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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)
AMDURA CORPORATION
(Name of Issuer)
Common Stock, $.01 par value
(Title of Class of Securities)
023426703
(CUSIP Number)
Monte E. Wetzler, Esq.
Whitman Breed Abbott & Morgan
200 Park Avenue
New York, New York 10166
(212) 351-3000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 15, 1995
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject
of this Schedule 13D, and is filing this schedule because of
Rule 13d-1(b)(3) or (4), check the following box [X].
Check the following box if a fee is being paid with the
statement [ ]. (A fee is not required only if the reporting
person: (1) has a previous statement on file reporting
beneficial ownership of more than five percent of the class
of securities described in Item 1; and (2) has filed no
amendment subsequent thereto reporting beneficial ownership
of five percent or less of such class.) (See Rule 13d-7.)
(Continued on following page(s))
Page 1 of 26 Pages
Exhibit Index Appears on Page 11
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CUSIP No. 023426703 Page 2 of 26 Pages
_________________________________________________________________
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ORCAS LIMITED PARTNERSHIP
(no Fed. I.D. No.)
_________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER (a) [ ]
OF A GROUP (b) [X]
_________________________________________________________________
3 SEC USE ONLY
_________________________________________________________________
4 SOURCE OF FUNDS
_________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ]
IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
_________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware lim. pshp.
_________________________________________________________________
NUMBER 7 SOLE VOTING POWER 5,149,582*
OF __________________________________________________
SHARES
BENEFICIALLY 8 SHARED VOTING POWER 0
OWNED __________________________________________________
BY
EACH 9 SOLE DISPOSITIVE POWER 5,149,582*
REPORTING __________________________________________________
PERSON
WITH 10 SHARED DISPOSITIVE POWER 0
_________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON 5,149,582*
_________________________________________________________________
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES
_________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 20.88%*
_________________________________________________________________
14 TYPE OF REPORTING PERSON PN
_________________________________________________________________
- ---------------
* See Item 5(a)
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CUSIP No. 023426703 Page 3 of 26 Pages
_________________________________________________________________
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ARCHIPELAGO CORPORATION
(no Fed. I.D. No.)
_________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER (a) [ ]
OF A GROUP (b) [X]
_________________________________________________________________
3 SEC USE ONLY
_________________________________________________________________
4 SOURCE OF FUNDS
_________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ]
IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
_________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware corporation
_________________________________________________________________
NUMBER 7 SOLE VOTING POWER 5,149,582*
OF __________________________________________________
SHARES
BENEFICIALLY 8 SHARED VOTING POWER 0
OWNED __________________________________________________
BY
EACH 9 SOLE DISPOSITIVE POWER 5,149,582*
REPORTING __________________________________________________
PERSON
WITH 10 SHARED DISPOSITIVE POWER 0
_________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON 5,149,582*
_________________________________________________________________
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES
_________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 20.88%*
_________________________________________________________________
14 TYPE OF REPORTING PERSON CO
_________________________________________________________________
- ---------------
* See Item 5(a)
<PAGE>
CUSIP No. 023426703 Page 4 of 26 Pages
_________________________________________________________________
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Frederick W. Whitridge, Jr. (SS # ###-##-####)
_________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER (a) [ ]
OF A GROUP (b) [X]
_________________________________________________________________
3 SEC USE ONLY
_________________________________________________________________
4 SOURCE OF FUNDS
_________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ]
IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
_________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION U.S. Citizen
_________________________________________________________________
NUMBER 7 SOLE VOTING POWER 5,149,582*
OF _________________________________________________
SHARES
BENEFICIALLY 8 SHARED VOTING POWER 0
OWNED __________________________________________________
BY
EACH 9 SOLE DISPOSITIVE POWER 5,149,582*
REPORTING __________________________________________________
PERSON
WITH 10 SHARED DISPOSITIVE POWER 0
_________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON 5,149,582*
_________________________________________________________________
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES
_________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 20.88%*
_________________________________________________________________
14 TYPE OF REPORTING PERSON IN
_________________________________________________________________
- ---------------
* See Item 5(a)
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Item 1. Security and Issuer.
This statement relates to the common stock, par value
$.01 per share (the "Common Stock"), of Amdura Corporation, a
Delaware corporation (the "Company"), the principal executive
offices of which are located at 900 Main Street South, Suite 2A,
Building B, Southbury, Connecticut 06488-0870.
Item 2. Identity and Background.
This statement is filed by Orcas Limited Partnership, a
Delaware limited partnership ("Orcas"), Archipelago Corporation,
a Delaware corporation ("Archipelago"), and Frederick W.
Whitridge, Jr. ("Whitridge" and, together with Orcas and
Archipelago, the "Reporting Persons"). The business offices of
the Reporting Persons are located at 270 Greenwich Avenue,
Greenwich, Connecticut 06830. Archipelago is the general partner
of Orcas. Whitridge, a U.S. citizen and an investor, is the
majority shareholder of Archipelago.
