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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): May 7, 2000
M.A. HANNA COMPANY
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(Exact name of registrant as specified in charter)
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Delaware 1-5222 34-0232435
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(State or other jurisdiction of incorporation) (Commission File No.) (IRS Employer Identification No.)
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Suite 36-5000, 200 Public Square, Cleveland, Ohio 44114-2304
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (216) 589-4000
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N/A
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(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events
On May 7, 2000, M.A. Hanna Company, a Delaware corporation ("M.A.
Hanna"), and The Geon Company, a Delaware corporation ("Geon"), executed an
Agreement and Plan of Consolidation (the "Consolidation Agreement"), pursuant to
which M.A. Hanna, Geon and a corporation to be formed under the laws of the
State of Ohio will consolidate into a new Ohio corporation (the
"Consolidation"). Pursuant to the Consolidation Agreement, upon effectiveness of
the Consolidation, (i) each of the outstanding shares of common stock, par value
$1.00 per share, of M.A. Hanna ("M.A. Hanna Shares"), other than M.A. Hanna
Shares owned by Geon or any of M.A. Hanna's or Geon's subsidiaries, will be
converted into the right to receive one fully paid and nonassessable common
share ("Resulting Corporation Shares") of the corporation resulting from the
Consolidation (the "Resulting Corporation") and (ii) each of the outstanding
shares of common stock, par value $0.10 per share, of Geon ("Geon Shares"),
other than Geon Shares owned by M.A. Hanna or any of M.A. Hanna's or Geon's
subsidiaries, will be converted into the right to receive two fully paid and
nonassessable Resulting Corporation Shares. Consummation of the Consolidation is
subject to satisfaction or waiver by the parties of certain conditions,
including receipt of regulatory approvals and approvals by the stockholders of
M.A. Hanna and Geon.
Certain Information Concerning Participants
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M.A. Hanna and certain other persons named below may be deemed to be
participants in soliciting proxies of M.A. Hanna stockholders to approve the
Consolidation. The participants in this solicitation may include the directors
of M.A. Hanna (Phillip D. Ashkettle; Carol A. Cartwright; Wayne R. Embry; J.
Trevor Eyton; Robert A. Garda; Gordon D. Harnett; David H Hoag; George D.
Kirkham; David Baker Lewis; Marvin L. Mann; and Martin D. Walker) and the
following executive officers of M.A. Hanna: Lani L. Beach; Michael S. Duffey,
Peter B. Eckle; Jeffrey R. Gwinnell; Garth W. Henry; Thomas E. Lindsey; John S.
Pyke, Jr.; Michael L. Rademacher; and Christopher R. Sachs. As of the date of
this communication, none of the foregoing participants, individually or in the
aggregate, beneficially own in excess of 1% of M.A. Hanna common stock except
that Martin D. Walker beneficially owns approximately 2.2% of M.A. Hanna common
stock.
Press Release
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On May 8, 2000, M.A. Hanna and Geon issued a joint press release
announcing the execution of the Consolidation Agreement. The Consolidation
Agreement and the press release are filed as exhibits hereto and are
incorporated herein by reference.
Item 7. Financial Statements and Exhibits
(c) Exhibits.
2.1 Agreement and Plan of Consolidation, dated as of
May 7, 2000, by and between M.A. Hanna Company and
The Geon Company.
99.1 Text of Joint Press Release, dated May 8, 2000.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
M.A. HANNA COMPANY
By: /s/ John S. Pyke, Jr.
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Name: John S. Pyke, Jr.
Title: Vice President,
General Counsel and Secretary
Dated: May 8, 2000
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EXHIBIT INDEX
Exhibit No. Title
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2.1 Agreement and Plan of Consolidation, dated as of
May 7, 2000, by and between M.A. Hanna Company and
The Geon Company. The Company agrees to furnish
supplementally a copy of any omitted schedules to
the Commission upon request.
99.1 Text of Joint Press Release, dated May 8, 2000.
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Exhibit 2.1
EXECUTION COPY
AGREEMENT AND PLAN OF CONSOLIDATION
by and between
M. A. HANNA COMPANY
and
THE GEON COMPANY
Dated as of May 7, 2000
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TABLE OF CONTENTS
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Article 1. THE CONSOLIDATION.....................................................................................1
Section 1.1.The Consolidation..............................................................................1
Section 1.2.Closing........................................................................................1
Section 1.3.Effective Time.................................................................................2
Section 1.4.Effects of the Consolidation...................................................................2
Section 1.5.Articles of Incorporation and Regulations......................................................2
Section 1.6.Statutory Agent................................................................................2
Article 2. EFFECT OF THE CONSOLIDATION ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS; EXCHANGE OF
CERTIFICATES.....................................................................................................2
Section 2.1.Effect on Capital Stock........................................................................2
(a) Cancellation of Certain Stock..................................................................2
(b) Conversion of Hanna Common Stock...............................................................3
(c) Conversion of Geon Common Stock................................................................3
(d) Conversion of Treasury Stock...................................................................3
Section 2.2.Exchange of Certificates.......................................................................4
(a) Exchange Agent.................................................................................4
(b) Exchange Procedures............................................................................4
(c) Distributions with Respect to Unexchanged Shares...............................................4
(d) No Further Ownership Rights....................................................................5
(e) No Fractional Shares...........................................................................5
(f) Termination of Exchange Fund...................................................................6
(g) No Liability...................................................................................6
(h) Investment of Exchange Fund....................................................................6
(i) Lost Certificates..............................................................................6
Section 2.3.Certain Adjustments............................................................................6
Section 2.4.Further Assurances.............................................................................6
Section 2.5.Appraisal Rights...............................................................................7
Article 3. REPRESENTATIONS AND WARRANTIES........................................................................7
Section 3.1.Representations and Warranties of Geon.........................................................7
(a) Organization, Standing and Corporate Power.....................................................7
(b) Subsidiaries...................................................................................7
(c) Capital Structure..............................................................................7
(d) Authority; Noncontravention....................................................................8
(e) Reports; Undisclosed Liabilities...............................................................9
(f) Information Supplied..........................................................................10
(g) Absence of Certain Changes or Events..........................................................10
(h) Compliance with Applicable Laws; Litigation...................................................10
(i) Absence of Changes in Benefit Plans...........................................................11
(j) ERISA Compliance..............................................................................11
(k) Taxes.........................................................................................13
(l) Certain Contracts.............................................................................14
(m) Environmental Matters.........................................................................14
(n) Intellectual Property.........................................................................15
(o) Products Liability Claims.....................................................................15
(p) Voting Requirements...........................................................................16
(q) State Takeover Statutes.......................................................................16
(r) Rights Agreement..............................................................................16
(s) Ownership of Hanna Capital Stock..............................................................16
(t) Opinion of Financial Advisor..................................................................16
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(u) Brokers.......................................................................................16
Section 3.2.Representations and Warranties of Hanna.......................................................17
(a) Organization, Standing and Corporate Power....................................................17
(b) Subsidiaries..................................................................................17
(c) Capital Structure.............................................................................17
(d) Authority; Noncontravention...................................................................18
(e) Reports; Undisclosed Liabilities..............................................................19
(f) Information Supplied..........................................................................19
(g) Absence of Certain Changes or Events..........................................................20
(h) Compliance with Applicable Laws; Litigation...................................................20
(i) Absence of Changes in Benefit Plans...........................................................20
(j) ERISA Compliance..............................................................................21
(k) Taxes.........................................................................................22
(l) Certain Contracts.............................................................................23
(m) Environmental Matters.........................................................................24
(n) Intellectual Property.........................................................................24
(o) Products Liability Claims.....................................................................24
(p) Voting Requirements...........................................................................24
(q) State Takeover Statutes.......................................................................25
(r) Rights Agreement..............................................................................25
(s) Ownership of Geon Capital Stock...............................................................25
(t) Opinion of Financial Advisor..................................................................25
(u) Brokers.......................................................................................25
Article 4. COVENANTS RELATING TO CONDUCT OF BUSINESS............................................................26
Section 4.1.Conduct of Business...........................................................................26
(a) Conduct of Business by Geon...................................................................26
(b) Conduct of Business by Hanna..................................................................28
(c) Coordination of Dividends.....................................................................30
(d) Other Actions.................................................................................30
(e) Advice of Changes.............................................................................30
(f) Control of Other Party's Business.............................................................31
Section 4.2. No Solicitation by Geon.....................................................................31
Section 4.3. No Solicitation by Hanna....................................................................33
Section 4.4. Rights Agreements. The Geon................................................................34
Article 5. ADDITIONAL AGREEMENTS................................................................................35
Section 5.1. Preparation of the Form S-4 and the Joint Proxy Statement; Stockholders Meetings............35
Section 5.2. Letters of Geon's Accountants...............................................................36
Section 5.3. Letters of Hanna's Accountants..............................................................36
Section 5.4. Access to Information; Confidentiality......................................................36
Section 5.5. Reasonable Best Efforts; Cooperation........................................................37
Section 5.6. Stock Options, Restricted Stock and Employment Agreements...................................39
Section 5.7. Indemnification.............................................................................40
Section 5.8. Fees and Expenses...........................................................................41
Section 5.9. Public Announcements........................................................................43
Section 5.10. Affiliates..................................................................................43
Section 5.11. NYSE Listing................................................................................43
Section 5.12. Stockholder Litigation......................................................................43
Section 5.13. Tax Treatment...............................................................................43
Section 5.14. Standstill Agreements; Confidentiality Agreements...........................................44
Section 5.15. Employee Benefit Plans; Employment Agreements...............................................44
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Section 5.16. Resulting Corporation Corporate Office.....................................................45
Section 5.17. Post-Consolidation Board of Directors and Officers.........................................45
Section 5.18. Section 16(b)..............................................................................45
Section 5.19. Consolidation Corp.........................................................................45
Article 6. CONDITIONS PRECEDENT.................................................................................46
Section 6.1. Conditions to Each Party's Obligation to Effect the Consolidation..........................46
(a) Stockholder Approvals.........................................................................46
(b) Governmental and Regulatory Approvals.........................................................46
(c) No Injunctions or Restraints..................................................................46
(d) Form S-4......................................................................................46
(e) NYSE Listing..................................................................................46
(f) HSR Act.......................................................................................46
(g) Consolidation Corp............................................................................46
Section 6.2. Conditions to Obligations of Hanna.........................................................46
(a) Representations and Warranties................................................................46
(b) Performance of Obligations of Geon............................................................47
(c) Tax Opinion...................................................................................47
(d) No Material Adverse Change....................................................................47
Section 6.3. Conditions to Obligations of Geon..........................................................47
(a) Representations and Warranties................................................................47
(b) Performance of Obligations of Hanna...........................................................47
(c) Tax Opinion...................................................................................47
(d) No Material Adverse Change....................................................................48
Section 6.4. Frustration of Closing Conditions..........................................................48
Article 7. TERMINATION, AMENDMENT AND WAIVER....................................................................48
Section 7.1. Termination................................................................................48
Section 7.2. Effect of Termination......................................................................49
Section 7.3. Amendment..................................................................................49
Section 7.4. Extension; Waiver..........................................................................50
Section 7.5. Procedure for Termination, Amendment, Extension or Waiver..................................50
Article 8. GENERAL PROVISIONS...................................................................................50
Section 8.1. Nonsurvival of Representations and Warranties..............................................50
Section 8.2. Notices....................................................................................50
Section 8.3. Definitions. For purposes of this Agreement:..............................................51
Section 8.4. Interpretation.............................................................................52
Section 8.5. Counterparts...............................................................................52
Section 8.6. Entire Agreement: No Third-Party Beneficiaries.............................................52
Section 8.7. Governing Law..............................................................................52
Section 8.8. Assignment.................................................................................52
Section 8.9. Consent to Jurisdiction....................................................................52
Section 8.10. Headings...................................................................................53
Section 8.11. Severability...............................................................................53
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Geon Disclosure Schedules
Schedule 3.1(c) Summary of Outstanding Options and Awards
Schedule 3.1(c)(iv) Stock Plans
Schedule 3.1(d) Authority, Noncontravention
Schedule 3.1(i) Changes in Benefit Plans
Schedule 3.1(j) ERISA Compliance
Schedule 3.1(l) Non Competition Undertakings
Schedule 3.1(l) Agreements in Excess of $100 Million
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Schedule 3.1(m) Environmental
Hanna Disclosure Schedules
Schedule 3.2(c) Summary of Outstanding Options and Awards
Schedule 3.2(c)(iv) Stock Plans
Schedule 3.2(d) Authority; Noncontravention
Schedule 3.2(l) Certain Contracts
Schedule 4.1(b) Conduct of Business
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TABLE OF DEFINED TERMS
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TERM SECTION
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Adjusted Option.....................................................................................5.6(a)
Adjustment Event.......................................................................................2.3
Affiliate...........................................................................................8.3(a)
Antitrust Law.......................................................................................5.5(f)
Certificates........................................................................................2.2(b)
Cleanup.........................................................................................3.1(m)(iv)
Closing................................................................................................1.2
Closing Date...........................................................................................1.2
Code..............................................................................................Recitals
Confidentiality Agreement..............................................................................5.4
Consolidation.....................................................................................Recitals
Consolidation Consideration.........................................................................2.1(c)
Consolidation Corp................................................................................Recitals
Control.............................................................................................8.3(a)
Delaware Certificate of Consolidation..................................................................1.3
DGCL...................................................................................................1.1
Effective Time.........................................................................................1.3
Environmental Claim..............................................................................3.1(m)(v)
Environmental Laws..............................................................................3.1(m)(vi)
ERISA............................................................................................3.1(j)(i)
ERISA Affiliate................................................................................3.1(j)(iii)
Exchange Act........................................................................................3.1(d)
Exchange Agent......................................................................................2.2(a)
Exchange Fund.......................................................................................2.2(a)
Foreign Antitrust Laws..............................................................................3.1(d)
Form S-4.........................................................................................3.1(f)(i)
Geon..............................................................................................Recitals
Geon Acquisition Agreement..........................................................................4.2(b)
Geon Adjusted Option................................................................................5.6(a)
Geon Authorized Preferred Stock.....................................................................3.1(c)
Geon Award..........................................................................................3.1(c)
Geon Benefit Plans..................................................................................3.1(i)
Geon Common Stock.................................................................................Recitals
Geon Consolidation Consideration....................................................................2.1(c)
Geon Disclosure Schedule...............................................................................3.1
Geon Employee Stock Options.........................................................................3.1(c)
Geon Exchange Ratio.................................................................................2.1(c)
Geon Filed SEC Documents...............................................................................3.1
Geon Intellectual Property..........................................................................3.1(n)
Geon Measurement Date...............................................................................3.1(c)
Geon Permits........................................................................................3.1(h)
Geon Rights Agreement...............................................................................3.1(r)
Geon SEC Documents..................................................................................3.1(e)
Geon Stock Plans....................................................................................3.1(c)
Geon Stockholder Approval..........................................................................3.1(p)
Geon Stockholders Meeting...........................................................................5.1(b)
Geon Superior Proposal..............................................................................4.2(b)
Geon Takeover Proposal..............................................................................4.2(a)
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Geon Termination Fee................................................................................5.8(b)
Governmental Entity.................................................................................3.1(d)
Hanna.............................................................................................Recitals
Hanna Acquisition Agreement.........................................................................4.3(b)
Hanna Adjusted Option...............................................................................5.6(a)
Hanna Authorized Preferred Stock....................................................................3.2(c)
Hanna Award.........................................................................................3.2(c)
Hanna Benefit Plans.................................................................................3.2(i)
Hanna Common Stock................................................................................Recitals
Hanna Consolidation Consideration...................................................................2.1(b)
Hanna Disclosure Schedule..............................................................................3.2
Hanna Employee Stock Options........................................................................3.2(c)
Hanna Exchange Ratio................................................................................2.1(b)
Hanna Filed SEC Documents..............................................................................3.2
Hanna Intellectual Property.........................................................................3.2(n)
Hanna Measurement Date..............................................................................3.2(c)
Hanna Permits.......................................................................................3.2(h)
Hanna Rights Agreement..............................................................................3.2(r)
Hanna SEC Documents.................................................................................3.2(e)
Hanna Stock Plans...................................................................................3.2(c)
Hanna Stockholder Approval..........................................................................3.2(p)
Hanna Stockholder Meeting...........................................................................5.1(c)
Hanna Superior Proposal.............................................................................4.3(b)
Hanna Takeover Proposal.............................................................................4.3(a)
Hanna Termination Fee...............................................................................5.8(c)
Hazardous Materials............................................................................3.1(m)(vii)
HSR Act.............................................................................................3.1(d)
Indemnified Liabilities.............................................................................5.7(a)
Indemnified Party(ies)..............................................................................5.7(a)
IRS.............................................................................................3.1(j)(ii)
Joint Proxy Statement...............................................................................3.1(d)
Knowledge...........................................................................................8.3(b)
Liens...............................................................................................3.1(b)
Material Adverse Change.............................................................................8.3(c)
Material Adverse Effect.............................................................................8.3(c)
Material Contract...................................................................................8.3(d)
Material(ly)........................................................................................8.3(c)
NYSE............................................................................................2.2(e)(ii)
OGCL...................................................................................................1.1
Ohio Certificate of Consolidation......................................................................1.3
Out-of-Pocket Expenses..............................................................................5.8(d)
Person..............................................................................................8.3(e)
Release.......................................................................................3.1(m)(viii)
Restraints..........................................................................................6.1(c)
Resulting Corporation..................................................................................1.1
Resulting Corporation Shares........................................................................2.1(b)
SEC.................................................................................................3.1(b)
Securities Act......................................................................................3.1(d)
Settlement..........................................................................................5.5(g)
Subsidiary..........................................................................................8.3(f)
Takeover Statute....................................................................................3.1(q)
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Tax Certificates....................................................................................5.5(c)
Taxes............................................................................................3.1(k)(v)
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AGREEMENT AND PLAN OF CONSOLIDATION
AGREEMENT AND PLAN OF CONSOLIDATION (this "Agreement"), dated
as of May 7, 2000, by and between M. A. Hanna Company, a Delaware corporation
("Hanna"), and The Geon Company, a Delaware corporation ("Geon").
W I T N E S S E T H:
WHEREAS, the respective Boards of Directors of Hanna and Geon
have approved the consolidation of Hanna, Geon and a corporation to be formed
under the laws of the State of Ohio ("Consolidation Corp."), upon the terms and
subject to the conditions set forth in this Agreement (the "Consolidation"),
whereby (i) each issued and outstanding share of common stock, par value $1.00
per share, of Hanna ("Hanna Common Stock"), other than any shares of Hanna
Common Stock owned by Geon or any direct or indirect subsidiary of Hanna or
Geon, will be converted into the right to receive the Hanna Consolidation
Consideration, (ii) each issued and outstanding share of common stock, par value
$0.10 per share, of Geon ("Geon Common Stock"), other than any shares of Geon
Common Stock owned by Hanna or any direct or indirect subsidiary of Hanna or
Geon, will be converted into the right to receive the Geon Consolidation
Consideration and (iii) each issued and outstanding common share of
Consolidation Corp. will be canceled;
WHEREAS, the respective Boards of Directors of Geon and Hanna
have each determined that the Consolidation and the other transactions
contemplated hereby are consistent with, and in furtherance of, their respective
business strategies and goals; and
WHEREAS, for federal income tax purposes, it is intended that
the Consolidation qualify as a reorganization under the provisions of Section
368(a)(1)(A) of the Internal Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in this Agreement, the parties
agree as follows:
ARTICLE 1.
THE CONSOLIDATION
Section 1.1. THE CONSOLIDATION. Upon the terms and subject to
the conditions set forth in this Agreement, and in accordance with the Delaware
General Corporation Law (the "DGCL") and Ohio General Corporation Law (the
"OGCL"), Hanna, Geon and Consolidation Corp. will consolidate into a new Ohio
corporation (the "Resulting Corporation") at the Effective Time and the separate
corporate existence of Hanna, Geon and Consolidation Corp. will thereupon cease.
Section 1.2. CLOSING. The closing of the Consolidation (the
"Closing") will take place at 10:00 a.m. on a date to be specified by the
parties, which shall be no later than the second business day after satisfaction
or waiver (subject to applicable law) of the conditions (excluding conditions
that, by their terms, cannot be satisfied until the Closing Date) set forth in
Article 6, unless another time or date is agreed to by the parties hereto. The
Closing will be
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held at the offices of Jones, Day, Reavis & Pogue, North Point, 901 Lakeside
Avenue, Cleveland, Ohio 44114 or such other location as the parties hereto shall
agree to in writing. The date on which the Closing occurs is hereinafter
referred to as the "Closing Date."
Section 1.3. EFFECTIVE TIME. Subject to the provisions of this Agreement,
as soon as practicable on or after the Closing Date, the parties shall (i) file
a Certificate of Consolidation (the "Delaware Certificate of Consolidation") in
such form as is required by and executed in accordance with the relevant
provisions of the DGCL, (ii) file a Certificate of Consolidation (the "Ohio
Certificate of Consolidation") in such form as is required by and executed in
accordance with the relevant provisions of the OGCL and (iii) make all other
filings or recordings required under the DGCL and OGCL. The Consolidation will
become effective at the latest to occur of (i) such time as the Delaware
Certificate of Consolidation is duly filed with the Secretary of State of the
State of Delaware, (ii) such time as the Ohio Certificate of Consolidation is
duly filed with the Secretary of State of the State of Ohio or (iii) at such
subsequent date or time as Geon and Hanna agree and specify in the Delaware
Certificate of Consolidation and the Ohio Certificate of Consolidation (the date
and time the Consolidation becomes effective being the "Effective Time").
Section 1.4. EFFECTS OF THE CONSOLIDATION. The Consolidation will have the
effects set forth in the DGCL and OGCL. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time all the property, rights,
privileges, powers and franchises of Geon, Hanna and Consolidation Corp. will
vest in the Resulting Corporation, and all debts, liabilities and duties of
Geon, Hanna and Consolidation Corp. will become the debts, liabilities and
duties of the Resulting Corporation.
Section 1.5. ARTICLES OF INCORPORATION AND REGULATIONS. The articles of
incorporation of the Resulting Corporation will be in substantially the form set
forth as Exhibit A attached hereto, until thereafter further changed or amended
as provided therein or by applicable law. The regulations of the Resulting
Corporation will be in substantially the form set forth as Exhibit B attached
hereto, until thereafter further changed or amended as provided by the
certificate of incorporation, the regulations or applicable law.
Section 1.6. STATUTORY AGENT. The statutory agent upon whom any process,
notice or demand against Hanna, Geon, Consolidation Corp. or the Resulting
Corporation may be served will be the statutory agent set forth in articles of
incorporation attached hereto as Exhibit A.
ARTICLE 2.
