEETING OF THE COMPANY'S STOCKHOLDERS OR ANY ACTION IN LIEU THEREOF. ANY SUCH
SOLICITATION WHICH FMC OR THE PURCHASER MAY MAKE WILL BE MADE ONLY PURSUANT TO
SEPARATE PROXY SOLICITATION MATERIALS COMPLYING WITH ALL APPLICABLE
REQUIREMENTS OF SECTION 14(A) OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED (THE "EXCHANGE ACT"), AND THE RULES AND REGULATIONS PROMULGATED
THEREUNDER.
<PAGE>
The Offer is conditioned upon the fulfillment of certain conditions described
herein. The Offer will expire at 12:00 midnight, New York City time, on Friday,
June 2, 1995, unless extended.
Certain Conditions to the Offer
The Offer is subject to the fulfillment of certain conditions, including,
without limitation, the following:
MINIMUM CONDITION. CONSUMMATION OF THE OFFER IS CONDITIONED (THE "MINIMUM
CONDITION") UPON THERE BEING VALIDLY TENDERED AND NOT PROPERLY WITHDRAWN PRIOR
TO THE EXPIRATION DATE (AS DEFINED IN SECTION 1) THAT NUMBER OF SHARES WHICH,
WHEN AGGREGATED WITH THE SHARES CURRENTLY OWNED BY FMC, REPRESENT AT LEAST A
MAJORITY OF THE TOTAL NUMBER OF OUTSTANDING SHARES ON A FULLY DILUTED BASIS ON
THE DATE OF PURCHASE. FOR PURPOSES OF THIS OFFER "ON A FULLY DILUTED BASIS"
MEANS, AS OF ANY DATE, THE NUMBER OF SHARES OUTSTANDING, TOGETHER WITH SHARES
THAT THE COMPANY IS OR MAY BECOME REQUIRED TO ISSUE PURSUANT TO OBLIGATIONS
OUTSTANDING AT THAT DATE UNDER CONVERTIBLE SECURITIES, EMPLOYEE STOCK OPTIONS,
OR OTHERWISE.
According to the Company's Quarterly Report on Form 10-Q for the quarter
ended February 28, 1995 (the "Company's Third Quarter 10-Q") filed with the
Securities Exchange Commission (the "Commission") pursuant to the Exchange Act,
as of March 31, 1995, there were 11,127,309 Shares outstanding. According to
the Company's Annual Report on Form 10-K for the fiscal year ended May 31, 1994
(the "Company's 1994 10-K"), filed with the Commission pursuant to the Exchange
Act, there were options to purchase 316,214 Shares outstanding at May 31, 1994
and 786,636 Shares remaining available for grant under the Company's 1990 Long-
Term Incentive Plan (the "Company's 1990 Stock Plan") and the Company's 1987
Qualified Stock Option and Restricted Stock Award Plan (the "Company's 1987
Stock Plan"). Accordingly, based on this information, there are 11,443,523
Shares outstanding on a fully diluted basis (of which FMC owns 100 Shares),
assuming (1) that no Shares were issued or acquired by the Company after March
31, 1995, (2) no exercise of the options outstanding as of May 31, 1994 prior
to March 31, 1995, and (3) that as of the Expiration Date there are no other
obligations to issue Shares. Based on the foregoing, the Minimum Condition
would be satisfied if at least 5,721,662 Shares are validly tendered pursuant
to the Offer and not properly withdrawn.
RIGHTS CONDITION. CONSUMMATION OF THE OFFER IS CONDITIONED UPON THE RIGHTS
HAVING BEEN REDEEMED BY THE COMPANY'S BOARD OF DIRECTORS OR THE PURCHASER BEING
SATISFIED, IN ITS SOLE DISCRETION, THAT THE RIGHTS HAVE BEEN INVALIDATED OR
OTHERWISE ARE INAPPLICABLE TO THE OFFER AND THE PROPOSED MERGER (THE "RIGHTS
CONDITION"). THE RIGHTS ARE DESCRIBED IN THE COMPANY'S REPORT ON FORM 8-K,
DATED NOVEMBER 8, 1994 (THE "COMPANY'S 8-K"), AND SUCH DESCRIPTION IS
SUMMARIZED HEREIN AND IN SECTION 11.
According to the Company's 8-K, a person who beneficially owns 15% or more of
the outstanding Shares is deemed to be an "Acquiring Person" for purposes of
the Rights Agreement, provided that such term excludes any person who becomes a
beneficial owner of 15% or more of the Shares solely as a result of a reduction
in the outstanding Shares due to the repurchase of Shares by the Company after
the date of the Rights Agreement, unless and until such person acquires
additional Shares constituting 1% or more of the then outstanding Shares. As of
the date hereof, FMC owned an aggregate of 100 Shares. If FMC or the Purchaser
acquires any additional Shares, which together with the 100 Shares already
owned by FMC represent 15% or more of the outstanding Shares, unless prior to
such time the Rights are redeemed or invalidated or otherwise inapplicable to
the Offer, each holder of record of a Right (other than FMC and the Purchaser,
according to the terms of the Rights Agreement) will have the right to receive,
upon exercise of the Right, Shares having a fair market value at the time of
the transaction equal to twice the $65.00 exercise price for the Right. As a
result, the Rights could make FMC's acquisition of the Company prohibitively
expensive by severely diluting FMC's equity interest and voting power.
According to the Company's 8-K, at any time until the earlier of (i) the
close of business on the tenth day after the date of public announcement that a
person has become an Acquiring Person or (ii) the date of expiration of the
Rights pursuant to the Rights Agreement, the Board of Directors of the Company
may
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redeem the Rights in whole, but not in part, at a price of $0.01 per Right.
Immediately upon the action of the Board of Directors of the Company
authorizing redemption of the Rights, the right to exercise the Rights will
terminate and the only right of the holders of Rights will be to receive $0.01
per Right.
According to the Company's 8-K, until the Distribution Date (as defined in
Section 11), the Rights will not be exercisable and will be represented by and
transferred with, and only with, the associated Shares and the surrender for
transfer of any of the certificates representing Shares (the "Share
Certificates") will also constitute the transfer of the Rights associated with
the Shares represented by such Share Certificates. According to the Company's
8-K, the Rights Agreement provides that, the Rights will become exercisable
after the Distribution Date and, as soon as practicable following the
Distribution Date, separate certificates representing the Rights ("Rights
Certificates") will be mailed to holders of record of Shares as of the
Distribution Date, and thereafter the Rights Certificates alone will evidence
the Rights. Based on publicly available information, the Purchaser believes
that currently the Rights are not exercisable, Rights Certificates have not
been issued and the Rights are evidenced by the Share Certificates. Under the
Rights Agreement, as a result of the announcement of the Offer, the Purchaser
believes that the Distribution Date will be as early as May 19, 1995, unless
prior to such date the Company's Board of Directors redeems or otherwise makes
inapplicable to the Offer the Rights or takes action to delay the Distribution
Date. See Section 10 regarding certain litigation filed by FMC on May 5, 1995
with respect to the Rights Agreement.
The Purchaser is hereby requesting that the Company's Board of Directors
redeem the Rights or take such other action as necessary to make the Rights
inapplicable to the Offer.
BUSINESS COMBINATION CONDITION. CONSUMMATION OF THE OFFER IS CONDITIONED UPON
THE PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT AFTER CONSUMMATION
OF THE OFFER, THE RESTRICTIONS CONTAINED IN SECTION 203 OF THE DELAWARE LAW
(THE "BUSINESS COMBINATION LAW") WILL NOT APPLY TO THE PROPOSED MERGER OR OTHER
BUSINESS COMBINATION (AS DEFINED THEREIN) TO WHICH PURCHASER IS DIRECTLY OR
INDIRECTLY A PARTY (THE "BUSINESS COMBINATION CONDITION").
The Proposed Merger, including, without limitation, the timing and details
thereof, is subject to, among other things, the provisions of the Delaware Law,
including, without limitation, the Business Combination Law. In general, the
Business Combination Law provides that a Delaware corporation, such as the
Company, may not engage in any "Business Combination" (defined to include a
variety of transactions, including, without limitation, a merger) with any
"Interested Stockholder" (defined generally as a person that directly or
indirectly beneficially owns 15% or more of the corporation's outstanding
voting stock), or any affiliate of an Interested Stockholder, for three years
after the date on which the Interested Stockholder becomes an Interested
Stockholder, unless (i) prior to the date such Interested Stockholder became an
Interested Stockholder, the board of directors of such corporation approved
either the Business Combination or the transaction which resulted in the
stockholder becoming an Interested Stockholder, (ii) upon consummation of the
transaction which resulted in the stockholder becoming an Interested
Stockholder, the Interested Stockholder owned at least 85% of the voting stock
of the corporation outstanding at the time the transaction commenced
(excluding, for purposes of determining the number of shares outstanding, those
shares held by persons who are directors and also officers of the corporation
and employee stock plans in which employee participants do not have the right
to determine confidentially whether shares held subject to the plan will be
tendered in a tender or exchange offer) or (iii) on or subsequent to the date
the stockholder becomes an Interested Stockholder, the Business Combination is
(a) approved by the board of directors of the corporation and (b) authorized at
an annual or special meeting of stockholders by the affirmative vote of the
holders of at least 66 2/3% of the outstanding voting stock of the corporation
which is not owned by the Interested Stockholder.
The Business Combination Condition would be satisfied if the Board of
Directors of the Company approved the Offer and the Proposed Merger prior to
consummation of the Offer, or if, upon consummation of the Offer, the Purchaser
owned at least 85% of the total voting stock of the Company outstanding at the
time the transaction commenced, or if the Purchaser, in its sole discretion,
were satisfied that the Business Combination Law was invalid or its
restrictions were otherwise inapplicable to the Purchaser in connection
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with the Proposed Merger for any reason, including, without limitation, those
specified in the Business Combination Law.
The Purchaser is hereby requesting that the Board of Directors approve the
Offer and Proposed Merger for purposes of the Business Combination Law. If the
Board does not so approve the Offer and Proposed Merger but upon consummation
of the Offer the Purchaser and FMC together own at least 85% of the Shares of
the Company, then the restrictions on business combinations contained in the
Business Combination Law would not be applicable.
Certain other conditions to the consummation of the Offer are described in
Section 14. The Purchaser expressly reserves the right to waive any one or more
of the conditions to the Offer. See Sections 14 and 15.
THIS OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION WHICH SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH
RESPECT TO THE OFFER.
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THE TENDER OFFER
1. TERMS OF THE OFFER
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), the Purchaser will accept for payment and thereby purchase all
Shares validly tendered and not properly withdrawn in accordance with the
procedures set forth in Section 4 on or prior to the Expiration Date (as
defined herein). The term "Expiration Date" means 12:00 midnight, New York City
time, on Friday, June 2, 1995, unless and until the Purchaser, in its sole
discretion, shall have extended the period of time for which the Offer is open,
in which event the term "Expiration Date" shall mean the time and date at which
the Offer, as so extended by the Purchaser, shall expire.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, SATISFACTION OF EACH OF
THE CONDITIONS SET FORTH ABOVE IN THE INTRODUCTION AND IN SECTION 14. THE
PURCHASER RESERVES THE RIGHT (BUT SHALL NOT BE OBLIGATED) TO WAIVE ANY OR ALL
OF SUCH CONDITIONS.
If by the Expiration Date, any or all of such conditions have not been
satisfied or waived, the Purchaser expressly reserves the right (but shall not
be obligated) (i) to decline to purchase any of the Shares tendered and
terminate the Offer, (ii) to waive all of the unsatisfied conditions and,
subject to complying with applicable rules and regulations of the Commission,
to purchase all Shares validly tendered or (iii) to extend the Offer and,
subject to the right of stockholders to withdraw Shares until the Expiration
Date, retain the Shares which have been tendered during the period or periods
for which the Offer is extended. In the event that the Purchaser waives any of
the conditions set forth in Section 14, the Commission may, if the waiver is
deemed to constitute a material change to the information previously provided
to the stockholders, require that the Offer remain open for an additional
period of time and/or that the Purchaser disseminate information concerning
such waiver.
The Purchaser expressly reserves the right (but shall not be obligated) to
waive or reduce the Minimum Condition and to accept for payment pursuant to the
Offer less than a majority of the total number of outstanding Shares on a fully
diluted basis on the date of purchase.
The Purchaser expressly reserves the right, in its sole discretion, at any
time and from time to time, to extend the period during which the Offer is open
for any reason, including, without limitation, the occurrence of any of the
events or non-satisfaction of any of the conditions specified in the
Introduction or in Section 14, by giving oral or written notice of such
extension to the Depositary. During any such extension, all Shares previously
tendered and not properly withdrawn will remain subject to the Offer, subject
to the right of a tendering stockholder to withdraw such stockholder's Shares.
See Section 4.
Subject to the applicable regulations of the Commission, the Purchaser also
expressly reserves the right, in its sole discretion, at any time or from time
to time, to (i) delay acceptance for payment of or, regardless of whether such
Shares were theretofore accepted for payment, payment for any Shares pending
receipt of any required regulatory or governmental approvals, (ii) terminate
the Offer (whether or not any Shares have theretofore been accepted for
payment) if any condition referred to in the Introduction or in Section 14 has
not been satisfied or upon the occurrence of any event specified in the
conditions set forth in the Introduction or in Section 14 and (iii) waive any
condition or otherwise amend the Offer in any respect, in each case, by giving
oral or written notice of such delay, termination, waiver or amendment to the
Depositary and, other than in the case of any such waiver, by making a public
announcement thereof. The Purchaser acknowledges (a) that Rule 14e-l(c) under
the Exchange Act requires the Purchaser to pay the consideration offered or
return the Shares tendered promptly after the termination or withdrawal of the
Offer and (b) that the Purchaser may not delay acceptance for payment of, or
payment for (except as provided in clause (i) of the preceding sentence), any
Shares upon the occurrence of any event specified in the conditions set forth
in the Introduction or in Section 14 without extending the period of time
during which the Offer is open.
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The rights reserved by the Purchaser in the preceding paragraph are in
addition to the Purchaser's rights pursuant to Section 14. Any such extension,
delay, termination or amendment will be followed as promptly as practicable by
public announcement thereof, and such announcement in the case of an extension
will be made no later than 9:00 a.m., New York City time, on the next business
day after the previously scheduled Expiration Date. Without limiting the manner
in which the Purchaser may choose to make any public announcement, subject to
applicable law (including, without limitation, Rules 14d-4(c) and 14d-6(d)
under the Exchange Act, which require that material changes be promptly
disseminated to holders of Shares), the Purchaser shall have no obligation to
publish, advertise or otherwise communicate any such public announcement other
than by issuing a release to the Dow Jones News Service.
If the Purchaser makes a material change in the terms of the Offer, or if it
waives a material condition to the Offer, the Purchaser will extend the Offer
and disseminate additional tender offer materials to the extent required by
Rules 14d-4(c) and 14d-6(d) under the Exchange Act. The minimum period during
which an offer must remain open following material changes in the terms of the
offer, other than a change in price or a change in percentage of securities
sought, will depend upon the facts and circumstances, including, without
limitation, the materiality of the changes. With respect to a change in price
or, subject to certain limitations, a change in the percentage of securities
sought, a minimum ten business day period from the date of such change is
generally required to allow for adequate dissemination to stockholders.
Accordingly, if prior to the Expiration Date, the Purchaser decreases the
number of Shares being sought, or increases or decreases the consideration
offered pursuant to the Offer, and if the Offer is scheduled to expire at any
time earlier than the period ending on the tenth business day from the date
that notice of such increase or decrease is first published, sent or given to
holders of Shares, the Offer will be extended at least until the expiration of
such ten business day period. For purposes of the Offer, a "business day" means
any day other than a Saturday, Sunday or a federal holiday and consists of the
time period from 12:01 a.m. through 12:00 midnight, New York City time.
A demand is being made to the Company pursuant to both Delaware Law and Rule
14d-5 under the Exchange Act for the use of the Company's stockholder list and
security position listings for the purpose of disseminating the Offer to
holders of Shares. Upon compliance by the Company with such request, this Offer
to Purchase and the related Letter of Transmittal and, if required, other
relevant materials will be mailed to record holders of Shares and will be
furnished to brokers, dealers, commercial banks, trust companies and similar
persons whose names, or the names of whose nominees, appear on the list of
holders of Shares, and the list of holders of Rights, if applicable, or who are
listed as participants in a clearing agency's security position listing for
subsequent transmittal to beneficial owners of Shares and Rights.
2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of the Offer as so
extended or amended), the Purchaser will purchase, by accepting for payment,
and will pay for, all Shares validly tendered and not properly withdrawn (as
permitted by Section 4) on or prior to the Expiration Date as soon as
practicable after the later to occur of (i) the Expiration Date or (ii) the
satisfaction or waiver of the conditions to the Offer set forth in the
Introduction and in Section 14. In addition, subject to applicable rules of the
Commission, the Purchaser expressly reserves the right to delay acceptance for
payment of, or payment for, Shares pending receipt of any required regulatory
or governmental approvals.
In all cases, payment for Shares tendered and accepted for payment pursuant
to the Offer will be made only after timely receipt by the Depositary of (i)
Share Certificates for such Shares and, if applicable, Rights Certificates for
the associated Rights, or timely confirmation (a "Book-Entry Confirmation") of
the book-entry transfer of such Shares and, if applicable, Rights into the
Depositary's account at The Depository Trust Company, Midwest Securities Trust
Company or Philadelphia Depository Trust Company (collectively, the "Book-Entry
Transfer Facilities") pursuant to the procedures set forth in Section 3, (ii)
the Letter of
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Transmittal (or a facsimile thereof), properly completed and duly executed,
with any required signature guarantees, or an Agent's Message (as defined
herein) in connection with a book-entry transfer and (iii) any other documents
required by the Letter of Transmittal.
The term "Agent's Message" means a message transmitted by a Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility
has received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the Shares and, if applicable, the Rights which are
the subject of such Book-Entry Confirmation that such participant has received
and agrees to be bound by the terms of the Letter of Transmittal and that the
Purchaser may enforce such agreement against such participant.
Unless and until the Purchaser declares that the Rights Condition is
satisfied, if Rights Certificates have been distributed to holders of Shares,
such holders are required to tender, or make book-entry transferal, Rights
Certificates representing a number of Rights equal to the number of Shares
being tendered in order to effect a valid tender of such Shares.
For purposes of the Offer, the Purchaser will be deemed to have accepted for
payment, and thereby purchased, Shares validly tendered and not properly
withdrawn as, if and when the Purchaser gives oral or written notice to the
Depositary of the Purchaser's acceptance of such Shares for payment pursuant to
the Offer. In all cases, upon the terms and subject to the conditions of the
Offer, payment for Shares purchased pursuant to the Offer will be made by
deposit of the purchase price therefor with the Depositary, which will act as
agent for tendering stockholders for the purpose of receiving payment from the
Purchaser and transmitting payment to validly tendering stockholders. UNDER NO
CIRCUMSTANCES WILL INTEREST ON THE PURCHASE PRICE FOR SHARES BE PAID BY THE
PURCHASER, REGARDLESS OF ANY DELAY IN MAKING SUCH PAYMENT. If, for any reason
whatsoever, acceptance for payment of or payment for any Shares tendered
pursuant to the Offer is delayed, or the Purchaser is unable to accept for
payment or pay for Shares tendered pursuant to the Offer, then, without
prejudice to the Purchaser's rights set forth herein, the Depositary may,
nevertheless, on behalf of the Purchaser and subject to Rule 14e-1(c) under the
Exchange Act, retain tendered Shares and such Shares may not be withdrawn
except to the extent that the tendering stockholder is entitled to and duly
exercises withdrawal rights as described in Section 4.
If any tendered Shares are not purchased pursuant to the Offer for any
reason, or if Share Certificates are submitted representing more Shares than
are tendered, Share Certificates representing unpurchased or untendered Shares
will be returned, without expense to the tendering stockholder (or, in the case
of Shares delivered by book-entry transfer into the Depositary's account at a
Book-Entry Transfer Facility pursuant to the procedures set forth in Section 3,
such Shares will be credited to an account maintained within such Book-Entry
Transfer Facility), as promptly as practicable following the expiration,
termination or withdrawal of the Offer. In the event separate Rights
Certificates are issued, similar action will be taken with respect to
unpurchased and untendered Rights.
IF, PRIOR TO THE EXPIRATION DATE, THE PURCHASER SHALL INCREASE THE
CONSIDERATION OFFERED TO HOLDERS OF SHARES PURSUANT TO THE OFFER, SUCH
INCREASED CONSIDERATION SHALL BE PAID TO ALL HOLDERS OF SHARES THAT ARE
PURCHASED PURSUANT TO THE OFFER, WHETHER OR NOT SUCH SHARES WERE TENDERED PRIOR
TO SUCH INCREASE IN CONSIDERATION.
The Purchaser reserves the right to transfer or assign, in whole or from time
to time in part, to FMC, or to one or more of FMC's subsidiaries or affiliates,
the right to purchase all or any portion of the Shares and Rights tendered
pursuant to the Offer, but any such transfer or assignment will not relieve the
Purchaser of its obligations under the Offer or prejudice the rights of
tendering stockholders to receive payment for Shares validly tendered and
accepted for payment pursuant to the Offer.
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3. PROCEDURES FOR ACCEPTING THE OFFER AND TENDERING SHARES AND RIGHTS
Valid Tender of Shares and Rights
Except as set forth below, in order for Shares and (prior to the Distribution
Date) Rights to be validly tendered pursuant to the Offer, the Letter of
Transmittal (or a facsimile thereof), properly completed and duly executed,
together with any required signature guarantees, or an Agent's Message in
connection with a book-entry delivery of Shares and (prior to the Distribution
Date) Rights, and any other documents required by the Letter of Transmittal
must be received by the Depositary at one of its addresses set forth on the
back cover of this Offer to Purchase on or prior to the Expiration Date and
either (i) Share Certificates and, if applicable, Rights Certificates
representing tendered Shares and Rights must be received by the Depositary, or
such Shares and Rights must be tendered pursuant to the procedure for book-
entry transfer set forth below and Book-Entry Confirmation must be received by
the Depositary, in each case on or prior to the Expiration Date, or (ii) the
guaranteed delivery procedures set forth below must be complied with.
IF THE PURCHASER DECLARES THAT THE RIGHTS CONDITION IS SATISFIED, THE
PURCHASER WILL NOT REQUIRE DELIVERY OF RIGHTS. UNLESS AND UNTIL THE PURCHASER
DECLARES THAT THE RIGHTS CONDITION IS SATISFIED, HOLDERS OF SHARES WILL BE
REQUIRED TO TENDER ONE ASSOCIATED RIGHT FOR EACH SHARE TENDERED IN ORDER TO
EFFECT A VALID TENDER OF SUCH SHARE. ACCORDINGLY, STOCKHOLDERS WHO SELL THEIR
RIGHTS SEPARATELY FROM THEIR SHARES AND DO NOT OTHERWISE ACQUIRE RIGHTS MAY NOT
BE ABLE TO SATISFY THE REQUIREMENTS OF THE OFFER FOR THE TENDER OF SHARES.
Separate Delivery of Rights Certificates
If the Distribution Date does not occur prior to the Expiration Date, a
tender of Shares will also constitute a tender of the associated Rights. If the
Distribution Date occurs and Rights Certificates are distributed to holders of
Shares prior to the time a holder's Shares are purchased pursuant to the Offer,
in order for Rights (and the corresponding Shares) to be validly tendered,
Rights Certificates representing a number of Rights equal to the number of
Shares tendered must be delivered to the Depositary or, if available, a Book-
Entry Confirmation received by the Depositary with respect thereto. If the
Distribution Date occurs and Rights Certificates are not distributed prior to
the time Shares are purchased pursuant to the Offer, Rights may be tendered
prior to a stockholder receiving Rights Certificates by use of the guaranteed
delivery procedure described below. In any case, a tender of Shares constitutes
an agreement by the tendering stockholder to deliver Rights Certificates
representing a number of Rights equal to the number of Shares tendered pursuant
to the Offer to the Depositary within five business days after the date Rights
Certificates are distributed. The Purchaser reserves the right to require that
the Depositary receive Rights Certificates, or a Book-Entry Confirmation, if
available, with respect to such Rights, prior to accepting the related Shares
for payment pursuant to the Offer if the Distribution Date occurs prior to the
Expiration Date.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES, RIGHTS CERTIFICATES (IF
APPLICABLE), THE LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS,
INCLUDING, WITHOUT LIMITATION, DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER
FACILITY, IS AT THE OPTION AND SOLE RISK OF THE TENDERING STOCKHOLDER, AND THE
DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF
DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
Book-Entry Transfer
The Depositary will make a request to establish accounts with respect to the
Shares at each of the Book-Entry Transfer Facilities for purposes of the Offer
within two business days after the date of this Offer to Purchase. Any
financial institution that is a participant in the system of any Book-Entry
Transfer Facility may make Book-Entry delivery of Shares by causing such Book-
Entry Transfer Facility to transfer such Shares into the Depositary's account
at such Book-Entry Transfer Facility in accordance with such Book-
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Entry Transfer Facility's procedures for such transfer. However, although
delivery of Shares may be effected through book-entry transfer into the
Depositary's account at a Book-Entry Transfer Facility, the Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, with
any required signature guarantees, or an Agent's Message in connection with a
book-entry transfer, and any other required documents must, in any case, be
transmitted to and received by the Depositary at one of its addresses set forth
on the back cover of this Offer to Purchase on or prior to the Expiration Date,
or the guaranteed delivery procedure set forth below must be complied with.
If the Distribution Date occurs, to the extent that the Rights become
eligible for book-entry transfer under procedures established by a particular
Book-Entry Transfer Facility, the Depositary will also make a request to
establish an account with respect to the Rights at each of the Book-Entry
Transfer Facilities, but no assurance can be given that book-entry delivery of
Rights will be available. If book-entry delivery of Rights is available, the
foregoing book-entry transfer procedures will also apply to Rights. Otherwise,
if Rights Certificates have been issued, a tendering stockholder will be
required to tender Rights by means of physical delivery to the Depositary of
Rights Certificates (in which event references in this Offer to Purchase to
Book-Entry Confirmations with respect to Rights will be inapplicable) or
pursuant to the guaranteed delivery procedure set forth below.
DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH
SUCH BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO
THE DEPOSITARY.
Signature Guarantees
Signatures on all Letters of Transmittal must be guaranteed by a firm that is
a bank, broker, dealer, credit union, savings association or other entity which
is a member in good standing of the Securities Transfer Agents Medallion
Program (an "Eligible Institution"), unless the Shares and Rights tendered
thereby are tendered (i) by a registered holder of Shares and Rights who has
not completed either the box labeled "Special Payment Instructions" or the box
labeled "Special Delivery Instructions" on the Letter of Transmittal or (ii)
for the account of an Eligible Institution. See Instruction 1 of the Letter of
Transmittal.
If the Share Certificates or Rights Certificates are registered in the name
of a person or persons other than the signer of the Letter of Transmittal, or
if payment is to be made to, or Share Certificates or Rights Certificates for
unpurchased Shares or Rights are to be issued or returned to, a person other
than the registered holder, then the tendered certificates must be endorsed or
accompanied by appropriate stock powers, signed exactly as the name or names of
the registered holder or holders appear on the certificates, with the
signatures on the certificates or stock powers guaranteed by an Eligible
Institution as provided in the Letter of Transmittal. See Instructions 1 and 5
of the Letter of Transmittal.
If the Share Certificates and Rights Certificates are forwarded separately to
the Depositary, a properly completed and duly executed Letter of Transmittal
(or facsimile thereof) must accompany each such delivery.
Guaranteed Delivery
If a stockholder desires to tender Shares and Rights pursuant to the Offer
and such stockholder's Share Certificates or, if applicable, Rights
Certificates are not immediately available (including, if the Distribution Date
has occurred, because Rights Certificates have not yet been distributed) or
time will not permit all required documents to reach the Depositary on or prior
to the Expiration Date, or the procedures for Book-Entry transfer cannot be
completed on a timely basis, such Shares or Rights may nevertheless be tendered
if all of the following guaranteed delivery procedures are duly complied with:
(i) such tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form made available by the Purchaser, is
received by the Depositary, as provided below, on or prior to the
Expiration Date; and
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(iii) the Share Certificates and Rights Certificates (or a Book-Entry
Confirmation) representing all tendered Shares and Rights, in proper form
for transfer together with a properly completed and duly executed Letter of
Transmittal (or facsimile thereof), with any required signature guarantees
(or, in the case of a book-entry transfer, an Agent's Message) and any
other documents required by the Letter of Transmittal are received by the
Depositary within (a) in the case of Shares, five New York Stock Exchange,
Inc. ("NYSE") trading days after the date of execution of such Notice of
Guaranteed Delivery or (b) in the case of Rights, a period ending on the
later of (1) five NYSE trading days after the date of execution of such
Notice of Guaranteed Delivery or (2) five business days after the date
Rights Certificates are distributed to stockholders.
The Notice of Guaranteed Delivery may be delivered by hand or mail or
transmitted by facsimile transmission to the Depositary and must include a
guarantee by an Eligible Institution in the form set forth in such Notice of
Guaranteed Delivery and a representation that the stockholder on whose behalf
the tender is being made is deemed to own the Shares and, if applicable, Rights
being tendered within the meaning of Rule 14e-4 under the Exchange Act.
Notwithstanding any other provision hereof, payment for Shares accepted for
payment pursuant to the Offer will in all cases be made only after timely
receipt by the Depositary of Share Certificates for, or of Book-Entry
Confirmation with respect to, such Shares, and if the Distribution Date has
occurred, Rights Certificates for, or a Book-Entry Confirmation, if available,
with respect to, such Rights (unless the Purchaser elects, in its sole
discretion, to make payment for such Shares pending receipt of the Rights
Certificates for, or a Book-Entry Confirmation, if available, with respect to,
such Rights), a properly completed and duly executed Letter of Transmittal (or
facsimile thereof), together with any required signature guarantees (or, in the
case of a book-entry transfer, an Agent's Message) and any other documents
required by the Letter of Transmittal. Accordingly, payment might not be made
to all tendering stockholders at the same time, and will depend upon when Share
Certificates (or Rights Certificates) are received by the Depositary or Book-
Entry Confirmations of such Shares (or Rights, if available) are received into
the Depositary's account at a Book-Entry Transfer Facility.
If the Rights Condition is satisfied, the guaranteed delivery procedure with
respect to Rights Certificates and the requirement for the tender of Rights
will no longer apply.
Backup Federal Income Tax Withholding
UNDER THE FEDERAL INCOME TAX LAWS APPLICABLE TO CERTAIN STOCKHOLDERS
INCLUDING, AMONG OTHERS, ALL CORPORATIONS AND CERTAIN FOREIGN INDIVIDUALS, THE
DEPOSITARY MAY BE REQUIRED TO WITHHOLD 31% OF THE AMOUNT OF ANY PAYMENTS MADE
TO SUCH STOCKHOLDERS PURSUANT TO THE OFFER. TO PREVENT BACKUP FEDERAL INCOME
TAX WITHHOLDING WITH RESPECT TO PAYMENT TO CERTAIN TENDERING STOCKHOLDERS OF
THE PURCHASE PRICE OF SHARES PURCHASED PURSUANT TO THE OFFER, EACH SUCH
STOCKHOLDER MUST PROVIDE THE DEPOSITARY WITH SUCH STOCKHOLDER'S CORRECT
TAXPAYER IDENTIFICATION NUMBER AND CERTIFY THAT SUCH STOCKHOLDER IS NOT SUBJECT
TO BACKUP FEDERAL INCOME TAX WITHHOLDING BY COMPLETING THE SUBSTITUTE FORM W-9
INCLUDED IN THE LETTER OF TRANSMITTAL. SEE INSTRUCTION 9 OF THE LETTER OF
TRANSMITTAL.
Appointment as Proxy
By executing the Letter of Transmittal, a tendering stockholder irrevocably
appoints designees of the Purchaser, and each of them, as such stockholder's
attorneys-in-fact and proxies, with full power of substitution, in the manner
set forth in the Letter of Transmittal, to the full extent of such
stockholder's rights with respect to the Shares and, if applicable, Rights
tendered by such stockholder and accepted for payment by the Purchaser and with
respect to any and all other Shares or Rights and other securities or rights
issued or issuable in respect of such Shares and Rights on or after the date of
this Offer to Purchase. All such powers of attorney and proxies shall be
considered irrevocable and coupled with an interest in the
10
<PAGE>
tendered Shares and Rights. Such appointment will be effective upon the
acceptance for payment of such Shares and Rights by the Purchaser in accordance
with the terms of the Offer. Upon such acceptance for payment, all other powers
of attorney and proxies given by such stockholder with respect to such Shares,
Rights, and such other securities or rights prior to such payment will be
revoked, without further action, and no subsequent powers of attorney and
proxies nor any subsequent written consents executed may be given by such
stockholder (and, if given or executed, will not be deemed effective). The
designees of the Purchaser will, with respect to the Shares and Rights and such
other securities and rights for which such appointment is effective, be
empowered to exercise all voting and other rights of such stockholder as they,
in their sole discretion, may deem proper at any annual or special meeting of
the Company's stockholders, or any adjournment or postponement thereof, or by
consent in lieu of any such meeting or otherwise. In order for Shares and
Rights to be deemed validly tendered, immediately upon the acceptance for
payment of such Shares and Rights, the Purchaser or its designee must be able
to exercise full voting rights with respect to such Shares, Rights and other
securities, including, without limitation, voting at any meeting of
stockholders.
The foregoing proxies are effective only upon acceptance for payment of
Shares pursuant to the Offer. The Offer does not constitute a solicitation of
proxies, absent a purchase of Shares, for any meeting of the Company's
stockholders, which would be made only pursuant to separate proxy solicitation
materials complying with the Exchange Act.
Determination of Validity
All questions as to the form of documents and the validity, eligibility
(including, without limitation, time of receipt) and acceptance for payment of
any tender of Shares or Rights will be determined by the Purchaser, in its sole
discretion, whose determination shall be final, conclusive and binding upon all
parties. The Purchaser reserves the absolute right to reject any or all tenders
determined by it not to be in proper form or the acceptance of or payment for
which may, in the opinion of the Purchaser's Counsel, be unlawful. The
Purchaser also reserves the absolute right to waive any of the conditions of
the Offer or any defect or irregularity in any tender of Shares or Rights of
any particular stockholder whether or not similar defects or irregularities are
waived in the case of other stockholders.
The Purchaser's interpretation of the terms and conditions of the Offer
(including, without limitation, the Letter of Transmittal and the instructions
thereto) will be final, conclusive and binding upon all parties. No tender of
Shares or Rights will be deemed to have been validly made until all defects and
irregularities with respect to such tender have been cured or waived. None of
FMC, the Purchaser or any of their respective affiliates or assigns, the Dealer
Manager, the Depositary, the Information Agent or any other person or entity
will be under any duty to give any notification of any defects or
irregularities in tenders or incur any liability for failure to give any such
notification.
Other Requirements
The Purchaser's acceptance for payment of Shares and, if applicable, Rights
tendered pursuant to any of the procedures described above will constitute a
binding agreement between the tendering stockholder and the Purchaser upon the
terms and subject to the conditions of the Offer.
4. WITHDRAWAL RIGHTS
Except as otherwise provided in this Section 4, tenders of Shares and Rights
made pursuant to the Offer are irrevocable. Shares and Rights tendered pursuant
to the Offer may be withdrawn at any time on or prior to the Expiration Date
and, unless theretofore accepted for payment by the Purchaser as provided
herein, may also be withdrawn at any time after July 5, 1995 (or such later
date as may apply in case the Offer is extended). A withdrawal of Shares will
also constitute a withdrawal of the associated Rights. Rights may not be
withdrawn unless the associated Shares are also withdrawn.
11
<PAGE>
If, for any reason whatsoever, acceptance for payment of any Shares and
Rights tendered pursuant to the Offer is delayed, or the Purchaser is unable to
accept for payment or pay for Shares and Rights tendered pursuant to the Offer,
then, without prejudice to the Purchaser's rights set forth herein, the
Depositary may, nevertheless, on behalf of the Purchaser, retain tendered
Shares and Rights and such Shares and Rights may not be withdrawn except to the
extent that the tendering stockholder is entitled to and duly exercises
withdrawal rights as described in this Section 4. Any such delay will be by an
extension of the Offer to the extent required by law.
In order for a withdrawal to be effective, a written or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase. Any
such notice of withdrawal must specify the name of the person who tendered the
Shares and Rights to be withdrawn, the number of Shares and Rights to be
withdrawn, and (if Share Certificates and Rights Certificates have been
tendered) the name of the registered holder of the Shares and Rights as set
forth in the Share Certificate and Rights Certificate, if different from that
of the person who tendered such Shares and Rights. If Share Certificates and
Rights Certificates have been delivered or otherwise identified to the
Depositary, then prior to the physical release of such certificates, the
tendering stockholder must submit the serial numbers shown on the particular
certificates evidencing the Shares and Rights to be withdrawn and the signature
on the notice of withdrawal must be guaranteed by an Eligible Institution,
except in the case of Shares and Rights tendered for the account of an Eligible
Institution. If Shares and Rights have been tendered pursuant to the procedures
for book-entry transfer set forth in Section 3, the notice of withdrawal must
specify the name and number of the account at the appropriate Book-Entry
Transfer Facility to be credited with the withdrawn Shares and Rights, in which
case a notice of withdrawal will be effective if delivered to the Depositary by
any method of delivery described in the first sentence of this paragraph.
Withdrawals of Shares and Rights may not be rescinded. Any Shares and Rights
properly withdrawn will be deemed not validly tendered for purposes of the
Offer, but may be retendered at any subsequent time prior to the Expiration
Date by following any of the procedures described in Section 3.
All questions as to the form and validity (including, without limitation,
time of receipt) of notices of withdrawal will be determined by the Purchaser,
in its sole discretion, whose determination shall be final, conclusive and
binding upon all parties. None of FMC, the Purchaser or any of their respective
affiliates or assigns, the Dealer Manager, the Depositary, the Information
Agent or any other person or entity will be under any duty to give any
notification of any defects or irregularities in any notice of withdrawal or
incur any liability for failure to give any such notification.
5. CERTAIN TAX CONSEQUENCES
The summary of tax consequences set forth below is for general information
only and is based on the law as currently in effect. The tax treatment of each
stockholder will depend in part upon such stockholder's particular situation.
The receipt of cash for Shares pursuant to the Offer or the Proposed Merger
will be a taxable transaction for federal income tax purposes and may also be a
taxable transaction under applicable state, local, foreign and other tax laws.
For federal income tax purposes under the Internal Revenue Code of 1986, as
amended, each selling or exchanging stockholder would generally recognize gain
or loss equal to the difference between the amount of cash received and such
stockholder's tax basis for the sold or exchanged Shares. For federal income
tax purposes, such gain or loss will be capital gain or loss (assuming the
Shares are held as a capital asset by such stockholder) and any such capital
gain or loss will be long term if, as of the date the Purchaser accepts the
Shares for payment pursuant to the Offer or the effective date of the Proposed
Merger, as the case may be, the Shares were held for more than one year or will
be short term if, as of such date, the Shares were held for one year or less.
If a redemption of the Rights occurs prior to the Distribution Date, the
amount distributed should be treated as a dividend. The tax consequences of a
redemption occurring after the Distribution Date are unclear, and each holder
should consult his or her own tax adviser.
12
<PAGE>
If the sale of Shares and Rights occurs after the Distribution Date, the cash
received should be allocated between the Share and Rights based upon their
relative fair market values, and gain (or loss) should be computed separately
with respect to Shares and Rights as described above.
The foregoing discussion may not be applicable to certain types of
stockholders, including, without limitation, stockholders who acquired Shares
pursuant to the exercise of employee stock options or otherwise as
compensation, individuals who are not citizens or residents of the United
States and foreign corporations, or entities that are otherwise subject to
special tax treatment under the Internal Revenue Code of 1986, as amended (such
as insurance companies, tax-exempt entities and regulated investment
companies).
A bill recently passed the United States House of Representatives and is
pending before the United States Senate to reduce the effective tax rates
applicable to net long-term capital gains. These proposals would apply
generally to transactions effected after December 31, 1994. In addition, for
taxable years beginning after December 31, 1995, the proposals would further
limit the deduction for long-term capital losses. Therefore, if these proposals
were enacted into law, gains from the sale or conversion of Shares pursuant to
the Offer or the Proposed Merger which constituted long-term capital gains
would generally be taxed at reduced effective tax rates. However, there can be
no assurance that these or other proposals will be enacted and, if enacted, the
effective dates of the proposals or the particular type of transactions or
assets to which the proposals apply could be modified. If the proposals were
enacted with an effective date subsequent to the Expiration Date of the Offer,
the sale or conversion of Shares pursuant to the Offer or the Proposed Merger
which constituted long-term capital gains would be taxed at the higher rates
currently in effect. Stockholders of the Company should consult their tax
advisors about the impact of this proposed legislation.
THE FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY. EACH STOCKHOLDER IS URGED TO CONSULT SUCH STOCKHOLDER'S TAX
ADVISOR WITH RESPECT TO THE TAX CONSEQUENCES TO SUCH STOCKHOLDER OF THE OFFER
AND PROPOSED MERGER, INCLUDING, WITHOUT LIMITATION, THE APPLICABILITY AND
EFFECT OF FEDERAL, STATE, LOCAL AND FOREIGN TAX LAWS.
13
<PAGE>
6. PRICE RANGE OF THE SHARES AND RIGHTS; DIVIDENDS
According to the Company's 1994 10-K, the Shares are listed and traded on the
NYSE under the symbol "MRC." From June 4, 1991 until October 19, 1992, the
Shares were traded on the NASDAQ National Market System under the symbol
"MOOR." The following table sets forth, for the periods indicated, the high and
low sales prices for the Shares on the NYSE (or, to the extent applicable, the
NASDAQ) as reported by published financial sources and the cash dividends per
common share.
MOORCO INTERNATIONAL INC.
<TABLE>
<CAPTION>
CASH
HIGH LOW DIVIDENDS
------ ------ ---------
<S> <C> <C> <C>
FISCAL YEAR ENDED MAY 31, 1993
First Quarter......................................... $23.50 $19.00 .055
Second Quarter........................................ 24.50 15.00 .055
Third Quarter......................................... 17.63 12.88 .055
Fourth Quarter........................................ 17.63 14.50 .055
FISCAL YEAR ENDED MAY 31, 1994
First Quarter......................................... 17.50 16.00 .055
Second Quarter........................................ 18.25 14.88 .055
Third Quarter......................................... 19.00 16.63 .055
Fourth Quarter........................................ 18.38 14.81 .055
FISCAL YEAR ENDED MAY 31, 1995
First Quarter......................................... 16.63 14.50 .055
Second Quarter........................................ 16.13 13.63 .055
Third Quarter......................................... 14.75 13.00 .055
Fourth Quarter (through May 4, 1995).................. 22.38 13.13 --
</TABLE>
On March 31, 1995, the last full day of trading prior to the delivery of the
Letter proposing the acquisition of the Company by FMC (as set forth in Section
10), the closing sales price on the NYSE for the Shares was $13 3/4 per Share.
On May 4, 1995, the last full day of trading prior to the announcement of the
Offer, the closing sales price on the NYSE for the Shares was $21.75 per Share.
The Offer represents a 45% premium over the closing sale price per Share
reported on the NYSE on March 31, 1995. STOCKHOLDERS ARE URGED TO OBTAIN A
CURRENT MARKET QUOTATION FOR THE SHARES.
The Purchaser believes, based upon publicly available information, that as of
the date of the Offer, all Rights are attached to the associated Shares and are
not traded separately. Upon the occurrence of the Distribution Date, the Rights
are to detach, and may trade separately, from the Shares. See Section 11. As a
result of the announcement by the Purchaser of the Offer, the Purchaser
believes that the Distribution Date will be May 19, 1995, unless prior to such
date the Company's Board of Directors redeems the Rights or takes action to
delay the Distribution Date. The Distribution Date may also occur sooner. See
Section 11. IF THE DISTRIBUTION DATE OCCURS AND THE RIGHTS BEGIN TO TRADE
SEPARATELY FROM THE SHARES, STOCKHOLDERS ARE ALSO URGED TO OBTAIN A CURRENT
MARKET PRICE FOR THE RIGHTS.
7. POSSIBLE EFFECTS OF THE OFFER ON THE MARKET FOR THE SHARES AND RIGHTS; STOCK
EXCHANGE LISTING, EXCHANGE ACT REGISTRATION; MARGIN REGULATIONS
Possible Effects of the Offer on the Market for the Shares
The purchase of Shares pursuant to the Offer will reduce the number of Shares
that might otherwise trade publicly and could adversely affect the liquidity
and market value of the remaining Shares held by the public. The purchase of
Shares pursuant to the Offer can also be expected to reduce the number of
holders of
14
<PAGE>
Shares. The Purchaser cannot predict whether the reduction in the number of
Shares that might otherwise trade publicly would have an adverse or beneficial
effect on the market price for or marketability of the Shares or whether it
would cause future market prices to be greater or less than the Offer price
therefor.
Stock Exchange Listing
According to the published guidelines of the NYSE, the NYSE will consider
delisting the Shares if, among other things, the number of publicly held Shares
(exclusive of holdings of officers, directors and their families and other
concentrated holdings of 10% or more ("NYSE Excluded Holdings")) should fall
below 600,000 or the aggregate market value of publicly held Shares (exclusive
of NYSE Excluded Holdings) should fall below $5,000,000. If, as a result of the
purchase of Shares pursuant to the Offer or otherwise, the Shares no longer
meet the requirements of the NYSE for continued listing and the listing of the
Shares is discontinued, the market and price for the Shares could be adversely
affected.
If the NYSE were to delist the Shares, it is possible that the Shares would
continue to trade on another securities exchange or in the over-the-counter
market and that price or other quotations would be reported by such exchange or
through the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") or other sources. The extent of the public market therefor
and the availability of such quotations would depend, however, upon such
factors as the number of stockholders and/or the aggregate market value of such
securities remaining at such time, the interest in maintaining a market in the
Shares on the part of securities firms, the possible termination of
registration under the Exchange Act as described below, and other factors. The
Purchaser cannot predict whether the reduction in the number of Shares that
might otherwise trade publicly would have an adverse or beneficial effect on
the market price for or marketability of the Shares or whether it would cause
future market prices to be greater or less than the Offer Price.
Exchange Act Registration
The Shares are currently registered under the Exchange Act. Registration of
the Shares may be terminated upon application by the Company to the Commission
if the Shares are not listed on a "national securities exchange" or quoted on
NASDAQ and there are fewer than 300 record holders of Shares. According to the
Company's 1994 10-K, as of July 29, 1994, the number of record holders was
below 300. The purchase of the Shares pursuant to the Offer may result in the
Shares becoming eligible for deregistration under the Exchange Act. Termination
of registration of the Shares under the Exchange Act would substantially reduce
the information required to be furnished by the Company to its stockholders and
the Commission and would make certain provisions of the Exchange Act, such as
the short-swing profit recovery provisions of Section 16(b) and the
requirements of furnishing a proxy statement in connection with stockholders'
meetings pursuant to Section 14(a) or 14(c) and the related requirement of an
annual report, no longer applicable to the Company. If the Shares are no longer
registered under the Exchange Act, the requirements of Rule 13e-3 under the
Exchange Act with respect to "going private" transactions would no longer be
applicable to the Company. Furthermore, the ability of "affiliates" of the
Company and persons holding "restricted securities" of the Company to dispose
of such securities pursuant to Rule 144 promulgated under the Securities Act of
1933, as amended, may be impaired or, with respect to certain persons,
eliminated. If registration of the Shares under the Exchange Act were
terminated, the Shares would no longer be "margin securities" or be eligible
for NASDAQ reporting. The Purchaser believes that the purchase of the Shares
pursuant to the Offer may result in the Shares becoming eligible for
deregistration under the Exchange Act. It would be the intention of the
Purchaser to cause the Company to make an application for termination of
registration of the Shares as soon as possible after successful completion of
the Offer, if the Shares are then eligible for such termination.
Based upon publicly available information, the Purchaser believes that, as of
the date of this Offer to Purchase, the Rights are registered under the
Exchange Act, but are attached to the Shares and are not separately
transferable. As a result of the announcement by the Purchaser of the Offer,
the Purchaser believes
15
<PAGE>
that the Distribution Date will be May 19, 1995 unless, prior to such date, the
Company's Board of Directors redeems the Rights or takes action to delay the
Distribution Date. See Section 11. According to the Company's 8-K, as soon as
practicable following the Distribution Date, Rights Certificates will be sent
to all holders of Rights and thereafter the Rights Certificates will alone
evidence the Rights. See Section 11. If the Distribution Date occurs and the
Rights separate from the Shares, the foregoing discussion with respect to the
effect of the Offer on the market for the Shares, stock exchange listing and
Exchange Act registration would apply to the Rights in a similar manner.
If registration of the Shares and the Rights is not terminated prior to the
Proposed Merger, then the Shares and the Rights will cease to be eligible for
listing on the NYSE and the registration of the Shares and the Rights under the
Exchange Act will be terminated following the consummation of the Proposed
Merger.
Margin Regulations
The Shares are currently "margin securities" under the regulations of the
Board of Governors of the Federal Reserve System (the "Federal Reserve Board"),
which have the effect, among other things, of allowing brokers to extend credit
on the collateral of such Shares for the purpose of buying, carrying or trading
in securities ("Purpose Loans"). Depending upon factors such as the number of
record holders of the Shares and the number and market value of publicly held
Shares, following the purchase of Shares pursuant to the Offer, the Shares
might no longer constitute "margin securities" for purposes of the Federal
Reserve Board's margin regulations and, therefore, could no longer be used as
collateral for Purpose Loans made by brokers. In addition, if registration of
the Shares under the Exchange Act were terminated, the Shares would no longer
constitute "margin securities."
8. CERTAIN INFORMATION CONCERNING THE COMPANY
The information concerning the Company contained in this Offer to Purchase,
including financial information, has been taken from or based upon publicly
available documents and records on file with the Commission and other public
sources. The summary information concerning the Company in this Section 8 and
elsewhere in this Offer to Purchase is derived from the Company's 1994 10-K and
other publicly available information. The summary information set forth below
is qualified in its entirety by reference to such reports (which may be
obtained and inspected as described below) and should be considered in
conjunction with the more comprehensive financial and other information in such
reports (including, without limitation, management's discussion and analysis of
results of operation and financial position) and other publicly available
reports and documents filed by the Company with the Commission and other
publicly available information. Although the Purchaser and FMC do not have any
knowledge that would indicate that any statements contained herein based upon
such reports are untrue in any material respect, neither the Purchaser nor FMC
assumes any responsibility for the accuracy or completeness of the information
contained therein, or for any failure by the Company to disclose events that
may have occurred and may affect the significance or accuracy of any such
information but which are unknown to the Purchaser and FMC.
The Company is a Delaware corporation with its principal executive offices
located at 2800 Post Oak Boulevard, Suite 5701, Houston, Texas 77056. The
following description of the Company's business has been taken from the
Company's 1994 10-K:
Moorco International Inc. and its subsidiaries design, manufacture and
sell fluid measurement and pressure control products and provide related
engineering, design and repair services. The Company supplies flow meters
and pressure relief valves to the petroleum, industrial process (including
chemical, petrochemical and other processing) and electric power generation
industries. The Company's Smith Meter Inc. (Smith) subsidiary manufactures
and sells precision engineered positive displacement, turbine and other
flow meters, electronic and mechanical metering accessories and custom
designed metering systems for large volume hydrocarbon custody transfer
applications. The Company's Crosby Valve & Gage Company (Crosby) subsidiary
manufactures and sells pressure relief valves and accessories used in
16
<PAGE>
applications to protect pipelines and other process equipment from excess
pressure build-up. In addition, Smith and Crosby provide design,
engineering and repair services related to their products.
The selected financial information of the Company and its consolidated
subsidiaries set forth below has been excerpted and derived from the Company's
1994 10-K, the Company's Third Quarter 10-Q and the Company's Quarterly Report
on Form 10-Q for the quarter ended February 28, 1994 filed with the Commission
pursuant to the Exchange Act. The financial information set forth below is
qualified in its entirety by reference to such reports and documents filed with
the Commission and all of the financial statements and related notes contained
therein. These reports and other documents may be examined and copies thereof
may be obtained in the manner set forth herein.
17
<PAGE>
MOORCO INTERNATIONAL INC.
SELECTED FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
NINE MONTHS ENDED FEB. 28,
-----------------------------
FISCAL YEAR ENDED MAY 31,
1995 1994 ---------------------------
(UNAUDITED) (UNAUDITED) 1994 1993(1) 1992
------------- ------------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Sales................... $ 134,795 $ 149,035 $210,154 $194,709 $206,586
Operating income........ 6,821 13,302 21,706 19,084 27,573
Income before accounting
change................. 4,698 8,740 14,375 12,242 17,523
Cumulative effect of
accounting change (net
of $394 in income
taxes)................. -- -- -- (644) --
------------- ------------- -------- -------- --------
Net income.............. $ 4,698 $ 8,740 $ 14,375 $ 11,598 $ 17,523
============= ============= ======== ======== ========
Earnings per common and
common equivalent
share:
Income before
accounting change.... $ .40 $ .73 $ 1.20 $ 1.01 $ 1.43
Cumulative effect of
accounting change.... -- -- -- (.05) --
------------- ------------- -------- -------- --------
Net income............ $ .40 $ .73 $ 1.20 $ .96 $ 1.43
============= ============= ======== ======== ========
Weighted average number
of common and common
equivalent shares
outstanding............ 11,636 12,013 12,011 12,144 12,234
============= ============= ======== ======== ========
BALANCE SHEET DATA (at
Period End)
Working Capital......... 57,711 61,225 65,678 50,402 41,267
Total Assets............ 157,531 158,164 161,014 139,412 135,265
Total Liabilities....... 60,979 60,040 57,360 47,148 47,479
Total Stockholders'
Equity................. 96,552 98,124 103,654 92,264 87,786
</TABLE>
- --------
(1) Includes 53-week year.
The Company is subject to the information and reporting requirements of the
Exchange Act and, in accordance therewith, is required to file periodic
reports, proxy statements and other information with the Commission relating to
its business, financial condition and other matters. Certain information, as of
particular dates, concerning the Company's business, principal physical
properties, capital structure, material pending legal proceedings, operating
results, financial condition, directors and officers (including, without
limitation, their remuneration and the stock options granted to them), the
principal holders of the Company's securities, any material interests of such
persons in transactions with the Company and certain other matters is required
to be disclosed in proxy statements and annual reports distributed to the
Company's stockholders and filed with the Commission. Such reports, proxy
statements and other information may be inspected and copied at the
Commission's public reference facilities at Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, and should also be available for inspection at
the following regional offices of the Commission: 7 World Trade Center, New
York, New York 10048 and 500 West Madison Street, Chicago, Illinois 60661-2511;
and copies may be obtained by mail at prescribed rates from the principal
office of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549.
Such reports, proxy statements and other information should also be available
for inspection at the NYSE, 20 Broad Street, New York, New York 10005.
9. CERTAIN INFORMATION CONCERNING THE PURCHASER AND FMC
The Purchaser is a newly formed Delaware corporation and a wholly owned
subsidiary of FMC and its principal executive offices are located at 200 East
Randolph Drive, Chicago, Illinois 60601. FMC is a
18
<PAGE>
Delaware corporation with its principal executive offices located at 200 East
Randolph Drive, Chicago, Illinois 60601. The Purchaser has not conducted any
business other than in connection with the Offer and the Proposed Merger.
FMC 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% of total annual revenues. FMC employs 21,000
people at 97 manufacturing facilities and mines in 21 countries. FMC divides
its businesses into five major segments: Performance Chemicals, Industrial
Chemicals, Machinery and Equipment, Defense Systems and Precious Metals.
The name, business address, citizenship, present principal occupation and
employment history for the past five years of each of the directors and
executive officers of FMC and the Purchaser and certain other information are
set forth in Schedule I of this Offer to Purchase.
FMC is subject to the information and reporting requirements of the Exchange
Act and, in accordance therewith, is required to file periodic reports, proxy
statements and other information with the Commission relating to its business,
financial condition and other matters. Certain information, as of particular
dates, concerning FMC's business, principal physical properties, capital
structure, material pending legal proceedings, operating results, financial
condition, directors and officers (including, without limitation, their
remuneration and stock options granted to them), the principal holders of FMC's
securities, any material interests of such persons in transactions with FMC and
certain other matters is required to be disclosed in proxy statements and
annual reports distributed to FMC's stockholders and filed with the Commission.
Such reports, proxy statements and other information may be inspected and
copied at the Commission's public reference facilities listed in Section 8
above and should also be available for inspection at the NYSE, 20 Broad Street,
New York, New York 10005.
Set forth below is certain consolidated financial information with respect to
FMC and its consolidated subsidiaries for its fiscal years ended and as of
December 31, 1994 and December 31, 1993. More comprehensive financial and other
information is included in FMC's Annual Report on Form 10-K for its fiscal year
ended December 31, 1994 (including, without limitation, management's discussion
and analysis of results of operations and financial position) and in other
reports and documents filed by FMC with the Commission. The financial
information set forth below is qualified in its entirety by reference to such
reports and documents filed with the Commission and all the financial
statements and related notes contained therein. These reports and other
documents may be examined and copies thereof may be obtained in the manner set
forth above.
19
<PAGE>
FMC CORPORATION
SELECTED FINANCIAL INFORMATION
(IN MILLIONS, EXCEPT PER SHARE AND STOCKHOLDER DATA)
<TABLE>
<CAPTION>
FISCAL YEAR ENDED DECEMBER
31
---------------------------
1994 1993 1992
-------- -------- --------
<S> <C> <C> <C>
INCOME STATEMENT DATA
Net Sales....................................... $4,010.8 $3,753.9 $3,973.7
Income from continuing operations before income
taxes.......................................... 252.3 37.8 279.6
Net income (loss)............................... 173.4 36.3 (75.7)
SHARE DATA
Average number of shares used in earnings per
share computations (thousands):
Primary....................................... 37,195 36,943 36,796
Fully diluted................................. 37,299 36,943 39,694
Primary earnings (loss) per share:
Continuing operations......................... $ 4.66 $ 1.11 $ 5.23
Discontinued operations....................... -- -- (1.99)
Extraordinary items........................... -- (0.13) (0.31)
Cumulative effect of change in accounting
principle.................................... -- -- (4.99)
-------- -------- --------
Net Income (loss)........................... $ 4.66 $ 0.98 $ (2.06)
======== ======== ========
Earnings (loss) per share assuming full
dilution:
Continuing operations......................... $ 4.65 $ 1.11 $ 5.04
Discontinued operations....................... -- -- (1.84)
Extraordinary items........................... -- (0.13) (0.29)
Cumulative effect of change in accounting
principle.................................... -- -- (4.63)
-------- -------- --------
Net Income.................................. $ 4.65 $ 0.98 $ *
======== ======== ========
BALANCE SHEET DATA (at Period End)
Working Capital................................... $ 107.4 $ 39.6 $ 64.0
Total Assets...................................... 3,351.5 2,845.1 2,856.6
Total Liabilities................................. 2,935.0 2,628.2 2,637.6
Total Stockholder's Equity........................ 416.5 216.9 219.0
</TABLE>
*Per share amounts are anti-dilutive
FMC currently beneficially owns an aggregate of 100 Shares which it acquired
on March 28, 1995 at a price of $13.375 per Share. Except as set forth
elsewhere in this Offer to Purchase: (i) neither FMC nor the Purchaser nor, to
the knowledge of FMC or the Purchaser, any of the persons listed in Schedule I
hereto or any associate or majority-owned subsidiary of FMC or the Purchaser or
any of the persons so listed, beneficially owns or has a right to acquire any
Shares or any other equity securities of the Company; (ii) neither FMC nor the
Purchaser nor, to the knowledge of FMC or the Purchaser, any of the persons or
entities referred to in clause (i) above or any of their executive officers,
directors or subsidiaries has effected any transaction in the Shares or any
other equity securities of the Company during the past 60 days; (iii) neither
FMC nor the Purchaser nor, to the knowledge of FMC or the Purchaser, any of the
persons listed in Schedule I hereto, has any contract, arrangement,
understanding or relationship with any other person with respect to any
securities of the Company (including, but not limited to, any contract,
arrangement, understanding or relationship concerning the transfer or the
voting of any such securities, joint ventures, loan or option arrangements,
puts or calls, guaranties of loans, guaranties against loss or the giving or
withholding of
20
<PAGE>
proxies, consents or authorizations); (iv) since June 1, 1991, there have been
no transactions which would require reporting under the rules and regulations
of the Commission between FMC or the Purchaser or any of their respective
subsidiaries or, to the knowledge of FMC or the Purchaser, any of the persons
listed in Schedule I hereto, on the one hand, and the Company or any of its
executive officers, directors or affiliates, on the other hand; and (v) since
June 1, 1991, there have been no contacts, negotiations or transactions between
FMC or the Purchaser or any of their respective subsidiaries or, to the
knowledge of FMC or the Purchaser, any of the persons listed in Schedule I
hereto, on the one hand, and the Company or any of its subsidiaries or
affiliates, on the other hand, concerning a merger, consolidation or
acquisition, a tender offer or other acquisition of securities, an election of
directors or a sale or other transfer of a material amount of assets.
10. BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY
In August 1992, during a strategic review of FMC's oil field business, senior
management identified oil and gas metering as an attractive market for FMC. In
June 1993, FMC acquired the assets and business of Kongsberg Offshore a.s.
("Kongsberg"), a Norwegian company which has a gas metering systems business.
Kongsberg assembles gas metering systems whose components are purchased from
other companies, which it then sells primarily in the North Sea area. It does
not manufacture gas or liquid (oil) metering components, which include the
meters and associated electronic/instrumentation equipment.