Whitridge is the sole director and the President of
Archipelago. There are no other directors or executive officers
of Archipelago.
Neither Orcas, Archipelago nor Whitridge has during the
last five years been convicted in a criminal proceeding or been a
party to a civil proceeding of a judicial or administrative body
of competent jurisdiction that resulted in a judgment, decree or
final order enjoining future violations of, or prohibiting or
mandating activities subject to, United States federal or state
securities laws or finding any violation with respect to such
laws.
Item 3. Source and Amount of Funds or Other Consideration.
Not applicable.
Item 4. Purpose of the Transaction.
Pursuant to a Purchase Option Agreement, dated as of
October 21, 1993 (the "Option Agreement"), among Continental
Bank, N.A., a national banking association ("Continental"), and
Orcas, Orcas was granted the option to acquire (the "Option"), on
or before December 28, 1993, 5,149,582 shares (the "Shares") of
Common Stock of the Company. Orcas exercised the Option and
purchased the Shares from Continental on December 28, 1993.
The purpose of Orcas in acquiring the Shares was to
acquire an equity position in the Company. The Reporting Persons
considered the acquisition of the Shares to be an investment.
On March 15, 1995, the Company entered into an
Agreement and Plan of Merger, dated as of March 15, 1995 (the
"Merger Agreement"), among FKI plc, a company organized under the
laws of England ("Parent"), ADU Acquisition Inc., a Delaware
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corporation and an indirect wholly-owned subsidiary of Parent
(the "Purchaser"), and the Company, which provides, among other
things, upon the terms and subject to the conditions thereof, for
the acquisition by Purchaser of all the outstanding shares of
Common Stock of the Company through (a) a tender offer (the
"Offer") for all shares of Common Stock of the Company for $2.30
or more per share net to the selling stockholders of the Company
in cash, without interest thereon (the "Per Share Amount"), and
(b) a second-step merger pursuant to which Purchaser will merge
with and into the Company (the "Merger") and all outstanding
shares of Common Stock of the Company (other than shares of
Common Stock held by Purchaser or Parent or any direct or
indirect wholly-owned subsidiary of Parent or the company and
shares of Common Stock held in the treasury of the Company) will
be converted into the right to receive the Per Share Amount in
cash.
As a condition to the willingness of Parent and
Purchaser to enter into the Merger Agreement, Parent and
Purchaser required that Orcas and certain other stockholders of
the Company agree to tender pursuant to the Offer, in accordance
with the terms of a Stockholders Agreement, dated as of March 15,
1995 (the "Stockholders Agreement"), between Purchaser, Parent
and the persons listed on Schedule A thereto, including Orcas
(each, individually, a "Stockholder" and, collectively, the
"Stockholders"), all the shares of Common Stock of the Company
owned (beneficially or of record) and which may be acquired by
each Stockholder. Pursuant to the Stockholders Agreement, Orcas
agreed, severally and not jointly with the other Stockholders, to
validly tender and not withdraw pursuant to the Offer, in
accordance with the terms of the Stockholders Agreement, all the
Shares owned by Orcas and any shares of Common Stock of the
Company which may be acquired by Orcas at any time prior to the
termination of the Stockholders Agreement as to Orcas.
Notwithstanding the foregoing, Orcas may withdraw the Shares from
the Offer in the event that the Board of Directors of the Company
shall have withdrawn or modified in a manner adverse to Purchaser
or Parent its approval or recommendation of the Offer, the
Merger, the Merger Agreement or any other transaction in order to
approve any Third Party Transaction (as hereinafter defined)
which the Board determines in the exercise of its good faith
judgment and after consultation with independent legal counsel
and the Company's financial advisors to be more favorable to the
Company's stockholders than the Offer and the Merger taken
together. The term "Third Party Transaction" means any of the
following: (i) the acquisition of the Company by merger,
consolidation or other business combination transaction by any
person other than Parent, Purchaser or any affiliate thereof (a
"Third Party"); (ii) the acquisition by any Third Party of 50% or
more of the outstanding stock or all or a substantial part (other
than in the ordinary course of business) of the assets of a
"Material Subsidiary" of the Company; (iii) the acquisition by a
Third Party of 50% or more of the outstanding shares of Common
Stock of the Company, whether by tender offer, exchange offer or
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otherwise; (iv) the adoption by the Company of a plan of
liquidation or the declaration or payment of an extraordinary
dividend; or (v) the repurchase by the Company or any of its
"Subsidiaries" of 50% or more of the outstanding shares of Common
Stock of the Company.