EFFECT OF THE CONSOLIDATION ON THE CAPITAL STOCK
OF THE CONSTITUENT CORPORATIONS;
EXCHANGE OF CERTIFICATES
Section 2.1. EFFECT ON CAPITAL STOCK. As of the Effective Time, by virtue
of the Consolidation and without any action on the part of the holder of any
shares of capital stock of Hanna, Geon or Consolidation Corp.:
(a) CANCELLATION OF CERTAIN STOCK. Each share of Hanna Common Stock that is
owned by Geon or any direct or indirect subsidiary of Hanna or Geon (other than
shares of
2
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Hanna Common Stock acquired by employee benefit trust funds in the ordinary
course and any shares of Hanna Common Stock held in trust accounts, managed
accounts or in any similar trustee or fiduciary capacity) will automatically be
canceled and retired and will cease to exist, and no consideration will be
delivered in exchange therefor. Each share of Geon Common Stock that is owned by
Hanna or any direct or indirect subsidiary of Hanna or Geon (other than shares
of Geon Common Stock acquired by employee benefit trust funds in the ordinary
course and any shares of Geon Common Stock held in trust accounts, managed
accounts or in any similar trustee or fiduciary capacity) will automatically be
canceled and retired and will cease to exist, and no consideration will be
delivered in exchange therefor. Each common share of Consolidation Corp. will
automatically be canceled and retired and will cease to exist, and no
consideration will be delivered in exchange therefor.
(b) CONVERSION OF HANNA COMMON STOCK. Subject to Section 2.2(e), each
issued and outstanding share of Hanna Common Stock (other than shares to be
canceled in accordance with Section 2.1(a) or converted in accordance with
Section 2.1(d)) will be converted into the right to receive one (the "Hanna
Exchange Ratio") fully paid and nonassessable common share ("Resulting
Corporation Shares") of the Resulting Corporation (the "Hanna Consolidation
Consideration"). As of the Effective Time, all such shares of Hanna Common Stock
will no longer be outstanding and will automatically be canceled and retired and
will cease to exist, and each holder of a certificate representing any such
shares of Hanna Common Stock will cease to have any rights with respect thereto,
except the right to receive the Hanna Consolidation Consideration and any cash
in lieu of fractional Resulting Corporation Shares to be issued or paid in
consideration therefor upon surrender of such certificate in accordance with
Section 2.2, without interest.
(c) CONVERSION OF GEON COMMON STOCK. Subject to Section 2.2(e), each issued
and outstanding share of Geon Common Stock (other than shares to be canceled in
accordance with Section 2.1(a) or converted in accordance with Section 2.1(d))
will be converted into the right to receive two (the "Geon Exchange Ratio")
fully paid and nonassessable Resulting Corporation Shares (the "Geon
Consolidation Consideration," and together with the Hanna Consolidation
Consideration, the "Consolidation Consideration"). As of the Effective Time, all
such shares of Geon Common Stock will no longer be outstanding and will
automatically be canceled and retired and will cease to exist, and each holder
of a certificate representing any such shares of Geon Common Stock will cease to
have any rights with respect thereto, except the right to receive the Geon
Consolidation Consideration and any cash in lieu of fractional Resulting
Corporation Shares to be issued or paid in consideration therefor upon surrender
of such certificate in accordance with Section 2.2, without interest.
(d) CONVERSION OF TREASURY STOCK. Subject to the last sentence of this
Section 2.1(d), each share of Hanna Common Stock held in the treasury of Hanna
will be converted into one fully paid and nonassessable Resulting Corporation
Share and each share of Geon Common Stock held in the treasury of Geon will be
converted into two Resulting Corporation Shares. As of the Effective Time, all
such shares of Hanna Common Stock and Geon Common Stock will no longer be
outstanding and will automatically be canceled and retired and will cease to
exist. No fractional Resulting Corporation Shares will be issued upon conversion
of such treasury stock and any such fractional interests will be canceled and
retired and will cease to exist, and no consideration will be delivered in
exchange therefor.
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Section 2.2. EXCHANGE OF CERTIFICATES.
(a) EXCHANGE AGENT. First Chicago Trust Company of New York or such other
national bank or trust company as shall be designated by Geon and Hanna prior to
the Effective Time (the "Exchange Agent"), will act as agent of the Resulting
Corporation for purposes of, among other things, mailing and receiving
transmittal letters and distributing certificates for Resulting Corporation
Shares, and cash in lieu of fractional Resulting Corporation Shares, to Hanna
stockholders and Geon stockholders. As of the Effective Time, the Resulting
Corporation shall enter into an agreement with the Exchange Agent that will
provide that the Resulting Corporation shall deposit with the Exchange Agent as
of the Effective Time, for the benefit of the holders of shares of Hanna Common
Stock and Geon Common Stock, for exchange in accordance with this Article 2,
through the Exchange Agent, certificates representing Resulting Corporation
Shares (such Resulting Corporation Shares, together with any dividends or
distributions with respect thereto with a record date after the Effective Time,
and any cash payable in lieu of any fractional Resulting Corporation Shares
being hereinafter referred to as the "Exchange Fund") issuable pursuant to
Section 2.1 in exchange for outstanding shares of Hanna Common Stock and Geon
Common Stock.
(b) EXCHANGE PROCEDURES. As soon as reasonably practicable after the
Effective Time, the Exchange Agent will mail to each holder of record of a
certificate or certificates which immediately prior to the Effective Time
represented outstanding shares of Hanna Common Stock or Geon Common Stock (the
"Certificates") whose shares were converted into the right to receive the
Consolidation Consideration pursuant to Section 2.1(b) or (c), (i) a letter of
transmittal (which will specify that delivery will be effected, and risk of loss
and title to the Certificates will pass, only upon delivery of the Certificates
to the Exchange Agent and will be in such form and have such other provisions as
Geon and Hanna may reasonably specify) and (ii) instructions for use in
surrendering the Certificates in exchange for the Consolidation Consideration.
Upon surrender of a Certificate for cancellation to the Exchange Agent, together
with such letter of transmittal, duly executed, and such other documents as may
reasonably be required by the Exchange Agent, the holder of such Certificate
will be entitled to receive in exchange therefor a certificate representing that
number of whole Resulting Corporation Shares that such holder has the right to
receive pursuant to the provisions of this Article 2, certain dividends or other
distributions, if any, in accordance with Section 2.2(c) and cash in lieu of any
fractional Resulting Corporation Share in accordance with Section 2.2(e), and
the Certificate so surrendered will be canceled. A certificate representing the
proper number of Resulting Corporation Shares may be issued to a person other
than the person in whose name the Certificate so surrendered is registered if
such Certificate is properly endorsed or otherwise in proper form for transfer
and the person requesting such issuance pays any transfer or other taxes
required by reason of the issuance of Resulting Corporation Shares to a person
other than the registered holder of such Certificate or establishes to the
satisfaction of the Resulting Corporation that such tax has been paid or is not
applicable. Until surrendered as contemplated by this Section 2.2, each
Certificate will be deemed at any time after the Effective Time to represent
only the right to receive upon such surrender the Consolidation Consideration
that the holder thereof has the right to receive in respect of such Certificate
pursuant to the provisions of this Article 2, certain dividends or other
distributions, if any, in accordance with Section 2.2(c) and cash in lieu of any
fractional Resulting Corporation Share in accordance with Section 2.2(e). No
interest will be paid or will accrue on any cash payable to holders of
Certificates pursuant to the provisions of this Article 2.
(c) DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES. No dividends or other
distributions with respect to Resulting Corporation Shares with a record date
after the
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Effective Time will be paid to the holder of any unsurrendered Certificate with
respect to Resulting Corporation Shares represented thereby, and, in the case of
Certificates, no cash payment in lieu of fractional shares will be paid to any
such holder pursuant to Section 2.2(e), and all such dividends, other
distributions and cash in lieu of fractional Resulting Corporation Shares will
be paid by the Resulting Corporation to the Exchange Agent and will be included
in the Exchange Fund, in each case until the surrender of such Certificate in
accordance with this Article 2. Subject to the effect of applicable escheat or
similar laws, following surrender of any such Certificate there will be paid to
the holder of the certificate representing whole Resulting Corporation Shares
issued in exchange therefor, without interest, (i) at the time of such
surrender, the amount of dividends or other distributions with a record date
after the Effective Time theretofore paid with respect to such whole Resulting
Corporation Shares and, in the case of Certificates, the amount of any cash
payable in lieu of a fractional Resulting Corporation Share to which such holder
is entitled pursuant to Section 2.2(e) and (ii) at the appropriate payment date,
the amount of dividends or other distributions with a record date after the
Effective Time but prior to such surrender and with a payment date subsequent to
such surrender payable with respect to such whole Resulting Corporation Shares.
(d) NO FURTHER OWNERSHIP RIGHTS. All Resulting Corporation Shares
issued upon the surrender for exchange of Certificates in accordance with the
terms of this Article 2 (including any cash paid pursuant to Section 2.2(e))
will be deemed to have been issued (and paid) in full satisfaction of all rights
pertaining to the shares of Hanna Common Stock or Geon Common Stock theretofore
represented by such Certificates, subject, however, to Geon's or Hanna's
obligation to pay any dividends or make any other distributions with a record
date prior to the Effective Time which may have been declared or made by Hanna
or Geon on such shares of Hanna Common Stock or Geon Common Stock which remain
unpaid at the Effective Time, and there will be no further registration of
transfers on the stock transfer books of the Resulting Corporation of the shares
of Hanna Common Stock or Geon Common Stock which were outstanding immediately
prior to the Effective Time. If, after the Effective Time, Certificates are
presented to the Resulting Corporation or the Exchange Agent for any reason,
they will be canceled and exchanged as provided in this Article 2, except as
otherwise provided by law.
(e) NO FRACTIONAL SHARES.
(i) No certificates or scrip representing fractional Resulting
Corporation Shares will be issued upon the surrender for exchange of
Certificates, no dividend or distribution of the Resulting Corporation will
relate to such fractional share interests and such fractional share
interests will not entitle the owner thereof to vote or to any rights of a
shareholder of the Resulting Corporation.
(ii) Each holder of Hanna Common Stock or Geon Common Stock entitled
to receive a fractional Resulting Corporation Share will receive in lieu
thereof an amount in cash equal to the product obtained by multiplying (A)
the fractional share interest to which such former holder (after taking
into account all shares of Hanna Common Stock or Geon Common Stock held at
the Effective Time by such holder) would otherwise be entitled by (B) the
closing price for a Resulting Corporation Share as reported on the New York
Stock Exchange, Inc. ("NYSE") Composite Transaction Tape (as reported in
The Wall Street Journal, or, if not reported thereby, any other
authoritative source) on the first day Resulting Corporation Shares trade
after the Effective Time.
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(iii) As soon as practicable after the determination of the amount of
cash, if any, to be paid to holders of Certificates with respect to any
fractional share interests, the Exchange Agent shall make available such
amounts to such holders of Certificates subject to and in accordance with
the terms of Section 2.2(c).
(f) TERMINATION OF EXCHANGE FUND. Any portion of the Exchange Fund
which remains undistributed to the holders of the Certificates for six months
after the Effective Time will be delivered to the Resulting Corporation, upon
demand, and any holders of the Certificates who have not theretofore complied
with this Article 2 will thereafter look only to the Resulting Corporation for
payment of their claim for Consolidation Consideration, any dividends or
distributions with respect to Resulting Corporation Shares and any cash in lieu
of fractional Resulting Corporation Shares.
(g) NO LIABILITY. Neither the Resulting Corporation nor the Exchange
Agent will be liable to any person in respect of any Resulting Corporation
Shares, any dividends or distributions with respect thereto, any cash in lieu of
fractional Resulting Corporation Shares or any cash from the Exchange Fund, in
each case, delivered to a public official pursuant to any applicable abandoned
property, escheat or similar law.
(h) INVESTMENT OF EXCHANGE FUND. The Exchange Agent shall invest any
cash included in the Exchange Fund, as directed by the Resulting Corporation, on
a daily basis. Any interest and other income resulting from such investments
will be paid to the Resulting Corporation.
(i) LOST CERTIFICATES. If any Certificate has been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
such Certificate to be lost, stolen or destroyed and, if required by the
Resulting Corporation, the posting by such person of a bond in such reasonable
amount as the Resulting Corporation may direct as indemnity against any claim
that may be made against it with respect to such Certificate, the Exchange Agent
shall issue in exchange for such lost, stolen or destroyed Certificate the
Consolidation Consideration and, if applicable, any dividends and distributions
on shares of Geon Common Stock deliverable in respect thereof and any cash in
lieu of fractional shares, in each case, due to such person pursuant to this
Agreement.
Section 2.3. CERTAIN ADJUSTMENTS. If after the date hereof and on or
prior to the Effective Time the outstanding shares of Geon Common Stock or Hanna
Common Stock are changed into a different number of shares by reason of any
reclassification, recapitalization, split-up, combination or exchange of shares,
or any dividend payable in stock or other securities is declared thereon with a
record date within such period, or any similar event occurs (any such action, an
"Adjustment Event"), the Geon Exchange Ratio or Hanna Exchange Ratio, as the
case may be, will be adjusted accordingly to provide to the holders of Geon
Common Stock or Hanna Common Stock, as the case may be, the same economic effect
and percentage ownership of Resulting Corporation Shares as contemplated by this
Agreement prior to such reclassification, recapitalization, split-up,
combination, exchange or dividend or similar event.
Section 2.4. FURTHER ASSURANCES. At and after the Effective Time, the
officers and directors of the Resulting Corporation will be authorized to
execute and deliver, in the name and on behalf of Hanna, Geon and Consolidation
Corp., any deeds, bills of sale, assignments or assurances and to take and do,
in the name and on behalf of Hanna, Geon and Consolidation Corp., any other
actions and things to vest, perfect or confirm of record or otherwise in the
Resulting Corporation any and all right, title and interest in, to and under any
of the rights,
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properties or assets acquired or to be acquired by the Resulting Corporation as
a result of, or in connection with, the Consolidation.
Section 2.5. APPRAISAL RIGHTS. In accordance with Section 262 of the
DGCL, no appraisal rights are available to the holders of shares of Hanna Common
Stock or Geon Common Stock in connection with the Consolidation.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES
Section 3.1. REPRESENTATIONS AND WARRANTIES OF GEON. Except as
disclosed in the Geon SEC Documents filed and publicly available prior to the
date of this Agreement (as amended to the date of this Agreement, the "Geon
Filed SEC Documents") or as set forth on the appropriate section of the
Disclosure Schedule delivered by Geon to Hanna prior to the execution of this
Agreement (the "Geon Disclosure Schedule"), Geon hereby represents and warrants
to Hanna as follows:
(a) ORGANIZATION, STANDING AND CORPORATE POWER. Each of Geon and its
subsidiaries is a corporation or other legal entity duly organized, validly
existing and in good standing (with respect to jurisdictions which recognize
such concept) under the laws of the jurisdiction in which it is organized and
has the requisite corporate or other power, as the case may be, and authority to
carry on its business as now being conducted, except, as to subsidiaries, for
those jurisdictions where the failure to be so organized, existing or in good
standing individually or in the aggregate would not have a material adverse
effect on Geon. Each of Geon and its subsidiaries is duly qualified or licensed
to do business and is in good standing (with respect to jurisdictions which
recognize such concept) in each jurisdiction in which the nature of its business
or the ownership, leasing or operation of its properties makes such
qualification or licensing necessary, except for those jurisdictions where the
failure to be so qualified or licensed or to be in good standing individually or
in the aggregate would not have a material adverse effect on Geon. Geon has made
available to Hanna prior to the execution of this Agreement complete and correct
copies of its certificate of incorporation and by-laws, each as amended to date.
(b) SUBSIDIARIES. All the outstanding shares of capital stock of, or
other equity interests in, each Significant Subsidiary (as defined in Rule 1-02
of Regulation S-X of the Securities and Exchange Commission (the "SEC")) of Geon
(i) have been validly issued and are fully paid and nonassessable, (ii) are
owned directly or indirectly by Geon, free and clear of all pledges, claims,
liens, charges, encumbrances and security interests of any kind or nature
whatsoever (collectively, "Liens") and (iii) are free of any other restriction
(including any restriction on the right to vote, sell or otherwise dispose of
such capital stock or other ownership interests), except in the case of clauses
(ii) and (iii) for any Liens or restrictions that would not have a material
adverse effect on Geon.
(c) CAPITAL STRUCTURE. The authorized capital stock of Geon consists
of (i) 100,000,000 shares of Geon Common Stock and (ii) 10,000,000 shares of
preferred stock, without par value ("Geon Authorized Preferred Stock"). At the
close of business on May 5, 2000 (the "Geon Measurement Date"): (i) 24,332,625
shares of Geon Common Stock were issued and outstanding; (ii) 3.642,823 shares
of Geon Common Stock were held by Geon in its
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treasury; (iii) no shares of Geon Authorized Preferred Stock were issued or
outstanding; and (iv) 4,925,956 shares of Geon Common Stock were reserved for
issuance pursuant to the plans as set forth in Section 3.1(c)(iv) of the Geon
Disclosure Schedule (collectively, the "Geon Stock Plans"), of which 4,208,856
shares are subject to outstanding employee stock options or other rights to
purchase or receive Geon Common Stock granted under the Geon Stock Plans
(collectively, the "Geon Employee Stock Options"). All outstanding shares of
capital stock of Geon are, and all shares which may be issued will be, when
issued, duly authorized, validly issued, fully paid and nonassessable and not
subject to preemptive rights. Except (i) as set forth in this Section 3.1(c),
(ii) for changes since the Geon Measurement Date resulting from the issuance of
shares of Geon Common Stock pursuant to the Geon Employee Stock Options, (iii)
for outstanding rights issued pursuant to the Geon Rights Agreement, and (iv) as
permitted by Section 4.1(a)(ii), (x) there are not issued, reserved for issuance
or outstanding (A) any shares of capital stock or other voting securities of
Geon, (B) any securities of Geon convertible into or exchangeable or exercisable
for shares of capital stock or voting securities of Geon or (C) any warrants,
calls, options or other rights to acquire from Geon or any Geon subsidiary, and
no obligation of Geon or any Geon subsidiary to issue, any capital stock, voting
securities or securities convertible into or exchangeable or exercisable for
capital stock or voting securities of Geon and (y) there are no outstanding
obligations of Geon or any Geon subsidiary to repurchase, redeem or otherwise
acquire any such securities or, other than agreements entered into with respect
to the Geon Stock Plans in effect as of the close of business on the Geon
Measurement Date, to issue, deliver or sell, or cause to be issued, delivered or
sold, any such securities. Section 3.1(c) of the Geon Disclosure Schedule
provides a summary of the number of Geon Employee Stock Options and each award
(including restricted stock, deferred stock and performance shares) outstanding
under the Geon Stock Plans (each, a "Geon Award") as of the close of business on
the Geon Measurement Date. Neither Geon nor any Geon subsidiary is a party to
any voting agreement with respect to the voting of any such securities. There
are no outstanding (A) securities of Geon or any Geon subsidiary convertible
into or exchangeable or exercisable for shares of capital stock or other voting
securities or ownership interests in any Geon subsidiary, (B) warrants, calls,
options or other rights to acquire from Geon or any Geon subsidiary, and no
obligation of Geon or any Geon subsidiary to issue, any capital stock, voting
securities or other ownership interests in, or any securities convertible into
or exchangeable or exercisable for any capital stock, voting securities or
ownership interests in, any Geon subsidiary or (C) obligations of Geon or any
Geon subsidiary to repurchase, redeem or otherwise acquire any such outstanding
securities of Geon subsidiaries or to issue, deliver or sell, or cause to be
issued, delivered or sold, any such securities.
(d) AUTHORITY; NONCONTRAVENTION. Geon has all requisite corporate power
and authority to enter into this Agreement and, subject to the Geon Stockholder
Approval, to consummate the transactions contemplated by this Agreement. The
execution and delivery of this Agreement by Geon and the consummation by Geon of
the transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Geon, subject to the Geon Stockholder Approval.
This Agreement has been duly executed and delivered by Geon and, assuming the
due authorization, execution and delivery by Hanna, constitutes a legal, valid
and binding obligation of Geon, enforceable against Geon in accordance with its
terms. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated by this Agreement and compliance
with the provisions of this Agreement will not, conflict with, or result in any
violation of, or constitute a default (with or without notice or lapse of time,
or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or loss of a benefit under, or result in the
creation of any Lien upon any of the properties or assets of Geon or any of its
subsidiaries under, (i) the certificate of incorporation or by-laws of Geon or
the comparable organizational
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documents of any of its subsidiaries, (ii) any loan or credit agreement, note,
bond, mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise, license or similar authorization applicable to Geon or
any of its subsidiaries or their respective properties or assets or (iii)
subject to the governmental filings and other matters referred to in the
following sentence, any judgment, order, decree, statute, law, ordinance, rule
or regulation applicable to Geon or any of its subsidiaries or their respective
properties or assets, other than, in the case of clauses (ii) and (iii), any
such conflicts, violations, defaults, rights, losses or Liens that individually
or in the aggregate would not have a material adverse effect on Geon. No
consent, approval, order or authorization of, action by or in respect of, or
registration, declaration or filing with, any federal, state, local or foreign
government, any court, administrative, regulatory or other governmental agency,
commission or authority or any non-governmental U.S. or foreign self-regulatory
agency, commission or authority or any arbitral tribunal (each, a "Governmental
Entity") is required by Geon or any of its subsidiaries in connection with the
execution and delivery of this Agreement by Geon or the consummation by Geon of
the transactions contemplated hereby, except for: (1) the filing with the SEC of
(A) a proxy statement relating to the Geon Stockholders Meeting (such proxy
statement, together with the proxy statement relating to the Hanna Stockholders
Meeting, in each case as amended or supplemented from time to time, the "Joint
Proxy Statement"), and (B) such reports under Section 13(a), 13(d), 15(d) or
16(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
as may be required in connection with this Agreement and the transactions
contemplated hereby; (2) the filing with and declaration of the effectiveness by
the SEC of the Form S-4, (3) the filing of the Delaware Certificate of
Consolidation with the Secretary of State of the State of Delaware and the Ohio
Certificate of Consolidation with the Secretary of State of Ohio and appropriate
documents with the relevant authorities of other states in which Geon is
qualified to do business and such filings with Governmental Entities to satisfy
the applicable requirements of state securities or "blue sky" laws; (4) such
filings with and approvals of the NYSE to permit Resulting Corporation Shares
that are to be issued in the Consolidation and under the Hanna Stock Plans and
Geon Stock Plans to be listed on the NYSE; (5) the filing of a premerger
notification and report form by Geon under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended ("HSR Act"); (6) such filings, consents,
approvals, orders or authorizations required to be made or obtained pursuant to
the laws of any non-U.S. jurisdiction relating to antitrust matters or
competition ("Foreign Antitrust Laws"); (7) the filing with the Pension Benefit
Guaranty Corporation of any notice required under Section 4043 of ERISA; and (8)
such consents, approvals, orders or authorizations the failure of which to be
made or obtained individually or in the aggregate would not have a material
adverse effect on Geon.
(e) REPORTS; UNDISCLOSED LIABILITIES. Geon has filed all required
reports, schedules, forms, statements and other documents (including exhibits
and all other information incorporated therein) with the SEC since January 1,
1997 (the "Geon SEC Documents"). As of their respective dates, the Geon SEC
Documents complied in all material respects with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), or the Exchange Act,
as the case may be, and the rules and regulations of the SEC promulgated
thereunder applicable to such Geon SEC Documents, and none of the Geon SEC
Documents when filed contained any 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 therein, in light of the circumstances under which
they were made, not misleading. Except to the extent that information contained
in any Geon SEC Document has been revised or superseded by a later filed Geon
Filed SEC Document, none of the Geon SEC Documents contains any untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of Geon included in the Geon SEC
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Documents comply as to form, as of their respective dates of filing with the
SEC, in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with generally accepted accounting principles (except, in
the case of unaudited statements, as permitted by Form 10-Q of the SEC) applied
on a consistent basis during the periods involved (except as may be indicated in
the notes thereto) and fairly present in all material respects the consolidated
financial position of Geon and its consolidated subsidiaries as of the dates
thereof and the consolidated results of operations and cash flows of Geon and
its consolidated subsidiaries for the periods then ended (subject, in the case
of unaudited statements, to normal recurring year-end audit adjustments). Except
(A) as reflected in such financial statements or in the notes thereto, (B) for
liabilities incurred in the ordinary course of business consistent with past
practice or (C) for liabilities incurred in connection with this Agreement or
the transactions contemplated hereby, neither Geon nor any of its subsidiaries
has any liabilities or obligations of any nature which, individually or in the
aggregate, would have a material adverse effect on Geon.