After the acquisition of Kongsberg, a project team was formed in January 1994
to examine opportunities to expand the Kongsberg metering systems business
globally. Kongsberg's expansion into the liquid (oil) metering systems segment
was identified as an attractive opportunity. Options identified to effect the
expansion into the liquid (oil) metering systems business included: (i) forming
strategic alliances with suppliers of metering components or (ii) acquiring a
supplier of metering components.
In December 1994, the FMC Board of Directors was briefed on the work
underway, including the interest in a possible transaction with Moorco. No
decision was requested of or made by the Board of Directors.
In January and February 1995, FMC personnel visited a number of suppliers of
liquid (oil) metering components to evaluate possible areas of cooperation.
These visits included two of the Company's plants.
In March 1995, FMC discussed all options with Merrill Lynch, who was
subsequently retained as a financial advisor to assist in the evaluation of the
options.
During March 1995, FMC acquired an aggregate of 100 Shares at $13.375 per
share. On April 3, 1995, the Board of FMC approved a proposal to acquire the
Company and in a letter to Michael L. Tiner, Chief Executive Officer and
President of the Company, Robert N. Burt, Chairman of the Board of Directors
and Chief Executive Officer of FMC, proposed to the Company the acquisition of
the Company, as follows:
April 3, 1995
Board of Directors
Moorco International Inc.
2800 Post Oak Blvd., Suite 5701
Houston, Texas 77056-6111
Attention: Keith S. Wellin
Chairman of the Board
Michael L. Tiner
President and Chief Executive Officer
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<PAGE>
Gentlemen:
Based upon study and analysis of publicly available information, the
Management and Board of Directors of FMC have concluded that the
combination of Moorco and FMC would be in the long-term best interests of
the stockholders, employees and other constituencies of both companies. As
you know, FMC is one of the world's leading producers of chemicals and
machinery for industry, agriculture and government with an equity market
capitalization of approximately $2.2 billion. We believe that a combination
of the marketing resources, geographic reach and financial strength of our
Energy and Transportation Equipment Group with the complementary Moorco
product lines, customers and geographic markets would be well positioned in
today's global market place.
Importantly, FMC believes one of the key assets of Moorco is its
employees, and we look forward to building an organization in which
employees of both companies have expanded opportunities.
As authorized by FMC's Board of Directors at a special meeting today, we
hereby propose to acquire Moorco for approximately $223 million in a
negotiated merger transaction whereby your stockholders would receive $20
per share, in cash, for the 11.1 million outstanding shares. FMC has
adequate financial resources for the proposed transaction.
We believe that your stockholders will be enthusiastic about this
opportunity to realize immediately the long-term potential of their
investment in Moorco. The offer is 45 percent higher than the $13 3/4
closing price of Moorco's common stock on Friday, March 31. In addition,
our offer represents a multiple of 21.5x Moorco's latest twelve months' net
income. Consequently, FMC believes that its proposal is fair and that this
price represents a full valuation of Moorco. However, since this proposal
is based on public information, if Moorco can demonstrate additional value,
we would consider offering a higher price.
Our proposal is subject to the execution of a mutually satisfactory
merger agreement containing customary terms and conditions and the receipt
of required regulatory approvals. Our proposal is for the existing Moorco
business. However, as part of our negotiations, we are prepared to discuss
the status of your proposal for Daniel Industries. FMC is prepared to move
forward promptly to negotiate an agreement and to close a transaction. We
look forward to meeting with you, a committee of your Board, or Moorco's
full Board to discuss these matters further and to answer any questions
concerning our proposal and FMC.
Very truly yours,
FMC Corporation
Robert N. Burt
Chairman and Chief Executive Officer
Also on April 3, 1995, Mr. Burt placed a call to Mr. Tiner's office to
discuss the foregoing letter, but Mr. Tiner was unavailable for the call and
did not return the call.
On April 4, 1995, FMC issued a press release announcing that it had proposed
to acquire Moorco International (MRC) for approximately $223 million in a
negotiated merger transaction whereby Moorco stockholders would receive $20.00
per share in cash for the 11.1 million shares and disclosing the text of Mr.
Burt's letter to Mr. Wellin and Mr. Tiner.
On April 6, 1995, the Company issued a press release announcing that its
Board of Directors would evaluate the proposal from FMC and had retained
Salomon Brothers Inc as its financial advisor to assist with the evaluation.
The Company stated that it would not have any further comment until the Board
of Directors completed its evaluation. Mr. Tiner called Mr. Burt and confirmed
the information in the Company's press release. Mr. Tiner also committed to
calling Mr. Burt by April 11, 1995.
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<PAGE>
On April 11, 1995, Mr. Tiner called Mr. Burt to schedule a meeting for April
18, 1995 with Mr. Burt and other FMC representatives for the stated purpose of
gathering information regarding FMC's offer and the basis of FMC's interest.
On April 18, 1995, Mr. Burt and Joseph H. Netherland, who is both the
President of the Purchaser and General Manager of FMC's Energy and
Transportation Group, met with Mr. Tiner and James J. Nelson, Vice President
and General Counsel of the Company. At that meeting, Mr. Burt and Mr.
Netherland reviewed FMC's interest in the Company and the benefits of the
proposed acquisition. During this meeting, FMC mentioned that they had visited
the Company's facility in Erie, Pennsylvania. Mr. Tiner stated that the
Company's Board of Directors would consider FMC's proposal at a yet unscheduled
Board meeting.
In response to questions raised by Mr. Tiner at the April 18th meeting, Mr.
Burt called Mr. Tiner on April 19th and told him that FMC was willing to
consider those items if further information could be supplied. Mr. Burt also
pressed Mr. Tiner for rapid consideration of the proposed acquisition by the
Company's Board of Directors.
On April 28, 1995, Mr. Tiner called Mr. Burt to schedule a meeting in Houston
for May 1, 1995, to discuss the outcome of the meeting of the Company's Board
of Directors.
On May 1, 1995, Mr. Burt met with Mr. Tiner in Houston. Certain aspects of
such meeting are described in the letter reproduced below.
On May 5, 1995, the Purchaser commenced the Offer and Mr. Burt sent the
following letter to Mr. Tiner and the other members of the Company's board of
directors:
May 5, 1995
Board of Directors
Moorco International Inc.
2800 Post Oak Blvd. Suite 5701
Houston, TX 77056-6111
Attention: Michael L. Tiner
President and Chief Executive Officer
Dear Mr. Tiner:
More than a month ago, FMC proposed to enter into negotiations to acquire
Moorco. We have waited patiently, hoping to enter into a constructive dialogue
regarding a transaction that would maximize your stockholders' value. We are
extremely disappointed to have learned that your board has responded with an
unreasonable set of conditions and threats regarding such discussions.
Specifically, your characterization of our cash offer of $20 per share as
grossly inadequate is inconsistent with traditional and reasonable valuation
measures and not at all justified. Your insistence upon our agreeing to a one-
year standstill is inconsistent with the objective of delivering to your
stockholders a full and fair value in a timely fashion. Finally, your threat of
excluding FMC from a process leading to the sale of the company, should one be
initiated by Moorco, is contrary to the best interests of your stockholders.
When I accepted your invitation to meet with you in Houston on May 1, I was
hopeful we could begin negotiations on our April 3 proposal, which we discussed
in further detail with you on April 18. I was disappointed with your prepared
statement that unjustifiably labeled our proposal "grossly inadequate," despite
the fact that it represented a price 45 percent higher than the March 31, 1995
closing market price of Moorco stock, the last trading day prior to our letter
of April 3, and 21.5 times Moorco's latest 12-month net income.
23
<PAGE>
Most disturbing of all, however, were the unreasonable conditions and threats
you outlined.
You demanded that FMC enter into a one-year standstill agreement with Moorco
in order to receive any further information that might support a value in
excess of our $20 per share proposal. I indicated our willingness to consider
the idea of an additional 30-day standstill, as no serious or dedicated
analysis and negotiation should require more than 60 days (the time since our
offer, plus an additional 30 days). A one-year standstill is clearly an attempt
to impose a delay to the detriment of your stockholders and FMC. Furthermore,
it creates uncertainty among your customers and your employees about the
company's future prospects and value.
You and your representatives also stated that if we do not sign the
standstill, you would exclude FMC from or keep us outside any process regarding
the sale of Moorco. This threat to tilt the playing field against us and not
employ a fair process that includes all interested parties is inconsistent with
the best interests of your stockholders.
In light of all this, we have reluctantly concluded that our only alternative
is to pursue this transaction by going directly to Moorco's stockholders with
our offer. Therefore, today we have commenced a tender offer for all
outstanding Moorco shares, at $20 per share in cash.
As we discussed at our April 18 meeting, the logic and fit of our proposal
are as compelling as ever:
. FMC's strategy is to combine Moorco's business strengths with FMC's
strengths in its Energy and Transportation Equipment Group and grow the
combined businesses. Specifically, we see the ability to do this as a
result of the geographic synergies we outlined with regard to the North
Sea, the customer synergies we discussed in building and extending
relationships with the oil field services companies, and the natural
product fit clearly evident between Moorco's meters and FMC's marine
loading systems.
. FMC would provide Moorco with substantial size, a global presence,
established international business relationships and financial strength.
We expect the growth from the combined entity will be substantial and
will offer new opportunities for Moorco's people. We have respect for
your organization, and we need Moorco's employees to realize the
potential of the combination. In addition, Moorco fits with FMC's growth
strategy to be a global supplier to the oil field of the future. We are
determined to be a strong competitor, and we are willing to commit the
human and financial resources necessary to achieve that goal.
We would still prefer to have a constructive dialogue and negotiate an
agreement. Although we have commenced a tender offer, we remain interested in
entering negotiations with you to reach an agreement that could be approved by
your board of directors. That course would truly be in the best interests of
your stockholders.
Sincerely,
FMC Corporation
Robert N. Burt
Chairman and Chief Executive Officer
On May 5, 1995, the Purchaser also delivered three letters to the Company. In
the first letter, FMC requested that the Board make the Rights and (S) 203 of
Delaware Law inapplicable to the Offer, and to take certain other actions.
In the second and third letters, FMC requested a list of stockholders and
security position listings pursuant to its rights under the Exchange Act and
Delaware Law.
24
<PAGE>
Also on May 5, 1995, FMC commenced litigation in the Court of Chancery of the
State of Delaware against the Company and members of its Board of Directors
seeking, among other things, the following:
(a) A declaratory judgment that the defendants have breached their
fiduciary duties by delaying negotiations, refusing to negotiate actively
with FMC and threatening to exclude FMC from any process for the sale of
the Company;
(b) An order preliminarily and permanently enjoining the defendants to
carry out their fiduciary duties by
(i) promptly, actively and in good faith negotiating with FMC; and
(ii) not excluding FMC from any auction or other process that may be
instituted by the Company and that may lead to an extraordinary
transaction involving the Company.
(c) An order preliminarily and permanently enjoining the Company, the
defendant directors, the Company's officers, agents, servants, employees
and those persons who act in concert or participation with them who receive
actual notice thereof, from taking any action to effectuate the "flip-in,"
"flip-over" or other terms of the Rights Agreement and ordering the
defendant directors to redeem the Rights; and
(d) An order preliminarily and permanently enjoining the defendants from
bringing suit or litigation in any other forum based on or relating to the
facts alleged in the complaint.
FMC intends to file on May 8, 1995 with the Federal Trade Commission (the
"FTC") and the Antitrust Division of the Department of Justice (the "Antitrust
Division") a Premerger Notification and Report Form under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), with respect to
the Offer. Accordingly, the waiting period under the HSR Act applicable to the
Offer will expire at 11:59 P.M., New York City time, on May 22, 1995, unless
prior to the expiration or termination of the waiting period, the FTC or the
Antitrust Division extends the waiting period by requesting additional
information from the Parent. If such a request is made, the waiting period
applicable to the Offer will expire on the tenth calendar day after the date of
substantial compliance by the Parent with such request. Thereafter, the waiting
period may only be extended by court order.
11. PURPOSE OF THE OFFER; PLANS FOR THE COMPANY
Purpose of the Offer
The purpose of the Offer and the Proposed Merger is to acquire control of,
and the entire equity interest in, the Company. The Purchaser currently
intends, as soon as practicable following completion of the Offer, to propose
and seek to have the Company consummate the Proposed Merger. The purpose of the
Proposed Merger is to acquire all Shares not tendered and purchased pursuant to
the Offer or otherwise. Pursuant to the Proposed Merger, each then outstanding
Share (other than Shares owned by FMC or any of its wholly owned subsidiaries,
Shares held in the treasury of the Company, and Shares held by stockholders who
perfect appraisal rights under the Delaware Law) would be converted into the
right to receive cash in the same amount as received per Share in the Offer,
and the Company would become a wholly owned subsidiary of FMC.
Although the Purchaser will seek to have the Company consummate the Proposed
Merger as soon as practicable after consummation of the Offer, if the Board of
Directors of the Company opposes the Offer and the Proposed Merger, certain
terms of the Rights, the Delaware Law, the Company's Certificate and the
Company's Bylaws may affect the ability of the Purchaser to consummate the
Offer, to obtain control of the Company and to effect the Proposed Merger.
Accordingly, the timing of the consummation of the Offer and
25
<PAGE>
the Proposed Merger will depend on a variety of factors and legal requirements,
the actions of the Board of Directors of the Company, the number of Shares (if
any) acquired by the Purchaser pursuant to the Offer, and whether the Minimum
Condition, the Rights Condition and the Business Combination Condition are
satisfied or waived.
FMC intends to continue to seek to negotiate with the Company with respect to
its acquisition proposal. The Purchaser reserves the right to amend or
terminate the Offer (including, without limitation, amending the purchase
price) if such negotiations result in an agreement with the Company for the
acquisition of the Company. See Section 14. FMC and the Purchaser reserve the
right to acquire additional Shares following expiration of the Offer in open
market purchases, through a tender offer, in privately negotiated transactions
or otherwise.
THIS OFFER TO PURCHASE DOES NOT CONSTITUTE A SOLICITATION OF A PROXY, CONSENT
OR AUTHORIZATION FOR OR WITH RESPECT TO THE ANNUAL MEETING OR ANY SPECIAL
MEETING OR OTHER MEETING OF THE COMPANY'S STOCKHOLDERS OR ANY ACTION IN LIEU
THEREOF. ANY SUCH SOLICITATION WHICH FMC OR THE PURCHASER MAY MAKE, WILL BE
MADE ONLY PURSUANT TO SEPARATE PROXY SOLICITATION MATERIALS COMPLYING WITH ALL
APPLICABLE REQUIREMENTS OF SECTION 14(A) OF THE EXCHANGE ACT, AND THE RULES AND
REGULATIONS PROMULGATED THEREUNDER.
Plans for the Company
FMC does not have any current plans to dispose of any businesses or other
assets of the Company or to effect any changes in its operations. If FMC
acquires control of the Company, it intends to conduct a further review of the
Company and its subsidiaries and their respective assets, businesses, corporate
structure, capitalization, operations, properties, policies, management and
personnel and to integrate the Company's principal subsidiaries into FMC's
Fluid Control Division and Energy and Transportation Equipment Group. After
such review, it is possible that FMC might modify its current plans not to
dispose of any businesses or other assets of the Company and not to effect any
changes in the Company's operations other than as described above.
The exact timing and details of the Proposed Merger will necessarily depend
upon a variety of factors. Although the Purchaser currently intends to propose
the Proposed Merger generally on the terms described in this Offer to Purchase,
it is possible that as a result of substantial delays in the Purchaser's
ability to effect such a transaction, information hereafter obtained by FMC or
the Purchaser, the terms of existing debt of the Company, changes in general
economic or market conditions or in the business of the Company or other
currently unforeseen factors, such a transaction may not be so proposed, may be
delayed or abandoned or may be proposed on different terms. In addition, if the
Rights Condition or the Business Combination Condition is not satisfied and the
Purchaser waives any such condition and consummates the Offer (which it is not
obligated to do), it may be impossible or impractical to consummate the
Proposed Merger, at least for a significant period of time. Accordingly, the
Purchaser expressly reserves the right not to propose the Proposed Merger or to
propose such a business combination on terms other than those described in this
Offer to Purchase. Specifically, but without limitation, the Purchaser reserves
the right to propose consideration in a merger or other business combination
consisting of securities or other consideration different from those described
in this Offer to Purchase and having a value more or less than the
consideration described in this Offer to Purchase.
Except as described in this Offer to Purchase, neither FMC nor the Purchaser
has any current plans or proposals that would relate to or would result in (i)
an extraordinary corporate transaction, such as a merger, reorganization or
liquidation, involving the Company or any of its subsidiaries, (ii) a sale or
transfer of a material amount of assets of the Company or any of its
subsidiaries, (iii) any change in the present Board of Directors or management
of the Company, (iv) any material changes in the present capitalization or
dividend policy of the Company, (v) any other material change in the Company's
corporate structure or business, (vi) causing a class of securities of the
Company to be delisted from a national securities exchange or to cease to
26
<PAGE>
be authorized to be quoted in an inter-dealer quotation system of a registered
national securities association or (vii) a class of equity securities of the
Company becoming eligible for termination of registration pursuant to Section
12(g)(4) of the Exchange Act.
If the Offer is consummated as contemplated, the Purchaser will hold a
majority of the Shares outstanding and will therefore hold sufficient Shares to
approve the Proposed Merger. However, in light of the restrictions described
below, there can be no assurance that the Proposed Merger will be proposed to
stockholders of the Company or be consummated or as to the timing thereof.
Nonetheless, if the Board of Directors of the Company redeems (or otherwise
makes inapplicable) the Rights and approves the Offer and the Proposed Merger
for purposes of the Business Combination Law, the Rights Condition and the
Business Combination Condition would be satisfied.
Neither FMC nor the Purchaser can give any assurance as to whether, as a
result of information hereafter obtained by either FMC or the Purchaser,
changes in general economic or market conditions or in the business of the
Company, or other presently unforeseen factors, the Proposed Merger will be
submitted to the Company's stockholders or whether the Proposed Merger will be
delayed or abandoned. Whether or not the Proposed Merger is consummated, FMC
and the Purchaser reserve the right to acquire additional Shares following the
expiration of the Offer through private purchases, market transactions, tender
or exchange offers or otherwise on terms and at prices that may be more or less
favorable than those of the Offer or, subject to any applicable legal
restrictions, to dispose of any or all Shares acquired by FMC and the
Purchaser.
Statutory Requirements
Board Approval; Stockholder Approval. Under the Delaware Law, except in the
case of a short-form merger as described below, the Proposed Merger would
require the approval of the Company's Board of Directors prior to its
submission to a vote of stockholders.
In addition, in the case of a cash merger such as the Proposed Merger,
Delaware Law requires the approval of the agreement of merger by the
stockholders of the acquired corporation by the affirmative vote of the holders
of a majority of all the outstanding shares of stock entitled to vote, except
in the case of a short-form merger as described below. According to the
Company's Certificate, the Shares are the only securities of the Company
entitling the holders thereof to voting rights. Assuming that the Offer is
consummated and that the Minimum Condition and the other conditions to the
Offer are satisfied, the Purchaser will hold a majority of the Shares
outstanding and will therefore hold sufficient Shares to ensure stockholder
approval of the Proposed Merger.
Delaware Law also provides that if a parent company owns at least 90% of each
class of stock of a subsidiary, the parent company can effect a short-form
merger with that subsidiary without the action of the Subsidiary's Board of
Directors or the other stockholders of the subsidiary. Accordingly, if, as a
result of the Offer or otherwise, the Purchaser acquires or controls the voting
power of at least 90% of the Shares, the Purchaser could effect the Proposed
Merger without prior notice to, or any action by, the Company's Board of
Directors or any other stockholder of the Company.
The Purchaser intends to take such action as may be necessary and lawful to
secure control of the Board of Directors of the Company following the
consummation of the Offer. In this connection, in the event that after the
Minimum Condition is satisfied and the Offer is consummated, the Purchaser will
control sufficient votes to replace the entire Board of Directors of the
Company. In the event the Purchaser obtains control of the Company's Board of
Directors, the Purchaser would expect to seek approval of the Proposed Merger
as soon as practicable thereafter, consistent with the fiduciary obligations of
the Board.
Delaware Business Combination Law. In general, the Business Combination Law
provides that a Delaware corporation such as the Company may not engage in any
Business Combination (defined to include
27
<PAGE>
a variety of transactions, including, without limitation, a merger) with any
Interested Stockholder (defined generally as a person that, directly or
indirectly, beneficially owns 15% or more of the corporation's outstanding
voting stock), or any affiliate of an Interested Stockholder, for three years
after the date on which the Interested Stockholder becomes an Interested
Stockholder. The three-year prohibition on Business Combinations with
Interested Stockholders (the "Business Combination Prohibition") does not apply
if certain conditions, described below, are satisfied. The Business Combination
Law provides that a "beneficial owner" of voting stock includes any person who,
individually or together with any of its affiliates or associates, has (i) the
right to acquire voting stock (whether such right is exercisable immediately or
only after the passage of time) pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options or otherwise, (ii) the right to vote such stock pursuant to
any agreement, arrangement or understanding (excluding any right to vote
arising solely from a revocable proxy granted in response to a public proxy
solicitation), or (iii) any agreement, arrangement or understanding for the
purposes of acquiring, holding, voting or disposing of such stock with any
other person that beneficially owns, directly or indirectly, such stock.
The Business Combination Prohibition does not apply to a particular Business
Combination between a corporation and a particular Interested Stockholder if
(i) prior to the date such Interested Stockholder became an Interested
Stockholder, the board of directors of such corporation approved either the
Business Combination or the transaction which resulted in the stockholder
becoming an Interested Stockholder, or (ii) upon consummation of the
transaction which resulted in the stockholder becoming an Interested
Stockholder, the Interested Stockholder owned at least 85% of the voting stock
of the corporation outstanding at the time the transaction commenced, excluding
for purposes of determining the number of shares outstanding those shares held
by (a) persons who are directors and also officers of the corporation and (b)
employee stock plans in which employee participants do not have the right to
determine confidentially whether shares held subject to the plan will be
tendered in a tender or exchange offer, or (iii) on or subsequent to the date
the stockholder becomes an Interested Stockholder, the Business Combination is
(a) approved by the board of directors of the corporation and (b) authorized at
an annual or special meeting of stockholders by the affirmative vote of at
least 66 2/3% of the outstanding voting stock of the corporation which is not
owned by the Interested Stockholder.
The foregoing summary of the Business Combination Law does not purport to be
complete and is qualified in its entirety by reference to the provisions of the
Business Combination Law.
The Rights
The following description is based upon the Company's 8-K. All statements
with respect to the Rights (as defined in the Introduction) and the Rights
Agreement (as defined in the Introduction) are based solely upon the
description of such Rights in the Company's 8-K. Although each of FMC and the
Purchaser has no knowledge that any such information is untrue, neither FMC nor
the Purchaser takes any responsibility for the accuracy or completeness of the
information contained in the Company's 8-K, or for any failure by the Company
to disclose events that may have occurred and may affect the significance or
accuracy of any such information but which are unknown to FMC and the
Purchaser. The summary of the Rights and Rights Agreement contained in this
Offer to Purchase does not purport to be complete, and is qualified in its
entirety by reference to the Company's 8-K and the exhibits thereto.
On November 8, 1994 the Board of Directors of the Company declared a dividend
of one Right for each outstanding Share, to stockholders of record at the close
of business on November 18, 1994. Each Right entitles the registered holder to
purchase from the Company a unit consisting of one-hundredth of a share (a
"Fractional Share") of Series A Junior Participating $1.00 Par Preferred Stock,
par value $1.00 per share (the "Preferred Stock"), at a purchase price of
$65.00 per Fractional Share, subject to adjustment (the "Purchase Price"). The
description and terms of the Rights are set forth in the Rights Agreement.
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<PAGE>
Initially, the Rights were attached to all certificates representing
outstanding Shares, and no separate certificates for the Rights ("Rights
Certificates") were distributed. The Rights will separate from the Shares and a
"Distribution Date" will occur upon the earlier of (i) 10 days following a
public announcement that a person or group of affiliates or associated persons
(an "Acquiring Person") has acquired, or obtained the right to acquire,
beneficial ownership of 15% or more of the outstanding Shares (the date of the
announcement being the "Stock Acquisition Date"), or (ii) 10 business days (or
such later date as may be determined by the Company's Board of Directors before
the Distribution Date occurs) following the commencement of a tender offer or
exchange offer that would result in a person's becoming an Acquiring Person.
Certain inadvertent acquisitions will not result in a person's becoming an
Acquiring Person if the person promptly divests itself of sufficient Shares.
Until the Distribution Date, (a) the Rights will be evidenced by the Share
certificates (together with a copy of a summary of rights or bearing the
notation referred to below) and will be transferred with and only with such
Share certificates, (b) new Share certificates issued after November 18, 1994
will contain a notation incorporating the Rights Agreement by reference and (c)
the surrender for transfer of any certificate for Shares (with or without a
copy of a summary of rights) will also constitute the transfer of the Rights
associated with the Shares represented by such certificate.
The Rights are not exercisable until the Distribution Date and will expire at
the close of business on November 8, 2004, unless earlier redeemed or exchanged
by the Company as described below.
As soon as practicable after the Distribution Date, Rights Certificates are
to be mailed to holders of record of Shares as of the close of business on the
Distribution Date and, from and after the Distribution Date, the separate
Rights Certificates alone will represent the Rights. All Shares issued prior to
the Distribution Date are to be issued with Rights. Shares issued after the
Distribution Date in connection with certain employee benefit plans or upon
conversion of certain securities will be issued with Rights. Except as
otherwise determined by the Board of Directors, no other Shares issued after
the Distribution Date will be issued with Rights.
In the event (a "Flip-In Event") that a person becomes an Acquiring Person
(except pursuant to a tender or exchange offer for all outstanding Shares at a
price and on terms that a majority of the independent Continuing Directors (as
hereinafter defined) determines to be fair and otherwise in the best interests
of the Company and its stockholders (a "Permitted Offer")), each holder of a
Right will thereafter have the right to receive, upon exercise of such Right, a
number of Shares (or, in certain circumstances, cash, property or other
securities of the Company) having a Current Market Price (as defined in the
Rights Agreement) equal to two times the exercise price of the Right.
Notwithstanding the foregoing, following the occurrence of any Flip-In Event,
all Rights that are, or (under certain circumstances specified in the Rights
Agreement) were, beneficially owned by or transferred to any Acquiring Person
(or by certain related parties) will be null and void in the circumstances set
forth in the Rights Agreement. However, Rights are not exercisable following
the occurrence of any Flip-In Event until such time as the rights are no longer
redeemable by the Company as set forth below.
For example, at an exercise price of $65.00 per Right, each Right not owned
by an Acquiring Person (or by certain related parties) following an event set
forth in the preceding paragraph would entitle its holder to purchase $130.00
worth of Shares (or other consideration, as noted above), based upon its then
Current Market Price, for $65.00. Assuming that the Shares had a Current Market
Price of $20 per share at such time, the holder of each valid Right would be
entitled to purchase 6.50 Shares for $65.00.
In the event (a "Flip-Over Event") that, at any time from and after the time
an Acquiring Person becomes such, (i) the Company is acquired in a merger or
other business combination transaction (other than certain mergers that follow
a Permitted Offer), or (ii) 50% or more of the Company's assets or earning
power is sold or transferred, each holder of a Right (except Rights that
previously have been voided as set forth above) shall thereafter have the right
to receive, upon exercise, a number of shares of Shares of the acquiring
company having a Current Market Price equal to two times the exercise price of
the Right. Flip-In Events and Flip-Over Events are collectively referred to as
"Triggering Events."
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The Purchase Price payable, and the number of Fractional Shares of Preferred
Stock or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event of
a stock dividend on, or a subdivision, combination or reclassification of, the
Preferred Stock, (ii) if holders of the Preferred Stock are granted certain
rights or warrants to subscribe for Preferred Stock or convertible securities
at less than the current market price of the Preferred Stock, or (iii) upon the
distribution to holders of the Preferred Stock of evidences of indebtedness or
assets (excluding regular quarterly cash dividends) or of subscription rights
or warrants (other than those referred to above).
With certain exceptions, no adjustment in the Purchase Price will be required
until cumulative adjustments amount to at least 1% of the Purchase Price. No
fractional shares of Preferred Stock that are not integral multiples of
Fractional Shares are required to be issued and, in lieu thereof, an adjustment
in cash may be made based on the market price of the Preferred Stock on the
last trading date prior to the date of exercise. Pursuant to the Rights
Agreement, the Company reserves the right to require prior to the occurrence of
a Triggering Event that, upon any exercise of Rights, a number of Rights be
exercised so that only whole shares of Preferred Stock will be issued.
At any time until 10 days following the first date of public announcement of
the occurrence of a Flip-In Event, the Company may redeem the Rights in whole,
but not in part, at a price of $.01 per Right, payable, at the option of the
Company, in cash, Shares or such other consideration as the Board of Directors
may determine (the "Redemption Price"). Under certain circumstances set forth
in the Rights Agreement, the decision to redeem shall require the concurrence
of a majority of the Continuing Directors. Immediately upon the effectiveness
of the action of the Board of Directors ordering redemption of the Rights,
with, where required, the concurrence of the Continuing Directors, the Rights
will terminate and the only right of the holders of Rights will be to receive
the Redemption Price.
The term "Continuing Director" means any member of the Board of Directors of
the Company, while such person is a member of the Board of Directors of the
Company, who is not an Acquiring Person, or any Affiliate (as defined in the
Rights Agreement) or Associate (as defined in the Rights Agreement) of an
Acquiring Person, or a nominee or representative of an Acquiring Person or of
any such Affiliate or Associate, if (i) such person was a member of the Board
of Directors of the Company prior to the time a person becomes an Acquiring
Person or (ii) such person's nomination for election or election to the Board
of Directors of the Company is recommended or approved by a majority of the
then Continuing Directors.
At any time after the occurrence of a Flip-In Event and prior to a person's
becoming the beneficial owner of 50% or more of the Shares then outstanding,
the Company (with the concurrence of a majority of the Continuing Directors)
may exchange the Rights (other than Rights owned by an Acquiring Person or an
affiliate or an associate of an Acquiring Person, which will have become void),
in whole or in part, at an exchange ratio of one Share (and/or other equity
securities deemed to have the same value as one Share per Right) subject to
adjustment.
Until a Right is exercised, the holder thereof, as such, will have no rights
as a stockholder of the Company, including, without limitation, the right to
vote or to receive dividends. Stockholders may, depending upon the
circumstances, recognize taxable income in the event that the Rights become
exercisable for Shares (or other consideration) of the Company or for the
Shares of the acquiring company as set forth above or are exchanged as provided
in the preceding paragraph.
Other than the Redemption Price, any of the provisions of the Rights
Agreement may be amended by the Board of Directors of the Company (in certain
circumstances, with the concurrence of the Continuing Directors) as long as the
Rights are redeemable. Thereafter, the provisions of the Rights Agreement may
be amended by the Board of Directors (in certain circumstances, with the
concurrence of the Continuing Directors) in order to cure any ambiguity, defect
or inconsistency, to make changes that do not materially adversely affect the
interests of holders of Rights (excluding the interests of any Acquiring
Person), or to shorten or lengthen any time period under the Rights Agreement;
provided, however, that no amendment to lengthen the time period governing
redemption shall be made at such time as the Rights are not redeemable.
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Until a Right is exercised, the holder thereof, as such, will have no rights
as a stockholder of the Company, including, without limitation, the right to
vote or to receive dividends.
The foregoing summary of the Rights Agreement does not purport to be complete
and is qualified in its entirety by reference to the Company's 8-K and the text
of the Rights Agreement as set forth as an exhibit thereto, filed with the
Commission, copies of which may be obtained in the manner set forth in Section
8.
If the Rights Condition is not satisfied and the Purchaser elects, in its
sole discretion, to waive the Rights Condition and consummate the Offer, and if
there are outstanding Rights which have not been acquired by the Purchaser, the
Purchaser will evaluate its alternatives. Such alternatives could include
purchasing additional Rights in the open market, in privately negotiated
transactions, in another tender or exchange offer or otherwise. Any such
additional purchase of Rights could be for cash or other consideration. Under
such circumstances, the Proposed Merger might be delayed or abandoned as
impracticable. The form and amount of consideration to be received by the
holders of Shares in the Proposed Merger, if consummated, might be subject to
adjustment to compensate the Purchaser for, among other things, the costs of
acquiring Rights and a portion of the potential dilution cost to the Purchaser
of Rights not owned by the Purchaser and its wholly owned subsidiaries at the
time of the Proposed Merger. In such event, the consideration paid for Shares
in the Proposed Merger could be substantially less than the consideration paid
in the Offer. In addition, the Purchaser may elect under such circumstances not
to consummate the Proposed Merger.
UNLESS AND UNTIL THE PURCHASER DECLARES THAT THE RIGHTS CONDITION IS
SATISFIED, STOCKHOLDERS WILL BE REQUIRED TO TENDER ONE ASSOCIATED RIGHT FOR
EACH SHARE TENDERED IN ORDER TO EFFECT A VALID TENDER OF SUCH SHARE. IF THE
DISTRIBUTION DATE DOES NOT OCCUR PRIOR TO THE EXPIRATION DATE, A TENDER OF
SHARES WILL ALSO CONSTITUTE A TENDER OF THE ASSOCIATED RIGHTS. SEE SECTIONS 1
AND 3.
Appraisal Rights
No appraisal rights are available in connection with the Offer. However, if
the Proposed Merger is consummated, stockholders of the Company will have
certain rights under Section 262 of the Delaware Law to dissent and demand
appraisal of, and payment in cash of the fair value of, their Shares. Such
rights, if the statutory procedures were complied with, could lead to a
judicial determination of the fair value (excluding any element of value
arising from the accomplishment or expectation of the Proposed Merger) required
to be paid in cash to such dissenting holders for their Shares. Any such
judicial determination of the fair value of Shares could be based upon
considerations other than, or in addition to, the price paid in the Offer and
the market value of the Shares, including, without limitation, asset values and
the investment value of the Shares. The value so determined could be more or
less than the purchase price per Share pursuant to the Offer or the
consideration per Share to be paid in the Proposed Merger.
In addition, several decisions by Delaware courts have held that, in certain
instances, a controlling stockholder of a corporation involved in a merger has
a fiduciary duty to the other stockholders that requires the merger to be fair
to such other stockholders. In determining whether a merger is fair to minority
stockholders, the Delaware courts have considered, among other things, the type
and amount of consideration to be received by the stockholders and whether
there were fair dealings among the parties. Although the remedies of rescission
or other damages are possible in an action challenging a merger as a breach of
fiduciary duty, decisions of the Delaware courts have indicated that in most
cases the remedy available in a merger that is found not to be "fair" to
minority stockholders is a damages remedy based on essentially the same
principles as an appraisal.
THE FOREGOING SUMMARY OF THE RIGHTS OF OBJECTING STOCKHOLDERS DOES NOT
PURPORT TO BE A COMPLETE STATEMENT OF THE PROCEDURES TO BE FOLLOWED BY
STOCKHOLDERS DESIRING TO EXERCISE ANY AVAILABLE DISSENTERS' RIGHTS. THE
PRESERVATION AND EXERCISE OF DISSENTERS' RIGHTS REQUIRE STRICT ADHERENCE TO THE
APPLICABLE PROVISIONS OF THE DELAWARE LAW.
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"Going Private" Transactions
The Commission has adopted Rule 13e-3 under the Exchange Act which is
applicable to certain "going private" transactions and which may under certain
circumstances be applicable to the Proposed Merger. However, Rule 13e-3 would
be inapplicable if (i) the Shares are deregistered under the Exchange Act prior
to the Proposed Merger or other business combination or (ii) the Proposed
Merger or other business combination is consummated within one year after the
purchase of the Shares pursuant to the Offer and the amount paid per Share in
the Proposed Merger or other business combination is at least equal to the
amount paid per Share in the Offer. If applicable, Rule 13e-3 requires, among
other things, that certain financial information concerning the fairness of the
proposed transaction and the consideration offered to minority stockholders in
such transaction be filed with the Commission and disclosed to stockholders
prior to the consummation of the transaction. The purchase of a substantial
number of Shares pursuant to the Offer may result in the termination of the
Company's registration under the Exchange Act. See Section 7. If such
registration were terminated, Rule 13e-3 would be inapplicable to the Proposed
Merger.
12. SOURCE AND AMOUNT OF FUNDS
The total amount of funds required by the Purchaser to purchase the Shares
pursuant to the Offer and the Proposed Merger and to pay fees and expenses
related to the Offer and the Proposed Merger is estimated to be approximately
$238 million. In addition, certain covenants in agreements relating to
outstanding debt of the Company could require prepayment by the Company of such
debt in the event that the Offer is consummated. In such event, the Purchaser
would intend to negotiate waivers of such covenants or to refinance such debt.
The Purchaser plans to obtain all funds needed for the Offer and the Proposed
Merger through capital contributions or intercompany borrowings which will be
made by FMC and/or various wholly owned direct or indirect subsidiaries of FMC
to the Purchaser. FMC and/or such subsidiaries plan to obtain such funds from
general corporate funds and through FMC's current Credit Agreements, dated
December 16, 1994, as amended, among FMC, the lenders listed therein and Morgan
Guaranty Trust Company of New York, as agent, or other uncommitted credit lines
from various banks (the "Credit Facilities"). The Credit Facilities provide for
revolving credit in an aggregate amount of $845 million for general corporate
purposes. As of April 28, 1995, approximately $400 million of indebtedness is
outstanding under the Credit Facilities. The Credit Agreements currently
restrict borrowings for the purpose of purchasing "margin securities" such as
the Shares. FMC expects to obtain an appropriate waiver under the Credit
Agreements, but, in the remote event that such waiver is not obtained, would be
able to obtain the necessary funds by borrowing under other existing credit
lines. FMC and its subsidiaries have adequate cash and financing sufficient to
consummate the Offer and the Proposed Merger, including, without limitation,
any required refinancing of outstanding debt of the Company.
The Credit Agreements provide for borrowings at stated rates based on: (i)
the Base Rate (as defined in the Credit Agreements), (ii) the Adjusted CD Rate
(as defined in the Credit Agreements) plus a margin (ranging from 0.265% to
0.625%) based on the rating of FMC's senior unsecured long-term indebtedness,
if any, as determined by certain recognized financial rating services and the
percentage of utilization under the Agreements, or (iii) the Adjusted London
Interbank Offered Rate (as defined in the Credit Agreements) plus a margin
(ranging from 0.14% to 0.50%) based on the rating of FMC's senior unsecured
long-term indebtedness, if any, as determined by certain recognized financial
rating services and the percentage of utilization under the Agreements. The
Credit Agreements also provide for Money Market Borrowings (as defined in the
Credit Agreements) which are based on quotations from banks in the bank group
usually at spreads over the London Interbank Offered Rate. Currently, all
outstanding borrowings were done under the Money Market Borrowing option at
spreads ranging from 11.5 basis points to 12.50 basis points per annum. The
existing Credit Agreements mature as follows: (i) $250 million on December 15,
1995, and (ii) $250 million on December 16, 1999. FMC pays fees of 0.10% and
0.15% per annum on the aggregate amounts of the commitments (as defined in the
Credit Agreements) whether used or unused. The Credit Agreements contain
covenants relating to, among other things, the maintenance of net worth, cash
flow and restrictions on the payment of dividends. The members of the bank
group providing borrowings under the Credit
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Agreements are Morgan Guaranty Trust Company of New York, Bank of America
National Trust and Savings Association, Bank of Montreal, The Bank of Nova
Scotia, CIBC, Inc., Nationsbank of North Carolina, N.A., Union Bank of
Switzerland, The Bank of New York, Commerzbank Aktiengesellschaft, Citibank,
N.A., National Westminster Bank PLC, The Northern Trust Company, Wachovia Bank
of Georgia, N.A., Barclays Bank PLC, The Chase Manhattan Bank N.A., Chemical
Bank, Corestates Bank N.A., Credit Lyonnais, Dai-Ichi Kangyo Bank, Ltd., the
Fuji Bank, Limited, and Swiss Bank Corporation.
FMC also has uncommitted money market lines of credits from the following
banks: Banco Central HispanoAmericano, Banque National de Paris, The Bank of
New York, Bank of Tokyo, Dai-Ichi Kangyo Bank, Ltd., The First National Bank of
Chicago, the Industrial Bank of Japan Limited, Morgan Guaranty Trust Company of
New York (London Branch), Sanwa Bank Limited, Societe Generale, and Wachovia
Bank of Georgia. These lines, which are subject to availability as determined
by the banks, are used actively by FMC. Loans are made at money market rates
for maturities ranging from overnight to 30 days. The effective rates on
currently outstanding borrowings range from 6.20% to 6.25% per annum.
The foregoing summary of the Credit Agreements is qualified in its entirety
by reference to the text of the Credit Agreements, which was filed as an
exhibit to the Purchaser's Tender Offer on Schedule 14D-1.
FMC expects that any borrowing to finance the Offer and the Proposed Merger
would be repaid from cash flow from the normal operations of FMC's business and
from other sources. No final decisions have been made concerning the method FMC
will employ to repay such indebtedness. Such decisions will be made based on
FMC's review from time to time of the advisability of particular actions, as
well as on prevailing interest rates and financial and other economic
conditions.
13. DIVIDENDS AND DISTRIBUTIONS
If, on or after April 3, 1995, the Company (i) splits, combines or otherwise
changes the Shares or its capitalization, (ii) acquires Shares or otherwise
causes a reduction in the number of Shares, (iii) issues or sells additional
Shares (other than the issuance of Shares reserved for issuance as of May 31,
1994 pursuant to the exercise of then outstanding stock options of the Company
or the Company's 1990 Stock Plan and 1987 Stock Plan in accordance with their
terms as publicly disclosed in the Company's 1994 10-K) or any shares of any
other class of capital stock, other voting securities or any securities
convertible into or exchangeable for, or rights (other than the Rights),
warrants or options, conditional or otherwise, to acquire, any of the foregoing
or (iv) discloses that it has taken any such actions, then, without prejudice
to the Purchaser's rights under Section 14, the Purchaser, in its sole
discretion, may make such adjustments in the purchase price and other terms of
the Offer and the Proposed Merger as it deems appropriate to reflect such
split, combination or other change or action, including, without limitation,
the Minimum Condition or the number or type of securities offered to be
purchased. The Company's regular quarterly cash dividends may be terminated
after the consummation of the Offer.
If on or after April 3, 1995, the Company declares or pays any dividend on
the Shares (other than regular quarterly cash dividends not in excess of $.055
per Share having a customary and usual record date) or any distribution
(including, without limitation, the issuance of additional Shares pursuant to a
stock dividend or stock split, the issuance of other securities or the issuance
of rights (other than the separation of the Rights from the Shares) for the
purchase of any securities) with respect to the Shares or Rights (other than
the redemption price for the Rights) that is payable or distributable to
stockholders of record on a date prior to the transfer into the name of the
Purchaser or its nominees or transferees on the Company's stock transfer
records of the Shares and Rights purchased pursuant to the Offer (except that
if the Rights are redeemed by the Company's Board of Directors, tendering
stockholders who are holders of record as of the applicable record date will be
entitled to receive and retain the Redemption Price for the Rights), and if
Shares are purchased in the Offer, then, without prejudice to the Purchaser's
rights under Section 14, (i) the purchase price per Share payable by the
Purchaser pursuant to the Offer shall be reduced by the amount of any such cash
dividend or cash distribution and (ii) any such non-cash dividend, distribution
(including, without
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limitation, additional Shares), issuance, proceeds or rights to be received by
the tendering stockholders shall (a) be received and held by the tendering
stockholders for the account of the Purchaser and will be required to be
promptly remitted and transferred by each tendering stockholder to the
Depositary for the account of the Purchaser, accompanied by appropriate
documentation of transfer or (b) at the direction of the Purchaser, be
exercised for the benefit of the Purchaser, in which case the proceeds of such
exercise will promptly be remitted to the Purchaser. Pending such remittance or
appropriate assurance thereof and subject to applicable law, the Purchaser will
be entitled to all rights and privileges as owner of any such non-cash
dividend, distribution, issuance, proceeds or rights and may withhold the
entire purchase price or deduct from the purchase price the amount or value
thereof, as determined by the Purchaser in its sole discretion.
14. CERTAIN CONDITIONS OF THE OFFER
Notwithstanding any other provision of the Offer, the Purchaser shall not be
required to accept for payment or, subject to any applicable rules and
regulations of the Commission, including, without limitation, Rule 14e-1(c)
under the Exchange Act (relating to the Purchaser's obligation to pay for or
return tendered Shares promptly after expiration or termination of the Offer),
to pay for any Shares tendered pursuant to the Offer, and may postpone the
acceptance for payment or, subject to the restriction referred to above,
payment for any Shares tendered pursuant to the Offer, and may extend, amend or
terminate the Offer (whether or not any Shares have theretofore been purchased
or paid for) if, in the sole judgment of the Purchaser, (i) any condition to
consummation of the Offer set forth in the Introduction to this Offer to
Purchase (the Minimum Condition, the Rights Condition and the Business
Combination Condition) has not been satisfied or (ii) at any time on or after
May 1, 1995 and before acceptance for payment of, or payment for, such Shares,
any of the following events shall occur or shall be deemed by the Purchaser to
have occurred, or FMC or the Purchaser shall have learned about any such event
applicable to or affecting the Company or any of its subsidiaries:
(a) there shall have been threatened, instituted or pending any action,
proceeding, application, claim or counterclaim by or before any court or
governmental, regulatory or administrative agency, authority or tribunal,
domestic, foreign or supranational (whether brought by the Company, an
affiliate of the Company or any other person or entity), which (1)
challenges or seeks to challenge the acquisition by the Purchaser of the
Shares or Rights (or any of them), restrains, prohibits or delays or seeks
to restrain, prohibit or delay the making or consummation of the Offer or
the Proposed Merger or any other merger or transaction involving the
Purchaser or any of its affiliates and the Company or any of its
subsidiaries, restrains, prohibits or delays or seeks to restrain, prohibit
or delay the performance of any of the contracts or other agreements or
arrangements entered into by FMC or any of its affiliates in connection
with the acquisition of the Company or the Shares or Rights (or any of
them), or seeks to obtain any damages in connection with any of the
foregoing, (2) makes or seeks to make the purchase of or payment for, some
or all of the Shares or Rights pursuant to the Offer, the Proposed Merger
or otherwise, illegal, or results in or may result in a delay in the
ability of the Purchaser to accept for payment or pay for some or all of
the Shares or Rights or to consummate the Proposed Merger, (3) imposes or
seeks to impose limitations on the ability of FMC, the Purchaser or the
Company or any of their respective affiliates or subsidiaries effectively
to acquire or hold, or requiring FMC, the Purchaser, the Company or any of
their respective affiliates or subsidiaries to dispose of or hold separate,
any portion of the assets or the business of FMC, the Purchaser, the
Company or any of their respective affiliates or subsidiaries or imposes or
seeks to impose limitations on the ability of FMC, the Purchaser, the
Company or any of their respective affiliates or subsidiaries to continue
to conduct, own or operate all or any portion of their businesses and
assets as heretofore conducted, owned or operated, (4) imposes or seeks to
impose or results in or may result in material limitations on the ability
of FMC, the Purchaser or any of their affiliates to exercise full rights of
ownership of the Shares or Rights purchased by them, including, but not
limited to, the right to vote the Shares purchased by them on all matters
properly presented to the stockholders of the Company, or the right to vote
any shares of capital stock of any subsidiary directly or indirectly owned
by the Company, (5) results in or may result in a material limitation or
diminution in the benefits expected to be derived by FMC and the Purchaser
as a result of the transactions
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contemplated by the Offer and the Proposed Merger, (6) imposes or seeks to
impose voting, procedural, price or other requirements in addition to those
under the Delaware Law and federal securities laws (each as in effect on
the date of this Offer to Purchase) in connection with the transactions
contemplated by the Offer and the Proposed Merger or any material condition
to the Offer that is unacceptable to the Purchaser or (7) otherwise
directly or indirectly relates to the Offer, the Proposed Merger or any
other business combination with the Company or which otherwise, in the sole
judgment of the Purchaser, might adversely affect the Company or any of its
subsidiaries or FMC, the Purchaser or any of their respective affiliates or
the value of the Shares; or
(b) other than the application of the waiting periods under the HSR Act
and the necessity for the approvals and other actions by any domestic,
foreign or supranational government or governmental, administrative or
regulatory authority or agency described in Section 15, any statute, rule,
regulation, judgment, decree, order or injunction shall have been proposed,
sought, promulgated, enacted, entered, enforced or shall be, or shall be
deemed to be, applicable to the Offer or the Proposed Merger or other
business combination between FMC, the Purchaser or any or their respective
affiliates and the Company, including, without limitation, any state
takeover statute or other similar statute or regulation, or any other
action shall have been taken, by any domestic, foreign or supranational
government or any governmental, administrative or regulatory authority or
agency or by any court or tribunal, in each case whether domestic, foreign
or supranational, that might, directly or indirectly, result in any of the
consequences referred to in clauses (1) through (7), inclusive, of
paragraph (a) above; or
(c) any change (or any condition, event or development involving a
prospective change) shall have occurred or be threatened in the business,
properties, assets, liabilities, capitalization, stockholders' equity,
condition (financial or otherwise), operations, management, key personnel,
licenses, permits, franchises, results of operations or prospects of the
Company or any of its subsidiaries, or in general political, market,
economic or financial conditions in the United States or abroad, which, in
the sole judgment of the Purchaser, is or may be materially adverse to the
Company or any of its subsidiaries or its stockholders, or the market price
of, or trading in, the Shares, or FMC or the Purchaser shall have become
aware of any facts which, in the sole judgment of the Purchaser, are or may
be materially adverse with respect to the value of the Company or any of
its subsidiaries or affiliates or the value of the Shares to FMC or the
Purchaser or any of their respective affiliates; or
(d) there shall have occurred (1) any general suspension of trading in,
or limitation on prices or the availability of quotations for, securities
on any national securities exchange or in the over-the-counter securities
market in the United States, (2) the declaration of any banking moratorium
or any suspension of payments in respect of banks in the United States, (3)
any material adverse change (or any existing or threatened condition, event
or development involving a prospective material adverse change) in United
States or any other currency exchange rates or a suspension of, or a
limitation on, the markets therefor, (4) the commencement of a war, armed
hostilities or other international or national calamity directly or
indirectly involving the United States, (5) any limitations (whether or not
mandatory) imposed by any governmental authority on, or any event which, in
the sole judgment of the Purchaser, might have material adverse
significance with respect to, the nature or extension of credit or further
extension of credit by banks or other lending institutions, (6) any
significant adverse change in the market price of the Shares or generally
in securities or financial markets in the United States or abroad,
including, without limitation, a decline of at least 15% in either the Dow
Jones Average of Industrial Stocks or the Standard & Poor's 500 Index from
that existing at the close of business on May 4, 1995 or (7) in the case of
any of the foregoing, a material acceleration or worsening thereof; or
(e) the Company or any of its subsidiaries shall have (1) issued,
distributed, pledged or sold, or authorized, proposed or announced the
issuance, distribution, pledge or sale of (A) any shares of capital stock
of any class (including, without limitation, the Shares), or securities
convertible into or exchangeable for any such shares, or any rights (other
than the Rights), warrants, or options to acquire any such shares or
convertible or exchangeable securities (other than the issuance of Shares
reserved for issuance upon the exercise of stock options outstanding on May
31, 1994 that were issued under the
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Company's 1990 Stock Plan or the Company's 1987 Stock Plan in accordance
with the publicly disclosed terms thereof on or prior to such date) or (B)
any other securities or rights in respect of, in lieu of, or in
substitution for, capital stock of the Company, (2) purchased or otherwise
acquired or caused a reduction in, or proposed or offered to purchase or
otherwise acquire, any Shares or other securities of the Company (except
for redemption of the Rights in accordance with the terms of the Rights
Agreement), (3) declared or paid, or proposed to be declared or paid, any
dividend or distribution on any shares of capital stock (other than regular
cash dividends on the Shares at a quarterly rate not in excess of $.055 per
Share or a distribution of the Rights Certificates in accordance with the
terms of the Rights Agreement and, in the event the Rights are redeemed,
the redemption price of the Rights), or issued, or authorized, recommended
or proposed the issuance of, any other distribution in respect of any
shares of capital stock, whether payable in cash, securities or other
property, or altered or proposed to alter any material term of any
outstanding security, (4) issued, distributed or sold, or authorized,
announced or proposed the issuance, distribution or sale of, any debt
securities or any securities convertible into or exchangeable for debt
securities or any rights, warrants or options entitling the holder thereof
to purchase or otherwise acquire any debt securities, or incurred, or
authorized or proposed the incurrence of, any debt other than in the
ordinary course of business and consistent with past practice, or any debt
containing burdensome covenants, (5) entered into any agreement for, or
authorized, recommended, proposed, effected or publicly announced its
intention to authorize, recommend, propose, enter into or cause (A) any
merger (other than the Proposed Merger), consolidation, liquidation,
dissolution, business combination, joint venture, acquisition of assets or
securities (other than a redemption of the Rights in accordance with the
Rights Agreement) or disposition of assets or securities other than in the
ordinary course of business, (B) any material change in its capitalization,
(C) any release or relinquishment of any material contract rights or (D)
any comparable event not in the ordinary course of business, (6) entered
into any agreement for, or authorized, recommended, proposed, effected or
announced its intention to authorize, recommend, propose, enter into or
cause, any transaction or arrangement which could adversely affect the
value of the Shares, (7) proposed, adopted or authorized or announced its
intention to propose, adopt or authorize any amendment to the Company's
Certificate or the Company's Bylaws or similar organizational documents or
(other than any amendment which delays the Distribution Date) the Rights
Agreement or (8) agreed in writing or otherwise to take any of the
foregoing actions; or
(f) a tender or exchange offer for some portion or all of any outstanding
securities of the Company or any of its subsidiaries or affiliates
(including, without limitation, the Shares or Rights) shall have been
publicly proposed to be made or shall have been made by another person
(including, without limitation, the Company or any of its subsidiaries or
affiliates), or it shall have been publicly disclosed or the Purchaser
shall have learned that (1) any person (including, without limitation, the
Company or any of its subsidiaries or affiliates), entity or "group" (as
defined in Section 13(d)(3) of the Exchange Act) shall have acquired or
proposed to acquire beneficial ownership of more than 5% of any class or
series of capital stock of the Company (including, without limitation, the
Shares or Rights) or its subsidiaries or shall have been granted any
warrant, option or right, conditional or otherwise, to acquire beneficial
ownership of more than 5% of any class or series of capital stock of the
Company (including, without limitation, the Shares or Rights) or its
subsidiaries, other than acquisitions of Shares for bona fide arbitrage
positions, (2) any such person, entity or group which has publicly
disclosed any such beneficial ownership of or right to acquire beneficial
ownership of more than 5% of any class or series of capital stock of the
Company (including, without limitation, the Shares or Rights) or its
subsidiaries prior to May 1, 1995 shall have acquired or proposed to
acquire beneficial ownership of additional shares of any class or series of
capital stock of the Company (including, without limitation, the Shares or
Rights) or its subsidiaries constituting more than 1% of such class or
series or shall have been granted any option or right to acquire beneficial
ownership of more than 1% of such class or series of capital stock of the
Company (including, without limitation, the Shares or Rights) or its
subsidiaries, (3) any group shall have been formed which beneficially owns
more than 5% of any class or series of capital stock of the Company
(including, without limitation, the Shares or Rights) or its subsidiaries,
(4) any person, entity
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or group shall have entered into a definitive agreement or an agreement in
principle or made a proposal with respect to a tender offer or exchange
offer for the Shares or Rights or a merger, consolidation or other business
combination with or involving the Company or its subsidiaries or (5) any
person, entity or group shall have filed a Premerger Notification and
Report Form under the HSR Act in order to, or made a public announcement
reflecting an intent to, acquire the Company or any of its subsidiaries or
assets or securities of the Company or any of its subsidiaries; or
(g) (1) the Company and FMC shall have reached an agreement or
understanding that the Offer be terminated or amended or the purchase or
payment for Shares be postponed pursuant thereto or (2) FMC, the Purchaser
or any of their respective affiliates shall have entered into a definitive
agreement or announced an agreement in principle with respect to the
Proposed Merger or any other business combination with the Company or any
of its affiliates or the purchase of any material portion of the securities
or assets of the Company or any of its subsidiaries; or
(h) the Company or any of its subsidiaries shall have entered into any
employment, severance or similar agreement, arrangement or plan with or for
the benefit of any of its employees or entered into or amended any
agreements, arrangements or plans so as to provide for increased or
accelerated compensation or payment or funding of the benefits to any such
employees as a result of or in connection with the transactions
contemplated by the Offer or the Proposed Merger or any other business
combination involving the Company or any of its subsidiaries or otherwise
amended any such agreement, arrangement or plan to make the same more
favorable to any such employee; or
(i) the Purchaser shall become aware (1) that any material contractual
right of the Company or any of its subsidiaries shall be impaired or
otherwise adversely affected or that any material amount of indebtedness of
the Company or any of its subsidiaries shall become accelerated or
otherwise become due or become subject to acceleration prior to its stated
due date, in any case with or without notice or the lapse of time or both
as a result of or in connection with the transactions contemplated by the
Offer or the Proposed Merger or any other business combination involving
the Company, (2) of any covenant, term or condition in any of the Company's
or any of its subsidiaries' instruments or agreements that has or may have
(whether considered alone or in the aggregate with other covenants, terms
or conditions), a material adverse effect on (x) the business, properties,
assets, liabilities, capitalization, stockholders' equity, condition
(financial or otherwise), operations, management, key personnel, licenses,
franchises, results of operations or prospects of the Company or any of its
subsidiaries (including, but not limited to, any event of default that may
result from the consummation of the Offer, the acquisition of control of
the Company or any of its subsidiaries or the Proposed Merger or any other
business combination involving the Company) or (y) the value of the Shares
in the hands of FMC, the Purchaser or any of their respective affiliates or
(z) the consummation by FMC, the Purchaser or any of their respective
affiliates of the Offer and the Proposed Merger or any other business
combination involving the Company or (3) that any report, document,
instrument, financial statement or schedule of the Company or any of its
subsidiaries filed with the Commission contained, when filed, an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading or
(j) except as may be required by law, the Company or any of its
subsidiaries shall have taken any action to adopt a new or terminate or
amend any existing employee benefit plan (as defined in Section 3(2) of the
Employee Retirement Income Security Act of 1974, as amended) of the Company
or any of its subsidiaries, or agreed in writing or otherwise to take any
such action; or
(k) any approval, permit, authorization, consent or other action of any
domestic, foreign or supranational governmental, administrative or
regulatory agency, authority or tribunal (including, without limitation,
those described in Section 15) required in connection with the Offer and
the Proposed Merger shall not have been obtained on terms satisfactory to
the Purchaser in its sole discretion.
The foregoing conditions are for the sole benefit of the Purchaser and its
affiliates and may be asserted by the Purchaser regardless of the circumstances
(including, without limitation, any action or inaction by the
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Purchaser or any of its affiliates) giving rise to any such condition or may be
waived by the Purchaser, in whole or in part, from time to time in its sole
discretion. The failure by the Purchaser at any time to exercise any of the
foregoing rights shall not be deemed a waiver of any such rights and each such
right shall be deemed an ongoing right and may be asserted at any time and from
time to time. Any determination by the Purchaser concerning any of the events
described in this Section 14 shall be final conclusive and binding upon all
parties.
A public announcement shall be made of a material change in, or waiver of,
such conditions, to the extent required by Rules 14d-4(c) and 14d-6(d) under
the Exchange Act and the Offer shall, in certain circumstances, be extended in
connection with any such change or waiver to the extent required by such rules.
The Purchaser acknowledges that the Commission believes that (1) if the
Purchaser is delayed in accepting the Shares it must either extend the Offer or
terminate the Offer and promptly return the Shares and (2) the circumstances in
which a delay in payment is permitted are limited and do not include
unsatisfied conditions of the Offer, except with respect to most regulatory
approvals.
15. CERTAIN LEGAL MATTERS; REQUIRED REGULATORY APPROVALS
Except as set forth in this Offer to Purchase, based on its review of
publicly available filings by the Company with the Commission and other
publicly available information regarding the Company, neither FMC nor the
Purchaser is aware of any licenses or regulatory permits that appear to be
material to the business of the Company and its subsidiaries, taken as a whole,
and that might be adversely affected by the Purchaser's acquisition of Shares
(and the indirect acquisition of the stock of the Company's subsidiaries) as
contemplated herein, or any filings, approvals or other actions by or with any
domestic, foreign or supranational governmental authority or administrative or
regulatory agency that would be required for the acquisition or ownership of
the Shares (or the indirect acquisition of the stock of the Company's
subsidiaries) by the Purchaser pursuant to the Offer as contemplated herein.
Should any such approval or other action be required, it is presently
contemplated that such approval or action would be sought except as described
below under "State Takeover Laws." Should any such approval or other action be
required, there can be no assurance that any such approval or action, if
needed, would be obtained without substantial conditions or that adverse
consequences might not result to the Company's or its subsidiaries' businesses,
or that certain parts of the Company's, FMC's, the Purchaser's or any of their
respective subsidiaries' businesses might not have to be disposed of or held
separate or other substantial conditions complied with in order to obtain such
approval or action or in the event that such approvals were not obtained or
such actions were not taken, any of which could cause the Purchaser to elect to
terminate the Offer without the purchase of the Shares thereunder. The
Purchaser's obligation to purchase and pay for Shares is subject to certain
conditions, including, without limitation, conditions with respect to
litigation and governmental actions. See the Introduction and Section 14 for a
description thereof.