Pursuant to the Stockholders Agreement, Orcas also
agreed that it shall not, and shall not offer or agree to, sell,
transfer, tender, assign, hypothecate or otherwise dispose of, or
create or permit to exist any security interest, lien, claim,
pledge, option, right of first refusal, agreement, limitation on
its voting rights, charge or other encumbrance of any nature
whatsoever with respect to the Shares owned by Orcas or any
shares of Common Stock of the Company which may be acquired by
Orcas at any time prior to the termination of the Stockholders
Agreement as to Orcas.
Pursuant to the Stockholders Agreement, Orcas further
agreed that it shall not, directly or indirectly, through any
agent or representative or otherwise, solicit, initiate or
encourage the submission of any proposal or offer from any person
relating to, participate in any negotiations regarding, or
furnish to any other person any information with respect to, or
otherwise cooperate in any way with, or assist or participate in,
facilitate or encourage, any Third Party Transaction at any time
prior to the termination of the Stockholders Agreement as to
Orcas, subject to the fiduciary duties as a director of the
Company of any representative or agent of Orcas who is such a
director as contemplated by the Merger Agreement. Whitridge
is Chairman of the Board of Directors of the Company.
Pursuant to the Stockholders Agreement, Parent and
Purchaser jointly and severally agreed to indemnify and hold
harmless each of the Stockholders against any loss, damage or
expense actually incurred by any such Stockholder to the extent
arising from any Company stockholders or third party claim, suit
or demand in connection with the Stockholders Agreement or the
transactions contemplated by the Merger Agreement.
The Stockholders Agreement will terminate upon the
termination of the Merger Agreement. Orcas may terminate the
Stockholders Agreement as to itself if (a) the Merger Agreement
shall have been amended in any way which adversely affects Orcas,
(b) the Offer shall not have been commenced by March 29, 1995 or
(c) the Shares shall not have been accepted for payment and paid
for by June 13, 1995.
As an additional condition to the willingness of Parent
and Purchaser to enter into the Merger Agreement, Parent and
Purchaser required that certain of the Stockholders (including Orcas) agree
to compensate Purchaser in the event that such Stockholder does
not tender pursuant to the Offer, in accordance with the terms of
a the Stockholders Agreement, all the shares of Common Stock of
the Company owned (beneficially or of record) and which may be
acquired by each Stockholder. Pursuant to a Supplemental
Stockholders Agreement, dated as of March 15, 1995 (the
"Supplemental Stockholders Agreement"), between Purchaser and certain of the
Stockholders (including Orcas), if the Offer is terminated
because of the failure of any condition thereof and a Third Party
Transaction is consummated within 180 days thereafter, then Orcas
agreed to pay Purchaser promptly a fee equal to: (a) if any
Shares of Orcas were sold, exchanged, disposed of or canceled in
the Third Party Transaction, 50% of the excess, if any, of (i)
the consideration per Share received by Orcas for the Shares so
sold, exchanged, disposed of or canceled over (ii) the Per Share
Amount, multiplied by the number of Shares so sold, exchanged,
disposed of or canceled, and (b) if no Shares of Orcas were sold,
exchanged, disposed of or canceled in the Third Party Transaction
but Orcas received a distribution in respect of its Shares as a
result of the Third Party Transaction, 50% of the excess, if any,
of (i) the amount per Share distributed to Orcas divided by the
percentage of the consolidated total assets of the Company
disposed of in the Third Party Transaction over (ii) the Per
Share Amount, multiplied by the percentage of the consolidated
total assets of the Company disposed of in the Third Party
Transaction and then by the number of Shares then owned by Orcas.
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The foregoing descriptions of the Stockholders
Agreement and the Supplemental Stockholders Agreement are
summaries of certain of the provisions thereof and reference is
made to copies of such Agreements which are attached hereto as
Exhibits B and C, respectively, and incorporated herein by
reference for all of their terms and conditions.
Except as set forth above, the Reporting Persons have
no present plans or proposals which relate to or would result in
any of the transactions described in (a) through (j) of Item 4 of
Schedule 13D.
Item 5. Interest in Securities of the Issuer.
(a) Based on the Company's Quarterly Report on Form
10-Q for its fiscal quarter ended September 30, 1994, the Company
had a total of 24,664,709 shares of Common Stock issued and
outstanding as of November 1, 1994. As of March 15, 1995, the
Reporting Persons owned beneficially 5,149,582 shares of Common
Stock of the Company, constituting approximately 20.88% of the
Company's total outstanding shares of Common Stock, as determined
in accordance with Rule 13d-3 under the Exchange Act.
(b) Archipelago, as general partner of Orcas, has the
power, and Whitridge may be deemed to have, through his power to
elect the directors of Archipelago, shared indirect power, as the
beneficial owner of Archipelago, to vote and dispose of, and to
direct the voting and disposition of, the Shares.
(c) Except as set forth herein, none of the Reporting
Persons has engaged in any transactions in the Common Stock of
the Company during the sixty day period immediately preceding the
date hereof.
(d) Except as set forth herein, no other person is
known to have the right to receive or the power to direct the
receipt of dividends from or the proceeds from the sale of the
Shares.