(f) INFORMATION SUPPLIED. None of the information supplied or to be
supplied by Geon specifically for inclusion or incorporation by reference in (i)
the registration statement on Form S-4 to be filed with the SEC in connection
with the issuance of Resulting Corporation Shares in the Consolidation (the
"Form S-4") will, at the time the Form S-4 becomes effective under the
Securities Act, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) the Joint Proxy Statement will, at the
date it is first mailed to Geon's stockholders or at the time of the Geon
Stockholders Meeting, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they are
made, not misleading. The Form S-4 and the Joint Proxy Statement will comply as
to form in all material respects with the requirements of the Securities Act and
the Exchange Act, respectively, and the rules and regulations thereunder, except
that no representation or warranty is made by Geon with respect to statements
made or incorporated by reference therein based on information supplied by Hanna
specifically for inclusion or incorporation by reference in the Form S-4 or the
Joint Proxy Statement.
(g) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except for liabilities
incurred in connection with this Agreement or the transactions contemplated
hereby, since December 31, 1999, Geon and its subsidiaries have conducted their
business only in the ordinary course or as disclosed in any Geon Filed SEC
Document, and there has not been, (1) any material adverse effect on Geon or (2)
any action taken that if taken after the date of this Agreement would be or
result in a violation of Section 4.1(a).
(h) COMPLIANCE WITH APPLICABLE LAWS; LITIGATION. Geon, its
subsidiaries and employees hold all permits, licenses, variances, exemptions,
orders, registrations and approvals of all Governmental Entities that are
required for the operation of the businesses of Geon and its subsidiaries
(collectively, the "Geon Permits"), except where the failure to have any such
Geon Permits individually or in the aggregate would not have a material adverse
effect on Geon. Geon and its subsidiaries are in compliance with the terms of
the Geon Permits and all applicable statutes, laws, ordinances, rules and
regulations, except where the failure so to comply individually or in the
aggregate would not have a material adverse effect on Geon. As of the date of
this Agreement, no action, demand, requirement or investigation by any
Governmental Entity and no suit, action or proceeding by any person, in each
case with respect to Geon or any of its subsidiaries or any of their respective
properties, is pending or, to the knowledge of Geon, threatened, other than, in
each case, those the outcome of which
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individually or in the aggregate would not reasonably be expected to have a
material adverse effect on Geon.
(i) ABSENCE OF CHANGES IN BENEFIT PLANS. Since December 31, 1999,
there has not been any adoption or amendment in any material respect by Geon or
any of its subsidiaries of any collective bargaining agreement or any material
bonus, pension (within the meaning of Section 3(2) of ERISA), profit sharing,
deferred compensation, incentive compensation, stock ownership, stock purchase,
stock option, phantom stock, equity-based, retirement, vacation, severance,
disability, death benefit, hospitalization, medical, life, severance, welfare
(within the meaning of Section 3(1) of ERISA) or other plan, arrangement or
understanding providing benefits to any current or former employee, officer,
consultant or director of Geon or any of its subsidiaries (collectively, the
"Geon Benefit Plans"), or any material change in any actuarial or other
assumption used to calculate funding obligations with respect to any Geon
Benefit Plans, or any change in the manner in which contributions to any Geon
Benefit Plans are made or the basis on which such contributions are determined.
(j) ERISA COMPLIANCE.
(i) With respect to the Geon Benefit Plans, no event has occurred and,
to the knowledge of Geon, there exists no condition or set of
circumstances, in connection with which Geon or any of its subsidiaries
could be subject to any liability that individually or in the aggregate
would have a material adverse effect on Geon under the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), the Code or any other
applicable law.
(ii) Each Geon Benefit Plan has been administered in accordance with
its terms, all applicable laws, including ERISA and the Code, and the terms
of all applicable collective bargaining agreements, except for any failures
so to administer any Geon Benefit Plan that individually or in the
aggregate would not reasonably be expected to have a material adverse
effect on Geon. Geon, its subsidiaries and all the Geon Benefit Plans are
in compliance with the applicable provisions of ERISA, the Code and all
other applicable laws and the terms of all applicable collective bargaining
agreements, except for any failures to be in such compliance that
individually or in the aggregate would not reasonably be expected to have a
material adverse effect on Geon. Each Geon Benefit Plan that is intended to
be qualified under Section 401(a) of the Code has received a favorable
determination letter from the Internal Revenue Service ("IRS") that it is
so qualified. To the knowledge of Geon, no event has occurred since the
date of any determination letter from the IRS that is reasonably likely to
affect adversely the qualified status of any such Geon Benefit Plan, except
for any occurrence that individually or in the aggregate would not
reasonably be expected to have a material adverse effect on Geon, and to
the knowledge of Geon, all contributions to, and payments from, such Geon
Benefit Plans that are required to be made in accordance with such plans,
ERISA or the Code have been timely made other than any failures that
individually or in the aggregate would not reasonably be expected to have a
material adverse effect on Geon.
(iii) Except to the extent any of the following either individually or
in the aggregate would not reasonably be expected to have a material
adverse effect on Geon, (x) neither Geon nor any trade or business, whether
or not incorporated (an "ERISA Affiliate") of Geon, which together with
Geon would be deemed to be a single employer within the meaning of Section
4001(b) of ERISA, has incurred any liability under Title IV of ERISA and no
condition exists that presents a risk to Geon or any ERISA Affiliate of
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Geon of incurring any such liability (other than liability for benefits
or premiums to the Pension Benefit Guaranty Corporation arising in the
ordinary course), (y) no Geon Benefit Plan has incurred an "accumulated
funding deficiency" (within the meaning of Section 302 of ERISA or
Section 412 of the Code) whether or not waived and (z) to the knowledge
of Geon, there are not any facts or circumstances that would materially
change the funded status of any Geon Benefit Plan that is a "defined
benefit" plan (as defined in Section 3(35) of ERISA) since the date of
the most recent actuarial report for such plan. No Geon Benefit Plan is
a multiemployer plan within the meaning of Section 3(37) of ERISA and
no liability has been incurred by Geon and its ERISA Affiliates under
such a plan, except for any such liability that would not reasonably be
expected to have a material adverse effect on Geon.
(iv) Neither Geon nor any of its subsidiaries is a party to
any collective bargaining or other labor union contract applicable to
persons employed by Geon or any of its subsidiaries and no collective
bargaining agreement is being negotiated by Geon or any of its
subsidiaries, in each case that is material to Geon and its
subsidiaries taken as a whole. As of the date of this Agreement, there
is no labor dispute, strike or work stoppage against Geon or any of its
subsidiaries pending or, to the knowledge of Geon, threatened which may
interfere with the respective business activities of Geon or any of its
subsidiaries, except where such dispute, strike or work stoppage
individually or in the aggregate would not reasonably be expected to
have a material adverse effect on Geon. As of the date of this
Agreement, (x) to the knowledge of Geon, none of Geon, any of its
subsidiaries or any of their respective representatives or employees
has committed any unfair labor practice in connection with the
operation of the respective businesses of Geon or any of its
subsidiaries, and (y) there is no charge or complaint against Geon or
any of its subsidiaries by the National Labor Relations Board or any
comparable governmental agency pending or threatened in writing, except
for any occurrence that individually or in the aggregate would not
reasonably be expected to have a material adverse effect on Geon.
(v) No Geon Benefit Plan provides medical benefits (whether or
not insured) with respect to current or former employees after
retirement or other termination of service the cost of which is
material to Geon and its subsidiaries taken as a whole.
(vi) The consummation of the transactions contemplated by this
Agreement will not, either alone or in combination with another event,
(A) entitle any current or former employee, officer or director of Geon
or any ERISA Affiliate of Geon to severance pay, unemployment
compensation or any other payment, except as expressly provided in this
Agreement, (B) accelerate the time of payment or vesting, or increase
the amount of compensation due any such employee, officer or director
or (C) constitute a "change of control" under any Geon Benefit Plan.
(vii) With respect to each Geon Benefit Plan: (x) no actions,
suits, claims or disputes are pending or, to the knowledge of Geon,
threatened, other than claims for benefits made in accordance with the
terms of such Geon Benefit Plan, except for such actions, suits, claims
or disputes that individually or in the aggregate would not reasonably
be expected to have a material adverse effect on Geon; (y) no audits
are pending with any governmental or regulatory agency and to the
knowledge of Geon there are no facts which could give rise to any
liability in the event of such an audit that either individually or in
the aggregate would have a material adverse effect on Geon; and (z) to
the knowledge of Geon, all reports and returns required to be filed
with any
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governmental agency or distributed to any participant in any Geon
Benefit Plan have been so duly filed or distributed other than any
failure to file or distribute such reports or returns that individually
or in the aggregate would not reasonably be expected to have a material
adverse effect on Geon.
(viii) Geon has not incurred any liability under Code Section
4975, and no fact exists which could result in a liability to Geon
under Code Section 4975 that would reasonably be expected to have a
material adverse effect on Geon.
(k) TAXES.
(i) Each of Geon and its subsidiaries has filed all material
tax returns and reports required to be filed by it, or requests for
extensions to file such returns or reports have been timely filed,
granted and have not expired, and all such returns and reports are
complete and correct in all material respects, except to the extent
that such failures to file, to have extensions granted that remain in
effect or to be materially complete or correct individually or in the
aggregate would not have a material adverse effect on Geon. Geon and
each of its subsidiaries has paid (or Geon has paid on its behalf) all
taxes shown as due on such returns and reports. Except as would not
have a material adverse effect on Geon, the most recent financial
statements contained in the Geon Filed SEC Documents reflect, and the
financial statements contained in the Geon SEC Documents filed after
the date of this Agreement will reflect, an adequate reserve for all
taxes due and owing by Geon and its subsidiaries for all taxable
periods and portions thereof through the dates of such financial
statements that remain unpaid as of those dates, which reserve was, and
will be, computed in a manner consistent with Geon's past practice.
(ii) No deficiencies for any taxes have been proposed,
asserted or assessed against Geon or any of its subsidiaries that have
not been paid or adequately reserved for, except for deficiencies that
individually or in the aggregate would not have a material adverse
effect on Geon.
(iii) Neither Geon nor any of its subsidiaries has taken any
action or knows of any fact, agreement, plan or other circumstance that
is reasonably likely to prevent the Consolidation from qualifying as a
reorganization within the meaning of Section 368(a)(1)(A) of the Code.
(iv) To the knowledge of Geon, no stockholder of Geon has
entered into any plan or arrangement or taken any action with respect
to Resulting Corporation Shares that such stockholder will receive upon
completion of the Consolidation which would cause such stockholder to
fail to satisfy the continuity of interest requirement applicable to a
Section 368(a)(1)(A) reorganization.
(v) As used in this Agreement, "taxes" include all (x)
federal, state, local or foreign net and gross income, alternative or
add-on minimum, environmental, gross receipts, ad valorem, value added,
goods and services, capital stock, profits, license, single business,
employment, severance, stamp, unemployment, customs, property, sales,
excise, use, occupation, service, transfer, payroll, franchise,
withholding and other fiscal levies or similar governmental duties,
charges, fees, levies or assessments including any interest, penalties
or additions with respect thereto, (y) liability for the payment of any
amounts of the type described in clause (x) as a result of being a
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member of an affiliated, consolidated, combined or unitary group, and
(z) liability for the payment of any amounts as a result of being party
to any tax sharing agreement or as a result of any express or implied
obligation to indemnify any other person with respect to the payment of
any amounts of the type described in clause (x) or (y).
(l) CERTAIN CONTRACTS. Except as permitted pursuant to Section 4.1(a),
neither Geon nor any of its subsidiaries is a party to or bound by (i) any
agreement relating to the incurring of indebtedness (including sale and
leaseback and capitalized lease transactions and other similar financing
transactions but excluding commercial paper) providing for payment or repayment
in excess of $100.0 million, (ii) any material contract or (iii) any
non-competition agreement or any other agreement or obligation which purports to
limit in any material respect the manner in which, or the localities in which,
all or any substantial portion of the business of Geon and its subsidiaries,
taken as a whole, or, after the Effective Time, the business of Hanna and its
subsidiaries, taken as a whole, is or would be conducted.
(m) ENVIRONMENTAL MATTERS.
(i) Prior to the date of this Agreement, neither Geon nor any of its
subsidiaries has received any communication (written or oral), whether from a
Governmental Entity, citizens' group, employee or otherwise, alleging that Geon
or any of its subsidiaries is not in compliance with applicable Environmental
Laws, other than those instances of noncompliance that individually or in the
aggregate would not reasonably be expected to have a material adverse effect on
Geon.
(ii) There is no Environmental Claim pending or, to the knowledge of
Geon, threatened, against Geon or any of its subsidiaries or, to the knowledge
of Geon, against any person whose liability for any Environmental Claim Geon or
any of its subsidiaries has or may have retained or assumed either contractually
or by operation of law, other than those Environmental Claims that individually
or in the aggregate would not reasonably be expected to have a material adverse
effect on Geon.
(iii) There are no present or, to the knowledge of Geon, past actions,
activities, circumstances, conditions, events or incidents, including, without
limitation, the Release or presence of any Hazardous Material at any property,
that could reasonably be expected to result in liability under any Environmental
Law against Geon or any of its subsidiaries or, to the knowledge of Geon, for
any person whose liability for any Environmental Claim Geon or any of its
subsidiaries has or may have retained or assumed either contractually or by
operation of law, other than those liabilities that individually or in the
aggregate would not reasonably be expected to have a material adverse effect on
Geon.
(iv) As used herein, the term "Cleanup" means all actions required to
(w) cleanup, remove, treat, manage or remediate Hazardous Materials in the
indoor or outdoor environment; (x) prevent the Release of Hazardous Materials so
that they do not migrate, endanger or threaten to endanger public health or
welfare or the indoor or outdoor environment; (y) perform pre-remedial studies
and investigations and post-remedial monitoring and care; or (z) respond to any
government requests for information or documents in any way relating to cleanup,
removal, treatment or remediation or potential cleanup, removal, treatment or
remediation of Hazardous Materials in the indoor or outdoor environment.
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(v) As used herein, the term "Environmental Claim" means any written
claim, action, cause of action, investigation or written notice by any person
alleging potential liability or responsibility (including, without limitation,
potential liability for investigatory costs, Cleanup costs, governmental
response costs, natural resources damages, property damages, personal injuries,
fines or penalties) arising out of, based on or resulting from (x) the presence
or Release of any Hazardous Materials at any location, whether or not owned or
operated by Geon or any of its subsidiaries or Hanna or any of its subsidiaries,
as the case may be, or (y) circumstances forming the basis of any violation of
any Environmental Law.
(vi) As used herein, the term "Environmental Laws" means all federal,
state, local and foreign laws and regulations relating to pollution or
protection of the environment, including, without limitation, laws relating to
Releases or threatened Release of Hazardous Materials or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials.
(vii) As used herein, the term "Hazardous Materials" means all
substances defined as Hazardous Substances, Hazardous Waste, Oils, Pollutants or
Contaminants in the National Oil and Hazardous Substances Pollution Contingency
Plan, 40 C.F.R. ss. 300.5, or defined as such by, or regulated as such under,
any Environmental Law, including all matters adversely affecting air, ground,
ground water and/or environmental quality or safety, including, without
limitation, petroleum, petroleum-derived products, underground storage tanks and
asbestos.
(viii) As used herein, the term "Release" means any release, spill,
emission, discharge, leaking, pumping, injection, deposit, disposal, dispersal,
leaching or migration into the environment (including, without limitation,
ambient air, surface water, groundwater and surface or subsurface strata) or
into or out of any property (including the abatement or discarding of barrels or
other containers containing Hazardous Materials), including the movement of
Hazardous Materials through, on or in the air, soil, surface water, ground water
or property.
(n) INTELLECTUAL PROPERTY. Geon and its subsidiaries own or have a
binding, enforceable right to use all material letters patent, patent
applications, trade names, brand names, trademarks, service marks, trademark and
service mark registrations and applications, copyright registrations and
applications, both domestic and foreign, presently owned, possessed, used or
held by Geon and its subsidiaries (the "Geon Intellectual Property"). To the
knowledge of Geon, neither the conduct of Geon's or any of its subsidiaries'
business nor any of the products sold or services provided by Geon or any of its
subsidiaries in connection therewith (other than those infringements or
violations of rights which individually or in the aggregate would not reasonably
be expected to have a material adverse effect on Geon) infringes upon or is
inconsistent with the intellectual property rights of any other person. To the
knowledge of Geon, neither the conduct of any other person's business, nor the
nature of any of the products it sells or services it provides, infringes upon
or is inconsistent with any Geon Intellectual Property, other than those
infringements or violations of rights which individually or in the aggregate
would not reasonably be expected to have a material adverse effect on Geon.
(o) PRODUCTS LIABILITY CLAIMS. There are no product liability claims or
causes of action pending or, to the knowledge of Geon, threatened alleging
personal injury or property
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damage from products or materials sold by Geon or any of its subsidiaries that,
individually or in the aggregate, would reasonably be expected to have a
material adverse effect on Geon.
(p) VOTING REQUIREMENTS. The affirmative vote of the holders of a
majority of the voting power of all outstanding shares of Geon Common Stock at
the Geon Stockholders Meeting is the only vote of the holders of any class or
series of Geon's capital stock necessary to adopt this Agreement and approve the
Consolidation and the other transactions contemplated hereby (the "Geon
Stockholder Approval"). The Board of Directors of Geon has duly and validly
approved and taken all corporate action required to be taken by the Geon Board
of Directors for the consummation of the transactions contemplated by this
Agreement and, as of the date of this Agreement, has recommended that Geon's
stockholders adopt this Agreement and approve the Consolidation and the other
transactions contemplated hereby.
(q) STATE TAKEOVER STATUTES. The Geon Board of Directors has taken all
necessary action so that no "fair price," "moratorium," "control share
acquisition" or other similar anti-takeover statute or regulation (each, a
"Takeover Statute") (including the interested stockholder provisions codified in
Section 203 of the DGCL) or any applicable anti-takeover provision in Geon's
certificate of incorporation or by-laws is applicable to the Consolidation and
the other transactions contemplated by this Agreement. To the knowledge of Geon,
no other state takeover statute is applicable to the Consolidation or the other
transactions contemplated by this Agreement.
(r) RIGHTS AGREEMENT. The Rights Agreement, dated as of May 28, 1993,
by and between Geon and The Bank of New York, as rights agent, (the "Geon Rights
Agreement") has been amended to (i) render the Geon Rights Agreement
inapplicable to the Consolidation and the other transactions contemplated by
this Agreement and (ii) ensure that (x) none of Consolidation Corp., Hanna or
its wholly owned subsidiaries is an Acquiring Person (as defined in the Geon
Rights Agreement), (y) a Distribution Date, a Triggering Event or a Stock
Acquisition Date (as such terms are defined in the Geon Rights Agreement) does
not occur solely by reason of the execution of this Agreement, the consummation
of the Consolidation, or the consummation of the other transactions contemplated
by this Agreement and (z) it will expire or otherwise terminate immediately
prior to the Effective Time.
(s) OWNERSHIP OF HANNA CAPITAL STOCK. Except for shares owned by the
Geon Benefit Plans or shares held or managed for the account of another person
or as to which Geon is required to act as a fiduciary or in a similar capacity,
as of the date hereof, neither Geon nor, to its knowledge without independent
investigation, any of its affiliates (i) beneficially owns (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, or (ii) is party to any
agreement, arrangement or understanding for the purpose of acquiring, holding,
voting or disposing of, in each case, more than 1% of the outstanding shares of
capital stock of Hanna.
(t) OPINION OF FINANCIAL ADVISOR. The Board of Directors of Geon has
received the opinion of McDonald Investments Inc., dated the date of this
Agreement, to the effect that, as of such date, the Geon Exchange Ratio for the
conversion of Geon Common Stock into Resulting Corporation Shares pursuant to
the Consolidation is fair from a financial point of view to holders of shares of
Geon Common Stock, a signed copy of which opinion will be made available to
Hanna promptly after the date hereof.
(u) BROKERS. Except for McDonald Investments Inc., no broker,
investment banker, financial advisor or other person is entitled to any
broker's, finder's, financial advisor's or
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other similar fee or commission in connection with the transactions contemplated
by this Agreement based upon arrangements made by or on behalf of Geon.
Section 3.2. REPRESENTATIONS AND WARRANTIES OF HANNA. Except as
disclosed in the Hanna SEC Documents filed and publicly available prior to the
date of this Agreement (as amended to the date of this Agreement, the "Hanna
Filed SEC Documents") or as set forth on the appropriate section of the
Disclosure Schedule delivered by Hanna to Geon prior to the execution of this
Agreement (the "Hanna Disclosure Schedule"), Hanna hereby represents and
warrants to Geon as follows:
(a) ORGANIZATION, STANDING AND CORPORATE POWER. Each of Hanna and its
subsidiaries is a corporation or other legal entity duly organized, validly
existing and in good standing (with respect to jurisdictions which recognize
such concept) under the laws of the jurisdiction in which it is organized and
has the requisite corporate or other power, as the case may be, and authority to
carry on its business as now being conducted, except, as to subsidiaries, for
those jurisdictions where the failure to be so organized, existing or in good
standing individually or in the aggregate would not have a material adverse
effect on Hanna. Each of Hanna and its subsidiaries is duly qualified or
licensed to do business and is in good standing (with respect to jurisdictions
which recognize such concept) in each jurisdiction in which the nature of its
business or the ownership, leasing or operation of its properties makes such
qualification or licensing necessary, except for those jurisdictions where the
failure to be so qualified or licensed or to be in good standing individually or
in the aggregate would not have a material adverse effect on Hanna. Hanna has
made available to Geon prior to the execution of this Agreement complete and
correct copies of its certificate of incorporation and by-laws, each as amended
to date.
(b) SUBSIDIARIES. All the outstanding shares of capital stock of, or
other equity interests in, each Significant Subsidiary of Hanna (i) have been
validly issued and are fully paid and nonassessable, (ii) are owned directly or
indirectly by Hanna, free and clear of all Liens and (iii) are free of any other
restriction (including any restriction on the right to vote, sell or otherwise
dispose of such capital stock or other ownership interests), except in the case
of clauses (ii) and (iii) for any Liens or restrictions that would not have a
material adverse effect on Hanna.