State Takeover Laws
A number of states (including Delaware, where the Company is incorporated)
have adopted takeover laws and regulations which purport, to varying degrees,
to be applicable to attempts to acquire securities of corporations which are
incorporated in such states or which have or whose business operations have
substantial economic effects in such states, or which have substantial assets,
stockholders, principal executive offices or principal places of business
therein. To the extent that certain provisions of certain of these state
takeover statutes purport to apply to the Offer or the Proposed Merger, the
Purchaser believes that such laws conflict with federal law and constitute an
unconstitutional burden on interstate commerce. In 1982, the Supreme Court of
the United States, in Edgar v. Mite Corp., invalidated on constitutional
grounds the Illinois Business Takeovers Act which, as a matter of state
securities law, made takeovers of corporations meeting certain requirements
more difficult, and the reasoning in such decision is likely to apply to
certain other state
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takeover statutes. In 1987, however, in CTS Corp. v. Dynamics Corp. of America,
the Supreme Court of the United States held that the State of Indiana could, as
a matter of corporate law and, in particular, those aspects of corporate law
concerning corporate governance, constitutionally disqualify a potential
acquiror from voting on the affairs of a target corporation without the prior
approval of the remaining stockholders, provided that such laws were applicable
only under certain conditions. Subsequently, in TLX Acquisition Corp. v. Telex
Corp., a federal district court in Oklahoma ruled that the Oklahoma statutes
were unconstitutional insofar as they apply to corporations incorporated
outside Oklahoma in that they would subject such corporations to inconsistent
regulations. Similarly, in Tyson Foods, Inc. v. McReynolds, a federal district
court in Tennessee ruled that four Tennessee takeover statutes were
unconstitutional as applied to corporations incorporated outside Tennessee.
This decision was affirmed by the United States Court of Appeals for the Sixth
Circuit. In December 1988, a federal district court in Florida held in Grand
Metropolitan PLC v. Butterworth that the provisions of the Florida Affiliated
Transactions Act and Florida Control Share Acquisition Act were
unconstitutional as applied to corporations incorporated outside of Florida.
The Purchaser has not attempted to comply with any state takeover statutes in
connection with the Offer or the Proposed Merger. The Purchaser reserves the
right to challenge the validity or applicability of any state law allegedly
applicable to the Offer or the Proposed Merger and nothing in this Offer to
Purchase nor any action taken in connection herewith is intended as a waiver of
that right. In the event that it is asserted that one or more takeover statutes
apply to the Offer or the Proposed Merger, and it is not determined by an
appropriate court that such statute or statutes do not apply or are invalid as
applied to the Offer or the Proposed Merger, as applicable, the Purchaser may
be required to file certain documents with, or receive approvals from, the
relevant state authorities, and the Purchaser might be unable to accept for
payment or purchase Shares tendered pursuant to the Offer or be delayed in
continuing or consummating the Offer. In such case, the Purchaser may not be
obligated to accept for purchase, or pay for, any Shares tendered. See Section
14.
Antitrust
Under the HSR Act, and the rules and regulations that have been promulgated
thereunder by the FTC, certain acquisition transactions may not be consummated
until certain information and documentary material has been furnished for
review by the Antitrust Division and the FTC and certain waiting period
requirements have been satisfied. The acquisition of Shares pursuant to the
Offer is subject to such requirements. FMC intends to file on the date hereof
with the FTC and the Antitrust Division a Premerger Notification and Report
Form in connection with the purchase of Shares pursuant to the Offer. Under the
provisions of the HSR Act applicable to the Offer, the purchase of Shares
pursuant to the offer may not be consummated until the expiration of a 15-
calendar day waiting period following the filing by FMC. Accordingly, the
waiting period under the HSR Act applicable to such purchases of Shares
pursuant to the Offer should expire at 11:59 p.m., New York City time, on May
23, 1995, unless such waiting period is earlier terminated by the FTC and the
Antitrust Division or extended by a request from the FTC or the Antitrust
Division for additional information or documentary material prior to the
expiration of the waiting period. If, however, either the FTC or the Antitrust
Division were to request additional information or documentary material from
FMC, the waiting period would expire at 11:59 p.m., New York City time, on the
tenth calendar day after the date of substantial compliance by FMC with such
request. Thereafter, the waiting period could be extended only by court order
or by agreement. If the acquisition of Shares is delayed pursuant to a request
by the FTC or the Antitrust Division for additional information or documentary
material pursuant to the HSR Act, the Offer may, but need not, be extended and,
in any event, the purchase of and payment for Shares will be deferred until 10
days after the request is substantially complied with, unless the 10-day
extended period expires on or before the date when the initial 15-day period
would otherwise have expired or unless the waiting period is sooner terminated
by the FTC and the Antitrust Division. See Section 2. Only one extension of
such waiting period pursuant to a request for additional information is
authorized by the HSR Act and the rules promulgated thereunder, except by court
order. Any such extension of the waiting period
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will not give rise to any withdrawal rights not otherwise provided for by
applicable law. See Section 4. Although the Company is required to file certain
information and documentary material with the Antitrust Division and the FTC in
connection with the Offer, neither the Company's failure to make such filings
nor a request from the Antitrust Division or the FTC for additional information
or documentary material made to the Company will extend the waiting period.
The FTC and the Antitrust Division may scrutinize the legality under the
antitrust laws of transactions such as the proposed acquisition of Shares by
the Purchaser pursuant to the Offer. At any time before or after the purchase
by the Purchaser of Shares pursuant to the offer, the FTC and the Antitrust
Division could take such action under the antitrust laws as it deems necessary
or desirable, including, without limitation, seeking to enjoin the purchase of
Shares pursuant to the offer or seeking the divestiture of Shares purchased by
the Purchaser or the divestiture of substantial assets of FMC, its subsidiaries
or the Company. Private parties and state attorneys general may also bring
legal action under federal or state antitrust laws under certain circumstances.
Based upon an examination of publicly available information relating to the
businesses in which FMC and it subsidiaries and the Company and its
subsidiaries are engaged, FMC and the Purchaser believe that the Offer will not
violate the antitrust laws. Nevertheless, there can be no assurance that a
challenge to the Offer on antitrust grounds will not be made or, if such a
challenge is made, of the result. See Section 14.
EEA Merger Regulation. According to the Company's 1994 10-K, the Company
conducts substantial operations within the European Economic Area ("EEA") and
certain of the individual member states of the EEA. Regulation (EEC) No.
4064/89 (the "Merger Regulations") and Article 57 of the EEA Agreement require
that notices of concentrations with a "Community dimension" be provided to the
European Commission for review and approval for compatibility with the common
market prior to being put into effect. The Offer would be deemed to have a
"Community dimension" if the combined aggregate worldwide consolidated annual
revenues of both FMC and the Company exceed ECU 5 billion, if the Community-
wide annual revenues of each of FMC and the Company exceed ECU 250 million and
if both FMC and the Company do not receive more than two-thirds of their
respective Community-wide revenues from one and the same member state. Based
upon publicly available information contained in the Company's 1994 10-K, the
Purchaser does not believe that the Offer may be considered to have a
"Community dimension."
United Kingdom. According to the Company's 10-K, the Company conducts
business in the United Kingdom. The Purchaser understands that an acquisition
of the Company may come within the provisions of the United Kingdom Fair
Trading Act of 1973 and may be studied by the Office of Fair Trading to
establish whether the Director General of Fair Trading should recommend to the
Secretary of State for Trade and Industry that he refer the proposed
acquisition of the Monopolies and Mergers Commission which, in such event,
would be required to determine whether the proposed acquisition "operates, or
may be expected to operate, against the public interest." The Secretary of
State for Trade and Industry has statutory power to order, among other things,
a disinvestment if the Monopolies and Mergers Commission reports unfavorably on
an acquisition.
Federal Republic of Germany. According to the Company's 10-K, the Company
conducts business in the Federal Republic of Germany. The Act Against
Restraints of Competition of the Federal Republic of Germany (the "GWB Act")
provides for notice of certain intended transactions deemed to be mergers to be
filed with the German Cartel Office (the "Cartel Office"). Pursuant to the GWB
Act, the Cartel Office may issue a prohibition order with respect to any merger
of the Company's business operations in the Federal Republic of Germany with
those of the Purchaser or any of its affiliates, if the Cartel Office
determines that a market-dominating position in the Federal Republic of Germany
would be created or strengthened as a result of such merger, unless the
enterprises involved prove that such a merger would also lead to improvements
in competitive conditions that would outweigh the disadvantages of market
domination. The Cartel Office could order any appropriate remedies designed to
eliminate or restrict any anticompetititve effects in the Federal Republic of
Germany resulting from such a merger. The Purchaser is not aware of the exact
nature of the Company's interests in the Federal Republic of Germany, but
intends to give any notice to the Cartel Office which may be required.
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Other Foreign Approvals. According to the Company's 1994 10-K, the Company
also owns property and conducts business in a number of other foreign countries
and jurisdictions. In connection with the acquisition of the Shares pursuant to
the Offer, the laws of certain of those foreign countries and jurisdictions may
require the filing of information with, or the obtaining of the approval of,
governmental authorities in such countries and jurisdictions. The governments
in such countries and jurisdictions might attempt to impose additional
conditions on the Company's operations conducted in such countries and
jurisdictions as a result of the acquisition of the Shares pursuant to the
Offer or the Proposed Merger. There can be no assurance that the Purchaser will
be able to cause the Company or its subsidiaries to satisfy or comply with such
laws or that compliance or noncompliance will not have adverse consequences for
the Company or any subsidiary after purchase of the Shares pursuant to the
Offer or the Proposed Merger.
Margin Credit Regulations. Federal Reserve Board Regulations G, T, U and X
(the "Margin Credit Regulations") restrict the extension or maintenance of
credit for the purpose of buying or carrying margin stock, including the
Shares, if the credit is secured directly or indirectly thereby. Such secured
credit may not be extended or maintained in an amount that exceeds the maximum
loan value of the margin stock. Under the Margin Credit Regulations, the Shares
are presently margin stock and the maximum loan value thereof is generally 50%
of their current market value. The definition of "indirectly secured" contained
in the Margin Credit Regulations provides that the term does not include an
arrangement with a customer if the lender in good faith has not relied upon
margin stock as a collateral in extending or maintaining the particular credit.
16. CERTAIN FEES AND EXPENSES
Merrill Lynch is acting as FMC's financial advisor in connection with the
Offer and the Proposed Merger, and as Dealer Manager for the Offer. As
compensation for such services, FMC has to date paid Merrill Lynch a fee of
$400,000, $300,000 of which fee was payable upon FMC's making a publicly
disclosed proposal to effect an Acquisition Transaction (defined as a merger,
consolidation, reorganization or other business combination pursuant to which
the business of the Company is combined with FMC or one or more persons formed
by or affiliated with FMC). FMC has also agreed to pay Merrill Lynch a fee of
$1,500,000 (less any fees theretofore paid) contingent upon consummation of an
Acquisition Transaction. In addition, FMC has agreed to reimburse Merrill Lynch
for its reasonable out-of-pocket expenses, including, without limitation,
reasonable fees and disbursements of its counsel, incurred in connection with
the Offer and the Proposed Merger or otherwise arising out of Merrill Lynch's
engagement and to indemnify Merrill Lynch (and certain affiliated persons)
against certain liabilities and expenses, including, without limitation,
certain liabilities under the federal securities laws. Merrill Lynch may from
time to time in the future render various investment banking services to FMC
and its affiliates, for which it is expected it would be paid customary fees.
D.F. King & Co., Inc. has been retained by the Purchaser as Information Agent
in connection with the Offer. The Information Agent may contact holders of
Shares and Rights by mail, telephone, telex, telegraph and personal interview
and may request brokers, dealers and other nominee stockholders to forward
material relating to the Offer to beneficial owners of Shares and Rights. The
Purchaser will pay the Information Agent reasonable and customary compensation
for all such services in addition to reimbursing the Information Agent for
reasonable out-of-pocket expenses in connection therewith. The Purchaser has
agreed to indemnify the Information Agent against certain liabilities and
expenses in connection with the Offer, including, without limitation, certain
liabilities under the federal securities laws.
In addition, The Chase Manhattan Bank, N.A. has been retained as the
Depositary. The Purchaser will pay the Depositary reasonable and customary
compensation for its services in connection with the Offer, will reimburse the
Depositary for its reasonable out-of-pocket expenses in connection therewith
and will indemnify the Depositary against certain liabilities and expenses in
connection therewith, including, without limitation, certain liabilities under
the federal securities laws.
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Except as set forth above, neither FMC nor the Purchaser will pay any fees or
commissions to any broker, dealer or other person for soliciting tenders of
Shares and Rights pursuant to the Offer. Brokers, dealers, commercial banks and
trust companies and other nominees will, upon request, be reimbursed by FMC or
the Purchaser for customary clerical and mailing expenses incurred by them in
forwarding offering materials to their customers.
17. MISCELLANEOUS
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares or Rights residing in any jurisdiction in which
the making of the Offer or the acceptance thereof would not be in compliance
with the securities, blue sky or other laws of such jurisdiction. However, the
Purchaser may, in its discretion, take such action as it may deem necessary to
make the Offer in any jurisdiction and extend the Offer to holders of Shares in
such jurisdiction.
In any jurisdiction where the securities, blue sky or other laws require the
Offer to be made by a licensed broker or dealer, the Offer will be deemed to be
made on behalf of the Purchaser by the Dealer Manager or one or more registered
brokers or dealers that are licensed under the laws of such jurisdiction.
FMC and the Purchaser have filed with the Commission the Schedule 14D-1,
together with exhibits, pursuant to Rule 14d-3 of the General Rules and
Regulations under the Exchange Act, furnishing certain additional information
with respect to the Offer, and may file amendments thereto. Such Schedule 14D-1
and any amendments thereto, including exhibits, may be examined and copies may
be obtained from the office of the Commission in the same manner as described
in Section 9 with respect to information concerning the Company, except that
they will not be available at the regional offices of the Commission.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF FMC OR THE PURCHASER NOT CONTAINED IN THIS OFFER TO
PURCHASE OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, ANY SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. Neither the delivery of the Offer to Purchase nor any purchase
pursuant to the Offer shall, under any circumstances, create any implication
that there has been no change in the affairs of FMC, the Purchaser, the Company
or any of their respective subsidiaries since the date as of which information
is furnished or the date of this Offer to Purchase.
MII Acquisition Corp.
May 5 , 1995
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SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS
OF FMC AND THE PURCHASER
FMC CORPORATION
Set forth below are the name, business address and present principal
occupation or employment, and material occupations, positions, offices or
employments for the past five years of each director and executive officer of
FMC. Except as otherwise noted, the business address of each such person is 200
E. Randolph Drive, Chicago, Illinois 60601, and each such person is a United
States citizen. In addition, except as otherwise noted, each director and
executive officer of FMC has been employed in his or her present principal
occupation listed below during the last five years. Directors of FMC are
indicated by an asterisk.
Principal Occupation and Material Occupations,
NAME AND BUSINESS POSITIONS, OFFICES OR EMPLOYMENTS FOR PAST FIVE
ADDRESS YEARS
William F. Beck Mr. Beck is Executive Vice President of FMC. He has
held such position since 1994. Prior to holding
such position, Mr. Beck was Vice-President and
General Manager of FMC's Chemical Products Group
from 1986 to 1994. In addition, Mr. Beck was
President of FMC Europe from 1991 to 1994.
Robert N. Burt* Mr. Burt is Chairman of the Board and Chief
Executive Officer of FMC. Mr. Burt was elected a
Vice President of FMC in 1978 and Executive Vice
President in September 1988. He became President of
FMC in March 1990, and Chairman and Chief Executive
Officer in November 1991 and resigned as President
in 1993 upon the election of Mr. Brady to that
office. He is a Director of Phelps-Dodge
Corporation and a member of the Advisory Board of
United Defense, L.P., and he serves on the Board of
Trustees of the Orchestral Association of Chicago
and the Chicago Historical Society, and on the
Boards of Directors of Chemical Manufacturers
Association, the Rehabilitation Institute of
Chicago and the World Resource Institute.
William W. Mr. Boeschenstein retired as Chairman and Chief
Boeschenstein* One Executive Officer of Owens-Corning Fiberglas
SeaGate Suite 1530 Corporation in 1990. He was named Chairman of
Toledo, Ohio 43604 Owens-Corning in November 1981. Mr. Boeschenstein
is a Director of Owens-Corning Fiberglas and
Prudential Insurance Company of America.
Larry D. Brady* Mr. Brady was elected President of FMC in October
1993 and served as Executive Vice President since
September 1989. He also serves as Chairman and
Chief Executive Officer of FMC's 80-percent-owned
FMC Gold Company, a position he assumed in November
1991. He is a member of the Advisory Board of
United Defense, L.P. and he serves on the Executive
Committee of the National Association of
Manufacturers, the Board of Governors of the
Illinois Council on Economic Education and the Food
Industries International Trade council.
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B. A. Bridgewater, Jr.* Mr. Bridgewater became Chairman and Chief Executive
8300 Maryland Avenue Officer of Brown Group, Inc., in March 1985. Brown
St. Louis, Missouri Group is a diversified manufacturer and retailer of
63105 footwear. Mr. Bridgewater has also served as
President of Brown Group since 1990. He is a
director of McDonnell Douglas Corporation, ENSERCH
Corporation, Enserch Exploration, Inc. and
Boatmen's Bancshares, Inc.
Patricia A. Buffler* Dean, Professor of Epidemiology, School of Public
Room 19-Earl Warren Health, University of California, Berkeley. Dr.
Hall Berkeley, Buffler has served in her current position since
California 94720 1991. From 1979 until 1991 she was associated with
the University of Texas Health Sciences Center at
Houston, School of Public Health, where she held
numerous positions. She currently serves as an
advisor to the World Health Organization, the U.S.
Department of Energy, the U.S. Environmental
Protection Agency and the National Research
Council. She was elected as a Fellow of the
American Association for the Advancement of Science
in 1993 and serves as an officer for the Medical
Sciences section. She has served as President for
the Society for Epidemiologic Research (1986), the
American College of Epidemiology (1992), and the
International Society for Environmental
Epidemiology (1992-1993). She is a Board member and
Chair of the National Urban Air Toxics Research
Center, on the Board of the Societal Institute of
the Mathematical Sciences and President of the
Board of Directors of the Western Consortium for
Public Health. In 1994, she was elected to the
Institute of Medicine, National Academy of
Sciences.
Michael J. Callahan Mr. Callahan is Executive Vice President and Chief
Financial Officer of FMC, a position he has held
since 1994. From 1991 until joining FMC, Mr.
Callahan was Executive Vice President and Chief
Financial Officer of Whirlpool Corporation. He was
Executive Vice President of International Grocery
Products for Quaker Oats Company from 1989 to 1991.
He serves on the Board of Directors of Brunswick
Corporation.
Charles H. Cannon, Jr. Mr. Cannon has been Vice President and General
Manager of FMC's Food Machinery Group since 1994.
From 1992 to 1994 Mr. Cannon was Division Manager
of FMC's Food Processing Systems Division prior to
which he was Division Manager of its Citrus
Machinery Division.
Albert J. Costello* 417 Mr. Costello was named President and Chief
Devonshire Drive Executive Officer of W.R. Grace & Co. effective as
Franklin Lakes, New of May 1, 1995. Mr. Costello was Chairman of the
Jersey 07417 Board and Chief Executive Officer of American
Cyanamid Company from April 1993 until December
1994. He served as President of American Cyanamid
from 1991, when he also became a member of its
Board of Directors. He joined Cyanamid as a chemist
in 1957, and held a number of marketing and
management posts. Mr. Costello is a member of the
boards of trustees of Fordham University and St.
Joseph's Hospital and Medical Center, and a member
of the British-North American Committee of the
National Planning Association. He served as
chairman of the board of the National Agricultural
Chemicals Association from 1984 to 1985. He also
served on the boards of directors of the Chemical
Manufacturers Association, the Pharmaceutical
Manufacturers Association, The Business Roundtable,
and the American Enterprise Institute for Public
Policy Research.
S-2
<PAGE>
Paul L. Davies, Jr.* 50 Mr. Davies has been President of Lakeside
Fremont Street Suite Corporation, a private real estate investment
3520 San Francisco, company, since 1989. He is a director of FMC Gold
California 94105 Company and Sumitomo Bank of California, President
of The Herbert Hoover Foundation, Inc., Member of
the Board of Overseers of the Hoover Institution
and an Honorary Trustee of the California Academy
of Sciences.
Cheryl A. Francis Ms. Francis has been Vice President of FMC since
1995 and Treasurer of FMC since 1993. From 1991 to
1993, Ms. Francis was an adjunct professor at the
University of Chicago Graduate School of Business,
and from 1979 to 1991 she held various financial
positions at FMC.
Jean A. Francois-Poncet* Mr. Francois-Poncet was elected to the French
15, rue de Vaugirard Senate in September 1983. Mr. Francois-Poncet
75006 Paris, France serves as a member of the Supervisory Board of
Daimler-Benz, A.G. He is a citizen of France.
W. Reginald Hall Mr. Hall has been a Vice President of FMC since
1991. He has also been General Manager of the
Specialty Chemicals Group of FMC since 1992. From
1990 to 1992 he was General Manager of FMC's Food
Machinery Group.
Robert I. Harries Mr. Harries has been a Vice President of FMC since
1992. Since 1994, Mr. Harries has been General
Manager of FMC's Chemical Products Group. From 1988
to 1991 he was General Manager, Development and
Specialty Divisions for the Group. Between 1991 and
1994 he was Deputy General Manager of the Chemical
Products Group.
Patrick J. Head Mr. Head is Vice President and General Counsel of
FMC, and has held such positions since 1981.
Larry P. Holleran Mr. Holleran has been a Vice President of FMC since
1995 and served as Vice President of Human
Resources, a post he held from 1988 to 1995.
Robert H. Malott* Mr. Malott joined FMC in 1952 and retired in
October 1991 after serving as Chairman and Chief
Executive Officer since 1973. He is also on the
Board of Amoco Corporation, United Technologies
Corporation, RBX Corporation and Swiss Bank
Corporation (Council of International Advisors). He
is on the Board of The National Museum of Natural
History (Chairman), the Aspen Institute, the Lyric
Opera of Chicago, the National Park Foundation,
American Enterprise Institute, the Hoover
Institution, The Business Council, the University
of Chicago, Argonne National Laboratories and the
Illinois Business Roundtable (Policy Committee).
Ronald D. Mambu In 1995 Mr. Mambu was named Controller of FMC
Corporation. Prior to this he was Director of
Financial Planning (1994) and Director of Strategic
Planning (1993 to 1994). From 1987 to 1993 Mr.
Mambu served as Director of Financial Control.
James A. McClung Mr. McClung has been a Vice President of FMC since
1991. From 1981 to 1991, Mr. McClung was Vice
President--International of FMC.
Edward C. Meyer* 1101 General Meyer is currently Chairman of GRC
South Arlington Ridge International, Inc. and Managing Partner of
Road Apartment 1116 Cilluffo Associates, L.P., a private investment
Arlington, Virginia group. General Meyer retired as Chief of Staff of
22202 the United States Army in 1983. He is a Director of
ITT Corporation, Brown Group, Inc., Alcatel, N.V.,
GRC International, and FMC-Nurol Savunma Sanayii
S-3
<PAGE>
A.S., a FMC-Turkish joint venture. General Meyer is
a member of the Advisory Board of United Defense,
L.P. He is a Trustee of the MITRE Corporation and
the George Marshall Foundation, and a member of the
Board of Overseers of the Hoover Institution and
the Board of Advisors of the Center for Strategic
and International Studies. He is President of the
Army Emergency Relief Association.
Earl M. Morgan Mr. Morgan has been a Vice President of FMC since
1991 and has been General Manager of FMC's
Agricultural Products Group since 1990.
Joseph H. Netherland Mr. Netherland has been a Vice President of FMC
since 1987. In addition, he has been General
Manager of FMC's Energy and Transportation
Equipment Group since 1993, General Manager of the
Petroleum Equipment Group from 1986 to 1993 and
General Manager of the Specialized Machinery Group
from 1989 to 1993.
Thomas W. Rabaut Mr. Rabaut is a Vice President of FMC, a position
he has held since 1994. In addition, he has been
President and Chief Executive Officer, United
Defense, L.P. since 1994 and General Manager of the
Defense Systems Group since 1993. From 1990 to
1993, Mr. Rabaut was Manager of FMC's Ground
Systems Division.
William F. Reilly* 745 Chairman and Chief Executive Officer, K-III
Fifth Avenue Floor 23 Communications Corporation. Mr. Reilly is the
New York, New York founder of K-III Communications Corp. and has
10151 served as Chairman and Chief Executive Officer of
the firm since February 1990. Mr. Reilly serves on
the Liberal Arts Board of Notre Dame University and
the Board of Directors of City Meals on Wheels.
James R. Thompson* 35 Governor Thompson was named Chairman of the Chicago
West Wacker Drive law firm of Winston & Strawn in January 1993. He
Chicago, Illinois 60601 joined the firm in January 1991 as Chairman of the
Executive Committee after serving four terms as
Governor of the State of Illinois from 1977 until
January 14, 1991. He is a former Chairman of the
President's Intelligence Oversight Board and a
member of the Board of Directors of Chicago &
Northwestern Holding Corporation, the Chicago Board
of Trade, Prime Retail, Inc., Pechiney, Inc.,
Jefferson Smurfit Corporation, American Publishing
Co. and Wackenhut Corrections Corp. He serves on
the Boards of the Chicago Historical Society, the
Museum of Contemporary Art, the Lyric Opera, the
Illinois Math & Science Academy Foundation and the
Illinois Academy of Fine Arts.
William J. Wheeler Mr. Wheeler is a Vice President of FMC, a position
he has held since 1991; Mr. Wheeler has also been
President of FMC Asia-Pacific since 1991. From 1986
to 1991, Mr. Wheeler was General Manager of FMC's
Phosphorus Chemical Division.
Scott H. Williamson Mr. Williamson has been Vice President--Corporate
Development of FMC since 1993. From 1985 to 1993,
Mr. Williamson was Vice President--Acquisitions and
Development of Itel Corporation.
Clayton Yeutter* Mr. Yeutter is currently Of Counsel to Hogan &
Columbia Square 555 Hartson. He originally joined FMC's Board in 1991
Thirteenth Street, N.W. and resigned in 1992 to accept a position as
Washington, D.C. 20004 Counselor to the President of the United States for
domestic policy. He was appointed chairman of the
Republican National Committee in 1991 after serving
as Secretary of Agriculture from 1989. He is a
director of Texas Instruments, Inc., Conagra, Inc.,
Caterpillar Inc., BAT Industries, Vigoro Corp,
Lindsay Mfg. Co. and the Oppenheimer Funds group of
investment companies.
S-4
<PAGE>
THE PURCHASER
Set forth below are the name and present principal occupation or employment,
and material occupations, positions, offices or employments for the past five
years, of each director and executive officer of the Purchaser. The principal
business address of each such person is 200 East Randolph Drive, Chicago, IL
60601. Each such person is a United States citizen. Except as otherwise noted,
each director and executive officer of the Purchaser has been employed in his
or her present principal occupation listed above for such person during the
last five years. Directors of the Purchaser are indicated by an asterisk.
<TABLE>
<CAPTION>
PRESENT OFFICE OR OTHER
NAME PRINCIPAL OCCUPATION OR EMPLOYMENT
- ---- ----------------------------------
<S> <C>
Larry D. Brady*......... Chairman of the Board of the Purchaser and President of FMC (see
above)
Joseph H. Netherland*... President of the Purchaser and a Vice President of FMC (see
above)
Randall S. Ellis*....... Mr. Ellis has been Acquisitions Director of FMC since 1992. From
1989 to 1992, he was Directeur Generale of FMC Europe S.A.,
Petroleum Equipment Group.
Daniel N. Schuchardt.... Mr. Schuchardt is Vice President and Treasurer of the Purchaser.
In addition, Mr. Schuchardt is Assistant Treasurer of FMC, a
position he has held since 1973.
Charlotte Mitchell Ms. Smith is Secretary of the Purchaser. In addition, Ms. Smith
Smith.................. is Senior Corporate Counsel of FMC, a position she has held since
1994. Prior to holding such position, Ms. Smith was employed as
Counsel of FMC beginning in 1979.
</TABLE>
S-5
<PAGE>
Facsimile copies of the Letter of Transmittal, properly completed and duly
executed, will be accepted. The Letter of Transmittal, certificates for Shares
and Rights and any other required documents should be sent or delivered by each
stockholder of the Company or by such stockholder's broker, dealer, commercial
bank, trust company or other nominee to the Depositary at one of its addresses
set forth below:
The Depositary for the Offer is:
THE CHASE MANHATTAN BANK, N.A.
By Mail: By Overnight Delivery: By Hand:
Box 3032 c/o Chase Securities (9:00 a.m.-5:00 p.m.
4 Chase MetroTech Ctr. Processing Corp New York City Time)
Brooklyn, NY 11245 Ft. Lee Executive Park 1 Chase Manhattan Plaza
1 Executive Dr., 6th Floor Floor 1-B
Ft. Lee, NJ 07024 Nassau and Liberty Streets
New York, NY 10081
By Facsimile Transmission:
(201) 592-4372
Information and Confirm by Telephone:
(201) 592-4370
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone numbers
set forth below. Additional copies of this Offer to Purchase, the Letter of
Transmittal and other tender offer materials may be obtained from the
Information Agent as set forth below, and will be furnished promptly at the
Purchaser's expense. You may also contact your broker, dealer, commercial bank,
trust company or other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 WATER STREET
NEW YORK, NEW YORK 10005
(212) 269-5550 (CALL COLLECT)
OR
(800) 758-7358
The Dealer Manager for the Offer is:
MERRILL LYNCH & CO.
WORLD FINANCIAL CENTER
NORTH TOWER
NEW YORK, NEW YORK 10281-1305
(212) 236-4565 (CALL COLLECT)
<PAGE>
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
MOORCO INTERNATIONAL INC.
PURSUANT TO THE OFFER TO PURCHASE
DATED MAY 5, 1995
BY
MII ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
FMC CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, JUNE 2, 1995 UNLESS THE OFFER IS EXTENDED.
The Depositary for the Offer is:
THE CHASE MANHATTAN BANK, N.A.
(800) 355-2663
By Mail: By Overnight Delivery: By Hand:
Box 3032 c/o Chase Securities (9:00 a.m.-5:00 p.m.
4 Chase MetroTech Ctr. Processing Corp New York City Time)
Brooklyn, NY 11245 Ft. Lee Executive Park 1 Chase Manhattan Plaza
1 Executive Dr., 6th Floor 1-B
floor
Ft. Lee, NJ 07024 Nassau and Liberty
Streets
New York, NY 10081
By Facsimile Transmission:
(201) 592-4372
Confirm by Telephone:
(201) 592-4370
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE, OR TRANSMISSIONS OF INSTRUCTIONS VIA A FACSIMILE NUMBER OTHER THAN AS
SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
SIGNATURES MUST BE PROVIDED ON THE INSIDE AND REVERSE BACK COVER. PLEASE READ
THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
This Letter of Transmittal is to be completed by holders of Shares either if
certificates are to be forwarded herewith or, unless an Agent's Message (as
defined in Section 2 of the Offer to Purchase (as defined below)) is utilized,
if a tender of Shares (and, if applicable, the associated Rights) are to be
made by book-entry transfer into the account of The Chase Manhattan Bank, N.A.,
as Depositary (the "Depositary"), at The Depository Trust Company ("DTC"), the
Midwest Securities Trust Company ("MSTC") or the Philadelphia Depository Trust
Company ("PDTC") (each a "Book-Entry Transfer Facility" and collectively the
"Book-Entry Transfer Facilities") pursuant to the procedures set forth in
Section 3 of the Offer to Purchase (as defined below). UNLESS AND UNTIL MII
ACQUISITION CORP. DECLARES THAT THE RIGHTS CONDITION (AS DEFINED IN THE OFFER
TO PURCHASE) IS SATISFIED, HOLDERS OF SHARES WILL BE REQUIRED TO TENDER ONE
RIGHT FOR EACH SHARE TENDERED IN ORDER TO EFFECT A VALID TENDER OF SUCH SHARE.
If the Distribution Date (as defined in the Offer to Purchase) has
<PAGE>
not occurred prior to the time Shares are tendered pursuant to the Offer, a
tender of Shares will also constitute a tender of the associated Rights. See
Section 3 of the Offer to Purchase. If the Distribution Date has occurred, and
certificates representing Rights (the "Rights Certificates") have been
distributed to holders of Shares, such holders of Shares will be required to
tender Rights Certificates representing a number of Rights equal to the number
of Shares being tendered in order to effect a valid tender of such Shares.
Holders of Shares whose certificates for such Shares (the "Share
Certificates") and, if applicable, Rights Certificates are not immediately
available or who cannot deliver their Share Certificates or, if applicable,
Rights Certificates and all other required documents to the Depositary prior to
the Expiration Date (as defined in Section 1 of the Offer to Purchase), or who
cannot complete the procedure for book-entry transfer on a timely basis, must
tender their Shares and, if applicable, Rights according to the guaranteed
delivery procedure set forth in Section 3 of the Offer to Purchase. See
Instruction 2. Delivery of documents to a Book-Entry Transfer Facility does not
constitute delivery to the Depositary.
[_]CHECK HERE IF SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN
ACCOUNT MAINTAINED BY THE DEPOSITARY WITH A BOOK-ENTRY TRANSFER FACILITY AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution: _____________________________________________
Check Box of Book-Entry Transfer Facility:
[_]DTC [_]MSTC [_]PDTC
Account Number: _________________ Transaction Code Number: _________________
[_]CHECK HERE IF SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING.
PLEASE ENCLOSE A PHOTOCOPY OF SUCH NOTICE OF GUARANTEED DELIVERY.
Name(s) of Registered Holder(s): ___________________________________________
Window Ticket Number (if any): _____________________________________________
Date of Execution of Notice of Guaranteed Delivery: ________________________
Name of Institution which Guaranteed Delivery: _____________________________
[_]CHECK HERE IF RIGHTS ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER (IF
AVAILABLE) MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH A BOOK-ENTRY
TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution: _____________________________________________
Check Box of Book-Entry Facility:
[_]DTC [_]MSTC [_]PDTC
Account Number: _________________ Transaction Code Number: _________________
[_]CHECK HERE IF RIGHTS ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING.
PLEASE ENCLOSE A PHOTOCOPY OF SUCH NOTICE OF GUARANTEED DELIVERY.
Name(s) of Registered Holder(s): ___________________________________________
Window Ticket Number (if any): _____________________________________________
Date of Execution of Notice of Guaranteed Delivery: ________________________
Name of Institution which Guaranteed Delivery: _____________________________
2
<PAGE>
DESCRIPTION OF SHARES TENDERED
- --------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED SHARE CERTIFICATE(S) AND SHARE(S)
HOLDER(S) (PLEASE FILL IN, IF BLANK, EXACTLY TENDERED (ATTACH ADDITIONAL LIST,
AS NAME(S) APPEAR(S) ON SHARE IF NECESSARY)
CERTIFICATE(S))
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
TOTAL NUMBER
OF SHARES
SHARE REPRESENTED NUMBER OF
CERTIFICATE BY SHARE SHARES
NUMBER(S)* CERTIFICATE(S)* TENDERED**
<S> <C> <C> <C>
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
TOTAL SHARES
- --------------------------------------------------------------------------------
* Need not be completed by Book-Entry Stockholders.
** Unless otherwise indicated, it will be assumed that all Shares
represented by certificates delivered to the Depositary are being
tendered. See Instruction 4.
</TABLE>
DESCRIPTION OF RIGHTS TENDERED*
- --------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED RIGHTS CERTIFICATE(S) AND RIGHTS
HOLDER(S) (PLEASE FILL IN, IF BLANK, EXACTLY TENDERED (ATTACH ADDITIONAL LIST,
AS NAME(S) APPEAR(S) ON RIGHTS IF NECESSARY)
CERTIFICATE(S))
- --------------------------------------------------------------------------------
RIGHTS
CERTIFICATE
NUMBER(S)*
TOTAL
NUMBER OF
RIGHTS
REPRESENTED
BY RIGHTS
CERTIFICATE(S)**
NUMBER
OF RIGHTS
TENDERED***
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
TOTAL RIGHTS
- --------------------------------------------------------------------------------
*If the tendered Rights are represented by separate certificates,
complete the certificate numbers of such Rights Certificates.
**Need not be completed by Book-Entry Stockholders.
***Unless otherwise indicated, it will be assumed that all Rights
represented by certificates delivered to the Depositary are being
tendered. See Instruction 4.
3
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to MII Acquisition Corp., a Delaware
corporation ("Purchaser") and wholly owned subsidiary of FMC Corporation, a
Delaware corporation ("FMC"), the above-described shares of Common Stock, $.01
par value per share (the "Shares"), of Moorco International Inc., a Delaware
corporation (the "Company"), and (unless and until the Purchaser declares that
the Rights Condition (as defined in the Offer to Purchase described below) is
satisfied), the associated Preferred Stock Purchase Rights (the "Rights")
issued pursuant to the Rights Agreement, dated as of November 8, 1994 (the
"Rights Agreement"), between the Company and The Bank of New York, a New York
banking corporation, as Rights Agent (the "Rights Agent"), 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 this
Letter of Transmittal (which together constitute the "Offer"). Unless the
context otherwise requires, all references to Shares shall include the
associated Rights, and all references to Rights shall include all benefits that
may inure to the stockholders of the Company or to holders of the Rights
pursuant to the Rights Agreement. The undersigned understands that Purchaser
reserves the right to transfer or assign, in whole or from time to time in
part, to one or more of its affiliates, the right to purchase all or any
portion of the Shares and Rights tendered pursuant to the Offer, receipt of
which is hereby acknowledged.
The undersigned understands that if the Distribution Date (as defined in the
Offer to Purchase) has occurred and certificates representing Rights (the
"Rights Certificates") have been distributed to holders of Shares prior to the
date of tender of the Shares tendered herewith, Rights Certificates
representing a number of Rights equal to the number of Shares being tendered
herewith must be delivered to the Depositary (as defined below) or, if
available, a Book-Entry Confirmation (as defined herein) received with respect
thereto, in order for the Shares tendered herewith to be validly tendered. If
the Distribution Date has occurred and Rights Certificates have not been
distributed prior to the time Shares and Rights are tendered herewith, the
undersigned agrees to deliver Rights Certificates representing a number of
Rights equal to the number of Shares tendered herewith to The Chase Manhattan
Bank, N.A. (the "Depositary") within five business days after the date such
Rights Certificates are distributed. A tender of Shares without Rights
Certificates constitutes an agreement by the tendering stockholder to deliver
Rights Certificates representing a number of Rights equal to the number of
Shares tendered pursuant to the Offer to the Depositary within five business
days after the date such Rights Certificates are distributed. The undersigned
understands that if the Rights Condition is not satisfied the Purchaser
reserves the right to require that the Depositary receive such Rights
Certificates prior to accepting Shares for payment. In that event, payment for
Shares tendered and accepted for payment pursuant to the Offer will be made
only after timely receipt by the Depositary of, among other things, Rights
Certificates, if Rights Certificates have been distributed to holders of
Shares.
Subject to, and effective upon, acceptance for payment of the Shares tendered
herewith in accordance with the terms and subject to the conditions of the
Offer, the undersigned hereby sells, assigns and transfers to, or upon the
order of, Purchaser all right, title and interest in and to all of the Shares
that are being tendered hereby and any and all dividends, distributions
(including additional Shares) or rights (including the associated Rights)
declared, paid or issued with respect to the tendered Shares on or after April
3, 1995 and payable or distributable to the undersigned on a date prior to the
transfer to the name of Purchaser (or nominee or transferee of Purchaser) on
the Company's stock transfer records of the Shares tendered herewith (except
that if the Rights are redeemed by the Company's Board of Directors in
accordance with the terms of the Rights Agreement, tendering stockholders who
are holders of record as of the applicable record date will be entitled to
receive and retain the redemption price of $.01 per Right in accordance with
the Rights Agreement) (collectively, a "Distribution"), and irrevocably
constitutes and appoints the Depositary the true and lawful agent and attorney-
in-fact of the undersigned with respect to such Shares (and any Distributions)
with full power of substitution (such power of attorney being deemed to be an
irrevocable power coupled with an interest) to (a) deliver certificates for
such Share (and any Distributions) or transfer ownership of such Shares (and
any Distribution) on the account books maintained by a Book-Entry Transfer
Facility, together in either case with appropriate evidences of transfer, to
the Depositary for the account of the Purchaser, (b) present such Shares (and
any Distributions) for transfer on the books of the Company and (c) receive all
benefits and otherwise exercise all rights of beneficial ownership of such
Shares (and any Distributions), all in accordance with the terms and subject to
the conditions of the Offer.
The undersigned irrevocably appoints Randall S. Ellis, Daniel N. Schuchardt
and Charlotte Mitchell Smith, and each of them, or any other designees of
Purchaser, as such stockholder's attorneys-in-fact and proxies of the
undersigned, each with full power of substitution, to the full extent of such
stockholder's rights with respect to the Shares tendered by such stockholder
and accepted for payment by Purchaser and with respect to any and all other
Shares or other securities (including, if applicable, the Rights) issued or
issuable in respect of such Shares on or after May 5, 1995. Such
4
<PAGE>
appointment will be effective upon the acceptance for payment of such Shares by
Purchaser in accordance with the terms of the Offer. Upon such acceptance for
payment, all prior powers of attorney and proxies given by such stockholder
with respect to such Shares (and such other shares and securities) will be
revoked without further action, and no subsequent proxies may be given nor any
subsequent written consents executed (and, if given or executed, will not be
deemed effective). The proxies (or other designees of Purchaser) will be
empowered to exercise all voting and other rights of such stockholder as they
in their sole discretion may deem proper at any annual or special meeting of
the Company's stockholders or any adjournment or postponement thereof, by
consent in lieu of any such meeting or otherwise. Purchaser reserves the right
to require that, in order for Shares and Rights to be deemed validly tendered,
immediately upon Purchaser's payment for such Shares Purchaser must be able to
exercise full voting rights with respect to such Shares and Rights.
The undersigned hereby represents and warrants that (a) the undersigned has
full power and authority to tender, sell, assign and transfer the Shares (and
any Distributions) tendered hereby and (b) when the Shares are accepted for
payment by the Purchaser, the Purchaser will acquire good, marketable and
unencumbered title to the Shares (and any Distributions), free and clear of all
liens, restrictions, charges and encumbrances, and the same will not be subject
to any adverse claim. The undersigned, upon request, shall execute and deliver
any signature guarantee or additional documents deemed by the Depositary or
Purchaser to be necessary or desirable to complete the sale, assignment and
transfer of the Shares (and any Distributions) tendered hereby. In addition,
the undersigned shall promptly remit and transfer to the Depositary for the
account of Purchaser any and all Distributions in respect of the Shares
tendered hereby, accompanied by appropriate documentation of transfer; and
pending such remittance or appropriate assurance thereof, Purchaser will be,
subject to applicable law, entitled to all rights and privileges as owner of
any such Distribution and may withhold the entire purchase price or deduct from
the purchase price the amount or value thereof, as determined by the Purchaser
in its sole discretion.
No authority herein conferred or agreed to be conferred by this Letter of
Transmittal shall be affected by, and all such authority shall survive the
death or incapacity of the undersigned. All obligations of the undersigned
hereunder shall be binding upon the heirs, executors, administrators, trustees
in bankruptcy, personal and legal representatives, successors and assigns of
the undersigned.
Tenders of Shares (and the associated Rights) made pursuant to the Offer are
irrevocable, except that Shares (and the associated Rights) tendered pursuant
to the Offer may be withdrawn at any time prior to the Expiration Date (as
defined in the Offer to Purchase) and, unless theretofore accepted for payment
by the Purchaser pursuant to the Offer, may also be withdrawn at any time after
July 5, 1995. See Section 4 of the Offer to Purchase.
The undersigned understands that tenders of Shares and Rights pursuant to any
of the procedures described in Section 3 of the Offer to Purchase and in the
instructions hereto will constitute a binding agreement between the undersigned
and the Purchaser upon the terms and subject to the conditions set forth in the
Offer, including the undersigned's representation and warranty that the
undersigned owns the Shares and Rights being tendered.
Unless otherwise indicated herein under "Special Payment Instructions,"
please issue the check for the purchase price and/or return any certificate(s)
for Shares and Rights not tendered or not accepted for payment in the name(s)
of the registered holder(s) appearing under "Description of Shares Tendered"
and "Description of Rights Tendered", respectively. Similarly, unless otherwise
indicated herein under "Special Delivery Instructions," please mail the check
for the purchase price and/or any certificate(s) for Shares and Rights not
tendered or not accepted for payment (and accompanying documents, as
appropriate) to the address(es) of the registered holder(s) appearing under
"Description of Shares Tendered" and "Description of Rights Tendered",
respectively. In the event that both the Special Delivery Instructions and the
Special Payment Instructions are completed, please issue the check for the
purchase price and/or any certificate(s) for Shares and Rights not tendered or
accepted for payment in the name of, and deliver such check and/or such
certificates to, the person or persons so indicated. Unless otherwise indicated
herein under "Special Payment Instructions," please credit any Shares and
Rights tendered herewith by book-entry transfer that are not accepted for
payment by crediting the account at the Book-Entry Transfer Facility (as
defined herein) designated above. The undersigned recognizes that Purchaser has
no obligation, pursuant to the Special Payment Instructions, to transfer any
Shares or Rights from the name(s) of the registered holder(s) thereof if the
Purchaser does not accept for payment any of the Shares or Rights so tendered.
5
<PAGE>
[_] CHECK HERE IF ANY OF THE CERTIFICATES REPRESENTING THE SHARES THAT YOU OWN
HAVE BEEN LOST OR DESTROYED AND SEE INSTRUCTION 11.
Number of shares represented by the lost or destroyed certificates:
.
Please fill in the remainder of this Letter of Transmittal.
SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 (SEE INSTRUCTIONS 1, 5, 6 AND
AND 7) 7)
To be completed ONLY if To be completed ONLY if
certificate(s) for Shares certificate(s) for Shares
and Rights not tendered or and Rights not tendered or
not accepted for payment not accepted for payment
and/or the check for the and/or the check for the
purchase price of Shares purchase price of Shares
and Rights accepted for and Rights accepted for
payment are to be issued in payment are to be sent to
the name of someone other someone other than the
than the undersigned or if undersigned or to the
Shares or Rights tendered undersigned at an address
by book-entry transfer other than that shown
which are not accepted for above.
payment are to be returned
by credit to an account
maintained at a Book-Entry
Transfer Facility. Mail: [_] check [_] certificates
to:
Issue [_] check [_] certificates
to:
Name:_______________________
(Please Print)
Name:_______________________
(Please Print) Address:____________________
----------------------------
Address:____________________ ----------------------------
---------------------------- (Include Zip Code)
---------------------------- ----------------------------
(Include Zip Code) (Taxpayer Identification or
---------------------------- Social Security No.)
(Taxpayer Identification or
Social Security No.)
(See Substitute Form W-9 on
Back Cover)
Credit Shares and Rights
tendered by book-entry
transfer that are not
accepted for payment to
(Check One):
[_] DTC[_] MSTC[_] PDTC
----------------------------
(Account Number)
6
<PAGE>
IMPORTANT:
STOCKHOLDERS SIGN HERE
(ALSO COMPLETE SUBSTITUTE FORM W-9 ON REVERSE SIDE)
X
-------------------------------------------------------
X
-------------------------------------------------------
Signature(s) of Holder(s)
Dated: ________________________________________________
(Must be signed by the registered holder(s) exactly as
name(s) appear(s) on Share Certificate(s) or on a se-
curity position listing or by person(s) authorized to
become registered holder(s) by certificates and docu-
ment transmitted herewith. If signature is by trust-
ees, executors, administrators, guardians, attorneys-
in-fact, officers of corporations or others acting in
a fiduciary or representative capacity, please provide
the following information and see Instruction 5.)
Name(s): ______________________________________________
------------------------------------------------
(Please Print)
Capacity (Full Title): ________________________________
Address: ______________________________________________
------------------------------------------------
------------------------------------------------
(Include Zip Code)
( )
Daytime Telephone Number: _____________________________
(Area
Code)
Tax Identification or Social Security No.: ____________
(See Substitute Form W-9 on Reverse Side)
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED--SEE INSTRUCTIONS 1 AND 5)
Authorized Signature: _________________________________
Name: _________________________________________________
Name of Firm: _________________________________________
Address: ______________________________________________
------------------------------------------------
------------------------------------------------
(Include Zip Code)
( )
Daytime Telephone Number: _____________________________
(Area
Code)
Dated: , 1995
^ SIGN
^ HERE
7
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. No signature guarantee is required on this Letter
of Transmittal (a) if this Letter of Transmittal is signed by the registered
holder(s) of Shares (which term, for purposes of this document, shall include
any participant in a Book-Entry Transfer Facility whose name appears on a
security position listing as the owner of Shares) tendered herewith, unless
such holder(s) has completed either the box entitled "Special Payment
Instructions" or the box entitled "Special Delivery Instructions" above, or (b)
if such Shares and/or Rights are tendered for the account of a firm which is a
bank, broker, dealer, credit union, savings association or other entity which
is a member in good standing of a recognized Medallion Program approved by the
Securities Transfer Association (each of the foregoing being referred to as an
"Eligible Institution"). In all other cases, all signatures on this Letter of
Transmittal must be guaranteed by an Eligible Institution. See Instruction 5 of
this Letter of Transmittal.
2. REQUIREMENTS OF TENDER. This Letter of Transmittal is to be completed by
stockholders either if certificates are to be forwarded herewith or, unless an
Agent's Message is utilized, if tenders are to be made pursuant to the
procedure for tender by book-entry transfer set forth in Section 3 of the Offer
to Purchase. Certificates for all physically tendered Shares or timely
confirmation (a "Book-Entry Confirmation") of a book-entry transfer of such
Shares into the Depositary's account at a Book-Entry Transfer Facility, as well
as a properly completed and duly executed Letter of Transmittal (or a facsimile
hereof), with any required signature guarantees, or an Agent's Message in
connection with a book-entry transfer, and any other documents required by this
Letter of Transmittal, must be received by the Depositary at one of its
addresses set forth herein prior to the Expiration Date (as defined in Section
1 of the Offer to Purchase) and, unless and until the Purchaser declares that
the Rights Condition (as defined in the Offer to Purchase) is satisfied, Rights
Certificates or timely confirmation of a book-entry transfer of Rights into the
Depositary's account at a Book-Entry Transfer Facility, if available (together
with, if Rights are forwarded separately from Shares, any required signature
guarantees, or an Agent's Message in the case of a book-entry delivery, and any
other documents required by this Letter of Transmittal), must be received by
the Depositary at one of its addresses set forth herein prior to the Expiration
Date or, if later, within five business days after the date such Rights
Certificates are distributed.
Stockholders whose certificates for Shares or Rights are not immediately
available (including Rights Certificates that have not yet been distributed by
the Company) or who cannot deliver their certificates for Shares or Rights and
all other required documents to the Depositary prior to the Expiration Date or
who cannot complete the procedure for delivery by book-entry transfer on a
timely basis may tender their Shares and Rights by properly completing and duly
executing a Notice of Guaranteed Delivery pursuant to the guaranteed delivery
procedure set forth in Section 3 of the Offer to Purchase. Pursuant to such
procedure: (i) such tender must be made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form made available by the Purchaser, must be received by
the Depositary on or prior to the Expiration Date; (iii) the certificates (or a
Book-Entry Confirmation) representing all tendered Shares, in proper form for
transfer, in each case together with the Letter of Transmittal (or a facsimile
thereof), properly completed and duly executed, with any required signature
guarantees (or, in the case of a book-entry delivery, an Agent's Message) and
any other documents required by this Letter of Transmittal, must be received by
the Depositary within five New York Stock Exchange, Inc. ("NYSE") trading days
after the date of execution of such Notice of Guaranteed Delivery; and (iv)
unless and until the Purchaser declares that the Rights Condition is satisfied,
the Rights Certificates, if issued, representing the appropriate number of
Rights or a Book Entry Confirmation, if available, in each case together with
any required signature guarantees (or, in the case of a book-entry delivery, an
Agent's Message) and any other documents required by this Letter of
Transmittal, must be received by the Depositary within five NYSE trading days
after the date of execution of such Notice of Guaranteed Delivery or, if later,
five NYSE trading days after Rights Certificates are distributed to
stockholders, all as provided in Section 3 of the Offer to Purchase. If Share
Certificates and Rights Certificates are forwarded separately to the
Depositary, a properly completed and duly executed Letter of Transmittal must
accompany the Share Certificates only; the Rights Certificates may be mailed to
the Depositary without including a Letter of Transmittal. For your convenience,
a second return envelope has been enclosed for return of Rights Certificates in
the event Rights Certificates have been distributed.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES OR OF RIGHTS CERTIFICATES AND
ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY
TRANSFER FACILITY, IS AT THE OPTION AND RISK OF THE TENDERING STOCKHOLDER. IF
DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
8
<PAGE>
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares and Rights will be purchased. All tendering stockholders, by
execution of this Letter of Transmittal (or a facsimile hereof), waive any
right to receive any notice of the acceptance of their Shares and Rights for
payment.
3. INADEQUATE SPACE. If the space provided herein is inadequate, the
certificate numbers and/or the number of Shares and Rights and any other
required information should be listed on a separate signed schedule attached
hereto.
4. PARTIAL TENDERS. (Not Applicable to stockholders who tender by book-entry
transfer) If fewer than all the Shares evidenced by any certificate submitted
are to be tendered, fill in the number of Shares which are to be tendered in
the box entitled "Number of Shares Tendered." If fewer than all the Rights
evidenced by any Rights Certificates submitted are to be tendered, fill in the
number of Rights which are to be tendered in the box entitled "Number of Rights
Tendered." In such cases, new certificates for the Shares or Rights that were
evidenced by your old certificates, but which were not tendered by you, will be
sent to you, unless otherwise provided in the appropriate box on this Letter of
Transmittal, as soon as practicable after the Expiration Date. All Shares and
Rights represented by certificates delivered to the Depositary will be deemed
to have been tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL, STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
and Rights tendered hereby, the signature(s) must correspond with the name(s)
as written on the face of the certificate(s) without alteration, enlargement or
any change whatsoever.
If any of the Shares and Rights tendered hereby are owned of record by two or
more joint owners, all such owners must sign this Letter of Transmittal.
If any of the tendered Shares and Rights are registered in different names on
several certificates, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal as there are different registrations of
certificates.
If this Letter of Transmittal or any certificates or stock powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity,
such persons should so indicate when signing, and proper evidence satisfactory
to the Purchaser of their authority to so act must be submitted.
When this Letter of Transmittal is signed by the registered owner(s) of the
Shares and Rights listed and transmitted hereby, no endorsements of
certificates or separate stock powers are required unless payment is to be made
to, or certificates for Shares or Rights not tendered or not purchased are to
be issued in the name of, a person other than the registered holder(s).
Signatures on such certificates or stock powers must be guaranteed by an
Eligible Institution.
If this Letter of Transmittal is signed by a person other than the registered
owner(s) of the certificate(s) listed, the certificate(s) must be endorsed or
accompanied by appropriate stock powers, in either case signed exactly as the
name(s) of the registered holder(s) appear on the certificate(s). Signatures on
such certificates or stock powers must be guaranteed by an Eligible
Institution, unless the signature is that of an Eligible Institution.
Unless and until the Purchaser declares the Rights Condition to be satisfied,
if Rights Certificates have been distributed to holders of Shares, such holders
are required to tender Rights Certificate(s) representing a number of Rights
equal to the number of Shares tendered in order to effect a valid tender of
such Shares. It is necessary that stockholders follow all signature
requirements of this Instruction 5 with respect to the Rights in order to
tender such Rights. For your convenience, a second return envelope is enclosed
for return of Rights Certificates in the event Rights Certificates have been
distributed.
6. STOCK TRANSFER TAXES. Except as otherwise provided in this Instruction 6,
Purchaser will pay any stock transfer taxes with respect to the purchase of
Shares and Rights pursuant to the Offer. If, however, payment of the purchase
price is to be made to, or if certificate(s) for Shares and Rights not tendered
or accepted for payment are to be registered in the name of, any person other
than the registered owner(s), or if tendered certificate(s) are registered in
the name of any person other than the person(s) signing this Letter of
Transmittal, the amount of any stock transfer taxes (whether imposed on the
registered owner(s) or such person) payable on account of the transfer to such
person will be deducted from the purchase price unless satisfactory evidence of
the payment of such taxes, or an exemption therefrom, is submitted.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check is to be issued in
the name of, and/or certificates for Shares and Rights not tendered or not
accepted for payment are to be issued or returned to, a person
9
<PAGE>
other than the signer of this Letter of Transmittal or if a check and/or such
certificates are to be returned to a person other than the person(s) signing
this Letter of Transmittal or to an address other than that shown in this
Letter of Transmittal, the appropriate boxes on this Letter of Transmittal must
be completed. A stockholder who tenders by book entry transfer may request that
Shares and/or Rights not accepted for payment be credited to such account
maintained at a Book-Entry Transfer Facility as such stockholder may designate
under "Special Payment Instructions." If no such instructions are given, such
Shares or Rights not accepted for payment will be returned by crediting the
account at the Book-Entry Transfer Facility designated above.
8. WAIVER OF CONDITIONS. The conditions of the Offer may be waived by
Purchaser in whole or in part at any time and from time to time in its sole
discretion.
9. BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under U.S. Federal income tax
law, a stockholder whose tendered Shares or Rights are accepted for payment is
required to provide the Depositary with such stockholder's correct taxpayer
identification number ("TIN"), generally the stockholder's social security or
federal employer identification number, and certain other information, on
Substitute Form W-9 below. If the Depositary is not provided with the correct
TIN, the Internal Revenue Service may subject the stockholder or other payee to
a $50 penalty. In addition, payments that are made to such stockholder or other
payee with respect to Shares or Rights purchased pursuant to the Offer may be
subject to 31 percent backup withholding.
Certain stockholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, the stockholder must submit a Form W-8, signed under penalties of
perjury, attesting to that individual's exempt status. A Form W-8 can be
obtained from the Depositary. See the enclosed "Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9" for more instructions.
If backup withholding applies, the Depositary is required to withhold 31
percent of any such payments made to the stockholder or other payee. Backup
withholding is not an additional tax. Rather, the tax liability of persons
subject to backup withholding will be reduced by the amount of tax withheld. If
withholding results in an overpayment of taxes, a refund may be obtained from
the Internal Revenue Service.
The box in Part 3 of the Substitute Form W-9 may be checked if the tendering
stockholder has not been issued a TIN and has applied for a TIN or intends to
apply for a TIN in the near future. If the box in Part 3 is checked, the
stockholder or other payee must also complete the Certificate of Awaiting
Taxpayer Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 3 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Depositary will
withhold 31% of all payments made prior to the time a properly certified TIN is
provided to the Depositary.
The stockholder is required to give the Depositary the TIN (e.g., social
security number or employer identification number) of the record owner of the
Shares and Rights or of the last transferee appearing on the transfers attached
to, or endorsed on, the Shares and Rights. If the Shares or Rights are in more
than one name or are not in the name of the actual owner, consult the enclosed
"Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9" for additional guidance on which number to report.
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions or requests for
assistance may be directed to the Dealer Manager or the Information Agent at
their respective addresses and telephone numbers set forth below. Additional
copies of the Offer to Purchase, this Letter of Transmittal and the Notice of
Guaranteed Delivery may also be obtained from the Information Agent or from
brokers, dealers, commercial banks or trust companies.
11. LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate representing
Shares or Rights has been lost, destroyed or stolen, the stockholder should
promptly notify the Depositary by checking the box immediately preceding
special payment/special delivery instructions and indicating the number of
Shares lost. The stockholder will then be instructed as to the steps that must
be taken in order to replace the certificate. This Letter of Transmittal and
related documents cannot be processed until the procedures for replacing lost
or destroyed certificates have been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A FACSIMILE HEREOF), TOGETHER WITH
CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY TRANSFER OR THE NOTICE OF GUARANTEED
DELIVERY, AND ALL OTHER REQUIRED DOCUMENTS, MUST BE RECEIVED BY THE DEPOSITARY
PRIOR TO THE EXPIRATION DATE.
10
<PAGE>
TO BE COMPLETED BY ALL TENDERING STOCKHOLDERS
(SEE INSTRUCTION 9)
PAYER'S NAME:
- --------------------------------------------------------------------------------
SUBSTITUTE
FORM W-9
PART 1--PLEASE ----------------------------
PROVIDE YOUR TIN IN
THE BOX AT RIGHT AND
CERTIFY BY SIGNING
AND DATING BELOW.
DEPARTMENT OF THE TREASURY Social Security number
INTERNAL REVENUE SERVICE
OR
PAYER'S REQUEST FOR ----------------------------
TAXPAYER IDENTIFICATION Employer ID number
NUMBER ("TIN")
- --------------------------------------------------------------------------------
PART 2--CERTIFICATION--Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct taxpayer identification
number (or I am waiting for a number to be issued to me) and
(2) I am not subject to backup withholding because: (a) I am exempt from
backup withholding, or (b) I have not been notified by the Internal
Revenue Service ("IRS") that I am subject to backup withholding as a
result of a failure to report all interest or dividends, or (c) the IRS
has notified me that I am no longer subject to backup withholding.
CERTIFICATION INSTRUCTIONS--You must cross out item (2) above if you have
been notified by the IRS that you are currently subject to backup
withholding because of under-reporting interest or dividends on your tax
return. However, if after being notified by the IRS that you were subject
to backup withholding you received another notification from the IRS that
you are no longer subject to backup withholding, do not cross out such Item
(2).
- --------------------------------------------------------------------------------
PART 3--AWAITING
SIGNATURE ______________________________ DATE TIN [_]
- --------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31 PERCENT OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE
REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE
IF YOU CHECKED THE BOX IN PART 3 OF SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (1) I have mailed or delivered
an application to receive a taxpayer identification number to the
appropriate Internal Revenue Service Center or Social Security
Administration Office, or (2) I intend to mail or deliver an application in
the near future. I understand that if I do not provide a taxpayer
identification number by the time of payment, 31 percent of all reportable
payments made to me will be withheld but that such amounts will be refunded
to me if I then provide a Taxpayer Identification Number within sixty (60)
days.