(e) Inapplicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
See Item 4 above for a description of the Stockholders
Agreement and the Supplemental Stockholders Agreement.
Item 7. Material to Be Filed as Exhibits.
Exhibit A Purchase Option Agreement, dated as of October 21,
1993, among Continental Bank, N.A. and Orcas
Limited Partnership.*
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Exhibit B Stockholders Agreement, dated as of March 15,
1995, between ADU Acquisition Inc. and the persons
listed on Schedule A thereto.
Exhibit C Supplemental Stockholders Agreement, dated as of
March 15, 1995, between ADU Acquisition Inc. and
the persons listed on Schedule A thereto.
______
* previously filed
9
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SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in
this statement is true, complete and correct.
ORCAS LIMITED PARTNERSHIP
By: Archipelago Corporation,
its General Partner
By:/s/Frederick W. Whitridge, Jr.
------------------------------
Frederick W. Whitridge, Jr.
President
ARCHIPELAGO CORPORATION
By:/s/Frederick W. Whitridge, Jr.
------------------------------
Frederick W. Whitridge, Jr.
President
/s/Frederick W. Whitridge, Jr.
------------------------------
Frederick W. Whitridge, Jr.
Date: March 20, 1995
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EXHIBIT INDEX
Exhibit Page Number
Exhibit A Purchase Option Agreement, dated
as of October 21, 1993, among
Continental Bank, N.A. and Orcas
Limited Partnership. *
Exhibit B Stockholders Agreement, dated as
of March 15, 1995, between ADU
Acquisition Inc. and the persons
listed on Schedule A thereto. 12
Exhibit C Supplemental Stockholders Agreement,
dated as of March 15, 1995, between
ADU Acquisition Inc. and the persons
listed on Schedule A thereto. 20
______
* previously filed
11
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EXHIBIT B
STOCKHOLDERS AGREEMENT, dated as of March 15, 1995 (this
"Agreement"), between ADU ACQUISITION INC., a Delaware corporation ("Purchaser")
and an indirect wholly-owned subsidiary of FKI plc, a company organized under
the laws of England ("Parent"), and the persons listed on Schedule A hereto
(each, individually, a "Stockholder" and, collectively, the "Stockholders").
WHEREAS, Parent and Purchaser have entered into an Agreement
and Plan of Merger, dated as of the date hereof (the "Merger Agreement";
capitalized terms not defined in this Agreement have the meanings ascribed to
them in the Merger Agreement), with Amdura Corporation, a Delaware corporation
(the "Company"), which provides, among other things, upon the terms and subject
to the conditions thereof, for the acquisition by Purchaser of all the
outstanding shares of Common Stock, par value $.01 per share, of the Company
("Company Common Stock") through (a) a tender offer (the "Offer") for all shares
of Company Common stock for the Per Share Amount (as defined in the Merger
Agreement) and (b) a second-step merger pursuant to which Purchaser will merge
with and into the Company (the "Merger") and all outstanding shares of Company
Common Stock (other than shares of Company Common Stock held by Purchaser or
Parent or any direct or indirect wholly-owned subsidiary of Parent or the
Company and shares of Company Common Stock held in the treasury of the Company)
will be converted into the right to receive the Per Share Amount in cash; and
WHEREAS, as of the date hereof, each Stockholder owns
(beneficially or of record) the number of shares of Company Common Stock set
forth opposite such Stockholder's name on Schedule A hereto; and
WHEREAS, as a condition to the willingness of Parent and
Purchaser to enter into the Merger Agreement, Parent and Purchaser have required
that the Stockholders agree, and in order to induce Parent and Purchaser to
enter into the Merger Agreement, the Stockholders have agreed, severally and not
jointly, to tender pursuant to the Offer, in accordance with the terms of this
Agreement, all the shares of the Company Common Stock now owned (beneficially or
of record) and which may hereafter be acquired by each Stockholder (the
"Shares").
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
REPRESENTATIONS AND COVENANTS OF THE STOCKHOLDERS
SECTION 1.01. Authority Relative to this Agreement. Each
Stockholder represents and warrants to Purchaser, severally and not jointly,
that such Stockholder has all necessary power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby; that the execution and
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delivery of this Agreement by such Stockholder and the consummation by such
Stockholder of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action; that this Agreement has been duly
and validly executed and delivered by such Stockholder and, assuming the due
authorization, execution and delivery by Purchaser, constitutes a legal, valid
and binding obligation of such Stockholder, except to the extent such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting generally the
enforcement of creditors' rights and by the availability of equitable remedies;
that the execution and delivery of this Agreement by such Stockholder does not,
and the performance of this Agreement by such Stockholder will not conflict with
or violate the Certificate of Incorporation or By-laws of such Stockholder or
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to such Stockholder or by which any property or asset of such
Stockholder is bound or affected or require any consent, approval, authorization
or permit of, or filing with, or notification to, any governmental or regulatory
authority, domestic or foreign, to be obtained or made by such Stockholder
except for applicable requirements, if any, of the Exchange Act.