(c) CAPITAL STRUCTURE. The authorized capital stock of Hanna consists
of (i) 100,000,000 shares of Hanna Common Stock and (ii) 5,000,000 shares of
Cumulative Series A Preferred Stock, without par value ("Hanna Authorized
Preferred Stock"). At the close of business on May 5, 2000 (the "Hanna
Measurement Date"): (i) 66,212,836 shares of Hanna Common Stock were issued and
outstanding; (ii) 17,733,532 shares of Hanna Common Stock in the aggregate were
held by Hanna in its treasury; (iii) no shares of Hanna Preferred Stock were
issued and outstanding; and (iv) 3,998,995 shares of Hanna Common Stock were
reserved for issuance pursuant to the plans set forth in Section 3.2(c)(iv) of
the Hanna Disclosure Schedule (collectively, the "Hanna Stock Plans"), of which
3,998,995 shares are subject to outstanding employee stock options or other
rights to purchase or receive Hanna Common Stock granted under the Hanna Stock
Plans (collectively, "Hanna Employee Stock Options"). All outstanding shares of
capital stock of Hanna are, and all shares which may be issued will be, when
issued, duly authorized, validly issued, fully paid and nonassessable and not
subject to preemptive rights. Except (i) as set forth in this Section 3.2(c),
(ii) for changes since the Hanna Measurement Date resulting from the issuance of
shares of Hanna Common Stock pursuant to the Hanna Employee Stock Options, (iii)
with respect to the Associates Ownership Trust, (iv) for outstanding rights
issued pursuant to the Hanna Rights Agreement,
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and (v) as permitted by Section 4.1(b)(ii), (x) there are not issued, reserved
for issuance or outstanding (A) any shares of capital stock or other voting
securities of Hanna, (B) any securities of Hanna convertible into or
exchangeable or exercisable for shares of capital stock or voting securities of
Hanna or (C) any warrants, calls, options or other rights to acquire from Hanna
or any Hanna subsidiary, and no obligation of Hanna or any Hanna subsidiary to
issue, any capital stock, voting securities or securities convertible into or
exchangeable or exercisable for capital stock or voting securities of Hanna and
(y) there are no outstanding obligations of Hanna or any Hanna subsidiary to
repurchase, redeem or otherwise acquire any such securities or, other than
agreements entered into with respect to the Hanna Stock Plans in effect as of
the close of business on the Hanna Measurement Date, to issue, deliver or sell,
or cause to be issued, delivered or sold, any such securities. Neither Hanna nor
any Hanna subsidiary is a party to any voting agreement with respect to the
voting of any such securities. Section 3.2(c) of the Hanna Disclosure Schedule
provides a summary of the number of Hanna Employee Stock Options and each award
(including restricted stock, deferred stock and performance shares) outstanding
under the Hanna Stock Plans (each, an "Hanna Award") as of the close of business
on the Hanna Measurement Date. There are no outstanding (A) securities of Hanna
or any Hanna subsidiary convertible into or exchangeable or exercisable for
shares of capital stock or other voting securities or ownership interests in any
Hanna subsidiary, (B) warrants, calls, options or other rights to acquire from
Hanna or any Hanna subsidiary, and no obligation of Hanna or any Hanna
subsidiary to issue, any capital stock, voting securities or other ownership
interests in, or any securities convertible into or exchangeable or exercisable
for any capital stock, voting securities or ownership interests in, any Hanna
subsidiary or (C) obligations of Hanna or any Hanna subsidiary to repurchase,
redeem or otherwise acquire any such outstanding securities of Hanna
subsidiaries or to issue, deliver or sell, or cause to be issued, delivered or
sold, any such securities.
(d) AUTHORITY; NONCONTRAVENTION. Hanna has all requisite corporate
power and authority to enter into this Agreement and, subject to the Hanna
Stockholder Approval, to consummate the transactions contemplated by this
Agreement. The execution and delivery of this Agreement by Hanna and the
consummation by Hanna of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Hanna, subject to
the Hanna Stockholder Approval. This Agreement has been duly executed and
delivered by Hanna and, assuming the due authorization, execution and delivery
by Geon, constitutes a legal, valid and binding obligation of Hanna, enforceable
against Hanna in accordance with its terms. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated by
this Agreement and compliance with the provisions of this Agreement will not,
conflict with, or result in any violation of, or constitute a default (with or
without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or loss of a benefit
under, or result in the creation of any Lien upon any of the properties or
assets of Hanna or any of its subsidiaries under, (i) the certificate of
incorporation or by-laws of Hanna or the comparable organizational documents of
any of its subsidiaries, (ii) any loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit, concession,
franchise, license or similar authorization applicable to Hanna or any of its
subsidiaries or their respective properties or assets or (iii) subject to the
governmental filings and other matters referred to in the following sentence,
any judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to Hanna or any of its subsidiaries or their respective properties or
assets, other than, in the case of clauses (ii) and (iii), any such conflicts,
violations, defaults, rights, losses or Liens that individually or in the
aggregate would not have a material adverse effect on Hanna. No consent,
approval, order or authorization of, action by, or in respect of, or
registration, declaration or filing with, any Governmental Entity is required by
Hanna or any of its subsidiaries
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in connection with the execution and delivery of this Agreement by Hanna or the
consummation by Hanna of the transactions contemplated hereby, except for: (1)
the filing with the SEC of (A) the Joint Proxy Statement relating to the Hanna
Stockholders Meeting and (B) such reports under Section 13(a), 13(d), 15(d) or
16(a) of the Exchange Act as may be required in connection with this Agreement
and the transactions contemplated hereby; (2) the filing and declaration of
effectiveness by the SEC of the Form S-4, (3) the filing of the Delaware
Certificate of Consolidation with the Secretary of State of the State of
Delaware and the Ohio Certificate of Consolidation with the Secretary of State
of the State of Ohio and appropriate documents with the relevant authorities of
other states in which Hanna is qualified to do business and such filings with
Governmental Entities to satisfy the applicable requirements of state securities
or "blue sky" laws; (4) such filings and approvals of the NYSE to permit
Resulting Corporation Shares that are to be issued in the Consolidation and
under the Hanna Stock Plans and Geon Stock Plans to be listed on the NYSE, (5)
the filing of a premerger notification and report form by Hanna under the HSR
Act; (6) such filing, consents, approvals, orders or authorizations required to
be made or obtained pursuant to Foreign Antitrust Laws; (7) the filing under the
Pension Benefit Guaranty Corporation of any notice required under ERISA Section
4043; and (8) such consents, approvals, orders or authorizations the failure of
which to be made or obtained individually or in the aggregate would not have a
material adverse effect on Hanna.
(e) REPORTS; UNDISCLOSED LIABILITIES. Hanna has filed all required
reports, schedules, forms, statements and other documents (including exhibits
and all other information incorporated therein) with the SEC since January 1,
1997 (the "Hanna SEC Documents"). As of their respective dates, the Hanna SEC
Documents complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and the rules and
regulations of the SEC promulgated thereunder applicable to such Hanna SEC
Documents, and none of the Hanna SEC Documents when filed contained any 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 therein, in light of
the circumstances under which they were made, not misleading. Except to the
extent that information contained in any Hanna SEC Document has been revised or
superseded by a later filed Hanna Filed SEC Document, none of the Hanna SEC
Documents contains any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The financial statements of Hanna included in the Hanna SEC
Documents comply as to form, as of their respective dates of filing with the
SEC, in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with generally accepted accounting principles (except, in
the case of unaudited statements, as permitted by Form 10-Q of the SEC) applied
on a consistent basis during the periods involved (except as may be indicated in
the notes thereto) and fairly present in all material respects the consolidated
financial position of Hanna and its consolidated subsidiaries as of the dates
thereof and the consolidated statements of income, stockholders' equity and cash
flows for the periods then ended (subject, in the case of unaudited statements,
to normal recurring year-end audit adjustments). Except (A) as reflected in such
financial statements or in the notes thereto, (B) for liabilities incurred in
the ordinary course of business consistent with past practices or (C) for
liabilities incurred in connection with this Agreement or the transactions
contemplated hereby, neither Hanna nor any of its subsidiaries has any
liabilities or obligations of any nature which, individually or in the
aggregate, would have a material adverse effect on Hanna.
(f) INFORMATION SUPPLIED. None of the information supplied or to be
supplied by Hanna specifically for inclusion or incorporation by reference in
(i) the Form S-4 will, at the
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time the Form S-4 becomes effective under the Securities Act, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading or
(ii) the Joint Proxy Statement will, at the date it is first mailed to Hanna's
stockholders or at the time of the Hanna Stockholders Meeting, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading. The Form
S-4 and the Joint Proxy Statement will comply as to form in all material
respects with the requirements of the Securities Act and the Exchange Act,
respectively, and the rules and regulations thereunder, except that no
representation or warranty is made by Hanna with respect to statements made or
incorporated by reference therein based on information supplied by Geon
specifically for inclusion or incorporation by reference in the Form S-4 or the
Joint Proxy Statement.
(g) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except for liabilities
incurred in connection with this Agreement or the transactions contemplated
hereby, since December 31, 1999, Hanna and its subsidiaries have conducted their
business only in the ordinary course or as disclosed in any Hanna Filed SEC
Document, and there has not been (1) any material adverse effect on Hanna or (2)
any action taken that if taken after the date of the Agreement would be or
result in a violation of Section 4.1(b).
(h) COMPLIANCE WITH APPLICABLE LAWS; LITIGATION. Hanna, its
subsidiaries and employees hold all permits, licenses, variances, exemptions,
orders, registrations and approvals of all Governmental Entities that are
required for the operation of the businesses of Hanna and its subsidiaries
(collectively, the "Hanna Permits") except where the failure to have any such
Hanna Permits individually or in the aggregate would not have a material adverse
effect on Hanna. Hanna and its subsidiaries are in compliance with the terms of
the Hanna Permits and all applicable statutes, laws, ordinances, rules and
regulations, except where the failure so to comply individually or in the
aggregate would not have a material adverse effect on Hanna. As of the date of
this Agreement, no action, demand, requirement or investigation by any
Governmental Entity and no suit, action or proceeding by any person, in each
case with respect to Hanna or any of its subsidiaries or any of their respective
properties, is pending or, to the knowledge of Hanna, threatened, other than, in
each case, those the outcome of which individually or in the aggregate would not
reasonably be expected to have a material adverse effect on Hanna.
(i) ABSENCE OF CHANGES IN BENEFIT PLANS. Since December 31, 1999, there
has not been any adoption or amendment in any material respect by Hanna or any
of its subsidiaries of any collective bargaining agreement or any material
bonus, pension (within the meaning of Section 3(2) of ERISA), profit sharing,
deferred compensation, incentive compensation, stock ownership, stock purchase,
stock option, phantom stock, equity-based, retirement, vacation, severance,
disability, death benefit, hospitalization, medical, life, severance, welfare
(within the meaning of Section 3(1) of ERISA) or other plan, arrangement or
understanding providing benefits to any current or former employee, officer,
consultant or director of Hanna or any of its subsidiaries (collectively, the
"Hanna Benefit Plans"), or any material change in any actuarial or other
assumption used to calculate funding obligations with respect to any Hanna
Benefit Plans, or any change in the manner in which contributions to any Hanna
Benefit Plans are made or the basis on which such contributions are determined.
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(j) ERISA COMPLIANCE.
(i) With respect to the Hanna Benefit Plans, no event has
occurred and, to the knowledge of Hanna, there exists no condition or
set of circumstances, in connection with which Hanna or any of its
subsidiaries could be subject to any liability that individually or in
the aggregate would have a material adverse effect on Hanna under
ERISA, the Code or any other applicable law.
(ii) Each Hanna Benefit Plan has been administered in
accordance with its terms, all applicable laws, including ERISA and the
Code, and the terms of all applicable collective bargaining agreements,
except for any failures so to administer any Hanna Benefit Plan that
individually or in the aggregate would not reasonably be expected to
have a material adverse effect on Hanna. Hanna, its subsidiaries and
all the Hanna Benefit Plans are in compliance with the applicable
provisions of ERISA, the Code and all other applicable laws and the
terms of all applicable collective bargaining agreements, except for
any failures to be in such compliance that individually or in the
aggregate would not reasonably be expected to have a material adverse
effect on Hanna. Each Hanna Benefit Plan that is intended to be
qualified under Section 401(a) of the Code has received a favorable
determination letter from the IRS that it is so qualified. To the
knowledge of Hanna, no event has occurred since the date of any
determination letter from the IRS that is reasonably likely to affect
adversely the qualified status of any such Hanna Benefit Plan, except
for any occurrence that individually or in the aggregate would not
reasonably be expected to have a material adverse effect on Hanna, and
to the knowledge of Hanna, all contributions to, and payments from,
such Hanna Benefit Plans that are required to be made in accordance
with such plans, ERISA or the Code have been timely made other than any
failures that individually or in the aggregate would not reasonably be
expected to have a material adverse effect on Hanna.
(iii) Except to the extent any of the following either
individually or in the aggregate would not reasonably be expected to
have a material adverse effect on Hanna, (x) neither Hanna nor any
ERISA Affiliate of Hanna, which together with Hanna would be deemed to
be a single employer within the meaning of Section 4001(b) of ERISA,
has incurred any liability under Title IV of ERISA and no condition
exists that presents a risk to Hanna or any ERISA Affiliate of Hanna of
incurring any such liability (other than liability for benefits or
premiums to the Pension Benefit Guaranty Corporation arising in the
ordinary course), (y) no Hanna Benefit Plan has incurred an
"accumulated funding deficiency" (within the meaning of Section 302 of
ERISA or Section 412 of the Code) whether or not waived and (z) to the
knowledge of Hanna, there are not any facts or circumstances that would
materially change the funded status of any Hanna Benefit Plan that is a
"defined benefit" plan (as defined in Section 3(35) of ERISA) since the
date of the most recent actuarial report for such plan. No Hanna
Benefit Plan is a multiemployer plan within the meaning of Section
3(37) of ERISA and no liability has been incurred by the Hanna and its
ERISA Affiliates under such a plan, except for any such liability that
would not reasonably be expected to have a material adverse effect on
Geon.
(iv) Neither Hanna nor any of its subsidiaries is a party to
any collective bargaining or other labor union contract applicable to
persons employed by Hanna or any of its subsidiaries and no collective
bargaining agreement is being negotiated by Hanna or any of its
subsidiaries, in each case that is material to Hanna and its
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subsidiaries taken as a whole. As of the date of this Agreement, there
is no labor dispute, strike or work stoppage against Hanna or any of
its subsidiaries pending or, to the knowledge of Hanna, threatened
which may interfere with the respective business activities of Hanna or
any of its subsidiaries, except where such dispute, strike or work
stoppage individually or in the aggregate would not reasonably be
expected to have a material adverse effect on Hanna. As of the date of
this Agreement, to the knowledge of Hanna, none of Hanna, any of its
subsidiaries or any of their respective representatives or employees
has committed any unfair labor practice in connection with the
operation of the respective businesses of Hanna or any of its
subsidiaries, and there is no charge or complaint against Hanna or any
of its subsidiaries by the National Labor Relations Board or any
comparable governmental agency pending or threatened in writing, except
for any occurrence that individually or in the aggregate would not
reasonably be expected to have a material adverse effect on Hanna.
(v) No Hanna Benefit Plan provides medical benefits (whether
or not insured) with respect to current or former employees after
retirement or other termination of service the cost of which is
material to Hanna and its subsidiaries taken as a whole.
(vi) The consummation of the transactions contemplated by this
Agreement will not, either alone or in combination with another event,
(A) entitle any current or former employee, officer or director of
Hanna or any ERISA Affiliate of Hanna to severance pay, unemployment
compensation or any other payment, except as expressly provided in this
Agreement, (B) accelerate the time of payment or vesting, or increase
the amount of compensation due any such employee, officer or director
or (C) constitute a "change of control" under any Hanna Benefit Plan.
(vii) With respect to each Hanna Benefit Plan: (x) no actions,
suits, claims or disputes are pending or, to the knowledge of Hanna,
threatened, other than claims for benefits made in accordance with the
terms of such Hanna Benefit Plan, except for such actions, suits,
claims or disputes that individually or in the aggregate would not
reasonably be expected to have a material adverse effect on Hanna; (y)
no audits are pending with any governmental or regulatory agency and to
the knowledge of Hanna there are no facts which could give rise to any
liability in the event of such an audit that either individually or in
the aggregate would have a material adverse effect on Hanna; and (z) to
the knowledge of Hanna, all reports and returns required to be filed
with any governmental agency or distributed to any participant in any
Hanna Benefit Plan have been so duly filed or distributed other than
any failure to file or distribute such reports or returns that that
individually or in the aggregate would not reasonably be expected to
have a material adverse effect on Hanna.
(viii) Hanna has not incurred any liability under Code Section
4975, and no fact exists which could result in a liability to Hanna
under Code Section 4975 that would reasonably be expected to have a
material adverse effect on Hanna.
(k) TAXES.
(i) Each of Hanna and its subsidiaries has filed all material
tax returns and reports required to be filed by it, or requests for
extensions to file such returns or reports have been timely filed,
granted and have not expired, and all such returns and reports so filed
are complete and correct in all material respects, except to the extent
that such failures to file, to have extensions granted that remain in
effect or to be materially
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complete or correct individually or in the aggregate would not have a
material adverse effect on Hanna. Hanna and each of its subsidiaries
has paid (or Hanna has paid on its behalf) all taxes shown as due on
such returns and reports. Except as would not have a material adverse
effect on Hanna, the most recent financial statements contained in the
Hanna Filed SEC Documents reflect, and the financial statements
contained in the Hanna SEC Documents filed after the date of this
Agreement will reflect, an adequate reserve for all taxes due and owing
by Hanna and its subsidiaries for all taxable periods and portions
thereof through the dates of such financial statements that remain
unpaid as of those dates, which reserve was, and will be, computed in a
manner consistent with Hanna's past practice.
(ii) No deficiencies for any taxes have been proposed,
asserted or assessed against Hanna or any of its subsidiaries that have
not been paid or adequately reserved for, except for deficiencies that
individually or in the aggregate would not have a material adverse
effect on Hanna.
(iii) Neither Hanna nor any of its subsidiaries has taken any
action or knows of any fact, agreement, plan or other circumstance that
is reasonably likely to prevent the Consolidation from qualifying as a
reorganization within the meaning of Section 368(a)(1)(A) of the Code.
(iv) To the knowledge of Hanna, no stockholder of Hanna has
entered into any plan or arrangement or taken any action with respect
to Resulting Corporation Shares that such stockholder will receive upon
completion of the Consolidation which would cause such stockholder to
fail to satisfy the continuity of interest requirement applicable to a
Section 368(a)(1)(A) reorganization.
(v) Hanna will not be required to recognize any material
amount of taxable income for United States federal income tax purposes
as a result of the application of the provisions of Section 1.1502-1 et
seq. of the Treasury Regulations under the Code to Hanna and its
subsidiaries as a consequence of the termination of the Hanna
"affiliated group," as such term is defined in Section 1504(a) of the
Code, upon completion of the Consolidation.
(l) CERTAIN CONTRACTS. Except as permitted pursuant to Section 4.1(b),
neither Hanna nor any of its subsidiaries is a party to or bound by (i) any
agreement relating to the incurring of indebtedness (including sale and
leaseback and capitalized lease transactions and other similar financing
transactions but excluding commercial paper) providing for payment or repayment
in excess of $100.0 million, (ii) any material contract or (iii) any
non-competition agreement or any other agreement or obligation which purports to
limit in any material respect the manner in which, or the localities in which,
all or any substantial portion of the business of Hanna and its subsidiaries,
taken as a whole, or, after the Effective Time, the business of Geon and its
subsidiaries, taken as a whole, is or would be conducted.
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(m) ENVIRONMENTAL MATTERS.
(i) Prior to the date of this Agreement, neither Hanna nor any
of its subsidiaries has received any communication (written or oral),
whether from a Governmental Entity, citizens' group, employee or
otherwise, alleging that Hanna or any of its subsidiaries is not in
compliance with applicable Environmental Laws, other than those
instances of noncompliance that individually or in the aggregate would
not reasonably be expected to have a material adverse effect on Hanna.
(ii) There is no Environmental Claim pending or, to the
knowledge of Hanna, threatened, against Hanna or any of its
subsidiaries or, to the knowledge of Hanna, against any person whose
liability for any Environmental Claim Hanna or any of its subsidiaries
has or may have retained or assumed either contractually or by
operation of law, other than those Environmental Claims that
individually or in the aggregate would not reasonably be expected to
have a material adverse effect on Hanna.
(iii) There are no present or, to the knowledge of Hanna, past
actions, activities, circumstances, conditions, events or incidents,
including, without limitation, the Release or presence of any Hazardous
Material at any property, that could reasonably be expected to result
in liability under any Environmental Law for Hanna or any of its
subsidiaries or, to the knowledge of Hanna, for any person whose
liability for any Environmental Claim Hanna or any of its subsidiaries
has or may have retained or assumed either contractually or by
operation of law, other than those liabilities that individually or in
the aggregate would not reasonably be expected to have a material
adverse effect on Hanna.
(n) INTELLECTUAL PROPERTY. Hanna and its subsidiaries own or have a
binding, enforceable right to use all material letters patent, patent
applications, trade names, brand names, trademarks, service marks, trademark and
service mark registrations and applications, copyright registrations and
applications, both domestic and foreign, presently owned, possessed, used or
held by Hanna and its subsidiaries (the "Hanna Intellectual Property"). To the
knowledge of Hanna, neither the conduct of Hanna's or any of its subsidiaries'
business nor any of the products sold or services provided by Hanna or any of
its subsidiaries in connection therewith (other than those infringements or
violations of rights which individually or in the aggregate would not reasonably
be expected to have a material adverse effect on Hanna) infringes upon or is
inconsistent with the intellectual property rights of any other person. To the
knowledge of Hanna, neither the conduct of any other person's business, nor the
nature of any of the products it sells or services it provides, infringes upon
or is inconsistent with any Hanna Intellectual Property, other than those
infringements or violations of rights which individually or in the aggregate
would not reasonably be expected to have a material adverse effect on Hanna.
(o) PRODUCTS LIABILITY CLAIMS. There are no product liability claims or
causes of action pending or, to the knowledge of Hanna, threatened alleging
personal injury or property damage from products or materials sold by Hanna or
its subsidiaries that, individually or in the aggregate, would reasonably be
expected to have a material adverse effect on Hanna.
(p) VOTING REQUIREMENTS. The affirmative vote of the holders of a
majority of the voting power of all outstanding shares of Hanna Common Stock at
the Hanna Stockholders Meeting is the only vote of the holders of any class or
series of Hanna's capital stock necessary to adopt this Agreement and approve
the Consolidation and the other transactions contemplated hereby (the "Hanna
Stockholder Approval"). The Board of Directors of Hanna has
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duly and validly approved and taken all corporate action required to be taken by
the Hanna Board of Directors for the consummation of the transactions
contemplated by this Agreement and, as of the date of this Agreement, has
recommended that Hanna's stockholders adopt this Agreement and approve the
Consolidation and the other transactions contemplated hereby.
(q) STATE TAKEOVER STATUTES. The Board of Directors of Hanna has taken
all necessary action so that no Takeover Statute (including the interested
stockholder provisions codified in Section 203 of the DGCL) or any applicable
anti-takeover provision in the Hanna's certificate of incorporation or by-laws
is applicable to the Consolidation and the other transactions contemplated by
this Agreement. To the knowledge of Hanna, no other state takeover statute is
applicable to the Consolidation or the other transactions contemplated by this
Agreement.