Signature: ____________________________________ Date: __________________
11
<PAGE>
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone numbers
listed below. Additional copies of the Offer to Purchase, the Letter of
Transmittal and other tender offer materials may be obtained from the
Information Agent as set forth below, and will be furnished promptly at the
Purchaser's expense. You may also contact your broker, dealer, commercial bank,
trust company or other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 WATER STREET
NEW YORK, NEW YORK 10005
(212) 269-5550 (CALL COLLECT)
OR
(800) 758-7358
The Dealer Manager for the Offer is:
MERRILL LYNCH & CO.
World Financial Center
North Tower
New York, New York 10281-1305
(212) 236-4565 (call collect)
May 5, 1995
12
<PAGE>
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
MOORCO INTERNATIONAL INC.
This Notice of Guaranteed Delivery or one substantially equivalent hereto
must be used to accept the Offer (as defined below) if certificates
representing shares of Common Stock, par value $.01 per share (the "Shares"),
of Moorco International Inc., a Delaware corporation (the "Company"), and/or if
applicable, certificates for 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 (as the same may be amended, the "Rights
Agreement") are not immediately available (including, if the Distribution Date
(as defined in the Offer to Purchase (as defined below) has occurred), because
certificates for Rights have not yet been distributed) or time will not permit
all required documents to reach The Chase Manhattan Bank, N.A. (the
"Depositary") on or prior to the Expiration Date (as defined in the Offer to
Purchase), or, in the case of Shares and, if available, Rights, the procedures
for delivery by book-entry transfer cannot be completed on a timely basis. This
Notice of Guaranteed Delivery may be delivered by hand or sent by facsimile
transmission or mail to the Depositary. See Section 3 of the Offer to Purchase.
THE DEPOSITARY FOR THE OFFER IS:
The Chase Manhattan Bank, N.A.
(800) 355-2663
By Mail: By Overnight By Hand:
Delivery:
Box 3032 (9:00 a.m.-5:00 p.m.
4 Chase MetroTech c/o Chase Securities New York City Time)
Ctr. Processing Corp 1 Chase Manhattan
Brooklyn, NY 11245 Ft. Lee Executive Plaza
Park Floor 1-B
1 Executive Dr., 6th Nassau and Liberty
floor Streets
Ft. Lee, NJ 07024 New York, NY 10081
By Facsimile Transmission:
(201) 592-4372
Information and Confirm by Telephone:
(201) 592-4370
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION TO
A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE SIGNATURES.
IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN
"ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE
MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE LETTER
OF TRANSMITTAL.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to MII Acquisition Corp., a Delaware
corporation ("Purchaser"), 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 together constitute the
"Offer"), receipt of each of which is hereby acknowledged, the number of Shares
and the number of Rights indicated below pursuant to the guaranteed delivery
procedures set forth in Section 3 of the Offer to Purchase.
<TABLE>
<S> <C>
Number of Shares: Shares Name(s) of Record Holder(s):_______________
___________________________________________
Number of Rights: ___________________Rights
Address(es): ______________________________
Certificate No(s). (if available):_________ ___________________________________________
___________________________________________ ___________________________________________
___________________________________________
Daytime Area Code and Telephone Number(s):
If Share(s) and Right(s) will be tendered ___________________________________________
by book-entry transfer, check one box.
[_] The Depository Trust Company Signature(s):______________________________
[_] Midwest Securities Trust Company ___________________________________________
[_] Philadelphia Depository Trust Company ___________________________________________
</TABLE>
THE GUARANTEE BELOW MUST BE COMPLETED
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm that is a bank, broker, dealer, credit union, savings
association or other entity which is a member in good standing of the
Securities Transfer Agents Medallion Program, hereby (1) represents that the
tender of Shares and/or Rights effected hereby complies with Rule 14e-4 under
the Securities and Exchange Act of 1934, as amended, and (2) guarantees to
deliver to the Depositary, at one of its addresses set forth above, the
certificates representing all tendered Shares and/or Rights, in proper form for
transfer, or, in the case of Shares and, if available, Rights, a Book-Entry
Confirmation (as defined in the Offer to Purchase), together with a properly
completed and duly executed Letter of Transmittal (or facsimile thereof), with
any required signature guarantees, or, in the case of book-entry transfer of
Shares and, if available, Rights, an Agent's Message (as defined in the Offer
to Purchase), and any other documents required by the Letter of Transmittal
within (a) in the case of Shares, five New York Stock Exchange, Inc. ("NYSE")
trading days after the date of execution of this Notice of Guaranteed Delivery
or (b) in the case of Rights, a period ending on the later of (i) five NYSE
trading days after the date of execution of this Notice of Guaranteed Delivery
and (ii) five business days after the date certificates for Rights are
distributed to holders of Shares.
<TABLE>
<S> <C>
Name of Firm:______________________________ ___________________________________________
(Authorized Signature)
Address:___________________________________
Title:_____________________________________
___________________________________________
Name:______________________________________
Area Code and
Telephone Number:__________________________ ___________________________________________
(Please type or print)
</TABLE>
Date: _______________________________
NOTE: DO NOT SEND CERTIFICATES FOR SHARES OR RIGHTS WITH THIS
NOTICE OF GUARANTEED DELIVERY. CERTIFICATES FOR SHARES OR RIGHTS
SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
<PAGE>
WORLD FINANCIAL
CENTER
NORTH TOWER
NEW YORK, NEW YORK 10281-1305
LOGO (212) 236-4565 (CALL
COLLECT)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
MOORCO INTERNATIONAL INC.
AT
$20.00 NET PER SHARE
BY
MII ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
FMC CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, JUNE 2, 1995 UNLESS THE OFFER IS EXTENDED.
May 5, 1995
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been appointed by MII Acquisition Corp., a Delaware corporation
("Purchaser") and a wholly owned subsidiary of FMC Corporation, a Delaware
corporation ("FMC"), to act as Dealer Manager in connection with the
Purchaser's offer to purchase for cash all the outstanding shares of Common
Stock, par value $.01 per share (the "Shares"), of Moorco International Inc., a
Delaware corporation (the "Company"), and (unless and until the Purchaser
declares the Rights Condition (as defined in the Offer to Purchase) is
satisfied) the associated Preferred Stock Purchase Rights (the "Rights") issued
pursuant to the Rights Agreement, dated as of November 8, 1994 (the "Rights
Agreement"), between the Company and The Bank of New York, a New York banking
corporation, as Rights Agent, 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 together constitute the "Offer") enclosed herewith. Unless and until the
Purchaser declares that the Rights Condition is satisfied, holders of Shares
will be required to tender one Right for each Share tendered in order to effect
a valid tender of such Share. If the Distribution Date (as defined in the Offer
to Purchase) has not occurred prior to the time Shares are tendered pursuant to
the Offer, a tender of Shares will constitute a tender of the associated
Rights. If the Distribution Date has occurred and certificates representing
Rights ("Rights Certificates") have been distributed by the Company to holders
of Shares, such holders of Shares shall be required to tender Rights
Certificates representing a number of Rights equal to the number of Shares
being tendered in order to effect valid tender of such Shares. Holders of
Shares and Rights whose certificates for such Shares (the "Share Certificates")
and, if applicable, Rights Certificates are not immediately available or who
cannot deliver their Share Certificates or, if applicable, their Rights
Certificates, and all other required documents to the Depositary (as defined
below) prior to the Expiration Date (as defined in the Offer to Purchase), or
who cannot complete the procedures for book-entry transfer on a timely basis,
must tender their Shares and Rights according to the guaranteed delivery
procedures set forth in Section 3 of the Offer to Purchase. Unless the context
otherwise requires, all references to Shares shall include the associated
Rights. All references to the Rights shall include all benefits that may inure
to stockholders of the Company or to holders of Rights pursuant to the Rights
Agreement.
<PAGE>
LOGO
Please furnish copies of the enclosed materials to those of your clients for
whose accounts you hold Shares registered in your name or in the name of your
nominee.
The Offer is conditioned upon, among other things: (1) there being validly
tendered and not properly withdrawn prior to the expiration of the Offer that
number of Shares which, when aggregated with the 100 Shares currently owned by
FMC, represent at least a majority of the total number of outstanding Shares
determined on a fully diluted basis on the date of purchase; (2) the Rights
having been redeemed by the Company's Board of Directors or Purchaser being
satisfied, in its sole discretion, that the Rights have been invalidated or are
otherwise inapplicable to the Offer and the Proposed Merger; and (3) Purchaser
being satisfied, in its sole discretion, that after consummation of the Offer,
the restrictions on business combinations as defined and contained in Section
203 of the Delaware General Corporation Law will not apply to the Proposed
Merger. The Offer is also subject to other terms and conditions. See the
Introduction and Sections 1 and 14 of the Offer to Purchase.
Enclosed herewith for your information and forwarding to your clients are
copies of the following documents:
1. The Offer to Purchase, dated May 5, 1995.
2. The green Letter of Transmittal to tender Shares for your use and for
the information of your clients. Facsimile copies of the Letter of
Transmittal may be used to tender Shares.
3. The gold Notice of Guaranteed Delivery for Shares and Rights to be used
to accept the Offer if Share Certificates or Rights Certificates are not
immediately available or if such certificates and all other required
documents cannot be delivered to The Chase Manhattan Bank, N.A. (the
"Depositary") by the Expiration Date or if the procedure for book-entry
transfer cannot be completed by the Expiration Date.
4. A gray printed form of letter which may be sent to your clients for
whose accounts you hold Shares registered in your name or in the name of
your nominee, with space provided for obtaining such clients'
instructions with regard to the Offer.
5. Guidelines of the Internal Revenue Service for Certification of Taxpayer
Identification Number on Substitute Form W-9.
6. A return envelope addressed to The Chase Manhattan Bank, N.A., the
Depositary.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS EXPIRE
AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, JUNE 2, 1995 UNLESS THE OFFER
IS EXTENDED.
2
<PAGE>
LOGO
In order to take advantage of the Offer, (i) a duly executed and properly
completed Letter of Transmittal and any required signature guarantees, or an
Agent's Message (as defined in the Offer to Purchase) in connection with a
book-entry delivery of Shares or Rights, and other required documents should be
sent to the Depositary, and (ii) either Share Certificates (and if applicable,
Rights Certificates) representing the tendered Shares (and, if applicable,
tendered Rights) should be delivered to the Depositary, or such Shares (and, if
applicable, tendered Rights) should be tendered by book-entry transfer into the
Depositary's account maintained at one of the Book-Entry Transfer Facilities
(as described in the Offer to Purchase), all in accordance with the
instructions set forth in the Letter of Transmittal and the Offer to Purchase.
If holders of Shares wish to tender, but it is impracticable for them to
forward their Share Certificates or, if applicable, Rights Certificates, or
other required documents on or prior to the Expiration Date or to comply with
the book-entry transfer procedures on a timely basis, a tender may be effected
by following the guaranteed delivery procedures specified in Section 3 of the
Offer to Purchase.
The Purchaser will not pay any commissions or fees to any broker, dealer or
other person (other than the Dealer Manager, the Depositary and D.F. King &
Co., Inc. (the "Information Agent") (as described in the Offer to Purchase))
for soliciting tenders of Shares pursuant to the Offer. The Purchaser will,
however, upon request, reimburse you for customary clerical and mailing
expenses incurred by you in forwarding any of the enclosed materials to your
clients. The Purchaser will pay or cause to be paid any stock transfer taxes
payable on the transfer of Shares to it, except as otherwise provided in
Instruction 6 of the Letter of Transmittal.
Any inquiries you may have with respect to the Offer should be addressed to
Merrill Lynch & Co., the Dealer Manager, or the Information Agent, at their
respective addresses and telephone numbers set forth on the back cover of the
Offer to Purchase. Additional copies of the enclosed materials may be obtained
from the Information Agent.
Very truly yours,
Merrill Lynch, Pierce, Fenner &
Smith Incorporated
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR
ANY OTHER PERSON THE AGENT OF THE PURCHASER, THE PARENT, THE DEALER MANAGER,
THE COMPANY, THE DEPOSITARY OR THE INFORMATION AGENT, OR ANY AFFILIATE OF ANY
OF THEM, OR AUTHORIZE YOU OR ANY OTHER PERSON TO MAKE ANY STATEMENT OR USE ANY
DOCUMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE
ENCLOSED DOCUMENTS AND THE STATEMENTS CONTAINED THEREIN.
3
<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
MOORCO INTERNATIONAL INC.
AT
$20.00 NET PER SHARE
BY
MII ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
FMC CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, JUNE 2, 1995, UNLESS THE OFFER IS EXTENDED.
To Our Clients:
Enclosed for your consideration is an Offer to Purchase dated May 5, 1995
(the "Offer to Purchase"), and the related Letter of Transmittal relating to an
offer by MII Acquisition Corp., a Delaware corporation ("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 (unless and until the Purchaser declares that the Rights
Condition (as defined in the Offer to Purchase) is satisfied) the associated
Preferred Stock Purchase Rights (the "Rights") issued pursuant to the Rights
Agreement, dated as of November 8, 1994, (the "Rights Agreement"), between the
Company and The Bank of New York, a New York banking corporation, as Rights
Agent, 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 and in the related Letter of
Transmittal (which together constitute the "Offer"). Unless the context
requires otherwise, all references to "Shares" shall be deemed to refer also to
the associated Rights. We are the holder of record of Shares held by us for
your account. A tender of such Shares can be made only by us as the holder of
record and pursuant to your instructions. The Letter of Transmittal is
furnished to you for your information only and cannot be used by you to tender
Shares held by us for your account.
Unless and until the Purchaser declares that the Rights Condition (as defined
below) is satisfied, if certificates representing Rights (the "Rights
Certificates") have been distributed to holders of Shares, such holders are
required to tender Rights Certificate(s) representing a number of Rights equal
the number of Shares being tendered in order to effect a valid tender of such
Shares. Based on the Company's filings with the Securities and Exchange
Commission (the "Commission"), until the Distribution Date (as defined in the
Offer to Purchase), the surrender for transfer of any of the certificates
representing Shares (the "Share Certificates") will also constitute the
surrender for transfer of the Rights associated with the Shares represented by
such Share Certificates. Based on the Company's filings with the Commission, as
soon as practicable following the Distribution Date, the Rights Certificates
will be mailed to holders of record of Shares as of the close of business on
the Distribution Date; after the Distribution Date, such separate Rights
Certificates alone will evidence the Rights. See Section 3 of the Offer to
Purchase.
<PAGE>
We request instructions as to whether you wish to have us tender on your
behalf any or all of such Shares held by us for your account, pursuant to the
terms and subject to the conditions set forth in the Offer to Purchase. Your
instructions to tender Shares held by us for your account will also constitute
a direction to us to tender a number of Rights held by us for your account
equal to the number of Shares tendered.
Your attention is directed to the following:
1. The tender price is $20 per Share, net to the seller in cash without
interest thereon.
2. The Offer is made for all of the outstanding Shares.
3. The Offer and withdrawal rights will expire at 12:00 Midnight, New York
City time, on June 2, 1995 unless the Offer is extended.
4. The Offer is conditioned upon, among other things: (1) there being
validly tendered and not properly withdrawn prior to the expiration of
the Offer that number of Shares which, when aggregated with the 100
Shares currently owned by FMC, represents at least a majority of the
total number of outstanding Shares determined on a fully diluted basis
on the date of purchase; (2) the Rights having been redeemed by the
Company's Board of Directors or Purchaser being satisfied, in its sole
discretion, that the Rights have been invalidated or are otherwise
inapplicable to the Offer and the Proposed Merger; and (3) Purchaser
being satisfied, in its sole discretion, that after consummation of the
Offer, the restrictions on business combinations as defined and
contained in Section 203 of the Delaware General Corporation Law will
not apply to the Proposed Merger. The Offer is also subject to other
terms and conditions. See the Introduction and Sections 1 and 14 of the
Offer to Purchase.
5. Tendering shareholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, ("Stock Transfer Taxes") on the purchase of Shares pursuant
to the Offer.
The Offer is being made solely by the Offer to Purchase and the related
Letter of Transmittal and is being made to all holders of Shares. Purchaser is
not aware of any state where the making of the Offer is prohibited by
administrative or judicial action pursuant to any valid state statute. If
Purchaser becomes aware of any valid state statute prohibiting the making of
the Offer or the acceptance of Shares pursuant thereto, Purchaser will make a
good faith effort to comply with any such state statute. If, after such good
faith effort, Purchaser cannot comply with such state statute, the Offer will
not be made to nor will tenders be accepted from or on behalf of the holders of
Shares in such state. In any jurisdiction where the securities, blue sky or
other laws require the Offer to be made by a licensed broker or dealer, the
Offer shall be deemed to be made on behalf of Purchaser by the Dealer Manager
or one or more registered brokers or dealers that are licensed under the laws
of such jurisdiction.
If you wish to have us tender any or all of the Shares held by us for your
account, please instruct us by completing, executing and returning to us the
instruction form contained in this letter. If you authorize a tender of your
Shares, all such Shares will be tendered unless otherwise specified in such
instruction form. Your instructions should be forwarded to us in ample time to
permit us to submit a tender on your behalf prior to the expiration of the
Offer.
2
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
MOORCO INTERNATIONAL INC.
The undersigned acknowledge(s) receipt of your letter enclosing the Offer to
Purchase dated May 5, 1995 (the "Offer to Purchase") and the related Letter of
Transmittal pursuant to an offer by MII Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of FMC Corporation, a Delaware
corporation, to purchase all outstanding shares of Common Stock, $.01 par value
per share (the "Shares"), of Moorco International Inc., a Delaware corporation,
and (unless and until the Purchaser declares that the Rights Condition (as
defined in the Offer to Purchase) is satisfied) the associated preferred stock
purchase rights (the "Rights").
This will instruct you to tender the number of Shares and Rights indicated
below (or, if no number is indicated below, all Shares and Rights) which are
held by you for the account of the undersigned, upon the terms and subject to
the conditions set forth in the Offer to Purchase and in the related Letter of
Transmittal furnished to the undersigned.
Number of Shares (and Rights) to be SIGN HERE
Tendered*
___________________________________
Shares (and Rights) ___________________________________
Signature(s)
Dated , 1995
___________________________________
Please print name(s)
___________________________________
Address
___________________________________
Area Code and Telephone Number
___________________________________
Tax Identification or Social
Security Number
- --------
* Unless otherwise indicated, it will be assumed that all of your Shares (and
Rights) held by us for your account are to be tendered.
3
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER.--Social Security numbers have nine digits separated by two hyphens: i.e.
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e. 00-0000000. The table below will help determine the number to
give the payer.
- --------------------------------------- ---------------------------------------
<TABLE>
<CAPTION>
GIVE THE
FOR THIS TYPE OF ACCOUNT: SOCIAL SECURITY
NUMBER OF--
- -----------------------------------------------
<S> <C>
1. An individual's account The individual
2. Two or more individuals The actual owner
(joint account) of the account
or, if combined
funds, any one of
the
individuals(1)
3. Husband and wife (joint The actual owner
account) of the account
or, if
joint funds,
either person(1)
4. Custodian account of a The minor(2)
minor (Uniform Gift to
Minors Act)
5. Adult and minor (joint The adult or, if
account) the minor is the
only contributor,
the minor(1)
6. Account in the name of The ward, minor,
guardian or committee for a or incompetent
designated ward, minor, or person(3)
incompetent person
7. a. The usual revocable The grantor-
savings trust account trustee(1)
(grantor is also
trustee)
b. So-called trust account The actual
that is not a legal or owner(1)
valid trust under State
law
8. Sole proprietorship The owner(4)
account
</TABLE>
<TABLE>
<CAPTION>
GIVE THE EMPLOYER
FOR THIS TYPE OF ACCOUNT: IDENTIFICATION
NUMBER OF --
--------
<S> <C>
9. A valid trust, estate, or The legal entity
pension trust (Do not furnish
the identifying
number of the
person
representative or
trustee unless
the legal entity
itself is not
designated in the
account
title.)(5)
10. Corporate account The corporation
11. Religious, charitable, or The organization
educational organization
account
12. Partnership account held The partnership
in the name of the business
13. Association, club, or The organization
other tax-exempt
organization
14. A broker or registered The broker or
nominee nominee
15. Account with the The public entity
Department of Agriculture
in the name of a public
entity (such as a State or
local government, school
district, or prison) that
receives agricultural
program payments
</TABLE>
---------------------------------------
- ---------------------------------------
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate, or pension
trust.
NOTE: If no name is circled when there is more than one name, the number will
be considered to be that of the first name listed.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER OF SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or
Form SS-4, Application for Employer Identification Number, at the local office
of the Social Security Administration or the Internal Revenue Service and
apply for a number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include
the following:
. A corporation.
. A financial institution.
. An organization exempt from tax under section 501(a), or an individual
retirement plan.
. The United States or any agency or instrumentality thereof.
. A State, the District of Columbia, a possession of the United States, or
any subdivision or instrumentality thereof.
. A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
. An international organization or any agency, or instrumentality thereof.
. A registered dealer in securities or commodities registered in the U.S.
or a possession of the U.S.
. A real estate investment trust.
. A common trust fund operated by a bank under section 584(a)
. An exempt charitable remainder trust, or a non-exempt trust described in
section 4947(a)(1).
. An entity registered at all times under the Investment Company Act of
1940.
. A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
. Payments to nonresident aliens subject to withholding under section 1441.
. Payments to partnerships not engaged in a trade or business in the U.S.
and which have at least one nonresident partner.
. Payments of patronage dividends where the amount received is not paid in
money.
. Payments made by certain foreign organizations.
. Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
. Payments of interest on obligations issued by individuals. Note: You may
be subject to backup withholding if this interest is $600 or more and is
paid in the course of the payer's trade or business and you have not
provided your correct taxpayer identification number to the payer.
. Payments of tax-exempt interest (including exempt-interest dividends
under section 852).
. Payments described in section 6049(b)(5) to non-resident aliens.
. Payments on tax-free covenant bonds under section 1451.
.Payments made by certain foreign organizations.
.Payments made to a nominee.
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT
TO THE PAYER. IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS,
ALSO SIGN AND DATE THE FORM.
Certain payments other than interest, dividends, and patronage dividends,
that are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041(a),
6045, and 6050A.
PRIVACY ACT NOTICE.--Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification numbers to payers
who must report the payments to the IRS. The IRS uses the numbers for
identification purposes. Payers must be given the numbers whether or not
recipients are required to file a tax return. Payers must generally withhold
31% of taxable interest, dividend, and certain other payments to a payee who
does not furnish a taxpayer identification number to a payer. Certain
penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you
fail to furnish your taxpayer identification number to a payer, you are
subject to a penalty of $50 for each such failure unless your failure is due
to reasonable cause and not to willful neglect.
(2) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS.--If you fail to
include any portion of an includible payment for interest, dividends, or
patronage dividends in gross income, such failure will be treated as being due
to negligence and will be subject to a penalty of 5% on any portion of an
under-payment attributable to that failure unless there is clear and
convincing evidence to the contrary.
(3) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(4) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE
<PAGE>
This announcement is neither an offer to purchase nor a solicitation of an
offer to sell Shares. The Offer is made solely by the Offer to Purchase dated
May 5, 1995 and the related Letter of Transmittal and is being made to all
holders of Shares. The Purchaser is not aware of any state where the making of
the Offer is prohibited by administrative or judicial action pursuant to a state
statute. If the Purchaser becomes aware of any state where the making of the
Offer is prohibited, the Purchaser will make a good faith effort to comply with
any such statute or seek to have such statute declared inapplicable to the
Offer. If, after such good faith effort, the Purchaser cannot comply with any
applicable statute, the Offer will not be made to (nor will tenders be accepted
from or on behalf of) the holders of Shares in such state. In those
jurisdictions whose securities, blue sky or other laws require the Offer to be
made by a licensed broker or dealer, the Offer shall be deemed to be made on
behalf of the Purchaser by Merrill Lynch, Pierce, Fenner & Smith Incorporated or
one or more registered brokers or dealers licensed under the laws of such
jurisdictions.
Notice of Offer to Purchase for Cash
All Outstanding Shares of Common Stock
(including the Associated Preferred Stock Purchase Rights)
of
Moorco International Inc.
at
$20 Net Per Share
by
MII Acquisition Corp.
a wholly owned subsidiary of
FMC Corporation
MII Acquisition Corp., a Delaware corporation (the "Purchaser") and a
wholly owned subsidiary of FMC Corporation, a Delaware corporation ("FMC"),
hereby offers to purchase all of the outstanding shares of common stock, par
value $.01 per share (the "Shares"), of Moorco International Inc., a Delaware
corporation (the "Company"), and (unless and until the Purchaser declares that
the Rights Condition (as defined below) is satisfied) 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 (as the same may be amended, the
"Rights Agreement"), at a purchase price of $20.00 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
together constitute the "Offer"). Unless the context requires otherwise, all
references to Shares shall be deemed to refer also to the associated Rights, and
all references to Rights shall be deemed to include all benefits that may inure
to the stockholders of the Company or to holders of Rights pursuant to the
Rights Agreement.
<PAGE>
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON FRIDAY, JUNE 2, 1995, UNLESS THE OFFER IS EXTENDED.
The Offer is conditioned upon, among other things, (1) there being validly
tendered and not properly withdrawn prior to the expiration of the Offer that
number of Shares which, when aggregated with the Shares currently owned by FMC,
represent at least a majority of the total number of outstanding Shares on a
fully diluted basis on the date of purchase (the "Minimum Condition"); (2) the
Company's Rights having been redeemed by the Company's Board of Directors or the
Purchaser being satisfied, in its sole discretion, that the Rights have been
invalidated or are otherwise inapplicable to the Offer and the Proposed Merger
described below (the "Rights Condition"); and (3) the Purchaser being satisfied,
in its sole discretion, that after consummation of the Offer, the restrictions
on business combinations contained in Section 203 of the Delaware General
Corporation Law ("Delaware Law"), will not apply to the Proposed Merger
described below (the "Business Combination Condition"). The Offer is also
subject to other terms and conditions. See the Introduction and Sections 1, 14
and 15 of the Offer to Purchase.
The purpose of the Offer is to acquire control of, and the entire equity
interest in, the Company. The Purchaser currently intends, as soon as
practicable following completion of the Offer, to propose and seek to have the
Company consummate a merger or similar business combination with the Purchaser
(the "Proposed Merger") pursuant to which each then outstanding Share (other
than Shares held by FMC or any of its wholly owned subsidiaries, Shares held in
the treasury of the Company and Shares held by stockholders who perfect
appraisal rights under Delaware law) would be converted into the right to
receive cash in the same amount as received per Share in the Offer, and the
Company would become a wholly owned subsidiary of FMC. The consummation of the
Merger would be subject to a number of factors (including satisfaction of
various conditions) discussed in the Introduction and in Sections 11 and 14 of
the Offer to Purchase. Section 11 of the Offer to Purchase also discusses
certain appraisal rights available to stockholders upon consummation of the
Merger.
Unless and until the Purchaser declares that the Rights Condition is
satisfied, if certificates representing Rights ("Rights Certificates") have been
distributed to holders of Shares, such holders will be required to tender Rights
Certificates representing a number of Rights equal to the number of Shares being
tendered in order to effect a valid tender of such Shares.
For purposes of the Offer, the Purchaser will be deemed to have accepted
for payment (and thereby purchased) Shares validly tendered and not properly
withdrawn as, if and when the Purchaser gives oral or written notice to The
Chase Manhattan Bank, N.A. (the "Depositary") of the Purchaser's acceptance of
such Shares for payment pursuant to the Offer. In all cases, upon the terms and
subject to the conditions of the Offer, payment for Shares accepted for payment
pursuant to the Offer will be made by deposit of the purchase price therefor
with the Depositary, which will act as agent for tendering stockholders for the
purpose of receiving payments from the Purchaser and transmitting such payments
to stockholders whose Shares have been accepted for payment. Under no
-2-
<PAGE>
circumstance will interest on the purchase price for Shares be paid, regardless
of any delay in making such payment. In all cases, payment for Shares tendered
and accepted for payment pursuant to the Offer will be made only after timely
receipt by the Depositary of (i) certificates representing shares ("Share
Certificates") and, if applicable, Rights Certificates for the associated
Rights, or timely confirmation of a book-entry transfer of such Shares and, if
applicable, Rights into the Depositary's account at The Depository Trust
Company, the Midwest Securities Trust Company or the Philadelphia Depository
Trust Company (each a "Book-Entry Transfer Facility") pursuant to the procedures
set forth in Section 3 of the Offer to Purchase; (ii) the Letter of Transmittal
(or a facsimile thereof) properly completed and duly executed, with any required
signature guarantees, or an Agent's Message (as defined in Section 2 of the
Offer to Purchase) in connection with a book-entry transfer, and (iii) any other
documents required by the Letter of Transmittal.
The Purchaser expressly reserves the right, in its sole discretion, at any
time and from time to time, to extend the period during which the Offer is open
for any reason, including, without limitation, the occurrence of any of the
events or non-satisfaction of any of the conditions specified in the
Introduction or in Section 14 of the Offer to Purchase, by giving oral or
written notice of such extension to the Depositary. Any such extension will be
followed as promptly as practicable by public announcement to be made no later
than 9:00 A.M., New York City time, on the next business day after the
previously scheduled Expiration Date.
The term "Expiration Date" means 12:00 Midnight, New York City time, on
Friday, June 2, 1995, unless and until the Purchaser, in its sole discretion,
shall have extended the period during which the Offer is open, in which event
the term "Expiration Date" shall mean the latest time and date at which the
Offer, as so extended by the Purchaser, shall expire.
Except as otherwise provided in Section 4 of the Offer to Purchase, tenders
of Shares and Rights made pursuant to the Offer are irrevocable. Shares and
Rights tendered pursuant to the Offer may be withdrawn at any time on or prior
to the Expiration Date and, unless theretofore accepted for payment by the
Purchaser pursuant to the Offer, may also be withdrawn at any time after
July 5, 1995. In order for a withdrawal to be effective, a written or
facsimile transmission notice of withdrawal must be timely received by the
Depositary at one of its addresses set forth on the back cover of the Offer to
Purchase. Any such notice of withdrawal must specify the name of the person who
tendered the Shares or Rights to be withdrawn, the number of Shares and Rights
to be withdrawn and the name of the registered holder, if different from that of
the person who tendered such Shares and Rights. If Share Certificates and
Rights Certificates to be withdrawn have been delivered or otherwise identified
to the Depositary, then, prior to the physical release of such certificates, the
serial numbers shown on such certificates must be submitted to the Depositary
and the signatures on the notice of withdrawal must be guaranteed by an Eligible
Institution (as defined in Section 3 of the Offer to Purchase), except in the
case of Shares and Rights tendered for the account of any Eligible Institution.
If Shares and Rights have been tendered pursuant to the procedure for book-entry
transfer as set forth in Section 3 of the Offer to Purchase, the notice of
withdrawal must specify the name and number of the account at the appropriate
Book-Entry Transfer Facility to be credited with
-3-
<PAGE>
the withdrawn Shares and Rights, in which case a notice of withdrawal will be
effective if delivered to the Depositary by any method of delivery described in
the second sentence of this paragraph. Withdrawals of Shares and Rights may not
be rescinded. All questions as to the term and validity (including time of
receipt) of any notice of withdrawal will be determined by the Purchaser, in its
sole discretion, whose determination will be final and binding.
The information required to be disclosed by Rule 14d-6(e)(1)(vii) of the
General Rules and Regulations under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), is contained in the Offer to Purchase and is
incorporated herein by reference.
A demand is being made to the Company pursuant to both Delaware Law and
Rule 14d-5 under the Exchange Act for the use of the Company's stockholder list
and security position listings for the purpose of, among other things,
disseminating the Offer to holders of Shares. Upon compliance by the Company
with such request, the Offer to Purchase and the related Letter of Transmittal
and, if required, other relevant materials will be mailed to record holders of
Shares and Rights whose names appear on the Company's list of stockholders and
will be furnished to brokers, dealers, commercial banks, trust companies and
similar persons whose names, or the names of whose nominees, appear on the list
of stockholders, or who are listed as participants in a clearing agency's
security position listing for subsequent transmittal to beneficial owners of
Shares.
The Offer to Purchase and the related Letter of Transmittal contain
important information which should be read before any decision is made with
respect to the Offer.
Questions and requests for assistance may be directed to the Dealer Manager
or the Information Agent as set forth below. Requests for copies of the Offer to
Purchase and the related Letter of Transmittal and all other tender offer
materials may be directed to the Information Agent, and copies will be furnished
promptly at the Purchaser's expense. The Purchaser will not pay any fees or
commissions to any broker or dealer or any other person (other than the Dealer
Manager and the Information Agent) for soliciting tenders of Shares and Rights
pursuant to the Offer.
The Information Agent for the Offer is:
D.F. King & Co., Inc.
77 Water Street
New York, New York 10005
Banks and Brokers Call Collect (212) 269-5550
All Others Call Toll Free (800) 758-7358
-4-
<PAGE>
The Dealer Manager for the Offer is:
Merrill Lynch & Co.
World Financial Center
North Tower
New York, New York 10281-1305
(212) 236-4565 (Call Collect)
May 5, 1995
-5-
<PAGE>
INVESTOR
RELATIONS: MEDIA:
Cheryl Francis Pat Brozowski
Immediate (312) 861-6674 (312) 861-6104
FMC MAKES CASH TENDER OFFER FOR MOORCO INTERNATIONAL
CHICAGO, May 5, 1995 -- FMC Corporation today announced that it has
commenced a tender offer for all of the approximately 11.1 million outstanding
shares of Moorco International Inc. at $20 per share in cash.
FMC Chairman and Chief Executive Officer Robert N. Burt said: "More
than a month has passed since we made our original proposal to Moorco in our
letter of April 3. We made an attractive proposal of $20 per share in cash.
That proposal represented a price 45 percent higher than the March 31, 1995,
closing market price of Moorco stock, the last trading day prior to our letter
of April 3, and 21.5 times Moorco's latest 12-month net income. Also, our
proposal was not subject to any financing conditions.
"We have had neither constructive dialogue nor substantive
negotiations since Moorco's announcement that its board of directors would
evaluate the proposal. Moorco's stockholders should be given the opportunity to
decide for themselves whether to accept our proposal."
The following letter was sent from Mr. Burt to Moorco President and
Chief Executive Officer Michael L. Tiner and to Moorco's board today.
-more-
<PAGE>
Page 2/FMC MAKES CASH TENDER OFFER FOR MOORCO
May 5, 1995
Board of Directors
Moorco International, Inc.
2800 Post Oak Blvd. Suite 5701
Houston, TX 77056-6111
Attention: Michael L. Tiner
President and Chief Executive Officer
Dear Mr. Tiner:
More than a month ago, FMC proposed to enter into negotiations to acquire
Moorco. We have waited patiently, hoping to enter into a constructive dialogue
regarding a transaction that would maximize your stockholders' value. We are
extremely disappointed to have learned that your board has responded with an
unreasonable set of conditions and threats regarding such discussions.
Specifically, your characterization of our cash offer of $20 per share as
grossly inadequate is inconsistent with traditional and reasonable valuation
measures and not at all justified. Your insistence upon our agreeing to a one-
year standstill is inconsistent with the objective of delivering to your
stockholders a full and fair value in a timely fashion. Finally, your threat of
excluding FMC from a process leading to the sale of the company, should one be
initiated by Moorco, is contrary to the best interests of your stockholders.
When I accepted your invitation to meet with you in Houston on May 1, I was
hopeful we could begin negotiations on our April 3 proposal, which we discussed
in further detail with you on April 18. I was disappointed with your prepared
statement that unjustifiably labeled our proposal "grossly inadequate," despite
the fact that it represented a price 45 percent higher than the March 31, 1995
closing market price of Moorco stock, the last trading day prior to our letter
of April 3, and 21.5 times Moorco's latest 12-month net income.
Most disturbing of all, however, were the unreasonable conditions and threats
you outlined.
<PAGE>
Page 3/FMC MAKES CASH TENDER OFFER FOR MOORCO
You demanded that FMC enter into a one-year standstill agreement with Moorco in
order to receive any further information that might support a value in excess of
our $20 per share proposal. I indicated our willingness to consider the idea of
an additional 30-day standstill, as no serious or dedicated analysis and
negotiation should require more than 60 days (the time since our offer, plus an
additional 30 days). A one-year standstill is clearly an attempt to impose a
delay to the detriment of your stockholders and FMC. Furthermore, it creates
uncertainty among your customers and your employees about the company's future
prospects and value.
You and your representatives also stated that if we do not sign the standstill,
you would exclude FMC from or keep us outside any process regarding the sale of
Moorco. This threat to tilt the playing field against us and not employ a fair
process that includes all interested parties is inconsistent with the best
interests of your stockholders.
In light of all this, we have reluctantly concluded that our only alternative is
to pursue this transaction by going directly to Moorco's stockholders with our
offer. Therefore, today we have commenced a tender offer for all outstanding
Moorco shares, at $20 per share in cash.
As we discussed at our April 18 meeting, the logic and fit of our proposal are
as compelling as ever:
. FMC's strategy is to combine Moorco's business strengths with FMC's
strengths in its Energy and Transportation Equipment Group and grow the
combined businesses. Specifically, we see the ability to do this as a
result of the geographic synergies we outlined with regard to the North
Sea, the customer synergies we discussed in building and extending
relationships with the oil field services companies, and the natural
product fit clearly evident between Moorco's meters and FMC's marine
loading systems.
. FMC would provide Moorco with substantial size, a global presence,
established international business relationships and financial strength.
We expect the growth from the combined entity will be substantial and will
offer new opportunities for Moorco's people. We have respect for your
organization, and we need Moorco's employees to realize the potential of
the combination. In addition, Moorco fits with FMC's growth strategy to be
a global supplier to the oil field of the future. We are determined to be
a strong competitor, and we are willing to commit the human and financial
resources necessary to achieve that goal.
-more-
<PAGE>
Page 4/FMC MAKES CASH TENDER OFFER FOR MOORCO
We would still prefer to have a constructive dialogue and negotiate an
agreement. Although we have commenced a tender offer, we remain interested in
entering negotiations with you to reach an agreement that could be approved by
your board of directors. That course would truly be in the best interests of
your stockholders.
Sincerely,
FMC Corporation
Robert N. Burt
Chairman and Chief Executive Officer
The tender offer and withdrawal rights thereunder will expire at 12:00
Midnight, New York City time, on Friday, June 2, 1995, unless the offer is
extended.
The offer is conditioned upon, among other things, there being validly
tendered and not properly withdrawn prior to the expiration of the offer shares
representing, together with the 100 shares already owned by FMC, at least a
majority of the total number of outstanding shares of Moorco common stock on a
fully diluted basis; Moorco's Preferred Stock Purchase Rights having been
redeemed by its board of directors or FMC's MII Acquisition Corp. being
satisfied, in its sole discretion, that the Rights have been invalidated or
otherwise are inapplicable to the offer and the proposed merger; and MII
Acquisition Corp. being satisfied, in its sole discretion, that the restrictions
on business combinations as defined and contained in Section 203 of the Delaware
General Corporation Law will not apply to the proposed merger.
FMC also said it was proceeding to file a Premerger Notification and
Report Form with the Federal Trade Commission and the Anti-Trust Division of the
Department of Justice under the Hart-Scott-Rodino Antitrust Improvement Act.
-more-
<PAGE>
Page 5/FMC MAKES CASH TENDER OFFER FOR MOORCO
This news release does not constitute a solicitation of a proxy, consent
or authorization for or with respect to a meeting of the company's stockholders
or any action in lieu thereof. Any such solicitations will be made only
pursuant to separate materials in compliance with the requirements of Section
14(a) of the Securities Exchange Act of 1934, as amended.
The complete terms and conditions of the Offer are set forth in the
Offer to Purchase, a copy of which is available by contacting the Information
Agent,
D.F. King & Co., Inc. (Banks and brokers call collect: (212) 758-7358. All
others call toll free (800) 269-5550.)
Merrill Lynch & Co. is the Dealer Manager for the Offer.
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 21,000 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.
# # #
<PAGE>
[EXECUTION COPY]
$250,000,000
5-YEAR
CREDIT AGREEMENT
dated as of
December 16, 1994
among
FMC CORPORATION,
FMC FOOD MACHINERY AND CHEMICAL HOLDING COMPANY, B.V.
THE LENDERS PARTY HERETO
and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Agent
<PAGE>
TABLE OF CONTENTS/1/
Page
----
ARTICLE I
DEFINITIONS
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 1.01. Definitions.......................... 1
SECTION 1.02. Accounting Terms and Determinations.. 15
SECTION 1.03. Types of Borrowings.................. 15
</TABLE>
ARTICLE II
THE CREDITS
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 2.01. Commitments to Lend.................. 16
SECTION 2.02. Notice of Committed Borrowings....... 16
SECTION 2.03. Money Market Borrowings.............. 17
SECTION 2.04. Notice to Lenders; Funding of Loans.. 21
SECTION 2.05. Notes................................ 22
SECTION 2.06. Maturity of Loans.................... 23
SECTION 2.07. Interest Rates....................... 23
SECTION 2.08. Fees................................. 27
SECTION 2.09. Scheduled Termination................ 27
SECTION 2.10. Optional Reduction of Commitments.... 27
SECTION 2.11. Optional Prepayments................. 28
SECTION 2.12. Payments............................. 28
SECTION 2.13. Funding Losses....................... 29
SECTION 2.14. Computation of Interest and Fees..... 29
SECTION 2.15. Withholding Tax Exemption............ 30
SECTION 2.16. Judgment Currency.................... 30
</TABLE>
ARTICLE III
CONDITIONS
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 3.01. Conditions to Borrowing.............. 32
</TABLE>
______________________
/1/The Table of Contents is not a part of this Agreement.
i
<PAGE>
Page
----
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 4.01. Corporate or Partnership Existence and Power 33
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention............................
SECTION 4.03. Binding Effect............................. 33
SECTION 4.04. Financial Information...................... 34
SECTION 4.05. Litigation................................. 34
SECTION 4.06. Compliance with ERISA...................... 34
SECTION 4.07. Environmental Matters...................... 35
SECTION 4.08. Taxes...................................... 35
SECTION 4.09. Full Disclosure............................ 35
SECTION 4.10. Compliance with Laws....................... 36
SECTION 4.11. Corporate Existence and Power.............. 36
SECTION 4.12. Corporate and Governmental Authorization;
Contravention............................ 36
SECTION 4.13. Binding Effect............................. 36
SECTION 4.14. Taxes...................................... 36
</TABLE>
ARTICLE V
COVENANTS
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 5.01. Information................................ 37
SECTION 5.02. Payment of Obligations..................... 40
SECTION 5.03. Maintenance of Property; Insurance......... 41
SECTION 5.04. Inspection of Property, Books and Records.. 41
SECTION 5.05. Maintenance of Existence, Rights, Etc...... 41
SECTION 5.06. Liens...................................... 42
SECTION 5.07. Consolidations, Mergers and Sales of Assets 43
SECTION 5.08. Dividend Payments.......................... 44
SECTION 5.09. Cash Flow Coverage......................... 44
SECTION 5.10. Leverage Ratio............................. 45
SECTION 5.11. Minimum Net Worth.......................... 45
SECTION 5.12. Use of Proceeds............................ 45
</TABLE>
ARTICLE VI
DEFAULTS
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 6.01. Defaults................................... 45
SECTION 6.02. Notice of Default.......................... 49
</TABLE>
ii
<PAGE>
Page
----
ARTICLE VII
THE AGENT
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 7.01. Appointment and Authorization.............. 49
SECTION 7.02. Agent and Affiliates....................... 49
SECTION 7.03. Action by Agent............................ 49
SECTION 7.04. Consultation with Experts.................. 49
SECTION 7.05. Liability of Agent......................... 49
SECTION 7.06. Indemnification............................ 50
SECTION 7.07. Credit Decision............................ 50
SECTION 7.08. Agent's Fees............................... 50
SECTION 7.09. Successor Agent............................ 50
</TABLE>
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 8.01. Basis for Determining Interest Rate Inadequate
or Unfair................................ 51
SECTION 8.02. Illegality................................. 52
SECTION 8.03. Increased Cost and Reduced Return.......... 52
SECTION 8.04. Base Rate Loans Substituted for Affected Fixed
Rate Loans............................... 54
</TABLE>
ARTICLE IX
GUARANTY
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 9.01. The Guaranty............................... 55
SECTION 9.02. Guaranty Unconditional..................... 55
SECTION 9.03. Discharge Only Upon Payment In Full;
Reinstatement In Certain Circumstances...
SECTION 9.04. Waiver by the Company...................... 56
SECTION 9.05. Subrogation................................ 57
SECTION 9.06. Stay of Acceleration....................... 57
</TABLE>
ARTICLE X
MISCELLANEOUS
iii
<PAGE>
Page
----
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 10.01. Notices................................... 57
SECTION 10.02. No Waivers................................ 57
SECTION 10.03. Expenses; Documentary Taxes;
Indemnification for Litigation............................. 58
SECTION 10.04. Amendments and Waivers.................... 58
SECTION 10.05. Sharing of Set-Offs....................... 59
SECTION 10.06. Governing Law; Submission to Jurisdiction. 59
SECTION 10.07. Successors and Assigns.................... 60
SECTION 10.08. Collateral................................ 62
SECTION 10.09. Counterparts; Integration................. 62
SECTION 10.10. WAIVER OF JURY TRIAL...................... 62
SECTION 10.11. Confidentiality........................... 62
</TABLE>
ARTICLE XI
EFFECTIVENESS
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 11.01. Effectiveness............................. 63
SECTION 11.02. Termination of Existing Credit Agreement;
Outstanding Money Market Loans........... 64
</TABLE>
SCHEDULES AND EXHIBITS
Pricing Schedule
Exhibit A - Note
Exhibit B - Money Market Quote
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Opinion of Davis Polk & Wardwell, Special
Counsel for the Agent
Exhibit F - Opinion of Counsel for the Company and BV
Exhibit G - Opinion of Counsel for BV
Exhibit H - Assignment and Assumption Agreement
iv
<PAGE>
5-YEAR
CREDIT AGREEMENT
----------------
AGREEMENT dated as of December 16, 1994 among FMC CORPORATION, FMC
FOOD MACHINERY & CHEMICAL HOLDING COMPANY, B.V., the LENDERS party hereto and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have
-----------
the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.03.
"Adjusted CD Rate" has the meaning set forth in Section 2.07(b).
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.07(c).
"Adjusted Total Debt" means at any date the Debt of the Company and
its Consolidated Restricted Subsidiaries, determined on a consolidated basis as
of such date, less any Debt reflected therein which is owed to FMC Gold (i) to
the extent that the aggregate principal amount of Debt so owed does not exceed
$250,000,000 and (ii) if and for so long as FMC Gold is a Consolidated
Subsidiary at such date.
"Administrative Questionnaire" means, with respect to each Lender, an
administrative questionnaire in the form prepared by the Agent and submitted to
the Agent (with a copy to the Company) duly completed by such Lender.
"Agent" means Morgan Guaranty Trust Company of New York in its
capacity as agent for the Lenders hereunder, and its successors in such
capacity.
"Applicable Lending Office" means, with respect to any Lender, (i) in
the case of its Domestic Loans, its Domestic Lending Office, (ii) in the case of
its Euro-Dollar
<PAGE>
Loans, its Euro-Dollar Lending Office and (iii) in the case of its Money Market
Loans, its Money Market Lending Office.
"Assessment Rate" has the meaning set forth in Section 2.07(b).
"Assignee" has the meaning set forth in Section 9.07(c).
"Base Rate" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"Base Rate Loan" means a Committed Loan made or to be made by a Lender
as a Base Rate Loan in accordance with the applicable Notice of Borrowing or
pursuant to Article VIII.
"Borrower" means either the Company or BV in its capacity as a
borrower under this Agreement, as the context may require, and "Borrowers" means
both of them. References to "the Borrower" are to whichever Borrower is the
actual or prospective borrower of the related Loans.
"Borrowing" has the meaning set forth in Section 1.03.
"BV" means FMC Food Machinery and Chemical Holding Company, B.V., a
corporation organized under the laws of the Netherlands, and its successors.
"CD Base Rate" has the meaning set forth in Section 2.07(b).
"CD Loan" means a Committed Loan made or to be made by a Lender as a
CD Loan in accordance with the applicable Notice of Borrowing.
"CD Margin" has the meaning set forth in Section 2.07(b).
"CD Reference Lender" means Union Bank of Switzerland, The Chase
Manhattan Bank, N.A. and Morgan Guaranty Trust Company of New York.
"Committed Loan" means a loan made by a Lender pursuant to Section
2.01.
"Commitment" means, with respect to each Lender, the amount set forth
opposite the name of such Lender on the
2
<PAGE>
signature pages hereof, as such amount may be reduced from time to time pursuant
to Section 2.10 or increased or reduced by reason of an assignment to or by such
Lender in accordance with Section 10.07(c).
"Commitment Termination Date" means December 16, 1999, or, if such day
is not a Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day.
"Commodity Hedging Proceeds" means any gain or loss arising from the
settlement of a forward or futures sale contract by the Company or any
Consolidated Restricted Subsidiary covering either gold or silver.
"Common Stock" means all capital stock of an issuer except capital
stock as to which both the entitlement to dividends and the participation in
assets upon liquidation are by the terms of such capital stock limited to a
fixed or determinable amount.
"Company" means FMC Corporation, a Delaware corporation, and its
successors.
"Consolidated Adjusted Net Worth" means, at any date, the sum of (i)
the consolidated stockholders' equity of the Company and its Consolidated
Subsidiaries as at June 30, 1992, plus (ii) the cumulative Consolidated Net
----
Income for the period from July 1, 1992 through the end of the then most
recently ended fiscal quarter of the Company, treated for this purpose as a
single accounting period, plus or minus (iii) the net amount by which the
---- -----
consolidated stockholders' equity of the Company and its Consolidated Restricted
Subsidiaries has been increased or decreased subsequent to June 30, 1992 on
account of items not reflected in Consolidated Net Income (other than items
specifically excluded from Consolidated Net Income pursuant to the terms of this
Agreement).
"Consolidated Capital Expenditures" means, for any period, the
aggregate of all capital expenditures by the Company and its Subsidiaries that
are reflected in the consolidated statement of cash flows of the Company and its
Consolidated Subsidiaries for such period.
"Consolidated Cash Flow" means for any period Consolidated Net Income
for such period, plus (i) the aggregate pre-tax amounts deducted in determining
----
such Consolidated Net Income in respect of depreciation, amortization and other
similar non-cash charges (other than Non-Recurring Items) and plus (ii) the
----
amount of any increase (or minus the amount of any decrease) in the
-----
3
<PAGE>
consolidated deferred tax or general tax reserves of the Company and its
Consolidated Restricted Subsidiaries during such period (exclusive of the tax
effect of Non-Recurring Items).
"Consolidated Net Income" means for any period the net income (or
loss) of the Company and its Consolidated Restricted Subsidiaries for such
period, exclusive of (i) any income (or loss) of any Unrestricted Subsidiary
during such period except to the extent of dividends received during such period
by the Company or a Consolidated Restricted Subsidiary and (ii) any Non-
Recurring Items and Commodity Hedging Proceeds, in the case of each of clauses
(i) and (ii) net of income tax effect.
"Consolidated Restricted Subsidiary" means at any date any Restricted
Subsidiary the accounts of which would be consolidated with those of the Company
in its consolidated financial statements as of such date.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Company in
its consolidated financial statements as of such date.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments (other
than the non-negotiable notes of the Company issued to its insurance carriers in
lieu of maintenance of policy reserves in connection with its workers'
compensation and auto liability insurance program), (iii) all obligations of
such Person to pay the deferred purchase price of property or services, except
trade accounts payable, expense accruals and deferred employee compensation
items arising in the ordinary course of business, (iv) all obligations of such
Person as lessee under capital leases, (v) all Debt of others secured by a Lien
on any asset of such Person, whether or not such Debt is assumed by such Person,
and (vi) all Debt of others Guaranteed by such Person.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Dividend Payment" means any dividend or other distribution on any
shares of the Company's capital stock (except dividends payable solely in shares
of its capital stock).
4
<PAGE>
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"Domestic Lending Office" means, as to each Lender, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Lender may hereafter designate as its Domestic Lending Office by
notice to the Company and the Agent; provided that any Lender may so designate
--------
separate Domestic Lending Offices for its Base Rate Loans, on the one hand, and
its CD Loans, on the other hand, in which case all references herein to the
Domestic Lending Office of such Lender shall be deemed to refer to either or
both of such offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate
Loans or both.
"Domestic Reserve Percentage" has the meaning set forth in Section
2.07(b).
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 11.01.
"Enforceable Judgment" means a judgment or order of a court or
arbitral or regulatory authority as to which the period, if any, during which
the enforcement of such judgment or order is stayed shall have expired. A
judgment or order which is under appeal or as to which the time in which to
perfect an appeal has not expired shall not be deemed an Enforceable Judgment so
long as enforcement thereof is effectively stayed pending the outcome of such
appeal or the expiration of such period, as the case may be.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
5
<PAGE>
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Company, any Restricted Subsidiary and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Company or any Restricted Subsidiary, are treated as a single employer under
Section 414 of the Internal Revenue Code.
"ESOP" means any employee stock ownership plan of the Company.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Lender, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Euro-
Dollar Lending Office) or such other office, branch or affiliate of such Lender
as it may hereafter designate as its Euro-Dollar Lending Office by notice to the
Company and the Agent.
"Euro-Dollar Loan" means a Committed Loan made or to be made by a
Lender as a Euro-Dollar Loan in accordance with the applicable Notice of
Borrowing.
"Euro-Dollar Margin" has the meaning set forth in Section 2.07(c).
"Euro-Dollar Reference Lenders" means the principal London offices of
Union Bank of Switzerland, The Chase Manhattan Bank, N.A. and Morgan Guaranty
Trust Company of New York.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.07(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Credit Agreements" means, (i) the Credit Agreement dated as
of April 25, 1994 among the Company, the lenders listed therein and Morgan
Guaranty Trust of New York, as agent, and (ii) the Credit Agreement dated as of
August 21, 1992 among the Company, the lenders parties
6
<PAGE>
thereto and Morgan Guaranty Trust Company of New York, as agent, in each case as
amended to the Effective Date.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
--------
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Morgan Guaranty Trust Company of New
York on such day on such transactions as determined by the Agent.
"Financial Accommodations" means arrangements for the extension of
credit or other financial accommodation, including without limitation committed
or uncommitted lines of credit for advances or other financial accommodation,
letters of credit, performance and surety bonds and the like, committed or
uncommitted agreements for the purchase of accounts receivable or other
financial assets, with or without recourse or repurchase obligation, forward and
future contracts for purchase of bullion or foreign currencies and other similar
arrangements, but excluding trade accounts payable arising in the ordinary
course of business.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans or Money Market
Loans (excluding Money Market LIBOR Loans bearing interest at the Prime Rate
pursuant to Section 8.01(a)) or any combination of the foregoing.
"FMC Gold" means FMC Gold Company, a Delaware corporation, and its
successors.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to
7
<PAGE>
maintain financial statement conditions or otherwise) or (ii) entered into for
the purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term Guarantee shall
--------
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Euro-Dollar Borrowing and
ending one, two, three or six months thereafter, as the Borrower may elect in
the applicable Notice of Borrowing; provided that:
--------
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Dollar Business
Day of the calendar month at the end of such Interest Period; and
(c) any Interest Period which would otherwise end after the
Commitment Termination Date shall end on the Commitment Termination Date.
(2) with respect to each CD Borrowing, the period commencing on the date of such
Borrowing and ending 30, 60, 90 or 180 days thereafter, as the Borrower may
elect in the applicable Notice of Borrowing; provided that:
--------
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Commitment Termination Date shall end on the Commitment Termination Date.
8
<PAGE>
(3) with respect to each Base Rate Borrowing, the period commencing on the
date of such Borrowing and ending 30 days thereafter; provided that:
--------
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Commitment Termination Date shall end on the Commitment Termination Date.
(4) with respect to each Money Market LIBOR Borrowing, the period commencing on
the date of such Borrowing and ending such whole number of months thereafter
(but not to exceed six months), as the Borrower may elect in accordance with
Section 2.03; provided that:
--------
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Commitment Termination Date shall end on the Commitment Termination Date.
(5) with respect to each Money Market Absolute Rate Borrowing, the period
commencing on the date of such Borrowing and ending such number of days
thereafter (but not less than 7 days) as the Borrower may elect in accordance
with Section 2.03; provided that:
--------
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
9
<PAGE>
(b) any Interest Period which would otherwise end after the Commitment
Termination Date shall end on the Commitment Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Investment" means any investment by any Person (the "Investor") in
any other Person (the "Investee"), whether by means of share purchase, capital
contribution, loan, time deposit or otherwise. It is understood that neither
(i) an item reflected in the financial statements of the Investor as an expense
nor (ii) an adjustment to the carrying value of the Investee in the financial
statements of the Investor (such as by reason of increased retained earnings of
the Investee) constitutes the making or acquisition of an Investment for
purposes hereof.
"Lender" means each financial institution listed on the signature
pages hereof, each Assignee which becomes a Lender pursuant to Section 9.07(c),
and their respective successors.
"LIBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate pursuant
to Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purpose of this Agreement, the Company or any Subsidiary shall be deemed
to own subject to a Lien any asset that it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
"Loan" means a Domestic Loan or a Euro-Dollar Loan or a Money Market
Loan and "Loans" means Domestic Loans or Euro-Dollar Loans or Money Market Loans
or any combination of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in Section
2.07(c).
"Material Plan" means any Plan or Plans having aggregate Unfunded
Liabilities in excess of $25,000,000.
"Material Subsidiary" means (i) FMC Gold for so long as FMC Gold is a
Subsidiary, (ii) any Restricted Subsidiary in which the Company has an
Investment, direct or
10
<PAGE>
indirect, of at least $10,000,000 and (iii) in any event, BV.
"Money Market Absolute Rate" has the meaning set forth in Section
2.03(d).
"Money Market Absolute Rate Loan" means a Loan made or to be made by a
Lender pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Lender, its Domestic
Lending Office or such other office, branch or affiliate of such Lender as it
may hereafter designate as its Money Market Lending Office by notice to the
Company and the Agent; provided that any Lender may from time to time by notice
--------
to the Company and the Agent designate separate Money Market Lending Offices for
its Money Market LIBOR Loans, on the one hand, and its Money Market Absolute
Rate Loans, on the other hand, in which case all references herein to the Money
Market Lending Office of such Lender shall be deemed to refer to either or both
of such offices, as the context may require.
"Money Market LIBOR Loan" means a Loan made or to be made by a Lender
pursuant to a LIBOR Auction (including such a Loan bearing interest at the Prime
Rate pursuant to Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.03(d).
"Money Market Quote" means an offer by a Lender to make a Money Market
Loan in accordance with Section 2.03.
"Moody's" has the meaning set forth in the Pricing Schedule.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"Non-Recurring Items" means any of the following items of gain or loss
to the extent reflected in the
11
<PAGE>
determination of Consolidated Net Income for any period: (i) any adjustment to
net income arising from the adoption by the Company of FASB-106 and FASB-109,
(ii) extraordinary items under generally accepted accounting principles, (iii)
fees and expenses incurred in connection with this Agreement and (iv) provisions
for restructuring, discontinued operations, special reserve or other similar
non-cash charges including write-downs or write-offs of assets (other than
write-downs resulting from foreign currency translations), provided that the
--------
items described in clauses (ii) and (iv) shall constitute Non-Recurring Items
only to the extent they do not exceed in aggregate from July 1, 1992 to and
including the last day of such period an amount equal to (A) $250,000,000 minus
-----
(B) the aggregate amount of any write-downs in or write-offs of any Investment
of the Company or any Restricted Subsidiary in any Unrestricted Subsidiary
(other than FMC Gold and its Subsidiaries and FMC Nurol Savunma Sanayii A.S.)
that would be taken after August 21, 1992 if such Investments were accounted for
under the cost method of accounting under generally accepted accounting
principles.
"Notes" means promissory notes of a Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of such Borrower to repay
the Loans made to it, and "Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing (as
defined in Section 2.02) or a Notice of Money Market Borrowing (as defined in
Section 2.03(f)).
"Obligor" means either the Company or BV, in any and all capacities
hereunder, including with respect to the Company its capacity as a guarantor
hereunder, and "Obligors" means both of them.
"Parent" means with respect to any Lender, any Person controlling such
Lender.
"Participant" has the meaning set forth in Section 9.07(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
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<PAGE>
"Plan" means at any time an employee pension benefit plan (other than
a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Pricing Schedule" means the schedule attached hereto identified as
such.
"Prime Rate" means the rate of interest publicly announced by Morgan
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Principal Officer" means any of the following officers of the
Company: Chairman of the Board, President, Secretary, Treasurer, or any Vice
President. If any of the titles of the preceding officers are changed after the
date hereof, the term "Principal Officer" shall thereafter mean any officer
performing substantially the same functions as are presently performed by one or
more of the officers listed in the first sentence of this definition.
"Qualification" means, with respect to any certificate covering
financial statements, a qualification to such certificate (such as a "subject
to" or "except for" statement therein) (i) resulting from a limitation on the
scope of examination of such financial statements or the underlying data, (ii)
as to the capability of the Person whose financial statements are certified to
continue operations as a going concern or (iii) which could be eliminated by
changes in financial statements or notes thereto covered by such certificate
(such as by the creation of or increase in a reserve or a decrease in the
carrying value of assets) and which if so eliminated by the making of any such
change and after giving effect thereto would occasion a Default, provided that
--------
neither of the following shall constitute a Qualification: (a) a consistency
exception relating to a change in accounting principles with which the
independent public accountants for the Person whose financial statements are
being certified have concurred or (b) a qualification relating to the outcome or
disposition of threatened litigation, pending litigation being contested in good
faith, pending or threatened claims or other contingencies, the impact of which
litigation, claims or contingencies cannot be determined with sufficient
13
<PAGE>
certainty to permit quantification in such financial statements.