SECTION 1.02. Title to Shares. Each Stockholder hereby
represents and warrants, severally and not jointly, that it is the beneficial
owner of the number of Shares set forth opposite such Stockholder's name on
Schedule A, that such Shares are owned by it free and clear of all liens,
encumbrances and restrictions whatsoever and that such Stockholder has not
granted any proxy with respect to such Shares which is currently in effect.
SECTION 1.03. No Disposition or Encumbrance of Shares. Except
as contemplated by Section 1.04 hereof, each Stockholder hereby covenants and
agrees, severally and not jointly, that such Stockholder shall not, and shall
not offer or agree to, sell, transfer, tender, assign, hypothecate or otherwise
dispose of, or create or permit to exist any security interest, lien, claim,
pledge, option, right of first refusal, agreement, limitation on such
Stockholder's voting rights, charge or other encumbrance of any nature
whatsoever with respect to the Shares now owned or that may hereafter be
acquired by such Stockholder at any time prior to the termination of this
Agreement as to such Stockholder.
SECTION 1.04. No Solicitation of Transactions. Subject to the
fiduciary duties as a director of the Company of any representative or agent of
any Stockholder who is such a director as contemplated in Section 6.05 of the
Merger Agreement, each Stockholder shall not, directly or indirectly, through
any agent or representative or otherwise, solicit, initiate or encourage the
submission of any proposal or offer from any person relating to, participate in
any negotiations regarding, or furnish to any other person any information with
respect to, or otherwise cooperate in any way with, or assist or participate in,
facilitate or encourage, any Third Party Transaction at any time prior to the
termination of this Agreement as to such Stockholder.
SECTION 1.05. Agreement to Tender the Shares Pursuant to the
Offer. Each Stockholder agrees to validly tender and not withdraw pursuant to
the Offer all the Shares now owned (beneficially or of record) or that may
hereafter be acquired by such Stockholder. Notwithstanding the foregoing, such
Stockholder may withdraw such Shares from the Offer in the event that the Board
shall have withdrawn or modified in a manner adverse to Purchaser or Parent
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its approval or recommendation of the Offer, the Merger, the Merger Agreement or
any other Transaction in order to approve any Third Party Transaction which the
Board determines in the exercise of its good faith judgment and after
consultation with independent legal counsel and the Company's financial advisors
to be more favorable to the Company's stockholders than the Offer and the Merger
taken together.
SECTION 1.06. Filings and Announcements. Purchaser agrees to
provide to each Stockholder an advance copy of and an opportunity to comment on
those portions of each public announcement by Purchaser or Parent and each
document filed with the SEC or distributed to Stockholders pursuant to the
Exchange Act by Purchaser or Parent in connection with the Offer or the Merger
which refer to such Stockholder or this Agreement.
ARTICLE II
MISCELLANEOUS
SECTION 2.01. Indemnification. From and after the date hereof,
Parent and Purchaser (the "Indemnifying Parties") jointly and severally shall
indemnify and hold harmless each of the Stockholders (collectively the
"Indemnified Parties" and individually an "Indemnified Party") against any loss,
damage or expense (including reasonable attorney's fees and disbursements)
actually incurred by any such Indemnified Party to the extent arising from any
Company stockholders or third party claim, suit or demand in connection with
this Agreement or the Transactions (a "Third Party Claim"). For purposes of this
Section 2.01, a Third Party Claim shall expressly exclude any claim, suit or
demand brought or instituted by any partner, investor, stockholder or affiliate
of any Indemnified Party.
The Indemnified Parties shall give the Indemnifying Parties
prompt written notice of any Third Party Claim which they believe will give rise
to indemnification under this Section 2.01; provided, however, that the failure
to give such notice, shall not affect the liability of the Indemnifying Parties
hereunder unless and to the extent the failure to give such notice adversely
affects the ability of the Indemnifying Parties to defend themselves or to
mitigate the damages sought in such Third Party Claim. Except as hereinafter
provided, the Indemnifying Parties shall have the right to defend and to direct
the defense against any such Third Party Claim in its name or in the name of any
Indemnified Party at the Indemnifying Parties' expense and with counsel selected
by agreement of the Indemnified Parties, and reasonably acceptable to Parent,
which shall be the only counsel for the Indemnified Parties, and only the
Indemnifying Parties will have the right to settle or compromise any such Third
Party Claim; provided, however, that (i) the Indemnifying Parties shall only be
responsible for the first $50,000 in fees and disbursements of such counsel in
defending the Indemnified Parties in any such Third Party Claim and the
Indemnified Parties shall be responsible for such legal fees and disbursements
in excess of $50,000, and (ii) the Indemnifying Parties will not, without the
Indemnified Parties' written consent, settle or compromise any claim or consent
to any entry of judgment which does not include as an unconditional term thereof
the giving by the claimant or the plaintiff to the Indemnified Parties a release
from all liability in respect of such Third Party Claim. The
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Indemnified Parties shall cooperate in the defense of any such Third Party
Claim. If the Indemnifying Parties, within a reasonable time after notice of a
Third Party Claim, fail to defend the Indemnified Parties, the Indemnified
Parties shall be entitled to undertake the defense, compromise or settlement of
such Third Party Claim at the expense of (subject to the limitations set forth
herein) and for the account and risk of the Indemnifying Parties subject to the
rights of the Indemnifying Parties to assume the defense of such Third Party
Claim at any time prior to the settlement, compromise or final determination
thereof.