(r) RIGHTS AGREEMENT. The Rights Agreement, dated as of December 4,
1991, by and between Hanna and First Chicago Trust Company of New York (f/k/a
Ameritrust Company National Association), as rights agent (the "Hanna Rights
Agreement"), has been amended to (i) render the Hanna Rights Agreement
inapplicable to the Consolidation and the other transactions contemplated by
this Agreement and (ii) ensure that (x) none of Consolidation Corp., Geon or its
wholly owned subsidiaries is an Acquiring Person (as defined in the Hanna Rights
Agreement), (y) a Distribution Date, a Triggering Event or a Share Acquisition
Date (as such terms are defined in the Hanna Rights Agreement) does not occur
solely by reason of the execution of this Agreement, the consummation of the
Consolidation, or the consummation of the other transactions contemplated by
this Agreement and (z) it will expire or otherwise terminate immediately prior
to the Effective Time.
(s) OWNERSHIP OF GEON CAPITAL STOCK. Except for shares owned by Hanna
Benefit Plans or shares held or managed for the account of another person or as
to which Hanna is required to act as a fiduciary or in a similar capacity, as of
the date hereof, neither Hanna nor, to its knowledge without independent
investigation, any of its affiliates (i) beneficially owns (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, or (ii) is party to any
agreement, arrangement or understanding for the purpose of acquiring, holding,
voting or disposing of, in each case, more than 1% of the outstanding shares of
capital stock of Geon.
(t) OPINION OF FINANCIAL ADVISOR. The Board of Directors of Hanna has
received the opinion of Salomon Smith Barney Inc., dated the date of this
Agreement, to the effect that, as of such date, the Hanna Exchange Ratio for the
conversion of Hanna Common Stock into Resulting Corporation Shares pursuant to
the Consolidation is fair from a financial point of view to holders of shares of
Hanna Common Stock, a signed copy of which opinion will be made available to
Geon promptly after the date hereof.
(u) BROKERS. Except for Salomon Smith Barney Inc., no broker,
investment banker, financial advisor or other person is entitled to any
broker's, finder's, financial advisor's or other similar fee or commission in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of Hanna.
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ARTICLE 4.
COVENANTS RELATING TO CONDUCT OF BUSINESS
Section 4.1. CONDUCT OF BUSINESS.
(a) CONDUCT OF BUSINESS BY GEON. Except as set forth in Section 4.1(a)
of the Geon Disclosure Schedule, as otherwise expressly contemplated by this
Agreement or as consented to by Hanna, such consent not to be unreasonably
withheld or delayed, during the period from the date of this Agreement to the
Effective Time, Geon shall, and shall cause its subsidiaries to, carry on their
respective businesses in the ordinary course consistent with past practice and
in compliance in all material respects with all applicable laws and regulations
and, to the extent consistent therewith, use all reasonable best efforts to
preserve intact their current business organizations (other than internal
organizational realignments), use all reasonable best efforts to keep available
the services of their current officers and other key employees and preserve
their relationships with those persons having business dealings with them to the
end that their goodwill and ongoing businesses shall be unimpaired at the
Effective Time. Without limiting the generality of the foregoing (but subject to
the above exceptions), during the period from the date of this Agreement to the
Effective Time, Geon shall not, and shall not permit any of its subsidiaries to:
(i) (x) other than dividends and distributions by a direct or
indirect wholly owned subsidiary of Geon to its parent, or by a
subsidiary that is partially owned by Geon or any of its subsidiaries
if Geon or any such subsidiary receives or is to receive its
proportionate share thereof, and other than the regular quarterly cash
dividends with respect to the Geon Common Stock, declare, set aside or
pay any dividends on, or make any other distributions in respect of,
any of its capital stock, (y) split, combine or reclassify any of its
capital stock or issue or authorize the issuance of any other
securities in respect of, in lieu of or in substitution for shares of
its capital stock, except for issuances of the Geon Common Stock upon
the exercise of the Geon Employee Stock Options under the Geon Stock
Plans or in connection with other awards under the Geon Stock Plans, in
each case, outstanding as of the Geon Measurement Date and in
accordance with their present terms or issued pursuant to Section
4.1(a)(ii) or (z) except pursuant to agreements entered into with
respect to the Geon Stock Plans that are in effect as of the close of
business on the Geon Measurement Date, purchase, redeem or otherwise
acquire any shares of capital stock of Geon or any of its subsidiaries
or any other securities thereof or any rights, warrants or options to
acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber or
subject to any Lien any shares of its capital stock, any other voting
securities or any securities convertible into, or any rights, warrants
or options to acquire, any such shares, voting securities or
convertible securities, other than (x) the issuance of shares of Geon
Common Stock permitted by Section 4.1(a)(vii) and (y) the issuance of
Geon Common Stock or options to purchase shares of Geon Common Stock
upon the exercise of Geon Employee Stock Options or in connection with
other awards under the Geon Stock Plans outstanding as of the Geon
Measurement Date and in accordance with their present terms or, after
consulting with Hanna, granted after the date hereof so long as the
amount of Geon Common Stock subject to Geon Employee Stock Options
and/or other awards under the
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Geon Stock Plans granted after the Geon Measurement Date do not exceed
5,000 shares of Geon Common Stock in the aggregate;
(iii) incur any long-term indebtedness (whether evidenced by a
note or other instrument, pursuant to a financing lease, sale-leaseback
transaction, or otherwise) in excess of $25 million or incur short-term
indebtedness other than under lines of credit existing on the date
hereof;
(iv) satisfy any claims or liabilities other than the
satisfaction in the ordinary course of business consistent with past
practice and in accordance with their terms or in an amount not to
exceed $5 million in the aggregate;
(v) other than in the ordinary course of business consistent
with past practice, modify, amend or terminate any material contract;
(vi) amend its certificate of incorporation, by-laws or other
comparable organizational documents, or, in the case of Geon, merge or
consolidate with any person;
(vii) acquire or agree to acquire by merging or consolidating
with, or by purchasing a substantial portion of the assets of, or by
any other manner, any business or any person, except for such
acquisitions for which the aggregate consideration (including
indebtedness directly or indirectly assumed) is not more than $25
million;
(viii) sell, lease, license, mortgage or otherwise encumber or
subject to any Lien or otherwise dispose of any of its properties or
assets, other than (x) in the ordinary course of business consistent
with past practice or (y) for an aggregate consideration (including
indebtedness directly or indirectly assumed) in excess of $25 million;
(ix) (A) grant any key employee of Geon or its subsidiaries
any increase in compensation, bonus or other benefits, except for
normal increases in the ordinary course of business consistent with
past practice or as required under any employment agreements in effect
as of the date of the most recent audited financial statements included
in the Geon Filed SEC Documents, (B) grant any current or former
director or executive officer of Geon or its subsidiaries any increase
in compensation, bonus or other benefits except as required under any
employment agreements in effect as of the date of the most recent
audited financial statements included in the Geon Filed SEC Documents,
(C) grant to any such current or former director, executive officer or
key employee any increase in severance or termination pay or (D) enter
into or amend any employment, deferred compensation, consulting,
severance, termination or indemnification agreement with any such
current or former director, executive officer or key employee, other
than in the ordinary course of business consistent with past practice;
(x) except insofar as may be required by a change in generally
accepted accounting principles, change the accounting methods,
principles or practices of Geon that materially affect its assets,
liabilities or results of operations;
(xi) make any tax election (including any tax election that
affects any tax attributes of Geon) that individually or in the
aggregate would reasonably be expected to
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have a material adverse effect on Geon or settle or compromise any
material income tax liability;
(xii) except as provided in Section 4.2 (A) amend, modify or
waive any provision of the Geon Rights Agreement or take any action to
redeem the rights issued thereunder or render the rights issued
thereunder inapplicable to a transaction or (B) approve a Geon Takeover
Proposal, other than the Consolidation and the other transactions
contemplated by this Agreement, for purposes of Section 203 of the DGCL
or any applicable anti-takeover provision in Geon's certificate of
incorporation or by-laws, other than to permit another transaction that
the Board of Directors of Geon has determined is a Geon Superior
Proposal;
(xiii) license (other than pursuant to agreements outstanding
as of the date hereof), transfer or otherwise dispose of, or permit to
lapse, any rights in the material Geon Intellectual Property described
in the Geon Filed SEC Documents; or
(xiv) authorize, or commit or agree to take, any of the
foregoing actions;
PROVIDED, HOWEVER, that the limitations set forth in this Section 4.1(a) (other
than clause (vi)) shall not apply to any transaction to which the only parties
are Geon and any wholly owned subsidiary or subsidiaries of Geon.
(b) CONDUCT OF BUSINESS BY HANNA. Except as set forth in Section 4.1(b)
of the Hanna Disclosure Schedule, as otherwise expressly contemplated by this
Agreement or as consented to by Geon, such consent not to be unreasonably
withheld or delayed, during the period from the date of this Agreement to the
Effective Time, Hanna shall, and shall cause its subsidiaries to, carry on their
respective businesses in the ordinary course consistent with past practice and
in compliance in all material respects with all applicable laws and regulations
and, to the extent consistent therewith, use all reasonable best efforts to
preserve intact their current business organizations (other than internal
organizational realignments), use all reasonable best efforts to keep available
the services of their current officers and other key employees and preserve
their relationships with those persons having business dealings with them to the
end that their goodwill and ongoing businesses shall be unimpaired at the
Effective Time. Without limiting the generality of the foregoing (but subject to
the above exceptions), during the period from the date of this Agreement to the
Effective Time, Hanna shall not, and shall not permit any of its subsidiaries
to:
(i) (x) other than dividends and distributions by a direct or
indirect wholly owned subsidiary of Hanna to its parent, or by a
subsidiary that is partially owned by Hanna or any of its subsidiaries
if Hanna or any such subsidiary receives or is to receive its
proportionate share thereof, and other than the regular quarterly cash
dividends with respect to the Hanna Common Stock, declare, set aside or
pay any dividends on, or make any other distributions in respect of,
any of its capital stock, (y) split, combine or reclassify any of its
capital stock or issue or authorize the issuance of any other
securities in respect of, in lieu of or in substitution for shares of
its capital stock, except for issuances of Hanna Common Stock upon the
exercise of the Hanna Employee Stock Options under the Hanna Stock
Plans or in connection with other awards under the Hanna Stock Plans,
in each case, outstanding as of the Hanna Measurement Date, and in
accordance with their present terms or issued pursuant to Section
4.1(b)(ii) or (z) except pursuant to agreements entered into with
respect to the Hanna Stock Plans that are in effect as of the close of
business on the Hanna Measurement Date, purchase,
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redeem or otherwise acquire any shares of capital stock of Hanna or any
of its subsidiaries or any other securities thereof or any rights,
warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber or
subject to any Lien any shares of its capital stock, any other voting
securities or any securities convertible into, or any rights, warrants
or options to acquire, any such shares, voting securities or
convertible securities, other than the issuance of Hanna Common Stock
or the options to purchase shares of Hanna Common Stock upon the
exercise of the Hanna Employee Stock Options or in connection with
other awards under the Hanna Stock Plans outstanding as of the Hanna
Measurement Date and in accordance with their present terms or, after
consulting with Geon, granted after the date hereof so long as the
amount of Hanna Common Stock subject to the Hanna Employee Stock
Options and/or other awards under the Hanna Stock Plans granted after
the Hanna Measurement Date do not exceed 5,000 shares of Hanna Common
Stock in the aggregate;
(iii) incur any long-term indebtedness (whether evidenced by a
note or other instrument, pursuant to a financing lease, sale-leaseback
transaction, or otherwise) in excess of $25 million or incur short-term
indebtedness other than under lines of credit existing on the date
hereof;
(iv) satisfy any claims or liabilities other than the
satisfaction in the ordinary course of business consistent with past
practice and in accordance with their terms or in an amount not to
exceed $5 million in the aggregate;
(v) other than in the ordinary course of business consistent
with past practice, modify, amend or terminate any material contract;
(vi) amend its certificate of incorporation, by-laws or other
comparable organizational documents, or in the case of the Hanna, merge
or consolidate with any person;
(vii) acquire or agree to acquire by merging or consolidating
with, or by purchasing a substantial portion of the assets of, or by
any other manner, any business or any person, except for such
acquisitions for which the aggregate consideration (including
indebtedness directly or indirectly assumed) is less than $25 million;
(viii) sell, lease, license, mortgage or otherwise encumber or
subject to any Lien or otherwise dispose of any of its properties or
assets other than (x) in the ordinary course of business consistent
with past practice or (y) for an aggregate consideration (including
indebtedness directly or indirectly assumed) in excess of $25 million;
(ix) (A) grant any key employee of Hanna or its subsidiaries
any increase in compensation, bonus or other benefits, except for
normal increases in the ordinary course of business consistent with
past practice or as required under any employment agreements in effect
as of the date of the most recent audited financial statements included
in the Hanna Filed SEC Documents, (B) grant any current or former
director or executive of Hanna or its subsidiaries any increase in
compensation, bonus or other benefits except as required under any
employment agreements in effect as of the date of the most recent
audited financial statements included in the Hanna Filed SEC Documents,
(C) grant to any such current or former director, executive officer or
key
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employee any increase in severance or termination pay, or (D) enter
into or amend any employment, deferred compensation, consulting,
severance, termination or indemnification agreement with any such
current or former director, executive officer or key employee, other
than in the ordinary course of business consistent with past practice;
(x) except insofar as may be required by a change in generally
accepted accounting principles, change the accounting methods,
principles or practices of Hanna that materially affect its assets,
liabilities or results of operations;
(xi) make any tax election (including any tax election that
affects any tax attributes of Hanna) that individually or in the
aggregate would reasonably be expected to have a material adverse
effect on Hanna or settle or compromise any material income tax
liability;
(xii) except as provided in Section 4.3, (A) amend, modify or
waive any provision of the Hanna Rights Agreement or take any action to
redeem the rights issued thereunder or render the rights issued
thereunder inapplicable to a transaction or (B) approve an Hanna
Takeover Proposal, other than the Consolidation and the other
transactions contemplated by this Agreement, for purposes of Section
203 of the DGCL or any applicable anti-takeover provision in the
Hanna's certificate of incorporation or by-laws, other than to permit
another transaction that the Board of Directors of Hanna has determined
is an Hanna Superior Proposal;
(xiii) license (other than pursuant to agreements outstanding
as of the date hereof), transfer or otherwise dispose of, or permit to
lapse, any rights in the material Hanna Intellectual Property described
in Hanna Filed SEC Documents; or
(xiv) authorize, or commit or agree to take, any of the
foregoing actions;
PROVIDED, HOWEVER, that the limitations set forth in this Section 4.1(b) (other
than clause (vi)) shall not apply to any transaction to which the only parties
are Hanna and any wholly owned subsidiary or subsidiaries of Hanna.
(c) COORDINATION OF DIVIDENDS. Each of Hanna and Geon shall coordinate
with the other regarding the declaration and payment of dividends in respect of
the Hanna Common Stock and the Geon Common Stock and the record dates and
payment dates relating thereto, it being the intention of Hanna and Geon that
any holder of Geon Common Stock or Hanna Common Stock shall not receive two
dividends, or fail to receive one dividend, for any single calendar quarter with
respect to its shares of the Geon Common Stock and/or shares of Hanna Common
Stock, including Resulting Corporation Shares that a holder receives in exchange
for shares of Hanna Common Stock or Geon Common Stock pursuant to the
Consolidation.
(d) OTHER ACTIONS. Except as required by law, Geon and Hanna shall not,
and shall not permit any of their respective subsidiaries to, voluntarily take
any action that would reasonably be expected to result in any of the conditions
to the Consolidation set forth in Article 6 not being satisfied.
(e) ADVICE OF CHANGES. Geon and Hanna shall promptly advise the other
party orally and in writing to the extent it has knowledge of any change or
event having, or
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which, insofar as can reasonably be foreseen, would reasonably be expected to
have, a material adverse effect on such party or on the truth of their
respective representations and warranties or the ability of the conditions set
forth in Article 6 to be satisfied; PROVIDED, HOWEVER, that no such notification
shall affect the representations, warranties, covenants or agreements of the
parties (or remedies with respect thereto) or the conditions to the obligations
of the parties under this Agreement.
(f) CONTROL OF OTHER PARTY'S BUSINESS. Nothing contained in this
Agreement gives Hanna, directly or indirectly, the right to control or direct
Geon's operations prior to the Effective Time. Nothing contained in this
Agreement gives Geon, directly or indirectly, the right to control or direct
Hanna's operations prior to the Effective Time. Prior to the Effective Time,
each of Hanna and Geon shall exercise, consistent with the terms and conditions
of this Agreement, complete control and supervision over its respective
operations.
Section 4.2. NO SOLICITATION BY GEON.
(a) Geon shall not, nor shall it permit any of its subsidiaries to, nor
shall it authorize or permit any of its directors, officers or employees or any
investment banker, financial advisor, attorney, accountant or other
representative retained by it or any of its subsidiaries to, directly or
indirectly through another person, (i) solicit, initiate or encourage (including
by way of furnishing information), or take any other action designed to
facilitate, any inquiries or the making of any proposal which constitutes any
Geon Takeover Proposal or (ii) participate in any discussions or negotiations
regarding any Geon Takeover Proposal; PROVIDED, HOWEVER, that, if at any time,
the Board of Directors of Geon determines in good faith, after consultation with
outside counsel, that it is necessary to do so in order to act in a manner
consistent with its fiduciary duties to Geon's stockholders under applicable
law, Geon may, in response to a Geon Superior Proposal which was not solicited
by it or which did not otherwise result from a breach of this Section 4.2(a) and
subject to providing prior written notice of its decision to take such action to
Hanna and compliance with Section 4.2(c), (x) furnish information with respect
to Geon and its subsidiaries to any person making a Geon Superior Proposal
pursuant to a customary confidentiality agreement (as determined by Geon after
consultation with its outside counsel) that is no less restrictive than the
Confidentiality Agreement (other than the standstill provisions contained
therein) and (y) participate in discussions or negotiations regarding such Geon
Superior Proposal. For purposes of this Agreement, "Geon Takeover Proposal"
means any inquiry, proposal or offer from any person relating to any (w) direct
or indirect acquisition or purchase of a business that constitutes 15% or more
of the net revenues, net income or the assets of Geon and its subsidiaries,
taken as a whole, (x) direct or indirect acquisition or purchase of 15% or more
of any class of equity securities of Geon or of 15% or more of any class of
equity securities of any of its subsidiaries whose business constitutes 15% or
more of the net revenues, net income or assets of Geon and its subsidiaries,
taken as a whole, (y) tender offer or exchange offer that if consummated would
result in any person beneficially owning 15% or more of any class of equity
securities of Geon or any of its subsidiaries whose business constitutes 15% or
more of the net revenues, net income or assets of Geon and its subsidiaries,
taken as a whole, or (z) merger, consolidation, business combination,
recapitalization, liquidation, dissolution or similar transaction involving Geon
or any of its subsidiaries whose business constitutes 15% or more of the net
revenues, net income or assets of Geon and its subsidiaries, taken as a whole,
other than the transactions contemplated by this Agreement.
(b) Except as expressly permitted by this Section 4.2 or Section 5.1,
neither the Board of Directors of Geon nor any committee thereof shall (i)
withdraw or modify, or
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propose publicly to withdraw or modify, in a manner adverse to Hanna, the
approval or recommendation by such Board of Directors or such committee of this
Agreement, the Consolidation or the transactions contemplated hereby, (ii)
approve or recommend, or propose publicly to approve or recommend, any Geon
Takeover Proposal or (iii) cause Geon to enter into any letter of intent,
agreement in principle, acquisition agreement or other similar agreement (each,
a "Geon Acquisition Agreement") related to any Geon Takeover Proposal.
Notwithstanding the foregoing, in the event that the Board of Directors of Geon
determines in good faith, after consultation with outside counsel, that in light
of a Geon Superior Proposal it is necessary to do so in order to act in a manner
consistent with its fiduciary duties to Geon's stockholders under applicable
law, the Board of Directors of Geon may (subject to this and the following
sentences) terminate this Agreement in order to concurrently enter into such
Geon Acquisition Agreement with respect to a Geon Superior Proposal; PROVIDED,
HOWEVER, that Geon may not terminate this Agreement pursuant to this Section
4.2(b) unless and until (i) three business days have elapsed following the
delivery to Hanna of a written notice of such determination by the Board of
Directors of Geon and (x) Geon has delivered to Hanna the written notice
required by Section 4.2(c) below and (y) during such three business day period,
Geon otherwise cooperates with Hanna with respect to the Geon Takeover Proposal
that constitutes a Geon Superior Proposal with the intent of enabling Hanna to
engage in good faith negotiations to make such adjustments in the terms and
conditions of the Consolidation as would enable Hanna to proceed with the
Consolidation on such adjusted terms, (ii) at the end of such three business day
period the Board of Directors of Geon continues reasonably to believe that the
Geon Takeover Proposal constitutes a Geon Superior Proposal and (iii) Geon pays
the Geon Termination Fee as provided in Section 5.8. For purposes of this
Agreement, a "Geon Superior Proposal" means any proposal made by a third party
to acquire, directly or indirectly, including pursuant to a tender offer,
exchange offer, merger, consolidation, business combination, recapitalization,
liquidation, dissolution or similar transaction, for consideration consisting of
cash and/or securities, more than 66 2/3% of the combined voting power of the
shares of Geon Common Stock then outstanding or all or substantially all the
assets of Geon and otherwise on terms which the Board of Directors of Geon
determines in its good faith judgment (after consultation with a financial
advisor of nationally recognized reputation) to be more favorable to Geon's
stockholders than the Consolidation (after considering (1) any adjustment to the
terms and conditions of the Consolidation proposal by Hanna in response to a
Geon Takeover Proposal and (2) the Geon Termination Fee) and for which
financing, to the extent required, is then committed or which, in the good faith
judgment of the Board of Directors of Geon, is reasonably capable of being
obtained by such third party.
(c) In addition to the obligations of Geon set forth in paragraphs (a)
and (b) of this Section 4.2, Geon shall immediately advise Hanna orally and in
writing of any request for information or of any Geon Takeover Proposal, the
material terms and conditions of such request or Geon Takeover Proposal and the
identity of the person making such request or Geon Takeover Proposal. Geon will
keep Hanna reasonably informed of the status and details (including amendments
and proposed amendments) of any such request or Geon Takeover Proposal.
(d) Nothing contained in this Section 4.2 shall prohibit Geon from
taking and disclosing to its stockholders a position contemplated by Rule
14e-2(a) promulgated under the Exchange Act or from making any disclosure to
Geon's stockholders if, in the good faith judgment of the Board of Directors of
Geon, after consultation with outside counsel, failure so to disclose would be
inconsistent with its obligations under applicable law; PROVIDED, HOWEVER, that,
except as expressly permitted by paragraph (b) of this Section 4.2 in connection
with a Geon Superior Proposal, neither Geon nor its Board of Directors nor any
committee thereof shall
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withdraw or modify, or propose publicly to withdraw or modify, its position with
respect to this Agreement, the Consolidation or the transactions contemplated
hereby, or approve or recommend, or propose publicly to approve or recommend, a
Geon Takeover Proposal.
Section 4.3. NO SOLICITATION BY HANNA.