"Reference Lenders" means the CD Reference Lenders or the Euro-Dollar
Reference Lenders, as the context may require, and "Reference Lender" means any
one of such Reference Lenders.
"Refunding Borrowing" means a Committed Borrowing which, after
application of the proceeds thereof, results in no net increase in the
outstanding principal amount of Committed Loans made by any Lender to either
Borrower.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Lenders" means at any time Lenders having at least 66 2/3%
of the aggregate amount of the Commitments or, if the Commitments have been
terminated, holding Notes evidencing at least 66 2/3% of the aggregate unpaid
principal amount of the Loans.
"Restricted Subsidiary" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"S&P" has the meaning set forth in the Pricing Schedule.
"Subsidiary" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Company.
"Unfunded Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the present value of all benefits under such
Plan exceeds (ii) the fair market value of all Plan assets allocable to such
benefits (excluding any accrued but unpaid contributions), all determined as of
the then most recent valuation date for such Plan, but only to the extent that
such excess represents a potential liability of a member of the ERISA Group to
the PBGC or any other Person under Title IV of ERISA.
"Unrestricted Subsidiary" means (i) FMC Gold and any other Subsidiary
of which securities or other ownership interests having ordinary voting power to
elect a majority of the Board of Directors or other persons performing similar
functions are at the time directly or indirectly
14
<PAGE>
owned by FMC Gold, (ii) FMC Nurol Savunma Sanayii A.S., (iii) Valisys
Corporation and (iv) any other Subsidiary which is declared to be an
Unrestricted Subsidiary by the Company by notice to the Lenders; provided that
--------
Investments of the Company and its Restricted Subsidiaries made after the date
hereof in any Subsidiary included in clauses (i), (ii) and (iii) above and
Investments of the Company and its Restricted Subsidiaries in Unrestricted
Subsidiaries so declared under clause (iv) above shall not aggregate more than
$125,000,000, increased at the end of each fiscal year of the Company,
commencing with the fiscal year ending on December 31, 1992, by an amount equal
to 10% of Consolidated Capital Expenditures of the Company and its Consolidated
Subsidiaries for such fiscal year.
"Wholly-Owned Subsidiary" means any Subsidiary all of the shares of
capital stock of which (except directors' qualifying shares) are at the time
directly or indirectly owned by the Company.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
-----------------------------------
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with United
States generally accepted accounting principles as in effect from time to time
applied on a basis consistent (except for changes concurred in by the Company's
independent public accountants) with the most recent audited consolidated
financial statements of the Company and its Consolidated Subsidiaries delivered
to the Lenders; provided that, if the Company notifies the Agent that the
--------
Company wishes to amend any covenant in Article V to eliminate the effect of any
change in generally accepted accounting principles (other than FASB-106 and
FASB-109) on the operation of such covenant (or if the Agent notifies the
Company that the Required Lenders wish to amend Article V for such purpose),
then the Company's compliance with such covenant shall be determined on the
basis of generally accepted accounting principles in effect immediately before
the relevant change in generally accepted accounting principles became
effective, unless or until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Company and the Required Lenders. The
Agent shall promptly notify the Lenders of any notice received from the Company
pursuant to this Section.
SECTION 1.03. Types of Borrowings. The term "Borrowing" denotes the
-------------------
aggregation of Loans of one or more Lenders to be made to a Borrower pursuant to
Article II on a
15
<PAGE>
single date and for a single Interest Period. Borrowings are classified for
purposes of this Agreement either by reference to the pricing of Loans
comprising such Borrowing (e.g., a "Euro-Dollar Borrowing" is a Borrowing
----
comprised of Euro-Dollar Loans) or by reference to the provisions of Article II
under which participation therein is determined (i.e., a "Committed Borrowing"
----
is a Borrowing under Section 2.01 in which all Lenders participate in proportion
to their Commitments, while a "Money Market Borrowing" is a Borrowing under
Section 2.03 in which the Lender participants are determined by the Agent in
accordance therewith).
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. Subject to the terms and
-------------------
conditions set forth in this Agreement, each Lender severally agrees, during the
period up to but not including the Commitment Termination Date, to lend to
either Borrower in United States Dollars pursuant to this Section from time to
time amounts such that the aggregate principal amount of Committed Loans by such
Lender to both Borrowers at any one time outstanding shall not exceed the amount
of its Commitment. Each Borrowing under this Section shall be in an aggregate
principal amount of $25,000,000 or any larger multiple of $1,000,000 (except
that any such Borrowing may be in the aggregate amount available in accordance
with Section 3.01(b)) and shall be made from the several Lenders ratably in
proportion to their respective Commitments. Within the limits specified in this
Agreement, a Borrower may borrow pursuant to this Section, repay, or to the
extent permitted by Section 2.11, prepay Loans and reborrow at any time under
this Section.
SECTION 2.02. Notice of Committed Borrowings. The Borrower shall
------------------------------
give the Agent notice (a "Notice of Committed Borrowing") not later than 10:15
A.M. (New York City time) on (x) the date of each Base Rate Borrowing, (y) the
second Domestic Business Day before each CD Borrowing and (z) the third Euro-
Dollar Business Day before each Euro-Dollar Borrowing, specifying:
(a) the date of such Borrowing, which shall be a Domestic Business
Day in the case of a Domestic Borrowing or a Euro-Dollar Business Day in
the case of a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
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<PAGE>
(c) whether the Loans comprising such Borrowing are to be CD Loans,
Base Rate Loans or Euro-Dollar Loans, and
(d) in the case of a Fixed Rate Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
Notwithstanding the foregoing, no more than ten Fixed Rate Committed Borrowings
shall be outstanding at any one time, and any Committed Borrowing which would
exceed such limitation shall be made as a Base Rate Borrowing.
SECTION 2.03. Money Market Borrowings. (a) The Money Market Option.
----------------------- -----------------------
In addition to Committed Borrowings pursuant to Section 2.01, the Borrower may,
as set forth in this Section, request the Lenders to make offers to make Money
Market Loans in United States Dollars to the Borrower. The Lenders may, but
shall have no obligation to, make such offers and the Borrower may, but shall
have no obligation to, accept any such offers in the manner set forth in this
Section.
(b) Money Market Quote Request. When the Borrower wishes to request
--------------------------
offers to make Money Market Loans under this Section, it shall transmit to the
Agent by telex or facsimile transmission a Money Market Quote Request
substantially in the form of Exhibit B hereto so as to be received no later than
10:00 A.M. (New York City time) on (x) the fifth Euro-Dollar Business Day prior
to the date of Borrowing proposed therein, in the case of a LIBOR Auction or (y)
the Domestic Business Day next preceding the date of Borrowing proposed therein,
in the case of an Absolute Rate Auction (or, in either case, such other time or
date as the Borrower and the Agent shall have mutually agreed and shall have
notified to the Lenders not later than the date of the Money Market Quote
Request for the first LIBOR Auction or Absolute Rate Auction for which such
change is to be effective), specifying:
(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day in
the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be
$25,000,000 or a larger multiple of $1,000,000,
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(iii) the duration of the Interest Period applicable thereto, subject
to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth a
Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of a
----------------------------------
Money Market Quote Request, the Agent shall send to the Lenders by telex or
facsimile transmission an Invitation for Money Market Quotes substantially in
the form of Exhibit C hereto, which shall constitute an invitation by the
Borrower to each Lender to submit Money Market Quotes offering to make the Money
Market Loans to which such Money Market Quote Request relates in accordance with
this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each Lender
----------------------------------------------
may submit a Money Market Quote containing an offer or offers to make Money
Market Loans in response to any Invitation for Money Market Quotes. Each Money
Market Quote must comply with the requirements of this subsection (d) and must
be submitted to the Agent by telex or facsimile transmission at its offices
specified in or pursuant to Section 9.01 not later than (x) 2:00 P.M. (New York
City time) on the second Domestic Business Day prior to the second Euro-Dollar
Business Day preceding the proposed date of Borrowing, in the case of a LIBOR
Auction or (y) 9:15 A.M. (New York City time) on the proposed date of Borrowing,
in the case of an Absolute Rate Auction (or, in either case, such other time or
date as the Borrower and the Agent shall have mutually agreed and shall have
notified to the Lenders not later than the date of the Money Market Quote
Request for the first LIBOR Auction or Absolute Rate Auction for which such
change is to be effective); provided that Money Market Quotes submitted by the
--------
Agent (or any affiliate of the Agent) in the capacity of a Lender may be
submitted, and may only be submitted, if the Agent or such affiliate notifies
the Borrower of the terms of the offer or offers contained therein not later
than (x) one hour prior to the deadline for the other Lenders, in the case of a
LIBOR Auction or (y) 15 minutes prior to the deadline for the other Lenders, in
the case of an Absolute Rate Auction. Subject to Articles III and VI, any Money
Market Quote so made shall be irrevocable except with the written consent of the
Agent given on the instructions of the Borrower.
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(ii) Each Money Market Quote shall be in substantially the form of
Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which each
such offer is being made, which principal amount (w) may be greater than or
less than the Commitment of the quoting Lender, (x) must be $1,000,000 or a
larger multiple thereof, (y) may not exceed the principal amount of Money
Market Loans for which offers were requested, and (z) may be subject to an
aggregate limitation as to the principal amount of Money Market Loans for
which offers being made by such quoting Lender may be accepted,
(C) in the case of a LIBOR Auction, the margin above or below the
applicable London Interbank Offered Rate (the "Money Market Margin")
offered for each such Money Market Loan, expressed as a percentage
(specified to the nearest 1/10,000th of 1%) to be added to or subtracted
from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of interest per
annum (specified to the nearest 1/10,000th of 1%) (the "Money Market
Absolute Rate") offered for each such Money Market Loan, and
(E) the identity of the quoting Lender.
A Money Market Quote may set forth up to five separate offers by the quoting
Lender with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D hereto or does
not specify all of the information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth in
the applicable Invitation for Money Market Quotes; or
19
<PAGE>
(D) arrives after the time set forth in subsection (d)(i).
(e) Notice to the Borrower. The Agent shall promptly notify the
----------------------
Borrower of the terms (x) of any Money Market Quote submitted by a Lender that
is in accordance with subsection (d) and (y) of any Money Market Quote that
amends, modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Lender with respect to the same Money Market Quote Request.
Any such subsequent Money Market Quote shall be disregarded by the Agent unless
such subsequent Money Market Quote is submitted solely to correct a manifest
error in such former Money Market Quote. The Agent's notice to the Borrower
shall specify (A) the aggregate principal amount of Money Market Loans for which
offers have been received for each Interest Period specified in the related
Money Market Quote Request, (B) the respective principal amounts and Money
Market Margins or Money Market Absolute Rates, as the case may be, so offered
and (C) if applicable, limitations on the aggregate principal amount of Money
Market Loans for which offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 10:15 A.M.
---------------------------------
(New York City time) on (x) the Domestic Business Day prior to the second Euro-
Dollar Business Day preceding the proposed date of Borrowing, in the case of a
LIBOR Auction or (y) the proposed date of Borrowing, in the case of an Absolute
Rate Auction (or, in either case, such other time or date as the Borrower and
the Agent shall have mutually agreed and notified to the Lenders not later than
the date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective), the Borrower
shall notify the Agent of its acceptance or non-acceptance of the offers so
notified to it pursuant to subsection (e). In the case of acceptance, such
notice (a "Notice of Money Market Borrowing") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Borrower may accept any Money Market Quote in whole or in part; provided that:
--------
(i) the aggregate principal amount of each Money Market Borrowing
may not exceed the applicable amount set forth in the related Money Market
Quote Request,
(ii) the principal amount of each Money Market Borrowing must be
$25,000,000 or a larger multiple of $1,000,000,
20
<PAGE>
(iii) acceptance of offers may only be made on the basis of ascending
Money Market Margins or Money Market Absolute Rates, as the case may be,
and
(iv) the Borrower may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the requirements
of this Agreement.
(g) Allocation by Agent. If offers are made by two or more Lenders
-------------------
with the same Money Market Margins or Money Market Absolute Rates, as the case
may be, for a greater aggregate principal amount than the amount in respect of
which offers are accepted for the related Interest Period, the principal amount
of Money Market Loans in respect of which such offers are accepted shall be
allocated by the Agent among such Lenders as nearly as possible (in such
multiples of $1,000,000 as the Agent may deem appropriate) in proportion to the
aggregate principal amounts of such offers. Determinations by the Agent of the
amounts of Money Market Loans shall be conclusive in the absence of manifest
error.
SECTION 2.04. Notice to Lenders; Funding of Loans. (a) Upon receipt
-----------------------------------
of a Notice of Borrowing, the Agent shall promptly notify each Lender of the
contents thereof and of such Lender's share (if any) of such Borrowing, and such
Notice of Borrowing shall not thereafter be revocable by the Borrower.
(b) Not later than 12:00 Noon (New York City time) on the date of
each Borrowing, each Lender participating therein shall (except as provided in
subsection (c) of this Section) make available its share of such Borrowing, in
Federal or other funds immediately available in New York City, to the Agent at
its address specified pursuant to Section 9.01. Unless the Agent determines
that any applicable condition specified in Article III has not been satisfied,
the Agent will make the funds so received from the Lenders promptly available to
the Borrower at the Agent's aforesaid address.
(c) If any Lender makes a new Loan hereunder on a day on which the
Borrower is to repay all or any part of an outstanding Loan to such Borrower
from such Lender, such Lender shall apply the proceeds of its new Loan to make
such repayment and only an amount equal to the difference (if any) between the
amount being borrowed and the amount being repaid shall be made available by
such Lender to the Agent as provided by subsection (b), or remitted by the
Borrower
21
<PAGE>
to the Agent as provided in Section 2.12, as the case may be.
(d) Unless the Agent shall have received notice from a Lender prior
to the date of any Borrowing that such Lender will not make available to the
Agent such Lender's share of such Borrowing, the Agent may assume that such
Lender has made such share available to the Agent on the date of such Borrowing
in accordance with subsections (b) and (c) of this Section 2.04 and the Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such share available to the Agent, such Lender and the Borrower
severally agree to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is repaid to the
Agent, at (i) in the case of the Borrower, a rate per annum equal to the higher
of the Federal Funds Rate and the interest rate applicable thereto pursuant to
Section 2.07 and (ii) in the case of such Lender, the Federal Funds Rate. If
such Lender shall repay to the Agent such corresponding amount, such amount so
repaid shall constitute such Lender's Loan included in such Borrowing for
purposes of this Agreement.
SECTION 2.05. Notes. (a) The Loans of each Lender to each Borrower
-----
shall be evidenced by a single Note of such Borrower payable to the order of
such Lender for the account of its Applicable Lending Office in an amount equal
to the aggregate unpaid principal amount of such Lender's Loans.
(b) Each Lender may, by notice to the Borrower and the Agent request
that its Loans to such Borrower of a particular type be evidenced by a separate
Note, in an amount equal to the aggregate unpaid principal amount of such Loans.
Each such Note shall be in substantially the form of Exhibit A hereto, with
appropriate modifications to reflect the fact that it evidences solely Loans of
the relevant type. Each reference in this Agreement to the "Note" of such
Lender shall be deemed to refer to and include any or all of such Notes, as the
context may require.
(c) Upon receipt of each Lender's Notes pursuant to Section 11.01(b),
the Agent shall mail such Notes to such Lender. Each Lender shall record in
accordance with its usual business practices the date, amount, type and maturity
of each Loan made by it and the date and amount of each payment of principal
made by the Borrower with respect
22
<PAGE>
thereto, and may, if such Lender so elects in connection with any transfer or
enforcement of its Note of such Borrower, endorse on the schedule forming a part
thereof appropriate notations to evidence the foregoing information with respect
to each such Loan then outstanding; provided that neither the failure of any
--------
Lender to make any such recordation or endorsement nor any error therein shall
affect the obligations of either Obligor hereunder or under the Notes. Each
Lender is hereby irrevocably authorized by the Borrowers so to endorse its Notes
and to attach to and make a part of any Note a continuation of any such schedule
as and when required.
SECTION 2.06. Maturity of Loans. Each Loan included in any Borrowing
-----------------
shall mature, and the principal amount thereof shall be due and payable, on the
last day of the Interest Period applicable to such Borrowing.
SECTION 2.07. Interest Rates. (a) Each Base Rate Loan shall bear
--------------
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal to the Base
Rate for such day. Such interest shall be payable for each Interest Period on
the last day thereof. Any overdue principal of or interest on any Base Rate
Loan shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 2% plus the rate otherwise applicable to Base Rate
Loans for such day.
(b) Each CD Loan shall bear interest on the outstanding principal
amount thereof, for each day during the Interest Period applicable thereto, at a
rate per annum equal to the sum of the CD Margin for such day plus the Adjusted
CD Rate applicable to such Interest Period; provided that if any CD Loan or any
--------
portion thereof shall, as a result of clause (2)(b) of the definition of
Interest Period, have an Interest Period of less than 30 days, such portion
shall bear interest during such Interest Period at the rate applicable to Base
Rate Loans during such period. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than 90
days, at intervals of 90 days after the first day thereof. Any overdue
principal of or interest on any CD Loan shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to the sum of 2% plus the
higher of (i) the sum of the CD Margin for such day plus the Adjusted CD Rate
applicable to the Interest Period for such Loan and (ii) the rate applicable to
Base Rate Loans for such day.
23
<PAGE>
"CD Margin" means a rate per annum determined in accordance with the
Pricing Schedule.
The "Adjusted CD Rate" applicable to any Interest Period means a rate
per annum determined pursuant to the following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
__________
* The amount in brackets being rounded upward, if necessary, to the next
higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is the rate of
interest determined by the Agent to be the average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of the prevailing rates per annum bid
at 10:00 A.M. (New York City time) (or as soon thereafter as practicable) on the
first day of such Interest Period by two or more New York certificate of deposit
dealers of recognized standing for the purchase at face value from each CD
Reference Lender of its certificates of deposit in an amount comparable to the
principal amount of the CD Loan of such CD Reference Lender to which such
Interest Period applies and having a maturity comparable to such Interest
Period.
"Domestic Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including without limitation any
basic, supplemental or emergency reserves) for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of new non-personal time deposits in dollars in New York City having a
maturity comparable to the related Interest Period and in an amount of $100,000
or more. The Adjusted CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate in
effect on such day which is payable by a
24
<PAGE>
member of the Lender Insurance Fund classified as adequately capitalized and
within supervisory subgroup "A" (or a comparable successor assessment risk
classification) within the meaning of 12 C.F.R. (S) 327.3(e) (or any successor
provision) to the Federal Deposit Insurance Corporation (or any successor) for
such Corporation's (or such successor's) insuring time deposits at offices of
such institution in the United States. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change in the Assessment
Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin for such
day plus the Adjusted London Interbank Offered Rate applicable to such Interest
Period. Such interest shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than three months, at intervals
of three months after the first day thereof.
"Euro-Dollar Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
The "London Interbank Offered Rate" applicable to any Interest Period
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in dollars are offered to
each of the Euro-Dollar Reference Lenders in the London interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference Lender to
which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upwards, if necessary, to the next higher 1/100 of 1%) by dividing (i) the
applicable London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar
Reserve Percentage.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency
25
<PAGE>
liabilities" (or in respect of any other category of liabilities which includes
deposits by reference to which the interest rate on Euro-Dollar Loans is
determined or any category of extensions of credit or other assets which
includes loans by a non-United States office of any Lender to United States
residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
(d) Any overdue principal of or interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day from and including the date
payment thereof was due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 2% plus the higher of (i) the sum of the Euro-
Dollar Margin for such day plus the Adjusted London Interbank Offered Rate
applicable to the Interest Period for such Loan and (ii) the Euro-Dollar Margin
plus the quotient obtained (rounded upward, if necessary, to the next higher
1/100 of 1%) by dividing (x) the average (rounded upward, if necessary, to the
next higher 1/16 of 1%) of the respective rates per annum at which one day (or,
if such amount due remains unpaid more than three Euro-Dollar Business Days,
then for such period of time not longer than three months as the Agent may
select) deposits in dollars in an amount approximately equal to such overdue
payment due to each of the Euro-Dollar Reference Lenders are offered to such
Euro-Dollar Reference Lender in the London interbank market for the applicable
period determined as provided above by (y) 1.00 minus the Euro-Dollar Reserve
Percentage (or, if the circumstances described in clause (a) or (b) of Section
8.01 shall exist, at a rate per annum equal to the sum of 2% plus the rate
applicable to Base Rate Loans for such day).
(e) Subject to Section 8.01(a), each Money Market LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the London
Interbank Offered Rate for such Interest Period (determined in accordance with
Section 2.07(c) as if the related Money Market LIBOR Borrowing were a Committed
Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted by the
Lender making such Loan in accordance with Section 2.03. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the Money Market Absolute Rate quoted by the Lender making such Loan in
accordance with Section 2.03. Such interest shall be payable for each Interest
Period on the last day thereof. Any overdue principal of or interest on any
Money Market
26
<PAGE>
Loan shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 2% plus the Prime Rate for such day.
(f) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the Borrower and the
participating Lenders of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(g) Each Reference Lender agrees to use its best efforts to furnish
quotations to the Agent as contemplated by this Section. If any Reference
Lender does not furnish a timely quotation, the Agent shall determine the
relevant interest rate on the basis of the quotation or quotations furnished by
the remaining Reference Lender or Lenders or, if none of such quotations is
available on a timely basis, the provisions of Section 8.01 shall apply.
SECTION 2.08. Fees. (a) The Company shall pay to the Agent for the
----
account of the Lenders ratably in proportion to their Commitments (or, if the
Commitments shall have been terminated, in proportion to the aggregate principal
amount of their Loans outstanding), a facility fee at the Facility Fee Rate
(determined daily in accordance with the Pricing Schedule). Such facility fee
shall accrue (i) from and including the Effective Date to but excluding the
Commitment Termination Date, on the daily average aggregate amount of the
Commitments (whether used or unused) and (ii) from and including the Commitment
Termination Date to but excluding the date the Loans shall be repaid in their
entirety, on the daily average aggregate outstanding principal amount of the
Loans.
(b) Accrued facility fees under this Section shall be payable
quarterly in arrears on each March 31, June 30, September 30 and December 31 and
upon the date of termination of the Commitments in their entirety (and, if
later, the date the Loans shall be repaid in their entirety).
SECTION 2.09. Scheduled Termination. The Commitments shall terminate
----------------------
on the Commitment Termination Date, and any Loans then outstanding (together
with accrued interest thereon) shall be due and payable on such date.
SECTION 2.10. Optional Reduction of Commitments. The Company may,
---------------------------------
upon at least three Domestic Business Days' notice to the Agent, (i) terminate
the Commitments at any time, if no Loans are outstanding at such time or
27
<PAGE>
(ii) ratably and permanently reduce from time to time by an aggregate amount of
$25,000,000 or any larger multiple of $1,000,000, the aggregate amount of the
Commitments in excess of the aggregate outstanding principal amount of the
Loans.
SECTION 2.11. Optional Prepayments. (a) The Borrower may, upon at
--------------------
least one Domestic Business Day's notice to the Agent, prepay any Base Rate
Borrowing (or any Money Market Borrowing bearing interest at the Prime Rate
pursuant to Section 8.01(a)) in whole at any time, or from time to time in part
in amounts aggregating $5,000,000 or any larger multiple of $5,000,000, by
paying the principal amount being prepaid together with interest accrued thereon
to the date of prepayment. Each such optional prepayment shall be applied to
prepay ratably the Loans of the several Lenders included in such Borrowing.
(b) Except as provided in Section 8.02, the Borrower may not prepay
all or any portion of the principal amount of any Fixed Rate Loan prior to the
maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this Section,
the Agent shall promptly notify each Lender of the contents thereof and of such
Lender's ratable share (if any) of such prepayment, and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.12. Payments. (a) The Borrower shall make each payment of
--------
principal of, and interest on, the Loans and of fees hereunder not later than
12:00 Noon (New York City time) on the date when due, in Federal or other funds
immediately available in New York City, to the Agent at its address referred to
in Section 9.01. The Agent will promptly distribute to each Lender in like
funds its ratable share of each such payment received by the Agent for the
account of the Lenders.
(b) Whenever any payment of principal of, or interest on, the
Domestic Loans or of fees hereunder shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a Euro-
Dollar Business Day, the date for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls
in another calendar month, in which case the date for payment thereof shall be
the next preceding Euro-Dollar Business Day. Whenever any payment of principal
of, or interest on, the Money Market Loans shall be due on a
28
<PAGE>
day which is not a Euro-Dollar Business Day, the date for payment thereof shall
be extended to the next succeeding Euro-Dollar Business Day. If the date for
any payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(c) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent that the Borrower shall not have so made such payment, each Lender shall
repay to the Agent forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.13. Funding Losses. If either Obligor makes any payment of
--------------
principal with respect to any Fixed Rate Loan (pursuant to Article VI or VIII or
otherwise) on any day other than the last day of the Interest Period applicable
thereto, or the end of an applicable period fixed pursuant to Section 2.07(d),
or if the Borrower fails to borrow or prepay any Fixed Rate Loans after notice
has been given to any Lender in accordance with Section 2.04(a) or 2.11(c), the
Company shall reimburse each Lender on demand for any resulting loss or expense
incurred by it (or by an existing or prospective Participant in the related
Loan), including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin for the period after any such payment or failure to borrow, provided that
--------
such Lender shall have delivered to the Company a certificate as to the amount
of such loss or expense, which certificate shall be conclusive in the absence of
manifest error.
SECTION 2.14. Computation of Interest and Fees. Interest based on
--------------------------------
the Prime Rate hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
29
<PAGE>
SECTION 2.15. Withholding Tax Exemption. On the Effective Date, each
-------------------------
Lender that is not incorporated or organized under the laws of the United States
of America or a state thereof agrees that it will deliver to each of the Company
and the Agent two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, certifying in either case that such Lender is
entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes. Each Lender
which so delivers a Form 1001 or 4224 further undertakes to deliver to each of
the Company and the Agent two additional copies of such form (or a successor
form) on or before the date that such form expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent form so
delivered by it, and such amendments thereto or extensions or renewals thereof
as may be reasonably requested by the Company or the Agent, in each case
certifying that such Lender is entitled to receive payments under this Agreement
and the Notes without deduction or withholding of any United States federal
income taxes, unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender advises the Company and the Agent that
it is not capable of receiving payments without any deduction or withholding of
United States federal income tax.
SECTION 2.16. Judgment Currency. If for the purpose of obtaining
-----------------
judgment in any court it is necessary to convert a sum due from either Obligor
hereunder or under any of the Notes in United States dollars ("dollars") into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase dollars with
such other currency at the Agent's New York office on the Domestic Business Day
preceding that on which final judgment is given. The obligations of each
Obligor in respect of any sum due to any Lender or the Agent hereunder or under
any Note shall, notwithstanding any judgment in a currency other than dollars,
be discharged only to the extent that on the Domestic Business Day following
receipt by such Lender or the Agent (as the case may be) of any sum adjudged to
be so due in such other currency such Lender or the Agent (as the case may be)
may in accordance with normal banking procedures purchase dollars with such
other currency; if the amount of dollars so purchased is less than the sum
originally due to such Lender or the Agent, as the
30
<PAGE>
case may be, in dollars, each Obligor liable in respect thereof agrees, to the
fullest extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the Agent, as the
case may be, against such loss, and if the amount of dollars so purchased
exceeds (a) the sum originally due to any Lender or the Agent, as the case may
be, and (b) any amounts shared with other Lenders as a result of allocations of
such excess as a disproportionate payment to such Lender under Section 11.04,
such Lender or the Agent, as the case may be, agrees to remit such excess to the
appropriate Borrower.
SECTION 2.17. Foreign Withholding Taxes and Other Costs. (a) All
-----------------------------------------
payments by or on account of BV under this Agreement and the Notes are payable
without deduction for or account of any present or future taxes, duties or other
charges levied or imposed by the Government of The Netherlands or by any
political subdivision or taxing authority thereof or therein (or by any
federation or organization of which the Government of The Netherlands is a
member) through withholding or deduction with respect to any such payments. If
any such taxes, duties or other charges are so levied or imposed, BV will pay
additional interest or will make additional payments in such amounts so that
every net payment under this Agreement and the Notes, after withholding or
deduction for or on account of any such taxes, duties or other charges, will not
be less than the amount provided for herein and will furnish to the Agent within
30 days official receipts evidencing such withholding or deduction.
(b) If the cost to any Lender of making or maintaining any Loan to BV
is increased, or the amount of any sum received or receivable by any Lender (or
its Applicable Lending Office) is reduced by an amount deemed by such Lender to
be material, by reason of the fact that BV is incorporated in, or conducts
business in, a jurisdiction outside the United States of America, the Company
shall indemnify such Lender for such increased cost or reduction within 15 days
after demand by such Lender (with a copy to the Agent). A certificate of such
Lender claiming compensation under this subsection (b) and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error.
(c) Each Lender will promptly notify the Company and the Agent of any
event of which it has knowledge that will entitle such Lender to additional
interest or payments pursuant to subsection (a) or (b) and will designate a
different Applicable Lending Office, if, in the judgment of
31
<PAGE>
such Lender, such designation will avoid the need for, or reduce the amount of,
such compensation and will not be otherwise disadvantageous to such Lender.
ARTICLE III
CONDITIONS
SECTION 3.01. Conditions to Borrowing. The obligation of each Lender
-----------------------
to make a Loan on the occasion of each Borrowing is subject to the performance
by each Obligor of all of its obligations under this Agreement and to the
satisfaction of the following conditions:
(a) receipt by the Agent of a Notice of Borrowing as required by
Section 2.02 or 2.03, as the case may be;
(b) the fact that, immediately after such Borrowing, the aggregate
outstanding principal amount of the Loans will not exceed the aggregate
amount of the Commitments;
(c) the fact that, immediately after giving effect to such Borrowing,
no Default shall have occurred and be continuing; and
(d) the fact that the representations and warranties of the Borrower
and, if it is not the Borrower, the Company contained in this Agreement
(except, in the case of any Borrowing subsequent to the first Borrowing,
the representation and warranty set forth in Section 4.04(b) and, in the
case of a Refunding Borrowing, the representation and warranty set forth in
Section 4.05) shall be true and correct in all material respects on and as
of the date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in clauses
(b), (c) and (d) of this Section.
32
<PAGE>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
(A) The Company represents and warrants that:
SECTION 4.01. Corporate or Partnership Existence and Power. The
--------------------------------------------
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and has all corporate powers
and all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted. Each Material Subsidiary is
a corporation or partnership duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization, and has all
corporate or partnership powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business. Each
of the Company and its Material Subsidiaries is duly qualified as a foreign
corporation or partnership, licensed and in good standing in each jurisdiction
where qualification or licensing is required by the nature of its business or
the character and location of its property, business or customers and in which
the failure so to qualify or be licensed, as the case may be, in the aggregate,
would have a material adverse effect on the business, financial position,
results of operations or properties of the Company and its Subsidiaries,
considered as a whole.
SECTION 4.02. Corporate and Governmental Authorization; No
--------------------------------------------
Contravention. The execution, delivery and performance by the Company of this
- -------------
Agreement and its Notes are within the Company's corporate power, have been duly
authorized by all necessary corporate action, require no action by or in respect
of, or filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the certificate of incorporation or by-laws of the Company or
of any agreement, judgment, injunction, order, decree or other instrument
binding upon the Company or result in or require the creation or imposition of
any Lien on any asset of the Company or any Subsidiary.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and
--------------
binding agreement of the Company and its Notes, when executed and delivered in
accordance with this Agreement, will constitute valid and binding obligations of
the Company, in each case enforceable in accordance with its terms.
33
<PAGE>
SECTION 4.04. Financial Information. (a) The consolidated balance
---------------------
sheet of the Company and its Consolidated Subsidiaries as of December 31, 1993,
and the related consolidated statements of income, cash flows and changes in
stockholders' equity for the fiscal year then ended, reported on by KPMG Peat
Marwick and set forth in the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1993, filed with the Securities and Exchange Commission,
a copy of which has been delivered to each of the Lenders, fairly present in all
material respects, in conformity with generally accepted accounting principles,
the consolidated financial position of the Company and its Consolidated
Subsidiaries as of such date and their consolidated results of operations, cash
flows and changes in stockholders' equity for such fiscal year.
(b) There has been no material adverse change in the business,
properties, financial position, results of operations or prospects of the
Company and its Consolidated Subsidiaries, considered as a whole, since December
31, 1993.
SECTION 4.05. Litigation. There is no action, suit, proceeding or
----------
arbitration pending against, or to the knowledge of the Company threatened
against or affecting, the Company or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable likelihood of an adverse decision which would materially adversely
affect the business, properties, financial position or results of operations of
the Company and its Consolidated Subsidiaries, considered as a whole, or which
in any manner questions the validity or enforceability of this Agreement or the
Notes.
SECTION 4.06. Compliance with ERISA. Each member of the ERISA Group
---------------------
has fulfilled its obligations under the minimum funding standards of ERISA and
the Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or made any amendment
to any Plan which in either case has resulted or could result in the imposition
of a Lien or the posting of a bond or other security under ERISA or the Internal
Revenue Code or (iii) incurred any liability under Title IV of ERISA other than
a liability to the PBGC for premiums under Section 4007 of ERISA.
34
<PAGE>
SECTION 4.07. Environmental Matters. In the ordinary course of its
---------------------
business, the Company conducts an ongoing review of the effect of Environmental
Laws on the business, operations and properties of the Company and its
Subsidiaries, in the course of which it identifies and evaluates associated
liabilities and costs (including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties presently or
previously owned, any capital or operating expenditures required to achieve or
maintain compliance with environmental protection standards imposed by law or as
a condition of any license, permit or contract, any related constraints on
operating activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or change in the nature of operations
conducted thereat and any actual or potential liabilities to third parties,
including employees, and any related costs and expenses). On the basis of this
review, the Company has reasonably concluded that Environmental Laws are
unlikely to have a material adverse effect on the business, financial condition
or results of operations of the Company and its Consolidated Subsidiaries,
considered as a whole.
SECTION 4.08. Taxes. United States Federal income tax returns of the
-----
Company and its Subsidiaries have been examined and closed through the fiscal
year ended December 31, 1986. The Company and each Subsidiary have filed all
United States Federal income tax returns and all other material tax returns that
are required to be filed by them and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by any of them, except for any
such taxes being diligently contested in good faith and by appropriate
proceedings. Adequate reserves have been provided on the books of the Company
and its Subsidiaries in respect of all taxes or other governmental charges in
accordance with generally accepted accounting principles, and no tax liabilities
in excess of the amount so provided are anticipated that could reasonably be
expected to materially and adversely affect the business, properties, financial
position or results of operations of the Company and its Consolidated
Subsidiaries, considered as a whole.
SECTION 4.09. Full Disclosure. All information heretofore furnished
---------------
by the Company to the Agent or any Lender for purposes of or in connection with
this Agreement or any transaction contemplated hereby was, and all such
information hereafter furnished by the Company to the Agent or any Lender will
be, true and accurate in every material respect or based on reasonable estimates
on the date as of which such information is stated or certified.
35
<PAGE>
SECTION 4.10. Compliance with Laws. The Company and each Material
--------------------
Subsidiary are in compliance with all applicable laws, rules and regulations,
other than such laws, rules or regulations (i) the validity or applicability of
which the Company or such Subsidiary is contesting in good faith or (ii) failure
to comply with which cannot reasonably be expected to have consequences which
would materially and adversely affect the business, properties, financial
position or results of operations of the Company and its Consolidated
Subsidiaries, considered as a whole.
(B) BV represents and warrants that:
SECTION 4.11. Corporate Existence and Power. It is a corporation
-----------------------------
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and is a Wholly-Owned Subsidiary of the Company.
SECTION 4.12. Corporate and Governmental Authorization;
-----------------------------------------
Contravention. The execution, delivery and performance by it of this Agreement
and its Notes are within its corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
its certificate of incorporation or by-laws or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Company or BV
result in the creation or imposition of any Lien on any asset of the Company or
any of its Subsidiaries.
SECTION 4.13. Binding Effect. This Agreement constitutes a valid and
--------------
binding agreement of BV and each of its Notes, when executed and delivered in
accordance with this Agreement, will constitute a valid and binding obligation
of BV, in each case enforceable in accordance with its terms.
SECTION 4.14. Taxes. There is no income, stamp or other tax of any
-----
country, or any taxing authority thereof or therein, imposed by or in the nature
of withholding or otherwise, which is imposed on any payment to be made by BV
pursuant hereto or on its Notes, or is imposed on or by virtue of the execution,
delivery or enforcement of this Agreement or of its Notes.
36
<PAGE>
ARTICLE V
COVENANTS
The Company agrees that, so long as any Lender has any Commitment
hereunder or any amount payable under any Note remains unpaid:
SECTION 5.01. Information. The Company will deliver to each of the
-----------
Lenders:
(a) within 90 days after the end of each fiscal year of the Company,
a consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of the end of such fiscal year and the related consolidated
statements of income, of cash flows and of changes in stockholders' equity
for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and reported
on without Qualification by KPMG Peat Marwick or other independent public
accountants of nationally recognized standing;
(b) within 45 days after the end of each of the first three quarters
of each fiscal year of the Company, a consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of the end of such quarter,
and the related consolidated statements of income, of cash flows and of
changes in stockholders' equity for such quarter and for the portion of the
Company's fiscal year ended at the end of such quarter, setting forth in
each case in comparative form the figures for the corresponding quarter and
the corresponding portion of the Company's previous fiscal year, all
certified (subject to normal year-end adjustments) as to fairness of
presentation and consistency by the chief financial officer, the treasurer
or the chief accounting officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b) of this Section, a
certificate of the chief financial officer, the treasurer, or chief
accounting officer of the Company (i) setting forth in reasonable detail
such calculations as are required to establish whether the Company was in
compliance with the requirements of Sections 5.06 through 5.11 on the
37
<PAGE>
date of such financial statements, (ii) stating whether there exists on the
date of such certificate any Default and, if any Default then exists,
setting forth the details thereof and the action that the Company is taking
or proposes to take with respect thereto and (iii) stating whether, since
the date of the most recent previous delivery of financial statements
pursuant to paragraph (a) or (b) of this Section, there has been any
material adverse change in the business, financial position or results of
operations of the Company and its Consolidated Subsidiaries, considered as
a whole, and, if so, the nature of such material adverse change;
(d) simultaneously with the delivery of each set of financial
statements referred to in paragraph (a) of this Section, a statement of the
firm of independent public accountants that reported on such statements (i)
stating that their audit examination has included a review of the terms of
this Agreement and the Notes as they relate to financial or accounting
matters, (ii) whether anything has come to their attention to cause them to
believe that there existed on the date of such statements any Default and
(iii) confirming the calculations set forth in the officer's certificate
delivered simultaneously therewith pursuant to paragraph (c) of this
Section;
(e) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b) of this Section a
schedule, certified as to its accuracy and completeness by the chief
financial officer, the treasurer or the chief accounting officer of the
Company, listing in reasonable detail the Debt balance of each Restricted
Subsidiary;
(f) forthwith upon the occurrence of any Default, a certificate of
the chief financial officer, the treasurer or the chief accounting officer
of the Company setting forth the details thereof and the action that the
Company is taking or proposes to take with respect thereto;
(g) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
38
<PAGE>
(h) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent), annual, quarterly or monthly reports and
any reports on Form 8-K (or any successor form) that the Company or any
Subsidiary shall have filed with the Securities and Exchange Commission;
(i) within 14 days after any member of the ERISA Group (i) gives or
is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of ERISA,
or knows that the plan administrator of any Plan has given or is required
to give notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA
which liability exceeds $1,000,000 or notice that any Multiemployer Plan is
in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate, impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or appoint a trustee to administer
any Plan, a copy of such notice; (iv) applies for a waiver of the minimum
funding standard under Section 412 of the Internal Revenue Code, a copy of
such application; (v) gives notice of intent to terminate any Plan under
Section 4041(c) of ERISA, a copy of such notice and other information filed
with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to
Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any
payment or contribution to any Plan or Multiemployer Plan or makes any
amendment to any Plan which in either case has resulted or could result in
the imposition of a Lien or the posting of a bond or other security, a
certificate of the chief financial officer or the chief accounting officer
of the Company setting forth details as to such occurrence and action, if
any, which the Company or applicable member of the ERISA Group is required
or proposes to take; and
(j) as soon as reasonably practicable after a Principal Officer
obtains knowledge of the
39
<PAGE>
commencement of, or of a material threat of the commencement of, an action,
suit or proceeding against the Company or any Subsidiary before any court
or arbitrator or any governmental body, agency or official in which there
is a reasonable likelihood of an adverse decision which would materially
adversely affect the business, properties, financial position or results of
operations of the Company and its Consolidated Subsidiaries, considered as
a whole, or which in any manner questions the validity or enforceability of
this Agreement or any of the transactions contemplated hereby, information
as to the nature of such pending or threatened action, suit or proceeding;
(k) within 180 days after the end of each fiscal year of BV, a
consolidated balance sheet of BV and its Consolidated Subsidiaries as of
the end of such fiscal year and the related consolidated statements of
income, stockholders' equity and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal
year, all in reasonable detail and reported on without Qualification by
KPMG Peat Marwick or other independent public accountants of nationally
recognized standing; and
(l) from time to time such additional information regarding the
business, properties, financial position, results of operations, or
prospects of the Company or any Subsidiary as the Agent, at the request of
any Lender, may reasonably request.
SECTION 5.02. Payment of Obligations. The Company will, and will
----------------------
cause each Restricted Subsidiary to, pay and discharge, as the same shall become
due and payable, all their respective material obligations and liabilities,
including without limitation (i) all claims or demands of materialmen,
mechanics, carriers, warehousemen, landlords and other like Persons which, in
any such case, if unpaid, might by law give rise to a Lien upon any of its
property or assets, and (ii) all lawful taxes, assessments and governmental
charges or levies upon it or its property or assets, except to the extent that
any such obligation or liability may be diligently contested in good faith by
appropriate proceedings, and the Company will maintain, and will cause each
Restricted Subsidiary to maintain, in accordance with generally accepted
accounting principles, appropriate reserves for the accrual of any such
obligation or liability.
40
<PAGE>
SECTION 5.03. Maintenance of Property; Insurance. (a) The Company
----------------------------------
will keep, and will cause each Restricted Subsidiary to keep, all material
property useful and necessary in its business in good working order and
condition, normal wear and tear excepted.
(b) The Company will, and will cause each of its Material
Subsidiaries to, maintain (either in the name of the Company or in such
Subsidiary's own name) with financially sound and responsible insurance
companies, insurance on all their respective properties in at least such amounts
and against at least such risks (and with such risk retention) as are usually
maintained in the same general area by companies of established repute engaged
in the same or a similar business; and will furnish to the Lenders, upon request
from the Agent, information presented in reasonable detail as to the insurance
so carried.
SECTION 5.04. Inspection of Property, Books and Records. The Company
-----------------------------------------
will keep, and will cause each Restricted Subsidiary to keep, proper books of
record and account in which full, true and correct entries in conformity with
generally accepted accounting principles shall be made of all dealings and
transactions in relation to its business and activities. Subject to limitations
imposed by law or contract on access to and dissemination of classified or other
confidential information, the Company will permit, and will cause each
Restricted Subsidiary to permit, representatives of any Lender to visit and
inspect any of their respective properties, to examine their respective
corporate, financial and operating records and make copies thereof or abstracts
therefrom, and to discuss their respective affairs, finances and accounts with
their respective directors, officers, employees and independent public
accountants, all at such reasonable times and as often as may reasonably be
desired, upon reasonable advance notice to the Company.
SECTION 5.05. Maintenance of Existence, Rights, Etc. (a) Subject to
-------------------------------------
Section 5.07, the Company will preserve, renew and keep in full force and
effect, and will cause each Restricted Subsidiary to preserve, renew and keep in
full force and effect their respective corporate or partnership existence and
their respective rights, privileges and franchises necessary or desirable in the
normal conduct of business, except when failure to do so would not be materially
disadvantageous to the Lenders; provided that nothing in this Section 5.05 shall
--------
prohibit (i) the merger of a Restricted Subsidiary into the Company in a
transaction permitted under Section 5.07 or the merger or consolidation of a
Restricted Subsidiary with or into
41
<PAGE>
another Person if, in each case, after giving effect thereto, no Default shall
have occurred and be continuing or (ii) the termination of the corporate or
partnership existence of any Restricted Subsidiary if the Company in good faith
determines that such termination is in the best interest of the Company and is
not materially disadvantageous to the Lenders.
(b) At no time will any Unrestricted Subsidiary hold, directly or
indirectly, any capital stock of any Restricted Subsidiary.
SECTION 5.06. Liens. The Company will not, and will not permit any
-----
Restricted Subsidiary to, create, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired by it, except:
(a) Liens existing on the date hereof securing Debt outstanding on
the date hereof;
(b) Liens incidental to the conduct of its business or the ownership
of its assets which (i) arise in the ordinary course of business, (ii) do
not secure Debt and (iii) do not in the aggregate materially detract from
the value of its assets or materially impair the use thereof in the
operation of its business;
(c) Liens on property or assets of any Person existing at the time
such Person becomes a Restricted Subsidiary;
(d) Liens on any property or assets existing at the time of
acquisition thereof (including acquisition through merger or consolidation)
or to secure the payment of all or any part of the purchase price or
construction cost thereof or to secure any Debt incurred prior to, at the
time of or within 120 days after the later of the acquisition of such
property or assets or shares of stock or Debt or the completion of any such
construction and the commencement of operation of such property, for the
purpose of financing all or any part of the purchase price or construction
cost thereof;
(e) Liens in favor of a governmental unit to secure payments under
any contract or statute, or to secure any Debt incurred in financing the
acquisition, construction or improvement of property subject thereto,
including Liens on, and created or arising in connection with the financing
of the acquisition,
42
<PAGE>
construction or improvement of, any facility used or to be used in the
business of the Company or any Subsidiary through the issuance of
obligations, the income from which shall be excludable from gross income by
virtue of Section 103 of the Internal Revenue Code (or any subsequently
adopted provisions thereof providing for a specific exclusion from gross
income);
(f) Liens on assets of Restricted Subsidiaries securing Debt owing to
the Company;
(g) Liens on up to $40,000,000 of accounts receivable of Restricted
Subsidiaries organized outside of the United States of America securing
Debt of such Subsidiaries;
(h) any extension, renewal, substitution, or replacement (or
successive extensions, renewals, substitutions or replacements), as a whole
or in part, of any Lien referred to in subparagraphs (a) through (g) above
or the Debt secured thereby; provided that (1) such extension, renewal,
--------
substitution or replacement Lien shall be limited to all or any part of the
same property or assets, shares of stock or Debt that secured the Lien
extended, renewed, substituted or replaced (plus improvements on such
property) and (2) the Debt secured by such Lien at such time is not
increased; and
(i) other Liens securing Debt in an aggregate principal amount at any
time outstanding not to exceed 10% of Consolidated Adjusted Net Worth;
provided that, notwithstanding the foregoing, the Company will not, and will not
- --------
permit any Restricted Subsidiary to, create, assume or suffer to exist any Lien
on any stock, indebtedness or other security of any Unrestricted Subsidiary now
owned or hereafter acquired by it.
SECTION 5.07. Consolidations, Mergers and Sales of Assets. The
-------------------------------------------
Company will not (i) consolidate with or merge with or into any other Person or
(ii) sell, assign, lease, transfer or otherwise dispose of all or substantially
all of its assets to any other Person; provided that the Company may merge with
--------
another Person if (A) immediately after giving effect to such merger, no Default
shall have occurred and be continuing, (B) the surviving entity is a domestic
corporation and its Consolidated Adjusted Net Worth is at least equal to the
Company's Consolidated Adjusted Net Worth immediately prior to the merger and
(C) the Person
43
<PAGE>
surviving such merger, if not the Company, executes and delivers to the Agent
and each of the Lenders an instrument satisfactory to the Required Lenders
pursuant to which such Person assumes all of the Company's obligations under
this Agreement as theretofore amended or modified, including the full and
punctual payment (whether at stated maturity, upon acceleration or otherwise) of
the principal of and interest on each Loan made to the Company pursuant to this
Agreement, the full and punctual payment of all other amounts payable hereunder
and the performance of all of the other covenants and agreements contained
herein.
SECTION 5.08. Dividend Payments. The Company will not declare or pay
-----------------
any Dividend Payment; provided that (a) the Company may declare and pay
--------
dividends in respect of its capital stock to the extent that the aggregate
dividends paid subsequent to January 1, 1992 do not exceed the sum of
$170,000,000 and 50% of Consolidated Net Income for the period from January 1,
1992 to the end of the then most recently ended fiscal quarter of the Company
(treated for this purpose as a single accounting period) and (b) the Company may
redeem the Preferred Share Purchase Rights distributed to holders of its common
stock on March 7, 1987, for an aggregate redemption price not exceeding
$2,600,000.
SECTION 5.09. Cash Flow Coverage. The ratio of Consolidated Cash
------------------
Flow for any period of four consecutive fiscal quarters to Adjusted Total Debt
as of the last day of such period shall at no time be less than 0.23.
44
<PAGE>
SECTION 5.10. Leverage Ratio. The ratio of Adjusted Total Debt to
--------------
Consolidated Adjusted Net Worth shall at no time during any fiscal year set
forth below exceed the applicable ratio set forth below:
<TABLE>
<CAPTION>
Fiscal Year
Ending
December 31 Maximum Ratio
----------- -------------
<S> <C>
1994 3.50
1995 3.00
1996 2.50
1997 2.50
1998 2.25
1999 2.00
</TABLE>
SECTION 5.11. Minimum Net Worth. Consolidated Adjusted Net Worth
-----------------
shall at no time be less than $300,000,000; provided that the amount of
--------
Consolidated Adjusted Net Worth required to be maintained under this Section
shall be increased at the end of each fiscal year of the Company, commencing
with the fiscal year ending on December 31, 1992, by an amount equal to 50% of
Consolidated Net Income (if a positive number) for such fiscal year (or in the
case of December 31, 1992, for the six months then ended).
SECTION 5.12. Use of Proceeds. The proceeds of the Borrowings under
---------------
this Agreement will be used by the Borrowers for general corporate purposes.
None of such proceeds will be used, directly or indirectly, for the purpose,
whether immediate, incidental or ultimate, of buying or carrying any "margin
stock" within the meaning of Regulation U.
ARTICLE VI
DEFAULTS
SECTION 6.01. Defaults. If one or more of the following events
--------
("Events of Default") shall have occurred and be continuing:
(a) any principal of any Loan shall not be paid when due, or any
interest, any fees or other
45
<PAGE>
amount payable hereunder shall not be paid within five days of the due date
thereof;
(b) the Company shall fail to observe or perform any covenant
contained in Sections 5.05 (with respect to the Company) or 5.06 to 5.12,
inclusive;
(c) either Obligor shall fail to observe or perform any of its
covenants or agreements contained in this Agreement (other than those
covered by paragraph (a) or (b) above), for 30 days after notice thereof
has been given to the Company by the Agent at the request of any Lender;
(d) any representation, warranty, certification or statement by
either Obligor made in this Agreement or in any certificate, financial
statement or other document delivered pursuant hereto or deemed to be made
pursuant to Section 3.01 shall have been incorrect in any material respect
when made or deemed to be made;
(e) the Company or any Material Subsidiary shall fail to make any
payment in respect of Debt or other Financial Accommodations (other than
under this Agreement or the Notes) the aggregate amount of which is
$25,000,000 or more when due or within any applicable grace period;
(f) any event or condition shall occur that (i) results in the
acceleration of the maturity of Debt or other Financial Accommodations
(other than under this Agreement or the Notes) of the Company or any
Material Subsidiary the aggregate amount of which is $25,000,000 or more,
or (ii) enables the holder or holders of such Debt or other Financial
Accommodation or any Person acting on behalf of such holder or holders to
accelerate the maturity thereof, provided that no Event of Default under
--------
this clause (ii) shall occur unless and until any required notice has been
given and/or period of time has elapsed with respect to such Debt so as to
perfect such right to accelerate;
(g) the Company or any Material Subsidiary shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the
46
<PAGE>
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent to
any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Company or any Material Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be entered
against the Company or any Material Subsidiary under the Federal bankruptcy
laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $25,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA
to terminate, to impose liability (other than for premiums under Section
4007 of ERISA) in respect of, or to cause a trustee to be appointed to
administer any Material Plan; or a condition shall exist by reason of which
the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a complete or
partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $25,000,000;
(j) Enforceable Judgments for the payment of money in an aggregate
amount exceeding $25,000,000
47
<PAGE>
shall be rendered against the Company or any Material Subsidiary and shall
continue unsatisfied and unstayed for a period of 30 days; or
(k) (i) any Person or two or more Persons acting in concert (other
than a Plan or Plans) shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of 20% or more of the outstanding shares
of voting stock of the Company; or (ii) during any period of 12 consecutive
months, commencing before or after the date of this Agreement, individuals
who at the beginning of such 12 month period were directors of the Company
cease for any reason to constitute a majority of the board of directors of
the Company;
then, and in every such event, the Agent shall (i) if requested by the Required
Lenders, by notice to the Company, terminate the Commitments, and the
Commitments shall thereupon terminate, and (ii) if requested by Lenders holding
Notes evidencing at least 66 2/3% in aggregate principal amount of the Loans, by
notice to the Company, declare the Notes (together with accrued interest
thereon) and all other amounts payable by it hereunder to be, and such Notes and
amounts shall thereupon become, immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Obligors, provided that:
--------
(A) in the case of any of the Events of Default specified in paragraph
(g) or (h) of this Section 6.01 with respect to the Company, immediately
and without any notice to either Obligor or any other act by the Agent or
the Lenders, and
(B) in the case of any of the Events of Default specified in paragraph
(k) of this Section 6.01, unless the Required Lenders shall have waived
such Event of Default within 30 days of its occurrence, on the 30th day
after such occurrence,
the Commitments shall terminate and the Notes (together with accrued interest
thereon) and all other amounts payable by the Company hereunder shall become
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Company.
48
<PAGE>
SECTION 6.02. Notice of Default. The Agent shall give notice to the
-----------------
Company under Section 6.01(c) promptly upon being requested to do so by any
Lender and shall thereupon notify all the Lenders thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Lender irrevocably
-----------------------------
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the Notes as are delegated to
the Agent by the terms hereof, together with all such powers as are reasonably
incidental thereto.
SECTION 7.02. Agent and Affiliates. Morgan Guaranty Trust Company of
--------------------
New York shall have the same rights and powers under this Agreement as any other
Lender and may exercise or refrain from exercising the same as though it were
not the Agent, and Morgan Guaranty Trust Company of New York and its affiliates
may accept deposits from, lend money to, and generally engage in any kind of
business with the Company or any Subsidiary or affiliate of the Company as if it
were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent
---------------
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Agent shall not be required to take any action
with respect to any Default, except as expressly provided in Article VI.
SECTION 7.04. Consultation with Experts. The Agent may consult with
-------------------------
legal counsel (who may be counsel for an Obligor), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agent. Neither the Agent nor any of its
------------------
directors, officers, agents or employees shall be liable to any Lender for any
action taken or not taken by it in connection herewith (i) with the consent or
at the request of the Required Lenders (or, if specifically required by Section
9.04, all of the Lenders) or (ii) in the absence of its own gross negligence or
willful misconduct. Neither the Agent nor any of its directors, officers,
agents or employees shall be
49
<PAGE>
responsible for or have any duty to ascertain, inquire into or verify (i) any
statement, warranty or representation made in connection with this Agreement or
any borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of the Obligors; (iii) the satisfaction of any condition
specified in Article III or Article X, except receipt of items required to be
delivered to the Agent; or (iv) the validity, effectiveness or genuineness of
this Agreement, the Notes or any other instrument or writing furnished in
connection herewith. The Agent shall not incur any liability by acting in
reliance upon any notice, consent, certificate, statement, or other writing
(which may be a bank wire, telex or similar writing) believed by it to be
genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Lender shall, ratably in
---------------
accordance with its Commitment, indemnify the Agent (to the extent not
reimbursed by the Company) against any cost, expense (including counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from the Agent's gross negligence or willful misconduct) that the Agent may
suffer or incur in connection with this Agreement or any action taken or omitted
by the Agent hereunder.
SECTION 7.07. Credit Decision. Each Lender acknowledges that it has,
---------------
independently and without reliance upon the Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.08. Agent's Fees. The Company shall pay to the Agent for
------------
its own account fees in the amounts and at the times previously agreed upon
between the Company and the Agent.
SECTION 7.09. Successor Agent. The Agent may resign at any time by
---------------
giving notice thereof to the Lenders and the Company. Upon any such
resignation, the Required Lenders shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Agent gives notice of resignation, then the retiring Agent may, on
behalf of the
50
<PAGE>
Lenders, appoint a successor Agent, which shall be a commercial bank organized
or licensed under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $500,000,000.
Upon the acceptance of its appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Article shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
-------------------------------------------------
Unfair. If on or prior to the first day of any Interest Period for any Fixed
- ------
Rate Borrowing:
(a) the Agent is advised by the Reference Lenders that deposits in
dollars (in the applicable amounts) are not being offered to the Reference
Lenders in the relevant market for such Interest Period, or
(b) in the case of a Committed Borrowing, Lenders having 50% or more
of the aggregate amount of the Commitments advise the Agent that the
Adjusted CD Rate or the Adjusted London Interbank Offered Rate, as the case
may be, as determined by the Agent will not adequately and fairly reflect
the cost to such Lenders of funding their CD Loans or Euro-Dollar Loans, as
the case may be, for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Lenders,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligations of the Lenders to make
CD Loans or Euro-Dollar Loans, as the case may be, shall be suspended. Unless
the Borrower notifies the Agent at least two Domestic Business Days before the
date of any Fixed Rate Borrowing for which a Notice of Borrowing has previously
been given that it elects not to borrow on such date, (i) if such Fixed Rate
Borrowing is a Committed Borrowing, such Borrowing shall instead be made as a
Base Rate Borrowing and (ii) if such Fixed Rate Borrowing is a
51
<PAGE>
Money Market LIBOR Borrowing, the Money Market LIBOR Loans comprising such
Borrowing shall bear interest for each day from and including the first day to
but excluding the last day of the Interest Period applicable thereto at the
Prime Rate for such day.
SECTION 8.02. Illegality. If, on or after the date of this
----------
Agreement, the adoption of any applicable law, rule or regulation, or any change
in any applicable law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Lender (or its Euro-Dollar Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency shall make it unlawful or impossible for any
Lender (or its Euro-Dollar Lending Office) to make, maintain or fund its Euro-
Dollar Loans to either Borrower and such Lender shall so notify the Agent, the
Agent shall forthwith give notice thereof to the other Lenders and the Borrower,
whereupon until such Lender notifies the Borrower and the Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Lender to make Euro-Dollar Loans to such Borrower shall be suspended.
Before giving any notice to the Agent pursuant to this Section, such Lender
shall designate a different Euro-Dollar Lending Office if such designation will
avoid the need for giving such notice and will not, in the judgment of such
Lender, be otherwise disadvantageous to such Lender. If such Lender shall
determine that it may not lawfully continue to maintain and fund any of its
outstanding Euro-Dollar Loans to such Borrower to maturity and shall so specify
in such notice, such Borrower shall immediately prepay in full the then
outstanding principal amount of each such Euro-Dollar Loan, together with
accrued interest thereon. Concurrently with prepaying each such Euro-Dollar
Loan, such Borrower shall borrow a Base Rate Loan in an equal principal amount
from such Lender (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Lenders), and
such Lender shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a) If on or after
---------------------------------
(x) the date hereof, in the case of any Committed Loan or any obligation to make
Committed Loans or (y) the date of the related Money Market Quote, in the case
of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority,
52
<PAGE>
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency:
(i) shall subject any Lender (or its Applicable Lending Office) to
any tax, duty or other charge with respect to its Fixed Rate Loans, its
Note or its obligation to make Fixed Rate Loans, or shall change the basis
of taxation of payments to any Lender (or its Applicable Lending Office) of
the principal of or interest on its Fixed Rate Loans or any other amounts
due under this Agreement in respect of its Fixed Rate Loans or its
obligation to make Fixed Rate Loans (except for changes in the rate of tax
on the overall net income of such Lender or its Applicable Lending Office
imposed by the jurisdiction in which such Lender's principal executive
office or Applicable Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve (including,
without limitation, any such requirement imposed by the Board of Governors
of the Federal Reserve System, but excluding (A) with respect to any CD
Loan any such requirement included in an applicable Domestic Reserve
Percentage and (B) with respect to any Euro-Dollar Loan any such
requirement included in an applicable Euro-Dollar Reserve Percentage),
special deposit, insurance assessment (excluding, with respect to any CD
Loan, any such requirement reflected in an applicable Assessment Rate) or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (or its Applicable Lending Office) or
shall impose on any Lender (or its Applicable Lending Office) or on the
United States market for certificates of deposit or the London interbank
market any other condition affecting its Fixed Rate Loans, its Note or its
obligation to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making or maintaining any Fixed Rate Loan,
or to reduce the amount of any sum received or receivable by such Lender (or its
Applicable Lending Office) under this Agreement or under its Note with respect
thereto, by an amount deemed by such Lender to be material, then, within 15 days
after demand by such Lender (with a copy to the Agent), the Borrower shall
53
<PAGE>
pay to such Lender such additional amount or amounts as will compensate such
Lender for such increased cost or reduction.
(b) If any Lender shall have determined that, after the date hereof,
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Lender (or its Parent) as a consequence of such Lender's
obligations hereunder to a level below that which such Lender (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, within 15 days
after demand by such Lender (with a copy to the Agent), the Company shall pay to
such Lender such additional amount or amounts as will compensate such Lender (or
its Parent) for such reduction.