Notwithstanding anything contained in this Section 2.01, any
Indemnified Party may engage counsel of its own choice; provided, however, that
all of the fees and disbursements of such counsel shall be the sole
responsibility of such Indemnified Party.
SECTION 2.02. Expenses. Except as otherwise provided herein,
all costs and expenses incurred in connection with the transactions contemplated
by this Agreement shall be paid by the party incurring such expenses.
SECTION 2.03. Further Assurances. Each Stockholder and
Purchaser will execute and deliver all such further documents and instruments
and take all such further action as may be necessary in order to consummate the
transactions contemplated hereby.
SECTION 2.04. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or in equity.
SECTION 2.05. Entire Agreement. This Agreement constitutes the
entire agreement between Purchaser and the Stockholders with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
both written and oral, between Purchaser and each Stockholder with respect to
the subject matter hereof.
SECTION 2.06. Assignment. This Agreement shall not be assigned
by operation of law or otherwise (other than by will or the laws of descent and
distribution), except the Purchaser may assign all or any of its rights and
obligations hereunder to any wholly-owned subsidiary of Parent, provided that no
such assignment shall relieve Purchaser of its obligations hereunder if such
assignee does not perform such obligations.
SECTION 2.07. Parties in Interest. This Agreement shall be
binding upon, inure solely to the benefit of, and be enforceable by, the parties
hereto and their successors and permitted assigns. Nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
SECTION 2.08. Amendment; Waiver. This Agreement may not be
amended except by an instrument in writing signed by the parties hereto. Any
party hereto may (i) extend the time for the performance of any obligation or
other act of any other party hereto, (ii) waive
15
<PAGE>
any inaccuracy in the representations and warranties contained herein or in any
document delivered pursuant hereto and (iii) waive compliance with any agreement
or condition contained herein. Any such extension or waiver shall be valid if
set forth in an instrument in writing signed by the party or parties to be bound
thereby.
SECTION 2.09. 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 so long as the economic or
legal substance of this Agreement is not affected in any manner materially
adverse to any party. 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 in a mutually acceptable manner in
order that the terms of this Agreement remain as originally contemplated to the
fullest extent possible.
SECTION 2.10. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person, by
cable, telecopy, telegram or telex or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be specified in a
notice given in accordance with this Section 2.10):
if to Purchaser:
ADU Acquisition Inc.
c/o FKI Industries Inc.
425 Post Road
Fairfield, CT 06430-0970
Facsimile No. (203) 255-7101
Attention: General Counsel
with copies to:
FKI plc
West House
King Cross Road
Halifax, West Yorkshire HX1 1EB
England
Facsimile No. (011) 44-422-330-407
Attention: Company Secretary
and
16
<PAGE>
Parson & Brown
230 Park Avenue
New York, NY 10169
Facsimile No. (212) 682-9112/9113
Attention: James H. Bell, Esq.
if to a Stockholder:
to its address set forth on Schedule A hereto.
SECTION 2.11. Termination. This Agreement shall terminate upon
the termination of the Merger Agreement. Any Stockholder may terminate this
Agreement as to itself if (a) the Merger Agreement shall have been amended in
any way which adversely affects such Stockholder, (b) the Offer shall not have
been commenced within 10 Business Days after the date of this Agreement or (c)
such Stockholder's Shares shall not have been accepted for payment and paid for
within 90 days after the date of this Agreement.
SECTION 2.12. Fees and Expenses of Counsel. Purchaser agrees
to pay the reasonable fees and expenses of legal counsel retained by any
Stockholder in any action brought to enforce its rights hereunder to the extent
that such action is successful on the merits.
SECTION 2.13. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware
applicable to contracts executed in and to be performed in that State.
SECTION 2.14. Headings. The descriptive headings contained in
this Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
SECTION 2.15. Counterparts. This Agreement may be executed in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
17
<PAGE>
IN WITNESS WHEREOF, Purchaser has caused this Agreement to be
executed by its officer thereunto duly authorized and each Stockholder has duly
executed this Agreement, each as of the date first written above.
ADU ACQUISITION INC.