(a) Hanna shall not, nor shall it permit any of its subsidiaries to,
nor shall it authorize or permit any of its directors, officers or employees or
any investment banker, financial advisor, attorney, accountant or other
representative retained by it or any of its subsidiaries to, directly or
indirectly through another person, (i) solicit, initiate or encourage (including
by way of furnishing information), or take any other action designed to
facilitate, any inquiries or the making of any proposal which constitutes any
Hanna Takeover Proposal or (ii) participate in any discussions or negotiations
regarding any Hanna Takeover Proposal; PROVIDED, HOWEVER, that, if at any time,
the Board of Directors of Hanna determines in good faith, after consultation
with outside counsel, that it is necessary to do so in order to act in a manner
consistent with its fiduciary duties to Hanna's stockholders under applicable
law, Hanna may, in response to an Hanna Superior Proposal which was not
solicited by it or which did not otherwise result from a breach of this Section
4.3(a) and subject to providing prior written notice of its decision to take
such action to Geon and compliance with Section 4.3(c), (x) furnish information
with respect to Hanna and its subsidiaries to any person making an Hanna
Superior Proposal pursuant to a customary confidentiality agreement (as
determined by Hanna after consultation with its outside counsel) that is no less
restrictive than the Confidentiality Agreement (other than the standstill
provisions contained therein) and (y) participate in discussions or negotiations
regarding such Hanna Superior Proposal. For purposes of this Agreement, "Hanna
Takeover Proposal" means any inquiry, proposal or offer from any person relating
to any (w) direct or indirect acquisition or purchase of a business that
constitutes 15% or more of the net revenues, net income or the assets of Hanna
and its subsidiaries, taken as a whole, (x) direct or indirect acquisition or
purchase of 15% or more of any class of equity securities of Hanna or of 15% or
more of any class of equity securities of any of its subsidiaries whose business
constitutes 15% or more of the net revenues, net income or assets of Hanna and
its subsidiaries, taken as a whole, (y) tender offer or exchange offer that if
consummated would result in any person beneficially owning 15% or more of any
class of equity securities of Hanna or any of its subsidiaries whose business
constitutes 15% or more of the net revenues, net income or assets of Hanna and
its subsidiaries, taken as a whole, or (z) merger, consolidation, business
combination, recapitalization, liquidation, dissolution or similar transaction
involving Hanna or any of its subsidiaries whose business constitutes 15% or
more of the net revenues, net income or assets of Hanna and its subsidiaries,
taken as a whole, other than the transactions contemplated by this Agreement.
(b) Except as expressly permitted by this Section 4.3 or Section 5.1,
neither the Board of Directors of Hanna nor any committee thereof shall (i)
withdraw or modify, or propose publicly to withdraw or modify, in a manner
adverse to Geon, the approval or recommendation by such Board of Directors or
such committee of this Agreement, the Consolidation or the transactions
contemplated hereby, (ii) approve or recommend, or propose publicly to approve
or recommend, any Hanna Takeover Proposal or (iii) cause Hanna to enter into any
letter of intent, agreement in principle, acquisition agreement or other similar
agreement (each, an "Hanna Acquisition Agreement") related to any Hanna Takeover
Proposal. Notwithstanding the foregoing, in the event that the Board of
Directors of Hanna determines in good faith, after consultation with outside
counsel, that in light of an Hanna Superior Proposal it is necessary to do so in
order to act in a manner consistent with its fiduciary duties to Hanna's
stockholders under applicable law, the Board of Directors of Hanna may (subject
to this and the
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following sentences) terminate this Agreement in order to concurrently enter
into such Hanna Acquisition Agreement with respect to an Hanna Superior
Proposal; PROVIDED, HOWEVER, that Hanna may not terminate this Agreement
pursuant to this Section 4.3(b) unless and until (i) three business days have
elapsed following the delivery to Geon of a written notice of such determination
by the Board of Directors of Hanna and (x) the Hanna has delivered to Geon the
written notice required by Section 4.3(c) below and (y) during such three
business day period, Hanna otherwise cooperates with Geon with respect to the
Hanna Takeover Proposal that constitutes an Hanna Superior Proposal with the
intent of enabling Geon to engage in good faith negotiations to make such
adjustments in the terms and conditions of the Consolidation as would enable
Geon to proceed with the Consolidation on such adjusted terms, (ii) at the end
of such three business day period the Board of Directors of Hanna continues
reasonably to believe that the Hanna Takeover Proposal constitutes an Hanna
Superior Proposal and (iii) Hanna pays the Hanna Termination Fee as provided in
Section 5.8. For purposes of this Agreement, an "Hanna Superior Proposal" means
any proposal made by a third party to acquire, directly or indirectly, including
pursuant to a tender offer, exchange offer, merger, consolidation, business
combination, recapitalization, liquidation, dissolution or similar transaction,
for consideration consisting of cash and/or securities, more than 66 2/3% of the
combined voting power of the shares of Hanna Common Stock then outstanding or
all or substantially all the assets of Hanna and otherwise on terms which the
Board of Directors of Hanna determines in its good faith judgment (after
consultation with a financial advisor of nationally recognized reputation) to be
more favorable to Hanna's stockholders than the Consolidation (after considering
(1) any adjustment to the terms and conditions of the Consolidation proposed by
Geon in response to an Hanna Takeover Proposal and (2) the Hanna Termination
Fee) and for which financing, to the extent required, is then committed or
which, in the good faith judgment of the Board of Directors of Hanna, is
reasonably capable of being obtained by such third party.
(c) In addition to the obligations of Hanna set forth in paragraphs (a)
and (b) of this Section 4.3, Hanna shall immediately advise Geon orally and in
writing of any request for information or of any Hanna Takeover Proposal, the
material terms and conditions of such request or Hanna Takeover Proposal and the
identity of the person making such request or Hanna Takeover Proposal. Hanna
will keep Geon reasonably informed of the status and details (including
amendments and proposed amendments) of any such request or Hanna Takeover
Proposal.
(d) Nothing contained in this Section 4.3 shall prohibit Hanna from
taking and disclosing to its stockholders a position contemplated by Rule
14e-2(a) promulgated under the Exchange Act or from making any disclosure to
Hanna's stockholders if, in the good faith judgment of the Board of Directors of
Hanna, after consultation with outside counsel, failure so to disclose would be
inconsistent with its obligations under applicable law; PROVIDED, HOWEVER, that,
except as expressly permitted by paragraph (b) of this Section 4.3 in connection
with an Hanna Superior Proposal, neither Hanna nor its Board of Directors nor
any committee thereof shall withdraw or modify, or propose publicly to withdraw
or modify, its position with respect to this Agreement, the Consolidation or the
transactions contemplated hereby, or approve or recommend, or propose publicly
to approve or recommend, an Hanna Takeover Proposal.
Section 4.4. RIGHTS AGREEMENTS. The Geon Board of Directors will take
all further action (in addition to that referred to in Section 3.1(r) hereof)
reasonably requested in writing by Hanna (including redeeming the Rights (as
defined in the Geon Rights Agreement) immediately prior to the Effective Time or
further amending the Geon Rights Agreement) in order to render the Geon Rights
Agreement inapplicable to the Consolidation and the other transactions
contemplated hereby to the extent provided herein and in the Geon Rights
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Agreement. The Hanna Board of Directors will take all further action (in
addition to that referred to in Section 3.2(r) hereof) reasonably requested in
writing by Geon (including redeeming the Rights (as defined in the Hanna Rights
Agreement) immediately prior to the Effective Time or further amending the Hanna
Rights Agreement) in order to render the Hanna Rights Agreement inapplicable to
the Consolidation and the other transactions contemplated hereby to the extent
provided herein and in the Hanna Rights Agreement.
ARTICLE 5.
ADDITIONAL AGREEMENTS
Section 5.1. PREPARATION OF THE FORM S-4 AND THE JOINT PROXY STATEMENT;
STOCKHOLDERS MEETINGS.
(a) As soon as practicable following the date of this Agreement, Geon
and Hanna shall prepare and file with the SEC the Joint Proxy Statement and the
Form S-4, in which the Joint Proxy Statement will be included as a prospectus.
Each of Geon and Hanna shall use reasonable best efforts to have the Form S-4
declared effective under the Securities Act as promptly as practicable after
such filing. Geon will use all reasonable best efforts to cause the Joint Proxy
Statement to be mailed to Geon's stockholders, and Hanna will use all reasonable
best efforts to cause the Joint Proxy Statement to be mailed to Hanna's
stockholders, in each case as promptly as practicable after the Form S-4 is
declared effective under the Securities Act. Except as required by applicable
law, (i) Hanna shall cause the Joint Proxy Statement to contain the
recommendation of the Hanna Board of Directors that the stockholders of Hanna
adopt this Agreement and the Consolidation and the transactions contemplated
hereby and (ii) Geon shall cause the Joint Proxy Statement to contain the
recommendation of the Geon Board of Directors that the stockholders of Geon
adopt this Agreement and the Consolidation and the transactions contemplated
hereby. Geon and Hanna shall also take any action (other than qualifying to do
business in any jurisdiction in which it is not now so qualified or to file a
general consent to service of process) required to be taken under any applicable
state securities laws in connection with the issuance of Resulting Corporation
Shares in the Consolidation and each party shall furnish all information
concerning itself and the holders of its common stock as may be reasonably
requested by the other party in connection with any such action. No filing of,
or amendment or supplement to, the Joint Proxy Statement or the Form S-4 will be
made by Hanna or Geon without providing the other party the opportunity to
review and comment thereon. Each party will advise the other party, promptly
after it receives notice thereof, of the time when the Form S-4 has become
effective or any supplement or amendment has been filed, the issuance of any
stop order, the suspension of the qualification of Resulting Corporation Shares
issuable in connection with the Consolidation for offering or sale in any
jurisdiction, or any request by the SEC for amendment of the Joint Proxy
Statement or the Form S-4 or comments thereon and responses thereto or requests
by the SEC for additional information. If at any time prior to the Effective
Time any information relating to Geon or Hanna, or any of their respective
affiliates, officers or directors, should be discovered by Geon or Hanna which
should be set forth in an amendment or supplement to any of the Form S-4 or the
Joint Proxy Statement, so that any of such documents would not include any
misstatement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, the party that discovers such information shall promptly
notify the other party hereto and an appropriate amendment or
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supplement describing such information will be promptly filed with the SEC and,
to the extent required by law, disseminated to the stockholders of Geon and
Hanna.
(b) Geon shall, as soon as practicable following the date of this
Agreement, duly call, give notice of, convene and hold a meeting of its
stockholders (the "Geon Stockholders Meeting") for the purpose of obtaining the
Geon Stockholder Approval. Without limiting the generality of the foregoing, but
subject to its rights pursuant to Section 4.2 and Section 7.1(g), Geon agrees
that its obligations pursuant to the first sentence of this Section 5.1(b) will
not be affected by the commencement, public proposal, public disclosure or
communication to Geon of any Geon Takeover Proposal.
(c) Hanna shall, as soon as practicable following the date of this
Agreement, duly call, give notice of, convene and hold a meeting of its
stockholders (the "Hanna Stockholders Meeting") for the purpose of obtaining the
Hanna Stockholder Approval. Without limiting the generality of the foregoing but
subject to its rights pursuant to Section 4.3 and Section 7.1(d), Hanna agrees
that its obligations pursuant to the first sentence of this Section 5.1(c) shall
not be affected by the commencement, public proposal, public disclosure or
communication to Hanna of any Hanna Takeover Proposal.
(d) Hanna and Geon will use all reasonable best efforts to hold the
Geon Stockholders Meeting and the Hanna Stockholders Meeting on the same date
and as soon as practicable after the date hereof.
Section 5.2. LETTERS OF GEON'S ACCOUNTANTS. Geon shall use reasonable
best efforts to cause to be delivered to Hanna two letters from Geon's
independent accountants, one dated a date within two business days before the
date on which the Form S-4 shall become effective and one dated a date within
two business days before the Closing Date, each addressed to Hanna, in form and
substance reasonably satisfactory to Hanna and customary in scope and substance
for comfort letters delivered by independent public accountants in connection
with registration statements similar to the Form S-4.
Section 5.3. LETTERS OF HANNA'S ACCOUNTANTS. Hanna shall use reasonable
best efforts to cause to be delivered to Geon two letters from Hanna's
independent accountants, one dated a date within two business days before the
date on which the Form S-4 shall become effective and one dated a date within
two business days before the Closing Date, each addressed to Geon, in form and
substance reasonably satisfactory to Geon and customary in scope and substance
for comfort letters delivered by independent public accountants in connection
with registration statements similar to the Form S-4.
Section 5.4. ACCESS TO INFORMATION; CONFIDENTIALITY. To the extent
permitted by applicable law and subject to the Agreement dated March 1, 1999,
between Hanna and Geon (the "Confidentiality Agreement"), each of Geon and Hanna
shall, and shall cause each of its respective subsidiaries to, afford to the
other party and to the officers, employees, accountants, counsel, financial
advisors and other representatives of such other party, reasonable access during
normal business hours during the period prior to the Effective Time to all their
respective properties, books, contracts, commitments, personnel and records and,
during such period, each of Geon and Hanna shall, and shall cause each of its
respective subsidiaries to, furnish promptly to the other party (a) a copy of
each report, schedule, registration statement and other document filed by it
during such period pursuant to the requirements of federal or state securities
laws and (b) all other information concerning its business, properties and
personnel as such other party may reasonably request. Any review pursuant to
this Section 5.4 shall be
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for the purposes of confirming the accuracy of any representation or warranty
contained in this Agreement given by Hanna to Geon, or by Geon to Hanna, and
facilitating transition planning. Each of Geon and Hanna will hold, and will
cause its respective officers, employees, accountants, counsel, financial
advisors and other representatives and affiliates to hold, any nonpublic
information in accordance with the terms of the Confidentiality Agreement.
Section 5.5. REASONABLE BEST EFFORTS; COOPERATION.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, each of the parties agrees to use reasonable best efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, and to assist
and cooperate with the other party in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditious manner
practicable, the Consolidation and the other transactions contemplated by this
Agreement, including (i) the obtaining of all necessary actions or nonactions,
waivers, consents and approvals from Governmental Entities and the making of all
necessary registrations and filings and the taking of all steps as may be
necessary to obtain an approval or waiver from, or to avoid an action or
proceeding by, any Governmental Entity, (ii) the obtaining of all necessary
consents, approvals or waivers from third parties, (iii) the defending of any
lawsuits or other legal proceedings, whether judicial or administrative,
challenging this Agreement or the consummation of the transactions contemplated
hereby, including seeking to have any stay or temporary restraining order
entered by any court or other Governmental Entity vacated or reversed, and (iv)
the execution and delivery of any additional instruments necessary to consummate
the transactions contemplated by, and to fully carry out the purposes of, this
Agreement. Nothing set forth in this Section 5.5(a) will limit or affect actions
permitted to be taken pursuant to Sections 4.2 and 4.3.
(b) In connection with and without limiting the foregoing, Geon and
Hanna shall (i) take all action necessary to ensure that no state takeover
statute or similar statute or regulation is or becomes applicable to the
Consolidation, this Agreement or any of the other transactions contemplated
hereby and (ii) if any state takeover statute or similar statute or regulation
becomes applicable to the Consolidation, this Agreement or any of the other
transactions contemplated hereby, take all action necessary to ensure that the
Consolidation and the other transactions contemplated hereby may be consummated
as promptly as practicable on the terms contemplated by this Agreement and
otherwise to minimize the effect of such statute or regulation on the
Consolidation and the other transactions contemplated by this Agreement.
(c) Each of Hanna and Geon shall cooperate with each other in obtaining
opinions of Jones, Day, Reavis & Pogue, counsel to Hanna, and Thompson Hine &
Flory LLP, counsel to Geon, dated as of the Closing Date, to the effect that the
Consolidation will constitute a reorganization within the meaning of Section
368(a)(1)(A) of the Code. In connection therewith, each of Hanna and Geon shall
deliver to Jones, Day, Reavis & Pogue and Thompson Hine & Flory LLP customary
representation letters in form and substance reasonably satisfactory to such
counsel (the representation letters referred to in this sentence are
collectively referred to as the "Tax Certificates").
(d) Each of Hanna and Geon shall consult and cooperate with the other
with respect to significant developments in its business and shall give
reasonable consideration to the other's views with respect thereto.
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(e) Each of Hanna and Geon shall (i) make the filings required of such
party under the HSR Act with respect to the Consolidation and the other
transactions contemplated by this Agreement within ten days after the date of
this Agreement, (ii) comply at the earliest practicable date with any request
under the HSR Act for additional information, documents or other materials
received by such party from the Federal Trade Commission or the Department of
Justice or any other Governmental Entity in respect of such filings or the
Consolidation and the other transactions contemplated by this Agreement, and
(iii) cooperate with the other party in connection with making any filing under
the HSR Act and in connection with any filings, conferences or other submissions
related to resolving any investigation or other inquiry by any such Governmental
Authority under the HSR Act with respect to the Consolidation and the other
transactions contemplated by this Agreement.
(f) In furtherance and not in limitation of the covenants of the
parties contained in Section 5.5(e), each of Hanna and Geon shall use its
reasonable best efforts to resolve such objections if any, as may be asserted
with respect to the transactions contemplated hereby under any Antitrust Law. In
connection with the foregoing, if any administrative or judicial action or
proceeding, including any proceeding by a private party, is instituted (or
threatened to be instituted) challenging any transaction contemplated by this
Agreement as violative of any Antitrust Law, each of Hanna and Geon shall
cooperate in all respects with each other and use its respective reasonable best
efforts to contest and resist any such action or proceeding and to have vacated,
lifted, reversed or overturned any decree, judgment, injunction or other order,
whether temporary, preliminary or permanent, that is in effect and that
prohibits, prevents or restricts consummation of the transactions contemplated
by this Agreement, including, without limitation, vigorously defending in
litigation on the merits any claim asserted in any court by any party through a
final and nonappealable judgment. For purposes of this Agreement, "Antitrust
Law" means the Sherman Act, as amended, the Clayton Act, as amended, the HSR
Act, the Federal Trade Commission Act, as amended, and all other federal, state
and foreign, if any, statutes, rules, regulations, orders, decrees,
administrative and judicial doctrines and other laws that are designed or
intended to prohibit, restrict or regulate actions having the purpose or effect
of monopolization or restraint of trade or lessening of competition through
merger or acquisition.
(g) If any objections are asserted with respect to the transactions
contemplated hereby under any Antitrust Law or if any suit is instituted by any
government authority or any private party challenging any of the transactions
contemplated hereby as violative of any Antitrust Law, each of Hanna and Geon
shall use its reasonable best efforts to resolve such objections or challenge as
such governmental authority or private party may have to such transactions under
such Antitrust Law so as to permit consummation of the transactions contemplated
by this Agreement. In furtherance and not in limitation of the foregoing, each
of Hanna and Geon (and, to the extent required by any governmental authority,
its respective subsidiaries and affiliates over which it exercises control)
shall be required to pursue a resolution with any governmental authority and, if
acceptable to any governmental authority, enter into a settlement, undertaking,
consent decree, stipulation or other agreement with such governmental authority
regarding antitrust matters in connection with the transactions contemplated by
this Agreement (each, a "Settlement"). Notwithstanding anything else contained
in this Agreement, none of Hanna, Geon, the Consolidation Corp. or the Resulting
Corporation shall be required to enter into any Settlement that requires Hanna,
Geon, the Consolidation Corp. and/or the Resulting Corporation to sell or
dispose of any significant assets of Hanna and its subsidiaries, Geon and its
subsidiaries, the Consolidation Corp. and/or the Resulting Corporation and its
subsidiaries.
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Section 5.6. STOCK OPTIONS, RESTRICTED STOCK AND EMPLOYMENT AGREEMENTS.
(a) As of the Effective Time, (i) each outstanding Hanna Employee Stock
Option will be converted into an option (an "Hanna Adjusted Option") to purchase
the number of Resulting Corporation Shares equal to the number of shares of
Hanna Common Stock subject to such Hanna Employee Stock Option immediately prior
to the Effective Time multiplied by the Hanna Exchange Ratio (rounded to the
nearest whole number of Resulting Corporation Shares), at an exercise price per
share equal to the exercise price for each such share of Hanna Common Stock
subject to such option divided by the Hanna Exchange Ratio (rounded down to the
nearest whole cent), and all references in each such option to Hanna shall be
deemed to refer to the Resulting Corporation, where appropriate, (ii) each
outstanding Geon Employee Stock Option will be converted into an option (a "Geon
Adjusted Option," and together with the Hanna Adjusted Options, an "Adjusted
Option" or the "Adjusted Options") to purchase the number of Resulting
Corporation Shares equal to the number of shares of Geon Common Stock subject to
such Geon Employee Stock Option immediately prior to the Effective Time
multiplied by the Geon Exchange Ratio (rounded to the nearest whole number of
Resulting Corporation Shares), at an exercise price per share equal to the
exercise price for each such share of Geon Common Stock subject to such option
divided by the Geon Exchange Ratio (rounded down to the nearest whole cent), and
all references in each such option to Geon shall be deemed to refer to the
Resulting Corporation, where appropriate, and (iii) the Resulting Corporation
shall assume the obligations of Hanna under the Hanna Stock Plans and Geon under
the Geon Stock Plans. The other terms of each Adjusted Option, and the plans or
agreements under which they were issued, shall continue to apply in accordance
with their terms. The date of grant of each Adjusted Option shall be the date on
which the corresponding Hanna Employee Stock Option or Geon Employee Stock
Option, as the case may be, was granted. Notwithstanding the foregoing, with
respect to each Hanna Employee Stock Option or Geon Employee Stock Option that
is an incentive stock option (within the meaning of Section 422(b) of the Code),
no adjustment shall be made that would be a modification (within the meaning of
Section 424(h) of the Code) to such option.
(b) To the extent that there are any outstanding Hanna Awards or Geon
Awards at the Effective Time, then, as of the Effective Time, (i) each such
Hanna Award or Geon Award shall be converted into the same instrument of the
Resulting Corporation, in each case with such adjustments (and no other
adjustments) to the terms of such Hanna Awards or Geon Awards, as the case may
be, as are necessary to preserve the value inherent in such Hanna Awards or Geon
Awards with no detrimental effects on the holder thereof and (ii) the Resulting
Corporation shall assume the obligations of Hanna under the Hanna Awards and
Geon under the Geon Awards. The other terms of each Hanna Award and Geon Award,
and the plans or agreements under which they were issued, shall continue to
apply in accordance with their terms.
(c) Geon and Hanna agree that each of the Geon Stock Plans and Hanna
Stock Plans shall be amended, to the extent necessary, to reflect the
transactions contemplated by this Agreement, including, but not limited to the
conversion of shares of the Hanna Common Stock and Geon Common Stock held or to
be awarded or paid pursuant to such benefit plans, programs or arrangements into
Resulting Corporation Shares on a basis consistent with the transactions
contemplated by this Agreement. Geon and Hanna agree to submit the amendments to
the Hanna Stock Plans or the Geon Stock Plans to their respective stockholders,
if such submission is determined to be necessary by counsel to Geon or Hanna
after consultation with one another; PROVIDED, HOWEVER, that such approval shall
not be a condition to the consummation of the Consolidation.