(c) Each Lender will promptly notify the Company (and if BV is the
Borrower, BV) and the Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Lender to compensation pursuant
to this Section and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole judgment of such Lender, be otherwise disadvantageous
to such Lender. The Lender shall deliver a written statement of such Lender as
to the amount due, if any, under this Section 8.03. Such written statement
shall set forth in reasonable detail the calculations upon which the Lender
determined such amount and shall be final, conclusive and binding on the Company
and BV in the absence of manifest error. Determination of amounts payable under
such Sections in connection with a CD Loan, a Euro-Dollar Loan or a Money Market
LIBOR Loan shall be calculated as though the Lender funded such Loan through the
purchase of a deposit of the type and maturity corresponding to the deposit used
as a reference in determining the rate of interest applicable to such Loan
whether in fact that is the case or not. In determining such amount, such
Lender may use any reasonable averaging and attribution methods.
SECTION 8.04. Base Rate Loans Substituted for Affected Fixed Rate
---------------------------------------------------
Loans. If (i) the obligation of any
- -----
54
<PAGE>
Lender to make Euro-Dollar Loans has been suspended pursuant to Section 8.02 or
(ii) any Lender has demanded compensation under Section 8.03(a) and the Borrower
shall, by at least five Euro-Dollar Business Days' prior notice to such Lender
through the Agent, have elected that the provisions of this Section shall apply
to such Lender, then, unless and until such Lender notifies the Borrower that
the circumstances giving rise to such suspension or demand for compensation no
longer apply:
(a) all Loans which would otherwise be made by such Lender as CD
Loans or Euro-Dollar Loans, as the case may be, shall be made instead as Base
Rate Loans (on which interest and principal shall be payable contemporaneously
with the related Fixed Rate Loans of the other Lenders), and
(b) after each of its CD Loans or Euro-Dollar Loans, as the case may
be, has been repaid, all payments of principal which would otherwise be applied
to repay such Fixed Rate Loans shall be applied to repay its Base Rate Loans
instead.
ARTICLE IX
GUARANTY
SECTION 9.01. The Guaranty. The Company hereby unconditionally
------------
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Note issued
by BV pursuant to this Agreement, and the full and punctual payment of all other
amounts payable by BV under this Agreement. Upon failure by BV to pay
punctually any such amount, the Company shall forthwith on demand pay the amount
not so paid at the place and in the manner specified in this Agreement.
SECTION 9.02. Guaranty Unconditional. The obligations of the Company
----------------------
hereunder shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of BV under this Agreement or any Note, by
operation of law or otherwise;
(ii) any modification or amendment of or supplement to this Agreement
or any Note;
55
<PAGE>
(iii) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of BV under this Agreement
or any Note;
(iv) any change in the corporate existence, structure or ownership of
BV, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting BV or its assets or any resulting release or discharge
of any obligation of BV contained in this Agreement or any Note;
(v) the existence of any claim, set-off or other rights which the
Company may have at any time against BV, the Agent, any Lender or any other
Person, whether in connection herewith or any unrelated transactions,
provided that nothing herein shall prevent the assertion of any such claim
--------
by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against BV for
any reason of this Agreement or any Note, or any provision of applicable
law or regulation purporting to prohibit the payment by BV of the principal
of or interest on any Note or any other amount payable by it under this
Agreement; or
(vii) any other act or omission to act or delay of any kind by BV, the
Agent, any Lender or any other Person or any other circumstance whatsoever
which might, but for the provisions of this paragraph, constitute a legal
or equitable discharge of or defense to the Company's obligations
hereunder.
SECTION 9.03. Discharge Only Upon Payment In Full; Reinstatement In
-----------------------------------------------------
Certain Circumstances. The Company's obligations hereunder shall remain in full
- ---------------------
force and effect until the Commitments shall have terminated and the principal
of and interest on the Notes and all other amounts payable by the Company and BV
under this Agreement shall have been paid in full. If at any time any payment
of principal of or interest on any Note or any other amount payable by BV under
this Agreement is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of BV or otherwise, the Company's
obligations hereunder with respect to such payment shall be reinstated at such
time as though such payment had been due but not made at such time.
SECTION 9.04. Waiver by the Company. The Company irrevocably waives
---------------------
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as
56
<PAGE>
any requirement that at any time any action be taken by any Person against BV or
any other Person.
SECTION 9.05. Subrogation. Upon making any payment with respect to
-----------
BV hereunder, the Company shall be subrogated to the rights of the payee against
BV with respect to such payment; provided that the Company shall not enforce any
--------
payment by way of subrogation until all amounts of principal of and interest on
the Notes and all other amounts payable by BV under this Agreement have been
paid in full.
SECTION 9.06. Stay of Acceleration. In the event that acceleration
--------------------
of the time for payment of any amount payable by BV under this Agreement or its
Notes is stayed upon insolvency, bankruptcy or reorganization of BV, all such
amounts otherwise subject to acceleration under the terms of this Agreement
shall nonetheless be payable by the Company hereunder forthwith on demand by the
Agent made at the request of the Required Lenders.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices. All notices, requests and other
-------
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (x) in the case of either Obligor or the Agent, at its address or telex
number set forth on the signature pages hereof, (y) in the case of any Lender,
at its address or telex number set forth in its Administrative Questionnaire or
(z) in the case of any party, such other address or telex number as such party
may hereafter specify for the purpose by notice to the Agent and the Company.
Each such notice, request or other communication shall be effective (i) if given
by telex, when such telex is transmitted to the telex number specified in this
Section and the appropriate answerback is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iii) if given by any other means,
when delivered at the address specified in this Section; provided that notices
--------
to the Agent under Article II or Article VIII shall not be effective until
received.
SECTION 10.02. No Waivers. No failure or delay by the Agent or any
----------
Lender in exercising any right, power or privilege hereunder or under any Note
shall operate as a
57
<PAGE>
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 10.03. Expenses; Documentary Taxes; Indemnification for
--------------------------- -------------------
Litigation. (a) The Company shall pay (i) all reasonable out-of-pocket expenses
- ----------
of the Agent, including fees and disbursements of special counsel for the Agent,
in connection with the preparation and administration of this Agreement, any
waiver or consent hereunder or any amendment hereof or any Default or alleged
Default hereunder and (ii) if an Event of Default occurs, all reasonable out-of-
pocket expenses incurred by the Agent or any Lender, including fees and
disbursements of counsel, in connection with such Event of Default and
collection, bankruptcy, insolvency and other enforcement proceedings resulting
therefrom. The Company agrees to indemnify each Lender against any transfer
taxes, documentary taxes, assessments or charges made by any governmental
authority by reason of the execution and delivery of this Agreement or the
Notes.
(b) The Company agrees to indemnify each Lender and hold each Lender
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by any Lender (or by the Agent
in connection with its actions as Agent hereunder) in connection with any
investigative, administrative or judicial proceeding (whether or not such Lender
shall be designated a party thereto) relating to or arising out of this
Agreement or any actual or proposed use of proceeds of Loans hereunder; provided
that no Lender shall have the right to be indemnified hereunder for (i) its own
gross negligence or willful misconduct as determined by a court of competent
jurisdiction, (ii) default in its Commitment to make Committed Loans hereunder
as determined by a court of competent jurisdiction or (iii) any settlement of
any investigation, administrative or judicial proceeding entered into without
the consent of the Company, which consent shall not be unreasonably withheld.
SECTION 10.04. Amendments and Waivers. Any provision of this
----------------------
Agreement or the Notes may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Company and the Required Lenders
(and, if the rights or duties of the Agent are affected thereby, by the Agent);
provided that no such amendment or waiver shall, unless signed by all the
- --------
Lenders, (i) increase or decrease the Commitment of any Lender
58
<PAGE>
(except for a ratable decrease in the Commitments of all Lenders) or subject any
Lender to any additional obligation, (ii) reduce the principal of or rate of
interest on any Loan or any fees hereunder, (iii) postpone the date fixed for
any payment of principal of or interest on any Loan or any fees hereunder or for
termination of any Commitment, (iv) amend any provision of Article IX or (v)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the Notes, or the number of Lenders, which shall be required for the
Lenders or any of them to take any action under this Section or any other
provision of this Agreement and provided further that no such amendment, waiver
-------- -------
or modification shall, unless signed by BV, (w) subject BV to any additional
obligation, (x) increase the principal of or rate of interest on any outstanding
Loan of BV, (y) accelerate the stated maturity of any outstanding Loan of BV or
(z) change this proviso.
-------
SECTION 10.05. Sharing of Set-Offs. Each Lender agrees that if it
-------------------
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to any Note held by it which is greater than the proportion
received by any other Lender in respect of the aggregate amount of principal and
interest due with respect to any Note held by such other Lender, the Lender
receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Lenders, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Notes held by the Lenders shall be
shared by the Lenders pro rata; provided that nothing in this Section shall
--------
impair the right of any Lender to exercise any right of set-off or counterclaim
it may have and to apply the amount subject to such exercise to the payment of
indebtedness of an Obligor other than its indebtedness under the Notes. Each
Obligor agrees, to the fullest extent it may effectively do so under applicable
law, that any holder of a participation in a Note, whether or not acquired
pursuant to the foregoing arrangements, may exercise rights of set-off or
counterclaim and other rights with respect to such participation as fully as if
such holder of a participation were a direct creditor of such Obligor in the
amount of such participation.
SECTION 10.06. Governing Law; Submission to Jurisdiction. This
-----------------------------------------
Agreement and each Note shall be governed by and construed in accordance with
the laws of the State of New York. Each Obligor hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New
59
<PAGE>
York State court sitting in New York City for purposes of all legal proceedings
arising out of or relating to this Agreement or the transactions contemplated
hereby. Each Obligor irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
SECTION 10.07. Successors and Assigns.
----------------------
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that the Company or BV may not assign or otherwise transfer any of its
rights under this Agreement without the consent of all Lenders.
(b) Any Lender may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans. In the event of any such grant by a Lender of a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Agent, such Lender shall remain responsible for the performance
of its obligations hereunder, and the Obligors and the Agent shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement pursuant to which
any Lender may grant such a participating interest shall provide that such
Lender shall retain the sole right and responsibility to enforce the obligations
of the Obligors hereunder including, without limitation, the right to approve
any amendment, modification or waiver of any provision of this Agreement;
provided that such participation agreement may provide that such Lender will not
agree to any modification, amendment or waiver of this Agreement described in
clause (i), (ii) or (iii) of Section 10.04 without the consent of the
Participant. Each Obligor agrees that each Participant shall, to the extent
provided in its participation agreement, be entitled to the benefits of Article
VIII with respect to its participating interest. An assignment or other
transfer which is not permitted by subsection (c) or (d) below shall be given
effect for purposes of this Agreement only to the extent of a participating
interest granted in accordance with this subsection (b).
(c) Any Lender may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part (equivalent to an
original Commitment of at least $10,000,000) of all, of its rights and
obligations under this Agreement and the Notes, and such Assignee shall assume
such rights and obligations, pursuant
60
<PAGE>
to an Assignment and Assumption Agreement in substantially the form of Exhibit H
hereto executed by such Assignee and such transferor Lender, with (and subject
to) the subscribed consent of the Company and the Agent (the consent of the
Agent not to be unreasonably withheld); provided that if an Assignee is an
--------
affiliate of such transferor Lender, no such consent shall be required; provided
--------
further that such assignment may, but need not, include rights of the transferor
- -------
Lender in respect of outstanding Money Market Loans. Upon execution and
delivery of such instrument and payment by such Assignee to such transferor
Lender of an amount equal to the purchase price agreed between such transferor
Lender and such Assignee, such Assignee shall be a Lender party to this
Agreement and shall have all the rights and obligations of a Lender with a
Commitment as set forth in such instrument of assumption, and the transferor
Lender shall be released from its obligations hereunder to a corresponding
extent, and no further consent or action by any party shall be required. Upon
the consummation of any assignment pursuant to this subsection (c), the
transferor Lender, the Agent and the Obligors shall make appropriate
arrangements so that, if required, a new Note is issued to the Assignee. In
connection with any such assignment, the transferor Lender shall pay to the
Agent an administrative fee for processing such assignment in the amount of
$2,000. If the Assignee is not incorporated or organized under the laws of the
United States of America or a state thereof, it shall, prior to the first date
on which interest or fees are payable hereunder for its account, deliver to the
Company and the Agent certification as to exemption from deduction or
withholding of any United States federal income taxes in accordance with Section
2.15.
(d) Each Obligor authorizes each Lender to disclose to any
Participant or Assignee (each a "Transferee") and any prospective Transferee any
and all financial information in such Lender's possession concerning such
Obligor which has been delivered to such Lender by it pursuant to this Agreement
or which has been delivered to such Lender by it in connection with such
Lender's credit evaluation prior to entering into this Agreement, subject to
Section 10.11.
(e) Any Lender may at any time assign all or any portion of its
rights under this Agreement and its Note to a Federal Reserve Bank. No such
assignment shall release the transferor Lender from its obligations hereunder.
(f) No Transferee (including for this purpose a different Applicable
Lending Office of a Lender) shall be entitled to receive any greater payment
under Section 8.03
61
<PAGE>
than the transferor Lender would have been entitled to receive with respect to
the rights transferred, unless such transfer is made with the Company's prior
written consent or by reason of the provisions of Section 8.02 or 8.03 requiring
such Lender to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
SECTION 10.08. Collateral. Each of the Lenders represents to the
----------
Agent and each of the other Lenders that it in good faith is not relying upon
any "margin stock" (as defined in Regulation U) as collateral in the extension
or maintenance of the credit provided for in this Agreement.
SECTION 10.09. Counterparts; Integration. This Agreement may be
-------------------------
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH OF THE OBLIGORS, THE AGENT
--------------------
AND THE LENDERS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 10.11. Confidentiality. Each Lender agrees to hold any
---------------
confidential information which it may receive or has received from either
Obligor pursuant to this Agreement and which has been identified as confidential
in confidence, except for disclosure (i) to legal counsel, accountants, and
other professional advisors to the Lender, (ii) to regulatory officials, (iii)
as requested pursuant to or as required by law, regulation, or legal process,
(iv) in connection with any legal proceeding to which the Lender is a party, (v)
subject to its undertaking to comply with the restrictions of this Section
10.11, any actual or prospective Transferee, (vi) to any affiliates of such
Lender provided that such affiliates agree to keep such information confidential
as set forth in this Section and (vii) of information which is in the public
domain at the time of such disclosure.
ARTICLE XI
EFFECTIVENESS
62
<PAGE>
SECTION 11.01. Effectiveness. This Agreement shall become effective
-------------
on the date that each of the following conditions shall have been satisfied (or
waived in accordance with Section 10.04):
(a) the Agent shall have received counterparts hereof signed by each
of the parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Agent in form
satisfactory to it of telegraphic, telex or other written confirmation from
such party of execution of a counterpart hereof by such party);
(b) the Agent shall have received for the account of each Lender a
duly executed Note dated on or before the Effective Date complying with the
provisions of Section 2.05;
(c) the Agent shall have received an opinion of Davis Polk &
Wardwell, special counsel for the Agent, substantially in the form of
Exhibit E hereto and covering such additional matters relating to the
transactions contemplated hereby as the Required Lenders may reasonably
request;
(d) the Agent shall have received an opinion of Patrick J. Head,
General Counsel of the Company, dated the Effective Date, substantially in
the form of Exhibit F hereto and covering such additional matters relating
to the transactions contemplated hereby as the Required Lenders may
reasonably request;
(e) the Agent shall have received an opinion of Baker & McKenzie,
counsel for BV, dated the Effective Date, substantially in the form of
Exhibit G hereto and covering such additional matters relating to the
transactions contemplated hereby as the Required Lenders may reasonably
request;
(f) the Agent shall have received evidence satisfactory to it of
(i) the termination, effective on or before the Effective Date, of the
commitments under each Existing Credit Agreement, (ii) the repayment in
full, not later than the Effective Date, of all loans (if any) outstanding
thereunder (other than any "Money Market Loans" (as defined in either
Existing Credit Agreement) made by any Lender), together with interest
63
<PAGE>
accrued thereon to the Effective Date and all accrued and unpaid facility
fees and all other amounts accrued and unpaid under each Existing Credit
Agreement; and
(g) the Agent shall have received all documents it may reasonably
request relating to the existence of the Company, the corporate authority
for and the validity or enforceability of this Agreement and the Notes, and
any other matters relevant hereto, all in form and substance satisfactory
to the Agent;
Provided that this Agreement shall not become effective or be binding on any
- --------
party hereto unless all of the foregoing conditions are satisfied not later than
December 30, 1994. The Agent shall promptly notify the Company and the Lenders
of the Effective Date, and such notice shall be conclusive and binding on all
parties hereto.
SECTION 11.02. Termination of Existing Credit Agreement; Outstanding
-----------------------------------------------------
Money Market Loans. (a) The Company and each of the Lenders that is also a
- ------------------
party to either Existing Credit Agreement agree that the "Commitments" as
defined in either of such Agreements shall terminate in their entirety on the
Effective Date. Each such Lender waives (a) any requirement of notice of such
termination pursuant to Section 2.10 of either Existing Credit Agreement and (b)
any claim to any facility fees or other fees under either Existing Credit
Agreement for any day on or after the Effective Date. The Company agrees that
(i) subject to subsection (b), no loans will be outstanding under the Existing
Credit Agreement on or at any time after the Effective Date and (ii) all accrued
and unpaid facility fees and other amounts accrued and unpaid under the Existing
Credit Agreement on or before the Effective Date will be paid on or before the
Effective Date.
(b) Each "Money Market Loan" (as defined in either Existing Credit
Agreement) made by any Lender and outstanding on the Effective Date (an
"Outstanding Money Market Loan") shall on and as of the Effective Date be deemed
to be a Money Market Loan made to the Company under this Agreement, and the
obligations of the Obligors with respect thereto shall, on and after the
Effective Date, be governed by the terms of this Agreement. Each Outstanding
Money Market Loan (i) shall mature on the last day of the interest period
applicable thereto in accordance with the provisions of the Existing Credit
Agreement under which such Loan was initially made and (ii) shall bear interest
at the interest rate determined in accordance with the provisions of such
Agreement.
64
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
FMC CORPORATION
By _______________________________
Title:
200 East Randolph Drive
Chicago, Illinois 60601
Attention: Corporate Secretary
Telephone number: 312-861-5923
Telecopy number: 312-861-7127
Telex number: 429459/FMCCORP CGO
FMC FOOD MACHINERY AND CHEMICAL
HOLDING COMPANY, B.V.
By _______________________________
Title: Director
200 East Randolph Drive
Chicago, Illinois 60601
Attention: Corporate Secretary
Telephone number: 312-861-5923
Telecopy number: 312-861-7127
Telex number: 429459/FMCCORP CGO
65
<PAGE>
<TABLE>
<CAPTION>
Commitments
- -----------
<C> <S>
$15,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By _______________________________
Title:
$15,000,000 BANK OF AMERICA ILLINOIS
By _______________________________
Title:
$15,000,000 BANK OF MONTREAL
By _______________________________
Title:
$15,000,000 THE BANK OF NEW YORK
By _______________________________
Title:
$15,000,000 THE BANK OF NOVA SCOTIA
By _______________________________
Title:
$15,000,000 CIBC INC.
By _______________________________
Title:
</TABLE>
66
<PAGE>
<TABLE>
<C> <S>
$15,000,000 COMMERZBANK AKTIENGESELLSCHAFT,
GRAND CAYMAN BRANCH
By _______________________________
Title:
By _______________________________
Title:
$15,000,000 NATIONSBANK OF NORTH CAROLINA, N.A.
By _______________________________
Title:
$15,000,000 UNION BANK OF SWITZERLAND,
CHICAGO BRANCH
By _______________________________
Title:
$12,500,000 CITIBANK, N.A.
By _______________________________
Title:
$12,500,000 CREDIT LYONNAIS CHICAGO BRANCH
By _______________________________
Title:
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By _______________________________
Authorized Signature
</TABLE>
67
<PAGE>
<TABLE>
<C> <S>
$12,500,000 THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH
By _______________________________
Title:
$12,500,000 THE NORTHERN TRUST COMPANY
By _______________________________
Title:
$12,500,000 WACHOVIA BANK OF GEORGIA, N.A.
By _______________________________
Title:
$7,500,000 BARCLAYS BANK PLC
By _______________________________
Title:
By _______________________________
Title
$7,500,000 THE CHASE MANHATTAN BANK N.A.
By _______________________________
Title:
</TABLE>
68
<PAGE>
<TABLE>
<C> <S>
$7,500,000 CHEMICAL BANK
By _______________________________
Title:
$7,500,000 CORESTATES BANK N.A.
By _______________________________
Title:
$7,500,000 THE FUJI BANK, LIMITED
CHICAGO BRANCH
By _______________________________
Title:
$7,500,000 NATIONAL WESTMINSTER BANK PLC
By _______________________________
Title:
$7,500,000 SWISS BANK CORPORATION -
CHICAGO BRANCH
By _______________________________
Title:
By _______________________________
Title:
</TABLE>
Total Commitments
- -----------------
$250,000,000
============
69
<PAGE>
AGENT:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By
____________________________
Title: Vice President
60 Wall Street
New York, New York 10260
Attention: Loan Department
Telex number: 177615 MGT UT
Telecopier number: 212-648-5014
70
<PAGE>
5-YEAR
PRICING SCHEDULE
The "Euro-Dollar Margin", "CD Margin" and "Facility Fee Rate" for any
day are the respective percentages set forth below in the applicable row under
the column corresponding to the Status that exists on such day:
<TABLE>
<CAPTION>
===============================================================
Level Level Level Level Level
Status I II III IV V
===============================================================
<S> <C> <C> <C> <C> <C>
Euro-Dollar .14% .215% .30% .325% .50%
Margin
If Utiliza-
tion is
less than
50%
If Utiliza- .19% .265% .35% .375% .50%
tion is equal
to or exceeds
50%
- ---------------------------------------------------------------
CD Margin .265% .34% .425% .45% .625%
If Utiliza-
tion is
less than
50%
- ---------------------------------------------------------------
If Utiliza- .315% .39% .475% .50% .625%
tion is equal
to or exceeds
50%
- ---------------------------------------------------------------
Facility Fee .11% .135% .15% .225% .25%
Rate
===============================================================
</TABLE>
For purposes of this Schedule, the following terms have the following
meanings, subject to the final paragraph of this Pricing Schedule:
"Level I Status" exists at any date if, at such date, the Company's
senior unsecured long-term debt is rated A-/A3 or higher.
"Level II Status" exists at any date if, at such date, the Company's
senior unsecured long-term debt is rated BBB+/Baa1.
71
<PAGE>
"Level III Status" exists at any date if, at such date, the Company's
senior unsecured long-term debt is rated BBB/Baa2.
"Level IV Status" exists at any date if, at such date, the Company's
senior unsecured long-term debt is rated BBB-/Baa3.
"Level V Status" exists at any date if, at such date, no other Status
exists.
"Moody's" means Moody's Investors Service, Inc.
"S&P" means Standard & Poor's Ratings Group.
"Status" refers to the determination of which of Level I Status, Level
II Status, Level III Status, Level IV Status or Level V Status exists at any
date.
"Utilization" means at any date the percentage equivalent of a
fraction (i) the numerator of which is the aggregate outstanding principal
amount of the Loans at such date, after giving effect to any borrowing or
payment on such date, and (ii) the denominator of which is the aggregate amount
of the Commitments at such date, after giving effect to any reduction of the
Commitments on such date. For purposes of this Schedule, if for any reason any
Loans remain outstanding after termination of the Commitments, the Utilization
for each date on or after the date of such termination shall be deemed to be
greater than 50%.
The credit ratings to be utilized for purposes of this Schedule are those
assigned by S&P or Moody's to the senior unsecured long-term debt securities of
the Company without third-party credit enhancement, and any rating assigned to
any other debt security of the Company shall be disregarded. The rating in
effect at any date is that in effect at the close of business on such date. In
the case of split ratings from S&P and Moody's, the rating to be used to
determine Status is the higher of the two (e.g. BBB+/Baa2 results in Level II
---
Status), provided that if the split is more than one full category, the average
--------
(or the higher of two intermediate ratings) shall be used (e.g., BBB+/Baa3
- -
results in Level III Status, as does BBB+/Ba1).
72
<PAGE>
EXHIBIT A
NOTE
New York, New York
, 19
For value received, [name of Borrower], a [jurisdiction of
incorporation]corporation (the "Borrower"), promises to pay to the order of
(the "Lender"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Lender to the Borrower pursuant to the
Credit Agreement referred to below on the last day of the Interest Period
relating to such Loan. The Borrower promises to pay interest on the unpaid
principal amount of each such Loan on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of Morgan Guaranty Trust Company of
New York, 60 Wall Street, New York, New York.
All Loans made by the Lender, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Lender and, if the Lender so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding may be endorsed by the Lender on
the schedule attached hereto, or on a continuation of such schedule attached to
and made a part hereof; provided that neither the failure of the Lender to make
--------
any such recordation or endorsement nor any error therein shall affect the
obligations of either Obligor hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the 5-Year Credit
Agreement dated as of December 16, 1994 among the Borrower, [FMC Corporation]
[FMC Food Machinery and Chemical Holding Company, B.V.], the Lenders party
thereto and Morgan Guaranty Trust Company of New York, as Agent (as the same may
be amended from time to time, the "Credit Agreement"). Terms defined in the
Credit Agreement are used herein with the same meanings. Reference is made to
the Credit Agreement for provisions for the prepayment hereof and the
acceleration of the maturity hereof.
[FMC Corporation has, pursuant to the provisions of the Credit
Agreement, unconditionally guaranteed the
<PAGE>
payment in full of the principal of and interest on this note.]*
[NAME OF BORROWER]
By____________________
Title:
____________________
*To be deleted in case of Notes executed and delivered by the Company.
2
<PAGE>
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
- --------------------------------------------------------------------
Amount Type Amount of
of of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
- --------------------------------------------------------------------
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
3
<PAGE>
EXHIBIT B
Form of Money Market Quote Request
----------------------------------
[Date]
To: Morgan Guaranty Trust Company of New York
(the "Agent")
From: [FMC Corporation][FMC Food Machinery and Chemical Holding Company,
B.V.]
Re: 5-Year Credit Agreement (as amended, the "Credit Agreement") dated as
of December 16, 1994 among FMC Corporation and FMC Food Machinery and
Chemical Holding Company, B.V., the Lenders party thereto and the
Agent
We hereby give notice pursuant to Section 2.03 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: _________________________
Principal Amount* Interest Period**
- ---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Terms used herein have the meanings assigned to them in the Credit
Agreement.
FMC CORPORATION
By_________________________
_________________
*Amount must be $25,000,000 or a larger multiple of $1,000,000.
**Not less than one month (LIBOR Auction) or not less than 7 days (Absolute
Rate Auction), subject to the provisions of the definition of Interest Period.
<PAGE>
Title:
2
<PAGE>
EXHIBIT C
Form of Invitation for Money Market Quotes
------------------------------------------
To: [Name of Bank]
Re: Invitation for Money Market Quotes to [FMC Corporation] [FMC Food
Machinery and Chemical Holding Company, B.V] (the "Borrower")
Pursuant to Section 2.03 of the 5-Year Credit Agreement dated as of
December 16, 1994 among the Borrower and [FMC Corporation] [FMC Food Machinery
and Chemical Holding Company, B.V.], the Lenders parties thereto and the
undersigned, as Agent, we are pleased on behalf of the Company to invite you to
submit Money Market Quotes to the Company for the following proposed Money
Market Borrowing(s):
Date of Borrowing: _________________________
Principal Amount Interest Period
- ---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Please respond to this invitation by no later than [2:00 P.M.] [9:15
A.M.] (New York City time) on [date].
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By _______________________
Authorized Officer
<PAGE>
EXHIBIT D
Form of Money Market Quote
--------------------------
To: MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
Re: Money Market Quote to [FMC Corporation] [FMC Food Machinery and Chemical
Holding Company, B.V](the "Borrower")
In response to your invitation on behalf of the Borrower dated
___________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: _______________________________
2. Person to contact at Quoting Bank: ___________________
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
___________________
*As specified in the related Invitation.
<PAGE>
Principal Interest Money Market
Amount* Period** [Margin***] [Rate***]
------- --------- ----------- ---------
$
$
[Provided, that the aggregate principal amount of Money Market Loans for which
the above offers may be accepted shall not exceed $_________.]*
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the 5-Year Credit
Agreement dated as of December 16, 1994 among the Borrower and [FMC Corporation]
[FMC Food Machinery and Chemical Holding Company, B.V], the Lenders party
thereto and yourselves, as Agent, irrevocably obligates us to make the Money
Market Loan(s) for which any offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated:_____________ By:_________________________
Authorized Officer
*Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitations if the sum of the individual
offers exceeds the amount the Lender is willing to lend. Bids must be made for
[$1,000,000] or a larger multiple thereof.
**Not less than one month (LIBOR Auction) or not less than 7 days (Absolute
Rate Auction) as specified in the related Invitation.
***Margin over or under the London Interbank Offered Rate determined for
the applicable Interest Period. Specify percentage (rounded to the nearest
1/10,000 of 1%) and specify whether "PLUS" or "MINUS".
****Specify rate of interest per annum (rounded to the nearest 1/10,000th
of 1%).
2
<PAGE>
EXHIBIT E
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE AGENT
--------------------------------------
[Dated the Effective Date]
To the Lenders
and the Agent Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have participated in the preparation of the 5-Year Credit Agreement
dated as of December 16, 1994 (the "Agreement") among FMC Corporation, a
Delaware corporation (the "Company") and FMC Food Machinery and Chemical Holding
Company, B.V., a corporation organized under the laws of the Netherlands
(together with the Company, the "Borrowers"), the lenders party thereto (the
"Lenders") and Morgan Guaranty Trust Company of New York, as Agent (the
"Agent"), and have acted as special counsel for the Agent for the purpose of
rendering this opinion pursuant to Section 10.01(c) of the Agreement. Terms
defined in the Agreement and not otherwise defined herein are used herein as
therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. The execution, delivery and performance by the Company of the
Agreement and its Notes are within the
<PAGE>
Company's corporate powers and have been duly authorized by all necessary
corporate action.
2. The Agreement constitutes a valid and binding agreement of the
Borrowers and the Notes of each Borrower constitute valid and binding
obligations of such Borrower, in each case enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by general principles of equity.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the federal laws of the
United States of America and the General Corporation Law of the State of
Delaware. To the extent that our opinion expressed herein involves conclusions
as to matters governed by laws other than the laws of the State of New York, the
federal laws of the United States of America and the General Corporation Law of
the State of Delaware, we have relied, with your permission, on the opinion of
Patrick J. Head, General Counsel of the Company, addressed to you and dated the
date hereof, a copy of which have been delivered to you, and we have assumed,
without independent investigation, the correctness of the matters set forth in
such opinion, our opinion being subject to the assumptions, qualifications and
limitations set forth in such opinion with respect thereto. In giving the
foregoing opinion, we express no opinion as to the effect (if any) of any law of
any jurisdiction (except the State of New York) in which any Lender is located
which limits the rate of interest that such Lender may charge or collect.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person without our prior written consent.
Very truly yours,
2
<PAGE>
EXHIBIT F
OPINION OF COUNSEL FOR THE BORROWERS
------------------------------------
[Dated the Effective Date]
To the Lenders
and the Agent Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
I am General Counsel of FMC Corporation (the "Company") and have acted
as counsel for the Company and FMC Food Machinery Chemical Holdings, B.V. ("BV"
and, together with the Company, the "Borrowers") in connection with the 5-Year
Credit Agreement dated as of December 16, 1994 (the "Agreement") among the
Borrowers, the lenders party thereto (the "Lenders") and Morgan Guaranty Trust
Company of New York, as Agent (the "Agent"). Terms defined in the Agreement and
not otherwise defined herein are used herein as therein defined.
I have examined originals or copies, certified or otherwise identified
to my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments, and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware.
2. The Company has all corporate powers and all governmental
licenses, authorization, consents and approvals required to carry on its
business as now conducted and as proposed to be conducted the absence of which,
in the
<PAGE>
aggregate, could have a material adverse effect on the business, financial
position, results of operations or properties of the Company. Each Material
Subsidiary is a corporation or partnership duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization, and has all
corporate or partnership powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted. Each of the Company and each Material Subsidiary is duly qualified
as a foreign corporation or partnership, licensed and in good standing in each
jurisdiction where qualification or licensing is required by the nature of its
business or the character and location of its property, business or customers
and in which the failure so to qualify or be licensed, as the case may be, in
the aggregate, would have a material adverse effect on the business, financial
position, results of operations or properties of the Company and its
Subsidiaries, considered as a whole.
3. The execution, delivery and performance by the Company of the
Agreement and its Notes are within the Company's corporate power, have been duly
authorized by all necessary corporate action, require no action by or in respect
of, or filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the certificate of incorporation or by-laws of the Company. or
of any agreement or instrument evidencing or governing Debt or any other
material agreement, judgment, injunction, order, decree or other instrument
binding upon the Company or any Subsidiary or result in or require the creation
or imposition of any Lien on any asset of the Company or any Subsidiary.
4. The execution, delivery and performance by the BV of the
Agreement and its Notes do not contravene, or constitute a default under, any
provision of any agreement or instrument evidencing or governing Debt or any
other material agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or any Subsidiary or result in or require
the creation or imposition of any Lien on any asset of the Company or any
Subsidiary.
5. The Agreement has been duly executed and delivered and
constitutes a valid and binding agreement of the Borrowers, and the Notes of
each Borrower have been duly executed and delivered and constitute valid and
binding obligations of such Borrower, in each case enforceable in accordance
with its terms except as (i) the same may be limited by bankruptcy, insolvency
or similar laws affecting
<PAGE>
creditors' rights generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability.
6. The Company and each Material Subsidiary are in compliance with
all applicable laws, rules and regulations, other than such laws, rules or
regulations (i) the validity or applicability of which the Company or such
Subsidiary is contesting in good faith or (ii) failure to comply with which
cannot reasonably be expected to have consequences which would materially and
adversely affect the business, properties, financial position or results of
operations of the Company and its Consolidated Subsidiaries, considered as a
whole, or the ability of the Company to perform its obligations under the
Agreement or the Notes.
7. There is no action, suit, proceeding or arbitration pending or, to
the best of my knowledge threatened against or affecting, the Company or any
Subsidiary before any court or arbitrator or any governmental body, agency or
official in which there is a reasonable likelihood of an adverse decision which
would materially adversely affect the business, financial position, results of
operations or properties of the Company and its Consolidated Subsidiaries,
considered as a whole, or which in any manner questions the validity of the
Agreement or the Notes.
In giving the foregoing opinion, I express no opinion as to the effect
(if any) of any law of any jurisdiction in which any Lender is located which
limits the rate of interest that such Lender may charge or collect.
I am admitted to practice in the State of Illinois and, for purposes
of this opinion, I am expert only with respect to the internal law of the State
of Illinois and the United States of America and the internal corporate law of
the State of Delaware. In this connection, with respect to the provisions of
the Agreement which provide that the laws of the State of New York shall govern
such Agreement, and the construction thereof, I have assumed, with your
permission, that the laws of the State of New York in any relevant respect would
be consistent with the internal laws of the State of Illinois.
This opinion is given as of the date hereof and is limited in all
respects to laws and facts existing as of the date hereof. I assume no
obligation to update or supplement this opinion to reflect any facts or
circumstances which may hereafter come to my attention or any changes in laws
which may hereafter occur.
3
<PAGE>
This opinion is furnished to you pursuant to Section 10.01(d) of the
Agreement and is not to be used, circulated, quoted or otherwise relied upon for
any other purpose, except that this opinion may be circulated to (but not relied
upon by) any prospective or actual participant in the Commitments or any Loans.
Very truly yours,
4
<PAGE>
EXHIBIT G
OPINION OF COUNSEL FOR BV
-------------------------
[Dated the Effective Date]
To the Lenders
and the Agent Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have acted as counsel for FMC Food Machinery and Chemical Holding
Company B.V. a corporation incorporated under the laws of The Netherlands with
its registered address at 's-Gravenhage, The Netherlands and its principal
offices at Koningin Julianaplein 30-19/3, 2595 AA 's-Gravenhage, The Netherlands
("FMC B.V.") in connection with the 5-Year Credit Agreement dated as of December
16, 1994 (the "Agreement") among FMC Corporation, FMC B.V., the lenders (the
"Lenders") and Morgan Guaranty Trust Company of New York, as Agent (the
"Agent"). Terms defined in the Agreement and not otherwise defined herein are
used herein as therein defined.
For the purpose of rendering this opinion we have examined the
following documents:
(a) an official extract ("uittreksel") dated December 7, 1994 from the
Commercial Register of the Chamber of Commerce of 's-Gravenhage, The
Netherlands relating to the registration of FMC B.V. under number
144792 [and confirmed to us by the above Chamber of Commerce by
telephone on the date hereof to have remained unaltered since such
date;]
(b) a copy of the Articles of Association ("statuten") of FMC B.V. as they
stand since their latest amendment dated June 10, 1994, which are the
currently effective Articles of Association according to the extract
referred to in (a) above;
<PAGE>
(c) [a copy of] the Agreement dated [December __, 1994];
(d) a copy of the shareholders register of FMC B.V.;
(e) a copy of a shareholders resolution by FMC Corporation dated December
2, 1994 resolving (i) to accept the resignation of Mr. Arthur Donald
Lyons (who has been a Managing Director of FMC B.V. and who has
resigned as of June 15, 1994) and (ii) to appoint Mr. Alfredo Bernad
Herrando, residing at C/Freixa, no 36, 08021 Barcelona, Spain, as a
Managing Director of FMC B.V. with effect from December 1, 1994;
(f) a copy of a signed resolution of FMC B.V.'s Board of Managing
Directors dated December 13, 1994 resolving that FMC B.V. will enter
into the Agreement and may enter into the Notes, authorizing each of
FMC B.V.'s present managing directors ("bestuurders") being Messrs.
T.H. Laws, W.F. Beck, B. Zwarenstein, F.A. Riddick III and A. Bernad
Herrando to act on behalf of FMC B.V. in all matters relating to the
Agreement and the Notes and their execution, to sign all documents,
certificates, deeds and notices on behalf of FMC B.V. referred to in
the Agreement and any agreements or documents related thereto or made
in respect thereof, to do all acts and things on behalf of FMC B.V.
required to be done pursuant to or in connection with the Agreement
and any agreements or documents related thereto or made in respect
thereof and to agree to any changes in the terms and conditions of the
Agreement, such agreement to be conclusively evidenced by the
signature of anyone of the Managing Directors on the Agreement.
We express no opinion as to any law other than the laws of The
Netherlands in force as at the date hereof and as applied and interpreted
according to present published case law of The Netherlands courts,
administrative rulings and authoritative literature and no opinion is given that
the future or continued performance of any of FMC B.V.'s obligations or the
consummation of the transactions contemplated by the Agreement will not
contravene such laws, application of interpretation if altered in the future.
Except as stated above, we have not for the purposes of rendering this
opinion, examined any contracts, instruments, statements or other documents
entered into by
6
<PAGE>
or affecting FMC B.V. and have not made any other enquiries concerning FMC B.V.
In examining and describing the documents listed above and in giving
this opinion, we have assumed:
(i) the authenticity of and completeness of all documents submitted to us
as originals;
(ii) the conformity to original documents of all documents submitted to us
as copies and the authenticity and completeness of each original
document;
(iii) the genuineness of all signatures on all documents or on the originals
thereof, the authenticity of all documents submitted as originals and
the conformity of copy, faxed or specimen documents to the originals
thereof;
(iv) the power, capacity and authority of all parties other than FMC B.V.
to enter into the Agreement and that the Agreement has been duly
authorized, executed and delivered by all parties thereto other than
FMC B.V.;
(v) to the extent that the obligations of any of the parties to the
Agreement may be dependent upon such matters:
(a) that each party to any document other than FMC B.V. is duly
incorporated and organized, validly existing and in good standing
(where such concept is legally relevant) under the laws of its
jurisdiction of incorporation and of the jurisdiction of its
place of business;
and
(b) that all acts, conditions and things required to be done,
fulfilled and undertaken under any law (including any and all
authorizations and consents of any public authority of any
jurisdiction) other than that of The Netherlands which may be
required in respect of the lawful execution or performance of
such Agreement and in order to ensure that such Agreement is
binding upon and enforceable against all parties thereto
(including FMC B.V.) in accordance with its
7
<PAGE>
terms have been or will be done, fulfilled, undertaken or
obtained;
(vi) when duly executed and delivered by FMC B.V. the Agreement and each of
the Notes constitute under the laws of the State of New York to which
they are expressed to be subject the valid and binding obligations of
FMC B.V., enforceable in accordance with their respective terms.
(vii) that FMC B.V. has timely paid its contribution to the Commercial
Register of the Chamber of Commerce, has timely and adequately
published its annual accounts in conformity with the articles 2:394,
2:396 and 2:397 of the Dutch Civil Code and has not disregarded a
summon from the Tax Authorities to file a return in relation to Dutch
Corporate Tax.
(viii) that FMC B.V. has not passed a voluntary winding-up resolution, and no
petition has been presented for bankruptcy, dissolution or moratorium
of payments of FMC B.V., and no receiver, trustee, administrator or
similar officer has been appointed in respect of FMC B.V. or its
assets.
The clerk of the bankruptcy register ("faillissements-griffie") of the
Amsterdam District Court informed us at December __, 1994, that FMC
B.V. has not been declared bankrupt ("failliet") or granted a
suspension of payment ("surseance van betaling"). The search made at
the Chamber of Commerce of 's-Gravenhage on December __, 1994 revealed
no order or resolution for the winding up or of FMC B.V.
We have not been concerned with investigating or verifying the
accuracy of any facts, representations or warranties set out in the Agreement
(with the exception of those matters on which we have specifically and expressly
given our opinion). To the extent that the accuracy of such facts,
representations and warranties not so investigated or verified and of any facts
stated in any of the other documents listed above (or orally confirmed), is
relevant to the contents of this opinion, we have assumed, that such facts,
representations and warranties are correct.
Where an assumption is stated to be made in this opinion, we have not
made any investigation with respect of the matters that are the subject of such
assumption.
8
<PAGE>
We have not investigated whether FMC B.V. is or will be by reason of
the transaction contemplated by the Agreement be in breach of its obligations
under any other documents.
Based upon and subject to the foregoing and subject to the further
qualifications set out below and subject to any factual matters, documents or
events not disclosed to us in the course of our examination referred to above,
and having regard to such legal considerations as we deem relevant, we are of
the opinion that:
1. FMC B.V. is a corporation duly incorporated, validly existing under
the laws of The Netherlands and is a Wholly Owned Subsidiary of the
Company.
2. The execution, delivery and performance by FMC B.V. of the Agreement
and its Notes are within FMC B.V.'s corporate power. FMC B.V. has
taken all necessary corporate action to authorize the Notes. The
execution, delivery and performance by FMC B.V. of the Agreement and
the Notes do not contravene, or constitute a default under (i) any
provision of Netherlands law or regulation applicable to companies
generally or (ii) of the Articles of Association of FMC B.V.
3. No action by or in respect of, or filing with any governmental body,
agency or official in The Netherlands is required in connection with
the execution, delivery and performance by FMC B.V. of the Agreement
and its Notes except that any payment to a non Dutch resident in
excess of NLG 25,000.00 or its equivalent in any other currency must
be notified by the payor to the Netherlands Central Bank for the
purpose of balance of payments statistics. The non-compliance with
this rule does not affect the validity of the payment so made or to be
made.
4. When signed on behalf of FMC B.V. by any one of its Managing Directors
as referred to in sub (e) above, (i) the Agreement has been duly
executed and delivered and constitutes a valid and binding agreement
of FMC B.V., and (ii) the Notes of FMC B.V. have been duly executed
and delivered and constitute valid and binding obligations of FMC
B.V., in each case enforceable in accordance with their respective
terms.
9
<PAGE>
5. There is no income, stamp or other tax of the Netherlands or any
taxing authority thereof or therein, imposed by or in the nature of
withholding or otherwise, which is imposed on any payment to be made
by FMC B.V. pursuant to the Agreement or its Notes, or is imposed on
or by virtue of the execution, delivery or enforcement of the
Agreement or of its Notes.
The opinion expressed above is subject to the following
qualifications:
aa. The enforceability of FMC's obligations may be subject to specific
remedies, including but not limited to restrictions based upon the
principles of reasonableness ("redelijkheid") and fairness
("billijkheid"), and may be subject to the possibility of rescission
in case of a so-called absence of consensus ad idem ("wilsgebreken"),
change of circumstances ("verandering van omstandigheden") or the
violation of creditors rights ("actio pauliana");
bb. Under Netherlands law, where a creditor has obtained a judgment for a
sum of money expressed in a foreign currency he may claim payment in
such foreign currency, notwithstanding the fact that he may claim the
equivalent of such sum in Dutch guilders to the extent that this is
necessary for the enforcement against those assets of the debtor
situated in The Netherlands. Such Dutch guilder equivalent must be
calculated by reference to the conversion rate prevailing on the date
of payment;
cc. The concept of delivery of a document is not known or required under
the laws of The Netherlands to render a document valid, legally
binding and enforceable;
dd. In the event of a moratorium of payments ("surseance van betaling") of
FMC B.V., its assets will not thereafter be legally bound by any legal
act performed by FMC B.V. (or an attorney acting on its behalf) unless
the administrator ("bewindvoerder") has given his cooperation or
unless and to the extent that such assets have gained a benefit as a
result of such legal act.
ee. Mutatis mutandis the same applies in case of bankruptcy
("faillissement") of FMC B.V., in that the receiver in bankruptcy
("curator") as of the
10
<PAGE>
bankruptcy date will be solely authorized to incur obligations on
behalf of FMC B.V.
ff. We express no opinion as to the effect (if any) of any law of any
jurisdiction in which any Lender is located which limits the rate of
interest that such Lender may charge or collect.
gg. The choice of the law of the State of New York to which the Agreement
and each of the Notes are expressed to be subject is not in conflict
with any laws or regulations in The Netherlands and would be upheld as
a valid choice of law and applied by the courts of The Netherlands in
proceedings in relation to the Agreement and each of the Notes,
provided however that The Netherlands courts may give effect to the
mandatory rules of the laws of any country with which the case in
question has a close connection if and to the extent that pursuant to
the laws of the latter country these provisions are applicable,
regardless of the law governing the contract. When determining
whether such mandatory rules must be applied the nature and intent of
such rules are taken into account as well as the consequences which
might ensue from the application or non-application of such rules.
Moreover, laws of the State of New York need not be applied by the
Dutch Courts if it is obvious that the application thereof could not
be reconciled with the public policy of The Netherlands. On their
face the Agreement and the Notes do not contain any provision which
would conflict with any such rules of Dutch law.
This opinion (i) is issued on the basis that it is governed by, and
that all words and expressions used herein shall be construed within the laws of
The Netherlands, (ii) is given as of the date hereof and (iii) is limited in all
respects to laws and facts existing as of the date hereof. We assume no
obligation to update or supplement this opinion to reflect any facts or
circumstances which may hereafter come to our attention or any changes in
Netherlands law which may hereafter occur.
11
<PAGE>
This opinion is furnished to you pursuant to Section 11.01(e) of the
Agreement and is not to be used, circulated, quoted or otherwise relied upon for
any other purpose.
Very truly yours,
M.L.B. van der Lande
K.J.T. Smit
12
<PAGE>
EXHIBIT H
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), FMC Corporation (the "Company") and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the 5-Year Credit Agreement dated as of December 16, 1994 among the
Company, FMC Food, Machinery and Chemical Holding, B.V., the Assignor and the
other Lenders party thereto, as Lenders, and the Agent (the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans in an aggregate principal amount at any time
outstanding not to exceed $__________;
WHEREAS, Committed Loans made by the Assignor under the Credit
Agreement in the aggregate principal amount of $__________ are outstanding at
the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________ (the "Assigned Amount"),
together with a corresponding portion of its outstanding Committed Loans, and
the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
-----------
herein shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
----------
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such
<PAGE>
assignment from the Assignor and assumes all of the obligations of the Assignor
under the Credit Agreement to the extent of the Assigned Amount, including the
purchase from the Assignor of the corresponding portion of the principal amount
of the Committed Loans made by the Assignor outstanding at the date hereof.
Upon the execution and delivery hereof by the Assignor, the Assignee, the
Company and the Agent and the payment of the amounts specified in Section 3
required to be paid on the date hereof (i) the Assignee shall, as of the date
hereof, succeed to the rights and be obligated to perform the obligations of a
Lender under the Credit Agreement with a Commitment in an amount equal to the
Assigned Amount, and (ii) the Commitment of the Assignor shall, as of the date
hereof, be reduced by a like amount and the Assignor released from its
obligations under the Credit Agreement to the extent such obligations have been
assumed by the Assignee. The assignment provided for herein shall be without
recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
--------
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds an amount equal to $_________*. It is understood
that facility fees accrued to the date hereof are for the account of the
Assignor and such fees accruing from and including the date hereof with respect
to the Assigned Amount are for the account of the Assignee. Each of the
Assignor and the Assignee hereby agrees that if it receives any amount under the
Credit Agreement which is for the account of the other party hereto, it shall
receive the same for the account of such other party to the extent of such other
party's interest therein and shall promptly pay the same to such other party.
SECTION 4. Consent of the Company and the Agent. This Agreement is
------------------------------------
conditioned upon the consent of the Company and the Agent pursuant to Section
11.07(c) of the Credit Agreement. The execution of this Agreement by the
Company and the Agent is evidence of this consent. Pursuant to Section 11.07(c)
the Company agrees to execute and deliver, and to cause BV to execute and
deliver, a Note payable to the order of the Assignee to evidence the assignment
and assumption provided for herein.
____________________
*Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any portion of
any upfront fee to be paid by the Assignor to the Assignee. It may be
preferable in an appropriate case to specify these amounts generically or by
formula rather than as a fixed sum.
2
<PAGE>
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
------------------------
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of either
Obligor, or the validity and enforceability of the obligations of either Obligor
in respect of the Credit Agreement or any Note. The Assignee acknowledges that
it has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Obligors.
SECTION 6. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number
------------
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
3
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By_________________________
Title:
[ASSIGNEE]
By__________________________
Title:
FMC CORPORATION
By__________________________
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By__________________________
Title:
4
<PAGE>
[EXECUTION COPY]
$250,000,000
364-DAY
CREDIT AGREEMENT
dated as of
December 16, 1994
among
FMC CORPORATION,
FMC FOOD MACHINERY AND CHEMICAL HOLDING COMPANY, B.V.
THE LENDERS PARTY HERETO
and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Agent
<PAGE>
TABLE OF CONTENTS/1/
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions................................................. 1
SECTION 1.02. Accounting Terms and Determinations......................... 15
SECTION 1.03. Types of Borrowings......................................... 15
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend......................................... 16
SECTION 2.02. Notice of Committed Borrowings.............................. 16
SECTION 2.03. Money Market Borrowings..................................... 17
SECTION 2.04. Notice to Lenders; Funding of Loans......................... 21
SECTION 2.05. Notes....................................................... 22
SECTION 2.06. Maturity of Loans........................................... 23
SECTION 2.07. Interest Rates.............................................. 23
SECTION 2.08. Fees........................................................ 27
SECTION 2.09. Scheduled Termination....................................... 27
SECTION 2.10. Optional Reduction of Commitments........................... 27
SECTION 2.11. Optional Prepayments........................................ 28
SECTION 2.12. Payments.................................................... 28
SECTION 2.13. Funding Losses.............................................. 29
SECTION 2.14. Computation of Interest and Fees............................ 29
SECTION 2.15. Withholding Tax Exemption................................... 30
SECTION 2.16. Judgment Currency........................................... 30
ARTICLE III
CONDITIONS
SECTION 3.01. Conditions to Borrowing..................................... 32
</TABLE>
- ----------
/1/ The Table of Contents is not a part of this Agreement.
i
<PAGE>
<TABLE>
<CAPTION>
Page
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<S> <C>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate or Partnership Existence and Power................ 33
SECTION 4.02. Corporate and Governmental Authorization; No Contravention.. 33
SECTION 4.03. Binding Effect.............................................. 33
SECTION 4.04. Financial Information....................................... 34
SECTION 4.05. Litigation.................................................. 34
SECTION 4.06. Compliance with ERISA....................................... 34
SECTION 4.07. Environmental Matters....................................... 35
SECTION 4.08. Taxes....................................................... 35
SECTION 4.09. Full Disclosure............................................. 35
SECTION 4.10. Compliance with Laws........................................ 36
SECTION 4.11. Corporate Existence and Power............................... 36
SECTION 4.12. Corporate and Governmental Authorization; Contravention..... 36
SECTION 4.13. Binding Effect.............................................. 36
SECTION 4.14. Taxes....................................................... 36
ARTICLE V
COVENANTS
SECTION 5.01. Information................................................. 37
SECTION 5.02. Payment of Obligations...................................... 40
SECTION 5.03. Maintenance of Property; Insurance.......................... 41
SECTION 5.04. Inspection of Property, Books and Records................... 41
SECTION 5.05. Maintenance of Existence, Rights, Etc. ..................... 41
SECTION 5.06. Liens....................................................... 42
SECTION 5.07. Consolidations, Mergers and Sales of Assets................. 43
SECTION 5.08. Dividend Payments........................................... 44
SECTION 5.09. Cash Flow Coverage.......................................... 44
SECTION 5.10. Leverage Ratio.............................................. 45
SECTION 5.11. Minimum Net Worth........................................... 45
SECTION 5.12. Use of Proceeds............................................. 45
ARTICLE VI
DEFAULTS
SECTION 6.01. Defaults.................................................... 45
SECTION 6.02. Notice of Default........................................... 49
</TABLE>
ii
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<TABLE>
<CAPTION>
Page
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<S> <C>
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization............................... 49
SECTION 7.02. Agent and Affiliates........................................ 49
SECTION 7.03. Action by Agent............................................. 49
SECTION 7.04. Consultation with Experts................................... 49
SECTION 7.05. Liability of Agent.......................................... 49
SECTION 7.06. Indemnification............................................. 50
SECTION 7.07. Credit Decision............................................. 50
SECTION 7.08. Agent's Fees................................................ 50
SECTION 7.09. Successor Agent............................................. 50
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair.... 51
SECTION 8.02. Illegality.................................................. 52
SECTION 8.03. Increased Cost and Reduced Return........................... 52
SECTION 8.04. Base Rate Loans Substituted for Affected Fixed Rate Loans... 55
ARTICLE IX
GUARANTY
SECTION 9.01. The Guaranty................................................ 55
SECTION 9.02. Guaranty Unconditional...................................... 55
SECTION 9.03. Discharge Only Upon Payment In Full; Reinstatement In
Certain Circumstances..................................... 56
SECTION 9.04. Waiver by the Company....................................... 57
SECTION 9.05. Subrogation................................................. 57
SECTION 9.06. Stay of Acceleration........................................ 57
</TABLE>
ARTICLE X
MISCELLANEOUS
iii
<PAGE>
<TABLE>
<CAPTION>
Page
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<S> <C>
SECTION 10.01. Notices.................................................... 57
SECTION 10.02. No Waivers................................................. 58
SECTION 10.03. Expenses; Documentary Taxes; Indemnification for Litigation 58
SECTION 10.04. Amendments and Waivers..................................... 59
SECTION 10.05. Sharing of Set-Offs........................................ 59
SECTION 10.06. Governing Law; Submission to Jurisdiction.................. 60
SECTION 10.07. Successors and Assigns..................................... 60
SECTION 10.08. Collateral................................................. 62
SECTION 10.09. Counterparts; Integration.................................. 62
SECTION 10.10. WAIVER OF JURY TRIAL....................................... 62
SECTION 10.11. Confidentiality............................................ 62
ARTICLE XI
EFFECTIVENESS
SECTION 11.01. Effectiveness.............................................. 63
SECTION 11.02. Termination of Existing Credit Agreement; Outstanding Money
Market Loans............................................. 64
</TABLE>
SCHEDULES AND EXHIBITS
Pricing Schedule
Exhibit A - Note
Exhibit B - Money Market Quote
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Opinion of Davis Polk & Wardwell, Special
Counsel for the Agent
Exhibit F - Opinion of Counsel for the Company and BV
Exhibit G - Opinion of Counsel for BV
Exhibit H - Assignment and Assumption Agreement
iv
<PAGE>
364-DAY
CREDIT AGREEMENT
----------------
AGREEMENT dated as of December 16, 1994 among FMC CORPORATION, FMC
FOOD MACHINERY & CHEMICAL HOLDING COMPANY, B.V., the LENDERS party hereto and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have
-----------
the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.03.
"Adjusted CD Rate" has the meaning set forth in Section 2.07(b).
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.07(c).
"Adjusted Total Debt" means at any date the Debt of the Company and
its Consolidated Restricted Subsidiaries, determined on a consolidated basis as
of such date, less any Debt reflected therein which is owed to FMC Gold (i) to
the extent that the aggregate principal amount of Debt so owed does not exceed
$250,000,000 and (ii) if and for so long as FMC Gold is a Consolidated
Subsidiary at such date.
"Administrative Questionnaire" means, with respect to each Lender, an
administrative questionnaire in the form prepared by the Agent and submitted to
the Agent (with a copy to the Company) duly completed by such Lender.
"Agent" means Morgan Guaranty Trust Company of New York in its
capacity as agent for the Lenders hereunder, and its successors in such
capacity.
"Applicable Lending Office" means, with respect to any Lender, (i) in
the case of its Domestic Loans, its Domestic Lending Office, (ii) in the case of
its Euro-Dollar
<PAGE>
Loans, its Euro-Dollar Lending Office and (iii) in the case of its Money Market
Loans, its Money Market Lending Office.
"Assessment Rate" has the meaning set forth in Section 2.07(b).
"Assignee" has the meaning set forth in Section 9.07(c).
"Base Rate" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"Base Rate Loan" means a Committed Loan made or to be made by a Lender
as a Base Rate Loan in accordance with the applicable Notice of Borrowing or
pursuant to Article VIII.
"Borrower" means either the Company or BV in its capacity as a
borrower under this Agreement, as the context may require, and "Borrowers" means
both of them. References to "the Borrower" are to whichever Borrower is the
actual or prospective borrower of the related Loans.
"Borrowing" has the meaning set forth in Section 1.03.
"BV" means FMC Food Machinery and Chemical Holding Company, B.V., a
corporation organized under the laws of the Netherlands, and its successors.
"CD Base Rate" has the meaning set forth in Section 2.07(b).
"CD Loan" means a Committed Loan made or to be made by a Lender as a
CD Loan in accordance with the applicable Notice of Borrowing.
"CD Margin" has the meaning set forth in Section 2.07(b).
"CD Reference Lender" means Union Bank of Switzerland, The Chase
Manhattan Bank, N.A. and Morgan Guaranty Trust Company of New York.
"Committed Loan" means a loan made by a Lender pursuant to Section
2.01.
"Commitment" means, with respect to each Lender, the amount set forth
opposite the name of such Lender on the
2
<PAGE>
signature pages hereof, as such amount may be reduced from time to time pursuant
to Section 2.10 or increased or reduced by reason of an assignment to or by such
Lender in accordance with Section 10.07(c).
"Commitment Termination Date" means December 15, 1995, or, if such day
is not a Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day.
"Commodity Hedging Proceeds" means any gain or loss arising from the
settlement of a forward or futures sale contract by the Company or any
Consolidated Restricted Subsidiary covering either gold or silver.
"Common Stock" means all capital stock of an issuer except capital
stock as to which both the entitlement to dividends and the participation in
assets upon liquidation are by the terms of such capital stock limited to a
fixed or determinable amount.
"Company" means FMC Corporation, a Delaware corporation, and its
successors.
"Consolidated Adjusted Net Worth" means, at any date, the sum of (i)
the consolidated stockholders' equity of the Company and its Consolidated
Subsidiaries as at June 30, 1992, plus (ii) the cumulative Consolidated Net
----
Income for the period from July 1, 1992 through the end of the then most
recently ended fiscal quarter of the Company, treated for this purpose as a
single accounting period, plus or minus (iii) the net amount by which the
---- -----
consolidated stockholders' equity of the Company and its Consolidated Restricted
Subsidiaries has been increased or decreased subsequent to June 30, 1992 on
account of items not reflected in Consolidated Net Income (other than items
specifically excluded from Consolidated Net Income pursuant to the terms of this
Agreement).
"Consolidated Capital Expenditures" means, for any period, the
aggregate of all capital expenditures by the Company and its Subsidiaries that
are reflected in the consolidated statement of cash flows of the Company and its
Consolidated Subsidiaries for such period.
"Consolidated Cash Flow" means for any period Consolidated Net Income
for such period, plus (i) the aggregate pre-tax amounts deducted in determining
----
such Consolidated Net Income in respect of depreciation, amortization and other
similar non-cash charges (other than Non-Recurring Items) and plus (ii) the
----
amount of any increase (or minus the amount of any decrease) in the
-----
3
<PAGE>
consolidated deferred tax or general tax reserves of the Company and its
Consolidated Restricted Subsidiaries during such period (exclusive of the tax
effect of Non-Recurring Items).
"Consolidated Net Income" means for any period the net income (or
loss) of the Company and its Consolidated Restricted Subsidiaries for such
period, exclusive of (i) any income (or loss) of any Unrestricted Subsidiary
during such period except to the extent of dividends received during such period
by the Company or a Consolidated Restricted Subsidiary and (ii) any Non-
Recurring Items and Commodity Hedging Proceeds, in the case of each of clauses
(i) and (ii) net of income tax effect.