By: /s/ Steven D. Jones
----------------------------------
Name:
Title:
THE STOCKHOLDERS: THE INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION
By: /s/ Tracey L. Rudd
-----------------------------------
Name:
Title:
ORCAS LIMITED PARTNERSHIP
By: Archipelago Corp., Its General Partner
By: /s/ Frederick Whitridge, Jr.
-----------------------------------
Name:
Title:
NETWORK COMPANY II
By: /s/ John W. Gildea
-----------------------------------
Name:
Title:
INVESTORS TRADING A.B.
By: /s/ Anders Rydin
-----------------------------------
Name:
Title:
18
<PAGE>
SCHEDULE A
Name Shares
Internationale Nederlanden (U.S.)
Capital Corporation 4,641,535
Orcas Limited Partnership 5,149,582
Network Company II 1,710,083
Investors Trading A.B. 4,909,451
19
<PAGE>
EXHIBIT C
SUPPLEMENTAL STOCKHOLDERS AGREEMENT, dated as of March 15,
1995 (this "Agreement"), between ADU ACQUISITION INC., a Delaware corporation
("Purchaser") and an indirect wholly-owned subsidiary of FKI plc, a company
organized under the laws of England ("Parent"), and the persons listed on
Schedule A hereto (each, individually, a "Stockholder" and, collectively, the
"Stockholders").
WHEREAS, Parent and Purchaser have entered into an Agreement
and Plan of Merger, dated as of the date hereof (the "Merger Agreement";
capitalized terms not defined in this Agreement have the meanings ascribed to
them in the Merger Agreement), with Amdura Corporation, a Delaware corporation
(the "Company"), which provides, among other things, upon the terms and subject
to the conditions thereof, for the acquisition by Purchaser of all the
outstanding shares of Common Stock, par value $.01 per share, of the Company
("Company Common Stock") through (a) a tender offer (the "Offer") for all shares
of Company Common Stock for the "Per Share Amount" (as defined in the Merger
Agreement) and (b) a second-step merger pursuant to which Purchaser will merge
with and into the Company (the "Merger") and all outstanding shares of Company
Common Stock (other than shares of Company Common Stock held by Purchaser or
Parent or any direct or indirect wholly-owned subsidiary of Parent or the
Company and shares of Company Common Stock held in the treasury of the Company)
will be converted into the right to receive the Per Share Amount in cash; and
WHEREAS, as of the date hereof, each Stockholder owns
(beneficially or of record) the number of shares of Company Common Stock set
forth opposite such Stockholder's name on Schedule A hereto; and
WHEREAS, Purchaser and each Stockholder have entered into a
Stockholders Agreement, dated the date hereof (the "Stockholders Agreement");
and
WHEREAS, as a condition to the willingness of Parent and
Purchaser to enter into the Merger Agreement, Parent and Purchaser have required
that the Stockholders agree, and in order to induce Parent and Purchaser to
enter into the Merger Agreement, each Stockholder has agreed, severally and not
jointly, to compensate Purchaser in the event that such Stockholder does not
tender pursuant to the Offer, in accordance with the terms of the Stockholders
Agreement, all the shares of the Company Common Stock now owned (beneficially or
of record) and which may hereafter be acquired by each Stockholder (the
"Shares").
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
20
<PAGE>
ARTICLE I
REPRESENTATIONS AND COVENANTS OF THE STOCKHOLDERS
SECTION 1.01. Authority Relative to this Agreement. Each
Stockholder represents and warrants to Purchaser, severally and not jointly,
that such Stockholder has all necessary power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby; that the execution and delivery of this
Agreement by such Stockholder and the consummation by such Stockholder of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action; that this Agreement has been duly and validly
executed and delivered by such Stockholder and, assuming the due authorization,
execution and delivery by Purchaser, constitutes a legal, valid and binding
obligation of such Stockholder, except to the extent such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting generally the enforcement of creditors' rights and
by the availability of equitable remedies; that the execution and delivery of
this Agreement by such Stockholder does not, and the performance of this
Agreement by such Stockholder will not conflict with or violate the Certificate
of Incorporation or By-laws of such Stockholder or conflict with or violate any
law, rule, regulation, order, judgment or decree applicable to such Stockholder
or by which any property or asset of such Stockholder is bound or affected or
require any consent, approval, authorization or permit of, or filing with, or
notification to, any governmental or regulatory authority, domestic or foreign,
to be obtained or made by such Stockholder except for applicable requirements,
if any, of the Exchange Act.