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(d) The Resulting Corporation shall (i) reserve for issuance the number
of Resulting Corporation Shares that will become subject to the benefit plans,
programs and arrangements referred to in this Section 5.6 and (ii) issue or
cause to be issued the appropriate number of Resulting Corporation Shares
pursuant to applicable plans, programs and arrangements, upon the exercise or
maturation of rights existing thereunder on the Effective Time or thereafter
granted or awarded. As soon as practicable after the Effective Time, the
Resulting Corporation shall prepare and file with the SEC a registration
statement on Form S-8 (or other appropriate form) registering a number of
Resulting Corporation Shares necessary to fulfill the Resulting Corporation's
obligations under this Section 5.6. Such registration statement shall be kept
effective (and the current status of the prospectus required thereby shall be
maintained) for at least as long as Adjusted Options, the Hanna Awards or the
Geon Awards remain outstanding.
(e) As soon as practicable after the Effective Time, the Resulting
Corporation shall deliver to the holders of the Hanna Employee Stock Options,
Hanna Awards, Geon Employee Stock Options and Geon Awards appropriate notices
setting forth such holders' rights pursuant to the Hanna Stock Plans or Geon
Stock Plans, as the case may be, and the agreements evidencing the grants of
such Hanna Employee Stock Options, Hanna Awards, Geon Employee Stock Options and
Geon Awards and that such Hanna Employee Stock Options, Hanna Awards, Geon
Employee Stock Options and Geon Awards and the related agreements shall be
assumed by the Resulting Corporation and shall continue in effect on the same
terms and conditions (subject to the adjustments required by this Section after
giving effect to the Consolidation).
Section 5.7. INDEMNIFICATION.
(a) From and after the Effective Time, the Resulting Corporation shall,
to the fullest extent not prohibited by applicable law, indemnify, defend and
hold harmless each person who is now, or has been at any time prior to the date
hereof, or who becomes prior to the Effective Time, an officer, director or
employee of Geon or any of its subsidiaries or Hanna or any of its subsidiaries
(each, an "Indemnified Party" and collectively, the "Indemnified Parties")
against (i) all losses, expenses (including reasonable attorneys' fees and
expenses), claims, damages or liabilities or, subject to the proviso of the next
succeeding sentence, amounts paid in settlement, arising out of actions or
omissions occurring at or prior to the Effective Time (and whether asserted or
claimed prior to, at or after the Effective Time) that are, in whole or in part,
based on or arising out of the fact that such person is or was a director,
officer or employee of Geon or any of its subsidiaries or Hanna or any of its
subsidiaries or served as a fiduciary under or with respect to any employee
benefit plan (within the meaning of Section 3(3) of ERISA) at any time
maintained by or contributed to by Geon or any of its subsidiaries or Hanna or
any of its subsidiaries ("Indemnified Liabilities"), and (ii) all Indemnified
Liabilities to the extent they are based on or arise out of or pertain to the
transactions contemplated by this Agreement. In the event of any such loss,
expense, claim, damage or liability (whether or not arising before the Effective
Time), (i) the Resulting Corporation shall pay the reasonable fees and expenses
of counsel selected by the Indemnified Parties, which counsel shall be
reasonably satisfactory to the Resulting Corporation, promptly after statements
therefor are received and otherwise advance to such Indemnified Party upon
request reimbursement of documented expenses reasonably incurred, (ii) the
Resulting Corporation will cooperate in the defense of such matter and (iii) any
determination required to be made with respect to whether an Indemnified Party's
conduct complies with the standards set forth under applicable law and the
certificate of incorporation or by-laws shall be made by independent counsel
mutually acceptable to the Resulting Corporation and the Indemnified Party;
PROVIDED, HOWEVER, that the Resulting
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Corporation shall not be liable for any settlement effected without its written
consent (which consent shall not be unreasonably withheld or delayed). In the
event that any Indemnified Party is required to bring any action to enforce
rights or to collect moneys due under this Agreement and is successful in such
action, the Resulting Corporation shall reimburse such Indemnified Party for all
of its expenses in bringing and pursuing such action. In addition, from and
after the Effective Time, directors and officers of Geon or Hanna who become
directors or officers of the Resulting Corporation will be entitled to
indemnification under the Resulting Corporation's articles of incorporation and
regulations, as the same may be amended from time to time in accordance with
their terms and applicable law.
(b) In the event that the Resulting Corporation or any of its
successors or assigns (i) consolidates with or merges into any other person and
is not the continuing or surviving corporation or entity of such consolidation
or merger or (ii) transfers or conveys all or substantially all of its
properties and assets to any person, then, and in each such case, proper
provision will be made so that the successors and assigns of the Resulting
Corporation assume the obligations set forth in this Section 5.7.
(c) For six years after the Effective Time, the Resulting Corporation
shall maintain in effect directors' and officers' liability insurance covering
acts or omissions occurring prior to the Effective Time with respect to those
persons who are currently covered by Geon's and Hanna's directors' and officers'
liability insurance policy on terms with respect to such coverage and amount no
less favorable than those of the policies of Geon and Hanna in effect on the
date hereof; PROVIDED, HOWEVER, that in no event shall the Resulting Corporation
be required to pay aggregate premiums for insurance under this Section 5.7(c) in
excess of 200% of the aggregate premiums paid by Geon and Hanna in 1999 for such
purpose; PROVIDED, FURTHER, that if the annual premiums of such insurance
coverage exceed such amount, the Resulting Corporation shall be obligated to
obtain a policy with the best coverage available, in the reasonable judgment of
the Board of Directors of the Resulting Corporation, for a cost up to but not
exceeding such amount. In addition, for six years after the Effective Time, the
Resulting Corporation shall maintain in effect fiduciary liability insurance
policies for employees who serve or have served as fiduciaries under or with
respect to any employee benefit plans described in Section 5.7(a) with coverages
and in amounts no less favorable than those of the policies of Geon and Hanna in
effect on the date hereof.
(d) The provisions of this Section 5.7 (i) are intended to be for the
benefit of, and will be enforceable by, each indemnified party, his or her heirs
and his or her representatives and (ii) are in addition to, and not in
substitution for, any other rights to indemnification or contribution that any
such person may have by contract or otherwise.
Section 5.8. FEES AND EXPENSES.
(a) Except as provided in this Section 5.8, all fees and expenses
incurred in connection with the Consolidation, this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such fees
or expenses, whether or not the Consolidation is consummated, except that each
of Hanna and Geon shall bear and pay one-half of the costs and expenses incurred
in connection with the filing, printing and mailing of the Form S-4 and the
Joint Proxy Statement (including SEC filing fees).
(b) If (i) this Agreement is terminated by Geon pursuant to Section
7.1(g), then, immediately prior to such termination, Geon shall pay Hanna a fee
equal to $25 million (the "Geon Termination Fee"), payable by wire transfer of
same day funds, (ii)(x) a Geon
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Takeover Proposal shall have been made known to Geon or any of its subsidiaries
or has been made directly to its stockholders generally or any person shall have
publicly announced an intention (whether or not conditional) to make a Geon
Takeover Proposal which, in any such case, has not been publicly withdrawn prior
to the Geon Stockholders Meeting, (y) thereafter, this Agreement is terminated
by either Geon or Hanna pursuant to Section 7.1(b)(ii), and (z) within 18 months
of such termination Geon or any of its subsidiaries enters into any Geon
Acquisition Agreement or consummates any Geon Takeover Proposal (for the
purposes of the foregoing proviso the terms "Geon Acquisition Agreement" and
"Geon Takeover Proposal" shall have the meanings assigned to such terms in
Section 4.2 except that the references to "15%" in the definition of "Geon
Takeover Proposal" in Section 4.2(a) shall be deemed to be references to "35%"
and "Geon Takeover Proposal" shall only be deemed to refer to a transaction
involving Geon, or with respect to assets (including the shares of any
subsidiary) Geon and its subsidiaries, taken as a whole, and not any of its
subsidiaries alone), then Geon shall pay Hanna the Geon Termination Fee, payable
by wire transfer of same day funds, no later than two days after the first to
occur of the execution of a Geon Acquisition Agreement or the consummation of a
Geon Takeover Proposal, or (iii) this Agreement is terminated by Hanna pursuant
to Section 7.1(e), then Geon shall pay Hanna the Geon Termination Fee, payable
by wire transfer of same day funds, no later than two days after such
termination. Geon acknowledges that the agreements contained in this Section
5.8(b) are an integral part of the transactions contemplated by this Agreement,
and that, without these agreements, Hanna would not enter into this Agreement.
(c) If (i) this Agreement is terminated by Hanna pursuant to Section
7.1(d), then, immediately prior to such termination, Hanna shall pay Geon a fee
equal to $25 million (the "Hanna Termination Fee"), payable by wire transfer of
same day funds, (ii) (x) an Hanna Takeover Proposal shall have been made known
to Hanna or any of its subsidiaries or has been made directly to its
stockholders generally or any person shall have publicly announced an intention
(whether or not conditional) to make an Hanna Takeover Proposal which, in any
such case, has not been publicly withdrawn prior to the Hanna Stockholders
Meeting, (y) thereafter, this Agreement is terminated by either Geon or Hanna
pursuant to Section 7.1(b)(iii), and (z) within 18 months of such termination
Hanna or any of its subsidiaries enters into any Hanna Acquisition Agreement or
consummates any Hanna Takeover Proposal (for the purposes of the foregoing
proviso the terms "Hanna Acquisition Agreement" and "Hanna Takeover Proposal"
shall have the meanings assigned to such terms in Section 4.3 except that the
references to "15%" in the definition of "Hanna Takeover Proposal" in Section
4.3(a) shall be deemed to be references to "35%" and "Hanna Takeover Proposal"
shall only be deemed to refer to a transaction involving Hanna, or with respect
to assets (including the shares of any subsidiary) Hanna and its subsidiaries,
taken as a whole, and not any of its subsidiaries alone), then Hanna shall pay
Geon the Hanna Termination Fee, payable by wire transfer of same day funds, no
later than two days after the first to occur of the execution of an Hanna
Acquisition Agreement or the consummation of an Hanna Takeover Proposal, or
(iii) this Agreement is terminated by Geon pursuant to Section 7.1(h), then
Hanna shall pay Geon the Hanna Termination Fee, payable by wire transfer of same
day funds, no later than two days after such termination. Hanna acknowledges
that the agreements contained in this Section 5.8(c) are an integral part of the
transactions contemplated by this Agreement, and that, without these agreements,
Geon would not enter into this Agreement.
(d) If this Agreement is terminated at such time that this Agreement is
terminable pursuant to either (but not both) of Section 7.1(c) or Section
7.1(f), then the party whose representations or warranties are inaccurate or who
has breached its covenants or other agreements contained in this Agreement shall
promptly (but not later than two business days
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after receipt of notice from the other party) pay to the other party an amount
equal to all documented out-of-pocket expenses and fees incurred by the other
party (including, without limitation, fees and expenses payable to all legal,
accounting, financial, public relations and other professional advisors arising
out of or in connection with or related to the Consolidation or the other
transactions contemplated by this Agreement) not to exceed $2 million in the
aggregate ("Out-of-Pocket Expenses"); PROVIDED, HOWEVER, that, if this Agreement
is terminated by a party as a result of a willful breach by the other party, the
non-breaching party may pursue any remedies available to it at law or in equity
and shall, in addition to its Out-of-Pocket Expenses (which shall be paid as
specified above and shall not be limited to $2 million), be entitled to recover
such additional amounts as such non-breaching party may be entitled to receive
at law or in equity.
Section 5.9. PUBLIC ANNOUNCEMENTS. Hanna and Geon will consult with
each other before issuing, and provide each other the opportunity to review,
comment upon and concur with, any press release or other public statements with
respect to the transactions contemplated by this Agreement, including the
Consolidation, and shall not issue any such press release or make any such
public statement prior to such consultation, except as either party may
determine is required by applicable law, court process or by obligations
pursuant to any listing agreement with any national securities exchange. The
parties agree that the initial press release to be issued with respect to the
transactions contemplated by this Agreement shall be in the form heretofore
agreed to by the parties.
Section 5.10. AFFILIATES. Not less than 45 days prior to the Effective
Time, each party shall deliver to the other party a list of names and addresses
of each person who, in such party's reasonable judgment, is an affiliate (within
the meaning of Rule 145 of the rules and regulations promulgated under the
Securities Act) of such party. Each party shall provide the other party such
information and documents as such other party shall reasonably request for
purposes of reviewing such list. Each party shall deliver or cause to be
delivered to the other party, not later than 30 days prior to the Effective
Time, an affiliate letter in the form attached hereto as Exhibit 5.10, executed
by each of the affiliates of such party identified in the foregoing list. The
Resulting Corporation shall be entitled to place legends as specified in such
affiliate letters on the certificates evidencing any of Resulting Corporation
Shares to be received by the affiliates of Hanna and Geon pursuant to the terms
of this Agreement, and to issue appropriate stop transfer instructions to the
transfer agent for Resulting Corporation Shares, consistent with the terms of
such letters.
Section 5.11. NYSE LISTING. The parties shall use their reasonable best
efforts to cause Resulting Corporation Shares issuable to Hanna's and Geon's
stockholders as contemplated by this Agreement to be approved for listing on the
NYSE, subject to official notice of issuance, as promptly as practicable after
the date hereof, and in any event prior to the Closing Date.
Section 5.12. STOCKHOLDER LITIGATION. Each of Geon and Hanna shall give
the other the reasonable opportunity to participate in the defense of any
stockholder litigation against Geon or Hanna, as applicable, and its directors
relating to the transactions contemplated by this Agreement.
Section 5.13. TAX TREATMENT. Each of Hanna and Geon shall use
reasonable best efforts to cause the Consolidation to qualify as a
reorganization under the provisions of Section 368(a)(1)(A) of the Code and to
obtain the opinions of counsel referred to in Sections 6.2(c) and 6.3(c),
including, without limitation, forbearing from taking any action that would
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cause the Consolidation not to qualify as a reorganization under the provisions
of Section 368(a)(1)(A) of the Code.
Section 5.14. STANDSTILL AGREEMENTS; CONFIDENTIALITY AGREEMENTS. Except
as provided in Section 4.2 or 4.3, during the period from the date of this
Agreement through the Effective Time, neither Geon nor Hanna shall terminate,
amend, modify or waive any provision of any confidentiality or standstill
agreement to which it or any of its respective subsidiaries is a party, other
than (a) the Confidentiality Agreement, pursuant to its terms or by written
agreement of the parties thereto (b) confidentiality agreements under which Geon
or Hanna, as the case may be, does not provide any confidential information to
third parties or (c) standstill agreements that do not relate to the equity
securities of Geon or any of its subsidiaries or Hanna or any of its
subsidiaries, as the case may be. Except as provided in Section 4.2 or 4.3,
during such period, Geon or Hanna, as the case may be, shall enforce, to the
fullest extent permitted under applicable law, the provisions of any such
agreement, including by obtaining injunctions to prevent any breaches of such
agreements and to enforce specifically the terms and provisions thereof in any
court of the United States of America or of any state having jurisdiction.
Section 5.15. EMPLOYEE BENEFIT PLANS; EMPLOYMENT AGREEMENTS.
(a) Geon shall adopt such amendments to the Geon Benefit Plans as
reasonably requested by Hanna as may be necessary in order to ensure that the
Geon Benefit Plans cover only employees and former employees (and their
dependents and beneficiaries) of Geon and Geon subsidiaries following the
Effective Time. With respect to any Geon Common Stock held by any Geon Benefit
Plan as of the date of this Agreement or thereafter, Geon shall take all actions
necessary or appropriate (including such actions as are reasonably requested by
Hanna) to ensure that all participant voting procedures contained in the Geon
Benefit Plans relating to such shares, and all applicable provisions of ERISA,
are complied with in full.
(b) Hanna shall adopt such amendments to the Hanna Benefit Plans as
reasonably requested by Geon as may be necessary in order to ensure that the
Hanna Benefit Plans cover only employees and former employees (and their
dependents and beneficiaries) of Hanna and Hanna subsidiaries following the
Effective Time. With respect to any Hanna Common Stock held by any Hanna Benefit
Plan as of the date of this Agreement or thereafter, Hanna shall take all
actions necessary or appropriate (including such actions as are reasonably
requested by Geon) to ensure that all participant voting procedures contained in
the Hanna Benefit Plans relating to such shares, and all applicable provisions
of ERISA, are complied with in full.
(c) The Resulting Corporation shall honor and assume all obligations
under Hanna Benefit Plans, Geon Benefit Plans and all written employment
agreements, severance agreements and other similar agreements with employees of
Hanna and Geon as in effect on the date of this Agreement, including without
limitation, the employment agreements entered into between Hanna and Phillip D.
Ashkettle and between Geon and Thomas A. Waltermire.
(d) Within the time period permitted under ERISA Section 4043, Geon
shall file with the Pension Benefit Guaranty Corporation any notice that is
required under ERISA Section 4043 with respect to each Geon Benefit Plan, and
Hanna shall file with the Pension Benefit Guaranty Corporation any notice that
is required under ERISA Section 4043 with respect to each Hanna Benefit Plan.
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Section 5.16. RESULTING CORPORATION CORPORATE OFFICE. Promptly after
the date hereof, Hanna and Geon will undertake a study to determine a new
location for the Resulting Corporation's corporate offices for its senior
executive officers.
Section 5.17. POST-CONSOLIDATION BOARD OF DIRECTORS AND OFFICERS.
(a) As of the Effective Time, the persons serving on the Board of
Directors of the Resulting Corporation will be Phillip D. Ashkettle, James K.
Baker, Gale Duff-Bloom, J. Douglas Campbell, Wayne R. Embry, Robert A. Garda,
Gordon D. Harnett, David M. Hoag, Marvin L. Mann, D. Larry Moore, Thomas A.
Waltermire and Farah M. Walters, and such persons will hold office until their
successors are duly elected and qualified or until their earlier death,
resignation or removal in accordance with the Resulting Corporation's
regulations set forth as Exhibit B hereto. In the event that, prior to the
Effective Time, any person so selected to serve on the Board of Directors of the
Resulting Corporation after the Effective Time is unable or unwilling to serve
in such position, the Board of Directors which selected such person shall
designate another of its members to serve in such person's stead.
(b) As of the Effective Time, the Chairman and Chief Executive Officer
of the Resulting Corporation will be Phillip D. Ashkettle, the President and
Chief Operating Officer of the Resulting Corporation will be Thomas A.
Waltermire, and the senior officers of the Resulting Corporation will be those
individuals recommended to the Board of Directors of the Resulting Corporation
by the Chairman and Chief Executive Officer and the President and Chief
Operating Officer of the Resulting Corporation, and such persons will hold
office until their respective successors are duly elected and qualified or until
their earlier death, resignation or removal in accordance with the Resulting
Corporation's regulations set forth as Exhibit B hereto.
Section 5.18. SECTION 16(B). (a) Hanna and Geon shall take all such
steps reasonably necessary to cause the transactions contemplated hereby and any
other dispositions of equity securities of Hanna or Geon (including derivative
securities) or acquisitions of the Resulting Corporation equity securities
(including derivative securities) in connection with this Agreement by each
individual who (a) is a director or officer of Hanna or Geon or (b) at the
Effective Time, will become a director or officer of the Resulting Corporation,
to be exempt under Rule 16b-3 promulgated under the Exchange Act.
Section 5.19. CONSOLIDATION CORP. Promptly after the date of this
Agreement, Hanna and Geon shall cause Consolidation Corp. to (i) be duly
organized, (ii) issue one common share to each of Geon and Hanna in exchange for
payment of the par value thereof, or, if such common shares do not have a par
value, for $1 per common share, which payment Hanna and Geon shall timely make
to Consolidation Corp., (iii) duly and validly approve and take all corporate
action required to be taken by the Board of Directors and shareholders of
Consolidation Corp. under the OGCL for the consummation of the transactions
contemplated by this Agreement and (iv) take all necessary action so that no
Takeover Statute is applicable to the Consolidation and the other transactions
contemplated by this Agreement.
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ARTICLE 6.
CONDITIONS PRECEDENT
Section 6.1. CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE
CONSOLIDATION. The respective obligation of each party to effect the
Consolidation is subject to the satisfaction or waiver on or prior to the
Closing Date of the following conditions:
(a) STOCKHOLDER APPROVALS. Each of the Geon Stockholder Approval and
the Hanna Stockholder Approval shall have been obtained.
(b) GOVERNMENTAL AND REGULATORY APPROVALS. All consents, approvals and
actions of, filings with and notices to any Governmental Entity required of
Geon, Hanna or any of their subsidiaries or Consolidation Corp. to consummate
the Consolidation and the other transactions contemplated hereby, the failure of
which to be obtained or taken is reasonably expected to have a material adverse
effect on the Resulting Corporation, shall have been obtained in form and
substance reasonably satisfactory to each of Hanna and Geon.
(c) NO INJUNCTIONS OR RESTRAINTS. No judgment, order, decree, statute,
law, ordinance, rule or regulation, entered, enacted, promulgated, enforced or
issued by any court or other Governmental Entity of competent jurisdiction or
other legal restraint or prohibition (collectively, "Restraints") shall be in
effect (i) preventing the consummation of the Consolidation or (ii) which
otherwise is reasonably likely to have a material adverse effect on the
Resulting Corporation; PROVIDED, HOWEVER, that each of the parties shall have
used its reasonable best efforts to prevent the entry of any such Restraints and
to appeal as promptly as possible any such Restraints that may be entered.
(d) FORM S-4. The Form S-4 shall have become effective under the
Securities Act and shall not be the subject of any stop order or proceedings
seeking a stop order.
(e) NYSE LISTING. Resulting Corporation Shares issuable to Hanna's and
Geon's stockholders as contemplated by this Agreement shall have been approved
for listing on the NYSE, subject to official notice of issuance.
(f) HSR ACT. The waiting or similar period (including any extension
thereof) applicable to the consummation of the Consolidation under the HSR Act,
and any Foreign Antitrust Law shall have expired or been terminated.
(g) CONSOLIDATION CORP. Consolidation Corp. shall have been duly
organized and shall have duly and validly approved and taken all corporate
action required to be taken by the Board of Directors and shareholders of
Consolidation Corp. under the OGCL for the consummation of the transactions
contemplated by this Agreement.
Section 6.2. CONDITIONS TO OBLIGATIONS OF HANNA. The obligation of
Hanna to effect the Consolidation is further subject to satisfaction or waiver
of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of Geon set forth herein shall be true and correct both when made and at and as
of the Closing Date, as if made at and as of such time (except to the extent
expressly made as of an earlier date, in which case as of such date), except
where the failure of such representations and
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warranties to be so true and correct (without giving effect to any limitation as
to "materiality" or "material adverse effect" set forth therein) would not have,
individually or in the aggregate, a material adverse effect on Geon.
(b) PERFORMANCE OF OBLIGATIONS OF GEON. Geon shall have performed in
all material respects all obligations required to be performed by it under this
Agreement at or prior to the Closing Date.
(c) TAX OPINION. Hanna shall have received from Jones, Day, Reavis &
Pogue, counsel to Hanna, an opinion dated as of the Closing Date, to the effect
that the Consolidation will constitute a "reorganization" within the meaning of
Section 368(a)(1)(A) of the Code, that Hanna, Geon, Consolidation Corp. and the
Resulting Corporation will each be a party to such reorganization within the
meaning of Section 368(b) of the Code, that none of Hanna, Geon, Consolidation
Corp. or the Resulting Corporation will recognize any gain or loss for United
States federal income tax purposes as a result of the effectiveness of the
Consolidation, and that no stockholder of Hanna will recognize any gain or loss
for United States federal income tax purposes as a result of exchanging his
shares of Hanna Common Stock for Resulting Corporation Shares (excluding any
fractional Resulting Corporation Share converted upon the Consolidation into
cash) upon the effectiveness of the Consolidation. In rendering such opinion,
counsel for Hanna may require delivery of, and rely upon, the Tax Certificates.