"Consolidated Restricted Subsidiary" means at any date any Restricted
Subsidiary the accounts of which would be consolidated with those of the Company
in its consolidated financial statements as of such date.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Company in
its consolidated financial statements as of such date.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments (other
than the non-negotiable notes of the Company issued to its insurance carriers in
lieu of maintenance of policy reserves in connection with its workers'
compensation and auto liability insurance program), (iii) all obligations of
such Person to pay the deferred purchase price of property or services, except
trade accounts payable, expense accruals and deferred employee compensation
items arising in the ordinary course of business, (iv) all obligations of such
Person as lessee under capital leases, (v) all Debt of others secured by a Lien
on any asset of such Person, whether or not such Debt is assumed by such Person,
and (vi) all Debt of others Guaranteed by such Person.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Dividend Payment" means any dividend or other distribution on any
shares of the Company's capital stock (except dividends payable solely in shares
of its capital stock).
4
<PAGE>
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"Domestic Lending Office" means, as to each Lender, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Lender may hereafter designate as its Domestic Lending Office by
notice to the Company and the Agent; provided that any Lender may so designate
--------
separate Domestic Lending Offices for its Base Rate Loans, on the one hand, and
its CD Loans, on the other hand, in which case all references herein to the
Domestic Lending Office of such Lender shall be deemed to refer to either or
both of such offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans or both.
"Domestic Reserve Percentage" has the meaning set forth in Section
2.07(b).
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 11.01.
"Enforceable Judgment" means a judgment or order of a court or
arbitral or regulatory authority as to which the period, if any, during which
the enforcement of such judgment or order is stayed shall have expired. A
judgment or order which is under appeal or as to which the time in which to
perfect an appeal has not expired shall not be deemed an Enforceable Judgment so
long as enforcement thereof is effectively stayed pending the outcome of such
appeal or the expiration of such period, as the case may be.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
5
<PAGE>
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Company, any Restricted Subsidiary and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Company or any Restricted Subsidiary, are treated as a single employer under
Section 414 of the Internal Revenue Code.
"ESOP" means any employee stock ownership plan of the Company.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Lender, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Euro-
Dollar Lending Office) or such other office, branch or affiliate of such Lender
as it may hereafter designate as its Euro-Dollar Lending Office by notice to the
Company and the Agent.
"Euro-Dollar Loan" means a Committed Loan made or to be made by a
Lender as a Euro-Dollar Loan in accordance with the applicable Notice of
Borrowing.
"Euro-Dollar Margin" has the meaning set forth in Section 2.07(c).
"Euro-Dollar Reference Lenders" means the principal London offices of
Union Bank of Switzerland, The Chase Manhattan Bank, N.A. and Morgan Guaranty
Trust Company of New York.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.07(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Credit Agreements" means, (i) the Credit Agreement dated as
of April 25, 1994 among the Company, the lenders listed therein and Morgan
Guaranty Trust of New York, as agent, and (ii) the Credit Agreement dated as of
August 21, 1992 among the Company, the lenders parties
6
<PAGE>
thereto and Morgan Guaranty Trust Company of New York, as agent, in each case as
amended to the Effective Date.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
--------
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Morgan Guaranty Trust Company of New
York on such day on such transactions as determined by the Agent.
"Financial Accommodations" means arrangements for the extension of
credit or other financial accommodation, including without limitation committed
or uncommitted lines of credit for advances or other financial accommodation,
letters of credit, performance and surety bonds and the like, committed or
uncommitted agreements for the purchase of accounts receivable or other
financial assets, with or without recourse or repurchase obligation, forward and
future contracts for purchase of bullion or foreign currencies and other similar
arrangements, but excluding trade accounts payable arising in the ordinary
course of business.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans or Money Market
Loans (excluding Money Market LIBOR Loans bearing interest at the Prime Rate
pursuant to Section 8.01(a)) or any combination of the foregoing.
"FMC Gold" means FMC Gold Company, a Delaware corporation, and its
successors.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to
7
<PAGE>
maintain financial statement conditions or otherwise) or (ii) entered into for
the purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term Guarantee shall
--------
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Euro-Dollar Borrowing and
ending one, two, three or six months thereafter, as the Borrower may elect in
the applicable Notice of Borrowing; provided that:
--------
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Dollar Business
Day of the calendar month at the end of such Interest Period; and
(c) any Interest Period which would otherwise end after the
Commitment Termination Date shall end on the Commitment Termination Date.
(2) with respect to each CD Borrowing, the period commencing on the date of such
Borrowing and ending 30, 60, 90 or 180 days thereafter, as the Borrower may
elect in the applicable Notice of Borrowing; provided that:
--------
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Commitment Termination Date shall end on the Commitment Termination Date.
8
<PAGE>
(3) with respect to each Base Rate Borrowing, the period commencing on the
date of such Borrowing and ending 30 days thereafter; provided that:
--------
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Commitment Termination Date shall end on the Commitment Termination Date.
(4) with respect to each Money Market LIBOR Borrowing, the period commencing on
the date of such Borrowing and ending such whole number of months thereafter
(but not to exceed six months), as the Borrower may elect in accordance with
Section 2.03; provided that:
--------
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Commitment Termination Date shall end on the Commitment Termination Date.
(5) with respect to each Money Market Absolute Rate Borrowing, the period
commencing on the date of such Borrowing and ending such number of days
thereafter (but not less than 7 days) as the Borrower may elect in accordance
with Section 2.03; provided that:
--------
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
9
<PAGE>
(b) any Interest Period which would otherwise end after the
Commitment Termination Date shall end on the Commitment Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Investment" means any investment by any Person (the "Investor") in
any other Person (the "Investee"), whether by means of share purchase, capital
contribution, loan, time deposit or otherwise. It is understood that neither
(i) an item reflected in the financial statements of the Investor as an expense
nor (ii) an adjustment to the carrying value of the Investee in the financial
statements of the Investor (such as by reason of increased retained earnings of
the Investee) constitutes the making or acquisition of an Investment for
purposes hereof.
"Lender" means each financial institution listed on the signature
pages hereof, each Assignee which becomes a Lender pursuant to Section 9.07(c),
and their respective successors.
"LIBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate pursuant
to Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purpose of this Agreement, the Company or any Subsidiary shall be deemed
to own subject to a Lien any asset that it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
"Loan" means a Domestic Loan or a Euro-Dollar Loan or a Money Market
Loan and "Loans" means Domestic Loans or Euro-Dollar Loans or Money Market Loans
or any combination of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in Section
2.07(c).
"Material Plan" means any Plan or Plans having aggregate Unfunded
Liabilities in excess of $25,000,000.
"Material Subsidiary" means (i) FMC Gold for so long as FMC Gold is a
Subsidiary, (ii) any Restricted Subsidiary in which the Company has an
Investment, direct or
10
<PAGE>
indirect, of at least $10,000,000 and (iii) in any event, BV.
"Money Market Absolute Rate" has the meaning set forth in Section
2.03(d).
"Money Market Absolute Rate Loan" means a Loan made or to be made by a
Lender pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Lender, its Domestic
Lending Office or such other office, branch or affiliate of such Lender as it
may hereafter designate as its Money Market Lending Office by notice to the
Company and the Agent; provided that any Lender may from time to time by notice
--------
to the Company and the Agent designate separate Money Market Lending Offices for
its Money Market LIBOR Loans, on the one hand, and its Money Market Absolute
Rate Loans, on the other hand, in which case all references herein to the Money
Market Lending Office of such Lender shall be deemed to refer to either or both
of such offices, as the context may require.
"Money Market LIBOR Loan" means a Loan made or to be made by a Lender
pursuant to a LIBOR Auction (including such a Loan bearing interest at the Prime
Rate pursuant to Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.03(d).
"Money Market Quote" means an offer by a Lender to make a Money Market
Loan in accordance with Section 2.03.
"Moody's" has the meaning set forth in the Pricing Schedule.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"Non-Recurring Items" means any of the following items of gain or loss
to the extent reflected in the
11
<PAGE>
determination of Consolidated Net Income for any period: (i) any adjustment to
net income arising from the adoption by the Company of FASB-106 and FASB-109,
(ii) extraordinary items under generally accepted accounting principles, (iii)
fees and expenses incurred in connection with this Agreement and (iv) provisions
for restructuring, discontinued operations, special reserve or other similar
non-cash charges including write-downs or write-offs of assets (other than
write-downs resulting from foreign currency translations), provided that the
--------
items described in clauses (ii) and (iv) shall constitute Non-Recurring Items
only to the extent they do not exceed in aggregate from July 1, 1992 to and
including the last day of such period an amount equal to (A) $250,000,000 minus
-----
(B) the aggregate amount of any write-downs in or write-offs of any Investment
of the Company or any Restricted Subsidiary in any Unrestricted Subsidiary
(other than FMC Gold and its Subsidiaries and FMC Nurol Savunma Sanayii A.S.)
that would be taken after August 21, 1992 if such Investments were accounted for
under the cost method of accounting under generally accepted accounting
principles.
"Notes" means promissory notes of a Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of such Borrower to repay
the Loans made to it, and "Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing (as
defined in Section 2.02) or a Notice of Money Market Borrowing (as defined in
Section 2.03(f)).
"Obligor" means either the Company or BV, in any and all capacities
hereunder, including with respect to the Company its capacity as a guarantor
hereunder, and "Obligors" means both of them.
"Parent" means with respect to any Lender, any Person controlling such
Lender.
"Participant" has the meaning set forth in Section 9.07(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
12
<PAGE>
"Plan" means at any time an employee pension benefit plan (other than
a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Pricing Schedule" means the schedule attached hereto identified as
such.
"Prime Rate" means the rate of interest publicly announced by Morgan
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Principal Officer" means any of the following officers of the
Company: Chairman of the Board, President, Secretary, Treasurer, or any Vice
President. If any of the titles of the preceding officers are changed after the
date hereof, the term "Principal Officer" shall thereafter mean any officer
performing substantially the same functions as are presently performed by one or
more of the officers listed in the first sentence of this definition.
"Qualification" means, with respect to any certificate covering
financial statements, a qualification to such certificate (such as a "subject
to" or "except for" statement therein) (i) resulting from a limitation on the
scope of examination of such financial statements or the underlying data, (ii)
as to the capability of the Person whose financial statements are certified to
continue operations as a going concern or (iii) which could be eliminated by
changes in financial statements or notes thereto covered by such certificate
(such as by the creation of or increase in a reserve or a decrease in the
carrying value of assets) and which if so eliminated by the making of any such
change and after giving effect thereto would occasion a Default, provided that
--------
neither of the following shall constitute a Qualification: (a) a consistency
exception relating to a change in accounting principles with which the
independent public accountants for the Person whose financial statements are
being certified have concurred or (b) a qualification relating to the outcome or
disposition of threatened litigation, pending litigation being contested in good
faith, pending or threatened claims or other contingencies, the impact of which
litigation, claims or contingencies cannot be determined with sufficient
13
<PAGE>
certainty to permit quantification in such financial statements.
"Reference Lenders" means the CD Reference Lenders or the Euro-Dollar
Reference Lenders, as the context may require, and "Reference Lender" means any
one of such Reference Lenders.
"Refunding Borrowing" means a Committed Borrowing which, after
application of the proceeds thereof, results in no net increase in the
outstanding principal amount of Committed Loans made by any Lender to either
Borrower.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Lenders" means at any time Lenders having at least 66 2/3%
of the aggregate amount of the Commitments or, if the Commitments have been
terminated, holding Notes evidencing at least 66 2/3% of the aggregate unpaid
principal amount of the Loans.
"Restricted Subsidiary" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"S&P" has the meaning set forth in the Pricing Schedule.
"Subsidiary" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Company.
"Unfunded Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the present value of all benefits under such
Plan exceeds (ii) the fair market value of all Plan assets allocable to such
benefits (excluding any accrued but unpaid contributions), all determined as of
the then most recent valuation date for such Plan, but only to the extent that
such excess represents a potential liability of a member of the ERISA Group to
the PBGC or any other Person under Title IV of ERISA.
"Unrestricted Subsidiary" means (i) FMC Gold and any other Subsidiary
of which securities or other ownership interests having ordinary voting power to
elect a majority of the Board of Directors or other persons performing similar
functions are at the time directly or indirectly
14
<PAGE>
owned by FMC Gold, (ii) FMC Nurol Savunma Sanayii A.S., (iii) Valisys
Corporation and (iv) any other Subsidiary which is declared to be an
Unrestricted Subsidiary by the Company by notice to the Lenders; provided that
--------
Investments of the Company and its Restricted Subsidiaries made after the date
hereof in any Subsidiary included in clauses (i), (ii) and (iii) above and
Investments of the Company and its Restricted Subsidiaries in Unrestricted
Subsidiaries so declared under clause (iv) above shall not aggregate more than
$125,000,000, increased at the end of each fiscal year of the Company,
commencing with the fiscal year ending on December 31, 1992, by an amount equal
to 10% of Consolidated Capital Expenditures of the Company and its Consolidated
Subsidiaries for such fiscal year.
"Wholly-Owned Subsidiary" means any Subsidiary all of the shares of
capital stock of which (except directors' qualifying shares) are at the time
directly or indirectly owned by the Company.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
-----------------------------------
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with United
States generally accepted accounting principles as in effect from time to time
applied on a basis consistent (except for changes concurred in by the Company's
independent public accountants) with the most recent audited consolidated
financial statements of the Company and its Consolidated Subsidiaries delivered
to the Lenders; provided that, if the Company notifies the Agent that the
--------
Company wishes to amend any covenant in Article V to eliminate the effect of any
change in generally accepted accounting principles (other than FASB-106 and
FASB-109) on the operation of such covenant (or if the Agent notifies the
Company that the Required Lenders wish to amend Article V for such purpose),
then the Company's compliance with such covenant shall be determined on the
basis of generally accepted accounting principles in effect immediately before
the relevant change in generally accepted accounting principles became
effective, unless or until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Company and the Required Lenders. The
Agent shall promptly notify the Lenders of any notice received from the Company
pursuant to this Section.
SECTION 1.03. Types of Borrowings. The term "Borrowing" denotes the
-------------------
aggregation of Loans of one or more Lenders to be made to a Borrower pursuant to
Article II on a
15
<PAGE>
single date and for a single Interest Period. Borrowings are classified for
purposes of this Agreement either by reference to the pricing of Loans
comprising such Borrowing (e.g., a "Euro-Dollar Borrowing" is a Borrowing
----
comprised of Euro-Dollar Loans) or by reference to the provisions of Article II
under which participation therein is determined (i.e., a "Committed Borrowing"
----
is a Borrowing under Section 2.01 in which all Lenders participate in proportion
to their Commitments, while a "Money Market Borrowing" is a Borrowing under
Section 2.03 in which the Lender participants are determined by the Agent in
accordance therewith).
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. Subject to the terms and
-------------------
conditions set forth in this Agreement, each Lender severally agrees, during the
period up to but not including the Commitment Termination Date, to lend to
either Borrower in United States Dollars pursuant to this Section from time to
time amounts such that the aggregate principal amount of Committed Loans by such
Lender to both Borrowers at any one time outstanding shall not exceed the amount
of its Commitment. Each Borrowing under this Section shall be in an aggregate
principal amount of $25,000,000 or any larger multiple of $1,000,000 (except
that any such Borrowing may be in the aggregate amount available in accordance
with Section 3.01(b)) and shall be made from the several Lenders ratably in
proportion to their respective Commitments. Within the limits specified in this
Agreement, a Borrower may borrow pursuant to this Section, repay, or to the
extent permitted by Section 2.11, prepay Loans and reborrow at any time under
this Section.
SECTION 2.02. Notice of Committed Borrowings. The Borrower shall
------------------------------
give the Agent notice (a "Notice of Committed Borrowing") not later than 10:15
A.M. (New York City time) on (x) the date of each Base Rate Borrowing, (y) the
second Domestic Business Day before each CD Borrowing and (z) the third Euro-
Dollar Business Day before each Euro-Dollar Borrowing, specifying:
(a) the date of such Borrowing, which shall be a Domestic Business
Day in the case of a Domestic Borrowing or a Euro-Dollar Business Day in
the case of a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
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<PAGE>
(c) whether the Loans comprising such Borrowing are to be CD Loans,
Base Rate Loans or Euro-Dollar Loans, and
(d) in the case of a Fixed Rate Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
Notwithstanding the foregoing, no more than ten Fixed Rate Committed Borrowings
shall be outstanding at any one time, and any Committed Borrowing which would
exceed such limitation shall be made as a Base Rate Borrowing.
SECTION 2.03. Money Market Borrowings. (a) The Money Market Option.
----------------------- -----------------------
In addition to Committed Borrowings pursuant to Section 2.01, the Borrower may,
as set forth in this Section, request the Lenders to make offers to make Money
Market Loans in United States Dollars to the Borrower. The Lenders may, but
shall have no obligation to, make such offers and the Borrower may, but shall
have no obligation to, accept any such offers in the manner set forth in this
Section.
(b) Money Market Quote Request. When the Borrower wishes to request
--------------------------
offers to make Money Market Loans under this Section, it shall transmit to the
Agent by telex or facsimile transmission a Money Market Quote Request
substantially in the form of Exhibit B hereto so as to be received no later than
10:00 A.M. (New York City time) on (x) the fifth Euro-Dollar Business Day prior
to the date of Borrowing proposed therein, in the case of a LIBOR Auction or (y)
the Domestic Business Day next preceding the date of Borrowing proposed therein,
in the case of an Absolute Rate Auction (or, in either case, such other time or
date as the Borrower and the Agent shall have mutually agreed and shall have
notified to the Lenders not later than the date of the Money Market Quote
Request for the first LIBOR Auction or Absolute Rate Auction for which such
change is to be effective), specifying:
(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day in
the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be
$25,000,000 or a larger multiple of $1,000,000,
17
<PAGE>
(iii) the duration of the Interest Period applicable thereto, subject
to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth a
Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of a
----------------------------------
Money Market Quote Request, the Agent shall send to the Lenders by telex or
facsimile transmission an Invitation for Money Market Quotes substantially in
the form of Exhibit C hereto, which shall constitute an invitation by the
Borrower to each Lender to submit Money Market Quotes offering to make the Money
Market Loans to which such Money Market Quote Request relates in accordance with
this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each Lender
----------------------------------------------
may submit a Money Market Quote containing an offer or offers to make Money
Market Loans in response to any Invitation for Money Market Quotes. Each Money
Market Quote must comply with the requirements of this subsection (d) and must
be submitted to the Agent by telex or facsimile transmission at its offices
specified in or pursuant to Section 9.01 not later than (x) 2:00 P.M. (New York
City time) on the second Domestic Business Day prior to the second Euro-Dollar
Business Day preceding the proposed date of Borrowing, in the case of a LIBOR
Auction or (y) 9:15 A.M. (New York City time) on the proposed date of Borrowing,
in the case of an Absolute Rate Auction (or, in either case, such other time or
date as the Borrower and the Agent shall have mutually agreed and shall have
notified to the Lenders not later than the date of the Money Market Quote
Request for the first LIBOR Auction or Absolute Rate Auction for which such
change is to be effective); provided that Money Market Quotes submitted by the
--------
Agent (or any affiliate of the Agent) in the capacity of a Lender may be
submitted, and may only be submitted, if the Agent or such affiliate notifies
the Borrower of the terms of the offer or offers contained therein not later
than (x) one hour prior to the deadline for the other Lenders, in the case of a
LIBOR Auction or (y) 15 minutes prior to the deadline for the other Lenders, in
the case of an Absolute Rate Auction. Subject to Articles III and VI, any Money
Market Quote so made shall be irrevocable except with the written consent of the
Agent given on the instructions of the Borrower.
18
<PAGE>
(ii) Each Money Market Quote shall be in substantially the form of
Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which each
such offer is being made, which principal amount (w) may be greater than or
less than the Commitment of the quoting Lender, (x) must be $1,000,000 or a
larger multiple thereof, (y) may not exceed the principal amount of Money
Market Loans for which offers were requested, and (z) may be subject to an
aggregate limitation as to the principal amount of Money Market Loans for
which offers being made by such quoting Lender may be accepted,
(C) in the case of a LIBOR Auction, the margin above or below the
applicable London Interbank Offered Rate (the "Money Market Margin")
offered for each such Money Market Loan, expressed as a percentage
(specified to the nearest 1/10,000th of 1%) to be added to or subtracted
from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of interest per
annum (specified to the nearest 1/10,000th of 1%) (the "Money Market
Absolute Rate") offered for each such Money Market Loan, and
(E) the identity of the quoting Lender.
A Money Market Quote may set forth up to five separate offers by the quoting
Lender with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D hereto or does
not specify all of the information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth in
the applicable Invitation for Money Market Quotes; or
19
<PAGE>
(D) arrives after the time set forth in subsection (d)(i).
(e) Notice to the Borrower. The Agent shall promptly notify the
----------------------
Borrower of the terms (x) of any Money Market Quote submitted by a Lender that
is in accordance with subsection (d) and (y) of any Money Market Quote that
amends, modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Lender with respect to the same Money Market Quote Request.
Any such subsequent Money Market Quote shall be disregarded by the Agent unless
such subsequent Money Market Quote is submitted solely to correct a manifest
error in such former Money Market Quote. The Agent's notice to the Borrower
shall specify (A) the aggregate principal amount of Money Market Loans for which
offers have been received for each Interest Period specified in the related
Money Market Quote Request, (B) the respective principal amounts and Money
Market Margins or Money Market Absolute Rates, as the case may be, so offered
and (C) if applicable, limitations on the aggregate principal amount of Money
Market Loans for which offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 10:15 A.M.
---------------------------------
(New York City time) on (x) the Domestic Business Day prior to the second Euro-
Dollar Business Day preceding the proposed date of Borrowing, in the case of a
LIBOR Auction or (y) the proposed date of Borrowing, in the case of an Absolute
Rate Auction (or, in either case, such other time or date as the Borrower and
the Agent shall have mutually agreed and notified to the Lenders not later than
the date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective), the Borrower
shall notify the Agent of its acceptance or non-acceptance of the offers so
notified to it pursuant to subsection (e). In the case of acceptance, such
notice (a "Notice of Money Market Borrowing") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Borrower may accept any Money Market Quote in whole or in part; provided that:
--------
(i) the aggregate principal amount of each Money Market Borrowing
may not exceed the applicable amount set forth in the related Money Market
Quote Request,
(ii) the principal amount of each Money Market Borrowing must be
$25,000,000 or a larger multiple of $1,000,000,
20
<PAGE>
(iii) acceptance of offers may only be made on the basis of ascending
Money Market Margins or Money Market Absolute Rates, as the case may be,
and
(iv) the Borrower may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the requirements
of this Agreement.
(g) Allocation by Agent. If offers are made by two or more Lenders
-------------------
with the same Money Market Margins or Money Market Absolute Rates, as the case
may be, for a greater aggregate principal amount than the amount in respect of
which offers are accepted for the related Interest Period, the principal amount
of Money Market Loans in respect of which such offers are accepted shall be
allocated by the Agent among such Lenders as nearly as possible (in such
multiples of $1,000,000 as the Agent may deem appropriate) in proportion to the
aggregate principal amounts of such offers. Determinations by the Agent of the
amounts of Money Market Loans shall be conclusive in the absence of manifest
error.
SECTION 2.04. Notice to Lenders; Funding of Loans. (a) Upon receipt
-----------------------------------
of a Notice of Borrowing, the Agent shall promptly notify each Lender of the
contents thereof and of such Lender's share (if any) of such Borrowing, and such
Notice of Borrowing shall not thereafter be revocable by the Borrower.
(b) Not later than 12:00 Noon (New York City time) on the date of
each Borrowing, each Lender participating therein shall (except as provided in
subsection (c) of this Section) make available its share of such Borrowing, in
Federal or other funds immediately available in New York City, to the Agent at
its address specified pursuant to Section 9.01. Unless the Agent determines
that any applicable condition specified in Article III has not been satisfied,
the Agent will make the funds so received from the Lenders promptly available to
the Borrower at the Agent's aforesaid address.
(c) If any Lender makes a new Loan hereunder on a day on which the
Borrower is to repay all or any part of an outstanding Loan to such Borrower
from such Lender, such Lender shall apply the proceeds of its new Loan to make
such repayment and only an amount equal to the difference (if any) between the
amount being borrowed and the amount being repaid shall be made available by
such Lender to the Agent as provided by subsection (b), or remitted by the
Borrower
21
<PAGE>
to the Agent as provided in Section 2.12, as the case may be.
(d) Unless the Agent shall have received notice from a Lender prior
to the date of any Borrowing that such Lender will not make available to the
Agent such Lender's share of such Borrowing, the Agent may assume that such
Lender has made such share available to the Agent on the date of such Borrowing
in accordance with subsections (b) and (c) of this Section 2.04 and the Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such share available to the Agent, such Lender and the Borrower
severally agree to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is repaid to the
Agent, at (i) in the case of the Borrower, a rate per annum equal to the higher
of the Federal Funds Rate and the interest rate applicable thereto pursuant to
Section 2.07 and (ii) in the case of such Lender, the Federal Funds Rate. If
such Lender shall repay to the Agent such corresponding amount, such amount so
repaid shall constitute such Lender's Loan included in such Borrowing for
purposes of this Agreement.
SECTION 2.05. Notes. (a) The Loans of each Lender to each Borrower
-----
shall be evidenced by a single Note of such Borrower payable to the order of
such Lender for the account of its Applicable Lending Office in an amount equal
to the aggregate unpaid principal amount of such Lender's Loans.
(b) Each Lender may, by notice to the Borrower and the Agent request
that its Loans to such Borrower of a particular type be evidenced by a separate
Note, in an amount equal to the aggregate unpaid principal amount of such Loans.
Each such Note shall be in substantially the form of Exhibit A hereto, with
appropriate modifications to reflect the fact that it evidences solely Loans of
the relevant type. Each reference in this Agreement to the "Note" of such
Lender shall be deemed to refer to and include any or all of such Notes, as the
context may require.
(c) Upon receipt of each Lender's Notes pursuant to Section 11.01(b),
the Agent shall mail such Notes to such Lender. Each Lender shall record in
accordance with its usual business practices the date, amount, type and maturity
of each Loan made by it and the date and amount of each payment of principal
made by the Borrower with respect
22
<PAGE>
thereto, and may, if such Lender so elects in connection with any transfer or
enforcement of its Note of such Borrower, endorse on the schedule forming a part
thereof appropriate notations to evidence the foregoing information with respect
to each such Loan then outstanding; provided that neither the failure of any
--------
Lender to make any such recordation or endorsement nor any error therein shall
affect the obligations of either Obligor hereunder or under the Notes. Each
Lender is hereby irrevocably authorized by the Borrowers so to endorse its Notes
and to attach to and make a part of any Note a continuation of any such schedule
as and when required.
SECTION 2.06. Maturity of Loans. Each Loan included in any Borrowing
-----------------
shall mature, and the principal amount thereof shall be due and payable, on the
last day of the Interest Period applicable to such Borrowing.
SECTION 2.07. Interest Rates. (a) Each Base Rate Loan shall bear
--------------
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal to the Base
Rate for such day. Such interest shall be payable for each Interest Period on
the last day thereof. Any overdue principal of or interest on any Base Rate
Loan shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 2% plus the rate otherwise applicable to Base Rate
Loans for such day.
(b) Each CD Loan shall bear interest on the outstanding principal
amount thereof, for each day during the Interest Period applicable thereto, at a
rate per annum equal to the sum of the CD Margin for such day plus the Adjusted
CD Rate applicable to such Interest Period; provided that if any CD Loan or any
--------
portion thereof shall, as a result of clause (2)(b) of the definition of
Interest Period, have an Interest Period of less than 30 days, such portion
shall bear interest during such Interest Period at the rate applicable to Base
Rate Loans during such period. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than 90
days, at intervals of 90 days after the first day thereof. Any overdue
principal of or interest on any CD Loan shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to the sum of 2% plus the
higher of (i) the sum of the CD Margin for such day plus the Adjusted CD Rate
applicable to the Interest Period for such Loan and (ii) the rate applicable to
Base Rate Loans for such day.
23
<PAGE>
"CD Margin" means a rate per annum determined in accordance with the
Pricing Schedule.
The "Adjusted CD Rate" applicable to any Interest Period means a rate
per annum determined pursuant to the following formula:
<TABLE>
<C> <C> <S>
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
</TABLE>
__________
* The amount in brackets being rounded upward, if necessary, to the next
higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is the rate of
interest determined by the Agent to be the average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of the prevailing rates per annum bid
at 10:00 A.M. (New York City time) (or as soon thereafter as practicable) on the
first day of such Interest Period by two or more New York certificate of deposit
dealers of recognized standing for the purchase at face value from each CD
Reference Lender of its certificates of deposit in an amount comparable to the
principal amount of the CD Loan of such CD Reference Lender to which such
Interest Period applies and having a maturity comparable to such Interest
Period.
"Domestic Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including without limitation any
basic, supplemental or emergency reserves) for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of new non-personal time deposits in dollars in New York City having a
maturity comparable to the related Interest Period and in an amount of $100,000
or more. The Adjusted CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate in
effect on such day which is payable by a
24
<PAGE>
member of the Lender Insurance Fund classified as adequately capitalized and
within supervisory subgroup "A" (or a comparable successor assessment risk
classification) within the meaning of 12 C.F.R. (S) 327.3(e) (or any successor
provision) to the Federal Deposit Insurance Corporation (or any successor) for
such Corporation's (or such successor's) insuring time deposits at offices of
such institution in the United States. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change in the Assessment
Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin for such
day plus the Adjusted London Interbank Offered Rate applicable to such Interest
Period. Such interest shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than three months, at intervals
of three months after the first day thereof.
"Euro-Dollar Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
The "London Interbank Offered Rate" applicable to any Interest Period
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in dollars are offered to
each of the Euro-Dollar Reference Lenders in the London interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference Lender to
which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upwards, if necessary, to the next higher 1/100 of 1%) by dividing (i) the
applicable London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar
Reserve Percentage.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency
25
<PAGE>
liabilities" (or in respect of any other category of liabilities which includes
deposits by reference to which the interest rate on Euro-Dollar Loans is
determined or any category of extensions of credit or other assets which
includes loans by a non-United States office of any Lender to United States
residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
(d) Any overdue principal of or interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day from and including the date
payment thereof was due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 2% plus the higher of (i) the sum of the Euro-
Dollar Margin for such day plus the Adjusted London Interbank Offered Rate
applicable to the Interest Period for such Loan and (ii) the Euro-Dollar Margin
plus the quotient obtained (rounded upward, if necessary, to the next higher
1/100 of 1%) by dividing (x) the average (rounded upward, if necessary, to the
next higher 1/16 of 1%) of the respective rates per annum at which one day (or,
if such amount due remains unpaid more than three Euro-Dollar Business Days,
then for such period of time not longer than three months as the Agent may
select) deposits in dollars in an amount approximately equal to such overdue
payment due to each of the Euro-Dollar Reference Lenders are offered to such
Euro-Dollar Reference Lender in the London interbank market for the applicable
period determined as provided above by (y) 1.00 minus the Euro-Dollar Reserve
Percentage (or, if the circumstances described in clause (a) or (b) of Section
8.01 shall exist, at a rate per annum equal to the sum of 2% plus the rate
applicable to Base Rate Loans for such day).
(e) Subject to Section 8.01(a), each Money Market LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the London
Interbank Offered Rate for such Interest Period (determined in accordance with
Section 2.07(c) as if the related Money Market LIBOR Borrowing were a Committed
Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted by the
Lender making such Loan in accordance with Section 2.03. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the Money Market Absolute Rate quoted by the Lender making such Loan in
accordance with Section 2.03. Such interest shall be payable for each Interest
Period on the last day thereof. Any overdue principal of or interest on any
Money Market
26
<PAGE>
Loan shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 2% plus the Prime Rate for such day.
(f) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the Borrower and the
participating Lenders of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(g) Each Reference Lender agrees to use its best efforts to furnish
quotations to the Agent as contemplated by this Section. If any Reference
Lender does not furnish a timely quotation, the Agent shall determine the
relevant interest rate on the basis of the quotation or quotations furnished by
the remaining Reference Lender or Lenders or, if none of such quotations is
available on a timely basis, the provisions of Section 8.01 shall apply.
SECTION 2.08. Fees. (a) The Company shall pay to the Agent for the
----
account of the Lenders ratably in proportion to their Commitments (or, if the
Commitments shall have been terminated, in proportion to the aggregate principal
amount of their Loans outstanding), a facility fee at the Facility Fee Rate
(determined daily in accordance with the Pricing Schedule). Such facility fee
shall accrue (i) from and including the Effective Date to but excluding the
Commitment Termination Date, on the daily average aggregate amount of the
Commitments (whether used or unused) and (ii) from and including the Commitment
Termination Date to but excluding the date the Loans shall be repaid in their
entirety, on the daily average aggregate outstanding principal amount of the
Loans.
(b) Accrued facility fees under this Section shall be payable
quarterly in arrears on each March 31, June 30, September 30 and December 31 and
upon the date of termination of the Commitments in their entirety (and, if
later, the date the Loans shall be repaid in their entirety).
SECTION 2.09. Scheduled Termination. The Commitments shall terminate
----------------------
on the Commitment Termination Date, and any Loans then outstanding (together
with accrued interest thereon) shall be due and payable on such date.
SECTION 2.10. Optional Reduction of Commitments. The Company may,
---------------------------------
upon at least three Domestic Business Days' notice to the Agent, (i) terminate
the Commitments at any time, if no Loans are outstanding at such time or
27
<PAGE>
(ii) ratably and permanently reduce from time to time by an aggregate amount of
$25,000,000 or any larger multiple of $1,000,000, the aggregate amount of the
Commitments in excess of the aggregate outstanding principal amount of the
Loans.
SECTION 2.11. Optional Prepayments. (a) The Borrower may, upon at
--------------------
least one Domestic Business Day's notice to the Agent, prepay any Base Rate
Borrowing (or any Money Market Borrowing bearing interest at the Prime Rate
pursuant to Section 8.01(a)) in whole at any time, or from time to time in part
in amounts aggregating $5,000,000 or any larger multiple of $5,000,000, by
paying the principal amount being prepaid together with interest accrued thereon
to the date of prepayment. Each such optional prepayment shall be applied to
prepay ratably the Loans of the several Lenders included in such Borrowing.
(b) Except as provided in Section 8.02, the Borrower may not prepay
all or any portion of the principal amount of any Fixed Rate Loan prior to the
maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this Section,
the Agent shall promptly notify each Lender of the contents thereof and of such
Lender's ratable share (if any) of such prepayment, and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.12. Payments. (a) The Borrower shall make each payment of
--------
principal of, and interest on, the Loans and of fees hereunder not later than
12:00 Noon (New York City time) on the date when due, in Federal or other funds
immediately available in New York City, to the Agent at its address referred to
in Section 9.01. The Agent will promptly distribute to each Lender in like
funds its ratable share of each such payment received by the Agent for the
account of the Lenders.
(b) Whenever any payment of principal of, or interest on, the
Domestic Loans or of fees hereunder shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a Euro-
Dollar Business Day, the date for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls
in another calendar month, in which case the date for payment thereof shall be
the next preceding Euro-Dollar Business Day. Whenever any payment of principal
of, or interest on, the Money Market Loans shall be due on a
28
<PAGE>
day which is not a Euro-Dollar Business Day, the date for payment thereof shall
be extended to the next succeeding Euro-Dollar Business Day. If the date for
any payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(c) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent that the Borrower shall not have so made such payment, each Lender shall
repay to the Agent forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.13. Funding Losses. If either Obligor makes any payment of
--------------
principal with respect to any Fixed Rate Loan (pursuant to Article VI or VIII or
otherwise) on any day other than the last day of the Interest Period applicable
thereto, or the end of an applicable period fixed pursuant to Section 2.07(d),
or if the Borrower fails to borrow or prepay any Fixed Rate Loans after notice
has been given to any Lender in accordance with Section 2.04(a) or 2.11(c), the
Company shall reimburse each Lender on demand for any resulting loss or expense
incurred by it (or by an existing or prospective Participant in the related
Loan), including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin for the period after any such payment or failure to borrow, provided that
--------
such Lender shall have delivered to the Company a certificate as to the amount
of such loss or expense, which certificate shall be conclusive in the absence of
manifest error.
SECTION 2.14. Computation of Interest and Fees. Interest based on
--------------------------------
the Prime Rate hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
29
<PAGE>
SECTION 2.15. Withholding Tax Exemption. On the Effective Date, each
-------------------------
Lender that is not incorporated or organized under the laws of the United States
of America or a state thereof agrees that it will deliver to each of the Company
and the Agent two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, certifying in either case that such Lender is
entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes. Each Lender
which so delivers a Form 1001 or 4224 further undertakes to deliver to each of
the Company and the Agent two additional copies of such form (or a successor
form) on or before the date that such form expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent form so
delivered by it, and such amendments thereto or extensions or renewals thereof
as may be reasonably requested by the Company or the Agent, in each case
certifying that such Lender is entitled to receive payments under this Agreement
and the Notes without deduction or withholding of any United States federal
income taxes, unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender advises the Company and the Agent that
it is not capable of receiving payments without any deduction or withholding of
United States federal income tax.
SECTION 2.16. Judgment Currency. If for the purpose of obtaining
-----------------
judgment in any court it is necessary to convert a sum due from either Obligor
hereunder or under any of the Notes in United States dollars ("dollars") into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase dollars with
such other currency at the Agent's New York office on the Domestic Business Day
preceding that on which final judgment is given. The obligations of each
Obligor in respect of any sum due to any Lender or the Agent hereunder or under
any Note shall, notwithstanding any judgment in a currency other than dollars,
be discharged only to the extent that on the Domestic Business Day following
receipt by such Lender or the Agent (as the case may be) of any sum adjudged to
be so due in such other currency such Lender or the Agent (as the case may be)
may in accordance with normal banking procedures purchase dollars with such
other currency; if the amount of dollars so purchased is less than the sum
originally due to such Lender or the Agent, as the
30
<PAGE>
case may be, in dollars, each Obligor liable in respect thereof agrees, to the
fullest extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the Agent, as the
case may be, against such loss, and if the amount of dollars so purchased
exceeds (a) the sum originally due to any Lender or the Agent, as the case may
be, and (b) any amounts shared with other Lenders as a result of allocations of
such excess as a disproportionate payment to such Lender under Section 11.04,
such Lender or the Agent, as the case may be, agrees to remit such excess to the
appropriate Borrower.
SECTION 2.17. Foreign Withholding Taxes and Other Costs. (a) All
-----------------------------------------
payments by or on account of BV under this Agreement and the Notes are payable
without deduction for or account of any present or future taxes, duties or other
charges levied or imposed by the Government of The Netherlands or by any
political subdivision or taxing authority thereof or therein (or by any
federation or organization of which the Government of The Netherlands is a
member) through withholding or deduction with respect to any such payments. If
any such taxes, duties or other charges are so levied or imposed, BV will pay
additional interest or will make additional payments in such amounts so that
every net payment under this Agreement and the Notes, after withholding or
deduction for or on account of any such taxes, duties or other charges, will not
be less than the amount provided for herein and will furnish to the Agent within
30 days official receipts evidencing such withholding or deduction.
(b) If the cost to any Lender of making or maintaining any Loan to BV
is increased, or the amount of any sum received or receivable by any Lender (or
its Applicable Lending Office) is reduced by an amount deemed by such Lender to
be material, by reason of the fact that BV is incorporated in, or conducts
business in, a jurisdiction outside the United States of America, the Company
shall indemnify such Lender for such increased cost or reduction within 15 days
after demand by such Lender (with a copy to the Agent). A certificate of such
Lender claiming compensation under this subsection (b) and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error.
(c) Each Lender will promptly notify the Company and the Agent of any
event of which it has knowledge that will entitle such Lender to additional
interest or payments pursuant to subsection (a) or (b) and will designate a
different Applicable Lending Office, if, in the judgment of
31
<PAGE>
such Lender, such designation will avoid the need for, or reduce the amount of,
such compensation and will not be otherwise disadvantageous to such Lender.
ARTICLE III
CONDITIONS
SECTION 3.01. Conditions to Borrowing. The obligation of each Lender
-----------------------
to make a Loan on the occasion of each Borrowing is subject to the performance
by each Obligor of all of its obligations under this Agreement and to the
satisfaction of the following conditions:
(a) receipt by the Agent of a Notice of Borrowing as required by
Section 2.02 or 2.03, as the case may be;
(b) the fact that, immediately after such Borrowing, the aggregate
outstanding principal amount of the Loans will not exceed the aggregate
amount of the Commitments;
(c) the fact that, immediately after giving effect to such Borrowing,
no Default shall have occurred and be continuing; and
(d) the fact that the representations and warranties of the Borrower
and, if it is not the Borrower, the Company contained in this Agreement
(except, in the case of any Borrowing subsequent to the first Borrowing,
the representation and warranty set forth in Section 4.04(b) and, in the
case of a Refunding Borrowing, the representation and warranty set forth in
Section 4.05) shall be true and correct in all material respects on and as
of the date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in clauses
(b), (c) and (d) of this Section.
32
<PAGE>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
(A) The Company represents and warrants that:
SECTION 4.01. Corporate or Partnership Existence and Power. The
--------------------------------------------
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and has all corporate powers
and all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted. Each Material Subsidiary is
a corporation or partnership duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization, and has all
corporate or partnership powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business. Each
of the Company and its Material Subsidiaries is duly qualified as a foreign
corporation or partnership, licensed and in good standing in each jurisdiction
where qualification or licensing is required by the nature of its business or
the character and location of its property, business or customers and in which
the failure so to qualify or be licensed, as the case may be, in the aggregate,
would have a material adverse effect on the business, financial position,
results of operations or properties of the Company and its Subsidiaries,
considered as a whole.
SECTION 4.02. Corporate and Governmental Authorization; No
--------------------------------------------
Contravention. The execution, delivery and performance by the Company of this
- -------------
Agreement and its Notes are within the Company's corporate power, have been duly
authorized by all necessary corporate action, require no action by or in respect
of, or filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the certificate of incorporation or by-laws of the Company or
of any agreement, judgment, injunction, order, decree or other instrument
binding upon the Company or result in or require the creation or imposition of
any Lien on any asset of the Company or any Subsidiary.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and
--------------
binding agreement of the Company and its Notes, when executed and delivered in
accordance with this Agreement, will constitute valid and binding obligations of
the Company, in each case enforceable in accordance with its terms.
33
<PAGE>
SECTION 4.04. Financial Information. (a) The consolidated balance
---------------------
sheet of the Company and its Consolidated Subsidiaries as of December 31, 1993,
and the related consolidated statements of income, cash flows and changes in
stockholders' equity for the fiscal year then ended, reported on by KPMG Peat
Marwick and set forth in the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1993, filed with the Securities and Exchange Commission,
a copy of which has been delivered to each of the Lenders, fairly present in all
material respects, in conformity with generally accepted accounting principles,
the consolidated financial position of the Company and its Consolidated
Subsidiaries as of such date and their consolidated results of operations, cash
flows and changes in stockholders' equity for such fiscal year.
(b) There has been no material adverse change in the business,
properties, financial position, results of operations or prospects of the
Company and its Consolidated Subsidiaries, considered as a whole, since December
31, 1993.
SECTION 4.05. Litigation. There is no action, suit, proceeding or
----------
arbitration pending against, or to the knowledge of the Company threatened
against or affecting, the Company or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable likelihood of an adverse decision which would materially adversely
affect the business, properties, financial position or results of operations of
the Company and its Consolidated Subsidiaries, considered as a whole, or which
in any manner questions the validity or enforceability of this Agreement or the
Notes.
SECTION 4.06. Compliance with ERISA. Each member of the ERISA Group
---------------------
has fulfilled its obligations under the minimum funding standards of ERISA and
the Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or made any amendment
to any Plan which in either case has resulted or could result in the imposition
of a Lien or the posting of a bond or other security under ERISA or the Internal
Revenue Code or (iii) incurred any liability under Title IV of ERISA other than
a liability to the PBGC for premiums under Section 4007 of ERISA.
34
<PAGE>
SECTION 4.07. Environmental Matters. In the ordinary course of its
---------------------
business, the Company conducts an ongoing review of the effect of Environmental
Laws on the business, operations and properties of the Company and its
Subsidiaries, in the course of which it identifies and evaluates associated
liabilities and costs (including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties presently or
previously owned, any capital or operating expenditures required to achieve or
maintain compliance with environmental protection standards imposed by law or as
a condition of any license, permit or contract, any related constraints on
operating activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or change in the nature of operations
conducted thereat and any actual or potential liabilities to third parties,
including employees, and any related costs and expenses). On the basis of this
review, the Company has reasonably concluded that Environmental Laws are
unlikely to have a material adverse effect on the business, financial condition
or results of operations of the Company and its Consolidated Subsidiaries,
considered as a whole.
SECTION 4.08. Taxes. United States Federal income tax returns of the
-----
Company and its Subsidiaries have been examined and closed through the fiscal
year ended December 31, 1986. The Company and each Subsidiary have filed all
United States Federal income tax returns and all other material tax returns that
are required to be filed by them and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by any of them, except for any
such taxes being diligently contested in good faith and by appropriate
proceedings. Adequate reserves have been provided on the books of the Company
and its Subsidiaries in respect of all taxes or other governmental charges in
accordance with generally accepted accounting principles, and no tax liabilities
in excess of the amount so provided are anticipated that could reasonably be
expected to materially and adversely affect the business, properties, financial
position or results of operations of the Company and its Consolidated
Subsidiaries, considered as a whole.
SECTION 4.09. Full Disclosure. All information heretofore furnished
---------------
by the Company to the Agent or any Lender for purposes of or in connection with
this Agreement or any transaction contemplated hereby was, and all such
information hereafter furnished by the Company to the Agent or any Lender will
be, true and accurate in every material respect or based on reasonable estimates
on the date as of which such information is stated or certified.
35
<PAGE>
SECTION 4.10. Compliance with Laws. The Company and each Material
--------------------
Subsidiary are in compliance with all applicable laws, rules and regulations,
other than such laws, rules or regulations (i) the validity or applicability of
which the Company or such Subsidiary is contesting in good faith or (ii) failure
to comply with which cannot reasonably be expected to have consequences which
would materially and adversely affect the business, properties, financial
position or results of operations of the Company and its Consolidated
Subsidiaries, considered as a whole.
(B) BV represents and warrants that:
SECTION 4.11. Corporate Existence and Power. It is a corporation
-----------------------------
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and is a Wholly-Owned Subsidiary of the Company.
SECTION 4.12. Corporate and Governmental Authorization;
-----------------------------------------
Contravention. The execution, delivery and performance by it of this Agreement
- -------------
and its Notes are within its corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
its certificate of incorporation or by-laws or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Company or BV
result in the creation or imposition of any Lien on any asset of the Company or
any of its Subsidiaries.
SECTION 4.13. Binding Effect. This Agreement constitutes a valid and
--------------
binding agreement of BV and each of its Notes, when executed and delivered in
accordance with this Agreement, will constitute a valid and binding obligation
of BV, in each case enforceable in accordance with its terms.
SECTION 4.14. Taxes. There is no income, stamp or other tax of any
-----
country, or any taxing authority thereof or therein, imposed by or in the nature
of withholding or otherwise, which is imposed on any payment to be made by BV
pursuant hereto or on its Notes, or is imposed on or by virtue of the execution,
delivery or enforcement of this Agreement or of its Notes.
36
<PAGE>
ARTICLE V
COVENANTS
The Company agrees that, so long as any Lender has any Commitment
hereunder or any amount payable under any Note remains unpaid:
SECTION 5.01. Information. The Company will deliver to each of the
-----------
Lenders:
(a) within 90 days after the end of each fiscal year of the Company,
a consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of the end of such fiscal year and the related consolidated
statements of income, of cash flows and of changes in stockholders' equity
for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and reported
on without Qualification by KPMG Peat Marwick or other independent public
accountants of nationally recognized standing;
(b) within 45 days after the end of each of the first three quarters
of each fiscal year of the Company, a consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of the end of such quarter,
and the related consolidated statements of income, of cash flows and of
changes in stockholders' equity for such quarter and for the portion of the
Company's fiscal year ended at the end of such quarter, setting forth in
each case in comparative form the figures for the corresponding quarter and
the corresponding portion of the Company's previous fiscal year, all
certified (subject to normal year-end adjustments) as to fairness of
presentation and consistency by the chief financial officer, the treasurer
or the chief accounting officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b) of this Section, a
certificate of the chief financial officer, the treasurer, or chief
accounting officer of the Company (i) setting forth in reasonable detail
such calculations as are required to establish whether the Company was in
compliance with the requirements of Sections 5.06 through 5.11 on the
37
<PAGE>
date of such financial statements, (ii) stating whether there exists on the
date of such certificate any Default and, if any Default then exists,
setting forth the details thereof and the action that the Company is taking
or proposes to take with respect thereto and (iii) stating whether, since
the date of the most recent previous delivery of financial statements
pursuant to paragraph (a) or (b) of this Section, there has been any
material adverse change in the business, financial position or results of
operations of the Company and its Consolidated Subsidiaries, considered as
a whole, and, if so, the nature of such material adverse change;
(d) simultaneously with the delivery of each set of financial
statements referred to in paragraph (a) of this Section, a statement of the
firm of independent public accountants that reported on such statements (i)
stating that their audit examination has included a review of the terms of
this Agreement and the Notes as they relate to financial or accounting
matters, (ii) whether anything has come to their attention to cause them to
believe that there existed on the date of such statements any Default and
(iii) confirming the calculations set forth in the officer's certificate
delivered simultaneously therewith pursuant to paragraph (c) of this
Section;
(e) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b) of this Section a
schedule, certified as to its accuracy and completeness by the chief
financial officer, the treasurer or the chief accounting officer of the
Company, listing in reasonable detail the Debt balance of each Restricted
Subsidiary;
(f) forthwith upon the occurrence of any Default, a certificate of
the chief financial officer, the treasurer or the chief accounting officer
of the Company setting forth the details thereof and the action that the
Company is taking or proposes to take with respect thereto;
(g) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
38
<PAGE>
(h) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent), annual, quarterly or monthly reports and
any reports on Form 8-K (or any successor form) that the Company or any
Subsidiary shall have filed with the Securities and Exchange Commission;
(i) within 14 days after any member of the ERISA Group (i) gives or
is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of ERISA,
or knows that the plan administrator of any Plan has given or is required
to give notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA
which liability exceeds $1,000,000 or notice that any Multiemployer Plan is
in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate, impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or appoint a trustee to administer
any Plan, a copy of such notice; (iv) applies for a waiver of the minimum
funding standard under Section 412 of the Internal Revenue Code, a copy of
such application; (v) gives notice of intent to terminate any Plan under
Section 4041(c) of ERISA, a copy of such notice and other information filed
with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to
Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any
payment or contribution to any Plan or Multiemployer Plan or makes any
amendment to any Plan which in either case has resulted or could result in
the imposition of a Lien or the posting of a bond or other security, a
certificate of the chief financial officer or the chief accounting officer
of the Company setting forth details as to such occurrence and action, if
any, which the Company or applicable member of the ERISA Group is required
or proposes to take; and
(j) as soon as reasonably practicable after a Principal Officer
obtains knowledge of the
39
<PAGE>
commencement of, or of a material threat of the commencement of, an action,
suit or proceeding against the Company or any Subsidiary before any court
or arbitrator or any governmental body, agency or official in which there
is a reasonable likelihood of an adverse decision which would materially
adversely affect the business, properties, financial position or results of
operations of the Company and its Consolidated Subsidiaries, considered as
a whole, or which in any manner questions the validity or enforceability of
this Agreement or any of the transactions contemplated hereby, information
as to the nature of such pending or threatened action, suit or proceeding;
(k) within 180 days after the end of each fiscal year of BV, a
consolidated balance sheet of BV and its Consolidated Subsidiaries as of
the end of such fiscal year and the related consolidated statements of
income, stockholders' equity and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal
year, all in reasonable detail and reported on without Qualification by
KPMG Peat Marwick or other independent public accountants of nationally
recognized standing; and
(l) from time to time such additional information regarding the
business, properties, financial position, results of operations, or
prospects of the Company or any Subsidiary as the Agent, at the request of
any Lender, may reasonably request.
SECTION 5.02. Payment of Obligations. The Company will, and will
----------------------
cause each Restricted Subsidiary to, pay and discharge, as the same shall become
due and payable, all their respective material obligations and liabilities,
including without limitation (i) all claims or demands of materialmen,
mechanics, carriers, warehousemen, landlords and other like Persons which, in
any such case, if unpaid, might by law give rise to a Lien upon any of its
property or assets, and (ii) all lawful taxes, assessments and governmental
charges or levies upon it or its property or assets, except to the extent that
any such obligation or liability may be diligently contested in good faith by
appropriate proceedings, and the Company will maintain, and will cause each
Restricted Subsidiary to maintain, in accordance with generally accepted
accounting principles, appropriate reserves for the accrual of any such
obligation or liability.
40
<PAGE>
SECTION 5.03. Maintenance of Property; Insurance. (a) The Company
----------------------------------
will keep, and will cause each Restricted Subsidiary to keep, all material
property useful and necessary in its business in good working order and
condition, normal wear and tear excepted.
(b) The Company will, and will cause each of its Material
Subsidiaries to, maintain (either in the name of the Company or in such
Subsidiary's own name) with financially sound and responsible insurance
companies, insurance on all their respective properties in at least such amounts
and against at least such risks (and with such risk retention) as are usually
maintained in the same general area by companies of established repute engaged
in the same or a similar business; and will furnish to the Lenders, upon request
from the Agent, information presented in reasonable detail as to the insurance
so carried.
SECTION 5.04. Inspection of Property, Books and Records. The Company
-----------------------------------------
will keep, and will cause each Restricted Subsidiary to keep, proper books of
record and account in which full, true and correct entries in conformity with
generally accepted accounting principles shall be made of all dealings and
transactions in relation to its business and activities. Subject to limitations
imposed by law or contract on access to and dissemination of classified or other
confidential information, the Company will permit, and will cause each
Restricted Subsidiary to permit, representatives of any Lender to visit and
inspect any of their respective properties, to examine their respective
corporate, financial and operating records and make copies thereof or abstracts
therefrom, and to discuss their respective affairs, finances and accounts with
their respective directors, officers, employees and independent public
accountants, all at such reasonable times and as often as may reasonably be
desired, upon reasonable advance notice to the Company.
SECTION 5.05. Maintenance of Existence, Rights, Etc. (a) Subject to
-------------------------------------
Section 5.07, the Company will preserve, renew and keep in full force and
effect, and will cause each Restricted Subsidiary to preserve, renew and keep in
full force and effect their respective corporate or partnership existence and
their respective rights, privileges and franchises necessary or desirable in the
normal conduct of business, except when failure to do so would not be materially
disadvantageous to the Lenders; provided that nothing in this Section 5.05 shall
--------
prohibit (i) the merger of a Restricted Subsidiary into the Company in a
transaction permitted under Section 5.07 or the merger or consolidation of a
Restricted Subsidiary with or into
41
<PAGE>
another Person if, in each case, after giving effect thereto, no Default shall
have occurred and be continuing or (ii) the termination of the corporate or
partnership existence of any Restricted Subsidiary if the Company in good faith
determines that such termination is in the best interest of the Company and is
not materially disadvantageous to the Lenders.
(b) At no time will any Unrestricted Subsidiary hold, directly or
indirectly, any capital stock of any Restricted Subsidiary.
SECTION 5.06. Liens. The Company will not, and will not permit any
-----
Restricted Subsidiary to, create, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired by it, except:
(a) Liens existing on the date hereof securing Debt outstanding on
the date hereof;
(b) Liens incidental to the conduct of its business or the ownership
of its assets which (i) arise in the ordinary course of business, (ii) do
not secure Debt and (iii) do not in the aggregate materially detract from
the value of its assets or materially impair the use thereof in the
operation of its business;
(c) Liens on property or assets of any Person existing at the time
such Person becomes a Restricted Subsidiary;
(d) Liens on any property or assets existing at the time of
acquisition thereof (including acquisition through merger or consolidation)
or to secure the payment of all or any part of the purchase price or
construction cost thereof or to secure any Debt incurred prior to, at the
time of or within 120 days after the later of the acquisition of such
property or assets or shares of stock or Debt or the completion of any such
construction and the commencement of operation of such property, for the
purpose of financing all or any part of the purchase price or construction
cost thereof;
(e) Liens in favor of a governmental unit to secure payments under any
contract or statute, or to secure any Debt incurred in financing the
acquisition, construction or improvement of property subject thereto,
including Liens on, and created or arising in connection with the financing
of the acquisition,
42
<PAGE>
construction or improvement of, any facility used or to be used in the
business of the Company or any Subsidiary through the issuance of
obligations, the income from which shall be excludable from gross income by
virtue of Section 103 of the Internal Revenue Code (or any subsequently
adopted provisions thereof providing for a specific exclusion from gross
income);
(f) Liens on assets of Restricted Subsidiaries securing Debt owing to
the Company;
(g) Liens on up to $40,000,000 of accounts receivable of Restricted
Subsidiaries organized outside of the United States of America securing
Debt of such Subsidiaries;
(h) any extension, renewal, substitution, or replacement (or
successive extensions, renewals, substitutions or replacements), as a whole
or in part, of any Lien referred to in subparagraphs (a) through (g) above
or the Debt secured thereby; provided that (1) such extension, renewal,
--------
substitution or replacement Lien shall be limited to all or any part of the
same property or assets, shares of stock or Debt that secured the Lien
extended, renewed, substituted or replaced (plus improvements on such
property) and (2) the Debt secured by such Lien at such time is not
increased; and
(i) other Liens securing Debt in an aggregate principal amount at any
time outstanding not to exceed 10% of Consolidated Adjusted Net Worth;
provided that, notwithstanding the foregoing, the Company will not, and will not
- --------
permit any Restricted Subsidiary to, create, assume or suffer to exist any Lien
on any stock, indebtedness or other security of any Unrestricted Subsidiary now
owned or hereafter acquired by it.
SECTION 5.07. Consolidations, Mergers and Sales of Assets. The
-------------------------------------------
Company will not (i) consolidate with or merge with or into any other Person or
(ii) sell, assign, lease, transfer or otherwise dispose of all or substantially
all of its assets to any other Person; provided that the Company may merge with
--------
another Person if (A) immediately after giving effect to such merger, no Default
shall have occurred and be continuing, (B) the surviving entity is a domestic
corporation and its Consolidated Adjusted Net Worth is at least equal to the
Company's Consolidated Adjusted Net Worth immediately prior to the merger and
(C) the Person
43
<PAGE>
surviving such merger, if not the Company, executes and delivers to the Agent
and each of the Lenders an instrument satisfactory to the Required Lenders
pursuant to which such Person assumes all of the Company's obligations under
this Agreement as theretofore amended or modified, including the full and
punctual payment (whether at stated maturity, upon acceleration or otherwise) of
the principal of and interest on each Loan made to the Company pursuant to this
Agreement, the full and punctual payment of all other amounts payable hereunder
and the performance of all of the other covenants and agreements contained
herein.
SECTION 5.08. Dividend Payments. The Company will not declare or pay
-----------------
any Dividend Payment; provided that (a) the Company may declare and pay
--------
dividends in respect of its capital stock to the extent that the aggregate
dividends paid subsequent to January 1, 1992 do not exceed the sum of
$170,000,000 and 50% of Consolidated Net Income for the period from January 1,
1992 to the end of the then most recently ended fiscal quarter of the Company
(treated for this purpose as a single accounting period) and (b) the Company may
redeem the Preferred Share Purchase Rights distributed to holders of its common
stock on March 7, 1987, for an aggregate redemption price not exceeding
$2,600,000.
SECTION 5.09. Cash Flow Coverage. The ratio of Consolidated Cash
------------------
Flow for any period of four consecutive fiscal quarters to Adjusted Total Debt
as of the last day of such period shall at no time be less than 0.23.
44
<PAGE>
SECTION 5.10. Leverage Ratio. The ratio of Adjusted Total Debt to
--------------
Consolidated Adjusted Net Worth shall at no time during any fiscal year set
forth below exceed the applicable ratio set forth below:
<TABLE>
<CAPTION>
Fiscal Year
Ending
December 31 Maximum Ratio
----------- -------------
<S> <C>
1994 3.50
1995 3.00
1996 2.50
1997 2.50
1998 2.25
1999 2.00
</TABLE>
SECTION 5.11. Minimum Net Worth. Consolidated Adjusted Net Worth
-----------------
shall at no time be less than $300,000,000; provided that the amount of
--------
Consolidated Adjusted Net Worth required to be maintained under this Section
shall be increased at the end of each fiscal year of the Company, commencing
with the fiscal year ending on December 31, 1992, by an amount equal to 50% of
Consolidated Net Income (if a positive number) for such fiscal year (or in the
case of December 31, 1992, for the six months then ended).
SECTION 5.12. Use of Proceeds. The proceeds of the Borrowings under
---------------
this Agreement will be used by the Borrowers for general corporate purposes.
None of such proceeds will be used, directly or indirectly, for the purpose,
whether immediate, incidental or ultimate, of buying or carrying any "margin
stock" within the meaning of Regulation U.