SECTION 1.02. Fee. If the Offer is terminated because of the
failure of any condition thereof and a Third Party Transaction is consummated
within 180 days thereafter, then each Stockholder shall pay Purchaser a fee
equal to: (a) if any Shares of such Stockholder were sold, exchanged, disposed
of or cancelled in the Third Party Transaction, 50% of the excess, if any, of
(i) the consideration per Share received by such Stockholder for the Shares so
sold, exchanged, disposed of or cancelled over (ii) the Per Share Amount,
multiplied by the number of Shares so sold, exchanged, disposed of or cancelled,
and (b) if no Shares of such Stockholder were sold, exchanged, disposed of or
cancelled in the Third Party Transaction but such Stockholder received a
distribution in respect of its Shares as a result of the Third Party
Transaction, 50% of the excess, if any, of (i) the amount per Share distributed
to such Stockholder divided by the percentage of the consolidated total assets
of the Company disposed of in the Third Party Transaction over (ii) the Per
Share Amount, multiplied by the percentage of the consolidated total assets of
the Company disposed of in the Third Party Transaction and then by the number of
Shares then owned by such Stockholder. Such fee shall be paid to Purchaser
promptly (but in no event later than one business day) after such Stockholder's
receipt of the consideration or distribution.
21
<PAGE>
ARTICLE II
MISCELLANEOUS
SECTION 2.01. Expenses. Except as otherwise provided herein,
all costs and expenses incurred in connection with the transactions contemplated
by this Agreement shall be paid by the party incurring such expenses.
SECTION 2.02. Further Assurances. Each Stockholder and
Purchaser will execute and deliver all such further documents and instruments
and take all such further action as may be necessary in order to consummate the
transactions contemplated hereby.
SECTION 2.03. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or in equity.
SECTION 2.04. Entire Agreement. This Agreement constitutes the
entire agreement between Purchaser and the Stockholders with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
both written and oral, between Purchaser and each Stockholder with respect to
the subject matter hereof.
SECTION 2.05. Assignment. This Agreement shall not be assigned
by operation of law or otherwise (other than by will or the laws of descent and
distribution), except the Purchaser may assign all or any of its rights and
obligations hereunder to any wholly-owned subsidiary of Parent, provided that no
such assignment shall relieve Purchaser of its obligations hereunder if such
assignee does not perform such obligations.
SECTION 2.06. Parties in Interest. This Agreement shall be
binding upon, inure solely to the benefit of, and be enforceable by, the parties
hereto and their successors and permitted assigns. Nothing in this Agreement,
express or implied, in intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
SECTION 2.07. Amendment; Waiver. This Agreement may not be
amended except by an instrument in writing signed by the parties hereto. Any
party hereto may (i) extend the time for the performance of any obligation or
other act of any other party hereto, (ii) waive any inaccuracy in the
representations and warranties contained herein or in any document delivered
pursuant hereto and (iii) waive compliance with any agreement or condition
contained herein other than the condition set forth in Section 1.04 with respect
to satisfaction of the Minimum Condition. Any such extension or waiver shall be
valid if set forth in an instrument in writing signed by the party or parties to
be bound thereby.
SECTION 2.08. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
22
<PAGE>
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of this Agreement is not affected in any manner materially
adverse to any party. 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 in a mutually acceptable manner in
order that the terms of this Agreement remain as originally contemplated to the
fullest extent possible.
SECTION 2.09. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person, by
cable, telecopy, telegram or telex or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be specified in a
notice given in accordance with this Section 2.09):
if to Purchaser:
ADU Acquisition Inc.
c/o FKI Industries Inc.
425 Post Road
Fairfield, CT 06430-0970
Facsimile No. (203) 255-7101
Attention: General Counsel
with copies to:
FKI plc
West House
King Cross Road
Halifax, West Yorkshire HX1 1EB
England
Facsimile No. (011) 44-422-330-407
Attention: Company Secretary
and
Parson & Brown
230 Park Avenue
New York, NY 10169
Facsimile No. (212) 682-9112/9113
Attention: James H. Bell, Esq.
23
<PAGE>
if to a Stockholder:
to its address set forth on Schedule A hereto.
SECTION 2.10. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware
applicable to contracts executed in and to be performed in that State.
SECTION 2.11. Headings. The descriptive headings contained in
this Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
SECTION 2.12. Counterparts. This Agreement may be executed in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
24
<PAGE>
IN WITNESS WHEREOF, Purchaser has caused this Agreement to be
executed by its officer thereunto duly authorized and each Stockholder has duly
executed this Agreement, each as of the date first written above.
ADU ACQUISITION INC.
By: /s/ Steven D. Jones
----------------------------------
Name:
Title:
THE STOCKHOLDERS: THE INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION
By: /s/ Tracey L. Rudd
----------------------------------
Name:
Title:
ORCAS LIMITED PARTNERSHIP
By: Archipelago Corp., Its General Partner
By: /s/ Frederick Whitridge, Jr.
----------------------------------
Name:
Title:
NETWORK COMPANY II
By: /s/ John W. Gildea
----------------------------------
Name:
Title:
25
<PAGE>
SCHEDULE A
Name Shares
Internationale Nederlanden (U.S.)
Capital Corporation 4,641,535
Orcas Limited Partnership 5,149,582
Network Company II 1,710,083
26