(d) NO MATERIAL ADVERSE CHANGE. At any time after the date of this
Agreement there shall not have occurred any material adverse change relating to
Geon; PROVIDED, HOWEVER, that this condition shall no longer be applicable
following the Hanna Stockholder Approval.
Section 6.3. CONDITIONS TO OBLIGATIONS OF GEON. The obligation of Geon
to effect the Consolidation is further subject to satisfaction or waiver of the
following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of Hanna set forth herein shall be true and correct both when made and at and as
of the Closing Date, as if made at and as of such time (except to the extent
expressly made as of an earlier date, in which case as of such date), except
where the failure of such representations and warranties to be so true and
correct (without giving effect to any limitation as to "materiality" or
"material adverse effect" set forth therein) would not have, individually or in
the aggregate, a material adverse effect on Hanna.
(b) PERFORMANCE OF OBLIGATIONS OF HANNA. Hanna shall have performed in
all material respects all obligations required to be performed by it under this
Agreement at or prior to the Closing Date.
(c) TAX OPINION. Geon shall have received from Thompson Hine & Flory
LLP counsel to Geon, an opinion dated as of the Closing Date, to the effect that
the Consolidation will constitute a "reorganization" within the meaning of
Section 368(a)(1)(A) of the Code, that Hanna, Geon, Consolidation Corp. and the
Resulting Corporation will each be a party to such reorganization within the
meaning of Section 368(b) of the Code, and that none of Geon, Hanna,
Consolidation Corp. or the Resulting Corporation will recognize any gain or loss
for United States federal income tax purposes as a result of the effectiveness
of the Consolidation, and that no stockholder of Geon will recognize any gain or
loss for United States federal income tax purposes as a result of exchanging his
shares of Geon Common Stock for Resulting Corporation Shares (excluding any
fractional Resulting
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Corporation Share converted upon the Consolidation into cash) upon the
effectiveness of the Consolidation. In rendering such opinion, counsel for Geon
may require delivery of, and rely upon, the Tax Certificates.
(d) NO MATERIAL ADVERSE CHANGE. At any time after the date of this
Agreement there shall not have occurred any material adverse change relating to
Hanna; PROVIDED, HOWEVER, that this condition shall no longer be applicable
following the Geon Stockholder Approval.
Section 6.4. FRUSTRATION OF CLOSING CONDITIONS. Neither Hanna nor Geon
may rely on the failure of any condition set forth in Section 6.1, 6.2 or 6.3,
as the case may be, to be satisfied if such failure was caused by such party's
failure to use reasonable best efforts to consummate the Consolidation and the
other transactions contemplated by this Agreement, as required by and subject to
Section 5.5.
ARTICLE 7.
TERMINATION, AMENDMENT AND WAIVER
Section 7.1. TERMINATION. This Agreement may be terminated at any time
prior to the Effective Time, whether before or after the Geon Stockholder
Approval or the Hanna Stockholder Approval:
(a) by mutual written consent of Hanna and Geon;
(b) by either Hanna or Geon:
(i) if the Consolidation shall not have been consummated by
November 30, 2000; PROVIDED, HOWEVER, that the right to terminate this
Agreement pursuant to this Section 7.1(b)(i) shall not be available to
any party whose failure to perform any of its obligations under this
Agreement results in the failure of the Consolidation to be consummated
by such time;
(ii) if the Geon Stockholder Approval shall not have been
obtained at a Geon Stockholders Meeting duly convened therefor or at
any adjournment or postponement thereof,
(iii) if the Hanna Stockholder Approval shall not have been
obtained at an Hanna Stockholders Meeting duly convened therefor or at
any adjournment or postponement thereof, or
(iv) if any Restraint having any of the effects set forth in
Section 6.1(c) shall be in effect and shall have become final and
nonappealable; PROVIDED, HOWEVER, that the party seeking to terminate
this Agreement pursuant to this Section 7.1(b)(iv) shall have used
reasonable best efforts to prevent the entry of and to remove such
Restraint;
(c) by Hanna, if any representations or warranty of Geon shall be
inaccurate or Geon shall have breached or failed to perform any of its covenants
or other agreements
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<PAGE> 57
contained in this Agreement, which inaccuracy, breach or failure to perform
would give rise to a material adverse change relating to Geon and (A) is not
cured within 30 days after written notice thereof or (B) is incapable of being
cured by Geon;
(d) by Hanna in accordance with Section 4.3(b); PROVIDED, HOWEVER,
that, in order for the termination of this Agreement pursuant to this Section
7.1(d) to be deemed effective, Hanna shall have complied with all provisions
contained in Section 4.3, including the notice provisions therein, and the
applicable requirements, including the payment of the Hanna Termination Fee, of
Section 5.8;
(e) by Hanna if (i) the Board of Directors of Geon or any committee
thereof shall have withdrawn or modified or proposed publicly to withdraw or
modify, in a manner adverse to Hanna, its approval or recommendation of the
Consolidation or this Agreement, or approved or recommended any Geon Takeover
Proposal or (ii) the Board of Directors of Geon shall have resolved to do any of
the foregoing;
(f) by Geon, if any representation or warranty of Hanna shall be
inaccurate or Hanna shall have breached or failed to perform any of its
covenants or other agreements contained in this Agreement, which inaccuracy,
breach or failure to perform would give rise to a material adverse change
relating to Hanna and (A) is not cured within 30 days after written notice
thereof or (B) is incapable of being cured by Hanna;
(g) by Geon in accordance with Section 4.2(b); PROVIDED, HOWEVER, that,
in order for the termination of this Agreement pursuant to this Section 7.1(g)
to be deemed effective, Geon shall have complied with all provisions of Section
4.2, including the notice provisions therein, and the applicable requirements,
including the payment of the Geon Termination Fee, of Section 5.8; or
(h) by Geon if (i) the Board of Directors of Hanna or any committee
thereof shall have withdrawn or modified or proposed publicly to withdraw or
modify, in a manner adverse to Geon, its approval or recommendation of the
Consolidation or this Agreement, or approved or recommended any Hanna Takeover
Proposal or (ii) the Board of Directors of Hanna shall have resolved to do any
of the foregoing.
Section 7.2. EFFECT OF TERMINATION. In the event of termination of this
Agreement by either Geon or Hanna as provided in Section 7.1, this Agreement
shall forthwith become void and have no effect, without any liability or
obligation on the part of Hanna or Geon, other than the provisions of Section
3.1(u), Section 3.2(u), the last sentence of Section 5.4, Section 5.8, Section
5.9, this Section 7.2 and Article 8, which provisions will survive such
termination; PROVIDED, HOWEVER, that nothing herein shall relieve any party from
any liability for any willful and material breach by such party of any of its
representations, warranties, covenants or agreements set forth in this
Agreement.
Section 7.3. AMENDMENT. This Agreement may be amended by the parties at
any time before or after the Geon Stockholder Approval or the Hanna Stockholder
Approval; PROVIDED, HOWEVER, that after any such approval, there shall not be
made any amendment that by law requires further approval by the stockholders of
Geon or Hanna without the further approval of such stockholders. This Agreement
may not be amended except by an instrument in writing signed on behalf of each
of the parties.
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Section 7.4. EXTENSION; WAIVER. At any time prior to the Effective
Time, a party may (a) extend the time for the performance of any of the
obligations or other acts of the other party, (b) waive any inaccuracies in the
representations and warranties of the other party contained in this Agreement or
in any document delivered pursuant to this Agreement or (c) subject to the
proviso of Section 7.3, waive compliance by the other party with any of the
agreements or conditions contained in this Agreement. Any agreement on the part
of a party to any such extension or waiver shall be valid only if set forth in
an instrument in writing signed on behalf of such party. The failure of any
party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of such rights.
Section 7.5. PROCEDURE FOR TERMINATION, AMENDMENT, EXTENSION OR WAIVER.
A termination of this Agreement pursuant to Section 7.1 shall, in order to be
effective, require, in the case of Hanna or Geon, action by its Board of
Directors or, with respect to any amendment to this Agreement, action by its
Board of Directors or any duly authorized committee of its Board of Directors to
the extent permitted by law.
ARTICLE 8.
GENERAL PROVISIONS
Section 8.1. NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the
representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive the Effective Time. This Section 8.1
shall not limit any covenant or agreement of the parties which by its terms
contemplates performance after the Effective Time.
Section 8.2. NOTICES. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally, telecopied (which is confirmed) or sent by
overnight courier (providing proof of delivery) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(a) if to Hanna, to: M. A. Hanna Company
Suite 36-5000
200 Public Square
Cleveland, Ohio 44114-2305
Telecopy No.: (216) 589-4034
Attention: General Counsel
with a copy to: Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Telecopy No.: (216) 579-0212
Attention: Lyle G. Ganske, Esquire
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<PAGE> 59
(b) if to Geon, to: The Geon Company
One Geon Center
Avon Lake, Ohio 44012-0122
Telecopy No.: (440) 930-1002
Attention: Chief Legal Officer
with a copy to: Thompson Hine & Flory LLP
1900 Key Center
127 Public Square
Cleveland, Ohio 44114
Telecopy No.: (216) 566-5800
Attention: Thomas A. Aldrich, Esquire
Section 8.3. DEFINITIONS. FOR PURPOSES OF THIS AGREEMENT:
(a) an "affiliate" of any person means another person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such first person, where "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of a person, whether through the ownership
of voting securities, by contract or otherwise;
(b) "knowledge" of any person which is not an individual means the
knowledge of one or more of such person's directors or executive officers;
(c) "material adverse change" or "material adverse effect" means, when
used in connection with any person, (i) any change, effect, event, occurrence or
state of facts that, after considering any insurance coverage and any reserves
provided for in such person's financial statements, is, or would reasonably be
expected to be, materially adverse to the business, financial condition or
results of operations of such party and its subsidiaries taken as a whole, other
than any change, effect, event or occurrence (A) relating to the economy or
securities markets of the United States or any other region in general or (B)
resulting from entering into this Agreement or the consummation of the
transactions contemplated hereby or the announcement thereof, or (ii) any
change, effect, event, occurrence or state of facts that could reasonably be
expected to materially impair or delay the ability of such party to perform its
obligations under this Agreement, and the terms "material" and "materially" have
correlative meanings;
(d) "material contract" has the meaning set forth in Item 601(b)(10) of
Regulation S-K of the SEC
(e) "person" means an individual, corporation, partnership, limited
liability company, joint venture, association, trust, unincorporated
organization or other entity; and
(f) a "subsidiary" of any person means another person, an amount of the
voting securities, other voting ownership or voting partnership interests of
which is sufficient to elect at least a majority of its Board of Directors or
other governing body (or, if there are no such voting interests, 50% or more of
the equity interests of which) is owned directly or indirectly by such first
person, and, in the case of Geon, also means each of the joint ventures listed
on Section 8.3(f) of the Geon Disclosure Schedule.
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Section 8.4. INTERPRETATION. When a reference is made in this Agreement
to an Article, Section or Exhibit, such reference shall be to an Article or
Section of, or an Exhibit to, this Agreement unless otherwise indicated. The
table of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation". The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement. All terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto unless otherwise defined therein. The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such term. Any agreement, instrument or statute
defined or referred to herein or in any agreement or instrument that is referred
to herein means such agreement, instrument or statute as from time to time
amended, modified or supplemented, including (in the case of agreements or
instruments) by waiver or consent and (in the case of statutes) by succession of
comparable successor statutes and references to all attachments thereto and
instruments incorporated therein. References to a person are also to its
permitted successors and assigns.
Section 8.5. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other party.
Section 8.6. ENTIRE AGREEMENT: NO THIRD-PARTY BENEFICIARIES. This
Agreement (including the documents and instruments referred to herein), and the
Confidentiality Agreement (a) constitute the entire agreement, and supersede all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter of this Agreement and (b) except for the
provisions of Article 2, Section 5.6 and Section 5.7, are not intended to confer
upon any person other than the parties any rights or remedies.
Section 8.7. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO REGARDLESS OF THE
LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICT OF LAWS
THEREOF; PROVIDED, HOWEVER, THAT WITH RESPECT TO ANY MATTER SET FORTH IN THIS
AGREEMENT THAT RELATES TO ACTIONS TO BE TAKEN UNDER THE DGCL, SUCH MATTER SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE DGCL.
Section 8.8. ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise by either of the parties hereto without
the prior written consent of the other party. Any assignment in violation of the
preceding sentence shall be void. Subject to the preceding two sentences, this
Agreement will be binding upon, inure to the benefit of, and be enforceable by,
the parties and their respective successors and assigns.
Section 8.9. CONSENT TO JURISDICTION. Each of the parties hereto (a)
consents to submit itself to the personal jurisdiction of any federal court
located in the State of Ohio or any Ohio state court, in either case located in
the Northern District of Ohio, in the event any dispute arises out of this
Agreement or any of the transactions contemplated by this Agreement, (b) agrees
that it will not attempt to deny or defeat such personal jurisdiction by motion
or other
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request for leave from any such court, and (c) agrees that it will not
bring any action relating to this Agreement or any of the transactions
contemplated by this Agreement in any court other than a federal court sitting
in the State of Ohio or an Ohio state court, in either case located in the
Northern District of Ohio.
Section 8.10. HEADINGS. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 8.11. SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible to the fullest
extent permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
* * * * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement and
Plan of Consolidation to be signed by their respective officers thereunto duly
authorized, all as of the date first written above.
THE GEON COMPANY
By: /S/ THOMAS A. WALTERMIRE
---------------------------------
Name: Thomas A. Waltermire
Title: Chairman, Chief Executive
Officer and President
M. A. HANNA COMPANY
By: /S/ PHILLIP D. ASHKETTLE
---------------------------------
Name: Phillip D. Ashkettle
Title: Chairman, Chief Executive
Officer and President
54
<PAGE> 1
Exhibit 99.1
M.A. HANNA AND GEON AGREE TO CONSOLIDATE,
FORMING WORLD'S LARGEST POLYMER SERVICES COMPANY
- - COMBINATION PROVIDES COMPLEMENTARY STRENGTHS IN CUSTOMER FOCUS,
OPERATIONS, POLYMER COMPOUNDING, INFORMATION TECHNOLOGY, GLOBAL REACH
- - $3.5 BILLION COMPANY TO HAVE NEW NAME, KEEP HEADQUARTERS IN CLEVELAND
AREA
- - PHILLIP ASHKETTLE TO BE CHAIRMAN AND CEO, THOMAS WALTERMIRE PRESIDENT
AND COO
- - TRANSACTION WILL BE STOCK-FOR-STOCK, NON-CASH EXCHANGE
- - COMPANIES COMMIT TO AT LEAST $50 MILLION IN ANNUAL OPERATING EARNINGS
IMPROVEMENT BY 2002
CLEVELAND - May 8, 2000 - The Geon Company (NYSE: GON) and The M.A. Hanna
Company (NYSE: MAH) announced today that they will join forces to create the
world's largest polymer services company. The two companies intend to
consolidate their global operations into a new organization, demonstrating
leadership in consolidating the specialty chemical industry.
The new company will have initial annual revenues of approximately $3.5 billion,
with anticipated market capitalization well above $1 billion. Closing is
anticipated in August. It is expected that shares of the new company will be
listed on the New York Stock Exchange. The consolidation is subject to approval
by shareholders of both companies and regulatory approvals.
The combination brings together two companies with complementary strengths and
common strategies to become a world leader in performance polymers and services
- - linking Geon's operating strengths with M.A. Hanna's experience in
multi-polymer compounding, colorants and distribution. The new company's strong
balance sheet will allow it to pursue an aggressive acquisition strategy.
Under a definitive consolidation agreement approved by the companies' boards of
directors at special meetings yesterday:
- - Phillip D. Ashkettle, 54, will be chairman and chief executive officer
of the combined company, and Thomas A. Waltermire, 50, will be
president and chief operating officer. Under a transition plan,
Waltermire will become CEO on January 1, 2002, and chairman at the 2004
annual shareholder meeting.
- - The consolidation will take place in the form of a cashless stock swap.
- - The companies have agreed on fundamental strategies and are committed
to achieving at least $50 million in operating earnings improvement
annually from raw materials savings, market-related opportunities and
overhead reductions by 2002.
<PAGE> 2
2
- - The corporate headquarters will be consolidated at a new site in
Greater Cleveland that is yet to be determined. The new company will
have more than 10,000 employees, 80 manufacturing sites and an
extensive distribution network worldwide.
- - The new organization will begin immediately to develop a new name.
"The strengths of our existing companies complement one another remarkably well,
especially in major markets served," said Ashkettle, currently chairman,
president and chief executive officer of M.A. Hanna. "We were attracted to
Geon's strengths in vinyl materials, operations, information technology and
e-commerce. Together we can go to market with a breadth of technologies and
services that is second to none, creating the leadership position in every area
in which we operate."
Waltermire, now Geon's chairman and chief executive officer, added, "M.A. Hanna
brings just what Geon needs to grow - size, multi-polymer based products, and
strong international presence. In addition, we share similar business
philosophies in key areas, such as customer-focused teams, value-added selling
and aggressive growth. We believe the combination of our two strong
organizations creates an outstanding opportunity for our customers, employees,
suppliers and shareholders."
Ashkettle will have principal responsibility for corporate direction, external
relations and mergers and acquisitions. Waltermire will be responsible for
operations, organic growth, most corporate staff functions and e-business
strategies.
"Acquisitions remain a key element of our strategy," said Ashkettle. "In this
consolidating industry, there are a lot of opportunities to add value for
customers and shareholders of the combined company. We will be in a much
stronger position as the consolidator of choice to expand our business portfolio
and strengthen our global presence."
Waltermire added, "This combination enhances our ability to create a world-class
polymer services business focused on growth with solid margins and made up of a
network of closely aligned business teams. We believe the new company will bring
an unmatched capability to help our customers become more profitable. By
combining both Hanna's and Geon's developing e-commerce capabilities as well as
creating customer-focused teams, we will make already good customer service even
better."
The new board of directors will consist of 10 external members selected equally
from the current boards in addition to Ashkettle and Waltermire. Current member
of Geon's board joining the new company board are: James K. Baker, Gale
Duff-Bloom, J. Douglas Campbell, D. Larry Moore, and Farah M. Walters. Joining
from the M.A. Hanna board will be Wayne R. Embry, Robert A. Garda, Gordon D.
Harnett, David H. Hoag and Marvin L. Mann.
Under the arrangement, M.A. Hanna and Geon will consolidate into a new Ohio
corporation. Shareholders of M.A. Hanna will receive one share of the new
corporation for each share they own at the time of closing. Shareholders of Geon
will receive two shares of the new corporation for each share they own at the
time of closing. Following the consolidation, current M.A. Hanna
<PAGE> 3
3
shareholders will hold approximately 50 percent and Geon shareholders
approximately 50 percent of the new corporation. The resulting corporation will
be incorporated in Ohio to reflect the strong Ohio presence of the combined
companies.
Salomon Smith Barney Inc. is representing M.A. Hanna as investment banking
advisers, and McDonald Investments, A KeyCorp Company, is representing Geon.
M.A. Hanna Company, headquartered in Cleveland, is a $2.3 billion international
specialty polymers company focused on the plastics and rubber industries through
its operations in North America, Europe and Asia. Its primary businesses are
plastics compounding and color and additive systems, rubber compounding and
color and additives, and distribution of plastic resins and engineered plastic
shapes. Information on the company's products and services, as well as investor
presentations and details of its financial performance, is available at
http://www.mahanna.com.
The Geon Company is a leading North American-based polymer services and
technology company with operations in vinyl compounds, specialty vinyl resins
and formulations, engineered films, and other value-added products and services.
Headquartered in Avon Lake, Ohio, The Geon Company and its subsidiaries employ
more than 3,200 people and have 30 manufacturing plants in the United States,
Canada, England and Australia, and joint ventures in the United States, Canada,
England, Australia, Singapore and Colombia. Information on the Company's
products and services, as well as news releases, EDGAR filings, Form 10-K, 10-Q,
etc. is available on the Internet at http://www.geon.com.
PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
This release contains statements concerning trends and other forward-looking
information affecting or relating to Geon and M.A. Hanna and their respective
industry that are intended to qualify for the protections afforded
"forward-looking statements" under the Private Securities Litigation Reform Act
of 1995. In particular, statements regarding the proposed transaction described
in this release are based on management's current expectations or beliefs and
are subject to a number of factors and uncertainties that could cause actual
results to differ materially from those described in the forward-looking
statements. The following factors, among others, could cause actual results to
differ materially from those described in the forward-looking statements: (1)
the risk that the M.A. Hanna and Geon businesses will not be integrated
successfully; (2) inability to achieve or delays in achieving savings related to
business consolidation and restructuring programs; (3) unanticipated delays in
achieving or inability to achieve cost reduction and employee productivity
goals; (4) costs related to the proposed transaction; (5) inability to obtain,
or meet conditions imposed for, governmental approvals for the merger; (6)
fluctuations in raw material prices and supply, in particular fluctuations
outside the normal range of industry cycles; (7) failure of the Geon or Hanna
stockholders to approve the proposed transaction; (8) unanticipated costs or
difficulties in the operation of Oxy Vinyls LP.
In connection with the business combination transaction, Geon and M.A. Hanna
expect to file a joint proxy statement/prospectus and other documents with the
Securities and Exchange Commission. Geon and M.A. Hanna expect to send the joint
proxy statement/prospectus to their respective stockholders seeking their
approval of the proposed business combination transaction.
<PAGE> 4
4
We urge investors and stockholders to read the joint proxy statement/prospectus
carefully when it is available. The joint proxy statement/prospectus will
contain important information about the resulting company, Geon, M.A. Hanna, the
proposed business combination transaction, and related matters. Investors and
stockholders will be able to obtain free copies of the joint proxy
statement/prospectus and these documents, once available, as well as other
filings made by Geon and M.A. Hanna with the Commission through the website
maintained by the Commission at http://www.sec.gov. Free copies of the joint
proxy statement/prospectus and these other documents, once available, may also
be obtained by Geon stockholders by directing a request to Geon at One Geon
Center, Avon Lake, Ohio 44012 Attention: Corporate Secretary, and by M.A. Hanna
stockholders by directing a request to M.A. Hanna at Suite 36-5000, 200 Public
Square, Cleveland, Ohio 44114 -2304, Attention: Corporate Secretary.
M.A. Hanna, its directors, executive officers and certain other members of
management and employees may be soliciting proxies from M.A. Hanna stockholders
in favor of the consolidation. Information concerning the participants in the
solicitation is set forth in the Current Report on Form 8-K filed by M.A. Hanna
with the SEC on May 8, 2000.
Geon, its directors, executive officers and certain other members of management
and employees may be soliciting proxies from Geon stockholders in favor of the
consolidation. Information concerning the participants in the solicitation is
set forth in the Current Report on Form 8-K filed by Geon with the SEC on May 8,
2000.
Investor & Media Contacts: Dennis Cocco
Vice President, Corporate & Investor Affairs
The Geon Company
(440) 930-1538
Christopher Farage
Director, Investor Relations
The M.A. Hanna Company
(216) 589-4085