ARTICLE VI
DEFAULTS
SECTION 6.01. Defaults. If one or more of the following events
--------
("Events of Default") shall have occurred and be continuing:
(a) any principal of any Loan shall not be paid when due, or any
interest, any fees or other
45
<PAGE>
amount payable hereunder shall not be paid within five days of the due date
thereof;
(b) the Company shall fail to observe or perform any covenant
contained in Sections 5.05 (with respect to the Company) or 5.06 to 5.12,
inclusive;
(c) either Obligor shall fail to observe or perform any of its
covenants or agreements contained in this Agreement (other than those
covered by paragraph (a) or (b) above), for 30 days after notice thereof
has been given to the Company by the Agent at the request of any Lender;
(d) any representation, warranty, certification or statement by
either Obligor made in this Agreement or in any certificate, financial
statement or other document delivered pursuant hereto or deemed to be made
pursuant to Section 3.01 shall have been incorrect in any material respect
when made or deemed to be made;
(e) the Company or any Material Subsidiary shall fail to make any
payment in respect of Debt or other Financial Accommodations (other than
under this Agreement or the Notes) the aggregate amount of which is
$25,000,000 or more when due or within any applicable grace period;
(f) any event or condition shall occur that (i) results in the
acceleration of the maturity of Debt or other Financial Accommodations
(other than under this Agreement or the Notes) of the Company or any
Material Subsidiary the aggregate amount of which is $25,000,000 or more,
or (ii) enables the holder or holders of such Debt or other Financial
Accommodation or any Person acting on behalf of such holder or holders to
accelerate the maturity thereof, provided that no Event of Default under
--------
this clause (ii) shall occur unless and until any required notice has been
given and/or period of time has elapsed with respect to such Debt so as to
perfect such right to accelerate;
(g) the Company or any Material Subsidiary shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the
46
<PAGE>
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent to
any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Company or any Material Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be entered
against the Company or any Material Subsidiary under the Federal bankruptcy
laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $25,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA
to terminate, to impose liability (other than for premiums under Section
4007 of ERISA) in respect of, or to cause a trustee to be appointed to
administer any Material Plan; or a condition shall exist by reason of which
the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a complete or
partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $25,000,000;
(j) Enforceable Judgments for the payment of money in an aggregate
amount exceeding $25,000,000
47
<PAGE>
shall be rendered against the Company or any Material Subsidiary and shall
continue unsatisfied and unstayed for a period of 30 days; or
(k) (i) any Person or two or more Persons acting in concert (other
than a Plan or Plans) shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of 20% or more of the outstanding shares
of voting stock of the Company; or (ii) during any period of 12 consecutive
months, commencing before or after the date of this Agreement, individuals
who at the beginning of such 12 month period were directors of the Company
cease for any reason to constitute a majority of the board of directors of
the Company;
then, and in every such event, the Agent shall (i) if requested by the Required
Lenders, by notice to the Company, terminate the Commitments, and the
Commitments shall thereupon terminate, and (ii) if requested by Lenders holding
Notes evidencing at least 66 2/3% in aggregate principal amount of the Loans, by
notice to the Company, declare the Notes (together with accrued interest
thereon) and all other amounts payable by it hereunder to be, and such Notes and
amounts shall thereupon become, immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Obligors, provided that:
--------
(A) in the case of any of the Events of Default specified in paragraph
(g) or (h) of this Section 6.01 with respect to the Company, immediately
and without any notice to either Obligor or any other act by the Agent or
the Lenders, and
(B) in the case of any of the Events of Default specified in paragraph
(k) of this Section 6.01, unless the Required Lenders shall have waived
such Event of Default within 30 days of its occurrence, on the 30th day
after such occurrence,
the Commitments shall terminate and the Notes (together with accrued interest
thereon) and all other amounts payable by the Company hereunder shall become
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Company.
48
<PAGE>
SECTION 6.02. Notice of Default. The Agent shall give notice to the
-----------------
Company under Section 6.01(c) promptly upon being requested to do so by any
Lender and shall thereupon notify all the Lenders thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Lender irrevocably
-----------------------------
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the Notes as are delegated to
the Agent by the terms hereof, together with all such powers as are reasonably
incidental thereto.
SECTION 7.02. Agent and Affiliates. Morgan Guaranty Trust Company of
--------------------
New York shall have the same rights and powers under this Agreement as any other
Lender and may exercise or refrain from exercising the same as though it were
not the Agent, and Morgan Guaranty Trust Company of New York and its affiliates
may accept deposits from, lend money to, and generally engage in any kind of
business with the Company or any Subsidiary or affiliate of the Company as if it
were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent
---------------
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Agent shall not be required to take any action
with respect to any Default, except as expressly provided in Article VI.
SECTION 7.04. Consultation with Experts. The Agent may consult with
-------------------------
legal counsel (who may be counsel for an Obligor), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agent. Neither the Agent nor any of its
------------------
directors, officers, agents or employees shall be liable to any Lender for any
action taken or not taken by it in connection herewith (i) with the consent or
at the request of the Required Lenders (or, if specifically required by Section
9.04, all of the Lenders) or (ii) in the absence of its own gross negligence or
willful misconduct. Neither the Agent nor any of its directors, officers,
agents or employees shall be
49
<PAGE>
responsible for or have any duty to ascertain, inquire into or verify (i) any
statement, warranty or representation made in connection with this Agreement or
any borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of the Obligors; (iii) the satisfaction of any condition
specified in Article III or Article X, except receipt of items required to be
delivered to the Agent; or (iv) the validity, effectiveness or genuineness of
this Agreement, the Notes or any other instrument or writing furnished in
connection herewith. The Agent shall not incur any liability by acting in
reliance upon any notice, consent, certificate, statement, or other writing
(which may be a bank wire, telex or similar writing) believed by it to be
genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Lender shall, ratably in
---------------
accordance with its Commitment, indemnify the Agent (to the extent not
reimbursed by the Company) against any cost, expense (including counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from the Agent's gross negligence or willful misconduct) that the Agent may
suffer or incur in connection with this Agreement or any action taken or omitted
by the Agent hereunder.
SECTION 7.07. Credit Decision. Each Lender acknowledges that it has,
---------------
independently and without reliance upon the Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.08. Agent's Fees. The Company shall pay to the Agent for
------------
its own account fees in the amounts and at the times previously agreed upon
between the Company and the Agent.
SECTION 7.09. Successor Agent. The Agent may resign at any time by
---------------
giving notice thereof to the Lenders and the Company. Upon any such
resignation, the Required Lenders shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Agent gives notice of resignation, then the retiring Agent may, on
behalf of the
50
<PAGE>
Lenders, appoint a successor Agent, which shall be a commercial bank organized
or licensed under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $500,000,000.
Upon the acceptance of its appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Article shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
-------------------------------------------------
Unfair. If on or prior to the first day of any Interest Period for any Fixed
- ------
Rate Borrowing:
(a) the Agent is advised by the Reference Lenders that deposits in
dollars (in the applicable amounts) are not being offered to the Reference
Lenders in the relevant market for such Interest Period, or
(b) in the case of a Committed Borrowing, Lenders having 50% or more
of the aggregate amount of the Commitments advise the Agent that the
Adjusted CD Rate or the Adjusted London Interbank Offered Rate, as the case
may be, as determined by the Agent will not adequately and fairly reflect
the cost to such Lenders of funding their CD Loans or Euro-Dollar Loans, as
the case may be, for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Lenders,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligations of the Lenders to make
CD Loans or Euro-Dollar Loans, as the case may be, shall be suspended. Unless
the Borrower notifies the Agent at least two Domestic Business Days before the
date of any Fixed Rate Borrowing for which a Notice of Borrowing has previously
been given that it elects not to borrow on such date, (i) if such Fixed Rate
Borrowing is a Committed Borrowing, such Borrowing shall instead be made as a
Base Rate Borrowing and (ii) if such Fixed Rate Borrowing is a
51
<PAGE>
Money Market LIBOR Borrowing, the Money Market LIBOR Loans comprising such
Borrowing shall bear interest for each day from and including the first day to
but excluding the last day of the Interest Period applicable thereto at the
Prime Rate for such day.
SECTION 8.02. Illegality. If, on or after the date of this
----------
Agreement, the adoption of any applicable law, rule or regulation, or any change
in any applicable law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Lender (or its Euro-Dollar Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency shall make it unlawful or impossible for any
Lender (or its Euro-Dollar Lending Office) to make, maintain or fund its Euro-
Dollar Loans to either Borrower and such Lender shall so notify the Agent, the
Agent shall forthwith give notice thereof to the other Lenders and the Borrower,
whereupon until such Lender notifies the Borrower and the Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Lender to make Euro-Dollar Loans to such Borrower shall be suspended.
Before giving any notice to the Agent pursuant to this Section, such Lender
shall designate a different Euro-Dollar Lending Office if such designation will
avoid the need for giving such notice and will not, in the judgment of such
Lender, be otherwise disadvantageous to such Lender. If such Lender shall
determine that it may not lawfully continue to maintain and fund any of its
outstanding Euro-Dollar Loans to such Borrower to maturity and shall so specify
in such notice, such Borrower shall immediately prepay in full the then
outstanding principal amount of each such Euro-Dollar Loan, together with
accrued interest thereon. Concurrently with prepaying each such Euro-Dollar
Loan, such Borrower shall borrow a Base Rate Loan in an equal principal amount
from such Lender (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Lenders), and
such Lender shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a) If on or after
---------------------------------
(x) the date hereof, in the case of any Committed Loan or any obligation to make
Committed Loans or (y) the date of the related Money Market Quote, in the case
of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority,
52
<PAGE>
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency:
(i) shall subject any Lender (or its Applicable Lending Office) to
any tax, duty or other charge with respect to its Fixed Rate Loans, its
Note or its obligation to make Fixed Rate Loans, or shall change the basis
of taxation of payments to any Lender (or its Applicable Lending Office) of
the principal of or interest on its Fixed Rate Loans or any other amounts
due under this Agreement in respect of its Fixed Rate Loans or its
obligation to make Fixed Rate Loans (except for changes in the rate of tax
on the overall net income of such Lender or its Applicable Lending Office
imposed by the jurisdiction in which such Lender's principal executive
office or Applicable Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement imposed by the Board
of Governors of the Federal Reserve System, but excluding (A) with respect
to any CD Loan any such requirement included in an applicable Domestic
Reserve Percentage and (B) with respect to any Euro-Dollar Loan any such
requirement included in an applicable Euro-Dollar Reserve Percentage),
special deposit, insurance assessment (excluding, with respect to any CD
Loan, any such requirement reflected in an applicable Assessment Rate) or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (or its Applicable Lending Office) or
shall impose on any Lender (or its Applicable Lending Office) or on the
United States market for certificates of deposit or the London interbank
market any other condition affecting its Fixed Rate Loans, its Note or its
obligation to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making or maintaining any Fixed Rate Loan,
or to reduce the amount of any sum received or receivable by such Lender (or its
Applicable Lending Office) under this Agreement or under its Note with respect
thereto, by an amount deemed by such Lender to be material, then, within 15 days
after demand by such Lender (with a copy to the Agent), the Borrower shall
53
<PAGE>
pay to such Lender such additional amount or amounts as will compensate such
Lender for such increased cost or reduction.
(b) If any Lender shall have determined that, after the date hereof,
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency (including any determination by any such authority, central
bank or comparable agency that, for purposes of capital adequacy requirements,
the Commitments hereunder do not constitute commitments with an original
maturity of one year or less, which shall be deemed a change in the
interpretation and administration of such requirements), has or would have the
effect of reducing the rate of return on capital of such Lender (or its Parent)
as a consequence of such Lender's obligations hereunder to a level below that
which such Lender (or its Parent) could have achieved but for such adoption,
change, request or directive (taking into consideration its policies with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then from time to time, within 15 days after demand by such Lender (with a copy
to the Agent), the Company shall pay to such Lender such additional amount or
amounts as will compensate such Lender (or its Parent) for such reduction.
(c) Each Lender will promptly notify the Company (and if BV is the
Borrower, BV) and the Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Lender to compensation pursuant
to this Section and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole judgment of such Lender, be otherwise disadvantageous
to such Lender. The Lender shall deliver a written statement of such Lender as
to the amount due, if any, under this Section 8.03. Such written statement
shall set forth in reasonable detail the calculations upon which the Lender
determined such amount and shall be final, conclusive and binding on the Company
and BV in the absence of manifest error. Determination of amounts payable under
such Sections in connection with a CD Loan, a Euro-Dollar Loan or a Money Market
LIBOR Loan shall be calculated as though the Lender funded such Loan through the
purchase of a deposit of the type and maturity corresponding to the deposit used
as a reference in determining the rate of
54
<PAGE>
interest applicable to such Loan whether in fact that is the case or not. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods.
SECTION 8.04. Base Rate Loans Substituted for Affected Fixed Rate
---------------------------------------------------
Loans. If (i) the obligation of any Lender to make Euro-Dollar Loans has been
- -----
suspended pursuant to Section 8.02 or (ii) any Lender has demanded compensation
under Section 8.03(a) and the Borrower shall, by at least five Euro-Dollar
Business Days' prior notice to such Lender through the Agent, have elected that
the provisions of this Section shall apply to such Lender, then, unless and
until such Lender notifies the Borrower that the circumstances giving rise to
such suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Lender as CD
Loans or Euro-Dollar Loans, as the case may be, shall be made instead as Base
Rate Loans (on which interest and principal shall be payable contemporaneously
with the related Fixed Rate Loans of the other Lenders), and
(b) after each of its CD Loans or Euro-Dollar Loans, as the case may
be, has been repaid, all payments of principal which would otherwise be applied
to repay such Fixed Rate Loans shall be applied to repay its Base Rate Loans
instead.
ARTICLE IX
GUARANTY
SECTION 9.01. The Guaranty. The Company hereby unconditionally
------------
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Note issued
by BV pursuant to this Agreement, and the full and punctual payment of all other
amounts payable by BV under this Agreement. Upon failure by BV to pay
punctually any such amount, the Company shall forthwith on demand pay the amount
not so paid at the place and in the manner specified in this Agreement.
SECTION 9.02. Guaranty Unconditional. The obligations of the Company
----------------------
hereunder shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
55
<PAGE>
(i) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of BV under this Agreement or any Note, by
operation of law or otherwise;
(ii) any modification or amendment of or supplement to this Agreement
or any Note;
(iii) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of BV under this Agreement
or any Note;
(iv) any change in the corporate existence, structure or ownership of
BV, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting BV or its assets or any resulting release or discharge
of any obligation of BV contained in this Agreement or any Note;
(v) the existence of any claim, set-off or other rights which the
Company may have at any time against BV, the Agent, any Lender or any other
Person, whether in connection herewith or any unrelated transactions,
provided that nothing herein shall prevent the assertion of any such claim
--------
by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against BV for
any reason of this Agreement or any Note, or any provision of applicable
law or regulation purporting to prohibit the payment by BV of the principal
of or interest on any Note or any other amount payable by it under this
Agreement; or
(vii) any other act or omission to act or delay of any kind by BV, the
Agent, any Lender or any other Person or any other circumstance whatsoever
which might, but for the provisions of this paragraph, constitute a legal
or equitable discharge of or defense to the Company's obligations
hereunder.
SECTION 9.03. Discharge Only Upon Payment In Full; Reinstatement In
-----------------------------------------------------
Certain Circumstances. The Company's obligations hereunder shall remain in full
- ---------------------
force and effect until the Commitments shall have terminated and the principal
of and interest on the Notes and all other amounts payable by the Company and BV
under this Agreement shall have been paid in full. If at any time any payment
of principal of or interest on any Note or any other amount payable by BV under
this Agreement is rescinded or must be otherwise restored or returned upon the
insolvency,
56
<PAGE>
bankruptcy or reorganization of BV or otherwise, the Company's obligations
hereunder with respect to such payment shall be reinstated at such time as
though such payment had been due but not made at such time.
SECTION 9.04. Waiver by the Company. The Company irrevocably waives
---------------------
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against BV or any other Person.
SECTION 9.05. Subrogation. Upon making any payment with respect to
-----------
BV hereunder, the Company shall be subrogated to the rights of the payee against
BV with respect to such payment; provided that the Company shall not enforce any
--------
payment by way of subrogation until all amounts of principal of and interest on
the Notes and all other amounts payable by BV under this Agreement have been
paid in full.
SECTION 9.06. Stay of Acceleration. In the event that acceleration
--------------------
of the time for payment of any amount payable by BV under this Agreement or its
Notes is stayed upon insolvency, bankruptcy or reorganization of BV, all such
amounts otherwise subject to acceleration under the terms of this Agreement
shall nonetheless be payable by the Company hereunder forthwith on demand by the
Agent made at the request of the Required Lenders.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices. All notices, requests and other
-------
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (x) in the case of either Obligor or the Agent, at its address or telex
number set forth on the signature pages hereof, (y) in the case of any Lender,
at its address or telex number set forth in its Administrative Questionnaire or
(z) in the case of any party, such other address or telex number as such party
may hereafter specify for the purpose by notice to the Agent and the Company.
Each such notice, request or other communication shall be effective (i) if given
by telex, when such telex is transmitted to the telex number specified in this
Section and the appropriate answerback is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iii) if given by
57
<PAGE>
any other means, when delivered at the address specified in this Section;
provided that notices to the Agent under Article II or Article VIII shall not be
- --------
effective until received.
SECTION 10.02. No Waivers. No failure or delay by the Agent or any
----------
Lender in exercising any right, power or privilege hereunder or under any Note
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 10.03. Expenses; Documentary Taxes;
----------------------------
Indemnification for Litigation. (a) The Company shall pay (i) all reasonable
- ------------------------------
out-of-pocket expenses of the Agent, including fees and disbursements of special
counsel for the Agent, in connection with the preparation and administration of
this Agreement, any waiver or consent hereunder or any amendment hereof or any
Default or alleged Default hereunder and (ii) if an Event of Default occurs, all
reasonable out-of-pocket expenses incurred by the Agent or any Lender, including
fees and disbursements of counsel, in connection with such Event of Default and
collection, bankruptcy, insolvency and other enforcement proceedings resulting
therefrom. The Company agrees to indemnify each Lender against any transfer
taxes, documentary taxes, assessments or charges made by any governmental
authority by reason of the execution and delivery of this Agreement or the
Notes.
(b) The Company agrees to indemnify each Lender and hold each Lender
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by any Lender (or by the Agent
in connection with its actions as Agent hereunder) in connection with any
investigative, administrative or judicial proceeding (whether or not such Lender
shall be designated a party thereto) relating to or arising out of this
Agreement or any actual or proposed use of proceeds of Loans hereunder; provided
that no Lender shall have the right to be indemnified hereunder for (i) its own
gross negligence or willful misconduct as determined by a court of competent
jurisdiction, (ii) default in its Commitment to make Committed Loans hereunder
as determined by a court of competent jurisdiction or (iii) any settlement of
any investigation, administrative or judicial proceeding entered into without
the consent of the Company, which consent shall not be unreasonably withheld.
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<PAGE>
SECTION 10.04. Amendments and Waivers. Any provision of this
----------------------
Agreement or the Notes may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Company and the Required Lenders
(and, if the rights or duties of the Agent are affected thereby, by the Agent);
provided that no such amendment or waiver shall, unless signed by all the
- --------
Lenders, (i) increase or decrease the Commitment of any Lender (except for a
ratable decrease in the Commitments of all Lenders) or subject any Lender to any
additional obligation, (ii) reduce the principal of or rate of interest on any
Loan or any fees hereunder, (iii) postpone the date fixed for any payment of
principal of or interest on any Loan or any fees hereunder or for termination of
any Commitment, (iv) amend any provision of Article IX or (v) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Notes, or the number of Lenders, which shall be required for the Lenders or any
of them to take any action under this Section or any other provision of this
Agreement and provided further that no such amendment, waiver or modification
-------- -------
shall, unless signed by BV, (w) subject BV to any additional obligation, (x)
increase the principal of or rate of interest on any outstanding Loan of BV, (y)
accelerate the stated maturity of any outstanding Loan of BV or (z) change this
proviso.
- -------
SECTION 10.05. Sharing of Set-Offs. Each Lender agrees that if it
-------------------
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to any Note held by it which is greater than the proportion
received by any other Lender in respect of the aggregate amount of principal and
interest due with respect to any Note held by such other Lender, the Lender
receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Lenders, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Notes held by the Lenders shall be
shared by the Lenders pro rata; provided that nothing in this Section shall
--------
impair the right of any Lender to exercise any right of set-off or counterclaim
it may have and to apply the amount subject to such exercise to the payment of
indebtedness of an Obligor other than its indebtedness under the Notes. Each
Obligor agrees, to the fullest extent it may effectively do so under applicable
law, that any holder of a participation in a Note, whether or not acquired
pursuant to the foregoing arrangements, may exercise rights of set-off or
counterclaim and other rights with respect to such participation as fully as if
such
59
<PAGE>
holder of a participation were a direct creditor of such Obligor in the amount
of such participation.
SECTION 10.06. Governing Law; Submission to Jurisdiction. This
-----------------------------------------
Agreement and each Note shall be governed by and construed in accordance with
the laws of the State of New York. Each Obligor hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in New York City
for purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. Each Obligor irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum.
SECTION 10.07. Successors and Assigns.
----------------------
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that the Company or BV may not assign or otherwise transfer any of its
rights under this Agreement without the consent of all Lenders.
(b) Any Lender may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans. In the event of any such grant by a Lender of a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Agent, such Lender shall remain responsible for the performance
of its obligations hereunder, and the Obligors and the Agent shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement pursuant to which
any Lender may grant such a participating interest shall provide that such
Lender shall retain the sole right and responsibility to enforce the obligations
of the Obligors hereunder including, without limitation, the right to approve
any amendment, modification or waiver of any provision of this Agreement;
provided that such participation agreement may provide that such Lender will not
agree to any modification, amendment or waiver of this Agreement described in
clause (i), (ii) or (iii) of Section 10.04 without the consent of the
Participant. Each Obligor agrees that each Participant shall, to the extent
provided in its participation agreement, be entitled to the benefits of Article
VIII with respect to its participating interest. An assignment or other
transfer which is not permitted by subsection (c) or (d) below shall be given
effect for purposes of this Agreement only to the extent of
60
<PAGE>
a participating interest granted in accordance with this subsection (b).
(c) Any Lender may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part (equivalent to an
original Commitment of at least $10,000,000) of all, of its rights and
obligations under this Agreement and the Notes, and such Assignee shall assume
such rights and obligations, pursuant to an Assignment and Assumption Agreement
in substantially the form of Exhibit H hereto executed by such Assignee and such
transferor Lender, with (and subject to) the subscribed consent of the Company
and the Agent (the consent of the Agent not to be unreasonably withheld);
provided that if an Assignee is an affiliate of such transferor Lender, no such
- --------
consent shall be required; provided further that such assignment may, but need
-------- -------
not, include rights of the transferor Lender in respect of outstanding Money
Market Loans. Upon execution and delivery of such instrument and payment by
such Assignee to such transferor Lender of an amount equal to the purchase price
agreed between such transferor Lender and such Assignee, such Assignee shall be
a Lender party to this Agreement and shall have all the rights and obligations
of a Lender with a Commitment as set forth in such instrument of assumption, and
the transferor Lender shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this subsection
(c), the transferor Lender, the Agent and the Obligors shall make appropriate
arrangements so that, if required, a new Note is issued to the Assignee. In
connection with any such assignment, the transferor Lender shall pay to the
Agent an administrative fee for processing such assignment in the amount of
$2,000. If the Assignee is not incorporated or organized under the laws of the
United States of America or a state thereof, it shall, prior to the first date
on which interest or fees are payable hereunder for its account, deliver to the
Company and the Agent certification as to exemption from deduction or
withholding of any United States federal income taxes in accordance with Section
2.15.
(d) Each Obligor authorizes each Lender to disclose to any
Participant or Assignee (each a "Transferee") and any prospective Transferee any
and all financial information in such Lender's possession concerning such
Obligor which has been delivered to such Lender by it pursuant to this Agreement
or which has been delivered to such Lender by it in connection with such
Lender's credit evaluation prior to entering into this Agreement, subject to
Section 10.11.
61
<PAGE>
(e) Any Lender may at any time assign all or any portion of its
rights under this Agreement and its Note to a Federal Reserve Bank. No such
assignment shall release the transferor Lender from its obligations hereunder.
(f) No Transferee (including for this purpose a different Applicable
Lending Office of a Lender) shall be entitled to receive any greater payment
under Section 8.03 than the transferor Lender would have been entitled to
receive with respect to the rights transferred, unless such transfer is made
with the Company's prior written consent or by reason of the provisions of
Section 8.02 or 8.03 requiring such Lender to designate a different Applicable
Lending Office under certain circumstances or at a time when the circumstances
giving rise to such greater payment did not exist.
SECTION 10.08. Collateral. Each of the Lenders represents to the
----------
Agent and each of the other Lenders that it in good faith is not relying upon
any "margin stock" (as defined in Regulation U) as collateral in the extension
or maintenance of the credit provided for in this Agreement.
SECTION 10.09. Counterparts; Integration. This Agreement may be
-------------------------
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH OF THE OBLIGORS, THE AGENT
--------------------
AND THE LENDERS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 10.11. Confidentiality. Each Lender agrees to hold any
---------------
confidential information which it may receive or has received from either
Obligor pursuant to this Agreement and which has been identified as confidential
in confidence, except for disclosure (i) to legal counsel, accountants, and
other professional advisors to the Lender, (ii) to regulatory officials, (iii)
as requested pursuant to or as required by law, regulation, or legal process,
(iv) in connection with any legal proceeding to which the Lender is a party, (v)
subject to its undertaking to comply with the restrictions of this Section
10.11, any actual or prospective Transferee, (vi) to any affiliates of such
Lender provided that such affiliates agree to keep such
62
<PAGE>
information confidential as set forth in this Section and (vii) of information
which is in the public domain at the time of such disclosure.
ARTICLE XI
EFFECTIVENESS
SECTION 11.01. Effectiveness. This Agreement shall become effective
-------------
on the date that each of the following conditions shall have been satisfied (or
waived in accordance with Section 10.04):
(a) the Agent shall have received counterparts hereof signed by each
of the parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Agent in form
satisfactory to it of telegraphic, telex or other written confirmation from
such party of execution of a counterpart hereof by such party);
(b) the Agent shall have received for the account of each Lender a
duly executed Note dated on or before the Effective Date complying with the
provisions of Section 2.05;
(c) the Agent shall have received an opinion of Davis Polk &
Wardwell, special counsel for the Agent, substantially in the form of
Exhibit E hereto and covering such additional matters relating to the
transactions contemplated hereby as the Required Lenders may reasonably
request;
(d) the Agent shall have received an opinion of Patrick J. Head,
General Counsel of the Company, dated the Effective Date, substantially in
the form of Exhibit F hereto and covering such additional matters relating
to the transactions contemplated hereby as the Required Lenders may
reasonably request;
(e) the Agent shall have received an opinion of Baker & McKenzie,
counsel for BV, dated the Effective Date, substantially in the form of
Exhibit G hereto and covering such additional matters relating to the
transactions contemplated hereby as the Required Lenders may reasonably
request;
63
<PAGE>
(f) the Agent shall have received evidence satisfactory to it of
(i) the termination, effective on or before the Effective Date, of the
commitments under each Existing Credit Agreement, (ii) the repayment in
full, not later than the Effective Date, of all loans (if any) outstanding
thereunder (other than any "Money Market Loans" (as defined in either
Existing Credit Agreement) made by any Lender), together with interest
accrued thereon to the Effective Date and all accrued and unpaid facility
fees and all other amounts accrued and unpaid under each Existing Credit
Agreement; and
(g) the Agent shall have received all documents it may reasonably
request relating to the existence of the Company, the corporate authority
for and the validity or enforceability of this Agreement and the Notes, and
any other matters relevant hereto, all in form and substance satisfactory
to the Agent;
Provided that this Agreement shall not become effective or be binding on any
- --------
party hereto unless all of the foregoing conditions are satisfied not later than
December 30, 1994. The Agent shall promptly notify the Company and the Lenders
of the Effective Date, and such notice shall be conclusive and binding on all
parties hereto.
SECTION 11.02. Termination of Existing Credit Agreement; Outstanding
-----------------------------------------------------
Money Market Loans. The Company and each of the Lenders that is also a party to
- ------------------
either Existing Credit Agreement agree that the "Commitments" as defined in
either of such Agreements shall terminate in their entirety on the Effective
Date. Each such Lender waives (a) any requirement of notice of such termination
pursuant to Section 2.10 of either Existing Credit Agreement and (b) any claim
to any facility fees or other fees under either Existing Credit Agreement for
any day on or after the Effective Date. The Company agrees that (i) subject to
subsection (b), no loans will be outstanding under the Existing Credit Agreement
on or at any time after the Effective Date and (ii) all accrued and unpaid
facility fees and other amounts accrued and unpaid under the Existing Credit
Agreement on or before the Effective Date will be paid on or before the
Effective Date.
64
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
FMC CORPORATION
By /s/ Cheryl A. Frances
-------------------------------
Title: Treasurer
200 East Randolph Drive
Chicago, Illinois 60601
Attention: Corporate Secretary
Telephone number: 312-861-5923
Telecopy number: 312-861-7127
Telex number: 429459/FMCCORP CGO
FMC FOOD MACHINERY AND CHEMICAL
HOLDING COMPANY, B.V.
By /s/ Ted Laws
-------------------------------
Title: Director
200 East Randolph Drive
Chicago, Illinois 60601
Attention: Corporate Secretary
Telephone number: 312-861-5923
Telecopy number: 312-861-7127
Telex number: 429459/FMCCORP CGO
65
<PAGE>
Commitments
- -----------
$15,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Charles H. King
-------------------------------
Title: Vice President
$15,000,000 BANK OF AMERICA ILLINOIS
By /s/ William F. Sweeney
-------------------------------
Title: Vice President
$15,000,000 BANK OF MONTREAL
By /s/ Jonathan D. Hook
-------------------------------
Title: Director
$15,000,000 THE BANK OF NEW YORK
By /s/ Natalie Egleston
-------------------------------
Title: Vice President
$15,000,000 THE BANK OF NOVA SCOTIA
By /s/ F.C.H. Ashby
-------------------------------
Title: Sr. Mgr. Loan Operations
$15,000,000 CIBC INC.
By /s/ John W. Kunkle
-------------------------------
Title: Vice President
66
<PAGE>
$15,000,000 COMMERZBANK AKTIENGESELLSCHAFT,
GRAND CAYMAN BRANCH
By /s/ Mark D. Monson
-------------------------------
Title: Assistant V.P.
By /s/ Kalyan Basu
-------------------------------
Title: First V.P.
$15,000,000 NATIONSBANK OF NORTH CAROLINA, N.A.
By /s/ Carter E. Smith
-------------------------------
Title: Assistant V.P.
$15,000,000 UNION BANK OF SWITZERLAND,
CHICAGO BRANCH
By /s/ J. Timothy Shortly
-------------------------------
Title: First V.P. & Branch Mgr.
By /s/ Robert R. Reuter
-------------------------------
Title: Vice President
$12,500,000 CITIBANK, N.A.
By /s/ Mary W. Corkran
-------------------------------
Title: Vice President
$12,500,000 CREDIT LYONNAIS CHICAGO BRANCH
By /s/ Attila Koc
-------------------------------
Title: Vice President
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By /s/ Attila Koc
-------------------------------
Authorized Signature
67
<PAGE>
$12,500,000 THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH
By /s/ Masami Tsuboi
-------------------------------
Title: Vice President
$12,500,000 THE NORTHERN TRUST COMPANY
By /s/ Michelle M. Ceteak
-------------------------------
Title: Second Vice President
$12,500,000 WACHOVIA BANK OF GEORGIA, N.A.
By /s/ J. Peter Peyton
-------------------------------
Title: Sr. Vice President
$7,500,000 BARCLAYS BANK PLC
By /s/ William M. Jones
-------------------------------
Title: Associate Director
$7,500,000 THE CHASE MANHATTAN BANK N.A.
By /s/ Robert P. Jankowitz
-------------------------------
Title: Managing Director
68
<PAGE>
$7,500,000 CHEMICAL BANK
By /s/ C.C. Wardwell
-------------------------------
Title: Managing Director
$7,500,000 CORESTATES BANK N.A.
By /s/ Susan M. Atkinson
-------------------------------
Title: Vice President
$7,500,000 THE FUJI BANK, LIMITED
CHICAGO BRANCH
By /s/ Peter L. Chinnici
-------------------------------
Title: Joint General Manager
$7,500,000 NATIONAL WESTMINSTER BANK PLC
By /s/ David H. Hannah
-------------------------------
Title: Vice President
$7,500,000 SWISS BANK CORPORATION -
CHICAGO BRANCH
By /s/ William A. McDonnell
-------------------------------
Title: Assoc. Director Merchant
Banking
By /s/ Nancy A. Russell
-------------------------------
Title: Assoc. Director Merchant
Banking
Total Commitments
- -----------------
$250,000,000
============
69
<PAGE>
AGENT:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ Charles H. King
--------------------------
Title: Vice President
60 Wall Street
New York, New York 10260
Attention: Loan Department
Telex number: 177615 MGT UT
Telecopier number: 212-648-5014
70
<PAGE>
PRICING SCHEDULE
The "Euro-Dollar Margin", "CD Margin" and "Facility Fee Rate" for any
day are the respective percentages set forth below in the applicable row under
the column corresponding to the Status that exists on such day:
<TABLE>
<CAPTION>
===================================================================
Level Level Level Level Level
Status I II III IV V
- -------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Euro-Dollar .16% .255% .35% .40% .50%
Margin
If Utilization is
less than 50%
If Utilization .21% .305% .40% .45% .50%
is equal to or
exceeds 50%
- -------------------------------------------------------------------
CD Margin .285% .38% .475% .525% .625%
If Utilization is
less than 50%
If Utilization .335% .43% .525% .575% .625%
is equal to or
exceeds 50%
- -------------------------------------------------------------------
Facility Fee .09% .095% .10% .15% .25%
Rate
===================================================================
</TABLE>
For purposes of this Schedule, the following terms have the following
meanings, subject to the final paragraph of this Pricing Schedule:
"Level I Status" exists at any date if, at such date, the Company's
senior unsecured long-term debt is rated A-/A3 or higher.
"Level II Status" exists at any date if, at such date, the Company's
senior unsecured long-term debt is rated BBB+/Baa1.
71
<PAGE>
"Level III Status" exists at any date if, at such date, the Company's
senior unsecured long-term debt is rated BBB/Baa2.
"Level IV Status" exists at any date if, at such date, the Company's
senior unsecured long-term debt is rated BBB-/Baa3.
"Level V Status" exists at any date if, at such date, no other Status
exists.
"Moody's" means Moody's Investors Service, Inc.
"S&P" means Standard & Poor's Ratings Group.
"Status" refers to the determination of which of Level I Status, Level
II Status, Level III Status, Level IV Status or Level V Status exists at any
date.
"Utilization" means at any date the percentage equivalent of a
fraction (i) the numerator of which is the aggregate outstanding principal
amount of the Loans at such date, after giving effect to any borrowing or
payment on such date, and (ii) the denominator of which is the aggregate amount
of the Commitments at such date, after giving effect to any reduction of the
Commitments on such date. For purposes of this Schedule, if for any reason any
Loans remain outstanding after termination of the Commitments, the Utilization
for each date on or after the date of such termination shall be deemed to be
greater than 50%.
The credit ratings to be utilized for purposes of this Schedule are those
assigned by S&P or Moody's to the senior unsecured long-term debt securities of
the Company without third-party credit enhancement, and any rating assigned to
any other debt security of the Company shall be disregarded. The rating in
effect at any date is that in effect at the close of business on such date. In
the case of split ratings from S&P and Moody's, the rating to be used to
determine Status is the higher of the two (e.g. BBB+/Baa2 results in Level II
---
Status), provided that in the event the split is more than one full category,
--------
the average (or the higher of two intermediate ratings) shall be used (e.g.,
- -
BBB+/Baa3 results in Level III Status, as does BBB+/Ba1).
72
<PAGE>
EXHIBIT A
NOTE
New York, New York
, 19
For value received, [name of Borrower], a [jurisdiction of
incorporation]corporation (the "Borrower"), promises to pay to the order of
(the "Lender"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Lender to the Borrower pursuant to the
Credit Agreement referred to below on the last day of the Interest Period
relating to such Loan. The Borrower promises to pay interest on the unpaid
principal amount of each such Loan on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of Morgan Guaranty Trust Company of
New York, 60 Wall Street, New York, New York.
All Loans made by the Lender, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Lender and, if the Lender so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding may be endorsed by the Lender on
the schedule attached hereto, or on a continuation of such schedule attached to
and made a part hereof; provided that neither the failure of the Lender to make
--------
any such recordation or endorsement nor any error therein shall affect the
obligations of either Obligor hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the 364-Day Credit
Agreement dated as of December 16, 1994 among the Borrower, [FMC Corporation]
[FMC Food Machinery and Chemical Holding Company, B.V.], the Lenders party
thereto and Morgan Guaranty Trust Company of New York, as Agent (as the same may
be amended from time to time, the "Credit Agreement"). Terms defined in the
Credit Agreement are used herein with the same meanings. Reference is made to
the Credit Agreement for provisions for the prepayment hereof and the
acceleration of the maturity hereof.
[FMC Corporation has, pursuant to the provisions of the Credit
Agreement, unconditionally guaranteed the
<PAGE>
payment in full of the principal of and interest on this note.]/*/
[NAME OF BORROWER]
By
-----------------------------------
Title:
- ----------------
/*/ To be deleted in case of Notes executed and delivered by the Company.
2
<PAGE>
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------
Amount Type Amount of
of of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
- ----------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
</TABLE>
3
<PAGE>
EXHIBIT B
Form of Money Market Quote Request
----------------------------------
[Date]
To: Morgan Guaranty Trust Company of New York
(the "Agent")
From: [FMC Corporation][FMC Food Machinery and Chemical Holding Company,
B.V.]
Re: 364-Day Credit Agreement (as amended, the "Credit Agreement") dated as
of December 16, 1994 among FMC Corporation and FMC Food Machinery and
Chemical Holding Company, B.V., the Lenders party thereto and the
Agent
We hereby give notice pursuant to Section 2.03 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: _________________________
<TABLE>
<CAPTION>
Principal Amount/*/ Interest Period/**/
- ------------------- -------------------
<S> <C>
$
</TABLE>
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Terms used herein have the meanings assigned to them in the Credit
Agreement.
FMC CORPORATION
By
----------------------------------
- --------------
/*/ Amount must be $25,000,000 or a larger multiple of $1,000,000.
/**/ Not less than one month (LIBOR Auction) or not less than 7 days (Absolute
Rate Auction), subject to the provisions of the definition of Interest
Period.
<PAGE>
Title:
2
<PAGE>
EXHIBIT C
Form of Invitation for Money Market Quotes
------------------------------------------
To: [Name of Bank]
Re: Invitation for Money Market Quotes to [FMC Corporation] [FMC Food
Machinery and Chemical Holding Company, B.V] (the "Borrower")
Pursuant to Section 2.03 of the 364-Day Credit Agreement dated as of
December 16, 1994 among the Borrower and [FMC Corporation] [FMC Food Machinery
and Chemical Holding Company, B.V.], the Lenders parties thereto and the
undersigned, as Agent, we are pleased on behalf of the Company to invite you to
submit Money Market Quotes to the Company for the following proposed Money
Market Borrowing(s):
Date of Borrowing:
------------------------
<TABLE>
<CAPTION>
Principal Amount Interest Period
- ---------------- ---------------
<S> <C>
$
</TABLE>
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Please respond to this invitation by no later than [2:00 P.M.] [9:15
A.M.] (New York City time) on [date].
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By
-------------------------------
Authorized Officer
<PAGE>
EXHIBIT D
Form of Money Market Quote
--------------------------
To: MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
Re: Money Market Quote to [FMC Corporation] [FMC Food Machinery and Chemical
Holding Company, B.V](the "Borrower")
In response to your invitation on behalf of the Borrower dated
___________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: _______________________________
2. Person to contact at Quoting Bank: ___________________
3. Date of Borrowing: ____________________/*/
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
- --------------
/*/ As specified in the related Invitation.
<PAGE>
<TABLE>
<CAPTION>
Principal Interest Money Market
Amount/*/ Period/**/ [Margin/***/] [Rate/****/]
- --------- ---------- ------------- ------------
<S> <C> <C> <C>
$
$
</TABLE>
[Provided, that the aggregate principal amount of Money Market Loans for which
the above offers may be accepted shall not exceed $_________.]/*/
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the 364-Day Credit
Agreement dated as of December 16, 1994 among the Borrower and [FMC Corporation]
[FMC Food Machinery and Chemical Holding Company, B.V], the Lenders party
thereto and yourselves, as Agent, irrevocably obligates us to make the Money
Market Loan(s) for which any offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated: By:
----------------- --------------------------------
Authorized Officer
- --------------
/*/ Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitations if the sum of the
individual offers exceeds the amount the Lender is willing to lend. Bids
must be made for [$1,000,000] or a larger multiple thereof.
/**/ Not less than one month (LIBOR Auction) or not less than 7 days (Absolute
Rate Auction) as specified in the related Invitation.
/***/ Margin over or under the London Interbank Offered Rate determined for the
applicable Interest Period. Specify percentage (rounded to the nearest
1/10,000 of 1%) and specify whether "PLUS" or "MINUS".
/****/ Specify rate of interest per annum (rounded to the nearest 1/10,000th of
1%).
2
<PAGE>
EXHIBIT E
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE AGENT
--------------------------------------
[Dated the Effective Date]
To the Lenders
and the Agent Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have participated in the preparation of the 364-Day Credit
Agreement dated as of December 16, 1994 (the "Agreement") among FMC Corporation,
a Delaware corporation (the "Company") and FMC Food Machinery and Chemical
Holding Company, B.V., a corporation organized under the laws of the Netherlands
(together with the Company, the "Borrowers"), the lenders party thereto (the
"Lenders") and Morgan Guaranty Trust Company of New York, as Agent (the
"Agent"), and have acted as special counsel for the Agent for the purpose of
rendering this opinion pursuant to Section 10.01(c) of the Agreement. Terms
defined in the Agreement and not otherwise defined herein are used herein as
therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. The execution, delivery and performance by the Company of the
Agreement and its Notes are within the
<PAGE>
Company's corporate powers and have been duly authorized by all necessary
corporate action.
2. The Agreement constitutes a valid and binding agreement of the
Borrowers and the Notes of each Borrower constitute valid and binding
obligations of such Borrower, in each case enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by general principles of equity.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the federal laws of the
United States of America and the General Corporation Law of the State of
Delaware. To the extent that our opinion expressed herein involves conclusions
as to matters governed by laws other than the laws of the State of New York, the
federal laws of the United States of America and the General Corporation Law of
the State of Delaware, we have relied, with your permission, on the opinion of
Patrick J. Head, General Counsel of the Company, addressed to you and dated the
date hereof, a copy of which have been delivered to you, and we have assumed,
without independent investigation, the correctness of the matters set forth in
such opinion, our opinion being subject to the assumptions, qualifications and
limitations set forth in such opinion with respect thereto. In giving the
foregoing opinion, we express no opinion as to the effect (if any) of any law of
any jurisdiction (except the State of New York) in which any Lender is located
which limits the rate of interest that such Lender may charge or collect .
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person without our prior written consent.
Very truly yours,
2
<PAGE>
EXHIBIT F
OPINION OF COUNSEL FOR THE BORROWERS
------------------------------------
[Dated the Effective Date]
To the Lenders
and the Agent Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
I am General Counsel of FMC Corporation (the "Company") and have acted
as counsel for the Company and FMC Food Machinery Chemical Holdings, B.V. ("BV"
and, together with the Company, the "Borrowers") in connection with the 364-Day
Credit Agreement dated as of December 16, 1994 (the "Agreement") among the
Borrowers, the lenders party thereto (the "Lenders") and Morgan Guaranty Trust
Company of New York, as Agent (the "Agent"). Terms defined in the Agreement and
not otherwise defined herein are used herein as therein defined.
I have examined originals or copies, certified or otherwise identified
to my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments, and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware.
2. The Company has all corporate powers and all governmental
licenses, authorization, consents and approvals required to carry on its
business as now conducted and as proposed to be conducted the absence of which,
in the
<PAGE>
aggregate, could have a material adverse effect on the business, financial
position, results of operations or properties of the Company. Each Material
Subsidiary is a corporation or partnership duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization, and has all
corporate or partnership powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted. Each of the Company and each Material Subsidiary is duly qualified
as a foreign corporation or partnership, licensed and in good standing in each
jurisdiction where qualification or licensing is required by the nature of its
business or the character and location of its property, business or customers
and in which the failure so to qualify or be licensed, as the case may be, in
the aggregate, would have a material adverse effect on the business, financial
position, results of operations or properties of the Company and its
Subsidiaries, considered as a whole.
3. The execution, delivery and performance by the Company of the
Agreement and its Notes are within the Company's corporate power, have been duly
authorized by all necessary corporate action, require no action by or in respect
of, or filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the certificate of incorporation or by-laws of the Company. or
of any agreement or instrument evidencing or governing Debt or any other
material agreement, judgment, injunction, order, decree or other instrument
binding upon the Company or any Subsidiary or result in or require the creation
or imposition of any Lien on any asset of the Company or any Subsidiary.
4. The execution, delivery and performance by the BV of the
Agreement and its Notes do not contravene, or constitute a default under, any
provision of any agreement or instrument evidencing or governing Debt or any
other material agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or any Subsidiary or result in or require
the creation or imposition of any Lien on any asset of the Company or any
Subsidiary.
5. The Agreement has been duly executed and delivered and
constitutes a valid and binding agreement of the Borrowers, and the Notes of
each Borrower have been duly executed and delivered and constitute valid and
binding obligations of such Borrower, in each case enforceable in accordance
with its terms except as (i) the same may be limited by bankruptcy, insolvency
or similar laws affecting
2
<PAGE>
creditors' rights generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability.
6. The Company and each Material Subsidiary are in compliance with
all applicable laws, rules and regulations, other than such laws, rules or
regulations (i) the validity or applicability of which the Company or such
Subsidiary is contesting in good faith or (ii) failure to comply with which
cannot reasonably be expected to have consequences which would materially and
adversely affect the business, properties, financial position or results of
operations of the Company and its Consolidated Subsidiaries, considered as a
whole, or the ability of the Company to perform its obligations under the
Agreement or the Notes.
7. There is no action, suit, proceeding or arbitration pending or, to
the best of my knowledge threatened against or affecting, the Company or any
Subsidiary before any court or arbitrator or any governmental body, agency or
official in which there is a reasonable likelihood of an adverse decision which
would materially adversely affect the business, financial position, results of
operations or properties of the Company and its Consolidated Subsidiaries,
considered as a whole, or which in any manner questions the validity of the
Agreement or the Notes.
In giving the foregoing opinion, I express no opinion as to the effect
(if any) of any law of any jurisdiction in which any Lender is located which
limits the rate of interest that such Lender may charge or collect.
I am admitted to practice in the State of Illinois and, for purposes
of this opinion, I am expert only with respect to the internal law of the State
of Illinois and the United States of America and the internal corporate law of
the State of Delaware. In this connection, with respect to the provisions of
the Agreement which provide that the laws of the State of New York shall govern
such Agreement, and the construction thereof, I have assumed, with your
permission, that the laws of the State of New York in any relevant respect would
be consistent with the internal laws of the State of Illinois.
This opinion is given as of the date hereof and is limited in all
respects to laws and facts existing as of the date hereof. I assume no
obligation to update or supplement this opinion to reflect any facts or
circumstances which may hereafter come to my attention or any changes in laws
which may hereafter occur.
3
<PAGE>
This opinion is furnished to you pursuant to Section 10.01(d) of the
Agreement and is not to be used, circulated, quoted or otherwise relied upon for
any other purpose, except that this opinion may be circulated to (but not relied
upon by) any prospective or actual participant in the Commitments or any Loans.
Very truly yours,
4
<PAGE>
EXHIBIT G
OPINION OF COUNSEL FOR BV
-------------------------
[Dated the Effective Date]
To the Lenders
and the Agent Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have acted as counsel for FMC Food Machinery and Chemical Holding
Company B.V. a corporation incorporated under the laws of The Netherlands with
its registered address at 's-Gravenhage, The Netherlands and its principal
offices at Koningin Julianaplein 30-19/3, 2595 AA 's-Gravenhage, The Netherlands
("FMC B.V.") in connection with the 364-Day Credit Agreement dated as of
December 16, 1994 (the "Agreement") among FMC Corporation, FMC B.V., the lenders
(the "Lenders") and Morgan Guaranty Trust Company of New York, as Agent (the
"Agent"). Terms defined in the Agreement and not otherwise defined herein are
used herein as therein defined.
For the purpose of rendering this opinion we have examined the
following documents:
(a) an official extract ("uittreksel") dated December 7, 1994 from the
Commercial Register of the Chamber of Commerce of 's-Gravenhage, The
Netherlands relating to the registration of FMC B.V. under number
144792 [and confirmed to us by the above Chamber of Commerce by
telephone on the date hereof to have remained unaltered since such
date;]
(b) a copy of the Articles of Association ("statuten") of FMC B.V. as they
stand since their latest amendment dated June 10, 1994, which are the
currently effective Articles of Association according to the extract
referred to in (a) above;
5
<PAGE>
(c) [a copy of] the Agreement dated [December __, 1994];
(d) a copy of the shareholders register of FMC B.V.;
(e) a copy of a shareholders resolution by FMC Corporation dated December
2, 1994 resolving (i) to accept the resignation of Mr. Arthur Donald
Lyons (who has been a Managing Director of FMC B.V. and who has
resigned as of June 15, 1994) and (ii) to appoint Mr. Alfredo Bernad
Herrando, residing at C/Freixa, no 36, 08021 Barcelona, Spain, as a
Managing Director of FMC B.V. with effect from December 1, 1994;
(f) a copy of a signed resolution of FMC B.V.'s Board of Managing
Directors dated December 13, 1994 resolving that FMC B.V. will enter
into the Agreement and may enter into the Notes, authorizing each of
FMC B.V.'s present managing directors ("bestuurders") being Messrs.
T.H. Laws, W.F. Beck, B. Zwarenstein, F.A. Riddick III and A. Bernad
Herrando to act on behalf of FMC B.V. in all matters relating to the
Agreement and the Notes and their execution, to sign all documents,
certificates, deeds and notices on behalf of FMC B.V. referred to in
the Agreement and any agreements or documents related thereto or made
in respect thereof, to do all acts and things on behalf of FMC B.V.
required to be done pursuant to or in connection with the Agreement
and any agreements or documents related thereto or made in respect
thereof and to agree to any changes in the terms and conditions of the
Agreement, such agreement to be conclusively evidenced by the
signature of anyone of the Managing Directors on the Agreement.
We express no opinion as to any law other than the laws of The
Netherlands in force as at the date hereof and as applied and interpreted
according to present published case law of The Netherlands courts,
administrative rulings and authoritative literature and no opinion is given that
the future or continued performance of any of FMC B.V.'s obligations or the
consummation of the transactions contemplated by the Agreement will not
contravene such laws, application of interpretation if altered in the future.
Except as stated above, we have not for the purposes of rendering this
opinion, examined any contracts, instruments, statements or other documents
entered into by
6
<PAGE>
or affecting FMC B.V. and have not made any other enquiries concerning FMC B.V.
In examining and describing the documents listed above and in giving
this opinion, we have assumed:
(i) the authenticity of and completeness of all documents submitted to us
as originals;
(ii) the conformity to original documents of all documents submitted to us
as copies and the authenticity and completeness of each original
document;
(iii) the genuineness of all signatures on all documents or on the originals
thereof, the authenticity of all documents submitted as originals and
the conformity of copy, faxed or specimen documents to the originals
thereof;
(iv) the power, capacity and authority of all parties other than FMC B.V.
to enter into the Agreement and that the Agreement has been duly
authorized, executed and delivered by all parties thereto other than
FMC B.V.;
(v) to the extent that the obligations of any of the parties to the
Agreement may be dependent upon such matters:
(a) that each party to any document other than FMC B.V. is duly
incorporated and organized, validly existing and in good standing
(where such concept is legally relevant) under the laws of its
jurisdiction of incorporation and of the jurisdiction of its
place of business;
and
(b) that all acts, conditions and things required to be done,
fulfilled and undertaken under any law (including any and all
authorizations and consents of any public authority of any
jurisdiction) other than that of The Netherlands which may be
required in respect of the lawful execution or performance of
such Agreement and in order to ensure that such Agreement is
binding upon and enforceable against all parties thereto
(including FMC B.V.) in accordance with its
7
<PAGE>
terms have been or will be done, fulfilled, undertaken or
obtained;
(vi) when duly executed and delivered by FMC B.V. the Agreement and each of
the Notes constitute under the laws of the State of New York to which
they are expressed to be subject the valid and binding obligations of
FMC B.V., enforceable in accordance with their respective terms.
(vii) that FMC B.V. has timely paid its contribution to the Commercial
Register of the Chamber of Commerce, has timely and adequately
published its annual accounts in conformity with the articles 2:394,
2:396 and 2:397 of the Dutch Civil Code and has not disregarded a
summon from the Tax Authorities to file a return in relation to Dutch
Corporate Tax.
(viii) that FMC B.V. has not passed a voluntary winding-up resolution, and no
petition has been presented for bankruptcy, dissolution or moratorium
of payments of FMC B.V., and no receiver, trustee, administrator or
similar officer has been appointed in respect of FMC B.V. or its
assets.
The clerk of the bankruptcy register ("faillissements-griffie") of the
Amsterdam District Court informed us at December __, 1994, that FMC
B.V. has not been declared bankrupt ("failliet") or granted a
suspension of payment ("surseance van betaling"). The search made at
the Chamber of Commerce of 's-Gravenhage on December __, 1994 revealed
no order or resolution for the winding up or of FMC B.V.
We have not been concerned with investigating or verifying the
accuracy of any facts, representations or warranties set out in the Agreement
(with the exception of those matters on which we have specifically and expressly
given our opinion). To the extent that the accuracy of such facts,
representations and warranties not so investigated or verified and of any facts
stated in any of the other documents listed above (or orally confirmed), is
relevant to the contents of this opinion, we have assumed, that such facts,
representations and warranties are correct.
Where an assumption is stated to be made in this opinion, we have not
made any investigation with respect of the matters that are the subject of such
assumption.
8
<PAGE>
We have not investigated whether FMC B.V. is or will be by reason of
the transaction contemplated by the Agreement be in breach of its obligations
under any other documents.
Based upon and subject to the foregoing and subject to the further
qualifications set out below and subject to any factual matters, documents or
events not disclosed to us in the course of our examination referred to above,
and having regard to such legal considerations as we deem relevant, we are of
the opinion that:
1. FMC B.V. is a corporation duly incorporated, validly existing under
the laws of The Netherlands and is a Wholly Owned Subsidiary of the
Company.
2. The execution, delivery and performance by FMC B.V. of the Agreement
and its Notes are within FMC B.V.'s corporate power. FMC B.V. has
taken all necessary corporate action to authorize the Notes. The
execution, delivery and performance by FMC B.V. of the Agreement and
the Notes do not contravene, or constitute a default under (i) any
provision of Netherlands law or regulation applicable to companies
generally or (ii) of the Articles of Association of FMC B.V.
3. No action by or in respect of, or filing with any governmental body,
agency or official in The Netherlands is required in connection with
the execution, delivery and performance by FMC B.V. of the Agreement
and its Notes except that any payment to a non Dutch resident in
excess of NLG 25,000.00 or its equivalent in any other currency must
be notified by the payor to the Netherlands Central Bank for the
purpose of balance of payments statistics. The non-compliance with
this rule does not affect the validity of the payment so made or to be
made.
4. When signed on behalf of FMC B.V. by any one of its Managing Directors
as referred to in sub (e) above, (i) the Agreement has been duly
executed and delivered and constitutes a valid and binding agreement
of FMC B.V., and (ii) the Notes of FMC B.V. have been duly executed
and delivered and constitute valid and binding obligations of FMC
B.V., in each case enforceable in accordance with their respective
terms.
9
<PAGE>
5. There is no income, stamp or other tax of the Netherlands or any
taxing authority thereof or therein, imposed by or in the nature of
withholding or otherwise, which is imposed on any payment to be made
by FMC B.V. pursuant to the Agreement or its Notes, or is imposed on
or by virtue of the execution, delivery or enforcement of the
Agreement or of its Notes.
The opinion expressed above is subject to the following
qualifications:
aa. The enforceability of FMC's obligations may be subject to specific
remedies, including but not limited to restrictions based upon the
principles of reasonableness ("redelijkheid") and fairness
("billijkheid"), and may be subject to the possibility of rescission
in case of a so-called absence of consensus ad idem ("wilsgebreken"),
change of circumstances ("verandering van omstandigheden") or the
violation of creditors rights ("actio pauliana");
bb. Under Netherlands law, where a creditor has obtained a judgment for a
sum of money expressed in a foreign currency he may claim payment in
such foreign currency, notwithstanding the fact that he may claim the
equivalent of such sum in Dutch guilders to the extent that this is
necessary for the enforcement against those assets of the debtor
situated in The Netherlands. Such Dutch guilder equivalent must be
calculated by reference to the conversion rate prevailing on the date
of payment;
cc. The concept of delivery of a document is not known or required under
the laws of The Netherlands to render a document valid, legally
binding and enforceable;
dd. In the event of a moratorium of payments ("surseance van betaling") of
FMC B.V., its assets will not thereafter be legally bound by any legal
act performed by FMC B.V. (or an attorney acting on its behalf) unless
the administrator ("bewindvoerder") has given his cooperation or
unless and to the extent that such assets have gained a benefit as a
result of such legal act.
ee. Mutatis mutandis the same applies in case of bankruptcy
("faillissement") of FMC B.V., in that the receiver in bankruptcy
("curator") as of the
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<PAGE>
bankruptcy date will be solely authorized to incur obligations on
behalf of FMC B.V.
ff. We express no opinion as to the effect (if any) of any law of any
jurisdiction in which any Lender is located which limits the rate of
interest that such Lender may charge or collect.
gg. The choice of the law of the State of New York to which the Agreement
and each of the Notes are expressed to be subject is not in conflict
with any laws or regulations in The Netherlands and would be upheld as
a valid choice of law and applied by the courts of The Netherlands in
proceedings in relation to the Agreement and each of the Notes,
provided however that The Netherlands courts may give effect to the
mandatory rules of the laws of any country with which the case in
question has a close connection if and to the extent that pursuant to
the laws of the latter country these provisions are applicable,
regardless of the law governing the contract. When determining
whether such mandatory rules must be applied the nature and intent of
such rules are taken into account as well as the consequences which
might ensue from the application or non-application of such rules.
Moreover, laws of the State of New York need not be applied by the
Dutch Courts if it is obvious that the application thereof could not
be reconciled with the public policy of The Netherlands. On their
face the Agreement and the Notes do not contain any provision which
would conflict with any such rules of Dutch law.
This opinion (i) is issued on the basis that it is governed by, and
that all words and expressions used herein shall be construed within the laws of
The Netherlands, (ii) is given as of the date hereof and (iii) is limited in all
respects to laws and facts existing as of the date hereof. We assume no
obligation to update or supplement this opinion to reflect any facts or
circumstances which may hereafter come to our attention or any changes in
Netherlands law which may hereafter occur.
11
<PAGE>
This opinion is furnished to you pursuant to Section 11.01(e) of the
Agreement and is not to be used, circulated, quoted or otherwise relied upon for
any other purpose.
Very truly yours,
M.L.B. van der Lande
K.J.T. Smit
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<PAGE>
EXHIBIT H
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), FMC Corporation (the "Company") and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the 364-Day Credit Agreement dated as of December 16, 1994 among the
Company, FMC Food, Machinery and Chemical Holding, B.V., the Assignor and the
other Lenders party thereto, as Lenders, and the Agent (the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans in an aggregate principal amount at any time
outstanding not to exceed $__________;
WHEREAS, Committed Loans made by the Assignor under the Credit
Agreement in the aggregate principal amount of $__________ are outstanding at
the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________ (the "Assigned Amount"),
together with a corresponding portion of its outstanding Committed Loans, and
the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
-----------
herein shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
----------
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such
<PAGE>
assignment from the Assignor and assumes all of the obligations of the Assignor
under the Credit Agreement to the extent of the Assigned Amount, including the
purchase from the Assignor of the corresponding portion of the principal amount
of the Committed Loans made by the Assignor outstanding at the date hereof.
Upon the execution and delivery hereof by the Assignor, the Assignee, the
Company and the Agent and the payment of the amounts specified in Section 3
required to be paid on the date hereof (i) the Assignee shall, as of the date
hereof, succeed to the rights and be obligated to perform the obligations of a
Lender under the Credit Agreement with a Commitment in an amount equal to the
Assigned Amount, and (ii) the Commitment of the Assignor shall, as of the date
hereof, be reduced by a like amount and the Assignor released from its
obligations under the Credit Agreement to the extent such obligations have been
assumed by the Assignee. The assignment provided for herein shall be without
recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
--------
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds an amount equal to $_________/*/. It is understood
that facility fees accrued to the date hereof are for the account of the
Assignor and such fees accruing from and including the date hereof with respect
to the Assigned Amount are for the account of the Assignee. Each of the
Assignor and the Assignee hereby agrees that if it receives any amount under the
Credit Agreement which is for the account of the other party hereto, it shall
receive the same for the account of such other party to the extent of such other
party's interest therein and shall promptly pay the same to such other party.
SECTION 4. Consent of the Company and the Agent. This Agreement is
------------------------------------
conditioned upon the consent of the Company and the Agent pursuant to Section
11.07(c) of the Credit Agreement. The execution of this Agreement by the
Company and the Agent is evidence of this consent. Pursuant to Section 11.07(c)
the Company agrees to execute and deliver, and to cause BV to execute and
deliver, a Note payable to the order of the Assignee to evidence the assignment
and assumption provided for herein.
- ------------
/*/ Amount should combine principal together with accrued interest and breakage
compensation, if any, to be paid by the Assignee, net of any portion of any
upfront fee to be paid by the Assignor to the Assignee. It may be preferable
in an appropriate case to specify these amounts generically or by formula
rather than as a fixed sum.
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<PAGE>
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
------------------------
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of either
Obligor, or the validity and enforceability of the obligations of either Obligor
in respect of the Credit Agreement or any Note. The Assignee acknowledges that
it has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Obligors.
SECTION 6. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number
------------
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By_________________________
Title:
[ASSIGNEE]
By__________________________
Title:
FMC CORPORATION
By__________________________
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By__________________________
Title:
4
